A: Substantive Law Remedial LawPart of the law which creates, defines or regulates rights concerning life, liberty or property or the powers of agencies or instrumentalities for the administration of public affairs.

Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed and relief obtained (also known as Adjective Law).

Creates vested rights. Does not create vested rights

Prospective in application. Retroactive in application, as long as no vested rights have attached

Cannot be enacted by the Supreme Court.

The Supreme Court is expressly empowered to promulgate procedural rules. (2006 Bar Question)

It originates from legislature

It does not originate from the legislature but has the effect of law if not in conflict with substantive law

Court Judge Entire body in which the judicial power is vested

Only an officer or member of the court

May exist without a present judge

There may be a judge without a court

Disqualification of a judge does not affect the court May be disqualified

Courts of Original jurisdiction Courts of Appellate jurisdiction

Courts exercising jurisdiction in the first instance

Superior Courts reviewing and deciding cases previously decided by a lower court

Courts of General jurisdiction Courts of Special jurisdiction Takes cognizance of all cases , civil or criminal, of a particular nature, or courts whose judgment is conclusive until modified or reversed on direct attack, and who are competent to decide on their own jurisdiction

Takes cognizance of special jurisdiction for a particular purpose, or are clothed with special powers for the performance of specified duties, beyond which they have no authority of any kind

Constitutional Court Statutory Court Created by the constitution Created by law e.g. SC e.g. CTA

Cannot be abolished by Congress without amending the Constitution

May be abolished by Congress by just simply repealing the law which created those courts

Courts of Law Courts of Equity

Any tribunal duly administering the laws of the land

Any tribunal administering justice outside the law, being ethical rather than jural and belonging to the sphere of morals rather than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. (Herrera, Vol. I, p. 18, 2007 ed.)

Decides a case according to what the promulgated law is

Adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statutes

Error of Jurisdiction Error of Judgment One where the court, officer or quasi-judicial body acts without or in excess of jurisdiction, or with grave abuse of discretion

One that the court may commit in the exercise of jurisdiction; it includes errors of procedure or mistakes in the court’s findings

Renders a judgment void or at least voidable

Does not make the court’s decision void

Correctible by certiorari Correctible by appeal

There is an exercise of jurisdiction in the absence of jurisdiction

The court acted with jurisdiction but committed procedural errors in the appreciation of the facts or the law (1989 Bar Question)

Action Special Proceeding Purpose

Civil action: 1. To protect a right 2. Prevent or redress a wrong.

Criminal action: Prosecute a person for an act or omission punishable by law (Sec. 3, Rule 1)

To establish a status, a right or a particular fact (Sec. 3 Rule 1). Specific kinds of special proceedings are found in rule 72 – rule 109 E.g. settlement of estate, escheat, guardianship, etc. (Riano, Civil Procedure: A Restatement for the Bar, p. 121, 2009 ed.)

Application

Where a party litigant seeks to recover property from another, his remedy is to file an action.

Where his purpose is to seek the appointment of a guardian for an insane person, his remedy is a special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. (Herrera, Vol. I, p. 370, 2007 ed.)

Governing LawOrdinary rules supplemented by special rules

Special rules supplemented by ordinary rules

CourtHeard by courts of general jurisdiction

Heard by courts of limited jurisdiction

ProcedureInitiated by a pleading and parties respond through an answer after being served with summons

Initiated by a petition and parties respond through an opposition after notice and publication are made

Nature

Generally adversarial in nature. There are definite parties: plaintiff v defendant

Generally no definite adverse party because it is directed against the whole world as majority of special proceedings are in rem

Applicability of pleadingsParties are generally allowed to file answer, counterclaim, cross claim and third-party complaint

Law on pleadings generally not applicable

AppealThe period to appeal is only 15 The period to appeal is 30 days and

days and notice of appeal suffices

aside from a notice of appeal, a record on appeal is required.

Real Action Personal Action Scope

When it affects title to or possession of a real property, or an interest therein (Sec. 1, rule 4)

Personal property is sought to be recovered or where damages for breach of contract are sought

BasisWhen it is founded upon the privity of a real estate. That means that realty or interest therein is the subject matter of the action. Note: It is important that the matter in litigation must also involve any of the following issue: 1. Title to 2. Ownership 3. Possession 4. Partition 5. Foreclosure of mortgage 6. Any interest in real property.

Founded on privity of contract such as damages, claims of money, etc.

VenueVenue of action shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof is situated. (Rule 4, sec 1)

Venue of action is the place where the plaintiff or any of the principal plaintiffs resides or any of the defendants resides, at the election of the plaintiff (Rule 2 sec 2)

ExampleAn action to recover possession of real property plus damages Note: An action to annul or rescind a sale of real property has as its fundamental and prime objective the recovery of real property (Emergency Loan Pawnshop, Inc. vs. Court of appeals, 353 SCRA 89; Riano, p. 122, 2009 ed.)

Action for a sum of money

Local Action Transitory Action Venue

Must be brought in a particular plac where the subject property is located, unless there is an agreement to the contrary.

Dependent on the place where the party resides regardless of where the cause of action arose. Subject to Sec. 4, Rule 4

Privity of contractNo privity of contract and the action is founded on privity of estate only

Founded on privity of contract between the parties whether debt or covenant (Paper Industries Corporation of the Philippines v. Samson, G.R. No. L-30175, Nov. 28, 1975).

ExampleAction to recover real property Action to recover sum of money

Failure to state cause of action Lack of cause of action

Insufficiency in the allegations of the complaint

Failure to prove or establish by evidence one’s stated cause of action

As a ground for dismissalRaised in a motion to dismiss under Rule 16 before a responsive pleading is filed

Raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case

DeterminationDetermined only from the allegations of the pleading and not from evidentiary matters

Resolved only on the basis of the evidence he has presented in support of his claim

Splitting of cause of action Joinder of causes of actionThere is a single cause of action Contemplates several causes of

actionProhibited EncouragedIt causes multiplicity of suits and double vexation on the part of the defendant

It minimizes multiplicity of suits and inconvenience on the parties

Cause of Action Right of Action

It is the act or omission by which a party violates the rights of another ( Sec. 2, Rule 2)

Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him

Requisites

1. The existence of a legal right of the plaintiff 2. A correlative duty of the defendant to respect one’s right 3. An act or omission of the defendant in violation of the plaintiff’s right.

1. There must be a good cause (existence of a cause of action) 2. A compliance with all the conditions precedent to the bringing of the action 3. The action must be instituted by the proper party.

Nature

It is actually predicated on substantive law or on quasi delicts under NCC.

It is procedural in character is the consequence of the violation of the right of the plaintiff (Riano, Civil Procedure: A Restatement for the Bar , p. 4, 2009 ed.)

BasisBased on the allegations of the plaintiff in the complaint

Basis is the plaintiff’s cause of action

Effect of Affirmative defenseNot affected by affirmative defenses (fraud, prescription, xecutor, etc.)

Affected by affirmative defenses

Other distinctions

The reason for the action The remedy or means afforded of the consequences relief

Action In Rem Action In Personam Action Quasi In RemNature

A proceeding to subject the property of such persons to the discharge of the claims assailed.

A proceeding to enforce personal rights and obligations brought against the person

A proceeding to subject the property of the named defendant or his interests therein to the obligation or lien burdening the property.

PurposeA proceeding to determine the state or condition of a thing

An action to impose a responsibility or liability upon a person directly

Deals with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut-off the rights or interests of all possible claimants. (Domagas vs. Jensen, 448 SCRA 663)

ScopeDirected against the thing itself Directed against the whole world

Directed against particular persons

Directed against particular persons

Required jurisdictionJurisdiction over the person of the defendant is not required. Jusrisdiction over the

Jurisdiction over the person of the defendant is required

Jurisdiction over the person of the defendant is not required as long as jurisdiction over the

RES is required through publication in a newspaper of general circulation.

res is acquired

Effect of judgmentJudgment is binding upon the whole world.

Judgment is binding only upon parties impleaded or their successors-in-interest

Judgment will be binding only upon the litigants, privies, successor in interest but the judgment shall be executed against a particular property. The RES involve will answer the judgment.

Example

1. Probate proceeding 2. Cadastral proceeding 3. Land registration proceeding

1. Action for specific performance 2. Action for breach of contract 3. Action for ejectment 4. Action for a sum of money; for damages (Riano, Civil Procedure: A Restatement for the Bar,p.130, 2009 ed.)

1. Action for partition 2. Action to foreclose real estate mortgage attachment

REAL ACTION PERSONAL ACTION MIXED ACTIONOwnership or possession of real property is involved

Personal property is sought to be recovered or where damages for breach of contract sought

Both real and personal properties are involved

Founded on privity of real estate

Founded on privity of contract

Founded on both

It is LOCAL because its venue depends upon the location of the property in the litigation

It is TRANSITORY because its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff

The rules on venue of real actions shall govern

e.g. Accion Reinvindicatoria

e.g. Action for a sum of money

E.g. Accion publiciana with a claim for damages

Indispensable Parties Necessary Parties Parties in interest without whom no final determination can be

A necessary party is one who is not indispensable but who ought to be joined as a

had of an action shall be joined either as plaintiffs or defendants. (Sec.7, Rule 3) Must be joined under any and all conditions because the court cannot proceed without him (Riano, Civil Procedure: A Restatement for the Bar, p. 224, 2009 ed.)

party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. (Sec.8, Rule 3) Note: Should be joined whenever possible, the action can proceed even in their absence because his interest is separable from that of indispensable party (Ibid p.224)

No valid judgment if they are not joined Note: In the absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Riano, Civil Procedure: A Restatement for the Bar, p. 221, 2009 ed.)

The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined Note: Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non-compliance with the

said order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239, 2001 ed.) Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, Rule 3) Venue Jurisdiction The place, or geographical area where an action is to be filed and tried.

Power of the court to hear and decide a case

May be waived by: 1. Failure to object through a motion to dismiss or through an affirmative defense. 2. Stipulation of the parties.

Cannot be waived

Procedural Substantive

May be changed by the written agreement of the parties

Cannot be the subject of the agreement of the parties. (2006 Bar question

Establishes a relation between plaintiff and defendant, or petitioner and respondent.

Establishes a relation between the court and the subject matter.

GR: Not a ground for a motu proprio dismissal XPN: In cases subject to summary procedure.

It is a ground for a motu proprio dismissal. (Riano, Civil Procedure: A Restatement for the Bar, p. 210, 2009 ed.)

Compulsory Counterclaim Permissive Counterclaim One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim (Sec.7, Rule 6)

It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim

It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction

Barred if not set up in the action (Sec. 2, Rule 9)

Not barred even if not set up in the action

Need not be answered; No default

Must be answered,: Otherwise, default

Not an initiatory pleading. Initiatory pleading. (Riano, Civil Procedure: A Restatement for the Bar, p. 336, 2009 ed.)

Need not be accompanied by a certification against forum shopping and certificate to file action by the Lupong Tagapamayapa.

Must be accompanied by a certification against forum shopping and whenever required by law, also a certificate to file action by the Lupong Tagapamayapa (Santo Tomas University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007 Bar Question).

The court has jurisdiction to entertain both as to the amount and nature (Sec. 7, Rule 6; Ibid p.331)

Must be within the jurisdiction of the court where the case is pending and cognizable by regular courts of justice otherwise, defendant will have to file it in separate proceeding which requires payment of docket fee

CLASS SUIT PERMISSIVE JOINDER OF PARTIESThere is one single cause of action pertaining to numerous persons

There are multiple causes of action separately belonging to several persons

INDISPENSABLE PARTIES NECESSARY PARTIESMust be joined under any and all conditions, their presence being a condition sine qua non for the exercise of judicial power

Should be joined whenever possible; the action can proceed even in their absence

No valid judgment if indispensable party is not joined

The case maybe determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined

They are those with such an interest that a final decree would necessarily affect either rights so that the court cannot proceed without their presence

They are those whose presence is necessary to adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them

Periods for Filing an Answer

Answer to an original complaint

Within 15 days after service of summons, unless a different period is fixed by the court (Sec. 1, Rule 11).

Defendant is a foreign private juridical entity and has a resident agent

Within 15 days after service of summons (Sec.6, in relation to Sec.5[a], Rule 2, A.M. NO. 00-8-10-SC 2000-11-21)

Defendant is a foreign private juridical entity and has no resident agent but has an agent / officer in the Philippines

Within 15 days after service of summons to said agent or officer (Sec.6, in relation to Sec.5[b], Rule 2, A.M. 00-8-10-SC 2000-11-21)

Defendant is a foreign private juridical entity and has no resident agent nor agent/ officer. (Summons to be served to SEC which will then send a copy by registered mail within 10 days 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

Service of summons by publication

Within the time specified in the order which shall not be less than 60 days after notice (Sec. 15, Rule 14)

Non-resident defendant to whom extraterritorial service of summons is made

Not be less than 60 days after notice (Sec. 15, Rule 14)

Answer to amended complaint (Matter of right)*

Within 15 days from service of amended complaint (Sec. 3. Rule 11)

Answer to amended complaint (Not a matter of right)*

Within 10 days counted from notice of the court order admitting the same (Sec. 3, Rule

11)

Counterclaim or cross-claim Within 10 days from service (Sec. 4, Rule 11)

Third (fourth, etc.) party complaint

Like an original defendant – 15, 30, 60 days as the case may be (Sec. 5; Regalado, Vol. I, p. 212, 2005 ed.)

Supplemental complaint

Within 10 days from notice of order admitting the same unless a different period is fixed by the court (Sec. 7, Rule 11)

CROSS CLAIM COUNTERCLAIM 3RD PARTY COMPLAINT

Against a co-party Against an opposing party

Against a person not a party to the action

Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein

May arise out of or be necessarily connected with the transaction or the subject matter of the supposing party’s claim in which case it is called a compulsory counterclaim or it may not, in which case it is called a permissive counterclaim

Must be in respect of the opponent’s (plaintiff) claim.

NO NEED for a leave of court

NO NEED for a leave of court

LEAVE OF COURT is NEEDED

THIRD PARTY COMPLAINT COMPLAINT IN INTERVENTIONBrings into the action a third person who was not originally a party

Same

Initiative is with the person ALREADY a party to the action

Initiative is with a NON-PARTY who seeks to join the action

Amended Pleading Supplemental Pleading Refer to the facts existing at the Refers to facts occurring after the

time of filing of original pleading filing of the original pleading. Supersedes the original Merely supplements the original

pleading. May be amended without leave of court before a responsive pleading is filed.

Always with leave of court

Amendment must be appropriately marked.

There is no such requirement in supplemental pleadings . A supplemental pleading does not require the filing of a new copy of the entire pleading

ORDER OF DEFAULT JUDGMENT BY DEFAULTIssued by the court on plaintiff’s motion for failure of the defendant to file his responsive pleading seasonably

Rendered by the court following a default order or after it received, ex parte, plaintiff’s evidence

INTERLOCUTORY-NOT APPEALABLE

FINAL- APPEALABLE

Rule 16 (Motion to Dismiss) Rule 33 (Demurrer to Evidence) Grounded on preliminary objections

Based on insufficiency of evidence

May be filed by any defending party against whom a claim is asserted in the action

May be filed only by the defendant against the complaint of the plaintiff

Should be filed within the time for but prior to the filing of the answer

May be filed only after the plaintiff has completed the presentation of his evidence (Regalado, Remedial Law, Compendium Vol. I, p. 267, 2005 ed.)

If denied, defendant answers, or else he may be declared in default. If granted, plaintiff may appeal or if subsequent case is not barred,

If denied, defendant may present evidence. If granted, but on appeal the order of dismissal is reversed, the defendant loses his right to present evidence (Riano,

he may re-file the case Civil Procedure: A Restatement for the Bar, p. 399, 2009 ed.)

EFFECTS OF ACTION ON MOTION TO DISMISS

REMEDY

Order granting motion to dismiss is a final order (without prejudice)

Re-file the complaint

Order granting motion to dismiss (with prejudice)

Appeal

Order denying the motion to dismiss is interlocutory

File answer and proceed with the trial, if decision is adverse, appeal therefrom and raise as error the denial of the motion to dismiss.

If there is grave abuse of discretion amounting to lack or excess of jurisdiction, Certiorari or prohibition may lie under Rule 65.

PRESCRIPTION LACHESIt is connected with the fact of delay

It is connected with the effect of delay

It is a matter of time It is a matter of equityStatutory Non-statutoryApplies at law Applies in equityBased on fixed time Not based on fixed time

PLEADING MOTION

Purpose: To submit a claim or defense for appropriate judgment

Purpose: To apply for an order not included in the judgment

May be initiatory Cannot be initiatory as they are always made in a case already filed in court

Always filed before judgment May be filed even after judgmentOnly 9 Kinds of pleadings are allowed by the Rules

Any application for relief not by a pleading is a motion

Must be written May be oral when made in open court or in the course of a hearing or trial

Dismissal upon notice by plaintiff (Sec. 1, Rule 17)

Dismissal upon motion of plaintiff (Sec. 2, Rule 17)

Dismissal due to fault of plaintiff (Sec. 3, Rule 17)

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.

After service of the answer or a motion for summary judgment by the adverse party.

1. If, for no justifiable cause, the plaintiff fails to appear on the date of the presen-tation of his evidence in chief on the complaint. 2. If the plaintiff fails to prosecute his action for an unreason-nable length of time (nolle prosequi). 3. If the plaintiff fails to comply with the Rules or any order of the court.

It is a matter of right. Matter of discretion Matter of evidence.

GR: A dismissal without prejudice i.e. the complaint can be re-filed XPNs:

1. The notice of dismissal by the plaintiff provides that the dismissal is with prejudice; or

2. The plaintiff has once dismissed in a competent court an action based on or including the same claim (Two-dismissal rule) (Sec. 1, Rule 17)

3. Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claim involved (Serrano v. Cabrera, G.R. No. L-5189, Sept. 21, 1953)

upon the court. A complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper (Sec. 2, Rule 17).

GR: It is a dismissal without prejudice, XPN: If the order of dismissal specifies that it is with prejudice (Sec. 2, Rule 17) Note: A class suit shall not be dismissed or compromised without the approval of the court. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint.

GR: Dismissal is with prejudice because it has an effect of an adjudication on the merits. XPN: Unless otherwise declared by the court (Sec. 3, Rule 17)

Since there is no answer yet filed by the adverse party, no counterclaim recoverable

GR: It is also without prejudice to the right of defendant to prosecute his counterclaim in a separate action. XPN: Unless within

Dismissal upon motion of the defendant or upon the court’s own motion is without prejudice to the right of the defendant to

15 days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action (Sec. 2, Rule 17).

prosecute his counterclaim on the same or separate action

Pre-trial in civil case Pre-trial in criminal case It is set when the plaintiff moves ex parte to set the case for pre-trial (Sec. 1, Rule 18)

It is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense

The motion to set the case for pre-trial is made after the last pleading has been served and filed (Sec. 1, Rule 18)

The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused.

It considers the possibility of an amicable settlement as an important objective.

It does not include the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118).

Requires the proceeding during the preliminary conference to be recorded in the “minutes of preliminary conference” to be signed by both parties and/or counsel. The rule allows either the party or his counsel to sign the minutes (A.M. No. 03-1-09-SC).

All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2, Rule 18)

Sanctions for non-appearance in a pre-trial are imposed upon the

The sanctions in a criminal case are imposed upon the counsel for

plaintiff and the defendant in a civil case (Sec. 4, Rule 18).

the accused or the prosecutor (Sec. 3, Rule 18)

The presence of the defendant is required, unless he is duly represented at the trial conference by his counsel with the requisite authority to enter into a compromise agreement, failing in either of which the case shall proceed as if the defendant has been declared in default.

The accused is merely required to sign the written agreement arrived at in the pre trial conference, if he is in conformity therewith. Unless otherwise required by the court his presence therefore is NOT indispensable

The presence of the plaintiff is required at the pre-trial unless excused therefrom for valid cause or if he is represented therein by a person fully authorized in writing to perform the acts specified in Sec 4 Rule 18

The presence of the private offended party is NOT required at the pre-trial. Instead he is required to appear at the arraignment of the accused for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence.

Should he fail to appear therein, and the accused offers to plead guilty to a lesser offense necessarily included in the offense charged, he may be allowed to do so with the conformity of the trial prosecutor alone.

A pre-trial brief is required with the particulars and the sanctions provided by Sec 6 rule 18

The Rules do not require the filing of a pre-trial brief in criminal cases but only require attendance at a pre-trial conference to consider the matters stated in Sec 2 Rule 118.

INTERVENTION INTERPLEADERAn ancillary action An original actionProper in any of the four situations mentioned in this Rule

Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest

therein, which in whole or in part, is not disputed by the other parties to the action

The action is against either or both the original parties to the pending suit

Defendants are being sued precisely to implead them.

Subpoena Summons An order to appear and testify or to produce books and documents

Order to answer complaint

May be served to a non-party Served on the defendant Needs tender of kilometrage, attendance fee and reasonable cost of production fee

Does not need tender of kilometrage and other fees

DEPONENT USEAny person By any party for contradicting or

impeaching the testimony of deponent as witness

A party or any one who at the time of the deposition was an OFFICER, DIRECTOR, OR MANAGING AGENT of a public or private corp, partnership or association which is a party

By an adverse party for any purpose

Witness, whether a party or not a party

By any party for any purpose if the court finds 5 instances concurring

Commission Letters RogatoryInstrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions or do any other act by authority of such court or tribunal

Instrument sent in the name and by authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the

jurisdiction of the judge or court to whom such letters are addressed

Issued to a non-judicial foreign officer who will directly take the testimony.

Issued to the appropriate judicial officer of the foreign country who will direct somebody in said foreign country to take down testimony.

Applicable rules of procedure are those of the requesting court.

Applicable rules of procedure are those of the foreign court requested to act.

Resorted to if permission of the foreign country is given.

Resorted to if the execution of the commission is refused in the foreign country. (There must be a showing that the commission is inadequate or ineffective)

Leave of court is not necessary. Leave of court is necessary.

Protection Order (Sec. 16, Rule 23)

Motion to Terminate or Limit Examination (Sec. 18, Rule 23)

Provides protection to the party or witness before the taking of deposition.

Provides such protection during the taking of deposition.

The Motion is filed with the court in which the action is pending.

Motion or petition is filed in the court in which the action is pending or the RTC of the place where the deposition is being taken.

Interrogatories Bill of ParticularsA party may properly seek

disclosure of matters of proof which may later be made a part

of the records as evidence

A party may properly seek disclosure only of matters which define the issues and become a

part of the pleadingsThey seek to disclose all material and relevant facts from a party (Sec 1, Rule 25)

Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations

in a pleading. (Sec 1, Rule 12) Interrogatories to parties are not directed to a particular pleading. Instead

It is therefore directed to a pleading

Depositions Upon Written Interrogatories to Parties (Sec. 25, Rule 23)

Interrogatories to Parties (Rule 25)

DeponentParty or ordinary witness Party only

ProcedureWith intervention of the officer authorized by the Court to take deposition Not served upon the adverse party directly. They are instead delivered to the officer before whom the deposition is to be taken. (Sec 26, Rule 23)

No intervention. Written interrogatories are directed to the party himself Served directly upon the adverse party (Sec 1, Rule 25)

Scope

Direct, cross, redirect, re-cross Only one set of interrogatories

Interrogatories

No fixed time 15 days to answer unless extended or reduced by the court

REQUEST FOR ADMISSION ACTIONABLE DOCUMENTProper when the genuineness of an evidentiary document is sought to be admitted. If not denied under oath, its genuineness is deemed impliedly admitted. Essentially a mode of discovery

Must be attached to the complaint or copied therein. Its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by the adverse party.

Production or Inspection of Documents or Things

Subpoena Duces Tecum

Essentially a mode of discovery. Means of compelling production of evidence

Limited to the parties to the action.

It may be directed to any person whether a party or not.

Issued only upon motion with notice to the adverse party.

Issued upon an ex parte application.

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY A: Refusal to answer any question upon oral examination

1. Order to compel an answer; 2. Contempt; 3. Require payment of reasonable fees incurred by the proponent; 4. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. 5. Dismiss the action or the proceeding; 6. Render a Judgment by default against the disobedient party; 7. Refuse to allow the disobedient party to support or oppose claims or defenses; 8. Strike out all or any part of the pleading of the disobedient party; 9. Stay further proceedings until order is obeyed; 10. Order the arrest of the refusing party.

Refusal to produce document or thing for inspection, copying or photographing

1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the

order; 2. Refuse to allow the disobedient party to support or oppose claims or defenses; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party 8. Order the arrest of the refusing party.

Refusal to submit to Physical or Mental examination

1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 2. Prohibit the disobedient party to introduce evidence of physical and mental conditions; 3. Strike out all or any part of the pleading of the disobedient party; 4. Dismiss the action or the proceeding; 5. Render a Judgment by default against the disobedient party; 6. Stay further proceedings until order is obeyed; 7. Render a Judgment by default against the disobedient party

Refusal to the request for admission by adverse party

1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4) 2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).

Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not been affected by the amendment.

Trial HearingReception of evidence and other processes.

Not confined in trial but embraces several stages of litigation, including the pre-trial stage.

The period for the introduction of evidence by both parties.

Does not necessarily imply presentation of evidence in open court but the parties are afforded the opportunity to be heard.

Civil Cases Criminal CasesStipulation of Facts may be signed by the counsel alone who has a special power of attorney.

Stipulation of Facts must be signed both by the counsel and the accused.

May be made verbally or in writing.

Strict. It must always be in writing.

Consolidation Severance Involves several actions having a common question of law or fact which may be jointly tried (Sec.1, Rule 31).

Contemplates a single action having a number of claims, counterclaims, cross-claims, third-party complaints, or issues which may be separately tried.

Recasting the Cases Consolidation Proper Test-Case MethodReshaping of the cases by amending the pleading, dismissing some cases and retaining only one case. There must be joinder of causes of action and of parties.

It is a joint trial with joint decision, the cases retaining their original docket numbers.

By hearing only the principal case and suspending the hearing on the other cases until judgment has been rendered in the principal case. The cases retain their original docket numbers (Riano, Civil Procedure, p. 96, 2009 ed.).

Delegation to Clerk of Court Trial by Commissioner Delegation is made during trial. Commissioner can be appointed

even after the case has become final and xecutor.

Clerk of court must be a lawyer. Commissioner need not be a lawyer.

Clerk of court cannot rule on objections or on the admissibility of evidence.

Commissioner can rule on objections or on admissibility of evidence.

Motion to Dismiss (Rule 16)

Demurrer to Evidence (Rule 33)

When to file Before filing of answer (responsive pleading) is made by the defendant

After the plaintiff rests its case or after the completion of the presentation of evidence

-Grounds The 10 grounds

enumerated in Rule 16

That upon the facts and the law, the plaintiff has shown no right to relief

Insufficiency of evidence

If denied The defendant may file his responsive

The defendant may present his evidence.

pleading. If granted The complaint may

be xecutor depending on the ground of dismissal.

The complaint may NOT be filed. The remedy of the plaintiff is to appeal from the dismissal.

Motion Denied Motion Granted but Reversed on Appeal

Movant shall have the right to present his evidence

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.

Denial is interlocutory, hence, not appealable. Sec. 1, Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based), will not apply.

Order of the court is an adjudication on the merits. Hence, the requirement in Sec. 1, Rule 36 should be complied with.

Civil Case Criminal Case Leave of court Not required With or Without

If granted The Plaintiff may appeal from the order of dismissal of the case

The Plaintiff cannot make an appeal from the order of dismissal due to the constitutional prohibition against double jeopardy

If denied The Defendant may proceed to adduce his evidence

The Defendant may adduce his evidence only if the demurrer is filed with leave of court. If there was no leave

of court, accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence

If the plaintiff appeals from the order of dismissal

If the court finds plaintiff’s evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. No res judicata in dismissal due to demurrer

If the court finds the prosecution’s evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets in

How can demurrer be denied?

The plaintiff files a motion to deny motion to demurrer to evidence.

The court may motu proprio deny the motion.

MOTION TO DISMISS MOTION FOR JUDGMENT ON THE PLEADINGS

Filed by a defendant to a complaint, counterclaim, cross claim or 3rd party complaint

Filed by the plaintiff if the answer fails to tender an issue

SUMMARY JUDGMENT

JUDGMENT ON THE PLEADINGS

JUDGMENT BY DEFAULT

Based on the pleadings, depositions, admissions and affidavits

Based solely on the pleadings

Based on the complaint and evidence, if presentation is required

Available to BOTH plaintiff and defendant

Generally available only to the plaintiff, unless the defendant presents a counterclaim

Available to plaintiff

There is NO genuine issue between the parties, i.e there may be issues but these are irrelevant

The answer fails to tender an issue or there is an admission of material allegations

NO issue as no answer is filed by the defending party

10-day notice required

3-day notice required 3-day notice required

May be interlocutory or on the merits

On the merits On the merits

If filed by the plaintiff, it must be filed at any time after an answer is served

If filed by defendant, may be filed at any time even before there is an answer

There is already an answer filed

There is NO answer filed

Judgment on the pleadings

Summary judgments

Answer Answer does not tender an issue

There is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right

Notice Movants must give a 3-day notice of hearing

Opposing party is given 10 days notice

Termination Entire case may be terminated

May only be partial

Who can file Only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint is concerned can file the same

Either the plaintiff or the defendant may file it

Basis of the judgment

Based only on the pleadings alone, hence, only on the complaint and the answer

Based on the pleadings, affidavits, depositions, and admissions

Amended or clarified judgment Supplemental decisionIt is entirely new decision and supersedes the original judgment

It does not supersede the original decision

Court makes a thorough study of the original judgment and renders and clarified judgment only after considering all the factors and legal issues

Serves to bolster or add to the original judgment

MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION

Grounds

1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) which ordinary prudence could not have guarded against and by reason of which the rights of the aggrieved party was impaired; or 2. Newly discovered evidence, which could not with reasonable diligence, have been discovered

1. The damages awarded are excessive; 2. The evidence is insufficient to satisfy the decision or final order; or 3. The decisionor final order is contrary to law (Sec. 1, Rule 37).

and produced at the trial, and which if presented, would probably alter the result (Sec. 1, Rule 37).

Requisites

1. Must be in writing; 2. Affidavit of the existence of FAME and newly discovered evidence;

Note: Whenever a remedy is allowed on the ground of FAME, an affidavit of merit is obligatory. 3. Affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action; 4. In case of newly discovered evidence: a. Affidavit of new witnesses; and b. Duly authenticated documents to be introduced.

1. Must point out specifically the conclusion of judgment; 2. Express reference to testimonial or documentary evidence or to provisions of law.

Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.

The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere scrap of paper and will not toll the reglementary period for appeal. When to file A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal. Note: The period for appeal is within 15 days after notice to the appellant

of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40). Second motion may be allowed so long as based on grounds not existing or available at the time the first motion was made. (Sec. 5, Rule 37)

Single motion rule (applicable only on a judgment or final order but not to interlocutory order) (Sec. 5, Rule 37)

If granted, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. The recorded evidence taken upon the former trial, insofar as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6, Rule 37).

No new trial or hearing will take place and the judgment will be based on the pleadings submitted by the parties. If granted, the court may amend such judgment or final order accordingly (Sec. 3, Rule 37). Note: The amended judgment is in the nature of a new judgment which supersedes the original judgment.

If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37). Available even on appeal but only on the ground of newly discovered evidence.

Available against judgments or final orders of both the trial and appellate courts.

Both must be resolved within 30 days from the time it is submitted for resolution Both are prohibited motions under Summary Procedure

Judgment upon compromise Judgment by confessionThe provisions and terms are settled and agreed upon by the parties to the action, and which is entered in the record by the consent of the court

An affirmative and voluntary act of the defendant himself. The court exercises a certain amount of supervision over the entry of judgment

The parties bargain and agree on the terms and conditions of their agreement.

There is mutual or reciprocal

It is unilateral which comes from the defendant himself who admits liability and accepts the judgment to be rendered against him.

concessionNEWLY DISCOVERED EVIDENCE FORGOTTEN EVIDENCE Evidence was not available to a party during a trial, and was discovered only thereafter.

Evidence was already available to a party and was not presented through inadvertence or negligence of the counsel; it is not a ground for new trial.

EXTRINSIC FRAUD INTRINSIC FRAUD Connotes any fraudulent scheme executed by the prevailing party outside trial against the losing party who because of such fraud was prevented from presenting his side of the case

Refers to the acts of party during trial which does not affect the presentation of the case

MOTION FOR NEW TRIAL MOTION FOR REOPENING OF TRIAL

A motion must be filed The judge may act motu propio Proper only after promulgation of judgment

May properly be presented only after either or both parties have formally offered and closed their evidence before judgment

Based upon specific grounds mentioned in Sec. 37 in civil cases and Sec. 121 in criminal cases

Controlled by no other than the paramount interest of justice, resting entirely on the sound discretion of the court, the

exercise of such shall not be reviewable on appeal UNLESS a clear abuse thereof is shown.

Specifically mentioned in the rules

NOT mentioned in the rules but nevertheless recognized procedural recourse deriving validity and acceptance from long accepted usage.

It is actually mentioned in the Rules of Criminal Procedure.

It is a prohibited pleading in the revised rules on summary procedure

Rule 37- Motion for Reconsideration or Motion for New Trial

Rule 38- Relief from judgments, orders or other proceedings

Available BEFORE judgment becomes final and executory

Available AFTER judgment has become final and executory

Applies to JUDGMENTS, or FINAL ORDERS ONLY

Applies to judgments, final orders and other proceedings: Land Registration, Special Proceedings; Order of Execution

GROUNDS:a. FAME and

GROUNDS:a. FAME

b. NEWLY discovered evidence

Filed within the time to appeal Filed within 60 days from knowledge of the judgment ANDWithin 6 months from entry of judgment

If DENIED, the order of denial is NOT appealable, hence remedy is from the judgment

If DENIED, the order denying a petition for relief is NOT appealable; the remedy is appropriate civil action under Rule 65

Legal remedy Equitable remedyMotion need not be verified Petition must be verified

NOTICE OF APPEAL RECORD ON APPEAL Deemed perfected as to him upon the filing of the notice of appeal. If decision is made by the courts of 1st level, notice of appeal need not state the court to which the appeal is being taken (Sec.3, Rule 40) because there is only one court to which it shall be made – RTC

Required only in Special Proceedings and other cases of multiple or separate appeals. Deemed perfected as to him with respect to the subject matter thereof upon its approval. (30 days is the period for filing, only the court may approve the record on

If decision is made by the RTC in its original jurisdiction, notice of appeal to the RTC must disclose where appeal is to be taken. (Sec 5, rule 41)

appeal beyond that period)

Period available is 15 days before the judgment becomes final and executor

If required, the appellant has 30 days to file and serve both notice and record on appeal.

Should indicate: 1.Parties to the appeal; 2.Judgment or final order or part thereof appealed from; 3.Material dates showing the timeliness of the appeal

If required, copies of both the notice of appeal and the record on appeal shall be filed In court and served to the adverse party.

Ordinary Appeal Petition for Review A matter of right Discretionary All the records are elevated from the court of origin

No records are elevated unless the court decrees it

Notice or record on appeal is filed with the court of origin

Filed with the CA

The case was decided by the RTC pursuant to its original jurisdiction.

The case was decided by the RTC pursuant to its appellate jurisdiction

As to duration of residual powers: Until the records are transmitted to the appellate court.

As to duration of residual powers: Until the CA gives due course to the petition.

Appeal by Certiorari(Rule 45)

Review of Judgments, Final Orders or Resolutions (Rule 64)

Petition for Certiorari(Rule 65)

Petition is based only on questions of law.

Petition is based on questions of law.

Petition is based on questions of jurisdiction, that is, whether the lower court acted without

jurisdiction or in excess of jurisdiction or with grave abuse of discretion.

It is a mode of appeal.

It is a mode of appeal but the petition used is Rule 65.

It is a mode of review.

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts on the merits

Involves review of judgments, final orders or resolutions of COMELEC and COA. Note: CSC judgments, final orders or resolutions are governed by Rule 43

May be directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy.

Filed within 15 days from notice of judgment, final order or resolution appealed from.

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed.

Filed not later than 60 days from notice of judgment, order or resolution appealed from.

Stays the judgment or order appealed from

Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just.

Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded.

The COMELEC and COA shall be public respondents who are impleaded in the action.

The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action.

Motion for reconsideration is not required.

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed.

Motion for reconsideration or for new trial is required. If a motion for reconsideration or

new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC)

The court is in the exercise of its appellate jurisdiction and power of review.

The court is in the exercise of its appellate jurisdiction and power of review.

Court exercises original jurisdiction.

Filed with the SC. Filed with the SC. Filed with the RTC, CA, Sandiganbayan or COMELEC. (1991, 1998, 1999 Bar Question)

Brief Memorandum Ordinary appeals Certiorari, prohibition,

mandamus, quo warranto and habeas corpus cases

Filed within 45 days Filed within 30 days Contents specified by rules Shorter, briefer, only one issue

involved – No subject index or assignment of errors, just facts and law applicable

CERTIORARI (RULE 45) CERTIORARI (RULE 65) Mode of appeal which seeks to review final judgments and orders (Section 2, Rule 41)

Special civil action; an original action (Rule 65). It may be directed against an interlocutory order or matters where no appeal

may be taken from (Section 1, Rule 41)

Raises questions of law Raises questions of jurisdiction It shall be filed within 15 days from notice of judgment or final order appealed from

It shall be filed not later than 60 days from notice of judgment, order or resolution sought to be assailed and in case a MR or motion for new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from the notice of denial of said motion

Does not require prior motion for reconsideration

Requires as a general rule, a prior MR

Stays the judgment sought to be appealed

Does not stay the judgment or order subject of the petition unless enjoined or restrained.

The parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge (Section 4a, Rule 45).

The tribunal, board, officer exercising judicial or quasi-judicial functions is impleaded as respondent (Section 5 Rule 65).

Filed with the SC (Section 1, Rule 45).

Filed with the RTC (Section 21, BP 129); With the CA (Section 9, BP 129); With the SC (Section 5 (1) Article VIII, 1987 Constitution).

RTC as Appellate Court (Rule 42) Appeal from Quasi-judicial agencies (Rule 43)

Decision is stayed by an appeal. GR: Decision is immediately xecutor. It is not stayed by an

appeal XPN: CA shall direct otherwise upon such terms as it may deem just

Factual findings not conclusive to CA.

Factual findings are conclusive upon CA if supported by substantial evidence.

Final Judgments for purposes of appeal

Final Judgments for purposes of execution

Dispose of, adjudicate, or determine the right of the parties.

Becomes final and xecutor by operation of law.

Still subject to appeal After lapse of period to appeal and no appeal was perfected, no further action can be had.

Execution of judgment not a matter of right.

Execution of judgment

Ordinary Appeal (Appeal by Writ of Error)

Petition for Review (Rule 42)

Petition for Review on Certiorari (Rule 45)

Case is decided by the RTC in its original jurisdiction

Case is decided by the RTC in the exercise of its appellate jurisdiction

Case is decided by the RTC, CA, CTA and Sandiganbayan

Appealed to the CA Petition for review with the CA

Appealed to the SC

File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the adverse party

File a verified petition for review with the CA. Pay the docket and lawful fees, and P500 as deposit for costs with the CA. Furnish RTC and adverse party copy of such (Rule 42)

File a verified petition for review on certiorari with SC (Rule 45). Pay docket and lawful fees and P500 for costs. Submit proof of service of a copy to the lower court and adverse party.

Within 15 days from the notice of the judgment for notice of appeal and within 30 days for records on appeal

Within 15 days from notice of the decision to be reviewed or from the denial of a MR or MNT

Within 15 days from notice of the judgment or order or denial of the MR or MNT

RTC as Appellate Court (Rule 42) Quasi-Judicial Agencies (Rule 43)Decision is stayed by an appeal Decision is immediately executor;

not stayed by an appealFactual findings not conclusive to CA

Factual findings are conclusive upon CA if supported by substantial evidence

Questions of Law Questions of FactDoubt or controversy as to what the law is on certain facts

Doubt or difference as to the truth or falsehood of facts, or as

to probative value of the evidence presented

If the appellate court can determine the issue raised without reviewing or evaluating the evidence

The determination involved evaluation or review of evidence

Can involve questions of interpretation of the law with respect to certain set of facts

Query invites the calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

Judgments, Final Orders, or Resolutions of RTC

Judgments, Final Orders, or Resolutions of MTC

Filed with the CA Filed with the RTCBasis: It has exclusive original jurisdiction over said action under Sec 9 (2) of BP 129

Basis: RTC as a court of general jurisdiction under Sec 19(6) of BP 129

The CA may dismiss the case outright; it has the discretion on whether or not to entertain the petition

The RTC has no such discretion. It is required to consider it as an ordinary civil action

Extrinsic Fraud Lack of JurisdictionPeriod of Filing Action Four (4) years from

discoveryBefore it is barred by laches or estoppel

Effect of Judgment Court may on motion order the trial court to try the case as if a timely MNT had been granted

Set aside the questioned judgment and render the same null and void, without prejudice to the original action being re-filed in the proper court

Failure to file Notice of Appeal Failure to file Brief within the period

Jurisdictional Not jurisdictional, maybe waived by the parties

Decision becomes FINAL and EXECUTORY upon failure to move for reconsideration

Results in abandonment of appeal, which could lead to DISMISSAL upon failure to move for reconsideration

Judgments for Specific Act (Sec. 10)

Manner of Execution

Conveyance, delivery of deeds, or other specific acts, vesting title.

Court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it.

Sale of real and personal property

Sell such property and apply the proceeds in conformity with the judgment.

Delivery or restitution of real property

If the party refuses to deliver, a writ of execution directing the sheriff to cause the defendant to vacate is in the nature of a haberefaciaspossesionemand authorizes the sheriff to break open the premises where there is no occupant therein. If party refuses to vacate property, remedy is not contempt. The sheriff must oust the party. But if demolition is involved, there must be a special order.

Removal of improvements on property subject of execution

The officer may destroy, demolish or remove the improvements upon special order of the court, issued upon motion of the judgment xecut.

Delivery of personal property The officer shall take possession and deliver to the party entitled thereto.

JUDGMENT OBLIGOR REDEMPTIONER Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors)

One who has a lien by by virtue of an attachment judgment, judgment, or mortgage on the property sold, SUBSEQUENT to the lien under which the property was sold (Sec. 27) Note: If creditor’s lien is prior to the judgment, he is not a redemptioner because his interests in his lien are fully protected.

Within 1 year from the date of registration of the certificate of sale.

1. Within 1 year from the date of registration of the certificate of sale if he is the first redemptioner, or 2. Within 60 days from the last redemption, if he be a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption.

Once he redeems, no further redemption is allowed. The person to whom redemption was made must execute and deliver to the judgment obligor a certificated of redemption.

Further redemption is allowed, even after lapse of 1 year, as long as each redemption is made within 60 days after the last.

PROVISIONAL REMEDIESRULE 57 PRELIMINARY ATTACHMENTClasses of Attachment

PRELIMINARY ATTACHMENT (Rule 57)

FINAL ATTACHMENT (Rule 39)

It is an auxiliary remedy to give security for a judgment still to be rendered.

It is a means for the execution of a final judgment.

There is no sale because the decision has not yet been rendered.

It should always be accompanied by a sale at public auction.

Resorted to at the commencement of the action or at any time before the entry of judgment, for the temporary seizure of the property of the adverse party

Available after the judgment in the main action had become executor, and for the satisfaction of said judgment.

The proceeds of the sale, in cases allowed, are in custodial egis (Sec. 11)

The proceeds of the sale are turned over to the attaching creditor

RULE 58 PRELIMINARY INJUNCTION

INJUNCTION AS AN ANCILLARY REMEDY

INJUNCTION AS A MAIN ACTION

Exist as an incident to a principal action

Independent action

Seeks to preserve the status quo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (Cortez- Estrada v. Heirs of Domingo Samut, 451 SCRA 275, February 14, 2005).

Seeks a judgment embodying a final injunction, to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant (Almeida v. CA, 448 SSCRA 681, January 17, 2005).

Order granted at any stage of the action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person to refrain from or to perform particular act or acts (Sec. 1, Rule 58)

Issued after final judgment of the case permanently restraining the defendant or making the preliminary injunction permanent (Sec. 9, Rule 58)

GR: Bond is required XPN: Exempted by court (Sec. 4, Rule 58)

No bond is required

Injunction Prohibition Status Quo Order Directed against a party in an action

Directed against a court, tribunal or person exercising judicial powers

Directed against the adverse party and is issued by the court motu propio(Regalado, Remedial Law Compendium, Vol. I, p. 721, 2005 ed.)

Does not involve the jurisdiction of the court

Issued on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction

Cease and Desist Order intended to maintain the last, actual, peaceable and uncontested state of things preceding the controversy without requiring the doing or undoing of an act (Regalado, Remedial Law Compendium, Vol. I, p. 722, 2005 ed.)

May be the main action (final injunction) or provisional remedy

Special Civil Action / Main action

Preliminary Injunction Temporary Restraining Order Specie of preliminary injunction to maintain status quo before the resolution of the writ of preliminary injunction on the ground of irreparable injury Note: Injury is irreparable if it is not susceptible to mathematical computation (DFA and BSP v. Falcon and BCA Int’l Corp., G.R. No. 176657, September 1, 2010) Effective during the pendency of the action unless earlier dissolved Note: The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. (Sec. 5, Rule 58 as amended by A.M. No. 07-7-12-SC)

Duration (non-extendible): (Sec. 5, Rule 58) 1. If issued by RTC/MTC – 20days from notice to person restrained 2. If issued by CA – 60 days from notice 3. If issued by SC – until lifted

Note: Prohibition against the renewal applies only if the same is sought under and by reason of the same ground for which it was originally issued (Regalado, Remedial Law Compendium, Vol. I, p. 725, 2005 ed.) Note: TRO is deemed automatically lifted after the expiration of the effectivity period

Notice and hearing always required (Sec. 5, Rule 58)

GR: Notice and hearing required XPN: To prevent urgent / irreparable injury, TRO may be issued by an Executive Judge or Presiding Judge for 72hours and a summary hearing be subsequently conducted within such period

Can be issued to compel the performance of an act

Cannot be issued to compel the performance of an act

Injunction TROMay exceed 20 days Does NOT exceed 20 days (RTC);

Does Not exceed 60 days (CA);Indefinite (SC)

Restrains or requires the performance of particular acts

Maintains the status quo

TRO issued by executive judge for multisala courts/ordinary judge for single-sala courts

TRO issued by ordinary judge

Good for 72 hrs Good for 20 days including the first 72 hours

Issued before raffling Issued after rafflingIssued ex parte Issued after summary hearing

Preventive / Prohibitory Injunction

Mandatory Injunction

Requires a person to refrain from doing an act

Requires the performance of a particular act

The act had not yet been performed

The act has already been performed and this act has violated the rights of another

To preserve status quo To restore status quo

Prohibitory Injunction Prohibition (rule 65)Directed against a party in the action

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

It does not involve jurisdiction of the court

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

It may be the main action itself or just a provisional remedy

Always the main action

Mandatory Injunction Mandamus (rule 65)Directed to a party litigant, NOT to a tribunal and is issued to require a party to perform an act to restore the last peaceable uncontested status preceding the controversy

Special Civil Action seeking a judgment commanding a tribunal, board or officer or person to perform a ministerial duty required to be performed by law

RULE 60 REPLEVIN

Replevin Preliminary Attachment Recovery of possession of personal property is the principal relief and damages are incidental

Available even if recovery of personal property is only an incidental relief

This is available before defendant files an answer

Available from commencement but before entry of judgment

Available only where defendant is in actual or constructive possession of personal property involved

May be resorted to even if personal property is in the custody of a third person

Extends only to personal property capable of manual delivery

Extends to all kinds of property whether real, personal or incorporeal

Used to recover personal property even if not being concealed, removed or disposed

Recover property being concealed, removed or disposed

Cannot be availed of when property is in custodialegis(under attachment) or seized under search warrant

Can be resorted to even if property is in custodialegis

Property of GOCCs cannot be reached

Properties of GOCCs may be reached if utilized in its proprietary function.

Sheriff takes possession of the property subject of the replevin and hold the same for a period of 5 days after which said property will be delivered to the party who obtained the writ.

Sheriff does not take possession of the property attached except contructively placing it under xecutor egis.

Bond to be posted is double the value of the property sought to be recovered

Bond amount is fixed by court and does not exceed the claim or value of the property to be attached

Ordinary Civil Action Special Civil Action Governed by ordinary rules also governed by ordinary rules

but SUBJECT to specific rules prescribed (Rules 62-71)

Formal demand of one’s legal rights in a court o justice in the manner prescribed by the court o by the law

Special features not found in ordinary civil actions

Must be based on a cause of action – act or omission in violation of the rights of another

Cause of action not necessarily needed Examples: 1. Declaratory relief – action is brought before there is any breach 2. Interpleader – plaintiff files a complaint even if he has not sustained actual transgression of his rights

Venue is determined either by the residences of the parties where the action is personal or by the location of the property where the action is real

Not necessarily true as in quo warranto, the venue is where the Supreme Court or Court of Appeals if the petition is commenced in any of these courts without taking into consideration the residences of the parties

May be filed in Municipal Trial Court or the Regional Trial Court depending upon the jurisdictional amount or nature of the action

Some actions may be filed only in the Municipal Trial Court, some cannot be commenced therein

May be commenced only by the filing of complaint

May be commenced by the filing of a complaint or petition

Special Civil Actions initiated by Complaints (IF FEUD PE)

Special Civil Actions Initiated by Petitions (DR CPM QC)

1. Interpleader2. Foreclosure of Real

1. Declaratory Relief2. Review of

Estate mortgage3. Forcible Entry4. Unlawful Detainer5. Partition6. Expropriation

Adjudication of the COMELEC/COA

3. Certiorari4. Prohibition5. Mandamus6. Quo Warranto7. Contempt

Jurisdiction Venue Interpleader

MTC – where the value of the claim or the personal property does not exceed P300,000 or P400,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila. RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC

Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Declaratory ReliefRTC Note: It would be error to file the petition with the SC which has no original jurisdiction to entertain a petition for declaratory relief (Tano v. Socrates, G.R. No. 110249, Aug. 14, 1997)

Where the petitioner or the respondent resides

ExpropriationRTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

Land: where the property is located Personal property: the place where the plaintiff or defendant resides

Certiorari, Prohibition, MandamusRTC, CA, SC, Sandiganbayan COMELEC in aid of its appellate jurisdiction (A.M. No. 07-7-12-SC)

RTC: if it is directed against a municipal trial court, a corporation, a board, an officer or a person. CA or with the SB, whether or not the same is in aid of the court’s appellate jurisdiction.

If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or the Rules, the petition shall be filed with and be cognizable only by the Court of Appeals.

In election cases involving an act or omission of MTC /RTC, it shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (Sec. 4, Rule 65)

Quo WarrantoRTC, CA, SC, SB in aid of its appellate jurisdiction

With the SC, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides. When the Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule 66)

Note: Subject to the principle of Hierarchy of Courts Contempt

MTC, RTC, CA, SC Where the charge for indirect contempt has been committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the RTC of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the RTC of such place (Sec. 5, Rule 70)

Forcible EntryMetropolitan Trial Courts; Where the property is located

covered by Rule on Summary Procedure

Unlawful DetainerMetropolitan Trial Courts; covered by Rule on Summary Procedure.

Where the property is located

PartitionRTC (incapable of pecuniary estimation)

1. Real property – where the property is located 2. Personal property – the place where the plaintiff or defendant resides (Sec. 13, Rule 69)

Foreclure of REMRTC (incapable of pecuniary estimation) (Barangay San Roque v. Heirs of Pastor, G.R. No. 138896, June 20, 2000)

Where the land or any part thereof is located

RULE 62 INTERPLEADERINTERPLEADER INTERVENTION Special civil action, independent and original

Not an original action but mere ancillary and depends upon the existence of a precious pending action.

Commenced by the filing of a complaint.

Commenced by a motion to intervention filed in a pending case attaching thereto the pleading- in- intervention.

Filed by a person who has no interest in the subject matter of the action or if he has an interest, the same is not disputed by the claimants.

Filed by a person who has a legal interest in any of the following: a. The subject matter of the litigation; b. The success of either of the parties; or c. The success of both of the parties; or d. He may be adversely affected by the disposition or distribution of property in the judgment.

The defendants are brought into the action only because they are impleaded as such in the complaint.

If a complaint- in- intervention is filed, the defendants are already parties to an existing suit not because of the intervention but because of the original suit.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

DECLARATORY RELIEF ORDINARY ACTIONNo writ of execution Writ of execution is availableNo breach or violation There is breach or violation of rightAdditional ground for Motion to Dismiss Rule 63 Sec 5 (Court may refuse to exercise the power to declare rights and to construe instruments where a decision would not terminate the uncertainty or controversy or

Motion to dismiss (rules 16 and 17)

where declaration is not necessary and proper under the circumstances.

DECLARATORY JUDGMENT ORDINARY JUDGMENT Declaratory judgment stands by itself and no xecutor process follows

Ordinary judgment involves executor or coercive relief

Intended to determine any question of construction or validity prior to breach or violation

Intended to remedy or compensate injuries already suffered

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA

Rule 64 Rule 65 Directed only to the judgments, final orders or resolutions of the COMELEC and COA;

Directed to any tribunal, board or officers exercising judicial or quasi-judicial functions;

Must be filed within 30 days from notice of judgment or resolution

Must be filed within 60 days from notice of judgment or resolution

If MR is denied, the If MR is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days.

Aggrieved party will have another 60 days within which to file the petition counted from the notice of denial.

Rule 64 for COMELEC and COA Review of judgment, final orders or resolutions of other tribunals, persons and officer

Petition is based on questions of law

Petition is based on questions of law

It is a mode of appeal but the petition used is Rule 65

It is a mode of appeal

Involves review of judgments, final orders or resolutions of COMELEC and COA

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts

Filed within 30 days from notice of judgment, final order or resolution sought to be reviewed

Filed within 15 days from notice of judgment, final order or resolution appealed from

Does not stay the execution unless SC shall direct otherwise upon such terms as it may deem just

Stays the judgment or order appealed from

The COMELEC and COA shall be public respondents who are impleaded in the action

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

The filing of MNT or MR, if allowed under the procedural rules of the Commission, shall interrupt period fixed

Motion for reconsideration is not required

The court is in the exercise of its appellate jurisdiction and power of review

The court is in the exercise of its appellate jurisdiction and power of review

Petition for certiorari is to be filed before the SC

Petition for certiorari is to be filed only with the Court of Appeals

RULE 65 CERTIORARI, PROHIBITION, MANDAMUS

Judicial function Quasi-judicial functionpower to determine what the law is and what the legal rights of the parties are, and then undertake to determine these questions and adjudicate upon the rights of the parties

Action or discretion of public administrative officers or bodies, which are required to investigate facts or ascertain the existence of facts, hold hearings and draw conclusions from them as basis for their official action and to exercise discretion of a judicial nature

Discretionary Act Ministerial ActOne where public functionaries, by virtue of a power or right conferred upon them by law, can act officially under certain circumstances , uncontrolled by the judgment or conscience of others.

One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done

CERTIORARI PROHIBITION MANDAMUS Certiorari is an extraordinary writ annulling or modifying the proceedings of a tribunal, board or officer exercising judicial or quasi-judicial functions when such tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, Rule 65).

Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, Rule 65).

Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: (a) When he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or (b) When one unlawfully excludes another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65).

Directed against a person exercising to judicial or quasi-judicial functions

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

Directed against a person exercising ministerial duties

To correct an act performed by respondent

To prevent the commission of an act

To compel performance of an act

Purpose is to annul or modify the proceedings

Purpose is to stop the proceedings

Purpose is to compel performance of the act required and to

collect damages Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion

Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion

Person must have neglected a ministerial duty or excluded another from a right or office

Extends to discretionary acts

Extends to discretionary and ministerial acts

Only for ministerial acts

Only against a respondent exercising judicial or quasi-judicial

Against respondents who exercise judicial and/or non-judicial functions

functions

Rule 65 Rule 45 Findings of fact of Court of Appeals are not conclusive or binding upon SC

GR: Findings of fact of CA are conclusive

Involves question of jurisdiction Involves question of law Mode of appeal Mode of review Directed against an interlocutory order of a court or where there is no appeal or any other plain, speedy or adequate remedy

Involves the review of the judgment final orders or resolutions of the CA, Sandiganbayan, CTA, RTC or other courts

Filed not later than 60 days from notice of judgment, order or resolution appealed from

Filed within 15 days from notice of judgment, final order or resolution appealed from

Unless a writ of preliminary injunction or temporary restraining order is issued, it does not stay the challenged proceeding

Stays the judgment or order appealed from

The judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person shall be public respondents who are impleaded in the action

The appellant and the appellee are the original parties to the action, and the lower court or quasi-judicial agency is not impleaded

Motion for reconsideration or for new trial is required. If a motion for reconsideration or new trial is filed, another 60 days shall be given to the petitioner (A.M. No. 02-03-SC)

Motion for reconsideration is not required

Court exercises original jurisdiction

The court is in the exercise of its appellate jurisdiction and power of review.

Filed with the RTC, CA, Sandiganbayan or COMELEC

Filed with the SC

Without jurisdiction Excess of Jurisdiction

Grave abuse of discretion

When the respondent does not have the legal power to determine the case

Where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law

Where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction.

The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.

INJUNCTION PROHIBITION Directed only to the party litigants, without in any manner interfering with the court.

Directed to court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim.

It does not involve jurisdiction of the court

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

It may be the main action itself or just a provisional remedy

Always the main action

Mandamus Quo Warranto Available when one is unlawfully excluded from the use or enjoyment of an office against a person who is responsible for excluding the petitioner

Available against the holder of an office, who is the person claiming the office as against petitioner, not necessarily the one who excludes the petitioner

Mandamus injunction Special civil action Ordinary civil action Directed against a tribunal, corporation board, or officer

Directed against a litigant

Purpose is for tribunal, corporation, board or officer to perform ministerial and legal duty

For the defendant either to refrain from an act or to perform not necessarily a legal and ministerial duty

To perform a positive legal duty and not to undo what has been done

To prevent an act to maintain the status quo between the parties

Remedial PreventiveTo set in motion and to compel action (ACTIVE)

To restrain motion or to enforce inaction (CONSERVATIVE)

CERTIORARI PROHIBITION MANDAMUS That the petition is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions;

The petition is directed against a tribunal, corporation, board or person exercising judicial, quasi-judicial, or ministerial functions;

The plaintiff has a clear legal right to the act demanded; Directed against an entity or person exercising ministerial function

The tribunal, board or officer has acted --without, or-- in excess of jurisdiction or --with abuse of discretion amounting to lack or excess or jurisdiction

The tribunal, corporation, board or person must have acted --without or --in excess of jurisdiction or --with grave abuse of discretion amounting to lack of jurisdiction;

The defendant unlawfully neglects the performance of the duty enjoined by law;

There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

There is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum shopping under Rule 46.

Accompanied by a certified true copy of the judgment or order subject of the petition, copies of all pleadings and documents relevant and pertinent thereto, and sworn certification of non-forum shopping under Rule 46.

Purpose is to annul or nullify a proceeding

Purpose is to have respondent desist from further proceeding

Purpose is for respondent to:

1. DO the act required ;

2. TO pay damages

This remedy is CORRECTIVE- to correct usurpation of jurisdiction

This remedy is PREVENTIVE and negative- to restrain or prevent usurpation of jurisdiction

This remedy is AFFIRMATIVE or positive (if performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office

Covers DISCRETIONARY ACTS

Covers DISCRETIONARY and MINISTERIAL acts

Covers MINISTERIAL Acts

Prohibition Mandamus Injunction Prohibition is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising judicial, quasi-judicial or ministerial functions, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with abuse of its discretion, there being no appeal or any other plain, speedy and adequate remedy in the

Mandamus is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: (a) When he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; or (b) When one unlawfully excludes

Main action for injunction seeks to enjoin the defendant from the commission or continuance of a specific act, or to compel a particular act in violation of the rights of the applicant. Preliminary injunction is a provisional remedy to preserve the status quo and prevent future wrongs in order to preserve and protect certain interests or rights during the

ordinary course of law (Sec. 2, Rule 65).

another from the use and enjoyment of a right or office to which the other is entitled (Sec. 3, Rule 65).

pendency of an action.

Special civil action Special civil action Ordinary civil action

To prevent an encroachment, excess, usurpation or assumption of jurisdiction;

To compel the performance of a ministerial and legal duty;

For the defendant either to refrain from an act or to perform not necessarily a legal and ministerial duty;

May be directed against entities exercising judicial or quasi-judicial, or ministerial functions

May be directed against judicial and non-judicial entities

Directed against a party

Extends to discretionary functions

Extends only to ministerial functions

Does not necessarily extend to ministerial, discretionary or legal functions;

Always the main action

Always the main action

May be the main action or just a provisional remedy

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

May be brought in the Supreme Court, Court of Appeals, Sandiganbayan, or in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

May be brought in the Regional Trial Court which has jurisdiction over the territorial area where respondent resides.

RULE 66 QUO WARRANTO

Quo warranto MandamusDesigned to try the right or title to the office, if the right or title to the office itself is disputed

Does not lie to try disputed titles but only to enforce legal duties

Brought against the holder or the office, not necessarily the one who excludes the petitioner

Brought against the person who is responsible for excluding the petitioner from office

Appointive Office Elective OfficeIssue: validity of the appointment Issue: eligibility of the respondentCourt will oust the person illegally appointed and will order the seating of the person who was legally appointed and entitled to the office

Occupant declared ineligible/disloyal will be unseated but petitioner will not be declared the rightful occupant of the office

Quo Warranto Under Rule 66 Quo Warranto In Electoral Proceedings

Governing law: RULES of COURT Governing law: ELECTION LAWThe petition must be filed within one (1) year from the petitioner’s ouster from the office

The petition for quo warranto must be filed within ten (10) days from proclamation of the candidate

The petition is brought in the SC, CA or RTC

The petition is brought in the COMELEC, the RTC or the MTC as the case may be

Prerogative writ by which the government can call upon any person to show by what title he holds a public office or exercises a public franchise.

To contest the right of an elected public officer to hold public office.

Grounds: 1. Usurpation 2. forfeiture 3. illegal association

Grounds: ineligibility or disqualification to hold the office

Presupposes that the respondent is already actually holding office and action must be commenced within 1 year from cause of ouster or from the time the right of petitioner to hold office arose.

Petition must be filed within 10 days from the proclamation of the candidate.

The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

May be filed by any voter even if he is not entitled to the office.

Person adjudged entitled to the office may bring a separate action against the respondent to recover damages.

Actual or compensatory damages are recoverable in quo warranto proceedings under the Omnibus Election Code.

RULE 67 EXPROPRIATIONSection 2 Rule 67 RA 8974

Application Expropriation in general

Only when National Government expropriates property for national government infrastructure projects

For a writ of possession to issue

Government is required to make an INITIAL DEPOSIT

Government is required to make IMMEDIATE PAYMENT to the owner upon filing of the complaint

Amount of payment/Deposit

Equal to ASSESSED VALUE of the property for the purposes of taxation

Equal to the market value of the property as stated in the tax declaration or the current relevant zonal value of the BIR, whichever is higher, and the value of the improvements and/or structures using the

replacement cost method

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE

Judicial Foreclosure Extrajudicial Foreclosure Governed by Rule 68 Governed by Act 3135 There is only an equity of redemption except when the mortgagee is a bank

Right of redemption exists

Requires court intervention No court intervention necessary Mortgagee need not be given a special power of attorney.

Mortgagee is given a special power of attorney in the mortgage contract to foreclose the mortgaged property in case of default.

There could be a Deficiency Judgment

No deficiency judgment because there is no judicial proceeding but recovery of deficiency is allowed

Recovery of deficiency can be done by mere motion

Recovery of deficiency is through an independent action

RULE 69 PARTITIONJUDGMENT CONTENTS OF

JUDGMENTEFFECT OF JUDGMENT

If actual PARTITION of property is made:

The judgment shall state definitely, by metes and bounds and adequate description the particular portion of the estate assigned to each party

To vest in each party to the action in severalty the portion of the estate assigned to him

If the whole property is ASSIGNED to one of the parties upon his paying to the others the sum or sums ordered by the court:

The judgment shall state the fact of such payment and the assignment of the real estate to the party making the payment

To vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action

If the property is sold and the SALE is confirmed by the court:

The judgment shall state the name of the purchaser/s and a definite description of the parcels of real estate sold to each purchaser

To vest the real estate in the purchaser/s making the payment/s. free from the claims of any of the parties to the action.

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

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

but prior to confirmation under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale

Governed by Rule 68 Governed by Secs. 29-31, Rule 39

RULE 70 UNLAWFUL DETAINER AND FORCIBLE ENTRY

Forcible Entry (Detentacion) Unlawful Detainer (Desahucio) Possession of the land by the defendant is unlawful from the beginning as he acquires possession by force, intimidation, strategy, threat or stealth.

Possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff.

No previous demand for the defendant to vacate the premises is necessary.

Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with the lease contract.

The plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant.

The plaintiff need not have been in prior physical possession.

The 1 year period is generally counted from the date of actual entry on the land.

Period is counted from the date of last demand or last letter of demand.

Accion Interdictal

Accion Publiciana

Accion Reinvindicatoria

Summary action for the recovery of physical possession where the disposses-sion 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.

All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

RTC has jurisdiction if the value of the property exceeds P20,000 or P50,000 in Metro Manila. MTC has jurisdiction if the value of the property does not exceed the above amounts.

RULE 71 CONTEMPT

Direct Contempt Indirect Contempt Committed in the presence of or so near a court.

Not committed in the presence of the court.

Summary in nature Punished after being charged and heard

If committed against: 1. RTC – fine not exceeding P2,000 or imprisonment not exceeding 10 days or both. 2. MTC – fine not exceeding P200 or imprisonment not exceeding 1 day, or both.

IF COMMITTED AGAINST: 1. RTC – FINE NOT EXCEEDING P30,000 OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH 2. MTC – fine not exceeding P5,000 or imprisonment not exceeding 1 month or both

Remedy:Certiorari or prohibition Remedy: Appeal (by notice of appeal)

Contempt in facie curiae Constructive contempt

Criminal Contempt Civil Contempt Punitive in nature Remedial in nature Purpose is to preserve the court’s authority and to punish disobedience of its orders

Purpose is to provide a remedy for an injured suitor and to coerce compliance with an order for the preservation of the rights of private persons

Intent is necessary Intent is not necessary State is the real prosecutor Instituted by the aggrieved party

or his successor or someone who

has pecuniary interest in the right to be protected

Proof required is proof beyond reasonable doubt.

Proof required is more than mere preponderance of evidence

If accused is acquitted, there can be no appeal.

If judgment is for respondent, there can be an appeal

SPECIAL PROCEEDINGS

Ordinary Action Special Proceeding Special Civil Action To protect or enforce a right or prevent or redress a wrong

Involves the establishment of a right, status, or fact

Civil Action subject to specific rules.

Involve 2 or more parties – plaintiff and defendant

May involve only one party – only petitioner

Involves two or more parties

Governed by ordinary rules, supplemented by special rules

Governed by special rules, supplemented by ordinary rules

Ordinary rules apply primarily but subject to specific rules

Initiated by a complaint, and parties respond through an answer

Initiated by a petition and parties respond through an opposition

Some are initiated by complaint, while some are initiated by petition

Based on a cause of action

Not based on a cause of action (except Habeas Corpus)

Some special civil action have no cause of action

Heard by courts of general jurisdiction

Heard by courts of limited jurisdiction

Issues or disputes are stated in the pleadings of the parties

Issues are determined by law

Adversarial Not adversarial Based on a cause of action

Not based on a cause of action (except

Some special civil action have no cause

habeas Corpus) of action

Special Proceeding Jurisdiction VenueRules 73-90

Settlement of Estate of Deceased Persons

RTC- Gross value of the estate exceeds 400,000/ 500,000 (Manila) MTC- Gross value of the estate does not exceed 400,000/ 500,000 NOTE: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs

1. If inhabitant (resident) of the Philippines (whether citizen or alien)- Court of the province/ city where the deceased resides at the time of death 2. Inhabitant (non- resident) of foreign country- court of any province/ city wherein he had estate

Rule 91 Escheat RTC 1. Ordinary escheat

proceedings: RTC

a. If resident- place where the deceased last resided b.If non-resident- place where he had estate 2. Reversion of land to the State for violation of the Consitution/ Laws- RTC where the land lies in whole or in part 3. Unclaimed deposits (for 10 years)- RTC of the city/ province where the bank is located NOTE: All banks located in 1 province where the court is located may be made party- defendant in 1 action.

Rule 98 Trustees RTC-Gross value of the estate exceeds 400,000/500,00

Where the will was allowed or where the

0 MTC- does not exceed 400,000/ 500,000

property or portion thereof affected by the trust is situated

Rule 101 Hospitalization of insane person

RTC Where such insane person may be found

Rule 103 Change of name RTC Where petitioner resides for 3 years prior to the filing of the petition

Rule 108 Cancellation or correction of entries in the civil registry

RTC Where the corresponding civil registry is located

Rule 107 Declaration of absence and death

RTC Where the absentee resided before his disappearance

A.M. No. 00-8-10-SC

Corporate rehabilitation

RTC Where principal office of the corporation is situated

Rule 104 Voluntary dissolution of corporation

SEC Where principal office of corporation is situated

RA 9048 Administrative correction of entry/change of first name or nickname

Local civil registry/Consul general

Local civil registry office where the record is kept/where the interested party is presently residing or domiciled

Rules 92-97; A.M. No. 03-02-05-SC

Guardianship Family Court – In case of minors RTC – In cases other than minors

1. If resident- place where minor/ incompetent resides 2. If non-resident- place where minor/ incompetent has property

A.M. No. 02-06-02-SC

Domestic Adoption Family Court Where the adopter resides

A.M. No. 02-6-02-SC

Rescission of Adoption

Family Court Where the adoptee resides

A.M. No. 02-6-02-SC

Inter-country Adoption

Family Court or the Inter-Country Adoption Board

Where the adopter resides

Rule 99 Custody of Minors Family Court Where petitioner resides or where the minor may be found

Rule 105 Judicial Approval of Voluntary Recognition of Minor Natural Children

Family Court Where the child resides

Family Code

Summary Proceedings

Family Court Where the petitioner resides or where the child resides if it involves minors

R.A. 8369 Actions mentioned in the Family Courts Act

1. Petitions on Foster care and Temporary Custody 2. Declaration of Nullity of Marriage 3. Cases of Domestic Violence Against Women and Children

Family Court Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

Rule 102 Habeas Corpus SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction

Where the aggrieved party is detained (RTC)

A.M. No. 03-04-04-SC

Habeas Corpus in Relation to Custody of Minors

Family Court, CA, SC

Where the petitioner resides or where the minor may be found

A.M. No. 07-9-12-SC

Writ of Amparo RTC, SB, CA or SC or any justice thereof

Where the threat, act or omission was committed or any of its elements occurred

A.M. No. 08-1-16-SC

Writ of habeas data RTC, SB, CA or SC or any justice thereof

Where the 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

A.M. No. 09-6-8-SC

Writ of Kalikasan SC or any stations of CA

Where the unlawful act, omission or threat was committed

A.M. No.02-11-10-SC

Declaration of nullity of void marriage/Annulment of marriage

Family Court Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

A.M. No. 02-11-11-SC

Legal Separation Family Court Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident

respondent, where he may be found at the election of the petitioner

Special Proceeding Publication of Order of Hearing Administrative change of first name or nickname Once a week for 2 consecutive weeksCorporate rehabilitation Settlement of estate of deceased persons

Once a week for 3 consecutive weeks

Judicial change of name Judicial cancellation or correction of entries in the civil registry Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term)Declaration of absence Once a week for 3 consecutive weeks

Note: The declaration of absence shall not take effect until six (6)

months after its publication in a newspaper of general circulation.

Escheat Once a week for 6 consecutive weeks Guardianship

None

Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan

1. Petitions on foster care and temporary custody

2. Cases of domestic violence against women and children

RULE 73 VENUE AND PROCESSESRegional Trial Court Metropolitan Trial Court Gross value of the estate exceeds 500,000 (within Metro Manila) or 400,000 (outside Metro Manila)

Gross value of the estate does not exceed 500,000/400,00

Resident Non-Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien

Court of the province/city wherein he had the estate

RULE 74 SUMMARY SETTLEMENTS OF ESTATES

EXTRA JUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

No court intervention Requires summary adjudication The value of the estate is immaterial

Gross value of the estate must not exceed P10,000

Allowed only in intestate succession

Allowed in both testate and intestate succession

There must be no outstanding debts of the estate at the time of the settlement

Available even if there are debts, it is the court which will make provision for its payment

Resorted at the instance and by agreement of all heirs

May be instituted by any interested party even a creditor of the estate without the consent of all the heirs

Amount of bond is equal to the value of personal property

Amount of bond is to be determined by the court

Bond is filed with the Register of Deeds

Bond is filed with the court

REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE

A: CLAIM AGAINST THE BOND OR REAL ESTATE

GROUNDS: (Section 4, Rule 74) a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate.

Should be brought within 2 years after settlement and distribution of the estate

COMPEL THE SETTLEMENT OF ESTATE IN COURTS

Should be brought within 2 years after settlement and distribution of the estate

ACTION FOR RESCISSION It must be availed of within 5 years from the time the right of action accrues. (Art. 1149, NCC) Also applicable in judicial

proceedings ACTION FOR RECONVEYANCE OF REAL PROPERTY

GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible. (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or

c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer.

Note: May be availed of after judgment but before its finality or appeal by the aggrieved party.

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered. (Rule 38.) Also applicable in judicial proceedings.

ACTION TO ANNUL A DEED OF On the ground of fraud which

EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT

should be filed within 4 years from the discovery of fraud.

ORDINARY ACTION BUT NOT AGAINST THE BOND

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues. [Art. 1144(c)] Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILLS

Uncontested Contested Notarial will The court may grant

allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law. (Sec. 5, Rule 76)

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will. (Sec. 11, Rule 76)

Holographic will At least one witness who knows the handwriting and

The will shall be allowed if at least three witnesses who

signature of the testator explicitly declares that the will and signature are in the handwriting of the testator. (Sec. 5, Rule 76)

know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator. (Sec. 11, Rule 76)

ULE 77 LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED

EXECUTOR ADMINISTRATORNominated by the testator and appointed by the court

Appointed by the court in case the testator did not appoint an executor or if the executor refused appointment (administrator with a will annexed) or if the will was disallowed or if a person did not make a will (intestate succession)

Must present will to the court within 20 days after he knows of

No such duty.

the death of the testator or after he knew that he was appointed as executor (if he obtained such knowledge after death of the testator), unless the will has reached the court in any mannerTestator may provide that he may serve without a bond (BUT the court may direct him to give a bond conditioned only to pay debts)

Required unless exempted by law

Compensation may be provided for by the testator in the will, otherwise Sec 7, Rule 85 will be allowed

Compensation is governed by Sec 7 Rule 85

RULE 80 SPECIAL ADMINISTRATOR

REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR Order of Appointment may be the subject of an appeal

Order of Appointment is interlocutory and hence not appealable

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

Cannot pay the debts of the estate

Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed

Appointed when there is delay in granting letters testamentary or administration

RULE 86 CLAIMS AGAINST THE ESTATE

Claims extinguished by death Actions which survivePersonal to either of the parties and is extinguished by death

claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased

Examples: legal separation, annulment of marriage, declaration of nullity of marriage

Examples: contractual money claim

RULE 87- ACTIONS BY AND AGAINST EXECUTORS

Rule 87 sec 1 Rule 86 Sec 5Actions that may be commenced directly against the executor and administrator

Actions that may be commenced against the estate of the deceased

1. Recovery or real or personal property ( or any interest therein) from the estate;

2. Enforcement of a lien thereon

3. Action to recover damages arising from tort

Money claims, debt incurred by the deceased during his lifetime arising from contract

Claims for funeral expenses or for the last illness of the decedentJudgment for money against decedent

RULE 97- TERMINATION OF GUARDIANSHIP

Estate/intestate court Guardianship CourtRules 73-90 Rules 92-97Statute of non-claims No Statute of non-claimsCan pass upon the merits of the claim

Cannot pass upon the merits of the claim

Sale of Personal properties first (Rule 89)

Sale of Personal or real properties first ( Rule 95)

Bond DEFEATS the petition for Authority to Sell

Bond DOES NOT DEFEAT the Petition for Authority to Sell

Publication (rule 89) Personal Notice (Rule 95)INDEFINITE effectivity of ONE (1) year effectivity of

“Authority to sell” “Authority to Sell”May appoint a SPECIAL administrator

NO such thing as a Special Guardian

Remedy: Appeal from order appointing guardian

Minor Incompetent Who are Not MinorsWho may file

1. Any relative; or2. Other person on behalf of

a minor; or3. The minor himself if 14

yrs of age or over; or4. The secretary of Social

Welfare and Development AND by

5. The Secretary of Health in case of an insane minor who needs to be

1. Any relative;2. Friend; or3. Other person on behalf of

the resident incompetent who has no parents or lawful guardian; or

4. The director of health in favor of an insane person who should be hospitalized or in favor of an isolated leper; (sec 1)

hospitalized (Sec 2 AM 03-02-05 SC)

5. Any one interested in the estate of a non-resident incompetent (sec 6)

Contents of Petition1. The jurisdictional facts:2. The name, age and

resident of the prospective ward;

3. The ground rendering the appointment necessary or convenient

4. The death of the parents of the minor or the termination, deprivation or suspension of their parental authority

5. The remarriage of the minor’s surviving parent

6. The names, ages and residences of relative, within the 4th civil degree of minor, and of persons having him in their care and custody;

7. The probable value, character and location of the property of the minor; and

8. The name, age and residence of the person for whom letters of guardianship are prayed (sec 7 Am 03-02-05-SC)

1. The jurisdictional facts;2. The incompetency

rendering the appointment necessary or convenient;

3. The names, ages, and residences of the relatives of the incompetent and of the persons having him in their care;

4. The probable value and character of his estate

5. The name of the person for whom letters of guardianship are prayed (sec 2 Rule 93)

Grounds for Termination1. The ward has come of

age; or2. Has died

3. Competency of the ward has been judicially determined;

4. Guardianship is no longer necessary

5. Death of guardian6. Death of Ward

RULE 98 TRUSTEES

EXECUTOR/ ADMINISTRATOR TRUSTEE Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court

Accounts must be UNDER OATH and filed ANNUALLY

Court that has jurisdiction may be MTC or RTC

Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or is removed in a contractual trust,

RTC has jurisdiction in the appointment of new trustee

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs)

May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

Order of sale has NO TIME LIMIT Order of sale has NO TIME LIMIT Approved by the court to settle estate of the decedent

Appointed to carry into effect the provisions of a will or written instrument (contractual trust)

NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts)

May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption

Services of executors or administrator is terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs

Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract)

MUST PAY the debts of the estate NO OBLIGATION TO PAY the debts of the beneficiaries or trustor

EXECUTOR/ADMINISTRATOR

GUARDIAN TRUSTEE

Accounts are NOT under oath and EXCEPT for initial and final submission of accounts, they shall be filed only at such times as may be REQUIRED by the court

Accounts must be UNDER OATH and filed ANNUALLY

Accounts must be UNDER OATH and filed ANNUALLY

Court that has Court which has Court which has

jurisdiction may be MTC or RTC

jurisdiction is RTC (incompetent) or FAMILY COURT (minors)

jurisdiction is RTC or MTC if appointed to carry into effect provisions of a will; if trustees dies, resigns or removed in a contractual trust, RTC has jurisdiction in the appointment of new trustees.

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees. (upon APPLICATION to the court with written NOTICE to the heirs)

May sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate ward or the sale or encumbrance is for the benefit of ward upon ORDER of the court

May sell or encumber property of estate held in trust if necessary or expedient upon ORDER of the court

Order of Sale has NO TIME LIMIT

Order of Sale is valid is ONLY 1 YEAR after grant of the same

Order of sale has NO TIME LIMIT

Appointed by the court to SETTLE estate of decedent

Appointed as GUARDIAN

Appointed to CARRY INTO EFFECT the provisions of a will or written instrument (contractual trust)

NOT EXEMPTED from filing bond even if such exemption is provided in the will (bond is only conditioned upon payment of debts)

Must ALWAYS FILE A BOND

May be EXEMPTED from filing bond if provided in the will or if beneficiaries requested exemption

Services of executor or administrator is terminated UPON PAYMENT OF DEBTS of the estate and

Guardianship is terminated upon attainment of age of MAJORITY of the minor or upon

Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after

distribution of property to heirs

gaining COMPETENCY in the case of an incompetent (need court order for the latter)

expiration of trust (period may be provided for in the will or trust contract)

MUST PAY the debts of the estate

MUST PAY the debts of the ward

NO OBLIGATION to pay debts of beneficiary or trustor

DOMESTIC INTER-COUNTRY Judicial Adoption Extrajudicial

AdoptionJurisdiction Family Court where

adopter resides Inter-Country Adoption Board (Petition may also be filed with Family Court where adoptee resides; FC to endorse petition to ICAB)

Who May adopt 1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for

A foreigner must meet the following requirements in order to be qualified to adopt in the Philippines under the Inter-Country Adoption Act: a) GR: at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time

his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent; 2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

of application;

XPN: if the adopter is the parent by nature of the child to be adopted or the spouse of such parent, he/she is not required to meet the above age requirement; b) If married, his/her spouse must jointly file for the adoption; c) With capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor

(i) A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; (ii) One who seeks to adopt the legitimate child of his Filipino spouse; (iii) One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) Iif one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or (ii) If one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) If the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

in his/her country; d) Not convicted of a crime involving moral turpitude; e) Eligible to adopt under his/her national law; f) In a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted; g) Agrees to uphold the basic rights of the child as embodied under Philippine family laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act; h) Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws; and i) Possesses all the qualifications and none of the

disqualifications provided herein and in other applicable Philippine laws.

Supervised Trial Custody

Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody)

Within the country of the adopter (Mandatory; all expenses borne by adopter)

Supervised Trial Custody

Within the Philippines (6 month period discretionary upon the court to shorten period or exempt parties from trial custody)

Within the country of the adopter (Mandatory; all expenses borne by adopter)

RULE 102 Habeas Corpus

Certiorari, prohibition and mandamus

Habeas corpus

SPECIAL CIVIL ACTION (rule 65) SPECIAL PROCEEDINGIt reaches the RECORD. Concerned with errors committed by a court

It reaches the BODY but not the record inquiry on the legality of the detention

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

Failure to file return constitutes CONTEMPT (indirect)

COURT and PREVAILING PARTY are named as respondents

Respondent is the DETAINER

PERIOD FOR APPEAL Special Proceedings 30 days (Record on Appeal

required) Habeas Corpus 48 hours from service of

judgment

Writ of Amparo 5 working days from date of notice of judgment

Writ of Habeas Data 5 working days from date of notice of judgment

Writ of Kalikasan 15 days from notice of judgment or denial of motion for reconsideration

Habeas Corpus Amparo Habeas Data Kalikasan Who may file a petition

1. Party for whose relief it is intended; or

2. Any person on his behalf

In the following order: 1. Any member of the immediate family 2. Any ascendant, descendant, or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity

1. Any aggrieved party; 2. However, in cases of extralegal killings and enforced disappearances: a. Any member of the immediate family b. Any ascendant, descendant, or

A natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency.

3. Any concerned citizen, organization, association or institution

collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity

RespondentMay 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.

Public official or employee, private individual or entity.

Enforceability of the writIf granted by SC or CA: enforceable anywhere In the Philippines; If granted by RTC: enforceable only within the judicial district

Enforceable anywhere in the Philippines regardless of who issued the same

Enforceable anywhere in the Philippines

Docket feesPayment is required Note: Rule on indigent petitioner applies.

Petitioner is exempted from payment

Payment is required. Note: Rule on indigent petitioner applies.

Petitioner is exempted from payment

Service of writ

Served upon the person to whom it is directed, and if not found or has not the prisoner in his custody, to the other person having or exercising such custody

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service

Served upon the respondent personally; or substituted service.

Person who makes the returnOfficer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found

Respondent Respondent Respondent

When to file a return

On the day specified in the writ

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits.

The respondent shall file a verified written return together with supporting affidavits within 5 working days from service of the writ, which period may be reasonably extended by the Court for

Within non- extendible period of 10 days after the service of writ.

justifiable reasons.

Habeas Corpus Amparo Habeas Data Kalikasan Return

If granted by the SC or CA: returnable before the court or any member or before RTC or any judge thereof; If granted by RTC: returnable before such court

If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred; If issued by SC or any of its justices: returnable before such court, or before SB,

If issued by RTC: returnable before such court; If issued by SB or CA or any of their justices: returnable before such court 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 SC or any of its

If issued by SC, returnable before such court or CA.

CA, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

justices: returnable before such court, or before SB, CA, 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

General denialNot prohibited. Not allowed. Not allowed. Not allowed. Liability of the person to whom the writ is directed if he refuses to make a return

Forfeit to the aggrieved party the sum of P1000, and may also be punished for contempt.

Imprisonment or fine for committing contempt.

Imprisonment or fine for committing contempt.

Indirect contempt.

HearingDate and time of hearing is 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 of issuance of the writ.

The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.

Period of appealWithin 48 hours from notice of the judgment or final order appealed from.

5 working days from the date of notice of the adverse judgment.

5 working days from the date of notice of the judgment or final order.

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration.

Habeas Corpus Amparo Habeas Data Kalikasan

Prohibited pleadingsNone

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 or cross - claim; 6. Third - party complaint; 7. Reply; 8. Motion to declare respondent in default; 9. Intervention; 10. Memorandum; 11. Motion for reconsideration of interlocutory orders or interim relief orders; and 12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

1. Motion to dismiss; 2. Motion for extension of time to file return; 3. Motion for postponement; 4. Motion for a bill of particulars; 5. Counterclaim or cross-claim; 6. Third-party complaint; 7. Reply; and 8. Motion to declare respondent in default.

INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT PETITIONER RESPONDENT

1. Temporary protection order; 2. Inspection order; 3. Production order; 4. Witness protection order. (Sec. 14)

1. Inspection order; 2. Production order. (Sec. 15)

HOW INITIATED THE COURT SHALL Temporary Protection Order

Upon motion or motu proprio

Order the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

Inspection Order Upon verified motion and after due hearing

Order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

Production Order Upon verified motion and after due hearing

order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs,

objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

Witness Protection Order

Upon Motion or Motu Proprio

refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

RULE 107 ABSENTEESABSENTEE INCOMPETENTOne who disappears from his domicile and his whereabouts being unknown and without having left an agent to administer his property or the power of agent has expired

Includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, and persons who

are unable to take care of themselves and manage their property by reason of age, disease, weak mind and other similar causes

Order of hearing must be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where absentee resides and declaration of absence will only take effect 6 months after its publication in a newspaper of general circulation designated by court and in the Official Gazette.

Notice of petition for guardianship for NONRESIDENT may be published when court deems it proper

Period of absence Consequence0-2 years Petition for Appointment of

Representative (unless the absentee left an agent to administer his property)

2 years to 7 years(5 years to 7 years in case the absentee left an agent)

Petition for declaration of absence and appointment of administrator or trustee may be filed

Beyond 7 years(Absence of years under extraordinary circumstances)

Considered dead for all intents and purposes EXCEPT for purposes of succession (if disappeared under extraordinary circumstances, considered dead for all purposes, even succession): For purposes of Marriage: 4 years continuous absence shall be sufficient for present spouse to remarry, 2 years only under extraordinary circumstance.

CRIMINAL PROCEDURE

Criminal Law Criminal Procedure Substantive Remedial It declares what acts are punishable

It provides how the act is to be punished

It defines crimes, treats of their nature and provides for their

It provides for the method by which a person accused of a

punishment crime is arrested, tried or punished.

Jurisdiction Over the Subject Matter

Jurisdiction Over the Person of the Accused

Refers to the authority of the court to hear and determine a particular criminal case

Requires that the person charged with the offense must have been brought in to its forum for trial, forcibly by warrant of arrest or upon his voluntary submission to the court

Derived from the law. It can never be acquired solely by consent of the accused.

May be acquired by consent of the accused (by voluntary appearance) or by waiver of objections.

Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived.

If he fails to make his objection on time, he will be deemed to have waived it.

RULE 110 PROSECUTION OF OFFENSES

Criminal action Criminal prosecutionInstituted once a complaint has been filed in the proper officer or court as the case may be

Instituted once the information is filed by prosecutor in court

Generally bars the running of the prescriptive period of the offense

No such effect

Pardon Consent Refers to past acts Refers to future acts In order to absolve the accused from liability, it must be extended to both offenders

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse

Given after the commission of the crime

Given before the commission of the crime

complaint InformationSubscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated

Subscribed by the fiscal (indispensable requirement)

It may be filed either in the court or in the prosecutor’s office

It is filed with the court

It must be made under oath It need not be under oath. The fiscal who files it is already acting under his oath of office

It usually refers to private crimes It usually refers to public crimes

Amendment Substitution Involves the same attempted, frustrated, necessarily includes or necessarily included offense

Involves different offenses

May involve either formal or Involves substantial change from

substantial changes the original charge Amendment before the plea is entered can be effected without leave of court.

It must be with leave of court as the original information has to be dismissed.

An amendment as to form will not require another preliminary investigation and retaking of plea of the accused.

Substitution of the information entails another preliminary investigation and plea to the new information.

An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy.

Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge; hence the accused cannot claim double jeopardy.

RULE 113 ARRESTMethod of arrest Exception to the rule on giving

information Arrest by officer by virtue of a warrant (Sec. 7)

The officer shall inform the

person to be arrested the cause of the arrest and the fact that the warrant has been issued for his arrest. Note: The officer need not have the warrant in his possession at the time of the arrest but must show the same after the arrest, if the person arrested so requires.

1. When the person to be arrested flees; 2. When he forcibly resists before the officer has an opportunity to inform him; and 3. When the giving of such information will imperil the arrest.

Arrest by officer without a warrant (Sec. 8)The officer shall inform the person to be arrested of his authority and the cause of the arrest w/out a warrant

1. when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission; 2. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. when the giving of such information will imperil the arrest.

Arrest by a private person (Sec. 9)The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. Note: Private person must deliver the arrested person to the nearest police station or jail, otherwise, he may be held criminally liable for illegal detention.

1. when the person to be arrested is engaged in the commission of an offense or is pursued immediately its commission; 2. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and 3. when the giving of such information will imperil the arrest.

Probable Cause as determined by the Prosecutor

Probable Cause as determined by the Judge

For the filing of an information in court

For the issuance of warrant

Executive function Judicial function Basis: reasonable ground to believe that a crime has been committed

Basis: the report and the supporting documents submitted by the fiscal during the preliminary investigation and the supporting affidavits that may be required to be submitted.

RULE 114 BAIL

Person in custody of the law Jurisdiction over the personRequired before the court can act upon the application for bail

Required for the adjudication of reliefs other than bail sought by the defendant (e.g. motion to quash)

One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant and the accused files a motion to quash the warrant of arrest before arraignment

One can be subject to the jurisdiction of the court over his person and yet not be in the custody of the law, such as when the accused escapes custody after he entered his plea and his trial has already commenced.

Custody of the law is literally custody over the body of the accused

As long as the accused has been arrested or has surrendered and thereafter entered a plea, even if he subsequently flees the court still has jurisdiction over the person of the accused and can continue trial though without the custody of the body of the accused

BAIL BOND RECOGNIZANCE An obligation under seal given by the accused with one or more sureties, and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform

An obligation of record entered into before some court or magistrate duly authorized to take it with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

ON REDUCED BAIL OR ON HIS OWN RECOGNIZANCE

1. The offense charged is a violation of an ordinance, light felony, or a criminal offense the imposable penalty thereof does not exceed 6 months of imprisonment and/ or fine of P2,000 under RA 6036. 2. Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty

without application of the Indeterminate Sentence Law or any modifying circumstances, in which case the court, in its discretion may allow his release on his own recognizance. 3. Where the accused has applied for probation pending resolution of the case but no bail was filed or the accused is incapable of filing one. 4. In case of youthful offender held for physical and mental examination, trial or appeal if he is unable to furnish bail and under circumstances envisage in PD 603 as amended. Espiritu v. Jovellanos AM No MTJ 97-1139 (1997)

UNDER THE REVISED RULES ON SUMMARY PROCEDURE

GR: NO bail XPNs: 1.When a warrant of arrest is issued for failure to appear when required by the court; 2.When the accused: a.is a recidivist; b.is a fugitive from justice; c.is charged with physical injuries; d.does not reside in the place where the violation of the law or the ordinance is committed; or he has no known residence.

ORDER OF FORFEITURE ORDER OF CANCELLATION Conditional and interlocutory. It is not appealable

Not independent of the order of forfeiture. It is a judgment ultimately determining the liability of the surety thereunder and therefore final. Execution may issue at once.

RULE 115 RIGHTS OF THE ACCUSED

Ordinary Witness Accused as Witness May be compelled to take the witness stand and claim the right against self-incrimination as each question requiring an incriminating answer is asked

May altogether refuse to take the witness stand and refuse to answer any and all questions. Note: If the accused testifies in his own behalf, then he may be cross-examined as any other witness. He may not, on cross examination, refuse to answer any question on the ground that the answer will give or the evidence that he will produce would have tendency to

him. incriminate him for the crime that he was charged. But he may refuse to answer any question incriminating him for an offense distinct from that which he is charged.

May be cross-examined as to any matter stated in the direct examination or connected therewith.

May be cross examined but only on matters covered by his direct examination. Note: If the accused refuses to be cross-examined, the testimony of the accused who testifies on his own behalf will not be given weight and will have no probative value because the prosecution will not be able to test its credibility.

Use Immunity Transactional Immunity Witness’ compelled testimony and the fruits thereof cannot be used in subsequent prosecution of a crime against him.

Witness immune from prosecution of a crime to which his compelled testimony relates.

Witness can still be prosecuted but the compelled testimony cannot be used against him

Witness cannot be prosecuted at all

RULE 116 ARRAIGNMENT AND PLEA

How Jurisdiction is acquiredCivil cases Criminal cases

Subject Matter Law Law PenaltyPerson Summons Arrest or SurrenderIssue Answer Plea

Purpose of the bill of particularsCriminal cases Civil CasesEnter a valid plea To file a responsive pleadingOnly the accused and not the offended party, can file a bill of particulars as he will enter his plea

Either of the parties that will file a responsive pleading can ask for a bill of particulars

To prepare for trial Not necessarily to prepare for trial as the respondent can opt for the modes of discovery

RULE 117 MOTION TO DISMISS

MOTION TO QUASH DEMURRER TO EVIDENCEFiled before the defendant enters his plea

Filed after the prosecution has rested its case

Does not go into the merits of the Based upon the inadequacy of the

case but is anchored on matters not directly related to the question of guilt or innocence of the accused

evidence adduced by the prosecution in support of the accusation

Governed by Rule 117 of the Rules of Criminal Procedure

Governed by Rule 119 of the Rules of Criminal Procedure

Pardon Amnesty Granted by the Chief Executive. Proclaimed by the President, but

it has to be with the concurrence of Congress.

It is a private act which must be pleaded and proved by the person pardoned because the courts take no notice of it.

It is a public act which the courts have to take judicial notice of.

Granted to one after conviction. Granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.

Relieves the offender from the consequences of the offense of which he is convicted. It only serves as a relief from the punishment but it does not restore the political rights of the person, unless it is expressly provided for in the pardon.

Abolishes and puts into oblivion the offense itself. It is as though the offense was never committed.

Dismissal Acquittal Does not decide on the merits, does not determine the defendant’s guilt or innocence

Always based on the merits. Defendant is acquitted because guilt was not proven beyond reasonable doubt

Double jeopardy will not always attach

Double jeopardy always attaches

RULE 118 PRE TRIAL

Pre-trial in Civil Cases Pre-trial in Criminal Cases The presence of the defendant is required unless he is duly represented at the pre-trial conference by his counsel with

The accused is merely required to sign the written agreement arrived at in the pre-trial conference, if he is in conformity

the requisite authority to enter into a compromise agreement. Failing in either of which, the case shall proceed as if the defendant has been declared in default.

therewith. Unless otherwise required by the court, his presence therefore is not indispensable. Note: This is aside from the consideration that the accused may waive his presence at all stages of the criminal action, except at the arraignment, promulgation of judgment or when required to appear for identification.

The presence of the plaintiff is required unless excused therefrom for valid cause or if he is represented therein by a person fully authorized in writing to perform the acts specified in Sec. 4, Rule 18. Absent such justification, the case may be dismissed with or without prejudice.

The presence of the private offended party is not required. Instead, he is priorly required to appear at the arraignment of the accused for purpose of plea bargaining, determination of civil liability and other matters requiring his presence. Should he fail to appear therein and the accused offers to plead guilty to a lesser offense necessarily included in the offense charged, the accused may be allowed to do so with the conformity of the trial prosecutor alone.

A pre-trial brief is required with the particulars and the sanctions provided by Sec. 6, Rule 18.

The filing of a pre-trial brief is not required. It only requires attendance at a pre-trial conference to consider the matters stated in Sec. 1, Rule 118. (1997 Bar Question)

RULE 119 TRIAL

Conditional examination of witnessDefense witness Prosecution Witness

Requirement 1. Witness is 1. Witness is

sick2. Witness

reside 100km from the place of trial

sick

Who examines 1. Judge of the proper court

2. Member of the bar

3. Inferior court

1. Before the court where the case is pending

Absence Notwithstanding the absence of the prosecutor, the examination shall proceed

Notwithstanding the absence of the accused, the examination shall proceed

Witness Protection Program Rules of Court The offense in which the testimony is to be used is limited only to grave felony.

It has no qualifications. It applies to all felonies.

The immunity is granted by DOJ. The immunity is granted by court. The witness is automatically entitled to certain rights and benefits.

The witness so discharged must still apply for the enjoyment of said rights and benefits in the DOJ.

The witness need not be charged elsewhere.

He is charged in court as one of the accused as stated in the information.

No information may thus be filed against the witness.

The charges against him shall be dropped and the same operates as an acquittal.

What is the rule on demurrer of evidence? A: How made

1. Court on its own initiative; or

2. Upon filing of the accused for demurrer of evidence: a. With leave of court; or b. Without leave of court

When madeAfter the prosecution rests its case

GroundInsufficiency of evidence

EffectThe court may dismiss the case (Sec. 23)

Demurrer With Leave of Court Demurrer Without Leave of Court

If leave of court is denied, the accused may proceed with presenting his evidence

If demurrer is denied, it is tantamount to a waiver of the accused’s right to present evidence and as a consequence the case will be submitted for judgment on the basis of the evidence for the prosecution.

If leave of court is granted, the accused may file the demurrer to evidence within ten (10) days. The prosecution may however, oppose the demurrer to evidence within a non-extendible period of ten (10) days from the receipt of the demurrer.

If demurrer is granted, the case will be dismissed, and will result to an acquittal of the accused (Sec.23).

RULE 120 JUDGMENT

Modification of judgment New trialNo new hearings or proceedings of any kind of change in the record or evidence. A simple modification is made on the basis of what is on record

Irregularities are expunged from the record and/ or new evidence is introduced.

Sentence imposed Period of probationNot more than one (1) year Not more than two (2) yearsMore than one (1) year Not more than six (6) yearsFine only, but offender serves subsidiary imprisonment

At least equal to the number of days of subsidiary imprisonment but not more than twice such period

RULE 121 NEW TRIAL OR RECONSIDERATION

New trial Reconsideration Rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken

May be filed in order to correct errors of law or fact in the judgment. It does not require any further proceeding.

Grounds: 1. Errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial.

2. New and material evidence has been discovered which the accused could not, with reasonable diligence, have discovered and produced at the trial and which if introduced and admitted would probably change the judgment (Sec. 2).

3.Other grounds which the court may consider in the exercise of its jurisdiction : a. Negligence or incompetency of counsel or mistake which is so gross amounting to deprivation of the substantial rights of the accused and due process;

(Aguilar v. Court of Appeals GR No. 114282, November 28, 1995) b. Recantation of a witness where there is no evidence sustaining the judgment of conviction other than the testimony of such witness; (Tan Ang Bun v. Court of Appeals GR No c. Improvident plea of guilty which may be withdrawn;

Grounds: 1. Errors of law; or 2. Errors of fact (Sec. 3)Note: The principle underlying this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from being taken. The grant by the court of reconsideration should require no further proceedings, such as taking of additional proof..

d. Disqualification of attorney de officio to represent accused in trial.

Recantation Affidavit of Desistance A witness who previously gave a testimony subsequently declares that his statements are untrue publicly (People v. Ballabare, G.R. No. 108871, Nov. 19, 1996).

The complainant states that he did not really intend to institute the case and he is no longer interested in testifying or prosecuting.

GR: It is not a ground for granting a new trial and are hardly given weight XPN: When there is no evidence sustaining the judgment of conviction other than the testimony of the recanting witness (Tan Ang Bun v. CA, G.R. No. L-47747, Feb. 15, 1990).

It is not by itself a ground for dismissal of the action (People v. Ramirez, G.R. Nos. 150079-80, June 10, 2004). It is merely an additional ground to buttress the defense and not a sole consideration for acquittal (People v. Ballabare, G.R. No. 108871, Nov. 19, 1996).

It is a ground for dismissing the case ONLY if the prosecution can no longer prove the guilt of the accused beyond reasonable doubt without the testimony of the offended party

Motion for Reconsideration

New Trial Re-opening of the Case

Filed after judgment is rendered but before the finality thereof

Filed after judgment is rendered but before the finality thereof.

Made by the court before the judgment is rendered in the exercise of sound discretion.

Made by the court on motion of the accused or at its own instance but with the consent of the accused

Made by the court on motion of the accused or at its own instance but with the consent of the accused.

Does not require the consent of the accused; may be at the instance of either party who can thereafter present additional evidence.

PURPOSE: To ask the court to reconsider its findings of law so as to conform to the law applicable in the case

PURPOSE: To permit the reception of new evidence and extend the proceedings

PURPOSE: To permit the reception of new evidence and extend the proceedings

RULE 122 APPEAL

Final Judgment Final OrderA judgment which would become final if no appeal is taken

Disposes of the whole subject matter or terminates a particular issue leaving nothing to be done but to enforce by execution what has been terminated.

Appeal of a Judgment Appeal of an OrderMust be perfected within 15 days from promulgation

Must be perfected within 15 days from notice of the final order

From Decision of Appeal to How

In cases decided by MTC, MetroTC, MCTC

RTC ORDINARY APPEAL1. By NOTICE

OF APPEAL filed with the court that rendered the decision and;

2. BY SERVICE of COPY to adverse party

RTC, when there are questions of both fact and law

CA PETITION FOR REVIEW (RULE 42)In cases decided by RTC in the appellate jurisdiction

ORDINARY APPEAL1. By NOTICE of

APPEAL filed with the court that rendered the decision and;

2. BY SERVICE of COPY to adverse party

RTC, when the death penalty is imposed

CA AUTOMATICE REVIEW:

NO notice required

RTC, in criminal cases CA ORDINARY APPEAL:

involving offense for which the penalty imposed is reclusion perpetua or life imprisonment and those other offense, which although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to more serious offense

1. BY NOTICE of appeal filed with the court that rendered the decision and;

2. By SERVICE OF COPY to adverse party

RTC, when ONLY questions of LAW are involved

SC PETITION for REVIEW on CERTIORARI

In cases decided by CA SC PETITION for REVIEW on CERTIORARI

When the death penalty is imposed in a lower court and the CA affirmed

SC AUTOMATIC REVIEW: No notice required.

From decision of Appeal to How taken

MTC , RTC ORDINARY APPEAL1. File a notice of appeal with the MTC (the court that rendered the decision); 2. Serve a copy of the notice to the adverse party.

RTC 1. Exercising its original jurisdiction for offenses with imposable penalties less than reclusion perpetua or life imprisonment

CA 1. File a notice of appeal with the RTC; 2. Serve a copy of the notice to the adverse party.

File a petition for review under Rule 42. 2. Exercising its appellate

jurisdiction

1. File a notice of appeal with the RTC; 2. Serve a copy of the notice to the adverse party.

3. Where the imposable penalty is: a. life imprisonment or reclusion perpetua; or b. a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable reclusion perpetua or life imprisonment

Automatic review to CA (Sec. 10)

4. Where the imposable penalty is death

1. All other appeals except: a. Decision of RTC where the imposable penalty is life imprisonment or reclusion perpetuaor a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the offense punishable by reclusion perpetua or life imprisonment; and b. Decisions of RTC imposing the penalty of death.

SC Petition for review on certiorari via Rule 45

Automatic review (Sec. 13, Rule 124) 2. CA

a. When it finds that death penalty should be imposed

Notice of appeal (Sec. 13, Rule 124) b. Where it imposes reclusion

perpetua, life imprisonment or a lesser penalty

File a notice of appeal 3. Sandiganbayan a. Exercising its appellate jurisdiction for offenses where the imposable penalty is reclusion perpetua or life imprisonment

File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD 1606 as b. Exercising its original

amended by R.A. 8249) jurisdiction for offenses where the imposable penalty is reclusion perpetua and life imprisonment

Automatic review (Sec. 13, Rule 124; Sec. 5, PD 1606 as amended by R.A. 8249)

c. Exercising its original or appellate jurisdiction where it finds that the penalty to be imposed is death

Petition for review on certiorari via Rule 45 d. Cases not falling in paragraphs

a and b above

RULE 126 SEARCH AND SEIZURE

Warrant of Arrest Search Warrant Order directed to the peace officer to execute the warrant by taking the person stated therein into custody so that he may be bound to answer for the commission of the offense.

Order in writing in the name of the Republic of the Philippines signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court.

Does not become stale. Validity is for 10 days only. May be served on any day and at any time of day or night.

To be served only in daytime unless the affidavit alleges that the property is on the person or in the place to be searched.

Searching examination of witnesses is not necessary.

Must personally conduct an examination of the complainant and the witnesses.

Judge is merely called upon to examine and evaluate the report of the prosecutor and the evidence

Examination must be probing. Not enough to merely adopt the questions and answers asked by a previous investigator

EVIDENCE

Civil Cases Criminal Cases QUANTUM OF EVIDENCE

The party having the burden of proof must prove his claim by a preponderance of evidence

The guilt of the accused has to be proven beyond reasonable doubt

OFFER OF COMPROMISE

An offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror

In criminal cases EXCEPT those involving quasi-offenses or those allowed by law to be compromised,

An offer of compromise by the accused may be received in evidence as an implied admission of guilt

GENERAL DENIAL General denial is ALLOWED

General denial is NOT ALLOWED

WITHDRAWAL OF PLEA/ADMISSION

Judicial admission withdrawn BECOMES extrajudicial admission

Withdrawn is plea is INADMISSIBLE

EQUIPONDERANCE OF EVIDENCE

Party who loses is the one who has the burden of proof

Accused is acquitted

PRESENCE OF CIRCUMSTANTIAL EVIDENCE

One suffices More than one (1) is required

PRIVILEGED COMMUNICATION (DOCTOR-PATIENT)

applicable Not applicable

COMPULSION AS A WITNESS

A party or defendant MAY be COMPELLED to be a witness

The accused CANNOT be compelled to be a witness

CROSS EXAMINATION IN SUMMARY PROCEDURE

NOT applicable APPLICABLE

PRESUMPTION OF INNOCENCE

Generally, there exists NO presumption in favor of either party, except in cases specifically provided for by law

The accused enjoys the constitutional presumption of innocence

Proof Evidence The effect when the requisite quantum of evidence of a particular fact has been duly admitted and given weight

The mode and manner of proving competent facts in judicial proceedings

The probative effect of evidence The means of proof

Factum Probandum Factum Probans The ultimate fact sought to be established

The intermediate facts

Proposition to be established Materials which establish the proposition

Hypothetical Existent

Admissibility Probative Value Question of whether certain pieces of evidence are to be considered at all.

Question of whether the admitted evidence proves an issue.

admissibility WeightDetermined by its relevance and competence

Pertains to its tendency to convince and persuade

Logic and law Guidelines provided in Rule 133 and decisional rules of Supreme Court

MULTIPLE Evidence that is plainly relevant and competent for two or more purposes will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites of admissibility for other purposes.

CONDITIONAL Evidence appears to be immaterial is admitted by the court subject to the condition that its connection with another fact subsequent to be proved will be established. Otherwise, such fact already received will be stricken off the record at the initiative of the adverse party.

CURATIVE Evidence that is otherwise improper is admitted (despite objection from the other party) to contradict improper evidence presented or introduced by the other party, to cure, contradict or neutralize such improper evidence.

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 witness testifies directly of his 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

COMPETENT CREDIBLE Evidence is not excluded by the rules

Refers to worthiness of belief (believability) Note: That quality which renders a witness worthy of belief (Black’s, 5th Ed., 330)

BURDEN OF PROOF BURDEN OF EVIDENCE Definition It is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Sec. 1, Rule 131)

It is the duty of a party to provide evidence at any stage of the trial until he has established a prima facie case, or the like duty of the adverse party to meet and overthrow that prima facie case thus established. In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation. (Regalado, Vol. II, p. 817, 2008 ed.)

Whether it shifts throughout the proceedings Does not shift as it remains throughout the entire case exactly where the pleadings originally placed it

Shifts to the other party when one party has produced sufficient evidence to be entitled to a ruling in his favor

What determines it Generally determined by the pleadings filed by the party; and whoever asserts the affirmative of the issue has the burden of proof

Generally determined by the developments at the trial, or by the provisions of the substantive law or procedural rules which may relieve the party from presenting evidence on the fact alleged

Effect of a legal presumption It does not shift the burden of proof. However, the one who has the burden of proof is relieved from the time being, from introducing evidence in support of his averment because the presumption stands in the place

It creates a prima facie case and thereby sustains the said burden of evidence on the point which it covers, shifting it to the other party. It relieves those favored thereby of the burden of proving the fact presumed.

of evidence. (Francisco, p. 356, 1992 ed.)

CIVIL CASE Plaintiff Defendant To show the truth of his allegations if the defendant raises a negative defense.

If he raises an affirmative defense.

CRIMINAL CASE Prosecution Accused Because of presumption of innocence

When he admits the offense/crime charged but raises justifying, exempting circumstances, or absolutory causes.

CIVIL CASE Plaintiff Defendant Has to prove his affirmative allegations in the complaint

Has to prove the affirmative allegations in his counterclaim and his affirmative defenses

CRIMINAL CASE Prosecution Accused Has to prove its affirmative allegations in the Information regarding the elements of the crime as well as the attendant circumstances

Has to prove his affirmative allegations regarding the existence of justifying, exempting, absolutory, or mitigating circumstances

PRESUMPTION OF LAW (Praesumptiones Juris)

PRESUMPTION OF FACT (Praesumptiones Hominis)

It is a deduction which the law expressly directs to be made from particular facts.

It is a deduction which reason draws from the facts proved without an express direction from law to that effect.

A certain inference must be made whenever the facts appear which furnish the basis of the inference

Discretion is vested in the tribunal as to drawing the inference

Reduced to fixed rules and form a part of the system of jurisprudence

Derived wholly and directly from the circumstances of the particular case by means of the

common experience of mankind Need not be pleaded or proved if the facts on which they are based are duly averred and established

Has to be pleaded and proved

POSITIVE TESTIMONY NEGATIVE TESTIMONY

1. Affirms that a fact did or did not occur. 2. 3. Entitled to greater weight since the witness represents his personal knowledge of the presence or absence of a fact. 4. 5. When a witness declares of his own knowledge that a fact did not take place, it is an affirmation of a positive testimony.

1. When a witness states that he did not see or know the occurrence of a fact. 2. 3. There is a total disclaimer of personal knowledge, hence without any representation or disavowal that the fact in question could or could not have existed or happened.

DURING TRIAL AFTER TRIAL BUT BEFORE JUDGMENT OR ON APPEAL

The court on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon (Sec. 3).

The proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.

JUDICIAL ADMISSIONS EXTRAJUDICIAL ADMISSIONS Those made in the course of the proceeding in the same case

Those made out of court or in a judicial proceeding other than the one under consideration

Do not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

Regarded as evidence and must be offered as such, otherwise the court will not consider it in deciding the case.

Judicial admissions need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered

Requires formal offer for it to be considered

by the court as established. Conclusive upon the admitter Rebuttable Admissible even if self-serving Not admissible if self-serving Subject to cross-examination Not subject to cross-examination RULE 129 JUDICIAL NOTICE

Mandatory Judicial Notice Discretionary Judicial NoticeCourt is compelled to take judicial notice

Court is NOT compelled to take judicial notice

Takes place at court’s own initiative

May be at court’s own initiative, or on request of a party

No hearing Needs hearing and presentation of evidence

Admissions in civil cases Admissions in Criminal cases Admissions in a pleading which had been withdrawn or superseded by an amended pleading are considered extra-judicial admission

Admissions during arraignment may be withdrawn at any time before the judgment of conviction becomes final, but such plea of guilty later withdrawn is not admissible in evidence against the accused who made the plea.

It is not even considered an extra judicial admission

RULE 130 RULES OF ADMISSIBILITY

Real evidence Demonstrative Evidence Tangible object that played some actual role in the matter that gave rise to the litigation

Tangible evidence that merely illustrates a matter of importance in the litigation

Intends to prove that the object is used in the underlying event

Intends to show that the demonstrative object fairly represents or illustrates what it is alleged to be illustrated

SEC 8 RULE 130 PRODUCTION OF DOCUMENTS: FOR PURPOSES OF EVIDENCE

RULE 27- MODE OF DISCOVERY

Procured by mere notice to the adverse party, which is a condition precedent for the subsequent introduction of secondary evidence by the proponent

Made by proper motion in the trial court and is permitted only upon good cause shown

Presupposes that the document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents

Contemplates a situation wherein the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same

Kinds of ambiguitiesINTRINSIC OR LATENT

EXTRINSIC OR PATENT

INTERMEDIATE

On its face, the writing appears clear and unambiguous but there are collateral matters which make the meaning uncertain

Ambiguity is apparent on the face of the writing and requires that something be added to make the meaning certain

Ambiguity consists in the use of equivocal words susceptible of two or more interpretation

Curable by evidence aliunde

Cannot be cured by evidence aliunde

Curable by evidence aliunde

PAROL EVIDENCE RULE BEST EVIDENCE RULE Presupposes that the original document is available in court

The original document is not available or there is a dispute as to whether said writing is original

Prohibits the varying of the terms of a written agreement

Prohibits the introduction of secondary evidence in lieu of the original document regardless of whether or not it varies the contents of the original

Applies only to documents which are contractual in nature except wills

Applies to all kinds of writings

Can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party affected thereby like a cestui que trust

Can be invoked by any party to an action whether he has participated or not in the writing involved

PUBLIC DOCUMENT PRIVATE DOCUMENT What comprises it

1. The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; 2. Documents acknowledged before a notary public except last wills and testaments; and 3. Public records, kept in the Philippines, of private documents required by law to be entered therein (Sec. 19).

All other writings are private (Sec. 19).

As to authenticity and admissibility as evidence Admissible as evidence without need of further proof

Before any private document offered as

of its genuineness and due execution

authentic is received in evidence, its due execution and authenticity must be proved either: 1. By anyone who saw the document executed or written; or 2. By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be (Sec. 20).

As to persons bound Evidence even against third persons, of the fact which gave rise to its due execution and to the date of the latter

Binds only the parties who executed them or their privies, insofar as due execution and date of the document are concerned

As to validity of certain transactions Certain transactions must be contained in a public document; otherwise they will not be given any validity.

Competency of a Witness Credibility of a Witness Has reference to the basic qualifications of a witness as his capacity to perceive and his

Refers to the believability of the witness and has nothing to do with the law or the rules. (Ibid).

Mental Incapacity Mental Immaturity The incompetence of the witness must exist not at the time of his perception of the facts but at the time he is produced for examination, and consists in his inability to intelligently make known what he has perceived. (Riano, Evidence: A Restatement for the Bar, p. 255, 2009 ed.)

The incompetence of the witness must occur at the time the witness perceives the event including his incapability to relate his perceptions truthfully. (Ibid.)

Child witness Ordinary witnessONLY the judge is allowed to ask questions to a child witness during preliminary examination

Opposing counsels are allowed to ask questions during preliminary examination

Leading questions are allowed Leading questions are generally NOT allowed

Testimony in a narrative form is allowed

Testimony in a narrative form is NOT allowed

The child witness is assisted by a facilitator

An ordinary witness is NOT assisted by a facilitator

Disqualification By Reason Of Marriage (Sec. 22)

Disqualification By Reason Of Marital Privilege (Sec. 24)

Can be invoked only if one of the spouses is a party to the action

Can be claimed whether or not the other spouse is a party to the action

Applies only if the marriage is existing at the time the testimony is offered

Can be claimed even after the marriage is dissolved

Constitutes an absolute prohibition for or against the spouse of the witness

Applies only to confidential communications between the spouses

The married witness would not be allowed to take the stand at all because of the disqualification. Even if the testimony is, for or against the objecting spouse.

The married person is on the stand but the objection of privilege is raised when confidential marital communication is inquired into

Dead Man’s Statute Marital Disqualification Rule Only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified

A complete and absolute disqualification

Applies only to a civil case or special proceeding over the estate of a deceased or insane person

GR: Applies to a civil or criminal case. XPN: In a civil case by one spouse against the other or in a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants

Disqualification by reason of marriage

Marital privilege

Can be invoked only if one of the Can be claimed whether or not

spouses is a party to the action the spouse is a party to the action Applies only if the marriage is existing at the time the testimony is offered

Can be claimed even after the marriage has been dissolved

Constitutes a total prohibition against the spouse of the witness

Applies only to confidential communications between the spouses

Rights against Self-incrimination of the accused from that of an ordinary witness

Accused Ordinary Witness Cannot be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for co-accused or even for himself.

May be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminating question at the time it is put to him.

What are the methods to impeach the adverse party’s witness

BY CONTRADICTORY EVIDENCE

BY EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY, OR INTEGRITY OF THE WITNESS IS BAD

BY PRIOR INCONSISTENT STATEMENTS “LAYING THE PREDICATE"

Refers to the prior testimony of the same witness or other evidence presented by him in the same case, but not the testimony of other witness

Since the weight of the witness’ testimony depends on his credibility, he may be impeached by impairing his credibility by showing his not pleasing reputation but only as regards his reputation for truth, honesty or

Refer to statements, oral or documentary, made by the witness sought to be impeached on occasions other than the trial in which he is testifying

integrity

LAYING THE PREDICATE LAYING THE FOUNDATION OR BASIS

Refers only to impeachment of a witness through prior inconsistent statements

Refers to a situation where evidence which is otherwise incompetent will be introduced into evidence because it falls under the rules of exclusion. E.g. under the best evidence rule, a party must first prove that a writing was duly executed and that the original has been lost or destroyed. Without first laying the foundation, secondary evidence will not be admitted by the court.

ADMISSION CONFESSION A statement of fact which does not involve an acknowledgment of guilt or liability

A statement of fact which involves an acknowledgment of guilt or liability

May be made by third persons and in certain cases, are admissible against a party

Can be made only by the party himself and, in some instances, are admissible against his co-accused

May be express or implied Always express

Judicial admission Extra-judicial admissionRule 129 Sec 4 Rule 130, Sec 26In the course of a proceeding in the same case

Out-of-court declaration

Does not require proof Requires proof

Conclusive upon the admitter RebuttableAdmissible even if self-serving Admissible ONLY if disservingSubject to cross examination Not subject to cross examination

Offer of compromise Ordinary admission The proposal is tentative and any statement made in connection with it is hypothetical--- to buy peace and, in contemplation of mutual concessions.

The intention is apparently to admit liability and to seek to buy or secure relief against a liability recognized as such.

DECLARATION AGAINST INTEREST

ADMISSIONS

Must have been made against the proprietary or pecuniary interest of the party

Need not be made against the proprietary or pecuniary interest of the party

Secondary evidence. Must have been made by a person who is either deceased or unable to testify

Made by a party himself, and is a primary evidence and competent though he be present in court and ready to testify

Must be made ante litem motam. (Regalado, Vol. II, p. 755, 2008 ed.)

May be made at any time. (Ibid)

Admissible even against third persons.

Admissible only against the party making the admission.

It is an exception to the hearsay rule. (Riano, Evidence: A Restatement for the Bar, p. 116, 2009 ed.)

It is NOT an exception to the hearsay rule. (Ibid.) Covered by the hearsay rule

The fact asserted in the declaration must have been at the time it was made so far contrary to the declarant’s 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

It is NOT necessary that the declarant be a party to the action;

It is admissible to an action where his declaration is relevant

It is competent only when the declarant or someone identified in interest is a party to the action

May be admitted against himself or successor in interest and

Used only against the party admitting and those identified

against third person with him in legal interestDeclarant must be dead aor at least unable to identify

Receivable even if the admitter is alive

Section 39 Section 40Act or declaration about pedigree Family reputation or tradition

regarding pedigreeDeclarant is dead or unable to testify

Declarant is the witness himself

Witness need not be a member of the family

Witness is a member of a family

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

Matters of public interest Matters of general interestCommon to all citizens of the state or to the entire people

Common only to a single community or to a considerable number of person forming part of the community

Common reputation RumorPresupposes the existence of a general belief already formed on which the general opinion is founded

Story current without known authority for its truth and therefore by its nature, does not yet represent the prevailing belief in a community

HEARSAY EVIDENCE OPINION EVIDENCE

Consists of testimony that is not based on personal knowledge of the person testifying

Expert evidence based on the personal knowledge, skill, experience or training of the person testifying and evidence of an ordinary witness on limited matters

RES GESTAE DYING DECLARATION It is the event itself which speaks A sense of impending death takes

the place of an oath and the law regards the declarant as testifying

May be made by the killer after or during the killing or that of a third person

Can be made by the victim only

May precede, or accompany or follow the principal act

Confined to matters occurring after the homicidal act

Justification is the spontaneity of the statement

Justification is the trustworthiness, being given by the person who was aware of his impending death

Verbal acts Spontaneous StatementsThe res gestae is the equivocal act The res gestae is the startling

occurrenceVerbal act must be contemporaneous with or must accompany the equivocal act

Statements may be made prior, or immediately after the startling occurence

ENTRIES IN THE COURSE OF ENTRIES IN OFFICIAL RECORD

BUSINESS It is sufficient that the entrant made the entries pursuant to a duty be it legal, contractual, moral or religious.

The entrant, if a private individual, must have acted pursuant to a specific legal duty specially enjoined by law.

Entrant must be dead or unable to testify.

No such requirement

Needs authentication Need not be authenticatedBest evidence rule applies Exception to best evidence rule

(irremovability of public records)

CHILD WITNESS ORDINARY WITNESS Only the judge is allowed to ask questions to a child witness during preliminary examination

Opposing counsels are allowed to ask questions during preliminary examination

Testimony in a narrative form is allowed

Testimony in a narrative form is not allowed

Leading questions are allowed Leading questions are generally not allowed

The child witness is assisted by a support person

An ordinary witness is not assisted by a support person

Burden of Proof Burden of evidenceDoes not shift and remains throughout the entire case exactly where the pleadings originally placed it

Shifts from party to party depending upon the exigencies of the case in the course of the trial

Generally determined by the pleadings filed by the party

Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

Presumptions Judicial Admissions and Judicial Notice

The proponent still has to introduce evidence of the basis of the presumption

As a rule, the proponent need not introduce any evidence

Effect of legal Presumption upon:Burden of Proof Burden of EvidenceIt does not shift the burden of proof, which remains where it is, but by the presumption, the one who has that burden is relieved from the time being, from introducing evidence in support of his averment because the presumption stands in the place of evidence.

It creates a prima facie case and thereby sustains the said burden of evidence on the point which it covers, shifting it to the other party. It relieves those favored thereby of the burden of proving the fact presumed

Presumptions of law Presumptions of factCertain inference must be made whenever the facts appear which furnish the basis of the inference

Discretion is vested in the tribunal as to drawing the inference

Reduced to fixed rules and form a part of the system of jurisprudence

Derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind

Contradictory evidence Prior Inconsistent statementsIt refers to other testimony of the SAME witness, or other evidence presented by him in the SAME case, but not the testimony of

It refers to statements, oral or documentary, made by the witness sought to be impeached on occasions OTHER THAN the trial in

another witness which he is testifying.

Present Memory Revived Past Recollection Recorded Memory is obscure but there is still memory

Recollection is zero

The main evidence The main evidence is the memorandum

The witness simply testifies that he knows that the memorandum is correctly written by him or under his direction; no need to swear

Witness must swear that the writing correctly states the transaction

Public writing Private WritingAs to authenticity A public document is

admissible in evidence without further roof of its genuineness and due execution

A private writing must be proved relative to its due execution and genuineness, before it may be received in evidence

As to persons bound A public instrument is evidence even against third persons, of the fact which gave rise to its due execution and to the date of the latter

A private writing binds only the parties who executed it or their privies insofar as due execution and date of the document are concerned

AS to validity of certain transaction

Certain transactions must be in a public document, otherwise they will not be given any validity

Testimonial/ oral evidence Documentary and object evidence

At the time the witness is called to testify

After the party has presented his testimonial evidence before he rests

NOTE: OFFERED ONLY ONCE

IMPLIED OFFER:Every time a question is asked of a witness, there is an implied automatic offer of the evidence sought to be elicited by the question. If there is any objection to the question, the same must be raised immediately; otherwise there is a waiver

THUS, oral evidence is always being offered TWICE:

1. Before the witness testifies; and

2. Every time a question is asked of him

Identification Formal OfferIdentification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit

Formal offer of documentary evidence as an exhibit is done when the party has presented his testimonial evidence

Manner of Offering Time to make objectionEvidence offered orally Made immediately after the offer

is madeFor questions propounded in the course of the oral examination of a witness

Made as soon as the grounds therefore shall become reasonably apparent

In case of an offer of evidence in writing

Within 3 days after notice of the offer unless a different period is allowed by the court

Offer of Proof/Tender of Excluded Evidence

Offer of Evidence

ONLY resorted to if admission is refused by the court for purposes of review on appeal

Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision.

Positive testimony Negative TestimonyIt is when the witness affirms that a fact did or did not occur

It is when a witness states that he did not see or know of the occurrence of a fact

It has GREATER WEIGHT than negative testimony since the witness represents of his personal knowledge the presence or absence of fact

It has LESSER WEIGHT than positive testimony because there is only a total disclaimer of personal knowledge

KATARUNGANG PAMBARANGAY

Non-appearing party EffectPlaintiff DISMISSAL of the claim WITHOUT

PREJUDICE defendant who appears shall be entitled to judgment on a permissive counterclaim

Defendant Same effect as failure to file a response under Sec 12.

Note: This shall NOT apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing

Both parties DISMISSAL WITH PREJUDICE of both the claim and counterclaim

SPECIAL RULES OF COURT ON ALTERNATIVE RESOLUTION

SUMMARY PROCEEDINGS

NON-SUMMARY PROCEEDINGS

When Service must be made

Service must be made to respondent before the filing of the petition

Service is made after the filing of the petition directly with the court

Manner of Service Personal service or courier

Personal Service or courier

Where courier services are not available, resort to registered mail is allowed

Proof of Service Proof of service shall be attached to the petition filed in court.

Proof:

Personal service: affidavit of person who effected service.

Proof:

Personal service:Written admission by the party served, or the official return of the server, or the affidavit of the party serving,

Courier: signed courier proof of delivery (Rule 1.3. AM 07-11-08 SC October 30 2009)

Courier: affidavit of the proper person filing and service by electronic means allowed by agreement of parties.

(Rule 1.8 A.M. 07-11-08 SC October 30, 2009)

ENGLISH EXCHEQUER RULE HARMLESS ERROR RULE It provides that a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required new trial.

The appellate court will disregard an error in the admission of evidence unless in its opinion, some substantial wrong or miscarriage of justice has been occasioned.

OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE

OFFER OF EVIDENCE

Only resorted to if admission is refused by the court for purposes of review on appeal

Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision