CIVIL PROCEDURE

Parts of the PleadingCaption

Body

Signature and Address

Verification and Certification against Non-forum Shopping

FORUM SHOPPING consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief.Test to determine the presence of forum-shopping:Whether in the two (or more) cases pending, there is identity of (a) parties, (b) rights or causes of action, and (c) relief sought.Manner of Making Allegations

Every pleading shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts, omitting the statement of mere evidentiary facts. Conditions Precedent- Pleading must state conditions precedent to the cause of action, e.g. failure to compromise or non-compliance with conciliation process at the barangay level.

Fraud, Mistake and Condition of Mind- Fraud or mistake must be stated with particularity while malice or intent must be averred generally.

Actionable Document- Written instrument upon which the action or defense is based; main object of the action. (e.g. Promissory note, deed of mortgage, written contract)

Non-Actionable Document- It is some other extraneous document which is not the main object of the action. (e.g. Demand letter)

How to Contest an Actionable Document

1. By specific denial under oath; and

2. By setting forth what is claimed to be the facts.

Specific Denial

Three Ways of making specific denial

1. By specifically denying the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial (GENERAL DENIAL);

2. Part admission and part denial (PARTIAL DENIAL); and

3. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing partys pleading (DENIAL BY DISAVOWAL OF KNOWLEDGE)

Negative Pregnant

A form of denial which at the same time involves an affirmative implication favorable to the opposing party; it is in effect, an admission of the averment to pregnant with an admission of the substantial facts in the pleading responded to.

Allegations not Specifically Denied deemed Admitted

GENERAL RULE: Allegations NOT specifically denied are deemed admitted.

EXCEPTIONS:

1. Allegations as to the amount of unliquidated damages;

2. Allegations immaterial as to the cause of action; and

3. Conclusion of law.

Effect of Failure to Plead

GENERAL RULE: Defenses and objections that are not pleaded in a MOTION TO DISMISS or in the answer are deemed waived.

EXCEPTIONS (not waived even if not raised):

(a)Lack of jurisdiction over the subject matte

(b)Litis pendentia

(c)Res judicata

(d)Prescription of the action

Amended Answer vs. Supplemental Answer

An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up.

A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-claim matures or is acquired after the answer is filed

Default

Effect of Order of Default

While the party in default cannot take part in the trial, he is nonetheless entitled to notice of subsequent proceedings.

He may still be called on as a witness, in behalf of the non-defaulting defendants

Remedies of a party declared in default

Before the rendition of judgment;

(a) file a motion to dismiss under oath to set aside the order of default on the grounds of fraud, accident, mistake or excusable negligence and that he has a meritorious defense (Sec. 3[b] of Rule 9 ); and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of jurisdiction ( Sec. 1 of Rule 65 ); or

(b) file a petition for certiorari if he has been illegally declared in default e.g. during the pendency of his motion to dismiss or before the expiration of the time to answer. (Matute v. CA, 26 SCRA 768; Acosta-Ofalia v. Sundial, 85 SCRA 412 ).

After judgment but before its finality;

(a.) file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or;

(b.) file a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law ( Sec. 2 of Rule 37); and thereafter, if the motion is denied, appeal is available under Rules 40 or 41, whichever is applicable.

After finality of judgment

There are three ways to assail the judgment, which are:

(a) a petition for relied under Rule 38 on the grounds of fraud, accident, mistake or excusable negligence;

(b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction;

(c) certiorari if the judgment is void on its face or by the

judicial record.

Amended Pleading vs. Supplemental Pleading

AMENDED PLEADINGSUPPLEMENTAL PLEADING

Refers to facts existing at the time of the commencement of the action.Refers to facts arising after the filing of the original pleading.

Take place of the original pleadingTaken together with the original pleading

Can be made as a matter of right as when no responsive pleading has yet been filed.Always done with leave of court

When to File Responsive Pleading

ANSWER TO THE COMPLAINT - Within 15 days after service of summons, UNLESS a different period is fixed by the court;

ANSWER OF A DEFENDANT FOREIGN PRIVATE JURIDICAL ENTITY

In case the defendant is a foreign private juridical entity;

a.) If it has a resident agent within 15 days after service of summons to him;

b.) If it has no resident agent, but it has an agent or officer in the Philippines within 15 days after service of summons to said agent or officer;

c.) If it has no resident agent nor agent nor officer in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation within 30 days after receipt of summons by the home office of the foreign private entity.

In case of service of summons by publication within the time specified in the order granting leave to serve summons by publication, which shall NOT be less than 60 days after notice (Rule 14, Section 15); and

In case of a non-resident defendant on whom extraterritorial service of summons is made at least 60 days.

The court may extend the time to file the pleadings but may not shorten them.

ANSWER TO AMENDED PLEADINGS

If the filing of an amended complaint is a MATTER OF RIGHT within 15 days from service of amended complaint.

If the filing of an amended complaint is NOT A MATTER OF RIGHT within 10 days counted from notice of the court order admitting the same.

ANSWER TO COUNTERCLAIM OR CROSS-CLAIM

A counterclaim or cross-claim must be answered within 10 days from service.

ANSWER TO THIRD (FOURTH, ETC.)-PARTY COMPLAINT

The third party defendant is served with summons just like the original defendant, hence, he also has 15, 30, 60 days from service of summons, as the case may be, to file his answer.

REPLY

A reply may be filed within 10 days from service of the pleading responded to.

ANSWER TO SUPPLEMENTAL COMPLAINT

Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same.

Bill of Particulars (Effects of motion if denied or granted)

BILL OF PARTICULARS A more definite statement of any matter which is not averred with sufficient definiteness or particularity.

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. (Galeon v. Galen 60 SCRA 234 (1976))

The motion for bill of particulars shall be filed BEFORE responding to a pleading. Hence, it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading.

If the pleading is a reply, the motion must be filed within 10 days from service thereof.

EFFECTS OF MOTION:

If the motion is GRANTED, in whole or in part, the MOVANT can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading.

If his motion is DENIED, he will still have such balance of the reglementary period to file his responsive pleading; counted from service of the order denying his motion.

NOTE: In either case, he shall NOT have less than 5 days to file his responsive pleading.

Summons

Purpose - To acquire jurisdiction over the person of the defendant in a civil case; and

Modes of Service

Personal service

Substituted service

Extraterritorial Service and its Requisites

REQUISITES:

1. Defendant does NOT RESIDE or is NOT FOUND in the Philippines;

2. The action must be an action IN REM or QUASI IN REM. It either:

a. Affects the PERSONAL STATUS of plaintiff;

b. Relates to the subject which is property within the Philippines in which defendant has a LIEN or interest;

c. Demands a relief which consists wholly or in part in EXCLUDING the defendant from any interest in any property within the Philippines; or

d. Property of defendant has been ATTACHED in the Philippines.

Motion to Dismiss

GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto.

EXCEPTIONS:

1. Those cases where the court may dismiss a case motu proprio (Sec. 1, Rule 9);

2. Upon the plaintiffs own motion (Sec. 2, Rule 17); or

3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure).

Grounds

1. No jurisdiction over the person of the defending party;

2. No jurisdiction over the subject matter of the calm;

3. Improper venue;

4. No legal capacity to sue;

5. Litis pendentia;

6. Res judicata;

7. Prescription;

8. Failure to state a cause of action;

9. Claim or demand has been paid, waived, abandoned, or otherwise extinguished;

10. Claim is unenforceable under the Statute of Frauds; and

11. Non-compliance with a condition precedent for filing a claim.

Effects of Dismissal

GENERAL RULE: The action or claim may be re-filed.

EXCEPTIONS: The action cannot be re-filed if it was dismissed on any of these grounds:

1. Res judicata;

2. Prescription;

3. Extinguishment of the claim or demand; and

4. Unenforceability under the Statue of Frauds.

In these instances, the remedy of the plaintiff is APPEAL.

Dismissal of Actions

Upon Notice by the Plaintiff

GENERAL RULE: Such dismissal is WITHOUT PREJUDICE.

EXCEPTIONS:

1.Where the notice of dismissal so provides; or

2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction. (TWO-DISMISSAL RULE)

Upon Motion of the Plaintiff

The dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just.

Dismissal under this rule is WITHOUT PREJUDICE, ( the complaint can be re-filed) EXCEPT:

1.When otherwise stated in the motion to dismiss; or

2.When stated to be with prejudice in the order of the court.

Pre-Trial

Nature and Purpose

The court shall consider:

1.The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution;

2.The SIMPLIFICATION OF ISSUES;

3.The necessity or desirability of AMENDMENTS TO THE PLEADINGS;

4.The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof;

5.The limitation of the number of WITNESSES;

6.The advisability of a PRELIMINARY REFERENCE of issues to a commissioner;

7.The propiety of RENDERING JUDGMENT on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist;

8.The advisability or necessity of SUSPENDING THE PROCEEDINGS; and

9.Such OTHER MATTERS as may aid in the prompt disposition of the case.

Effect of Non-appearance of plaintiff

Cause for the dismissal of the action. This dismissal shall be with prejudice EXCEPT when the court orders otherwise. The dismissal shall have the effect of adjudication on the merits and is thus final. The remedy of the plaintiff is to appeal the order of dismissal.

Effect of Non-appearance of defendant

Cause the plaintiff to present evidence ex-parte and for the court to render judgment on the basis thereof. The order to present evidence ex-parte is interlocutory and thus not appealable. The defendant may ask for reconsideration and if the denial is with grave abuse of discretion he may file a petition for certiorari.

Demurrer to Evidence

NATURE: There is only a one-sided trial, i.e., it is only the plaintiff who has presented evidence.

PURPOSE: To discourage prolonged litigations.

If motion denied- Movant shall have the right to present his evidence.

Denial is INTERLOCUTORY. Sec. 1, Rule 36 (That judgment should state clearly and distinctly the facts and the law on which it is based), will not apply. The denial is NOT appealable.

If motion granted but reversed on appeal- Movant is deemed to have waived his right to present evidence. The decision of the appellate court will be based only on the evidence of the plaintiff as the defendant loses his right to have the case remanded for reception of his evidence

Order of the court is an ADJUDUCATION ON THE MERITS. Hence, the requirement in Sec. 1, Rule 36 should be complied with.

Judgment on Demurrer to Evidence- A judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

Judgment on the Pleadings

JUDGMENT ON THE PLEADINGS A judgment rendered by the court upon motion of the claimant on the ground that an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading.

Motion for New Trial

GROUNDS: MOTION FOR NEW TRIAL

1. Fraud, accident, mistake, or excusable negligence

(FAME);

2. Newly discovered evidence

Motion for Reconsideration

Grounds:

Damages awarded are excessive

Evidence is insufficient to justify the decision or final order

Decision is contrary to law

Petition for Relief

GROUNDS FOR PETITION FOR RELIEF1. Judgment or final order entered against a party by FAME; or

2. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal

For fraud to be extrinsic, the losing party must never have had a chance to controvert the adverse partys evidence.

Uniform procedure for relief from judgments of MTC and RTC

Writ of Execution - is a judicial writ issued to an officer authorizing him to execute the judgment of the court.Essential Requisites of a Writ of Execution

1.A writ of execution to be valid must conform strictly to the decision or judgment which gives it life; and

2.It CANNOT VARY the terms of the judgment it seeks to enforce

Appeal

Three modes of appeal

1.Ordinary Appeal (Rule 40 and 41)

a.Notice of Appeal

b.Record on Appeal

2.Petition for Review (Rule 42)

3.Appeal by Certiorari (Rule 45)

When is appeal a matter of right

1.First Appeal is a matter of right

EXCEPT: In civil cases, first appeal is not a matter of right of filed with the Supreme Court.

2.In criminal cases, when the RTC imposes death penalty, the Court of Appeals shall automatically review the judgment (Section 3(d) Rule 122). If the Court of Appeals finds that death penalty should be imposed, the CA shall not render judgment but certify and elevate the case to the Supreme Court for review (Section 13(a) Rule 124).

PROVISIONAL REMEDIESATTACHMENT:

WHEN APPLICATION FOR ATTACHMENT MAY BE MADE:

1. At the commencement of the action; or

2. At any time before entry of judgment.

TWO-FOLD PURPOSE OF ATTACHMENT:

1 .To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment;

2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.

HOW TO PREVENT THE ATTACHMENT

1.BY DEPOSITING with the court from which the writ was issued an amount equal to the value of the bond fixed by the court in the order of attachment or an amount equal to the value of the property to be attached, exclusive of costs; or

2.BY GIVING A COUNTERBOND executed to the applicant, in amount equal to the bond posted by the latter to secure the attachment or in an amount equal to the value of the property to be attached exclusive of costs (Riano, p.55&)

REMEDY OF THE THIRD PERSON:

1. File a terceria or third party claim (similar to Sec. 16, Rule 39)

2. File independent action to recover his property; or

3. File a motion for intervention (This is available only before a judgment is rendered, hence, and not allowed under Rule 39

INJUNCTIONS

PRELIMINARY PROHIBITORY INJUNCTION

An order granted at any stage of an action or proceeding prior to judgment or final order, requiring a party or court, agency or person to refrain from a particular act or acts.PRELIMINARY MANDATORY INJUNCTION

An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring the performance of a particular act or acts.

PROHIBITION

Directed against a court, tribunal, or a person exercising judicial, quasi-judicial, or ministerial functions

On the ground that the court against whom the writ is sought had acted without or in excess of jurisdiction.

Always a main action

TEMPORARY RESTRAINING ORDER

GENERAL RULE: No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined.

EXCEPTION: When temporary restraining order may be issued ex parte.DURATION OF TEMPORARY RESTRAINING ORDER:

20 days from notice: if great or irreparable injury would result to the applicant before the matter can be heard on notice.

72 hours from issuance (issued ex parte): if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury.

extension of the 72-hour TRO

RECEIVERSHIP

IN WHAT CASES RECEIVER MAY BE APPOINTED:

Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals, or by the Supreme Court, or a member thereof, in the following cases:

1.The party applying for the appointment of a receiver has an interest in the property or fund subject of the action and such is in danger of being lost, removed, or materially injured unless a receiver is appointed;

2.In an action by the mortgagee for foreclosure of mortgage when the property is in danger of being wasted 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;

3.After judgment, to preserve the property during the pendency of the appeal, or to dispose of it according to the judgment, or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment, or to carry out the judgment;

4.In other cases where it appears appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation.

REPLEVIN

Replevin is the provisional remedy seeking for the possession of the property prior to the determination of the main action for replevin.

Procedure for the application for Replevin (Requisites):

1.File an APPLICATION at the commencement of the action or at any time before defendant answers.

2. Applicant must give a BOND, executed to the adverse party, which shall be double the value of the property as stated in the affidavit.

SUPPORT PENDENTE LITE

Support Pendente Lite is an amount of support provisionally fixed by the court in favour of the person or persons entitled thereto during the pendency of an action for support. Here the main action is for support and support pendent lite is the provisional remedy.

SPECIAL CIVIL ACTIONS

Interpleader

Interpleader is a special civil remedy where a person, who has property (personal or real) in his possession or an obligation to perform, either wholly or partially, without claiming any right to either, or who claims no interest in the subject, or whose interest, in whole or in part, is not disputed by others, goes to court and asks that conflicting claimants to the property, or obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

Declaratory Relief

Purpose- to ask the court to make a proper interpretation of a written instrument, or a statute, executive order, ordinance, or other governmental regulation.It also adjudicates the legal rights, duties, or status of parties.

Who files the petition- Any person interested under a deed, will contract, or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation. (Sec.1)

When to file the petition- Before breach or violation of a right under a deed, will, contract or other written instrument, or under a statute or ordinance.

CERTIORARIPROHIBITIONMANDAMUS

Directed against an entity or person exercising judicial or quasi-judicial functions.Directed against an entity or person exercising judicial, quasi-judicial, or ministerial functionsDirected against an entity or person exercising ministerial functions

Entity or person is alleged to have acted:

Without jurisdiction;

2. In excess of jurisdiction; or

3. With grave abuse of discretion amounting to lack or excess of jurisdictionEntity 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 jurisdictionEntity or person is alleged to have acted:

Neglected a ministerial duty;or

2. Excluded another from a right or office

Purpose is to annul or nullify a proceedingPurpose is to have respondent desist from further proceedingPurpose is for respondent to

1.Do the act required; and

2.To pay damages

Covers discretionary actsCovers discretionary and ministerial actsCovers ministerial acts

Writ of Certiorari- It is a writ issued by a superior court to an inferior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.Petition for Prohibition- Legal remedy available to prevent inferior courts, or other tribunals, corporations, boards, officers, or persons, from usurping or exercising a jurisdiction with which they have not been vested by law, to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice.Petition for Mandamus- Command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.Quo Warranto- It is the remedy or proceeding by which the sovereign or state determines the legality of a claim which a party asserts to the use or exercise of an office or franchise and ousts the holder from its enjoyment, if the claim is not well founded, or if the right to enjoy the privilege has been forfeited or lost.Expropriation- the procedure to be followed in the exercise of the right of eminent domain, which is the right of the State to acquire private property for public use upon payment of just compensation.Judicial and Extrajudicial Foreclosure

JUDICIAL FORECLOSUREEXTRAJUDICIAL FORECLOSURE

-requires court intervention - does not require court intervention

- There is only an equity of redemption - Right of redemption exists

- Governed by Rule 68 - Governed by Act 3135

EQUITY OF REDEMPTION RIGHT OF REDEMPTION

Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriffs certificate of foreclosure title

Governed by Rule 68 Governed by Rule 39, Sections 29-31

Period is 90-120 days after entry of or even after the foreclosure sale but prior to confirmation Period is within 1 year from the registration of the Sheriffs certificate of foreclosure title

Partition- The process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in the property. KINDS OF PARTITION

1. Judicial - procedure governed by Rule 69

2. Extrajudicial -no court intervention is required

WHEN PARTITION MADE

GENERAL RULE: It can be made anytime and the right to demand partition is imprescriptible.

EXCEPTION: If a co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of adverse title.

Forcible Entry and Unlawful Detainer

FORCIBLE ENTRYUNLAWFUL DETAINER

Possession of land is unlawful from the beginning due to force, intimidation, threat, strategy or stealth Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession

No requirement of previous demand for defendant to vacate premises Demand is jurisdictional

Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant Plaintiff need not have been in prior physical possession

1-year period counted from date of actual entry or when plaintiff learned thereof. 1-year period from date of last demand

THREE KINDS OF ACTION FOR RECOVERY OF POSSESSION

ACCION INTERDICTALACCION PUBLICIANAACCION REIVINDICATORIA

Summary action for the recovery of physical possession where the dispossession has not lasted for more than 1 year A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than 1 year An action for the recovery of ownership, which necessarily includes the recovery of possession

MTC only RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila RTC if value of property exceeds P20,000.00, or P50,000.00 in Metro Manila

Contempt

DIRECT CONTEMPTINDIRECT CONTEMPT

Committed in the presence of or so near a court or judge Not committed in the presence of the court

Punished summarily without hearing.

No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed Punished only after hearing complaint in writing or motion or party or order of court requiring person to appear and explain, opportunity to appear and show cause

Remedy is certiorari or prohibition Remedy is appeal

Certiorari/prohibition suspends execution provided there is a bond Immediately executory unless a bond is filed

SPECIAL PROCEEDING

RULE 73 - VENUE AND PROCESS

JURISDICTION AND VENUE

1.Settlement of estate of deceased persons

i.RTC Gross value of the estate exceeds P300,000/P400,000 (Manila)

ii.MTC Gross value of the estate does not exceed P300,000/P400,000 (Manila)

If resident place where deceased resided at time of death

If non-resident place where deceased had estate

NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs.

RULE 74 - SUMMARY SETTLEMENT OF ESTATES

GENERAL RULE: The settlement of the estate of the decedent should be judicially administered through an administrator or executor.

EXCEPTIONS:

1.Extrajudicial settlement;

2.Summary settlement of estate of small value (not exceeding P10,000)

BOND

It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims under Sec. 4, Rule 74.

Bond filed is required only when personal property is involved. If real, it is subject to a lien in favor of creditor for full period of 2 years from such distribution and such lien cannot be substituted by a bond (Rebong vs. Ibanez, 79 Phil. 324 (1947))

RULE 75 - PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY

No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

CUSTODIAN OF WILL TO DELIVER

The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

RULE 76 - ALLOWANCE OR DISALLOWANCE OF WILL

PROBATE

It is the act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law.

WHO MAY PETITION FOR THE ALLOWANCE OF A WILL:

1.Any creditor as preparatory step for filing his claim therein;

2.Devisee or legatee

3.Person interested in the estate (heirs)

4.Executor

5.Testator himself during his lifetime.

RULE 77 - ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER

WILL PROVED OUTSIDE PHILIPPINES MAY BE ALLOWED HERE

It is a requirement that a will which was probated in a foreign country be re-probated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same.

TWO TYPES OF ADMINISTRATION OF ESTATE

PRINCIPAL ADMINISTRATION Granted in the jurisdiction of the decedents domicile

ANCILLARY ADMINISTRATION Instituted where the decedent left his estate

Administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator found in one state or country has no power over property in another state or country. (Leon vs. Manufacturers Life Insurance Co., 90 Phil. 459 (1951)

RULE 78 - LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED

WHO CAN ADMINISTER THE ESTATE

1.EXECUTOR One named by the testator in his will for the administration of his property after his death

2.ADMINISTRATOR One appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate

3.ADMINISTRATOR WITH A WILL ANNEXED One appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such

ExecutorAdministrator

Nominated by the testator and appointed by the courtAppointed by the court in case the testator did not appoint and executor or if the executor refused or if the will was disallowed or there is no will (intestacy)

Must present will to the court within 20 days after knowledge of death or of such appointment, unless the will has reached the court in any mannerNo such duty

Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts)Must always post bond

Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7Governed by Rule 85, Sec. 7

LETTERS TESTAMENTARY

It is the authority issued to an executor named in the will to administer the estate.

LETTERS OF ADMINISTRATION

It is the authority issued by the court to a competent person to administer the estate of the deceased who died intestate.

LETTERS OF ADMINISTRATION WITH A WILL ANNEXED

It is the authority issued by the court to a competent person to administer the estate if the executor named in the will refused to accept the office.

RULE 79 - OPPOSING ISSUANCE OF LETTERS TESTAMENTAY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION

The main issue is the determination of the person who is rightfully entitled to administration.

PERSONS TO OPPOSE THE ISSUANCE OF LETTERS: Any person interested in the will.

In order to be a party, a person must have material and direct, and not one that is only indirect or contingent, interest. The opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed.

Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds.

A petition may, at the same time, be filed for letters of administration with the will annexed.

REQUIRED BEFORE HEARING:

1.Publication for 3 weeks

2.Notice to heirs, creditors and other persons believed to have an interest in the estate

RULE 80 - SPECIAL ADMINISTRATOR

SPECIAL ADMINISTRATOR

He is appointed when there is a delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of the will.

WHEN MAY A PROBATE COURT APPOINT A SPECIAL ADMINISTRATOR:

1.Delay in granting of letters by any cause including appeal in the probate of the will

2.Executor is a claimant of the estate he represents (Sec.8, Rule 86)

AdministratorSpecial Administrator

Appointment may be subject of appealAppointment not subject of appeal; Merely an interlocutory order

One of the obligations is to pay the debts of the estateCannot pay debts of the estate

Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowedAppointed when there is delay in granting letters testamentary or administration

GENERAL RULE: Only one special administrator may be appointed to administer an estate temporarily.

EXCEPTION: If there are two factions among the heirs and the court deems it best to appoint more than one special administrator, justice and equity demand that both factions be represented in the management of the estate of the deceased. (Matias vs. Gonzales, 101 Phil. 852 (1957))

RULE 81 - BONDS OF EXECUTORS AND ADMINISTRATORS

WHEN FILED: Before and executor or administrator enters upon the execution of his trust

AMOUNT: To be fixed by the court

CONDITIONS OF BOND OF SPECIAL ADMINISTRATOR:

1.Make and return a true inventory

2.Render accounting when required by court

3.Deliver the estate to the person appointed executor or administrator or other authorized persons

RULE 82 - REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

WHEN LETTERS REVOKED AND POWERS CEASE:

When the decedents will is allowed and proved by the court after the issuance of letters of administration

GROUNDS FOR REMOVAL OF EXECUTOR OR ADMINISTRATOR:

1.Neglect to render account within 1 year and whenever required by the court

2.Neglect to settle estate according to these rules

3.Neglect to perform an order or judgment of the court or a duty expressly provided by these rules

4.Absconding

5.Insanity or incapability to discharge the trust

POWERS OF NEW EXECUTOR OR ADMINISTRATOR

1.Collect and settle the estate not administered

2.Prosecute or defend actions commenced by or against the former executor or administrator

3.Have execution on judgments recovered in the name of former executor or administrator

RULE 83 - INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY

INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS

Approval of an inventory is not a conclusive determination of what assets constituted the decedents estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership. (Garcila vs. Martin)

The 3-month period is not mandatory. The fact that an inventory was filed after the 3-month period would not deprive the probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the inventory may be a ground for his removal. (Sebial vs. Sebial, 64 SCRA 385 (1975))

RULE 84 - GENERAL PROVISIONS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

POWERS OF THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE (BERIP):

1.To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner;

2.To examine and make invoices of the property belonging to the partnership in case of a deceased partner;

3.To maintain in tenantable repairs, houses and other structures and fences and to deliver in such repair to the heirs or devisees when directed so to do by the court;

4.To make improvements on the properties under administration with the necessary court approval except for necessary repairs;

5.To possess and manage the estate when necessary;

a.For the payment of debts

b.For payment of expenses of administration.

RULE 85 - ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

GENERAL RULE: The executor or administrator is accountable for the whole estate of the deceased.

EXCEPTION: He is not accountable for properties which never came to his possession.

EXCEPTION TO THE EXCEPTION: when through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge.

RULE 102: HABEAS CORPUS

Certiorari, Prohibition

And MandamusHabeas Corpus

Special Civil Action (Rule 65)Special proceeding.

It reaches the RECORD, concerned with errors committed by a court Reaches the body but not the record; inquiry on the legality of the detention.

DIRECT attack COLLATERAL attack

Failure of respondent to file comment will not be punished by CONTEMPT and will not even be declared in default.Failure to file return constitute CONTEMPT

(indirect)

COURT and PREVAILING PARTY are named as respondents.Respondent is the DETAINER.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO THE CUSTODY OF MINORS (A.M NO. 03-04-04-SC)

WHO MAY FILE PETITION (Sec. 2)

A verified petition for the rightful custody of a minor may be filed by any person claiming such right.

WHERE TO FILE PETITION (Sec. 3)

Family courts in the province or city where the petitioner resides or where the minor may be found.

GENERAL RULE: motion to dismiss is NOT allowed.

EXCEPTION: On the ground of lack of jurisdiction over the subject matter or over the parties. (Sec. 6)

WRIT OF AMPARO (Sec. 1)

It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof.

THE WRIT OF HABEAS DATA (SEC. 1)

It 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

HABEAS CORPUSWRIT OF AMPARO (2007)HABEAS DATA (2008)

Rights involved right to liberty of and rightful custody by the aggrieved party right to life, liberty and security of the aggrieved party

- covers extralegal killings and enforced disappearances the RIGHT TO PRIVACY in life, liberty or security of the aggrieved party

- covers extralegal killings and enforced disappearances

Kind of violation actual violation of aggrieved partys rights an actual or threatened violation of aggrieved partys rights actual or threatened violation of aggrieved partys right

Remedy for Sec. 1

To all cases of illegal confinement or detention:

1. By which any person is deprived of his liberty; or

2. By which the rightful custody of any person is withheld from the person entitled thereto Sec. 1

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 Sec. 1

To any person whose right to privacy in life, liberty, and security is violated or threatened with violation by any unlawful act or omission of a public official or employee, or of a private individual or entity engaged in:

a. gathering

b. colleting

c. storing

of data or information regarding the person, family, home and correspondence of the aggrieved party

Respondent may or may not be an officer public official or employee or a private individual or entity public official or employee or a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party

Who files by the party for whose relief it is intended or by some other person in his behalf by the aggrieved party or by any qualified person or entity in the following order:

a) Any member of the immediate family of the aggrieved party, i.e. spouse, children and parents

b) Descendant, ascendant or collateral relatives up to the 4th civil degree of consanguinity or affinity

c) Any concerned citizen, organization, association or institution (right to file is successive)By the aggrieved party; but in cases of extralegal killing and enforced disappearances, may be filed by:

a) Any member of the immediate family of the aggrieved party, i.e. spouse, children and parents

b) Descendant, ascendant or collateral relatives up to the 4th civil degree of consanguinity or affinity

Where filed a. RTC or any judge thereof

a. CA or any member thereof in instances authorized by law

b. SC or any member thereof

a. RTC of the place where the threat act or omission was committed or any of its elements occurred

a. Sandiganbayan or any justice thereof

a. CA or any justice thereof

b. SC or any justice thereof

c. RTC where petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner

d. SC, CA or Sandiganbayan when the action concerns public data files of government offices

Docket and other fees b. Sec. 4: EXEMPT

e. Sec. 5: Only indigent petitioner is exempted

Docket and other fees

Date and Time of Hearing Specified in the writ Summary hearing: shall be conducted not later than 7 days from the date of issuance of the writ Summary hearing: shall be conducted not later than 10 working days from the date

To Whom Writ is Served to the person to whom it is directed; and if not found or prisoner not in his custody, it is served upon the person having custody of the prisoner upon the respondent personally

if it cannot be served, rules on substituted service will apply upon the respondent personally

if it cannot be served, rules on substituted service will apply

Consequences of refusal to obey the writ or making a false return If the person to whom the writ is directed neglects or refuses to obey or make return thereof, or 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, he shall forfeit to the party aggrieved the sum of Php1,000 and may be punished for contempt. If the respondent refuses to make a return or makes a false return, he may be punished with Imprisonment or fine for committing contempt.

If the respondent refuses to make a return or makes a false return, he may be punished with Imprisonment or fine for committing contempt.

Hearing Ex Parte

If the respondent fails to file a return, the court, justice, or judge shall proceed to hear the petition ex parte.

May the application be consolidated with a criminal action filed subsequent to the petition? NO YES YES

Enforceability of Writ Enforceable anywhere in the Phil. if granted by SC/CA or any member of such courts:

Enforceable only within judicial district if granted by the RTC Enforceable anywhere in the Philippines regardless of which court issued the writ Enforceable anywhere in the Philippines regardless of which court issued the writ

Who files the return? Officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found Respondent files return Respondent files return

To Which Court the Writ is ReturnableIf granted by the SC or CA or any member of such courts, it may be made returnable before the court or any member thereof or before an RTC or any judge thereof.

If granted by the RTC or a judge thereof, it is returnable before himself.If issued by the RTC or any judge thereof, it is returnable before such court or judge.

If issued by the Sandiganbayan or the CA or any of their justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred.

If issued by the SC or any of its justices, it may be returnable before such court or any justice thereof, of the Sandiganbayan or CA or any of their justices, or to any RTC or the place where the threat, act or omission was committed or any of its elements occurred.If issued by the RTC or any judge thereof, it shall be returnable before such court or judge.

If issued by the CA or Sandiganbayan or any of their justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored.

If issued by the SC or any of its justices, it may be returnable before such court or any justice thereof, or before the CA or the Sandigandbayan or any of its justices, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored.

Contents of Return Sec. 10

Signed and shall also be sworn to if the prisoner is not produced Sec. 9 Verified written return

-period to file cannot be extended except on highly meritorious grounds Sec. 9 Verified written return

- may be reasonably extended by the court for justifiable grounds

Allowance or Disallowance of General Denial on Allegations

A general denial of the allegations in the petition shall not be allowed.A general denial of the allegations in the petition shall not be allowed.

Quantum of ProofQuantum of proof is clear and convincing evidence.Quantum of proof is substantial evidence.

Judgment After the court has examined the cause of the capture and restraint, and is satisfied that prisoner is unlawfully imprisoned or restrained Within 10 days from the time the petition is submitted for decision (substantial evidence only) Within 10 days from the time the petition is submitted for decision (upon finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within 5 working days)

Period to Appeal Within 48 hours from notice of the judgment or final order appealed from

Order shall not be effective until a copy of the order has been served on the officer pr person detaining the prisoner and there is no appeal 5 working days from date of notice of the adverse judgment (via Rule 45, to the SC) 5 working days from date of notice of the adverse judgment (via Rule 45, to the SC)

Prohibited Pleadings

1. Motion to dismiss

2. Motion for extension of time to file opposition, affidavit, position paper and other pleadings;

3. Dilatory motion for postponement 4. Motion for a bill of particulars

5. Counterclaim and cross-claim

6. Third-party complaint

7. reply

8. Motion to declare respondent in default

9. Intervention

10. Memorandum for reconsideration of interlocutory orders or interim relief orders

11. Petition for certiorari, mandamus, or prohibition against any interlocutory order

*motion for extension to file return is not allowed for writ of amparo

1. Motion to dismiss

2. Motion for extension of time to file opposition, affidavit, position paper and other pleadings;

3. Dilatory motion for postponement 4. Motion for a bill of particulars

5. Counterclaim and cross-claim

6. Third-party complaint

7. reply

8. Motion to declare respondent in default

9. Intervention

10. Memorandum for reconsideration of interlocutory orders or interim relief orders

11. Petition for certiorari, mandamus, or prohibition against any interlocutory order

*motion for extension to file return is not allowed for writ of amparo

Interim ReliefsSec. 12

1. Unless for good cause shown, the hearing is adjourned, in which event the court shall make an order for the safe keeping of the person imprisoned or restrained as the nature of the case requires

2. The court or judge must be satisfied that the persons illness is so grave that he cannot be produced without any danger Sec. 14

1. Temporary Protection order

2. Inspection Order

3. Production Order

4. Witness Protection order

Criminal Procedure

Prosecution of Offenses- It is an action by which the State prosecutes a person for an act or omission punishable by law.Preliminary Investigation

For offenses which require preliminary investigation:

By filing the complaint with the proper officer for preliminary investigations

Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110.

Arrest

INSTANCES WHEN A WARRANT OF ARREST IS NOT NECESSARY (Sec.9 (c), Rule 112if the complaint or information was filed after the accused was lawfully arrested without warrant

if the offense is punishable by fine only

if the complaint or information is filed with the MTC and it involves an offense which does not require PI, the judge may issue summons instead of warrant of arrest if he satisfied that there is no necessity for placing the accused under custody.

Modes of Arrest

Arrest by virtue of a warrant

Arrest without a warrant under exceptional circumstances as may be provided by statute. (Sec 5,Rule 113)

Who may issue a warrant of arrest- The 1987 Constitution speaks of a judge which means judges of all levels. This power may not be limited much less withdrawn by Congress. The power to determine the existence of probable cause is a function of the judge and such power lies in the judge alone (People vs. Inting, G.R. No. 88919, July 25, 1990).Bail- It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified by the rule. Forms of Bail

1. Corporate surety

2. Property bond

3. Cash deposit

4. RecognizanceBail a matter of right

1. Before or after conviction by the MTC

2. Before conviction by RTC except when the imposable penalty is death, reclusion perpetua or life imprisonment AND the evidence of guilt is strong.Bail when discretionary

1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary.

2. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed and not one of the circumstances below is present and proved, bail is a matter of discretion. Rights of the Accused

TO BE PRESUMED INNOCENT

TO BE INFORMED OF THE NATURE AND THE CAUSE OF THE ACCUSATION AGAINST HIM

TO BE PRESENT AND DEFEND IN PERSON AND BY COUSEL AT EVERY STAGE OF THE PROCEEDING.

Arraignment and Plea

ARRAIGNMENT means bringing the accused into court and informing him of the nature and cause of the accusation against him.

Plea of guilty is mitigating if it is made before prosecution starts to present evidence. Except:

Where the plea of guilty was compelled by violence or intimidation;

When the accused did not fully understand the meaning and consequences of his plea;

Where the information is insufficient to sustain conviction of the offense charge;

Where the information does not charge an offense, any conviction thereunder being void;

Where the court has no jurisdiction.

Motion to Quash Grounds

1. Facts charged do not constitute an offense

2. Court trying the case has no jurisdiction over the offense charged

3. Court trying the case has no jurisdiction over the person of the accused

4. Officer who filed the information had no authority to do so

5. Information does not conform substantially to the prescribed form

6. That more than one offense is charged (duplicitous information)

7. Criminal action or liability has been extinguished

8. Information contains averments which, if true, would constitute a legal excuse or justification

9. Accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy)Time to move to quash

GENERAL RULE: A motion to quash (MTQ) may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court.

EXCEPTIONS: Under Sec. 9, Rule 117, this adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground:

1. that the facts alleged in the information charge no offense;

2. that the court has no jurisdiction over the offense charged;

3. that the offense or penalty has prescribed, or

4. that the doctrine of double jeopardy precludes the filing of the informationEffects of Motion to quash if denied or granted

If the ground for the motion is either:

1. facts charged do not constitute an offense

2. officer who filed the information had no authority to do so

3. information does not conform substantially to the prescribed form

4. duplicitous informationTrial- 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.After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial.

The trial shall commence within 30 days from receipt of the pre-trial order.

Demurrer to Evidence -It is a motion to dismiss due to the insufficiency of the evidence presented by the prosecution to overturn the presumption of innocence in favour of the accused.When it can be filed?

After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence:

1.On its own initiative after giving the prosecution the opportunity to be heard; or

2.Upon demurrer to evidence filed by the accused with or without leave of court.Judgment - 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.Search Warrant- is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it to the court.Evidence

Admissibility of Evidence

The evidence must be:

1.Relevant such a relation to the fact in issue as to induce belief in its existence or non-existence. A matter of relationship between the evidence and a fact in issue.

Evidence on the credibility or lack of it of a witness is always relevant. In every proceeding, the credibility of the witness is always an issue.

2.Competent if not excluded by the law or the rules.Doctrine of the Fruit of the Poisonous Tree posits that all evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed.

B. Judicial Admissions may be made in:

The pleadings filed by the parties;

In the course of the trial either by verbal or written manifestations or stipulations;

In other stages of the judicial proceeding, as in the pre-trial of the case;

Admissions obtained through depositions, written interrogatories or requests for admissions.

Judicial admission can be made by either a party or counsel.

Judicial admissions may be contradicted only when it is shown that:

It was made through palpable mistake; or

That no such admission was made.

Remedy of a party who gave a judicial admission:

In case of a WRITTEN judicial admission Motion to withdraw the pleadings, motion or other written instrument containing such admission;In case of an ORAL judicial admission Counsel in open Court may move for the exclusion of such admission.D. The chain of custody method of authentication requires that every link in the chain of custody every person who possessed the object since it was first recognized as being relevant to the case, must explain what he did with it.

In order that photographs may be given as evidence-

1. It must be shown that it is the true and faithful representation of the place or object which to which they refer;

2. It must be verified by:

The photographer; or

Any person acquainted with the object represented and testifies that the same faithfully represents the object.

For tape recordings, the ff. must be shown: (PRO-ANIV)

Manner of the preservation of the recording

The recording device was capable of recording testimony;

The operator of the device was competent

Establishment of the correctness or authenticity of the recording;

Deletions, additions, changes have not been made;

Identification of the speakers; and

Testimony elicited was voluntarily made.

Authenticated fingerprints may be compared to fingerprints found on the crime scene.

E. Documentary Evidence

a. Best Evidence Rule

ORIGINAL DOCUMENT MUST BE PRODUCED; EXCEPTIONS

GENERAL RULE: The original document must be produced.

EXCEPTIONS:

When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

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;

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; and

When the original is a public record in the custody of a public officer or is recorded in a public office

BEST EVIDENCE RULE - is that rule which requires the highest grade of evidence obtainable to prove a disputed fact.

The Best Evidence Does NOT Apply in the following cases:

When the purpose is to show the existence, execution or delivery without reference to its terms;

To make testimony coherent and intelligible;

To admit as to contents of writing and where subject of preliminary cross-examination to lay the basis for confrontation.

Where there is no bona fide dispute on the contents of the documents and no useful purpose would be served by its production.

b. Secondary Evidence

SECONDARY EVIDENCE shows that better or primary evidence exists as to the proof of fact in question. It is deemed less reliable.

WHAT MUST BE PROVED TO ADMIT SECONDARY EVIDENCE

a. The due execution of the original;

b. Loss, destruction or unavailability of all such originals;

c. Reasonable diligence and good faith in the search for or attempt to produce the original.

THE DUE EXECUTION CAN BE PROVED THROUGH THE TESTIMONY OF EITHER:

The person who executed it;

The person before whom its execution was acknowledged;

Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof..

c. Parol Evidence Rule

EVIDENCE OF WRITTEN AGREEMENTS

GENERAL RULE: When the terms of an agreement have been reduced to writing, it is to be 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.

EXCEPTION: A party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading any of the following:

An intrinsic ambiguity, mistake or imperfection in the written agreement;

The failure of the written agreement to express the true intent and agreement of the parties thereto;

The validity of the written agreement; or

The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

PAROL EVIDENCE 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.

Where the collateral agreement is not inconsistent with the terms of the written contract;

Where the collateral agreement has not been integrated in and is independent of the written contract as where it is suppletory to the original contract;

Where the collateral agreement is subsequent to or nugatory of the written contract; and

Where the collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective, but this exception shall not apply to a condition subsequent not stated in the agreement.

E. Testimonial Evidence - or oral evidence is evidence elicited from the mouth of a witness as distinguished from real and documentary evidence. It is sometimes called viva voce or by word of mouth. The person who gives the testimony is called a witness.a. COMPETENCY OF A WITNESS

is the legal fitness or ability of a witness to be heard on the

trial of a cause.

GENERAL RULE: When a witness takes the stand to testify, the law, on grounds of public policy, presumes that he is competent. The court cannot reject the witness if there is no proof of his incompetency.

B. DISQUALIFICATION BY REASON OF MARRIAGE

WHEN RULE APPLICABLE

The rule applies to any form of testimony; therefore it protects against using the spouse-witnesss admission or against compelling him to produce documents.

Purpose: To obviate perjury and to prevent domestic disunity and unhappiness.

Who May Object: Only the spouse-party and not the other spouse who is offered as a witness.

Requisites:

That the spouse for or against whom the testimony is offered is a party to the case;That the spouse are legally married (valid until annulled);Testimony is offered during the existence of marriage; andThe case is not one of the exceptions provided in the rule.EXCEPTIONS: The rule on disqualification DOES NOT APPLY in the following:

Where the testimony was made outside the marriage;

In a civil case by one spouse against the other;

In a criminal case for a crime committed by one spouse against the other or the latters direct descendants or ascendants;

The disqualification does not apply where an offense directly attacks or directly and vitally impairs the conjugal relations.

It does not also apply in the case of estranged spouses, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed (Alvarez vs. Ramirez, 473 SCRA 72, October 14, 2005 citing People vs. Castaneds, 271 SCRA 504).

Where the spouse-party gives his/her consent;

Where the spouse-party fails to raise the disqualification seasonably.

REASON FOR THE EXCEPTION

The identity of the interest of person disappears and the consequent danger of perjury based on that identity is non-existent. And in such a situation, the security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home.

C. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY

This section is called THE SURVIVORSHIP DISQUALIFICATION RULE OR DEAD MANS STATUTE.

It constitutes only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified, unlike the marital disqualification rule which is complete and absolute disqualification.

D. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION

THE FOLLOWING PERSONS CANNOT TESTIFY AS TO MATTERS LEARNED IN CONFIDENCE IN THE FF CASES:

The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants

An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.

A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any evidence or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient.

A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs.

A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

a.Marital Privilege

There was a valid marital relation;

The privilege is invoked with respect to a confidential communication between the spouses during said marriage;

The spouse against whom such evidence is being offered has not given his or her consent to such testimony.

EXCEPTIONS:

That the case in which the husband or the wife is called to be examined is not a civil case instituted by one against the other;

That it is not a criminal case for a crime committed by one against the other.

DISQUALIFICATION BY REASON OF MARRIAGEMARITAL PRIVILEGE

Can be invoked only if one of the spouses is a party to the action,Can be claimed whether or not the spouse is a party to the action.

Applies only if the marriage is existing at the time the testimony is offeredCan be claimed even after the marriage has been dissolved

Constitutes a total prohibition against the spouse of the witnessApplies only to confidential communications between the spouse

b.Attorney-Client Privilege

REQUISITES:

There is an attorney and client relation;

The privilege is invoked with respect to a confidential communication between them in the course of professional employment; and

The client has not given his consent to the attorneys testimony.

c. Physician-Patient PrivilegeREQUISITES:The physician is authorized to practice medicine, surgery, or obstetrics;

The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient;

The information is confidential.

The information, advice or treatment, if revealed, would blacken the reputation of the patient; and

The privilege is invoked in a civil case, whether patient is a party or not.

d. Privileged communications to Minister or Priest and Penitent

REQUISITES:

1. That the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong; and

2. Must be confidential and penitential in character. Example: under seal of the confessional

d. Privileged communications to Public Officers

REQUISITES:

The holder of the privilege is the government acting through a public officer.

That it was made to the public officer in official confidence;

The communication was given during the term of office of the public officer but the privilege may be invoked not only during the term of office of the public officer but also after.

That public interest would suffer by the disclosure of such communication, as in the case of State secrets.

e. SECTION 25. PARENTAL AND FILIAL PRIVILEGE

No person may be compelled to testify against his parents, other direct ascendants, children or other direct ascendants. It was not correctly a rule of disqualification, as the descendant was not incompetent or disqualified to testify against his ascendants, but was actually a privilege to testify, hence it was referred to as filial privilege. F. Admissions and Confessions

Res Inter Alios Acta Rule

This section refers to the first branch of the rule of RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET. It is corollary known as the second branch of the rule, is found in Section 34 of Rule 130.

EXCEPTIONS:

Third person is a partner, agent, joint owner, joint debtor or has a joint interest with the party (Section 29);

Co-conspirator (Section 30);

Privy of the party (Section 31).

.

G. HEARSAY RULE

Any evidence, whether oral or documentary is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand

A witness can testify only to those facts which he knows of his personal knowledge, that is which are derived from his own perception except as otherwise provided in these rules. Hearsay includes all assertions which have not been subject to opportunity for cross examination by the adversary at the trial in which they are being offered against him.

It covers written or oral statements, Its probative value depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it sought to produce it. (Estrada v. Desierto, 356SCRA108)

Double Hearsay are those which are derived from another who also has no personal knowledge of the matters testified to. (e.g. Newspaper articles)

SECTION 37. DYING DECLARATION.- The ante mortem statements made by a person after the mortal wound has been inflicted under the belief that the death is certain, stating the fact concerning the cause of and the circumstances surrounding the attack.REQUISITES:

That the death is imminent and the declarant is conscious of such fact;

That the declaration refers to the cause and the surrounding circumstances of such death

That the declaration refers to the facts which the victim is competent to testify to;

That the declaration is offered in a case wherein the declarants death is subject of the inquiry (the victim necessarily must have died);

That the statement must be complete in itself. (People v. De Joya, 203 SCRA 343).The declarant should have died.

SECTION 38. DECLARATION AGAINST INTEREST

DECLARATION

AGAINST INTERESTADMISSIONS

Exception to the hearsay rule admissibleCovered by the hearsay rule

Secondary evidence and admissible only if the declarant is already dead or unavailable to testifyPrimary evidence and admissible even if the declarant is available as a witness

The fact asserted in the declaration must have been at the time it was made so far contrary to the declarants own interest.Need not be considered by the declarant as opposed to his interest at the time when made, it is enough if it is inconsistent with his present claim and defenses.

REQUISITES:That the declarant is dead and unable to testify;

That it relates to facts against the interest of the declarant;

That at the time he made the said declaration the declarant was aware that the same was contrary to his aforesaid interest; and

That the declarant had no motive to falsify and he believed such actual declarant to be true.

SECTION 39. ACT OR DECLARATION ABOUT PEDIGREE.

PEDIGREE includes relationship, family geneology, birth, marriage , death, the dates when and the places where these facts occurred and the names of the relatives. It also embraces facts or family history intimately connected with pedigree. (Rule 130, Sec 39)

It is the history of family descent which is transmitted from one generation to another by both oral and written declarations and by traditions. (Francisco, 1997)

REQUISITES:1. The actor or declarant is dead or unable to testify.

2. The act or declaration is made by a person related to the subject by birth or marriage.

3. The relationship between the declarant or the actor and the subject is shown by evidence other

than such act or declaration and

4. The act or declaration was made ante litem

motam or prior to the controversy.

SECTION 40. FAMILY REPUTATION OR TRADITION.

SECTION 39SECTION 40

Act or declaration against pedigreeFamily reputation or tradition regarding pedigree

Witness need not be a member of the familyWitness is a member of the family

Testimony is about what declarant, who is dead or unable to testify, said concerning the pedigree of the declarants familyTestimony is about family reputation or tradition covering matters of pedigree.

Relation of the declarant and the person subject of the inquiry must be established by independent evidence.The witness is himself the one to whom the fact relates, it is not necessary for him to establish by independent evidence his relationship to the family.

SECTION 41. COMMON REPUTATION.

matters of public interest more than 30 years old;

matters of general interest more than 30 years old;

matters respecting marriage or moral character and related facts;

Individual moral character.

RES GESTAE literally means things done; it includes circumstances, facts, and declarations incidental to the main facts or transaction necessary to illustrate its character and also includes acts, words, or declarations which are closely connected therewith as to constitute part of the transaction.RES GESTAE IN CONNECTION WITH A HOMICIDAL ACTDYING DECLARATIONS

May be made by the killer himself after or during the killing OR that of a 3rd personCan be made only by the victim

May precede or be made after the homicidal attack was committedMade only after the homicidal attack has been committed

Justification in the spontaneity of the statementTrustworthiness based upon in its being given in awareness of impending death

SECTION 43. ENTRIES IN THE COURSE OF BUSINESSREQUISITES:

That the entrant made the entry in his professional capacity or in the performance of a duty;

The entry was made in the ordinary course of business or entry;

The entries must have been made at or near the time of the transaction to which they relate;

The entrant must have been in a position to know the facts stated in the entries; and

The entrant must be deceased or unable to testify.

SECTION 44. ENTRIES IN OFFICIAL RECORDS

REQUISITES:

That it was made by a public officer or by another person specially enjoined by the law to do so;

That it was made by any a public officer in the performance of his duty specially enjoined by law; and

The public officer or the other person has sufficient knowledge of the facts by him stated which must have been acquired by him personally or through official information.

ENTRIES IN THE

COURSE OF BUSINESSENTRIES IN

OFFICIAL RECORDS

The person who made the entries must be dead or unable to testify.There is no such requirement.

Needs authenticationNeed not be authenticated

Best evidence appliesException best evidence rule (irrevocability of public records)

The entries are made pursuant to a duty, legal, contractual, moral or religious.The entrant is a public officer, or if a private individual must have acted pursuant to a specific legal duty.

SECTION 45. COMMERCIAL LIST AND THE LIKE

REQUISITES:

Statements of matters of interest to persons engaged in an occupation;

The statements must be contained in a list, register, periodical or other published compilation;

The compilation was published for use by persons engaged in that occupation; and

Is generally relied upon by them.

SECTION 46. LEARNED TREATISES

In order that a published treatise, periodical, or pamphlet on a subject of law, history, science, or art may be admissible, it is necessary either:

That the court can take judicial notice of it; or

A witness expert on the subject testifies that the writer of the statement in the treatise, periodical, or pamphlet is recognized in his profession or calling as expert in the subject.

SECTION 47. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

REQUISITES:

The testimony or depositions of a witness deceased or unable to testify;

The testimony was given in a former case or proceeding, judicial or administrative;

Involving the same parties;

Relating to the subject matter; and

The adverse party having had an opportunity to cross-examine him.

DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT

The witness may testify to the statements made by a person, if for instance, the fact that such statements were made by the latter would indicate the latters mental state and physical condition.Independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue.

INDEPENDENTLY RELATIVE STATEMENTSAn out of court declaration which while having certain characteristics of hearsay evidence, is not actually hearsay but is original evidence.

These are statements which are relevant independently whether they are true or not. It is also called the apparent hearsay.

A declarant assertion based on the say-so of another is hearsay only if offered to prove the truth of the assertion. If the assertion were offered to prove something else, say its tenor merely, then it is not hearsay and is a direct unattributed assertion for that purpose i.e. to prove the fact that the assertion was made and NOT the truth of the assertion, (Bautista, 2007)

RULES ON ELECTRONIC EVIDENCEAugust 1, 2001

Q. When is electronic evidence regarded as being the equivalent of an original document under the Best Evidence Rule? (Bar Question 2003) An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.

OPINION RULE

OPINION an inference or conclusion drawn from facts observed.GENERAL RULE: Witnesses must give the facts and not their inference, conclusions, or opinions.

EXCEPTIONS:

On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Section 49);The identity of a person about whom he has adequate knowledge (Section 50[a]);A handwriting with which he has sufficient familiarity (Section 50 [b]);The mental sanity of a person with whom he is sufficiently acquainted (Section 50[c]);The witness impressions of the emotion, behavior, condition, or appearance of a person (Section 50[d]).RULE ON DNA EVIDENCE

A.M. No. 11-5-SC

Effective October 15, 2007

Biological Sample any organic material originating from a persons body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.

DNA (Deoxyribonucleic Acid) the chain of molecules found in every nucleated cell of the body. The totality of an individuals DNA is unique for the individual, except identical twins.

DNA Evidence constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples.

DNA Testing 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).

RULE 133 - WEIGHT AND SUFFICIENCY OF EVIDENCE

Weight of Evidence is the probative value or credit that the court gives to particular evidence admitted to prove a fact in issue. Admissibility of evidence and its weight are different.

The admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade (Agpalo, p.388).

Direct Evidence

Circumstantial Evidence

Establishes the existence of a fact in issue without the aid of any inference or presumption.

Does not prove the existence of a fact in issue directly, but merely provides for logical inference that such fact really exists.

The witnesses testify directly of their own knowledge as to the main facts to be proved. .Each proof is given of facts and circumstances from which the court may infer other connected facts which reasonably follow, according to the common experience of mankind.

HIERARCHY OF EVIDENCE 1. Proof beyond reasonable doubt

2. Circumstantial Evidence to sustain conviction

3. Clear and convincing evidence

4. Preponderance of evidence

5. Substantial eviden

SECTION 3. EXTRAJUDICIAL CONFESSION, NOT SUFFICIENT GROUND FOR CONVICTION

An extrajudicial confession is not sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti.

CORPUS DELICTI is the actual commission by someone of the particular crime charged.

TWO ELEMENTS: 1. That a certain result has been proved;

2. That someone is criminally responsible for the act.

KATARUNGAN PAMBARANGAY LAW (RA 7160)

Objectives to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought by the indiscriminate filing of cases in the courts.

Parties residing in the same city or municipality are bound to submit their disputes to the Lupon for conciliation/amicable settlement.

EXCEPTIONS:

Where one party is the government or any subdivision or instrumentality thereof;

Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand pesos (P5, 000.00);

Offenses where there is no private offended party;

Where the dispute involves real properties located in different cities or municipalities, unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

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 to submit their differences to amicable settlement by an appropriate lupon;

Such other classes of disputes which the President may determine in the interest or upon the recommendation of the Secretary of Justice.

SMALL CLAIMS

SCOPE The rule shall apply in all action before the MTC/MCTC for payment of money where the value of the claim does not exceed P100, 000.00, exclusive of interest and cost (Sec 2 of the Rule)

EFFECT OF NON-PAYMENT OF DOCKET FEES:

The case shall be dismissed without prejudice.

The remedy of the plaintiff would be to re-file the case.

GROUNDS FOR THE DISMISSAL OF THE SMALL CLAIM CASES MOTU PROPIO:

a. Lack of jurisdiction over the subject matter of the case;

b. Litis pendentia;

c. Res judicata;

d. Prescription.

EFFECT OF FAILURE OF THE PARTIES TO APPEAR:

a. On the part of the plaintiff: Dismissal of the claim without prejudice, and the defendant who appeared shall be entitled to judgment on a permissive counterclaim.

Remedy: Refile the case.

b. On the part of the defendant: It shall have the effect of as failure to file a Response, and the court, by itself render judgment based on the facts alleged in the Statement of Claims but only limited to what is prayed for therein.

c. On both parties: Dismissal of both the claim and counterclaim with prejudice.

A.M. No. 12-8-8-SC

JUDICIAL AFFIDAVIT RULE

Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino accompanied by a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises