CIVIL PROCEDURE

General Principles ................. 2 CONCEPT OF REMEDIAL LAW ............................ 2 CONCEPT ............................................................... 2

APPLICABILITY ........................................................ 2

PROSPECTIVITY/RETROACTIVITY ................................ 2 SUBSTANTIVE LAW AS DISTINGUISHED FROM

REMEDIAL LAW ................................................. 2 REMEDIAL LAW OR PROCEDURAL LAW ......................... 2

SUBSTANTIVE LAW ................................................... 2

RULE-MAKING POWER OF THE SUPREME COURT2 LIMITATIONS ON THE RULE-MAKING POWER OF THE

SUPREME COURT ..................................................... 2 POWER OF THE SUPREME COURT TO AMEND AND SUSPEND

PROCEDURAL RULES ................................................ 2 NATURE OF PHILIPPINE COURTS ..................... 3 MEANING OF A COURT ........................................... 3 COURT AS DISTINGUISHED FROM A JUDGE ................... 3 CLASSIFICATION OF PHILIPPINE COURTS ...................... 3 COURTS OF ORIGINAL AND APPELLATE JURISDICTION ..... 4 COURTS OF GENERAL AND SPECIAL JURISDICTION ......... 4 CONSTITUTIONAL AND STATUTORY COURTS ............... 4 COURTS OF LAW AND EQUITY .................................. 4 PRINCIPLE OF JUDICIAL HIERARCHY .......................... 4 DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF

JUDICIAL STABILITY ............................................. 4

Jurisdiction ............................ 4 JURISDICTION .................................................... 4 JURISDICTION IN GENERAL ............................... 4 JURISDICTION OVER THE PARTIES ............................... 4 JURISDICTION OVER THE SUBJECT MATTER ................... 5 JURISDICTION OVER THE ISSUES ................................. 6 JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION 6

SPECIFIC JURISDICTION .................................... 7 JURISDICTION OF COURTS ......................................... 7

JURISDICTION OVER SMALL CLAIMS, CASES

COVERED BY THE RULES ON SUMMARY

PROCEDURE AND BARANGAY CONCILIATION . 13 DEFINITION .......................................................... 13 PURPOSE ............................................................. 13 SCOPE ................................................................. 13 APPLICABILITY ....................................................... 13 PROHIBITED PLEADINGS ......................................... 14 TOTALITY RULE ..................................................... 14

Actions ................................. 14 ACTION VS CAUSE OF ACTION .......................... 14 MEANING OF ORDINARY CIVIL ACTIONS ........ 14 MEANING OF SPECIAL CIVIL ACTIONS ............. 14 MEANING OF CRIMINAL ACTIONS ................... 14 CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS .................................. 14 DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL

PROCEEDINGS ....................................................... 14

PERSONAL ACTIONS AND REAL ACTIONS ...... 15 IMPORTANCE OF DISTINCTION ................................... 15 LOCAL AND TRANSITORY ACTIONS ................ 15

Cause of Action ................... 16 MEANING OF CAUSE OF ACTION ...................... 16 ELEMENTS OF A CAUSE OF ACTION ................. 16 RIGHT OF ACTION VERSUS CAUSE OF ACTION . 16 FAILURE TO STATE A CAUSE OF ACTION .......... 17 TEST OF THE SUFFICIENCY OF A CAUSE OF

ACTION ............................................................. 17 SPLITTING A SINGLE CAUSE OF ACTION AND ITS

EFFECTS ........................................................... 17 EFFECTS OF SPLITTING A CAUSE OF ACTION ................. 17 BASIS .................................................................. 17 PURPOSE ............................................................. 17

JOINDER AND MISJOINDER OF CAUSES OF

ACTION ............................................................. 17 JOINDER OF CAUSE OF ACTION .................................. 17 PURPOSES ........................................................... 17 REQUISITES .......................................................... 17 MISJOINDER OF CAUSES OF ACTION ........................... 17

Parties to Civil Actions ....... 18 REQUIREMENTS FOR A PERSON TO BE A PARTY

TO A CIVIL ACTION ............................................ 18 PARTIES TO A CIVIL ACTION ............................. 19 REAL PARTIES IN INTEREST; INDISPENSABLE

PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES;

ALTERNATIVE DEFENDANTS ........................... 19 REAL PARTY IN INTEREST ........................................ 19

INDISPENSABLE PARTIES ........................................ 20 REPRESENTATIVE AS PARTIES .................................. 20 NECESSARY PARTY ................................................ 20 INDIGENT PARTY ................................................... 20 ALTERNATIVE DEFENDANTS .................................... 20

COMPULSORY AND PERMISSIVE JOINDER OF

PARTIES ............................................................ 21 COMPULSORY JOINDER OF INDISPENSABLE PARTIES ...... 21 PERMISSIVE JOINDER .............................................. 21 MISJOINDER AND NON-JOINDER OF PARTIES ...................................................... 21 CLASS SUIT ....................................................... 21 REQUISITES .......................................................... 21 CLASS SUIT AND DERIVATIVE SUIT, COMPARED ............ 22

SUITS AGAINST ENTITIES WITHOUT JURIDICAL

PERSONALITY .................................................. 22 REQUISITES ......................................................... 22

EFFECT OF DEATH OF PARTY LITIGANT ........... 22 SUBSTITUTION OF PARTIES ...................................... 22 ACTION ON CONTRACTUAL MONEY CLAIMS ................. 22 TRANSFER OF INTEREST DURING THE PENDENCY OF THE

ACTION ............................................................... 22

Venue ................................... 23 VENUE VERSUS JURISDICTION ........................ 23 DISTINCTIONS BETWEEN VENUE AND JURISDICTION ...... 23

VENUE OF REAL ACTIONS ................................ 23 VENUE OF PERSONAL ACTIONS ...................... 23 VENUE OF ACTIONS AGAINST NON-RESIDENTS .............................. 24 WHEN THE RULES ON VENUE DO NOT APPLY ................................................. 24 EFFECTS OF STIPULATIONS ON VENUE ........... 24 OTHER RULES ON VENUE ................................ 24

Pleadings ............................ 24 DEFINITION ..................................................... 24 KINDS OF PLEADINGS ..................................... 25 PLEADINGS ALLOWED ............................................ 25 COMPLAINT ......................................................... 25 ANSWER ............................................................. 25 COUNTERCLAIMS .................................................. 25

CROSS-CLAIMS ..................................................... 27 THIRD (FOURTH, ETC.) PARTY COMPLAINTS ................ 27 COMPLAINT-IN-INTERVENTION ................................ 28 REPLY ................................................................ 28

PLEADINGS ALLOWED IN SMALL CLAIM CASES

AND CASES COVERED BY THE RULES ON

SUMMARY PROCEDURE .................................. 28 PROHIBITED PLEADINGS, MOTIONS OR PETITIONS ....... 28 FORMS USED UNDER THE RULE OF PROCEDURE UNDER

SMALL CLAIMS CASES ............................................. 29 PROHIBITED PLEADINGS AND MOTIONS ...................... 29

PARTS OF A PLEADING .................................... 29 CAPTION ............................................................. 29 BODY ................................................................. 29 SIGNATURE AND ADDRESS ...................................... 29 VERIFICATION AND CERTIFICATION AGAINST FORUM

SHOPPING ........................................................... 29 EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING 30

ALLEGATIONS IN A PLEADING ........................ 30 MANNER OF MAKING ALLEGATIONS .......................... 30 PLEADING AN ACTIONABLE DOCUMENT ...................... 31 SPECIFIC DENIALS .................................................. 31

EFFECT OF FAILURE TO PLEAD ....................... 32 FAILURE TO PLEAD DEFENSES AND OBJECTIONS .......... 32 FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND

CROSS-CLAIM ...................................................... 32

DEFAULT ......................................................... 32 WHEN A DECLARATION OF DEFAULT IS PROPER ........... 32 EFFECT OF AN ORDER OF DEFAULT ........................... 32 RELIEF FROM AN ORDER OF DEFAULT ........................ 33 EFFECT OF A PARTIAL DEFAULT ................................ 33 EXTENT OF RELIEF ................................................. 33 ACTIONS WHERE DEFAULT ARE NOT ALLOWED ............ 33

FILING AND SERVICE OF PLEADINGS .............. 34 DEFINITION ......................................................... 34 PAPERS REQUIRED TO BE FILED AND SERVED .............. 34 PAYMENT OF DOCKET FEES ..................................... 34 FILING VERSUS SERVICE OF PLEADINGS ...................... 35 PERIODS OF FILING OF PLEADINGS ............................ 35 MANNER OF FILING ............................................... 35 MODES OF SERVICE ............................................... 36

AMENDMENT ...................................................37 HOW TO AMEND PLEADINGS .....................................37 AMENDMENT AS A MATTER OF RIGHT ....................... 38 AMENDMENTS BY LEAVE OF COURT ........................... 38 FORMAL AMENDMENT ........................................... 38 AMENDMENTS TO CONFORM TO OR AUTHORIZE

PRESENTATION OF EVIDENCE .................................. 38 DIFFERENT FROM SUPPLEMENTAL PLEADINGS ............ 38

EFFECT OF AMENDED PLEADING ............................... 39

Summons ............................ 39 NATURE AND PURPOSE OF SUMMONS IN

RELATION TO ACTIONS IN PERSONAM, IN REM

AND QUASI IN REM .......................................... 39 PURPOSE ............................................................ 39 ISSUANCE OF SUMMONS ........................................ 39 CONTENTS OF SUMMONS ........................................ 39

VOLUNTARY APPEARANCE ............................. 39 GENERAL RULE ..................................................... 39 EXCEPTION .......................................................... 39 WHO SERVES THE SUMMONS ................................... 40 RETURN OF SUMMONS ........................................... 40 ALIAS SUMMONS ................................................... 40 MODES OF SERVICE OF SUMMONS ............................. 40

PERSONAL SERVICE ........................................ 40 SERVICE IN PERSON ON DEFENDANT ......................... 40

SUBSTITUTED SERVICE ................................... 40 RATIONALE .......................................................... 40

CONSTRUCTIVE SERVICE (BY PUBLICATION) ........................................... 41 REQUISITES ......................................................... 41 SERVICE OF SUMMONS UPON DIFFERENT ENTITIES ....... 41 SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS

UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN .................................................... 41 SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE

PHILIPPINES ........................................................ 41

EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED ............................................. 41 REQUISITES ......................................................... 41 MODES OF SERVICE ................................................ 41 SERVICE UPON PRISONERS AND MINORS ...... 41 SERVICE UPON PRISONER ....................................... 41 SERVICE UPON MINORS AND INCOMPETENTS .............. 41

PROOF OF SERVICE .......................................... 41 RETURN OF SERVICE .............................................. 41 PROOF OF SERVICE ................................................ 41 EFFECT OF NON-SERVICE OF SUMMONS ..................... 42 WAIVER OF SERVICE OF SUMMONS ............................ 42 SERVICE OF SUMMONS UPON DIFFERENT ENTITIES (ANNEX A) ................................ 42

Motions ................................. 42 MOTIONS IN GENERAL .................................... 42 DEFINITION OF A MOTION ........................................ 42

MOTIONS VERSUS PLEADINGS ................................. 42 CONTENTS AND FORM OF MOTIONS .......................... 42 NOTICE OF HEARING AND HEARING OF MOTIONS .......... 43 OMNIBUS MOTION RULE ......................................... 43 LITIGATED AND EX PARTE MOTIONS .......................... 43 PRO-FORMA MOTIONS ........................................... 43

MOTIONS FOR BILL OF PARTICULARS ............ 43 BILL OF PARTICULARS ............................................ 43 PURPOSE AND WHEN APPLIED FOR ........................... 44 ACTIONS OF THE COURT ......................................... 44 COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE ....................................................... 44 EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING ....................................... 44

MOTION TO DISMISS ....................................... 45 DEFINITION ......................................................... 45 TYPES OF DISMISSAL OF ACTION ............................... 45 GROUNDS ........................................................... 45 RESOLUTION OF MOTION ........................................ 48 REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS

DISMISSED .......................................................... 48 REMEDIES OF THE DEFENDANT WHEN THE MOTION IS DENIED ................................. 48 EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN GROUNDS .......................... 48 WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES . 48 BAR BY DISMISSAL ................................................ 48 DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER

RULE 33 ............................................................. 49

Dismissal of Actions .......... 49 DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE ............................................. 49 DISMISSAL UPON PLAINTIFF’S NOTICE ....................... 49

DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT

ON EXISTING COUNTERCLAIM ........................ 49 DISMISSAL UPON PLAINTIFF’S MOTION ...................... 49

DISMISSAL DUE TO THE FAULT OF PLAINTIFF 49 DISMISSAL DUE TO PLAINTIFF’S FAULT ...................... 49

DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM

OR THIRD-PARTY COMPLAINT ........................ 50

Pre-Trial .............................. 50 CONCEPT OF PRE-TRIAL ................................. 50 DEFINITION ......................................................... 50

NATURE AND PURPOSE .................................. 50 PURPOSE ............................................................ 50

NOTICE OF PRE-TRIAL ..................................... 51

APPEARANCE OF PARTIES; EFFECT OF FAILURE

TO APPEAR ...................................................... 51 APPEARANCE OF PARTIES ....................................... 51 FAILURE TO APPEAR AT PRE-TRIAL ........................... 51

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO

APPEAR ........................................................... 52 PRE-TRIAL BRIEF .................................................. 52 RECORD OF PRE-TRIAL ........................................... 52 CALENDAR OF CASES ............................................. 52

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE

AND PRE-TRIAL IN CRIMINAL CASE ................ 52

ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA

9285] ............................................................... 53 WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM? . 53 POLICY BEHIND THE ADR ......................................... 53 EXCEPTION TO THE APPLICATION OF RA 9285: ............ 53 MODES OF ALTERNATIVE DISPUTE RESOLUTIONS: ........ 53

Intervention ......................... 54 DEFINITION OF INTERVENTION ....................... 54 WHO MAY INTERVENE ..................................... 54 MEANING OF LEGAL INTEREST ....................... 54 REQUISITES FOR INTERVENTION .................... 55 HOW INTERVENTION IS DONE ................................... 55 FACTORS CONSIDERED IN ALLOWING INTERVENTION .... 55 PLEADINGS IN INTERVENTION .................................. 55 TIME TO INTERVENE ........................................ 55 REMEDY FOR THE DENIAL OF MOTION TO

INTERVENE ...................................................... 55 REMEDIES ........................................................... 55

Subpoena ........................... 55 TYPES (AND DEFINITION) OF SUBPOENA ........ 55 BY WHOM ISSUED ............................................ 56 FORM AND CONTENTS OF SUBPOENA ............ 56 SUBPOENA DUCES TECUM .............................. 56 SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER FOR

PRODUCTION OR INSPECTION (ANNEX B) ................... 56 SUBPOENA AD TESTIFICANDUM ..................... 56 SERVICE OF SUBPOENA ................................... 56

COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT ...................................................... 56 PERSONAL APPEARANCE IN COURT ........................... 56 APPLICATION FOR SUBPOENA TO PRISONER ............... 56 REMEDY IN CASE OF WITNESS’ FAILURE TO ATTEND ...... 56 QUASHING OF SUBPOENA .............................. 56 GROUNDS FOR QUASHING ...................................... 57

Modes of Discovery ............. 57 DEPOSITIONS PENDING ACTION; DEPOSITIONS

BEFORE ACTION OR PENDING APPEAL ........... 57 DEPOSITIONS UNDER RULE 23 ................................. 57 WRITTEN INTERROGATORIES UNDER RULE 23 ............. 59 DEPOSITIONS BEFORE ACTION UNDER RULE 24 ........... 60 DEPOSITIONS PENDING APPEAL UNDER RULE 24 ......... 60

WRITTEN INTERROGATORIES TO ADVERSE

PARTIES .......................................................... 60 PURPOSE ............................................................ 60 PROCEDURE ......................................................... 61 ANSWER ............................................................. 61 EFFECT OF OBJECTIONS TO INTERROGATORIES ............. 61 NUMBER OF INTERROGATORIES ................................ 61 SCOPE OF INTERROGATORIES ................................... 61 USE OF INTERROGATORIES ...................................... 61 FAILURE TO FILE WRITTEN INTERROGATORIES .............. 61 CONSEQUENCES OF REFUSAL TO ANSWER ................... 61

REQUEST FOR ADMISSION ............................... 61 PURPOSE ............................................................. 61 WHEN MAY REQUEST BE MADE ................................. 62 IMPLIED ADMISSION BY ADVERSE PARTY .................... 62 DEFERMENT OF COMPLIANCE .................................. 62 EFFECT OF ADMISSION ........................................... 62 WITHDRAWAL ..................................................... 62 EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR

ADMISSION ......................................................... 62

PRODUCTION OR INSPECTION OF DOCUMENTS

OR THINGS ...................................................... 62 PROCEDURE ........................................................ 62 WHAT THE COURT MAY ORDER ................................. 62

PHYSICAL AND MENTAL EXAMINATION OF

PERSONS ......................................................... 63 MOTION REQUESTING EXAMINATION ......................... 63 COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS DISCRETION. ............................ 63 REPORT OF FINDINGS ............................................ 63 WAIVER OR PRIVILEGE ........................................... 63 PHYSICIAN-PATIENT PRIVILEGE ................................ 63

CONSEQUENCES OF REFUSAL TO COMPLY WITH

MODES OF DISCOVERY (ANNEX C) ..................... 63

Trial ...................................... 63 TRIAL, DEFINED ............................................... 63 NOTICE OF TRIAL ............................................. 63 ADJOURNMENTS AND POSTPONEMENTS ...... 63 REQUISITES OF MOTION TO POSTPONE TRIAL ....................................... 63 SUBPOENA .......................................................... 64

AGREED STATEMENT OF FACTS ...................... 64 ORDER OF TRIAL; REVERSAL OF ORDER ......... 64 CONDUCT OF TRIAL ................................................ 64 GENERAL ORDER OF TRIAL ...................................... 64

CONSOLIDATION OR SEVERANCE OF HEARING

OR TRIAL ......................................................... 64 CONSOLIDATION OF TRIAL ....................................... 64 SEVERANCE OF TRIAL ............................................. 64 STATEMENT OF JUDGE ............................................ 65 SUSPENSION OF ACTIONS ....................................... 65

DELEGATION OF RECEPTION OF EVIDENCE .... 65

TRIAL BY COMMISSIONERS ............................. 65 KINDS OF TRIAL BY COMMISSIONER ........................... 65 REFERENCE BY CONSENT OR ORDERED ON MOTION ...... 65 POWERS OF THE COMMISSIONER .............................. 65 COMMISSIONER’S REPORT; NOTICE TO PARTIES AND

HEARING ON THE REPORT ....................................... 65

Demurrer to Evidence ....... 66 GROUND .......................................................... 66 DEFINITION .......................................................... 66

EFFECT OF DENIAL; EFFECT OF GRANT ........... 66 WAIVER OF RIGHT TO PRESENT EVIDENCE ..... 67 DEMURRER TO EVIDENCE IN A CIVIL CASE V.

DEMURRER TO EVIDENCE IN A CRIMINAL CASE ............................................ 67 DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL

CASES ................................................................ 67

Judgments and Final Orders ....................... 67 JUDGMENT ...................................................... 67 REQUISITES OF A VALID JUDGMENT .......................... 67 KINDS OF JUDGMENT ............................................. 67

JUDGMENT WITHOUT TRIAL ........................... 68 WHEN TRIAL IS NOT NECESSARY ............................... 68

CONTENTS OF A JUDGMENT ........................... 68 PARTS OF A JUDGMENT .......................................... 68 DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE

COURT ............................................................... 69 CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY

OF THE DECISION .................................................. 69

JUDGMENT ON THE PLEADINGS ..................... 69 GROUNDS ........................................................... 69 CANNOT BE RENDERED MOTU PROPRIO ..................... 69 WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY . 69 EFFECTS ............................................................. 69

SUMMARY JUDGMENTS .................................. 69 DEFINITION, NATURE ............................................. 69 GENUINE ISSUE .................................................... 69 PROCEDURE ........................................................ 70 FOR THE CLAIMANT ............................................... 70 FOR THE DEFENDANT ............................................ 70 WHEN THE CASE NOT FULLY ADJUDICATED ................. 70 AFFIDAVITS AND ATTACHMENTS .............................. 70

JUDGMENT ON THE PLEADINGS VERSUS

SUMMARY JUDGMENTS ................................... 71

RENDITION OF JUDGMENTS AND FINAL ORDERS ......................................... 71 FORM OF JUDGMENT .............................................. 71 DEFINITION OF RENDITION OF JUDGMENT ................... 71 PERIOD WITHIN WHICH DECISION IS TO BE RENDERED .... 71 INTERPRETATION OF THE JUDGMENT ......................... 71

ENTRY OF JUDGMENT AND FINAL ORDER ....... 71 DEFINITION OF ENTRY OF JUDGMENT .......................... 71 ENTRY OF JUDGMENTS AND FINAL ORDERS ................. 71 AMENDMENTS TO JUDGMENT .................................. 72

Post-Judgment Remedies . 72 REMEDIES BEFORE FINALITY OF JUDGMENT ................................. 72

MOTION FOR NEW TRIAL OR RECONSIDERATION

......................................................................... 72 MOTION FOR RECONSIDERATION .............................. 72 GROUNDS ........................................................... 72 WHEN TO FILE ...................................................... 72 DENIAL OF THE MOTION; EFFECT ...............................73 GRANT OF THE MOTION; EFFECT ............................... 74 REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD

RULE .................................................................. 74

APPEALS IN GENERAL ..................................... 74

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL ... 74 MATTERS NOT APPEALABLE .................................... 75 REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE

NOT APPEALABLE .................................................. 75 MODES OF APPEAL ................................................ 75 ISSUES TO BE RAISED ON APPEAL ............................. 84 PERIOD OF APPEAL ................................................ 84 PERFECTION OF APPEAL ......................................... 86 APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC ..................................... 86 APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC ...................................... 88 APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA ....................................... 89 APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA ...................................... 89 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COA ..................................... 89 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE COMELEC .............................. 90 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE CSC ...................................... 90 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE OMBUDSMAN ......................... 90 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC .................................... 90 REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF QUASI-JUDICIAL AGENCIES ............. 91

RELIEF FROM JUDGMENTS, ORDERS AND OTHER

PROCEEDINGS ................................................. 91 GROUNDS FOR AVAILING OF THE REMEDY ................... 92 TIME TO FILE PETITION ........................................... 92 CONTENTS OF PETITION ......................................... 92

ANNULMENT OF JUDGMENTS OR FINAL ORDERS

AND RESOLUTIONS ......................................... 92 GROUNDS FOR ANNULMENT ..................................... 92 PERIOD TO FILE ACTION ......................................... 93 EFFECTS OF JUDGMENT OF ANNULMENT .................... 93

COLLATERAL ATTACK OF JUDGMENTS ....................... 93 REMEDIES FROM A VOID JUDGMENT ........................... 93 WHAT IS A VOID JUDGMENT? ................................... 93 HOW DO YOU ATTACK A VOID JUDGMENT? .................. 93 WHAT ARE YOUR REMEDIES? ................................... 93 SOME JURISPRUDENTIAL BASIS ................................ 93

Execution, Satisfaction and Effect of Judgments .......... 94 DIFFERENCE BETWEEN FINALITY OF JUDGMENT

FOR PURPOSES OF APPEAL; FOR PURPOSES OF

EXECUTION ...................................................... 94 WHEN EXECUTION SHALL ISSUE ..................... 94

EXECUTION AS A MATTER OF RIGHT (ANNEX D) .......... 95 DISCRETIONARY EXECUTION (ANNEX E) .................... 95

HOW A JUDGMENT IS EXECUTED .................... 96 EXECUTION BY MOTION OR BY INDEPENDENT ACTION .. 96 ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION .... 96 EXECUTION OF JUDGMENTS FOR MONEY .................... 96 EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS ........... 98 EXECUTION OF SPECIAL JUDGMENTS ........................ 99 EFFECT OF LEVY ON THIRD PERSONS ......................... 99

PROPERTIES EXEMPT FROM EXECUTION ....... 99 PROCEEDINGS WHERE PROPERTY IS CLAIMED

BY THIRD PERSONS ........................................ 101 IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND

REPLEVIN .......................................................... 101

RULES ON REDEMPTION ................................ 102 EFFECTS OF REDEMPTION ...................................... 102 RECOVERY OF PURCHASE PRICE AND REVIVAL OF JUDGMENT ......................................... 103

EXAMINATION OF JUDGMENT OBLIGOR WHEN

JUDGMENT IS UNSATISFIED ......................... 104 WHEN EXAMINATION MAY BE MADE ........................ 104 HOW ................................................................ 104

EXAMINATION OF OBLIGOR OF JUDGMENT

OBLIGOR ....................................................... 104 DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS

AFTER THE PROMULGATION OF FINAL AND EXECUTORY

JUDGMENT? ...................................................... 104 REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION ........................................... 104 ENTRY OF SATISFACTION ...................................... 104

EFFECT OF JUDGMENT OR FINAL ORDERS ... 104 RES JUDICATA IN JUDGMENTS IN REM ....................... 105 RES JUDICATA IN JUDGMENTS IN PERSONAM ............. 105 CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES

(AUTER ACTION PENDANT) .................................... 105 REQUISITES OF RES JUDICATA ................................. 105 RES JUDICATA V. “LAW OF THE CASE” V. STARE DECISIS 105

ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENTS OR FINAL ORDERS .................... 105 EFFECT OF FOREIGN JUDGMENTS ............................. 105

Provisional Remedies ....... 106 NATURE OF PROVISIONAL REMEDIES ........... 106 DEFINITION ........................................................ 106

JURISDICTION OVER

PROVISIONAL REMEDIES .............................. 106

PRELIMINARY ATTACHMENT ........................ 106 DEFINITION ........................................................ 106 PURPOSES ......................................................... 106 GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT .. 106 REQUISITES ........................................................107 ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;

AFFIDAVIT AND BOND ..........................................107 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF

SUMMONS ..........................................................107 MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;

WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON ................................................... 108 DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND ........................................... 109 SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED ................................. 110

PRELIMINARY INJUNCTION ............................. 111 DEFINITIONS AND DIFFERENCES: DRELIMINARY INJUNCTION

AND TEMPORARY RESTRAINING ORDER; STATUS QUO ANTE

ORDER ................................................................ 111 REQUISITES ......................................................... 111 KINDS OF INJUNCTION ........................................... 112 WHEN WRIT MAY BE ISSUED .................................... 113 GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION 113 GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF

INJUNCTION OR RESTRAINING ORDER ....................... 113 DURATION OF A TEMPORARY RESTRAINING ORDER .... 114 IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR

WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT

INFRASTRUCTURE PROJECTS ................................. 114 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF

SUMMONS IN RELATION TO ATTACHMENT ................. 114

RECEIVERSHIP ................................................ 115 NATURE ............................................................. 115 PURPOSE ........................................................... 115 CASES WHEN RECEIVER MAY BE APPOINTED ............... 115 REQUIREMENTS BEFORE ISSUANCE OF AN ORDER ....... 115 POWERS OF A RECEIVER ........................................ 115 TWO (2) KINDS OF BOND ........................................ 116 TERMINATION OF RECEIVERSHIP ............................. 116

REPLEVIN ....................................................... 116 WHEN MAY WRIT BE ISSUED .................................... 116 REQUISITES ........................................................ 117 AFFIDAVIT AND BOND; REDELIVERY BOND ................. 117 SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT;

WHEN PROPERTY IS CLAIMED BY THIRD PARTY ........... 117

Special Civil Actions .......... 118 NATURE OF SPECIAL CIVIL ACTIONS .............. 118 HOW COMMENCED ............................................... 118

ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL

ACTIONS ......................................................... 118 JURISDICTION AND VENUE ............................ 118

INTERPLEADER .............................................. 118 DEFINITION ........................................................ 118 PURPOSE ........................................................... 118 REQUISITES FOR INTERPLEADER ............................. 119 WHEN TO FILE ..................................................... 119

DECLARATORY RELIEFS AND SIMILAR REMEDIES ........................................ 119 WHO MAY FILE THE ACTION .................................... 119 REQUISITES OF ACTION FOR DECLARATORY RELIEF ...... 120 WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION ................................ 120 CONVERSION TO ORDINARY ACTION ......................... 120 PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES ..... 120

REVIEW OF JUDGMENTS AND FINAL ORDERS OR

RESOLUTION OF THE COMELEC AND COA ..... 121 SCOPE ............................................................... 121 PROCEDURE ....................................................... 121 DISTINCTION IN THE APPLICATION OF RULE 65 TO

JUDGMENTS OF THE COMELEC AND COA AND THE

APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS

AND OFFICERS .................................................... 123

CERTIORARI, PROHIBITION AND MANDAMUS ........................................... 123 WHEN PETITION FOR CERTIORARI, PROHIBITION AND

MANDAMUS IS PROPER (ANNEX F) ........................... 124 INJUNCTIVE RELIEF ............................................... 125 CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI;

PROHIBITION AND MANDAMUS DISTINGUISHED FROM

INJUNCTION; WHEN AND WHERE TO FILE PETITION ...... 125 EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION

BEFORE FILING PETITION ....................................... 125 RELIEFS PETITIONER IS ENTITLED TO ........................ 125 FACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES .............................................. 126 WHERE TO FILE PETITION ....................................... 126 EFFECTS OF FILING OF AN UNMERITORIOUS PETITION .. 126

QUO WARRANTO ........................................... 126 DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS

ELECTION CODE ................................................... 126 WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST

INDIVIDUALS ...................................................... 126 WHEN INDIVIDUAL MAY COMMENCE AN ACTION .......... 127 JUDGMENT IN QUO WARRANTO ACTION .................... 127 RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC

OFFICE .............................................................. 127

EXPROPRIATION ............................................ 127 MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION ............................ 127 TWO STAGES IN EVERY ACTION FOR EXPROPRIATION .... 127 WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO

POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA

8974 ............................................................... 128 NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST

COMPENSATION ................................................. 128 DEFENSES AND OBJECTIONS ................................. 128 ORDER OF EXPROPRIATION .................................. 129 ASCERTAINMENT OF JUST COMPENSATION .............. 129 APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S

REPORT; COURT ACTION UPON COMMISSIONER’S REPORT ........................... 129 RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT .................................................... 130 EFFECT OF RECORDING OF JUDGMENT ..................... 130 FORECLOSURE OF REAL ESTATE MORTGAGE ............................. 130 JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE . 130 SALE OF MORTGAGED PROPERTY; EFFECT ................ 130 DISPOSITION OF PROCEEDS OF SALE ......................... 131 DEFICIENCY JUDGMENT ......................................... 131 JUDICIAL FORECLOSURE V. EXTRAJUDICIAL FORECLOSURE ................................ 131 EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION ......................................... 132

PARTITION ...................................................... 132 WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE

DEFENDANTS ...................................................... 132 MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION ................................... 133 TWO (2) STAGES IN EVERY ACTION FOR PARTITION ...... 133 ORDER OF PARTITION AND PARTITION BY AGREEMENT ................................................... 133 PARTITION BY COMMISSIONERS; APPOINTMENT OF

COMMISSIONERS, COMMISSIONER’S REPORT; COURT

ACTION UPON COMMISSIONER’S REPORT ..................134 JUDGMENT AND ITS EFFECTS .................................. 135 PARTITION OF PERSONAL PROPERTY ........................ 135 PRESCRIPTION OF ACTION ...................................... 135

FORCIBLE ENTRY AND UNLAWFUL DETAINER 136 DEFINITIONS AND DISTINCTION ............................... 135 DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION

REINVINDICATORIA .............................................. 136 HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA

AND ACCION REINVINDICATORIA ............................. 136 WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST

WHOM THE ACTION MAY BE MAINTAINED ................... 136 PLEADINGS ALLOWED ........................................... 137 ACTION ON THE COMPLAINT ................................... 137 WHEN DEMAND IS NECESSARY ................................ 137

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY

INJUNCTION ...................................................... 140 RESOLVING DEFENSE OF OWNERSHIP ...................... 140 HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT .................................... 140 SUMMARY PROCEDURE, PROHIBITED PLEADINGS ....... 141

CONTEMPT ..................................................... 141 KINDS OF CONTEMPT ............................................ 141 PURPOSE AND NATURE OF EACH ............................. 141 REMEDY AGAINST DIRECT CONTEMPT; PENALTY ......... 142 REMEDY AGAINST INDIRECT CONTEMPT; PENALTY (ANNEX G) ............................................. 142 HOW CONTEMPT PROCEEDINGS ARE COMMENCED ...... 142 ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT ... 142 WHEN IMPRISONMENT SHALL BE IMPOSED ................ 143 CONTEMPT AGAINST QUASI-JUDICIAL BODIES ............ 143

ANNEX A ......................................................... 144 ANNEX B ......................................................... 145 ANNEX C ......................................................... 146 ANNEX D ......................................................... 148 ANNEX E ......................................................... 149 ANNEX F ......................................................... 150 ANNEX G ......................................................... 151

CRIMINAL PROCEDURE

General Matters ................ 153 DISTINGUISH JURISDICTION OVER SUBJECT

MATTER FROM JURISDICTION OVER PERSON OF

THE ACCUSED ................................................. 153 JURISDICTION OVER SUBJECT MATTER ...................... 153 JURISDICTION OVER THE PERSON OF THE ACCUSED .... 153 REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION ................................................ 153 JURISDICTION OF CRIMINAL COURTS ............ 153 CRIMINAL JURISDICTION OF COURTS ........................ 153 MILITARY COURTS ............................................... 155

Prosecution of Offenses .. 155 CRIMINAL ACTIONS, HOW INSTITUTED ......... 155 IN GENERAL ....................................................... 155 INSTITUTION AND COMMENCEMENT OF ACTIONS ....... 155 EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE

PRESCRIPTIVE PERIOD ......................................... 155

WHO MAY FILE THEM, CRIMES THAT CANNOT BE

PROSECUTED DE OFFICIO ............................. 155 CASES THAT CANNOT BE PROSECUTED DE OFICIO ....... 155 WHO MAY FILE A COMPLAINT? ............................... 155

EFFECT OF ..................................................... 155 DEATH OF OFFENDED PARTY ................................. 155 DESISTANCE BY OFFENDED PARTY .......................... 155 PARDON BY OFFENDED PARTY ............................... 155

CRIMINAL ACTIONS, WHEN ENJOINED ......... 156

CONTROL OF PROSECUTION ......................... 156

EXTENT OF THE PROSECUTOR’S CONTROL .. 156 PRIOR TO THE FILING OF THE CASE ......................... 156 AFTER A CASE IS FILED ......................................... 156 LIMITATIONS OF CONTROL BY THE COURT ................ 156 EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN

THE TRIAL .......................................................... 157

SUFFICIENCY OF COMPLAINT OR INFORMATION .......................................... 157 COMPLAINT DEFINED ............................................ 157 INFORMATION DEFINED ........................................ 157 FORM & SUBSTANCE ............................................ 157

DESIGNATION OF OFFENSE ............................ 157 CAUSE OF THE ACCUSATION .......................... 157 WHAT TO ALLEGE ................................................. 157

DUPLICITY OF THE OFFENSE; EXCEPTION .... 158 DUPLICITY OF OFFENSE ........................................ 158 SEVERAL MODES OF COMMITTING OFFENSE NOT

DUPLICITOUS ..................................................... 158

AMENDMENT OR SUBSTITUTION OF COMPLAINT

OR INFORMATION ........................................ 158 AMENDMENTS IN FORM AND SUBSTANCE BEFORE PLEA .................................... 158 AMENDMENTS MADE AFTER PLEA AND DURING TRIAL ............................................. 158

VENUE OF CRIMINAL ACTIONS ...................... 159 INTERVENTION OF OFFENDED PARTY ........... 159

Prosecution of Civil Action ........................ 160 RULE ON IMPLIED INSTITUTION OF CIVIL ACTION

WITH CRIMINAL ACTION ................................ 160 HOW INSTITUTED ................................................ 160 WHEN CIVIL ACTION MAY PROCEED

INDEPENDENTLY ........................................... 160 SEPARATE ACTION FILED BY THE ACCUSED ............... 160 WHEN SEPARATE

CIVIL ACTION IS SUSPENDED ......................... 160 EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL

ACTION ............................................................. 160 PREJUDICIAL QUESTION ................................ 161 EFFECT ............................................................. 161 ELEMENTS OF PREJUDICIAL QUESTION ..................... 161 WHERE TO FILE PETITION FOR SUSPENSION IS FILED .. 161 RULE ON FILING FEES IN CIVIL ACTION DEEMED

INSTITUTED WITH THE CRIMINAL ACTION ..... 161 FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN

CRIMINAL ACTION ................................................ 161

Preliminary Investigation .. 161 NATURE OF RIGHT ......................................... 161 PRELIMINARY INVESTIGATION, DEFINED .................. 161 NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION ................................ 161 RIGHT TO PRELIMINARY INVESTIGATION .................. 162 INSTANCES WHEREIN THE RIGHT TO PI IS DEEMED WAIVED: ...................... 162 INSTANCES WHEREIN THE RIGHT TO PI IS NOT DEEMED WAIVED ............... 162

PURPOSES OF PRELIMINARY INVESTIGATION ...................... 162 SCOPE OF PI .................................................... 162 WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE .................. 162 PROCEDURE FOR PRELIMINARY INVESTIGATION ........ 163

RESOLUTION OF INVESTIGATING PROSECUTOR ....................... 163 REVIEW ............................................................. 163 REMEDY OF AN AGGRIEVED PARTY AGAINST THE

RESOLUTION OF THE DOJ SECRETARY ..................... 164

WHEN WARRANT OF ARREST MAY ISSUE ...... 164

CASES NOT REQUIRING A PRELIMINARY

INVESTIGATION .............................................. 164 CASES NOT REQUIRING A PRELIMINARY INVESTIGATION

NOR COVERED BY RULE ON SUMMARY PROCEDURE ... 164

REMEDIES OF ACCUSED IF THERE WAS NO

PRELIMINARY INVESTIGATION ...................... 164 EFFECT OF DENIAL OF RIGHT TO PRELIMINARY

INVESTIGATION ................................................... 164 IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED 165

INQUEST ......................................................... 165 DEFINITION ........................................................ 165

PROCEDURE FOR INQUEST PROCEEDINGS ................ 165

Arrest ................................. 166 DEFINITION ................................................... 166 IMMUNITY FROM ARREST ..................................... 166 ARREST, HOW MADE ..................................... 166 MODES OF EFFECTING ARREST .............................. 166 NO UNNECESSARY VIOLENCE ................................ 166 TIME TO MAKE ARREST ......................................... 166 ARREST WITHOUT WARRANT, WHEN LAWFUL 166 RULES ON ILLEGALITY OF ARREST ........................... 167 METHOD OF ARREST ...................................... 167 BY OFFICER WITH WARRANT .................................. 167 BY OFFICER WITHOUT WARRANT ............................ 168 BY PRIVATE PERSON ........................................... 168 REQUISITES OF A VALID WARRANT OF ARREST ........................ 168 ESSENTIAL REQUISITES OF A VALID ARREST WARRANT 168 INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST ......................................... 168 DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST ............ 169 DISTINGUISH PROBABLE CAUSE OF FISCAL

FROM THAT OF A JUDGE ................................ 169

Bail ..................................... 169 NATURE ......................................................... 169 DEFINITION ........................................................ 169 PURPOSES ........................................................ 169 AS REGARDS THE REQUIREMENT OF CUSTODY .......... 169 WHEN A MATTER OF RIGHT; EXCEPTIONS .... 169 BAIL AS A MATTER OF RIGHT ................................. 169 WHEN BAIL NOT AVAILABLE .................................. 169 WHEN A MATTER OF DISCRETION ...................170 WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL

BE DENIED ..........................................................170 HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES ...........................170 CONVICTION .......................................................170 PROSECUTION HAS BURDEN OF PROOF ....................170 REGARDING MINORS CHARGED WITH A CAPITAL OFFENSE ......................................170 DUTY OF JUDGE TO CONDUCT HEARING .................... 171 WHERE THE APPLICATION IS FILED .......................... 171

GUIDELINES IN FIXING AMOUNT OF BAIL .................................................. 171 BAIL WHEN NOT REQUIRED ............................. 171 INCREASE OR REDUCTION OF BAIL .......................... 172 INCREASED BAIL ................................................. 172 REDUCED BAIL .................................................... 172 FORFEITURE AND CANCELLATION OF BAIL ... 172 FORFEITURE OF BAIL ............................................ 172 CANCELLATION OF BAIL ........................................ 172 APPLICATION NOT A BAR TO OBJECTIONS IN

ILLEGAL ARREST, LACK OF OR IRREGULAR

PRELIMINARY INVESTIGATION ...................... 172 HOLD DEPARTURE ORDER & BUREAU OF

IMMIGRATION WATCHLIST ............................ 172

Rights of the Accused ....... 173 RIGHTS OF ACCUSED AT THE TRIAL ................ 173 TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS

PROVED BEYOND REASONABLE DOUBT .................... 173 TO BE INFORMED OF THE NATURE AND CAUSE OF

ACCUSATION AGAINST HIM .................................... 174 TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL

AT EVERY STAGE OF THE PROCEEDINGS .................... 174 TO TESTIFY AS WITNESS IN HIS BEHALF .................... 174 RIGHT AGAINST SELF-INCRIMINATION ..................... 174 RIGHT TO CONFRONTATION ................................... 175 RIGHT TO COMPULSORY PROCESS ........................... 175 RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ..... 175 RIGHT TO APPEAL ................................................ 175

RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION ........................... 175 TO BE ASSISTED BY COUNSEL AT ALL TIMES .............. 176 TO REMAIN SILENT .............................................. 176 TO BE INFORMED, IN A LANGUAGE KNOWN TO AND

UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT

AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,

PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL

TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE

PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL

INVESTIGATION ................................................... 176 TO BE ALLOWED VISITS BY OR CONFERENCES WITH .... 176 CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS .............................................. 176

Arraignment and Plea ...... 176 ARRAIGNMENT AND PLEA, HOW MADE ........ 176 DEFINITION ........................................................ 176 DUTY OF THE COURT BEFORE ARRAIGNMENT ............ 177

BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY

AVAIL OF ANY OF THE FOLLOWING: .......................... 177 HOW ARRAIGNMENT MADE .................................... 177 SPECIFIC RULES ON ARRAIGNMENT ......................... 178

WHEN SHOULD PLEA OF NOT GUILTY BE

ENTERED ........................................................ 178 INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED

FOR THE ACCUSED ............................................... 178

WHEN ACCUSED MAY ENTER A PLEA OF GUILTY

TO A LESSER OFFENSE ................................... 179 PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT .. 179 PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT

BEFORE TRIAL .................................................... 179 PLEA TO A LESSER OFFENSE AFTER TRIAL HAS BEGUN .................................... 179

ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,

WHAT THE COURT SHOULD DO ....................... 179 DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A

CAPITAL OFFENSE ................................................ 179 SEARCHING INQUIRY ...................................... 179 PLEA OF GUILTY TO A CAPITAL OFFENSE ................... 179 IMPROVIDENT PLEA OF GUILTY TO A CAPITAL

OFFENSE ......................................................... 179 DEFINITION ........................................................ 179 WHEN IMPROVIDENT PLEAMAY BE WITHDRAWN ........ 179 GROUNDS FOR SUSPENSION OF ARRAIGNMENT .......................................... 179 UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE

TIME OF THE ARRAIGNMENT .................................. 179 PREJUDICIAL QUESTION EXISTS ............................. 180 PENDING PETITION FOR REVIEW OF THE RESOLUTION OF

THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE

PRESIDENT. ...................................................... 180 PENDING MOTION TO QUASH ................................ 180

Motion to Quash ............... 180 GROUNDS ...................................................... 180 FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE ...................................................... 180 COURT HAS NO JURISDICTION OVER THE OFFENSE CHARGED ........................................ 181 COURT HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED ................................ 181 OFFICER WHO FILED INFORMATION HAD NO AUTHORITY TO DO SO ...................................... 181 COMPLAINT/INFORMATION DOES NOT CONFORM

SUBSTANTIALLY TO THE PRESCRIBED FORM .............. 181 MORE THAN ONE OFFENSE IS CHARGED ................... 182 CRIMINAL ACTION OR LIABILITY

HAS BEEN EXTINGUISHED ...................................... 182 CONTAINS AVERMENTS WHICH, IF TRUE, WOULD

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION ....... 182 DISTINGUISH FROM DEMURRER TO EVIDENCE .............................. 182 EFFECTS OF SUSTAINING THE MOTION TO

QUASH ............................................................ 183 EXCEPTION TO THE RULE THAT SUSTAINING THE

MOTION IS NOT A BAR TO ANOTHER

PROSECUTION ................................................ 183 DOUBLE JEOPARDY ........................................ 183 RULE OF DOUBLE JEOPARDY .................................. 183 KINDS OF DOUBLE JEOPARDY ................................. 183 SAME OFFENSE ................................................... 183 SAME ACT .......................................................... 184 REQUISITES TO SUCCESSFULLY INVOKE DOUBLE JEOPARDY ................................... 184 REQUISITES FOR FIRST JEOPARDY TO ATTACH ........... 184 “WITHOUT EXPRESS CONSENT” ............................. 184 DISMISSAL = ACQUITTAL ....................................... 184 DISMISSAL VS. ACQUITTAL .................................... 184 PROVISIONAL DISMISSAL ............................... 184 DEFINITION ........................................................ 184 WHEN DISMISSAL BECOMES PERMANENT: TIME BAR RULE ................................................... 185 HOW TO REVIVE A CASE ........................................ 185 REQUISITE PROCEDURE ....................................... 185

Pre-trial .............................. 185 JUDICIAL AFFIDAVIT RULE ............................................. 185

MATTERS TO BE CONSIDERED DURING PRE-TRIAL .............................................................. 185 COVERAGE .......................................................... 185 PERIOD .............................................................. 185 THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES 186 ROLE OF THE JUDGE ............................................. 186 STIPULATION OF FACTS ........................................ 186 MARKING FOR IDENTIFICATION OF THE EVIDENCE OF

PARTIES ............................................................ 186 WHAT THE COURT SHOULD DO WHEN

PROSECUTION AND OFFENDED PARTY AGREE

TO THE PLEA OFFERED BY THE ACCUSED ..... 186 PLEA BARGAINING ............................................... 186 EFFECT WHEN THE PROSECUTION AND THE OFFENDED

PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED 186 PRE-TRIAL AGREEMENT ................................ 186 FORM ................................................................ 186

REQUIRED FORM OF PRE-TRIAL AGREEMENT ........... 186 EFFECT ............................................................. 186 NON-APPEARANCE DURING PRE-TRIAL ......... 187 PRE-TRIAL ORDER .......................................... 187 ISSUANCE .......................................................... 187 CONTENTS ......................................................... 187 EFFECT .............................................................. 187 REFERRAL OF SOME CASES FOR COURT

ANNEXED MEDIATION AND JUDICIAL DIPUTE

RESOLUTION .................................................. 187 A.M. NO. 03-1-09-SC RE: PROPOSED RULE ON

GUIDELINES TO BE OBSERVED BY TRIAL COURT

JUDGES AND CLERKS OF COURT IN THE

CONDUCT OF PRE- TRIAL AND USE OF

DEPOSITION-DISCOVERY MEASURES

RESOLUTION .................................................. 187

Trial .................................... 187 INSTANCES WHEN PRESENCE OF ACCUSED IS

REQUIRED BY LAW ......................................... 187 PRESENCE IS MANDATORY ..................................... 187 REQUISITES BEFORE TRIAL CAN BE SUSPENDED

ON ACCOUNT OF ABSENCE OF WITNESS ....... 188 ABSENCE OR UNAVAILABILITY OF AN ESSENTIAL WITNESS ....................................... 188 CONDITIONAL EXAMINATION ................................ 188 TRIAL IN ABSENTIA ........................................ 188 REQUISITES ....................................................... 188 REMEDY WHEN ACCUSED IS NOT BROUGHT TO

TRIAL WITHIN THE PRESCRIBED PERIOD ...... 188 EFFECT OF DELAY ............................................... 188 REQUISITES FOR DISCHARGE OF ACCUSED TO

BECOME A STATE WITNESS ............................ 188 DISCHARGE OF A CO-ACCUSED .............................. 188 REQUISITES ...................................................... 189 EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS ....................... 189 EFFECT OF DISCHARGE ......................................... 189 DEMURRER TO EVIDENCE .............................. 189 DEFINITION ....................................................... 189 HOW INITIATED .................................................. 189 MOTION FOR LEAVE TO FILE DEMURRER .................. 189 EFFECT OF GRANTING DEMURRER .......................... 189 EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE

DEMURRER ....................................................... 190

RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER

DEMURRER IS DENIED ..........................................190

Judgment .......................... 190 REQUISITES OF A JUDGMENT ........................190 FORM ...............................................................190 JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE

WHO HEARD THE CASE .........................................190 CONTENTS OF JUDGMENT .............................190 CONVICTION ......................................................190 ACQUITTAL ........................................................ 192 PROMULGATION OF JUDGMENT; INSTANCES OF

PROMULGATION OF JUDGMENT IN ABSENTIA 192 PROMULGATION ................................................. 192 NOTICE FOR PROMULGATION ................................. 192 WHEN DOES JUDGMENT BECOME FINAL ........ 193 JUDGMENT BECOMES FINAL ................................... 193

New trial or Reconsideration ........... 194 GROUNDS FOR NEW TRIAL ............................ 194 GROUNDS FOR RECONSIDERATION ......................... 194 REQUISITES BEFORE A NEW TRIAL MAY BE

GRANTED ON GROUND OF NEWLY DISCOVERED

EVIDENCE ....................................................... 194 REQUISITES ........................................................ 194 EXCEPTIONS ....................................................... 194 EFFECTS OF GRANTING A NEW TRIAL OR

RECONSIDERATION ........................................ 194 IN ALL CASES ...................................................... 194 REMEDY AGAINST GAD IN GRANTING MNT/MFR ........ 195

APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES ............................................ 195 FRESH PERIOD TO APPEAL AFTER DENIAL OF MNT/MR ................................... 195

Appeal .............................. 195 EFFECT OF AN APPEAL ................................... 195 WHERE TO APPEAL ............................................... 195 HOW APPEAL TAKEN ...................................... 195 WHO MAY APPEAL ............................................... 195 PROCEDURE IN THE CA ......................................... 196 PROMPT DISPOSITION OF APPEAL ........................... 197 REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL 197 SCOPE OF CA’S JUDGMENT .................................... 197 CA’S POWER TO RECEIVE EVIDENCE ......................... 198

QUORUM IN THE CA ............................................. 198 CERTIFICATION OR APPEAL OF CASES TO THE SC ....... 198 JUDGMENT TRANSMITTED AND FILED IN TC .............. 198 MNT DURING THE PENDENCY OF APPEAL IN THE CA ... 198 MFR OF CA JUDGMENT ......................................... 198 APPLICABLE CIVIL PROCEDURE RULES ..................... 199 PROCEDURE IN THE SC ......................................... 199 EFFECT OF APPEAL BY ANY OF \SEVERAL

ACCUSED ...................................................... 200 GROUNDS FOR DISMISSAL OF APPEAL ........ 200 WHEN APPEAL BY THE PEOPLE WILL NOT LIE ........... 200

Search and Seizure .......... 201 NATURE OF SEARCH WARRANT .................... 201 DEFINITION ....................................................... 201 NATURE OF A SEARCH WARRANT ........................... 201 BASIS: CONSTITUTIONAL SAFEGUARD AGAINST

UNREASONABLE SEARCH AND SEIZURES ................. 201 CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC

OFFICERS’ ACTS, NOT PRIVATE PERSONS ................. 201

DISTINGUISH FROM WARRANT OF ARREST .................................. 201

APPLICATION FOR SEARCH WARRANT, WHERE

FILED ............................................................. 202 APPLICATION ..................................................... 202 ISSUANCE AND FORM OF SEARCH WARRANT ............ 203 VALIDITY OF SEARCH WARRANT ............................. 203 SERVICE OF SEARCH WARRANT ............................. 203 POST-SERVICE ................................................... 203

PROBABLE CAUSE ......................................... 204 WARRANTS GENERALLY ISSUED UPON PROBABLE CAUSE ............................ 204 PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST AND

WARRANTLESS SEARCH ....................................... 204

PERSONAL EXAMINATION BY JUDGE OF THE

APPLICANT AND WITNESSES ........................ 204 EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE

JUDGE; DETERMINED BY JUDGE HIMSELF ................. 204

PARTICULARITY OF PLACE TO BE SEARCHED

AND THINGS TO BE SEIZED ............................ 205 PARTICULARITY OF PLACE TO BE SEARCHED ........................................... 205 PARTICULARITY OF THINGS TO BE SEIZED ................ 205

PERSONAL PROPERTY TO BE SEIZED ............ 205 WHAT MAY BE SEIZED ......................................... 205 RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC ....... 205

EXCEPTIONS TO SEARCH WARRANT

REQUIREMENT .............................................. 205 SEARCH INCIDENTAL TO LAWFUL ARREST ................ 205 CONSENTED SEARCH ........................................... 206 SEARCH OF MOVING VEHICLE ................................ 206 CHECK POINTS; BODY CHECKS IN AIRPORT ............... 206 PLAIN VIEW SITUATION ........................................ 207 STOP AND FRISK SITUATION ................................. 207 ENFORCEMENT OF CUSTOM LAWS .......................... 207 OTHER EXCEPTIONS ............................................ 207

REMEDIES FROM UNLAWFUL SEARCH AND

SEIZURE ........................................................ 208 WHO MAY AVAIL OF REMEDIES .............................. 208 REMEDIES ......................................................... 208 CRIMINAL LIABILITY ............................................ 209 CIVIL LIABILITIES ................................................ 209

Provisional Remedies ...... 209 NATURE ......................................................... 209 KINDS OF PROVISIONAL REMEDIES .............. 209 PRELIMINARY ATTACHMENT .................................. 210

EVIDENCE

General Principles of Evidence ............................ 212 CONCEPT OF EVIDENCE .................................. 212 SCOPE OF THE RULES OF EVIDENCE .............. 212 APPLICABILITY ..................................................... 212 EVIDENCE IN CIVIL CASES VS. EVIDENCE IN CRIMINAL CASES ...................... 212

PROOF VS. EVIDENCE ..................................... 212 FACTUM PROBANS VS. FACTUM PROBANDUM ................................... 212 CLASSIFICATION OF EVIDENCE ................................ 212 ADMISSIBILITY OF EVIDENCE .......................... 213 REQUISITES FOR ADMISSIBILITY OF EVIDENCE ............. 213 WHEN DETERMINED ............................................. 213 RELEVANCE OF EVIDENCE & COLLATERAL MATTERS .... 213 DOCTRINES OF ADMISSIBILITY ................................ 213 BURDEN OF PROOF AND BURDEN OF EVIDENCE .................................... 214 WHERE BURDEN OF PROOF IS FIXED ......................... 214 EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE .......... 214

PRESUMPTIONS ............................................ 214 LIBERAL CONSTRUCTION OF THE RULES OF

EVIDENCE ........................................................215 QUANTUM OF EVIDENCE (WEIGHT AND

SUFFICIENCY OF EVIDENCE) ............................215 PROOF BEYOND REASONABLE DOUBT .......................215 PREPONDERANCE OF EVIDENCE ..............................215 SUBSTANTIAL EVIDENCE .......................................215 CLEAR AND CONVINCING EVIDENCE ..........................215

Judicial Notice and Judicial Admissions .......... 215 WHAT NEED NOT BE PROVED .........................215 JUDICIAL NOTICE .................................................215 MATTERS OF JUDICIAL NOTICE ........................215 MANDATORY .......................................................215 DISCRETIONARY ...................................................216 REQUISITES .........................................................216 JUDICIAL ADMISSIONS ...................................216 WHERE JUDICIAL ADMISSIONS MAY BE MADE .............216 HOW JUDICIAL ADMISSIONS MAY BE OBTAINED ............216 EFFECT OF JUDICIAL ADMISSIONS ............................216 HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED .....216 CONCLUSIVE PRESUMPTIONS ..................................216

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND

MUNICIPAL ORDINANCES ..................................... 218 FOREIGN LAWS ................................................... 218 LAW OF NATIONS ................................................ 219 MUNICIPAL ORDINANCES ....................................... 219

Object (Real) Evidence ..... 219 NATURE OF OBJECT EVIDENCE ............................... 219 REQUISITES FOR ADMISSIBILITY ................... 219 RELEVANT ......................................................... 219 COMPETENT ...................................................... 219

CATEGORIES OF OBJECT EVIDENCE ......................... 219 UNIQUE OBJECTS ................................................ 219 OBJECTS MADE UNIQUE ......................................... 219 NON-UNIQUE OBJECTS ......................................... 219 DEMONSTRATIVE EVIDENCE ......................... 219 EPHEMERAL ELECTRONIC COMMUNICATIONS ........... 220 VIEW OF AN OBJECT OR SCENE ...................... 220 CHAIN OF CUSTODY ............................................. 220 CHAIN OF CUSTODY ....................................... 220 MEANING OF CHAIN OF CUSTODY ............................ 220

IN RELATION TO DRUG CASES ................................. 220 PURPOSE OF ESTABLISHING CHAIN OF CUSTODY ....... 220 RULE ON DNA EVIDENCE ............................... 220 MEANING OF DNA ............................................... 220 APPLICATION FOR DNA TESTING ORDER ................... 220 POST-CONVICTION TESTING ................................... 221 ASSESSMENT AND PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY .......................... 221 RULES ON EVALUATION OF RELIABILITY OF THE DNA

TESTING METHODOLOGY ....................................... 221

Documentary Evidence .... 221 MEANING OF DOCUMENTARY EVIDENCE ....... 221 REQUISITES FOR ADMISSIBILITY .................. 222 BEST EVIDENCE RULE ..................................... 222 MEANING OF THE RULE ......................................... 222 APPLICABILITY .................................................... 222 MEANING OF “ORIGINAL DOCUMENT” ...................... 222 REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE

(EXCEPTIONS TO BER) ......................................... 222 RULES ON ELECTRONIC EVIDENCE ................ 222 APPLICABILITY .................................................... 222 MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA

MESSAGE .......................................................... 222 METHOD OF PROOF .............................................. 222 AUTHENTICATION OF ELECTRONIC DOCUMENTS &

ELECTRONIC SIGNATURES ..................................... 223 ELECTRONIC DOCUMENTS & THE HEARSAY RULE ...... 224 AUDIO, PHOTOGRAPHIC, VIDEO & EPHEMERAL EVIDENCE ......................................... 224 PAROL EVIDENCE .......................................... 224 MEANING OF PAROL EVIDENCE .............................. 224 APPLICATION OF THE PAROL EVIDENCE RULE ........... 224 WHEN PAROL EVIDENCE CAN BE INTRODUCED .......... 224 DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL

EVIDENCE RULE .................................................. 224 AUTHENTICATION AND PROOF OF DOCUMENTS ............................................ 225 MEANING OF AUTHENTICATION .............................. 225 PUBLIC AND PRIVATE DOCUMENTS .......................... 225 ATTESTATION OF A COPY ...................................... 226 PROOF OF LACK OF RECORD .................................. 226 WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD .. 226 PROOF OF NOTARIAL DOCUMENTS .......................... 226 ALTERATIONS IN A DOCUMENT ............................... 226 DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE ........................................ 226

Testimonial Evidence ....... 227

WITH RESPECT TO A WITNESS ....................... 227 QUALIFICATIONS OF A WITNESS .................... 227 WHEN DETERMINED ............................................. 227 IN CASE A PERSON IS CONVICTED OF A CRIME ............. 227 COMPETENCY VS. CREDIBILITY OF A WITNESS ................................................ 227 DISQUALIFICATIONS OF A WITNESS ............. 227 BY REASON OF MENTAL INCAPACITY OR IMMATURITY . 227 BY REASON OF MARRIAGE ..................................... 227 BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY.................................................. 228 PRIVILEGED COMMUNICATIONS ............................. 228 EXAMINATION OF WITNESSES ....................... 230 RIGHTS AND OBLIGATIONS OF A WITNESS ................. 230 ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS ....................................... 230 LEADING AND MISLEADING QUESTIONS .................... 231 METHODS OF IMPEACHMENT OF ADVERSE PARTY’S

WITNESS ............................................................ 231 JUDICIAL AFFIDAVIT RULE ...................................... 232 WITH RESPECT TO THE TESTIMONY ............... 233 ADMISSIONS & CONFESSIONS ....................... 233 ADMISSIONS OF A PARTY ....................................... 233 CONFESSIONS .................................................... 234 RES INTER ALIOS ACTA RULE .................................. 234 HEARSAY RULE ............................................. 235 MEANING OF HEARSAY ......................................... 235 REASON FOR EXCLUSION OF HEARSAY EVIDENCE ....... 235 GENERAL RULE ON HEARSAY ................................. 235 EXCEPTIONS ....................................................... 235 OPINION RULE ............................................... 239 OPINION OF EXPERT WITNESS ................................ 239 OPINION OF ORDINARY WITNESS ............................ 239 CHARACTER EVIDENCE .................................. 239 CRIMINAL CASES ................................................. 239 CIVIL CASES ........................................................ 239 RULE ON EXAMINATION OF A CHILD WITNESS .............................................. 239 MEANING OF “CHILD WITNESS” .............................. 239 APPLICABILITY OF THE RULE ................................. 239 COMPETENCY OF A CHILD WITNESS ......................... 239 EXAMINATION OF A CHILD WITNESS ......................... 239 LIVE-LINK TV TESTIMONY OF A CHILD WITNESS .......... 240 VIDEOTAPED DEPOSITION OF A CHILD WITNESS .......... 240 HEARSAY EXCEPTION IN CHILD ABUSE CASES ............ 240 SEXUAL ABUSE SHIELD RULE ................................. 240 PROTECTIVE ORDERS ........................................... 240

Offer and Objection ......... 240 OFFER OF EVIDENCE ..................................... 240 CONCEPT .......................................................... 240 AS DISTINGUISHED FROM IDENTIFICATION OF

DOCUMENTARY EVIDENCE ..................................... 241 RATIONALE WHY FORMER OFFER IS NEEDED .............. 241 WHEN OFFER IS NOT REQUIRED .............................. 241 WHEN TO MAKE AN OFFER ............................ 241 WHEN TO MAKE AN OFFER ............................. 241 OBJECTION ...................................................... 241 CONCEPT ............................................................ 241 PURPOSES OF OBJECTION ...................................... 241 FORMAL VS. SUBSTANTIVE OBJECTIONS................... 242 REPETITION OF AN OBJECTION ...................... 242 RULING .......................................................... 242 STRIKING OUT OF AN ANSWER...................... 242 MOTION TO STRIKE .............................................. 242 TENDER OF EXCLUDED EVIDENCE ................. 242 HOW TO TENDER EVIDENCE ................................... 242 RATIONALE ........................................................ 242 2 METHODS OF MAKING THE TENDER ...................... 242 ERRONEOUS WAY OF MAKING TENDER .................... 242

SPECIAL PROCEEDINGS

Preliminary Matters ......... 244 SPECIAL PROCEEDINGS ................................ 244 APPLICABLE RULES ....................................... 244 SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES ........................................... 244 DIFFERENCE BETWEEN ACTION AND SPECIAL

PROCEEDING ................................................. 244 VENUES AND JURISDICTIONS FOR SPECIAL

PROCEEDINGS ............................................... 244 MODES OF SETTLEMENT OF ESTATE [HERRERA] ................................. 245

Settlement of Estate of Deceased Persons, Venue And Process ..................... 245 WHICH COURT HAS JURISDICTION ................ 245 JURISDICTION OF RTCS ......................................... 245 JURISDICTION OF MTCS ........................................ 245 TESTATE PROCEEDINGS TAKE PRECEDENCE OVER

INTESTATE PROCEEDINGS OF THE SAME ESTATE. ....... 246

VENUE IN JUDICIAL SETTLEMENT OF ESTATE ............................... 246 RULE 73 RELATES TO VENUE AND NOT TO JURISDICTION ......................................... 246 MEANING OF TERM “RESIDES” ............................... 246 EXTENT OF JURISDICTION OF PROBATE COURT ...................................... 246 PROBATE COURT IS OF LIMITED JURISDICTION ........... 246 POWERS AND DUTIES OF PROBATE COURT .. 246

Summary Settlement of Estates .............................. 246 EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED ............... 246 REQUISITES ....................................................... 246 PROCEDURE ...................................................... 247 BOND REQUIREMENT ........................................... 247 NOT BINDING ON ANY PERSON WHO ........................ 247 VALIDITY OF ORAL PARTITION ................................ 247 VALIDITY OF COMPROMISE AGREEMENT ................... 247 NO PRECLUSION FROM INSTITUTING ADMINISTRATION

PROCEEDINGS .................................................... 247 TWO-YEAR PRESCRIPTIVE PERIOD ............... 247 PRESUMPTION OF NO DEBTS ................................. 247

AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

HEIR ............................................................... 247 BOND REQUIREMENT ........................................... 247

SUMMARY SETTLEMENT OF ESTATES OF SMALL

VALUE ............................................................ 247 WHEN ALLOWED ................................................. 247 PROCEDURE ...................................................... 248

REMEDIES OF AGGRIEVED PARTIES AFTER

EXTRA-JUDICIAL SETTLEMENT OF ESTATE ... 248 CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO

YEARS .............................................................. 248 ACTION TO ANNUL A DEED OF EXTRAJUDICIAL PARTITION .................................... 249 NEW ACTION TO ANNUL SETTLEMENT WITHIN

REGLEMENTARY PERIOD OF TWO YEAR .................... 249 REOPENING BY INTERVENTION BEFORE RENDITION OF

JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO

YEARS .............................................................. 249 PETITION FOR RELIEF ON THE GROUND OF FRAUD,

ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE ...... 249 RESCISSION IN CASE OF PRETERITION ...................... 249

Production and Probate of Will .................................... 249 NATURE OF PROBATE PROCEEDING ............ 249 EFFECT OF PROBATE OF WILL ................................. 249

WHO MAY PETITION FOR PROBATE; PERSONS

ENTITLED TO NOTICE .................................... 249 PETITIONER FOR THE ALLOWANCE OF THE WILL ......... 249 MEANING OF INTEREST IN ESTATE .......................... 249 JURISDICTION, HOW ACQUIRED .............................. 250

Allowance or Disallowance of Will .................................... 250 CONTENTS OF PETITION FOR ALLOWANCE OF

WILL .............................................................. 250 DEFECT IN PETITION ............................................ 250

GROUNDS FOR DISALLOWING A WILL .......... 250

REPROBATE; REQUISITES BEFORE WILL PROVED

OUTSIDE ALLOWED IN THE PHILIPPINES;

EFFECTS OF PROBATE ................................... 250 REPROBATE ....................................................... 250

REQUISITES FOR ALLOWANCE ..................... 250 EFFECT ............................................................. 250

Letters Testamentary and of Administration ................. 250 WHEN AND TO WHOM LETTERS OF

ADMINISTRATION GRANTED ........................ 250 WHO ARE INCOMPETENT TO SERVE ......................... 250

ORDER OF PREFERENCE ................................ 251 ORDER OF PREFERENCE IN THE GRANT OF

ADMINISTRATION ................................................ 251 REASON FOR ORDER OF PREFERENCE ...................... 251 30-DAY PERIOD MAY BE WAIVED ............................. 251 OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF

PETITION FOR ADMINISTRATION .................. 251 MEANING OF INTERESTED PERSON .......................... 251 GROUNDS .......................................................... 251 CONTENTS ......................................................... 251 JURISDICTIONAL FACTS ......................................... 251 PUBLICATION AND NOTICE ..................................... 251 SIMULTANEOUS FILING OF OPPOSITION AND PETITION 252

POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS; RESTRICTIONS ON THE

POWERS ........................................................ 252 GENERAL POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS ............................................... 252 RESTRICTIONS ON POWERS OF EXECUTORS AND

ADMINISTRATORS ............................................... 252

APPOINTMENT OF SPECIAL ADMINISTRATOR ............................ 253 WHEN APPOINTED ............................................... 253 PROCEDURE FOR APPOINTMENT ............................ 253 POWERS AND DUTIES OF SPECIAL ADMINISTRATOR .... 253 WHEN SPECIAL ADMINISTRATOR CEASES DUTIES ........ 253

GROUNDS FOR REMOVAL OF ADMINISTRATOR .................... 253 REVOCATION OF ADMINISTRATOR ........................... 253 REMOVAL OF EXECUTOR OR ADMINISTRATOR ............ 253 EFFECT OF REMOVAL, DEATH, OR RESIGNATION ........ 254

Claims against the Estate ......................... 254 ESTATE BURDENED WITH LIEN OF CREDITORS ...................................... 254 PURPOSE OF PRESENTATION OF CLAIMS

AGAINST ESTATE ........................................... 254 TIME WITHIN WHICH CLAIMS SHALL BE FILED;

EXCEPTIONS .................................................. 254

STATUTE OF NON-CLAIMS ............................ 254 CLAIMS COVERED (EXCLUSIVE) .............................. 254 CONTINGENT CLAIM WHEN ALLOWED ...................... 254 IF DISPUTED ....................................................... 254

CLAIM OF EXECUTOR OR ADMINISTRATOR

AGAINST THE ESTATE .................................... 255 PROCEDURE TO FOLLOW IF THE EXECUTOR OR

ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE

REPRESENTS ..................................................... 255

PAYMENT OF DEBTS ...................................... 255 DEBTS PAID IN FULL IF ESTATE SUFFICIENT ............... 255 PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION

MADE BY WILL .................................................... 255 PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN

REALTY ............................................................ 255 ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS .......................................... 255 PAYMENT OF CONTINGENT CLAIM ........................... 255 COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES,

LEGATES, OR HEIRS HAVE BEEN IN POSSESSION ........ 255 ORDER OF PAYMENT IF ESTATE IS INSOLVENT ........... 256 DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS .... 256

INSOLVENT NON-RESIDENT .................................. 256 INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND

FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY ...... 256 ORDER OF PAYMENT OF DEBTS .............................. 256 APPEAL TAKEN FROM A DECISION OF THE COURT

CONCERNING THE CLAIM ...................................... 256 FROM TIME TO TIME FURTHER ORDERS OF DISTRIBUTION ................................... 256 CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF

ORDER ............................................................. 256 COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A

TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND

LEGACIES ......................................................... 256

Actions by and against Executors and Administrators .......... 257 ACTIONS THAT MAY BE BROUGHT AGAINST

EXECUTORS AND ADMINISTRATORS ........... 257 ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT

AGAINST THE EXECUTOR OR ADMINISTRATOR ........... 257 ACTIONS WHICH MAY NOT BROUGHT AGAINST

ADMINISTRATORS ............................................... 257 EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND

ACTIONS WHICH SURVIVE ..................................... 257 WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED

BY DECEASED MAY BE RECOVERED .......................... 257 DUTY OF EXECUTOR/ADMINISTRATOR ..................... 257 REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR

RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY

THE DECEASED ................................................... 257 ALLOWED IN TWO INSTANCES ................................ 257 EFFECT ............................................................. 258

Distribution and Partition ............................ 258 LIQUIDATION ................................................ 258 PROJECT OF PARTITION ................................ 258 EFFECT OF FINAL DECREE OF DISTRIBUTION 258 REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT

NOT GIVEN HIS SHARE .................................. 258 INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF

EXECUTION ........................................................ 258

Trustees ............................ 259 DISTINGUISHED FROM EXECUTOR OR

ADMINISTRATOR .......................................... 259 CONDITIONS OF THE BOND ........................... 259 WHEN EXEMPT ................................................... 259 CONDITIONS ...................................................... 259

REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE ........................ 259

GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE ..................................................... 259 GROUNDS FOR REMOVAL ...................................... 259 GROUNDS FOR RESIGNATION ................................. 259

EXTENT OF AUTHORITY OF TRUSTEE ............ 259 NATURE OF POSSESSION ...................................... 259 TERRITORIALITY OF AUTHORITY OF TRUSTEE ............. 259

Escheat ............................. 260 WHEN TO FILE ................................................ 260

REQUISITES FOR FILING OF PETITION ........... 260 PROCEDURE ...................................................... 260

REMEDY OF RESPONDENT AGAINST PETITION;

PERIOD FOR FILING A CLAIM ......................... 260 PERIOD TO APPEAL AND CLAIM THE ESTATE .............. 260 FILED BY WHOM .................................................. 260 PERIOD FOR FILING CLAIM ..................................... 260

Guardianship .................... 261 GUARDIAN ......................................................261 BASIS: PARENS PATRIAE ................................261 KINDS OF GUARDIANS ..........................................261

GUARDIANSHIP OF INCOMPETENT ................261 PROCEDURE .......................................................261

GENERAL POWERS AND DUTIES OF GUARDIANS ..................................261 REIMBURSEMENT OF REASONABLE EXPENSES .......... 262 PAYMENT OF COMPENSATION ................................ 262 EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF

WARD’S PROPERTIES ........................................... 262 ORDER TO SHOW CAUSE ....................................... 262 ORDER FOR SALE OR ENCUMBRANCE ....................... 262 INVESTMENT OF PROCEEDS AND MANAGEMENT OF

PROPERTY ......................................................... 262

CONDITIONS OF THE BOND OF THE GUARDIAN

....................................................................... 262

RULE ON GUARDIANSHIP OVER MINORS ...... 263 PETITION FOR APPOINTMENT OF GUARDIAN .............. 263 THE GUARDIAN ................................................... 264 REMOVAL, RESIGNATION, AND TERMINATION OF

GUARDIANSHIP .................................................. 264

Adoption ........................... 265

DISTINGUISH DOMESTIC ADOPTION FROM

INTER-COUNTRY ADOPTION (ANNEX A) ....... 265

DOMESTIC ADOPTION ACT ............................ 265 PROCEDURE ...................................................... 265 EFFECTS OF ADOPTION ......................................... 265 INSTANCES WHEN ADOPTION MAY BE RESCINDED ...... 266 RESCISSION OF ADOPTION OF THE ADOPTEE ............. 266 INTER-COUNTRY ADOPTION ......................... 266 WHEN ALLOWED ................................................. 266 INTER-COUNTRY ADOPTION AS THE LAST RESORT; “BEST

INTEREST OF THE CHILD” AS OBJECTIVE ................... 266 FUNCTIONS OF THE RTC ........................................ 266

Writ of Habeas Corpus .... 266 VITAL PURPOSES .......................................... 266 WHO MAY ISSUE THE WRIT ........................... 267 TEMPORARY RELEASE MAY CONSTITUTE

RESTRAINT -ELEMENTS ................................ 267 NATURE ......................................................... 267 WHC MAY BE USED WITH WRIT OF CERTIORARI

FOR PURPOSES OF REVIEW .......................... 267 WHC IS NOT THE PROPER REMEDY FOR THE

CORRECTION OF ERRORS OF FACT OR LAW . 267 WHC IS NOT PROPER ..................................... 268 WHC IS PROPER ............................................ 268 CONTENTS OF THE PETITION ........................ 268 REQUISITES OF APPLICATION ................................. 268 PROCEDURE ...................................................... 268

CONTENTS OF THE RETURN .......................... 268 WHEN THE RETURN CONSIDERED EVIDENCE, AND WHEN

ONLY A PLEA ...................................................... 268 DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION ............................... 268 WHEN WRIT NOT PROPER OR APPLICABLE .. 268 WHEN DISCHARGE NOT AUTHORIZED .......... 269 DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF 269

DISTINGUISHED FROM WRIT OF AMPARO AND

HABEAS DATA (ANNEX B) ............................... 269 CUSTODY OF MINORS AND WRIT OF HABEAS

CORPUS IN RELATION TO CUSTODY OF MINORS

(A.M. NO. 03-04-04-SC) ................................. 269 APPLICABILITY ................................................... 269 PETITION FOR RIGHTFUL CUSTODY .......................... 269 WHERE TO FILE ................................................... 269 CONTENTS ........................................................ 269 ANSWER TO THE PETITION .................................... 269 MANDATORY PRE-TRIAL ....................................... 270 INTERIM RELIEFS ................................................ 270 JUDGMENT ......................................................... 271

WRIT OF HABEAS CORPUS IN RELATION TO

CUSTODY OF MINORS ..................................... 271

Writ of Amparo ................... 271 COVERAGE ...................................................... 271 WRIT OF AMPARO ................................................ 271

DISTINGUISH FROM WRIT OF HABEAS CORPUS

AND HABEAS DATA (ANNEX C) ...................... 272 DISTINGUISH WRIT OF AMPARO FROM SEARCH

WARRANT ..................................................... 272 WHO MAY FILE ............................................... 272 RATIO FOR PREFERENCE ....................................... 272 WHERE TO FILE ................................................... 272 CONTENTS ......................................................... 272

CONTENTS OF RETURN ................................. 273 CONTENTS ......................................................... 273 TO WHOM RETURNABLE ....................................... 273

OMNIBUS WAIVER RULE ............................... 273 DEFENSES NOT PLEADED DEEMED WAIVED. .............. 273

EFFECT OF FAILURE TO FILE A RETURN ........ 273

PROCEDURE FOR HEARING ON THE WRIT .... 273 SUMMARY HEARING ............................................ 273 PROHIBITED PLEADINGS AND MOTIONS .................... 273 JUDGMENT ........................................................ 273 ARCHIVING AND REVIVAL OF CASES ......................... 273

INSTITUTION OF SEPARATE ACTIONS ........... 273 EFFECT OF FILING OF A CRIMINAL ACTION ... 273 CONSOLIDATION ........................................... 274

INTERIM RELIEFS AVAILABLE TO THE

PETITIONER ................................................... 274 TEMPORARY PROTECTION ORDER ........................... 274 INSPECTION ORDER ............................................. 274 PRODUCTION ORDER ........................................... 274 WITNESS PROTECTION ORDER ............................... 275

INTERIM RELIEFS AVAILABLE TO THE

RESPONDENT ................................................ 275 REQUISITES ....................................................... 275

QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT: SUBSTANTIAL EVIDENCE .............................. 275 IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE .. 275 IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY . 275

Change of Name and Cancellation or Correction of Entries In the Civil Registry ............... 275 DIFFERENCES UNDER THE APPLICABLE RULES

(RULE 103, RULE 108, RA 9048) ..................... 275 GROUNDS FOR CHANGE OF NAME (ANNEX D) 275 JURISPRUDENCE ........................................... 275

Absentees ......................... 276 PURPOSE OF THE RULE ................................. 276

WHO MAY FILE; WHEN TO FILE ...................... 276 WHEN TERMINATED ..................................... 276

Cancellation or Correction of Entries in the Civil Registry ............... 277 ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108, IN RELATION TO

RA 9048 .......................................................... 277 SUBSTANTIAL CHANGE .......................................... 277 APPROPRIATE ADVERSARY PROCEEDING ................. 277 PROCEDURAL REQUIREMENTS OF AN ADVERSARY

PROCEEDING ...................................................... 277

Appeals in Special Proceeding ........................ 277 JUDGMENTS AND ORDERS FOR WHICH APPEAL

MAY BE TAKEN ............................................... 277 WHEN TO APPEAL ......................................... 278 MODES OF APPEAL ....................................... 278 RULE ON ADVANCE DISTRIBUTION ............... 278

ANNEX A ........................................................ 279 ANNEX B ....................................................... 282 ANNEX C ........................................................ 283 ANNEX D ........................................................ 289

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General Principles CONCEPT OF REMEDIAL LAW CONCEPT Remedial statute or statutes: (1) relating to remedies or modes of procedure; (2) do not take away or create vested rights; (3) BUT operate in furtherance of rights already

existing. [Riano citing Systems Factor Corporation v NLRC (2000)]

The Rules of Court, promulgated by authority of law, have the force and effect of law, if not in conflict with positive law [Inchausti & Co v de Leon (1913)]. The rule is subordinate to the statute, and in case of conflict, the statute will prevail. [Shioji v Harvey (1922)]. APPLICABILITY The Rules of Court is applicable in ALL COURTS, except as otherwise provided by the SC [Rule 1, Sec. 2]. It governs the procedure to be observed in civil or criminal actions and special proceedings [Rule 1, Sec. 3]. It does not apply to the following cases: [ELCINO] (1) Election cases, (2) Land registration cases, (3) Cadastral cases, (4) Naturalization cases, (5) Insolvency proceedings (6) Other cases not herein provided for

Except by analogy or in a suppletory character and whenever practicable and convenient [Rule 4, Sec. 4] PROSPECTIVITY/RETROACTIVITY The Rules of Court are not penal statutes and cannot be given retroactive effect [Bermejo v Barrios (1970)]. Rules of procedure may be made applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. [In the Matter to Declare in Contempt of Court Hon. Simeon Datumanong (2006)]. SUBSTANTIVE LAW AS DISTINGUISHED FROM REMEDIAL LAW REMEDIAL LAW OR PROCEDURAL LAW (a) provides a method of enforcing the rights

established by substantive law; (b) prescribes the method of enforcing rights or

obtaining redress for their invasion. [Bustos v Lucero (1948)]

(c) Judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. [Fabian v Desierto (1998)]

SUBSTANTIVE LAW That part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public affairs [Bustos v Lucero (1948)] RULE-MAKING POWER OF THE SUPREME COURT (a) The Rules of Court was adopted and

promulgated by the Supreme Court pursuant to the provisions of Sec 5(5) of Art. VIII of the Constitution, vesting in it the power to: (1) Promulgate rules concerning the protection

and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.

(b) The power to promulgate rules of pleading, practice, and procedure is no longer shared by the Supreme Court with Congress, more so with the executive… [Riano citing Echegaray v Secretary of Justice (1999)]

LIMITATIONS ON THE RULE-MAKING POWER OF THE

SUPREME COURT Sec 5(5) of Art. VIII of the Constitution sets forth the limitations to the power: [SUS] (a) that the rules shall provide a simplified and

inexpensive procedure for speedy disposition of cases;

(b) that the rules shall be uniform for courts of the same grade; and

(c) that the rules shall not diminish, increase or modify substantive rights.

POWER OF THE SUPREME COURT TO AMEND AND SUSPEND

PROCEDURAL RULES Power to amend remedial laws (a) The constitutional faculty of the Court to

promulgate rules of practice and procedure necessarily carries with it the power to overturn judicial precedents on points of remedial law through the amendment of the Rules of Court. [Pinga v Heirs of Santiago (2006)].

(b) The SC has the sole prerogative to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of case [Neypes v CA (2005)]

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Power to suspend remedial laws (a) It is within the inherent power of the Supreme

Court to suspend its own rules in a particular case in order to do justice [De Guia v De Guia (2001)].

(b) When the operation of rules will lead to an injustice or if their application tends to subvert and defeat instead of promote and enhance justice, their suspension is justified [Republic v CA (1978)].

(c) There is no absolute rule as to what constitutes good and sufficient cause that will merit suspension of the rules. The matter is discretionary upon the Court [Republic v Imperial Jr. (1999)].

(d) The bare invocation of "the interest of substantial justice" is not a magic wand that will automatically compel this Court to suspend procedural rules [Ramos v Sps Lavendia (2008)].

(e) Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. [Polanco v Cruz (2009)].

NOTE: Although not laws in the technical sense of the term, Rules of Court, promulgated by authority of law, have the force and effect of law. [Riano citing Shioji v Harvey (1922)] Applicability: Prospective The Rules of Court shall govern cases brought after they take effect, and also all further proceedings then pending, EXCEPT to the extent that in the opinion of the Court their application would not be feasible or would work injustice. [Riano citing Rule 114] NATURE OF PHILIPPINE COURTS MEANING OF A COURT Definition (a) A court is an organ of the government belonging

to the judicial department, the function of which is the application of the laws to controversies brought before it (and) as well as the public administration of justice.

(b) Generally, the term describes an organ of the government consisting of one person or of several persons, called upon and authorized to administer justice. It is also the place where justice is administered. [Riano citing Black’s and Am. Jur. and C. J. S.]

COURT AS DISTINGUISHED FROM A JUDGE

Court

Judge

Tribunal officially assembled under authority of law

Simply an officer of such tribunal

An organ of the government with a personality separate and distinct from judge

Person who sits in court

An office A public officer [Riano] The circumstances of the court are not affected by the circumstance that would affect the judge. The continuity of a court and the efficacy of its proceedings are not affected by the death, resignation, or cessation from the service of the judge presiding over it. In other words, the judge may resign, become incapacitated, or be disqualified to hold office, but the court remains. The death of the judge does not mean the death of the court [Riano citing ABC Davao Auto Supply v. CA (1998)]. CLASSIFICATION OF PHILIPPINE COURTS Note: Please see succeeding subsections for discussions on a to d. (a) Courts of law and equity (b) Courts of Original and Appellate jurisdiction (c) Courts of General and Special jurisdiction (d) Constitutional and statutory courts (e) Superior and Inferior courts

(1) Superior courts – Courts which have the power of review or supervision over another and lower court.

(2) Inferior courts – Those which, in relation to another court, are lower in rank and subject to review and supervision by the latter. [Regalado]

(f) Courts of record and not of record (1) Courts of record – Those whose proceedings

are enrolled and which are bound to keep a written record of all trials and proceedings handled by them. [Regalado] One attribute of a court of record is the strong presumption as to the veracity of its records that cannot be collaterally attacked except for fraud. All Philippine courts, including inferior courts, are now courts of record. [Riano]

(2) Courts not of record – Courts which are not required to keep a written record or transcript of proceedings held therein.

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COURTS OF ORIGINAL AND APPELLATE JURISDICTION (a) Courts of original jurisdiction – Those courts in

which, under the law, actions or proceedings may be originally commenced.

(b) Courts of appellate jurisdiction – Courts which have the power to review on appeal the decisions or orders of a lower court. [Regalado]

COURTS OF GENERAL AND SPECIAL JURISDICTION (a) Courts of general jurisdiction – Those competent

to decide their own jurisdiction and to take cognizance of all kinds of cases, unless otherwise provided by the law or Rules.

(b) Courts of special or limited jurisdiction – Those which have no power to decide their own jurisdiction and can only try cases permitted by statute. [Regalado]

CONSTITUTIONAL AND STATUTORY COURTS (a) Constitutional courts – Those which owe their

creation and existence to the Constitution and, therefore cannot be legislated out of existence or deprived by law of the jurisdiction and powers unqualifiedly vested in them by the Constitution. e.g. Supreme Court; Sandiganbayan is a constitutionally-mandated court but created by statute.

(b) Statutory courts – Those created, organized and with jurisdiction exclusively determined by law. [Regalado]

COURTS OF LAW AND EQUITY Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal [U.S. v. Tamparong (1998)] PRINCIPLE OF JUDICIAL HIERARCHY (a) The judicial system follows a ladderized scheme

which in essence requires that lower courts initially decide on a case before it is considered by a higher court. Specifically, under the judicial policy recognizing hierarchy of courts, a higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. [Riano citing Santiago v. Vasquez (1993)]

(b) The principle is an established policy necessary to avoid inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court’s docket [Lim v. Vianzon (2006)].

(c) When the doctrine/principle may be disregarded: A direct recourse of the Supreme Court’s original jurisdiction to issue writs (referring to the writs of certiorari, prohibition, or mandamus) should be allowed only when there are special and

important reasons therefor, clearly and specifically set out in the petition. [Mangahas v. Paredes (2007)]. The Supreme Court may disregard the principle of hierarchy of courts if warranted by the nature and importance of the issues raised in the interest of speedy justice and avoid future litigations [Riano].

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF

JUDICIAL STABILITY (a) The principle holds that courts of equal and

coordinate jurisdiction cannot interfere with each other’s orders [Lapu-lapu Development and Housing Corp. v. Group Management Corp.(2002)] The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review [Villamor v. Salas (1991)].

(b) The doctrine of non-interference applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rank and stature, and logically beyond the control of the latter [Phil Sinter Corp. v. Cagayan Electric Power (2002)].

Jurisdiction JURISDICTION Jurisdiction is defined as the authority to try, hear and decide a case [Tolentino v. Leviste (2004)]. Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Constitution] (a) To settle actual controversies involving rights

which are legally demandable and enforceable; (b) To determine WON there has been a grave abuse

of discretion amounting to lack or excess of jurisdiction on the part of any government branch/ instrumentality.

All courts exercise judicial power. Only the Supreme Court is the court created by the Constitution [Art 8, Sec. 1, Constitution]. The Sandiganbayan is a Constitutionally mandated court, but it is created by statute. [PD 1486] JURISDICTION IN GENERAL JURISDICTION OVER THE PARTIES Note: The mode of acquisition of jurisdiction over the plaintiff and the defendant applies both to ordinary and special civil actions.

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How jurisdiction over the plaintiff is acquired Jurisdiction over the plaintiff is acquired by filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court [Davao Light & Power Co., Inc. v CA (1991)]. How jurisdiction over the defendant is acquired Acquired by the (1) voluntary appearance or submission by the

defendant or respondent to the court or (2) by coercive process issued by the court to him,

generally by the service of summons [de Joya v. Marquez (2006), citing Regalado]

In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided the latter has jurisdiction over the res [Alba v. CA (2005)]. JURISDICTION OVER THE SUBJECT MATTER Meaning of jurisdiction over the subject matter Jurisdiction over the subject matter is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs (Riano citing CJS). It is the power to hear and determine cases of the general class to which the proceedings in question belong [Reyes v. Diaz (1941)] How conferred and determined (a) It is conferred only by the Constitution or the law.

(b) Jurisdiction CANNOT be:

(1) fixed by agreement of the parties; (2) cannot be acquired through, or waived,

enlarged or diminished by, any act or omission of the parties;

(3) neither can it be conferred by the acquiescence of the court [Regalado citing De Jesus v Garcia (1967)].

(4) cannot be subject to compromise [Civil Code, Art 2035]

(c) Jurisdiction over the subject matter is determined by the allegations of the complaint and the reliefs prayed for. [Gulfo v. Ancheta (2012)]

(d) It is not affected by the pleas set up by the defendant in the answer or in the answer or in a motion to dismiss. [Sindico v. Diaz (2004)].

(e) Once attached to a court, it cannot be ousted by

subsequent statute. Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)]

(f) The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action [CB v. CA (1992)](2008 Bar Exam). Exception: Non-payment of docket fee does not automatically cause the dismissal of the case on the ground of lack of jurisdiction as long as the fee is paid within the applicable prescriptive or reglementary period, more so when the party involved demonstrates a willingness to abide by the rules prescribing such payment. [Go v. Tong (2003)]

Jurisdiction versus the exercise of jurisdiction (a) Jurisdiction: the authority to hear and determine a

cause — the right to act in a case. [Arranza v. BF Homes (2000)]. ‘Exercise of Jurisdiction.’: the exercise of this power or authority

(b) Jurisdiction is distinct from the exercise thereof. Jurisdiction is the authority to decide a case and not the decision rendered therein. When there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. [Herrera v. Baretto et al (1913)]

Error of jurisdiction as distinguished from error of judgment

Error of jurisdiction

Error of judgment

It is one where the act complained of was issued by the court without or in excess of jurisdiction [Cabrera v. Lapid (2006)].

It is one which the court may commit in the exercise of its jurisdiction [Cabrera v. Lapid (2006)]. It includes errors of procedure or mistakes in the court’s mistakes in the court’s findings [Banco Filipino Savings v. CA (2000)]

Correctible only by the Correctible by appeal

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Error of jurisdiction

Error of judgment

extraordinary writ of certiorari [Cabrera v Lapid (2006)]

[Cabrera v Lapid (2006)]

Renders a judgment void or voidable [Rule 16 Sec. 1, Rule 65]

Ground for reversal only if it is shown that prejudice has been caused [Banco Español-Filipino v Palanca (1918)]

How jurisdiction is conferred and determined Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court. Doctrine of primary jurisdiction (a) Courts cannot and will not resolve a controversy

involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact [Paloma v. Mora (2005)].

(b) Objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court [Riano citing Omictin v. CA (2007)]

Doctrine of adherence of jurisdiction (a) Also known as doctrine of continuity of jurisdiction (b) The court, once jurisdiction has been acquired,

retains that jurisdiction until it finally disposes of the case [Bantua v. Mercader (2001)].

(c) As a consequence, jurisdiction is not affected by a new law placing a proceeding under the jurisdiction of another tribunal, EXCEPT:

(d) where there is an express provision in the statute (e) the statute is clearly intended to apply to actions

pending before its enactment [Riano citing People v. Cawaling (1998)].

(f) Jurisdiction being a matter of substantive law, the statute in force at the time of the commencement of the action determines the jurisdiction of the court. [Municipality of Kananga v Madrona (2003)]

Objections to jurisdiction over the subject matter (a) The Court may ex mero motu, or on its own

initiative take cognizance of lack of jurisdiction [Fabian v. Desierto (1998)].

(b) Earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss filed before

the filing or service of an answer. Lack of jurisdiction over subject matter is a ground for a motion to dismiss. If no motion is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. [Riano citing Sec. 1(b) and 6 of Rule 16].

(c) Jurisdiction over subject matter may be raised at any stage of proceedings, even for the first time on appeal [Calimlim v. Ramirez (1982)]

Effect of estoppel on objections to jurisdiction Jurisdiction by estoppel General Rule: Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. Jurisdiction is conferred by law. Where there is none, no agreement of the parties can provide one. Settled is the rule that the decision of a tribunal not vested with appropriate jurisdiction is null and void. [SEAFDEC-AQD v. NLRC (1992)] Exception: Participation in all stages of the case before the trial court, that included invoking its authority in asking for affirmative relief, effectively barred petitioner by estoppel from challenging the court’s jurisdiction. [Soliven v. Fastforms (2004)] JURISDICTION OVER THE ISSUES (a) The power of the court to try and decide issues

raised in the pleadings of the parties [Reyes v. Diaz (1941)]

(b) How conferred & determined: (1) Pleadings filed by the parties, (2) Agreement in a pre-trial order or stipulation

[Rule 18, Sec. 2], or (3) Implied consent as by the failure of a party to

object to evidence on an issue not covered by the pleadings in Rule 10, Sec. 5. [Regalado]

JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION (a) Refers to the court’s jurisdiction over the thing or

the property which is the subject of the litigation. (b) Acquired either by

(1) actual or constructive seizure by the court of the thing in question, thus placing it in custodia legis (e.g. attachment or garnishment) or

(2) by provision of law which recognizes in the court the power to deal with the property or subject-matter within its territorial jurisdiction (e.g. land registration) [Regalado]

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SPECIFIC JURISDICTION JURISDICTION OF COURTS Supreme Court The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Constitution] Powers of the Supreme Court [Art. 8, Sec. 5, Constitution] (a) EXERCISE original jurisdiction over:

(1) Cases affecting ambassadors and other public ministers and consuls; RTC also has concurrent jurisdiction

(2) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(b) Review/revise/reverse/modify/affirm on appeal or

certiorari, final judgments/orders of lower courts in: (1) All cases in which the constitutionality/validity

of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation is in question; Note: power of review contemplates the ff. courts: CA, Sandiganbayan, CTA, RTC, and other courts authorized by law.

(2) All cases involving the legality of any tax/ impost/ assessment/ toll, or any penalty imposed in relation thereto;

(3) All cases in which the jurisdiction of any lower court is in issue;

(4) All criminal cases in which the penalty imposed is reclusion perpetua or higher;

(5) All cases in which only errors/questions of law are involved. Exceptions: [Josefa v. Zhandong (2003)] (i) The conclusion is grounded on

speculations/ surmises /conjectures; (ii) The inference is manifestly

mistaken/absurd/impossible; (iii) There is grave abuse of discretion; (iv) The judgment is based on a

misapprehension of facts; (v) The findings of fact are conflicting; (vi) There is no citation of specific evidence on

which the factual findings are based;

(vii) The finding of absence of facts is contradicted by the presence of evidence on record;

(viii) The findings of the CA are contrary to those of the trial court;

(ix) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion;

(x) The findings of the CA are beyond the issues of the case;

(xi) Such findings are contrary to the admissions of both parties.

Distinction between Questions of Law and Fact

Question of law

Question of fact

There is a “question of law” when the doubt or difference arises as to what the law is on a certain state of facts, and which does not call for an examination of the probative value of the evidence presented by the parties-litigants. [Republic v. Medida (2012)]

There is a “question of fact” when the doubt or controversy arises as to the truth or falsity of the alleged facts [Republic v. Medida (2012)]

(c) Assign temporarily judges of lower courts to other

stations as public interest may require, which shall not last 6 six months without the consent of the judge concerned.

(d) Order a change of venue or place of trial to avoid

a miscarriage of justice. (e) Promulgate rules on:

(1) Protection and enforcement of constitutional rights;

(2) Pleading/practice/procedure in all courts; (3) Admission to the practice of law; (4) The Integrated Bar; (5) Legal assistance to the under-privileged.

Guidelines on the rules: (1) Provide a simplified and inexpensive

procedure for the speedy disposition of cases; (2) Uniform for all courts of the same grade; (3) Not diminish/increase/modify substantive

rights. (4) Rules of procedure of special courts and

quasi-judicial bodies shall remain effective unless disapproved by the SC.

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(f) Appoint all Judiciary officials/employees in accordance with the Civil Service Law.

Constitutional commissions (a) COMELEC and COA – Unless otherwise provided

by this Constitution or by law, any decision/order /ruling of each Commission may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of a copy thereof. [Art. 9-A, Sec. 7, Constitution]

(b) CSC - Judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [BP 129, as amended by RA 7902]

(c) Sandiganbayan (1) Decisions and final orders of the

Sandiganbayan shall be subject to review on certiorari by the SC in accordance with Rule 45 of the Rules.

(2) Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

Court of Appeals [Sec. 9, BP 129] Original Jurisdiction To issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs/processes, whether or not in aid of its appellate jurisdiction. Note: former rule only allowed the CA to issue auxiliary writs and processes in aid of jurisdiction.

The power is concurrent with the SC. Exclusive Original Jurisdiction Annulment of RTC judgments. Exclusive Appellate Jurisdiction (a) Final

judgments/decisions/resolutions/orders/awards of: (1) RTCs; (2) Quasi-judicial agencies/instrumentalities/

boards/commissions including: (i) SEC; (ii) Social Security Commission; (iii) ECC; (iv) CSC.

Exception: Those falling within the SC’s appellate jurisdiction of the Supreme Court in accordance with: (a) The Constitution; (b) Labor Code; (c) BP 129;

(d) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act of 1948.

Review of decisions by the NLRC: [St. Martin’s Funeral Home v. NLRC (1998)] Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to Petitioners for Certiorari under Rule 65. All such petitions should be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts. All special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1, 1999 shall not longer be referred to the CA, but shall forthwith be dismissed.

Powers of the Court of Appeals (a) Try cases and conduct hearings; (b) Receive evidence (c) Perform any and all acts necessary to resolve

factual issues raised, including the power to grant and conduct new trials or further proceedings.

Trials or hearings must be continuous and must be completed within 3 months, unless extended by the Chief Justice. Court of Tax Appeals [Sec. 7, RA 1125, as amended by RA 9282] Exclusive appellate jurisdiction to review by appeal (a) Decisions of the Commissioner of Internal

Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the National Internal Revenue or other laws administered by the BIR;

(b) Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other matters arising under the National Internal Revenue Code or other laws administered by the BIR, where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial;

(c) Decisions, orders or resolutions of the RTCS in local tax cases originally decided or resolved by them in the exercise of their original or appellate jurisdiction;

(d) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or other

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matters arising under the Customs Law or other laws administered by the Bureau of Customs;

(e) Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals;

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

(g) Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping and countervailing duties under Sec 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties.

Jurisdiction over cases involving criminal offenses: General rule: Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the BIR or the Bureau of Customs BUT, offenses or felonies where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filling of such civil action separately from the criminal action will be recognized. Exclusive appellate jurisdiction in criminal offenses: (a) Over appeals from the judgments, resolutions or

orders of the RTCs in tax cases originally decided by them, in their respected territorial jurisdiction.

(b) Over petitions for review of the judgments, resolutions or orders of the RTCs in the exercise of their appellate jurisdiction over tax cases

originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction.

Jurisdiction over tax collection cases as herein provided: General rule: Exclusive original jurisdiction in tax collection cases involving final and executory assessments for taxes, fees, charges and penalties: BUT, collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1,000,000.00 shall be tried by the proper MTC, MeTC and RTC

Exclusive appellate jurisdiction in tax collection cases: Over appeals from the judgments, resolutions or orders of the RTCs in tax collection cases originally decided by them, in their respective territorial jurisdiction. Over petitions for review of the judgments, resolutions or orders of the RTCs in the Exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs, in their respective jurisdiction."

NOTE: RA 9282 elevated CTA’s rank to the level of the Court of Appeals with special jurisdiction. Sandiganbayan [Sec.4 of RA 8249] (a) Decisions and final orders of the Sandiganbayan

shall be subject to review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules.

(b) Whenever, in any case decided, the death penalty shall have been imposed, the records shall be forwarded to the SC whether the accused shall have appealed or nor, for review and judgment. [PD 1606 Sec 7]

Original Exclusive Jurisdiction (a) Violations of RA 3019 (Anti-graft and Corrupt

Practices Law); (b) RA 1379 (Forfeiture of Illegally Acquired Wealth); (c) Crimes by public officers or employees embraced

in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes committed by Public Officers) namely: (1) Direct Bribery under Art. 210 as amended by

BP 871, May 29, 1985; (2) Indirect Bribery under Art. 211 as amended by

BP 871, May 29, 1985; (3) Qualified Bribery under Art. 211-A as amended

by RA 7659, Dec. 13, 1993; (4) Corruption of public officials under Art. 212

where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting

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or interim capacity, at the time of the commission of the offense: (i) Officials of the executive branch occupying

the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 Republic Act No. 6758) specifically including:

(ii) Provincial governors, vice-governors, members of the sangguniang panlalawigan, provincial treasurers, assessors, engineers and other provincial department heads;

(iii) City mayors, vice-mayors, members of the sangguniang panglungsod, city treasurers, assessors, engineers and other department heads;

(iv) Officials of the diplomatic service occupying the position of consul and higher;

(v) Philippine Army and Air force colonels, naval captains and all officers of higher rank;

(vi) Officers of the PNP while occupying the position of Provincial Director and those holding the rank of Senior Superintendent or higher;

(vii) City and provincial prosecutors and their assistants; officials and the prosecutors in the Office of the Ombudsman and special prosecutor ;

(viii) President, directors or trustees or managers of government owned or controlled corporations, state universities or educational institutions or foundations;

(5) Members of Congress and Officials thereof classified as Grade 27 and up under the Compensation and Classification Act of 1989;

(6) Members of the Judiciary without prejudice to the provision of the Constitution;

(7) Chairmen and members of Constitutional Commissions, without prejudice to the provision of the Constitution;

(8) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.

(d) Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees mentioned above;

(e) Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 & 14-A issued in 1986

(f) Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas corpus, injunction

and other ancillary writs and processes in aid of its appellate jurisdiction;

(g) Provided, jurisdiction is not exclusive of the Supreme Court

(h) Petitions for Quo Warranto arising or that may arise in cases filed or that may be filed under EO 1, 2, 14 & 14- A

(i) OTHERS provided the accused belongs to Salary Grade 27 or higher: (1) Violation of RA 6713 - Code of Conduct and

Ethical Standards (2) Violation of RA 7080 – The Plunder Law (3) Violation of RA 7659 - The Heinous Crime Law (4) RA 9160 - Violation of The Anti-Money

Laundering Law when committed by a public officer

(5) PD 46 referred to as the gift-giving decree which makes it punishable for any official or employee to receive directly or indirectly and for the private person to give or offer to give any gift, present or other valuable thing on any occasion including Christmas, when such gift, present or valuable thing is given by reason of his official position, regardless of whether or not the same is for past favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainment in honor of the official or employee or his immediate relatives.

(6) PD 749 which grants immunity from prosecution to any person who voluntarily gives information about any violation of Art.210, 211 or 212 of the RPC, RA 3019, Sec.345 of the NIRC, Sec. 3604 of the Customs and Tariff Code and other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned and other laws, rules and regulations penalizing graft, corruption and other forms of official abuse and who willingly testifies against the public official or employee subject to certain conditions.

NOTE: Private individuals can be sued in cases before the Sandiganbayan if they are alleged to be in conspiracy with the public officer. Appellate Jurisdiction Over final judgments, resolutions or orders of the RTC whether in the exercise of their original or appellate jurisdiction over crimes and civil cases falling within the original exclusive jurisdiction of the Sandiganbayan but which were committed by public officers below Salary Grade 27.

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Note: The Sandiganbayan has jurisdiction to grant petitions for the issuance writ writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction. [RA 7975, as amended][asked in 2009 BAR] Regional Trial Courts Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP 129, Asked in the 2002 Bar Examinations] Incapable of pecuniary estimation (2000 Bar Exam); (a) If the action is primarily for the recovery of a sum

of money, the claim is considered capable of pecuniary estimation, and jurisdiction over the action will depend on the amount of the claim. [RCPI v. CA (2002)]

(b) If the basic issue is something other than the right to recover a sum of money, if the money claim is purely incidental to, or a consequence of, the principal relief sought, the action is one where the subject of the litigation may not be estimated in terms of money. [Soliven v. Fastforms (1992)]

(c) If the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. [Ascue v. CA (1991)]

(d) Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. [Baito v. Sarmiento (1960)]

(e) Action for specific performance is incapable of pecuniary estimation. [Manufacturer’s Distributor’s v. Yu Siu Liong (1966)]

(f) The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. (1) The alternative prayer for specific performance

is also of the same value, for the alternative prayer would not have been made in the complaint if one was more valuable than the other. [Cruz v. Tan (1950)]

(g) Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. [Lapitan v. Scandia (1968)]

(h) Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation. [Russel v. Vestil (1999)]

(i) An action for expropriation is incapable of pecuniary estimation. [Bardillon v. Masili (2003)]

Title to, or possession of, real property (or any interest therein) where the property’s assessed value exceeds P20K or P50K (for civil actions in Metro Manila);

Exception: Forcible entry into and unlawful detainer of lands/buildings

Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila); (a) Maritime and admiralty cases involve trade and

transactions in the sea. Maritime jurisdiction includes maritime tort. [Negre v. Cabahug (1966)]

Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila);

Marriage contract and marital relations;

General Original Jurisdiction All cases not within the exclusive jurisdiction of any court/tribunal/person/ body exercising judicial or quasi-judicial functions;

Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations; All other cases where the demand (exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila. (a) The exclusion of the term “damages of whatever

kind” in determining the jurisdictional amount under Sec. 19(8) and Sec. 33 (1) of BP 129, as amended by RA 7691, applies to cases where the damages are merely incidental to or a consequence of the main cause of action. However, if the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.[Admin Circ. 09-94]

(b) Actions for damages based on quasi-delicts are

primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant’s alleged tortious acts. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. [Iniego v. Purganan (2006)]

Original Jurisdiction [Sec. 21, BP 129] (a) Certiorari, prohibition, mandamus, quo warranto,

habeas corpus and injunction which may be enforced in any part of their respective regions;

CONCURRENT jurisdiction with SC and CA

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(b) Actions affecting ambassadors and other public ministers and consuls.

CONCURRENT jurisdiction with SC

Exclusive Appellate Jurisdiction [Sec. 22, BP 129] All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions. Metropolitan, Municipal and Municipal Circuit Trial Courts Family Courts Exclusive Original Jurisdiction (a) Petitions for guardianship, custody of children,

habeas corpus in relation to the latter; (b) Petitions for adoption of children and revocation

thereof; (c) Complaints for annulment of marriage,

declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;

(d) Petitions for support and/ or acknowledgement; (e) Summary judicial proceedings brought under the

Family Code; (f) Petitions for declaration of status of children as

abandoned, dependent or neglected children, for voluntary or involuntary commitment of children, and for suspension, termination or restoration of parental authority under PD 603, EO 56 s. 1986 and other related laws;

(g) Cases for domestic violence against women and children, as defined therein but which do not constitute criminal offenses subject to criminal prosecution and penalties.

Metropolitan Trial Courts/Municipal Trial Courts Exclusive Original Jurisdiction [Sec. 33, BP 129] (a) Civil actions and probate proceedings (testate and

intestate), including the grant of provisional remedies, where the value of the personal property, estate or amount of the demand does not exceed P300K or P400K (in Metro Manila) (value excludes of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs); (1) Interest, damages of whatever kind, attorney's

fees, litigation expenses and costs shall be included in the determination of the filing fees.

(2) If there are several claims or causes of actions between the same/different parties in the same complaint, the amount of the demand shall be the totality of the claims in all the

causes of action, WON the causes of action arose out of the same/different transactions.

(b) Forcible entry and unlawful detainer

(1) If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

(2) That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. [Heirs of B. Hernandez v. Vergara (2006)]

(3) The authority granted to the MeTC to preliminarily resolve the issue of ownership to determine the issue of possession ultimately allows it to interpret and enforce the contract or agreement between the plaintiff and the defendant. However, MeTC’s ruling on the rights of the parties based on its interpretation of their contract is, of course, not conclusive, but is merely provisional and is binding only with respect to the issue of possession. [Union Bank v. Maunlad Homes (2012)]

(c) All civil actions that involve title to, or possession of,

real property (or any interest therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). (1) Value excludes interest, damages of whatever

kind, attorney’s fees, litigation expenses and costs

(2) If land is not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots.

(d) All civil cases subject to summary procedure. Delegated Jurisdiction in Cadastral and Land Registration Cases [Sec. 34, BP 129] (a) Lots where there is no controversy/ opposition; or (b) Contested lots the value of which does not

exceed P100K. (1) The value is to be ascertained:

(i) By the claimant’s affidavit; (ii) By agreement of the respective claimants, if

there are more than one; (iii) From the corresponding tax declaration of

the real property. (2) MTC decisions in cadastral and land

registration cases are appealable in the same manner as RTC decisions.

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Shariah Courts Original Jurisdiction [Article 143, CMPL] (a) All cases involving custody, guardianship,

legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws;

(b) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or aggregate value of the property;

(c) Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;

(d) All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

(e) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction.

Concurrent Jurisdiction with Civil Courts (a) Petitions by Muslim for the constitution of a

family home, change of name and commitment of an insane person to an asylum;

(b) All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit Court; and

(c) All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims

Shari’a Circuit Courts are courts where Muslims can file cases involving the following: (a) Offenses defined and punished under PD 1083 (b) Disputes relating to :

(1) Marriage (2) Divorce (3) betrothal or breach of contract to marry (4) customary dower (mahr) (5) disposition and distribution of property upon

divorce (6) maintenance and support and consolatory

gifts (mut’a) (7) restitution of marital right (8) Disputes relative to communal properties

NOTE: The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama Arbitration Council

to settle certain cases amicably and without formal trial. The Council is composed of the Clerk of Court as Chairperson and a representative of each of the conflicting parties. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION [A.M. No. 08-8-7-SC, the Rule of Procedure for Small Claims Cases effective October 1, 2008] DEFINITION Small claims courts are courts of limited jurisdiction that hear civil cases between private litigants [Rationale of Proposed Rule]. PURPOSE The purpose of small claims process is to provide an inexpensive and expeditious means to settle disputes over small amounts [Riano]. SCOPE This rule governs the procedure in actions before the Metropolitan trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs. [Sec. 2, Scope] APPLICABILITY The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: (a) purely civil in nature where the claim or relief

prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and

(b) the civil aspect of criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule of 111 of the Revised Rules of Criminal Procedure.

These claims or demands may be: (a) For money owed under any of the following;

(1) Contract of Lease; (2) Contract of Loan; (3) Contract of Services; (4) Contract of Sale; or (5) Contract of Mortgage;

(b) For damages arising from any of the following;

(1) Fault or negligence; (2) Quasi-contract; or (3) Contract;

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(c) The enforcement of a barangay amicable

settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of RA 7160, otherwise known as the Local Government Code of 1991. [Sec. 4, Applicability]

PROHIBITED PLEADINGS The following pleadings, motions, and petitions shall not be allowed in the cases covered by this Rule: (a) Motion to dismiss the compliant except on the

ground of lack of jurisdiction; (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings,

affidavits, or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

(h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (l) Interventions. [Sec. 14, Prohibited pleadings and

motions] TOTALITY RULE Where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transaction [Riano citing Pantranco North Express v Standard Insurance (2005)]

Actions Actions, in general: An ordinary suit in a court of justice by which one party prosecutes another for the enforcement/ protection of a right or the prevention/redress of a wrong [Santos v. Vda. De Caparas, (1959)] ACTION VS CAUSE OF ACTION (Asked in the 1999 Bar Exam)

Cause of action

Action

Cause of action

Action

(a) A cause of action is the basis of the action filed [Rule 2, Sec.1]

(b) Fact or combination of facts which affords a party a right to judicial interference in his behalf. [Into v. Valle (2005)]

Ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong

MEANING OF ORDINARY CIVIL ACTIONS An ordinary civil action is one that is governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

MEANING OF SPECIAL CIVIL ACTIONS A special civil action is one that is subject to the specific rules prescribed for a special civil action; it is also governed by the rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]

MEANING OF CRIMINAL ACTIONS A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. [Rule 1, Sec. 3(b)] CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. [Rule 1, Sec. 3(a) par 1] A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. [Rule 1, Sec. 3 (c)] DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL

PROCEEDINGS (Asked in the 1998 Bar Exam)

Action

Special Proceeding

As to Parties Involves 2 or more parties

Involves at least 1 party or 2 or more parties in proper cases

As to cause of action Involves a right and a violation of such right by the defendant which causes some damage/prejudice upon the plaintiff

May involve a right, but there need not be a violation of this right

As to formalities

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Action

Special Proceeding

Requires the application of legal remedies in accordance with the prescribed rules

Requires no such formalities, as it may be granted upon application

As to governing rules

Ordinary rules of procedure

Special rules of procedure

As to appeal from an interlocutory Order

Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits

Can be immediately and directly appealed to the appellate court

PERSONAL ACTIONS AND REAL ACTIONS Real Actions: Actions affecting title to or possession of real property, or interest therein. [Rule 4, Sec. 1 par 1] Personal Actions: All other actions are personal actions. [Rule 4, Sec.2] IMPORTANCE OF DISTINCTION: for purposes of determining the venue of the action (Riano) (a) Real actions 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]

(b) Personal actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff. [Rule 4, Sec.2]

Note: Not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that the action must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, paritition, foreclosure or mortgage or any interest in real property. (Riano)

Real action Personal action

Mixed action

Real action Personal action

Mixed action

Ownership or possession of real property is involved

Personal property is sought to be recovered or damages for breach of Contract or the enforcement of a contract are sought

Both real and personal properties are involved

Founded on privity of real estate

Founded on privity of contract

Founded on both

Filed in the court where the property (or any portion thereof) is situated

Filed in the court where the plaintiff or any of the defendants resides, at the plaintiff’s option

The rules on venue of real actions govern

LOCAL AND TRANSITORY ACTIONS

Local action Transitory action

(a) One that could be instituted in one specific place [Manila Railroad v. Attorney-General (1911)]

(b) Venue depends upon the location of the property involved in the litigation (Riano)

(a) One that could be prosecuted in any one of several places [Manila Railroad v. Attorney-General (1911)]

(b) Its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff (Riano)

Actions in rem, in personam and quasi in rem [Riano citing Domagas v. Jensen, (2005) and Biaco v. Philippine Countryside Rural Bank, (2007)]

Action in rem Action in personam

Action quasi in rem

Directed against the thing itself

Directed against particular persons

Directed against particular persons

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Action in rem Action in personam

Action quasi in rem

Jurisdiction over the person of the defendant is NOT required

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 acquired

A proceeding to determine the state/condition of a thing

An action to impose responsibility or liability upon a person directly

A proceeding to subject the interest of a named defendant over a particular property to an obligation/lien burdening it Deal 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 interest of all possible claimants [Domagas v. Jensen (2005)]

Judgment is binding on the whole world

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

Judgment is binding upon particular persons

Action in rem Action in personam

Action quasi in rem

Ex: Accion reivindicatoria; annulment of marriage; naturalization proceedings

Ex: Action for specific performance; action to recover money or property (real or personal)

Ex: Action for partition; action to foreclose real estate mortgage

The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. [Riano citing Biaco v. Philippine Countryside Rural Bank (2007)] The distinction is important to determine whether or not jurisdiction over the person of the defendant is required and consequently to determine the type of summons to be employed. [Riano citing Gomez v. Court of Appeals (2004)]

Cause of Action MEANING OF CAUSE OF ACTION A cause of action is the act or omission by which a party violates a right of another. [Rule 2, Sec.2] ELEMENTS OF A CAUSE OF ACTION [cited in Riano] (a) Plaintiff’s legal right; (b) Defendant’s correlative obligation to respect

plaintiff’s right; (c) Defendant’s act/omission in violation of plaintiff’s

right [Ma-ao Sugar Central v. Barrios (1947)] (Asked in the 1997 Bar Exam).

Every ordinary civil action must be based on a cause of action [Rule 2, Sec. 1] A cause of action stems from the sources of obligations under Art. 1156, CC - Law, Contract, Quasi-contract, Acts and omissions punishable by law and Quasi-delict. [Sagrada Orden etc v. National Coconut Corporation (1952)]

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RIGHT OF ACTION VERSUS CAUSE OF ACTION [Regalado]

Right of action

Cause of action

The 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

The delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff

Right to sue as a consequence of the delict

The delict or wrong

Whether such acts give him right of action determined by substantive law

Determined by the averments in the pleading regarding the acts committed by the defendant

Note: There can be no right of action without a cause of action being first established [Regalado citing Español v. The Chairman of PVA (1985)] FAILURE TO STATE A CAUSE OF ACTION (a) There is a failure to state a cause of action if the

pleading asserting the claim states no cause of action. This is a ground for a motion to dismiss. [Rule 16, Sec.1(g)]

(b) It is submitted that the failure to state a cause of action does not mean that the plaintiff has “no cause of action.” It only means that the plaintiff’s allegations are insufficient for the court to know that the rights of the plaintiff were violated by the defendant. [Riano]

(c) There is a failure to state a cause of action if allegations in the complaint taken together, do not completely spell out the elements of a particular cause of action. [Riano]

(d) A failure to state a cause of action is not the same as an absence or a lack of cause of action. The former refers to an insufficiency in the allegations of the complaint while the latter refers to the failure to prove or to establish by evidence one’s stated cause of action. [Riano]

TEST OF THE SUFFICIENCY OF A CAUSE OF ACTION Whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint [Santos v. de Leo (2005)] SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS Definition: The act of instituting two or more suits on the basis of the same cause of action. [Rule 2, Sec.4]

The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. (Regalado) EFFECTS OF SPLITTING A CAUSE OF ACTION: [Taken from 2011 Reviewer] (a) The filing of one or a judgment upon the merits in

any one is available as a ground for the dismissal of the others. [Rule 2, Sec.4]

(b) Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint, on the ground of litis pendentia; or

(c) A judgment upon the merits in any of the complaints is available as ground for dismissal of the others based on res judicata.

(d) A MTD under Rule 16 Sec. 1(e) or (f) may be filed in order that the complaint may be dismissed.

BASIS: A party may not institute more than one suit for a single cause of action. [Rule 2, Sec. 3] PURPOSE [City of Bacolod v. SM Brewery (1969)] (a) To prevent repeated litigation between the same

parties in regard to the same subject or controversy;

(b) To protect the defendant from unnecessary vexation. Nemo debet vexare pro una et eadem causa (No man shall be twice vexed for one and the same cause);

(c) To avoid the costs and expenses incident to numerous suits.

A single act/omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one delict/wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. If only 1 injury resulted from several wrongful acts, only 1 cause of action arises. [Joseph v. Bautista (1989)] For a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action which is proscribed by Rule 2, Sec. 3 and 4. [City of Bacolod v. SM Brewery (1969)] JOINDER AND MISJOINDER OF CAUSES OF ACTION JOINDER OF CAUSE OF ACTION: It is the assertion of as many causes of action as a party may have against another in one pleading alone. It is also the process

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of uniting 2 or more demands or rights of action in one action. [Riano citing Rule 2, Sec. 5 and CJS] By a joinder of actions, or more properly, a joinder of causes of action is meant the uniting of two or more demands or rights of action in one action, the statement of more than one cause of action in a declaration [Ada v. Baylon (2012)] PURPOSES: To avoid a multiplicity of suits and to expedite disposition of litigation at minimum cost [Ada v. Baylon (2012)] The rule however is purely permissive as the plaintiff can always file separate actions for each cause of action. [Baldovi v. Sarte, (1917)] Joinder shall not include special civil actions governed by special rules. [Ada v. Baylon (2012)] REQUISITES [Rule 2, Sec. 5]: (a) The party joining the causes of action must

comply with the rules on joinder of parties; (b) The joinder shall not include special civil actions

or actions governed by special rules; (c) Where causes of action are between the same

parties but pertain to different venues/jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action are within the RTC’s jurisdiction and the venue lies therein;

(d) TOTALITY RULE - Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

MISJOINDER OF CAUSES OF ACTION [Rule 2, Sec. 6] (a) Misjoinder of causes of action is not a ground for

dismissal of an action. A misjoined cause of action may, on motion or motu propio, be severed and proceeded with separately. However, if there is no objection to the improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the simultaneous adjudication of all the erroneously joined causes of action. However, this rule exists only when the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same. This is because if the court has no jurisdiction to try the misjoined action, then the same must be severed and if not so severed, any adjudication rendered by the court with respect to the same would be a nullity. [Ada v. Baylon (2012)]

(b) There is no sanction against non-joinder of

separate causes of action since a plaintiff needs

only a single cause of action to maintain an action (Regalado).

Parties to Civil Actions REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION: (A) THE MUST BE EITHER [Rule 1, Sec.3]:

(1) A natural person; (2) A juridical person;

(i) The State and its political subdivisions; (ii) Other corporations, institutions and entities

for public interest or purpose, created by law; and

(iii) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member [Art. 44, CC]

(3) An entity authorized by law. (i) The estate of a deceased person [Limjoco v.

Intestate Estate of Fragante (1948)]; (ii) A political party incorporated under Act 1459

[now BP 68 (Corporation Code)]; (iii) A corporation by estoppel is precluded from

denying its existence and the members thereof can be sued and be held liable as general partners. [Riano citing Sec. 21, BP68, The Corporation Code of the Philippines]

(iv) A contract of partnership having a capital of P3,000.00 or more but which fails to comply with the registration requirements is nevertheless liable as a partnership to third persons. [Riano citing Art. 1772 in rel. to Art. 1768, Civil Code]

(v) A registered labor union [Sec. 243, PD 442 (Labor Code)], with respect to its property.

(vi) A legitimate labor organization may sue and be sued in its registered name. [Riano citing Art. 2429(e), Labor Code]

(vii) The Roman Catholic Church has legal capacity to sue. As to its properties, the archbishop or diocese to which they belong may be a party. [Barlin v. Ramirez (1906); Riano citing Barlin v. Ramirez and Versoza v. Fernandez(1926)].

(viii) A dissolved corporation may prosecute and defend suits by or against it provided that the suits (i) occur within three years after its dissolution, and (ii) the suits are in connection with the settlement and closure of its affairs. [Riano citing Sec. 122, Corporation Code]

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(B) HE MUST HAVE THE LEGAL CAPACITY TO SUE;

(c) HE MUST BE THE REAL PARTY IN INTEREST. [Berman v. Cheng (2005)] (1) Only natural or juridical persons or entities

authorized by law may be parties in a civil case.

(2) A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action.

(3) There is no law authorizing sole proprietorship to file a suit.

(4) A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. [Rimbunan v. Oriental (2005)]

(5) An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction.

(6) Thus, the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts.

Note: A foreign corporation may be party to an action in Philippine courts: (a) If licensed to engage in business in the

Philippines, it may sue or be sued in our courts; (b) If not licensed, it cannot sue, but it may be sued in

our courts; (c) If not engaged in business in the Philippines, it

may sue in courts on a single isolated transaction, but it cannot be sued in our courts on such transaction.

Note: Interest within the meaning of the Rules of Court means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. [Ang v. Sps. Ang (2012)] Lack of legal capacity to

sue Lack of legal personality

to sue The plaintiff’s general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality or any other general disqualifications

The plaintiff is not the real party in interest

It can be a ground for a MTD [Rule 16 (1) (d)]

It can be used as ground for a MTD based on the failure of complaint to state a cause of action. [Rule 16 (1) (g)]

PARTIES TO A CIVIL ACTION (a) Plaintiff – One having interest in the matter of the

action or in obtaining the relief demanded; the claiming party or the original claiming party and is the one who files the complaint [Riano]; does not exclusively apply to the original plaintiff [Riano]; may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff [Rule 3, Sec.1]

(b) Defendant – One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The term may also include [Rule 3, Sec 1): (1) Unwilling Co-Plaintiff – A party who should be

joined as plaintiff but whose consent cannot be obtained. He may be made a defendant and the reason therefore shall be stated in the complaint. [Rule 3, Sec. 10]

(2) The original plaintiff becoming a defendant to the original defendant’s counterclaim; also refers to the cross-defendant, or the third (fourth, etc.)-party defendant. [Rule 3, Sec 1]

REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES; REPRESENTATIVES AS PARTIES; NECESSARY PARTIES; INDIGENT PARTIES; ALTERNATIVE DEFENDANTS REAL PARTY IN INTEREST [Rule 3, Sec.2] (a) The party who stands to be benefited/injured by

the judgment in the suit; (b) The party entitled to the avails of the suit.

Rules: (a) Every action must be prosecuted or defended in

the name of the real party in interest. [Rule 3, Sec.2]

(b) The party’s interest must be direct, substantial and material [Sumalo v. Litton (2006)].

(c) Husband and wife shall sue and be sued jointly, except as provided by law [Rule 3, Sec. 4]

(d) A minor or a person alleged to be incompetent may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. [Rule 3, Sec. 5]

(e) Minors (represented by their parents) are real parties in interest under the principle of intergenerational responsibility. [Oposa v. Factoran (1993)]

(f) If a party becomes incompetent/ incapacitated during the pendency of the action, the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem [Rule 3, Sec. 18]

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INDISPENSABLE PARTIES (a) An indispensable party is a real party-in-interest

without whom no final determination can be had of an action. [Rule 3, Sec.7]

(b) A party who has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that interest. [Riano]

(c) The joinder of a party becomes compulsory when the one involved is an indispensable party. [Riano citing Rule 3, Sec.7]

(d) A person is NOT an indispensable party if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does not complrete justice between them. [Riano]

REPRESENTATIVE AS PARTIES [Rule 3, Sec. 3] (a) Those acting in fiduciary capacity, such as a

trustee/guardian/executor/administrator or a party authorized by law or ROC.

(b) The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.

(c) An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal.

Exception: If the contract involves things belonging to the principal. [Art. 1883, CC] NECESSARY PARTY [Rule 3, Sec. 8] (a) One who is not indispensable but ought to be

joined as a 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

(b) Indispensable parties v. Necessary parties [taken from 2011 Reviewer and Riano]

Indispensable parties

[Rule 3, Sec. 7] Necessary parties [Rule 3,

Sec. 8] Must be joined under any and all conditions, his presence being a sine qua non for the exercise of judicial power

Should be joined whenever possible; the action can proceed even in their absence because their interest is separable from that of the indispensable party

No valid judgment if indispensable party is not joined.

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

They are those with They are those whose

Indispensable parties [Rule 3, Sec. 7]

Necessary parties [Rule 3, Sec. 8]

such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence.

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.

(c) Whenever in any pleading in which a claim is

asserted a necessary party is not joined, the pleader is under obligation to: (i) set forth the name of the necessary party, if known, and (ii) state the reason why the necessary party is omitted. [Riano citing Rule 3, Sec. 9 par 1]

(d) The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party [Rule 3, Sec. 9 par 3]

INDIGENT PARTY [Rule 3, Sec. 21] (a) indigent – One who has no money or property

sufficient and available for food, shelter and basic necessities.

(b) While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing, it may be contested by the adverse party at any time before judgment is rendered.

If the court determines after hearing that the party declared indigent has sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court.

(c) The authority to litigate as an indigent shall include an exemption from:

o Payment of docket fees and other lawful fees;

o Payment of TSN. (d) The amount of docket and other lawful fees is a

lien on any judgment rendered in favor of indigent party, unless court otherwise provides.

ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13] Where the plaintiff is uncertain against whom of several persons he is entitled to relief, he may join any or all of them in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.

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COMPULSORY AND PERMISSIVE JOINDER OF PARTIES COMPULSORY JOINDER OF INDISPENSABLE PARTIES [Rule 3, Sec. 7] Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants

PERMISSIVE JOINDER [Rule 3, Sec. 6] Parties can be joined, as plaintiffs or defendants, in one single complaint or may themselves maintain or be sued in separate suits.

Requisites [Regalado]: Right to relief arises out of the same transaction or series of transactions; Note: SERIES OF TRANSACTIONS – Transactions connected with the same subject matter of the suit. There is a question of law or fact common to all the plaintiffs or defendants; Such joinder is not otherwise proscribed by the rules on jurisdiction and venue. MISJOINDER AND NON-JOINDER OF PARTIES (a) A party is misjoined when he is made a party to

the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action. (Riano)

(b) Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. [Rule 3, Sec. 11]

(c) Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. [Rule 3, Sec.11]

(d) Any claim against a misjoined party may be severed and proceeded with separately. [Rule 3, Sec. 11]

(e) Non-joinder of an indispensable party is not a ground for outright dismissal. Reasonable opportunity must be given for his inclusion by amendment of the complaint [Cortez v Avila (1957)].

(f) Objections to defects in parties should be made at the earliest opportunity.

(g) The moment such defect becomes apparent, a motion to strike the names of the parties must be made.

(h) Objections to misjoinder cannot be raised for the first time on appeal [Lapanday Agricultural & Development Corporation v. Estita (2005)].

(i) The rule on misjoinder or non-joinder of parties does not comprehend whimsical and irrational dropping or adding of parties in a complaint.

What it really contemplates is erroneous or mistaken non-joinder and misjoinder or parties. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. [Riano citing Lim Tan Hua v. Ramolete(1975)]

CLASS SUIT REQUISITES [Rule 3, Sec. 12] (a) Subject matter of the controversy is one of

common/general interest to many persons; (b) The persons are so numerous that it is

impracticable to join them all as parties (i.e. impracticable to bring them all before the court);

(c) Parties bringing the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned;

(d) The representative sues/defends for the benefit of all.

Any party in interest shall have the right to intervene to protect his individual interest. [Rule 3, Sec. 12] If a class suit is improperly brought, the action is subject to dismissal regardless of the cause of action [Rule 16, Sec 1 (d)]. A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit, although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. [Regalado] There is no class suit in an action filed by associations of sugar planters to recover damages in behalf of individual sugar planters for an allegedly libelous article in an international magazine. There is no common or general interest in reputation of a specific individual. Each of the sugar planters has a separate and distinct reputation in the community not shared by the others. [Riano citing Newsweek, Inc. v. Intermediate Appellate court (1986)] A class suit does not require a commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. [Riano citing Mathay v. Consolidated Bank &Trust Company (1974)]

Class Suit Permissive Joinder of Parties

There is a single cause of action pertaining to numerous persons.

There are multiple causes of action separately belonging to several persons.

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CLASS SUIT AND DERIVATIVE SUIT, COMPARED (Asked in the 2005 Bar Examination)

Class Suit

Derivative Suit

When the subject matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. [Rule 3, Sec. 12]

An action brought by minority shareholders in the name of the corporation to redress wrongs committed against it, for which the directors refuse to sue. It is a remedy designed by equity and has been the principal defense of the minority shareholders against abuses by the majority. In a derivative action, the real party in interest is the corporation itself, not the shareholders who actually instituted it [Lim v. Lim Yu (2001))

SUITS AGAINST ENTITIES WITHOUT JURIDICAL PERSONALITY REQUISITES [Rule 3, Sec.15] (a) There are 2 or more persons not organized as a

juridical entity; (b) They enter into a transaction; (c) A wrong is committed against a 3rd person in the

course of such transaction. Effect: Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known, but they cannot sue under such name. [Rule 3, Sec. 15] The service of summons may be effected upon all the defendants by serving upon any of them, or upon the person in charge of the office or place of business maintained under such name. [Rule 14, Sec. 8] EFFECT OF DEATH OF PARTY LITIGANT SUBSTITUTION OF PARTIES Death of a party, where the claim is not extinguished by the death of the party (e.g. cases involving property and property rights [Bonilla v Barcena (1976)]); [Rule 3, Sec. 16] (Asked in the 1998 and 1999 Bar Exams)

Counsel’s duty: (a) Inform court within 30 days after such death of

the fact thereof; (b) Give the name and address of the legal

representatives. Note: Failure to comply with this duty is a ground for disciplinary action.

(a) The heirs may be substituted for the deceased

without requiring the appointment of an executor or administrator.

(b) The court may appoint a guardian ad litem for the

minor heirs. (c) The court shall order the legal representative(s)

to appear and be substituted within 30 days from notice.

(d) If no legal representative is named or if the one so name shall fail to appear within the specified period, the court may order the opposing party to procure the appointment of an executor or administrator for the estate.

(e) The substitute defendant need not be

summoned. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party [Ferreria v Vda de Gonzales (1986)].

Death or separation of a party who is a public officer [Rule 3, Sec. 17] Requisites: (a) Public officer is a party to an action in his official

capacity; (b) During the pendency of the action, he either

dies/resigns or otherwise ceases to hold office; (c) It is satisfactorily shown to the court by any party,

within 30 days after the successor takes office, (1) that there is a substantial need to

continue/maintain the action and (2) The successor adopts/continues (or threatens

to do so) his predecessor’s action (d) The party or officer affected was given reasonable

notice of the application therefore and accorded an opportunity to be heard.

ACTION ON CONTRACTUAL MONEY CLAIMS [Rule 3, Sec. 20] Requisites: (a) The action must primarily be for recovery of

money/debt or interest thereon; (b) The claim arose from express/implied contract;

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(c) Defendant dies before the entry of final judgment in the court in which the action was pending. (1) The defendant’s death will not result in the

dismissal of the action. (2) The deceased shall be substituted by his legal

representatives in the manner provided for in Rule 3, Sec. 16, and the action will continue until the entry of final judgment (Asked in the 2000 Bar Exam)

(3) However, execution shall not issue in favor of the winning plaintiff. It should be filed as a claim against the decedent’s estate without need of proving the claim.

TRANSFER OF INTEREST DURING THE PENDENCY OF THE

ACTION [Rule 3, Sec. 19] General rule: The rule does not consider the transferee an indispensable party. Hence, the action may proceed without the need to implead him. Exception: When the substitution by or joinder of the transferee is ordered by court. The case will be dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs, in which case the remaining plaintiffs can proceed with their own cause of action.

Venue Venue is the place, or the geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court. [Riano citing Manila Railroad Company v. Attorney General (1911)] Choosing the venue of an action is not left to a plaintiff’s caprice; the matter is regulated by the Rules of Court. [Ang v. Sps. Ang (2012)] VENUE VERSUS JURISDICTION [Riano] DISTINCTIONS BETWEEN VENUE AND JURISDICTION (Asked in the 2006 and 2008 Bar Exams)

Venue

Jurisdiction

Place where the action is instituted

Power of the court to hear and decide a case

May be waived Jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot-be waived

Venue

Jurisdiction

Procedural Substantive May be changed by the written agreement of the parties

Is fixed by law and cannot be the subject of the agreement of the parties

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

Establishes a relation between the court and the subject matter

Not a ground for a motu propio dismissal (except in cases of summary procedure; Rule 4, Rule on Summary Procedure)

Lack of jurisdiction over the subject matter is a ground for a motu proprio dismissal.

VENUE OF REAL ACTIONS (a) 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(1)]

(b) Forcible entry and detainer actions shall be commenced and tried in the municipal court of the municipality or city wherein the real property involved, or a portion thereof, is situated. [Rule 4, Sec. 1(2)]

(c) If the property is located at the boundaries of 2 places, file the case in either place (at the plaintiff’s option).

(d) If the case involves 2 properties located in 2 different places: (1) If the properties are the object of the same

transaction, file it in any of the 2 places; (2) If they are the objects of 2 distinct

transactions, separate actions should be filed in each place unless properly joined.

VENUE OF PERSONAL ACTIONS At the plaintiff’s election: [Rule 4, Sec. 2] (a) Where the plaintiff or any of the principal

plaintiffs resides; (b) Where the defendant or any of the principal

defendants resides; (c) In case of a non-resident-defendant, where he

may be found.

Note: The plaintiff or the defendant must be residents of the place where the action has been instituted at the time the action is commenced. [Ang v. Sps. Ang (2012)]

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VENUE OF ACTIONS AGAINST NON-RESIDENTS [Rule 5, Sec. 3]

Non-resident found in the Philippines – (a) For personal actions – Where the plaintiff resides; (b) For real actions – Where the property is located. Non-resident not found in the Philippines – An action may be filed only when the case involves: (a) Personal status of plaintiff - Where plaintiff

resides; (b) Any property of said defendant located in the

Phil. - Where the property (or any portion thereof) is situated/found.

WHEN THE RULES ON VENUE DO NOT APPLY [Rule 4, Sec. 4] (a) If a specific rule/law provides otherwise (e.g.

action for damages arising from libel); (b) Stipulations as to Venue is permitted if the parties

have validly agreed (1) in writing (2) before the filing of the action (3) on the exclusive venue

In the absence of qualifying restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)] The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place. [Riano citing Spouse Lantin v. Lantion, (2006)] EFFECTS OF STIPULATIONS ON VENUE (a) To be binding, the parties must have agreed on

the exclusive nature of the venue of any prospective action between them. The agreement of parties must be restrictive and not permissive. [Regalado]

(b) In the absence of qualifying restrictive words (e.g. “only/solely/exclusively in such court”), venue stipulation is merely permissive; that is, the stipulated venue is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco (1969)]

(c) The court may declare agreements on venue as contrary to public policy if such stipulation unjustly denies a party a fair opportunity to file suit in the place designated by the Rules

[Regalado, citing Hoechst Philippines v Torres (1978)].

OTHER RULES ON VENUE (a) Improper Venue: The Court may not motu propio

dismiss an action on the ground of improper venue. [Dacoycoy v. IAC (1991)] Exception: In summary procedures.

(b) Change of Venue: The SC has the power to

change the venue to prevent a miscarriage of justice. [Art. 8, Sec. 5, Consti]

(c) Waiver Of Venue:

(1) Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since for all intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Although venue is mandatory, it is waivable. [Diaz v. Adiong (1993)]

(2) Means of waiving venue: (i) Where parties validly agreed in writing

before the filing of the action on the exclusive venue thereof [Rule 4, Sec 4 (b)]; and

(ii) Failure to raise improper venue as affirmative defense or in motion to dismiss

Pleadings DEFINITION Pleadings are the written statements of the respective claims and defenses of the parties, submitted to the court for appropriate judgment [Rule 6, Sec. 1]

Pleading

Motion

Purpose: To submit a claim/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 judgment

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KINDS OF PLEADINGS PLEADINGS ALLOWED [Rule 6, Sec. 2] (1) Complaint; (2) Answer; (3) Counterclaim; (4) Cross-claim; (5) 3rd-party Complaint, (6) Complaint-in-intervention; (7) Reply; COMPLAINT [Rule 6, Sec. 3] Definition The pleading alleging the plaintiff’s cause/s of action. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause/s of action, not evidentiary facts or legal conclusions. It shall contain: (a) in a methodical and logical form (b) a plain, concise and direct statement of ultimate

facts on which the plaintiff relies for his claim, (c) omitting statement of mere evidentiary facts.

[Rule 8, Sec. 1]

Its function is to inform the defendant clearly and definitely of claims made against him so that he may be prepared to meet the issues at trial. It should inform the defendant of all material facts on which the plaintiff relies to support his demand. It should state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. [Tantuico v. Republic (1991)]

Ultimate Facts – Essential facts constituting the plaintiff’s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. [Remitere v. Montinola (1966)] Not ultimate facts: (a) Evidentiary or immaterial facts; (b) Legal conclusions, conclusions or inferences of

facts from facts not stated, or incorrect inferences or conclusions from facts stated;

(c) Conclusions of law alleged in the complaint are not binding on the court.

(d) The details of probative matter or particulars of evidence, statements of law, inferences and arguments.

Test of sufficiency of the facts alleged in the complaint: WON upon the averment of facts, a valid judgment may be properly rendered [Pamintan v. Costales (1914)].

ANSWER [Rule 6, Sec. 4] Definition The pleading where the defendant sets forth his affirmative/negative defenses. It may also be the response to a counterclaim or a cross-claim. Two kinds of defenses that may be set forth in the answer [Rule 6, Sec. 5] (a) Negative Defenses – Specific denials of the

material facts alleged in the pleading of the claimant essential to his cause of action. Negative Pregnant - Denial pregnant with an admission. It is a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. [Philamgen v. Sweet Lines (1993)]

(b) Affirmative Defenses – Allegations of new matters

which, while hypothetically admitting the material allegations in the claimant’s pleading, would nevertheless prevent/bar recovery by him. It includes fraud, prescription, release, payment and any other matter by way of confession and avoidance.

COUNTERCLAIMS [Rule 6, Sec. 6] Definition Any claim which a defending party may have against an opposing party. (a) A counterclaim is in the nature of a cross-

complaint. Although it may be alleged in the answer, it is not part of the answer.

(b) Upon its filing, the same proceedings are had as in the original complaint.

(c) For this reason, it must be answered 10 days from service [Rule 11, Sec 4] (Asked in the 2002 and 2008 Bar Exams).

How to raise counterclaims Included in the answer: A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. [Rule 11, Sec. 8] Exception: Pleadings may be amended under Rule 11, Sec. 10: (a) By leave of court; (b) Before judgment; (c) On the grounds of:

(1) Oversight; (2) Inadvertence; (3) Excusable neglect; (4) When justice requires.

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After the answer [Rule 11, Sec. 9] (a) Counterclaims/cross-claims arising after the

answer, (b) with the court’s permission, (c) may be presented as a counterclaim/cross-claim

by supplemental pleading before judgment. Rules on counterclaims (a) In an original action before the RTC, the

counterclaim may be considered compulsory regardless of the amount. [Rule 6, Sec. 7]

(b) In the case of Agustin v. Bacalan (1985), if a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess is considered waived.

(c) But in Calo v. Ajax (1968), the remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance.

Kinds of counterclaims

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.

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

Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

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.

Not barred even if not set up in the action.

Need not be answered; no default.

Must be answered, otherwise, the defendant can be declared in default.

(a) A permissive counterclaim requires the payment of docket fees. [Sun Insurance v. Asuncion (1989)]

(b) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default, principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala (1970)]

Compulsory counterclaim Requisites of a compulsory counterclaim [Rule 6, Sec 7] (Asked in the 1998 bar exam)

(a) It must arise out of, or be necessarily connected with, the transaction/occurrence that is the subject matter of the opposing party's claim;

(b) It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction;

(c) It must be within the court’s jurisdiction both as to the amount and the nature. [Regalado, citing Quintanilla v CA (1997)]

General rule: A compulsory counterclaim not set up in the answer is deemed barred. Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this case, it may be pleaded by filing a supplemental answer or pleading before judgment. [Rule 11, Sec. 9] Note: (a) The filing of a MTD and the setting up of a

compulsory counterclaim are incompatible remedies.

(b) In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time, he must choose only one remedy.

(c) If he decides to file a MTD, he will lose his counterclaim. But if he opts to set up his counterclaim, he may still plead his ground for dismissal as an affirmative defense in his answer.

(d) If any of the grounds to dismiss under Rule 17, Sec. 3 arise, the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD.

(e) Instead, he should only move to have the plaintiff declared non-suited on the complaint so that the latter can no longer present his evidence thereon, and simultaneously move that he be declared as in default on the compulsory counterclaim, and reserve the right to present evidence ex parte on his compulsory counterclaim. [BA Finance v. Co (1993)]

Permissive counterclaim [NOTE: Please also refer to table comparing compulsory and permissive counterclaims] Test to determine whether a counterclaim is compulsory or permissive Logical Relationship Test: Where conducting separate trials of the respective claims would entail substantial duplication of effort and time and involves many of the same factual and legal issues. [Meliton v. CA (1992)]

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Effect on the Counterclaim when the complaint is dismissed Under Section 3, Rule 17, dismissal of action due to plaintiff’s fault shall be without prejudice to the defendant’s right to prosecute his counterclaim in the same/separate action. CROSS-CLAIMS [Rule 6, Sec. 8] Requisites for cross-claim (a) A claim by one party against a co-party; (b) It must arise out of the subject matter of the

complaint or of the counterclaim; (c) The cross-claimant is prejudiced by the claim

against him by the opposing party. General rule: A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] Exceptions: (a) When it is outside the court’s jurisdiction; (b) If the court cannot acquire jurisdiction over 3rd

parties whose presence is necessary for the adjudication of said cross-claim. In this case, the cross-claim is considered permissive.

The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive, but not a cross-claim seeking an affirmative relief. [Torres v. CA (1973)]

Cross Claim, Counterclaim and Third Party Complaint (Asked in the 1997 and 1999 Bar Exams) Cross-claim Counterclaim 3

rd 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 opposing party’s claim (compulsory counterclaim), or it may not (permissive counterclaim)

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

Counter-counterclaims and counter-cross-claims [Rule 6, Sec. 9] (a) Counter-Counterclaim - A claim asserted against

an original counter-claimant.

(b) Counter-Cross-claim - A claim filed against an original cross-claimant.

THIRD (FOURTH, ETC.) PARTY COMPLAINTS [Rule 6, Sec. 11] [NOTE: See also table in immediately preceding subsection] Definition: It is a claim that a defending party may, with leave of court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. There could also be a 4

th/etc.-party complaint with

the same purpose and function.

3rd-party complaint

Complaint in intervention

Brings into the action a 3rd 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

3rd-party complaint

Counterclaim

Need not be within the jurisdiction of the court trying the main case

Must be within the jurisdiction of the court trying the main case

Diminishes/defeats the recovery sought by the opposing party

Need not diminish/defeat the recovery sought by the opposing party

Cannot exceed the amount stated in the original complaint

May exceed in amount or be different in kind from that sought in the original complaint

Tests to determine whether the 3rd-party complaint is in respect of plaintiff's claim [Capayas v. CFI (1946)] (a) WON it arises out of the same transaction on

which the plaintiff's claim is based, or although arising out of another/different transaction, is connected with the plaintiff’s claim;

(b) WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant;

(c) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim.

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Note: (a) Leave of court to file a 3rd-party complaint may

be obtained by motion under Rule 15. (b) Summons on 3rd (4

th/etc.) – party defendant

must be served for the court to obtain jurisdiction over his person, since he is not an original party.

(c) Where the trial court has jurisdiction over the main case, it also has jurisdiction over the 3rd-party complaint, regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. [Republic v. Central Surety (1968)]

(d) A 3rd

-party complaint is not proper in an action for declaratory relief.

COMPLAINT-IN-INTERVENTION Pleadings in intervention [Rule 19, Sec. 3] (a) Complaint-in-intervention – If intervenor asserts a

claim against either or all of the original parties. (b) Answer-in-intervention – If intervenor unites with

the defending party in resisting a claim against the latter.

Definition INTERVENTION is a remedy by which a third party, not originally impleaded in a proceeding, becomes a litigant therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. Its purpose is "to settle in one action and by a single judgment the whole controversy (among) the persons involved." [First Philippine Holdings v. Sandiganbayan (1996); Rule 19] When allowed Intervention shall be allowed when a person has: (a) a legal interest in the matter in litigation; (b) or in the success of any of the parties; (c) or an interest against the parties; and (d) when he is so situated as to be adversely affected

by a distribution or disposition of property in the custody of the court or of an officer thereof. [First Philippine Holdings v. Sandiganbayan (1996)]

Not an independent action Intervention is not an independent action, but is

ancillary and supplemental to an existing litigation. [First Philippine Holdings v. Sandiganbayan (1996)]

(a) It is neither compulsory nor mandatory but only optional and permissive. [Mabayo v. CA (2002)]

(b) The Court has full discretion in permitting or disallowing intervention, which must be exercised judiciously and only after consideration of all the circumstances obtaining in the case. [Mago v. CA (1999)]

(c) It is not an absolute right as it can be secured only in accordance with the terms of applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)]

Requisites for valid intervention (a) There must be a motion for intervention filed

before rendition of judgment by the trial court. (b) Movant must show in his motion that he has a:

(1) legal interest in (1) the matter of litigation, (2) the success of either of the parties in the action or (3) against both parties.

(2) that the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or an officer thereof

(3) that the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding.

Meaning of legal interest Interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)] Remedy for denial of motion for intervention (a) The movant may file a motion for reconsideration

since the denial of a motion for intervention is an interlocutory order.

(b) Alleging grave abuse of discretion, movant can also file a certiorari case.

REPLY [Rule 6, Sec. 10] Definition: The plaintiff’s response to the defendant's answer, (a) the function of which is to deny or allege facts in

denial or in avoidance of new matters alleged by way of defense in the answer and

(b) thereby join or make issue as to such new matters.

Effect of failure to reply (Asked in the 2000 bar exam) General rule: Filing a reply is merely optional. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto.

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Exception: Reply is required: (a) Where the answer is based on an actionable

document. [Rule 8, Sec. 8] (b) Where the answer alleges the defense of usury.

[Rule 8, Sec. 11] PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES COVERED BY THE RULES ON SUMMARY PROCEDURE Under the Revised Rules on Summary Procedure the only pleadings allowed to be filed are [Sec. 3]: (a) complaints; (b) compulsory counterclaims and cross-claims

pleaded in the answer; and (c) the answers thereto. PROHIBITED PLEADINGS, MOTIONS OR PETITIONS [Sec. 19]: (a) Motion to dismiss the complaint or to quash the

complaint or information except on the ground of lack of jurisdiction over the subject matter, or failure to comply with required barangay conciliation proceedings;

(b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a

judgment, or for opening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings,

affidavits or any other paper; (f) Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

(g) Motion to declare the defendant in default; (h) Dilatory motions for postponement; (i) Reply; (j) Third party complaints; and (k) Interventions. FORMS USED UNDER THE RULE OF PROCEDURE UNDER

SMALL CLAIMS CASES: (a) Instead of filing complaint, a Statement of Claim

using Form 1-SCC shall be filed [Sec. 5] (b) Answer shall be filed by way of a Response using

Form 3-SCC [Sec. 10] (c) Defendant may file counterclaim if he possesses

a claim against the plaintiff that (1) is within the coverage of this Rule, exclusive of

interest and costs; (2) arises out of the same transaction or event

that is the subject matter of the plaintiff’s claim;

(3) does not require for its adjudication the joinder of third parties; and

(4) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim.

The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid. Note: Courts decision shall be contained in Form 13-SCC PROHIBITED PLEADINGS AND MOTIONS: (a) Motion to dismiss the complaint except on the

ground of lack of jurisdiction; (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a

judgment, or for reopening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings,

affidavits, or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus, or prohibition

against any interlocutory order issued by the court;

(h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (l) Interventions. PARTS OF A PLEADING [Rule 7, Secs. 1 to 3]

CAPTION Caption - Court’s name, action’s title (i.e. parties’ names) and docket number. Body - Pleading’s designation, allegations of party's claims/defenses, relief prayed for and pleading’s date. (a) Paragraphs must be numbered, and each

paragraph number must contain a single set of circumstances

(b) Headings: if more than one cause of action, use "1st cause of action," 2nd cause of action," etc.

(c) Specify relief sought, but it may add a general prayer for such further/other relief as may be deemed just/equitable.

(d) Every pleading shall be dated. SIGNATURE AND ADDRESS Pleading must be signed by the party/counsel. State address (not PO box) in either case. VERIFICATION AND CERTIFICATION AGAINST FORUM

SHOPPING [Rule 7, Sec. 4] Verification Pleadings need not be verified, unless otherwise provided by the law/rules.

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How a Pleading is Verified [Rule 7, Sec 4] By an affidavit: (a) That the affiant read the pleading; (b) That the allegations therein are true and correct

of his personal knowledge or based on authentic documents.

Certification of Non-Forum Shopping (CNFS) [Rule 7, Sec. 5] Definition: The filing of multiple suits in different courts, simultaneously or successively, involving the same parties, to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [T'Boli Agro-Industrial Development, Inc. (TADI) v. Solidapsi (2002)] (Asked in the 2006 Bar Exam) Test to Determine WON there is Forum Shopping (ASKED IN THE 2002 BAR EXAM) - WON in the 2 or more cases pending, there is identity of: (a) Parties; (b) Rights or causes of action; (c) Relief sought. The CNFS is to be executed by the petitioner, not by the counsel. CNFS is required only for complaints or initiatory pleadings (e.g. permissive counterclaim, cross-claim etc.). CNFS is not required in a compulsory counterclaim. A counterclaim is not an initiatory pleading. [UST Hospital v. Surla (1998)] The lack of certification against forum shopping is not curable by mere amendment of a complaint, but shall be a cause for the dismissal of the case without prejudice. The general rule is that subsequent compliance with the requirements will not excuse a party's failure to comply in the first instance. [Ramirez v. Mar Fishing (2012)] Effect of Submission of False CNFS or Non-Submission of CNFS (a) Indirect contempt; (b) Administrative and criminal actions. Effect of Willful and Deliberate Forum Shopping (Asked in the 2006 and 2007 Bar Exams) (a) Ground for summary dismissal of the case with

prejudice; (b) Direct contempt and administrative sanctions.

(1) Pleadings as well as remedial laws should be liberally construed

(2) in order that the litigant may have ample opportunity to prove their respective claims, and possible denial of substantial justice, due to technicalities, may be avoided. [Gerales v. CA (1993)]

Requirements of a corporation executing the verification/certification of non-forum shopping Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority. [PAL v. FASAP (2006)]

EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING (a) Counsel’s signature is a certification that:

(1) He has read the pleading; (2) To the best of his knowledge, information and

belief there is good ground to support it; (3) It is not interposed for delay.

(b) An unsigned pleading produces no legal effect. (c) However, the court may allow such deficiency to

be remedied if it shall appear that the same was due to inadvertence and not intended for delay.

ALLEGATIONS IN A PLEADING MANNER OF MAKING ALLEGATIONS In general [Rule 8, Sec. 1] (a) In a methodical and logical form. (b) Plain, concise and direct statement of the

ultimate facts on which the party pleading relies for his claim/defense.

(c) Omit evidentiary facts. (d) If defense relied on is based on law, cite the

provisions and their applicability. Condition precedent - a general averment of the performance or occurrence of all conditions precedent shall be sufficient [Rule 8, Sec. 3] Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts - Circumstances constituting fraud or mistake must be stated with particularity while malice, intent, knowledge or other condition of the mind of a person may be averred generally [Rule 8, Sec. 5] Facts that may be Averred Generally (a) Conditions precedent; but there must still be an

allegation that the specific condition precedent has been complied with, otherwise it will be

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dismissed for lack of cause of action; [Rule 8, Sec. 3]

(b) Capacity to sue or be sued; (c) Capacity to sue or be sued in a representative

capacity; [Rule 8, Sec. 4] (d) Legal existence of an organization;

A party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by specific denial which shall include supporting particulars within the pleader's knowledge. [Rule 8, Sec 4]

(e) Malice/intent/knowledge or other condition of the mind; [Rule 8, Sec. 5]

(f) Judgments of domestic/foreign courts, tribunals, boards or officers (without need to show jurisdiction); [Rule 8, Sec. 6]

(g) Official documents/acts. [Rule 8, Sec. 9] Facts that must be Averred Particularly Circumstances showing fraud/mistake in all averments of fraud/mistake [Rule 8, Sec. 5] PLEADING AN ACTIONABLE DOCUMENT Actionable document A document which is really the basis of the cause of action (or defense), and not merely evidentiary thereof. [Rule 8, Sec. 7] Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts. [Rule 8, Sec. 8]

Exception to the requirement of an oath: when the adverse party does not appear to be a party to the instrument. [Donato v. CA (1993)]

How an action or defense may be based on a document: (a) By copying a substantial portion of the document

into the pleading; (b) By annexing /incorporating the document into

the pleading; (c) By both copying and annexing document into the

pleading. SPECIFIC DENIALS Three Ways of Making a Specific Denial (1) Specific absolute denial – by specifically denying

the averment and, whenever practicable, setting forth the substance of the matters relied upon for such denial.

(2) Partial specific denial – part admission and part

denial;

(3) Disavowal of knowledge – by an allegation of lack

of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. This does not apply where the fact as to which want of knowledge is asserted is, to the knowledge of the court, so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue.

Note: General rule: Allegations not specifically denied are deemed admitted [Rule 8, Sec. 11] Exceptions: (a) Allegations as to the amount of unliquidated

damages; (b) Allegations immaterial to the cause of action; (c) Allegations of merely evidentiary or immaterial

facts may be expunged from the pleading or may be stricken out on motion. [Rule 8, Sec. 12]

(d) Conclusion of law. Kinds of denial (Asked in the 2004 Bar Exam) (a) Specific denial – Specifies each material

allegation of fact the truth of which he does not admit, and sets forth the substance of the matters upon which he relies to support his denial. [Rule 8, Sec. 10]

(b) Denial with qualification - Specifies so much of it as is true and material, and deny the remainder.

(c) Specific denial for lack of knowledge/information sufficient to form as belief as to the truth of a material averment made in the complaint.

(d) Specific denial under oath - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8]

Disciplinary Action on Counsel Regarding Pleadings [Rule 7, Sec. 3] (a) Deliberately filing an unsigned pleading; (b) Deliberately signing a pleading in violation of the

Rules; (c) Alleging scandalous/Indecent matter in the

pleading; (d) Failing to promptly report a change of his

address. Effect of failure to make specific denials General rule: Defenses and objections not pleaded either in a MTD or in the answer, are deemed waived. [Rule 9, Sec. 1] Exceptions: (a) Lack of jurisdiction over the subject matter; (b) Litis pendentia;

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(c) Res judicata; (d) Prescription When a specific denial requires an oath - Contests the authenticity or due execution of an actionable document. [Rule 8, Sec. 8] EFFECT OF FAILURE TO PLEAD FAILURE TO PLEAD DEFENSES AND OBJECTIONS General rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived. (Omnibus Motion Rule) [Rule 9] Exceptions: (a) Lack of jurisdiction over the subject matter; (b) Litis pendentia between same parties for the

same cause (c) Res judicata (d) Action barred by statute of limitations.

FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND

CROSS-CLAIM Compulsory counterclaim General Rule: A compulsory counterclaim not set up is considered barred. [Rule 9, Sec. 2] Exception: If due to oversight, inadvertence, excusable neglect, etc. the compulsory counterclaim, with leave of court, may be set up by amendment before judgment. [Rule 11, Sec. 10] Cross-claim A cross-claim is always compulsory. A cross-claim not set up shall be barred. [Rule 9, Sec. 2] DEFAULT [Rule 9, Sec. 3] Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence (Asked in the 2000 and 2001 Bar Exams)

Order of default

Judgment by default

Issued 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

WHEN A DECLARATION OF DEFAULT IS PROPER (a) Court validly acquired jurisdiction over the

defendant’s person, either by service of summons or voluntary appearance;

(b) Defendant fails to answer within the time allowed therefor;

(c) Motion to declare the defendant in default; (d) Notice to the defendant by serving upon him a

copy of such motion; (e) Proof of such failure to answer. EFFECT OF AN ORDER OF DEFAULT (Asked in the 1999 Bar Exam) [Rule 9, Sec 3(a)] A defendant who fails to file an answer may, upon motion, be declared by the court in default. Loss of standing in court, the forfeiture of one’s right as a party litigant, contestant or legal adversary, is the consequence of an order of default. A party in default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses. He has no right to expect that his pleadings would be acted upon by the court nor may be object to or refute evidence or motions filed against him. [Ortero v. Tan (2012)]

The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (a) A defendant declared in default cannot take part

in the trial, but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. [Cavili v. Florendo (1987)]

(b) A party in default is entitled to notice of: (1) Motion to declare him in default; (2) Order declaring him in default; (3) Subsequent proceedings; (4) Service of final orders and judgments.

Note: A defending party declared in default retains the right to appeal from the judgment by default. However, the grounds that may be raised in such an appeal are restricted to any of the following: (a) the failure of the plaintiff to prove the material

allegations of the complaint; (b) the decision is contrary to law; and (c) the amount of judgment is excessive or different

in kind from that prayed for. [Ortero v. Tan (2012)]

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RELIEF FROM AN ORDER OF DEFAULT [Rule 9, Sec 3(b)] (a) Before judgment, a party declared in default may

file a motion under oath to set aside the order of default upon proper showing that: (1) His failure to answer was due to fraud,

accident, mistake or excusable negligence; and that

(2) He has a meritorious defense. (b) In such case, the order of default may be set aside

on terms and conditions as justice requires. Remedies of a party declared in default (a) Pleadings, as well as remedial laws, should be

liberally construed in order that litigants may have ample opportunity to prove their respective claims, and possible denial of substantial justice. [Gerales v. CA (1993)]

(b) Dulos v. CA (1990) Motion to Set Aside Order of Default [Rule 9, Sec. 3(B)]

At any time after the discovery of default and before judgment, defendant may file a motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud, accident mistake of law, and excusable negligence and that he has a meritorious defense

Motion for New Trial [Rule 37, Sec. 1(A)]

(a) If the judgment has already been rendered when the defendant discovered the default, but before the same became final and executory.

(b) It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15-day reglementary period for an appeal.

(c) It is required that defendant file first a motion to lift order of default to regain his standing. [Tan v. CA (1997)]

Petition for Relief from Order, Judgment or Other Proceedings [Rule 38, Sec. 1 And 2]

If the defendant discovered the default after the judgment has become final and executory

Appeal from the RTC [Rule 41, Sec. 1]

The defendant may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if he did not present a petition to set aside the order of default

(c) An order of default is an interlocutory order which

is not appealable. A judgment by default is a final disposition of the case and is appealable. [MERALCO v. La Campana Food Products (1995)]

(d) A petition for certiorari under Rule 65, although not a substitute for an available or lost appeal, may be invoked while the orders of the lower court are issued without or in excess of jurisdiction.

(e) Judgment by default being appealable, appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. [Oriental Media v. CA (1995)]

(f) A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or an order of default.

(g) A meritorious defense is only one of the two conditions. The meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party. If there is no such reason, the appropriate remedy is an ordinary appeal under Rule 41, Sec. 2. [Ramnani v. CA (1993)]

(h) The jurisdiction was properly acquired by the TC over the defendant’s person; he was therefore properly declared in default for not having filed any answer.

(i) Despite his failure to file a motion to set aside the declaration of default, he has the right to appeal the default judgment.

(j) But in the appeal, only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence. [Boticano v. Chu (1987)]

EFFECT OF A PARTIAL DEFAULT [Rule 9, Sec 3(c)] If the pleading asserting a claim states a common cause of action against several defending parties, and some of the defending parties answer while the others fail, the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented.

Exception: If the defense is personal to the one who answered; in which case, it will not benefit those who did not answer.

EXTENT OF RELIEF Extent of relief to be awarded The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages.

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Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default.

Datu Samad Mangelen v. CA (1992): In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. On the other hand, in a judgment where an answer was filed but defendant did not appear at the hearing, the award may exceed the amount or be different in kind from that prayed for.

ACTIONS WHERE DEFAULT ARE NOT ALLOWED Cases where no defaults are allowed [Rule 9, Sec 3(e)] (a) Annulment of marriage; Declaration of nullity of

marriage; Legal Separation; Here, the court shall order the prosecuting attorney to investigate WON parties are colluding and, if there is no collusion, to intervene from the State to ensure that evidence is not fabricated.

(b) Special civil actions of certiorari, prohibition and mandamus, where comment (instead of an answer) is required to be filed.

Failure to appear at pre-trial

Who fails to appear

Effect

Plaintiff Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court

Defendant Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof

Default by defendant

(Rule 9, Sec. 3) As in default

(failure to appear by plaintiff) (Rule 18, Sec. 5)

Upon motion and notice to defendant.

Not required

Requires proof of failure to answer

Not required

Court to render judgment, unless it requires submission of evidence

Court to allow plaintiff to present evidence ex parte, then the court shall render judgment

Relief awarded must be the same in nature and amount as prayed for in the complaint

Relief awarded may be of different nature and amount from the relief prayed for

Lesaca v. CA (1992): A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. Bayog v. Natino (1996): The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under Sec. 19(a) thereof. Malanyaon v. Sunga (1992): Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order.

Acquisition of jurisdiction FILING AND SERVICE OF PLEADINGS DEFINITION Filing – The act of presenting the pleading or other paper to the clerk of court. [Rule 13, Sec. 2] Service – The act of providing a party or his counsel with a copy of the pleading or paper concerned. [Rule 13, Sec. 2] PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13, Sec. 4] (a) Pleading subsequent to the complaint; (b) Appearance; (c) Written Motion; (d) Notice; (e) Order; (f) Judgment; (g) Demand; (h) Offer of Judgment; (i) Resolution; (j) Similar papers. PAYMENT OF DOCKET FEES As a rule, the court acquires jurisdiction over the case only upon payment of prescribed fees

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General rule: Without payment, case is considered not filed. Payment of docket fees is mandatory and jurisdictional.

It is not simply the filing of the complaint or appropriate initiatory pleading but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action [Proton Pilipinas v. Banque National de Paris (2005)]

Effect of Failure to Pay Docket Fees at Filing Manchester v. CA (1987) [Old Rule]: AUTOMATIC DISMISSAL. Any defect in the original pleading resulting in underpayment of the docket fees cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction

Modification by Sun Insurance v. Asuncion (1989): NOT AUTOMATIC DISMISSAL BUT Court may allow payment of fees within reasonable period of time. Note that payment should always be within the prescriptive period of the action filed.

Further Modification by Heirs of Hinog v. Melicor (2005): FEES AS LIEN. Where the trial court acquires jurisdiction over a claim by the filing of the pleading and the payment of the prescribed filing fee, BUT SUBSEQUENTLY, the judgment awards a claim not specified in the pleading, or cannot then be estimated, or a claim left for determination by the court, then the additional filing fee shall constitute a lien on the judgment. Note: Appellate docket and other lawful fees must be paid within the same period for taking an appeal. Non-payment is a valid ground for dismissal of an appeal. [M.A. Santander v. Villanueva (2004)] However, delay in the payment of docket fees confers upon the court discretionary and not mandatory power to dismiss an appeal. [Villamor v. CA (2004)]

FILING VERSUS SERVICE OF PLEADINGS Filing is the act of presenting the pleading or other papers to the clerk of court. [Rule, 13, Sec. 2] Service is the act of providing a party with a copy of the pleading or paper concerned. [Rule, 13, Sec. 2] PERIODS OF FILING OF PLEADINGS Answer to the complaint - The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. [Rule 11, Sec. 1]

within thirty (30) days after receipt of summons of the foreign entity where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed [Rule 11, Sec. 2] Answer to amended complaint - Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Note that this Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third (fourth, etc.) party complaint, and amended complaint-in-intervention. [Rule 11, Sec. 3] Answer to counterclaim or cross-claim - A counterclaim or cross-claim must be answered within ten (10) days from service. [Rule 11, Sec. 4] Answer to third (fourth, etc.)- party complaint - Same rule as the answer to the complaint. [Rule 11, Sec. 5] Reply - within ten (10) days from service of the pleading responded to. [Rule 11, Sec. 6] Answer to supplemental complaint - within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. Note that the answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. NOTE: Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. [Rule 11, Sec. 11]

MANNER OF FILING Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 Bar particularly in comparison with filing in criminal actions) (a) Personally.

(1) By personally presenting the original to the clerk of court.

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(2) The pleading is deemed filed upon the receipt of the same by the clerk of court who shall endorse on it the date and hour of filing.

(3) If a party avails of a private carrier, the date of the court’s actual receipt of the pleading (not the date of delivery to the private carrier) is deemed to be the date of the filing of that pleading. [Benguet Electric Cooperative v. NLRC (1992)]

(b) By registered mail. (1) Filing by mail should be through the registry

service (i.e. by depositing the pleading in the post office).

(2) The pleading is deemed filed on the date it was deposited with the post office.

MODES OF SERVICE [Rule 13, Sec. 5] Personal service [Rule 13, Sec. 6] (a) Delivering personally a copy to the party or his

counsel. (b) Leaving a copy in counsel's office with his clerk or

with a person having charge thereof. (c) If no person is found in his office, or if his office is

unknown, or if he has no office – Leaving the copy between 8am and 6pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein.

Service by (registered) mail [Rule 13, Sec. 7] (a) By depositing the copy in the office, in a sealed

envelope, plainly addressed to the party or his counsel at his office or at his residence (if known), with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered.

(b) If no registry service is available in the locality of either sender or addressee, service may be done by ordinary mail.

Substituted service [Rule 13, Sec. 8] By delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail

Completeness of service (Rule 13 Sec. 10)

Proof of service (Rule 13 Sec. 13)

Personal service

Upon actual delivery Written admission of the party served, OR

Official return of the server OR Affidavit of the party serving, with a full statement of the date/place/manner of service.

Service by ordinary mail

10 days after mailing, unless otherwise provided by the court

Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13.

Service by registered mail Whichever is earlier: (a) Actual receipt by

the addressee (b) 5 days after the

addressee received 1st postmaster's notice

Affidavit of the person mailing of facts showing compliance with Sec. 7 of Rule 13 AND Registry receipt issued by the post office

Service of judgments, final orders or resolutions [Rule

13, Sec. 9] (a) By personal service; (b) By registered mail; (c) By publication at the expense of the prevailing

party if party was summoned by publication and has failed to appear in the action.

Priorities in modes of service and filing [Rule 13, Sec. 11] General rule: Personal filing and service. Resort to other modes of filing and service must be accompanied by an explanation why the service/filing was not done personally. If there is no written explanation, the paper is considered not filed. Exception: Papers emanating from the court. When service is deemed complete (a) Personal service is deemed complete upon actual

delivery [Rule 13, Sec. 10] (b) Service by registered mail is complete upon

actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier. [Rule 13, Sec. 10]

(c) Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides [Rule 13, Sec. 10]

(d) Substituted service is complete at the time of delivery of the copy to the clerk of court together with the proof of failure of both personal service and service by mail. [Rule 13, Sec. 8]

Purpose of the rule on completeness of service for service by registered mail: To make sure that the party being served with the pleading, order or judgment is duly informed of the same so that such party can take steps to protect the interests, i.e.,

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enable to file an appeal or apply for other appropriate reliefs before the decision becomes final. [MINTERBRO v,CA (2012)] Proof of filing and service Proof of filing (a) Filing is proved by its existence in the record of

the case [Rule 13, Sec. 12]. (b) If it is not in the record [Rule 13, Sec. 12]. When pleading is deemed

filed Proof of filing

Personally Upon receipt of the pleading by the clerk of court

Written/stamped acknowledgment by the clerk of court

By registered mail On the date the pleading was deposited with the post office

Registry receipt, and affidavit of the person who did the mailing with: (a) Full statement of

the date/place of depositing the mail in the post office in a sealed envelope addressed to the court

(b) Postage fully paid (c) Instructions to the

postmaster to return the mail to the sender after 10 days if undelivered

Proof of Service [Rule 13, Sec. 13] (a) Proof of personal service shall consist of:

(1)a written admission of the party served, or the official return of the server, OR

(2) the affidavit of the party serving, (3) Content: full statement of the date, place

and manner of service. (b) Proof of service by ordinary mail:

(1)an affidavit of the person mailing (2) Content: facts showing compliance with

Rule 13, Sec. 7 (c) Proof of service by registered mail

(1) an affidavit of the person mailing containing the facts showing compliance with Rule 13, Sec. 7, AND

(2) the registry receipt issued by the mailing office.

(3) the registry return card which shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

Notice of lis pendens [Rule 13, Sec. 14] Lis Pendens - Notice of a pendency of the action between the parties involving title to or right of possession over real property. Requisites: [AFP Mutual Benefit Association v. CA (2001)] (a) Action affects the title or the right of possession

of the real property; (b) Affirmative relief is claimed; (c) Notice shall contain the name of the parties and

the object of the action/defense and a description of the property affected thereby;

(d) Action in rem. (1) The notice serves as a warning to all persons,

prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings.

(2) The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer.

(3) The notice of cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated, as Sec. 14 provides that such cancellation may be authorized only upon order of court, after proper showing that: [Roxas v. CA (1993)]

(4) The notice is for the purpose of molesting the adverse party; or

(5) It is not necessary to protect the rights of the party who caused it to be recorded

Amended and supplemental pleadings AMENDMENT HOW TO AMEND PLEADINGS [Rule 10, Sec. 1] (a) Adding an allegation of a party; (b) Adding the name of a party; (c) Striking out an allegation of a party; (d) Striking out the name of a party; (e) Correcting a mistake in the name of a party; and (f) Correcting a mistaken or inadequate allegation or

description in any other respect. Purpose: That the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner.

Barfel Development v. CA (1993): As a general policy, liberality in allowing amendments is greatest in the early stages of a law suit, decreases as it progresses and changes at times to a strictness amounting to a prohibition.

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This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage.

Form [Rule 10, Sec. 7] A new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.

AMENDMENT AS A MATTER OF RIGHT Substantial Amendments – once, made at any time before a responsive pleading is served. If it is a reply, once, made at any time within 10 days after it is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar Exam) AMENDMENTS BY LEAVE OF COURT Substantial Amendments - If as a matter of discretion, requires leave of court if: (a) It is substantial; and (b) A responsive pleading has already been served.

[Rule 10, Sec. 3] Requisites for amendments by leave of court (a) Motion filed in court; (b) Notice to the adverse party; (c) Opportunity to be heard afforded to the adverse

party. (Note: In the 2008 Bar Exam, a question was asked on amendment of complaint to implead additional parties) When amendment by leave of court may not be allowed (a) If the cause of action, defense or theory of the

case is changed. (b) If amendment is intended to confer jurisdiction to

the court. If the court has no jurisdiction in the subject matter of the case, the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. [PNB v. Florendo (1992)]

(c) If amendment is for curing a premature or non-existing cause of action.

(d) If amendment is for purposes of delay. Note: (a) Admitting an amended complaint in intervention

is a matter addressed to the court’s discretion, subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action.

(b) Once exercised, it cannot be disturbed on appeal, except in case of abuse thereof. [Metropolitan Bank v. Presiding Judge (1990)]

FORMAL AMENDMENT [Rule 10, Sec. 4] (a) A defect in the designation of the parties and

other clearly clerical errors may be summarily corrected by the court motu proprio or by motion at any stage of the action.

(b) Provided that no prejudice is caused to the adverse party.

AMENDMENTS TO CONFORM TO OR AUTHORIZE

PRESENTATION OF EVIDENCE [Rule 10, Sec. 5] (Asked in the 2004 Bar Exam) (a) If issues not raised by the pleadings are tried with

the express/implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

(b) Amendment of pleadings as may be necessary to

cause them to conform to the evidence and to raise these issues, may be made upon motion of any party, any time (even after judgment). But failure to amend does not affect the result of the trial of these issues.

(c) If evidence is objected to at the trial on the

ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.

Amendments vis-à-vis supplemental pleadings IFFERENT FROM SUPPLEMENTAL PLEADINGS Supplemental pleadings (ASKED IN THE 2000 BAR EXAM) Definition: One which sets forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. [Rule 10, Sec. 6] Purpose: to bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled [Ada v. Baylon (2012), citing Young v. Spouses Yu]

It is made upon motion of a party with reasonable notice and upon terms as are just.

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The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Otherwise, the court should not admit the supplemental complaint. [Asset Privatization Trust v. CA (1998)]

A supplemental complaint/pleading supplies deficiencies in aid of an original pleading, not to entirely substitute the latter. Unlike in an amended complaint, the original complaint exists side by side with the supplemental complaint. [Shoemart v. CA (1990)] A supplemental pleading may raise a new cause of action as long as it has some relation to the original cause of action set forth in the original complaint. [Ada v. Baylon (2012)] A supplemental pleading may properly allege transactions, occurrences or events which had transpired after the filing of the pleading sought to be supplemented, even if the said supplemental facts constitute another cause of action. [Ada v. Baylon (2012)]

Amendments

Supplemental pleadings

Reason for the amendment is available at time of the 1st pleading

Grounds for the supplemental pleading arose after the 1st pleading was filed

Either as a matter of right or a matter of discretion

Always a matter of discretion

Supersedes the pleading Supplements the pleading (i.e. Exists side by side with the original pleading)

When an amended pleading is filed, a new copy of the entire pleading must be filed

A supplemental pleading does not require the filing of a new copy of the entire pleading

EFFECT OF AMENDED PLEADING Effect [Rule 10, Sec. 8] (a) Amended pleading supersedes the pleading that

it amends. (b) Claims and defenses in superseded pleading

which are not incorporated in the amended pleading are deemed waived.

(c) Admissions made in the superseded pleading may still be received in evidence against the pleader.

Summons

Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant (asked in the 1999 Bar Exam) NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM, IN REM AND QUASI IN REM PURPOSE (1) To acquire jurisdiction over the person of the

defendant in a civil case; (2) To give notice to the defendant that an action has

been commenced against him.

ISSUANCE OF SUMMONS Upon the filing of the complaint and the payment of legal fees, the clerk of court shall issue the corresponding summons to the defendants. [Rule 14, Sec. 1] CONTENTS OF SUMMONS [Rule 14, Sec. 2] Summons must be directed to the defendant, signed by the clerk of the court under seal, and contain: (1) Name of the court and names of the parties; (2) Direction that the defendant answer within the

time fixed; (3) Notice that unless the defendant so answers,

plaintiff will take judgment by default and may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad litem (if any) shall be attached to the original and each copy of the summons. NOTE that jurisdiction over person of defendant may also be acquired through voluntary appearance. VOLUNTARY APPEARANCE GENERAL RULE: Defendant's voluntary appearance in the action shall be equivalent to service of summons; EXCEPTION: Special appearance to file a MTD. BUT inclusion in the MTD of grounds other than LOJ over the defendant’s person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)]

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WHO SERVES THE SUMMONS [Rule 14, sec. 3] (1) The sheriff or his deputy; (2) Other proper court officers; (3) For justifiable reasons, any suitable person

authorized by the court issuing the summons. (4) Officer having management of a jail or

institution deputized as special sheriff when defendant is a prisoner [Rule 14, sec. 9]

RETURN OF SUMMONS [Rule 14, sec. 4] When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. ALIAS SUMMONS [Rule 14, sec. 5] Upon plaintiff’s demand, the clerk may issue an alias summons if either: (1) Summons is returned without being served on

any/all of the defendants. (2) Summons was lost. The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom, stating the reasons for the failure of service. MODES OF SERVICE OF SUMMONS Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by: (1) motion in writing, (2) supported by affidavit of the plaintiff or some

person on his behalf, setting forth the grounds for the application. [Rule 14, Sec. 17]

PERSONAL SERVICE SERVICE IN PERSON ON DEFENDANT (1) By handing a copy of summons to him; (2) By tendering it to him, if he refuses to receive

and sign for it. [Rule 14, Sec. 6] SUBSTITUTED SERVICE [Rule 14, Sec. 7] (asked in the 2004 Bar Exam) RATIONALE: Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the various incidences of state citizenship. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. [Northwest v. CA (1995)]

For a valid substituted service of summons, the following must be established in the proof of service: [Sps. Ventura v. CA (1987)] (1) Impossibility of the personal service of summons

within a reasonable time; (2) Efforts made to find the defendant personally

and the fact that such efforts failed; [Laus v. CA (1993)]

(3) Service by leaving copy of summons either: (a) With some person of suitable age and

discretion then residing in the defendant’s residence;

(b) With some competent person in charge of the defendant’s office or regular place of business.

For a substituted service to be valid, summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. [Sps. Ventura v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. [Laus v. CA (1993)] While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Mapa v. CA (1992)] Proof of substituted service of summons must (a) indicate the impossibility of service of summons

within a reasonable time; (b) specify the efforts exerted to locate the

defendant; and (c) state that the summons was served upon a

person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. [Sps. Tiu v. Villar (2012)]

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CONSTRUCTIVE SERVICE (BY PUBLICATION) [Rule 14, Sec. 14] REQUISITES (1) The action is in rem or quasi in rem; (2) Defendant's identity or whereabouts are unknown

and cannot be ascertained by diligent inquiry; (3) There must be leave of court. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant, who does not voluntarily submit himself to the authority of the court. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. [Consolidated Plywood v. Breve (1988)] SERVICE OF SUMMONS UPON DIFFERENT ENTITIES See Annex A. SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS

UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN [Rule 14, Sec. 14] With leave of court, by publication in a newspaper of general circulation SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE

PHILIPPINES [Rule 14, Sec. 16] With leave of court, may serve extraterritorially Service of summons upon different entities Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence, even if defendant was abroad at that time. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. [Montalban v. Maximo (1963)] EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED [Rule 14, Sec. 15] REQUISITES: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the

Philippines; (2) Action either:

(a) Affects the plaintiff’s personal status; (b) Relates to or the subject matter of which is

property within the Philippines in which defendant has a lien/interest;

(c) Demands a relief which consists wholly/partially in excluding the defendant

from any interest in any property within the Philippines;

(d) Has defendant’s property in the Philippines, attached.

MODES OF SERVICE (1) With leave of court, serve outside the Philippines

by personal service; or (2) With leave of court, serve by publication in a

newspaper of general circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendant’s last known address;

(3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. SERVICE UPON PRISONERS AND MINORS SERVICE UPON PRISONER [Rule 14, Sec. 9] Serve upon the officer having management of the jail/prison SERVICE UPON MINORS AND INCOMPETENTS [Rule 14, Sec. 10] Serve upon the minor/incompetent and on his legal guardian. (a) If there is no guardian, plaintiff may apply for the

appointment of a guardian ad litem. (b) If minor, may serve on his parents. PROOF OF SERVICE RETURN OF SERVICE [Rule 14, Sec. 4] When service has been completed, the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. (a) Without return of service: Burden is on plaintiff. (b) In the case of Mapa v. CA (1992) though, while

there was a return, return was patently irregular, thus no presumption of regularity could be had.

Exception: Doctrine of substantial compliance – If defendant actually received summons and complaint despite all these technicalities. PROOF OF SERVICE If personal or substituted service: In writing by the server and shall: [Rule 14, Sec. 18] (1) Set forth the manner/place/date of service;

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(2) Specify any papers which have been served with the process and the name of the person who received the same;

(3) Be sworn to when made by a person other than a sheriff or his deputy.

If by publication: [Rule 14, Sec. 19] (1) Affidavit of the printer, his foreman, principal

clerk, or the editor, business/advertising manager, with a copy of the publication attached, AND

(2) Affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

EFFECT OF NON-SERVICE OF SUMMONS (asked in the 2006 Bar Exam) Unless the defendant voluntarily submits to the jurisdiction of the court,non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. If the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint if it does not introduce new causes of action. [Ong Peng v. Custodio (1961)] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. [Atkins v. Domingo (1923)] WAIVER OF SERVICE OF SUMMONS [Rule 14, Sec. 20] General rule: Defendant's voluntary appearance in the action shall be equivalent to service of summons;

Exception: Special appearance to file a MTD.

Inclusion in the MTD of grounds other than LOJ over the defendant’s person, is not deemed a voluntary appearance. Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner is precisely to protest the jurisdiction of the court over the person of the defendant. [Delos Santos v. Montesa (1993)]

SERVICE OF SUMMONS UPON DIFFERENT ENTITIES See Annex A.

Motions

MOTIONS IN GENERAL

DEFINITION OF A MOTION An application for relief other than by a pleading [Rule 15, Sec. 1] Motion day [Rule 15, Sec. 7] Except for urgent motions, motions are scheduled for hearing: (1) On Friday afternoons; (2) Afternoon of the next working day, if Friday is a

non-working day. Motion for leave to file a pleading/motion [Rule 15, Sec. 9] Must be accompanied by the pleading/motion sought to be admitted Motions not acted upon Parties and counsel should not assume that courts are bound to grant the time they pray for. After all, a motion that is not acted upon in due time is deemed denied. [Orosa v. CA (1996)] MOTIONS VERSUS PLEADINGS

Motion

Pleading

Contains allegations of facts

Contains allegations of the ultimate facts

Prays for a relief Prays for a relief Grant of the relief does not extinguish the action (interlocutory relief)

Grant of relief extinguishes the action (final relief)

Generally in writing (with some exceptions)

Always in writing

General rule: A motion cannot pray for judgment. Exception: (1) Motion for judgment on the pleadings. (2) Motion for summary judgment. (3) Motion for judgment on demurrer to evidence. CONTENTS AND FORM OF MOTIONS Contents [Rule 15, Sec. 3] (1) Relief sought to be obtained (2) Grounds upon which it is based

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(3) If it is required/necessary to prove facts alleged in a motion, it shall be accompanied by supporting affidavits and other papers.

(4) Motions raising factual issues must be supported by affidavits.

Form of motions [Rule 15, Sec. 2] General rule: In writing. Exception: Oral motions: (1) Made in open court; (2) In the course of a hearing/trial. NOTICE OF HEARING AND HEARING OF MOTIONS Requisites of motions (not made in open court or in the course of hearing/trial) (1) In writing; [Rule 15, Sec. 2] (2) Hearing on the motion set by the applicant

Notice of hearing shall be addressed to all parties, and shall specify the time and date of the hearing which shall not be later than 10 days from the filing of the motion. [Rule 15, Sec. 5] Notice must be addressed to the counsels. A notice of hearing addressed to the clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper, as if it were not filed; hence, it did not suspend the running of the period to appeal. [Provident International Resources v. CA (1996)]

(3) Motion and notice of hearing must be served at

least 3 days before the date of hearing; [Rule 15, Sec. 4]

Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. Exceptions: (1) Ex parte motions; (2) Urgent motions; (3) Motions agreed upon by the parties to be heard

on shorter notice, or jointly submitted by the parties;

(4) Motions for summary judgment which must be served at least 10 days before its hearing.

Proof of service [Rule 15, Sec. 6] General rule: A written motion set for hearing will not be acted upon by the court if there is no proof of service thereof.

What may be proof: (1) If by registered mail: Affidavit or registry receipt

or postmark on envelope or return card, with an explanation.

(2) If by personal service: Affidavit or acknowledgment of receipt by the other party.

Exceptions:

(1) If the motion is one which the court can hear ex parte.

(2) If the court is satisfied that the rights of the adverse parties are not affected by the motion.

(3) If the party is in default because such a party is not entitled to notice.

OMNIBUS MOTION RULE [Rule 15, Sec. 8] Definition: A motion attacking a pleading/ order/ judgment/ proceeding must include all objections then available. All objections not included in the motion are deemed waived. Exception: When the court’s jurisdiction is in issue: (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription. LITIGATED AND EX PARTE MOTIONS Kinds of Motion (1) Motion Ex Parte - Made without notification to the

other party because the question generally presented is not debatable.

(2) Litigated Motion - Made with notice to the adverse party so that an opposition thereto may be made.

(3) Motion Of Course - Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right, Allegations contained in such motion do not have to be investigated/verified.

(4) Special Motion - Discretion of the court is involved. An investigation of the facts alleged is required.

PRO-FORMA MOTIONS Pro forma motion – A motion failing to indicate time and date of the hearing MOTIONS FOR BILL OF PARTICULARS BILL OF PARTICULARS (ASKED IN THE 2003 BAR EXAM) Definition: It is a detailed explanation respecting any matter which is not averred with sufficient definiteness/particularity in the complaint as to enable a party to properly prepare his responsive pleading or to prepare for trial. [Rule 12, Sec. 1]

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PURPOSE AND WHEN APPLIED FOR It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. In said motion, the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. An action cannot be dismissed on the ground that the complaint is vague/indefinite. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. [Galeon v. Galeon (1973)] Purpose To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading, with the view of enabling him to prepare properly his responsive pleading or to prepare for trial. The purpose of a BOP is to define/ clarify/ particularize/ limit/ circumscribe the issues in the case to expedite the trial and assist the court. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint are averred with sufficient definiteness/ particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. [Tantuico, Jr. v. Republic (1991)] A BOP becomes part of the pleading for which it was intended. [Rule 12, Sec. 6] When applied for [Rule 12, Sec. 1] (1) Before responding to a pleading (2) If the pleading is a reply, within 10 days from

service thereof What a motion for bill of particulars should point out [Rule 12, Sec. 1] (1) The defects complained of; (2) The paragraph wherein they are contained; (3) The details desired. ACTIONS OF THE COURT [Rule 12, Sec. 2] (1) Deny; (2) Grant the motion outright; (3) Allow the parties the opportunity to be heard.

COMPLIANCE WITH THE ORDER AND EFFECT OF NON-COMPLIANCE Compliance with order [Rule 12, Sec. 3] If motion for BOP is granted wholly/partially: (1) Within 10 days from notice of order, BOP or a

more definite statement should be submitted (unless court fixes a different period).

(2) BOP or definite statement filed either as a separate pleading or as an amended pleading, a copy of which must be served on the adverse party.

Effect of non-compliance [Rule 12, Sec. 4] In case of non-compliance or insufficient compliance with the order for BOP, the court: (1) May order the striking out of the pleading (or

portion thereof) to which the order is directed; OR (2) Make such order as it may deem just. If the plaintiff fails to obey, his complaint may be dismissed with prejudice unless otherwise ordered by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3] If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he will be declared in default upon motion of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4] EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING [Rule 12, Sec. 5] A Motion for BOP interrupts the period to file a responsive pleading. The period to which the movant is entitled at the time of filing of the motion, which shall not be less than 5 days in any event. NOTE the following distinctions:

Bill of Particulars (BOP)

Intervention

Purpose is to enable a party bound to respond to a pleading to get more details about matters which are alleged generally or which are indefinite and vague, so as to properly guide such party in answering the pleading and to avoid surprise in the trial of the case

Purpose is to enable a person not yet a party to an action, yet having a certain right or interest in such action, the opportunity to appear and be joined so he could assert or protect such right or interest

Available to the defendant before he files his responsive pleading

Available to any person not yet a party to the action at any time after the commencement of an action, even during the proceeding, but not after the trial has been concluded

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Terminating the action before trial MOTION TO DISMISS DEFINITION A remedy of the defendant, or the responding party in general, which attacks the entire pleading and seeks its dismissal based on: (1) Grounds which are patent on the face of the

complaint; (2) Defenses available to the defendant at the time

of the filing of the complaint It hypothetically admits the facts stated in the complaint. It is not a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. General rule: A court may not motu propio dismiss a case, unless a motion to that effect is filed by a party. Exception: (1) Cases where the court may dismiss a case motu

propio; [Rule 9, Sec. 1] (2) Failure to prosecute; [Rule 17, Sec. 3] (3) Sec. 4, Revised Rule on Summary Procedure. TYPES OF DISMISSAL OF ACTION (1) MTD before answer under Rule 16; (2) MTD under Rule 17:

(a) Upon notice by plaintiff; (b) Upon motion by plaintiff; (c) Due to fault of plaintiff.

(3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33;

(4) Dismissal of an appeal.

Note: A MTD shall be proved/disproved according to the rules of evidence. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence, except when the motion is based upon failure of the complaint to state a cause of action. When the MTD is based on facts not appearing of record, the court may hear the matter on affidavits/depositions. GROUNDS [Rule 16, Sec. 1] (Asked in the 2008 Bar Exam) (a) LOJ over the defendant’s person

(b) LOJ over the subject matter of the claim (c) Improper venue (d) Plaintiff’s lack of legal capacity to sue (e) Litis pendentia (f) Res judicata (g) Prescription (h) Failure to state a cause of action (i) Extinguished claim (j) Unenforceable claim under the Statute of Frauds (k) Non-compliance with a condition precedent for

filing claim LOJ over the defendant’s person The objection of LOJ over the person on account of lack of service or defective service of summons, must be raised: (1) At the very first opportunity; (2) Before any voluntary appearance is made. If a defendant had not been properly summoned, the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. [Laus v. CA (1993)] Appearance of counsel is equivalent to summons, unless such is made to protest the jurisdiction of the court over the person of the defendant. If grounds other than invalid service of summons are raised, it cannot be considered as a special appearance. [De los Santos v. Montesa (1993)] LOJ over the subject matter of the claim If the complaint shows on its face LOJ, the court may dismiss the case outright instead of hearing the motion. A MTD on the ground of LOJ over the subject matter may be raised either: (1) Before answer; (2) After answer is filed; (3) After hearing had commenced; (4) At any stage of the proceeding, even for the first

time on appeal and even if no such defense is raised in the answer.

Improper venue Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading, the venue cannot truly be said to have been improperly laid since, for all practical intents and purposes, the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. Improper venue may be waived and such waiver may occur by laches. [Diaz v. Adiong (1993)] A stipulation between the parties as to venue does not preclude the filing of suits in the residence of

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plaintiff/defendant under Rule 4, Sec. 2(b). In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue, an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. [HSBC v. Sherman (1989)] If the court erroneously denies the MTD, the remedy is prohibition. Plaintiff’s lack of legal capacity to sue The plaintiff lacks legal capacity to sue: (1) When he does not possess the necessary

qualification to appear at the trial (e.g. when he plaintiff is not in the full exercise of his civil rights);

(2) When he does not have the character which he claims, which is a matter of evidence (e.g. when he is not really a duly appointed administrator of an estate).

Lack of legal capacity to sue refers to plaintiff’s disability; while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest, in which case the ground for dismissal would be that the complaint states no cause of action. Litis pendentia Requisites: [Anderson Group v. CA (1997) Asked in the 2007 Bar Exam] (1) Identity of parties; (2) identity of rights asserted and relief prayed for; (3) Relief founded on the same facts and the same

basis; (4) Identity in the 2 proceedings should be such that

any judgment which may be rendered in the other action will amount to res judicata on the action under consideration.

It is not required to allege that there be a prior pending case. It is sufficient to allege and prove the pendency of another case, even if same had been brought later. It does not require that the later case be dismissed in favor of the earlier case. To determine which case should be abated, apply: (1) The More Appropriate Action Test; (2) The Interest of Justice Test, taking into account:

(a) Nature of the controversy; (b) Comparative accessibility of the court to the

parties; (c) Other similar factors.

In both tests, the parties’ good faith shall be taken into consideration.

The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. The 2nd case will not be abated if it is not brought to harass. [Vitrionics Computers v. RTC (1993)]

Res judicata Requisites (Asked in the 2000 Bar Exam): (1) Former judgment rendered by a court having

jurisdiction over the subject matter and over the parties;

(2) Judgment must be a final judgment; (3) Judgment must be on the merits;

There can be res judicata without a trial, such as in a judgment on the pleadings (Rule 34); a summary judgment (Rule 35); or an order of dismissal under Rule 17, Sec. 3.

(4) There must be identity of parties, of subject matter and of the causes of action.

For res judicata to apply, absolute identity of parties is not required because substantial identity is sufficient. Inclusion of additional parties will not affect the application of the principle of res judicata. The test of identity of cause of action lies not in the form of the action but on WON the same evidence would support and establish the former and the present causes of action. [DBP v. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: (1) Public policy and necessity makes it the interest

of the State that there should be an end to litigation;

(2) The hardship on the individual that he should be vexed twice for the same cause. [Nabus v. CA (1991)]

Two concepts of res judicata [ABALOS V. CA 1993, ASKED IN THE 1997 BAR EXAM)] (1) Bar by prior judgment – Judgment on the merits

in the 1st case constitutes an absolute bar to the subsequent action not only as to every matter which was offered and received to sustain or defeat the claim/demand, but also to any other admissible matter which might have been offered for that purpose and to all matters that could have been adjudged in that case. (Asked in the 2002 Bar Exam)

(2) Conclusiveness of judgment – Where the 2nd

action between the parties is upon a different claim/demand, the judgment in the 1st case operates as an estoppel only with regard to those

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issues directly controverted, upon the determination of which the judgment was rendered.

Note: A single act or omission that causes damage to an offended party may give rise to two separate civil liabilities on the part of the offender (1) civil liability ex delicto, that is, civil liability arising from the criminal offense under Article 100 of the Revised Penal Code, 52 and (2) independent civil liability, that is, civil liability that may be pursued independently of the criminal proceedings. Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata.[Lim v. Co (2012)] On naturalization: A decision or order granting citizenship will not even constitute res judicata to any matter or reason supporting a subsequent judgment cancelling the certification of naturalization already granted, on the ground that it had been illegally or fraudulently procured. [Republic v. Ong (2012)] Statute of limitations Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later, the court must defer decision on the motion until such time as proof may be presented on such fact of prescription.

Prescription

Laches

Concerned with the fact of delay

Concerned with the effect of delay

A matter of time A matter of equity Statutory Not statutory Applies in law Applies in equity Based on fixed time Not based on fixed time Complaint states no cause of action Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. The former means there is insufficiency in the allegations in the pleading. The latter means that there is insufficiency in the factual basis of the action. The failure to state a cause of action must be evident on the face of the complaint itself.

Test: Assuming the allegations and statements to be true, does the plaintiff have a valid cause of action? A MTD based upon the ground of failure to state a cause of action imports a hypothetical admission by the defendant of the facts alleged in the complaint. If the court finds the allegations of the complaint to be sufficient but doubts their veracity, it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. If the suit is not brought against the real party-in-interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action. [Tanpinco v. IAC (1992)] Extinguished claim That the claim/demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished. Unenforceable claim under the statute of frauds Article 1403 (2) CC requires certain contracts to be evidenced by some note or memorandum in order to be enforceable, to wit: (a) An agreement that by its terms is not to be

performed within a year from the making thereof; (b) A special promise to answer for the debt, default,

or miscarriage of another; (c) An agreement made in consideration of marriage,

other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or

things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;

(e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;

(f) A representation as to the credit of a third person. Non-compliance with a condition precedent Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the

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case on the ground of non-compliance with a condition precedent. RESOLUTION OF MOTION During the hearing of the motion, parties shall submit: [Rule 16, Sec. 2] (1) Their arguments on questions of law; (2) Their evidence on questions of fact. Exception: Those not available at that time. If the case goes to trial, such evidence presented shall automatically be part of the evidence of the party presenting the same. After the hearing, the court may either: [Rule 16, Sec. 3] (1) Dismiss the action/claim; (2) Deny the MTD; (3) Order the amendment of pleadings. The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. The court’s resolution on the MTD must clearly and distinctly state the reasons therefor. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS

DISMISSED Remedies of plaintiff when motion to dismiss is granted If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options: (1) Depending upon the ground for the dismissal of

the action, the plaintiff may refile the complaint, e.g when ground for dismissal is anchored on improper venue.

(2) He may appeal from the order of dismissal where the ground relied upon is one which bars refilling of complaint e.g. (a) Res judicata (b) Prescription (c) Extinguishment of the obligation (d) Violation of Statutes of Fraud

(3) The plaintiff may also avail of a petition for certiorari, alleging grave abuse of discretion. [Riano]

REMEDIES OF THE DEFENDANT WHEN THE MOTION IS

DENIED (1) The movant shall file his answer within the

balance of the period described in Rule 11 to which he was entitled at the time of serving his motion, but not less than 5 days in any event.

Appeal is not a remedy since denial of a motion to dismiss is an interlocutory order. As a general rule, defendant files his answer and then may appeal an adverse judgment.

(2) Another remedy is to file a certiorari, case under

Rule 65 alleging grave abuse of discretion. [Riano]

EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN

GROUNDS Of dismissal: [Rule 16, Sec.5] General rule: The action/claim may be re-filed. Exception: The action cannot be re-filed (although subject to appeal) if it was dismissed on any of the following grounds: (1) Res judicata; (2) Prescription; (3) Extinguishment of the claim/demand; (4) Unenforceability under the Statute of Frauds.

[Rule 16, Sec. 1 (f),(h),(i)]

On periods for pleading: [Rule 16, Sec.4] If MTD is denied – Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days) computed from the his receipt of notice of the denial. If pleading is ordered to be amended – movant must file his answer within the period under Rule 11, counted from service of the amended pleading (unless the court gives a longer period).

On other grounds and omnibus motion rule: MTD based on the following grounds may be filed even after filing an answer: [Rule 9, Sec. 1] (1) LOJ over subject-matter; (2) Litis pendentia; (3) Res judicata; (4) Prescription.

Dismissal of the complaint under Rule 16, Sec. 6 is without prejudice to the prosecution (in the same or in a separate action) of a counterclaim pleaded in the answer. WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES

[Rule 16, Sec. 6] If no MTD was filed, the grounds in Rule 16, Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed.

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BAR BY DISMISSAL Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs: (f) – That the cause of action is barred by a prior

judgment or by the statute of limitations; (h) – That the claim or demand set forth in the

plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished; and

(i) - That the claim on which the action is founded is enforceable under the provisions of the statute of frauds

shall bar the refiling of the same action or claim. [Rule 16, Sec. 5] DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER

RULE 33 MTD under Rule 16 MTD under Rule 33

(Demurrer to evidence) Based 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 defending party’s answer to the pleading asserting the claim against him

May be filed only after the plaintiff has completed the presentation of his evidence

If denied, defendant answers; else, he may be declared in default. If granted, plaintiff may appeal or if a subsequent case is not barred, he may re-file the case

If denied, defendant may present evidence. If granted, plaintiff appeals and the order of the dismissal is reversed; the defendant loses his right to present evidence.

Dismissal of Actions DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE DISMISSAL UPON PLAINTIFF’S NOTICE [Rule 17, Sec. 1] Dismissal here is effected not by motion but by mere notice before the service of either: (1) The answer; (2) A motion for summary judgment.

Upon plaintiff’s filing of notice, the court shall issue an order dismissing the case. (i.e. the court has no discretion on WON to dismiss the case). General rule: The dismissal is without prejudice. Exceptions: (1) If the notice of dismissal provides that it is with

prejudice. The dismissal is still with prejudice even it the notice of dismissal does not so provide, where such notice is premised on the fact of payment by the defendant of the claim involved. [Serrano v. Cabrera (1953)]

(2) Two-Dismissal Rule –

If the plaintiff has previously dismissed an action based on or including the same claim, the notice operates as an adjudication upon the merits.

DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM DISMISSAL UPON PLAINTIFF’S MOTION [Rule 17, Sec. 2] Here, dismissal of the complaint is subject to the court’s discretion and upon such terms and conditions as may be deemed proper by court Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. If defendant pleaded a counterclaim prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be without prejudice to the defendant’s right to either: (1) Prosecute his counterclaim in a separate action; (2) Have the counterclaim resolved in the same

action, by manifesting such preference within 15 days from being notified of plaintiff’s motion for dismissal.

Dismissal here is without prejudice, unless otherwise provided in the order. Court approval of the court is necessary in the dismissal/compromise of a class suit. DISMISSAL DUE TO THE FAULT OF PLAINTIFF DISMISSAL DUE TO PLAINTIFF’S FAULT [Rule 17, Sec. 3] The case may be dismissed motu proprio or upon the defendant’s motion if, without justifiable cause, plaintiff fails either: (1) To appear on the date of the presentation of his

evidence-in-chief on the complaint; (a) The plaintiff’s failure to appear at the trial

after he has presented his evidence and

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rested his case does not warrant the dismissal of the case on the ground of failure to prosecute.

(b) It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence. [Jalover v. Ytoriaga (1977)]

(2) To prosecute his action for an unreasonable length of time (nolle prosequi); The test for dismissal of a case due to failure to prosecute is WON, under the circumstances, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. [Calalang v. CA (1993)]

(3) To comply with the ROC or any court order. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise, without prejudice to the right of the defendant to prosecute his counter-claim in the same or separate action.

Rule 17, Sec. 2

Rule 17, Sec. 3

Dismissal is at the plaintiff’s instance

Dismissal is not procured by plaintiff, although justified by causes imputable to him

Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiff’s motion for dismissal of his own complaint.

Dismissal is a matter of evidence, an adjudication on the merits

Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action).

Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in the same or in a separate action

DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-PARTY COMPLAINT [Rule 17, Sec. 4] This Rule applies to the dismissal of counterclaims, cross-claims or 3rd-party complaints. Where a counterclaim is made the subject of a separate suit, it may be abated upon a plea of auter action pendentia and/or dismissal on the ground of

res judicata. Res judicata, however, is not applicable since the court held that it did not acquire jurisdiction due to non-payment of docket fees. Dismissal on the ground of LOJ does not constitute res judicata, there being no consideration and adjudication of the case on the merits. Neither is there litis pendentia. [Meliton v. CA (1992)]

Pre-Trial CONCEPT OF PRE-TRIAL DEFINITION A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels, called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial, for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice (Asked in the 1999 Bar Examination, Examiner asked to compare this with proceedings in the Katarungang Pambarangay). NATURE AND PURPOSE PURPOSE To consider: [Rule 18, Sec. 2] (a) Possibility of an amicable settlement or of a

submission to alternative modes of dispute resolution;

(b) Simplification of the issues; (c) Necessity/desirability of amendments to the

pleadings; (d) Possibility of obtaining stipulations or admissions

of facts and of documents to avoid unnecessary proof;

(e) Limitation of the number of witnesses; (f) Advisability of a preliminary reference of issues to

a commissioner; (g) Propriety of rendering judgment on the

pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) Advisability/necessity of suspending the proceedings; and

(i) Other matters that may aid in the prompt disposition of the action.

Note: (a) Pre-trial is primarily intended to make certain

that all issues necessary to the disposition of a case are properly raised.

(b) Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference (PTC) all issues of law and fact which they intend

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to raise at the trial, except such as may involve privileged or impeaching matters. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal. [Caltex v. CA (1992)]

(c) When conducted: After the last pleading has been served and filed, it shall be the plaintiff’s duty to move ex parte that the case be set for pre-trial. [Rule 18, Sec. 1]

(d) A pre-trial cannot validly be held until the last pleading has been filed, which last pleading may be the plaintiff's reply, except where the period to file the last pleading has lapsed.

(e) Discretion to declare a party non-suited in PTC must not be abused. Unless a party is so negligent, irresponsible, contumacious, or dilatory as to provide substantial grounds for dismissal for non-appearance, the court should consider lesser sanctions which would still amount to achieving the end desired. [Calalang v. CA (1993)]

NOTICE OF PRE-TRIAL [Rule 18, Sec. 3] Notice of pre-trial shall be served on counsel, or on the party who has no counsel. Counsel served with such notice has a duty to notify the party he represents. At the start of the preliminary conference, the judge is mandated to refer the parties and/or their counsels to the mediation unit of the Philippine Mediation Center (PMC) for purposes of mediation. If the mediation fails, the judge will schedule the continuance of the preliminary conference. This rule applies to Metro Manila, Cebu Davao City, and other place where PMC Units may be further organized and designated. [Admin, Circular No. 20-2002; Admin. Circular No. 50-2005, April 26, 2005] APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR APPEARANCE OF PARTIES [Rule 18, Sec. 4] It is the duty of the parties and their counsel to appear at the pre-trial. A party’s non-appearance may be excused only if either: (a) Valid cause is shown for it; (b) A representative appears in his behalf, fully

authorized in writing: (1) To enter into an amicable settlement; (2) To submit to alternative modes of dispute

resolution; (3) To enter into stipulations/admissions of facts

and of documents.

Citibank v. Chua (1993): SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard. There are instances when parties may properly be defaulted, but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders.

FAILURE TO APPEAR AT PRE-TRIAL

Who fails to appear

Effect

Plaintiff Cause for dismissal of the action which will be with prejudice, unless otherwise ordered by the court

Defendant Cause to allow plaintiff to present evidence ex parte, and court to render judgment on the basis thereof

Default by defendant

(Rule 9, Sec. 3) As in default

(failure to appear by plaintiff) (Rule 18, Sec. 5)

Upon motion and notice to defendant.

Not required

Requires proof of failure to answer

Not required

Court to render judgment, unless it requires submission of evidence

Court to allow plaintiff to present evidence ex parte, then the court shall render judgment

Relief awarded must be the same in nature and amount as prayed for in the complaint

Relief awarded may be of different nature and amount from the relief prayed for

(a) A defendant who already filed an answer cannot

be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)]

(b) The Revised Rules on Summary Procedure does not provide that an answer filed after the reglementary period should be expunged from the records.

(c) As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer.

(d) The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure.

(e) Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)]

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(f) Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control.

(g) Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO APPEAR PRE-TRIAL BRIEF [Rule 18, Sec. 6] (a) Parties shall file and serve their respective pre-

trial briefs, ensuring receipt by adverse party at least 3 days before the date of the pre-trial.

(b) Pre-trial brief’s contents (Asked in the 2001 Bar Exam): (1) Statement of their willingness to enter into

amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

(2) Summary of admitted facts and proposed stipulation of facts;

(3) Issues to be tried/resolved; (4) Documents/exhibits to be presented, stating

the purpose thereof; (5) Manifestation of their having availed or their

intention to avail themselves of discovery procedures or referral to commissioners;

(6) Number and names of the witnesses, and the substance of their respective testimonies. [AM No. 03-1-09-SC]

Note: Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. RECORD OF PRE-TRIAL [Rule 18, Sec. 6] (a) The pre-trial proceedings shall be recorded. Upon

termination of such proceedings, the court shall issue the pre-trial order.

(b) Pre-trial order’s contents: (1) Matters taken up in the conference; (2) Action taken thereon; (3) Amendments allowed on the pleadings; (4) Agreements/admissions made by the parties

as to any matters considered; (5) Should the action proceed to trial, the explicit

definition and limit of the issues to be tried. (c) Consequence: The contents of the order shall

control the subsequent course of the action, unless modified before trial to prevent manifest injustice.

(d) Upon manifestation of the parties of their willingness to discuss a compromise, the TC should order the suspension of the proceedings to allow them reasonable time to discuss and conclude an amicable settlement.

(e) If despite all efforts exerted by the TC and the parties the settlement conference still fails, then the action should have continued as if no suspension had taken place. [Goldloop Properties v. CA (1992)]

Note: AM 03-1-09-SC (No termination of pre-trial for failure to settle) CALENDAR OF CASES (a) Under the direct supervision of the judge, the

clerk of court shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned/postponed, and those with motions to set for hearing. [Rule 20, Sec. 1]

(b) Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. [Rule 20, Sec. 1]

(c) The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. [Rule 20, Sec. 2]

DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE (Bar 1997, Riano)

Civil Case

Criminal Case

Set when the plaintiff moves ex parte to set the case for pre-trial [Rule 18, Sec. 1]

Ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense [Rule 118, Sec. 1]

Made after the pleading has been served and filed [Rule 18, Sec. 1]

Ordered by the court after arraignment and within 30 days from the sate the court acquired jurisdiction over the person of the accused [Rule 118, Sec. 1]

Considered the possibility of an amicable settlement as an important objective [Rule 118, Sec. 2(a)]

Does not include the considering of the possibility of amicable settlement of one’s criminal liability as one of its purposes [Rule 118, Sec. 1]

The arrangements and admissions in the pre-trial are not required to be signed by both parties and their counsels.

(Stricter procedure) All agreements or admissions made or entered during the pre-trial conference shall be

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Civil Case

Criminal Case

Under the Rules, they are instead to be contained in the record of pre-trial and pre-trial order [Rule 18, Sec. 7]

[AM No. 03-1-09] - requires the proceedings during the preliminary conference to be recorded in the “Minutes of Preliminary Conference” to be signed by both parties and/or counsel. (Note: either party or his counsel is allowed to sign)

reduced in writing and signed by both the accused and counsel; otherwise, they cannot be used against the accused. [Rule 118, Sec. 2]

The sanctions for non-appearance are imposed upon the plaintiff and the defendant [Rule 18, Sec. 4]

Sanctions are imposed upon the counsel for the accused or the prosecutor [Rule 118, Sec. 3]

A pre-trial brief is specifically required to be submitted [Rule 18, Sec. 6]

A pre-trial brief is not specifically required.

ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA 9285] WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM? Means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issue [RA 9285, Sec. 3] POLICY BEHIND THE ADR: to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes [RA 9285, Sec. 2] Notes: At the start of the pre-trial conference, the judge shall immediately refer the parties and/or their counsel if authorized by their clients to the PMC mediation unit for purposes of mediation if available.[AM No. 03-1-09-SC] The pre-trial briefs of parties must include the parties’ statement of their willingness to enter into an amicable settlement indicating the desired terms

thereof or to submit the case to any of the alternative modes of dispute resolution [AM No. 03-1-09-SC] EXCEPTION TO THE APPLICATION OF RA 9285: (a) labor disputes covered by the Labor Code; (b) the civil status of persons; (c) validity of a marriage; (d) any ground for legal separation; (e) the jurisdiction of courts; (f) future legitime; (g) criminal liability; and (h) those which by law cannot be compromised. MODES OF ALTERNATIVE DISPUTE RESOLUTIONS: Arbitration [RA, 9285, Section 1] A voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award\ Note: A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. [RA 9285, Sec. 24]

Different Kinds: (a) Domestic Arbitration – an arbritration that is not

international; governed by RA 876 (Arbitration Law) [RA 9285, Sec. 32]

(b) International Arbitration - An arbitration is international if: (1) the parties to an arbitration agreement have,

at the time of the conclusion of that agreement, their places of business in different States; or

(2) one of the following places is situated outside the State in which the parties have their places of business:

(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;

(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or

(3) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country [Article 3, Model Law on International Commercial Arbritration]

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Mediation [RA, 9285, Sec. 1] (a) a voluntary process in which a mediator, selected

by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute

(b) includes conciliation

Mini-trial [RA, 9285, Sec. 1] A structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement

Early Neutral Evaluation [RA, 9285, Sec. 1] An ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute

Combination of Alternative Dispute Resolution [RA, 9285, Sec. 1] Example: Med-Arb: step dispute resolution process involving both mediation and arbitration

Intervention DEFINITION OF INTERVENTION (Asked in the 2003 Bar Exam) [Rule 19, Sec. 1] A legal remedy whereby a person is permitted to become a party in a case, by either: (a) Joining the plaintiff; (b) Joining the defendant; (c) Asserting his right against both plaintiff and

defendant, considering that either: (1) He has a legal interest in the subject matter of

the action; (2) He has legal interest in the success of either of

the parties (3) He has legal interest against both of the

parties (4) He is going to be adversely affected by the

disposition of the property in the custody of the court

Metropolitan Bank v. Presiding Judge (1990): Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with

defendant in resisting the claims of plaintiff, or demanding something adversely to both of them. Cariño v. Ofilada (1993): It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. It is the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings.

An intervenor is a party to the action as the original parties are, and to make his right effectual he must necessarily have the same powers as the original parties. He is entitled to have the issues raised between him and the original parties tried and determined. Intervention is never an independent action, but is ancillary and supplemental to the existing litigation. Its purpose is to afford one not an original party, yet having a certain right/interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right/interest. Hence, the final dismissal of the principal action results into the dismissal of said ancillary action.

WHO MAY INTERVENE [Rule 19, Sec. 1] (a) One who has a legal interest in the matter in

litigation; (b) One who has a legal interest in the success of

either of the parties; (c) One who has an interest against both parties; (d) One who is so situated as to be adversely affected

by a distribution/disposition of property in the court’s custody.

MEANING OF LEGAL INTEREST (a) Interest must be of a direct and immediate

character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall (2011)]

(b) When the title to the property if declared void by

final judgment, intervention will not revive or reinstate the movant’s title derived from the title declared void. [Firestone Ceramics v. CA (1999)]

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(c) The assignee of a property who assumed payment of whatever amount may be finally adjudged against the assignor, may intervene in a proceeding involving the execution of the property pursuant to a judgment. [Robles v. Timario (1962)]

(d) In an action for foreclosure of mortgage, the

alleged owners of the land sought ot be foreclosed may intervene. [Roxas v. Dinglasan (1969)]

Note: Notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate proceeding. [Virra Mall Tenants v. Virra Mall (2011)] REQUISITES FOR INTERVENTION HOW INTERVENTION IS DONE By a motion to intervene, with the pleading-in-intervention attached. Must also serve copy of the pleading-in-intervention on the original parties. [Rule 19, Sec. 2] General rule: Allowance of intervention is discretionary with the court. Exception: When the intervenor is an indispensable party. FACTORS CONSIDERED IN ALLOWING INTERVENTION (a) WON intervention will unduly delay or prejudice

the adjudication of the rights of the original parties.

(b) WON the intervenor's rights may be fully

protected in a separate proceeding.

Carino v Ofilada (1993): The interest must be actual and material, direct and immediate; not simply contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Magsaysay-Labrador v. CA (1989): Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the

complaint, without the establishment of which plaintiff could not recover.

PLEADINGS IN INTERVENTION [Rule 19, Sec. 3] Complaint-in-intervention – If intervenor asserts a claim against either or all of the original parties.

Answer-in-intervention – If intervenor unites with the defending party in resisting a claim against the latter. Answer to complaint-in-intervention [Rule 19, Sec. 4] It must be filed within 15 days from notice of the order admitting the complaint-in-intervention, unless a different period is fixed by the court.

Intervention

Interpleader

An ancillary action An original action Proper in any of the four situations mentioned in Rule 19

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

There is already a defendant among the original parties to the pending suit

Defendants are being sued precisely to implead them

TIME TO INTERVENE Intervention is allowed any time before TC renders judgment. [Rule 19, Sec. 2]

REMEDY FOR THE DENIAL OF MOTION TO INTERVENE REMEDIES (a) For denial of intervention:

(1) Appeal. (2) Mandamus, if there is GAD.

(b) For improper granting of intervention: Certiorari.

Subpoena Subpoena is a process issued by court which is either: TYPES (AND DEFINITION) OF SUBPOENA [Rule 21, Sec. 1] (a) Subpoena duces tecum (b) Subpoena ad testificandum

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BY WHOM ISSUED [Rule 21, Sec. 2] (a) The court before whom the witness is required to

attend; (b) The court of the place where the deposition is to

be taken; (c) The officer/body authorized by law to do so in

connection with investigations conducted by said officer/body;

(d) Any SC/CA Justice in any case or investigation pending within the Philippines.

FORM AND CONTENTS OF SUBPOENA [Rule 21, Sec. 3] (a) Name of court; (b) Title of action/investigation; (c) Directed to a person whose attendance is

required (d) If subpoena duces tecum, a reasonable

description of the books/documents/things demanded which must appear to the court prima facie relevant.

Subpoena for depositions [Rule 21, Sec. 5] (a) Proof of service of a notice to take a deposition is

sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice.

(b) Issued by the clerk of court of the place in which the deposition is to be taken.

(c) However, subpoena duces tecum for depositions cannot be issued without court order.

SUBPOENA DUCES TECUM Process directed to a person, requiring him to bring with him any books/documents/things under his control. (Asked in the 1997 Bar Exam) SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER

FOR PRODUCTION OR INSPECTION See Annex B. SUBPOENA AD TESTIFICANDUM Process directed to a person, requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority, or for the taking of his deposition. SERVICE OF SUBPOENA [Rule 21, Sec. 6] (a) Same manner as personal or substituted service

of summons. (b) The original shall be exhibited and a copy

delivered to person on whom it is served, with tender of fees for one day’s attendance and kilometrage.

(c) Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof.

(d) For subpoena duces tecum, also tender the reasonable cost of producing the books/documents/things demanded.

(e) Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance

COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7] A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. APPLICATION FOR SUBPOENA TO PRISONER [Rule 21, Sec. 2] (a) The judge/officer shall examine and study the

application carefully to determine WON it is made for a valid purpose.

(b) However, no prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC.

REMEDY IN CASE OF WITNESS’ FAILURE TO ATTEND Upon proof of service of subpoena and of witness’ failure to attend, the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. [Rule 21, Sec. 8]

The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Such failure shall be deemed a contempt of the court which issued the subpoena. [Rule 21, Sec. 9] If subpoena was not issued by a court, the disobedience shall be punished by applicable law or ROC.

Exception: Arrest warrant and contempt not applicable to: [Rule 21, Sec. 10] (a) A witness who resides more than 100km from his

residence to the place where he is to testify. (b) A detention prisoner, if there is no permission

from the court in which his case is pending. QUASHING OF SUBPOENA [Rule 21, Sec. 4] Upon motion promptly made, at/before the time specified in the subpoena.

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GROUNDS FOR QUASHING: Subpoena duces tecum: (1) It is unreasonable and oppressive; (2) The relevancy of the books/documents/ things

does not appear; (3) The person in whose behalf the subpoena is

issued fails to advance the reasonable cost of production;

(4) Witness fees and kilometrage were not tendered when subpoena was served.

Subpoena ad testificandum: (1) That the witness is not bound thereby; (2) That witness fees and kilometrage were not

tendered when the subpoena was served.

Modes of Discovery DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE ACTION OR PENDING APPEAL [Rules 23 and 24] DEPOSITIONS UNDER RULE 23 Meaning and purpose of deposition (a) Deposition is chiefly a mode of discovery, the

primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.

(b) The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law.

(c) Limitations would arise if the examination is conducted in bad faith; or in such a manner as to annoy, embarrass or oppress the person under examination; or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.

(d) Under certain conditions and for certain limited purposes, it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand. [Jonathan Landoil v Mangudadatu (2006)]

Scope of examination Unless otherwise provided by the court, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any party (a) including the existence, description, nature,

custody, condition and location of any books, documents, or other tangible things and the

identity of any persons having knowledge of relevant facts. [Rule 23, sec. 2]

Uses of deposition pending action

Dasmariñas Garments,Inc. v. Reyes (1993): General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. If the witness is available to testify, he should be presented in court to testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay.

Exception: [Rule 23, Section 4] (a) Any deposition may be used by any party for the

purpose of contradicting or impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more

than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or

(3) that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or

(4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Before whom taken General Rule: Depositions may be taken before any judge, notary public, or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation).

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Exceptions: In our jurisdiction, depositions in foreign countries may be taken: (a) on notice before a secretary of embassy or

legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines;

(b) before such person or officer as may be appointed by commission or under letters rogatory; or

(c) before any person authorized to administer oaths as stipulated in writing by the parties.

Commission

Letters Rogatory

Addressed to whom Any authority in a foreign country authorized therein to take down depositions

A judicial authority in the foreign country

Rules that govern the deposition Rules laid down by the court issuing the commission

Rules laid down by such foreign judicial authority

When issued Preferred over letters rogatory since the process is simpler (generally, no need to resort to diplomatic channels unlike in letters rogatory)

Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (Regalado)

No deposition shall be taken before a person who is: [Rule 23, sec. 13] (a) a relative within the sixth degree of consanguinity

or affinity, or (b) employee or counsel of any of the parties, or who

is a relative within the same degree, or employee of such counsel; or

(c) who is financially interested in the action. Procedure

When may taking of deposition be terminated or its scope limited The court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of taking the deposition When: At any time during the taking of the deposition, on the motion or petition of any party or of the deponent Ground: that the examination is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party [Rule 23, Sec. 18]

If the order made terminates the examination, it shall be resumed only upon the order of the court in which the action is pending. When may objections to errors and irregularities be made [Rule 23, sec. 29]

Objection

When Made

As to notice to parties

Waived, unless written objection is promptly served upon party giving notice

Deposition officer is disqualified

Waived, unless made before the taking of the deposition or as soon as the disqualification becomes known or could be discovered

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every party to the action stating the time and place for taking the deposition and the name and address of each person to be examined. [Rule 23, Sec. 15]

After the notice is served, the court may make any order for the protection of the parties and the deponent. [Rule 23, Sec. 16]

The attendance of the witnesses may be compelled by the use of subpoenas. [Rule 23, Sec. 1]

The deponent may be examined or cross examined following the procedures for witnesses in a trial. He may be asked questions on direct, cross, re-direct or re-cross. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to 18 of Rule 132 apply to deponent. [Rule 23, Sec. 3]

The officer before whom the deposition is being taken has no authority to rule on objections interposed during the course of the deposition although any objections shall be noted by him upon the deposition. Any evidence that is objected to shall still be taken but subject to the objection. [Rule 23, Sec. 17]

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Objection

When Made

with reasonable certainty Lack of relevance, materiality and competence of the deposition to the action

NOT waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which might have been obviated or removed if presented at that time

Error in the manner of taking the deposition

Waived, unless reasonable objection is made at the taking of the deposition

Error in the form of written interrogatories

Waived, unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after service of the last interrogatories

Error in the manner of preparing the deposition

Waived, unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with reasonable diligence might have been, ascertained

Other rules Effect of substitution of parties [Rule 23, Sec. 5] (a) Substitution of parties does not affect the right to

use depositions previously taken; (b) and, when an action has been dismissed and

another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest,

(c) all depositions lawfully taken and duly filed in the former action MAY BE USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR.

Effect of taking deposition [Rule 23, Sec. 7] A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Effect of using deposition [Rule 23, Sec. 8] General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition. Exception: if the purpose is to contradict or impeach the deponent.

Leave of court [Rule 23, Sec. 1] (a) Leave of court is NOT required after an answer

has been served. (b) It is required before the service of an answer but

after jurisdiction has been acquired over the defendant or over the property subject of the action.

(c) Only instance when one always needs leave of court before taking depositions: Where the deponent is in jail.

WRITTEN INTERROGATORIES UNDER RULE 23 (a) A deposition need not be conducted through an

oral examination. It may be conducted through written interrogatories which shall be served upon every other party.

(b) The party served may also serve cross-interrogatories upon the party proposing to take the deposition within 10 days from service of the written interrogatories. The latter may, within 5 days serve re-direct interrogatories and within 3 days the other party may serve re-cross interrogatories [Rule 23, Sec. 25]

(c) Copies of all these interrogatories shall be delivered to the officer before whom the deposition is taken and who shall take the responses and prepare the record. [Rule 23, Sec. 26]

People v. Hubert Webb (1999): DEPOSITION, WHEN AVAILABLE IN CRIMINAL CASES: A deposition, in keeping with its nature as a mode of discovery, should be taken BEFORE AND NOT DURING TRIAL. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondent’s main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. The deposition taking cannot be based nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. Dasmariñas Garments v. Reyes (1993): Any deposition offered to prove the facts therein at the trial of the case, in lieu of actual testimony of the deponent in court, may be opposed and excluded for being hearsay save in specific instances under the Rules.

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DEPOSITIONS BEFORE ACTION UNDER RULE 24 Purpose To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. Procedure

Note: Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse. DEPOSITIONS PENDING APPEAL UNDER RULE 24 J. Regalado believes that the following procedure is applicable to civil and criminal cases. Procedure:

WRITTEN INTERROGATORIES TO ADVERSE PARTIES [Rule 25] PURPOSE This mode of discovery is availed of by the party to the action for the purpose of eliciting material and relevant facts from any of the adverse party. [Rule 25, Sec. 1]

FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to

an action in a court of the Philippines but is presently unable to bring it or cause it to be brought;

(b) the subject matter of the expected action and his interest therein;

(c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it;

(d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and

(e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

NOTICE AND SERVICE to each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.

At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons.

ORDER AND EXAMINATION: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories.

DURING THE PENDENCY OF AN APPEAL, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony in the event of further proceedings in the said court.

The party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state: (a) the names and addresses of the persons to be

examined and the substance of the testimony which he expects to elicit from each, and

(b) the reason for perpetuating their testimony.

ORDER ALLOWING THE DEPOSITION: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken.

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PROCEDURE (a) By leave of court after jurisdiction has been

obtained over any defendant or over property which is the subject of the action, or

(b) Without such leave after an answer has been served, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

Note: Interrogatories under RULE 25 are served directly upon the adverse party unlike written interrogatories under RULE 23 which are delivered to the officer before whom the deposition is to be taken.

ANSWER (a) The interrogatories shall be ANSWERED FULLY

IN WRITING and shall be SIGNED AND SWORN TO BY THE PERSON MAKING THEM.

(b) The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. [Rule 25, Sec. 2]

EFFECT OF OBJECTIONS TO INTERROGATORIES When objections to any interrogatories is presented to the court within 10 days after service thereof, with notice as in case of a motion, the answer shall be deferred until the objections are resolved [Rule 25, Sec. 3] NUMBER OF INTERROGATORIES No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. [Rule 23, Sec. 4] SCOPE OF INTERROGATORIES Any matter (a) not privileged, and (b) relevant to the subject of the pending action,

whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.

USE OF INTERROGATORIES Same as Rule 23, Sec. 4 mutatis mutandis.

FAILURE TO FILE WRITTEN INTERROGATORIES A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal, UNLESS allowed by the court for good cause shown and to prevent failure of justice.

CONSEQUENCES OF REFUSAL TO ANSWER (a) The party serving the interrogatories may apply to

the court for an order to compel an answer. (b) If court also finds that the refusal to answer was

without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, TO PAY THE PROPONENT THE AMOUNT OF THE REASONABLE EXPENSES INCURRED IN OBTAINING THE ORDER, INCLUDING ATTORNEY'S FEES [Rule 29, Sec. 1].

(c) Refusal to comply with an order of the court to compel an answer may be considered CONTEMPT of that court [Rule 29, Sec. 2]

(d) The subject of discovery shall be DEEMED ADMITTED OR ESTABLISHED [Rule 29 Sec. 3(a)].

(e) The disobedient party shall be prohibited from introducing CONTRADICTORY EVIDENCE [Rule 29, Sec. 3(b)]

(f) STRIKING OUT OF PLEADINGS OR PARTS THEREOF [Rule 29, Sec. 3(c)]

(g) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED [Rule 29, Sec. 3(c)]

(h) DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF [Rule 29, Sec. 3(c)]

(i) RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY; AND [Rule 29, Sec. 3(c)]

(j) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders [Rule 29, Sec. 3(c)]

REQUEST FOR ADMISSION [Rule 26] PURPOSE (a) To allow one party to request the adverse in

writing to admit certain material and relevant matters which most likely will not be disputed during the trial.

(b) To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before the trial, a party may request the other to: (1) admit the genuineness of any material and

relevant document described in and exhibited with the request; or

(2) admit the truth of any material and relevant matter of fact set forth in the request [Rule 26, Sec. 1]

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WHEN MAY REQUEST BE MADE At any time after issues have been joined.

Duque v. CA (2002): The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. This is an exception to the general rule that notices shall be served upon counsel and not upon the party.

IMPLIED ADMISSION BY ADVERSE PARTY EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED unless, (a) within a period designated in the request, which

shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion,

(b) the party to whom the request is directed files and serves upon the party requesting the admission a SWORN STATEMENT either (1) denying specifically the matters of which an

admission is requested, or (2) setting forth in detail the reasons why he

cannot truthfully either admit or deny those matters.

DEFERMENT OF COMPLIANCE To avoid the implied admission, the party requested may have the compliance of the filing and service of the sworn statement be deferred by filing with court objections to the request for admission. Compliance shall be deferred until such objections are resolved by the court. [Rule 26, Sec. 2 par. 2] EFFECT OF ADMISSION Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. [Rule 26, Sec. 3] WITHDRAWAL The court may allow the party making an admission, whether express or implied under the Rule to withdraw or amend it upon such terms as may be just. The admitting party must file a motion to be relieved of the effects of his admissions. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR

ADMISSION General rule: The party who fails to file a request shall not be permitted to present evidence on such facts. Exception: Unless otherwise allowed by the court for:

(a) good cause shown and (b) to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which ARE, OR OUGHT TO BE, WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER [Rule 26, Sec. 5] PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS [Rule 27] PROCEDURE

WHAT THE COURT MAY ORDER (a) To PRODUCE and PERMIT THE INSPECTION and

copying or photographing, by or on behalf of the moving party, of any documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the party to whom the order is addressed.

(b) To PERMIT ENTRY upon designated land or other property in the position or control of the party to whom the order is addressed for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. [Rule 27, Sec. 1]

Note: This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. (Regalado) (Asked in the 2002 Bar Exam)

A motion must be filed by the party seeking the production or inspection of documents and things and the motion must show good cause supporting the same. [Rule 27, Sec. 1]

The court in which the action is pending shall issue an order: (a) which shall specify the time, place and manner

of making the inspection and taking copies and photographs, and

(b) which may prescribe such terms and conditions as are just. [Rule 27, Sec. 1]

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PHYSICAL AND MENTAL EXAMINATION OF PERSONS [Rule 28] MOTION REQUESTING EXAMINATION Requisites (a) The physical or mental condition of a party (NOT

A WITNESS!) is in controversy (b) Motion must be filed showing good cause (c) Notice given to the party to be examined and to

all other parties (d) Notice must specify the time, place, manner,

conditions and scope of examination (e) Notice must also specify person/s who will make

the examination

COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS

DISCRETION. REPORT OF FINDINGS (a) If requested by the party examined, the party

causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions.

(b) After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition.

(c) If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just

(d) If it is the physician who fails or refuses to make such a report the court may exclude his testimony if offered at the trial. [Rule 28, Sec. 3]

WAIVER OR PRIVILEGE By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

PHYSICIAN-PATIENT PRIVILEGE (a) Inapplicable because the results of the

examination are intended to be made public. (b) Such examination is not necessary to treat or cure

the patient but to assess the extent of injury or to evaluate his physic al or mental condition.

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY See Annex C.

Trial TRIAL, DEFINED A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments [Acosta v. People (1962)]. A hearing is a broader term. It is not confined to the trial and presentation of the evidence because it actually embraces several stages in the litigation. It includes the pre-trial and the determination of granting or denying a motion. [Trocio v. Labayo (1973)] NOTICE OF TRIAL [Rule 30, Sec. 1] Upon entry of a case in the trial calendar, the clerk shall notify parties the date of its trial, ensuring receipt of the notice at least 5 days before the trial date. ADJOURNMENTS AND POSTPONEMENTS [Rule 30, Sec. 2] General rule: The court may adjourn a trial from day to day to any stated time, as the expeditious and convenient transaction of business may require. Exception: Court may not adjourn for longer than 1 month for each adjournment, nor more than 3 months in all. Exception to exception: When authorized in writing by the SC Court Administrator. Note: Postponement is not a matter of right. It is addressed to the sound discretion of the court. [Riano, citing Garces v Valenzuela (1989)] REQUISITES OF MOTION TO POSTPONE TRIAL (a) for absence of evidence (b) for illness of party or counsel

Ground for

postponement of trial

Requisite for motion to postpone

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Ground for postponement

of trial

Requisite for motion to postpone

For absence of evidence [Rule 30, Sec. 3]

Affidavit showing: (a) The materiality/relevancy of

such evidence; (b) That due diligence has been

used to procure the evidence But if the adverse party admits the facts to be given in evidence, trial shall not be postponed even if he objects or reserves the right to object to their admissibility.

For illness of party/counsel [Rule 30, Sec. 4]

Affidavit or sworn certification: (a) That the presence of such

party/counsel at the trial is indispensable;

(b) That the character of his illness is such as to render his non-attendance excusable.

SUBPOENA See separate part for Subpoena BUT please take note that Subpoenas are issued within the context of a Trial and taking depositions under Modes of Discovery. AGREED STATEMENT OF FACTS [Rule 30, Sec. 6] (a) Parties may agree in writing upon the facts

involved in the litigation, and submit the case for judgment without introduction of evidence.

(b) If the parties agree to only some of the facts in issue, trial shall be held as to the disputed facts in such order as the court shall prescribe.

ORDER OF TRIAL; REVERSAL OF ORDER CONDUCT OF TRIAL [Rule 30, Sec. 5] General rule: Trial shall be limited to the issues stated in the pre-trial order. Exception: (a) Provisions on separate trials in Rule 31, Sec. 2 (b) When for special reasons the court directs

otherwise. GENERAL ORDER OF TRIAL

If several defendants or 3rd-party defendants having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence. CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL CONSOLIDATION OF TRIAL [Rule 31, Sec. 1] When actions involving common question of law/fact are pending before the court, it may: (a) Order a joint hearing/trial of any/all the matters

in issue in the actions; (b) Order all the actions consolidated; (c) Make such orders concerning the proceedings as

to avoid unnecessary costs or delay.

Where a case has been partially tried before one judge, the consolidation of the same with another related case pending before another judge who had no opportunity to observe the demeanor of the witness during trial makes the consolidation not mandatory. [PCGG v. Sandiganbayan (1992)] SEVERANCE OF TRIAL [Rule 31, Sec. 2] The court may issue separate trials for convenience or to avoid prejudice: (a) Of any claim, cross-claim, counterclaim or 3rd-

party complaint;

Plaintiff shall adduce evidence in support of his claim;

Defendant shall adduce evidence in support of his defense, counterclaim, cross-claim and 3rd-party complaint;

3rd-party defendant (if any) shall adduce evidence of his defense, counterclaim, cross-claim and 4th-party complaint;

4th-party (and so forth) shall adduce evidence of the material facts pleaded by them;

Parties whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order prescribed by the court.

Parties may respectively adduce rebutting evidence only. Exception: When the court permits them to adduce evidence upon their original case, for good reasons and in furtherance of justice.

Upon admission of evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings.

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(b) Of any separate issue; (c) Of any number of claims, cross-claims,

counterclaims, 3rd-party complaints or issues. STATEMENT OF JUDGE [Rule 30, Sec. 7] During the hearing/trial of the case, any statement made by the judge shall be made of record in the TSN if made with reference to the case/parties/witnesses/ counsels. SUSPENSION OF ACTIONS [Rule 30, Sec. 8] Governed by the CC provisions DELEGATION OF RECEPTION OF EVIDENCE [Rule 30, Sec. 9]

General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: (a) Default hearings; (b) Ex parte hearings; (c) Cases where parties agree in writing. However, the clerk of court has no power to rule on objections to any question/admission of exhibits. Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing. TRIAL BY COMMISSIONERS COMMISSIONER – Includes a referee, an auditor or an examiner. [Rule 32, Sec. 1] KINDS OF TRIAL BY COMMISSIONER [Rule 32, Secs. 1 & 2] (a) Reference by consent of both parties. (b) Reference ordered on motion when:

(1) Trial of an issue of fact requires the examination of a long account on either side

(2) Taking of an account is necessary for the court’s information before judgment, or for carrying judgment/order into effect.

(3) A question of fact, other than upon the pleadings, arises in any stage of a case or for carrying a judgment/order into effect.

REFERENCE BY CONSENT OR ORDERED ON MOTION Order of reference [Rule 32, Sec. 2 to 12] ORDER OF REFERENCE: When a reference is made, the clerk shall furnish the commissioner with a copy of the order of reference.

MEETING: The commissioner shall set a time/place for the first meeting and shall notify parties/counsels. REPORT: Upon completion of the trial/hearing, the commissioner shall file a written report with the court. NOTICE: The clerk shall notify parties of the filing of the report. The parties have 10 days to object to the report’s findings. HEARING: After the 10 days, the report shall be set for hearing. The court may issue an order adopting/modifying/rejecting the report or part of it. When parties stipulate that the Commissioner's findings of fact are final, only questions of law shall thereafter be considered.

POWERS OF THE COMMISSIONER [Rule 32, Sec. 3] When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may: (a) Specify/limit the commissioner’s power (b) Direct him to report only upon particular issues,

to do/perform particular acts, or direct him to receive and report evidence only

(c) May fix the date for beginning and closing the hearings and for the filing of his report.

Powers of the Commissioner: (a) Regulate the proceedings in every hearing before

him [subject to other specifications & limitations in the order]

(b) Power to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order [subject to other specifications & limitations in the order]

(c) He may issue subpoenas and subpoenas duces tecum, swear witnesses.

(d) He may rule upon the admissibility of evidence, unless otherwise provided in the order of reference.

The trial or hearing before him shall proceed in all respects as it would if held before the court.

COMMISSIONER’S REPORT; NOTICE TO PARTIES AND

HEARING ON THE REPORT Report of commissioner [Rule 32, Sec. 9] Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference.

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When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. Notice to parties of the filing of report [Rule 32, Sec. 10] Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed 10 days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein, set forth, shall not be considered by the court unless they were made before the commissioner. Hearing on the report [Rule 32, Sec. 11] Upon the expiration of the 10-day period in Rule 32, Sec. 10, the report shall be set for HEARING. After which the court shall issue an ORDER: (a) Adopting (in whole or in part), (b) Modifying (in whole or in part) (c) Rejecting the report (in whole or in part), (d) Recommitting the report with instructions, or (e) Requiring the parties to present further evidence

before the commissioner or the court.

Demurrer to Evidence GROUND DEFINITION: A species of MTD that may be invoked based on insufficiency of evidence (i.e. upon the facts and the law the plaintiff has shown no right to relief). [Rule 33, Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him. EFFECT OF DENIAL; EFFECT OF GRANT

Grant of demurrer

Denial of demurrer

Grant of demurrer

Denial of demurrer

The case shall be dismissed

The defendant shall have the right to present evidence The court should set the date for the reception of the defendant’s evidence-in-chief [Northwest Airlines v. CA (1998)]

Plaintiff's remedy would be to appeal. However, if the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec 1; Republic v. Tuvera (2007)] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. [Radiowealth Finance v. Del Rosario (2000)]

xxx

Equivalent to judgment (i.e. based on the merits of the evidence presented so far)

An interlocutory order and not appealable. However, it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v. Sandiganbayan (2003)]

MTD

Demurrer

When to File Before the service and filing of the answer

After the plaintiff rests his case

Ground Those enumerated in Rule 16

Only ground: The plaintiff has shown no right to relief (i.e. evidence is insufficient)

Effect If a MTD is granted, the complaint is likewise dismissed. But, depending on the ground, the complaint may be re-filed

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MTD

Demurrer

If the MTD is denied, the defendant shall file his responsive pleading

WAIVER OF RIGHT TO PRESENT EVIDENCE If the order granting the demurrer is reversed on appeal, the defendant loses his right to present evidence. [Rule 33, Sec .1; Republic v. Tuvera (2007)] DEMURRER TO EVIDENCE IN A CIVIL CASE V. DEMURRER TO EVIDENCE IN A CRIMINAL CASE DIFFERENCES BETWEEN DEMURRER IN CIVIL AND

CRIMINAL CASES (Asked in the 2003 and 2007 Bar Exams)

Demurrer in civil cases Demurrer in criminal cases

Defendant need not ask for leave of court

May be filed with or without leave of court. Note: Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied [Rule 119, Sec. 23]

If the demurrer is granted, the order of dismissal is appealable

The order of dismissal is not appealable because it will constitute double jeopardy

If a demurrer is denied, the defendant may proceed to present his evidence

The accused may adduce his evidence only if the demurrer is field with leave of court

Judgments and Final Orders JUDGMENT The final ruling by a court of competent jurisdiction regarding the rights and obligations of the parties or other matters submitted to it in an action/proceeding [Macahilig v. Heirs of Magalit (2000)] REQUISITES OF A VALID JUDGMENT [Rule 36, Sec. 1; Art. 8, Sec. 14, 1987 Constitution] [AJOEWS] (a) Court/tribunal must be with authority to hear and

determine the matter before it; (b) Court must have jurisdiction over the parties and

the subject matter;

(c) Parties must have been given an opportunity to adduce evidence in their behalf;

(d) Evidence must have been considered by the tribunal in deciding the case; [Acosta v. COMELEC (1998)]

(e) Judgment must be in writing, personally and directly prepared by the judge;

(f) Note: A verbal judgment is, under the law, ineffective. [Corpus v. Sandiganbayan (2004)]

(g) Judgment must state clearly the facts and the law upon which the decision is based, signed by the judge and filed with the clerk of court. [Rule 35, Sec. 1]

A decision need not be a complete recital of the evidence presented. So long as the factual and legal bases are distinctly and clearly set forth, the judgment is valid. [People v. Baring (2002)] KINDS OF JUDGMENT (1) JUDGMENT UPON COMPROMISE - It is one

conferred on the basis of a compromise agreement entered into between the parties. It is immediately executory in the absence of a motion to set aside on the ground of FAME.

(2) JUDGMENT UPON CONFESSION - It is one

rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him.

Judgment upon compromise

Judgment by confession

The provisions and terms are settled by the parties to the action. The judgment is entered in the record by 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.

Kinds of judgment by confession: (a) JUDGMENT BY COGNOVIT ACTIONEM – After

service, the defendant, instead of entering a plea, acknowledged and confessed that the plaintiff’s cause of action was just and rightful.

(b) JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial, the defendant both: (a) confessed the plaintiff’s cause of action and (b) withdrew his plea or other allegations, whereupon judgment was entered against him without proceeding to trial.

Remedy against judgment by consent, confession or compromise is to first file a motion to set it

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aside; if denied, file the appropriate petition under Rule 65.

(3) JUDGMENT UPON THE MERITS - It is one that is

rendered after consideration of the evidence submitted by the parties during the trial of the case. A judgment is “on the merits” when it amounts to a legal declaration of the respective rights and duties of the parties, based upon the disclosed facts

(4) CLARIFICATORY JUDGMENT - It is rendered to

clarify an ambiguous judgment or one difficult to comply with.

(5) JUDGMENT NUNC PRO TUNC - Literally, “now

for then”. It is a judgment intended to enter into the record the acts which had already been done, but which do not appear in the records. [Lichauco v. Tan Pho (1923)]

(6) JUDGMENT SIN PERJUICIO - It may refer to a

dismissal of a case without prejudice to it being re-filed.

(7) CONDITIONAL JUDGMENT - It is one the

effectivity of which depends upon the occurrence or non-occurrence of an event. Such a judgment is generally void because of the absence of a disposition [Cu-Unjieng v. Mabalacat Sugar Co. (1940)]

(8) SEVERAL JUDGMENT - It is one rendered by a

court against one or more defendants and not against all of them, leaving the action to proceed against the others. [Rule 36, Sec. 4] It is proper when the liability of each party is clearly separate and distinct from his co-parties such that the claims against each of them could have been the subject of separate suits, and the judgment for or against one of them will not necessarily affect the other.

(9) SEPARATE JUDGMENT - It is one rendered

disposing of a claim among several others presented in a case, after a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence that is the subject matter of said claim. [Rule 36, Sec. 5] It is proper when more than one claim for relief is presented in an action for the determination as to the issues material to the claim has been made.

The judgment shall terminate the action with respect to the claims disposed of, and shall proceed as to the remaining claims. The court

may stay its enforcement until rendition of subsequent judgments, and may prescribe conditions to secure the judgment’s benefits.

Judgment may be given for/against one or more of several plaintiffs/defendants. The court may require the parties on each side to file adversary pleadings as between themselves. [Rule 36, Sec. 3]

If judgment is rendered against 2 or more persons sued as an entity without juridical personality, the judgment shall set out their individual names (if known). [Rule 36, Sec. 6]

(10) PROMULGATION - The process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel.

(11) MEMORANDUM DECISION - A decision of the

appellate court which adopts the findings and conclusions of the TC. (a) A judgment is considered rendered upon the

filing of the signed decision. (b) This includes an amended decision because

an amended decision is a distinct and separate judgment and must follow the established procedural rule.

JUDGMENT WITHOUT TRIAL WHEN TRIAL IS NOT NECESSARY – PSADSA (Asked in the 1996 Bar Exams) [Riano] (a) The pleadings of the parties tender no issue at all

– judgment on the pleadings may be directed by the court [Rule 34]

(b) There is actually no genuine issue from the pleadings, affidavits, depositions and other papers – court may render a summary judgment [Rule 35]

(c) Parties entered into a compromise or an amicable settlement either during the pre-trial or during the trial [Rule 18; Art. 2028 Civil Code]

(d) Complaint has been dismissed with prejudice [Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last par.)]

(e) Case falls under the Rules on Summary Procedure

(f) Agreed statement of facts [Rule 30, Sec. 6] CONTENTS OF A JUDGMENT PARTS OF A JUDGMENT (a) Body, Ratio decidendi, or Opinion of the court – It

contains the findings of facts and conclusions of law;

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(b) Fallo, or Disposition of the case – It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively [Light Rail Transit Authority v. CA] (2004); The part of the judgment that is subject to execution [Riano]

(c) Signature of the judge. DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE

COURT (ASKED IN THE 2006 BAR EXAM) (a) A judgment (or FALLO) must be distinguished

from an opinion. (b) The latter is the informal expression of the views

of the court and cannot prevail against its final order or decision.

(c) While the two may be combined in one instrument, the opinion forms no part of the judgment.

(d) So there is a distinction between the findings and conclusions of a court and its judgment.

(e) While they may constitute its decision and amount to a rendition of a judgment they are not the judgment itself.

(f) They amount to nothing more than an order for judgment, which, of course, must be distinguished from the judgment. [Freeman on Judgments, Vol. I, 5th Edition, page 6, quoted in Casilan v. Salcedo (1969)]

CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY

OF THE DECISION Rule: Where there is a conflict between the fallo and the body of the decision, the fallo controls. Qualification: This rule applies only when the dispositive part is definite, clear, and unequivocal [Union Bank v. Pacific Equipment Corporation (2008)] Basis: The fallo is the final order. The opinion in the body is merely a statement ordering nothing [Poland Industrial Limited v. National Development Company (2005)] JUDGMENT ON THE PLEADINGS [Rule 34] (Asked in the 1999 and 2005 Bar Exams) GROUNDS: If the answer either (a) Fails to tender an issue;

Note: An answer fails to tender an issue due to either: (1) General denial of the material allegations of

the complaint; (2) Insufficient denial of the material allegations

of the compliant.

(b) Admits the material allegations of the adverse party’s pleading.

CANNOT BE RENDERED MOTU PROPRIO A judgment on the pleadings can be done only upon MOTION to that effect filed by the appropriate party. It cannot be rendered by the court motu proprio. Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. [Rule 18, Sec. 2(g)] WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY (a) Declaration of nullity of marriage; (b) Annulment of marriage; (c) Legal separation. Effect: judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved EFFECTS (a) By moving for judgment on the pleadings, the

plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved).

(b) One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching (1952)]

SUMMARY JUDGMENTS [Rule 35] (Asked in the 1986, 1989, 1996 and 1999 Bar Exams) DEFINITION, NATURE A judgment granted by the court for the prompt disposition of civil actions, if it clearly appears (after the issues had been joined and on the basis of the pleadings and papers filed) that there exists no genuine issue/controversy as to any material fact, except as to the amount of damages. [Ley Construction v. Union Bank (2000); Agbada v Inter-Urban Developers (2002); Raboca v. Velez (2000)] Also called accelerated judgment. GENUINE ISSUE (a) An issue of fact which calls for the presentation of

evidence; as distinguished from an issue which is sham, fictitious, contrived and patently

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insubstantial so as not to constitute a genuine issue for trial.

(b) When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts.

(c) The TC cannot motu propio issue a summary judgment. A party must move for summary judgment. [Riano]

PROCEDURE [Rule 35, Sec. 3]

FOR THE CLAIMANT [Rule 35, Sec. 1] FOR THE DEFENDANT [Rule 35, Sec. 2]

Who may file the

motion

When

Claimant May file the motion only after the answer has been served

Defendant May file the motion any time Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. Hence, the movant must also file a Motion for Extension of Time to File Answer. Bases of summary judgment: When, upon the following, no genuine issue as to any material fact exists: (a) Affidavits made on personal knowledge; (b) Depositions of the adverse or a 3rd party; (Rule

23) (c) Admissions of the adverse party; (Rule 26)

(d) Answers to interrogatories. (Rule 25)

WHEN THE CASE NOT FULLY ADJUDICATED Partial summary judgment (Asked in the 2004 Bar Exam) Applies when for some reason there can be no full summary judgment. Trial should deal only with the facts not yet specified or established. Duty of Court [Rule 35, Sec. 4] (a) Ascertain what material facts exist without

substantial controversy and what are actually and in good faith controverted based on: (1) An examination of the pleadings and evidence

before it (2) Interrogation of the counsel

(b) Make an order specifying the facts and the extent of the amount of damages that appear without substantial controversy

(c) Direct further proceedings as are just (d) Conduct trial on the controverted facts

accordingly Effect A partial summary judgment is not a final judgment, but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. [Guevarra v. CA (1983)]

AFFIDAVITS AND ATTACHMENTS Form of affidavits and supporting papers [Rule 35, Sec. 5] (a) Made on personal knowledge (b) Shall set forth such facts as would be admissible

in evidence (c) Shall show affirmatively that the affiant is

competent to testify to the matters stated therein.

Attachments [Rule 35, Sec. 5] Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto OR served therewith. Affidavits in bad faith [Rule 35, Sec. 5] Definition – Affidavits presented under this Rule which appear to the court at any time as presented in bad faith or solely for the purpose of delay Effects: (a) Court shall order the offending party or counsel

to pay the other party – amount of reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees

(b) Court may adjudge the offending party or counsel guilty of contempt, after hearing

Movant files a motion for summary judgment with supporting affidavits, depositions or admission

Service to the adverse party at least 10 days the hearing

Adverse party may serve opposing affidavits, depositions or admissions at least 3 days before the hearing

Hearing – Court shall determine if a genuine issue as to any material fact exists and if the movant is entitled to a summary judgment as a matter of law

Judgment

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JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS

Summary judgment

Judgment on the pleadings

Judgment by default

Based on the pleadings, depositions, admissions and affidavits

Based solely upon the pleadings

Based on the complaint and evidence, if court requires its presentation

There is no genuine issue between the parties

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

No issues as no answer is filed by the defending party

Available to both plaintiff and defendant

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

Available to the plaintiff alone

10-day notice required

3-day notice required

3-day notice rule applies

May be interlocutory or on the merits

On the merits On the merits

Usually available in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

Available in any action, except annulment of marriage or legal separation cases

Available in any action, except annulment of marriage or legal separation cases

RENDITION OF JUDGMENTS AND FINAL ORDERS FORM OF JUDGMENT [Rule 36, Sec. 1] (a) In writing (b) Personally and directly prepared by the judge (c) Stating clearly & distinctly the facts and the law

on which it is based (d) Signed by the judged (e) Filed with the clerk of court.

DEFINITION OF RENDITION OF JUDGMENT It is the filing of the judgment with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court. [Ago v. CA (1962)]

PERIOD WITHIN WHICH DECISION IS TO BE RENDERED [1987 Constitution, Art. VIII, Sec. 15] (a) All cases filed must be decided or resolved by the

Supreme Court within 24 months from the date of their submission for decision.

(b) Unless reduced by the SC, within 12 months for lower collegiate courts and within 3 months for all other lower courts.

A case is deemed submitted for resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court. An extension of the period may be set by the SC upon request by the judge concerned on account of heavy caseload or by other reasonable excuse [Arap v Mustafa (2002)] INTERPRETATION OF THE JUDGMENT Where the judgment is difficult to execute because of ambiguity in its terms, the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. [Poland Industrial Limited v National Development Company (2005)] ENTRY OF JUDGMENT AND FINAL ORDER DEFINITION OF ENTRY OF JUDGMENT The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. [Riano]

Rendition of judgment

Entry of judgment

Filing of the judgment with the clerk of court Act of clerk of court in

entering the dispositive portion of the judgment in the book of entries of judgment

ENTRY OF JUDGMENTS AND FINAL ORDERS [Rule 36, Sec. 2] If there is no appeal/MNT/MFR filed within the prescribed periods, the clerk of court shall enter the judgment or final order in the book of entries of judgments. Date of finality of the judgment = Date of its entry in the book Note: the periods for filing the following pleadings are reckoned from the date of entry of judgment (a) Execution of a judgment by motion (5 years from

entry) [Rule 39, Sec. 6]

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(b) Petition for relief (as one of its periods, not more than 6 months from entry of the judgment or final order) [Rule 38, Sec. 3]

The record: (a) Shall contain the judgment’s dispositive part (b) Shall be signed by the clerk of court with a

certificate that the judgment has become final and executory.

AMENDMENTS TO JUDGMENT (Asked in the 2008 Bar Exams) The power to amend judgments is inherent to the court before judgment becomes final and executory. General rule: The court cannot amend the judgment once it has become final and executory. Exception: (a) To make corrections of clerical errors, not

substantial amendments, as by an amendment non pro tunc;

(b) To clarify an ambiguity which is borne out by and justifiable in the context of the decision;

(c) In judgments for support, which can always be amended from time to time.

Amended/clarified

judgment Supplemental decision

An entirely new decision and supersedes the original judgment

Does not take the place of or extinguish the original judgment

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

Serves to add to the original judgment

Post-Judgment Remedies REMEDIES BEFORE FINALITY OF JUDGMENT (a) Motion for Reconsideration (b) Motion for New Trial (c) Appeal MOTION FOR NEW TRIAL OR RECONSIDERATION MOTION FOR RECONSIDERATION A motion for reconsideration under Rule 37 is directed against a judgment or final order. It is not the motion for reconsideration of interlocutory order, which often precedes a petition for certiorari under

Rule 65. It does not apply to cases that fall under Summary Procedure. GROUNDS

Rule 37, Sec.1. Grounds of and period for filing motion for new trial or reconsideration.—Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of said party: (a) Fraud, accident, mistake or excusable negligence

which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or

(b) Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary law.

Grounds for a motion for reconsideration (a) The evidence is insufficient to justify the decision; (b) The damages awarded are excessive; (c) The decision or final order is contrary to law. Form and content of a motion for reconsideration Motion for reconsideration must be in writing, a written notice of which must be served on the adverse party. It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to point out specifically the findings or conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. Grounds for motion for new trial The aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party:

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(a) FAME (Extrinsic Fraud, Accident, Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. (1) The motion shall be supported by affidavits of

merit. Non-compliance with this requirement would reduce the motion to a mere pro forma motion.

(2) The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Otherwise, if the complaint is after all groundless or the defense is ineffective, a new trial would serve no purpose.

(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. (1) The motion shall be supported by: affidavits of

the witnesses by whom such evidence is expected to be given; and/or duly authenticated documents which are proposed to be introduced in evidence.

(2) Non-compliance with this requirement would reduce the motion to a mere pro forma motion.

Tumang v. CA (1989): Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant.

Extrinsic fraud: any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who, because of such fraud, was prevented from presenting his side of the case. Intrinsic fraud: acts of a party during the trial which does not affect the presentation of the case. Accident: an event that occurs without one’s foresight or expectation. Mistake: generally, mistakes of facts or law where, in good faith, the defendant was misled in a case. WHEN TO FILE The motion must be filed within the period for appeal. The period for appeal is within 15 days after notice to the appellant of the judgment or final order

appealed from. The 15-day period is deemed to commence upon receipt by the counsel of record, which is considered notice to the parties. Service upon the parties themselves is prohibited and is not considered as official receipt of judgment. No motion for extension of time shall be allowed. Where a record on appeal is required, the appellant shall file: (a) a notice of appeal, and (b) record on appeal within 30 days from notice of

the judgment or final order.

A record on appeal is required only in: (a) Special proceedings; (b) Other cases of multiple or separate appeals. Resolution of the motion

Rule 37, Sec. 4. Resolution of motion. — A motion for new trial or reconsideration shall be resolved within 30 days from the time it is submitted for resolution.

Effect of filing The filing of a timely motion interrupts the period to appeal. The 30-day period to resolve the motion is held to be mandatory [Gonzales v. Bantolo (2006)]

Rule 37, Sec. 3. Action upon motion for new trial or reconsideration.—The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly.

DENIAL OF THE MOTION; EFFECT Denial of motion for reconsideration The judgment or final order shall stand as is.

Rule 37, Sec. 7. Partial new trial or reconsideration.—If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest.

Single motion rule

Rule 37, Sec. 5. Second motion for new trial.—A motion for new trial shall include all grounds then available and those not so included shall be deemed waived. A second motion for new trial based on a

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ground not existing or available when the first motion was made, may be filed within the time herein provided excluding the time during which the first motion had been pending. No party shall be allowed a second motion for reconsideration of a judgment or final order.

The prohibition on a second motion does not apply to a motion for reconsideration of an interlocutory order. Denial of motion for new trial The judgment or final order shall stand as is.

Rule 37, Sec. 8. Effect of order for partial new trial. — When less than all of the issues are ordered retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial.

When there is an order for partial new trial, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial. When a second motion for new trial is permissible: When a ground for new trial was not existing or available when the first motion was made. GRANT OF THE MOTION; EFFECT Grant of motion for reconsideration The court may amend the judgment or final order accordingly. The amended judgment is in the nature of a new judgment, which supersedes the original judgment. Grant of motion for new trial The original judgment shall be vacated, and the action shall stand for trial de novo. The recorded evidence upon the former trial shall be used at the new trial without retaking them (if they are material and competent). REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD

RULE

Rule 37, Sec. 9. Remedy against order denying a motion for new trial or reconsideration. — An order denying a motion for new trial or reconsideration is now appealable. (As modified by AM 07-7-12)

Remedy if motion is denied (a) To appeal from the judgment or final order itself. (b) The order denying the motion for new trial or

reconsideration may itself be assailed by a petition for certiorari under Rule 65.

Habaluyas v. Japson (1986): A motion for new trial or reconsideration is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order.

Fresh period rule

Neypes v. CA (2005): If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the motion for new trial or motion for reconsideration within which to file an appeal.

This “fresh period rule” shall also apply to: (a) Rule 40 governing appeals from the Municipal

Trial Courts to the Regional Trial Courts; (b) Rule 42 on petitions for review from the Regional

Trial Courts to the Court of Appeals; (c) Rule 43 on appeals from quasi-judicial

agencies to the Court of Appeals; and (d) Rule 45 governing appeals by certiorari to the

Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. APPEALS IN GENERAL JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL

Rule 41 [as amended by A.M. 07-7-12 (2007)] SECTION 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (a) An order denying a petition for relief or any

similar motion seeking relief from judgment; (b) An interlocutory order; (c) An order disallowing or dismissing an appeal; (d) An order denying a motion to set aside a

judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(e) An order of execution; (f) A judgment or final order for or against one or

more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(g) An order dismissing an action without prejudice.

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In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. Significance of the amendment An order denying motion for new trial or reconsideration is NOW APPEALABLE!

Final Order

Interlocutory Order

Disposes of the matter in its entirety, leaving nothing more to be done but to enforce execution

Does not dispose of a case completely but leaves something more to be decided upon.

Appealable Not appealable except through a petition for certiorari under Rule 65

Must clearly and distinctly state the law and the facts on which it is based

No need to comply with such a requirement

MATTERS NOT APPEALABLE Not appealable under Rule 41 (a) Order denying motion for new trial or

reconsideration; (b) Order denying petition for review or any similar

motion seeking relief from judgment; (c) Interlocutory order; (d) Order disallowing/dismissing appeal; (e) Order denying motion to set aside judgment by

consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent;

(f) Order of execution; (g) While the case is pending, judgment or final

order: (1) For/against one or more of several parties; (2) In separate claims, counterclaims, cross-

claims, third-party complaints. Exception: If court allows appeal.

(h) Order dismissing an action without prejudice. Note: An interlocutory order is one that does not finally dispose of the case, and does not end the court's task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done. [BPI v. Lee (2012)] REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE

NOT APPEALABLE In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65. [Rule 41, Sec. 1]

MODES OF APPEAL Ordinary appeal Procedure in the Court of Appeals Ordinary appealed cases

Rule 44, Sec. 1. Title of cases. — In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as it was in the court of origin, but the party appealing shall be further referred to as the appellant and the adverse party as the appellee.

Counsels and guardians

Rule 44, Sec. 2. Counsel and guardians. — The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are appointed, notice thereof shall be served immediately on the adverse party and filed with the court.

Order of transmittal of record

Rule 44, Sec. 3. Order of transmittal of record. — If the original record or the record on appeal is not transmitted to the Court of Appeals within 30 days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal.

Case docketing

Rule 44, Sec. 4. Docketing of case. — Upon receiving the original record or the record on appeal and the accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and notify the parties thereof. Within 10 days from receipt of said notice, the appellant, in appeals by record on appeal, shall file with the clerk of court approved record on appeal Any unauthorized alteration, omission or addition in the approved record in appeal shall be a ground for dismissal of the appeal.

Note: Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file In the Court of Appeals, one original (properly marked) and two copies with their annexes [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 5] A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of

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the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt. [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 6] Record completion

Rule 44, Sec. 5. Completion of record. — Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals shall so inform the court and recommend to it measures necessary to complete the record. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time.

Rule 44, Sec. 6. Dispensing with complete record.—Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult cases, the court, on its own motion or on motion of an of the parties, may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining the reasons for such declaration.

The failure of appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order is a ground for dismissal of the appeal. Appellant’s brief

Rule 44, Sec.7. Appellant’s brief. — It shall be the duty of the appellant to file with the court, within 45 days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record

Note: Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file In the Court of Appeals, one original (properly marked) and two copies with their annexes [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 5] A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt. [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 6]

Contents of appellant’s brief

Rule 44, Sec. 13. Contents of appellant’s brief. — The appellant’s brief shall contain, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a

digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly and concisely stated without repetition and numbered consecutively;

(c) Under the heading “Statement of the Case,” a clear and concise statement of the nature of the action, a summary of the proceedings, the appealed rulings and orders of the court, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record;

(d) Under the heading “Statement of Facts,” a clear and concise statement in a narrative form of facts admitted by both parties and of those in controversy, together with the substance of proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the record;

(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its judgment;

(f) Under the heading “Argument,” the appellant’s arguments on each assignment of error with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found.

(g) Under the heading “Relief,” a specification of the order of judgment which the appellant seeks; and

(h) In cases not brought up by record on appeal, the appellant’s brief shall contain, as an appendix, a copy of the judgment or final order appealed from.

Rule 44, Sec. 15. Questions that may be raised on appeal. — Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.

Rule 124, Sec. 7. Contents of brief. — The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant.

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Appellee’s brief

Rule 44, Sec. 8. Appellee’s brief. — Within 45 days from receipt of the appellant’s brief, the appellee shall file with the court copies of his legibly type-written, mimeographed or printed brief, with proof of service of 2 copies thereof upon the appellant.

Note: Rules that apply, as regards the number of copies to be filed, with the appellant’s brief apply with the appellee’s brief. Contents of appellee’s brief

Rule 44, Sec. 14. Contents of appellee’s brief. — The appellee’s brief shall, in the order herein indicated, the following: (a) A subject index of the matter in the brief with a

digest of the arguments and page references, and a table of cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are cited;

(b) Under the heading “Statement of Facts,” the appellee shall state that the accepts the statement of facts in the appellant’s brief, or under the heading “Counter-Statement of Facts,” he shall point out such insufficiencies or inaccuracies as he believes exist in the appellant’s statement of facts with references to the pages of the record in support thereof, but without repetition of matters in the appellant’s statement of facts; and

(c) Under the heading “Argument,” the appellee shall set forth his arguments in the case on each assignment of error with page references to the record. The authorities relied on shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found.

Reply brief

Rule 44, Sec. 9. Appellant’s reply brief. — Within 20 days from receipt of the appellant’s brief, the appellee shall file with the court copies of his legibly typewritten, mimeographed or printed brief, with proof of service upon the appellant.

Note: Note: Rules that apply, as regards the number of copies to be filed, with the appellant’s brief apply in this case. Memoranda in special cases

Rule 44, Sec. 10. Time for memoranda in special cases. — In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the clerk that all the

evidence, oral or documentary, is already attached to the record. The failure of the appellant to file his memorandum within the period therefore may be a ground for dismissal of the appeal.

Several or plurality of appellant’s, appellees and/or counsel

Rule 44, Sec. 11. Several appellants or appellees or several counsel for each party.—Where there are several appellants or appellees, each counsel representing one or more but not all of them shall be served with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of the brief may be served upon any of them.

Extension of time for filing briefs

Rule 44, Sec. 12. Extension of time for filing briefs.—Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended.

The Brief

De Liano v. CA (2001): The purpose of the brief is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. Failure to comply with required contents of appellant’s brief is cause for dismissal of the petition.

Dismissal of appeal

Rule 50, Sec. 1. Grounds for dismissal of appeal. — An appeal may be dismissed by the Court of Appeals, on its own motion or on that of appellee, on the following grounds: (a) Failure of the record on appeal to show on its face

that the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal of the record on appeal within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provide in section 5 of Rule 40 and Section 4 of Rule 41;

(d) Unauthorized alterations, omission or additions in the approved record on appeal as provided in section 4 of Rule 44;

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(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not appealable.

PNB v. Philippine Milling (1969): CA has discretion to dismiss or not to dismiss appeal. Although said discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case, the presumption is that it has been so exercised. Padasdas v. CA (1974): Failure to file appellant’s brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure.

Dismissal of improper appeal

Rule 50, Sec. 2. Dismissal of improper appeal to the Court of Appeals. — An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright.

Atlas Consolidated v. CA (1991): Circular No. 2-90 now prohibits the transfer of appeals erroneously taken to the SC or CA to whichever of these tribunals has appropriate appellate jurisdiction. But where SC believes that there are factual issues which must be resolved, it may, in the exercise of its sound discretion and considering the attendant circumstances, either itself take cognizance of and

decide such issues or refer them to CA for determination. Cu-unjieng v. CA (2006): Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41, Sec. 4 is a ground for the dismissal of an appeal under Rule 50, Sec. 1(c). The Supreme Court has invariably sustained the Court of Appeal’s dismissal on technical grounds under the afore-quoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. True, the rules may be relaxed but only for persuasive and weighty reasons, to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure.

Withdrawal of appeal

Rule 50, Sec. 3. Withdrawal of appeal. — An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter, the withdrawal may be allowed in the discretion of the court.

Stay of execution See next page.

General rule: If judgment is rendered against the defendant, execution shall issue immediately upon motion. Exception: Immediate execution of judgment may be stayed if the following requisites concur: (a) an appeal has been perfected (b) the defendant files a sufficient supersedeas

bond, approved by the MTC and executed in favor of the plaintiff to pay the rents, damages and costs accruing down to the time of the judgment appealed from

(c) during the pendency of the appeal, the defendant deposits with the appellate court the amount of rent due from time to time under the contract; in the absence of a contract, he shall deposit with the RTC the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the 10

th day of each succeeding month or period

The supersedeas bond shall be transmitted by the MTC, with the other papers, to the clerk of the RTC to which the action is appealed.

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Habere Facias Possessionem; definition The name of the process commonly resorted to by the successful party in an action for ejectment, for the purpose of being placed by the sheriff in the actual possession of the land recovered.

San Pedro v. CA (1994): Judgments in ejectment cases which are favorable to the plaintiff are immediately executory. They can be stayed by the defendant only by: (a) perfecting an appeal; (b) filing a supersedeas bond; and

(c) making a periodic deposit of the rental or the reasonable compensation for the use and occupation of the property during the pendency of the appeal.

These requisites must concur. Puncia v. Gerona (1996): A stay of execution may also be warranted once the writ is issued: (a) where the delay in the deposit is due to fraud,

accident, mistake, or excusable negligence; or, (b) where supervening events occurring subsequent

to the judgment bring about a material change in the situation of the parties which makes execution inequitable

(c) where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances

Rule 39, Sec. 2. Discretionary execution.— (a) Execution of a judgment or a final order pending

appeal.—On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the

motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon

good reasons to be stated in a special order after due hearing.

(b) Execution of several, separate or partial judgments.

— A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal.

Sec. 21, Revised Rules on Summary Procedure. Appeal. — The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with Sec. 22 of BP 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be deemed repealed.

All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bond, and shall be held there until the final disposition of the appeal, UNLESS the court: (a) by agreement of the interested parties, or (b) in the absence of reasonable grounds of

opposition to a motion to withdraw, or (c) for justifiable reasons, shall decree otherwise.

Should the defendant fail to make the payments, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits.

After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court.

In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal.

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Rule 43, Sec. 12. Effect of appeal.—The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

Rule 39, Sec. 4. Judgments not stayed by appeal.—Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are not or may hereafter be declared to be immediately executory shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support.

General rule: In ordinary appeals, execution is stayed.

Exceptions (a) Decision in forcible entry and unlawful detainer.

Exception to exception: If appellant stays immediate execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision.

(b) Decision of the MeTC, MTC or MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order.

(c) Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure.

(d) Decision of a quasi-judicial agency under the Rule 43, Sec. 12, UNLESS otherwise provided by the Court CA;

(e) Decision in cases of injunction, receivership, support and accounting.

Service Specialists v. Sheriff of Manila (1986): An appeal from the order denying the petition for relief does not stay the judgment from which relief is sought. In order to stay execution, it is necessary to obtain a writ of preliminary injunction.

When case is submitted for judgment

Rule 51, Sec. 1. When case deemed submitted for judgment.—A case shall be deemed submitted for judgment: A. In ordinary appeals.— Where no hearing on the merits of the main case is held, upon the filing of the last pleading, brief, or

memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. When such hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review.— Where no comment is filed, upon the expiration of the period to comment. Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing.

Judgment

Rule 51, Sec. 2. By whom rendered. — The judgment shall be rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision.

Rule 51, Sec. 3. Quorum and voting in the court. — The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rules and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution.

Rule 51, Sec. 4. Disposition of a case.—The CA, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had.

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Sec.40, BP 129. Form of decision in appealed cases.—Every decision or final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusion of law on which it is based, which may be contained in the decision or final resolution itself, or adopted by reference from those set forth in the decision, order, or resolution appealed from.

Rule 51, Sec. 5. Form of decision.—Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the finding of fact and the conclusions of law on which it is based, which may be contained in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from.

The body of the judgment must contain the reasons or conclusions of the court to serve as a guide or enlightenment to determine the ratio decidendi. But what actually constitutes the resolution of the court which is the subject of the execution is the dispositive portion of the fallo. [Olac v. CA]

Rule 51, Sec. 6. Harmless error.—No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceedings must disregard any error or defect which does not affect the substantial rights of the parties.

Rule 51, Sec. 7. Judgment where there are several parties.—In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and revered as to others, and the case shall thereafter be proceeded with, so far as necessary, as of separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper.

Rule 51, Sec. 8. Questions that may be decided.—No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error

Rule 51, Sec. 9. Promulgation and notice of judgment.—After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel.

Petition for review [Rule 42] Mode of appeal in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction [Rule 41, Sec. 2]

Procedure: Time for filing [Rule 42, Sec. 1]: The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. Note: Time for filing the petition may be extended (additional 15 days) by the CA upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. However, no further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. Amount of costs: Php 500 [Rule 42, Sec. 1] Petition for Review Form and Content [Rule 42, Sec. 2]: Petition must state: (a) full names of the parties to the case w/o

impleading the lower courts or the judges (b) indicate material dates showing filed on time (c) set forth statement of the matters involved and

the issues raised, specification of errors of fact/law/both and the reasons or arguments relied upon for the allowance of the appeal

It must also be accompanied by legible duplicate original/true copies of the judgments/orders, certified correct by the CoC, the requisite number of copies and of the pleadings and other material portions of the record supporting the allegations of the petition Copies to be filed: Note: Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file In the Court of Appeals, one original (properly marked) and two copies with their annexes [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 5]

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A party required by the rules to serve a copy of his court-bound on the adverse party need not enclose copies of those annexes that based on the record of the court such party already has in his possession. In the event a party requests a set of the annexes actually filed with the court, the part who filed the paper shall comply with the request within five days from receipt. [Efficient Use of Paper Rule, AM 11-9-4-SC, Section 6] A Certification under oath shall also be submitted. The certification must state: (a) that he has not theretofore commenced any other

action involving the same issues in the SC, CA, or any other tribunal or agency;

(b) if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the SC, CA, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom

Note: Failure to comply with the requirements shall be a ground for dismissal [Rule 42, Sec. 3] Action of the Court [Rule 42, Sec. 4]: Court may REQUIRE RESPONDENT TO SUBMIT COMMENT within 10 days from notice or DISMISS the petition

Possible Grounds for dismissal: (a) patently without merit, (b) prosecuted manifestly for delay, or (c) questions raised are too unsubstantial to

require consideration Form and Content of Comment [Rule 42, Sec. 5]: Comment must be in one original (properly marked) and two copies with their annexes (Efficient Use of Paper Rule, Section 5), accompanied by certified true copies of such material portions of the record; stating: (a) whether or not he accepts the statement of

matters involved in the petition (b) point out such insufficiencies or inaccuracies as

he believes exist in petitioner’s statement of matters involved but without repetition

(c) reasons why the petition should not be given due course

If the CA finds that there is a prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision, it may accordingly give due course to the petition. [Rule 42, Sec. 6]. The CA may

also order the elevation of the original record from the RTC to the CA. Effect of Perfection of Appeal [Rule 42, Sec. 8]: (1) RTC loses jurisdiction

Note: Before the CA gives due course to the petition, the RTC has authority to do the following: (a) issue orders for the protection and

preservation of the rights of the parties which do not involve any matter litigated by the appeal

(b) approve compromises (c) permit appeals of indigent litigants (d) order execution pending appeal in accordance

with Sec. 2 of Rule 39, and (e) allow withdrawal of the appeal

(2) Appeal shall stay the judgment or final order

Exceptions: (a) In civil cases decided under the Summary

Procedure (b) CA, law or ROC provided otherwise

Action of the Court after petition is given due course [Rule 42, Sec. 9]: CA may: (a) Set the case for oral argument; or (b) Require parties to submit memoranda within a

period of fifteen (15) days from notice

When case is deemed submitted for decision: upon filing of the last pleading/memorandum [Rule 42, Sec. 9]

Petition for review on certiorari Procedure in the Supreme Court (Appealed Cases) Mode of appeal

Rule 56, Sec. 3. Mode of appeal. — An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.

Procedure

Rule 56, Sec. 4. Procedure. — The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and this Rule.

Grounds for dismissal of appeal

Rule 56, Sec. 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:

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(a) Failure to take the appeal within the reglementary period;

(b) Lack of merit in the petition; (c) Failure to pay the requisite docket fee and other

lawful fees or to make a deposit for costs; (d) Failure to comply with the requirements

regarding proof of service and contents of and the documents which should accompany the petition;

(e) Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;

(f) Error in the choice or mode of appeal; and (g) The fact that the case is not appealable to the

Supreme Court.

Improper appeal

Rule 56, Sec. 6. Disposition of improper appeal.—Except as provided in section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decision or appropriate action. The determination of the Supreme Court on whether or not issues of facts are involved shall be final.

Rule 122, Sec. 3. How appeal taken.— (a) The appeal to the Regional Trial Court, or to the

Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review

(c) under Rule 42. (d) The appeal in cases where the penalty imposed

by the Regional Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule.

(e) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death

penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule.

(f) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

General rule: An appeal taken to the Supreme Court by notice of appeal shall be dismissed. Exception: Appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Equally divided

Rule 56, Sec. 7. Procedure if opinion is equally divided.—Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied.

Questions of Fact v. Questions of Law

Agote v. Lorenzo (2005): A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Alsua-Betts v. CA (1979): General rule: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC, provided they are borne out by the record or are based on substantial evidence. Exception: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: (1) Conclusion is a finding grounded entirely on

speculations, surmises or conjectures [Joaquin v. Navarro (1953)].

(2) Inference made is manifestly mistaken, absurd or impossible [Luna v. Linatok (1942)].

(3) There is grave abuse of discretion in the appreciation of facts [Buyco v. People (1954)].

(4) Judgment is based on a misapprehension of facts [De la Cruz v. Sosing (1953).

(5) The Court of Appeal’s findings of fact are conflicting [Casica v. Villaseca (1957)].

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(6) The Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee [Nakpil & Sons v. CA (1986)].

(7) The Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion [Abellana v. Dosdos (1965)].

(8) The Court of Appeal’s findings of fact are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of record [Manlapaz v. CA (1987)].

Perez-Rosario v. CA (2005): Rule 65 cannot cure the failure to appeal thru Rule 45.

ISSUES TO BE RAISED ON APPEAL Cognizable judgments/issues The appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. [Republic v. Bermudez-Lorino (2005)] Rationale: Appeal is merely a privilege conferred by law upon the litigants. A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. [Medina v. CA (1992)] However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. [Espina v. CA (1992)] Notice of appeal The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. Record of appeal Required only in: (a) Special proceedings; (b) Multiple or separate appeals where the law or the

Rules of Court so requires.

Rule 40, Sec.2. When to appeal.—The appeal is taken by filing a notice of appeal with the court that rendered 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 after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Neypes v. CA (2005) on the fresh period rule: Definition: Period of appeal is interrupted by a timely motion for new trial or reconsideration. Motion for extension of time to file motion for new trial or reconsideration is not allowed. Applicability: (a) Rule 40 on appeals from MTC to RTC. (b) Rule 42 on petitions for review from RTC to CA. (c) Rule 43 on appeals from QJA to CA. (d) Rule 45 on appeals by certiorari to SC.

Rationale: To standardize the appeal periods provided in the Rules of Court and to afford litigants fair opportunity to appeal their cases, the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for new trial or reconsideration. PERIOD OF APPEAL From MTC to RTC and from RTC (original) to CA (a) By notice of appeal: 15 days from notice of the

judgment or final order (b) By record of appeal: 30 days from notice of the

judgment or final order (c) From MTC to RTC (appellate) to CA: 15 days from

notice of the judgment or final order but the Court of Appeals may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days.

From RTC (original) to CA to SC and from MTC to RTC (appellate) to CA to SC and from CA to SC and from QJA to CA to SC 15 days from notice of judgment or final order or from denial of petitioner’s motion for reconsideration or new trial. The SC may grant a 30 day extension for justifiable reasons. From QJA to CA 15 days from notice of the award, judgment, final order or resolution or from date of last publication if required by law. The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer than 15 days.

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Distinctions between Rule 45 and Rule 65 Based on J. Regalado’s Commentary (Asked in the 1999 and 2008 Bar Exams)

Rule 45 Appeal by Certiorari

Rule 65 Original Action

for Certiorari (1) Issues Raised Questions of Law

Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction

(2) Against What Court Action Directed Review of the judgment, award or final order on the merits

Directed Against an Interlocutory Order of the court prior to appeal from the judgment, or where there is no appeal or any other plain speedy and adequate remedy

(3) Reglementary Period Must be filed within the reglementary period for appeal.

Not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.

(4) Effect on the Proceedings Below Judgment, award or order appealed from is stayed by the Appeal

No effect (i.e., proceedings below continue) unless a writ of preliminary injunction or a temporary restraining order has been issued

Rule 45 Appeal by Certiorari

Rule 65 Original Action

for Certiorari (5) Parties Involved

Original Parties to the action remain the same during appeal (albeit with the corresponding appellation of appellant and appellee), the lower court or quasi-judicial agency is not to be impleaded.

The parties are the aggrieved party against the lower court/Quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and the respondents.

(6) Requirement of Motion for Reconsideration For purposes of appeal, MR is not required

MR is a CONDITION PRECEDENT subject only to certain exceptions.

(7) Exercise of Jurisdiction The Appellate Court exercises its appellate jurisdiction and power of review

Higher Court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts.

Matrix of Periods

Period to Appeal

Extensions

Effect of MR or MNT

MTC to RTC

By notice of appeal - 15 days from notice of the judgment or final order

No extensions allowed Interrupts the period to appeal

By record of appeal – 30 days from notice of the judgment or final order

RTC to CA

By notice of appeal - 15 days from notice of the judgment or final order

No extensions allowed Interrupts the period to appeal

By record of appeal – 30 days from notice of the judgment or final order

MTC to RTC to CA

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

The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days.

Fresh period to appeal from denial MR or MNT

QJA to CA

15 days from notice of the award, judgment, final order or resolution or from date of last publication if required by law OR from denial of MR or MNT

The CA may grant a 15 day extension. No further extension shall be granted except for the most compelling reasons and in no case longer then 15 days.

Fresh period to appeal from denial MR or MNT

RTC to SC RTC to CA to

15 days from notice of judgment or final order OR from denial of

The SC may grant a 30 day extension for justifiable reasons.

Fresh period to appeal from denial MR or MNT

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This “fresh period rule” shall also apply to: (a) Rule 40 governing appeals from the Municipal

Trial Courts to the Regional Trial Courts; (b) Rule 42 on petitions for review from the Regional

Trial Courts to the Court of Appeals; (c) Rule 43 on appeals from quasi-judicial

agencies to the Court of Appeals; and (d) Rule 45 governing appeals by certiorari to the

Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. [Neypes v. CA, (2005)]

A party litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration. Being procedural in nature, Neypes is deemed to be applicable to actions pending and undetermined at the time of its effectivity and is thus retroactive in that sense and to that extent. [First Aqua Sugar v. BPI (2007)] PERFECTION OF APPEAL Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Balgami v. CA (2004)] Rationale: Appeal is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. It is neither a natural right nor a part of due process. Effect of failure to perfect appeal (a) Defeats a party’s right to appeal. (b) Precludes appellate court from acquiring

jurisdiction.

Camposagrado v. Camposagrado (2005): Failure to pay the appellate court docket fee within the reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. Such discretion should consider all attendant circumstances and must be exercised with a view to substantial justice. Republic v. Bermudez-Lorino (2005): Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. Medina v. CA (1992): A party cannot change the theory on appeal. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court.

Espina v. CA (1992): However, issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court.

Appeal from MTC to RTC: the rules on perfection of appeal from RTC to CA applies. From the Regional Trial Court to CA: (a) By notice of appeal: perfected as to party who

filed notice upon filing of the same in due time The court loses jurisdiction over the case upon perfection of appeal AND expiration of time to appeal of the other parties.

(b) By record on appeal: perfected as to the party who filed appeal and with respect to the subject matter thereof upon approval of the record filed in due time The court loses jurisdiction upon approval of the records on appeal AND expiration of the time to appeal of the other parties

From MTC to RTC (appellate jurisdiction) to CA: upon timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. The RTC loses jurisdiction upon perfection of appeals filed in due time AND the expiration of time to appeal of other parties. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC MTC to RTC

Rule 40, Sec.1. Where to appeal. — An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party the appellee.

The other provisions governing appeal from RTC to CA so long as they are not inconsistent are applicable to appeal from MTC to RTC. MTC to RTC to CA

SC CA to SC

petitioner’s MR or MNT.

File a verified petition for review with the CA, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500 for costs and furnishing the RTC and the adverse party with a copy of the petition.

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(Asked in the 1999 and 2002 Bar Exam) Petition for review from RTC to CA [Rule 42] Applicability.— Appeal of RTC decision rendered in exercise of appellate jurisdiction [Rule 42, Sec. 1] Certificate of Non-Forum Shopping (CNFS).— Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. However, this rule is relaxed where there is need to conduct a review. In those instances, petitioner may comply with the requirement after he has filed the petitions. [Rule 42, Sec.1] MTC to RTC to CA to SC

Rule 41. Sec.2(c). Appeal by certiorari.—In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.

Rule 45, Sec.1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment or final order or resolution of the CA, the Sandiganbayan, the RTC or other courts whenever authorized by law, may file with the SC a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.

(Asked in the 2002 Bar Exams)

Applicability of Rule 45

Rule 45, Sec.9. Rule applicable to both civil and criminal cases.—The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.

Filing of Petition (a) File with the SC a verified petition for review on

certiorari.

(b) Unless otherwise directed by the court, the number of court- bound papers that a party is required or desires to file In the Supreme Court, one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. For the En Banc, the parties need to submit only two sets of annexes, one attached to the original and an extra copy. For the Division, the parties need to submit also two sets of annexes, one attached to the original and an extra copy. All members of the Court shall share the extra copies of annexes in the interest of economy of paper.

Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court’s e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. (Efficient Use of Paper Rule, Section 5)

(c) Petition shall raise only questions of law which must be distinctly set forth.

Contents of Petition [Rule 45, Sec. 4] (a) Full name of the appealing party (petitioner) and

the adverse party (respondent). (b) Without impleading the lower court or judges as

petitioners/respondents. (c) Material dates:

(1) When notice of the judgment or final order or resolution subject thereof was received;

(2) When a motion for new trial or reconsideration (if any) was filed and when notice of the denial thereof was received.

(d) Concise statement of the matters involved, and the reasons/arguments relied on for the allowance of the petition;

The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s MNT or MR filed in due time after judgment.

Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days. [Rule 42, Sec. 1]

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(e) A clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition;

(f) Certificate of non-forum shopping.

Rule 45, Sec.3. Docket and other lawful fees; proof of service of petition. — Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition.

Dismissal or denial of petition

Rule 45, Sec.5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. The SC may on its own initiative deny the petition on the ground that the appeal is without merits, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.

Review is discretionary A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefore. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: (a) When the court a quo has decided a question of

substance, not theretofore determined by the SC, or has decided it in a way probably not in accord with law or with the applicable decisions of the SC; or

(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision.

May Require Pleadings and Documents

Rule 45, Sec. 7. Pleadings and documents that may be required; sanctions. — For purposes of determining whether the petition should be dismissed or denied pursuant to sec.5 of this Rule, or where the petition is given due course under Sec.8 hereof, the SC may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or non-compliance with the conditions therefor.

Due Course and Elevation of Records

Rule 45, Sec. 8. Due course; elevation of records. — If the petition is given due course, the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice.

MTC to SC (a) The remedy is a petition for certiorari under Rule

65. (b) This is not an appeal. APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC RTC to CA Under Rule 41, an appeal of judgment or final order under that completely disposes of either: (a) The case; (b) A particular matter in the case, when declared by

ROC to be appealable. Not appealable under Rule 41 (a) Order denying motion for new trial or

reconsideration;

File petition within 15 days from notice: (a) of the judgment or final order or resolution

appealed from, or (b) of the denial of the petitioner's motion for

new trial or reconsideration filed in due time after notice of the judgment.

On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition. [Rule 45, Sec. 2]

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(b) Order denying petition for review or any similar motion seeking relief from judgment;

(c) Interlocutory order; (d) Order disallowing/dismissing appeal; (e) Order denying motion to set aside judgment by

consent or confession or compromise on ground of fraud or mistake or duress or any other vitiation of consent;

(f) Order of execution; (g) While the case is pending, judgment or final

order: (1) For/against one or more of several parties; (2) In separate claims, counterclaims, cross-

claims, third-party complaints. Exception: If court allows appeal.

(h) Order dismissing an action without prejudice. In the 8 cases not appealable under Rule 41, the aggrieved party may file a special civil action under Rule 65. Interlocutory order Definition: If it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case. [Investments, Inc. v. CA (1987)] For purposes of appeal, an order is final if it disposes of the entire case. An order for partial summary judgment is an interlocutory order which cannot be appealed from. The trial court had not yet rendered a complete final judgment. [GSIS v. Phil. Village Hotel (2004)] Multiple appeals Civil cases which admit of multiple appeals: (a) Judgment in an action for recovery or for partition

of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. When such accounting is submitted and either approved or rejected by the trial court, another appeal lies therefrom.

(b) Special civil actions: (1) Expropriation; (Rule 67) (2) Judicial partition; (Rule 69) (3) Judicial foreclosure of mortgage; (Rule 68)

Special proceedings also admit of multiple appeals.

Ko v. PNB (2006): The order of dismissal due to failure to prosecute is appealable by notice of appeal under Rule 41. Philexport v. PI (2004): But an order of dismissal without prejudice is not appealable under Rule 41.

Lanaria v. Planta (2007): Submission of a document together with the motion for reconsideration constitutes substantial compliance with compliance with Section 2, Rule 42 or the requirement that relevant or pertinent documents be submitted along with the petition, and calls for the relaxation of procedural rules

RTC to CA to SC The remedy is a petition for review on certiorari under Rule 45. RTC to SC (a) The remedy is a petition for certiorari under Rule

65. (b) This is not an appeal.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA CA to SC The remedy is a petition for review on certiorari under Rule 65.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45.

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

COA The remedy is a petition for certiorari under Rule 65. [Rule 64, Section 2] Time to file: petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution

Note: If allowed under the Rules of the Commission concerned, the filing of a motion for new trial/reconsideration shall interrupt the period Copies to be filed: Unless otherwise directed by the court, one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. [AM 11-9-4-SC, Section 5(a)] Contents: (a) State the facts with certainty, present clearly the

issues involved, set forth the grounds and brief arguments relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final order or resolution. Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable.

(b) Accompanied by a clearly legible duplicate original or certified true copy of the judgment,

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final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto.

For the Division, the parties need to submit also two sets of annexes, one attached to the original and an extra copy. All members of the Court shall share the extra copies of annexes in the interest of economy of paper. Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court’s e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. (a) State the specific material dates showing that it

was filed within the period fixed herein, and shall contain a sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46.

(b) Accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees.

Note: The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. Effect of Filing: The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just. If the SC finds finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice; otherwise, it may dismiss the petition outright. [Rule 64, Section 6] Aside from the comment, No other pleading may be filed by any party unless required or allowed by the Court. [Rule 64, Section 7] Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such

other pleadings or papers as may be required or allowed, or the expiration of the period to do so. [Rule 64, Section 9] REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

COMELEC [same with COA (Rule 64)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

CSC The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule 43 of the Rules of Court within fifteen days from notice of the resolution. [DECS v. Cuanan (2008)]

OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

OMBUDSMAN When CA has Jurisdiction In administrative cases: Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary , the decision shall be unappealable. In all other cases, the decision may be appealed to the CA on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within 15 days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration. [AO 7, Rule III, Section 7] Note: An appeal shall not stop the decision from being executory. When the SC has Jurisdiction In cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of certiorariunder Rule 65 may be filed with this Court to set aside the Ombudsman’s order or resolution. [Nava v. NBI (2005)] Court has jurisdiction over such petitions questioning resolutions or orders of the Office of the Ombudsman in criminal cases. [Kuizon v. Desierto (2001)] REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE

NLRC

Rule 43, Sec.2. Cases not covered.—This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines.

NLRC judgments and final orders or resolutions are now reviewable, in the first instance, by the Court of

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Appeals on certiorari under Rule 65, but those of the Employees Compensation Commission should be brought to the Court of Appeals through a petition for review under this Rule. Also, appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this Rule. [Fabian v. Desierto (1998)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF

QUASI-JUDICIAL AGENCIES QJA to CA Applicability Appeals from judgments or final orders of the CTA and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions: (arranged alphabetically)

(a) Agricultural Inventions Board (AIB); (b) Board of Investments (BOI); (c) Bureau of Patents, Trademarks and Technology

Transfer (BPTTT); (d) Central Board of Assessment Appeals (CBAA); (e) Civil Aeronautics Board (CAB); (f) Civil Service Commission (CSC); (g) Construction Industry Arbitration Commission; (h) Department of Agrarian Reform (DAR under RA

6657) (i) Employees Compensation Commission (ECC); (j) Energy Regulatory Board (ERB); (k) Government Service Insurance System (GSIS); (l) Insurance Commission; (m) Land Registration Authority (LRA); (n) National Electrification Administration (NEA); (o) National Telecommunications Commission

(NTC); (p) Office of the President (OP); (q) Philippine Atomic Energy Commission (PAEC); (r) Securities and Exchange Commission (SEC); (s) Social Security Commission (SSC); (t) Voluntary arbitrators authorized by law.

A resolution of the DOJ Secretary is not appealable under Rule 43. Recourse should be to the President, instead of the CA, under the established principle of exhaustion of administrative remedies. [Orosa v. Roa (2006)] Exhaustion of Administrative Remedies If an appeal/remedy obtains or is available within the administrative machinery, this should be resorted to before resort can be made to the courts. Under Rule 43, Sec. 4 the petition should be filed within 15 days from: (a) Notice of the final order; or

(b) The date of its last publication, if publication is required by law for its effectivity; or

(c) The denial of the petitioner’s MFR duly filed according to the governing law of the court or agency a quo. [Villorente v. Laiya (2005)]

Under Rule 43, there is no need to implead the lower court or agency which rendered the assailed decision. [Basmayor v. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment, order, resolution or ruling subject of a petition for certiorari is essential to determine whether or not the court, body or tribunal which rendered the same indeed committed grave abuse of discretion. Either a legible duplicate original or certified true copy thereof shall be submitted. If what is submitted is a copy, then it is required that the same is certified by the proper officer of the court, tribunal, agency or office involved. This is to assure that such copy is a faithful reproduction of the judgment, order, resolution or ruling subject of the petition. [Coca-cola v. Cabalo (2006)] Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule: (a) when public welfare and the advancement of

public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an

oppressive exercise of judicial authority. [DECS v. Cuanan (2008)]

QJA to CA to SC Remedy is a petition for review on certiorari under Rule 45. QJA to SC Remedy is a petition for certiorari under Rule 65, which is not an appeal. RELIEF FROM JUDGMENTS, ORDERS AND

OTHER PROCEEDINGS Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of fraud, accident, mistake or excusable negligence. Francisco v. Puno (1981): A party who has filed a timely motion for new trial or motion for reconsideration can no longer file a petition for relief from judgment after his motion has been denied. These remedies are mutually exclusive. It is only in

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appropriate cases where a party aggrieved by the judgment has not been able to file a motion for new trial or motion for reconsideration that a petition for relief can be filed. GROUNDS FOR AVAILING OF THE REMEDY

Rule 38, Sec. 1. Petition for relief from judgment, order, or other proceedings. — When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside.

The relief provided for by Rule 38 is of equitable character and is only allowed in exceptional cases, that is where there is no other available or adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by his exercising proper diligence would have had an adequate remedy at law, as where petitioner could have proceeded by appeal to vacate or modify the default judgment. [Manila Electric v. CA (1990)] Petition for relief under Rule 38 is an admission that the period to appeal from the decision had already expired. [David v. CA (1992)] TIME TO FILE PETITION

Rule 38, Sec.3. Time for filing petition; contents and verification. — A petition provided for in either of the preceding sections of this Rules must be verified, filed within 60 days after the 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, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be.

Both periods must concur. They are also non-extendible and never interrupted. CONTENTS OF PETITION

Rule 38, Sec.2. Petition for relief from denial of appeal.—When a judgment of final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case. Prayer in Petition for Relief from Judgment (a) That the judgment/order/proceeding be set

aside; (b) That the appeal be given due course.

Form and content of petition (a) Must be verified; (b) Must be accompanied by an affidavit showing the

fraud, accident, mistake or excusable negligence relied upon;

(c) The affidavit of merit accompanying the petition must also show the facts constituting the petitioner’s good and substantial cause of action or defense.

An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. When an Affidavit of Merit is Not Necessary (a) When there is lack of jurisdiction over the

defendant; (b) When there is lack of jurisdiction over the subject

matter; (c) When judgment was taken by default; (d) When judgment was entered by mistake or was

obtained by fraud; or (e) Other similar cases. Two Hearings an a Petition for Relief from Judgment (a) Hearing to determine whether or not the

judgment should be set aside; (b) If option a) is in the affirmative, hearing upon the

merits of the case. Other Remedies After Finality of Judgment (a) Action to Annul a Judgment (b) Certiorari (c) Collateral Attack of a Judgment that is Void on its

Face ANNULMENT OF JUDGMENTS OR FINAL

ORDERS AND RESOLUTIONS GROUNDS FOR ANNULMENT [Rule 47, Section 2] Grounds for Annulment Extrinsic Fraud Extrinsic fraud - any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the unsuccessful party

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has been prevented from exhibiting fully his case. [Tolentino v. Leviste (2004)] Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. [Tolentino v. Leviste (2004)] Rationale: Party is prevented from having his day in court [Tolentino v. Leviste (2004)] Note: Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. [Rule 47, Sec. 2] Lack of Jurisdiction General Rule: Before a party can avail of the reliefs provided for by Rule 47, it is a condition sine qua non that one must have failed to move for new trial in, or appeal from, or file a petition for relief against said issuances or take other appropriate remedies thereon, through no fault attributable to him. If he failed to avail of those cited remedies without sufficient justification, he cannot resort to the action for annulment, for otherwise he would benefit from his own inaction or negligence. [Lazaro v. Rural Bank of Francisco Balagtas (2003)] Exception: Stringent rules of procedures may be relaxed to serve the demands of substantial justice and in the Court's exercise of equity jurisdiction [Almelor v. RTC of Las Piñas (2008)] PERIOD TO FILE ACTION [Rule 47, Sec. 3] The period to file action for annulment of judgment is dependent on the grounds: (a) If it is based on extrinsic fraud, the action must be

filed within 4 years from its discovery (b) If it is based on lack of jurisdiction, the action

must be filed before it is barred by laches or estoppels

EFFECTS OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7] Effect: The judgment of annulment shall: (a) set aside the questioned judgment or final order

or resolution; and (b) render the same null and void

Note: The judgment is without prejudice to the original action being refiled in the proper court. Also, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a

timely motion for new trial had been granted therein. COLLATERAL ATTACK OF JUDGMENTS REMEDIES FROM A VOID JUDGMENT (Asked in the 2004 Bar Exams) WHAT IS A VOID JUDGMENT? A void judgment is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void. [Polystyrene Manufacturing v. Privatization Management (2007)] A void judgment may be likened to a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it rears its head. [Banco Espanol-Filipino v. Palanca (1918)] A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs of Cuyos (2008)) HOW DO YOU ATTACK A VOID JUDGMENT? It may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of Cuyos (2008)) WHAT ARE YOUR REMEDIES? If the reglementary period for appeal has not yet lapsed, some remedies are New Trial and Reconsideration. Appeal, Petition for Relief, and Other Appropriate Remedies such as Certiorari may also be used. If the appropriate remedies are no longer available without the fault of the petitioner, the equitable and extraordinary remedy of Petition for Annulment of Judgment may be resorted to. When all else fails, there is jurisprudence to the effect that a patently void judgment may be dealt with by a Main Action for Injunction. [See Barrameda v. Moir (1913)] SOME JURISPRUDENTIAL BASIS Remedial Law Jurisprudence such as Spouses Benatiro v. Heirs of Cuyos, (2008) and Agustin v. Bacalan, (1985) on the matter of void judgment particularly refer to Rule 47 as a remedy against a void judgment. This remedy, however, should be availed of only when the appropriate remedies are no longer available without fault on the part of the petitioner.

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Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional ground therefore (Spouses Benatiro Case).

Montinola v. Judge Gonzales (1989): a void judgment is like an outlaw which may be slain at sight wherever or whenever it exhibits its head. The proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment. Assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause" [Banco Espanol v. Palanca (1918)]. A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or that it is contrary to law. [Panlilio v. Garcia (1982)]

Execution, Satisfaction and Effect of Judgments DIFFERENCE BETWEEN FINALITY OF JUDGMENT

FOR PURPOSES OF APPEAL; FOR PURPOSES OF

EXECUTION The term “finality of judgment for purposes of appeal” refers to interlocutory orders which: (a) are not decisions within the constitutional

definition [Armargo v. CA (1973)] (b) are those that determine incidental matters that

do not touch on the merits of the case or put an end to proceedings. The following are examples of an interlocutory order:

(1) an order denying a motion to dismiss; (2) an order granting an extension of time to file a

pleading, or one authorizing an amendment thereof;

(3) order granting or denying applications for postponement or inspection of documents. [Riano]

The word interlocutory refers to something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan (2004)]

A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes 'final or, to use the established and more distinctive term, 'final and executory. The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question only final judgments. [Investments, Inc. v. Court of Appeals(1987)] Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. [Rule 39, Sec. 1] It can be noted that the Supreme Court made a hairline distinction between finality of order for appeals and for execution. It is submitted that upon court’s issuance of a judgment touching upon the merits of a case, it is final for the purposes of an appeal, but NOT for execution. Finality for the purposes of execution refers to the expiration of the period to appeal and no appeal was perfected. WHEN EXECUTION SHALL ISSUE General rule: When the judgment or order becomes executory, the court cannot refuse to issue a writ of execution. Exceptions: The issuance of a writ of execution which issues as a matter of right can be countered in any of the following cases (R-I-N-S-E-D): (a) When a PETITION FOR RELIEF or an action to

enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38, Sec. 5);

(b) When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law, such judgment CANNOT BE FINAL;

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(c) When the judgment has been NOVATED BY THE PARTIES

(d) When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible

(e) On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE.

(f) When the judgment becomes DORMANT, the 5-year period under Rule 39.6 having expired without the judgment having been revived.

AEXECUTION AS A MATTER OF RIGHT See Annex D. General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust, a hearing on the motion should be held. [Luzon Surety v. Beson (1976)]

General rule: An appeal seasonably perfected shall stay the execution of the judgment, unless discretionary execution is granted by the court. Exceptions: However, judgments in the following action, despite perfection of an appeal, shall be executed, unless the court orders otherwise: (a) injunction (b) receivership (c) accounting (d) support (e) such other judgments as shall now or may

hereafter be declared to be immediately executory

Judgments in these actions shall be enforceable after their rendition and shall not, be stayed by an appeal taken therefrom, UNLESS OTHERWISE ORDERED BY THE TRIAL COURT. General rule: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. [Rule 39, Sec. 6] After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry

and thereafter by action before it is barred by the statute of limitations. The maximum period within which a final and executory judgment may be executed is 20 years [Rule 39, Sec. 6 in relation to New Civil Code provision on prescription of judgment] Exceptions: (a) Judgments for support WHICH DO NOT BECOME

DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. Benitez (1984)] except for support in arrears beyond 10 years from the date they become due;

(b) Contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v. Blanco (1947)];

(c) Issuance of writs of possession in FORECLOSURE CASES within the statute of limitations;

(d) Land registration proceedings (and other special proceedings), hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES

DISCRETIONARY EXECUTION See Annex E. General rule: Under the Rule on Discretionary Execution (also called execution pending appeal), the court rendering the judgment, if it still has jurisdiction, may exercise discretion and order execution pending appeal (Asked in the 2002 Bar Exam). It is the execution of a judgment or final order before it attains finality. The court which rendered the decision can grant an execution pending appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid, there should be a good reason to justify the execution of the judgment pending appeal, the same to be stated in the order granting it. Exception: This rule, however, is inapplicable in the case of the Court of Appeals. (a) The Rule on Discretionary Execution

contemplates a situation where a judgment or final order rendered in the exercise of its original jurisdiction and the prevailing party in said decision seeks immediate execution during the pendency of an appeal.

(b) The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN.

(c) Discretionary execution is allowed pending appeal of judgment or final order of the trial court upon good reasons to be stated in a special order.

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Heirs of Justice J.B.L. Reyes v. CA (2000): A judgment of the ca cannot be executed pending appeal. It is acquired either by the arrest of the accused or by his voluntary appearance in court.

General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. Exception: However, THE FILING OF SUPERSEDEAS BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT. Where the needs of the prevailing party are URGENT, the Court can order immediate execution despite such SUPERSEDEAS BOND. [Regalado] HOW A JUDGMENT IS EXECUTED EXECUTION BY MOTION OR BY INDEPENDENT ACTION

[Rule 39, Sec. 6]

When judgment/order may be executed by motion Within 5 years from the date of its entry When judgment/order may be executed by independent action After the lapse of 5 years from date of its entry and before it is barred by the statute of limitations

Note: The revived judgment may be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION [Rule 39, Sec. 8] Writ of Execution (a) Issued in the name of of the Republic of the

Philippines from the court which granted the motion;

(b) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and

(c) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms

Manner of Execution (a) If the execution be against the property of the

judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor;

(b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property;

(c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution;

(d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and

(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.

EXECUTION OF JUDGMENTS FOR MONEY (asked in the 2007 Bar Exam) Immediate payment on demand Procedure

The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees.

The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e.g., dacion en pago), the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment.

The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.

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Satisfaction by levy Nature Levy means the act or acts by which an officer sets apart or appropriates a part or the whole of the property of the judgment debtor for purposes of the prospective execution sale [Llenares v. Vandevella (1966)]. If susceptible of appropriation, the officer removes and takes the property for safekeeping; otherwise the same is placed under sheriff’s guards. Without valid levy having been made, any sale of the property thereafter is void. Procedure

Levy

Garnishment

seizure of property, personal and/or real, belonging to the judgment debtor for subsequent execution sale to satisfy judgment Garnishment is

the process of notifying a third person (the garnishee) to retain and attach the property he has in his possession or under his control belonging to the judgment debtor, to make disclosure to the court concerning the same, and to dispose of

If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment.

The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him.

If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon: (a) the properties of the judgment obligor of

every kind and nature whatsoever which may be disposed, of for value, and

(b) not otherwise exempt from execution

The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon, sufficient to satisfy the judgment.

If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon.

When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.

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Levy

Garnishment

the same as the court shall direct to satisfy the judgment. (Sec. 9, Rule 39)

Garnishment of debts and credits Definition Garnishment has been defined as a specie of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation [BPI v. Lee (2012)]

Scope The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. The process of levying shall be called garnishment if the property involved is money, stocks, or other incorporeal property in the HANDS OF THIRD PERSONS. Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. Garnishment is not a violation of RA 1405 on the secrecy of bank deposits. [Chinabank v. Ortega (1973)] Notes: Upon service of the writ of garnishment, the garnishee becomes a “virtual party” or “forced intervenor” to the case and the trial court thereby acquires jurisdiction to bind the garnishee to comply with its orders and processes. [BPI v. Lee (2012)] UP’s funds, being government funds, are not subject to garnishment. Moreover, The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. [UP v. Dizon (2012)] Procedure

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS Conveyance, delivery of deeds, or other specific acts Under this situation, there is a judgment which directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act IN CONNECTION THEREWITH. If the party so ordered fails to comply within a specified period, there are two possible remedies. Either: (a) the court may DIRECT THE ACT TO BE DONE AT

THE COST OF THE DISOBEDIENT PARTY by some other person appointed by the court and the act when so done shall have like effect as if done by the party, or

Levy shall be made by SERVING NOTICE UPON THE PERSON OWING SUCH DEBTS OR HAVING IN HIS POSSESSION OR CONTROL SUCH CREDITS TO WHICH THE JUDGMENT OBLIGOR IS ENTITLED. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.

The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor.

The garnished amount in cash, or certified bank check issued in the name of the judgment obligee, shall BE DELIVERED DIRECTLY TO THE JUDGMENT OBLIGEE within ten (10) working days from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due, otherwise, the choice shall be made by the judgment obligee.

The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee.

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(b) if real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.

Sale of real or personal property If judgment is rendered ordering the sale of real or personal property, an order for execution shall be issued describing such property as may be ordered sold, selling it, and applying the proceeds in conformity with the judgment’s instructions. Delivery or restitution of real property The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee. Otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. Removal of improvements on property subject of execution When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. Delivery of personal property In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. EXECUTION OF SPECIAL JUDGMENTS When a judgment requires the performance of any act other than those mentioned in the two preceding sections (execution of judgment for money and specific acts), a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same

is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. Special judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e.g., a judgment ordering a partner to render an accounting, a judgment ordering a party to comply with his recording contract otherwise, pay damages). Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party. EFFECT OF LEVY ON THIRD PERSONS [Rule 39, Sec. 12] Effect The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. PROPERTIES EXEMPT FROM EXECUTION General rule: Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution: (FOTNUP-LBS-GMRE) (a) The judgment obligor's family home as provided

by law, or the homestead in which he resides, and land necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;

(f) Provisions for individual or family use sufficient for four months;

(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

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(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family;

(j) Lettered gravestones; (k) Monies, benefits, privileges, or annuities

accruing or in any manner growing out of any life insurance;

(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;

(m) Properties specially exempted by law. (e.g., property mortgaged to the DBP [Section 26, CA 458]; savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]; benefits from private retirement systems of companies and establishments with limitations [RA 4917]; laborer’s wages except for debts incurred for food, shelter, clothing and medical attendance [ART 1708, CIVIL CODE]; benefit payments from SSS [Section 16, RA 1161 AS AMENDED])

Exception: However, no article or species of property mentioned in this section shall be exempt from: (a) execution issued upon a judgment recovered for

its price, or (b) upon a judgment of foreclosure of a mortgage

thereon.

Herrera v. Mcmicking (1909): The exemptions MUST BE CLAIMED, otherwise they are deemed waived. It is not the duty of the sheriff to set off the exceptions on his own initiative.

Return of Writ of Execution The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed

with the court and copies thereof promptly furnished the parties. [Rule 39, Sec. 12] Notice Requirement Before the sale of property on execution, notice thereof must be given as follows: (a) In case of perishable property, by posting written

notice of the time and place of the sale in three (3) public places, preferably in conspicuous areas of the (CPM) municipal or city hall, post office and public market in the municipality or city where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property;

(b) In case of other personal property, by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days;

(c) In case of real property, by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold, and if the assessed value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional language published, edited and circulated or, in the absence thereof, having general circulation in the province or city;

(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13.

The notice shall specify the place, date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am-2pm). The place of the sale MAY BE AGREED UPON BY THE PARTIES. In the absence of such agreement, the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is located. [Rule 39, Sec. 15]

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PENALTIES (Selling without notice and defacing notice)

An officer selling without the notice prescribed by section 15 of this Rule

A person willfully removing or defacing the notice posted

pay punitive damages in the amount of P5,000 to any person injured thereby, in addition to his actual damages, both to be recovered by motion in the same action

if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall be liable to pay P5,000 to any person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the same action

Preventing Execution Sale At any time before the sale of property on execution, the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. [Rule 39, Sec. 18] (a) This is akin to the equitable right of redemption

under Rule 68, which is available to the judgment obligor in judicial foreclosure of mortgage.

(b) The difference lies in the fact that under Rule 68, a definite period is given.

Concluding the Execution Sale When the purchaser is the judgment obligee, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess. [Rule 39, Sec. 21] By written consent of the judgment obligor and obligee, or their duly authorized representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned [Rule 39, Sec. 22]. Written consent is essential, otherwise the adjournment will be void [Abrozar v. IAC (1988)] Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing: (a) A particular description of the real property sold; (b) The price paid for each distinct lot or parcel; (c) The whole price paid by him; (d) A statement that the right of redemption expires

one (1) year from the date of the registration of the certificate of sale. Such certificate must be registered in the registry of deeds of the place where the property is situated. [Rule 39, Sec. 25]

How property sold on execution (See table on Service of summons upon different entities) PROCEEDINGS WHERE PROPERTY IS CLAIMED

BY THIRD PERSONS

IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND

REPLEVIN Remedies of a Third-Party Claimant (a) Summary hearing before the court which

authorized the execution (b) “Terceria” or third-party claim filed with the

sheriff (c) Action for damages on the bond posted by the

judgment creditor (d) Independent reivindicatory action The aforementioned are cumulative remedies and may be resorted to by a third-party claimant independently of or separately from and without need of availing of the others. [Sy v. Discaya (1990)] Rules regarding terceria (third-party claims) (asked in the 2000 & 2005 bar exams)

Apart from Rule 39, the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57, Sec. 14 on preliminary attachment and Rule 60, Sec. 7 on replevin.

Northern Motors v. Coquia (1975): The third party claimant CANNOT APPEAL NOR AVAIL OF

The third person whose property was levied on must make an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title. He must serve the same upon the officer making the levy and copy thereof upon the judgment obligee. The officer shall not be bound to keep the property as a general rule.

Sheriff is bound to keep the property when the judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on.

In case of disagreement as to such value of the bond, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed

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CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action.

Intervention by a third-party claimant whose property had been levied upon by the sheriff in the action from which the writ pursuant to which the levy was made was issued must be made before rendition of judgment by the trial court. He can no longer intervene once the trial court already issues a writ of execution. [Bautista] RULES ON REDEMPTION (a) There is no right of redemption where the

property sold at judicial sale is personal property. (b) Real property sold or any part thereof sold

separately, may be redeemed in the manner hereinafter provided, by the following persons: (1) The judgment obligor; or his successor in

interest in the whole or any part of the property;

(2) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold. Such redeeming creditor is termed a redemptioner. [Rule 39, Sec. 27]

(c) Redemption can be made by either:

(1) JUDGMENT OBLIGOR, within one year from the date of registration of the certificate of sale

(2) REDEMPTIONER, within one year from the date of registration of the certificate of sale; or within 60 days from the last redemption by another redemptioner.

(3) BUT IN ALL CASES, the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property.

(4) IF THE JUDGMENT OBLIGOR REDEEMS, no further redemption is allowed and he is restored to his estate.

(5) THE PERIOD FOR REDEMPTION IS NOT SUSPENDED by an action to annul the foreclosure sale.

(d) If the certificate of sale is not registered, the

period for redemption does not run [Garcia v. Ocampo (1959)]. But where parties agreed on the date of redemption, the statutory period for legal redemption was converted into one of conventional redemption and the period binding on them is that agreed upon. [Lazo v. Republic Surety & Insurance Co., Inc (1970)]

(e) The right of redemption is transferable and may be voluntarily sold [Gomez v. La Germinal (1918)] but said right cannot be levied upon by the judgment creditor. The creditor may not deprive the debtor of any further rights to the property [Lichauco v. Olegario (1922)]

(f) In effecting redemption, the mortgagor has the

duty of tendering payment (actual tender of payment of the redemption price) before the redemption period expires. [Banco Filipino Savings and Mortgage Bank v. CA (2005)] However, neither to make an offer to redeem nor to make tender of payment of the repurchase price is necessary when the right to redeem is exercised through the filing of a complaint to redeem. The filing of an action to redeem within that period is equivalent to a formal offer to redeem. [Vda. de Panaligan v. CA (1996)]

(g) Redemption price varies depending on who the

redemptioner is: (1) If judgment obligor: Purchase price

(i) 1 % interest thereon up to the time of redemption

(ii) Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate.

(iii) If the purchaser be also a creditor having prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest.

(2) If redemptioner: Amount paid on the last

redemption (i) 2% interest thereon. (ii) Any amount of assessments or taxes which

the last redemptioner may have paid thereon after redemption by him with interest on such last named amount;

(iii) Amount of any liens held by said last redemptioner prior to his own with interest

EFFECTS OF REDEMPTION [Rule 39, Sec. 29] (a) If the judgment obligor redeems he must make

the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate.

(b) The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take

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acknowledgments of conveyances of real property.

(c) Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale.

(d) The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale.

[Rule 39, Sec. 30] A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer (a) a copy of the judgment or final order under which

he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered, OR,

(b) if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds, OR

(c) an original or certified copy of any assignment necessary to establish his claim; AND

(d) an affidavit executed by him or his agent, showing the amount then actually due on the lien.

[Rule 39, Sec. 31] (a) Until the expiration of the time allowed for

redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice;

(b) but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property.

(c) The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant.

(d) All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. In all, the judgment debtor shall exercise the following rights: (1) Remain in possession of the property (2) He cannot be ejected;

(3) Use the property in the same manner it was previously used;

(4) Make Necessary repairs to buildings thereon while he occupies the property

(5) Use it in the ordinary course of husbandry (6) Collect rents, earnings and income derived

from the property until the expiration of period of redemption.

[Rule 39, Sec. 33] (a) If no redemption be made within one (1) year from

the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or,

(b) if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession;

(c) but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property.

(d) The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it.

(e) Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy.

(f) The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor.

RECOVERY OF PURCHASE PRICE AND REVIVAL OF

JUDGMENT: (a) A judgment co-debtor may compel a contribution

from the others: (1) When property liable to an execution against

several persons is sold thereon, and (2) more than a due proportion of the judgment

is satisfied out of the proceeds of the sale of the property of one of them, or

(3) one of them pays, without a sale, more than his proportion,

(b) A surety may compel repayment from the principal: When a judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale. [Section 35, Rule 39].

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EXAMINATION OF JUDGMENT OBLIGOR WHEN

JUDGMENT IS UNSATISFIED [Rule 39, Sec. 36] WHEN EXAMINATION MAY BE MADE Any time after a return, stating that the judgment remains unsatisfied, in whole or in part, is made HOW Court issued an order requiring the judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfactions of the judgment. Note: Judgment obligor may not be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found. EXAMINATION OF OBLIGOR OF JUDGMENT

OBLIGOR DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS

AFTER THE PROMULGATION OF FINAL AND EXECUTORY

JUDGMENT? Yes. See Secs. 36-38, Rule 39 [Bautista] REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION [Secs. 36-43] (Asked in the 2008 Bar Exam particularly steps to be taken if writ of execution is unsatisfied) (a) If the execution is returned unsatisfied, he may

cause the examination of the judgment debtor as to his property and income [Sec. 36] (asked in the 2002 bar exam)

(b) He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession [Sec. 37].

(c) If after examination, the court finds the property of the judgment debtor either in his own hands or that of any person, the court may order the property applied to the satisfaction of the judgment.

(d) A party or other person may be compelled by an order or subpoena to attend before the court or commissioner to testify as provided in sect 36-37. (1) if the court finds the earnings of the judgment

debtor are more than sufficient for his family’s needs, it may order payment in installments [Sec. 40]

(2) the court may appoint a receiver for the property of the judgment debtor not exempt

from execution or forbid a transfer or disposition or interference with such property [Sec. 41]

(3) if the court finds the judgment debtor had an ascertainable interest in real property either as mortgagor, mortgagee or otherwise, and his interest can be ascertained without controversy, the court may order a sale of such interest [Sec. 42].

(4) if the person alleged to have the property of the judgment debtor or be indebted to him, claims an adverse interest in the property or denies the debt, the court may authorize the judgment creditor to institute an action to recover the property, forbid its transfer and may punish disobedience for contempt [Sec. 43]

ENTRY OF SATISFACTION Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, (a) upon the return of a writ of execution showing the

full satisfaction of the judgment, or (b) upon the filing of an admission to the satisfaction

of the judgment executed and acknowledged in the same manner as a conveyance of real property by the judgment obligee or by his counsel

(c) UNLESS a revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee or his counsel, on the face of the record of the judgment. [Rule 39, Sec. 44]

Whenever a judgment is satisfied in fact, or otherwise than upon an execution on demand of the judgment obligor, (a) the judgment obligee or his counsel must execute

and acknowledge, or indorse an admission of the satisfaction as provided in the last preceding section,

(b) and after notice and upon motion the court may order either the judgment obligee or his counsel to do so, or may order the entry of satisfaction to be made without such admission. [Rule 39, Sec. 45]

EFFECT OF JUDGMENT OR FINAL ORDERS RES JUDICATA IN JUDGMENTS IN REM

Judgments or final order

Conclusive as to

Against a specific thing Title of the thing

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Judgments or final order

Conclusive as to

Probate of a will or administration of the estate of a deceased person

The will or administration. However, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;

IN RESPECT TO THE PERSONAL, political, or legal condition or status of a particular person or his relationship to another

Condition, status or relationship of the person,

RES JUDICATA IN JUDGMENTS IN PERSONAM In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto, conclusive: (a) between the parties and (b) their successors in interest, by title subsequent to

the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity.

CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES

(AUTER ACTION PENDANT) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

Bar by former judgment

(res judicata)

Conclusiveness of

judgment

There is identity of parties, subject matter and causes of action

Identity of parties and subject matter.

The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged.

The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Second action can be prosecuted.

REQUISITES OF RES JUDICATA (a) finality of the former judgment; (b) the court which rendered it had jurisdiction over

the subject matter and the parties

(c) it must be a judgment on the merits (d) there must be, between the first and second

actions, identity of parties, subject matter and causes of action [Perez v. CA (2005)]

RES JUDICATA V. “LAW OF THE CASE” V. STARE DECISIS

[Ayala Corporation V. Rosa-Diana Realty, (2000)] Res Judicata “Law of the

Case” Stare Decisis

The ruling in one case is carried over to another case between the same parties

Operates only in the particular and single case where the ruling arises and is not carried into other cases as a precedent

The ruling adhered to in the particular case need not be followed as a precedent in subsequent litigation between other parties

Once a point of law has been established by the court, that point of law will, generally, be followed by the same court and by all courts of lower rank in subsequent cases where the same legal issue is raised

ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENTS OR FINAL ORDERS EFFECT OF FOREIGN JUDGMENTS (Asked in the 2005 Bar Exam) (a) In case of a judgment or final order upon a

specific thing, the judgment or final order, is conclusive upon the title to the thing [Rule 39, Sec. 48]

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title [Rule 39, Sec. 48]

(c) In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact [Rule 39, Sec. 48]

(d) Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues, prevent harassment of the parties and avoid undue imposition on the courts.

(e) This policy of preclusion rests on principles of comity, utility and convenience of nations.

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(f) As a generally accepted principle of international law, it is part of the law of the Philippines by virtue of the Incorporation Clause [Section 2, Article II of the 1987 Constitution] [Regalado]

Provisional Remedies NATURE OF PROVISIONAL REMEDIES DEFINITION Writs and processes available during the pendency of the action which may be resorted to by a litigant for the preservation or protection of their rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case; also known as ancillary or auxiliary remedies. They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. [Calo v. Roldan (1946)] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. They may however be challenged before a superior court through a petition for certiorari under Rule 65. JURISDICTION OVER PROVISIONAL REMEDIES All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. [B.P. 129, Section 33] PRELIMINARY ATTACHMENT (Asked in the 2002 Bar Exam) DEFINITION A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case [Davao Light v CA ](1991) A preliminary attachment may be applied for (a) at the commencement of the action or (b) at any time before the entry of judgment. It may be applied for by the plaintiff OR any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint)

PURPOSES (a) To seize the property of the debtor in advance of

final judgment and to hold it for purposes of satisfying the said judgment.

(b) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [Quasha v. Juan (1982)]

GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT [Rule 57, Sec. 1] (Asked in 2001 and 2005)

There are only specific situations where preliminary attachment may issue: (a) Action for recovery of a specified amount of

money or damages, EXCEPT moral and exemplary, (1) on a cause of action arising from law, contract,

quasi-contract, delict, or quasi-delict (2) against a party who is about to depart from

the Philippines with intent to defraud his creditors;

(b) Action for money or property, embezzled or

fraudulently misapplied or converted to his own use by either: (1) a public officer, an officer of a corporation, an

attorney, factor, broker, agent, or clerk, in the course of his employment as such,

(2) OR by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) Action to recover the possession of property

unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

NOTE: rule makes no distinction between real and personal property [Riano]

(d) Action against a party who has been guilty of a

fraud in contracting the debt or incurring the obligation upon which the action is brought, OR in the performance thereof;

NOTE: the delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]

(e) Action against a party who has removed or

disposed of his property, or is about to do so, AND with intent to defraud his creditors; or

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(f) Action against a party who does not reside and is

not found in the Philippines, OR on whom summons may be served by publication.

Note: the rule also refers to persons on whom summons may be served by publication and against whose property, preliminary attachment may be availed of such as: (1) Residents defendants whose identity or whose

whereabouts are unknown [Rule 14, Sec. 14] (2) Resident defendants who are temporarily out

of the country [Rule 14, Sec. 16] Note: A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. [Equitable v. Special Steel (2012)] Stages in the grant of preliminary attachment (a) The court issues the order granting the

application (b) The writ of attachment issues pursuant to the

order granting the writ (c) The writ is implemented For the first two stages, jurisdiction over the person of the defendant is NOT necessary. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant. [Cuartero, supra] REQUISITES (a) Case must be any of those where preliminary

attachment is proper (b) Applicant must file a motion (ex parte or with

notice and hearing) (c) Applicant must show by affidavit (under oath)

that there is no sufficient security for the claim sought to be enforced;

(d) Applicant must post an attachment bond executed to the adverse party (Rule 57, Sec. 3)

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;

AFFIDAVIT AND BOND Issuance and contents of order of attachment [Rule 57, Sec. 2] An order of attachment may be issued EITHER (a) ex parte or (b) upon motion with notice and hearing

by the court in which the action is pending,

It must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order. The amount may be (a) sufficient to satisfy applicant’s demand, or (b) the value of the property to be attached,

exclusive of costs.

Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. Contents of affidavit of applicant [Rule 57, Sec. 3] An order of attachment shall be granted only when it appears in the affidavit that: (a) a sufficient cause of action exists (b) the case is one of those mentioned in Rule 57.1 (c) there is no other sufficient security for the claim

sought to be enforced by the action (d) the amount due to the applicant or the value of

the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims.

The affidavit and the bond must be filed with the court before the order issues. Condition of applicant’s bond [Rule 57, Sec. 4] Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay: (a) all the costs which may be adjudged to the

adverse party and (b) all damages which the adverse party may sustain

by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.

Note: the bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Riano]. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF

SUMMONS General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant. BUT a writ may not be implemented until jurisdiction over the person is acquired by service of summons. Otherwise, the implementation is null and void. [Riano]

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Exceptions to Contemporaneous Service of Summons: [Rule 57, Sec. 5] (a) Summons could not be served personally or by

substituted service despite diligent efforts, or (b) Defendant is a resident of the Philippines

temporarily absent therefrom, or (c) Defendant is a non-resident, or (d) The action is in rem or quasi in rem. Sheriff’s Return [Rule 57, Sec. 6] The sheriff, after enforcing the writ, shall make a return to the court which issued the writ stating the ff: (a) a full statement of his proceedings under the writ (b) a complete inventory of the property attached,

together with any counter-bond given by the party against whom attachment is issued

The sheriff shall serve copies of the return to the applicant. MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;

WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON Manner of attaching property [Rule 57, Sec. 5] The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand, UNLESS (a) Party against whom writ is issued makes a

deposit with the court from which the writ is issued, or

(b) He gives a counter-bond executed to the applicant

The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of: (a) summons (b) copy of complaint (c) application for attachment (d) affidavit and bond of applicant (e) order and writ of attachment. Manner of attachment of real and personal property [Rule 57, Sec. 7]: (a) Real property, or growing crops thereon, or any

interest therein (1) filing with the registry of deeds:

(i) a copy of the order, together with a description of the property attached,

(ii) notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached,

(2) leaving a copy of such order, description, and notice with the occupant of the property, if

any, or with such other person or his agent if found within the province.

Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof.

(b) Personal property capable of manual delivery by taking and safely keeping it in the sheriff’s custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares,

of any corporation or company by leaving with the president or managing agent thereof, (1) a copy of the writ, and (2) a notice stating that the stock or interest of

the party against whom the attachment is issued is attached in pursuance of such writ;

(d) Debts and credits, including bank deposits, financial

interest, royalties, commissions, and other personal property not capable of manual delivery by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, (1) a copy of the writ, and (2) A notice that the debts owing by him to the

party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ;

(e) Interest of the party whom attachment is issued in

property belonging to the estate of the decedent (1) by serving the executor or administrator or

other personal representative of the decedent with a copy of the writ and notice that said interest is attached and

(2) By filing a copy of the writ and notice in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.

Note: Property in custodia legis may be attached by:

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(a) filing a copy of the writ of attachment with the proper court or quasi-judicial agency

(b) Serving a notice of attachment upon the custodian of the property [Rule 57, Sec. 7]

A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano] Proceedings Where Attached Property Claimed By Third Person A third person who has a claim to the property attached may avail of the following remedies: (a) By terceria – making an affidavit of his title or

right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching procedure [Rule 57, Sec. 14]

Note: the same procedure under Rule 39, Sec. 16 is followed (b) Motion for summary hearing on his claim (c) File a separate action to nullify the levy with

damages due to the unlawful levy and seizure. The remedies stated are CUMULATIVE and any one of them may be resorted to without availing of the other remedies [Ching v. CA (2004)] Effects of attachment Attachment of debts, credits and all other similar personal property [Rule 57, Sec. 8] All persons (a) having in their possession or under their control

any credits or other similar personal property belonging to the adverse party, or

(b) owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment.

Garnishment.— A species of attachment for reaching the property or credits pertaining or payable to a judgment debtor (asked in the 1999 Bar Exams in comparison with Attachment). It is a warning to a person who has in possession property or credits of the judgment debtor not to pay the money nor deliver the property to latter but to appear and answer the plaintiff’s suit.

Perla Compania v. Ramolete, 1991: Service of summons upon the garnishee is not necessary. All that is necessary is the service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case.

Attachment of interest in property belonging to the estate of a decedent [Rule 57, Sec. 9] The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. When any petition for distribution is filed, such personal representative shall report the attachment to the court, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sale of attached property Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that (a) the party attached is perishable, or that (b) the interests of all the parties to the action will be

will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. [Rule 57, Sec. 11] NOTE: This is an exception to the general rule that the issuance of a writ of attachment is only a provisional remedy, thus no sale of the property should be made during the pendency of the action. [Riano] DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND Discharge of attachment After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. Grounds for discharge (a) Debtor has posted a counter-bond or has made

the requisite cash deposit [Rule 57, Sec. 12]; (b) Attachment was improperly or irregularly issued

[Rule 57, Sec. 13] as where there is no ground for

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attachment, or affidavit and/or bond filed therefore are defective or insufficient;

(c) Attachment is excessive but the discharge shall be limited to the excess [Rule 57, Sec. 13];

(d) Property attached is exempt from execution [Rule 57, Sec. 2 and Rule 57, Sec. 5];

(e) Judgment is rendered against the attaching creditor [Rule 57, Sec. 19].

SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED The sheriff may cause judgment to be satisfied out of the property attached if it be sufficient for that purpose in the following manner: (1) By paying to the judgment obligee the proceeds

off all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment;

(2) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those the clerk of the court;

(3) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits or debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. [Rule 57, Sec. 15]

Balance due collected upon an execution; excess delivered to the judgment obligor (a) If after realizing upon all the property attached,

including the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution.

(b) Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. [Rule 57, Sec. 16]

Recovery Upon the Counter-Bond; Disposition of Deposit/ Attached Property After Judgment (a) When the judgment has become executory, the

surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety

or sureties after notice and summary hearing in the same action. [Rule 57, Sec. 17]

(b) Where the party against whom attachment had

been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.

(c) If the judgment is in favor of the party against

whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. [Rule 57, Sec. 18]

(d) If judgment be rendered against the attaching

party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. [Rule 57, Sec. 19]

Improper, Irregular or Excessive Attachment (Asked in the 2008 bar exam) An application for damages must be filed before the trial, or before appeal is perfected, or before the judgment becomes executory. Such damages may be awarded only after hearing and shall be included in the judgment on the main case. [Rule 57, Sec. 20] Procedure for claiming damages is EXCLUSIVE. Such claims for damages cannot be the subject of an independent action. Exceptions: (a) Where the principal case was dismissed for lack

of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim; and

(b) Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. [Santos v. CA (1954)]

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PRELIMINARY INJUNCTION

DEFINITIONS AND DIFFERENCES: DRELIMINARY

INJUNCTION AND TEMPORARY RESTRAINING ORDER;

STATUS QUO ANTE ORDER

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to either (a) refrain from a particular act or acts or (b) require the performance of a particular act or

acts, in which case it shall be known as a preliminary mandatory injunction

A suit for injunction is an action in personam. It is an ancillary or preventive remedy that is meant to be temporary and subject to the final disposition of the principal action [Riano] Purpose To prevent future injury and maintain the status quo (i.e. the last actual, peaceable, uncontested status which preceded the pending controversy) for [Knecht v. CA, (1993)] Note: the injunction should not establish new relations between the parties but merely re-establish the pre-existing relationship between them. TRO vs. Injunction

TRO

Injunction

May be granted ex parte if great and irreparable injury would result otherwise

Cannot be granted without notice and hearing

(a) A TRO is issued in order to preserve the status

quo until the hearing of the application for preliminary injunction. [Bacolod City Water v. Labayen (2004)]

(b) Same requirements for application as preliminary

injunction. (c) An application for a TRO shall be acted upon only

after all parties are heard in a summary hearing, which shall be conducted within 24 hours after the sheriff's return of service and/or the records are received by the branch selected by raffle. [Rule 58, Sec.4]

Status Quo Order vs. Injunction (Asked in the 2006 bar exams) A status quo order is in the nature of a cease and desist order. It is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a temporary restraining order. It does NOT direct the doing or undoing of acts but is an order to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy. Status Quo Ante Order Directs the maintenance of the condition prevailing before the promulgation of the assailed decision. It has the nature of a TRO. [Dojillo v. COMELEC, 2006] REQUISITES Requirements for Preliminary Injunction [Rule 58, Sec. 4] (a) There must be a verified application (b) The application must show facts entitling the

applicant to the relief demanded.

It must establish he has a right and the act against which the injunction is directed is violative of such right [PNB v. Timbol (2005)]

(c) A bond must be filed, unless exempted, in the court where the action/proceeding is pending, in an amount to be fixed by the court (asked in the 2006 Bar exam)

(d) Prior notice and hearing for the party/person sought to be enjoined.

Exceptions: (a) Great or irreparable injury would result to the

applicant before the matter can be heard on notice. (1) The court may issue a TRO effective for 20

days from service on the party sought to be enjoined.

(2) Injury is “irreparable” if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy.

(b) Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury (1) Judge may issue ex parte a TRO effective for

72 hours from issuance.

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(2) Within 72 hours, judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard.

(3) Maximum period of effectivity of TRO = 20 days (including 72 hrs)

If the application for preliminary injunction is denied or not resolved within said period, the TRO is deemed automatically vacated. KINDS OF INJUNCTION Preliminary Preventive Injunction prohibits the performance of a particular act or acts

When preventive injunction does not lie (a) To restrain collection of taxes [Valley Trading v.

CA](1989), except where there are special circumstances that bear the existence of irreparable injury. [Churchill & Tait v. Rafferty (1915)]

(b) To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support. [Saavedra v. Estrada (1931)]

(c) To restrain a mayor proclaimed as duly elected from assuming his office. [Cereno v. Dictado (1988)]

(d) To restrain registered owners of the property from selling, disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. [Tayag v. Lacson (2004)]

(e) Against consummated acts. [PNB v. Adi (1982); Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]

Exception: If the act is of continuing nature and in derogation of plaintiff’s right at the outset.

(f) Against disposing of the case on the merits [Ortigas and Company Limited Partnership v. CA (1988)]

(g) To stop the execution of judgment where the judgment was already executed. [Meneses v. Dinglasan (1948)] Exception: But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit, which was instituted to prevent said execution, an independent petition for injunction in the Court of Appeals is justified. [Manila Surety and Fidelity v. Teodoro (1967)]

(h) The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. [Ambrosio v. Salvador (1978)]

(i) Transfer of possession of property to party with disputed legal title via preliminary injunction

Exceptions: (a) Forcible entry and unlawful detainer cases in

which the court may issue preliminary mandatory injunction [Rule 70, Sec. 15]

(b) Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. [GSIS v. Florendo(1989)]

Other instances where writ is not available: (a) Sec. 78, RA 9136: the implementation of the

provisions of the Electric Power Industry Reform Act of 2001 shall not be restrained or enjoined except by an order issued by the Supreme Court.

(b) Sec. 1, PD 605: no court of the Philippines shall

have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation, utilization, exploration, and/or development of the natural resources of the Philippines.

(c) Sec. 2, PD 385: no restraining order, temporary or

permanent injunction shall be issued by the court against any government financial institution in any action taken by such institution in compliance with the mandatory foreclosure whether such restraining order, temporary or permanent injunction is sought by the borrower(s) or any third party or parties, except after due hearing in which it is established by the borrower and admitted by the government financial institution concerned that twenty percent (20%) of the outstanding arrearages has been paid after the filing of foreclosure proceedings.

Preliminary Mandatory Injunction Requires the performance of a particular act or acts Requisites of mandatory injunction (a) Invasion of the right is material and substantial (b) Right of the complainant is clear and

unmistakable (c) Urgent and paramount necessity for the writ to

prevent serious damages [Bautista v. Barcelona (1957)]

(d) The effect would not be to create a new relation between the parties [Alvaro v. Zapata, (1982)]

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Mandatory injunction does not lie in the following instances: (a) to compel cohabitation [Arroyo v. Vasquez (1921)] (b) cancellation of attachment [Levy Hermanos v.

Lacson (1940)] (c) release imported goods pending hearing before

the Commissioner of Customs. [Commissioner of Customs v. Cloribel (1967)]

(d) to take property out of the possession or control of one party and place it into that of another whose title has not clearly been established [Pio v. Marcos (1974)]

Injunction

Prohibition

Generally directed against a party in the action

Directed against a court/tribunal/person exercising judicial powers

Does not involve the court’s jurisdiction

may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction

May be the main action itself, or just a provisional remedy in the main action

Always a main action

WHEN WRIT MAY BE ISSUED GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION [Rule 58, Sec. 3] (Asked in the 2006 bar exam) (a) Applicant is entitled to the relief demanded, and

the relief consists in (1) restraining the commission or continuance of

the acts or acts complained of, or (2) in requiring performance of an act or acts;

(b) Commission, continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant; or

(c) A party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

Rule 58 Provides for both a Main Action for Injunction and an Ancillary Writ of Preliminary Injunction (Asked in the 2006 Bar Exam)

Injunction

Preliminary injunction

Main action Ancillary; exists only as part or incident of an independent action or proceeding

seeks a judgment embodying a final injunction

sole object of which is to preserve the status quo until the merits can be heard

Based on all evidence gathered by court to determine main action

based solely on initial and incomplete evidence

As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. The evidence needed to establish the requisites for a preliminary injunction need not be conclusive or complete. It is generally based on initial, incomplete evidence that gives the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. . Note: It does not necessarily proceed that when a writ of preliminary injunction is issued, a final injunction will follow [Urbanes v. CA (2001)] GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION

OF INJUNCTION OR RESTRAINING ORDER Grounds for Objection to/Motion for Dissolution of Injunction/Restraining Order [Rule 58, Sec. 6] (a) Insufficiency of application (b) other grounds (e.g. applicant’s bond is

insufficient/defective), upon affidavits of the party or person enjoined

(c) if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof would cause irreparable damage to the party/person enjoined, while the applicant can be fully compensated for such damages as he may suffer, provided the former files a bond

If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.

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Global Injunction of a Foreign Court (Asked in the 2007 Bar Exam) A global injunction issued by a foreign court to prevent dissipation of funds against the defendant who has assets in the Philippines may be enforced in our jurisdiction, subject to our procedural laws (Suggested Answers to the 2007 Bar Exam, UP Law Center) As a general rule, no sovereign is bound to give effect within its dominion to a judgment or order of a tribunal of another country. However, under the rules of comity, utility and convenience, nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. [St. Aviation Services v. Grand International Airways (2006)] Note: In Pangalangan and Coquia’s book on Conflict of Laws (2000), citing Cheshire, it was stated that an interlocutory or provisional judgment of a foreign court, creates no obligation on the forum court to enforce it. DURATION OF A TEMPORARY RESTRAINING ORDER General rule: TRO is effective only for a period of 20 days from service on the party or person sought to be enjoined Exceptions: If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury: effective for only 72 hours from issuance [Rule 58, Sec.5]

Issued by:

Effectivity:

RTC 20 days, non-extendible (including the original 72 hours)

CA May be effective for 60 days from service on the party or person sought to be enjoined.

SC May be effective until further orders IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR

WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT

INFRASTRUCTURE PROJECTS Sec. 3, RA 8975: No court, except the Supreme Court, shall issue any TRO, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private acting under the government direction, to restrain, prohibit or compel the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location of any national government project;

(b) Bidding or awarding of contract/ project of the national government as defined under Section 2 hereof;

(c) Commencement prosecution, execution, implementation, operation of any such contract or project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party, including but not limited to cases filed by bidders or those claiming to have rights through such bidders involving such contract/project.

This prohibition shall NOT APPLY when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought. Any TRO, preliminary injunction, or preliminary mandatory injunction issued in violation of Sec. 3 is void and of no force and effect. [Sec 4] RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF

SUMMONS IN RELATION TO ATTACHMENT When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines. Exception: Where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. [Rule 58, Sec.4] The executive judge of a

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multiple-sala court or the presiding judge of a single sala court may issue ex parte a TRO effective for only 72 hours from ISSUANCE if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. However, he shall immediately comply with the provisions of Rule 38, Sec. 4 as to service of summons and the documents to be served therewith. [Rule 38, Sec. 5] RECEIVERSHIP (Asked in the 2001 Bar Exam) NATURE Receiver. person appointed by the court in behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation if it were left in the possession of any of the parties. PURPOSE The purpose of a receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. The receivership under Rule 59 is directed to the property which is the subject of the action and does not refer to the receivership authorized under banking laws and other rules or laws. Rule 59 presupposes that there is an action and that the property subject of the action requires its preservation. Receivership under Rule 59 is ancillary to the main action. (Riano).

Commodities Storage v. CA (1997): The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted. Arranza v. B.F. Homes (2000): Receivership is aimed at the preservation of, and at making more secure, existing rights; it cannot be used as an instrument for the destruction of those rights.

CASES WHEN RECEIVER MAY BE APPOINTED (a) When it appears from the verified application and

other proof that the applicant has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or

dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. [Rule 59, Sec. 1]

Specific situations when a receiver may be appointed (a) If a spouse without just cause abandons the other

or fails to comply with his/her obligations to the family, the aggrieved spouse may petition the court for receivership. [Family Code, Article 101]

(b) The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. [Rule 39, Sec. 41]

(c) After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal. [Rule 41, Sec. 9; Acuña v. Caluag (1957)]

(d) After final judgment, a receiver may be appointed as an aid to the execution of judgment. [Philippine Trust Company v. Santamaria (1929)]

(e) Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances, as when it is reasonably necessary to secure and protect the rights of the real owner. [Dolar v. Sundiam (1971)]

Alcantara v. Abbas (1963): The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other because a receiver is supposed to be an impartial and disinterested person. Abrigo v. Kayanan (1983): A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.

REQUIREMENTS BEFORE ISSUANCE OF AN ORDER Requisites and Procedure (a) Verified application filed by the party requesting

for the appointment of the receiver;

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(b) Applicant must have an interest in the property or funds subject of the action;

(c) Applicant must show that the property or funds is in danger of being lost, wasted, or dissipated;

(d) Application must be with notice and must be set for hearing;

(e) Before appointing a receiver, the court shall require applicant to post a bond in favor of the adverse party. When the receiver is appointed, the receiver shall file a bond then take his oath.

(f) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully.

Who appoints receiver (a) Court where the action is pending (b) CA (c) SC (d) During the pendency of an appeal, the appellate

court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. [Rule 59, Sec. 1]

Denial of application or discharge of receiver (a) If the appointment sought or granted is without

sufficient cause (b) Adverse party files a sufficient bond to answer for

damages [Rule 59, Sec. 3] (c) Bond posted by the applicant for grant of

receivership is insufficient (d) Bond of receiver is insufficient POWERS OF A RECEIVER (a) Bring and defend in such capacity actions in his

own name with leave of court (b) Take and keep possession of the property in

controversy (c) Receive rents (d) Collect debts due to himself as receiver or to the

fund, property, estate, person, or corporation of which he is the receiver

(e) Compound for and compromise the same (f) Make transfers (g) Pay outstanding debts (h) Divide the money and other property that shall

remain among the persons legally entitled to receive the same’

(i) Generally, to do such acts respecting the property as the court may authorize

(j) Invest funds in his hands, ONLY by order of the court upon the written consent of all the parties. [Rule 59, Sec. 6]

No action may be filed against a receiver without leave of the court which appointed him.

Liability for refusal or neglect to deliver property to receiver (a) Contempt; and (b) Be liable to the receiver for the money or the

value of the property and other things so refused or neglected to be surrendered together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. [Rule 59, Sec. 7]

TWO (2) KINDS OF BOND (a) Applicant’s bond (b) Receiver’s bond TERMINATION OF RECEIVERSHIP

Ground The necessity for a receiver no longer exists Procedure (a) Motu proprio or on motion of either party (b) Notice to all interested parties and hearing [Rule

59, Sec. 8] Effect (a) Settle accounts of receiver (b) Delivery of funds to person entitled (c) Discharge of receiver (d) Receiver entitled to reasonable compensation to

be taxed as costs against defeated party. REPLEVIN (Asked in the 1999 Bar Exam) WHEN MAY WRIT BE ISSUED Nature Replevin may be a main action or provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is considered as a suit in itself. Replevin under Rule 60 is the provisional remedy. [Riano]

Replevin

Preliminary Attachment

Available only where the principal relief sought in the action is recovery of personal property, the other reliefs (e.g. damages) being merely incidental thereto.

Available even if the recovery of personal property is only an incidental relief sought in the action.

Can be sought only where the defendant is in actual or constructive possession of the personalty involved.

May be resorted to even if the personalty is in the custody of a third person.

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Replevin

Preliminary Attachment

Extends only to personal property capable of manual delivery.

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

Available to recover personal property even if the same is not concealed, removed or disposed of.

To recover the possession of personal property unjustly detained (presupposed that the same is being concealed, removed or disposed of to prevent its being found or taken by the applicant.

Cannot be availed of if the property is in custodia legis (e.g. under attachment, seized under a search warrant). Except: (a) when the seizure is

illegal; [Bagalihog v. Fernandez (1991)] and

(b) where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims. [Chua v. CA (1993)]

Can still be resorted to even if the property is in custodia legis.

REQUISITES Application Who may apply: party praying for the recovery of possession of personal property. Applicant need not be the owner. It is enough that he has right to its possession. [Yang v. Valdez (1989)] When: (a) at the commencement of the action or (b) before the answer [unlike attachment, injunction

and support pendente lite (anytime before final judgment) and receivership (anytime even after final judgment)].

AFFIDAVIT AND BOND; REDELIVERY BOND (a) The applicant must show by his own affidavit or

that of some other person who personally knows the facts:

(b) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

(c) That the property is wrongfully detained by the adverse party, alleging the cause of detention

thereof according to the best of his knowledge, information, and belief;

(d) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(e) The actual market value of the property. [Rule 60, Sec. 2]

Bond The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit. [Rule 60, Sec.2] Redelivery bond The adverse party may, at any time before the delivery of the property to the applicant, require the return of the property by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit. [Rule 60, Sec. 5] Order of Replevin Upon the filing of affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. [Rule 60, Sec. 3] A writ of replevin may be served anywhere in the Philippines.

SHERIFF’S DUTY IN THE IMPLEMENTATION OF THE WRIT;

WHEN PROPERTY IS CLAIMED BY THIRD PARTY Disposition of Property by Sheriff (a) The sheriff shall retain the property for 5 days.

The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond.

(b) If after 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. [Rule 60, Sec. 6]

(c) The defendant is entitled to the return of the property under a writ of replevin if: (1) He seasonably posts a redelivery bond [Rule

60, Sec. 5] (2) Plaintiff’s bond is found to be insufficient or

defective and is not replaced with proper bond (3) Property is not delivered to the plaintiff for any

reason [Rule 60, Sec. 6] Where Property Claimed by Third Person

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When third party claims the property and such person makes affidavit of his title thereto stating his grounds, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy upon the applicant, the sheriff SHALL NOT BE BOUND to keep property under replevin or deliver property to the applicant UNLESS the applicant files a bond approved by the court in favor of the third person (the bond should not be less than the value of stated under Sec. 60, Sec. 2; the court shall determine the value in case of disagreement). No claim for damages for the taking or keeping of the property may be enforced against the bond UNLESS the action is filed within 120 days from filing of the bond.

Special Civil Actions NATURE OF SPECIAL CIVIL ACTIONS Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter. [Rule 1, Sec. 3] Since a civil action in general is one by which a party sues another for the enforcement of a right, or the prevention or redress of a wrong, a special civil action is generally brought or filed for the same purpose. [Riano]

HOW COMMENCED: (A) COMPLAINT

(1) interpleader (2) expropriation (3) foreclosure of real estate mortgage (4) partition (5) forcible entry and unlawful detainer

(B) PETITION (6) declaratory relief (7) review of adjudications of Constitutional

commissions (8) certiorari (9) prohibition (10) mandamus (11) quo warranto (12) contempt

Writs of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions. [B.P. 129, Section 21]

ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL

ACTIONS The fact that an action is subject to special rules other than those applicable to ordinary civil actions is what makes a civil action special. [Riano]

Ordinary Civil Action Special Civil Action Governed by ordinary rules

Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71)

Some concepts applicable to ordinary civil actions are not applicable in special civil actions. E.g.: (a) the definition of a cause of action requiring

violation of a right does not appear to be relevant to the special civil action of declaratory relief and interpleader;

(b) ordinary civil actions may be filed initially in MTC or RTC depending on jurisdictional amount while some special civil actions can only be filed in MTC (forcible entry and unlawful detainer) and some cannot be commenced in MTC (certiorari, prohibition, mandamus). [Riano]

JURISDICTION AND VENUE Venue is governed by the general rules on venue, except as otherwise indicated in the particular rules for special civil actions. 3 special civil actions within the jurisdiction of inferior courts: (a) interpleader, provided the amount involved is

within its jurisdiction [Makati Development Corp. v. Tanjuatco (1969)]

(b) ejectment suits [Rule 70] (c) contempt [Rule 71] INTERPLEADER DEFINITION A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially, without claiming any right in both, comes to court and asks that the defendants who have made conflicting claims upon the same property or who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine who is entitled to the property or payment or the obligation [Beltran v. PHHC, (1969)] PURPOSE (a) To compel conflicting claimants to interplead and

litigate their several claims among themselves. [Rule 62, Sec. 1]

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(b) To protect a person against double vexation in respect of one liability [Beltran, supra]

REQUISITES FOR INTERPLEADER (a) There must be two or more claimants with

adverse or conflicting interests to a property in the custody or possession of the plaintiff.

(b) The plaintiff has NO CLAIM upon the subject matter of the adverse claims, or if he has an interest at all, such interest is NOT DISPUTED by the claimants.

(c) The subject matter of the adverse claims must be one and the same.

Procedure

WHEN TO FILE Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants. [Rule 62, Sec. 1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants, which should be resolved in an ordinary action for specific performance or other relief [Beltran, supra]. DECLARATORY RELIEFS AND SIMILAR REMEDIES WHO MAY FILE THE ACTION (a) a person interested under a deed, will, contract or

other written instrument (b) a person whose rights are affected by a statute,

executive order or regulation, ordinance or any other governmental regulation [Rule 63, Sec. 1]

Complaint filed by the person against whom conflicting claims are or may be made. [ibid] The docket and other lawful fees paid by the complainant, and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action, unless otherwise ordered by the court. [Rule 62, Sec. 7]

Court order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct that the subject matter be paid or delivered to the court. [Rule 62, Sec. 2]

Summons, copy of complaint and order served upon the conflicting claimants. [Rule 62, Sec. 3]

Each claimant shall file his answer within 15 days from service of the summons, serving a copy thereof upon each of the other conflicting claimants, who may file their reply thereto.

If claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and render judgment barring him from any claim in respect to the subject matter.

Within the time for filing an answer, each claimant may file a motion to dismiss. Grounds: (a) impropriety of the interpleader action, or (b) other appropriate grounds specified in

Rule 16 The period to file the answer shall be tolled.

If the motion is denied, an answer may be filed within the remaining period, in no case less than 5 days (reckoned from notice of denial) [Rule 62, Sec. 4].

The parties may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto. [Rule 62, Sec. 5]

Pre-trial

Court shall determine conflicting claimants’ respective rights and adjudicate their several claims. [Rule 62, Sec. 6]

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Parties (a) all persons who have or claim any interest which

would be affected by the declaration [Rule 63, Sec. 2]

(b) If action involves the validity of a statute/executive order/regulation/other governmental regulation, the Solicitor General shall be notified. [Rule 63, Sec. 3]

(c) If action involves the validity of a local government ordinance, the prosecutor/attorney of the LGU involved shall be notified. [Rule 63, Sec. 4]

Subject Matter Notice Given To

Validity of a statute, EO or regulation, or any governmental regulation

Sol Gen

Validity of a local government ordinance

Prosecutor or attorney of the LGU

Constitutionality of a local government ordinance

Sol Gen

Baguio Citizens Action v. City Council of Baguio (1983): Non-joinder of interested persons is not a jurisdictional defect; but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules. Commission of Customs v. Cloribel (1977): A third-party complaint is not available in a declaratory relief. Visayan Packing v. Reparations Commission (1987): A compulsory counterclaim may be set up in a petition for declaratory relief.

Where filed (a) in the proper RTC [Rule 63, Sec. 1] (b) not within the original jurisdiction of the Supreme

Court, even if pure questions of law are involved. [Remotigue v. Osmeña (1967)]

REQUISITES OF ACTION FOR DECLARATORY RELIEF (a) subject matter of the controversy must be a deed,

will, contract or other written instrument, statute, executive order or regulation, or ordinance [Rule 63, Sec. 1];

(b) the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v. Aquino (1953)]

(c) no breach of the documents in question. [Reparations Commission v. Northern Lines (1970)] Otherwise, an ordinary civil action is the remedy. (1) Concept of a cause of action in ordinary civil

actions does not apply.

(2) If before the final termination of the case, a breach or violation of an instrument or a statute, etc. should take place, the action may be converted into an ordinary action. [Rule 63, Sec. 6]

(d) actual justiciable controversy [Velarde v. SJS (2004)]

(e) adverse interests between the parties

A declaratory relief is not available for a declaration of citizenship [Villa-Abrille v. Republic (1956)] or the validity of a registration certificate [Obiles v. Republic (1953)] as they are unilateral in nature and without conflicting adverse interests.

(f) issue must be ripe for judicial determination [Velarde v. SJS (2004)]

(g) adequate relief is not available through other means or other forms of action or proceedings. [Ollada v. Central Bank (1962)]

A court decision cannot be the subject of a declaratory relief since there exists other remedies, i.e., appeal or a motion for clarificatory judgment [Tanda v. Aldaya (1956)]

WHEN COURT MAY REFUSE TO MAKE JUDICIAL

DECLARATION (a) where a decision would not terminate the

uncertainty or controversy which gave rise to the action, or

(b) where the declaration or construction is not necessary and proper under the circumstances. [Rule 63, Sec. 5]

CONVERSION TO ORDINARY ACTION Requisites (a) before the final termination of the case (b) a breach or violation of an instrument or a

statute, executive order or regulation, ordinance, or any other governmental regulation should take place

Effect The parties shall be allowed to file such pleadings as may be necessary or proper. [Rule 63.6]

PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES Reformation of an instrument [Arts. 1359-1369 Civil Code] Definition Art. 1359, Civil Code. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one

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of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. Art.1369, Civil Code. The procedure for the reformation of instrument shall be governed by rules of court to be promulgated by the Supreme Court Consolidation of ownership [Art. 1607 Civil Code] [Rule 63, Sec. 1(2)] Definition Art. 1607, Civil Code. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. Quieting of title to real property [Arts. 476-481 Civil Code] Definition Art. 476, Civil Code. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. Art. 481, Civil Code. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgated. REVIEW OF JUDGMENTS AND FINAL ORDERS OR

RESOLUTION OF THE COMELEC AND COA SCOPE (a) Applicable only to judgments and final orders of

the COMELEC and COA [Rule 64, Sec. 1] (b) Judgments/orders of the Civil Service

Commission are now reviewable by the Court of Appeals under Rule 43, eliminating recourse to the Supreme Court (SC). [RA 7902; SC Revised Administrative Circular No. 1-95]

(c) An aggrieved party may bring the questioned judgment, etc. directly to the SC on certiorari under Rule 65. [Rule 64, Sec. 2]

Such petition for certiorari shall not stay the execution of the judgment, etc. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64, Sec. 8] PROCEDURE See next page.

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File a petition for review. When [Rule 64, Sec. 3]: (a) Within 30 days from notice of judgment/final

order/resolution sought to be reviewed (b) Filing of motion for reconsideration/new trial with

Constitutional commission interrupts the 30-day period. If motion is denied, aggrieved party may file petition within remaining period, which shall not be less than 5 days from notice of denial.

Form [Rule 64, Sec. 5]: verified and accompanied by (annexes): (a) a clearly legible duplicate original or certified true

copy of the subject judgment, etc. (b) certified true copies of such material portions of

the record referred to in the petition (c) other documents relevant and pertinent to the

petition (d) proof of service of a copy of the petition on the

Commission and the adverse party (e) proof of the timely payment of the docket and

other lawful fees in one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies. (containing plain copies of all documents attached to the original copy of the petition) Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court’s e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. [Efficient Use of Paper Rule, Section 5] Contents [Rule 64, Sec. 5]: (a) name of aggrieved party (petitioner) (b) respondents: Commission concerned and

person(s) interested in sustaining the judgment a quo

(c) facts (d) issues involved (e) grounds and brief arguments relied upon for

review (f) prayer for judgment annulling or modifying the

question judgment, etc. (g) material dates showing that it was filed on time (h) certification against non-forum shopping Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable. Failure to comply with foregoing requirements shall be sufficient ground for dismissal.

Order to Comment [Rule 64, Sec. 6] If the SC finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within 10 days from notice thereof. Grounds for dismissal: (a) Petition not sufficient in form and substance (b) Petition was filed manifestly for delay (c) the questions raised are too unsubstantial to

warrant further proceedings.

Comments of Respondents [Rule 64, Sec. 7] Requirements: (a) original copy with certified true copies of

material portions of the record as are referred to in the comment and certified true copies of other supporting papers

(b) one original (properly marked) and four copies, unless the case is referred to the Court En Banc, in which event, the parties shall file ten additional copies (with plain copies of all documents attached to the original)

Parties to cases before the Supreme Court are further required, on voluntary basis for the first six months following the effectivity of this Rule and compulsorily afterwards unless the period is extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their annexes (the latter in PDF format) either by email to the Court’s e-mail address or by compact disc (CD). This requirement is in preparation for the eventual establishment of an e-filing paperless system in the judiciary. [Efficient Use of Paper Rule, Section 5]

Copy of the comment shall be served on the petitioner.

Decision [Rule 64, Sec. 9] Case is deemed submitted for decision upon: (a) filing of the comments on the petition, and such

other pleadings or papers as may be required or allowed.

(b) expiration of the period to file the pleadings. Exceptions: SC sets the case for oral argument or requires parties to submit memoranda.

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Application of Rule 65 under Rule 64 DISTINCTION IN THE APPLICATION OF RULE 65 TO

JUDGMENTS OF THE COMELEC AND COA AND THE

APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS

AND OFFICERS

Rule 64

Rule 65

Directed only to the judgments, final orders or resolutions of COMELEC and COA

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

Filed within 30 days from notice of the judgment

Filed within 60 days from notice of the judgment

The filing of a MR or a Motion for New Trial if allowed, interrupts the period for the filing of the petition for certiorari. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days reckoned from the notice of denial.

The period within which to file the petition if the MR or new trial is denied, is 60 days from notice of the denial of the motion.

CERTIORARI, PROHIBITION AND MANDAMUS The original action of certiorari is not a substitute for appeal. [Lobite v. Sundiam (1983)] Exceptions: (a) appeal is not a speedy and adequate remedy

[Salvadores v. Pajarillo (1947)] (b) the orders were issued either in excess of or

without jurisdiction [Aguilar v. Tan (1970)] (c) special considerations, i.e., public welfare or

public policy [Jose v. Zulueta (1961)] (d) the order is a patent nullity [Marcelo v. De

Guzman (1982)] (e) the decision in the certiorari case will avoid future

litigations [St. Peter Memorial Park v. Campos (1975)]

(f) when the broader interest of justice so requires [Mendez v. CA (2012)]

(g) when the writs issued are null and void [Mendez v. CA (2012)]

(h) when the questioned order amounts to an oppressive exercise of judicial authority [Mendez v. CA (2012)]

The requirement in Section 1 of Rule 65 of the Rules of Court to attach relevant pleadings to the petition

is read in relation to Section 3, Rule 46, which states that failure to comply with any of the documentary requirements, such as the attachment of relevant pleadings, “shall be sufficient ground for the dismissal of the petition.” [Radio Philippines Network v. Yap (2012)] Note: (In the 2005 and 2008 Bar Exams, bar examinees were asked to compare Petition for review on Certiorari and Certiorari) Certiorari

Suarez v. NLRC (1998): Questions of fact cannot be raised in an original action for certiorari. Only established or admitted facts may be considered. Medran v. CA (1949): Findings of fact of CA are not binding upon SC in an original action for certiorari. Republic v. St. Vincent de Paul (2012): Time for filing: Under Section 4, Rule 65 of the Rules of Court and as applied in Laguna Metts Corporation, the general rule is that a petition for certiorari must be filed within sixty (60) days from notice of the judgment, order, or resolution sought to be assailed. Under exceptional circumstances, however, and subject to the sound discretion of the Court, said period may be extended

Prohibition Prohibition is a preventive remedy. However, to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ, the petitioner should obtain a restraining order and/or writ of preliminary injuction. [Regalado]

Enriquez v. Macadaeg (1949) : Prohibition is the remedy where a motion to dismiss is improperly denied.

Mandamus A writ of mandamus will not issue to control the exercise of official discretion or judgment, or to alter or review the action taken in the proper exercise of the discretion of judgment, for the writ cannot be used as a writ of error or other mode of direct review. However, in extreme situations generally in criminal cases, mandamus lies to compel the performance of the fiscal of discretionary functions where his actuations are tantamount to a wilful refusal to perform a required duty. [Regalado] General rule: In the performance of an official duty or act involving discretion, such official can only be

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directed by mandamus to act but not to act in one way or the other. Exception: gross abuse of discretion, manifest injustice, palpable excess of authority [Kant Wong v. PCGG (1987)] Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. HOWEVER, if the question is one of public right, it is sufficient to show that the petitioner is a citizen. [Tanada v. Tuvera (1985)] WHEN PETITION FOR CERTIORARI, PROHIBITION AND

MANDAMUS IS PROPER See Annex F. Procedure

FILE PETITION FOR CERTIORARI/ PROHIBITION / MANDAMUS.

When filed: (a) Not later than 60 days from notice of

judgment/order/resolution (b) If a motion for reconsideration/new trial

is filed, the 60-day period shall be counted from notice of denial of motion.

(c) Extension may be granted for compelling reasons, not exceeding 15 days. [Rule 65, Sec. 4]

Where filed: (a) Supreme Court (b) Court of Appeals

If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules.

(c) Regional Trial Court, if it relates to acts / omissions of a lower court / corporation / board / officer / person.

Sandiganbayan, if it is in aid of its appellate jurisdiction. [Rule 65, Sec. 4]

ORDER TO COMMENT If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. [Rule 65, Sec. 6]

HEARING OR MEMORANDA After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. [Rule 65, Sec. 8]

JUDGMENT If after such hearing or submission of memoranda or the expiration of the period for the filing thereof, the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be (1) patently without merit, (2) prosecuted manifestly for delay, or that (3) the questions raised therein are too unsubstantial to require consideration. [Rule 65, Sec. 8]

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INJUNCTIVE RELIEF Rule 65, Sec. 7 provides for the issuance of a temporary restraining order, and not only for a writ of preliminary injunction, but such order shall be subject to the rules on the grounds and duration thereof. [Regalado]

CERTIORARI DISTINGUISHED FROM APPEAL BY

CERTIORARI; PROHIBITION AND MANDAMUS

DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO

FILE PETITION Certiorari Distinguished From Appeal

Certiorari Appeal Proper to correct errors of jurisdiction committed by lower courts, grave abuse of discretion which is tantamount to lack of jurisdiction

Proper where error is not one of jurisdiction but an error of law or fact which is a mistake of judgment

Certiorari invokes original jurisdiction of the court

Appeal when filed invokes the appellate jurisdiction of the court

Within 60 days from notice of judgment, order or resolution

Filed within period of appeal

An original and independent action

Continuation of the original case

Impleads the tribunal, court, board or officer

Parties to an appeal are the original parties of the case

Prohibition Distinguished From Injunction

Prohibition Injunction Directed to the court or tribunal directing it to refrain from the performance of acts which it has no jurisdiction to perform

Directed against a party to the action

Mandamus Distinguished From Injunction Mandamus Injunction

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

Directed against a litigant

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

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

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

Purpose is to prevent an act to maintain the status quo between the parties

EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION

BEFORE FILING PETITION General rule: A motion for reconsideration must first be availed of before certiorari – to enable the lower court to correct its mistakes without the intervention of the lower courts. [BA Finance v. Pineda (1982)] Exceptions: (a) the order is a patent nullity [Vigan Elec. Light v.

Public Service Commission (1964)] (b) the questions raised in the certiorari have been

duly raised and passed upon by the lower court [Fortich-Celdran v. Celdran (1967)] or are the same as those raised and passed upon in the lower court [Pajo v. Ago (1960)]

(c) there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government [Vivo v.Cloribel (1966)]

(d) the MR would be useless [People v. Palacio (1960)]

(e) the petitioner was deprived of due process and there is extreme urgency for relief [Luzon Surety v. Marbella (1960)]

(f) the proceeding was ex parte in which the petitioner had no opportunity to object [Republic v. Maglanoc (1963)]

(g) the issue raised is purely a question of law or where the public interest is involved [PALEA v. PAL (1982)]

RELIEFS PETITIONER IS ENTITLED TO Petitioner may be entitled to: (a) Injunctive relief – Court may may issue orders

expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties [Rule 65, Sec. 7]

(b) Incidental reliefs as law and justice may require [Rule 65, Secs. 1 and 2]

(c) Other reliefs prayed for or to which the petitioner is entitled [Rule 65, Sec. 8]

SERVICE AND ENFORCEMENT OF ORDER OR JUDGMENT

A certified copy of the judgment rendered shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. [Rule 65, Sec. 9]

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FACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES Jurisdiction in Election Cases [Omnibus Election Code, Sec. 268]: RTC: has the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Omnibus election Code Exception: those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie the same as in other criminal cases. Note: RA 7691 which expanded the jurisdiction of the MTC, did not divest the RTC of its jurisdiction over the said offenses, even if the imposable penalty is not more than 6 years of imprisonment [COMELEC v. Noynay (1998)] WHERE TO FILE PETITION [Rule 65, Sec. 4] The petition shall be filed: (a) In the SC; or (b) In the RTC exercising jurisdiction over the

territorial area , if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person;

(c) In the CA, whether or not the same is in aid of its appellate jurisdiction; or

(d) In the Sandiganbayan, if it is in aid of its appellate jurisdiction.

Note: If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the CA. EFFECTS OF FILING OF AN UNMERITORIOUS PETITION [Rule 65, Sec. 8] The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. QUO WARRANTO Quo warranto is the remedy to try disputes with respect to the title to a public office.

DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS

ELECTION CODE ROC Rule 66 OEC Sec. 253

Filed by whom Solicitor General or Public Prosecutor in behalf of the Republic; Individual

Any voter

Where filed By SolGen: RTC Manila, CA or SC; Otherwise, RTC with jurisdiction over territorial area where respondent resides, CA or SC

COMELEC, if against election of a Member of Congress, Regional, Provincial or City Officer; appropriate RTC or MTC, if against a municipal or barangay officer

Period for filing Within 1 year from ouster, or from the time the right to the position arose

Within 10 days after proclamation of results

Against whom, grounds A person, who usurps, intrudes into or unlawfully holds or exercises a public office, position or franchise; A public officer, who does or suffers an act which, by provision of law, constitutes a ground for forfeiture of office

Ineligibility or disloyalty to the Republic

How commenced By a verified petition [Rule 66, Sec. 1] WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST

INDIVIDUALS (a) By Government, brought in the name of the

Republic of the Philippines, against: (1) A person who usurps, intrudes into, or

unlawfully holds or exercises a public office, position or franchise

(2) A public officer who does not or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office

(3) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act [Rule 66, Sec. 1]

(b) When Solicitor General or public prosecutor

MUST commence action: (1) When directed by the President of the

Philippines.

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(2) When upon complaint or otherwise, he has good reason to believe that any case specified in Sec. 1 can be established by proof. [Rule 66, Sec. 2]

(c) When Solicitor General or public prosecutor MAY

commence action: (1) with permission of the court (2) at the request and upon the relation of

another person (3) Officer bringing such action may first require

an indemnity for the expenses and costs of the action in an amount approved by and deposited in court. [Rule 66, Sec. 3]

WHEN INDIVIDUAL MAY COMMENCE AN ACTION By a person claiming to be entitled to a public office or position, brought in his own name, against another who usurped or unlawfully held or exercised such public office or position [Rule 66, Sec. 5] JUDGMENT IN QUO WARRANTO ACTION When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position, or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator recover his costs. [Rule 66, Sec. 9]

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC

OFFICE If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. [Rule 66, Sec. 10] EXPROPRIATION MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION The complaint for expropriation must be VERIFIED. Contents: (a) The right and purpose of expropriation (b) Description of the real or personal property

sought to be expropriated; (c) The complaint shall join as defendants all

persons owning or claiming to own, or occupying

any part thereof or any interest therein, showing as far as practicable the separate interest of each defendant.

(d) The following must be clearly stated in the complaint , if applicable: (1) If the title to any property sought to be

expropriated appears to be in the Republic of the Philippines, although occupied by private individuals;

(2) If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. [Rule 67, Sec. 1]

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. These orders are final and therefore appealable. [Municipality of Biñan v. Garcia (1989)] It includes an inquiry into the propriety of the expropriation – its necessity and public purpose. [Riano] Determination of just compensation. This is done with the assistance of not more than three (3) commissioners. The order fixing just compensation is also final and appealable (Ibid). Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint, whichever comes first.

Ansaldo v. Tantuico (1990): There is taking when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. Bardillon v. Bgy. Masili (2003): An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of RTCs, regardless of the value of the subject property.

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WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO

POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA

8974

Sec. 4. of RA 8974 otherwise known as “An Act to facilitate the acquisition of right-of-way, site or location for national government infrastructure projects and for the purposes”: [w]henever it is necessary to acquire real property for the right-of-way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines: (a) Upon the filing of the complaint, and after due

notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100% of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof;

(b) In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal valuation for said area; and

(c) In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof.

Upon compliance with the guidelines above-mentioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. Riano opines that Sec. 2 of Rule 67 is deemed modified by RA 8974. He noted the following differences:

Rule 67 RA 8974

Before issuance of writ of possession

Upon filing of the complaint

Expropriation proceedings initiated by the national government

Right-of-way, site or location of national government infrastructure projects

Initial deposit with an authorized government

Immediate payment to the property owner

Rule 67 RA 8974 depositary Amount for deposit equivalent to 100% assessed value of the property for purposes of taxation.

Amount to be paid is: 100% of the value of

the land as stated in the tax declaration or current zonal valuation, whichever is higher, and the value of improvements, OR

in the case of utmost urgency, the proffered value of the property to be seized

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST

COMPENSATION See table of comparison under the preceding subsection, column of RA 8974.

DEFENSES AND OBJECTIONS

No Objection Or Defense To The Taking

Has Objection Or Defense To The Taking

What to file and serve

Notice of appearance and manifestation

Answer to the complaint

Period to file

Time stated in the summons

Contents

Manifestation to the effect that he has no objection or defense; Specifically designating/identifying the property in which he claims to be interested

Specifically designating/identifying the property in which he claims to have an interest in and the nature and extent of the interest; ALL his objections and defenses to the complaint or any allegation therein

Prohibited

Counterclaim, cross-claim, third party complaint in any pleading

A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. A defendant waives all defenses and objections not so alleged, but the court, in the interest of justice,

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may permit amendments to the answer not to be made later than ten (10) days from filing thereof. At the trial of the issue of just compensation, whether the defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. [Rule 66, Sec. 3]

ORDER OF EXPROPRIATION It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint, upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier. It is issued by the court in which the complaint for expropriation is filed when: (a) objections or defenses of the defendant have

been overruled, or (b) the defendant raised no such defense or

objection, or (c) No party appears to defend. [Rule 67, Sec. 4]

ASCERTAINMENT OF JUST COMPENSATION Just Compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. Determined as of the date of taking of the property, or the filing of the complaint, whichever came first. [Rule 67, Sec. 4] The measure is not the taker’s gain, but the owner’s loss. To compensate is to render something which is equal in value to that taken or received. The word “just” is used to intensify the meaning of the word “compensation”; to convey the idea that the equivalent to be rendered for the property taken shall be real, substantial, full, and ample. In eminent domain or expropriation proceedings, the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. Market Value Is “that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefore.” [BPI v. CA (2004)] Upon the rendition of the order of expropriation, the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain

and report to the court the just compensation for the property sought to be taken. [Rule 67, Sec. 5]

APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S

REPORT; COURT ACTION UPON COMMISSIONER’S REPORT

Order of appointment to be served on the parties. Objections to the appointment of any of the commissioners shall be filed in court within ten (10) days, and shall be resolved within thirty (30) days after all the commissioners have received copies of the objections. Powers and duties of commissioners: (a) Parties can present evidence before the

commissioners and the latter have the power to administer oaths or hearings before them;

(b) They can, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings and may measure the same;

Exception: when the parties agree otherwise, the commissioners cannot view and examine the property (1) The commissioners shall assess the

consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or person taking the property.

(2) In no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. [Rule 67, Sec. 6]

(c) The commissioners shall make full and accurate report to the court of all their proceedings. (1) The report shall be filed within 60 days from

the date the commissioners were notified of their appointment.

(2) Upon filing of the report, the clerk of court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if the parties desire. [Rule 67, Sec. 7]

(d) After the 10-day period for objecting to the commissioners’ report, the court, after hearing, may: (1) ACCEPT the report and render JUDGMENT in

accordance therewith; (2) RECOMMIT the report to the commissioners

for further report of facts;

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(3) SET ASIDE the report and APPOINT new commissioners;

(4) ACCEPT the report IN PART and REJECT it IN PART;

And make such order or render judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. [Rule 67, Sec. 8]

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT (a) Right to enter upon the property expropriated

and appropriate it for the public use or purpose as stated. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under Sec. 2. [Rule 67, Sec. 10]

(b) Right to enter upon the property even pending appeal. The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment.

The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. [Rule 67, Sec. 13]

EFFECT OF RECORDING OF JUDGMENT When real estate is expropriated, a certified copy of the judgment entered in expropriation proceedings shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest to plaintiff the title to the real estate so described for such public use or purpose. [Rule 67, Sec. 13] FORECLOSURE OF REAL ESTATE MORTGAGE (Asked in the 2003 Bar Exam) The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan, but it may be on other grounds which under the contract warrant the foreclosure, such as the violation of the other conditions therein. Foreclosure may be made: (a) judicially – governed by Rule 68

(b) Extrajudicially – proper only when so provided in contracts in accordance with Act. No. 3135; governed by A.M. No. 99-10-05-0.

Monte de Piedad v. Rodrigo (1931) : A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. If a mortgage contract covers several distinct parcels of land situated in different provinces, the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved.

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE Judgment Payment If upon the trial, the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (“equity of redemption”). Sale In default of such payment the property shall be sold at public auction to satisfy the judgment. [Rule 68, Sec. 2] SALE OF MORTGAGED PROPERTY; EFFECT (a) When the defendant fails to pay the amount of

the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. (1) It is the ministerial duty of the court to order

the foreclosure of the property when the debt is not paid within the period specified.

(2) A motion for such order of sale is non-litigable and may be made ex parte. [Gov’t of P.I. v De las Cajigas (1931)]

(b) Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and

(c) When confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

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(d) Possession: Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property, unless a third party is actually holding the same adversely to the judgment obligor.

(e) The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure. [Rule 68, Sec. 3]

(f) The purchaser is entitled to a writ of possession and it is ministerial upon the court to issue a writ of possession in his favor upon an ex parte motion. [Barican, et al v Caguioa, et al, (1986)]

DISPOSITION OF PROCEEDS OF SALE Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order): (a) Costs incurred in the sale of property (b) Claim of the person foreclosing the property (c) Claims of junior encumbrancers in the order of

their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers, the residual amount shall be given to the mortgagor or his agent, or to the person entitled to it. [Rule 68, Sec. 4] If the proceeds of the sale is less than the amount of the claims to be satisfied, the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale, to recover the amount of the deficiency in his claim.

DEFICIENCY JUDGMENT Definition: A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due; also termed a deficiency decree. (Black’s Law Dictionary) General rule: Sec. 6 provides for a deficiency judgment which shall be rendered, on motion, when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment.

In extrajudicial foreclosure, the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. [PNB v. CA (1999)] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. [Governor of the Philippine Islands v. Torralba Vda. de Santos (1935)]

If the debtor dies, the deficiency may be filed as a claim against his estate. [Rule 86, Sec. 7] Exceptions: (a) Third Party Mortgagor - No deficiency judgment

may be rendered where the mortgage was executed by a third person to secure the obligation of a debtor, such third person not having assumed personal liability for the debt. The remedy is an ordinary action against the debtor. [Philippine Trust Co. v. Echaus Tan Siusa (1929)]

(b) Extrajudicial Foreclosure - There can be no

deficiency judgment because there was no judicial proceeding in the foreclosure. Recovery can be made through a separate action. [DBP v Mirang (1975); DBP v Zaragosa, (1978); PNB v CA (1999)]

Instances when court cannot render deficiency judgment JUDICIAL FORECLOSURE V. EXTRAJUDICIAL FORECLOSURE

Judicial Foreclosure Extrajudicial Foreclosure Governed by the Rules of Court

Governed by Act 3135 as amended

Involves the filing of an independent action

Does not require filing of an action

Equity of redemption EXCEPT if the foreclosure is in favor of banks as mortgagees, a Right of redemption exists

Right of redemption

There could be a deficiency judgment

No deficiency judgment because there is no judicial proceeding BUT deficiency can be recovered

Recovery of deficiency is by mere motion for a deficiency judgment

Recovery of deficiency is by an independent action

Registration [Rule 68, Sec. 7] A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds.

If No Right Of Redemption Exists

If A Right Of Redemption Exists

The Certificate of Title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser.

The Certificate of Title in the name of the mortgagor shall NOT be cancelled, but the Certificate of Sale and the order confirming the

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sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title

If The Property Is

Redeemed If The Property Is Not

Redeemed The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title.

The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser.

EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION

Equity Of Redemption Right Of Redemption Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. [Limpin v. Intermediate Appellate Court (1988)]

Right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust, under which the property is sold, to redeem the property within 1 year from the registration of the sheriff’s certificate of foreclosure sale. [De Castro v. Intermediate Appellate Court [1988)]

The mortgagor may exercise his equity of redemption in judicial foreclosure before the sale is confirmed by the court (Raymundo v Sunico, 1913; Rosales v Suba, 2003). No right of redemption is recognized in a judicial foreclosure, except only

The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale. It exists only in the case of the extrajudicial foreclosure of the mortgage.

Equity Of Redemption Right Of Redemption where the mortgagee is the Philippine National Bank or a bank or banking institution. [Huerta Alba Resort, Inc. v. CA (2000)] Confirmation of the sale of mortgaged real property vests title in the purchaser including the equity of redemption, it retroacts to the date of the sale. It cuts off all the rights or interests of the mortgagor and of the mortgagee. [Lozame v Amores (1985]]. The motion for the confirmation of the sale requires a hearing to grant an opportunity to the mortgagor to show cause why the sale should not be confirmed [Tiglao v Botones, 90 Phil 275], as by proof of irregularities therein or of gross inadequacy of the price. Lack of notice vitiates the confirmation of the sale. PARTITION Partition of property may be: (a) Extrajudicial – by agreement (b) Judicial – compulsory; governed by Rule 69 Even if the parties resorted to judicial partition, they may still make an amicable partition of the property. [Secs. 2 and 12] WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE

DEFENDANTS Filed by person having the right to compel the partition of real estate, [Sec. 1], or of personal property, or of both real and personal property. [Sec. 13] The plaintiff is the person who is supposed to be a co-owner of the property. The defendants are all the co-owners, who are indispensable parties.

Sepulveda v. Pelaez (2005): All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded.

Exceptions to the Right to Ask for Partition (a) When there is a stipulation against it, not

exceeding 10 years [Art. 494, Civil Code] (b) When partition is prohibited by the donor or

testator for a period not exceeding 20 years [Art. 494, 1083 Civil Code]

(c) When partition is prohibited by law (e.g. ACP, party wall) [Art. 494, Civil Code]

(d) When the property is not subject to a physical division and to do so would render it

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unserviceable for the use for which is it intended [Art. 495 Civil Code] or

(e) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. [Art. 1084 Civil Code]

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION Contents of complaint for partition (a) Nature and extent of the complainant’s title (b) Adequate description of the real estate of which

the partition is demanded (c) All other persons interested in the property must

be impleaded. [Rule 69, Sec. 1]

TWO (2) STAGES IN EVERY ACTION FOR PARTITION Determination of the propriety of partition This involves a determination of whether the subject property is owned in common and whether all the co-owners are made parties in the case. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. [Miranda v. Court of Appeals (1976)] If not appealed, then the parties may partition the common property in the way they want. If they cannot agree, then the case goes into the second stage. However, the order of accounting may in the meantime be executed. [De Mesa v. CA (1994)] The actual partitioning of the subject property This is also a complete proceeding and the order or decision is appealable. When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA (1999)]

Crucillo v. IAC, 1999: Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. Maglucot-aw et al. v. Maglucot et al. (2000): Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part.

They must accept all or none. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. Partition may be inferred from circumstances sufficiently strong to support the presumption. Thus, after a long possession in severalty, a deed of partition may be presumed. Recitals in deeds, possession and occupation of land, improvements made thereon for a long series of years, and acquiescence for 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which had been lost and were not recorded. Where a tract of land held in common has been subdivided into lots, and one of the lots has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of a tenancy in common, it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears.

Venue Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. If several distinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces. [Pancho v. Villanueva,(1956)]

ORDER OF PARTITION AND PARTITION BY AGREEMENT Order of partition After trial, if the court finds that the plaintiff has the right to the property subject of partition, it shall issue an order demanding the partition of the real estate among all the parties in interest. [Sec. 2] (Refers to 1

st

stage of partition) Partition by Agreement

After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves

If they agree, proper instruments of conveyance will be executed to effect the partition.

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A party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. [Rule 69, Sec. 8] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. [Rule 69, Sec. 2]

PARTITION BY COMMISSIONERS; APPOINTMENT OF

COMMISSIONERS, COMMISSIONER’S REPORT; COURT

ACTION UPON COMMISSIONER’S REPORT Appointment of commissioners If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. [Rule 69, Sec. 3] Duties of Commissioners [Rule 69, Sec. 4]: (a) view and examine the real estate, after due notice

to the parties to attend at such view and examination

(b) hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof

(c) set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof.

General rule: If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same PROVIDED he

pays to the other parties such amounts as the commissioners deem equitable Exception: if one of the parties asks that the property be sold instead of being so assigned, then the court shall ORDER the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine. [Rule 69, Sec. 5] Commissioner’s Report

After the execution of instruments of conveyance, the court shall confirm the partition through a final order.

The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. [Rule 69, Sec. 2]

If they do not agree, there will be a partition by commissioners.

The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties or the sale of the same.

Upon filing the report, the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report, if they so desire.

No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners’ report and rendered judgment thereon. [Rule 69, Sec. 6]

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JUDGMENT AND ITS EFFECTS Contents of Judgment Effects of Judgment

If Actual Partition Is Properly Made

Judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party.

Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him.

If The Whole Property Is Assigned To One Of The Parties After Payment

Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment.

Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties.

If Property Is Sold And Sale Is Confirmed By The Court

Judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser

Judgment shall vest the real estate in the purchaser(s), making the payment(s) free from the claims of any parties to the action.

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. [Rule 69, Sec. 11]

PARTITION OF PERSONAL PROPERTY The provisions of Rule 69 shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. [Rule 69, Sec. 13] PRESCRIPTION OF ACTION The right of action to demand partition does not prescribe [De Castro v. Echarri (1911)], EXCEPT where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which case, acquisitive prescription may set in. If a co-owner repudiates the co-ownership and makes known such repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v. IAC (1988)] FORCIBLE ENTRY AND UNLAWFUL DETAINER

(Asked in the 2000 Bar Exam in Relation to a Pending Action for Specific Performance)

DEFINITIONS AND DISTINCTION Forcible Entry (a) Resorted to when a person is deprived of

possession of any land or building by (1) force, (2) intimidation, (3) strategy, (4) threat, or (5) stealth. (FISTS)

(b) Must be brought at any time within 1 year after such unlawful deprivation in the proper MTC against the person unlawfully depriving him of possession or against any person or persons claiming under them.

(c) Action must be for the restitution of possession of property together with damages and costs. [Rule 70, Sec. 1]

(d) The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it.

(e) They must file the appropriate action in court and should not take the law into their own hands. [Laurora v. Sterling Technopark (2003)]

Unlawful Detainer (a) Resorted to when a lessor, vendor, vendee, or

other person against whom the possession of any land or building is unlawfully withheld, after the expiration or termination of the right to hold possession by virtue of an express or implied contract.

(b) May also be brought by the legal representative or assigns of any such lessor, vendor, vendee, or other persons.

Upon the expiration of the 10-day period, or even before the expiration of such period but after the interested parties filed their objections to the report/statement of agreement, the court, upon hearing, may: (a) ACCEPT the commissioners’ report and

render JUDGMENT based upon it. (b) RECOMMIT the report to the

commissioners for further report of facts if there is cause to do the same

(c) SET ASIDE the report and APPOINT new commissioners

(d) ACCEPT the report IN PART and REJECT it IN PART

(e) Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value, if the property is assigned or sold between the several owners thereof. [Rule 69, Sec. 7]

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(c) Must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them.

(d) Action must be for the restitution of possession of property together with damages and costs. [Rule 70.1]

Forcible Entry Unlawful Detainer

Possession becomes unlawful right from the very start (i.e. from the time of entry) as he acquires possession by FISTS.

Possession was lawful at first but later becomes illegal, as when the lease contract has expired and the lessee refuses to vacate the premises despite demand.

The deprivation of physical possession of land and building is effected through force, intimidation, strategy, threat or stealth (FISTS).

The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract, express or implied.

The issue centers on who was in prior possession de facto.

The issue centers on whether the defendant’s right to possess has expired or not.

Previous demand upon defendant to vacate not required.

Previous demand to vacate required (jurisdictional).

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

The plaintiff need not be in prior physical possession.

1-year period counted from date of actual entry on the land.

1-year period counted from date of last demand or last letter of demand.

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION

REINVINDICATORIA

Accion Interdictal (a) the summary action for forcible entry

(detentacion) (b) where the defendant’s possession of property is

illegal ab initio, or (c) the summary action for unlawful detainer

(desahucio) where the defendant’s possession was originally lawful but ceased to be so by the expiration of his right to possess,

(d) both of which must be brought within one year from the date of actual entry to the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer,

(e) in the proper MTC or MeTC Nature: (a) special civil action involving realty; (b) subject to the Rules on Summary Procedure;

[Rule 70, Sec. 3] (c) under the original exclusive jurisdiction of first

level courts; (d) nature of the action is determined by the

allegation of the complaint and the character of the relief sought; [Abrin v. Campos (1991)]

(e) one co-owner may institute the action.

Accion Publiciana A plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. Accion Reivindicatoria Also called accion de reivindicacion, it seeks the recovery of ownership and includes the jus utendi and the jus fruendi, which must be brought in the proper regional trial court. It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. [Javier v. Veridiano (1994)]

HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA

AND ACCION REINVINDICATORIA A/P and A/R are actions involving title to or possession of real property or an interest therein (a) RTC has jurisdiction where the assessed value of

the property exceeds P20K or, in MM, P50k (b) MTC has jurisdiction if the assessed value does

not exceed said amounts WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST

WHOM THE ACTION MAY BE MAINTAINED Who may File, When, Against Whom Who A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person When At any time within 1 year after such unlawful deprivation or withholding of possession in the proper MTC

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Against Whom The person or persons unlawfully withholding or depriving of possession, OR any person or persons claiming under them [Rule 70, Sec. 1]

PLEADINGS ALLOWED Pleadings must be verified. [Rule 70, Sec. 4] Allowed pleadings [Rule 70, Sec. 4]: (a) Complaint (b) Compulsory Counterclaim pleaded in the answer (c) Cross-claim pleaded in the answer (d) Answer

ACTION ON THE COMPLAINT From the examination of the allegations in the complaint and such evidence as may be attached thereto, the court may: (a) DISMISS the case outright based on the grounds

for dismissal for ordinary civil actions apparent in the complaint, or

(b) ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70, Sec. 5]

Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70, Sec. 12]

WHEN DEMAND IS NECESSARY In cases of unlawful detainer, the action by the lessor shall be commenced only after: (a) demand to pay or comply with the conditions of

the lease and to vacate is made upon the lessee, or

(b) by serving written notice of such demand upon the person found on the premises, or

(c) by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. [Rule 70, Sec. 2]

Exceptions (prior demand not required): (a) Where purpose of the action is to terminate the

lease by reason of the expiry of its term, and is not for failure to pay rentals or comply with the terms of the lease contract. [Arquelada v. Philippine Veterans Bank (2000) ]

(b) When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. [Guanson v. Ban (1946)]

(c) When the defendant is not a tenant but a mere intruder. [id]

Jakihaca v. Aquino (1990): Demand upon a tenant may be oral. Dakudao v. Consolacion (1983): A person who occupies the land of another at the latter's tolerance or permission, without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which, an action for unlawful detainer may be instituted against him. Muñoz v. CA (1992): This rule as to tolerance does not hold true in a case where there was forcible entry at the start, but the lawful possessor did not attempt to oust the intruder for over 1 year, and only thereafter filed forcible entry suit following demand to vacate. Refugia v. CA (1996): Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. Zobel v. Abreu (1956): When failure to pay rent or comply with the condition of lease is the ground for ejectment, plaintiff should give 2 demands (which may be embodied in 1 demand letter): (a) demand to pay rental or comply with conditions

of the lease, and if this is not complied with, (b) demand to vacate Yap v. Cruz (1992): Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month, and prevent an implied renewal of the lease. Penas, Jr. v. CA (1994): An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of an action for unlawful detainer. Uy v. CA (1989): Refusal to collect or accept rentals is not a defense. There must be consignation.

Procedure

Filing of complaint.

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After the court has examined the allegations in the complaint and supporting evidence attached to the same, the court may: (a) DISMISS the case outright based on the

grounds for dismissal for ordinary civil actions apparent in the complaint, or

(b) ISSUE SUMMONS, if no ground for dismissal is found. [Rule 70, Sec. 5]

Cases requiring referral to conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement have been complied with. [Rule 70, Sec. 12]

The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. [Rule 70, Sec. 6] Failure of the defendant to answer within the period provided above shall give power to the court, motu propio or on motion, to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. [Rule 70, Sec. 7] Affirmative and negative defenses and cross-claims and compulsory counterclaims not pleaded in the answer are deemed waived. Exception: lack of jurisdiction over the subject matter.

Answers to the counterclaims or cross-claims shall be served and filed within 10 days from service of the answer in which they are pleaded.

Where there is a defense of tenancy, there must be a preliminary hearing on the question of tenancy relations. [Bayog v. Natino (1996)] If there is a prima facie showing of tenancy, the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB). [Baranda v. Padios (1987)]

Not later than 30 days after the last answer is filed, a PRELIMINARY CONFERENCE shall be held.

Rule 18 applicable. Effects of failure to appear: (a) When the plaintiff does not appear

(1) It shall be a cause for dismissal of his complaint

(2) All cross-claims shall be dismissed (3) The defendant who appears in the

absence of the plaintiff shall be entitled to the judgment on his counterclaim

(b) When the defendant does not appear The plaintiff shall be entitled to judgment (This is true when there is only one defendant or when all of the defendants did not appear)

General rule: No postponement of the preliminary conference shall be granted. Exception: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. [Rule 70, Sec. 8]

The court shall issue an ORDER stating matters taken up during the preliminary conference within 5 days after the termination of the same. Contents of the Order: (a) Whether the parties have arrived at an

amicable settlement, and if so, terms thereof; (b) The stipulations or admissions entered into

by the parties; (c) Whether, on the basis of the pleadings and

the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order;

(d) A clear specification of material facts which remain controverted;

Such other matters intended to expedite the disposition of the case. [Rule 70, Sec. 9]

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The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order. [Rule 70, Sec. 10] Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. [Rule 70, Sec. 14]

Judgment General Rule: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. [Rule 70, Sec. 11] Exception: Should the court find it necessary to clarify certain material facts, it may during the 30-day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. [Ibid.] The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. [Id.] If the trial court finds that the allegations of the complaint are TRUE, it shall render judgment in favor of the plaintiff for (a) restitution of the premises, (b) the just sum due as arrears of rent or

reasonable compensation for the use and occupation of the premises.

(c) attorney’s fees and costs. [Rule 70, Sec. 17] If the court finds that the allegations of the plaintiffs are NOT TRUE, it shall render judgment for the defendant to recover his costs. [Ibid.] The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. The judgment or final order shall be appealable to the appropriate RTC. [Rule 70, Sec. 18]

Execution of judgment General Rule: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70, Secs. 19 and 21] Exception: Appeal has been duly perfected by the defendant and bond has been posted.

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Lu v. Siapno (2000): Although immediately executory, the judge should not order immediate execution in his decision. Kaw v. Anunciacion (1995): There must be notice of the judgment and a motion with notice to the adverse party.

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY

INJUNCTION Preliminary injunction The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession may move for a preliminary mandatory injunction within 5 days to restore him in his possession of the property. The court then shall decide the motion within 30 days from the filing thereof. [Rule 70, Sec. 15]

RESOLVING DEFENSE OF OWNERSHIP When ownership is raised as a defense, the court may resolved the issue of ownership but only under these conditions: (a) When the issue of possession cannot be resolved

without resolving the issue of ownership; and (b) The issue of ownership shall be resolved only to

determine the issue of possession [Rule 70, Sec. 16].

When the defendant asserts ownership over the property, the inferior court is not divested of its jurisdiction [Rural Bank of Sta. Ignacia, Inc v Dimatulac (2003)] The judgment rendered in an action for forcible entry or unlawful detainer shall be conclusive with respect to the possession only, and it shall not in any way affect the title or ownership of the land or building. Hence, such judgment shall not bar an action between the same parties with respect to the title of the land or building. [Rule 70, Sec. 18] Matters Not Constituting Prejudicial Question to Ejectment [Arcal v. Court of Appeals (1998)] (a) Injunction suits instituted in the RTC by

defendants in ejectment actions in the municipal trial courts or other courts of the first level [Nacorda v. Yatco (1996)] do not abate the latter, and neither do proceedings on consignation of rentals [Lim Si v. Lim (1956)]

(b) An ‘accion publiciana’ does not suspend an ejectment suit against the plaintiff in the former [Ramirez v. Bleza (1981)].

(c) A ‘writ of possession case’ where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises [Heirs of F. Guballa, Sr. v CA (1988)].

(d) An action for quieting of title to the property is not a bar to an ejectment suit involving the same property [Quimpo v. de la Victoria (1972)].

(e) Suit for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of lease contract) [Desamito v. Cuyegkeng (1966)]; (Asked in the 2000 Bar Exam)

(f) An action for reformation of instrument (e.g. from deed of absolute sale to one of sale with pacto de retro ) does not suspend an ejectment suit between the same parties [Judith v. Abragan (1975)].

(g) An action for reconveyance of property or ‘accion reivindicatoria’ also has no effect on ejectment suits regarding the same property [Del Rosario v. Jimenez (1963)].

(h) Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property [Salinas v. Navarro - annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage (1983); Ang Ping v. RTC - annulment of sale of title (1987); Caparros v. C.A. - annulment of title (1989); Dante v. Sison - annulment of sale with damages 174 SCRA 517; Galgala v. Benguet Consolidated, Inc. - annulment of document (1989)].

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT General Rule: If judgment is rendered against a defendant, execution shall issue immediately. [Rule 70, Sec. 19 and 70.21] Exception: Appeal has been duly perfected by the defendant and bond has been posted. Procedure for staying the execution of judgment: (a) defendant perfects his appeal in due time; (b) defendant files a sufficient supersedeas bond

approved by the Municipal Trial Court; and (c) during the pendency of the appeal, he deposits

with the appellate court the amount of rent due from time to time under the contract, if any, on or before the 10th day of each succeeding month. [Rule 70, Sec. 19]

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BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC, the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. [Rule 70, Sec. 20] SUMMARY PROCEDURE, PROHIBITED PLEADINGS Prohibited pleadings and motions [Rule 70, Sec. 13]: (a) Motion to dismiss

Exceptions: (1) Motion to dismiss based on lack of jurisdiction

over the subject matter (2) Motion to dismiss for failure to comply with

section 12 (referral to Lupon for conciliation) (b) Motion for a Bill of Particulars (c) Motion for New Trial (d) Motion for reconsideration of a judgment (e) Motion for reopening of trial (f) Petition for relief from judgment (g) Motion for extension of time to file pleadings,

affidavits or other papers (h) Memoranda (i) Petition for Certiorari, Mandamus or Prohibition

against any interlocutory order issued by the court

(j) Motion to declare defendant in default (k) Dilatory motions for postponement (l) Reply (m) Third-party complaints (n) Interventions CONTEMPT Definition Contempt of court Is a defiance of the authority, justice or dignity of the court, such conduct as tends to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice.

[Heirs of Trinidad de Leon Vda. de Ramos v. Court of Appeals (2004)] KINDS OF CONTEMPT According to the Manner of Commission (a) Direct (b) Indirect

According to Nature (a) Civil (b) Criminal PURPOSE AND NATURE OF EACH Direct Contempt (Contempt In Facie Curiae) A misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same, including: (a) disrespect toward the court (b) offensive personalities toward others (c) refusal to be sworn or to answer as a witness or to

subscribe an affidavit/deposition when lawfully required to do so.

It can be punished summarily without hearing. It is conduct directed against or assailing the authority and dignity of the court or a judge, or in the doing of a forbidden act. [Encinas v. National Bookstore (2005); Rule 71, Sec. 1] Indirect Contempt (Constructive Contempt) A misbehavior perpetrated outside of the sitting of the court. [Patricio v. Suplico (1991)]

Acts of indirect contempt: (a) Misbehavior of an officer of the court in the

performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of the court, and acting as such without authority;

(f) Failure to obey a subpoena duly served; (g) The rescue or attempted rescue, of a person or

property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71, Sec. 3]

Two Aspects of Contempt Of Court Civil Contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein. [People v. Godoy, 1995];

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remedial or compensatory in nature; instituted for the benefit of private party. Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. Godoy, 1995]; punitive in nature, thus, the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. Recto, 1999].

SEC v. Recto (1999): The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. Crucillo v. IAC (1999): A writ of execution issued by a court after 5 years from entry of final judgment is void, and disobedience thereto does not constitute indirect contempt. Panado v. CA (1998): The power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. But this must be wielded sparingly. For this power should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. LandBank v. Listana (2003): Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for non-compliance, and, therefore, whether a contempt has been committed. The power to determine the existence of contempt of court rests exclusively with the court contemned. No court is authorized to punish a contempt against another. Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the RTCs.

Radio Phils Network v. Yap (2012):_To be considered contemptuous, an act must be clearly contrary to or prohibited by the order of the court or tribunal. A person cannot, for disobedience, be punished for contempt unless the act which is forbidden or required to be done is clearly and exactly defined, so that there can be no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required.

REMEDY AGAINST DIRECT CONTEMPT; PENALTY REMEDY AGAINST INDIRECT CONTEMPT; PENALTY HOW CONTEMPT PROCEEDINGS ARE COMMENCED See Annex G. Procedure for Indirect Contempt [Secs. 4-6] Who Initiates

Court Motu Propio Party

How it is initiated

By ORDER or any WRITTEN CHARGE requiring respondent to show cause why he should not be held in contempt.

By a VERIFIED PETITION with supporting particulars and certified true copy of documents or papers involved and full compliance with the requirements for filing initiatory pleadings in ordinary civil actions.

Where it is initiated

When the contempt is directed against an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court: (a) RTC of the place where the lower

court is sitting; or (b) in same lower court subject to

appeal to higher court Hearing and Bail

If hearing is not immediately conducted, respondent may be released upon filing of BOND in the amount fixed by the court.

Appeal Appeal may be taken in proper courts as in criminal cases.

Execution of Judgment

Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal.

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT (a) Misbehavior of an officer of the court in the

performance of his official duties or in his official transactions;

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(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts to or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of the court, and acting as such without authority;

(f) Failure to obey a subpoena duly served; (g) The rescue or attempted rescue, of a person or

property in the custody of an officer by virtue of an order or process of a court held by him. [Rule 71, Sec. 3]

WHEN IMPRISONMENT SHALL BE IMPOSED When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. [Rule 71, Sec. 8]. The respondent “carried the keys to his prison in his own pocket.” [Galvez v. Republic Surety & Insurance Co., Inc. (1959)] Only the judge who ordered the confinement of the person for contempt of court can issue the Order of Release. [Inoturan v Limsiaco, Jr. (2005)] Rule 71, Sec. 8 does not apply to tenants who refused or failed to pay their rentals to the special

administratrix of the property. The non-payment of rentals, which is a civil debt, is covered by the constitutional guarantee against imprisonment. [Regalado] CONTEMPT AGAINST QUASI-JUDICIAL BODIES Rule 71 applies to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. Where to file: RTC of the place wherein the contempt has been committed. [Rule 71, Sec. 12] It is not within the jurisdiction and competence of quasi-judicial bodies to decide indirect contempt cases. The requirement for a verified petition must also be complied with (e.g. DARAB has no power to decide the contempt charge filed before it). [Land Bank v Listana (2003)] Rule 71, Sec. 12 confers contempt powers on all Quasi-Judicial entities or supplements their rules, unless the applicable law provides otherwise. Acts or violations against quasi-judicial bodies punishable as contempt: where a person, without lawful excuse, fails to appear, make oath, give testimony or produce documents when required to do so by the official or body exercising such powers. Other acts or violations cannot be punished as contempt unless specifically defined in the governing law as contempt of court or if it authorizes the quasi-judicial body to punish for contempt, and providing the corresponding penalty. [People v. Mendoza (1953), §13, Ch. 3, Bk VII, Admin Code of 1987]

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ANNEX A (1) Service on person associated in

an entity without juridical personality [Rule 14, Sec. 8]

If sued under the name by which they are commonly known – Serve upon either: (a) Any/all the defendants; (b) Person in charge of the office The service does not bind individually any person whose connection with the entity was already severed before the service

(2) Service upon minors and incompetents [Rule 14, Sec. 10]

Serve upon the minor/incompetent and on his legal guardian. (a) If there is no guardian, plaintiff may apply for the appointment of a

guardian ad litem. (b) If minor, may serve on his parents.

(3) Service upon prisoner [Rule 14, Sec. 9]

Serve upon the officer having management of the jail/prison

(4) Service upon domestic private juridical entity [Rule 14, Sec. 11]

Serve upon either the: (1) President (2) Managing partner (3) General manager (4) Corporate secretary (5) Treasurer (6) In-house counsel

(5) Service upon foreign private juridical entity [Rule 14, Sec. 12]

Serve upon the resident agent; Otherwise, upon either: (1) Government official designated by law; (2) Any officer or agent of the corporation within the Philippines

(6) Service upon public corporations [Rule 14, Sec. 13]

If the defendant is the Republic of the Philippines – Serve upon the OSG If the defendant is a province/city/municipality or like public corporations – Serve upon the executive head or other officers as the law/court may direct

(7) Extraterritorial service [Rule 14, Sec. 15]

Requisites: (Asked in the 1997 and 2008 Bar Exam) (1) Defendant does not reside or is not found in the Philippines; (2) Action either:

(a) Affects the plaintiff’s personal status; (b) Relates to or the subject matter of which is property within the

Philippines in which defendant has a lien/interest; (c) Demands a relief which consists wholly/partially in excluding the

defendant from any interest in any property within the Philippines; (d) Has defendant’s property in the Philippines, attached.

Modes of service: (1) With leave of court, serve outside the Philippines by personal service; or (2) With leave of court, serve by publication in a newspaper of general

circulation, in which case copy of the summons and order of the court must also be sent by registered mail to the defendant’s last known address;

(3) Any other manner the court deems sufficient The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer.

(8) Service upon a resident temporarily out of the Philippines [Rule 14, Sec. 16]

With leave of court, may serve extraterritorially

(9) Service upon a defendant whose identity or whereabouts are unknown [Rule 14, Sec. 14]

With leave of court, by publication in a newspaper of general circulation

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ANNEX B

Subpoena Duces Tecum

OrdeffFor Production or Inspection

Nature Process requiring a person to bring with him any books, documents, documents, or other things under his control or possession.

Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, (a) of any designated documents, papers, books,

accounts, letters, photographs, objects or tangible things, not privileged,

(b) which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, or

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

To whom directed To any person Only to a party

When it may be asked Only during trial Before and/or during trial

Issued by whom Issued by a court before whom the witness is required to attend, or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines

Issued by the court where the action is pending

When issued Issued upon request to the clerk (no notice) Issued upon motion (application with notice to the other

party) W/N it is necessary to show good cause

NO YES Grounds for quashal

unreasonable, oppressive, irrelevant, or the person in whose behalf the subpoena is issued

fails to advance the reasonable costs of the production thereof

No good cause shown

Consequence of disobedience Constitutes contempt of the court from which the subpoena is issued

See Rule 29, Sec. 3

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ANNEX C

Provision Highlights

Applicability

Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to answer any question upon oral examination (a) the examination may be completed on other matters or (b) adjourned as the proponent of the question may prefer. The proponent may thereafter apply (i.e., by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court of the place where the deposition is being taken, for an order to compel an answer. IF THE APPLICATION IS GRANTED (a) the court shall require the refusing party or deponent to answer the

question or interrogatory, and (b) if it also finds that the refusal to answer was without substantial

justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees.

IF THE APPLICATION IS DENIED and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees.

PARTY OR DEPONENT /WITNESS IN (a) RULE 23 (depositions de bene

esse), (b) RULE 24 (depositions in perpetua

rei memoriam) (c) RULE 25. INTERROGATORIES TO

PARTIES

Section 2. Contempt of court. If a party or other witness (a) refuses to BE SWORN OR (b) refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court.

PARTY OR WITNESS IN (a) RULE 23 (depositions de bene

esse), (b) RULE 24 (depositions in perpetuam

rei memoriam)

Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY FOR: An order (a) that the matters regarding which the questions were asked, or the

character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party,

(b) or any other 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;

An order (a) refusing to allow the disobedient party to support or oppose

designated claims or defenses or (b) prohibiting him from introducing in evidence designated documents

or things or items of testimony, or (c) from introducing evidence of physical or mental condition; An order (a) striking out pleadings or parts thereof, or (b) staying further proceedings until the order is obeyed, or (c) dismissing the action or proceeding or any part thereof, or (d) rendering a judgment by default against the disobedient party; and IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.

PARTY or an OFFICER OR MANAGING AGENT OF A PARTY in RULE 23, 24, 25 who refuses to obey an order made under RULE 29 Section 1 PARTY who refuses to obey an order under RULE 27 to produce any document or other thing for inspection, or to permit entry upon land PARTY who refuses to obey an order made under RULE 28 requiring him to take a physical examination (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY)

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Provision Highlights

Applicability

Section 4. Expenses on refusal to admit. If a party after being served with a request under Rule 26 (a) refuses to admit the genuineness of any document or the truth of any

matter of fact and (b) serves a sworn denial thereof, and (c) if the party requesting the admissions thereafter proves the

genuineness of such document or the truth of any such matter of fact (d) he may apply to the court for an order requiring the other party to pay

him the reasonable expenses incurred in making such proof, including attorney's fees.

Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL BE ISSUED.

PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY

SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, The court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees

PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse), RULE 24 (depositions in perpetuam rei memoriam) RULE 25 INTERROGATORIES TO PARTIES

SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule

Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who represents the Republic in an official capacity) to pay.

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JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding)

If no appeal has been perfected, or the period of appeal has expired

Prevailing Party applies (by motion) for a writ of execution, which is granted by the

judge since it is a matter of right

If an appeal has been perfected and duly resolved, there are two ways by which execution can be carried out

Prevailing party f iles a motion in the court of origin, submitting

therewith certif ied true copies of the judgment or judgments or f inal order or orders sought to be

enforced and of the entry thereof, with notice to the adverse party1.

The appellate court may, on motion in the same case, when the

interest of justice so requires, direct the court of origin to issue

the writ of execution.

ANNEX D

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Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case

may be.

Discretionary execution may be granted only for GOOD REASONS to be stated in a SPECIAL ORDER.

In Situation1, prevailing party f iles a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. In Situation2, prevailing party f iles the motion

for execution pending appeal in the appellate court.

Situation 2: Trial court has lost jurisdiction

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be f inally sustained in whole or in part. The bond thus given may be

proceeded against on motion with notice to the surety

IN CASE the judgment w hich was executed pending appeal is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as

equity and justice may warrant under the circumstances

ANNEX E

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ANNEX F Certiorari

(Asked In 2000 And 2006 Bar Exams)

Prohibition Mandamus (Asked In The 2006 Bar Exam)

Grounds (a) When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted: (1) without or in excess of its

jurisdiction; or (2) with grave abuse of discretion

amounting to lack or excess of its or his jurisdiction

1

(b) AND there is no appeal, or any plain, speedy, and adequate remedy

2 in the ordinary course of

law. (Rule 65, Sec. 1)

(a) When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions, are (1) without or in excess of its or

his jurisdiction; or (2) with grave abuse of discretion

amounting to lack or excess of its or his jurisdiction

(b) AND there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. (Rule 65, Sec. 2)

(a) When any tribunal, corporation, board, officer or person (1) unlawfully neglects the

performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or

(2) unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled

(b) AND there is no other plain, speedy and adequate remedy in the ordinary course of law. (Rule 65, Sec. 3)

Purpose To correct an act performed by the respondent

To prevent the commission or carrying out of an act

To compel the performance of the act desired

Act sought to be controlled Discretionary acts Discretionary and ministerial acts Ministerial acts

Petitioner Aggrieved person Aggrieved person Aggrieved person

Respondent3

Those exercising judicial or quasi-judicial functions

Those exercising judicial and/or non-judicial functions

Those exercising judicial and/or non-judicial functions

Form of petition (a) Verified (b) alleging the facts with certainty (c) PRAYER: that judgment be

rendered annulling or modifying the proceedings of such tribunal, etc., and granting such incidental reliefs as law and justice may require.

(d) accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

(a) verified (b) alleging the facts with certainty (c) PRAYER: that judgment be

rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

(d) accompanied by a certified true copy of the subject judgment, etc., copies of all relevant pleadings and documents, and a certification of non-forum shopping.

(a) verified (b) alleging the facts with certainty (c) PRAYER: that judgment be

rendered commanding the respondent, immediately or some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

(d) contains a certificate of non-forum shopping.

1 Without jurisdiction If respondent does not have the legal power to determine the case

Excess of jurisdiction If respondent has the legal power to determine the case but oversteps such power Grave abuse of discretion If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or

despotic manner in the exercise of his judgment 2 A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. [Silvestre v. Torres (1946)] 3 When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65, Sec. 5]

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ANNEX G

Direct Contempt

Indirect Contempt

How Committed Can be committed only in the presence of or so near a court or judge.

Can be committed anywhere as long as the acts mentioned in Sec. 3 are done.

Nature of Proceedings

The person guilty of misbehavior is summarily adjudged by the court against which the contempt was committed at the very moment of the perpetration. [Rule 71, Sec. 1]

The person guilty of misbehavior may be punished only after charge in writing has been filed, and an opportunity given to the accused to be heard by himself or counsel [Rule 71, Sec. 3]

Punishment If the contempt is directed against an RTC, a court of equivalent or higher rank:

FINE = not exceeding P2,000; or IMPRISONMENT = not exceeding 10 days; or both

FINE = not exceeding P30,000; or IMPRISONMENT = not exceeding 6 months; or both

If the contempt is directed against a lower court: FINE = not exceeding P200; or IMPRISONMENT = not exceeding 1 day; or both [Rule 71, Sec. 1]

FINE = not exceeding P5,000; or IMPRISONMENT = not exceeding 1 month; or both [Rule 71, Sec. 7]

How proceedings commenced

Summarily adjudged by the court against which the contempt is directed and punished there and then. [Rule 71, Sec. 1]

(a) By the court motu propio thru an ORDER or any formal charge

(b) In all other cases, by a VERIFIED PETITION. (If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact, but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.) [Rule 71, Sec. 4]

Remedy

No appeal, but subject to certiorari or prohibition. [Rule 71, Sec. 2]

May be appealed to the proper court as in criminal cases, but execution shall not be suspended until BOND is filed. [Rule 71, Sec. 11]

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General Matters DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM JURISDICTION OVER PERSON OF THE ACCUSED JURISDICTION OVER SUBJECT MATTER The right to act or the power and authority to hear and determine a cause [Gomez v. Montalban (548 SCRA 693)] General Rule: It is conferred by law… and… determined by the allegations of the complaint [People v. Catalan (2012)] Principle of adherence of jurisdiction/continuing jurisdiction- Once a court acquires jurisdiction over a controversy, it shall continue to exercise such jurisdiction until the final determination of the case. [Palana v. People (2007)]

Exception: Where the succeeding statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment [Palana v. People (2007)] JURISDICTION OVER THE PERSON OF THE ACCUSED Acquired either by [Antiporda vs Garchitorena (1999), citing Arula vs Espino (1969)]:

(1) ARREST of accused; or (2) VOLUNTARY APPEARANCE/SUBMISSION of the accused to the jurisdiction of the court

Voluntary appearance of the accused is accomplished by: (a) By filing pleadings seeking affirmative relief

Exception: Special appearance to challenge the jurisdiction of the court over the person is not voluntary submission [Garcia v. Sandiganbayan (2009)];

(b) By giving Bail

Jurisdiction Over the Subject Matter

Jurisdiction Over The Person of the Accused

Conferred by law; Can never be acquired solely by consent of the accused.

May be acquired by consent of the accused or by waiver of objections.

Right to object is never waived The absence of court’s jurisdiction over the subject matter may be raised at any stage of the proceeding.

Right to object may be waived Failure of the accused to make objection in time would constitute a waiver of the objection.

REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION (1) SUBJECT MATTER JURISDICTION - WON the

court has jurisdiction over the offense by virtue of the imposable penalty and its nature;

(2) Jurisdiction over the PERSON of the accused; (3) TERRITORIAL JURISDICTION - WON the action

has been filed within the TERRITORIAL JURIDICTION of the court: Refers to VENUE (see below) or the place where the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. [Sec 15(a), Rule 110] For transitory/ continuing offenses, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People vs Grospe (1988)].

JURISDICTION OF CRIMINAL COURTS CRIMINAL JURISDICTION OF COURTS

MTC/MeTC/MCTC

RTC

SANDIGANBAYAN

(1) Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32(1), BP 129]

(2) Exclusive original jurisdiction over all offenses punishable with

(1) Exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court/tribunal/body. [Sec. 20, BP 129]

(2) Exclusive appellate jurisdiction over all cases decided by the

(1) Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249: violations of RA 3019, RA 1379, and Chapter II, Section 2, Title VII, Book II of the RPC

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MTC/MeTC/MCTC

RTC

SANDIGANBAYAN

imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof. [Sec. 32(2), BP 129]

(3) Exclusive original jurisdiction over offenses involving damage to property through criminal negligence they shall have exclusive original jurisdiction thereof. [Sec. 32(2), BP 129; RA 7691]

Exception (for Nos. 1-3): Cases falling within the exclusive jurisdiction of the RTC and of the Sandiganbayan (4) Cases classified under the Revised

Rules on Summary Procedure: [SC Resolution, October 15, 1991] (a) Violations of traffic laws/rules/

regulations; (b) Violations of rental law; (c) Cases where the penalty

prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom

(d) Offenses involving damage to property through criminal negligence(imposable fine does not exceed P10,000)

(5) Violations of BP 22 [A.M. No. 00-11-01-SC (2003)]

(6) Special jurisdiction to decide on applications for bail in criminal cases in the absence of all RTC judges in a province or city [Sec. 35, BP 129]

MTC within its territorial jurisdiction [Sec. 22, BP 129]

(3) Criminal cases where one or more of the accused is below 18 years of age but not less than 15 years, or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344]

(4) Cases against minors cognizable under the Dangerous Drugs Act, as amended [RA 8369, Family Courts Act of 1997]

(5) Violations of Republic Act No. 7610, the Child Abuse Act.

(6) Cases of domestic violence against women and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. [RA 8369, Family Courts Act of 1997]

(7) Violations of intellectual property rights [A.M. No. 03-03-03-SC (2003); RA 8293]

(8) Money Laundering Cases [RA 9160] Exception: those committed by public officers and private persons who are in conspiracy with such public officers shall be under the jurisdiction of the Sandiganbayan

Officials enumerated are the ff: (a) Officials of the executive

branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (RA 6758)

(b) Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989

(c) Members of the judiciary without prejudice to the provisions of the Constitution

(d) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution

(e) All other national and local officials classified as “Grade 27”

(2) Other offenses or felonies

whether simple or complexed with other crimes committed by public officials and employees in relation to their office

Requisites: (a) Accused is any one of the

public officials enumerated in subsection (a) of Sec. 4 of RA 8249, grade 27 or higher

(b) Accused commits any other offense or felony, than those specified in subsec. (a), whether simple or complexed with other crimes

(c) The offender commits such other offense or felony in relation to his office

(3) Cases filed in pursuant to and

in connection with EO 1, 2, 14, 14-A, issued in 1986

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MILITARY COURTS General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, regardless of who the co-accused or victims are.

Exception: When the offense is service-oriented, then it will be tried by the court martial. PROVIDED: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts

Prosecution of Offenses CRIMINAL ACTIONS, HOW INSTITUTED (BAR 1999) IN GENERAL A criminal action is commenced by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation. INSTITUTION AND COMMENCEMENT OF ACTIONS The criminal action is commenced when the complaint or information is filed in court For offenses which require a preliminary investigation (Section 1 of Rule 112: where the penalty prescribed by law is at least four years, two months and one day), the criminal action is instituted by filing the complaint with the appropriate officer for PI. [Sec. 1(a), Rule 110] For all other offenses, or in offenses cognizable by inferior courts (Municipal Trial Courts or Municipal Circuit Trial Courts), the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. [Sec. 1(b), Rule 110] In Metropolitan Manila and other chartered cities, the complaint shall be filed with the office of the public prosecutor unless otherwise provided in their charters. [Sec. 1(b), Rule 110] EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE

PRESCRIPTIVE PERIOD (BAR 1993) General Rule: The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. [Sec. 1, Rule 110]

In People v. Pangilinan, G.R No. 152662, June 13, 2012, the Court made a pronouncement to the effect that “there is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription.” WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO (BAR 1990, 2000) CASES THAT CANNOT BE PROSECUTED DE OFICIO (1) Adultery/concubinage [Sec. 5, Rule 110] (2) Seduction, abduction, acts of lasciviousness (3) Defamation which consists of imputation of any of the foregoing offenses. WHO MAY FILE A COMPLAINT? (1) Adultery and concubinage – The offended spouse. Both guilty parties should be included if both are alive. [Sec 5, Rule 110] However, prosecution will not prosper if the offended party consented to the offense. (2) Seduction, abduction and acts of lasciviousness – The offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by them. [Sec 5, Rule 110]

General rule: If the offended party is a MINOR, he or she has the right to initiate the prosecution of such offenses independently of his/her parents, grandparents, or guardians Exceptions: If the minor is:

(a) Incompetent, or (b) Incapable of doing so

(3) Oral defamation – can only be brought upon instance and upon complaint of the offended party.

EFFECT OF: DEATH OF OFFENDED PARTY Death after filing the complaint would not deprive the court of the jurisdiction. The State shall initiate the action on behalf of the offended party in case of his death/incapacity AND he has no known parents/grandparents/ guardians. In adultery/concubinage, death does not extinguish the criminal liability of accused. DESISTANCE BY OFFENDED PARTY It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. PARDON BY OFFENDED PARTY (a) In rape, seduction, abduction and acts of

lasciviousness of a minor – The pardon will be

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effective if given by both parents and the offended party.

(b) In seduction, abduction and acts of lasciviousness

Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5]

(c) The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna (1902)]

(d) If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender.

General rule: Pardon must be made before the filing of the criminal complaint in court. Exception: In rape, where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence. If there is more than one accused, the pardon must be extended to all offenders. Pardon or desistance extinguishes civil liability. Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations.

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

CRIMINAL ACTIONS, WHEN ENJOINED General rule: The prosecution of a criminal case may not be enjoined by prohibition/injunction. [Domingo v. Sandiganbayan, 1986] Exceptions (Bar 1999): (1) To afford protection to the constitutional rights of

the accused; (2) Necessary for the orderly administration for

justice or to avoid multiplicity of actions; (3) There is a prejudicial question which is sub judice;

(4) The acts of the officer are without or in excess of authority;

(5) The prosecutions is under an invalid law/ordinance/regulation;

(6) When double jeopardy is clearly apparent; (7) The court has no jurisdiction over the offense; (8) A case of persecution rather than prosecution; (9) The charges are manifestly false and motivated

by the lust for vengeance; (10) There is clearly no prima facie case against the

accused and MTQ on that ground has been denied; [Samson vs Guingona (2000)]

(11) Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners.

CONTROL OF PROSECUTION General Rule: All criminal actions commenced by a complaint or information shall be prosecuted under the DIRECTION and CONTROL of the prosecutor. [Sec. 5, Rule 110] Exception: In case of heavy work schedule of the public prosecutor OR in the event of lack of public prosecutors, The private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case SUBJECT to the approval of the court. However, the criminal action is still prosecuted under the direction and control of the public prosecutor. [Riano] EXTENT OF THE PROSECUTOR’S CONTROL PRIOR TO THE FILING OF THE CASE Matters within the control and supervision of the prosecutor: (1) What case to file (2) Whom to prosecute (3) Manner of prosecution (4) Right to withdraw information before

arraignment even without notice and hearing

AFTER A CASE IS FILED It is the prosecutor’s duty to proceed with the presentation of his evidence. The prosecutor has no power to dismiss the action without the court’s consent.

LIMITATIONS OF CONTROL BY THE COURT (1) Prosecution is entitled to notice of hearing (2) Court must await for petition for review

(maximum of 60 days) (3) Prosecution’s stand to maintain prosecution

should be respected by the court

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(4) The court must make its own independent assessment of evidence in granting or dismissing motion to dismiss. Otherwise, the judgment is void.

EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN

THE TRIAL Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People v. Beriales, (1976)]. SUFFICIENCY OF COMPLAINT OR INFORMATION COMPLAINT DEFINED A sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated. [Sec. 3, Rule 110] INFORMATION DEFINED An accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court. [Sec. 4, Rule 110; People vs Cinco (2009)] FORM & SUBSTANCE Sufficiency of complaint or information A complaint or information is sufficient if it states: (1) the name of the accused; (2) the designation of the offense given by the

statute; (3) the acts or omissions complained of as

constituting the offense; (4) the name of the offended party; (5) the approximate date of the commission of the

offense; and (6) the place where the offense was committed. [Sec.

6, Rule 110] Test for sufficiency of the complaint or information is whether the crime is described in intelligible terms with such particularity as to apprise the accused with reasonable certainty of the offense charged. [Lazarte, Jr. vs Sandiganbayan (2009)] An accused is deemed to have waived his right to assail the sufficiency of the information when he voluntarily entered a plea when arraigned and participated in the trial. [Frias v. People (2007)] Consequently, objections as to form cannot be made for the first time on appeal. The accused should have moved for a bill of particulars or for quashal of

information before arraignment, otherwise he is deemed to have waived his objections to such a defect. [People v. Teodoro (2009)] DESIGNATION OF OFFENSE Aver the acts and omissions constituting the offense. Specify the qualifying and aggravating circumstances [Sec. 8 and 9,Rule 110)](Bar 2001) This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Specific acts of accused do not have to be described in detail in the information, as it is enough that the offense be described with sufficient particularity to make sure the accused fully understands what he is being charged with. [Guy v. People (2009)] CAUSE OF THE ACCUSATION WHAT TO ALLEGE Where the law prescribes exceptions General rule: Where the law alleged to have been violated prohibits generally acts therein defined AND is intended to apply to all persons indiscriminately, BUT prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove.

Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions. Qualifying and aggravating circumstances must be alleged; otherwise, they are not to be considered even if proven during the trial. [Sec. 8, Rule 110]

Where exceptions form as ingredients of offense If the exception is needed for defining the offense, then the information should negate the exception. [US vs Chan Toco (1908)] Where complex crime is charged Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the

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defendant can only be convicted of the offense proven. DUPLICITY OF THE OFFENSE; EXCEPTION (BAR 2005) DUPLICITY OF OFFENSE in an information or complaint means the joinder of two or more separate and distinct offenses in one and the same information or complaint. General rule: The information must charge only one offense.[Sec. 13, Rule 110] Objection to a complaint or information which charges more than one offense must be timely interposed before trial. [Sec 3, Rule 120] Failure to do so constitutes a waiver, [People v Tabio (2008)] and the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense. [Sec 3, Rule 120] Exception: When the law prescribes a single punishment for various offenses Remedy: The filing of a motion to quash is the remedy in case of duplicity of offense in an information Waiver: Should there be duplicity of offense in the information, the accused must move for the quashal of the same before arraignment.Otherwise, he is deemed to have waived the objection

SEVERAL MODES OF COMMITTING OFFENSE NOT

DUPLICITOUS General rule: In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. Exceptions: (a) Complex crimes (b) Special complex crimes (c) Continuous crimes (d) Crimes susceptible of being committed in various

modes (e) Crimes which another offense is an ingredient

[People v. Camerino (1960)]

AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION [SEC. 14, RULE 110] (BAR 2001, 2002) AMENDMENTS IN FORM AND SUBSTANCE BEFORE PLEA General rule: It must be made BEFORE the accused enters his plea. Exception: If the amendment downgrades the nature of the offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court. The court is mandated to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order. AMENDMENTS MADE AFTER PLEA AND DURING TRIAL Formal – can only be made under two conditions (1) Leave of court must be secured (2) It does not cause prejudice to the rights of the

accused. [Sec 14, Rule 110] The test as to WON a defendant is prejudiced by the amendment of information is: (a) WON a defense under the information as it

originally stood would be available after the amendment is made, and

(b) WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. [People vs Casey (1981)]

(c) An amendment is only in form Substantial – proscribed. [People vs. Zulueta (1951)] Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. [Almeda vs Villaluz (1975)] Exception: if it is beneficial to the accused. [Ricarzevs CA (2007)] Substitution – a complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense, provided the accused would not be placed in double jeopardy. [Sec 14, Rule 110] Subject to the Sec 19, Rule 119, when it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included

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therein, the accused shall not be discharged if there appears good cause to detain him. The court shall commit the accused to answer the proper offense and dismiss the original case upon the filing of the proper information. Limitations: (1) No judgment has yet been rendered (2) The accused cannot be convicted of the offense

charged or of any other offense necessarily included therein

(3) The accused would not be placed in double jeopardy

Distinction between substitution and amendment (Bar 1994)

Amendment Substitution

Formal or Substantial changes

Substantial change form original

Can be effected without leave of court

Must be with leave of court

Only as to form, there is no need for another PI and retaking of plea

Another PI is entailed and accused has to plead anew

Amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy

Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy

VENUE OF CRIMINAL ACTIONS Place where action is to be instituted Criminal actions shall be instituted and tried in the court of the municipality or territory (1) where the offense was committed; or (2) where any of its essential ingredients occurred.

[Sec. 15(a), Rule 110] Venue is jurisdictional The court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. How venue or jurisdiction determined Venue in criminal cases is jurisdictional. One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. The place where the accused was arrested is of no moment. [People vs Enriquez]

General Rule: Principle of Territoriality Subject to existing laws, in all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where the offense was committed or any of its essential ingredients occurred (Sec. 15(a), Rule 110). Exceptions:

Felony Venue

Felonies under Art. 2, RPC Cognizable by the proper court where criminal action was first filed

Committed on a railroad train, aircraft, or any other public or private vehicle in the court of its trip

May be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during such trip, including place of departure and arrival

Committed on board a vessel in the course of its voyage

May be instated and tried in the proper court of the first port of entry or of any municipality or territory through which vessel passed, subject to the generally accepted principles of international law

Piracy Venue of piracy has not territorial limits. It may be tried anywhere. [People v. Lol-lo GR No. 17958, February 27, 1922]

Libel May be instituted at the election of the offended part or suing party in the province or city, subject to Art. 360, RPC

In cases filed under BP 22 Action shall be filed in the place where the check was dishonored or issued. In case of a cross-check, in the place of the depositary or collecting bank

In exceptional circumstances

To ensure a fair trial and impartial inquiry, the SC shall have the power to order a change of venue or place of trial to avoid miscarriage of justice (Sec. 5(4), Art. VII, 1987

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Felony Venue

Constitution)

INTERVENTION OF OFFENDED PARTY [SEC. 16, RULE 110] General rule: An offended party has the right to intervene in the prosecution of a crime Note: This is still subject to the control of the prosecutor. [Phil. Rabbit Bus Lines vs People (2004)] Exceptions: (1) Where, from the nature of the crime and the law

defining and punishing it, no civil liability arises in favor of a private offended party.

(2) Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action.

(3) Offended party has already instituted action for civil claims

Prosecution of Civil Action RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION HOW INSTITUTED

General rule: The civil action for the recovery of civil liability arising from the offense charged is deemed instituted with the criminal action. [Sec. 1, Rule 111] Exception [Sec. 1, Rule 111]: If the offended party: (1) Waives the civil action; (2) Institutes the civil action prior to the criminal action; or (3) Reserves the right to institute it separately WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY Under the Rules, only civil liability ARISING FROM the crime charged is deemed instituted, hence, the civil actions under the Civil Code, specifically Arts. 32, 33, 34, and 2176, remain separate, distinct, and independent of any criminal prosecution although based on the same act. [Philippine Rabbit Bus Lines Inc. v. People (2004)] When reservation is made: The reservation of the right to institute separately the civil action shall be

made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation [Sec. 1, Rule 111] SEPARATE ACTION FILED BY THE ACCUSED No counterclaim, cross-claim or 3rd-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. [Sec. 1, Rule 111] WHEN SEPARATE CIVIL ACTION IS SUSPENDED

After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. [Sec 2, Rule 111] The civil action, which should be suspended after the institution of the criminal action, is that arising from delict or crime. Civil actions under Arts. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. [Sec. 3, Rule 111] EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL ACTION [SEC. 4, RULE 111] (1) Criminal liability is extinguished [Art. 89, RPC] (2) As regards civil liability: Death is before arraignment: Dismissal of case without prejudice to filing of civil action against estate of the deceased Death is after arraignment and during pendency of criminal action: Extinguishes civil liability arising from the delict Death during pendency of appeal: Criminal liability and civil liability based thereon [People vs Ayochok (2010)] Exception: Independent civil actions instituted under Arts. 32, 33, 34 and 2176 of the Civil Code, or those instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against his estate.

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As regards the parties in the civil action: The heirs of the accused may be substituted without requiring the appointment of an executor/administrator. Court may appoint guardian ad litem for the minors. Court shall order legal representative/s to appear and be substituted within 30 days from notice. PREJUDICIAL QUESTION (1999 BAR) [SECS. 6 AND 7, RULE 111] ELEMENTS OF PREJUDICIAL QUESTION Prejudicial Question: is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. When a civil action may be considered prejudicial: (a) the civil case involves facts intimately related to

those upon which the criminal prosecution would be based;

(b) in the resolution of the issue/s raised in the civil action, the guilt/innocence of the accused would necessarily be determined;

(c) jurisdiction to try the action is lodged in another tribunal [Basis of a) to c): Magestrado v. People (2009)]

(d) Action is instituted prior to the institution of the criminal action [Pimentel v. Pimentel (2010)]

Rationale: to avoid two conflicting decisions in the civil case and in the criminal case. [Sy Thiong Siou vs Sy Chim (2009)] EFFECT (BAR 1995, 1999, 2010) General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence [Sec 2, Rule 111] Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case. WHERE TO FILE PETITION FOR SUSPENSION IS FILED [SEC.

6, RULE 111] Office of the prosecutor (in the PI stage); Court conducting the PI; or Court where criminal action has been filed for trial, at any time before the prosecution rests. Note: The Rule precludes a motu proprio suspension of the civil action. [Riano]

RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN

CRIMINAL ACTION Filing fees apply when damages are being claimed by the offended party. General Rule: The actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. [Sec. 1, Rule 111] When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial; In any other case—i.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages. [General vs Claravall (1991)] Exceptions: In criminal actions for violation of BP22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. In estafa cases, the filing fees shall be paid based on the amount involved. [A.M. No. 04-2-04] When paid: Upon the filing of the criminal action

Preliminary Investigation NATURE OF RIGHT PRELIMINARY INVESTIGATION, DEFINED It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. [Sec. 1, Rule 112] NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION It is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process. [People vs. Oandasa (1968)] Not a mere formal or technical right but a substantial right.

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RIGHT TO PRELIMINARY INVESTIGATION The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication. When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court. [People vs Perez (1960)] An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that he raises the challenge before entering his plea [Sec. 26, Rule 114]. INSTANCES WHEREIN THE RIGHT TO PI IS DEEMED

WAIVED: (1) Express waiver or by silence [Herrera, Vol. IV, p.

278, 2007 ed.] (2) Failure to invoke it during arraignment [People v.

De Asis, GR No. 105581, Dec. 7, 1993]; and (3) Consenting to be arraigned and entering a plea of

not guilty without invoking the right to PI [People v. Bulosan, GR No. 58404, April 15, 1988]

The waiver, whether express or implied, must be in a clear and unequivocal manner [Herrera, Vol. IV, p.278, 2007 ed.] The right to PI cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, GR No. 101978, April 7, 1993] INSTANCES WHEREIN THE RIGHT TO PI IS NOT DEEMED

WAIVED: (1) Failure to appear before the prosecutor during the

clarificatory hearing or when summoned,w hen the right was invoked at the start of the proceeding [Larranaga v. CA, GR No. 130644, March 13, 1998]; or

(2) When the accused filed an application for bail and was arraigned over his objection and the accused demand that preliminary investigation be conducted [Go v. CA, GR No. 101837, Feb. 11, 1992]

PURPOSES OF PRELIMINARY INVESTIGATION To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty. [Raro vs. Sandiganbayan (2000)] To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also

protect the state from useless and expensive trials. [Tandoc vs. Resultan (1989)] SCOPE OF PI A PI is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy. WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Probable cause The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted Generally [Rule 112, Sec. 2 as amended by A.M. No. 05-8-26-SC] 1) Provincial/city prosecutors and their assistants; 2) National and regional state prosecutors; 3) Other officers as may be authorized by law. The prosecutor If the determination of probable cause is for purposes of indictment; such finding will not be disturbed by the court unless there is finding of grave abuse of discretion The Court If the determination of probable cause is for purposes of issuance of warrant of arrest COMELEC, when vested COMELEC may conduct investigation as regards election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec. 265, Omnibus Election Code] Ombudsman The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. [Sec. 12, Art. XI, Constitution] The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of

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the Sandiganbayan, but also those within the jurisdiction of regular courts as well. Note: RTC judges have NO power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and

MCTC from those authorized to conduct a PI effective October 3, 2005. PROCEDURE FOR PRELIMINARY INVESTIGATION [Sec. 3, Rule 112 of Rules of Criminal Procedure] RESOLUTION OF INVESTIGATING PROSECUTOR [SEC. 4, RULE 112] If he finds probable cause to hold respondent for trial, he shall prepare a resolution and certify under oath in the information that:

a. He or an authorized officer has personally examined the complainant and his witnesses;

b. That there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof;

c. That the accused was informed of the complaint and evidences against him;

d. That he was given opportunity to submit controverting evidence

If he finds no probable cause, he shall recommend the dismissal of the complaint REVIEW [SEC. 4, RULE 112]

Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or to the Ombudsman in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

Within 10 days from receipt of the resolution, the prosecutor/Ombudsman will act on the case.

No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the prosecutor or Ombudsman. In case the investigation officer recommends the dismissal of the complaint but the prosecutor/Ombudsman disagrees, the latter may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI.

Filing of the complaint [Sec. 3(a), Rule 112] (1) Stating the respondent’s name and address (2) Include the affidavits of complainant and the witnesses,

and other documents to establish probable cause, which must be subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public

(3) In such number of copies as there are respondents, plus 2 copies for the official file

Action of the investigating officer [Sec. 3(b), Rule 112] (1) Within 10 days after the filing of the complaint, the

investigating officer will either: (2) Dismiss, if he finds no ground to continue; or (3) Issue a subpoena to the respondent, attaching the

complaint and other documents.If subpoena is not possible, the investigating officer shall decide based on what complainant presented.

(4) Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense.

Defendant’s counter-affidavit

Must be made within 10 days from receipt of complaint, and must comply with the same requirements as a complaint. [Sec. 3(c), Rule 112] If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112]

Clarificatory Hearing [Sec. 3(e), Rule 112] The investigator must conduct a hearing within 10 days from receipt of the counter-affidavit. The hearing must be finished in 5 days. Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness. Parties may be present evidence, but they have no right to examine or cross-examine. Questions of parties shall be submitted to the investigating officer.

Within 10 day after the investigation, the officer shall determine WON there is sufficient ground to hold respondent for trial.

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Note: The DOJ Secretary may file the information without conducting another PI or dismiss the information filed by the prosecutor. The DOJ Secretary may review resolutions, via petition for review to the Secretary of Justice, of his subordinates in criminal cases despite the information being filed in court (Community Rural Bank of Guimba v. Talavera, AM No. RTJ-05-1909, April 6, 2005) See also DOJ Circular No. 70 REMEDY OF AN AGGRIEVED PARTY AGAINST THE

RESOLUTION OF THE DOJ SECRETARY Such resolution may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction [Ching v. Sec. of Justice, 2006] The DOJ resolution is appealable administratively before the Office of the President and the decision of the latter may be appealed before the CA pursuant to Rule 43 [De Ocampo v. Sec, of Justice, 2006] WHEN WARRANT OF ARREST MAY ISSUE If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial. The PI conducted by the prosecutor is EXECUTIVE in nature, it is for the purpose of determining whether or not there exists sufficient ground for the filing of information; The PI conducted by the judge which is properly called PRELIMINARY EXAMINATION is for the determination of probable cause for the issuance of warrant of arrest [P/Supt. Cruz v. Judge Areola, AM No. RTJ-01-1642, March 6, 2002] CASES NOT REQUIRING A PRELIMINARY INVESTIGATION CASES NOT REQUIRING A PRELIMINARY INVESTIGATION

NOR COVERED BY RULE ON SUMMARY PROCEDURE [SEC. 8, RULE 112] Cases punishable by imprisonment of less than 4 years, 2 months and 1 day, filed with the prosecutor or MTC/MCTC

REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION EFFECT OF DENIAL OF RIGHT TO PRELIMINARY

INVESTIGATION The absence of PI: (1) does not impair the validity of the information or

otherwise render it defective; (2) neither does it affect the jurisdiction of the court; (3) nor constitute a ground for quashing the

information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI. [Villaflor v. Vivar(2001)]

Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.

Follow the procedure outlined in Sec. 3(a), Rule 112 above.

The judge may require submission of additional evidence within 10 days from notice, to determine the existence of PC.

If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period.

If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if the accused had already been arrested) and hold him for trial.

If the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead.

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IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED Injunction and writs of restraint General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained. Exception: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection to constitutional rights; and (e) in proper cases, because the statute relied upon is unconstitutional, or was "held invalid." [Ladlad v. Velasco (2007)] INQUEST DEFINITION An informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons

should remain under custody and correspondingly be charged in court. (DOJ-NPS Manual) General rule: PI is required to be conducted before a complaint/ information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. [Sec. 1, Rule 112] Exception: When a person is lawfully arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted.

However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125, RPC in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception. After the filing of the complaint/ information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. [Sec. 6, Rule 112]

PROCEDURE FOR INQUEST PROCEEDINGS Considered commenced upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which should include: (a) affidavit of arrest, investigation report, statement

of the complainant and witnesses, all of which must be subscribed and sworn to before him

(b) other supporting evidence gathered by the police

in the course of the latter's investigation of the criminal incident involving the arrested or detained person.

It must be terminated within the period prescribed under the provisions of Article 125 of the RPC, as amended.

INQUEST

No Probable Cause

Accused wants PI and is willing to waive Art. 125

Warrantless arrest as not valid

There is PC and arrest was valid

Dismiss the case

For PI Release for regular PI

File information

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Arrest DEFINITION The taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Rule 113, Sec. 1) IMMUNITY FROM ARREST Parliamentary Immunity Senators and Members of the House of Representatives, while Congress is in session and for offenses punishable by not more than 6 years imprisonment. (Art. VI, Sec. 11, 1987 Constitution) Diplomatic Immunity Ambassadors and ministers of foreign countries and their duly registered domestics subject to the principle of reciprocity (RA 75) ARREST, HOW MADE MODES OF EFFECTING ARREST (1) By an actual restraint of a person to be arrested. (2) By his submission to the custody of the person

making the arrest. (Rule 113, Sec. 2, Par. 1) It is enough that there be an intent on the part of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and impression that submission is necessary. [Sanchez v. Demetriou (1993)] NO UNNECESSARY VIOLENCE No violence or unnecessary force shall be used in making an arrest. (Rule 113, Sec. 2, Par. 2) Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required.

TIME TO MAKE ARREST An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6) ARREST WITHOUT WARRANT, WHEN LAWFUL (1997, 2000, 2003, 2004 BAR) General rule: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law. [Umil v. Ramos (1991)] Exceptions (Rule 113, Sec. 5)

In flagrante delicto When the person to be arrested: (a) has committed, (b) is actually committing, or (c) is attempting to commit an offense in the presence of the peace officer OR

private person who arrested him. (Rule 113, Sec. 5(a))

Requisites: (i) The person to be arrested must execute an OVERT

act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and

(ii) Such overt act is done in the presence or within the view of the arresting officer [ Zalameda v. People (2009); People v. Laguio (2007)]

“In his presence” means: [People v. Evaristo (1992)] He sees the offense, even though at a distance; He hears the disturbances created by the offense and proceeds at once to the scene; or Offense is continuing or has been consummated at the time arrest is made.

Entrapment An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Sec. 5(a) of the Rules of Court. [Teodicio v. CA (2004)]

Buy-bust operation When the appellant is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest. [People v. de Lara (1994)] Hot pursuit arrest When an offense has just been committed and the officer or private person has probable cause to believe, based on PERSONAL knowledge of facts or circumstances, that the person to be arrested has committed it (Rule 113, Sec. 5(b)) Requisites: (i) An offense has just been committed; and

There must be a large measure of immediacy between the time the offense was committed and the time of the arrest. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured [People v. del Rosario (1999); People v. Agojo (2009)];

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(ii) The person making the arrest has probable cause to believe, based on personal knowledge of facts, that the person to be arrested has committed it.

Probable cause must be based on personal knowledge which means an actual belief or reasonable grounds of suspicion [Abelita III v. Doria (2009)].

Arrest of escaped prisoner When the person to be arrested is a prisoner who has escaped: (Rule 113, Sec. 5(c)) (a) From a penal establishment or place where he is

serving final judgment OR temporarily confined while his case is pending; or

(b) While being transferred from one confinement to another.

Escapee may be immediately pursued or re-arrested without a warrant at any time and in any place within the Philippines. (Rule 113, Sec. 13)

Rationale: At the time of arrest, the escapee is in continuous commission of a crime (i.e. evasion of service of sentence). Notes: Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall forthwith arrested delivered to the nearest police station or jail. (Rule 113, Sec. 5, last par.) A WARRANTLESS arrest maybe made not only by a peace officer but also by a private person. Other lawful warrantless arrest (a) Where a person who has been lawfully arrested

escapes or is rescued (Rule 113, Sec. 13) Any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.

(b) By the bondsman, for the purpose of surrendering the accused. (Rule 114, Sec. 23)

(c) Where the accused who is released on bail attempts to leave the country without permission of the court where the case is pending. (Rule 114, Sec. 23)

RULES ON ILLEGALITY OF ARREST Effect of illegal arrest The legality of the arrest affects only the jurisdiction of the court over the person of the accused [People v. Nuevas (2007)]. A waiver of the right to question an illegal warrantless arrest does not also mean a waiver of

the inadmissibility of evidence seized during an illegal warrantless arrest [People v. Nuevas, supra]. Waiver of the illegality of the arrest Any objection involving the arrest or the procedure in the court’s acquisition of jurisdiction over the person of an accused must be made BEFORE he enters his plea; otherwise the objection is deemed waived [Zalameda v. People (2009)]. There is waiver if the accused voluntarily enters his plea and participates during trial, WITHOUT previously invoking his objections thereto [Leviste v. Hon Alameda (2010_); Borlongan v. Peña (2010)]. There must be clear and convincing proof that the accused had an actual intention to relinquish his right to question the existence of probable cause [Leviste v. Hon Alameda, supra; Borlongan v. Peña, supra]. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued, provided that he raises the objection before he enters his plea. (Rule 114, Sec. 26). When cured When the accused voluntarily submits to the jurisdiction of the trial court [Dolera v. People (2009); People v. Alunday (2008)]. By the filing of an information in court and the subsequent issuance by the judge of a warrant of arrest [Sanchez v. Demetriou (1993) METHOD OF ARREST BY OFFICER WITH WARRANT Duties of the arresting officer (1) Execution of warrant (Rule 113, Sec. 4)

The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within 10 days from its receipt. The officer to whom it was assigned for execution shall make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. In case of the officer’s failure to execute, he shall state the reasons therefor.

(2) The officer shall inform the person to be arrested

of (1) the cause of the arrest and (2) the fact that a

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warrant has been issued for his arrest. (Rule 113, Sec. 7) Exceptions: (a) When he flees; (b) When he forcibly resists before the officer has

opportunity to so inform him; (c) When the giving of such information will

imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest BUT after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (Rule 113, Sec. 7) This is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment. [Mallari v. CA (1996)]

(3) The officer executing the warrant shall arrest the

accused and deliver him to the nearest police station or jail without unnecessary delay (Rule 113, Sec. 3)

(4) No violence or unnecessary force shall be used in making an arrest. (Rule 113, Sec. 2, last par.).

Rights of the arresting officer (1) To summon assistance (Rule 113, Sec. 10)

He may orally summon as many persons as he deems necessary to assist him in effecting the arrest.

(2) To break into building or enclosure (Rule 113, Sec.

11)

Requisites: (a) The person to be arrested is or is reasonably

believed to be in said building; (b) He has announced his authority and purpose

of entering therein; and (c) He has requested and been denied

admittance. Also applicable where there is a valid arrest

without a warrant. (3) To break out from the building/enclosure when

necessary to liberate himself (Rule 113, Sec. 12) Also applicable where there is a valid warrantless arrest.

(4) To search the person arrested for dangerous

weapons or anything which may have been used or constitute proof in the commission of an offense without a warrant (Rule 126, Sec. 13)

BY OFFICER WITHOUT WARRANT Duties of arresting officer without warrant The officer shall inform the person to be arrested of (1) his authority and (2) the cause of the arrest. (Rule 113, Sec. 8) Exceptions: (a) When the person to be arrested is engaged in the

commission of the offense; (b) When he is pursued immediately after its

commission; (c) When he has escaped, flees or forcibly resists

before the officer has the opportunity to so inform him; or

(d) When the giving of such information will imperil the arrest.

BY PRIVATE PERSON (CITIZEN’S ARREST) Duties of private person effecting an arrest (1) The private person shall inform the person to be

arrested of (1) the intention to arrest him and (2) the cause of the arrest. (Rule 113, Sec. 9)

Exceptions: Same as those for arrest by an officer without a warrant.

(2) The private person must deliver the arrested

person to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sec. 7. Otherwise, the private person may be held liable for illegal detention.

REQUISITES OF A VALID WARRANT OF ARREST ESSENTIAL REQUISITES OF A VALID ARREST WARRANT

(ART. III, SEC. 2, 1987 CONSTITUTION) Must be issued upon probable cause determined PERSONALLY by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce; and The warrant must particularly describe the person to be arrested. INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST Upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. (Rule 112, Sec. 5(a)) The judge does not have to personally examine the complainant and his witnesses. Established doctrine provides: He shall personally evaluate the report and the supporting documents submitted by the fiscal

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regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; OR If on the basis thereof he finds NO probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses.[People v. Gray (2010); AAA v. Carbonell (2007))] DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF WARRANT OF ARREST Probable cause test Probable cause, in connection with the issuance of a warrant of arrest, assumes the existence of facts and circumstances that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested. [People v. Tan (2009)] Probable cause demands more than suspicion but it requires less than evidence that would justify conviction. [People v. Gabo (2010)] DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF A JUDGE

Fiscal Judge

Executive determination of PC

Judicial determination of PC

Determination of PC to hold a person for trial

Determination of PC to issue a warrant of arrest

W/N there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial

W/N a warrant of arrest should be issued

Rule: The determination of probable cause for issuing a warrant of arrest is made by the judge. The preliminary investigation proper---whether or not there is a reasonable ground to believe that the accused is guilty of the offense charged---is the function of the investigating prosecutor [AAA v. Carbonell (2007)].

Bail NATURE DEFINITION Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman,

to guarantee his appearance before any court as required under conditions hereinafter specified. [Rule 114, Sec. 1] PURPOSES (1) To relieve an accused from imprisonment until his

conviction and yet secure his appearance at the trial. [ People v. The Hon. Donato (2011)]

(2) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Art. III, Sec. 14, Const]; and

(3) To enable him to prepare his defense without being subject to punishment prior to conviction [Cortes v. Judge Catral (1997)].

AS REGARDS THE REQUIREMENT OF CUSTODY General Rule: Custody of the law is required before the court can act on an application for bail [Miranda v. Tuliao (2006)]

Exceptions (When witness/es post bail): (1) When bail is required to guarantee the

appearance of a material witness [Sec. 14, Rule 119];

(2) When bail is required to guarantee the appearance of a prosecution witness in cases where there is substitution of the information [Riano, citing Sec. 14, Rule 110]

WHEN A MATTER OF RIGHT; EXCEPTIONS BAIL AS A MATTER OF RIGHT When bail is a matter of right [Rule114, Sec. 4] (1) Before or after conviction pending appeal by the

MTC. (2) Before conviction by RTC of all offenses

punishable by penalty lower than reclusion perpetua.

WHEN BAIL NOT AVAILABLE When evidence of guilt is strong in capital offenses or those punishable by death, reclusion perpetua or life imprisonment.

Exception: When the accused is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong. Capital Offense An offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death. [Rule 114, Sec. 6] The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed.

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Note: R.A. 9346 (An Act Prohibiting the Imposition of in the Philippines) enacted on June 24, 2006 (which repealed R.A. No. 8177 and R. A. No. 7659) prohibited the imposition of death penalty. Under R.A. 9346, it stated that: Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment Bail in extradition proceedings Basis: [Gov. of USA vs Purganan & Jimenez (2002)] General Rule: Right to bail is available only in criminal proceedings and does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Exception: Only upon a clear and convincing evidence: (a) that once granted, the applicant will not be flight

risk or will not pose danger to the community; and

(b) that there exists special humanitarian and compelling circumstances.

Note: Bail is a matter of discretion in extradition proceedings [Government of Hong Kong Special Administrative Region v. Olalia (2007)] Right to bail is not available: (1) To military personnel accused under general

courts martial [Comendador v. de Villa (1991)] (2) After a judgment of conviction has become final

If he applied for probation before finality, he may be allowed temporary liberty under his bail [Rule 114, Sec. 24].

(3) After the accused has commenced to serve his sentence [Rule 114, Sec. 24]

WHEN A MATTER OF DISCRETION [RULE 114, SEC. 5] (1) Before conviction, in offenses punishable by

death, reclusion perpetua or life imprisonment and evidence of guilt is not strong

(2) Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. It may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court.

If the RTC decision changed nature of the offense from non-bailable to bailable, the application for bail can be resolved only by the appellate court.

Note: In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong. [Rule 114, Sec. 8]

In deportation proceedings, bail is discretionary upon the Commissioner of Immigration and Deportation. [Harvey v. Defensor-Santiago (1990)] WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL

BE DENIED: If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution, with notice to the accused, of any of the following: (1) Recidivism, quasi-recidivism, or habitual

delinquency or commission of a crime aggravated by reiteration of the accused.

(2) The accused previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification.

(3) Commission of offense while under probation, parole or conditional pardon by the accused.

(4) Probability of flight. (5) Undue risk that the accused may commit another

crime during pendency of appeal. HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES [SEC. 8, RULE 114] Note: RA 9346, Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment or life imprisonment CONVICTION This refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court. [Section 13, Article III, Const.] PROSECUTION HAS BURDEN OF PROOF At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. Evidence of Guilt in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. REGARDING MINORS CHARGED WITH A CAPITAL OFFENSE If the person charged with a capital offense is admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that

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prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death. DUTY OF JUDGE TO CONDUCT HEARING Duties of the trial judge in a petition for bail (a) Notify the prosecutor of the hearing and require

him to submit his recommendation; (b) Conduct a hearing of the application regardless

of whether or not prosecution refuses to present evidence to show that the guilt of the accused is strong;

(c) Decide whether the evidence of guilt of the accused is strong based on the summary of the evidence of the prosecution;

(d) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied. [Riano, citing Narciso v. Santa Romana-Cruz, 328 SCRA 505]

Note: Evidence presented during the bail hearing are automatically reproduced at the trial [Sec. 8, Rule 114] WHERE THE APPLICATION IS FILED: [SEC. 17, RULE 114; AS

AMENDED BY AM 05-08-26] General Rule: The application may be filed with the court where the case is pending. Exceptions: (a) If the judge of the court where the case is pending

is absent or unavailable, the application may be filed with any RTC/MTC/MeTC/MCTC judge in the province, city or municipality.

(b) Where the accused is arrested in a province, city/municipality other than where the case is pending, the application may be filed with any RTC of the said place. If no judge is available, then with any MeTC/MTC/MCTC judge in the said place. Judge who accepted the application shall forward it, together with the order of release and other supporting papers where the case is pending

(c) When a person is in custody but not yet charged, he may apply with any court in the province or city/municipality where he is held.

Note: Where the grant of bail is a matter of discretion, or the accused seeks to be released on

recognizance, the application may only be filed in the court where the case is pending, on trial, or appeal. GUIDELINES IN FIXING AMOUNT OF BAIL [RULE 114, SEC. 9] Primarily, but not limited to, the following factors: (1) Financial ability of the accused (2) Nature and circumstances of the offense (3) Penalty for the offense charged (4) Character and reputation of the accused (5) Age and health of the accused (6) Probability of the accused appearing at the trial (7) Forfeiture of other bail (8) Fact that accused was a fugitive from justice

when arrested (9) Forfeiture of other bail (10) Pendency of other cases where the accused is on

bail. BAIL WHEN NOT REQUIRED [SEC. 16, RULE 114] When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced. If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment. In cases filed with the MTC/MCTC for an offense punishable by an imprisonment of less than 4 yrs, 2 mos. and 1 day, and the judge is satisfied that there is no necessity for placing the accused under custody. [Riano, citing Sec. 8, Rule 112] In cases where a person is charged with violation of a municipal/city ordinance, a light felony and/or criminal offense, the penalty of which is not higher than 6mos imprisonment and/or a fine of 2000 or both where it is established that he is unable to post the required cash or bail bond. [Sec. 1, RA 6036]

Exceptions: (a) Caught committing the offense in flagrante (b) When accused confesses to the commission of

the offense unless he later repudiates the same in a sworn statement or in open court as having been extracted through force or intimidation

(c) Found to have previously escaped legal confinement, evaded sentence, or jumped bail

(d) Found to have violated Sec. 2 of RA 6036 which provides that the violation of the accused of the sworn statement (required instead of bail) shall justify the court to order his immediate arrest, if the accused’ failure to report is not justified

(e) Accused is a recidivist or habitual delinquent or has been previously convicted for an offense to

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which the law/ordinance attaches an equal/greater penalty or for two/more offenses to which it attaches a lighter penalty

(f) Accused committed the offense while on parole or under conditional pardon

(g) Accused has previously been pardoned for violation of municipal/city ordinance for at least two times [Riano, citing Sec. 1, RA 6036]

INCREASE OR REDUCTION OF BAIL After the accused is admitted to bail and for good cause, the court may increase or decrease the amount.

INCREASED BAIL Accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time. [Rule 114, Sec. 20] REDUCED BAIL Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. [Rule 114, Sec. 16] FORFEITURE AND CANCELLATION OF BAIL FORFEITURE OF BAIL [RULE 114, SEC. 21] If the accused failed to appear in person as required, bondsmen are given 30 days within which to: (1) Produce the body of the principal or give reason for the non-production. Bondsmen may:

(a) Arrest the accused; (b) Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking.

(2) Explain why the accused failed to appear. (a) If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail. (b) Bondsmen’s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted.

CANCELLATION OF BAIL [RULE 114, SEC. 22] Application by bondsmen Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon: (a) surrender of the accused; OR (b) proof of his death

Automatic Cancellation (1) Upon acquittal of the accused (2) Upon dismissal of the case (3) Upon execution of judgment of conviction APPLICATION NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION Bail is no longer a waiver of these objections [Rule 114, Sec. 26; Leviste v. Alameda (2011)]. Provided that the proper objections are timely raised (i.e., before accused enters a plea), an application or an admission to bail shall NOT bar the accused from challenging or questioning the: (1) Validity of his arrest. (2) Legality of the arrest warrant. (3) Regularity of preliminary investigation (4) Absence of preliminary investigation The court shall resolve the objections as early as practicable but not later than the start of the trial of the case. HOLD DEPARTURE ORDER & BUREAU OF IMMIGRATION WATCHLIST Bondsmen can prevent accused from leaving country by arresting him or asking for him to be re-arrested by a police officer upon written authority. [Rule 114, Sec. 23] The accused may be prohibited from leaving the country during the pendency of his case. [PP v. Uy Tuising (1935); Manotoc v. CA (1986)] If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be re-arrested without warrant. [Rule 114, Sec. 23] Hold-Departure/ Watchlist/ Allow Departure Orders A hold-departure order may be issued only by the RTCs in criminal cases within their exclusive jurisdiction. [SC Circular No. 39-97 (June 19, 1997)] SC Circular 39-97 deals with criminal cases pending in the RTC. This created a void, as to those cases pending in the MTC as well as those under preliminary investigation. Thus the DOJ promulgated DOJ Circular No. 41 governing the issuance of HDO, Watchlist Orders, and Allow Departure Orders. [Whereas clause of DOJ Circular No. 41]

Hold Departure Order Watchlist Order

When it may issue Against the accused, irrespective of nationality, in criminal cases falling within

Against the accused, irrespective of nationality, in criminal cases pending

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the jurisdiction of first-level courts (MeTC, MTC, MCTC) Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before an administrative agency of the government. Against any person, either motu proprio, or upon the request by the Head of a Department of the Government, the Chief Justice of the Supreme Court for the Judiciary; the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.

before the RTC

Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, PFR, or MR before the DOJ or any of its prosecution offices

Against any person pursuant to the “Anti-Trafficking in Persons Act of 2003” (RA 9208) or in the interest of national security, public safety or public health

Validity 5 years reckoned from the date of its issuance, unless sooner terminated

60 days reckoned from the date of its issuance, unless sooner terminated or extended for a non-extendible period of not more than 60 days

Grounds for lifting or cancellation

When the validity period has already expired When the accused has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled.

When the validity period has already expired When the accused has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge When the PI is terminated, or when the PFR or MR has been denied and/or dismissed

When Allow Departure Orders (ADOs) may issue: for exceptional reasons to allow the person to leave upon submission of the following: (1) An affidavit of purpose, including an undertaking

to report to the DOJ immediately upon return

(2) Authority to travel or travel clearance from the court or appropriate government office or from the investigating prosecutor

Rights of the Accused RIGHTS OF ACCUSED AT THE TRIAL [RULE 115] TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS

PROVED BEYOND REASONABLE DOUBT

The presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. [People v. Sanchez (2008)]

The Rules or the law may, however, provide for a presumption of guilt. [Hizon v. CA (2009)] In Hizon v. Court of Appeals (2009), the Court stressed that the statutory presumption is merely prima facie. At no instance can the accused be denied the right to rebut the presumption. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is

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required, or that degree of proof which produces convinction in an unprejudiced mind. [Rule 133, Sec.2] Where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence titlts the scales in favor of the accused [People v. Erguioza (2008)]. This is the “equipoise rule.” TO BE INFORMED OF THE NATURE AND CAUSE OF

ACCUSATION AGAINST HIM An accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. [People v. Ortega (1997)] Charge must be set forth with sufficient particularity to enable the accused to intelligently prepare his defense. [Balitaan v. CFI of Batangas (1982)] The purpose is served by arraignment. [Borja v. Mendoza (1977)] The title of the complaint, or the designation of the offense charged or the particular law violated is not controlling. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. [People v. Dimaano (2005)]

TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL

AT EVERY STAGE OF THE PROCEEDINGS Right to be present General Rule: Presence of the accused during the criminal action is not required and shall be based on his sole discretion. Exception: Presence of the accused is mandatory: (a) For purposes of identification; (b) At arraignment; [Rule 116, Sec. 1(b)] (c) At the promulgation of judgment; Exception: If the conviction is for a light offense. [Rule 120, Sec. 6]

This right may be waived when: (1) The accused is absent without just cause at the

trial of which he had notice; or (2) The accused under custody escapes, until custody

over him is regained. Trial in absentia Requisites: [Parada v. Veneracion (1997)] (a) Prior arraignment; (b) Proper notice of the trial; (c) Failure to appear is unjustifiable.

Effects: Waiver of right to be present, right to present evidence and right to cross-examine witnesses. [Gimenez v. Nazareno (1988)] Right to counsel (a) It means reasonably effective legal assistance.

[Gideon v. Wainright (1963)] (b) It is absolute and may be invoked at all times,

even on appeal. [Telan v. CA (1991)] (c) Duty to appoint counsel de oficio is mandatory

only at the time of arraignment. [Sayson v. People (1988)]

(d) Violation of this right entitles the accused to new trial. [People v. Serzo (1997)]The right to counsel may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused [People v. Del Castillo (2004)]. It must also not be contrary to law, public order, public policy, morals or good customs.

(e) Even a person under investigation for an offense shall the right to have a “competent and independent counsel preferably of his own choice” Included in this right is the right to be informed of his right to counsel [Sec. 12[1], Art. II, 1987 Constitution; Sec 2(b) RA 7438].

Right to defend in person Only when it sufficiently appears that he can protect his rights without the assistance of counsel [Sec. 1[b], Rule 115, Rules of Court]

TO TESTIFY AS WITNESS IN HIS BEHALF But subject to cross-examination on any matter covered by his direct examination. (Sec. 1[d]. Rule 115) Silence will not, in any manner, prejudice him. RIGHT AGAINST SELF-INCRIMINATION (2005 BAR) The right against self-incrimination has no application to juridical persons. [BASECO v. PCGG (1987)] The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. [Villafor vs. Summers (1920)] The proviso is that torture of force shall be avoided.

The right is applicable to one who is compelled to produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the witness is required to furnish evidence against himself. [People v. Nicandro (1986)]

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An accused “occupies a different tier of protection from an ordinary witness.” He is entitled 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; BUT if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. [People v. Judge Ayson (1989)] Thus, the right may be waived by the failure to timely assert the right, that is, by answering an incriminating question [Beltran v. Samson (1929)] when the accused testifies in his own behalf and is cross-examined on matters covered by the direct examination. [Sec. 1(f), Rule 115] The questions on cross examination should be on matters related to his direct examination. [People v. Judge Ayson, supra] RIGHT TO CONFRONTATION Applies to any witness against the accused at the trial. Where the adverse party is deprived of the right to cross-examine the persons who executed the affidavits, said affidavits are generally rejected for being hearsay. [Estrella v. Robles, Jr. (2007)] HOWEVER, either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, PROVIDED they involve the same parties and subject matter and the adverse party had the opportunity to cross-examine him. [Sec. 1(f), Rule 115] This right is waived by non-appearance. [Carredo v. People (1990)] The right does not apply in a preliminary investigation. They parties may, however, submit to the investigating officers questions which may be asked to the party or witness concerned. [Sec. 3(e), Rule 112] Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness. [People v. Lavarias (1968)] RIGHT TO COMPULSORY PROCESS This right may be invoked by the accused to secure the attendance of witnesses and the production of witnesses in his behalf.

If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary. [People v. Montejo (1967)] RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL In determining whether or not the right to speedy disposition of cases has been violated, this Court has laid down the following guidelines [Tan v. People (2009); Olbes v. Buemio (2009)]: (a) Length of the delay; (b) Reasons for such delay; (c) Assertion or failure to assert such right by the

accused; and (d) Prejudice caused by the delay. Remedy against denial of right: (a) Motion to Dismiss [Corpuz v Sandiganbayan

(2004)]

The accused is not entitled to a dismissal where such delay was caused by proceedings or motions instituted by him.A dismissal based on a violation of the right to speedy trial is equivalent to an acquittal and double jeopardy may attach even if the dismissal is with the consent of the accused. [Condrada v. People (2003)]

(b) Mandamus. [Lumanlao v. Hon. Peralta (2006)] RIGHT TO APPEAL In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law. [Hilario v. People (2008)] An appeal in criminal case opens the ENTIRE case for review and the appellate court may correct even unassigned errors. [People v. Tambis (2008)] The right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost. [People v. Sabellano (1991)] If the accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal. [People v. Omar (1991)] The right to appeal is lost by the unjustified failure to appear at the promulgation of judgment of conviction [Villena v. People, (2011)] RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION [SEC. 2, RA 7438] Custodial Investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Aquino v Paiste (2008)]

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It shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law. TO BE ASSISTED BY COUNSEL AT ALL TIMES Waiver of the right to counsel must be made with the assistance of counsel. [Art. 3, Sec. 12(1), Constitution] Specifically in the following instances: (a) Signing of the written custodial report; (b) Signing of the written extra-judicial confession (2008 Bar)

Requisites for the validity of an extrajudicial confession made by a person arrested, detained or under custodial investigation:

(1) It shall be in writing and signed by such person; and

(2) It must be signed in the presence of his counsel

OR, in the latter’s absence, upon a valid waiver;

In the event of a valid waiver, it must be signed in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him.

(c) Signing of the waiver to the provisions of Art. 125,

RPC. The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer [Lumanog v. People (2010)] If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer. Assisting counsel may be any lawyer, except those: (a) Directly affected by the case; (b) Charged with conducting preliminary

investigation; (c) Charged with the prosecution of crimes. [Sec. 3,

RA 7438)

TO REMAIN SILENT

TO BE INFORMED, IN A LANGUAGE KNOWN TO AND

UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT

AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,

PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL

TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE

PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL

INVESTIGATION TO BE ALLOWED VISITS BY OR CONFERENCES WITH: Any member of his immediate family ("Immediate family" includes his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward), or Any medical doctor or Priest or religious minister, chosen by him or by any member of his immediate family or by his counsel, or by any national NGO duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President.

CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS Failure to inform Any arresting public officer or employee, or any investigating officer, shall suffer a fine of P6,000.00 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both. The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification. Obstruction, prevention or prohibition of right to visits or conferences Any person guilty thereof shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years and a fine of P4,000.00

Arraignment and Plea ARRAIGNMENT AND PLEA, HOW MADE

DEFINITION The stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty. [Rule 116, Sec. 1(a)] It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [Borja v. Mendoza (1977)]

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DUTY OF THE COURT BEFORE ARRAIGNMENT The court shall [Rule 116, Sec. 6]: (a) Inform the accused of his right to counsel; (b) Ask him if he desires to have one; and (c) Must assign a counsel de officio to defend him;

unless the accused: (1) Is allowed to defend himself in person; or (2) Has employed a counsel of his choice.

BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY

AVAIL OF ANY OF THE FOLLOWING: (1) Bill of particulars – to enable him to properly

plead and prepare for trial (2) Suspension of arraignment – upon motion, the

proper party may ask for suspension of arraignment to pursue a petition for review before the DOJ Secretary under Sec. 11, Rule 116; period of suspension shall not exceed 60 days from filing of petition with the reviewing office

(3) Motion to Quash – at anytime before entering his plea, the accused may move to quash the complaint or information on any of the grounds under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117

(4) Challenge the validity of the arrest or legality of the warrant or assail the regularity or question the absence of preliminary investigation of the charge,

PROVIDED that if the accused does not question the legality of the arrest or search, this objection is deemed waived. HOW ARRAIGNMENT MADE In general

Note: The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. [Rule 116, Sec. 1(g)]

If accused pleads Guilty

For Non-Capital Offenses, promulgate judgment of conviction

For Capital Offenses, the prosecution is still required to prove guilt beyond reasonable doubt

If accused does not enter ANY plea, a plea of Not Guilty is entered by the Court

The Court shall issue an order directing the public prosecutor to submit the record of the PI to the branch COC for the latter to attach the same to the record of the case.

The court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him.

Arraignment

If accused pleads Not Guilty

Affirmative defense (admits the charge but raises exempting or justifying circumstances), then Reverse Order of Trial

Negative defense (denies the charge), then proceed to regular trial

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How Arraignment is Made (a) In open court where the complaint or information

has been filed or assigned for trial (b) By the judge or clerk of court (c) By furnishing the accused with a copy of the

complaint or information (d) Reading it in a language or dialect known to the

accused (e) Asking the accused whether he pleads guilty or

not guilty When Arraignment Should be Held General Rule: Accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person. Exception: Unless a shorter period is provided for by law: (1) When an accused is under preventive detention,

his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case (RA 8493 Speedy Trial Act)

(2) Where the complainant is about to depart from the Philippines with no definite date of return, the accused should be arraigned without delay (RA 4908)

(3) Cases under RA 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment

(4) Cases under the Dangerous Drugs Act (5) Cases under SC AO 104-96, i.e. heinous crimes,

violations of the Intellectual Property Rights Law, these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case

In case of failure of the OFFENDED PARTY to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. [Sec. 1(f), Rule 116; SC AM No. 03-1-09-SC Part B(2)] In case of failure of ACCUSED to appear despite due notice, there is NO ARRAIGNMENT IN ABSENTIA [Nolasco v. Enrile (1985)] - The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court.

There can be no trial in absentia without first arraigning the accused; otherwise, the judgment is null and void.

If the accused is under preventive detention The case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint. The accused shall be arraigned within 10 days from the date of the raffle. SPECIFIC RULES ON ARRAIGNMENT (a) Trial in absentia may be conducted only after

valid arraignment. (b) Accused must personally appear during

arraignment and enter his pleal; counsel cannot enter plea for the accused.

(c) Accused is presumed to have been validly arraigned in the absence of proof to the contrary.

(d) Generally, judgment is void if accused has not been validly arraigned.

(e) If accused went into trial without being arraigned, subsequent arraignment will cure the error provided that the accused was able to present evidence and cross examine the witnesses of the prosecution during trial.

If an information is amended in substance which changes the nature of the offense, arraignment on the amended information is MANDATORY. EXCEPT if the amendment is only as to form See Teehankee, Jr. v. Madayag, GR No. 103102, March 6, 1992 WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED

FOR THE ACCUSED [RULE 116, SEC. 1(C)] (a) When the accused so pleaded (b) When he refuses to plead (c) When he makes a conditional or qualified plea of

guilt (d) When the plea is indefinite or ambiguous (e) When he pleads guilty but presents exculpatory

evidence If the accused who pleaded guilty presents exculpatory evidence, his plea of guilt is withdrawn. The judge must order the accused to plead again or at least direct that a new plea of “not guilty” be entered for him, otherwise there shall be no standing plea for the accused. This is significant because if there is no standing plea, the accused cannot invoke double jeopardy later on.

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WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO A LESSER OFFENSE [RULE 116, SEC. 2] PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT

At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged.

PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT

BEFORE TRIAL

After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

PLEA TO A LESSER OFFENSE AFTER TRIAL HAS BEGUN

After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evdiecne to establish the guilt of the accused for the crime charged. The judge cannot on its own grant the change of plea. ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT THE COURT SHOULD DO [SEC. 3, RULE 116] DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A

CAPITAL OFFENSE (1) Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the pleas (2) Require prosecution to present evidence to prove the guilt and precise degree of culpability of the accused (3) Ask the accused if he desires to present evidence in behalf and allow him to do so if he desires SEARCHING INQUIRY PLEA OF GUILTY TO A CAPITAL OFFENSE [RULE 116, SEC.

3] The procedure in Sec. 3, Rule 116 is mandatory. The plea must be clear, definite and unconditional. It must be based on a free and informed judgment. The judge must ask whether the accused was assisted by counsel during CI and PI; ask questions on age, educational attainment and socio-economic status; and ask the defense counsel WON he conferred with the accused. [People v. Nadera (2000)]

Rationale: To proceed with more care where the possible punishment is in its severest form; to avoid improvident pleas of guilt.[People v. Samontanez (2000)] IMPROVIDENT PLEA OF GUILTY TO A CAPITAL OFFENSE DEFINITION Plea without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice. [Black’s Law Dictionary] General rule: An improvident plea should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction. [People v. De Ocampo Gonzaga (1984)] The case should be remanded to the lower court for further proceedings. Exception: If the accused appears guilty beyond reasonable doubt from the evidence adduced by the prosecution and defense. WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN At any time before judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty. The withdrawal of a plea of guilty is not a matter of right of the accused but of sound discretion of the trial court [People v. Lambino, 103 Phil 504, 1958] The reason for this is that trial has already begun and the withdrawal of the plea will change the theory of the case and put all past proceedings to waste. Moreover, at this point, there is a presumption that the plea was made voluntarily GROUNDS FOR SUSPENSION OF ARRAIGNMENT [RULE 116, SEC. 11] UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE

TIME OF THE ARRAIGNMENT (1) When the accused can neither comprehend the

full import of the charge nor can he give an intelligent plea.

(2) The court shall order his mental examination and, if necessary, his confinement.

(3) The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and defense counsel had called attention to. [People v. Alcalde (2002)]

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(4) 3 major criteria to determine insanity: [People v. Dungo (1991)] (a) DELUSION TEST – Insanity is manifested by

a false belief for which there is no reasonable basis and which would be incredible under the given circumstances.

(b) IRRESISTIBLE IMPULSE TEST – The accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed.

(c) RIGHT AND WRONG TEST – A perverted condition of mental and mortal faculties as to render him incapable of distinguishing between right and wrong

(5) Tests to determine insanity: [People v. Pascual (1993)] (a) TEST OF COGNITION – Complete

deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction.

(b) TEST OF VOLITION – A total deprivation of free will.

PREJUDICIAL QUESTION EXISTS Rationale: A prejudicial question would be determinative of guilt or innocence. It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment.

PENDING PETITION FOR REVIEW OF THE RESOLUTION OF

THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE

PRESIDENT. The accused should file a motion to suspend and to secure a ruling on his petition for review within 60 days from the filing of the petition. (DOJ Circular No. 70) Rationale: Need to observe judicial courtesy and to avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense. With the arraignment of the accused, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same. [Gandarosa v. Flores, July 17, 2007] PENDING MOTION TO QUASH If petition for review is not resolved within 60 days, court may insist on arraigning already

Motion to Quash Time for Filing: Any time before the accused enters his plea [Sec. 1, Rule 117] Form and Contents (a) Must be in writing; (b) Signed by the accused/his counsel; and (c) Distinctly specify the factual and legal grounds. [Sec. 2, Rule 117] In case of Summary Procedure MTQ is allowed only if made on the grounds of lack of jurisdiction or failure to comply with barangay conciliation proceedings. [Sec. 19, Rules on Summary Procedure] GROUNDS [RULE 117, SEC. 3] (1998 BAR) The following grounds for MTQ are EXCLUSIVE: (1) Facts charged do not constitute an offense (2) Court trying the case has no jurisdiction over the offense charged. (3) Court trying the case has no jurisdiction over the person of the accused. (4) Officer who filed the information had no authority to do so. (5) The information does not conform substantially to the prescribed form. (6) More than one offense is charged

Exception: When a single punishment for various offenses is prescribed by law

(7) Criminal action or liability has been extinguished. (8) Averments which, if true, would constitute a legal excuse or justification. (9) Accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (Double Jeopardy Rule) Note: Although the rule is that grounds not asserted in the motion to quash are waived, the following objections are not subject to waiver: (1) Facts charged do not constitute an offense (2) Court trying the case has no jurisdiction over the

offense charged (3) Criminal action or liability has been extinguished (4) Double jeopardy

FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE An information which does not charge an offense or does not allege essential elements of a crime is void.

Test: WON the facts alleged, if hypothetically admitted, would establish the essential elements of the offense, as defined by law without considering matters aliunde. [People v. Romualdez (2008)]

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That a) the missing element may be proved during the trial or that b) the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist. [People v. Asuncion (1988)] Instead of dismissing, the court should give the prosecution an opportunity to amend the information. [Rule 117, Sec. 4] (a) Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, the MTQ shall be granted. [Rule 117, Sec. 4] (b) When the prosecutor dismisses the case, the prosecutor should file a valid information, not a petition for review for certiorari. The defect is not cured by a failure to move to quash or by a plea of guilty. [Suy Sui v. People (1953)]

General Rule: In a MTQ, facts other than those alleged in the complaint/information may NOT be considered by the court.

Exceptions: (a) Facts already admitted by the prosecution [People

v. Navarro]; (b) Undisputed facts apparent from the records of

the PI and not denied by the prosecutor. [Salonga v. Pano (1985)]

(c) Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information. [People v. de la Rosa (1988)]

(d) ROC expressly permits the investigation of facts alleged. [People v. Alagao (1966)] [Rule 117, Sec. 2(f)(h), 4 & 5]

COURT HAS NO JURISDICTION OVER THE OFFENSE

CHARGED Jurisdiction over the subject matter: The power to adjudge concerning the general question involved (See Discussion on Jurisdiction)

In a criminal prosecution, the place where the offense was committed not only determines venue, but is an essential element of jurisdiction. [Rule 110, Sec. 15; Lopez v. City Judge (1966)] In private crimes, the complaint of the offended party is necessary to confer authority to the court. The court had jurisdiction over the case since, for as long as he continues to evade the service of his sentence, he is deemed to continue committing the crime, and may be arrested without warrant at any

place where he may be found. [Parulan v. Director of Prisons (1968)]

COURT HAS NO JURISDICTION OVER THE PERSON OF THE

ACCUSED How jurisdiction is acquired (a) By arrest of the accused; or (b) By his voluntary appearance in court.

It is waivable expressly or by implication, unlike jurisdiction over the territory and the subject matter. When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction of the court. [Sanchez v. Demetriou (1993)] When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money. [Mead v. Argel (1982)] OFFICER WHO FILED INFORMATION HAD NO AUTHORITY TO

DO SO Authority to file and prosecute criminal cases is vested in: (a) Provincial fiscals and their assistants. (b) City fiscals and their assistants. (c) Chief State Prosecutor and his deputies (d) Other officers authorized by law (Ombudsman,

COMELEC, etc.) The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense. [Cudia v. CA (1998)] An Information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. Election Offenses: Must be signed by the duly deputized prosecutors and legal officers of the COMELEC. Lack of authority of the officer to is not cured by silence, acquiescence, express consent or even by amendment. COMPLAINT/INFORMATION DOES NOT CONFORM

SUBSTANTIALLY TO THE PRESCRIBED FORM The formal and substantial requirements are provided for in Rule 110, Sec. 6-12.

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General Rule: Lack of substantial compliance renders the accusatory pleading nugatory.

Exception: Mere defects in matter of form may be cured by amendment. Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal. [People v. Garcia (1997)]

Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars. [Rule 116, Sec. 9]

MORE THAN ONE OFFENSE IS CHARGED General Rule: The complaint or information must charge only one offense. [Rule 110, Sec. 13] Exception: Those cases in which existing laws prescribe a single punishment for various offenses. (a) Complex and compound crimes, EXCEPT where one offense was committed to conceal another. (b) An offense INCIDENTAL to the gravamen of the offense charged. (c) A specific crime set forth in various counts, each of which may constitute a distinct offense. The narration of the specific of the specific acts is considered a bill of particular of facts upon which the inference of guilt of the accused may be based [People v. Yap (1968)]

This ground is waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of 2 or more separate offenses in the same information. [People v. Villamor (1998)] If the criminal acts are committed on different occasions, each constitutes a separate offense.

CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED How criminal liability is extinguished (a) Death of the accused - Liability for pecuniary

penalties is extinguished only if death occurs before final judgment.

(b) Service of Sentence - Execution must be by virtue of a final judgment and in the form prescribed by law.

(c) Amnesty (d) Absolute pardon (e) Prescription of the crime (f) Prescription of the penalty (g) Pardon in private offenses Enjoyment of an accrued right cannot forever be left on a precarious balance. [People v. Reyes (1989)]

Protection from prosecution under a statute of limitation is a substantive right. [People v. Sandiganbayan (1992)]

CONTAINS AVERMENTS WHICH, IF TRUE, WOULD

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION Justifying Circumstances [Art 11, RPC] Exempting Circumstances [Art 12, RPC]

DISTINGUISH FROM DEMURRER TO EVIDENCE

Motion to Quash Demurrer to Evidence

Filed before entering plea Filed after the prosecution has rested its case

Does not go into the merits of the case

Based upon the inadequacy of the evidence adduced by the prosecution

Grounds are stated in Rule 117

Ground is “insufficiency of evidence” to convict

Does not require a prior leave of court

May be filed either with leave or without leave of court

Granting does not necessarily follow a dismissal (Court may order the filing of a new complaint or information)

Granting is deemed an acquittal and would preclude the filing of another information or appeal by the prosecution

If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies

The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari before judgment” If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer is filed without leave, the accused waives the right to present evidence and submits the case for judgment [Sec. 23, Rule 119]

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EFFECTS OF SUSTAINING THE MOTION TO QUASH Court order sustaining motion General Rule: Court may order that another complaint or information be filed. [Rule 117, Sec. 5] Exception: If MTQ was based on the following: (1) Criminal action or liability has been extinguished (2) Double jeopardy General Rule: If in custody, the accused shall not be discharged unless admitted to bail. [Rule 117, Sec. 5] The order must state either release of the accused or cancellation of his bond. Exception: When there is no order sustaining the motion is made OR if there is one, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause. Exception to the exception: If he is in custody for another charge. Remedies of the prosecution General Rule: To amend the information to correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information. [Rule 117, Sec. 4] Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense.

Prosecution may appeal from the order of quashal to the appellate court. If the information was quashed because it did not allege the elements of the offense, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ. [People v. Purisima (1978)]

Order denying MTQ Order granting MTQ

Interlocutory Final Order

Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari

Immediately appealable but subject to rules on double jeopardy

Does not dispose of the case upon its merits

Disposes of the case upon its merits

Proper remedy: appeal after the trial

Proper remedy: appeal the order

Consequence: Arraignment

Consequence: (Prosecution): Amend information if possible

Note: The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating the special defenses invoked in their MTQ. [Serana v. Sandiganbayan (2008)] However, if the court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. [Lazarte v. Sandiganbayan; Javier v. Sandiganbayan (2009)] EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION (BAR 1994) General Rule: A MTQ will not be a bar to another prosecution for the same offense. [Rule 117, Sec. 6] Exception: If the ground for the quashal is either: (1) The criminal action or liability has been

extinguished; OR (2) The accused has been previously convicted, or in

jeopardy of being convicted, or acquitted of the offense charged.

DOUBLE JEOPARDY The right against double jeopardy prohibits the prosecution for a crime of which he has been previously convicted or acquitted [Caes v. IAC, 179 SCRA 54] RULE OF DOUBLE JEOPARDY When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense. [Rule 117, Sec. 3(i)] KINDS OF DOUBLE JEOPARDY [Art III, Sec. 21, Consti] (1) No person shall be put twice in jeopardy for the SAME OFFENSE. (2) When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the SAME ACT.

SAME OFFENSE The offenses are penalized either by different sections of the same law or by different statutes. Must examine the essential elements of each: Test: WON evidence that proves one offense would likewise prove the other. [People v. Ramos (1961)] It is not necessary to have absolute identity. [People v. Relova (1987)]

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SAME ACT An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy. However, the second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts. [People v. Relova (1987)] Liability is produced both under an ordinance and a national statute. REQUISITES TO SUCCESSFULLY INVOKE DOUBLE JEOPARDY (a) A first jeopardy must have attached; (b) The first jeopardy must have been validly

terminated; and (c) The second jeopardy must be for the same

offense OR the second offense necessarily includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof [People v. Espinosa, 409 SCRA 256]

REQUISITES FOR FIRST JEOPARDY TO ATTACH (a) The accused has been convicted/acquitted, OR

the case against him was dismissed/terminated without his express consent;

(b) That the conviction, acquittal or dismissal was made by the court with competent jurisdiction;

(c) There is a valid complaint or information or other formal charge is sufficient in form and substance to sustain conviction;

(d) The accused pleaded to the charge. [Riano, citing several cases People v. Honrales (2010)]

Exception: A dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone. [Galman v. Sandiganbayan (1986)] “WITHOUT EXPRESS CONSENT” It refers only to dismissal or termination of the case. It does NOT refer to the conviction or acquittal. [People v. Labatete (1960)] If consent is not express, dismissal will be regarded as final – i.e. with prejudice to refilling. [Caes v. IAC (1989)] Exception: Dismissal has the effect of acquittal even with the consent of the accused when predicated on (1) insufficiency of the prosecution’s evidence or (2) denial of the right to a speedy trial. [Alamario v. CA (2001)]

DISMISSAL = ACQUITTAL (a) Demurrer to evidence (b) Dismissal due to violation of right to speedy trial

(even if dismissal was upon motion of the accused or with his express consent)

DISMISSAL VS. ACQUITTAL

Dismissal Acquittal

Does not decide the case on the merits. Does not determine innocence or guilt

Always based on the merits. Defendant’s guilt was not proven beyond reasonable doubt.

Double jeopardy will not always attach

Double jeopardy always attaches

Tests for determining whether the two offenses are identical: There is IDENTITY between the two offenses not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information.

Exception to the Identity Rule: (1) The graver offense developed due to supervening

facts arising from the same act or omission constituting the former charge.

(2) The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information.

(3) The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party EXCEPT when offended party failed to appear during such arraignment.

PROVISIONAL DISMISSAL (BAR 2003) [SEC. 8, RULE 117] DEFINITION A case is dismissed without prejudice to its being refiled or revived. Rule: Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal. Grounds for provisional dismissal Section 8 does not state the grounds for provisional dismissal. However, according to the case of Los Baños v. Pedro (2007), the delimitation of the grounds available in a MTQ suggests that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash,

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and not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain. WHEN DISMISSAL BECOMES PERMANENT: TIME BAR RULE (a) One year after issuance of the order without the

case having been revived for offenses punishable: [Rule 117, Sec. 8] (1) By imprisonment not exceeding 6 yrs (2) By fine of any amount (3) By both

(b) 2 yrs after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 yrs.

(c) The State may revive beyond the periods provided there is a justifiable necessity for the delay.

(d) The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only. [People v. Lacson (2003)]

Conditions sine qua non to the application of the time-bar rule: (a) The prosecution with the express conformity of the accused OR the accused moves for the provisional (sin perjucio) dismissal of the case; OR both the prosecution and the accused move for a provisional dismissal of the case; (b) The offended party is notified of the motion for the provisional dismissal of the case (c) The court issues an order granting the motion and dismissing the case provisionally; (d) The public prosecutor is served with a copy of the order of provisional dismissal of the case. [People v. Lacson (2003)]

HOW TO REVIVE A CASE: (1) Refiling of the information (2) Filing of a new information for the same offense

or one necessarily included in the original offense charged.

REQUISITE PROCEDURE [RULE 117, SEC. 8] Motion can be made: (1) By the prosecution, with the express conformity of

the accused (2) By the accused (3) By both Requisites for Provisional Dismissal (See Conditions sine qua non for time-bar rule): (1) Consent of the prosecutor (2) Consent of the accused

(3) Notice to the offended party

Pre-trial JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC): Sec. 9: Application of rule to criminal actions. – (a) This rule shall apply to all criminal actions:

(1) Where the maximum of the imposable penalty does not exceed six years;

(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or

(3) With respect to the civil aspect of the actions, whatever the penalties involved are.

(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial, serving copies if the same upon the accused. The complainant or public prosecutor shall attach to the affidavits such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or object evidence shall be admitted at the trial.

(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his judicial affidavit as well as those of his witnesses to the court within ten days from receipt of such affidavits and serve a copy of each on the public and private prosecutor, including his documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the accused and his witnesses when they appear before the court to testify.

MATTERS TO BE CONSIDERED DURING PRE-TRIAL Section 1. Pre-trial; mandatory in criminal cases Pre-trial is MANDATORY in all criminal cases. Its main objective is to achieve an expeditious resolution of the case. COVERAGE [RULE 118, SEC. 1] The court shall order pre-trial in ALL criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC. PERIOD [RULE 118, SEC. 1] General Rule: After arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused.

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Exception: If a shorter period is provided by special or SC circulars. THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES

[RULE 118, SEC. 1] (a) Plea bargaining (b) Stipulation of facts (c) Marking for identification of evidence (d) Waiver of objections to admissibility of evidence (e) Modification of the order of trial if accused admits

the charge but interposes a lawful defense (reverse trial)

(f) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case

ROLE OF THE JUDGE During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between the parties. [SC AM 03-1-09-SC] STIPULATION OF FACTS This is no longer prohibited in criminal cases. [People vs Hernandez (1996)] However, in a case of rape with the allegation that victim is below 12 yrs of age which qualifies said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. Circumstances that qualify a crime and increases its penalty to death cannot be the subject of stipulation. [People vs Sitao (2002)] MARKING FOR IDENTIFICATION OF THE EVIDENCE OF

PARTIES Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence. WHAT THE COURT SHOULD DO WHEN PROSECUTION AND OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED PLEA BARGAINING It is the process in criminal process whereby the 1) accused, 2) offended party, and the 3) prosecution work out a mutually satisfactory disposition of the case subject to court approval. [See also DOJ Circular No. 35 (June 31, 1990), as amended by Circular No. 55 for the guidelines on plea bargaining as well as note on Rule 116] It usually involves the defendant’s pleading guilty to a lesser offense or to one or some of the counts of a

multi-count indictment in return for a lighter sentence than that for the graver charge. [People v. Mamarion (2003)] The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information, EXCEPT when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor. [People v. De Luna (1989); Rule 117, Sec. 7 (c)]

Rule 116, Section 2: Plea of guilty to a lesser offense. — At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

EFFECT WHEN THE PROSECUTION AND THE OFFENDED

PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED The Court shall: (a) Issue an order which contains the plea bargaining arrived at; (b) Proceed to receive evidence on the civil aspect of the case; and (c) Render and promulgate judgment of conviction, including the civil liability or damages duly established by the evidence [SC AM 03-1-09-SC] PRE-TRIAL AGREEMENT FORM General Rule: Court approval is required. Exception: Agreements not covering matters referred to in Rule 118, Sec. 1. [SC A.M. No. 03-1-09-SC] REQUIRED FORM OF PRE-TRIAL AGREEMENT (1) Must be in writing (2) Signed by the accused (3) Signed by his counsel

If this is not followed, the admissions cannot be used against the accused (i.e. inadmissible in evidence). The constitutional right to present evidence is waived expressly. EFFECT The stipulations become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated. (2008 Bar)

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Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; he must assume the consequences of the disadvantage. [Bayas vs Sandiganbayan (2002)] NON-APPEARANCE DURING PRE-TRIAL [RULE 118, SEC. 3] The court may impose proper sanctions or penalties (reprimand, fine or imprisonment), if counsel for the accused or the prosecutor: (1) does not appear at the pre-trial conference; and (2) does not offer an acceptable excuse, Rationale: to enforce the mandatory requirement of pre-trial in criminal cases. [Rule 118, Sec. 1] Note: The accused is not included because his constitutional right to remain silent may be violated. The accused is not required to attend (unless ordered by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference, if he agrees to the contents of such. Complainant is also not required to appear during pre-trial. It is the prosecutor who is required to appear at the pre-trial. PRE-TRIAL ORDER [RULE 118, SEC. 4] ISSUANCE (a) Issued by the court (b) Within 10 days after the pre-trial. [SC AM 03-1-

09-SC] (c) Judgment of acquittal based on pre-trial despite

disputed documents and issues of fact amounts to grave error and renders the judgment void. [People vs Santiago (1989)]

CONTENTS (a) Actions taken; (b) Facts stipulated; (c) Evidence marked; (d) Admissions made; (e) The number of witnesses to be presented; and (f) The schedule of trial.

Note: Letters (d) to (f) are added by SC AM 03-1-09-SC to the requirements under Rule 118, Sec. 4

EFFECT (a) Binds the Parties

The procedure is substantially the same in civil cases, except that any modification of the pre-trial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases. (1997 Bar)

(b) Limits the trial to those matters not disposed of (c) Control the course of the action during trial Exception: If modified by the court to prevent manifest injustice. REFERRAL OF SOME CASES FOR COURT ANNEXED MEDIATION AND JUDICIAL DIPUTE RESOLUTION A.M. No. 03-1-09-SC RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE- TRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES RESOLUTION CRIMINAL CASES After the arraignment, the court shall forthwith set the pre-trial conference within thirty days from the date of arraignment, and issue an order: (a) Requiring the private offended party to appear

thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence;

(b) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and

(c) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available.

Trial INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW PRESENCE IS MANDATORY: (a) During trial, for purposes of identification; (b) At arraignment; [Rule 116, Sec. 1(b)] (c) At the promulgation of judgment;

Exception: If the conviction is for a light offense. [Rule 120, Sec. 6]

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REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS (a) The witness must be either absent or unavailable (b) The absent or unavailable witness must be

essential [Riano] ABSENCE OR UNAVAILABILITY OF AN ESSENTIAL WITNESS “Absent” means that his whereabouts are unknown or cannot be determined by due diligence. “Unavailable” means that his whereabouts are known but presence for trial cannot be obtained by due diligence. Essential witness: ‘indispensible,’ ‘necessary,’ or ‘important in the highest degree’ [Black’s Law Dictionary] The period of delay resulting from the absence or unavailability of an essential witness shall be excluded in computing the time within which trial must commence. [Rule 119, Sec. 3] However, in any case in which: (1) Counsel for the accused, the public prosecution or

public attorney, (2) KNOWINGLY allows the case to be set for trial

WITHOUT disclosing the fact that a necessary witness would be unavailable for trial OR otherwise willfully fails to proceed to trial without justification consistent with the provisions of this Act,

The court may, without prejudice to any appropriate criminal and/or administrative charges to be instituted by the proper party against the erring counsel if and when warranted, punish any such counsel or attorney. (Speedy Trial Act) CONDITIONAL EXAMINATION [RULE 119, SEC. 15] When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a

waiver. The statement taken may be admitted in behalf of or against the accused. TRIAL IN ABSENTIA (1998 BAR) REQUISITES (1) Accused has been arraigned; (2) He was duly notified of trial; (3) His failure to appear is unjustified. Purpose: To speed up disposition of cases. General rule: The right to be present at one’s trial may be waived. Exceptions: At certain stages: [Lavides v. CA (2000)] (a) Arraignment and plea (b) Promulgation of sentence, unless for light offense (c) During trial whenever necessary for ID purposes

Exception to the ID purposes exception: If the accused unqualifiedly admits in open court after arraignment that he is the person named as the defendant in the case on trial.

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD EFFECT OF DELAY [RULE 119, SEC. 9] On motion of the accused, the information may be dismissed on the ground of denial of his right to speedy trial. (2007 Bar) Factors to consider: (a) duration of the delay; (b) reason therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused by such delay. [Mari and People v. Hon. Gonzales (2011)] Must be raised prior to trial; otherwise, the right to dismiss is considered waived under Rule 119, section 9. Burden of Proof (a) The accused has the burden of proving the

ground of denial of right to speedy trial for the motion.

(b) The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Rule 119, Sec. 3.

Subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore. REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS DISCHARGE OF A CO-ACCUSED General rule: It is the duty of the prosecutor to include all the accused in the complaint/information.

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Exception: Prosecutor may ask the court to discharge one of them after complying with the conditions prescribed by law. [Rule 119, Sec. 17] This applies only when the information has already been filed in court. REQUISITES [RULE 119, SEC. 17] (1) Two or more persons are jointly charged with the

commission of any offense. (2) Upon motion of the prosecution before resting its

case Petition for discharge is filed before the defense has

offered its evidence. [People v. Aniňon (1988)] (3) Hearing in support of the discharge where the

prosecution is to present evidence and the sworn statement of each proposed state witness.

(4) The court is satisfied of the following: (a) Absolute necessity for the testimony of the

accused whose discharge is requested;

He alone has the knowledge of the crime, and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan (1983)]

(b) There is no other direct evidence available for

the proper prosecution of the offense, except the testimony of the said accused;

(c) The testimony can be substantially corroborated in its material points;

(d) The accused does not appear to be the most guilty;

(e) The accused has not, at any time, been convicted of any offense involving moral turpitude

Note: The evidence adduced in support of the discharge shall automatically form part of the trial. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS EFFECT OF DISCHARGE General rule: The order of discharge shall: [Rule 119, Sec. 18]

(a) Amount to an acquittal of the discharged accused; (b) Bar future prosecutions for the same offense.

Exception: If the accused fails/refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)]

Conviction of the accused against whom discharged state witness testified is NOT required. Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)] DEMURRER TO EVIDENCE (1998, 2001, 2004 BAR) DEFINITION Objection by one of the parties to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. [Gutib v. CA (1999)] General Rule: An order granting the accused’s demurrer to evidence amounts to an acquittal. Exception: When there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence. [Hon. Mupas v. People (2011)] The order granting the demurrer is not appealable but may be reviewed via certiorari (Rule 65). [People v. Sandiganbayan, Marcos, et al. (2012)] Purpose: to prevent the filing of demurrer based on frivolous and flimsy grounds.

HOW INITIATED [RULE 119, SEC. 23] By the court motu proprio, after giving the prosecution the opportunity to be heard; Upon demurrer to evidence filed by the accused: (a) With leave of court; (b) Without leave of court.

MOTION FOR LEAVE TO FILE DEMURRER [RULE 119, SEC.

23] (a) It must specifically state its grounds. (b) It must be filed within a non-extendible period of

5 days after the prosecution rests (i.e. after the court shall have ruled on the prosecution’s formal offer). Prosecution may then oppose within a non-extendible period of 5 days from receipt.

(c) If leave of court is granted, the demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period.

EFFECT OF GRANTING DEMURRER The court dismisses the action on the ground of insufficiency of evidence. [Rule 119, Sec. 23]

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Sufficient evidence for frustrating a demurrer is evidence that proves: [Gutib v. CA (1999)] (a) Commission; and (b) Precise degree of participation.

EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE

DEMURRER (a) Accused should choose to insist on filing

demurrer even without leave (see consequences below) OR to present evidence for his defense

(b) Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment. [Rule 119, Sec. 23]

(c) It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People (1999)]

RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER

DEMURRER IS DENIED [RULE 119, SEC. 23]

Filed with Leave of Court Filed without Leave of Court

May adduce evidence in his defense

Waives the right to present evidence

Purpose: To determine WON demurrer was filed merely to stall the proceedings

Submits the case for judgment on the basis of the evidence for the prosecution

Implied leave of court is no longer sufficient and prevents accused from presenting evidence [e.g. accused files motion with reservation to present evidence in case motion is denied]

If there are 2 or more accused and only one presents a demurrer without leave of court, General rule: The court may defer resolution until decision is rendered on the other accused Exception: If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his co-accused

Judgment REQUISITES OF A JUDGMENT FORM [RULE 120, SEC. 1] (a) Written in official language.

If given verbally, it is incomplete. [People v. Catolico (1972)]

(b) Personally and directly prepared by the judge. (c) Signed by the judge.

The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. But the judge who only took over can render a valid decision by relying on the transcript. It does not violate due process. [People v. Badon (1999)]

(d) Contains clearly and distinctly a statement of

facts proved and the law upon which judgment is based.

There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed. Failure on the part of the TC to make a finding of fact is a revocable error.

JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE

WHO HEARD THE CASE The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular, especially when the evidence on record is sufficient to support its conclusion. [People v. Alfredo (2010)] CONTENTS OF JUDGMENT

CONVICTION [SEC. 2, RULE 119] The judgment of conviction shall state: (1) The legal qualification of the offense constituted

by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission.

(2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact.

(3) The penalty imposed upon the accused. The penalty should not be imposed in the alternative. There should be no doubt as to the

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offense committed and the penalty for it. (4) The civil liability or damages caused by his

wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived.

Proof Beyond Reasonable Doubt Degree of proof which produces conviction in an unprejudiced mind. [People v. Bacalzo (1991)]

Judgment for two or more offenses [Sec. 3, Rule 120] General Rule: Complaint/information must charge only one offense [Sec. 13, Rule 110] Exception: Cases in which existing laws prescribe a single punishment for various offenses [Sec. 13, Rule 110] General Rule: Duplicitous information is subject to a motion to quash [Sec. 3(f), Rule 117] Exception: Defect is waived when accused fails to move for quashal. THUS, where the accused fails to object to 2 or more offenses charged in a single information/complaint before trial, the court may: (a) Convict him of as many offenses as are charged

and proved; and Exception: One of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act.

(b) Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.

Exception: Maximum duration of offense: Follow the three-fold rule on the service of penalty.

Judgment in case of variance between allegation and proof [Sec. 4, Rule 120] General rule: The defendant can be convicted only of the crime with which he is charged. Rationale: He has the right to be informed of the nature of the offense with which he is charged before he is put on trial. [People v. Guevarra] However, minor variance between the information and the evidence: (a) Does not alter the nature of the offense; (b) Does not determine or qualify the crime or

penalty; (c) Cannot be ground for acquittal.

Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved. [Rule 120, Sec. 4] (a) The accused can be convicted of an offense only

when it is both charged and proven. (b) The mere fact that the evidence presented would

indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information.

Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense. When an offense includes or is included in another [Rule 120, Sec. 5] The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. Effect The accused shall be convicted of: [Rule 120, Sec. 4] (1) The offense proved which is included in the

offense charged; or (2) The offense charged which is included in the

offense proved The right to be informed of the charges has not been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein. [People v. Villamar (1998)] Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven. State liability for unjust conviction The DOJ Board of Claims is authorized to receive/evaluate/process/investigate claims of victims of unjust imprisonment/detention and victims of violent crimes. [RA 7309] Requirements for compensation: (1) Unjust accusation; (2) Unjust conviction; and

It is the same as knowingly rendering an unjust judgment - It is contrary to law or is not

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supported by the evidence and the same is made with conscious and deliberate intent to do an injustice. [Art. 204, RPC]

(3) Unjust imprisonment.

ACQUITTAL Definition A finding of not guilty based on the merits, either: (a) The evidence does not show that his guilt is

beyond reasonable doubt; or (b) A dismissal of the case after the prosecution has

rested its case and upon motion of the accused on the ground that the evidence fails to show beyond doubt that accused is guilty.

Reasonable Doubt Doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt.

Acquittal [Rule 120] Dismissal [Rule 117]

Terminates the case

Decision on the merits based on a finding that the accused is not guilty

Not on the merits but no finding that accused is not guilty

The judgment shall state whether: (1) The evidence of the prosecution absolutely failed

to prove the guilt of the accused; or (2) It merely failed to prove his guilt beyond

reasonable doubt.

In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist [Sec. 2, Rule 120] Number 2 does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence. General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. Exception: The court is not permitted to censure the accused in a judgment for acquittal – no matter how light, a censure is still a punishment. Acquittal based on reasonable ground does not bar a separate civil action based on quasi-delict. [Lontoc v. MD Transit (1988)]

The Court may hold accused civilly liable even when it acquits him. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. (a) The court may nonetheless hold the accused

civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter.

(b) The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People

The Judge acquitting an accused cannot punish him at the same time. PROMULGATION OF JUDGMENT; INSTANCES OF PROMULGATION OF JUDGMENT IN ABSENTIA (1997 BAR) PROMULGATION An official proclamation or announcement of a judgment or order. Requisites for the valid promulgation of a court decision: (1) There must be a judge or judges legally

appointed or elected and actually acting either de jure or de facto, and

(2) The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it. [Miguel v Municipal Trial Court (1986)]

Judgment/sentence does not become a judgment/sentence in law until it is: (1) Read and announced to the defendant; or (2) Has become a part of the record of the court. [US

v. CFI of Manila, 24 Phil 321]

Where there is no promulgation of judgment, no right to appeal accrues. NOTICE FOR PROMULGATION Clerk of Court gives notice to accused personally or through bondsman or warden and counsel. If the accused jumps bail or escapes from prison and was tried in absentia, notice will be served in last known address. [Rule 120, Sec. 6] Sin perjuicio judgment A judgment without a statement of the facts in support of its conclusion to be later supplemented by the final judgment. [Dizon v. Lopez (1997)]

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Merely reading the dispositive portion of the decision is not sufficient. Judgment must state the facts and the law on which it is based. While SC has expressed approval of the practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage, such refers to the preparation of the decision and not to promulgation. There is no more reason to keep it a secret at the stage of promulgation. (a) Promulgation where judge is absent [Rule 120,

Sec. 6] The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city.

(b) Presence of accused required; exception [Rule 120,

Sec. 6] General rule: Presence of the accused is mandatory. Exception: Convictions for light offenses. Conviction for light offense

He may appear through counsel/representative

Promulgation in absentia

To prevent subversion of judicial process and enable enforcement of civil liability

Verdict of acquittal

No appeal is necessary; judgment is final and executory. Note the old rule that presence of the accused during promulgation of judgment is required only in case of conviction

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the ROC against the judgment and the court shall order his arrest. However, within 15 days from promulgation of judgment, he may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence. If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice. [Sec. 6, Rule 120; People v. De Grano (2009)]

Promulgation when accused is confined/detained in another city It will be done in the RTC who has jurisdiction over the place of confinement. In this case, the court promulgating the judgment shall have authority to accept notice of appeal and to approve the bail bond pending appeal. [Sec. 6, Rule 120]

Failure to appear at the scheduled date of promulgation Promulgation is made by recording the judgment in the criminal docket and serving a copy at the accused’s last known address or through counsel. [Sec. 6, Rule 120]

Promulgation date where judge no longer a judge is void. If at the time of the promulgation, the judge penning the decision has ceased being a judge of the court, the decision would not be an act of the court. [People v. Dimalanta] Promulgation by a succeeding judge produces no legal effect since it cannot restore validity to a document already void. WHEN DOES JUDGMENT BECOME FINAL [RULE 120, SEC. 7] JUDGMENT BECOMES FINAL: (1) After the lapse of the period for perfecting an

appeal; (2) When the sentence has been partially/totally

satisfied or served; (3) The accused has expressly waived in writing his

right to appeal, or (4) When the accused applies for probation, and

thereby waives right to appeal. (5) Judgment also becomes final when judgment is

an acquittal. [People v. Sandiganbayan (2010)] Exception to finality of judgment if of acquittal: Cases where death penalty was imposed—automatic review; judgment does not become final after the promulgation and by the TC’s issuance of a commitment order. [Sec, 10, Rule 122] Note: Before the judgment becomes final, the TC has plenary power to make, either on motion or motu proprio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice.

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After finality, the TC is divested of authority to amend/alter the judgment, except to correct clerical errors.

New trial or Reconsideration GROUNDS FOR NEW TRIAL [RULE 121, SEC. 2] That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

General rule: Error of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity.

Exception: Acquittal would in all probability have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel. Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. [Estino v. People (2007)]. The determinative test is the presence of due or reasonable diligence to locate the thing to be used as evidence in the trial. [Briones v. People (2009)] GROUNDS FOR RECONSIDERATION Errors of law OR fact in the judgment, which requires no further proceedings. [Rule 121, Sec. 3] REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON GROUND OF NEWLY DISCOVERED EVIDENCE

REQUISITES That the evidence: [Jose v. CA (1997)] (a) Was discovered after the trial; (b) Could not have been discovered and produced at

the trial even with the exercise of reasonable diligence. [US v. Pico (1982)]

(c) Burden of proving this is on the accused. [US v. Torrente (1922)]

(d) Is material, not merely cumulative/corroborative/impeaching; and

(e) Is of such weight that it would probably change the judgment if admitted. It must be of weighty influence and will affect the result of the trial. [People v. Alfaro (2003)]

EXCEPTIONS “Interest of justice” as gauge for introduction of new evidence: In People v. Almendras (2003), the court ruled that a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of justice. In that case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel’s gross mistake and negligence.

When there is variance in 2 reports: In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police report, not new, and which could have been discovered with due diligence, because the evidence contained in such was at such variance with the health officer’s report at trial, that its contents raised doubts to the guilt of the accused. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION [RULE 121, SEC. 6] IN ALL CASES: (a) The original judgment set aside or vacated; (b) A new judgment is rendered accordingly. (c) Specific effects when granted upon different grounds:

Ground Effect The Court may:

Errors of law or irregularities committed during the trial

All proceedings and evidence affected shall be set aside and taken anew If error or irregularity goes into the jurisdiction, the entire proceeding is void and must be set aside

Allow introduction of additional evidence in the interest of justice

Newly-discovered evidence Evidence already adduced shall stand and the newly-discovered and such other evidence

Allow introduction of other such evidence in the interest of justice

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Ground Effect The Court may:

shall be taken and considered together with the evidence already in the record

REMEDY AGAINST GAD IN GRANTING MNT/MFR Certiorari or prohibition. Otherwise, the prosecution may no longer have opportunity to question the order if accused is acquitted after a new trial is conducted (because there will be double jeopardy). [Luciano v. Estrella (1970)] APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES FRESH PERIOD TO APPEAL AFTER DENIAL OF MNT/MR Neypes Doctrine: The Court allows a fresh period of 15 days within which to file the notice f appeal in the RTC, counted from receipt of the order dismissing a MNT or MR. Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. (Neypes v. CA, 2005)

Appeal EFFECT OF AN APPEAL An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment, WON it is made the subject of assignment of errors. [People v. Calayca (1999)] WHERE TO APPEAL [RULE 122, SEC. 2]

Appeal For cases decided by The RTC MTC/MeTC/MCTC The Sandiganbayan

RTC or MTC/MeTC/MCTC (if it is government duty-related - i.e. filed under EO 1, 2, 4 and 14-A)

The CA RTC (if it involves questions of fact and of law)

Appeal For cases decided by The SC RTC

(a) If it involves questions of law only

(b) If it involves constitutionality or validity of any treaty/law/ordinance/EO/ regulation or the jurisdiction of the inferior court

(c) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment

(d) Other offenses, which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense

The SC CA or Sandiganbayan HOW APPEAL TAKEN Note: The right to appeal is not a natural right nor a part of due process but merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law. [Estarija v. People (2009)] WHO MAY APPEAL General Rule: Any party may appeal from a judgment or final order [Section 1, Rule 122] Exceptions: (1) Party may not appeal if the accused will be placed

in double jeopardy by such action [Section 1, Rule 122]

(2) If the judgment is for conviction and the accused fails to appear without justifiable cause, he would lose the remedy to appeal [Sec. 6,Rule 120]

[Rule 122, Sec. 6 and 9] When appeal to be taken Within 15 days from promulgation of the judgment or from notice of the final order appealed from. The period to appeal shall be suspended from the time a MNT or MR is filed until notice of the order overruling the motion has been served upon the accused or his counsel.

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Transmission of record to RTC Within 5 days from perfection of the appeal, the COC shall transmit the original record to the appropriate RTC.

Notification of parties Upon receipt of the complete record, TSN and evidence of the case, the RTC COC shall notify the parties of such fact.

Submission of memoranda/briefs Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so.

Decision After submission of such memoranda/briefs or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed. [Rule 123, Sec. 1] General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. Exceptions: (1) Where a particular provision applies only to either

of said courts; (2) Criminal cases governed by the Revised Rules on

Summary Procedure. Offenses falling under the MTC/MCTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s Office. Offenses falling under the MeTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] In Metro Manila and other chartered cities, criminal cases shall be commenced only by information; thus, the complaint may be filed only with the Office of the City Prosecutor If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information.

Cases governed by the Revised Rules on Summary Procedure PROCEDURE IN THE CA (a) Parties and title [Rule 124, Sec. 1]

In all criminal cases appealed to the CA: APPELLANT – The party appealing; APPELLEE – The party adverse to the appellant. The title of the case shall remain as it was in the court of origin (i.e. People v. John Doe).

(b) Appointment of counsel de oficio [Rule 124, Sec. 2] (c) Brief for appellant [Rule 124, Sec. 3]

Appellant shall file 7 copies of his brief with the clerk of court, accompanied by proof of service of 2 copies on the appellee.

It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court’s notice that the evidence is already attached to the record.

(d) Brief for appellee [Rule 124, Sec. 4] Appellee shall file 7 copies of his brief with the

clerk of court, accompanied by proof of service of 2 copies on the appellant.

It shall be filed within 30 days from receipt of the

appellant’s brief. (e) Reply to appelle’s brief [Rule 124, Sec. 4]

Appellant may (i.e. optional) file a reply brief covering matters raised in the appellee’s brief but not in the brief of the appellant.

It must be filed within 20 days from receipt of the appellee’s brief.

(f) Extension of time for filing briefs [Rule 124, Sec. 5]

General Rule: Extension of time for the filing of briefs is not allowed. Exception: for good and sufficient cause It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended. Court may grant as many extensions as may be asked. [Gregorio v. CA (1976) ]

(g) Form of briefs [Rule 124, Sec. 6] Briefs shall be printed/encoded/ typewritten, in

double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width.

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Mimeographed copies are not allowed. (h) Contents of brief The briefs in criminal cases shall have the same

contents as provided in Rule 44, Sec. 13-14. [Rule 124, Sec. 7]

(1) Appellant’s brief: [Rule 44, Sec. 13] (a) SUBJECT INDEX (b) ASSIGNMENT OF ERRORS (c) STATEMENT OF THE CASE (d) STATEMENT OF FACTS (e) ISSUES (f) ARGUMENTS (g) RELIEF (h) ATTACHMENT (2) Appellee’s brief: [Rule 44, Sec. 14] (a) SUBJECT INDEX (b) STATEMENT OF FACTS; or COUNTER-

STATEMENT OF FACTS (c) ARGUMENTS

(i) Dismissal of appeal for abandonment or failure to

prosecute [Rule 124, Sec. 8] Grounds: (A)Appellant fails to file his brief within the

prescribed time; Exception: Where the appellant is represented by a counsel de oficio. If failure to file brief on time is the ground, appellant must be given NOTICE to give him opportunity to reason out why his appeal should not be dismissed. However, dismissal is proper despite lack of notice: (a) If appellant has filed a MFR or motion to set

aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion after considering reason. [Baradi v. People (1948)]

(b) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment. [Salvador v. Reyes (1949)]

(B)If the appellant escapes from prison/confinement,

jumps bail or flees to a foreign country during the pendency of the appeal.

Likewise, when accused flees after the case has been submitted for decision, he is deemed to have waived his right to appeal. [People v. Ang Gioc (1941)]

Exception: Appeal will not be dismissed despite escape: (a) In one exceptional case, the appellant took

advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured 2 hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal. [People v. Valencia (1949)]

(b) If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities. [People v. Buenaventura (1994)]

(c) In case of automatic review. [People v. Cornelio (1971)]

(C) CA may dismiss the appeal upon appellee’s

motion or motu proprio. PROMPT DISPOSITION OF APPEAL [Rule 124, Sec. 9] Appeals of accused who are under detention are given precedence in their disposition over other appeals. The accused need not be present in court during the hearing of the appeal. REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL

[Rule 124, Sec. 10] General rule: No judgment shall be reversed/modified. Exception: When the CA, after an examination of the record and of the parties’ evidence, is of the opinion that error was committed and such error injuriously affected the appellant’s substantial rights. When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings. Rationale: The TC is in a better position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling (1976)] SCOPE OF CA’S JUDGMENT [Rule 124, Sec. 11] The CA may: (1) Reverse/affirm/modify the judgment; (2) Increase/reduce the penalty imposed by the TC; (3) Remand the case to the RTC for new trial or

retrial;

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(4) Dismiss the case. When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors. [Ko Bu Lin v. CA (1982)]

CA’S POWER TO RECEIVE EVIDENCE [Rule 124, Sec. 12] The CA has power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues in cases: (1) Falling within its original jurisdiction; (2) Involving claims for damages arising from

provisional remedies; (3) Where the court grants a new trial based only on

the ground of newly-discovered evidence. CA’s trials and hearings must be continuous and completed within 3 months, unless extended by the Chief Justice. QUORUM IN THE CA [Sec. 11, BP 129] (a) 3 CA Justices constitute a quorum for the sessions

of a division. (b) The unanimous vote of the 3 Justices of a division

is necessary for the pronouncement of a judgment or final resolution

(c) Decision is reached through a consultation before the writing of the opinion by a member of the division.

(d) If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to designate 2 additional Justices to sit temporarily with them. They shall then form a special division of 5 members.

The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution. Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices. CERTIFICATION OR APPEAL OF CASES TO THE SC [Rule 124, Sec. 13] (1) If the CA finds that death penalty should be

imposed: (a) AUTOMATIC REVIEW – CA shall render

judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything.

(b) Note: Death penalty has been abolished.

(2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals:

The appeal shall be automatically included in the case certified for review in the SC

(3) If the CA imposes reclusion perpetua, life

imprisonment or a lesser penalty: (a) It shall render and enter judgment imposing

such penalty. (b) Appeal here is not automatic. The accused

has to file a notice of appeal with the CA. JUDGMENT TRANSMITTED AND FILED IN TC When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken. [Rule 124, Sec. 17] This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file. MNT DURING THE PENDENCY OF APPEAL IN THE CA

[Rule 124, Sec. 14] (a) Appellant may file MNT on the ground of newly

discovered evidence material to his defense any time: (1) After the appeal from the lower court has been

perfected, but (2) Before the CA judgment convicting him

becomes final. (b) The motion shall conform to Rule 121, Sec. 4. (c) If the CA grants a MNT, it may either: [Rule 124,

Sec. 15] (1) Conduct the hearing and receive evidence; (2) Refer the trial to the court of origin.

MFR OF CA JUDGMENT [Rule 124, Sec. 16] MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party. The mittimus shall be stayed during the MFR’s pendency. General rule: No party shall be allowed a 2nd MFR of a judgment or final order. [Sec. 11, BP 129]

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Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature.

APPLICABLE CIVIL PROCEDURE RULES [Rule 124, Sec. 18] Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule. PROCEDURE IN THE SC (a) Uniform procedure [Rule 125, Sec. 1] General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. Exception: If the Constitution or law provides otherwise. (b) What the SC may do on review In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, WON they were assigned as errors. [People v. Olfindo (1924)] It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed. [Macali v. Revilla (1926)] It may also assess and award civil indemnity. [Quemel v. CA (1946)]

(c) Ways by which a case may reach the Supreme Court Automatic review It is not a matter of right on the part of the accused, but a matter of law. When available: (a) When the RTC judgment upon the accused

imposes death penalty. [Rule 122, Sec. 10] (b) When the RTC decision is appealed to CA and the

latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review. [Rule 124, Sec. 13]

Ordinary appeal When available: (a) When the penalty imposed by the RTC is life

imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3]

(b) When an accused was charged with 2 or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC. [Rule 122, Sec. 3]

(c) When the penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC. [People v. Carino]

In these cases, the SC reviews not only errors of law but also the findings of fact by the TC. Petition for review on certiorari (a) When available: (b) When constitutionality/validity of any treaty,

executive agreement, law, ordinance or executive order or regulation is in question.

(c) When validity of law is questioned by an accused convicted under it by the TC, the SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v. Sweeney (1904)]

(d) When the jurisdiction of any inferior court is in issue.

(e) When only an error or question of law is involved. On decisions of the CA and the Sandiganbayan. As a rule, review here is limited to errors of law.

General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available.

Exception: Cases where certiorari is granted despite existence of the remedy of appeal: (1) Where public welfare and advancement of public

policy so dictate. (2) Where the broader interests of justice so require. (3) Where the orders complained of were found to be

completely null and void. (4) Where appeal was not considered as the

appropriate remedy.

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(d) Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal. [RA 296] (e) Erroneous choice / mode of appeal In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant shall be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected. The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal. (f) Review of CA decisions The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases. [Rule 125, Sec. 2] General rule: The SC’s appellate jurisdiction in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. (a) The CA’s findings of fact are final. (b) If an appeal in the SC involves questions of facts,

the SC has no jurisdiction and should dismiss appeal. [Guico v. Mayuga (1963)]

Exception: [Vargas v. CA; Napolis v. CA (1972)] (a) When the conclusion is a finding founded entirely

on speculations/surmises/conjectures; (b) When the inference made is manifestly

mistaken/absurd/impossible; (c) When there is GAD; (d) When the judgment is based on a

misapprehension of facts; (e) When the findings of facts are conflicting; (f) When the CA, in making its findings, went beyond

the issues of the case and the same are contrary to the admissions of both appellant and appellee.

(g) Decisions if opinion is equally divided [Rule 125, Sec. 3] When the SC en banc is equally divided in opinion or the necessary majority cannot be had on WON to acquit the appellant, the case shall again be deliberated upon. If no decision is reached after re-deliberation, the lower court’s judgment of conviction shall be reversed and the accused is acquitted.

If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc. (h) Constitutional provisions on SC composition [Art. 8, Sec. 4, Consti] (a) SC Composition: 1 Chief Justice + 14 Associate

Justices. (b) SC may sit en banc or (in its discretion) in divisions

of 3, 5 or 7 members. (c) No doctrine or principle of law laid down by the

SC in a decision rendered en banc or in division may be modified/reversed.

EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED [RULE 122, SEC. 11] General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. (a) As to the appealing party, the execution of

judgment appealed from is stayed upon the perfection of the appeal.

(b) As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA (1996)]

Exception: Insofar as the judgment of the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal. [People v. Gandia (2008)] The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. GROUNDS FOR DISMISSAL OF APPEAL WHEN APPEAL BY THE PEOPLE WILL NOT LIE The People/State cannot appeal when it will put the accused in double jeopardy. The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached. [Republic v. CA] The prosecution cannot appeal from a judgment of acquittal Rationale: A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)]

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Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy. [US v. Kilayko (1916)] Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the ground of lack of it, the order of dismissal is unappealable. [People v. Duran (1960)] An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)] The preclusion against appeal by the State from judgments or final orders having the effect of acquittal, applies even though accused did not raise question of jeopardy. [People v. Ferrer (1956)]

Search and Seizure

NATURE OF SEARCH WARRANT DEFINITION It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. (Rule 126, Sec. 1) If it is without the judge’s signature: it is fatally defective. NATURE OF A SEARCH WARRANT A search warrant (SW) is in the nature of a criminal process akin to a writ of discovery, employed by the state to procure relevant evidence of a crime. [Malaloan v. CA (1994)] They are not available to individuals in the course of civil proceedings. It is interlocutory in character -–- it leaves something more to be done, which is the determination of the guilt of the accused.

BASIS: CONSTITUTIONAL SAFEGUARD AGAINST

UNREASONABLE SEARCH AND SEIZURES No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he

may produce, and particularly describing the place to be searched, and the things/persons to be seized. (Art. III, Sec. 2, 1987 Const.)

Exclusionary rule: Any evidence obtained in violation of this or the preceding section (Art. III, Sec. 2) shall be INADMISSIBLE for any purpose in any proceeding. (Art. III, Sec. 3, Par. 2, 1987 Const.) Doctrine of attenuation: Despite the illegality in obtaining evidence, such evidence may be admissible if the connection between the evidence and the illegal method is sufficiently remote or attenuated so as to dissipitate the taint [Wong Sun v. US (1963)] This constitutional guarantee is NOT a blanket prohibition against ALL searches and seizures. It operates only against “unreasonable” searches and seizures. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question. [Rodriguez v. Villamiel (1937)] CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC

OFFICERS’ ACTS, NOT PRIVATE PERSONS People v. Marti (1991); also People v. Bongcarawan (2002): Search and seizure clauses are restraints upon the government and its agents, not upon private individuals. However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is unreasonable unless it has been authorized by a valid search warrant. Exceptions: Valid warrantless searches. DISTINGUISH FROM WARRANT OF ARREST

Search Warrant Warrant of Arrest

Nature

Order in writing in the name of the RP signed by the judge and directed to the peace officer to search personal property described therein and to bring it to court. (Rule 126,

Order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the

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Search Warrant Warrant of Arrest

Sec. 1) offense.

Determination of Probable Cause

The judge must personally examine the complainant and witnesses in the form of searching questions and answers. (Rule 126, Sec.5)

The judge does not have to personally examine the complainant and his witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor [AAA v. Carbonell (2007)].

The examination must be under oath or affirmation of the complainant and his witnesses.

Examination must be under oath.

Form of Writ

It must particularly describe the place to be searched and the things to be seized.

It must particularly describe the person to be arrested.

When Executed

Generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night. (Rule 126, Sec. 9)

May be made at any time of the day or night. (Rule 113, Sec. 2)

Period of Validity

Valid for ten (10) days (Rule 126, Sec. 9).

Does not expire (No terminal life).

APPLICATION FOR SEARCH WARRANT, WHERE FILED APPLICATION Where filed (Rule 126, Sec. 2) Any court within whose territorial jurisdiction the crime was committed. For compelling reasons stated in the application: (a) If the place of the commission of the crime is

known, any court within the judicial region where the crime was committed.

(b) Any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

Exception: (Malaloan v. CA [1994] subject to Rule 126, Sec. 1) If a case has not yet been filed, it may be filed in a court with a territorial jurisdiction other than that where the illegal articles sought to be seized are located. This is aside from the consideration that a criminal action may be filed in different venues under the rules for continuing crimes, or where different trial courts have concurrent original jurisdiction over the same criminal offense. The ruling may be applicable: (a) When the crime is found to have been committed

in a particular place WITHIN the judicial region. (b) Where a particular court, by reason of its

territorial area, has jurisdiction. (c) And where prosecutor, who filed the complaint or

information in said court, has territorial jurisdiction different from the court within the same judicial region which actually issued the warrant.

A.M. No. 03-8-02-SC The Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of Manila and Quezon City RTCs of Manila City shall have authority to act on applications for search warrants involving: (a) heinous crimes; (b) illegal gambling; (c) illegal possession of firearms and ammunitions (d) violations of the Comprehensive Dangerous

Drugs Act of 2000; (e) the Intellectual Property Code, the (f) the Anti-Money Laundering Act of 2001, (g) the Tariff and Customs Code; and, (h) other relevant laws that may hereafter be

enacted by Congress, and included herein by the Supreme Court.

Substance of application Requisites for issuing a search warrant (Rule 126, Sec. 4) A Search Warrant shall NOT issue EXCEPT: (a) Upon probable cause in connection with one

specific offense; (b) To be determined personally by the judge; (c) After examination under oath or affirmation of the

complainant and the witness he may produce; (d) Particularly describing the place to be searched

and the things to be seized which may be anywhere in the Philippines.

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ISSUANCE AND FORM OF SEARCH WARRANT If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Rule 126, Sec. 6) SW must be in writing and contain: (a) Name of person against whom it is directed; (b) Offense for which it was issued; (c) The place to be searched and (d) The description of the specific things to be seized; (e) A directive to law enforcement officers to search

and seize; (f) And for them to bring in court the things seized; (g) Signature of the judge issuing it. VALIDITY OF SEARCH WARRANT Period of validity: 10 days from its date. Thereafter, it shall be void. (Rule 126, Sec. 10) Lifetime of SW ends when a return has already been made. [Mustang Lumber v. CA (1996)] SERVICE OF SEARCH WARRANT Right to break door or window to effect search The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. (Rule 126, Sec. 7)

Knock and announce principle Generally, officers executing a search must do the following acts: (a) Announce their presence; (b) Identify themselves to the accused and to the

persons who rightfully have possession of the premises to be searched;

(c) Show to them the search warrant; and (d) Explain the warrant in a language or dialect

known and understood by them. When unannounced intrusion is permissible (a) Person in the premises refuses to open it upon

demand; (b) Person in the premises already knew of the

identity and authority of the officers; (c) When the officers have an honest belief that there

is an imminent danger to life and limb; (d) When those in the premises, aware of the

presence of someone outside, are then engaged in activities which justifies the officers to believe

that an escape or the destruction of evidence is imminent.

Search of house, room, or premise, to be made in presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 8)

Time of making search Day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (Rule 126, Sec. 9) A SW violates Rule 126, Sec. 9 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search, causing untold conveniences to the person searched. [Asian Surety v. Herrera (1973)] Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the SW. [Asian Surety, supra] POST-SERVICE Receipt of property seized

How receipt is given (Rule 126, Sec. 1)

If lawful occupant was present

The officer seizing the property under the SW must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made.

If he was not present The officer seizing the property under the SW must, in the presence of at least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

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Delivery of property and inventory thereof to court (Rule 126, Sec. 12) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. 10 days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether Sec. 11 of Rule 126 has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that delivery has been complied with. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

Goods seized remain under the court’s custody and control until the institution of the appropriate criminal action with the proper court. [Tenorio v. CA (2003)] PROBABLE CAUSE WARRANTS GENERALLY ISSUED UPON PROBABLE CAUSE Probable cause: Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched. [Santos v. Pryce Gases Inc. (2007) This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The probable cause must refer only to one specific offense. [Roan v. Gonzales (1986)] A probable cause to arrest does not necessarily involve a probable cause to search and vice-versa.

PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST

AND WARRANTLESS SEARCH This implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction. It is not determined by a fixed formula but is resolved according to the facts of each case.

PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT AND WITNESSES Aside from the requirements mandated by Rule 126, Sec. 4, the rule requires the judge to comply with a specific procedure in the conduct of the examination of the complainant and the witnesses he may produce. (Rule 126, Sec. 5): (a) The examination must be PERSONALLY

conducted by the judge; (b) The examination must be in the form of searching

questions and answers; (c) The complainant and the witnesses shall be

examined on those facts personally known to them;

(d) The statements must be in writing and under oath; and

(e) The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record.

EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE

JUDGE; DETERMINED BY JUDGE HIMSELF

Searching questions and answers Such questions which have the tendency to show the commission of a crime and the perpetrator thereof. [Luna v. Plaza (1968)] In search cases, the application must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity and the items will be found in the place to be searched. [People v. Tuan (2010)] A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid. [Uy v. BIR (2000)] Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Yao v. People (2007)] Judge must examine under oath or affirmation the complainant and the witness he may produce A warrant NOT based on personal knowledge is void. Examination under oath Oath: Includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully.

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The oath required must refer to the truth of facts within the personal knowledge of the petitioner or his witnesses. [Alvarez v. CFI (1937)] Mere affidavits of the complainant or his witnesses are not sufficient. The examining judge has to take depositions in writing of the complaint or his witnesses, and attach the same to the record. [Prudente v. Judge Dayrit (1989), citing Roan] PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS TO BE SEIZED Warrant issued must particularly describe the place to be searched and the persons to be seized. PARTICULARITY OF PLACE TO BE SEARCHED Description of place to be searched is sufficient if the officer with the SW can, with reasonable efforts, ascertain and identify the place intended. [People v. Veloso (1925)] An apparent typographical error will not necessarily invalidate the SW, as long as the application contains the correct address. [Burgos v. Chief of Staff (1984)] PARTICULARITY OF THINGS TO BE SEIZED Scope Personal property only. SW does not issue for seizure of immovable properties. Ownership of the property seized is immaterial. It is sufficient that the person against whom SW is directed has control/possession of the property. [Yao v. People (2007)] General rule: Things to be seized must be described particularly. General search warrants are not allowed. Otherwise, the search and seizure of the items in the implementation of such SW is illegal and the items seized are inadmissible in evidence. Art. III, Sec. 2 of the 1987 Const.) (a) SWs authorizing the seizure of books of accounts

and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law. [Stonehill v. Diokno (1967)]

(b) Likewise, a description of things to be seized as “subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a definite guideline to the executing officers. [Dizon v. Hon. Castro (1985)]

(c) And where the language used is too all-embracing as to include all the paraphernalia of petitioner in the operation of its business, the SW

is constitutionally objectionable. [Columbia Pictures v. Flores (1993)]

Exceptions: (a) Where, by the nature of the goods to be seized,

their description must be rather general, it is not required that a technical description be given, for this would mean that no SW could issue. [People v. Rubio (1932)]

(b) The general description of the documents listed in the SW does not render the SW void if the SW is severable, and those items not particularly described may be cut off without destroying the whole SW. [Uy v. BIR (2001)]

PERSONAL PROPERTY TO BE SEIZED WHAT MAY BE SEIZED (RULE 126, SEC. 3) (a) Personal property subject of the offense. (b) Personal property stolen/embezzled and other

proceeds/fruits of the offense. (c) Personal property used or intended to be used as

the means of committing an offense. The rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control of possession of the property sought to be seized. [Burgos v. Chief of Staff (1984)] RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC

(OCTOBER 2, 2007) The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties. (Sec. 4) In a search incidental to an arrest even WITHOUT a warrant, the person arrested may be searched for (Rule 126, Sec. 13) (1) Dangerous weapons. (2) Anything which may have been used or constitute

proof in the commission of the offense. EXCEPTIONS TO SEARCH WARRANT REQUIREMENT SEARCH INCIDENTAL TO LAWFUL ARREST Warrantless searches allowed as an incident of lawful arrest A person lawfully arrested may be searched for (1) dangerous weapons or (2) anything which may have been used or (3) constitute proof in the commission of an offense without a search warrant. (Rule 126, Sec. 13)

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The arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest at if the police have probable cause to make the arrest at the outset of the search. [Riano (2011)] The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are inadmissible as evidence. [People v. Aruta (1998)] The search is confined to his person, but as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. The extent and reasonableness of the search must be decided on its own facts and circumstances. [Nolasco v. Paño (1985); Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal. [Lui v. Matillano (2004)] CONSENTED SEARCH Consented warrantless search Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual

or constructive, of the existence of such right; and (3) the said person had an actual intention to

relinquish the right. [People v. Nuevas (2007)] Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. [Valdez v. People (2007)] A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. [People v. Nuevas (2007)] When is consented search reasonable: Only if kept within the bounds of the actual consent. A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto.

SEARCH OF MOVING VEHICLE Search of moving vehicle Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. [People v. Tuazon (2007)] However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense. The search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of SW. [Roldan v. Hon. Arca (1975)] Nonetheless, in all cases falling under this category, there must be a showing of a PC of a violation of the law. [Caroll v. US (1924)] CHECK POINTS; BODY CHECKS IN AIRPORT Searches conducted in checkpoints [People v. Vinecario (2004)] They are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists. The vehicle is neither searched nor its occupants subjected to a body search (i.e. inspection of the vehicle is limited to a visual search). Routine inspections are not regarded as violative of an individual’s right against unreasonable search: (a) Where the officer merely draws aside the curtain

of a vacant vehicle which is parked on the public fair grounds;

(b) Officer simply looks into a vehicle; (c) Officer flashes a light therein without opening

car’s doors; (d) Occupants not subjected to a physical search; (e) Inspection is limited to usual search or inspection;

or (f) Routine check is conducted in a fixed area [People

v. CA (2002)]

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PLAIN VIEW SITUATION Plain view doctrine (2008 Bar)

Requisites (PIA): [People v. Valdez (1999), People v. Salanguit (2001)] (1) A prior valid intrusion i.e., based on the valid

warrantless arrest in which the police are legally present in the pursuit of their official duties;

(2) Evidence was inadvertently discovered by the police who have a right to be where they are;

(3) Evidence must be immediately apparently illegal (i.e., drug paraphernalia);

(4) Plain view justified mere seizure of evidence without further search.

Limitations: [People v. Musa (1993)] (1) It may not be used to launch unbridled searches

and indiscriminate seizures. (2) Does not extend to a general exploratory search

made solely to find evidence of defendant’s guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Even if an object is in plain view, before it can be seized without a SW, its incriminating nature must first be apparent. Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering. STOP AND FRISK SITUATION A limited protective search of outer clothing for weapons. [Malacat v. CA (1997)] Where a police officer observes unusual conduct, which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be armed and presently dangerous, Where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [Terry v. Ohio (1968)]

Under this theory, PC is not required to conduct a “stop and frisk” BUT, nevertheless, mere suspicion/hunch will not validate a “stop and frisk.” Test: Genuine reason - Reasonable belief based on genuine reason and in the light of the officer’s experience and the surrounding circumstances, that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous. ENFORCEMENT OF CUSTOM LAWS Customs search For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure. [General Travel Services v. David (1966)] The Tariff Code authorizes customs officers to: (a) Enter, pass through or search any land, enclosure,

warehouse; (b) Inspect/search/examine any vessel/aircraft and

any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law.

General rule: The Tariff and Customs Code does not require a warrant for such searches. Exception: In the search of a dwelling house, SW is required. OTHER EXCEPTIONS Exigent and Emergency Circumstances Example: There was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by an intelligence report that said office was being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the people inside. The raiding team had no opportunity to apply for warrant as the court then was closed. [People v. de Gracia (1994)]

Buy-bust Operation: No need for SW (or warrant of arrest) because the accused is caught in flagrante delicto. A form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in committing an offense.

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Entrapment: Employment of such ways and means for the purpose of trapping or capturing a lawbreaker Private Searches and “State Expansion of Private Search” The evidence was obtained by a private person acting in a private capacity without state participation and intervention. It was company SOP. Constitutional rights cannot be invoked when there is no government interference. [People v. Marti (1999)] REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE WHO MAY AVAIL OF REMEDIES Only the party whose rights have been impaired thereby; the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. [Stonehill v. Diokno (1967); Santos v. Pryce Gases, Inc. (2007)]

REMEDIES Employ any means to prevent the search. Without a SW, the officer cannot insist on entering a citizen’s premises. If he does so, he becomes an ordinary intruder. The person to be searched may resist the search and employ any means necessary to prevent it, without incurring any criminal liability. [People v. Chan Fook (1921)]

File criminal action against officer. A public officer/employee who procures a SW without just cause is criminally liable under Art. 129, RPC (Search warrants maliciously obtained and abuse in the service of those legally obtained). File a Motion to Quash the illegal SW. This remedy is employed if search is not yet conducted.

General rule: The motion must be filed before the sala of the judge who issued it. Only the court that issued the SW may order revocation of SW or release of things seized. [Pagkalinawan v. Gomez (1967)] Exception: Where the SW is issued by one court and the criminal action based on the results of the search is afterwards filed in another court, the motion may be filed in either court. [People v. CA (1999)]

What may be raised in the MTQ. (a) Existence or non-existence of probable cause at

the time of issuance of the SW;

(b) Compliance with procedural and substantial requisites.

Matters of defense are to be raised in the criminal action. [DOH v. Sy Chi Siong (1989)] File a motion to return seized things. This is the remedy used if the search was already conducted and goods were seized as a consequence thereof. Where the motion will be filed follows the same rules as 2(c) above. Motion to quash a search warrant or to suppress evidence. (2005, 2007 Bar) A motion to suppress as evidence the objects illegally taken (exclusionary rule) – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.

Rule 126, Sec. 14 Where to file

If criminal action has been filed

Court where the action has been instituted.

If no criminal action has been instituted

Court that issued SW.

If no criminal action is filed and motion is first filed with the court that issued the SW, but it failed to resolve the motion and a criminal case is subsequently filed in another court

Court where the subsequent criminal action has been instituted.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz (1971)] (1) No personal examination by the judge. (2) More than one specific offense. (3) No particular description.

Who may file (1) Person injured. (2) Person searched. (3) Owner of the property. An accused may file a Motion to Suppress Evidence if he is not among the persons who can file a Motion to Quash.

Effect of failure to quash warrant (1) Where no MTQ the SW was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the

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suppression of the personal property seized IF the same is offered therein as evidence (REGALADO). (2) The MTQ a SW and Motion to Suppress Evidence are alternative, not cumulative remedies.

Effects of illegal search (1) Illegally seized evidence may not be admitted in evidence in any proceeding. (Art. III, Sec. 2, 1987 Const.) (2) DISPOSITION OF ILLEGALLY SEIZED PROPERTY General rule: Goods seized by virtue of an illegal warrant must be returned. [Castro v. Pabalan (1976)]

Exception: If possession of the things seized is prohibited by law, they should not be returned. However, where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a SW although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)]

Waiver of immunity against unreasonable searches and seizure. [Pasion v. Locsin (1938)] The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly ONLY by the person whose right is being invaded or one who is expressly authorized to do so in his behalf.

Requisites of a valid waiver (1) It must appear that the right exists; (2) That the person involved had knowledge, (actual

or constructive) of the existence of such right; (3) That the person had an actual intention to

relinquish the right. CRIMINAL LIABILITY Violation of the following: (1) Violation of domicile (RPC Art. 128) (2) SW maliciously obtained (Art. 129) (3) Searching domicile without witnesses (Art. 130) (4) Unjust interlocutory order (Art. 206) Grounds: Against public officer or employer: (1) Entering without authority; against the will;

refuses to leave. (2) SW procured without just cause or if with just

cause, exceeds his authority or uses unnecessary severity of force.

(3) Conducting the search without the required witnesses. Against judge: (1) For knowingly rendering an unjust interlocutory order. (2) Inexcusable negligence or ignorance. CIVIL LIABILITIES Violation of the following: (1) Violation of rights and liberties (Art. 32 [9], CC) (2) Malicious prosecution and acts referred to Art. 32.

(Art. 2218, CC) Malice or bad faith is not required. Not only official actions, but makes all persons who are responsible for the violation liable for damages [MHP Garments v. CA (1994)]

Provisional Remedies NATURE Provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. [Rule 127, Sec. 1] Where the civil action has actually been instituted, or proceeded independently of the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action. (Regalado) If the civil action is suspended on account of filing of the criminal action The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary writs that do not go into the merits of the case. [Ramcar Inc v. de Leon] Not available when: (1) Offended party has waived the civil claim. (2) Offended party has reserved the civil claim. (3) Offended party has already instituted a separate

civil action. (4) Criminal action carries with it no civil liability. KINDS OF PROVISIONAL REMEDIES Reference to provisional remedies in Rule 127 is made in general terms, hence preliminary injunction, preliminary attachment, receivership, replevin or support pendent lite may be availed of. (Riano)

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The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. [Rule 119, Sec. 11(b)] PRELIMINARY ATTACHMENT When proper [Rule 127, Sec. 2] When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (1) When the accused is about to abscond from the

Philippines (2) When the criminal action is based on a claim for

money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty

(3) When the accused has concealed, removed or disposed of his property, or is about to do so

(4) When the accused resides outside the Philippines

Issuance and implementation of the writ [Gonzalez v. State Properties (2001)]

When

Issuance of writ May be done before acquisition of jurisdiction over the accused; may be ex-parte

Enforcement of writ Only after acquisition of jurisdiction over the person of the defendant

No notice to the adverse party, or hearing on the application is required before a writ of preliminary attachment may issue as a hearing would defeat the purpose of the provisional remedy. The time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment may issue [Mindanao Savings etc. v. CA, 172 SCRA 480]

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General Principles of Evidence CONCEPT OF EVIDENCE The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [Sec. 1, Rule 128]

SCOPE OF THE RULES OF EVIDENCE General rule: Principle of uniformity Rules of evidence shall be the same in all courts and in all trials and hearings. [Sec. 2, Rule 128] Exception: If otherwise provided by: (1) Law (e.g., 1987 Constitution, statutes); (2) Rules of Court. [Sec. 2, Rule 128] APPLICABILITY The rules of evidence are specifically applicable only in judicial proceedings. [Sec. 1, Rule 128] In quasi-judicial proceedings, the same apply by analogy [Sec. 4, Rule 1], except in cases where the governing law in the particular proceeding specifically adopts the rules of evidence in the Rules of Court. [Regalado] Administrative investigations shall be conducted without necessarily adhering strictly to the technical rules of procedure and evidence applicable to judicial proceedings [Dela Cruz v. Malunao (2012)] Note: There is a different rule for Rules on Electronic Evidence since it covers quasi-judicial and administrative bodies [Sec, 2, Rule 1, Rules on Electronic Evidence] EVIDENCE IN CIVIL CASES vs. EVIDENCE IN CRIMINAL CASES

Civil Cases Criminal Cases

Preponderance of evidence [Sec. 1, Rule 133]

Proof beyond reasonable doubt [Sec. 2, Rule 133]

Offer of compromise NOT an admission of any liability [Sec. 27, Rule 130]

Offer of compromise by the accused may be received in evidence as an implied admission of guilt (except for quasi-offenses or those allowed by law to be compromised) [Sec. 27, Rule 130]

Presumption of innocence does NOT apply

Presumption of innocence a constitutional guarantee

on the accused [Sec. 14, Art. III]

PROOF vs. EVIDENCE

Proof Evidence

Result or effect of evidence [Regalado]

Mode and manner of proving competent facts in judicial proceedings [Bustos v. Lucero, 81 Phil 640]

FACTUM PROBANS vs. FACTUM PROBANDUM

Civil Cases Criminal Cases

Facts or material evidencing the proposition

The proposition to be established

The evidentiary fact tending to prove the fact in issue

The ultimate fact sought to be established

Facts or material evidencing the proposition

The proposition to be established

[Source: Regalado] CLASSIFICATION OF EVIDENCE Object, documentary and testimonial evidence

Object Documentary Testimonial

Addressed to the senses of the court. [Sec. 1, Rule 130]

Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Sec. 2, Rule 130]

Testimony or deposition of a witness

Cumulative and corroborative evidence

Cumulative Corroborative

Evidence of the same kind and to the same state of facts

Additional evidence of a different character to the same point

Prima facie and conclusive evidence

Prima facie Conclusive

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Standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed

Class of evidence which the law does not allow to be contradicted

Primary and secondary evidence

Primary Secondary

(a) Best Evidence (b) That which the law

regards as affording the greatest certainty of the fact in question

(a) Substitutionary Evidence

(b) Inferior to primary; permitted only when the best evidence is not available

ADMISSIBILITY OF EVIDENCE REQUISITES FOR ADMISSIBILITY OF EVIDENCE Evidence is admissible when it is: (1) Relevant to the issue and (2) Not excluded by law or the ROC. [Sec. 3, Rule 128] WHEN DETERMINED Admissibility is determined at the time it is offered to the court [Sec. 35, Rule 132] RELEVANCE OF EVIDENCE & COLLATERAL MATTERS Relevancy Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. [Sec. 4, Rule 128]

Collateral matters Matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue [Regalado]

General Rule: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128]

Exception: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. [Sec. 4, Rule 128]

Note: What is prohibited by the Rules is not evidence of all collateral matters, but evidence of irrelevant collateral facts. [Regalado] Competence Evidence not excluded by: (1) Law, or (2) The ROC [Sec. 3, Rule 128] Determined by the prevailing exclusionary rules of evidence [Regalado]

Exclusionary rules of evidence by law are either constitutional or statutory, as such:

Constitutional Statutory

Unreasonable searches and seizures; privacy of communication and correspondence. [Secs. 2-3, Art. III]

Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled. [Sec. 201, NIRC]

Miranda Rights: right to counsel, prohibition of torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition of secret detention places, solitary, incommunicado. [Sec. 12, Art. III]

Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasi-judicial/legislative/ administrative hearing or investigation. [Secs. 1 and 4, R.A. 4200 (Wire-Tapping Act)]

No person shall be compelled to be a witness against himself. [Sec.17, Art.III]

Rules on Electronic Evidence [Sec. 1,Rule 9,]

Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence. Note: Evidence illegally obtained is inadmissible on a timely motion or action to suppress [Stonehill v. Diokno (1967)] DOCTRINES OF ADMISSIBILITY (1) Multiple admissibility—Where the evidence is

relevant and competent for two or more purposes, such evidence shall be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor. [Regalado]

(2) Conditional admissibility—Where the evidence at

the time of its offer appears to be immaterial or irrelevant unless it is connected with the other

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facts to be subsequently proved, such evidence may be received, on condition that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out.

Note: This is applied in the case of People v. Yatco (97 Phil 940) subject to the qualification that there should be no bad faith on the part of the proponent. The qualification appears to avoid unfair surprises. [Regalado]

(3) Curative admissibility—Where the court has

admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf. [Regalado]

Direct evidence vs. circumstantial evidence

Direct Circumstantial

Proves the fact in dispute without the aid of any inference or presumption

Proof of a fact/s from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence

Positive evidence vs. negative evidence

Positive Negative

Witness affirms that a fact did or did not occur

Witness states he/she did not see or know of the occurrence of a fact (e.g., denial)

Competence vs. credibility

Competence Credibility

Eligibility of evidence to be received as such

Worthiness of belief; “believability”

BURDEN OF PROOF AND BURDEN OF EVIDENCE

Burden of Proof Burden of Evidence

Duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law [Sec. 1, Rule 131]

A party will have the burden of evidence only (i.e., will have to be a proponent) if there is any factum probandum (whether evidentiary or otherwise) that the adverse party has already established (whether by law, rule, or by virtue of

Burden of Proof Burden of Evidence

evidence that he has presented) that he (the potential proponent) has to overcome. That factum probandum may, but does not have to be, nor is limited to a "prima facie presumption." Likewise, a party will not have any burden of evidence at all if the adverse party has not established any factum probandum in the first place. (Prof. Victoria A. Avena)

Does not shift throughout the trial

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 at the trial, or by the provisions of substantive or procedural law

WHERE BURDEN OF PROOF IS FIXED The burden of proof is fixed by pleadings. [Riano] EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE The doctrine refers to the situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In this case, the decision should be against the party with the burden of proof. [Rivera v. CA (284 SCRA 672); Marubeni v. Lirag (2001)] In criminal cases, the equipoise rule provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. [Malana v. People (2008)] PRESUMPTIONS

Conclusive Disputable

Inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong [Datalift Movers v. Belgravia Realty (2006)]

Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence [Sec. 3, Rule 131]

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LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE Like all other provisions under the ROC, rules of evidence must be liberally construed. [Sec. 6, Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. [Sec. 2, Rule 2, Rules on Electronic Evidence] QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF EVIDENCE) PROOF BEYOND REASONABLE DOUBT Applicable quantum of evidence in criminal cases [Sec. 2, Rule 133] Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. [Sec. 2, Rule 133]

The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the accused to prove his/her innocence. [Boac v People (2008)] The prosecution must not rely on the weakness of the evidence of the defense. [Ubales v People (2008); People v Hu (2008)] PREPONDERANCE OF EVIDENCE Applicable quantum of evidence in civil cases [Sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMC-Urban Property Developer, Inc.(2005); Bank of the Philippine Islands v Reyes (2008)] In determining preponderance of evidence, the court may consider: (1) All the facts and circumstances of the case; (2) The witnesses’ manner of testifying, their

intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony;

(3) The witnesses’ interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial;

(4) Number of witnesses (although preponderance is not necessarily equated with the number of witnesses). [Sec. 1, Rule 133]

SUBSTANTIAL EVIDENCE Degree of evidence required in cases filed before

administrative or quasi-judicial bodies [Sec. 5, Rule 133]

The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion [Sec. 5, Rule 133] CLEAR AND CONVINCING EVIDENCE Standard of proof required in granting or denying bail in extradition cases [Government of Hongkong Special Administrative Region v Olalia, Jr. (2007)] Intermediate in character – lower than proof beyond reasonable doubt, but higher than preponderance of evidence

Judicial Notice and Judicial Admissions

WHAT NEED NOT BE PROVED (1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions JUDICIAL NOTICE Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them. Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed. [Republic v. Sandiganbayan (2011)] MATTERS OF JUDICIAL NOTICE MANDATORY Needs no introduction of evidence [Sec. 1, Rule 129]: (1) Existence and territorial extent of states; (2) Their political history, forms of government, and

symbols of nationality; (3) Law of nations; (4) Admiralty and maritime courts of the world and

their seals; (5) Political constitution and history of the

Philippines; (6) Official acts of the legislative, executive and

judicial departments of the Philippines; (7) Laws of nature; (8) Measure of time; and (9) Geographical divisions.

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Note: It would be error for the court not to take judicial notice of an amendment to the Rules of Court [Riano citing Siena Realty v. Gal-lang (428 SCRA 422)] DISCRETIONARY (1) Matters of public knowledge; (2) Matters capable of unquestionable

demonstration; and (3) Matters ought to be known to judges because of

their judicial functions. [Sec. 2, Rule 129] REQUISITES For the court to take judicial notice, three material requisites should be present: (1) The matter must be one of common and general

knowledge; (2) It must be well and authoritatively settled and

not doubtful or uncertain; (3) It must be known to be within the limits of the

jurisdiction of the court. [State Prosecutors v, Muro (1994)]

Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. [State Prosecutors v. Muro (1994)] With Respect to Court’s Own Acts and Records A court MAY take judicial notice of its own acts and records in the same case. [Republic v Court of Appeals (1997)] With Respect to Records of Other Cases General Rule: Courts CANNOT take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo (1965)] Exceptions: (1) When there is no objection, with the knowledge of

the opposing party, the contents of said other case are clearly referred to and adopted or read into the record of the latter; or

(2) When the original or part of the records of the case is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case [Tabuena v. CA (1991)]

The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It

is either 1) generally known within the territorial jurisdiction of the trial court; or b) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. [Riano] JUDICIAL ADMISSIONS To be a judicial admission, the same: (1) Must be made by a party to the case; (2) Must be made in the course of the proceedings in

the same case; and (3) May be verbal or written. [Sec. 4, Rule 129] As regards judicial admissions made in the trial of another case: the same would be considered an extrajudicial admission for the purpose of the other proceeding where such admission is offered. [Riano] WHERE JUDICIAL ADMISSIONS MAY BE MADE (a) Pleadings filed by the parties (including

admissions made in pleadings which are withdrawn/superseded by an amended pleading [Regalado])

(b) The course of the trial either by verbal/written manifestations/stipulations

(c) Other stages of judicial proceedings

HOW JUDICIAL ADMISSIONS MAY BE OBTAINED (a) Depositions (b) Written interrogatories (c) Request for admissions [Regalado; see also Civil

Procedure Rules] There are averments made in pleadings which are not deemed admissions even if the adverse party fails to make a specific denial of the same like immaterial allegations (Sec. 11, Rule 8), conclusions, non-ultimate facts in the pleading (Sec. 1, Rule 8) as well as the amount of liquidated damages (Sec. 11, Rule 8). [Riano] Although an admission made during the pre-trial is deemed to have been made in the course of the judicial proceeding and is necessarily a judicial admission, an admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him. To be admissible, it must comply with the conditions set forth under Sec. 2, Rule 118 [Riano] EFFECT OF JUDICIAL ADMISSIONS (1) It does NOT require proof. [Sec. 4, Rule 129] (2) It is conclusive upon the party making it, and

hence, CANNOT be contradicted. [Sec. 4, Rule 129]

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An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extra-judicial admission requiring a formal offer to be admissible. [Torres v CA (1984)]. A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. [Alfelor v Halasan (2006)] HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED As an exception to the general rule, judicial admissions may be contradicted only by showing that: (1) It was made through palpable mistake; [Sec. 4,

Rule 129] (2) No such admission was made. [Sec. 4, Rule 129]

This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party [Phil. Health Care Providers v. Estrada, 2008 citing Atillo, III v. CA, 1997]

CONCLUSIVE PRESUMPTIONS Instances of Conclusive Presumptions [Sec. 2, Rule 131] (1) Whenever a party has, by his own

declaration/act/omission, intentionally and deliberately led another to believe a particular thing is true and to act upon such belief, he cannot, in any litigation arising out of such declaration/act/omission, be permitted to falsify it.

(2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

As Distinguished from Disputable Presumptions [Sec. 3, Rule 131] (1) Person is innocent of a crime or wrong; (2) Unlawful act is done with an unlawful intent; (3) Person intends the ordinary consequences of his

voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse

if produced; (6) Money paid by one to another was due to the

latter; (7) Thing delivered by one to another belonged to

the latter; (8) Obligation delivered up to the debtor has been

paid; (9) Prior rents or installments had been paid when a

receipt for the later ones is produced; (10) A person found in possession of a thing taken in

the doing of a recent wrongful act is the taker

and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him;

(11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly;

(12) Person acting in public office was regularly appointed or elected to it;

(13) Official duty has been regularly performed; (14) A court or judge acting as such, whether in the

Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them;

(16) Private transactions have been fair and regular; (17) Ordinary course of business has been followed; (18) There was a sufficient consideration for a

contract; (19) Negotiable instrument was given or indorsed for

a sufficient consideration; (20) An indorsement of negotiable instrument was

made before the instrument was overdue and at the place where the instrument is dated;

(21) A writing is truly dated; (22) Letter duly directed and mailed was received in

the regular course of the mail; (23) Presumptions concerning absence:

(a) Ordinary but continued absence of: (i) 7 years, it being unknown WON the

absentee still lives, he is considered dead for all purposes, except for those of succession

(ii) 10 years—the absentee shall be considered dead for the purpose of opening his succession; but if he disappeared after the age of 75 years, an absence of 5 years shall be sufficient to open his succession

(iii) 4 consecutive years—the spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead; but where there is danger of death, an absence of only 2 years shall be sufficient for remarriage

(b) Qualified absence (i) A person on board a vessel lost during

a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft

(ii) A member of the armed forces who has taken part in armed hostilities, and has

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been missing for 4 years (iii) A person who has been in danger of

death under other circumstances and whose existence has not been known for 4 years

(24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact;

(25) Things have happened according to the ordinary course of nature and ordinary nature habits of life;

(26) Persons acting as copartners have entered into a contract of co-partnership;

(27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

(28) Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry;

(29) In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal;

(30) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary):

When child was born Presumption

Before 180 days after the solemnization of the subsequent marriage

Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage

After 180 days following the celebration of the subsequent marriage

Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

(31) A thing once proved to exist continues as long as

is usual with things of the nature; (32) The law has been obeyed; (33) A printed/published book, purporting to be

printed/published by public authority, was so printed/published;

(34) A printed/published book, purporting to contain

reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(35) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;

(36) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same

calamity, (b) And it is not shown who died first, (c) And there are no particular circumstances

from which it can be inferred, (d) The survivorship is determined from the

probabilities resulting from the strength and the age of the sexes:

Situation Person presumed to have survived

Both < 15 y/o The older

Both > 60 y/o The younger

One < 15 y/o, the other > 60 y/o

The one <15

Both > 15 and < 60 y/o, of different sexes

The male

Both > 15 and <60 y/o, of the same sex

The older

(37) As between 2 or more persons called to succeed

each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, they shall be considered to have died at the same time.

JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND MUNICIPAL ORDINANCES FOREIGN LAWS General Rule: Courts cannot take judicial notice of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)] Exceptions: The court may take judicial notice of the foreign law: (1) Where the foreign law is within the actual

knowledge of the court such as when the law is generally well-known, had been ruled upon in previous cases before it and none of the parties claim otherwise [PCIB v Escolin (1974)]

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(2) When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [Sec. 46, Rule 130]

Under the Doctrine of Processual Presumption: In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. [Northwest Orient Airlines v Court of Appeals (1995)] LAW OF NATIONS The Philippines adopts the generally accepted principles of international law as part of the law of the land. [Sec. 2, Art. II, 1987 Constitution] Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under Sec. 1 of Rule 129. MUNICIPAL ORDINANCES Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit. [(US v. Blanco, 37 Phil 126)] However, in the case of the RTC, they must take such judicial notice only (a) when required to do so by statute (City of Manila v. Garcia (1967)); and b) in a case of appeal before them wherein the inferior court took judicial notice of an ordinance involved in said case [(US v. Blanco, 37 Phil 126)] [Regalado]

Object (Real) Evidence NATURE OF OBJECT EVIDENCE Those addressed to the senses of the court [Sec. 1, Rule 130] The right against self-incrimination CANNOT be invoked against object evidence. [People v. Malimit, (1996)] REQUISITES OF ADMISSIBILITY (1) Evidence must be relevant; (2) Evidence must be authenticated; (3) Authentication must be made by a competent

witness; and (4) Object must be formally offered [Sec. 34, Rule

132] RELEVANT General Rule: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Sec. 1, Rule 130]

Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if: (1) Exhibition is contrary to public policy, morals or

decency; (2) It would result in delays, inconvenience,

unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera]

(3) Evidence would be confusing or misleading. [People v. Saavedra]

COMPETENT Evidence be Authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Authentication be Made by Competent Witness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation. A witness can testify to those facts which he/she knows of his/her personal knowledge; that is, which are derived from his/her own perception. [Sec. 36, Rule 130] CATEGORIES OF OBJECT EVIDENCE “The thing itself” UNIQUE OBJECTS Objects that have readily identifiable marks, e.g., a caliber 45 pistol by virtue of its serial number OBJECTS MADE UNIQUE Objects with no unique characteristic but are made readily identifiable, e.g., a typical kitchen knife with identifying marks placed on it by the witness NON-UNIQUE OBJECTS Objects with no identifying marks and cannot be marked, e.g., narcotic substances DEMONSTRATIVE EVIDENCE Not the actual thing, rather it represents or “demonstrates” the real thing, e.g., photographs, motion pictures and recordings [Riano] Audio, photographic and video evidence of events, acts or transactions shall be admissible provided they shall be: (1) Shown, presented or displayed to the court; and (2) Identified, explained or authenticated:

(a) By the person who made the recording, or

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(b) By some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, Rules on Electronic Evidence]

EPHEMERAL ELECTRONIC COMMUNICATIONS Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [Sec. 1(k), Rule 2, Rules on Electronic Evidence] How proven: (1) By the testimony of a person who was a party to

the same; (2) By the testimony of a person who has personal

knowledge thereof; or (3) In the absence or unavailability of such

witnesses, by other competent evidence [Sec. 2, Rule 11, Rules on Electronic Evidence]

When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [Sec. 2, Rule 11, Rules on Electronic Evidence]. VIEW OF AN OBJECT OR SCENE When an object is relevant to the fact in issue, it may be viewed by the court. [Sec. 1, Rule 130] Court has an inherent power to order view when there is a need to do so. [Riano, citing Sec. 1, Rule 130] Inspection may be made inside or outside the courtroom. An inspection outside should be made in the presence of the parties or at least with the previous notice to them. [Riano, citing Moran] CHAIN OF CUSTODY In relation to Sec. 21 of the Comprehensive Dangerous Drugs Act of 2002 MEANING OF CHAIN OF CUSTODY A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be [Lopez v People (2008), as cited in People v Dela Cruz (2008) and People v Agulay (2008)] IN RELATION TO DRUG CASES The apprehending team having initial custody and control of the drugs shall: (1) Physically inventory, and (2) Photograph the same, (3) In the presence of

(a) Accused or the person/s from whom the drugs were seized, or his/her representative or counsel

(b) Representative from the media and the Department of Justice

(c) Any elected public official (4) Who shall be required to sign the copies of the

inventory and be given a copy thereof. [Sec. 21, Art. II, R.A. 9165 or the Comprehensive Dangerous Drugs Act of 2002]

Non-compliance with Sec. 21 of R.A. 9165, particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. The issue if there is non-compliance with the law is not admissibility, but of weight – evidentiary merit or probative value. [People v Del Monte (2008)] PURPOSE OF ESTABLISHING CHAIN OF CUSTODY To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic. [Riano] Note: A unique characteristic of narcotic substances is that they are not readily identifiable. Hence, in authenticating the same, a more stringent standard than that applied to readily identifiable objects is necessary. This exacting standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with [Lopez v. People (2008)] RULE ON DNA EVIDENCE [A.M. No. 06-11-5-SC] MEANING OF DNA The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3c] APPLICATION FOR DNA TESTING ORDER With prior court order (1) The appropriate court may, at any time, either (i)

motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing.

(2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to

the case; (b) The biological sample: (i) was not previously

subjected to the type of DNA testing now requested; or (ii) was previously subjected to

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DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. 4]

Without prior court order This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4] POST-CONVICTION DNA TESTING How obtained: (1) Without need of prior court order (2) Available to the prosecution or any person

convicted by final and executory judgment Requisites: (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal

or modification of the judgment of conviction. [Sec. 6]

Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10] General Rule: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10]

Exception: If continued detention is justified for a lawful cause. [Sec. 10] ASSESSMENT AND PROBATIVE VALUE OF DNA EVIDENCE

AND ADMISSIBILITY Factors in assessing the probative value of DNA evidence (1) Chain of custody

(a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination

(2) DNA testing methodology

(a) Procedure followed in analyzing the samples (b) Advantages and disadvantages of the

procedure

(c) Compliance with scientifically valid standards in conducting the tests

(3) Forensic DNA laboratory

(a) Accreditation by any reputable standards-setting institution

(b) Qualification of the analyst who conducted the tests

(c) If not accredited, relevant experience of the laboratory in forensic work and its credibility

(4) Reliability of the testing result [Sec. 7] Vallejo Standard In assessing the probative value of DNA evidence, courts should consider the following: (a) How the samples were collected (b) How they were handled (c) The possibility of contamination of the samples (d) The procedure followed in analyzing the samples,

whether the proper standards and procedures were followed

(e) Qualification of the analyst who conducted the tests [People v. Vallejo (2002)]

RULES ON EVALUATION OF RELIABILITY OF THE DNA

TESTING METHODOLOGY Factors that determine the reliability of the DNA Testing Methodology (1) Falsifiability of the principles or methods used (2) Subject to peer review and publication of the

principles or methods (3) General acceptance of the principles or methods

by the scientific community (4) Existence and maintenance of standards and

controls to ensure the correctness of data generated

(5) Existence of an appropriate reference population database

(6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles

(7) Significance and limitation of statistical calculations used in comparing DNA profiles

Documentary Evidence

MEANING OF DOCUMENTARY EVIDENCE Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, Sec. 2]

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To be deemed documentary evidence, such writings or materials must be offered as proof of their contents. If offered for some other purpose, they constitute OBJECT EVIDENCE. REQUISITES FOR ADMISSIBILITY (1) Relevant (2) Competent

(a) Document be Authenticated (b) Authenticated by Competent Witness

(3) Formally Offered in Evidence BEST EVIDENCE RULE MEANING OF THE RULE When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. [Rule 130, Sec. 3] APPLICABILITY Only when the subject of inquiry is the contents of a document [Rule 130, Sec. 3] The BER does not apply when the issue is only as to WON such document was actually executed or in the circumstances relevant to its execution. [People v Tandoy (1990)] As applied in the case of affidavits and depositions: Affidavits and depositions are considered as not being the best evidence, hence not admissible if the affiants or deponents are available as witnesses. [Regalado citing 4 Martin, op cit., p. 82] MEANING OF “ORIGINAL DOCUMENT” (1) One the contents of which are the subject of

inquiry (2) All such copies executed at or about the same

time, and with identical contents

Note: Carbon copies are deemed duplicate originals. [People v Tan (1959)]

(3) All such entries made and repeated in the regular

course of business, at/near the time of the transaction [Rule 130, Sec. 4]

REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE

(EXCEPTIONS TO BER) (1) When the original has been lost or destroyed, or

cannot be produced in court, without bad faith on the offeror’s part Proponent must prove due execution, loss,

destruction or unavailability of the original (Rule 130, Sec. 5) and reasonable diligence and good faith in the search for/attempt to produce the original [Tan v. CA (1985)]

ALL duplicates or counterparts must be accounted for before using copies [De Vera v. Aguilar (1993)]

How to prove contents: (a) Copy, (b) Recital of its contents in some authentic document, or (c) Testimony of witnesses (in the order stated) [Section 5, Rule 130]

How to prove loss/destruction: Through the testimony of: (a) The person or persons who executed it; (b) The person before whom its execution was acknowledged; or (c) Any person who was present and saw it executed and delivered, or who, after its execution and delivery, saw it and recognized the signatures, or by a person to whom the parties to the instruments had previously confessed the execution thereof. [Director of Lands v. CA (1971)]

(2) When the original is in the custody or under the control of the party against whom it is offered, and the latter fails to produce it after reasonable notice

(3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole

(4) When the original is a public record in the custody

of a public officer or is recorded in a public office (5) When the original is outside the jurisdiction of the

court, secondary evidence is admissible [PNB v. Olila (98 Phil 1002)]

RULES ON ELECTRONIC EVIDENCE [A.M. NO. 01-7-01- SC] APPLICABILITY The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings and administrative proceeding, not to criminal action. [Ang v. CA (2010)] MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA

MESSAGE Electronic document (1) Information or the representation of information,

data, figures, symbols or other modes of written expression,

(2) Described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed,

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(3) Which is received, recorded, transmitted, stored processed, retrieved or produced electronically.

(4) It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document.

For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. Electronic data message Information generated, sent, received or stored by electronic, optical or similar means PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR

EVIDENTIARY WEIGHT; METHOD OF PROOF Factors in assessing evidentiary weight of electronic evidence [Rule 7, Sec. 1] In assessing the evidentiary weight of an electronic document, the following factors may be considered: (1) The reliability of the manner or method in which it

was generated, stored or communicated, including but not limited to (a) Input and output procedures, (b) Controls, tests and checks for accuracy and

reliability of the electronic data message or document,

(c) In the light of all the circumstances as well as any relevant agreement;

(2) The reliability of the manner in which its originator was identified;

(3) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (a) Whether the information and communication

system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system [Rule 7, Sec. 2];

(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it [Rule 7, Sec. 2]; or

(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Rule 7, Sec. 2]

(4) The familiarity of the witness or the person who made the entry with the communication and information system;

(5) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or

(6) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.

In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (1) Whether the information and communication

system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;

(2) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or

(3) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.

Text messages have been classified as “ephemeral electronic communication” under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof.” [Vidallon-Magtolis v. Salud (2005)] Method of Proof (1) Affidavit of Evidence [Rule 9, Sec. 1]

(a) Must state facts: (i) Of direct personal knowledge, or (j) Based on authentic records

(b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit

(2) Cross-Examination of Deponent [Rule 9, Sec. 2] (a) Affiant shall affirm the contents of the

affidavit in open court. (b) Affiant may be cross-examined as a matter of

right by the adverse party. AUTHENTICATION OF ELECTRONIC DOCUMENTS &

ELECTRONIC SIGNATURES [Rule 5, secs. 1 to 3; Rule 11, secs. 1 to 2, Rules on electronic evidence] Of Electronic Documents Burden of proving authenticity: The person seeking to introduce the electronic document [Rule 5, Sec. 1]

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Manner of Authentication: (1) By evidence that it had been digitally signed by

the person purported to have signed the same; (2) By evidence that other appropriate security

procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or

(3) By other evidence showing its integrity and reliability to the satisfaction of the judge. [Rule 5, Sec. 2]

Of Electronic Signatures [Rule 6, Sec. 2] (1) By evidence that a method or process was utilized

to establish a digital signature and verify the same;

(2) By any other means provided by law; or (3) By any other means satisfactory to the judge ELECTRONIC DOCUMENTS & THE HEARSAY RULE Business Records as Exception to the Hearsay Rule What Constitute Business Records: Records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes [Rule 2, Sec. 1b]

Requisites (1) Made by electronic, optical or other similar means (2) Made at or near the time of or from transmission

or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a

business activity, (5) Such was the regular practice to make the

memorandum, report, record, or data compilation by electronic, optical or similar means

(6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Rule 8, Sec. 1]

Exception to the Exception (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the

preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the

preparation, transmission or storage thereof [Rule 8, Sec. 2]

AUDIO, PHOTOGRAPHIC, VIDEO & EPHEMERAL EVIDENCE If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 (“Authentication of Electronic Documents”) shall apply.

PAROL EVIDENCE MEANING OF PAROL EVIDENCE Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. [Regalado] APPLICATION OF THE PAROL EVIDENCE RULE General Rule When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. [Rule 130, Sec. 9] Exception It does not apply when 3rd parties are involved. [Lechugas v. CA (1986)] WHEN PAROL EVIDENCE CAN BE INTRODUCED (1) When a party presents parol evidence to modify,

explain or add to the terms of a written agreement

(2) Ground/s for presenting parol evidence is put in issue in the pleading

Grounds for presenting parol evidence: (1) An intrinsic ambiguity, mistake or imperfection in

the written agreement (a) Intrinsic ambiguity – writing admits of two

constructions both of which are in harmony with the language used

Note: If ambiguity is intermediate (both latent and patent), parol evidence is admissible [Regalado citing 20 Am. Jur 1011] (b) Mistake refers to mistake of fact which is

mutual to the parties [BPI v. Fidelity and Surety, Co, 1927]

(c) Imperfection – includes inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions [Regalado]

(2) Failure of the written agreement to express the true intent and agreement of the parties thereto

Purpose: To enable court to ascertain the true intention of the parties [Tolentino v. Gonzales Sy Chiam (1927)] (3) Validity of the written agreement—Parol Evidence

may be admitted to show: (a) True consideration of a contract (b) Want/Illegality of consideration (c) Incapacity of parties (d) Fictitious/simulated contract (e) Fraud in inducement [Regalado]

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(4) Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

Collateral agreements General Rule: Parol evidence rules apply Exceptions: (a) Collateral agreement is not inconsistent with the

terms of the written contract (b) Collateral agreement has not been integrated in

and is independent of the written contract (c) Collateral agreement is subsequent to and

novatory of the written contract (d) Collateral agreement constitutes a condition

precedent which determines whether the written contract may become operative or effective (does not apply to conditions subsequent not stated in the agreement) [Regalado]

DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL

EVIDENCE RULE

Best evidence rule Parol evidence rule

Contemplates situation wherein original writing is not available and/or there is a dispute as to whether said writing is the original

Presupposes that the original document is available in court

Prohibits introduction of substitutionary evidence in lieu of original document regardless of whether it varies the contents of the original

Prohibits the varying of the terms of a written agreement

Applies to all kinds of documents

Applies only to documents contractual in nature (Exception: Wills)

Can be invoked by any party to an action regardless of whether or not such party participated in the writing involved

Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby

AUTHENTICATION AND PROOF OF DOCUMENTS MEANING OF AUTHENTICATION Preliminary step in showing the admissibility of evidence PUBLIC AND PRIVATE DOCUMENTS

Private Public

When offered as authentic, due execution

Admissible without further proof of its due

Private Public

and authenticity must be proved

execution and authenticity

Private documents General Rule: When offered as authentic, authentication is necessary How to Prove Due Execution and Authenticity (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 [Rule 132, Sec. 20] Additional Modes of Authentication under American Jurisprudence [Regalado] (1) Doctrine of Self-Authentication

Where the facts in writing could only have been known by the writer (2) Rule of Authentication by Adverse Party

Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering as evidence When evidence of authenticity of a private writing is not required (1) Ancient Documents – Authentication NOT

necessary provided that private document be: (a) More than 30 years old; (b) Produced from the custody in which it would

naturally be found if genuine; and (c) Unblemished by any alterations or

circumstances of suspicion. [Rule 132, Sec. 21] Note: Other instances when authentication is not required:

(a) Writing is a public document/record [Rule 132, Sec. 19]

(b) Notarial document acknowledged, proved/certified [Rule 132, Sec. 30]

(c) When authenticity and due execution has been admitted [See Rule 8, Sec. 8]

(d) That which it is claimed to be: Authentication not necessary [Rule 132, Sec. 20]

How to prove genuineness of handwriting (1) By any witness who believes it to be the

handwriting of such person because: (a) He has seen the person write; (b) He has seen writing purporting to be his upon

which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Rule 132, Sec. 22]

(2) A comparison by the witness or the court of the questioned handwriting, and admitted genuine specimens thereof or proved to be genuine to the

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satisfaction of the judge [Rule 132, Sec. 22] (3) Expert evidence [Rule 130, Sec. 49] Public documents Kinds of public documents (1) 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) Public records, kept in the Philippines, of private documents required by law to be entered therein

(3) Notarial documents (except last wills and testaments) [Rule 132, Sec. 19]

Proof of public documents Records of Official Acts [Rule 132, Sec. 24] (1) By an official publication thereof; or (2) By an attested copy of the document Note: Documents without documentary stamp affixed thereto, unless specifically exempted by law, may not be admitted or used in evidence in any court until the requisite stamp shall have been affixed. [Sec. 201, NIRC] Also, there is a presumption that the requisite stamps have been affixed in the original copy when only the carbon copies of the same are available. [Mahilum v CA (1966)] ATTESTATION OF A COPY [RULE 132, SEC. 25] (1) Must be made by the officer having the legal

custody of the record, or by his deputy (2) Must state that the copy is a correct copy of the

original or a specific part thereof, as the case may be

(3) Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court

If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which (1) May be made by a secretary of the

embassy/legation, consul-general, consul, vice-consul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept;

(2) Must state that such officer has the custody; and (3) Must be authenticated by the seal of his office. PROOF OF LACK OF RECORD [RULE 132, SEC. 28] (1) Written statement

(a) Signed by an officer having the custody of an official record or by his deputy

(b) Must state that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office

(2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the

custody WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD [RULE 132, SEC. 29] (1) Want of jurisdiction in the court or judicial officer; (2) Collusion between the parties; OR (3) Fraud in the party offering the record, with

respect to the proceedings PROOF OF NOTARIAL DOCUMENTS Notarial Documents (except last wills and testaments) [Rule 132, Sec. 30] (1) May be presented in evidence without further

proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved.

(2) Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, Sec. 23]

ALTERATIONS IN A DOCUMENT [RULE 132, SEC. 3] Requisites (1) Document is being presented as genuine; (2) Document has been altered and appears to have

been altered; (3) Alteration was made after execution of the

document; and (4) Alteration is in a part material to the question in

dispute

What to Show about the Alteration (1) Was made by another, without his concurrence; (2) Was made with the consent of the parties

affected by it; (3) Was otherwise properly or innocently made; or (4) Did not change the meaning or language of the

instrument.

Whose Burden of Proof Party producing the document must account for the alteration. Failure to do so would result in the inadmissibility of evidence. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE [RULE 132, SEC. 33] NOT admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial.

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Testimonial Evidence

WITH RESPECT TO A WITNESS QUALIFICATIONS OF A WITNESS [RULE 130, SEC. 20] All persons who can perceive, and, perceiving, can make their known perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. WHEN DETERMINED At the time the said witness are produced for examination/at the taking of their depositions Note: With respect to children of tender years, competence at the time of the occurrence is also taken into account. IN CASE PERSON IS CONVICTED OF A CRIME General Rule: Not disqualified Exceptions: If the person is convicted of: (a) Falsification of documents, (b) Perjury, or (c) False testimony COMPETENCY VS. CREDIBILITY OF A WITNESS

Competency Credibility

A matter of law and of rules

Has nothing to do with the law or rules

Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others

Refers to the weight and trustworthiness or reliability of the testimony

DISQUALIFICATIONS OF A WITNESS (1) Disqualification by reason of mental incapacity or

immaturity; (2) Disqualification by reason of marriage; (3) Disqualification by reason of death or insanity of

adverse party; (4) Disqualification by reason of privileged

communication; (5) Disqualification by reason of parental and filial

privilege

Effect if Witness Has Interest in the Subject Matter A person is not disqualified (except if covered by the Dead Man’s statute). The effect is only on credibility, but not competency.

Relationship Mere relationship does not impair credibility. To warrant rejection, it must be clearly shown: (1) Testimony was inherently improbable or defective (2) Improper/evil motives had moved the witness to

incriminate falsely BY REASON OF MENTAL INCAPACITY OR IMMATURITY Mental Incapacity [Rule 130, Sec. 21a] Requisites: (1) Person must be incapable of intelligently making

known his perception to others (2) His incapability must exist at the time of his

production for examination A mental retardate is not for this reason alone disqualified from being a witness. Acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. [People v. Salomon (1993)] Immaturity [Rule 130, Sec. 21b] Requisites: (1) Mental maturity of the witness (child) must

render him incapable of perceiving the facts respecting which he is examined.

(2) He is incapable of relating his perception truthfully.

Incapacity must occur at the time the witness perceives the event. Unsound mind (a) Includes any mental aberration

(organic/functional), induced by drugs/hypnosis (b) Not disqualified as long as the witness can

convey ideas by words/signs Deaf-Mutes Not disqualified when they can understand and appreciate sanctity of oath, can comprehend facts that they are going to testify to and communicate through a qualified interpreter

Child Witness Must have capacity for observation, recollection and communication BY REASON OF MARRIAGE Also known as “Marital Disqualification Rule” or “Spousal Immunity”

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Requisites (1) Marriage is valid and existing as of the time of the

offer of testimony. (2) Other spouse is a party to the action. Exceptions [Rule 130, Sec. 22] Spouse MAY testify for or against the other even without the consent of the latter: (1) In a civil case by one against the other (2) In a criminal case for a crime committed by one

against the other or the latter's direct descendants/ascendants.

Rationale [Alvarez v. Ramirez (2005)] (1) There is identity of interests between husband

and wife; (2) If one were to testify for or against the other,

there is a consequent danger of perjury; (3) Policy of the law is to guard the security and

confidence of private life, and to prevent domestic disunion and unhappiness; and

(4) Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other.

If the husband imputed the conviction to the wife, then marital disqualification is waived. If the spouse is a co-accused, he/she cannot be called as an adverse party witness under this Rule. BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY Also known as “Dead Man’s Statute” or “Survivorship Rule” Requisites [Rule 130, Sec. 23] (1) Defendant is the executor or administrator or a

representative of the deceased or of the person of unsound mind;

(2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind;

(3) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and

(4) Subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

When the Dead Man’s Statute Is Inapplicable (1) The survivor may testify against the estate of the

deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor. [Ong Chua v. Carr (1929)]

(2) He may also testify where he was the one sued by the decedent’s estate since the action then is not against the estate. [Tongco v. Vianzon (1927)]

(3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA (1986)]

(4) No application to a mere witness (5) No application to nominal parties, officers and

stockholders against corporations (6) Cannot be used in a negative testimony (7) If the testimony is offered to prove a claim less

than what is written (8) If the defendant did not object (9) When there is an existence of fraud (10) When the party cross-examines the witness

Rationale To discourage perjury and protect the estate from fictitious claims Note: On applicability—The DMS is still applicable even if the property has already been judicially adjudicated to the heirs regardless whether the deceased died before or after the suit. PRIVILEGED COMMUNICATIONS (1) Husband and wife (marital privilege) [Rule 130,

Sec. 24a] (2) Attorney and client [Sec. 24(b), Rule 130] (3) Physician and patient [Sec. 24(c), Rule 130] (4) Priest and penitent [Sec. 24(d), Rule 130] (5) Other privileged communication not in the ROC

(a) Newsman’s privilege (b) Information in conciliation proceedings (c) Data Privacy Act

(6) Parental and filial privilege rule [Sec. 25, Rule 130] Husband and wife Rationale Confidential nature of the privilege; to preserve marital and domestic relations Requisites (1) There must be a valid marriage between the

husband and wife; (2) There is a communication received in confidence

by one from the other; and (3) The confidential communication was received

during the marriage.

A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo (1918)]

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When Not Applicable (1) When the communication was not intended to be

kept in confidence (2) When the communication was made prior to the

marriage (3) When the communication was overheard/comes

into the hands of a third party whether legally or not

(4) Waiver of the privilege (5) In a civil case by one against the other (6) In a criminal case for a crime committed by one

against the other or the latter's direct descendants/ascendants.

In Contrast to Marital Disqualification

Marital Disqualification Marital Privilege

One spouse should be a party to the case;

Neither of the spouses needs to be a party;

Applies only if the marriage is existing at the time the testimony is offered; and

Does not cease even after the marriage is dissolved; and

Constitutes a total prohibition on any testimony for or against the spouse of the witness.

Prohibition is limited to testimony on confidential communications between spouses.

Attorney and client Requisites (1) There must be a communication made by the

client to the attorney or an advice given by the attorney to his client;

(2) The communication must have been given in confidence; and

(3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment.

Attorney’s secretary, stenographer, or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer. When Not Applicable (1) When the communication made was not for the

purpose of creating relationship (even if afterwards he become counsel)

(2) When the communication was intended to be made public

(3) When the communication was intended to be communicated to others

(4) When the communication was intended for an unlawful purpose

(5) When the communication was received from third persons not acting in behalf/as agents of clients

(6) When the communication was made in the presence of third parties stranger to the attorney-client relationship

(7) When the communication has something to do with a client’s contemplated criminal act [People v. Sandiganbayan (1997)] [Regalado]

General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. Exceptions [Regala v. Sandiganbayan (1996)]: (1) When a strong probability exists that revealing

the name would implicate that person in the very same activity for which he sought the lawyer’s advice;

(2) When disclosure would open the client to liability; (3) When the name would furnish the only link that

would form the chain of testimony necessary to convict.

Physician and patient Requisites (1) Physician is authorized to practice medicine,

surgery or obstetrics; (2) Information was acquired or the advice or

treatment was given by him in his professional capacity for the purpose of treating and curing the patient;

(3) Information, advice or treatment, if revealed, would blacken the reputation of the patient; and

(4) Privilege is invoked in a civil case, whether or not the patient is a party thereto.

Where Applicable: (a) All forms of communication, advice or treatment (b) Information acquired by the physician from his

personal observations and examination of the patient

Physician-patient relationship need not be entered into voluntarily.

When Not Applicable: (a) Communication was not given in confidence (b) Communication was irrelevant to the professional

employment (c) Communication was made for an unlawful

purpose (d) Communication was intended for the

commission/concealment of a crime (e) Communication was intended to be made

public/divulged in court

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(f) When there was a waiver (g) When the doctor was presented as an expert

witness and only hypothetical problems were presented to him. [Lim v. CA (1992)]

Priest and penitent Requisites (1) Confession was made to, or advice given by him

pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest.

(2) Confession or advice was confidential and penitential in character.

Public officers Requisites (1) Communication was made to the public officer in

official confidence; and (2) Public interest would suffer by the disclosure of

such communication. Elements of “presidential communications privilege” (1) Must relate to a “quintessential and non-

delegable presidential power;” (2) Must be authored or “solicited and received” by a

close advisor of the President or the President himself; and

(3) Privilege may be overcome by a showing of adequate need such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere. [Neri v. Senate (2008)]

Other Privileged Communication not in the ROC: Newsman’s Privilege [RA 53, as amended by RA 1477] General Rule: Publisher, editor or duly accredited reporter cannot be compelled to reveal the source of any news report or information related in confidence Exception: Court/House/Committee in Congress finds that such revelation is demanded by security of the State Information in Conciliation Proceedings All information and statements made at conciliaton proceedings shall be treated as privileged communications. [Art. 233, Labor Code] Data Privacy Act Personal information controllers may invoke the principle of privileged communication over privileged information that they lawfully control or process. Subject to existing laws and regulations, any evidence gathered on privileged information is inadmissible. [Sec. 15, RA 10173]

Parental and filial privilege rule General Rule: A person cannot be compelled to testify against his parents (parental privilege), other direct ascendants, children or other direct descendants (filial privilege). Exception [Art. 215, Family Code]: Descendant may be compelled to give his testimony: (1) In a criminal case; and (2) When such testimony is indispensable in a crime

committed against said descendant; or (3) In a crime committed by one parent against the

other. EXAMINATION OF WITNESSES RIGHTS AND OBLIGATIONS OF A WITNESS [RULE 132, SEC. 3] Obligation of a witness To answer questions, although his answer may tend to establish a claim against him. Rights of a witness (1) To be protected from irrelevant, improper, or

insulting questions, and from harsh or insulting demeanor

(2) Not to be detained longer than the interests of justice require

(3) Not to be examined except only as to matters pertinent to the issue

(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, e.g., Sec. 8, RA 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted

(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.

One-Day Examination of Witness Rule [AM 03-1-09-SC] [2009 BAR] A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

[RULE 132, SEC. 4] (1) Direct examination (2) Cross examination (3) Re-direct examination (4) Re-cross examination

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LEADING AND MISLEADING QUESTIONS [RULE 132, SEC. 10] Questions not allowed (1) Misleading Questions [Sec. 10, Rule 132]

(a) Questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.

(b) NEVER allowed (2) Leading Questions

Questions that suggest to the witness the answer, which the examining party desires.

General Rule: Leading questions are not allowed. Exceptions: (1) On cross examination; (2) On preliminary matters; (3) When there is a difficulty is getting direct and

intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;

(4) On an unwilling or hostile witness; A witness may be considered hostile only when declared by the court, upon adequate showing of his: [Sec. 12, Rule 132] (a) Adverse interest; (b) Unjustified reluctance to testify; (c) His having misled the party into calling him

to the witness stand. (5) On a witness who is an adverse party or an

officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party.

METHODS OF IMPEACHMENT OF ADVERSE PARTY’S

WITNESS [RULE 132, SEC. 11] (1) By contradictory evidence; (2) By evidence that his general reputation for truth,

honesty or integrity is bad; (3) By evidence that he has made at other times

statements inconsistent with his present testimony.

How the Witness Is Impeached by Evidence of Inconsistent Statements (Laying the Predicate) Elements (1) The alleged statements must be related to the

witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him.

Direct Examination [Rule 132, Sec. 4] Who conducts: Proponent Why conducted: Examination-in-chief of a witness

by the party presenting him, on the facts relevant to the issue.

Cross Examination [Rule 132, Sec. 6] Who conducts: Opponent When conducted: Upon the termination of the

direct examination Why conducted: To test the witness’s accuracy

and truthfulness, and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue

What matters are covered: Any matters stated in the direct examination, or connected therewith

Re-Direct Examination [Rule 132, Sec. 7] Who conducts: Proponent When conducted: After cross-examination of the

witness Why conducted: To explain or supplement his

answers given during the cross-examination What matters are covered: Those stated in the

cross-examination, and matters not dealt with, if allowed by the Court

Re-Direct Examination [Rule 132, Sec. 7] Who conducts: Opponent When conducted: Upon the conclusion of the re-

direct examination What matters are covered: Those stated in his re-

direct examination, and also on such other matters as may be allowed by the court in its discretion.

Recalling the Witness [Rule 132, Sec. 9]

Who conducts: Either party When conducted: After both sides have

concluded the examination of a witness, and with leave of court

Why conducted: (1) Particularly identified material points were

not covered in cross-examination (2) Particularly described vital documents were

not presented to the witness (3) Cross-examination was conducted in so inept

a manner as to result in a virtual absence thereof [People v. Rivera (1991)]

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(2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements.

Purpose To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Evidence of the good character of a witness Evidence of the witness’ good character is not admissible until such character has been impeached [Sec. 14, Rule 132] JUDICIAL AFFIDAVIT RULE [AM 12-8-8-SC] Scope [Sec. 1] Applies to all actions and proceedings, and incidents requiring the reception of evidence before the courts, quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene the provisions of this Rule, and investigating officers and bodies authorized by the SC to receive evidence, including the IBP Submission of Judicial Affidavits and Exhibits in Lieu of Direct Testimonies. [Sec. 2] (a) The parties shall file with the court and serve on

the adverse party, personally or by licensed courier service, not later than five days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following: (1) The judicial affidavits of their witnesses, which

shall take the place of such witnesses' direct testimonies; and

(2) The parties' documentary or object evidence, if any, shall be marked and attached to the judicial affidavits

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may, after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party or witness shall bring the original document or object evidence for comparison during the preliminary conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted

This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing rules.

Content [Sec. 3] A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino accompanied by a translation in English or Filipino, and shall contain the following: (a) The name, age, residence or business address,

and occupation of the witness; (b) The name and address of the lawyer who

conducts or supervises the examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under oath, and that he may face criminal liability for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that: (1) Show the circumstances under which the

witness acquired the facts upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the case presents; and

(3) Identify the attached documentary and object evidence and establish their authenticity;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law to administer the same.

The judicial affidavit shall also contain a sworn attestation executed by the lawyer who conducted or supervised the examination of the ·witness, to the effect that: (1) He faithfully recorded or caused to be recorded

the questions he asked and the corresponding answers that the witness gave; and

(2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's answers. [Sec. 4]

A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment. [Sec. 4] How to Offer [Sec. 6] State the purpose of such testimony at the start of the presentation of the witness Objection [Sec. 6] Adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility

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Offer and Objections to Exhibits [Sec. 8] Offer When made: Upon the termination of the testimony

of his last witness How made: Party shall immediately make an oral

offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit.

Objection Made after each piece of exhibit is offered How made: Party shall state the legal ground for his objection, if any, to its admission. The court shall immediately make its ruling respecting that exhibit. Note: It is sufficient that the exhibits are simply cited by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Effect of Non-compliance [Sec. 10] Party who fails to submit is deemed to have waived the submission of the same. The court, however, may allow, only once, late submission, provided the delay is for a valid reason and the defaulting party pays a fine. Court shall not consider affidavit of witness who fails to appear at the scheduled hearing. Counsel who failed to appear shall be deemed to have waived his client’s right to cross-examine the witnesses there present. Judicial affidavits that do not conform with the requirements cannot be admitted as evidence. Issuance of Subpoena [Sec. 5] If the government employee or official, or the requested witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall be understood to be ex parte.

WITH RESPECT TO THE TESTIMONY ADMISSIONS & CONFESSIONS ADMISSIONS OF A PARTY Admission Any statement of fact made by a party against his interest/unfavorable to the conclusion for which he contends/is inconsistent with the facts alleged by him It must: (1) Involve matters of fact, not of law (2) Be categorical and definite (3) Knowingly and voluntarily made

By Act, Declaration or Omission Requisites for Admissibility (1) Made by a party; (2) Outside of court; (3) Relates to a relevant fact; and (4) Is against admitter’s interest. [Sec. 26, Rule 130]

Effect May be given in evidence against the admitter [Sec. 26, Rule 130] Note: Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala (1918)] Rationale No man would make any declaration against himself unless it is true. [Republic v. Bautista (2007)]

As Distinguished from Judicial Admissions

Judicial Extrajudicial

Made in connection with a judicial proceeding in which it is offered [Rule 129, Sec. 4]

Any other admission [Rule 130, Secs. 26 and 32]

By Silence Requisites for Admissibility: When silence is deemed an admission: [People v. Paragsa (84 SCRA 105)] (1) Person heard or understood the statement; (2) That he was at a liberty to make a denial; (3) That the statement was about a matter affecting

his rights or in which he was interested and which naturally calls for a response;

(4) That the facts were within his knowledge; and (5) That the fact admitted from his silence is material

to the issue

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When not applicable: (1) Statements adverse to the party were made in

the course of an official investigation, neither asked to reply nor comment[Sec. 2(b), R.A. 7438]

(2) Party had justifiable reason to remain silent, ex. Acting on advice of counsel [Regalado]

CONFESSIONS A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [Sec. 33, Rule 130] Requisites (1) Express and categorical acknowledgement of

guilt (2) Facts admitted constitutive of a criminal offense (3) Given voluntarily (4) Intelligently made, realizing the importance or

legal significance of the act (5) No violation of Secs. 12 and 17, Art. III of the

Constitution [Regalado] If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [Ladiana v. People (393 SCRA 419)] Any confession, including a re-enactment, without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming (1996)]

General Rule: An extra-judicial confession made by an accused is not a sufficient ground for conviction. [Sec. 3, Rule 133] Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). [Sec. 3, Rule 133] Effect of Extrajudicial Confession of Guilt: General Rule: Not sufficient for conviction [Sec, 3, Rule 133] Exception: Sufficient if corroborated by evidence of corpus delicti [Sec. 3, Rule 133] Corpus Delicti Substance of the crime; the fact that a crime has actually been committed [People v. Gutierrez (258 SCRA 70); People v. De Leon (2009)] As Distinguished from Admissions of a Party

Admission Confession

Merely a statement of Acknowledgment of guilt

Admission Confession

fact or liability

Maybe express or tacit Must be express

Maybe made by 3rd parties, and in certain cases, admissible against a party

Can be made only by the party himself, and admissible against his co-accused in some instances

RES INTER ALIOS ACTA RULE With Respect to Admissions by a “Third Party” General Rule: Inadmissible. The rights of a party cannot be prejudiced by an act, declaration or omission of another. (1st Branch) [Sec. 28, Rule 130] Exceptions: (1) Partner’s or agent’s admission [Sec. 29, Rule 130] (2) Co-Conspirator’s admission [Sec. 30, Rule 130] (3) Admission by privies [Sec. 31, Rule 130] Partner’s or Agent’s Admission The requisites are the following: (a) Act or declaration must be within the scope of the

authority of the partner or agent; (b) Act or declaration must have been made during

the existence of the partnership or agency; and (c) Partnership or agency must be shown by

evidence other than the act or declaration. Co-Conspirator’s Admission The requisites are the following: (a) Act or declaration must relate to the conspiracy; (b) It must have been made during the existence of

the conspiracy; and (c) Conspiracy must be shown by evidence other

than such act/declaration. Existence of the conspiracy may be inferred from the acts of the accused. [People v. Belen (1963)]

Rule 130, Sec. 30 applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano (1959)] As regards extrajudicial admissions after termination of conspiracy, before trial. — General Rule: These admissions are not admissible. Exceptions: (1) Made in the presence of the co-conspirator who

expressly/impliedly agreed (tacit admission) (2) Facts in admission are confirmed in the

independent extrajudicial confessions made by the co-conspirators after apprehension

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(3) As a circumstance to determine credibility of witness

(4) Circumstantial evidence to show the probability of the latter’s participation [Regalado]

Doctrine of Interlocking confessions [Regalado]. — Extrajudicial statements of co-accused may be taken into consideration in judging testimony of the witness, provided: (a) Statements are made by several accused (b) Identical in all material respects (c) There could have been no collusion

They are admissible as: (a) Circumstantial evidence to show probability of

participation (b) Corroborative evidence if it is clear from other

facts and circumstances that other persons had participated in the perpetration of the crime charged and proved

Admission by Privies Privies. — Persons who are partakers or have an interest in any action or thing, or any relation to another [Riano citing Black’s Law Dictionary] The requisites are the following: (a) There must be an act, declaration or an omission

by a predecessor-in-interest; (b) Act, declaration or omission must have occurred

while he was holding (not after) the title to the property; and

(c) Act, declaration or omission must be in relation to the property.

With Respect to Similar Acts

General Rule: Evidence that one did or did not do a certain thing at one time is NOT ADMISSIBLE to prove that he did or did not do the same or similar thing at another time. (2

nd Branch) [Sec. 34, Rule 130]

Exceptions: Said evidence may be received to prove: (1) Specific intent or knowledge; (2) Identity; (3) Plan, system, or scheme; (4) Habit; (5) Custom, usage and the like. HEARSAY RULE MEANING OF HEARSAY (1) Out-of-court statement (2) Offered by the witness in court to prove the truth

of the matters asserted by the statement Any evidence, whether oral or documentary, if its probative value is not based on personal knowledge

of witness but on knowledge of some other person not on witness stand [Regalado 11

th ed.]

Doctrine of Independently Relevant Statements Statements or writings attributed to a person not on the witness stand, which are being offered not to prove the truth of the facts stated therein, but only to prove that such were actually made. They are called as such because the statements are admissible for some relevant reason independent of their truth or falsity [Riano citing Am Jur] These are NOT covered by the hearsay rule [People v. Cusi (1965)] REASON FOR EXCLUSION OF HEARSAY EVIDENCE Lack of opportunity to cross-examine the outside declarant GENERAL RULE ON HEARSAY A witness can testify only as to those facts which he knows of his personal knowledge, or those derived from his own perception. [Rule 130, Sec. 36] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements. [Consunji v. CA (2001)] If a party does not object to hearsay evidence, the same is admissible, as a party can waive his right to cross-examine [People v. Ola (1987)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v. Lakas ng Manggagawang Pilipino (1975)] EXCEPTIONS (1) Dying declaration (2) Declaration against interest (3) Act or declaration against pedigree (4) Family reputation or tradition regarding pedigree (5) Common reputation (6) Part of the res gestae [Sec. 42, Rule 130] (7) Entries in the course of business (8) Entries in official records (9) Commercial lists and the like (10) Learned treaties (11) Testimony or deposition at a former trial (12) Exception to the hearsay rule on examination of

child witness Dying Declaration Also known as “antemortem statement” or “statement in articulo mortis” [Sec. 37, Rule 130]

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Requisites for Admissibility (1) Declaration is one made by a dying person; (2) Declaration was made under the consciousness

of an impending death; (3) Declaration refers to cause and surrounding

circumstances of such death; (4) Declaration is offered in any case wherein his

death is the subject of inquiry; (5) Declarant is competent as a witness had he

survived [Geraldo v People (2008)]; and (6) Declarant should have died. [People v. Macandog

(2001)] Rationale for Admissibility As a general rule, when a person is at the point of death, every motive to falsehood is silenced. [People v Bacunawa (2001)] The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered by the court. [People v. Cerilla (539 SCRA 251)] The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada (2004)] If the declarant’s statement is made under consciousness of impending death, a subsequent belief in recovery before his actual death does not bar admissibility of his statement [Riano citing People v. Black (1979), 96 CA3d 846, 158 CR 449] Objections to the dying declaration: May be premised on any of the requisites for its admissibility embodied in Sec. 37 of Rule 130. Counsel who wants a dying declaration excluded must have to deal with the primary question of whether or not the evidentiary foundations for the introduction where met. [Riano] Dying declarations are admissible in favor of the defendant as well as against him. [US v. Antipolo (37 Phil 726)] Declaration Against Interest Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declaration relates to a fact against the interest

of the declarant; (3) At the time he made said declaration, declarant

was aware that the same was contrary to his interest; and

(4) Declarant had no motive to falsify and believed such declaration to be true [Sec. 38, Rule 130; Ong v. Court of Appeals (1980)]

Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. CA (1996)] Declaration against interest made by the deceased, or by one unable to testify, is admissible even against the declarant’s successors-in-interest or even against third persons [Sec. 38, Rule 130] As Distinguished from Admissions

Admission Declaration against

interest

Admitter is a party himself, or in privity with such party;

Declarant is neither a party nor in privity with a party;

Admissible whether or not admitter is available as a witness

Admissible only when declarant is unavailable as a witness;

Can be made any time, even during trial;

Must have been made ante litem motam;

Admissible only against the admitter; and

Admissible even against 3

rd persons; and

Admissible NOT as an exception to any rule

Admissible as an exception to the hearsay rule

Act or Declaration Against Pedigree Meaning of Pedigree (1) Relationship; (2) Family genealogy; (3) Birth; (4) Marriage; (5) Death; (6) Dates when these facts occurred; (7) Places where these facts occurred; (8) Names of relatives; and (9) Facts of family history intimately connected with

pedigree. [Sec. 39, Rule 130] Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declarant must be related by birth or marriage to

the person whose pedigree is in issue; (3) Declaration was made before the controversy;

and (4) Relationship between the declarant and the

person whose pedigree is in question must be shown by evidence other than such declaration. [Sec. 39, Rule 130]

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Family Reputation or Tradition Regarding Pedigree

Requisites for Admissibility (1) Witness must be a member, by consanguinity or

affinity, of the same family as the subject; and (2) Such reputation or tradition must have existed in

that family ante litem motam. [Sec. 40, Rule 130] Other Admissible Evidence (1) Entries in family bibles or other family books; (2) Charts; (3) Engravings on rings; (4) Family portraits and the like [Sec. 40, Rule 130] This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. [Jison v. CA (1998)] A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo (1967)] Common Reputation Requisites for Admissibility (1) Reputation pertains to:

(a) Facts of public or general interest more than 30 years old,

(b) Marriage, or (c) Moral character

(2) Common reputation existed ante litem motam. [Sec. 41, Rule 130]

Other Admissible Evidence (a) Monuments (b) Inscriptions in public places [Sec. 41, Rule 130]

Pedigree may be established by reputation in the family, but NOT in the community. [Rule 130, Secs. 40-41] Common reputation is hearsay like any other exception to the hearsay rule, but is admissible because of trustworthiness. [Riano citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542] Part of the Res Gestae [Sec. 42, Rule 130] Admissible Statements (1) Spontaneous statements - Statements made by a

person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof (a) Principal act be a startling occurrence (b) Statement made before declarant had

opportunity to contrive [Talidano v. Falcom Maritime (2008)]

(c) Statement refer to occurrence in question and attending circumstances (Sec. 42, Rule 130) or that the statements must concern the occurrence in question and its immediate attending circumstances [Talidano v. Falcom Maritime (2008)]

(2) Verbal acts - Statements, which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to

equivocal act [Talidano v. Falcom Maritime (2008)]

(e) Must be made at the time, not after, the equivocal act was being performed

A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes] A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately after the incident. [People v. Reyes] Entries in the course of business Requisites for Admissibility [Sec. 43, Rule 130] (1) Entries were made at, or near the time of the

transactions referred to; (2) Such entries were made in the ordinary or regular

course of business or duty; (3) Entrant was in a position to know the facts stated

in the entries; (4) Entrant did so in his professional capacity, or in

the performance of duty and in the regular course of business; and

(5) Entrant is now dead or unable to testify. [Northwest Airlines v. Chiong (2008)]

If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner (1916)] “Business records” are exempt from the hearsay rule. [Rule 8, Sec. 1, Rules on Electronic Evidence] Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity [Sapio v. Undaloc Construction (2008)]

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Entries in official records Requisites for Admissibility (1) Entries were made by a public officer in the

performance of his duties or by a person in the performance of a duty specially enjoined by law [Sec. 44, Rule 130];

(2) Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Salmon, Dexter & Co. v. Wijangco (1924)]; and

(3) Entries were duly entered in a regular manner in the official records.

Entries in official records, just like entries in the course of business, are merely prima facie evidence of the facts therein stated. [secs. 43-44, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries. [People v. Cabuang (1993)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (1968)] Commercial lists and the like Requisites for Admissibility [Sec. 45, Rule 130] (1) Such statements are contained in a list; (2) Compilation is published for use by persons

engaged in that occupation; and (3) It is generally used and relied upon by them.

Learned treaties Requisites for Admissibility [Sec. 46, Rule 130] (1) Published treatise, periodical or pamphlet is on a

subject of history, law, science, or art; and (2) Court takes judicial notice of it, or (3) Witness expert in the subject testifies that the

writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject

Testimony or deposition at a former trial Requisites for Admissibility [Sec. 47, Rule 130; Manliclic v. Calaunan (2007)] (1) Witness is dead or unable to testify; (2) His testimony or deposition was given in a former

case or proceeding, judicial or administrative, between the same parties or those representing the same interests;

(3) Former case involved the same subject as that in the present case although on different causes of action;

(4) Issue testified to by the witness in the former trial is the same issue involved in the present case; and

(5) Adverse party had the opportunity to cross-examine the witness in the former case.

Exception to the Hearsay Rule on Examination of Child Witness A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, maybe admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted,

its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse part. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the

statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the

relationship between the declarant child and witness;

(6) Cross-examination could not show the lack of knowledge of the declaration child;

(7) The possibility of faulty recollection of the declarant of child is remote; and

(8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity,

lack of memory, mental illness, or will be exposed to severe psychological injury; or

(2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence.

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OPINION RULE General Rule: The opinion of a witness is not admissible. [Sec. 48, Rule 130] Exceptions: (1) Expert witness (2) Ordinary witness OPINION OF EXPERT WITNESS Expert witness is one who belongs to the profession or calling which the subject matter of the inquiry relates and who possesses special knowledge. [Sec. 49, Rule 130] Opinion is: (1) On a matter requiring

(a) Special knowledge, (b) Skill, (c) Experience, or (d) Training

(2) Which he is shown to possess OPINION OF ORDINARY WITNESS Admissible if [Sec. 50, Rule 130]: (1) Proper basis is given, and (2) Regarding:

(a) Identity of a person about whom he has adequate knowledge;

(b) Handwriting with which he has sufficient familiarity;

(c) Mental sanity of a person with whom he is sufficiently acquainted; and

(d) Impressions of the (i) Emotion, (ii) Behavior, (iii) Condition, or (iv) Appearance of a person.

CHARACTER EVIDENCE General Rule: Character evidence is not admissible. Exceptions: CRIMINAL CASES [RULE 130, SEC.51(A)] (a) Accused – May prove his good moral character,

which is pertinent to the moral trait involved in the offense charged.

(b) Prosecution – May not prove the bad moral character of the accused, except in rebuttal.

(c) Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

CIVIL CASES (a) Moral character is admissible only when pertinent

to the issue of character involved in the case. [Sec.

51(b), Rule 130] (b) Evidence of the witness’ good character is not

admissible until such character has been impeached. [Sec. 14, Rule 130]

RULE ON EXAMINATION OF A CHILD WITNESS A.M. No. 004-07-SC MEANING OF “CHILD WITNESS” (1) Any person who at the time of giving testimony is

less than 18 years; (2) In child abuse cases, a child includes one over 18

years but is found by the court as (a) Unable to fully take care of himself, or (b) Protect himself from abuse, neglect, cruelty,

exploitation, or discrimination (c) Because of a physical or mental disability or

condition. APPLICABILITY OF THE RULE (1) Shall apply in all criminal proceedings and non-

criminal proceedings involving child witnesses. [Sec. 1]

(2) The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]

COMPETENCY OF A CHILD WITNESS Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)] Requisites of Competency of a Child as Witness [People v. Mendoza (1996)]: (1) Capacity of observation; (2) Capacity of recollection; (3) Capacity of communication.

When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/ communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)] EXAMINATION OF A CHILD WITNESS (1) In open court [Sec. 11] (2) Alternative Modes

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(a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a Witness [Sec. 25] (i) If there is a substantial likelihood that the

child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor.

(ii) Trauma must be of a kind which would impair the completeness or truthfulness of the child’s testimony.

(b) Videotaped Deposition of a Child Witness [Sec. 27] (i) If the court finds that the child will not be

able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

(ii) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

LIVE-LINK TV TESTIMONY OF A CHILD WITNESS [SEC. 25] Live-link television testimony, in criminal cases where the child is a victim or a witness The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor. The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. VIDEOTAPED DEPOSITION OF A CHILD WITNESS [SEC. 27] If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. HEARSAY EXCEPTION IN CHILD ABUSE CASES [Sec. 28]

Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. If the child is available, court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. If unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence. SEXUAL ABUSE SHIELD RULE General Rule [Sec. 30(a)]: The following are INADMISSIBLE in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim

engaged in other sexual behavior; (2) Evidence offered to prove the sexual

predisposition of the alleged victim. Exception [Sec. 30(b)]: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury or other physical evidence PROTECTIVE ORDERS Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)] The court may issue additional orders to protect the child’s privacy. [Sec. 31(c)] Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the child, shall be liable for contempt of court. [Sec. 31(d)] A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. [Sec. 31(e)]

Offer and Objection OFFER OF EVIDENCE CONCEPT [Sec. 34, Rule 132] (1) Court shall consider no evidence which has not

been formally offered (2) Purpose for which the evidence is offered must be

specified

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AS DISTINGUISHED FROM IDENTIFICATION OF

DOCUMENTARY EVIDENCE [Interpacific Transit v. Aviles (1990)]

Identification of Documentary Evidence

Formal Offer of Exhibit

Done in the course of the trial and accompanied by the marking of the evidence

Done only when the party rests his/her case

RATIONALE WHY FORMER OFFER IS NEEDED

There is a need for a formal offer of evidence because without such offer, the court cannot determine whether the evidence is admissible or not. [Riano] No evidentiary value can be given to pieces of evidence not formally offered. [Dizon v, CTA (2008)] However, where the absence of an offer of testimonial evidence was not objected to as when the witness was cross-examined by the adverse party despite failure to make an offer of the testimony, the court must consider the testimony The provisions of the ROC on the inclusion on appeal of documentary evidence or exhibits in the records, cannot be stretched as to include such pleadings or documents not offered at the hearing of the case [Candido v. CA, 1996)] WHEN OFFER IS NOT REQUIRED

(a) In a summary proceeding because it is a proceeding where there is no full-blown trial;

(b) Documents judicially admitted or taken judicial notice of;

(c) Documents, affidavits, and depositions used in rendering a summary judgment;

(d) Documents or affidavits used in deciding quasi-judicial or administrative cases [Bantolino v. Coca Cola Bottlers, 2003 citing Rabago v. NLRC, 1991]

(e) Lost objects previously marked, identified, described in the record, and testified to by witness who had been subjects of cross-examination in respect to said objects [Tabuena v. CA, 1991 citing People v. Napat-a, 1989] [Riano]

WHEN TO MAKE AN OFFER [Sec. 35, Rule 132]

Kind of Evidence When to Offer

Testimonial At the time the witness is called to testify

Documentary and Object After the presentation of a party’s testimonial

Kind of Evidence When to Offer

evidence

Offer shall be done orally unless allowed by the court to be done in writing. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA (1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate (1981)] OBJECTION CONCEPT

What to object to When to object

Testimonial evidence Immediately after offer is made

Question propounded in the course of oral examination

As soon as the grounds become reasonably apparent

Offer done in writing Within 3 days after notice of the offer, unless a different period is allowed by the court

The grounds for objection must be specified in any case. PURPOSES OF OBJECTION [RIANO] (a) Made to keep out inadmissible evidence that

would cause harm to client’s cause (rules of evidence are not self-operating)

(b) To protect the record (for future appeal) (c) To protect witness from being embarrassed or

harassed (d) To expose adversary’s unfair tactics (e) To give trial court an opportunity to correct its

own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and

(f) To avoid a waiver of inadmissibility

Objections must be specific enough to adequately inform the court the rule of evidence or of substantive law that authorizes the exclusion of evidence [Riano]

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General Objections — Do not clearly indicate to the judge the ground upon which the objections are predicated. In cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient and where the portion of the evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed. [Riano] FORMAL VS. SUBSTANTIVE OBJECTIONS [RIANO] Formal—One directed against the alleged defect in the formulation of the question Substantive—Objections made and directed against the very nature of the evidence REPETITION OF AN OBJECTION [Sec. 37, Rule 132] When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall be sufficient for the adverse party to record his continuing objection to such class of questions. A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship] RULING [Sec. 38, Rule 132] (a) Should be given immediately after the objection

is made, unless the court desires to take a reasonable time to inform itself on the question presented.

(b) Reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground/s relied upon.

(c) Reservation of a ruling by the court on an objection to the admissibility of evidence, without subsequently excluding the same, amounts to a denial of an objection. [People v. Tavera]

STRIKING OUT OF AN ANSWER MOTION TO STRIKE [Sec. 39, Rule 132] (1) Court may sustain an objection and order the

answer given to be stricken off the record if: (a) Witness answers the question before the

adverse party had the opportunity to object, and

(b) Such objection is found to be meritorious. (2) The court may also, upon motion, order the

striking out of answers, which are

(a) Incompetent, (b) Irrelevant or (c) Otherwise improper.

TENDER OF EXCLUDED EVIDENCE [Rule 132, Sec. 40] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. WCC (1977)] HOW TO TENDER EVIDENCE

Kind of evidence How to tender the evidence

Documentary Offeror may have the same attached or made part of the record

Testimonial Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony

RATIONALE (a) To allow the court to know the nature of the

testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and

(b) Even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal [Riano]

2 METHODS OF MAKING THE TENDER [Riano] (a) Where the counsel tells the court what the

proposed testimony would be; (b) By using the question and answer form ERRONEOUS WAY OF MAKING TENDER To make a mere general “offer of proof” without producing the witness or stating the evidence where by the fact in issue is to be proved. [Riano]

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Preliminary Matters SPECIAL PROCEEDINGS A remedy by which a party seeks to establish a status, right or a particular fact [Rule 1, Sec. 3(c)].

APPLICABLE RULES If special rules are provided, they shall apply. But in the absence of such special provisions, the rules applicable in special proceedings shall be applied [Rule 72, Sec. 2]. There are special proceedings which are not part of the ROC (e.g. Writs of amparo and habeas data). The distinction between final and interlocutory orders in civil actions for purposes of determining the issue of applicability is not strictly applicable to orders in special proceedings. Rule 109 specifies the orders from which appeals may be taken [Regalado]. Rule 33 regarding judgment on demurrer to evidence is applicable to special proceedings [Matute v. CA (1969)].

SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES Rules of special proceedings are provided for in the following cases: (1) Settlement of estate of deceased persons (2) Escheat (3) Guardianship and custody of children (4) Trustees (5) Adoption (6) Rescission and revocation of adoption (7) Hospitalization of insane persons (8) Habeas corpus (9) Change of name (10) Voluntary dissolution of corporations

(11) Judicial approval of voluntary recognition of minor natural children

(12) Constitution of family home (13) Declaration of absence and death (14) Cancellation of correction of entries in the civil

registry. [Sec. 1, Rule 72] In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. [Sec. 2, Rule 72]

DIFFERENCE BETWEEN ACTION AND SPECIAL

PROCEEDING

Action Special Proceeding

To protect/enforce a right or prevent/ redress a wrong

To establish a right/status/fact

Involves 2 or more parties May involve only 1 party

Governed by ordinary rules supplemented by special rules

Governed by special rules, supplemented by ordinary rules

Initiated by pleading, and parties respond through an answer

Initiated by petition, parties respond through an opposition

ACTION - formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law. SPECIAL PROCEEDING - application or proceeding to establish the status or right of a party, or particular fact. No formal pleadings are required, unless the statute expressly so provides.

VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS Settlement of the Estate of a Deceased Person

Residence of the decedent If non-resident, place where he had an estate

MTC if gross value of the estate does not exceed P300,000, or does not exceed P400,000 in Metro Manila otherwise, RTC

Escheat Person dies intestate leaving no heir – Residence of the decedent or if non-resident, place where he had estate

RTC

Reversion – where land lies in whole or in part RTC Unclaimed Balances Act – where deposits are located RTC

Appointment of Guardians Where minor resides Family Court Where incompetent resides RTC

Appointment of Trustees Where will was allowed or Where the property or portion thereof affected by the trust is situated

RTC

Adoption Domestic – where adopter resides Family Court

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Inter-country Adoption – ICAB or, where adoptee resides if filed with the Family Court

ICAB or Family Court

Rescission of Adoption Where adoptee resides Family Court Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the

province or city in case there is no RTC judge Sandiganbayan, only in aid of its appellate jurisdiction

For the custody of minors, where petitioner resides or where minor may be found

Family Court, CA, SC

Habeas Data 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

RTC generally If concerning public data files or government offices, SC, CA or Sandigabayan

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

RTC, Sandiganbayan, CA, SC or any justice thereof

Change of Name

Judicial - where petitioner resides RTC Administrative: (a) Local civil registry where the record sought to be

changed is kept (b) Local civil registry of the place of residence of the

interested party (only if petitioner migrated to another place in the Philippines and it is impractical to file where records sought to be changed are kept)

(c) Philippine consulates only for non-resident citizen

Local Civil Registry/ Philippine consulate

Appointment of Representative of Absentee/ Declaration of Absence

Where Absentee resides before his disappearance RTC

Cancellation / Correction of Entries in Civil Registries

Judicial - Where corresponding civil registry is located RTC Administrative - Same as change of name Local Civil Registry/

Philippine consulate Petition for declaration of nullity, annulment, legal separation

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

Family Court

MODES OF SETTLEMENT OF ESTATE [HERRERA] (1) Extrajudicial Settlement of Estate [Rule 73,

Section 1] (2) Summary Settlement of Estate of Small Value

[Rule 74, Section 2] (3) Partition [Rule 69] (4) Probate of Will [Rule 75-79] (5) Petition for Letters of Administration [Rule 79]

Settlement of Estate of Deceased Persons, Venue and Process WHICH COURT HAS JURISDICTION

JURISDICTION OF RTCS When the value of the estate exceeds P300,000 or P400,000 in Metro Manila. [SC Circular 21-99] JURISDICTION OF MTCS When the value of the estate does not exceed P300,000 or P400,000 in Metro Manila. [SC Circular 21-99]

inhabitant of the Philippines at time of death (citizen/alien)

Inhabitant of foreign country

RTC of the province in which he resides

RTC of any province in which he had estate

Court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts and

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cannot be divested by subsequent act of interested parties. [Sandoval v. Santiago (1949)]

TESTATE PROCEEDINGS TAKE PRECEDENCE OVER

INTESTATE PROCEEDINGS OF THE SAME ESTATE. Thus, if in the course of intestate proceedings pending before a court of first instance, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice; that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. [Uriarte vs. CFI (1970)] General Rule: Jurisdiction assumed by a court shall not be contested in a suit or proceeding, Exceptions: (1) In an appeal from that court, in the original case,

OR (2) When the want of jurisdiction appears on the

record. VENUE IN JUDICIAL SETTLEMENT OF ESTATE RULE 73 RELATES TO VENUE AND NOT TO JURISDICTION The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is only constitutive of venue.

MEANING OF TERM “RESIDES” Resides - in the section is viewed in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence of place of abode and not to his permanent residence or domicile.

EXTENT OF JURISDICTION OF PROBATE COURT PROBATE COURT IS OF LIMITED JURISDICTION General rule: Probate court cannot decide questions as to ownership of property alleged to be part of the estate of the deceased but claimed by some other person to be his property. Exceptions: (1) In a provisional manner to determine whether

said property should be included or excluded in the inventory, without prejudice to final determination of title in a separate action

(2) With consent of all the parties, without prejudice to third persons [Trinidad v. CA (1991)]

(3) If the question is one of collation or advancement

POWERS AND DUTIES OF PROBATE COURT It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by

intervening in the administration thereof in order to remedy or repair any injury that may be done thereto. [Dariano vs. Fernandez Fidalgo (1909)] There seems, however, to be a general tendency, in the absence of express and specific restrictions to the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for which they were invested with jurisdiction and to perfect the same. [In Re: Baldomero Cosme (1937)]

Summary Settlement of Estates General Rule: Judicial Settlement Exception: (1) Extrajudicial Settlement of Estate (2) Summary Settlement of Estate of Small Value

Court intervention not required

Summary judicial adjudication needed

No will (intestate) Will may or may not exist (intestate/testate)

No debts Debts may or may not exist

Heirs are all of age, or minors are represented by judicial or legal reps

Gross value of estate may not exceed P10,000

Bond filed at Register of deed in the amount equal to the value of the personal property

Bond filed at and to be determined by the court

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED REQUISITES (1) Decedent died intestate (2) No debts OR the heirs have already paid such at

the time of partition (3) Heirs are all of age or the minors are represented

by their judicial or legal representatives (4) Settlement made in public instrument filed with

the register of deeds (5) Fact of the extrajudicial settlement shall be

published in a newspaper of general circulation 3 times a week, once each week. [Sec. 1, Rule 74]

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PROCEDURE Death of the decedent

Division of estate in public instrument or affidavit of

adjudication

Filing of the public instrument, or affidavit of

adjudication if there is only one heir, with the proper Registry of Deeds

Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the

court may direct

Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication

of notice

Filing of bond equivalent to the value of personal

property If there is no disagreement between the heirs

The parties may divide the estate among themselves by means of a public instrument filed in the office of register of deeds.

If there is disagreement

They may divide the estate in an ordinary action of partition.

If only one heir

He may adjudicate to himself the entire estate by means of an affidavit filed in the Registrar of Deeds.

BOND REQUIREMENT Required only if personal property is involved because real estate is subject to lien File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed of deprived heirs and creditors. [Sec. 1, Rule 74] NOT BINDING ON ANY PERSON WHO: (1) Has not participated in the extrajudicial

settlement; or (2) Had no notice thereof. [Sec. 1, Rule 74] VALIDITY OF ORAL PARTITION Such is VALID, because there is no law that requires partition among heirs to be in writing to be valid. [Pada Kilario v. CA (2000)] Requirement under Rule 74.1 is merely for the protection of creditors and the heirs themselves against tardy claims. Where there are no creditors, the requirements no longer apply.

VALIDITY OF COMPROMISE AGREEMENT Such is VALID, binding upon the parties as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement. [Borja v. Vda. De Borja (1972)] NO PRECLUSION FROM INSTITUTING ADMINISTRATION

PROCEEDINGS Sec. 1, Rule 74 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action for partition. While Sec. 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action for partition, the said provision does not compel them to do as if theyhave good reasons to take a different course of action. [Pereira v CA (1989)]

TWO-YEAR PRESCRIPTIVE PERIOD Claim by creditors and deprived heirs must be filed within 2 years from the time of distribution/ publication. PRESUMPTION OF NO DEBTS It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. [Sec. 4, Rule 74]

AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

HEIR Affidavit of Self-adjudication by sole heir If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of register of deeds. [Sec. 1, Rule 74] BOND REQUIREMENT File a bond equal to the value of the personal property involved as certified to under oath by the parties, conditioned upon the payment of any just claim that may be filed [Sec. 1, Rule 74]

SUMMARY SETTLEMENT OF ESTATES OF SMALL

VALUE WHEN ALLOWED (1) Gross value of estate does not exceed P10,000 (2) Fact is made to appear to the RTC (3) Through petition of an interested person (4) Upon hearing

(a) Held not less than 1 month nor more than 3 months

(b) Counted from the date of the last publication of a notice

(5) Notice (a) Which shall be published once a week for 3

consecutive weeks

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(b) In a newspaper of general circulation in the province

(c) It is not required that publication be for a complete 21 days. What is required is that it be published for once a week for 3 consecutive weeks.

(6) Notice to interested persons as the court may direct. [Sec. 2, Rule 74]

Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an executor/administrator and without delay, (1) to grant, if proper, allowance of the will, if any

there be (2) to determine who are persons legally entitled to

participate in the estate (3) to apportion and divide among them after the

payment of such debts of the estate (4) persons in own right if of lawful age, or their

guardians, will be entitled to receive and enter into possession of the portions of the estate so awarded to them respectively. [Sec. 2, Rule 74]

PROCEDURE Death of the decedent

Application for summary settlement with an

allegation that the gross value of the estate does not exceed P10K

Publication of notice of the fact of summary

settlement once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the

court may direct

Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication

of notice

Court to proceed summarily, without appointing an executor/administrator (executor/administrator),

and to make orders as may be necessary

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate

Notes: There is no requirement regarding the lack of debts (unlike extrajudicial partition) in summary settlement of estates of small value since the court

will make provisions for such in its resolution of the proceedings. REMEDIES OF AGGRIEVED PARTIES AFTER

EXTRA-JUDICIAL SETTLEMENT OF ESTATE (1) CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO

YEARS Bond and real estate remain charged Rule: bond and real estate shall remain charged with a liability to creditor, heirs or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made.

When applicable: There is an heir or other person who (a) has been unduly deprived of his lawful

participation in the estate:

He shall have a right to compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation.

(b) has been unduly deprived of his lawful

participation payable in money: The court having jurisdiction of the estate may, by order for that purpose, after hearing, (i) settle the amount of such debts or lawful

participation, and (ii) order how much and in what manner each

distributee shall contribute in the payment thereof, and

(iii) may issue execution against the bond or against the real estate belonging to the deceased, or both.

When not applicable: (a) To persons who have participated or taken

part or had notice of the extrajudicial partition (b) When the provisions of Sec. 1 of Rule 74 have

been strictly complied with (all persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through guardians)

This is only a Bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto

Period for Claim of Minor or Incapacitated Person If on the date of the expiration of the period of 2 years, the person authorized to file a claim is: (1) a minor or mentally incapacitated, or is in

prison or (2) outside the Philippines,

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He may present his claim within 1 year after such disability is removed. [Sec. 5, Rule 74] After the two years has passed, claimant must file an ordinary action against the distributees within the statute of limitations.

(2) ACTION TO ANNUL A DEED OF EXTRAJUDICIAL

PARTITION Prescriptive period: within 4 years from the discovery of the fraud (deemed to have taken place when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents). [Gerona v. De Guzman, 11 SCRA 154 (1964)] – Note, this was decided before the New Civil Code took effect. HOWEVER in Amerol v. Bagumbaran (1987), the Court applied Article 1144 (NCC) which stated that actions upon an obligation created by law must be brought within 10 years from the time the right of action accrues. Since implied or constructive trusts are obligations created by law, then the prescriptive period to enforce the same prescribes in 10 years. Thus, an action for reconveyance based on an implied or constructive trust must perforce prescribe in 10 years and not otherwise. Optional: See also separate opinion of Justice Padilla re Amerol v. Bagumbayan, which distinguishes between dolo causante (4 years) and dolo incidente (10 years).

(3) NEW ACTION TO ANNUL SETTLEMENT WITHIN

REGLEMENTARY PERIOD OF TWO YEAR (4) REOPENING BY INTERVENTION BEFORE RENDITION OF

JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO

YEARS (5) PETITION FOR RELIEF ON THE GROUND OF FRAUD,

ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE within 60 days after the petitioner learns of the judgment, final order or other proceedings to be set aside and not more than 6 months after such judgment or order is entered or taken

(6) RESCISSION IN CASE OF PRETERITION

Production and Probate of Will NATURE OF PROBATE PROCEEDING (1) In Rem

(2) Mandatory (3) Imbued with public policy, thus imprescriptible

and the doctrine of estoppel does not apply General Rule: A probate proceeding only looks at extrinsic validity. Extrinsic validity - due execution of the will (whether or not the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law) Exception: Principle of Practical Consideration The probate court may pass upon the intrinsic validity of the will because there is apparent defect in its face – this is also known as the principle of practical consideration [Nepomuceno v CA (1985)]. (Ex. When on the face of the will the petitioner appears to be preterited) But the remedy of certiorari is available, where the grounds for dismissal are indubitable (e.g. grave abuse of discretion of the judge when there is clearly preterition and the said judge still continues the probate proceedings) EFFECT OF PROBATE OF WILL Decree of probate is conclusive as to its due execution, subject to the right of appeal. (Thus, no suit for forgery of a will, which has been duly probated and such order becoming final)

[Rodelas v Aranza (1982)]: General Rule: If a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. Exception: A photostatic copy or Xerox of the holographic will may be allowed because comparison can be made with the standard writings of the testator.

WHO MAY PETITION FOR PROBATE; PERSONS

ENTITLED TO NOTICE PETITIONER FOR THE ALLOWANCE OF THE WILL (1) Executor (2) Devisee (3) Legatee (4) Other person interested in the estate (5) Testator himself, during his lifetime [Sec. 1, Rule

76]

MEANING OF INTEREST IN ESTATE An interested party is one who would be benefited by the estate such as an heir or one who has claim

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against the estate like a creditor. [Sumilang v. Ramagosa (1967)]

JURISDICTION, HOW ACQUIRED (1) Attaching a mere copy of will to the petition or (2) Delivery of will, even if no petition is filed or (3) Filing of the original petition and compliance with

Sec 3-4 Rule 76. (a) Publication for 3 weeks of the order (b) Notice to all interested persons (If by mail, 20

days before hearing; if through personal service, 10 days before hearing)

If testator files for probate of his will, no publication is required and notice is only to the compulsory heirs. [Sec. 3, Rule 76]

Allowance or Disallowance of Will CONTENTS OF PETITION FOR ALLOWANCE OF

WILL (1) Jurisdictional facts

(a) Death of the decedent (b) Residence at the time of death in the province

where the probate court is sitting (c) Or if he is an inhabitant of a foreign country,

his leaving his estate in such province (2) Names, ages, and residences of the heirs,

legatees, and devisees of the testator or decedent (3) Probable value and character of the property of

the estate (4) Name of the person for whom letters are prayed (5) If the will has not been delivered to the court, the

name of the person having custody of it. [Sec. 2, Rule 76]

DEFECT IN PETITION Defect in petition will not void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. [Sec. 2, Rule 76]

GROUNDS FOR DISALLOWING A WILL (1) If not executed and attested as required by law (2) If the testator was insane, or otherwise mentally

incapable to make a will, at the time of its execution

(3) If executed under duress, or the influence of fear, or threats

(4) If procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit

(5) If the signature of the testator was procured by fraud or trick, and he did not intend that the

instrument should be his will at the time of fixing his signature thereto [Sec. 9, Rule 76]

Note: The grounds for disallowance of will are

exclusive. REPROBATE; REQUISITES BEFORE WILL

PROVED OUTSIDE ALLOWED IN THE

PHILIPPINES; EFFECTS OF PROBATE REPROBATE Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines (now RTC). [Sec. 1, Rule 77] REQUISITES FOR ALLOWANCE (1) Copy of the will (2) Order or decree of the allowance in foreign

country (3) Filed with a petition for allowance in the

Philippines by executor or other person interested (4) Court having jurisdiction shall fix a time and

place for the hearing (5) Cause notice thereof to be given as in case of an

original will presented for allowance. [Sec. 2, Rule 77]

EFFECT The will shall have the same effect as if originally proved and allowed in such court.

Letters Testamentary and of Administration WHEN AND TO WHOM LETTERS OF

ADMINISTRATION GRANTED Letters Testamentary – issued to the executor named in the will, if s/he is competent, accepts the trust, and gives the required bond. [Sec. 4, Rule 78] Letters of Administration – issued to an administrator when (1) No executor named or (2) Executor or executors are incompetent, refuse the

trust, or fail to give bond or (3) Or person dies intestate. [1

st par., Sec. 6, Rule 78]

WHO ARE INCOMPETENT TO SERVE (1) Minor (2) Non-resident (3) One who, in the opinion of the court, is unfit to

exercise the duties of the trust by reason of drunkenness, improvidence, want of

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understanding or integrity or conviction of an offense involving moral turpitude. [Sec. 1, Rule 78]

An executor of an executor cannot administer the estate of the first testator. [Sec. 2, Rule 78] ORDER OF PREFERENCE ORDER OF PREFERENCE IN THE GRANT OF

ADMINISTRATION (1) Surviving spouse or next of kin, or both, or to such

person as the surviving spouse, or next of kin requests to have appointed, if competent and willing to serve.

(2) If those in (a) be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve.

(3) If there is no (b), it may be granted to such other person as the court may select. [Sec. 6, Rule 78]

Next of kin are those entitled by law to receive the decedent properties. [Gonzalez v. Aguinaldo, et al., (1990)]

REASON FOR ORDER OF PREFERENCE Those who would reap the benefit of a wise, speedy and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. [Gonzalez v. Aguinaldo, et al., (1990)] Mere failure to apply for letters of administration does not remove preference. [1 ALR 1247] General Rule: The court cannot set aside order of preference Exceptions: If the person enjoying such preferential rights is (1) Unsuitable (2) Incompetent (3) Unwilling (4) Neglect to apply for letters 30 days after the

death of the decedent Court may reject order of preference when circumstances warrant. [Villamor v. Court of Appeals, (1988)] The order of preference is not absolute for it depends on the attendant facts and circumstances of each case. The selection of an administrator lies in the sound discretion of the trial court. [In Re Suntay, (2007)]

30-DAY PERIOD MAY BE WAIVED Just as the order of preference is not absolute and may be disregarded for valid cause, so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative, “may be granted to one or more of the principal creditors.” [Herrera] Co-administrators may be appointed. [Matute v. Court of Appeals (1969)] OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF

PETITION FOR ADMINISTRATION Who may oppose: Any person interested in will [Sec. 1, Rule 79] MEANING OF INTERESTED PERSON One who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor; thus interest must be immaterial and direct, not merely indirect or contingent. [Saguinsin v. Lindayag, 6 SCRA 874] GROUNDS (1) Incompetency of the person/s named in the will

as executor/s, or (2) Contestant’s right to the administration [Sec. 4,

Rule 79] Form required: State in writing the grounds why letter should not issue; the court shall then hear and pass upon sufficiency of such grounds. [Sec. 1, Rule 79] CONTENTS (1) Jurisdictional facts (2) Name, age and residence of heirs and the name

and age of creditors (3) Probable value of the estate (4) Name of person to whom letter is prayed [Sec. 2,

Rule 79] JURISDICTIONAL FACTS (1) Death of the testator (2) His/her residence at the time of death in the

province where the probate court is sitting or, (3) If an inhabitant of a foreign country, his/her

having left his estate in such province [Diez v. Serra, (1927)]

PUBLICATION AND NOTICE Publication of notice for 3 weeks successively and notice to heirs, creditors and interested persons are jurisdictional. [Sec. 3, Rule 79 and Secs. 3 & 4, Rule 76]

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SIMULTANEOUS FILING OF OPPOSITION AND PETITION: A petition may, at the same time, be filed for letters of administration to himself, or to any competent person or person named in the opposition. [Sec. 4, Rule 79] Lack of interest in the proceedings is equal to lack of legal capacity to institute proceedings. [Herrera] Appointment of Regular Administrator is final and thus, appealable.

POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS; RESTRICTIONS ON THE

POWERS GENERAL POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS (1) Have Access to Partnership Books and Property

at All Times (a) Have access to, and may examine and take

copies of, books and papers relating to the partnership business,

(b) Examine and make invoices of the property belonging to such partnership

(c) The surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. [Sec. 1, Rule 84]

Failure to freely permit the exercise of the may subject any partner for contempt.

(2) Keep Buildings in Tenantable Repair

(a) Houses and other structures and fences belonging to the estate, and

(b) Deliver the same in such repair to the heirs or devisees when directed so to do by the court. [Sec. 2, Rule 84]

(3) Right to Possession and Management of the Real

and Personal Properties (a) So long as it is necessary for the payment of

the debts and the expenses of administration (b) Administrator cannot exercise the right of

legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administrator. [Sec. 3, Rule 84]

Note: When the estate of a deceased is already subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the Court. [Estate of Olave v. Reyes (1983)]

RESTRICTIONS ON POWERS OF EXECUTORS AND

ADMINISTRATORS (1) Executor or Administrator Chargeable with all

Estate and Income

Chargeable in his account with the whole of the estate which has come into his possession, at the value of the appraisement contained in the inventory: (1) With all the interest, (2) Profit (3) Income of such estate and (4) With the proceeds of as much of the estate as

is sold by him, at the price at which it was sold. [Sec. 1, Rule 85]

(2) Prohibited from Profiting by Increase or Losing by

Decrease in Value (a) No executor/administrator shall profit by the

increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate

(b) Account for the excess (when sold for more) (c) If sold for less, not responsible for loss, if

justly made (d) If settled claim for less - He is entitled to

charge in his account only the amount he actually paid on the settlement [Sec. 2, Rule 85]

(e) Not accountable for debts due the deceased which remain uncollected without his fault [Sec. 3, Rule 85]

(3) Accountable for Income from Realty Used by Him

If the executor/administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final. [Sec. 4, Rule 85]

(4) Accountable if He Neglects or Delays to Raise or

Pay Money (a) Neglects or unreasonably delays to raise

money, by collecting the debts or selling the real or personal estate of the deceased, or

(b) Neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss.

(c) Damages sustained may be charge and allowed against executor or administrator in his/her account; liable on his/her bond. [Sec. 5, Rule 95]

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(5) Only Necessary Expenses shall be allowed (a) The amount paid by an

executor/administrator for costs awarded against him shall be allowed in his administration account [Sec. 6, Rule 85]

(b) Unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

(c) When the executor is an attorney, cannot charge against estate any professional fees for legal services rendered. [Sec. 7, Rule 85]

Necessary expenses Such expenses as are entailed for the preservation and productivity of the estate and for its management for purpose of liquidation, payment of debts, and distribution of the residue among persons entitled thereto. [Hermanos v. Abada (1919)] Attorney’s fees as expenses of administration Administrator may not recover attorney’s fees from estate.

(6) Executor or Administrator to Make Inventory and

Render Account

Accounting mandatory Within 1 year from the time of receiving letters testamentary or of administration unless the court otherwise directs [Sec. 8, Rule 85] The fact that the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator. [Joson v. Joson (1961)] Examination on Oath by Court As to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof [Sec. 9, Rule 85] The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor/administrator of being examined on oath on any matter relating to an administration account. [Sec. 9, Rule 85]

APPOINTMENT OF SPECIAL ADMINISTRATOR WHEN APPOINTED (1) When there is delay in granting letters

testamentary or administration, or (2) By any cause, including an appeal from allowance

or disallowance of a will. [Sec. 1, Rule 80]

PROCEDURE FOR APPOINTMENT There must first be notice and publication. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator. [De Guzman v. Angeles (1988)] Appointment of special administrator lies entirely in the sound discretion of the court. [De Gala v. Gonzales, 53 Phil. 104 (1929)] POWERS AND DUTIES OF SPECIAL ADMINISTRATOR (1) Take possession and charge of the goods,

chattels, rights, credits, and estate of the deceased, and

(2) Preserve the same for the executor/administrator afterwards appointed, and

(3) For that purpose may commence and maintain suits as administrator.

(4) May sell only such perishable and other property as the court orders sold.

(5) Not liable - to pay any debts of the deceased unless so ordered by the court. [Sec. 2, Rule 80]

WHEN SPECIAL ADMINISTRATOR CEASES DUTIES When letters testamentary/administration are granted on the estate of the deceased (1) He shall deliver to the executor/administrator the

goods, chattels, money, and estate of the deceased in his hands.

(2) The executor/administrator may prosecute to final judgment suits commenced by such SA. [Sec. 3, Rule 80]

Appointment of Special Administrator is interlocutory and is not appealable. [Garcia v. Flores, 101 Phil. 781 (1957)] GROUNDS FOR REMOVAL OF ADMINISTRATOR REVOCATION OF ADMINISTRATOR When the decedent’s will is allowed and proved after a letters of administration has been issued, the administration is deemed revoked. REMOVAL OF EXECUTOR OR ADMINISTRATOR Grounds (1) Neglects to:

(a) Render his account (b) Settle the estate according to law (c) Perform an order or judgment of the court, or

a duty expressly provided by these rules (2) Absconds (3) Becomes insane or (4) Becomes incapable or unsuitable to discharge

the trust. [Sec. 2, Rule 82]

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EFFECT OF REMOVAL, DEATH, OR RESIGNATION (1) The remaining executor/administrator may

administer the trust alone, unless the court grants letters to someone to act with him.

(2) If there is no remaining executor/administrator, administration may be to any suitable person. [Sec. 2, Rule 82]

Acts of the executor/administrator before removal/resignation are valid. [Sec. 3, Rule 82]

Claims against the Estate

ESTATE BURDENED WITH LIEN OF CREDITORS Upon the death of the person, all his property is burdened with all his debts, his debts creating an equitable lien thereon for the benefit of the creditors. And such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. [Suiliong & Co. v. Chio Tayaan, 12 Phil. 13]

PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE (1) To protect the estate of the deceased. (2) Executor/administrator will be able to examine

each claim, determine whether it is a proper one which should be allowed.

(3) To appraise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration. [Estate of Olave v. Reyes (1983)]

TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS General Rule: Claims must be filed within the time specified by the court in its notice which shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice. [Sec. 2, Rule 86] Exception: Belated Claims The Court has the discretion, for cause and upon such terms as are equitable, to allow contingent claims presented beyond the period previously fixed provided they are filed within 1 month from the expiration of such period but in no case beyond the date of entry of the order of distribution. [Danan v. Buencaminao (1981); Sec. 2, Rule 86]

Publication for 3 consecutive weeks and posting in 4 public places in the province and in 2 public places in the municipality where the decedent last resided. [Sec. 4, Rule 86] STATUTE OF NON-CLAIMS CLAIMS COVERED (EXCLUSIVE) (1) Claims for money against the decedent arising

from contract (a) Express or implied (b) Due or not (c) Contingent or not

(2) Claims for funeral expenses (3) Expenses for the last sickness (4) Judgment for money against the decedent. [Sec.

5, Rule 86] The period, once fixed by the courts, is mandatory.

General Rule: Failure to make the claim within the time fixed by the Courts will result in barring any recovery. [Sec. 5, Rule 86]

Purpose: to settle the estate with dispatch, so that the residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims. Exception: (1) When set forth as counterclaims in any action

that the executor/administrator may bring against the claimants

(2) If the decedent is a creditor and the executor or administrator commences an action or continues the action - the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court. [Sec. 5, Rule 86]

CONTINGENT CLAIM WHEN ALLOWED (1) When it becomes absolute; (2) Presented to the court or executor/administrator

within 2 years from the time limited for other creditors to present their claims; and

(3) Not disputed by executor/administrator

IF DISPUTED It may be proved and allowed or disallowed by the court as the facts may warrant [Sec. 5, Rule 88] Mutual claims may be set off against each other in such action. Effect if a debtor obtains a favorable judgment against the estate: the amount shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings

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The presentation of money claim may be waived. [Ignacio v. Pampanga Bus co., Inc., (1967)] If obligation solidary - file claim against decedent as if he is the only debtor If obligation joint - claim confined to the portion belonging to the decedent [Sec. 6, Rule 86] CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE PROCEDURE TO FOLLOW IF THE EXECUTOR OR

ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE

REPRESENTS [Sec. 8, Rule 86]

PAYMENT OF DEBTS DEBTS PAID IN FULL IF ESTATE SUFFICIENT (1) After all money claims heard and ascertained;

and (2) It appears that there are sufficient assets to pay

the debts Executor/administrator shall pay the same within the time limited for that purpose. [Sec. 1, Rule 88]

The probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administrator. The heirs of the estate may not demand the closing of an intestate proceeding at anytime where there is a pending case against the administrator of the estate. The court can rightfully hold in abeyance until the civil case is settled. [Dinglasan v. Chia, (1956)] PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION

MADE BY WILL (1) Testator provided for payment of debt

Expenses of administration, or family expenses shall be paid according to such provisions

(2) If not sufficient The part of the estate not disposed of by will shall be appropriated for the purpose [Sec. 2,Rule 88]

PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN

REALTY General Rule: Personal estate not disposed of by will shall be FIRST chargeable [Sec. 3, Rule 88] Exception (1) Not sufficient for the purpose; or (2) Its sale will redound to the detriment of the

participants for the estate

In which case— (a) The whole of the real estate not dispose of by will,

or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor/administrator,

(b) Court approval must be obtained first (c) Any deficiency shall be met by contributions in

accordance with the provisions of S6 of this rule. [Sec. 3, Rule 88]

ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS If court is satisfied that such claim is valid: (1) It may order the executor/administrator to retain

in his hands sufficient estate (2) For the purpose of paying the contingent claim

when such becomes absolute.

If estate insolvent - Retain a portion equal to the dividend of the other creditors. [Sec. 4, Rule 88] PAYMENT OF CONTINGENT CLAIM If allowed - Creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor/administrator is sufficient. Claim not presented after becoming absolute and allowed within 2 year period

The assets retained in the hands of the executor/administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled But the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received. [Sec. 5, Rule 88] COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES,

LEGATES, OR HEIRS HAVE BEEN IN POSSESSION (1) Possession before debts and expenses paid

Court shall

Executor/Administrator shall give notice thereof, in writing, to the court

The court shall appoint a special administrator who shall have the same powers and liabilities as the general executor/administrator in the adjustment of such claim.

The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

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(a) Hear and settle the amount of their several liabilities

(b) Order how much and in what manner each shall contribute

(c) May issue execution as circumstances require. [Sec. 6, Rule 88]

(2) Liability of heirs and distributes

Heirs are not required to respond with their own property for the debts of their deceased ancestors. But after partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate. [Gov’t of P.I. v. Pamintuan, 55 Phil. 13 (1930)]

ORDER OF PAYMENT IF ESTATE IS INSOLVENT Executor/administrator pays the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. (Preference of Credits) [Sec. 7, Rule 88] DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS If no assets sufficient to pay credits of any one class of creditors after paying preferred credits, Each creditor within such class shall be paid dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. [Sec. 8, Rule 88] INSOLVENT NON-RESIDENT His estate found in the Philippines shall be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. [Sec. 9, Rule 88] INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND

FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY (1) Executor/administrator in the Philippines had

knowledge of the presentation of such claims in such country; and

(2) Executor/administrator had opportunity to contest such allowance

The court shall: (1) Receive a certified list of such claims, when

perfected in such country, (2) And add the same to the list of claims proved

against the deceased person in the Philippines (3) So that a just distribution of the whole estate may

be made equally among all its creditors

But the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors

residing in the Philippines and the other creditor, according to their respective claims. [Sec. 10, Rule 88] ORDER OF PAYMENT OF DEBTS Before the expiration of the time limited for the payment of the debts (1) The court shall order the payment thereof, and

the distribution of the assets received by the executor/administrator for that purpose among the creditors,

(2) As the circumstances of the estate require and in accordance with the provisions of this rule [Sec. 11, Rule 88]

APPEAL TAKEN FROM A DECISION OF THE COURT

CONCERNING THE CLAIM The court may: (1) Suspend the order for payment or order the

distribution among creditors whose claims are definitely allowed

(2) Leave in the hands of executor/administrator sufficient assets to pay the claim disputed and appealed.

When a disputed claim is finally settled court shall order the claim to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. [Sec. 12, Rule 88] FROM TIME TO TIME FURTHER ORDERS OF DISTRIBUTION (1) Whole of the debts not paid on first distribution;

and (2) If the whole assets not distributed or other assets

afterwards come to the hands of executor/administrator. [Sec. 13, Rule 88]

CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF

ORDER When an order is made for the distribution of assets among creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order.[Sec. 14, Rule 88] COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A

TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND

LEGACIES Period allowed to original or executor or administrator (1) Not exceeding 1 year (2) Two years when special circumstances require

[Sec. 15, Rule 88]

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Extension allowed to successor of Dead Executor or Administrator (1) Not exceeding 6 months at a time and not

exceeding six months beyond the time allowed to original executor or administrator or

(2) Not exceeding two years and a half. [Moran 525, 1980 Ed.; Sec. 16, Rule 88]

Ground for Extension (1) Original executor/administrator dies (2) New administrator appointed Requisites (1) Executor/administrator must apply. (2) Notice of the time and place of hearing. (3) Court must hear the application.

Actions by and against Executors and Administrators

ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT

AGAINST THE EXECUTOR OR ADMINISTRATOR Actions to be brought against Administrators (1) Recover real or personal property or interest

therein (2) Or to enforce a lien thereon and (3) Actions to recover damages for an injury to a

person or property [Aguas v. Llenos (1962)] Claims against the administrator may be presented in the administration proceedings but not against third persons. ACTIONS WHICH MAY NOT BROUGHT AGAINST

ADMINISTRATORS Claim for the recovery of money or debt or interest cannot be brought against executors/administrators. [Aguas v. Llenos (1962)] EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND

ACTIONS WHICH SURVIVE For the recovery or protection of the property or rights of the deceased [Sec. 2, Rule 87] Covers injury to property i.e. not only limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished. [Javier v. Araneta, 93 Phil. 1115; Aguas v. Llenos, supra]

WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED

BY DECEASED MAY BE RECOVERED (1) There is deficiency of assets and the deceased, in

his lifetime, had conveyed real or personal property, right or interest therein, or debt or credit with intent to defraud his creditors or avoid any right, debt or duty; or

(2) Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against the creditors; and

(3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime. [Sec. 9, Rule 87]

DUTY OF EXECUTOR/ADMINISTRATOR (1) Commence and prosecute to final judgment an

action for the recovery of such property, right, interest, debt or credit for benefit of the creditors

(2) Provided, creditors make an application and pay such part of the costs and expenses or give security therefor. [Sec. 9, Rule 87]

If a person before granting letters testamentary or administration (1) Embezzles or alienates (2) Any of the money, goods, chattels, or effects of

such deceased Consequence: Such person shall be liable to an action in favor of the executor/administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. [Sec. 8, Rule 87] REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR

RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY

THE DECEASED Any creditor may commence and prosecute to final judgment a like action for the recovery of the subject of the conveyance or attempted conveyance if the following requisites are satisfied: ALLOWED IN TWO INSTANCES (1) If executor/administrator failed to commence

such action (a) With court permission (b) In the name of the executor/administrator (c) He files a bond, conditioned to indemnify the

executor/administrator against the cost and expenses incurred by such action

(2) If conveyance or attempt is made in favor of executor/administrator (a) No need for court permission (b) No need for Bond. (c) Action shall be brought in the name of all the

creditors

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EFFECT Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. [Sec. 10, Rule 87]

Distribution and Partition Before there could be a distribution of estate, the following stages must be followed: (1) Liquidation of the estate i.e. payment of

obligations of the deceased. (2) Collation and Declaration of heirs : to determine

to whom the residue of the estate should be distributed. (a) Determination the right of a natural child (b) Determination of proportionate shares of

distributes. Afterwards, the residue may be distributed and delivered to the heirs. [Herrera] LIQUIDATION General Rule: Before an order of distribution or assignment, it must be shown that the “debts, funeral expenses and expenses of administration, allowances, taxes, etc., chargeable to the estate” have been paid. Exception: The distributees give a bond conditioned on the payment of above obligations [Sec. 1, Rule 90] PROJECT OF PARTITION A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. [Solivio v. CA, (1990)] The executor/administrator has no duty to prepare and present the same under the Rules. The court may, however, require him to present such project to better inform itself of the condition of the estate. [3 Moran 541, 1980 Ed.] It is the court that makes that distribution of the estate and determines the persons entitled thereto (1) On application of executor/administrator or

person interested in the estate (2) Notice (3) Hearing

Court shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled. Such persons may demand and recover their respective shares from the executor/administrator,

or any other person having the same in his possession. If there is a controversy as to who are heirs or shares heard and decided as in ordinary cases. [Sec. 1, Rule 90]

EFFECT OF FINAL DECREE OF DISTRIBUTION (1) In rem and binding against the whole world. (2) All persons having interest in the subject matter

involved, whether they are notified or not, are equally bound. [Philippine Savings Bank v. Lantin (1983)]

(3) The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them.[Ramon v. Ortuzar (1951)]

(4) The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. [Vda. De Alberto v. CA (1989)]

REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE The better practice for the heir who has not received his share is to demand his share through a proper motion in the same probate or administrative proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action. [Guilas v. Judge of the CFI of Pampanga, (1972)] INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF

EXECUTION General Rule: Writ of Execution is not allowed in probate proceedings [Vda de Valera v. Ofilada, 59 SCRA 96] Exceptions: (1) To satisfy the contributive shares of devisees,

legatees and heirs in possession of the decedent’s assets [Sec. 6, Rule 88]

(2) To enforce payment of expenses of partition, provided: (a) No sufficient effects are retained in the hands

of the executor or administrator at the time of distribution

(b) Expenses of partition are to be paid by interested parties in proportion to their respective shares or interest

(c) Such apportionment are settled and allowed by the court

(d) Any person interested in the partition does not pay his/her proportion or share [Sec. 3, Rule 90]

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(3) To satisfy the costs when a person is cited for examination in probate proceedings [Sec. 13, Rule 142]

Trustees DISTINGUISHED FROM EXECUTOR OR ADMINISTRATOR

Araneta v. Perez (1962): A trustee, like an executor/administrator, holds an office of trust, particularly when the trustee acts as such under judicial authority. The duties of executor/administrator are however, fixed and/or limited by law whereas those of the trustee of an express trust are, usually governed by the intention of the trustor or the parties, if established by contract. Besides, the duties of trustees may cover a wider range than those of executor/administrator of the estate of deceased persons.

CONDITIONS OF THE BOND Trustee must file bond before performing duties (1) Filed with the clerk of court (2) Amount fixed by the judge (3) Payable to the government of Philippines (4) Sufficient and available for the protection of any

party in interest

If the trustee fails to furnish a bond as required by the court, he fails to qualify as such. Nonetheless, the trust is not defeated by such a failure to give bond, he is considered to have declined or resigned the trust. [Sec. 5, Rule 98]

WHEN EXEMPT (1) When testator has directed such exemption; or (2) All persons beneficially interested in the trust,

request such exemption Exemption may be cancelled by the court at any time. [Sec. 5, Rule 98] CONDITIONS (1) Inventory That the trustee will make and return to the

court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge.

Exemption from inventory: (a) When trustee is not the original trustee

appointed

(b) Court’s discretion (c) If an inventory has already been filed

(2) Faithful management That he will manage and dispose of all such

estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed

(3) Accounting That he will render upon oath at least once a year

until his trust is fulfilled, unless he is excused in any year by the court, a true account of the property in his hands and the management and disposition thereof, and will render such other accounts as the court may order

(4) Settlement of account and delivery of estate. That at the expiration of his trust he will settle his

account in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled to thereto. [Sec. 6, Rule 98]

REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE (1) Petition by parties beneficially interested (2) Due notice to the trustee (3) Hearing

GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE GROUNDS FOR REMOVAL (1) Removal appears essential in the interest of

petitioner; (2) Trustee is insane; (3) Otherwise incapable of discharging his trust; or (4) Evidently unsuitable

GROUNDS FOR RESIGNATION He may resign but the court will determine if resignation is proper EXTENT OF AUTHORITY OF TRUSTEE NATURE OF POSSESSION The possession of the property by the trustee is not an adverse possession, but only a possession in the name and in behalf of the owner of the same. A trustee may acquire the trust estate by prescription provided there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust [Salinas v. Tuazon (1931)].

TERRITORIALITY OF AUTHORITY OF TRUSTEE The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic.

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This is based on the principle that his authority cannot extend beyond the jurisdiction of the Republic, under whose courts he was appointed. [Herrera]

Escheat Escheat is a proceeding where the real and personal property of a person deceased in the Philippines, who dies without leaving any will and without any legal heirs, becomes the property of the State. It is an incident or attribute of sovereignty and rests on the principle of ultimate ownership by the state of all property within its jurisdiction. WHEN TO FILE (1) Person dies intestate; (2) Left properties in the Philippines; and (3) Leaves no heir or person by law entitled to the

same [Sec. 1, Rule 91] REQUISITES FOR FILING OF PETITION (1) A person died intestate (2) He left no heirs or persons by law entitled to the

same (3) Deceased left properties [City of Manila v.

Archbishop of Manila, 36 Phil. 815] Note: Must be initiated by the Government through the Solicitor General. The Court must fix a date and place for hearing, which shall not be more than 6 months after the entry of the order PROCEDURE

The right of escheat may be waived, either expressly or impliedly. [Roman Catholic Archbishop of Manila v. Monte de Peidad, et al., 68 Phil. 1] REMEDY OF RESPONDENT AGAINST PETITION; PERIOD FOR FILING A CLAIM PERIOD TO APPEAL AND CLAIM THE ESTATE Appeal must be made within 5 years from date of judgment; otherwise, barred forever [Sec. 5, Rule 91] FILED BY WHOM (a) Devisee, legatee, heir, widow, widower, or other

person entitled to such estate appears (b) Such person shall have possession of and title to

the same, or if sold, the municipality or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate [Sec. 5, Rule 91]

PERIOD FOR FILING CLAIM 5 years from date the property was delivered to the State [Sec. 5, Rule 91]

Solicitor General or his representative in behalf of the Republic of the Philippines to file the petition: (a) Deceased was a resident of the Philippines—in

the RTC of the province where he last resided (b) Deceased was a non-resident—in the RTC of

the province in which he had an estate Actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute—in the province where the land lies in whole or in part

If the petition is sufficient in form and substance, the court shall fix a date and place for the hearing

The court shall direct a copy of the order to be published before the hearing at least once a week for 6 consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best

The court shall hear the case and judge whether or not the estate shall be escheated

If the court rules in favor of the Republic, It shall assign the personal estate to the municipality or city where the deceased last resided, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located.

Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.

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Guardianship

The power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself [Herrera]. GUARDIAN A person lawfully invested with power and charged with the duty of taking care of a person who for some peculiarity or status or defect of age, understanding or self-control is considered incapable of administering his own affairs [Herrera]. BASIS: PARENS PATRIAE It is the State’s duty to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties [Nery v. Lorenzo (1972)]. KINDS OF GUARDIANS [Regalado] (1) Legal Guardian – deemed as guardian by

provision of law, without need of court appointment [Article 320, Civil Code; Article 225, Family Code]

(2) Guardian ad Litem – appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in a court action.

(3) Judicial Guardian – appointed by the court in pursuance to law, as guardians for insane persons, prodigals, minor heirs of deceased war veterans and other incompetent persons. (a) Guardian over the person. (b) Guardian of the property. (c) General Guardian – has custody and care of

the ward’s person and property. The Rules on Guardianship in the Rules of Court govern guardianship of incompetent. Guardianship of minor is now governed by AM 03-02-05-SC. GUARDIANSHIP OF INCOMPETENT PROCEDURE

GENERAL POWERS AND DUTIES OF GUARDIANS (a) Care and custody of the person of his ward and

management of his property. (b) Management of his property only. (c) Management of property within the Philippines

(in case of non-resident ward). [Sec. 1, Rule 96] Specific duties (1) To pay the just debts of the ward out of:

(a) Personal property and the income of the real property of the ward, if the same is sufficient

(b) Real property of the ward upon obtaining an order for its sale or encumbrance. [Sec. 2, Rule 96]

(2) To settle all accounts of his ward [Sec. 3, Rule 96]

(3) To demand, sue for, receive all debts due him, or, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects [Sec. 3, Rule 96]

(4) To appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose [Sec. 3, Rule 96]

(5) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward. If such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so [Sec. 4, Rule 96]

(6) To consent to a partition of real or personal property owned by the ward jointly or in common with others, upon: (a) Authority granted by the court after hearing (b) Notice to relatives of the ward, and

(7) A careful investigation as to the necessity and propriety of the proposed action. [Sec. 5, Rule 96]

(8) To submit to the court a verified inventory of the property of the ward: (a) Within three months after his appointment (b) Annually, and

(9) Whenever required upon the application of an interested person. [Sec. 7, Rule 96]

(10) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within

Filing of Petition

Court issues order setting time for hearing

Notice to the incompetent and persons mentioned in the petition

Publication only if incompetent is a non-resident.

Hearing

If granted,s ervice of judgement to the Local Civil Registrat and payment of bond to the guardian.

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3 months after such discovery, succession, or acquisition [Sec. 4, Rule 96]

(11) To render to the court for its approval an accounting of the property: (a) One year from his appointment (b) Every year thereafter, and

(12) As often as may be required. [Secs. 7 & 8, Rule 96]

REIMBURSEMENT OF REASONABLE EXPENSES The court may authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust. [Sec. 8, Rule 96] PAYMENT OF COMPENSATION Court may order payment of reasonable compensation not exceeding 10% of the net income of the ward. [Sec. 8, Rule 96]

EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF

WARD’S PROPERTIES Complaint filed by Whom (1) The guardian or ward, or (2) Any person having actual or prospective interest

in the property of the ward. Court Examination The court may require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance [Sec. 6, Rule 96] Selling and Encumbering the Property of the Ward Grounds (1) When the income of a property under

guardianship is insufficient to maintain and educate the ward

(2) When it is for the benefit of the ward that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property. [Sec. 1, Rule 95]

How: Verified petition filed by the guardian. ORDER TO SHOW CAUSE The court shall order the ward’s next of kin and all persons interested in the property to appear at a reasonable time and place and show cause why the petition should not be granted. [Sec. 2, Rule 95] At the time and place designated in the order to show cause, the court shall hear the allegations and

evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require. [Sec. 3, Rule 95] ORDER FOR SALE OR ENCUMBRANCE Contents: (1) Grounds for the sale or encumbrance. (2) Manner of sale (public or private) (3) Time and manner of payment (4) Security, if payment deferred (5) Additional bond from guardian, if required. [Sec.

4, Rule 95]

Duration: Not more than 1 year, unless renewed.

INVESTMENT OF PROCEEDS AND MANAGEMENT OF

PROPERTY The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward. The court may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. [Sec. 1, Rule 95] CONDITIONS OF THE BOND OF THE GUARDIAN (Applicable for both Guardianship of Minors and incompetents) (1) To make and return to the court, within three

months after the issuance of his letters of guardianship, a TRUE AND COMPLETE INVENTORY of all the real and personal property of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf

(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS TRUST, to manage and dispose the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education

(3) To render a TRUE AND JUST ACCOUNT of all the property of the ward in his hands, and of all proceeds or interest derived from them, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto

(4) To perform all orders of the court and such other duties as may be required by law. [Sec. 1, Rule 94]

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RULE ON GUARDIANSHIP OVER MINORS (A.M. No. 03-02-05-SC) General Rule: The father and the mother shall jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment. [Sec. 3; also Article 225, Family Code] In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. [Article 225, Family Code] However, if the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond. PETITION FOR APPOINTMENT OF GUARDIAN Who may file (1) Resident minor

(a) Any relative (b) Other person on behalf of a minor (c) The minor himself, if 14 years of age or over (d) The Secretary of DSWD or the Secretary of

DOH, in the case of an insane minor who needs to be hospitalized. [Sec. 2]

(2) Non-resident minor

(a) Any relative or friend of such minor (b) Anyone interested in his property, in

expectancy or otherwise. [Sec. 12] Where to file Resident minor - Family Court of the province or city where the minor actually resides Non-resident minor - Family Court of the province or city where his property or any part thereof is situated [Sec. 3]

Grounds for Filing (1) Death, continued absence, or incapacity of his

parents (2) Suspension, deprivation or termination of

parental authority (3) Remarriage of his surviving parent, if the latter is

found unsuitable to exercise parental authority (4) When the best interests of the minor so require.

[Sec. 4] Contents of Petition (1) Jurisdictional facts (2) Name, age and residence of the prospective ward (3) Ground rendering the appointment necessary or

convenient (4) Death of the parents of the minor or the

termination, deprivation or suspension of their parental authority

(5) Remarriage of the minor’s surviving parent

(6) Names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody

(7) Probable value, character and location of the property of the minor

(8) Name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping. No defect in the petition or verification shall render void the issuance of letters of guardianship. [Sec. 7] Who may file Opposition (1) Any interested person [Sec. 10] (2) The social worker ordered to make the case study

report, if he finds that the petition for guardianship should be denied. [Sec. 9]

How If Interested person - by filing a written opposition. [Sec. 10] If social worker – by filing an intervention if based on finding the petition should be denied. [Sec. 9]

Grounds for Opposition (1) Majority of the minor (2) Unsuitability of the person for whom letters are

prayed. Procedure

Court shall fix a time and place for hearing.

Filing of petition.

Notice requirement Court shall cause reasonable notice to be given to: (a) The persons mentioned in the petition (b) The minor, if he is 14 years of age or over For non-resident minors, notice shall be given to the minor by publication or any other means as the court may deem proper. The court may also direct other general or special notice to be given.

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THE GUARDIAN Order of Preference of Appointment (in default of parents or a court-approved guardian) (1) The surviving grandparent. In case several

grandparents survive, the court shall select any of them taking into account all relevant considerations.

(2) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified.

(3) The actual custodian of the minor over 21 years of age, unless unfit or disqualified.

(4) Any other person, who in the sound discretion of the court, would serve the best interests of the minor

Qualifications The court shall consider the guardian’s: (1) Moral character (2) Physical, mental and psychological condition (3) Financial status (4) Relationship of trust with the minor

(5) Availability to exercise the powers and duties of a guardian for the full period of the guardianship

(6) Lack of conflict of interest with the minor (7) Ability to manage the property of the minor.

[Secs. 5 & 10] Grounds are not exhaustive. [Herrera] Powers and Duties In general (1) Guardian of resident minor: Care and custody of

the person of his ward and the management of his property, or only the management of his property.

(2) Guardian of non-resident minor: Management of all his property within the Philippines [Sec. 17]

Bonds of Guardians Before a guardian enters upon the execution of his trust, or letters of guardianship issue, he must file a bond as determined by the Court. [Sec. 14] Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond. [Sec. 15] Liability: In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. [Sec. 15] REMOVAL, RESIGNATION, AND TERMINATION OF

GUARDIANSHIP Removal How: Upon reasonable notice to the guardian. Grounds: The guardian: (1) Becomes insane or otherwise incapable of

discharging his trust (2) Is found to be unsuitable (3) Wasted or mismanaged the property of the ward (4) Failed to render an account or make a return for

thirty days after it is due. [Sec. 14] Resignation Ground: Any justifiable cause. Upon the removal or resignation of the guardian, the court shall appoint a new one.

No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. [Sec. 24]

Termination Grounds (1) The ward has come of age. (2) The ward has died.

Case Study Report Court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing.

Hearing Compliance with notice requirement must be shown. The prospective ward shall be presented to the court. If the minor is non-resident, the court may dispense with his presence. At the discretion of the court, the hearing on guardianship may be closed to the public.

The records of the case shall not be released without court approval.

Issuance or denial of letters of guardianship.

Service of final and executory judgment or order upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, who shall annotate the same in the corresponding title, and report to the court their compliance within fifteen days from receipt of the order.

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How (1) Court motu proprio terminates guardianship (2) Upon verified motion of any person allowed to file

a petition for guardianship.

The guardian shall notify the court of the fact of coming of age or death of the ward within 10 days of its occurrence. [Sec. 25] The final and executory judgment or order removing a guardian or terminating the guardianship shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated, who shall enter the final and executory judgment or order in the appropriate books in their offices. [Sec. 26]

Adoption A juridical act which creates between two persons a relation similar to that which results from filiation. [Prasnick v. Republic, 98 Phil. 669 (1956)] Objective: Best interest of the child [Sec. 1] DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION See Annex A. DOMESTIC ADOPTION ACT RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic adoption of Filipino children. General Rule: Husband and wife shall adopt jointly Exceptions: (1) If one spouse seeks to adopt the legitimate child

of other (2) If one spouse seeks to adopt his own illegitimate

child, provided the other spouse has signified his/her consent

(3) If spouses are legally separated [Sec. 7(c), RA 8552]

PROCEDURE

EFFECTS OF ADOPTION Parental Authority All legal ties between thr biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter [Sec. 16, RA 8552] Legitimacy The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes, and entitled to all rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Adoptee is entitled to love, guidance, and support. [Sec. 17, RA 8552] Succession Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. [Sec. 18, RA 8552] Book of Adoptions The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with the court’s order, and all incidents arising after the issuance of the decree. [Sec. 17, Adoption Rule (AR)]

Order of Hearing

Publication at least once a week for three consecutive weeks in newspaper of general

circulation in province or city where the court is situated. Court shall notify the Solicitor General if

the petition prays for a change of name.

Child and Home Study Report

Hearing within 6 months from issuance of Order

Supervised Trial Custody for at least 6 months

Decree of Adoption

Amendment of Birth Certificate

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Confidentiality of Adoption Proceedings All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used. [Sec. 15, RA 8552] INSTANCES WHEN ADOPTION MAY BE RESCINDED RESCISSION OF ADOPTION OF THE ADOPTEE Who May File (1) Adoptee who is over 18 years of age (2) If the adoptee is a minor, with the assistance of

the DSWD (3) If the adoptee is over 18 years of age but

incapacitated, by his guardian or counsel. [Sec. 19, RA 8552]

Grounds: Committed by the adopter (1) Repeated physical and verbal maltreatment

despite having undergone counseling (2) Attempt on the life of the adoptee (3) Sexual assault or violence (4) Abandonment or failure to comply with parental

obligations.

Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter.

However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. [Sec. 19, RA 8552]

Where to file: Family Court of the city or province where the adoptee resides. [Sec. 20, AR] When to file: (1) Within 5 years after reaching age of majority (2) If he was incompetent at the time of the

adoption, within 5 years after recovery from such incompetency. [Sec. 21, AR]

Effects of Rescission of Adoption (1) RESTORATION OF PARENTAL AUTHORITY to

original parent if adoptee is a minor. (2) RECIPROCAL RIGHTS AND OBLIGATIONS of

adopter and adoptee are EXTINGUISHED. (3) CANCELLATION of amended birth certificate and

RESTORE ORIGINAL. (4) SUCCESSIONAL RIGHTS SHALL REVERT to its

status PRIOR TO ADOPTION, as of the date of final judgment of rescission.

(5) VESTED RIGHTS shall be RESPECTED. [Sec. 20, RA 8552]

INTER-COUNTRY ADOPTION RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by: (1) Foreign nationals, and (2) Filipino citizens permanently residing abroad.

[Sec. 3 (a)] WHEN ALLOWED INTER-COUNTRY ADOPTION AS THE LAST RESORT; “BEST

INTEREST OF THE CHILD” AS OBJECTIVE The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for adoption of the child under the Family Code (domestic adoption) have been exhausted and that inter-country adoption is in the best interest of the child [Sec. 7, RA 8043] FUNCTIONS OF THE RTC (1) Filing of petition may be made with the Family

Court having jurisdiction over the place where the child resides or may be found. [Sec. 28, AM 02-6-02 SC or AR Part II]

(2) Court shall determine whether or not petition is sufficient in form and substance and a proper case for inter-country adoption.

(3) Transmit the petition to the ICAB for appropriate action.

Writ of Habeas Corpus Essentially a writ of inquiry, granted to test the right under which a person is detained, and to relieve a person if such restrain is illegal Extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. [Sec. 1, Rule 102] Can only be suspended in cases of rebellion or invasion and when public interest requires it (Art. III Sec. 15)

VITAL PURPOSES: In General (1) To obtain relief from illegal confinement (2) To liberate those who may be imprisoned without

sufficient cause (3) To deliver them from unlawful custody

[Villavicencio v. Lukban (1919)] Prime specification of the application for a writ of

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habeas corpus is restraint of liberty. [Moncupa v. Enrile (1986)] In the case of minors (1) Prosecuted for the purpose of determining the

right of custody of a child. (2) Question of identity is relevant and material and

must be convincingly established. [Tijing v. CA (2008)]

To resolve questions of custody of a minor The underlying rationale is not the illegality of the restraint but the right of custody. [Tijing v. CA (2001)] WHO MAY ISSUE THE WRIT (1) The SC,CA, and RTC have concurrent jurisdiction

to issue WHC [Sec.2, Rule 102] (2) Family courts have jurisdiction to hear petitions

for custody of minors and the issuance of the WHC in relation to custody of minors

TEMPORARY RELEASE MAY CONSTITUTE RESTRAINT -ELEMENTS (a) Where a person continued to be unlawfully

denied one or more of his constitutional rights (b) Where there is present denial of due process (c) Where the restraint is not merely involuntary but

appear to be unnecessary (d) Where a deprivation of freedom originally valid

has in light of subsequent developments become arbitrary [Moncupa v. Enrile (1986)]

General Rule: Release of detained person, whether permanent or temporary, makes the petition for habeas corpus moot. Exception: (1) Doctrine of Constructive Restraint- Unless there

are restraints attached to his release which precludes freedom of action in which case the Court can still inquire into the nature of his involuntary restraint

The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint. Any restraint which will preclude freedom of action is sufficient. [Villavicencio v Lukban (1919)]

(2) Violation of freedom from threat by the apparent

threat to life, liberty and security of their person from the following facts: (a) Threat of killing their families if they tried to

escape (b) Failure of the military to protect them from

abduction (c) Failure of the military to conduct effective

investigation [Secretary of Justice v. Manalo]

NATURE Not a suit between private parties, but an inquisition by the government, at the suggestion and instance of an individual, but still in the name and capacity of the sovereign. [Alimpoos v. CA, 106 SCRA 159 (1981)] Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings spring. Ex parte Bollman: the question whether one shall be imprisoned is always distinct from the question of whether the individual shall be convicted or acquitted of the charge on which he is tried, and therefore these questions are separate, and may be decided in different courts [Herrera, citing 4 Cranch, 75, 101] In the case of People v. Valte (1922), it was stated that the writ of habeas corpus is not designed to interrupt the orderly administration of the laws by a competent court acting within the limits of its jurisdiction, but is available only for the purpose relieving from illegal restraint.

Proceedings on habeas corpus to obtain release from custody under final judgment being in the nature of collateral attack, the writ deals only with such radical defects as render the proceeding or judgment absolutely void, and cannot have the effect of appeal, writ of error or certiorari, for the purpose of reviewing mere error and irregularities in the proceedings. [People v. Valte (1922)] WHC MAY BE USED WITH WRIT OF CERTIORARI FOR PURPOSES OF REVIEW The two writs may be ancillary to each other where necessary to give effect to the supervisory powers of higher courts. WHC reaches the body of the jurisdictional matters, but not the record. Writ of certiorari reaches the record but not the body [Galvez v. CA (1994)] While generally, the WHC will not be granted when there is an adequate remedy like writ of error, appeal, or certiorari, it may still be available in exceptional cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-488] WHC IS NOT THE PROPER REMEDY FOR THE CORRECTION OF ERRORS OF FACT OR LAW Exception: Error affects court’s jurisdiction (making the judgment void) [Herrera] WHC does not lie where the petitioner has the remedy of appeal or certiorari. [Galvez v. CA (1994)]

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WHC IS NOT PROPER: (a) To assert or vindicate denial of right to bail

[Galvez v. CA (1994)] (b) For correcting errors in appreciation of fact or law

[Sotto v. Director of Prisons (1962)] WHC IS PROPER: (a) Remedy for reviewing proceedings for deportation

of aliens [De Bisschop v. Galang, (1963)] (b) Where the court has no jurisdiction to impose the

sentence [Banayo v. President of San Pablo, 2 Phil. 413 (1903)]

CONTENTS OF THE PETITION Who May Apply (1) The party for whose relief it is intended, or (2) By some person on his behalf [Sec. 3, Rule 102] Some person – any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application [Velasco v. CA (1995)] REQUISITES OF APPLICATION: (1) That the person in whose behalf the application is

made is imprisoned or restrained of his liberty (2) The officer or name of the person by whom he is

so imprisoned or retrained or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended

(3) The place where he is so imprisoned or restrained, if known

(4) A copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear.

PROCEDURE (1) Application for the writ by petition [Sec. 3, Rule

102] (2) Grant or disallowance by court or judge [Secs. 4 &

5, Rule 102] (3) Clerk of Court issues the writ under the seal of

court (in case of emergency, by the judge himself) [Sec. 5. Rule 105]

(4) Service: (a) By whom: sheriff or other proper officer (b) How: leaving the original with the person to

whom it is directed and preserving a copy on which to make return

(c) To whom: officer in custody or any officer (when in custody of person other than an officer) [Sec. 7, Rule 105]

(5) Execution and return: (a) Officer brings the person before the judge,

and (b) Officer makes due return [Sec. 8, Rule 102]

CONTENTS OF THE RETURN Made by the person or officer in whose custody the prisoner is found: (1) Whether he has or has not the party in his

custody or power, or under restraint (2) If he has the party in his custody or power, or

under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held

(3) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge

(4) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Sec. 10, Rule 102]

The return or statement shall be signed by the person who makes it; and shall also be sworn by him if the prisoner is not produced, and in all other cases, unless the return is made and signed by a sworn public officer in his official capacity. [Sec. 11, Rule 102] WHEN THE RETURN CONSIDERED EVIDENCE, AND WHEN

ONLY A PLEA (a) When the prisoner is in custody under a warrant

of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint.

(b) If he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. [Sec. 13, Rule 102]

DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION PRELIMINARY CITATION – requires the respondent to appear and show cause why the peremptory writ should not be granted PEREMPTORY WRIT – unconditionally commands the respondent to have the body of the detained person before the court at a time and place therein specified [Lee Yick Hon v. Collector of Customs, (1921)] WHEN WRIT NOT PROPER OR APPLICABLE WHC will not issue where: (1) The person alleged to be restrained of his liberty

is in custody of an officer (2) Under process issued by the court or judge (3) By virtue of a judgment or order of a court of

record

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(4) The Court or judge had jurisdiction to issue the process, render the judgment or make the order. [Sec. 4, Rule 102]

The operative act is detention or restraint (whether or not physical). If there is none, no WHC will issue despite the possibility of respondent being liable to civil, criminal, or administrative action. Judicial discretion is exercised in the issuance of the writ, and will not issue as a matter of course [Eugenio, Sr. v. Velez (1990)] Improper arrest or lack of preliminary investigation is not a valid ground for the issuance of WHC. The proper remedy is a motion to quash the warrant of arrest and/or information before the trial court [Ilagan v. Enrile, 1985] Posting of a bail is not a waiver of the right to challenge the validity of the arrest, and therefore the right to resort to WHC [Sec. 26, Revised Rules of Criminal Procedure] A person discharged on bail is not entitled to WHC, because such person is not imprisoned or restrained of his liberty in such a way as to entitle him to the WHC. [Tan Me Nio v. Collector of Customs, (1916)] WHEN DISCHARGE NOT AUTHORIZED DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF: (1) Jurisdiction appears after the writ is allowed,

despite any informality or defect in the process, judgment, or order.

(2) Person is charged with or convicted of an offense in the Philippines

(3) Person is suffering imprisonment under lawful judgment [Sec. 4, Rule 102]

(4) If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death [Sec. 14, Rule 102]

(5) Even if the arrest of a person is illegal, due to supervening events (a) Issuance of a judicial process

[Sayo v. Chief of Police of Manila (1948)]

Judicial process is defined as a writ, warrant, subpoena, or other formal writing issued by authority of law. [Malaloan v. CA (1994)]

(b) The filing before a trial court a complaint

which issued a hold departure order and denied motion to dismiss and to grant bail [Velasco v. CA(1995)]

(c) Filing of an information for the offense for

which the accused is detained bars the availability of WHC [Velasco v. CA (1995)]

DISTINGUISHED FROM WRIT OF AMPARO AND HABEAS DATA See Annex B. CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) APPLICABILITY Applies to petitions for custody of minors and writs of habeas corpus in relation thereto. Rules of Court shall apply suppletorily. [Sec. 1]

PETITION FOR RIGHTFUL CUSTODY Verified petition for the rightful custody of a minor may be filed by any person claiming such right. Party against whom it may be filed shall be designated as the respondent. [Sec. 2]

WHERE TO FILE Filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. [Sec. 3]

CONTENTS: (1) The personal circumstances of the petitioner and

of the respondent (2) The name, age and present whereabouts of the

minor and his or her relationship to the petitioner and the respondent

(3) The material operative facts constituting deprivation of custody

(4) Such other matters which are relevant to the custody of the minor [Sec. 4]

Verified and accompanied with a certificate against forum shopping signed by the petitioner personally. [Sec. 4] If court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent. [Sec. 5]

ANSWER TO THE PETITION General Rule: Motion to dismiss the petition is not allowed. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. Exception: On the ground of lack of jurisdiction over the subject matter or over the parties. [Sec. 6]

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Verified Answer – Personally verified and filed within 5 days after service of summons. [Sec. 7]

Case study – upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit to the court at least 3 days before pre-trial. [Sec. 8]

MANDATORY PRE-TRIAL Notice - 15 days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) Fixing a date for the pre-trial conference (2) Directing the parties to file and serve their

respective pre-trial briefs (3) Requiring the respondent to present the minor

before the court.

The notice of its order shall be served separately on both the parties and their respective counsels. [Sec. 9]

Pre-trial brief contains the following: (1) A statement of the willingness of the parties to

enter into agreements that may be allowed by law, indicating its terms

(2) A concise statement of their respective claims together with the applicable laws and authorities

(3) Admitted facts and proposed stipulations of facts (4) The disputed factual and legal issues (5) All the evidence to be presented (6) The number and names of the witnesses and

their respective affidavits (7) Such other matters as the court may require to be

included.

Failure to file the pre-trial brief or to comply with its required contents has same effect as failure to appear at the pre-trial. [Sec. 10]

If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed. Unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. [Sec. 11]

If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The Court shall then render judgment on the basis of the pleadings and the evidence thus presented. [Sec. 9]

At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have 5 days to effect an agreement between the parties. If

the issue is not settled through mediation, the court shall proceed with the pre-trial. [Sec. 12]

Ater an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor to: (1) Both parents jointly (2) Either parent (3) The grandparent, or if there are several

grandparents, the grandparent chosen by the minor over 7 years of age and of sufficient discernment

(4) The eldest brother or sister over 21 years of age (5) The actual custodian of the minor over 21 years of

age (6) Any other person or institution the court may

deem suitable. [Sec. 13]

INTERIM RELIEFS Temporary visitation rights - court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents.

Unless the court finds said parent or parents unfit or disqualified.

The temporary custodian shall give the court and non custodial parent or parents at least 5 days' notice of any plan to change the residence of the minor or take him out of his residence for more than 3 days. [Sec. 15]

Hold Departure Order – the minor child shall not be brought out of the country without prior order from the court while the petition is pending.

The Court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation (BID), directing it not to allow the departure of the minor from the Philippines without court permission. The Family Court issuing the hold departure order shall furnish the DFA and the BID of the DOJ a copy of the hold departure order within 24 hours from its issuance. The court may recall the hold departure order motu proprio or upon verified motion of any of the parties after summary hearing. [Sec. 16]

Protection Order (PO) - court may issue a PO requiring any person: (1) To stay away from the home, school, business, or

place of employment of the minor, other parent or any other party, or from any other specific place

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(2) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded

(3) To refrain from acts or omission that create an unreasonable risk to minor

(4) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods

(5) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court

(6) To comply with such other orders as are necessary for the protection of the minor. [Sec. 17]

JUDGMENT Court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home. Court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of custodianship. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. [Sec. 18] Appeal Appeal from the decision shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within 15 days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within 15 days from notice of the denial of the motion for reconsideration or new trial and serving a copy on the adverse parties. [Sec. 19] WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS A verified petition for a writ of habeas corpus involving custody of minors filed with the Family Court. The writ shall be enforceable within the judicial region the Family Court belongs. However, the petition may be filed with a regular court in the absence of the presiding judge of the Family Court provided that the regular court shall

refer the case to the Family Court as soon as its presiding judge returns to duty. Petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may be filed with the SC, CA, or with any of its members and shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. [Sec. 20]

Writ of Amparo

(a) Literally means to protect (b) Came originally from Mexico and evolved into

many forms (1) Amparo libertad – for protection of personal

freedom (2) Amparo contra leyes – for judicial review of the

constitutionality of statutes (3) Amaparo casacion – judicial review of

constitutionality and legality of judicial decisions

(4) Amparo agrario – for protection of peasants’ rights

(c) AM No 7-9-12-SC (Rules on the Writ of Amparo)

[Amparo Rule] was promulgated by the Supreme Court by virtue of the 1987 Constitution stating that the SC has the power to “[p]romulgate rules concerning the protection and enforcement of constitutional rights…” (Art VIII Sec. 5)

Interpreted as the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land.

COVERAGE WRIT OF AMPARO Remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover: (1) Extralegal killings (killings committed without

due process of law) and (2) Enforced disappearances [Sec. 1, Amparo Rule]

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Elements of Enforced Disappearance: (a) An arrest, detention or abduction of a person by a

government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government

(b) The refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law [Sec. of National Defense v. Manalo (2008)]

The writ applies only to the right to life, liberty and security of persons and not the property. “Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life, liberty and security of their person. DISTINGUISH FROM WRIT OF HABEAS CORPUS AND HABEAS DATA See Annex C DISTINGUISH WRIT OF AMPARO FROM SEARCH WARRANT

Secretary of Defense v. Manalo (2008): The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.

The Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e. “Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control...” WHO MAY FILE (1) Aggrieved party (2) Any member of the immediate family namely: the

spouse, children and parents of the aggrieved party

(3) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil

degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph or

(4) Any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. [Sec. 2] RATIO FOR PREFERENCE (1) Necessary for the prevention of indiscriminate

and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party

(2) Untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party

WHERE TO FILE (1) RTC where the threat, act or omission was

committed or any of its element occurred (2) Sandiganbayan—unlike the writ of habeas

corpus, because public officials and employees will be respondents in amparo petitions

(3) Court of Appeals (4) Supreme Court (5) Any justice of such courts [Sec. 3]

May be filed on any day, including Saturdays, Sundays, and holidays; from morning until evening. CONTENTS (1) The personal circumstances of the petitioner; (2) The name and personal circumstances of the

respondent responsible for the threat, actor omission or if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(3) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(4) The investigation conducted, if any, specifying the names, the personal circumstances and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(5) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(6) The relief prayed for. May include a general prayer and equitable reliefs.

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Signed and verified [Sec. 5] No docket fees and other lawful fees. [Sec. 4] CONTENTS OF RETURN Upon the filing of the petition, the court shall order the issuance of the writ. The respondent shall file a verified written return together with supporting affidavits within 72 hours after service of the writ. CONTENTS: (1) The lawful defenses to show that the respondent

did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission

(2) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person responsible for the threat, act or omission

(3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party and

(4) If the respondent is a public official or employee the return shall further state the actions that have been or will still be taken.

(5) The return shall also state matters relevant to the investigation, its resolution and the prosecution of the case.

No general denial allowed. [Sec. 9] TO WHOM RETURNABLE (1) If filed with RTC, returnable to RTC or any judge (2) If filed with Sandiganbayan, CA or any justice,

returnable to such court or any justice or the RTC where the threat, act or omission was committed or any of its elements occurred.

(3) If filed with the SC, returnable to the SC or any justice, or to the CA, SB or any of its justices, or the RTC where the threat, act or omission was committed or any of its elements occurred. [Sec. 3]

OMNIBUS WAIVER RULE DEFENSES NOT PLEADED DEEMED WAIVED. All defenses shall be raised in the return, otherwise, they shall be deemed waived. [Sec. 10] EFFECT OF FAILURE TO FILE A RETURN In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. PROCEDURE FOR HEARING ON THE WRIT SUMMARY HEARING Hearing on the petition shall be summary.

BUT: The court, justice, or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. [Sec. 13] PROHIBITED PLEADINGS AND MOTIONS (1) Motion to dismiss (2) Motion for extension of time to file return,

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. [Sec. 11] Allows motion for new trial and petition for relief from judgment JUDGMENT The court shall render judgment within ten (10) days from the time of petition is submitted for decision. ARCHIVING AND REVIVAL OF CASES If the case cannot proceed for valid cause, the court shall not dismiss the petition but shall archive it. If after the lapse of two (2) years from the notice of archiving, the petition shall be dismissed for failure to prosecute. [Sec. 20] INSTITUTION OF SEPARATE ACTIONS The Rule shall neither preclude the filing of separate criminal, civil or administrative actions nor suspend the filing of criminal, civil or administrative actions. [Sec. 21] But a claim for damages should instead be filed in a proper civil action. If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution, because the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent. EFFECT OF FILING OF A CRIMINAL ACTION When a criminal action has been commenced, NO SEPARATE PETITION for the writ shall be filed. Reliefs under the writ shall be available by motion in a criminal case.

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Procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. [Sec. 22] CONSOLIDATION When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs on the petition. [Sec. 23] Interim Reliefs Available to Petitioner and Respondent Upon filing of the petition or at any time before final judgment INTERIM RELIEFS AVAILABLE TO THE PETITIONER (1) TEMPORARY PROTECTION ORDER. – The court,

justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family 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 concerned.

The SC shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or aggrieved party and any member of the immediate family, in accordance to the guidelines which it shall issue.

The accredited persons and private persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. [Sec. 14(a)]

Different from the inspection and production order in that the temporary protection order and the witness protection order do not need a verification and may be issued motu proprio or ex parte.

(2) INSPECTION ORDER. – The court, justice or judge

upon verified motion and after due hearing may order any person in possession or control of a designated land or other property, to permit entry

for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearances or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the day of its issuance, unless extended for justifiable reasons. [Sec. 14(b)]

(a) Requires hearing, may be availed of both the

petitioner and the respondent (b) If the court, justice or judge gravely abuses his

or her discretion in issuing the inspection order, the aggrieved party is not precluded from filing a petition for certiorari with the Supreme Court

(3) PRODUCTION ORDER. – The court, justice or judge, upon verified motion and after due hearing may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

Grounds for Opposition (a) National security (b) Privileged nature of the information In which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. [Sec. 14(c)]

(i) Only granted upon motion and hearing (ii) Not the same as search warrant for law

enforcement under Art. III, Sec. 2 of the

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Constitution since the latter is a protection of the people from unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents

(iii) More similar to production of documents or things under Sec. 1 Rule 27 of Rules of Civil Procedure

(4) WITNESS PROTECTION ORDER. – The court, justice or

judge, upon motion or motu proprio, may refer the witnesses to (a) The Department of Justice for admission to

the Witness Protection, Security and Benefit Program.

(b) Other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. [Sec. 14(d)]

INTERIM RELIEFS AVAILABLE TO THE RESPONDENT (a) Inspection Order (b) Production Order [Sec. 15] REQUISITES (1) Verified motion of the respondent (2) Due hearing (3) Affidavits or testimonies of witnesses having

personal knowledge of the defenses of the respondent. [Sec. 15]

QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT: SUBSTANTIAL EVIDENCE The parties shall establish their claims by substantial evidence. IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE (a) Must prove that extraordinary diligence as

required as required by the applicable laws, rules and regulations was observed in the performance of duty.

(b) Cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability

IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY Must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. [Sec. 17]

Sec. of Justice v. Manalo (supra): With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and

evidence of the ordeal will come from the victims themselves. Their statements can be corroborated by other evidence such as physical evidence left by the torture or landmarks where detained.

Change of Name and Cancellation or Correction of Entries in the Civil Registry DIFFERENCES UNDER THE APPLICABLE RULES (RULE 103, RULE 108, RA 9048) See Annex D GROUNDS FOR CHANGE OF NAME See Annex D JURISPRUDENCE

Laperal vs. Republic (1962): Legal separation is not a ground for the female spouse to apply for a change of name under Rule 103. No Yao Siong v. Republic (1966): The name that can be changed is the name that appears in the civil register, and not in the baptismal certificate or that which the person is known in the community. Ong Huan Tin v. Republic (1967): An alien may petition for change of name but he must be domiciled in the Philippines. Oshito vs. Republic (1967): Verification is a formal, not a jurisdictional, requirement. The lack of verification is not a ground for dismissing the petition. However, before setting the petition for hearing, the court should have required the petitioner to have the petition verified. Go Chiung Beng vs. Republic (1972): All aliases of the applicant must be set forth in the petition’s title. Such defect is fatal, even if said aliases are contained in the body of the petition. Secan Kok vs. Republic (1973): A change of name granted by the court affects only a petitioner. A separate petition for change of name must be filed for his/her spouse and children. Silverio vs. Republic (2007): A person’s first name cannot be changed on the ground of sex reassignment. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Before a person can legally change his given name,

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he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Silverio failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. Rather than avoiding confusion, changing petitioner’s first name may only create grave complications in the civil registry and the public interest. No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment. RA 9048 only allows correction of clerical or typographical errors. A correction in the civil registry involving the change of sex is not a mere clerical or typographical error. The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

People vs. Cagandahan (2008): Intersexuality is a valid ground for change of name and change of entry of sex in the civil registry. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason, thinks of his sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed.

Failure to implead the local civil registrar as well as all persons who have or claim any interest did not render the petition fatally defective. Cagandahan furnished the local civil registrar a copy of the petition, the order to publish, and all pleadings, orders or processes in the course of the proceedings. There was therefore substantial compliance of the provisions of Rules 103 and 108 of the Rules of Court.

Absentees

PURPOSE OF THE RULE

In Re: Petition for Declaration of Absence of Roberto L. Reyes (1986): The declaration of absence made in accordance with the provisions of the Civil Code has for its SOLE PURPOSE to enable the taking of the necessary precautions for the administration of the estate of the absentee.

There is a need to have a person judicially declared an absentee when:

(1) he has properties which have to be taken cared of or administered by a representative appointed by the Court [Article 384, Civil Code];

(2) the spouse of the absentee is asking for separation of property [Article 191, Civil Code]; or

(3) his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her [Article 196, Civil Code].

General Rule: No independent action for declaration of presumption of death [Nicolai v. Szatrow, 1948)] Exception: For purpose of contracting a second marriage [Article 41, Family Code] WHO MAY FILE; WHEN TO FILE Petition for Appointment of a Representative [PAR] to provisionally represent absentee When a person: (1) Disappears from his domicile, his whereabouts

being unknown (2) Has not left an agent to administer his property or

the power conferred upon the agent has expired. [Sec. 1, Rule 107]

Who may file PAR (1) Any interested party (2) Relative (3) Friend [Sec. 1, Rule 107]

Petition for Declaration of Absence and Appointment of Trustee or Administrator [PDA] Filed after 2 years: (1) From the disappearance of and without any news

from the absentee OR (2) Since the receipt of the last news about him.

Filed after 5 years, if the absentee left an administrator of his property. [Sec. 2, Rule 107]

Who may file PDA and be appointed (1) The spouse present (2) The heirs instituted in a will, who may present an

authentic copy of the same (3) The relatives who would succeed by the law of

intestacy (4) Those who have over the property of the absentee

some right subordinated to the condition of his death. [Sec. 2, Rule 107]

WHEN TERMINATED (1) Absentee appears personally or through an agent (2) Absentee’s death is proved and heirs appear (3) Third person appears, showing that he acquired

title over the property of the absentee

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Cancellation or Correction of Entries in the Civil Registry ENTRIES SUBJECT TO CANCELLATION OR CORRECTION UNDER RULE 108, IN RELATION TO RA 9048 Under RULE 108: SUBSTANTIAL CHANGES in entries in the civil registry, excluding name (governed by Rule 103). SUBSTANTIAL CHANGE – change that affects the civil status, citizenship, or nationality of a party. (1) Births (2) Marriage (3) Deaths (4) Legal separations (5) Judgments of annulments of marriage (6) Judgments declaring marriages void from the

beginning (7) Legitimations (8) Adoptions (9) Acknowledgments of natural children (10) Naturalization (11) Election, loss or recovery of citizenship (12) Civil interdiction (13) Judicial determination of filiation (14) Voluntary emancipation of a minor (15) Changes of name [Sec. 2, Rule 108] Such changes have public interest implications and must only be made upon approval of the Court. Cancellation or correction of substantial errors is allowed provided proceeding is adversary. [Chiao Ben Lim v. Zosa (2004)] APPROPRIATE ADVERSARY PROCEEDING One where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. [Elosida v. Local Civil Registrar of Quezon City (2002)] PROCEDURAL REQUIREMENTS OF AN ADVERSARY

PROCEEDING (a) Parties – Civil registrar and all persons who have

or claim any interest which would be affected are made parties [Sec. 3, Rule 108]

(b) Notice and publication – Reasonable notice to be given to the persons named in the petition, and publication once a week for 3 consecutive weeks [Sec. 4, Rule 108]

(c) Opposition – 15 days from notice of petition, or from last date of publication of notice [Sec. 5, Rule 109]

Under RA 9048, as amended by RA 10172: CLERICAL or TYPOGRAPHICAL ERRORS General Rule: Entry in a civil register shall be changed or corrected with a judicial order. Exception: (a) Clerical or typographical errors and (b) Change of first name or nickname, the day and

month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. [Sec. 1, RA 9048, as amended]

Clerical or typographical error: A mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that: (1) Is harmless and innocuous. (2) Is visible to the eyes or obvious to the

understanding (Patent) (3) Can be corrected or changed only by reference to

other existing record or records (4) Does not involve the change of nationality, age,

status or sex of the petitioner. [Sec. 2(3), RA 9048, as amended]

Note: The procedure recited in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in civil registry are separate and distinct. They may not be substituted one for the other. If both reliefs are to be sought in the same proceedings all the requirements of Rule 103 and 108 must be complied with. [Republic v. Valencia (1986)]

Appeals in Special Proceeding JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN (1) If it allows or disallows a will (2) If it wholly determines who are the lawful heirs or

the distributive shares (3) If it wholly or partially allows or disallows a claim

against a decedent’s estate, or any claim presented on the decedent’s estate, or any claim presented on the estate’s behalf on offset to claim against it

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(4) If it settles the account of an executor/administrator/trustee/guardian

(5) If it constitutes a final determination in the lower court of the rights of the party appealing in proceedings relating to estate settlement or administration of a trustee/guardian

Exception: Appointment of a special administrator is not appealable Remedy: Petition for certiorari under Rule 65, if there is grave abuse of discretion.

(6) If it is the final order/judgment rendered in the

case, and affects the substantial rights of the person appealing [Sec. 1, Rule 109] Exception: Orders granting/denying a MFR/MNT

While some of the items in Rule 109. Sec. 1 may be considered as interlocutory under ordinary special actions, the nature of special proceedings declares them as appealable as exceptions to Rule 41, Sec. 1. WHEN TO APPEAL In a special proceeding, the period of appeal is 30 days. [Sec. 3, Rule 41] The appeal period may be interrupted by the filing of an MFR/MNT. Once the appeal period expires without an appeal/MF/MNT, the order becomes final.[Sec. 3, Rule 41] However, habeas corpus, amparo and habeas data cases have different periods of appeal. See Annex C MODES OF APPEAL NOTICE and RECORD ON APPEAL REQUIRED. [Sec. 3, Rule 41] Rule 109 contemplates multiple appeals during the pendency of special proceedings. A record on appeal – in addition to the notice of appeal – is thus required to be filed as the original records of the case should remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final. However, a record on appeal is not necessary where no other matter remained to be heard and determined by the trial court after it issued the appealed order granting the petition for cancellation of birth record and change of surname in the civil registry. [Republic v. Nishina (2010)] RULE ON ADVANCE DISTRIBUTION Notwithstanding a pending controversy/appeal in estate settlement proceedings, the court may permit that the estate’s parts which are not affected by the

controversy/appeal be distributed, upon compliance with Rule 90. [Sec. 2, Rule 109]

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ANNEX A

Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)

Governing Body

DSWD Inter-country Adoption Board (ICAB)

When may adoption be resorted to

Adoption need not be the last resort Adoption only as last resort: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally [Sec.11]

Who may adopt

(1) Any FILIPINO CITIZEN (regardless of where residing)

(a) of legal age, (b) at least sixteen (16) years older than the

adoptee, (may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent)

(c) in possession of full civil capacity and legal rights,

(d) of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children,

(e) who is in a position to support and care for his/her children in keeping with the means of the family.

(2) Any ALIEN possessing the same qualifications as above stated for Filipino nationals: Provided,

(a) that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered,

(b) that his/her country has diplomatic relations with the Republic of the Philippines,

(c) he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and

(d) that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter;

(e) that the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt

a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a

(1) FILIPINO CITIZEN permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she:

(a) is at least twenty-seven (27) years of age (b) at least sixteen (16) years older than the child

to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent:

(c) has the 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 in his/her country;

(d) has not been convicted of a crime involving moral turpitude;

(e) is 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

(f) if married, his/her spouse must jointly file for the adoption;

(g) is eligible to adopt under his/her national law; (h) agrees to uphold the basic rights of the child

as embodied under Philippine 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;

(i) 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;

(j) possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. [Sec. 9]

(2) ALIEN with above qualifications [Sec. 9]

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Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)

relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or

(3) The GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. [Sec. 7] When 16 year difference may be waived:

(a) If adopter is the biological parent of adoptee (b) If adopter is the spouse of adoptee’s parent

[Sec. 7]

Who may be adopted

(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parent(s). Sec. 8

(a) Filipino children [Sec. 3(a)] (b) Below 15 years of age [Sec. 3(b)] (c) Who are legally free, meaning children who have

been voluntarily or involuntarily committed to the DSWD [Sec. 3(f) and Sec. 8]

IRR of 2004 adds that: Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the subject of Inter-Country Adoption xxx [Sec. 26]

Venue

Petition for adoption shall be filed with Family Court of the province or city where the prospective adoptive parents reside [Sec. 6, Adoption Rule]

Either with the Philippine RTC having jurisdiction over the child, or with the Inter-country Board through an intermediate agency, in the country of the adoptive parents [Sec. 10] IRR of 2004 provides: Application shall be filed with the Board or the Central Authority or the Foreign Adoption Agency in the country where the applicant resides. In case of foreign nationals who file petition for adoption under RA 8552 or Domestic Adoption Law, the Court after finding petition to be sufficient in form and substance and proper case for inter-country adoption shall immediately transmit the petition to the board for appropriate action. (Sec. 30)

Trial Custody

Takes place in the Philippines Where adoptive parents reside [Sec. 14]

Rescission

Only upon petition of adoptee, never by adopters. However, the adopter may disinherit the adoptee. [Sec. 19]

No provision limiting act of rescission only to adoptee. In IRR, the procedure is provided for when adoption process is terminated: SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. - In the event of serious damage in the

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Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)

relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care. The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the pre-adoptive relationship. SEC. 48. NEW PLACEMENT FOR CHILD. - In the event of termination of the pre-adoptive relationship, the Board shall identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family.

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ANNEX B

HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR

MINORS (A.M. 03-04-04)

Rights involved

Right to liberty Rightful custody of the aggrieved party

Petition for the rightful custody of a minor

Situations applicable

Actual violation of the aggrieved party’s right to liberty, or rightful custody [Sec. 1]

Unlawful deprivation of rightful custody, or A minor is being kept from a parent by the other parent (e.g. which parent shall have the care and custody of a minor, when such parent is in the midst of nullity or legal separation proceedings). [Herrera. Also Secs. 2 & 20]

Party authorized to file

Party for whose relief it is intended or by some person in his behalf [Sec. 1]

Any person claiming rightful custody – this covers: (1) Unlawful deprivation of the custody of a minor (2) Which parent shall have the care and custody of a minor [Herrera]

Respondents

May or may not be an officer

Before which court or judicial authority filed

(1) RTC or any judge thereof (2) CA or any member thereof in instances authorized by law (3) SC or any member thereof [Sec. 2] (4) Special jurisdiction given to first level courts in the absence of RTC judges in a province or city (Sec. 35, BP 129) (5) In aid of appellate jurisdiction of the Sandiganbayan (RA 8249 further expanding its jurisdiction)

A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs. However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. [Sec. 20]

Contents of the petition

Signed, verified either by the party for whose relief it is intended, or by some person in his behalf and shall set forth: (PDIC) (1) That the person in whose behalf the application is made is imprisoned or restrained on his liberty; (2) The officer or name of the person by whom he is so imprisoned or restrained or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (3) The place where he is so imprisoned or restrained, if known; (4) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy or, if the imprisonment or restraint is without any legal authority, such fact shall appear. [Sec. 3]

The verified petition shall allege the following: (PRMO) (1) The personal circumstances of the petitioner and of the respondent (2) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (3) The material operative facts constituting deprivation of custody and (4) Such other matters which are relevant to the custody of the minor. The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally. [Sec. 4]

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ANNEX C

Habeas Corpus Amparo Habeas Data

Nature, scope, function

All cases of illegal confinement and detention which any person is deprived of his liberty or rightful custody of any person is withheld from the person entitled [Sec. 1] Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint.

Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity. It covers extralegal killings and enforced disappearances or threats thereof. [Sec. 1]

Involves the right to privacy in life, liberty or security violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. [Sec. 1]

Limitations

May be suspended in cases of invasion or rebellion when public safety requires it [Art. III Sec. 15, 1987 Const.]

Shall not diminish, increase or modify substantive rights [Sec. 23]

Shall not diminish, increase or modify substantive rights [Sec. 23]

Who may file

By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf [Sec. 3]

Petition filed by the aggrieved party or by any qualified person or entity in the following order: (1) Any member of the immediate

family (2) Any ascendant, descendant or

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

(3) Any concerned citizen, organization, association or institution

Filing by the aggrieved suspends the right of all others [Sec. 2]

Any aggrieved party may file a petition for the WHD However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): (1) Any member of the immediate

family of the aggrieved (2) Any ascendant, descendant or

collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity [Sec. 2]

Where filed

Granted by: (1) SC or any member thereof, on any

day and at any time (2) CA or any member thereof in

instances authorized by law (3) RTC or a judge thereof, on any

day and at any time, enforceable only within his judicial district

Filed on any day and at any time: (1) SB, CA, SC, or any justice of such

courts (2) RTC of place where the threat,

act, or omission was committed or any element occurred [Sec. 4]

Petition may be filed with RTC 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 petitioner If public data files of government offices, petition shall be filed with the

WRIT MATRIX (COMPARISON OF THE WRITS) WHC – Writ of Habeas Corpus WA – Writ of Amparo WD – Writ of Habeas Data RWA - Rules on the Writ of Amparo RWD – Rules on Habeas Data SC – Supreme Court CA - Court of Appeals SB – Sandiganbayan RTC – Regional Trial Court CoC – Clerk of Court

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Habeas Corpus Amparo Habeas Data

[Sec. 2] (4) MTC OR FIRST LEVEL COURTS in

the absence of RTC judges in a judicial region [Sec. 35 BP 129]

SC, CA, or SB [Sec. 3]

Where enforceable

If SC or CA issued, anywhere in the Philippines If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region [Sec 21, BP 129 which modified the term judicial district in Sec 2, Rule 102 into judicial region] where the judge sits

Writ shall be enforceable anywhere in the Philippines [Sec. 4]

Writ shall be enforceable anywhere in the Philippines [Sec. 3]

Where returnable

If the one that granted the writ: (1) Is the SC or CA, or a member

thereof, returnable before such court or any member thereof or an RTC

(2) An RTC, or a judge thereof, returnable before himself [Sec. 2]

If the one that granted the writ: (1) Is the SC or any of its justices,

returnable before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred

(2) The SB or CA or any of their justices, returnable before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred

(3) The RTC or any judge thereof, returnable before such court or judge [Sec. 3]

If issued by: (1) The SC or any of its justices,

before such Court or any justice thereof, or CA or SB or any of its justices, or the RTC of the place where the petitioner or respondent resides/has jurisdiction over the place where the data or information is gathered, stored or collected

(2) The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC)

(3) RTC, returnable before such court or judge [Sec. 4]

Docket Fees

Upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires [Sec. 19]

Petitioner shall be exempted from the payment of the docket and other lawful fees Court, justice or judge shall docket the petition and act upon it immediately [Sec 4]

None for indigent petitioner Petition shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from filing [Sec. 5]

Essential allegations/ Contents of petition

Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth: (1) The person in whose behalf whose

the application is made is imprisoned or restrained of his liberty

(2) Name of the person detaining

Signed and verified and shall allege: (1) The personal circumstances of the

petitioner (2) Name or appellation and

circumstances of the respondent (3) The right to life, liberty, and

security violated or threatened with violation,

(4) The investigation conducted, if

Verified and written petition shall contain: (1) Personal circumstances of

petitioner and respondent (2) Manner the right to privacy is

violated or threatened and its effects

(3) Actions and recourses taken by the petitioner to secure the data

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another or assumed appellation (3) Place where he is imprisoned or

restrained of his liberty (4) Cause of detention [Sec. 3]

any, plus circumstances of each (5) The actions and recourses taken

by the petitioner (6) Relief prayed for may include a

general prayer for other just and equitable reliefs [Sec. 5]

or information (4) The location of the files, registers,

or databases, the government office, and the person in charge or control

(5) The reliefs prayed for Such other relevant reliefs as are just and equitable [Sec. 6]

When proper

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then: the clerk of court (CoC) shall issue the writ under the seal of the court or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned (Sec. 5]

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue CoC shall issue the writ under the seal of the court or In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. [Sec. 6]

Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue. CoC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance or In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it [Sec. 7]

How and who serves

Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody [Sec. 7]

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 8]

The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply [Sec. 9]

Respondent

May or may not be an officer [Sec. 6] Respondent is a public official or employee or private individual or entity [Sec. 1]

A public official or employee or a private individual or entity engaged in gathering, collecting or storing data [Sec. 1]

How executed and returned

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: (a) the judge allowing the writ, or (b) -in his absence or disability,

Respondent files the return [Sec. 9] Respondent files the return [Sec. 10]

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before some other judge of the same court on the day specified in the writ, unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein

(c) officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof [Sec. 8]

When to file return

On the day specified on the writ [Sec. 8]

Within 5 working days after service of the writ [Sec. 9]

Same with WA [Sec. 10]

Contents of return

When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: (1) Truth of custody/power over the

aggrieved party (2) If he has custody or power, or

under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held

(3) If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity

(4) If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. [Sec. 10]

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, contain: (1) Lawful defenses (2) The steps or actions taken to

determine the fate or whereabouts of the aggrieved party

(3) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party

(4) If the respondent is a public official or employee, the return shall further state acts:

(a) To verify identity of aggrieved party (b) To recover and preserve

evidence (c) To identify and collect witness

statements (d) To determine cause, manner,

location, and time of death or disappearance

(e) To identify and apprehend persons involved

(f) Bring suspected offenders before a competent court [Sec.9]

(1) Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media etc.

(2) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (a) A disclosure of the data or

information about the petitioner, the nature of such data or information, and the purpose for its collection

(b) The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information

(c) The currency and accuracy of the data or information held

Other allegations relevant to the resolution of the proceeding [Sec.10]

Is period of return extendable?

No, not even on highly meritorious grounds.

Yes, by the court, for justifiable reasons [Sec. 10]

Is a general denial allowed?

Not allowed [Sec. 9] Not allowed [Sec. 10]

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Defenses not pleaded

If not raised in return deemed waived [Sec 10]

Effect of failure to file return

Court or justice shall proceed to hear the petition ex parte [Sec. 12]

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence [Sec. 14]

Nature of Hearing

Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day to day until completed same priority as petitions for WHC [Sec. 13]

Summary. With possibility of preliminary conference similar to the WA [Sec. 14] Hearing on chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of privileged character [Sec. 12]

Date and time of hearing

As specified in the writ [Sec. 8] As specified in the writ, not later than 7 days from the issuance of the writ [Sec. 6]

As specified in the writ, not later than 10 working days from the date of issuance writ [Sec. 7]

Prohibited pleadings

In custody of minors: a motion to dismiss, except on the ground of lack of jurisdiction [Sec. 6, Rule on Custody of Minors and WHC]

Motion to dismiss, Motion for extension of time to file opposition, affidavit, position paper and other pleadings, Dilatory motion for postponement, Motion for bill of particulars, Counterclaims or cross-claims, Third-party complaint, Reply, Motion to declare respondent in default, Intervention, Memorandum, Motion for reconsideration of interlocutory orders or interim relief orders, petition for certiorari, mandamus, or prohibition [Sec.11]

Same as WA [RWD Sec. 13]

Burden of Proof/Standard of Diligence

Clear and convincing evidence [Dizon v. Eduardo (1988)] Note: no provision in Rule but in Dizon v. Eduardo, the SC used “clear and convincing evidence”, a stricter standard than “preponderance of evidence” but less stricter that “proof

Establish claims by substantial evidence (a) if respondent is a private

individual or entity, ordinary diligence

(b) if public official or employee, extraordinary diligence [Sec. 17]

Substantial evidence required to prove the allegations in the petition [Sec. 16]

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beyond reasonable doubt.”

Presumption of Official duty

Yes. Consonant with Sec. 13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Public official or employee cannot invoke the presumption that official duty has been regularly performed [Sec. 17]

Judgment

The court shall render judgment within 10 days from the time the petition is submitted for decision [Sec. 18]

Within 10 days from the time the petition is submitted for decision [Sec. 16]

Appeal

Within 48 hours from notice of the judgment of final order appealed [Sec. 39, BP 129]

5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19]

5 working days from the date of notice of adverse judgment to the SC under Rule 45 [Sec. 19]

Consolidation of actions

Consolidated with a criminal action filed subsequent to the petition [Sec. 23]

Consolidated with a criminal action filed subsequent to the petition [Sec. 21]

Effect of filing criminal action

No more separate petition shall be filed. Reliefs available by motion in the criminal case [Sec. 22]

Same as WA [Sec. 21]

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ANNEX D

Rule 103 Rule 108 RA 9048

Applicability

Substantial Changes Substantial changes in entries in the civil registry (other than name)

Change of First Names or Nicknames Change brought about by clerical or typographical errors

Nature

Judicial Judicial Administrative

Who May File

1.The person desiring to change his name 2.Some other person on his behalf

Natural person having direct and personal interest in the correction of error in an entry in the civil register

A natural person having direct and personal interest in the change of first name or nickname in the civil register.

Where Filed

A natural person having direct and personal interest in the change of first name or nickname in the civil register.

RTC of the province where the civil registry is located

The local civil registry office of the city or municipality where the record being sought to be corrected/changed is kept. EXCEPTIONS: If the petitioner has already migrated to another place in the country, the petition shall be filed with local civil registrar of the place where the interested party is presently residing or domiciled If the petitioner is a Filipino citizen presently residing or domiciled in a foreign country, the petition shall be filed in the nearest Philippine Consulate. Rationale: It would not be practical for him, in terms of transportation expenses, time and effort, to appear in person before the local civil registrar (LCR) keeping the documents to be corrected or changed

Standing of the LCR

Not a party to the proceeding Made a party to the proceeding as a respondent

Notice requirement

No mention of notice to be sent The court shall cause reasonable notice to be given to persons named in the petition

Contents of Petition

Title: In Re: Petition for Change of Name of X, also known as Y and Z, to

(1) Facts necessary to establish the merits of the petition.

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ABC. X, Petitioner. Names or Aliases of the Applicant (must appear in the caption of the petition) Omission is fatal to the petition To allow a reader of the published petition to notice the said aliases Petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing. Cause for which the change of the petitioner's name is sought Petitioner must show a proper or compelling reason for the change of name + the fact that he will be prejudiced by the use of his official name.

(2) A showing that the petitioner is competent to testify to the matters stated.

(3) Particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made.

Form of Petition

The petition shall be signed and verified.

Verified petition (1) In the form of an affidavit (2) Verified (3) Subscribed and sworn to before

any person authorized by law to administer oaths

Procedure for Changing of Name

(1) Filing of petition for change of name.

(2) Court shall promulgate an order

fixing a date and place for hearing the petition. The date set for the hearing shall NOT be:

Within 30 days prior to an election AND

Within 4 months after the last publication of the notice.

(3) Court shall direct a copy of the

order to be published before the hearing

At least once a week for 3 successive weeks

In some newspaper of general circulation published in the province.

(4) Hearing shall be conducted.

(1) Filing of petition (2) Court shall promulgate an order

fixing the time and place for hearing the petition and cause reasonable notice to be given to the persons named in the petition. Civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding

(3) Court shall direct a copy of the

order to be published before the hearing At least once a week for 3 successive weeks In some newspaper of general circulation published in the province.

(1) Filing of petition and its supporting papers in 3 copies to be distributed to: (a) The concerned city or

municipal civil registrar or the consul general

(b) The Office of the Civil Registrar General

(c) The petitioner (2) The City or Municipal Registrar or

the Consul General shall post the petition in a conspicuous place for ten 10 consecutive days after he finds the petition and its supporting documents sufficient in form and substance.

(3) The petition shall be published at

least once a week for 2 consecutive weeks in a newspaper of general circulation.

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The SolGen or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

(5) Judgment granting or denying the

change of name. (6) Copy of judgments shall be

furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

(4) File opposition Within 15 days from notice of the

petition or from the last date of publication

(5) Hearing shall be conducted. Court may expedite the proceedings

and also grant preliminary injunction for preservation of rights of the parties

(6) Judgment granting or denying the

change of name. (7) Copy of judgments shall be

furnished the civil registrar concerned who shall annotate the same in the records

(4) The City or Municipal Registrar or

the Consul General shall render a decision not later than 5 working days after the completion of the posting and/ or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within 5 working days from the date of the decision.

Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.

(5) The Civil Registrar General shall,

within 10 working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection.

Grounds for objection (a) The error is not clerical or

typographical (b) The correction of an entry or

entries in the civil register is substantial or controversial as it affects the civil status of a person

(c) The basis used in changing the first name or nickname of a person does not fall under one of the valid grounds.

If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period, such decision shall become final and executory. (6) The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. (7) Upon receipt of the notice thereof,

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the city or municipal civil registrar or the consul general shall notify the petitioner of such action. (8) Appeal. The petitioner may seek

reconsideration with the civil registrar general or file the appropriate petition with the proper court.

Opposition

Any interested person Civil registrar and any person having or claiming interest under the entry whose cancellation or correction is sought

N/A NOTE: The Civil Registrar General is given the power to object to the decision of the Local Civil Registrar

Grounds for Change of Name

Republic v. Hernandez: Valid Grounds for Change of Name (1) The name is ridiculous, tainted

with dishonor or extremely difficult to write or pronounce.

(2) Change results as a legal consequence of legitimation

(3) The change will avoid confusion. (4) A sincere desire to adopt a

Filipino name to erase signs of former alienage (Ang Chay vs. Republic, 1970)

(5) Having continuously used and been known since childhood by a Filipino name, having been unaware of alien parentage (Uy vs. Republic, 1965)

Entries subject to cancellation or correction: (1)Birth (2)Marriage (3)Death (4)Legal separation (5)Judgment of annulment (6)Judgment declaring marriage null

and void (7)Legitimation (8)Adoption (9)Acknowledgment of natural

children (10)Naturalization (11)Election, loss or recovery of

citizenship (12)Civil interdiction (13)Judicial determination of filiation (14)Voluntary emancipation of minor (15)Changes of name

Sec. 4: Grounds for Change of FirstName or Nickname (1) The first name or nickname is

ridiculous, tainted with dishonor or extremely difficult to write or pronounce.

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community.

(3) The change will avoid confusion.