Remedial Law

Bar 2011 Notes

Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Filing fees are not necessary.
Roland Glenn T. Tuazon
Ateneo de Manila University

TABLE OF CONTENTS:

1.
2.
3.
4.
5.
CIVIL PROCEDURE
a. POST-JUDGMENT REMEDIES
b. PROVISIONAL REMEDIES
c. SPECIAL CIVIL ACTIONS
CRIMINAL PROCEDURE
EVIDENCE
SPECIAL PROCEEDINGS
ENVIRONMENTAL CASES


PART I: CIVIL PROCEDURE
Jurisdiction

Stuff to take note of in jurisdiction:




What is the definition of jurisdiction?
Jurisdiction over the case or the subject matter? (Subject matter
jurisdiction)
Jurisdiction over the person or the defendant?
Know the rules on filing fees.

N.B. vis-à-vis for criminal cases:


Definition – the same, as conferred by law, except you have to add
that venue is jurisdictional. Territory is intertwined with jurisdiction,
unlike in civil cases, where parties can agree on venue or it can be
subject to waiver.
Jurisdiction over the offense. This is essentially the same as
jurisdiction over subject matter.
1
What is the definition of jurisdiction?
o
The power of the court to hear, try, or decide the case
o
As conferred by law
How will the court know that it has jurisdiction?
o
From the allegations of the complaint.
o
What if the defense interposes claims or defenses
outside the jurisdiction of the court?

It does not divest the court of its jurisdiction;
otherwise, jurisdiction will be at the mercy of the
defense.
Where do you take jurisdiction over the case?
o
Conferred by law as well.
o
Study BP 129, amended by RA 7691.

Do not assume that RA 7691 tells all. There are
other laws too.
Distinguish jurisdiction from venue:
o
Jurisdiction is the power to hear and decide a case. Venue is
where the action is instituted and tried.
o
Venue can be waived; jurisdiction, not.
Distinguish errors of jurisdiction from errors of judgment:
o
When a court takes cognizance of a case over the subject
matter of which it has no jurisdiction, it commits an error of
jurisdiction. It is reviewable by certiorari.
o
When a court makes errors in the exercise of such
jurisdiction, it is just an error of judgment, reviewable by
appeal.
What is the jurisdiction of the RTC?
o
1. Right/title/interest over real property, where value is:
Value is > 20K (OMM), > 50K (MM)

Claim for ejectment due to unpaid rentals of
over 400K. Which has jurisdiction?

MTC.
Ejectment is always under MTC,
regardless of the claim over unpaid rentals.

Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
o
o
o
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?

RTC, based on assessed value (not FMV)
which is over 50K.
“Recovery of
possession” does not necessarily mean
ejectment (ex. Accion publiciana).

Value is determined by assessed value if it
involves right, title, or interest

Ouano case?

There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
2. Amount incapable of pecuniary estimation

Examples: rescission, reformation of contract,
specific performance

Is
expropriation
capable
of
pecuniary
estimation?

Expropriation is always filed with the RTC.
Though the subject matter is capable of
pecuniary
estimation,
the
action
is
exclusively instituted in the RTC.

What about declaratory relief?

RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality.

There is no such thing as determination of
value; just a determination of validity.

What about support?

Even if its amount can be determined, the
law confers it to the Family Courts.

Foreclosure of mortgage?

Two views: one says that it’s always with
the RTC, because it only covers the security
of the property.
The original action is
always for recovery of money.

The other view is that it must be governed
by the value of the security.
3. Family cases/marriage

Includes support, annulment, nullity, etc.
4. Juvenile/agrarian case
5. Other claims, where claim exceeds 300K (OMM) or 400K
(MM)

The original text gives lower values. When was
it adjusted?

Original costs took effect March 25, 1994

1999 – adjusted OMM from 100K to 200K

2004 – adjusted both MM and OMM to 400K
and 300K respectively

Always take note of the word “exceeding” so the
exact amount is for the lower court.
o
6. Probate of will, determination of inheritance – same
amounts

Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?

No.
The rules on summary procedure
explicitly exclude probate proceedings.

Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.

So the “not exceeding 100K (OMM) and not
exceeding 200K (MM)” only applies for
summary proceedings.
But it explicitly
excluded probate proceedings.

What is the jurisdiction of the MTC over small
claims?

Not exceeding 100K.
o
7. Admiralty cases – same amounts
o
8. All cases not within the exclusive jurisdiction of any court,
tribunal, person, or body exercising judicial or quasi-judicial
functions
In determining the 300K/400K, can you include damages,
interest, attorney’s fees, litigation costs, etc?
o
NO. Only limit the amount to the demand or the claim. The
“totality rule” only covers purely money claims, and does not
include incidental claims.
o
But remember that there can be a principal action for
damages, in which the amount of damages claimed
determines the amount. This is not covered by RA 7691, this
is covered by 95-9-94.
o

2

Small claims
o
What is the amount?

Not exceeding 100K.
o
Is there a distinction between OMM and MM in small
claims?

No.
o
What should be included in the 100K?

The claim itself.

Exclusive of damages

What if the principal action is for damages?

Does not apply. Actions for damages are
not covered by small claims actions,
because these have to be ascertained.
These are not akin to sum-of-money cases.
o
Does it cover quasi-delicts?

Yes. (Covers: fault/negligence, quasi-contract, or
contract)
o
What if it arises from commission of an offense?

Yes – for the civil aspect of such (fault/negligence).

Just remember that when you file a criminal case,
the civil aspect is likewise filed (unless reserved,
waived, or filed ahead). So it cannot be the subject
of small claims.

BUT if it is filed ahead or reserved, then it can be the
subject of an action for small claims.
o
What, therefore, are the actions covered by small
claims?

A. Money owed under:

Contract of lease

Contract of loan

Contract for services

Contract of sale

Contract of mortgage

B. Damages from:

Fault or negligence

Quasi-contract

Contract

C. Enforcement of a barangay amicable settlement
o
Do you need a lawyer to file the complaint? Do you
need to prepare a regular complaint?
No need for a lawyer. There is also a standard form
provided.
What must be filed in the MTC to commence the claim?

1. Accomplished and verified Statement of Claim
(Form 1-SCC)

2. CNFS

3. 2 photocopies of the actionable document

4. Affidavits of witnesses and other evidence

Is joinder allowed?

Yes, as long as the aggregate amount
doesn’t exceed 100K
What is the next step?

1. Court may dismiss the small claim

2. Otherwise, it issues summons on the same day
directing respondent to submit a verified response

3. Court also issues a notice to both parties directing
them to appear for hearing on a specified date with
warning against unjustified postponement.

4. Respondent submits verified response within 10
days from receipt of summons, with photocopies of
documents and affidavits of witnesses.

What if there is no response?
o
Court grants the claim.
o
But may reduce the amount of
damages claimed, if excessive.
When is a counterclaim allowed – requisites?

1. It is within the coverage of the small claims court,
exclusive of interests and costs

2. Arises from the same transaction or event as
plaintiff’s claim

3. Does not require joinder of third parties

4. Not subject of another pending action

What if the defendant fails to raise such
counterclaim?

It is barred.
How will you address the problem where the claim is
for sum of money not exceeding 100K, and it is outside
MM?
There is an overlap here between summary
procedure and small claims procedure.
Which is
preferred?

This is still open for discussion, and is not yet clear.

o
o
o
o
3
Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court and court of summary procedure.
o
How is the hearing conducted?

The judge first attempts to arrive at mediation,
conciliation, early neutral evaluation, or any mode of
JDR.

Failing that, the JDR judge also proceeds to hearing,
which must terminate within 1 day.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o
1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o
2. Actions affecting ambassadors, other public ministers, and
consuls
What is the MTC jurisdiction?
o
Just the opposite of everything in RTC
o
Then just add ejectment/unlawful detainer
o
How do you know whether it’s ejectment/UD or claim
over real property or a title therein?

If the issue is just possession, it’s E/UD.
If it
involves rights of the parties to the property, then
it’s not.
What is the jurisdiction of the CA?
o
It has both original and appellate jurisdiction.
o
Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment of RTC

N.B. Its original jurisdiction is exclusive as regards
annulment of judgment of RTC
o
Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
What is the jurisdiction of the SC?
o
Also both original and appellate jurisdiction.
o
Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS –

Actions against members of the Bar [concurrent with
IBP];

actions against ambassadors, public ministers,
consuls, etc.;





constitutionality of treaties, laws, proclamations,
etc.;

declaratory relief only when there is a question of
constitutionality
o
Appellate:

decision of CA, decision of CTA en banc, decision of
SB, decision of RTC on pure questions of law;

REMEMBER this motherhood statement: the only
way to go up to the SC is for petition for review on
certiorari (RULE 45).
This applies to civil and
criminal cases, except if the penalty in a criminal
case is death, RP, of life imprisonment.
Jurisdiction over the person of the defendant:
o
1. Voluntary appearance

By submitting to the jurisdiction of the court; ex.
Appearing in court or filing an answer or filing motion
for extension of time without disputing the court’s
jurisdiction
o
2. Proper service of summons

Rule 14
Filing fees:
o
Rule #1: payment of filing fees is jurisdictional in civil cases
o
Rule #2: how does the court determine filing fees?

You include interest, damages, attorney’s fees etc. –
pay everything that you allege for court fees

But for jurisdictional purposes, just the principal
claim
o
Rule #3:

Sun Insurance

Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o
Rule #4:

Alday v. FGU Insurance

Permissive counterclaims require docket fees

The claim does not arise from the principal
action, but involves the same parties. This
could easily have been filed separately.

Compulsory counterclaims do not require docket fees



4
BUT read Korean Technologies case of 2009 – this
is how you answer the question whether compulsory
counterclaims require filing fees

From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.

But in practice, based on an SC Resolution,
the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.

Alday:
Payment
of
filing
fees
for
compulsory counterclaims is not required.
But you have to take note of Korean
Technologies now
Lien on the judgment?

If there are damages granted to the complainant,
but there has been lack of payment of filing fees.
The payment of docket fees is a lien on the
damages.

Also applies if damages are awarded in the judgment
but not specified in the pleading.

What if the claim has already ripened upon the
filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis
for a lien on the judgment?

Proton Pilipinas v. Banque Nacional

There was a claim that has ripened but was
not included, and there were interests that
would ripen once the action is pending.

SC said that a claim ripened during the
pendency of the case, it can be a lien on the
judgment.

But if you did not allege it, the court cannot
grant an award because you did not pay
docket fees.
What is the rule on deficient or insufficient payment of
filing fees?

Rivera v. Del Rosario

You have to pay full filing fees. The deficiency must
not be based on the fault of complainant. But if the

o
o



5
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court
makes a deficiency assessment.

There must be no intention to defraud.
Planters v. Fertiphil:
o
Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
Thornton:
o
Husband filed for habeas corpus in RTC Makati to recover
child from wife
o
What are the two kinds of habeas corpus?

N.B.: there are two kinds of habeas corpus –
custody of minors and regular habeas corpus in the
Rules of Court
o
RTC Makati dismissed the case because the child was
allegedly in Basilan.
o
What is the effectivity of writs of habeas corpus?

N.B.: Effectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SC – everywhere.
o
Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor
Habeas Corpus cases.
o
HELD:
Can file with CA.
It has jurisdiction.
SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o
But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
Herrera v. Bollas
o
Ejectment case (1 year period). Filed within the proper
period, but the complaint was amended to add
additional defendants beyond the 1 year period. Does
the court still have jurisdiction?

HELD: MTC still had jurisdiction for ejectment (based
on original complaint.)
o
After the lapse of the year period for ejectment, has the
claim prescribed?




No. N.B. One year period is not prescriptive period.
You just file action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
This rule applies to money claims against an estate,
but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o
How do you impugn a judgment?

Lack of notice

Lack of jurisdiction

Collusion

Fraud
o
What is the rule on Arbitral awards?

These must be should be enforced or recognized

An arbitral award is not a foreign judgment (Under
ADR Rules)
Zamboanga Barter Goods:
o
N.B. Rule 65 is not an appeal. It is a special civil action.
o
Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o
But when you talk about appeals, no need to consider
hierarchy. The law already makes a decision for you.
Can a court lose jurisdiction after acquiring it?
o
Generally, no.
o
Exceptions:

1. Subsequent law provides prohibition for continued
exercise of jurisdiction

2. Law penalizing the act is repealed by a
subsequent law

3. Accused deprived of constitutional right

4. Proceedings are terminated, abandoned, declared
void

5. Appeal has been perfected

6. Curative law
What is the principle of exercise of equity jurisdiction?
When the court is called upon to decide a particular situation
and release the parties from correlative obligations, but if it
would result in adverse consequences to the parties and the
public, the court would go beyond its powers to avoid
negative consequences in the release of the parties

Oca:
o
Repetition of Tijam v. Sibonghanoy – estoppel by laches.
After active participation in a case, you cannot question the
court’s jurisdiction anymore.
o
Went up to the SC through Rule 43 (appeal to CA from a QJA)
o
But what is the general rule?

Question of jurisdiction can be raised even for the
first time on appeal, as long as estoppel by laches
does not apply.

One cannot question jurisdiction which he himself
invoked. (Ex. obtaining affirmative relief against the
other party and then after failing to obtain that
relief, question the court’s jurisdiction)
Usually decisions of QJA go up to the CA under Rule 43. What
are the exceptions?
o
1. HLURB decisions, as provided in charter, appealable to the
Office of the President
o
2. CTA decisions, under amended rules, appealable to the CTA
en banc, then SC
o
3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o
4. OMB decisions – go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
Mijares:
o
Which court has jurisdiction over enforcement of
foreign judgments?

RTC, because enforcement of foreign judgments are
incapable of pecuniary estimation.

ALWAYS, regardless of amount of judgment, since it
is not based on the amount of the claim.

In this type of action, you don’t need to prove the
facts again, etc.
o
Marcos’s group that docket fees must be based on the
value/amount of the claim, which is up to the Billions.
Is this correct?



Jurisdiction of special bodies and courts

6
CHR:
o
Can it review court decisions?

No; separation of powers
Can it issue injunctions?

No. Just fact finding and investigative.
What is the extent of the labor arbiter’s power on claims for
damages by employees?
o
Action for damages incident to dismissal is part of LA’s
powers.
o
BUT NOT if the damages are based on quasi-delict not arising
from ER-EE relations.
What is the remedy for annulment of NHA awards?
o
With the Office of the President.
o
And then from there, Rule 65.
What are the cases under HLURB jurisdiction?
o
1. Claims of condo buyers against project owner, developer,
or dealer
o
2. Specific performance of contractual and statutory
obligations filed by condo buyers against same parties
o
Does HLURB’s jurisdiction cover actions filed by the
project owner, developer, or dealer?

No. It’s always the other way around.
COMELEC:
o
When can the SC review COMELEC decisions?

Only when there is GADALEJ
o
Can the COMELEC issue writs of certiorari, prohibition,
or mandamus?

No.
What is the jurisdiction of Family Courts?
o
1. Criminal cases where one or more of the accused is below
18 or one or more of the victims was a minor
o
2. Petition for guardianship, custody of children, habeas
corpus for custody of children
o
3. Adoption of children and revocation
o
4. Annulment, nullity, and actions on status and property
relations of married people
o
5. Support and/or acknowledgement
o
6. Summary judicial proceedings other the FC
o
7. Declaration of status of children (abandoned, dependent,
neglected, etc.) and actions on parental authority
o
8. Constitution of family home
o
9. Cases against minors under the DDA
o
10. Violation of Child Abuse Act (RA 7610)

o








7
o
11. VAWC cases
What are the provisional remedies the Family Court can issue?
o
Restraining order against accused or defendant if there is
finding of abuse
o
Temporary custody over children
o
Support pendente lite
What is the Katarungang Pambarangay Law?
o
There must be settlement of disputes between individual
residents of the same city or municipality, through mediation,
arbitration, or
conciliation, before
the
Katarungang
Pambarangay. Compliance with this is a condition precedent
to filing a complaint or information before the fiscal or court.
What are the cases over which the lupon can take cognizance
of?
o
ALL cases between parties residing in the same municipality
or city.
o
What is determinative, residence or postal address?

Residence, which is actual place which one inhabits.

Must be more or less permanent, not merely
transient.

But it need not be domicile or legal residence;
physical presence is controlling.
o
X filed a case against Y, who lived in the same
barangay, and Z, who didn’t. Is barangay conciliation
needed?

No. At least one respondent lived elsewhere.
What are the exceptions to this rule?
o
[Nature of a party]
o
1.
One
party
is
the
government
or
any
subdivision/instrumentality
o
2. One party is a public officer or employee and the dispute is
re: official functions
o
3. There is no private offended party
o
4. Complaint against juridical entities
o
[Nature of complaint]
o
5. Offenses punishable by imprisonment of more than 1 year
or fine exceeding 1000 pesos
o
6. Labor disputes arising from ER-EE
o
7. Disputes arising from CARL
o
8. Action to annul judgment upon compromise
o
[City/municipality requirement]
9. Dispute is re: real properties in different cities or
municipalities

Can be waived by the parties by consenting to
submit the case to the lupon first
o
10. Parties reside in barangays of different cities or
municipalities

Except where the barangays adjoin each other and
the parties consent to submit the case to the lupon
o
[Equity]
o
11. As determined by the President in the interest of justice,
or upon recommendation by the SOJ
o
12. Where urgent legal action is necessary to prevent
injustice, specifically:

A. criminal case where the accused is under custody
or detention

B. habeas corpus filed by one illegally detained

C. actions with provisional remedies

D. action may be barred by statute of limitations
Where are objections raised?
o
For objections to referral to the lupon, raise before the
punong barangay – else, waived
o
Failure to refer to lupon may be raised as a ground for motion
to dismiss – else, waived
What is the procedure before the lupon?
o
1. Pay filing fees and submit complaint
o
2. Within the next day the lupon summons respondents and
complainants for mediation
o
3. Failure of mediation within 15 days from first meeting:
constitute the pangkat
o
4. Pangkat has 15 days to resolve the dispute from when it
convenes, extendible for another 15 days
o
Who appears before the lupon or pangkat?

Just the parties, without counsel or representative,
except minors who may be assisted by next of kin
who are not lawyers
What is the form for settlement needed?
o
1. In writing
o
2. In a language known to the parties
o
3. Signed by them
o
4. Attested by lupon chairman
o
When may it be executed by the lupon?



Within 6 months from date of settlement.
If it exceeds 6 months, then it can be enforced by
action in the MTC.
Within what period may the settlement be repudiated?

10 days, on the ground of vitiation of consent.


o
o
Actions






8
What are the kinds of actions?
o
Civil

Protection or enforcement of a right, or prevention or
redress of a wrong

Two types?

Ordinary

Special
o
Criminal

Once the information is in court, only then does it
become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o
Special proceedings

Establishes a right, status, or condition
When is a civil action commenced?
o
Upon filing of original complaint in court.
o
For additional defendants later impleaded, on the date of
filing of the later pleading.
Are civil actions always based on a cause of action?
o
No.
Distinguish ordinary civil action from special civil action?
o
There is Cause of Action in ordinary civil action.
o
Ex. Special Civil Action – like declaratory relief does not need
cause of action
Requisites of cause of action?
o
1. Right of one party
o
2. Obligation of the other to respect
o
3. Breach – MOST IMPT!
Distinguish cause of action from right of action:
o
Right of action is the right to commence and prosecute an
action to obtain the relief sought. Elements:

1. Existence of cause of action

2. Performance of all conditions precedent to bring
the action
3. Right to bring an maintain the action must be held
by the person instituting it
What is the test of sufficiency of a complaint?
o
Whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with
the prayer in the complaint
o
Determined by the facts alleged, not defense alleged
What is splitting of a cause of action?
o
Dividing one cause of action into different parts and making
each part a separate complaint
o
Test: how many wrongs or breaches are there?
o
Is splitting cause of action a ground for MTD?

No it is Res Judicata and Litis Pendentia
o
Is the rule against splitting of causes of action
absolute?

No. Except: if the reliefs sought for are cognizable by
different tribunals. An example is an Ejectment suit
cannot include recovery for unpaid telephone,
electric, and water bills, which must be filed in a
separate action.
Can there be joinder of cause of action?
o
Yes.
o
BUT it is not mandatory.
Does there have to be just one breach or numerous violations?
o
Numerous.
o
For every cause of action, there is one breach.
o
For as many breaches as there are, there are as many causes
of action.
If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) – are there multiple causes
of action?
o
No. Just one, because claims for damages are incidents of
the one breach (failure to pay).
There are three promissory notes, with amounts of 50K, 100K,
and 200K, and there is just one loan. There was failure to pay.
How many causes of action do you have?
o
Three PNs, three causes of action.
Can there be joinder of alternative causes of action?
o
Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
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9
If you join cause of action should it arise from the same series
of transactions, or can it be totally unrelated?
o
Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o
Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
o
Scenario 3: XYZ against A (multiple plaintiffs). Can only join
the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
Can you join ordinary civil actions with special civil actions?
o
No.
Can you join two special civil actions?
o
No. Because they have their own special rules.
Can you join recovery of sum of money and ejectment?
o
No. Ejectment is summary proceeding, so it has its own
rules.
What is the totality rule?
o
When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o
But you cannot do this when not all are for sums of money.
o
When does the totality rule apply?

1. Single plaintiff with multiple causes of action
against the defendant

2. Multiple plaintiffs with separate causes of action
against the defendant join in a single complaint
o
X’s claims against Y are both for claim of ownership for
real property: property 1 is assessed at 49K, and
property 2 is assessed at 15K and both are in manila.
Can X file in the RTC?

No. While the total exceeds the 50K threshold in
Manila, neither property falls within RTC jurisdiction
so the action cannot be filed there.
There is a sum of money claim and recovery of property in
Cavite. Can you join the action in Cavite?
o
Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the
property (real).
N.B. as well that venue is not jurisdictional in civil cases,
unlike criminal cases. Note as well that venue is waivable.
o
Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of
improper venue. FOLLOW THE GENERAL RULE: The higher
court absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o
In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o
What happens to the balance?

It’s lost. So it’s better to file a separate action in this
scenario.
Is misjoinder of cause of action a ground for its dismissal?
o
No, it will NOT cause dismissal of the principal action.

It is severed and these proceed with separately.

Although there can only be separate proceeding
when there is separate filing.
o
The court is not duty-bound to proceed with it, especially
when it appears that it has no jurisdiction.
What is a special civil action?
o
Covered by special rules.
Distinguish actions in rem, actions in personam, and actions
quasi-in-rem:
o
Action in rem is one instituted against the whole world.
o
Action in personam is one against a definite defendant. It is
intended to subject the interest of the defendant on a
property to an obligation or lien.
o
Action quasi-in-rem –

When jurisdiction over the person cannot be acquired
(usually, non-residents) and instead, jurisdiction
over the res is acquired, although the owner is still
named as defendant, unlike true cases in rem

Ex. by attaching the property of the nonresident

The relief granted can only be limited to the res
because there is no jurisdiction to grant a personal
judgment

If the person appears, it becomes an action in
personam. If the person does not, jurisdiction is
limited to the property

o
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10
What are personal and real actions?
o
1. Real action is one affecting title to or recovery of
possession or partition, condemnation, or foreclosure of
mortgage on real property
o
2. Personal action covers all others

Specific performance for delivery of real property is a
personal action
What are the tests to determine the nature of an action?
o
1. Ultimate objective test –

If the ultimate objective is to recover real property,
it is a real action
o
2. Allegations and prayer test –

The allegations of fact and relief prayed for
determine the nature of the action
What is a local action?
o
One founded on privity of estates only and there is no privity
of contracts
What is a transitory action?
o
One founded on privity of contracts between the parties
Atlantic Erectors:
o
Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards
the property.
o
A notice of lis pendens will only lie if it is a right, title, or
interest over real property. Outside of this, you cannot avail
of a notice of lis pendens.
Diaz:
o
Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
PDIC:
o
The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v. Natanauan:
o
There is no res judicata between recovery of possession and
nullity of deed of sale.
o
Requisites of res judicata?




A) Former judgment final
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of
action

Parties

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What is “sufficient age and discretion”? Recent
ruling says age of majority.

Should not be a transient. Must reside therein.
Can a foreign corporation sue and be sued?
o
If it’s an isolated transaction, a foreign corporation can sue
and be sued.
o
If it’s doing business but not licensed, it CANNOT sue, but can
be sued.
o
If it’s doing business and is licensed, it can sue and be sued.
Service of summons to a domestic corporation?
o
Rule 14, Sec 11: president, managing partner, general
manager, corporate secretary, treasurer, in-house counsel
How do you serve summons to a foreign corporation?
o
Resident agent – one named to receive summons
o
Representatives and officers found in the Philippines (if it has
a branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro
Boys)
o
No separate juridical existence.
o
They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o
They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
How do you serve summons to a non-juridical entity?
o
To anyone or person in charge of the office.
Who are those authorized by law? Give examples.
o
Political parties
o
Labor unions
o
Archdiocese
o
Estate
How do you serve summons?
o
Depending on the entity – they have different rules.
Can you serve summons to a natural person in prison?
o
Yes. Serve it to the warden.
For public corporations?
o
Province – executive head (governor)
o
City – city mayor
o
Municipality – municipality mayor
Who is a real party in interest?

Who can be parties to an action?
o
Natural persons
o
Juridical persons
o
Those authorized by law
What is the general rule?
o
All those with capacity can be a party.
o
For natural persons, that is the age of majority.
Can a six year old boy be a party?
o
Yes, but with assistance of parent, guardian, or guardian-adlitem.
o
A minor can sue, a minor can be sued if assisted.
What is the rule on married parties?
o
Sue and sued jointly.
o
What are the exceptions?

Judicial separation of property

Abandonment

Exclusive property of spouses

Involving practice of profession
What if the natural person is incapacitated?
o
Can sue and be sued, but must be assisted.
o
What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?

No. Sec. 18 provides that the court will provide
assistance.
When can we say that a juridical person has capacity?
o
Duly incorporated and registered with the SEC.
[Mild segue into summons] If the defendant is a natural person,
how do you serve summons?
o
Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The “James Yap” rule – they
tried serving it to him in Araneta)
o
If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.
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11
A party who stands to be benefitted or prejudiced by the
judgment.
Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o
The law does not limit it to plaintiffs only – it uses “party” as
a generic term, so it can encompass any party impleaded, if
he will benefit or be injured.
Does this concept of real party in interest apply to all cases?
o
No. The concept of real party in interest will only apply to
private suits.
o
Does it apply to a taxpayer suit?

No. Locus standi applies here.
o
Does it apply to criminal cases?

[Not answered, but I think not]
o
What is the difference from legal standing/locus
standi?

This is from public suit filed by a private party.
There is a broader policy concern here, even if there
can be benefit or injury as well.
o
A Congressman does not believe in the act of the
President, so he questions it as part of his legislative
prerogative. Is he a RPII?

No. Locus standi applies as well.
Thus, differentiate RPII from locus standi:
o
Locus standi pertains to acts of government. By reason of
this act, you suffered injury.
o
You do NOT use legal standing in private suits. Only in public
suits.
Who is a necessary party?
o
A) They are not indispensable, B) but ought to be joined if
one needs complete determination of the case.
Who is an indispensable party?
o
If not impleaded, there can be no final determination.
o
N.B. The codal does not use the word “complete.” So they
are compulsorily joined.
What if there is a suit against joint debtors?
o
The other parties not sued are necessary parties.
o
Can you sue one of them only?

Yes. The court can issue a valid judgment, although
not complete.
o
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Can you then proceed against the other one, though
not impleaded at first?

Yes.
What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.
o
Neither necessary nor indispensable.
o
Can you sue X only?

Yes.
o
Can there be judgment?

Yes, because the obligation is joint and several
(solidary).
o
Can you sue Y later on, having recovered from X?

No, because you recovered already.
o
Can you sue at the same time?

Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o
Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing
X?
o
No.
Y is a mere possessor.
The court cannot render
judgment without impleading X. X is an indispensable party
in this case.
What is the failure of failure to implead?
o
If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead.

BUT if there is an order to implead by the court and
there is failure to comply, there is a waiver of claim.
o
If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo).

If despite this order to implead, the plaintiff did not
comply, the case should be dismissed.
o
What if the court did not notice non-joinder, and thus
did not order to implead the indispensable party, and
renders a decision?

The judgment is null and void.
What is a class suit?
o
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12
One where the subject matter of the controversy is of
common or general interest to many persons so numerous
that it is impracticable to join all as parties
o
What is the rule?

The court will allow a number of them sufficiently
numerous and representative to fully protect the
interests of all to sue or defend on behalf of all
o
What is the right of an individual party in interest?

May intervene to protect his individual interest
When is there substitution of parties in a civil case? There are
three.
o
1. Death

Who should die?

Any party. The law does not distinguish.

This is the most common.
o
2. Change of holder of public position (death, resignation,
removal, cease to hold position)

This is a very limited application, since it just applies
to public officers.
o
3. Transfer of interest
What are the requisites of substitution by death?
o
1. A party dies
o
2. The pending action is not extinguished by reason of death
(IMPT)
o
Why does the law need to say this?

Because there are actions that are extinguished by
death.
Examples are actions that are purely
personal to the party

Give examples.

Ex. Contract for Michael Jackson to sing in a
party.

Ex. Receipt of a widow of support. When
she dies, the support from widower’s estate
is gone.
What is the duty of the counsel after death?
o
1. Give notice of death of the party within 30 days.

When is the 30 day period counted?

From the FACT of death, and not from the
knowledge thereof.
o
2. Give names and addresses of the legal representatives

Who should be legal representatives?

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o
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13
Legal heirs, administrator, or executor
N.B.
The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).
o
3. Court orders substitution and for the substitute to appear
There is action of A and B against C, D, and E. What if E dies?
o
The counsel of E names a substitute. The court will then act
accordingly.
Same facts. However, there was no successful substitution
(i.e. the duties were not complied with). What happens?
o
There can be a valid judgment, but only against C and D.
o
There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C
and D? Is there a need for substitution?
o
There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally E’s heirs as
well does not change the result.
o
This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by
this improper “automatic” substitution.
o
What is the effect if E is necessary?
If E is
indispensable?

Relate the provisions above. If necessary, you can
subsequently file a suit against E’s heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D.
What if no legal representative is named by the counsel for the
deceased party or the one named fails to appear?
o
The court may order the other party to procure the
appointment of an executor or administrator for the estate of
the deceased.
o
The costs for appointment may be recovered by the
appointing party.
What are the requisites for substitution of public officer?
o
1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
2. Successor adopts, continues, or threatens to continue the
action sued against
o
3. There is substantial need to continue the action
Substitution is not automatic. What are needed to be done to
substitute the new public officer?
o
1. Give notice to the new public officer
o
2. Opportunity to be heard for the new officer

Mere fact that he is inclined to continue the action of
the predecessor is not enough
Give an example of transfer of interest.
o
A sues B for judgment for sum of money based on contract.
B assigns the contract to C and C accepts.
o
Can the case continue against B despite the transfer of
interest?

Yes.
o
Can the court order that C be impleaded?

Yes. But there is no substitution here. C is just
joined.
o
How then can there be substitution?

The court has to order a substitution, not mere
impleading. BOTTOM LINE: there has to be a court
order.
In case of death of a defendant in a contractual sum of money
case, will there be substitution? (VERY IMPORTANT)
o
Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o
This is the special rule for contractual sum of money cases.
o
Ratio for this?

Because you ultimately deal with the executor or
administrator anyway.

But it’s wrong to say there is substitution, because
the law does not mandate it.
o
This position is further supported by Rules 86 and 87.
o
What are the requisites for this rule to apply?

1. The DEFENDANT must die

2. It must be a sum of money case based on
contract
o
What if the plaintiff dies?

The general rule will apply, even if it’s a sum of
money case.

o
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Indigents – Algura v. Local Government of Naga: Resolves the
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o
If the indigent fits within the parameters set by Rule 141,
Sec. 19, then the court must declare him to be an indigent.

What is the Rule 141 requirement?

Gross income + family income does not
exceed twice of monthly minimum wage

And owns real property whose FMV is less
or equal to PHP 300K
o
If he doesn’t, he falls under Rule 3, Sec. 21 and must apply
for indigent status.
(“Indigency test”)
Here, the court
exercises discretion as to whether you are an indigent or not.
o
So can a person owning real property with FMV of PHP
300,001 be declared an indigent?

Yes, but under the indigency test.
If you are declared an indigent, you do not pay filing fees. But
what happens when there is a judgment?
o
There is a lien, as regards filing fees.
What is the rule on stenographic notes?
o
It is free. There is no lien on the judgment.
What happens when the court finds out you are not an
indigent?
o
The court can require you to pay.
o
What if you refuse to pay?

The court can order execution.
o
What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply
with an order of the court.
When does the court in its discretion require the Solicitor
General to be heard in person or through a representative?
o
When the action involves validity of a law, treaty, ordinance,
EO, PD, or rules and regulations.
Venue

14
What is the appropriate venue for:
o
1. Real actions – where the real property is found
o
2. Personal actions – residence of (principal) plaintiff,
residence of (principal) defendant, or wherever a non-resident
may be found
3. Against non-residents and (a) the action affects the
personal status of the plaintiff or (b) any property of the
defendant in the Philippines –

Residence of plaintiff

Or where the non-resident’s property may be found

N.B. I suppose this pertains to the two situations,
respectively
Do not make the mistake of confusing venue and jurisdiction in civil
procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
file it is different.
There was an agreement to develop a piece of land in Tanay,
Rizal to become a memorial park. The duty of the owner (living
in Quezon City) of the piece of land is to provide property. The
duty of the developer (located in Pasig) is to dig up the land,
put drainages, etc. The owner of the land died, and the heirs
are now substituting for their father. They want to rescind the
agreement to develop. Where do they file?
o
There are two steps in venue problems. First, determine: is
it a real action or a personal action?

It’s a personal action.
It involves rights and
obligations of parties, although the subject matter
involves land.
o
Where do you file it?

At the option of the plaintiffs.
Either in their
principal residence (Quezon City) or the defendant’s
(Pasig)
o
Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary
estimation (rescission)
Aileen Marcos case:
o
In cases where there are several plaintiffs and defendants,
the codal provides the word “principal” before plaintiff and
defendant, so that the plaintiffs will not file the case before
far-flung or inconvenient areas.
o
In this case, Aileen Marcos is filing a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She filed in Batac.
o
HELD: Should have filed in Makati, because she is the
principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
o




Extrajudicial foreclosure of mortgage is NOT a judicial action.
It’s not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o
But the mere filing and payment of fees (for multiple
properties in various areas) can be paid in one office, as long
as it can be established that it covers all areas. But the
actual sale will only be done in the place where the properties
are located.
What about judicial foreclosure?
o
Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o
But if it is for collection of a sum of money, file it as a
personal action.
Where do you file an action for nullity of marriage?
o
RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
What should be your first consideration? What is the general
rule?
o
Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise.
On specific venues, as provided by law –
o
Give an example.

Actions for Quo warranto – if the Solicitor general
commences it, in can be in the SC, CA, or RTC of
Manila
o
What if you want to file an action for perpetuation of
testimony?

This is covered by Rule 24 (deposition before action
or pending appeal).

Special rule: Place of residence of any expected
adverse party or defendant
o
What about adoption?

Where the prospective adoptive parents reside
o
What about probate?

Where the deceased last resided at his time of death
o
Writ of habeas corpus on residence of minors?

General rule: RTC where the minor is supposed to be
found
o
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15
Thornton: But if unknown or cannot be found, in the
CA or SC
Can the parties stipulate on venue?
o
Yes, they can.
o
In an ejectment case, the property is located in Cebu.
Plaintiff resides in Makati, defendant in QC. Where do
you file it?

In the MTC of Cebu. Residence in general does not
matter.
o
What if I file it in Makati?

Yes.

But what will you expect?

Motion to dismiss on the ground of wrong
venue, coming from the defendant.

But what if there was no motion to dismiss, and
in the answer, there was no allegation of
improper venue?

There is waiver on the rules of venue.
Remember Rule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raise
these grounds in MTD or answer is a waiver. Exceptions:
o
1. Lack of jurisdiction over the subject matter
o
2. Litis pendentia
o
3. Res judicata
o
4. Statute of limitations
What is the distinction that you have to make as to
stipulations?
o
If there are no words of exclusivity, then it is only an
additional venue.
o
If there are words of exclusivity (ex. “can only be filed in
Cebu, waiving all other venues”), then you can only file it
there.
o
(PBCom v. Lim is an example of a case with restrictive
words)

In this case, the stipulation on venue in the principal
agreement (PN) applies to the accessory contract,
which is the surety agreement – which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue,







or he decided to waive it. Can the judge later motu propio
dismiss the case after noticing that the venue is wrong?
o
No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on
summary procedure include MTD as a prohibited pleading, an
exception is lack of jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o
Prohibited forum shopping (Read Bank of America)
Summary procedure


16
1. Filing of the complaint
o
In summary procedure, after filing the complaint, what
can the court do?

A) Dismiss the case outright

B) Issue summons
o
What is the responsive pleading?

Answer.

Can you file a MTD?

In general, no. It is a prohibited pleading.

When do you file the answer?

10 days, not the usual 15.
o
Can the plaintiff file a reply?

No. It’s also a prohibited pleading.
o
What if there is no answer?

The plaintiff can file a motion for the court to render
judgment.

A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o
After the filing of the last pleading, move on to next stage.
o
N.B. all pleadings (complaint, compulsory counterclaim,
cross-claim, answer) must be verified
2. Preliminary conference.
o
Take note, in SP, it is NOT pre-trial but preliminary
conference.
o
When does the court set this?

Within period of 30 days.
o
What happens here?

The parties can compromise, identify issues, etc.
Can the court render a judgment based on what was
presented in the preliminary conference?

Yes, the court can, if it is convinced at this point in
time.
o
Assuming there is no judgment in steps 1 and 2, move to the
next step…
3. Submission of judicial affidavits or position papers
o
Is there a hearing in summary proceeding or trial?

No hearing, no trial.
o
Within how many days do you submit affidavits?

Within 10 days from the receipt of the order (record
of preliminary conference)
o
What is required for the affidavits submitted?

Must be within personal knowledge of affiants; or
else, expunge the affidavit and subject the party or
counsel to disciplinary action
o
Can the court render judgment?

General rule: 30 days from the filing of the last
pleading

NOT
submission
for
resolution,
but
submission of the last pleading

Exception: 15 days, if the court asks for further
clarificatory documents
What are the prohibited pleadings?
o
[Standard pleadings]
o
1. MTD

Except lack of jurisdiction over subject matter

Or failure to refer to lupon
o
2. Bill of particulars
o
3. Reply
o
4. Motion to declare in default
o
5. Memoranda
o
[Adding other people]
o
1. Interventions
o
2. Third party complaint
o
[Remedial pleadings]
o
1. MR or MNT
o
2. Petition for relief from judgment
o
3. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o
[Extensions]
o


1. Dilatory motions for postponement

Does this cover motion for cancellation of
hearing?

If is not dilatory. But be careful with this,
because the judge has to determine first if it
is dilatory.
o
2. Motion for extension of time
Jalique v. Dandan:
o
This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o
HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. Bellosillo
o
The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
Pascual v. Jovellanos
o
The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o
May the MTC pass upon questions of ownership in an
ejectment case?

YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o
In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This
special authorization is a valid cause for someone else to
appear in the plaintiff’s or defendant’s behalf.
o
What happens when the plaintiff is absent in
preliminary conference?

Case is dismissed
o
What happens when the defendant does not appear?
o





17
As if he didn’t file an answer. The court can render
judgment.
What is the stopgap?

Have an explanation OR send a representative
Where does this rule come from?

Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.

o
o

Small claims





None mentioned.
Do the parties have to appear?

Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without
prejudice of the claim. Failure for the defendant to
appear has the same effect as not filing a response.
What happens after JDR?
o
In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o
In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o
Same as summary procedure
o
Except in MTD, only lack of jurisdiction over the SM is the
exception.
o
Why is failure to refer to the lupon not an exception?

Because the claim is below P100K (no barangay
conciliation required)
Can it be appealed?
o
No. By express provision, it is final and executory.
o
What then, is the remedy?

Rule 65 (petition for certiorari) – because there is no
plain, adequate, speedy remedy
o
What should a plaintiff file?
o
1. Statement of claim
o
2. Together with certificate of non forum shopping
o
3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o
The claimant. No need for the lawyer.
o
[Atty. Salvador: maybe this special rule is for bar flunkers to
practice, because the claimant still needs to file certain
documents he may not know how to execute]
What happens after?
o
Court files notice for defendant to submit response
o
Defendant has 10 days to file a response
o
What are the formal requirements?

There is already a form provided for the plaintiff and
defendant to fill in.

They just need to attach documents.
o
Can there be a counterclaim in a small claim action?

Yes. As long as within jurisdiction of the court, and
arising from the same transaction, and does not
require joinder of third parties.
And then? [review/cross-check these rules]
o
The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o
Can a claimant apply as an indigent litigant?

Yes. (Aldura)
o
Will there be presentation of evidence?

Yes, but it is not a strict and formal trial. You can
only present the evidence attached to the claims.
o
Is there a preliminary conference?


Pleadings





18
What must be in the complaint?
o
Claims a cause of action
o
Must contain allegations – brief and concise statement of
ultimate facts, devoid of evidentiary matters

You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o
With particularity
As for mistake, how must it be alleged?
o
With particularity
If it’s a condition of the mind (malice, intent, knowledge, etc.)?
o
Generally
You can also base your claim on an actionable document. How
to do you allege it?
1. You can attach or append the document

To show the court that this is where your cause of
action arises
o
2. You can reproduce the contents of the document in the
pleading en toto

(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o
Specifically denied, under oath
o
What is the exception to the oath requirement?

1) When the adverse party is not a party to the
instrument

2) When there is an order for inspection and it is
refused
What is the effect of failure to specifically deny under oath an
actionable document?
o
It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o
It is up to the court to determine it.
What is the period for a motion to strike out a pleading or a
matter contained therein?
o
1. Before responding to a pleading
o
2. If no responsive pleading is allowed, then within 20 days of
service of that pleading upon him
o
3. Upon court’s initiative, at any time
o
What are the grounds to strike out a matter from a
pleading?

1. Sham or false

2. Redundant, immaterial, impertinent

3. Scandalous
o






o

What
o

What
o
o
o
What is the period to file an answer?
o
15 days after service of summons
o
Could it be 30 days after receipt of summons?

For foreign corporation and service is done to
government official designated by law
What is the period to answer an amended complaint?
o
A. If amended as a matter of right, 15 days from service of
copy of the amended pleading (N.B. not from summons
anymore since the defendant has already been summoned)



19
B. If not a matter of right, 10 days from notice of order
admitting it

N.B. This is not from receipt but notice of admission
because the proposed amended pleading is attached
to the motion to amend the complaint anyway.
if there is no new answer filed?
The prior answer serves as the new answer too if no new one
is filed
are the defenses available in answer?
1) Affirmative defense

If you only hypothetically admit, without
raising any defense, what happens?

In this case, there is no more issue. This
will lead to a judgment on the pleadings
(Rule 34)

This occurs when the answer does not
tender an issue or admits the material
allegations
2) Negative defense

Specific denial of facts alleged essential to the cause
of action.

What are the kinds of specific denial?

1) general denial

2) specific denial

3) disavowal of knowledge (lack of
knowledge and belief to form a specific
denial)
What is a negative pregnant?

A denial which implies its affirmative opposite by
seeming only to deny a qualification of the allegation
and not the allegation itself (Ex. “I have never
consumed cocaine while on duty” implies the
defendant has consumed cocaine otherwise)
Is the counterclaim or cross-claim in a separate pleading?
o
No.
What is a compulsory counterclaim?
o
Arises out of the transaction constituting subject matter of
the action and does not require the presence of third parties
of whom the court cannot acquired jurisdiction
What is a permissive counterclaim?







o
Arising from an event unrelated.
What is the period to answer a counterclaim?
o
10 days
o
(In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is the remedy of the other party if the facts from which
the counterclaim arises from only came about or ripened after
the answer has been filed?
o
With leave of court, may be presented as a counterclaim (or
cross-claim) by supplemental pleading before judgment
What is a cross claim?
o
Made against a person/party on the same side.
Can there be a counterclaim defendant cross claim?
o
Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
Is there a period to answer a cross claim?
o
10 days
Do you need leave of court to file a counter or cross claim?
o
No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o
Yes. You cannot just file a third party complaint.
o
Who is usually the third party plaintiff?

The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.

This is the reason why there is need for leave of
court. You need to have the third party impleaded.

Why would you want a third party complaint?

To contribute or indemnify
o
Classic case: car crash  a hit b hit
c.
C sued B.
B sued A for
indemnification.

Subrogation

Any other similar ground
o
What is the period to answer a third party complaint?

15 days, because it is treated as an entirely new
complaint












Is the reply a mandatory pleading?
o
No.
20
What is the period to file a reply?
o
10 days.
What do you do in a reply?
o
To controvert the new matters raised in the answer
What is the effect of failure to file a reply?
o
All new matters stated in the answer are
controverted
What happens after answer, etc?
o
Pre-trial
deemed
Three important things:
o
Signature, verification, and CNFS
What is the effect of a lawyer affixing his signature in a
pleading?
o
1. He has read the pleading
o
2. To the best of his knowledge, the information is correct
o
3. The filing of the same is not for the purposes of delay
There are some pleadings that are left unsigned.
What
happens?
o
It has no legal effect at all.
o
Is there a way to cure it?

If counsel can show it is due to mere inadvertence
and not for delay
o
Will the court just give effect to the pleading or will it
still require actual signing?

[Didn’t answer]
If a lawyer changes his address, what is his duty?
o
Inform the court. Failure to do so may lead to disciplinary
action.
What are the contents of the verification?
o
Affidavit stating:
o
1. That the affiant has read the pleading
o
2. The allegations are true and correct based on personal
knowledge or authentic records

Based on “personal knowledge,” not “information
and belief” or “knowledge, information and belief”
Must it be under oath?
o
Yes.
Is it mandatory?
o
No. Only when the law requires you to verify.
o
Give examples:









Rule 45 (Petition for review on certiorari)

Rule 65 (Petition for certiorari)

Rules 57-61 (Provisional remedies)
Is it jurisdictional?
o
No. Failure to attach is not fatal.
o
But why do the SC and CA dismiss cases for failure to
attach verification?

Although it can be cured, the court may dismiss a
pleading for failure to comply with procedural
requirements.
Who signs the verification?
o
The party filing the pleading.
Can the lawyer sign it?
o
General rule, no. Unless there is some compelling reason.
o
For example, the party’s father is to be buried on the day of
filing of the petition – the court allowed it.
o
Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and
there are only 15 days to file.)
Can a minor sign?
o
Must be assisted.
Can a married person sign by himself or herself?
o
One spouse is enough, but only if there is common interest.
(N.B. but see note below)
For co-owners or those in the same residence?
o
Signature of one is enough if there is common interest. (N.B.
but see note below)
TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the
parties, a signature of a number of them may be enough.
o
BUT in practice, do not take chances.
When is a verified pleading/motion needed?
o
1. Rule 24 (depositions pending action/depositions pending
appeal)
o
2. Rule 38 (petition for relief from judgment)
o
3. Rule 42 (petition for review: RTC to CA)
o
4. Rule 43 (appeal from quasi-judicial agency to CA)

Also: exemption from payment of lawful fees under
Rule 43
o
5. Rule 45 (petition for review on certiorari)
o
6. Rule 47 (annulment of judgment (CA))
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o




21
7. Rule 58 (application for preliminary injunction)
8. Rule 59 (application for receivership)
9. Rule 61 (application for support pendente lite)

Also: comment on the application for support
pendente lite
10. Rule 64 (review of judgments/final orders of COMELEC
and COA)
11. Rule 65 (petition for certiorari, prohibition, or mandamus)
12. Rule 66 (quo warranto)
13. Rule 67 (expropriation)
14. Rule 70 (forcible entry and unlawful detainer)

N.B. covers all pleadings, including answer,
compulsory counterclaim, and cross-claim
15. Rule 71 (petition for indirect contempt)
16. ROP of envi cases, Part II: a) civil complaints, b) answer
17. ROP of envi cases, Part III: a) petition for writ of
kalikasan, b) return to writ of kalikasan, c) motion for ocular
inspection or production/inspection
18. Rule 93 (appointment of guardians)
19. Rule 95 (petition of guardian to sell or encumber property
of the ward)
20. Rule 97 (petition to examine competency of a ward, for
termination of guardianship)
21. Rule 102 (application for writ of habeas corpus)
22. Rule 103 (change of name)
23. Rule 108 (cancellation or correction of entries in civil
registry)
24. Habeas data: a) petition for writ, b) written return by
respondent, c) return of service by officer executing judgment
25. Writ of amparo: a) petition, b) written return by
respondent, c) motion for inspection, d) motion for
production, e)
26. Rule 126 (Sec. 26: inventory of things seized under
warrant)
CNFS:
When is a CNFS required?
o
For a complaint or other initiatory pleading
o
So a compulsory counterclaim does not require a CNFS
What about a juridical entity? Who can sign?
o
[Anyone, as long as authorized by a board resolution]
What are the contents of the form?
1. Plaintiff/principal party shall certify under oath that he has
not filed a similar complaint involving the same issues in
another court, tribunal, QJ agency
o
2. If there is any other pending claim, provide status
o
3. If he learns about similar action, report fact within 5 days
to the court
Why does the law require that it is the party that signs?
o
Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?
o
All the parties, since there is no juridical personality.
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o
It will be dismissed. It can be re-filed because it is without
prejudice.
Can it be amended to cure?
o
No, the defect cannot be cured by an amendment. Just refile.
What is the effect of non-compliance? (Note: this occurs when
there is a CNFS, but you did not respect your commitment under the
CNFS)
o
1. Dismissal of the case
o
2. Indirect contempt (Failure to comply with order or process
of court)
o
3. Administrative and criminal sanctions (since you lied under
oath)
What if there is willful and deliberate forum shopping?
o
(Meaning, it’s not only false, but you also deliberately
disregard it)
o
1. Dismiss the case with prejudice

What kind of dismissal?

Summary dismissal – cannot contest
o
2. Placed in direct contempt
o
3. Administrative sanctions
BPI v. CA
o
There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of
the Vice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o
NOTE:
There was a valid CNFS.
There was liberal
interpretation of this provision for these reasons.

o













22
Donato
o
Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the
US, and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o
BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o
There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can file the same case again.
o
Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o
Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o
No need for a CNFS for a compulsory counterclaim
New Sampaguita
o
There was no forum shopping here, because the first case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the first place, when the
court dismissed the initial case.
The second case was
whether the court approved the compromise agreement in
the first place. These are different.
Solar
o
Is the rule on personal service mandatory?

Yes. The rule is priority is by personal service. If
you cannot do it by personal service, you can do it
by registered mail, but you have to make an
explanation.
o
In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to
allow it was based on its reasonable discretion. BUT this is
not the rule.
Musa
o
What are the material dates here?

Period only commences to run from date of receipt of
the decision

Date of filing of the MR

Date of receipt of denial of the MR
Amendments and supplements







There is amendment for civil cases and there is amendment for
criminal cases.
For civil cases, amendment may either be:
o
1) As a matter of right
o
2) With leave of court
When is it a matter right?
o
Before an answer or within 10 days of service of reply (if the
reply is the one being amended)
o
What do you need to file?

NOTICE to amend
When do you need leave of court?
o
After an answer has been made
o
What do you need to file?

Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
plea.
o
Before plea, can you amend?

Yes, whether as to matter of form or substance
o
After plea, can you still amend?

Yes, but only as to matters of form, for as long as it
will not prejudice the rights of the accused

Don’t forget that last bit!

What is the test when it will prejudice the
rights of the accused, even if it’s a matter of
form?

If the original defense of the accused will
not change.
What is “amendment to conform to evidence”?
o
This is section 5 of Rule 10
o
Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o
If the evidence you presented went beyond the allegations,
you may file a motion to amend the pleading to conform to
evidence
o
What if evidence is objected to on the ground that it is
not within the issues in the pleadings?

1. The court may sustain the objection

2. The court may allow the pleadings to be amended
if the ends of substantial justice will be served




23
There are two kinds of amendments to conform to evidence.
What are these?
o
First kind – no objection on the part of the other party. For
this reason, it will be allowed even after judgment.
o
Second kind – if the other party objects, the amendment is
left to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
action?
o
If in the first place there is no cause of action, no amendment
will cure such an absence.
o
Can the court order an amendment even if there is no
application to amend?

1. Yes, if it is a mere formal (typo) amendment

2. For bill of particulars, the court can either order
compliance OR an amendment

3. Motion to dismiss – the court can either grant,
deny, or order an amendment
There was an amendment of an original complaint, which was
the basis for the issuance of summons.
If the original
complaint is amended and that is granted by the court, is there
a need for issuance of new summons?
o
No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o
It is a question of jurisdiction over the person, not a question
of amendment.
o
HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o
A pleading filed in addition to a prior one that has been filed,
pursuant to new transactions, occurrences, or events that
have arisen.
o
Can there be a supplemental complaint?

Yes
o
Can there be a supplemental answer?

Yes
o
Can there be a supplemental reply?

Yes
o
Can there be a supplemental petition?

Yes
So what is the general rule?
o
o

What
o
o

What
o
You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the filing
of the first pleading.
What is the exception?

Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
is the difference between amendments and supplements?
Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were
not placed in the pleading. There was just an omission.

May be filed without leave of court (before
responsive pleading)
For supplements, the events, transactions, or occurrence only
arose after the filing of the original pleading.

Always with leave of court
is the period to respond to a supplemental pleading?
10 days from notice of order admitting the supplemental
pleading



Default


If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o
1. In actions in rem, there is a general order of default.

There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o
2. Failure to attend during pre-trial

Called “as in default” in the 1964 Rules of Court

If the defendant fails to attend, the plaintiff can
present evidence ex parte
o
3. Failure to file answer
What are the requisites to declare the other party in default?
o
1. Did not file answer
o
2. There is proof of such failure

You have to show the return
o
3. File motion with court, with notice to defending party
Upon order of default, what are the options of the court?
o
1. Can render judgment

No need to present evidence ex parte anymore in
this case.

What is the extent of relief that can be awarded
by the court?

Not exceed the kind or amount from that
prayed for

Cannot award unliquidated damages

N.B. This is a new provision introduced only in the
1997 Rules of Civil Procedure. This has not been
asked in the Bar examination yet. So be careful.
o
2. Can require submission of evidence

Can delegate this to the clerk of court
How can you set aside an order of default?
o
1) File a motion on any of these grounds:

1. Fraud

2. Accident

3. Mistake

4. Excusable negligence
o
2) It has to be under oath
o
3) State that you have a meritorious defense, without
necessarily giving an answer
o
What kind of fraud is needed?

N.B. 1: What is the rule on objections?
o
General rule: all objections on grounds not raised in an
answer or motion to dismiss are deemed waived.
o
What are the exceptions?

1. Lack of jurisdiction over SM

2. Res judicata

3. Litis pendentia

4. Prescription
o
What is the fifth exception provided by jurisprudence?

5. Lack or absence of cause of action

This is different from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o
Any compulsory counterclaim or cross claim not set-up:
barred forever
o
In special proceedings – a claim against the estate
must be made in the period provided for in the notice.
Otherwise it will be forever barred.
What is the
exception?

24

Extrinsic fraud.
Is the fraud needed here the same fraud needed for
motion for new trial, petition for relief from judgment,
and motion for annulment of judgment?

YES. For all of these, you need extrinsic fraud.
How do you set aside an order of “as in default” [or allowance
for plaintiff to present evidence ex parte for the plaintiff]?
o
Saguid: Remedy is to file an MR or relief from order of
default also on the ground of FAME
o
Do you have to add that you have a meritorious
defense?

No need. You’re already in pre-trial.
Can there be partial default?
o
Yes.
o
In a case where you file a case against A, B, C, D, and
E. E did not file an answer, while A to D did. Will A to
D be allowed to present evidence?

Yes.
o
Will E be allowed to present evidence?

No. He is in default.
o
Can A to D’s evidence be used against E or in favor of
E?

Yes. In fact, E can still win the case along with the
others.
Where can there be no order of default?
o
1. Nullification/annulment/legal separation
o
2. Summary Procedure

N.B. When there is failure to file answer, there can
be judgment rendered by court.
o
3. Certiorari, Prohibition, etc.  Some SCAs require a
comment, so there can be no declaration of default

Are there SCAs where there can be declaration
of default?

Yes, like interpleader where the special
rules are deficient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o
Order of default – failure to submit an answer, so the
defendant is declared in default




Judgment by default – after the defendant is given notice of
the court processes, the court renders a decision without
hearing defendant’s defense, which he lost
o
Remedy for an order of default?

Motion to set aside or lift an order of default based
on FAME (under oath, and you have to show you
have a good defense)

SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this
is missing, the motion is lost.
o
Remedy for a judgment by default?

1. MR or MNT (FAME)  within period for filing an
appeal

2. Petition for relief from judgment

After the reglementary period for appeal;
i.e. when there is entry of judgment

Period: 6 months from entry of judgment
AND within 60 days from knowledge

3. Rule 65 certiorari

If there is GADALEJ
Remington Steel:
o
When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other – since there is no defense yet that would be
affected or altered by the amendment.
Philippine Export and Foreign Loans:
o
When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition
for certiorari.
o
Amendment to conform to evidence – What if it was not
allowed, but the evidence was proven, can there be a
valid judgment based on that evidence?

Yes. It is valid, even if it is not consistent with what
was alleged.
o
o


Bill of particulars


25
Can there be Bill of Particulars in criminal cases?
o
Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o
1. What is the definition of BOP?
2. What is the period to file a BOP?
3. What is the action taken by the court in BOP?
4. What is the consequence of failure to comply with order to
file a BOP?
When you file for a BOP, what do you want to achieve?
o
A more definite statement of facts that appear in the
complaint that are not averred with sufficient particularity
o
You are to identify the defects and the details desired.
Can you file a motion for BOP after an answer has been filed?
o
No more, because issues have already been joined.
What is the effect of filing a motion for BOP on the period?
o
The period is interrupted upon filing, but you always have at
least five days to file the answer after.
Deadline to file an answer is in 15 days. You received the
complaint December 1. You filed a motion on December 5.
How many days do you have?
o
TWELVE, not eleven. You don’t count the day causing
the interruption. [VERY IMPT]
o
This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do
you have?
o
You still have Five days.
What can the court do?
o
1. Grant motion
o
2. Deny it
o
3. Allow the parties to be heard
What if the court grants the BOP?
o
The party directed to do so must comply within 10 days
What action can the court take on a BOP if you fail to comply?
o
1. Motion to strike out
o
2. The case can be dismissed (Virata v. SB) – Rule 17, Sec
3: non-compliance with court order
What if the person fails to file an answer in the time left?
o
Will be declared in default
o
o
o













Service



Filing and service of pleadings

Filing


o
2. Registered mail
Can there be filing by ordinary mail?
o
None. Because here there is no way the court can find out
when you filed it.
o
But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o
PERSONAL: Stamped, dated, and signed by the clerk of court.
o
REGISTERED MAIL: Pay for registry receipt and you have to
accomplish a return card
What is the proof that you personally filed?
o
1. Primary: if the pleading is found in the records of the court.
o
2. If it does not appear, you can present the received copy
What is your proof of registered mail filing?
o
1. Registry receipt
o
2. Affidavit of the person mailing
o
3. Return card
What are the modes of filing?
o
1. Personal

26
What are the modes of service?
o
1. Personal
o
2. Registered mail
o
3. Ordinary mail
What does rule 14 cover?
o
1. Party serving to another party,
o
2. Party serving to court,
o
3. Court serving notices (section 9)
If the person to whom you are serving is not available, then
how do you file substituted service?
o
Delivery to the clerk of court with proof of failure of both
personal service and service by mail.

N.B. This is different from substituted service of
summons, which is to a person of suitable age and
discretion residing in the same residence
o
There should be proof of both failure of personal service and
service by mail.
What is completeness of personal service?
o
Actual delivery
What is completeness of registered mail?
o
Actual receipt or 5 days after first notice of postmaster
o
whichever comes first
What is completeness of ordinary mail?











o
10 days after mailing
What are the proofs of personal service?
o
1. Written acknowledgement of the party served
o
2. Affidavit of the person serving
o
3. Official return of server

This refers to service by the court
What are the proofs of registered mail?
o
1. Registry receipt and affidavit of one who mailed
o
2. Return card or unclaimed letter with certified/sworn copy of
notice given by the postmaster to the addresee
What are the proofs of ordinary mail?
o
Affidavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed).
What do you do to prove delivery?
o
You have to file the return card plus the unclaimed document,
plus before you file, secure a certification from the post office.
Take note that a return card is required by law to be filed, but in
practice, we do not.
What is the priority of service?
o
Personal service is always preferred
o
What is the effect of filing by registered mail?

Put an explanation why you did not serve it through
personal service
o
What if you don’t comply?

As if the pleading was not filed.
Service of pleadings should be made to whom?
o
To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground
floor of a condominium building and your office is on the 3oth
floor?
o
You cannot. You have to serve it to counsel.
What is Lis Pendens?
o
In an action involving right, title, or interest over a property,
you annotate it on the title of the property.
I file a case in the bureau of lands to declare null and void a
title. Can this be subject to a notice of Lis Pendens?
o
No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property
is the subject of the action.
Can you put a notice of lis pendens in a partition case?

Yes.
Do you need court approval to effect a notice of Lis Pendens?
o
Not at all. Just send a memorandum to the ROD, even
without court involvement.
When do you need court approval?
o
When you intend to cancel the notice.
o
Grounds:

1) purpose is to molest other party

2) no need for the notice to protect the rights of the
parties who caused it
o


Summons




27
When does the clerk of court issue summons?
o
Upon filing of complaint and payment of legal fees by the
plaintiff
o
What are the contents?

1. Name of court and names of parties

2. Direction to answer within required time

3. Notice that no answer can lead to judgment by
default
o
Who serves?

Sheriff, deputy, or other proper court officer, or any
suitable person designated by court (for justifiable
reasons)
o
What is the return?

1. When service has been completed, the server
within 5 days serves a copy of the return (personally
or registered mail) to plaintiff’s counsel, and

2. Return summons to the clerk with proof of service
Can personal service and substituted service of summons work
simultaneously?
o
No. Personal service first, and this is the priority. You cannot
have these simultaneously.
Where?
o
WHEREVER HE IS FOUND. Always remember the James Yap
rule.
What are the requirements for substituted service? Under
what circumstances?
o
Only if personal service is IMPOSSIBLE.
Proof of this: defendant cannot be served summons after all
efforts have been exhausted.

Is there a set of standards given by law on how
many times you have to try to serve?

A case says that it must be at least three
times on two different days.
o
There has to be an explanation.
o
Where will the explanation appear?

In the sheriff’s return
o
How is substituted service of summons done?

1. Leaving copies at defendant’s residence with
person of suitable age and discretion residing
therein, or

2. Leaving copies at defendant’s office with
competent person in charge thereof
Summons must be served within reasonable time. What do you
mean by this?
o
For the sheriff, 15-30 days according to jurisprudence. After
the 30th day, the court will require the sheriff to submit the
return.
o
Why is this important?

If you file a complaint and you don’t see to it that
the summons is served, your complaint can be
dismissed for failure to prosecute.
What is alias summons?
o
If the original summons has been lost or the original
summons was returned to court, unserved.
o
Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind
of substituted service does this apply?
o
To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o
There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o
She or he must reside therein.
This must concur with
“suitable age or discretion.” So these are two elements.
o
A visitor or a transient cannot receive summons. But a house
helper can.

o












28
For offices, to whom must it be served?
o
To a a) competent person b) in charge.
o
Can a middle manager the same rank as Mr. X receive
summons for Mr. X?

He must be in charge of receiving summons in the
office.
o
What does “in charge” mean?

In charge of the office. President or manager.
For corporations, what is the special rule?
o
President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o
Memorize this. It is a closed list.
What about foreign corporations doing business?
o
1. Resident agent
o
2. Any officer within Philippines
o
3. Government official designated by law to that effect
How is service done to entities without juridical personalities
sued under the name by which it is commonly known?
o
1. Serve to any one of them or
o
2. Upon person in charge of office/place of business
o
Who is not bound by this, as an exception?

Person whose connection with the entity has, upon
due notice, been severed prior to the action
Can you serve summons to a natural person in prison?
o
Yes. Serve it to the warden.
For public corporations?
o
RP – Solicitor General
o
Province – executive head (governor)
o
City – city mayor
o
Municipality – municipality mayor
Can substituted service be served on non-residents?
o
No. None as a general rule. You cannot do substituted
service to a non-resident.
o
[Sec. 15 does not talk about this situation. Sec. 15 talks
about non-resident and cannot be found.]
o
Is there an exception?

Yes, but it’s very narrow. But there must a a)
resident spouse b) who was previously appointed as
attorney-in-fact.
In Secs. 14, 15, and 16: how can summons be done?
o
By publication.

Distinguish.
o
Section 14: Defendant is unknown or his whereabouts are
unknown.

How do you do this?

Just publish.

Do you even have to try personal service?

No need for personal service (since you
don’t know him or where he is).

In what kind of case?

Whatever kind of action, whether in rem or
in personam – you can do it by publication,
as clarified by the SC.

Not just in rem or quasi in rem anymore.

How does publication in 14 differ from 15 and
16?

In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o
Section 15: Defendant that does not reside in the Philippines
and is not found in the Philippines.

In what subject matter?

1. Involving personal status of the
defendant

2. Property of non-resident defendant

3. Property is attached

4. Where defendant has actual or
contingent interest over property

What are the modes of service?

1. Personal service outside the Philippines

2. Publication AND service by registered
mail in his last known address
o
N.B. Both must concur. Take note
of this.

3. Other modes deemed applicable by the
court

How much time does the defendant have to
answer the complaint?

Reasonable time determined by court,
which must not be less than 60 days from
notice
o
Section 16: Temporarily absent from the Philippines
Can he be a resident of the Philippines?

Yes. But he’s just temporarily absent.

What is the length of time needed here?

None provided

How do you do serve summons?

1. Personal service outside the Philippines

2. Publication AND service by registered
mail in his last known address
o
N.B. Both must concur. Take note
of this.

3. Other modes deemed applicable by the
court

4.
Substituted
service,
if
there
is
impossibility and there are earnest efforts to
serve.
is required for Sections 14, 15, and 16?
Must ask for leave of court, through motion in writing,
supported by affidavits setting for the grounds, to allow for
such service of summons
What if the leave is granted?

Can serve summons through publication, etc.

Court specifies a reasonable time (not less than 60
days) for defendant to answer
is the purpose of summons?
So the court can peg a date when it acquired jurisdiction over
the person.
is the proof of service of summons?
Sheriff’s return.
is the proof of service by publication?
1. Affidavit of printer, foreman, or principal clerk or affidavit
of editor, business or advertising manager, and
2. Copy of publication, and
3. Affidavit showing deposit of copy of summons and order for
publication in the post office – directed to be sent by
registered mail to last known address (if applicable)
is the rule on voluntary appearance?
It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
is the rule on Motions to Dismiss?


What
o
o

What
o

What
o
What
o

o
o
29

What
o

What
If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o
Old rule: you have to separate the MTD based on lack of
jurisdiction.
Maximo v. Montalban:
o
In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o
Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) – it must be shown in the sheriff’s
return
Ancheta:
o
There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because “lack of jurisdiction” is used, it can cover
both lack of jurisdiction over both SM and the person).
Gomez v. CA:
o
Does it mean that if you are talking about an in rem action
you can venture on trying to serve it personally?

You can still do personal service, in case you find
him somewhere in the Philippines by chance.
o
Section 14 before limits itself to in rem or quasi in rem. It
now extends likewise to actions in personam.
o









Motions


Absence of a notice of hearing has what effect?

The motion becomes a mere scrap of paper.
When must notice be given?
o
The motion must be filed in court and served to the other
party at least three days before the date of hearing. (Three
day notice rule)
What is the ten day rule?
o
The hearing itself must be scheduled no later than 10 days
from the filing of the motion

Ex. you file it December 6. The last date you can set
the hearing for is December 16.
o
Understand this along with the three day rule.
What is the Omnibus Motion rule?
o
Include all grounds available; or else, it is deemed waived.
o
What are these exceptions?

1. Lack of subject matter jurisdiction

2. Res judicata

3. Litis pendentia

4. Statute of limitations
What is motion day?
o
Friday afternoon.
o
If it is a holiday, set it on the next working day
o
Is this mandatory?

Yes. But some judges apply the rule liberally.

But since 2008, this rule has been applied strictly.
What is required for motion for leave to file a pleading or
motion?
o
Attach the pleading or motion sought to be admitted
o
What is a motion?
o
It seeks relief, but not a pleading.
o
It does not raise a claim, nor does it raise defenses in an
answer.
o
Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o
A notice of hearing.
o
Directed to whom?

To parties.

But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
hearings.
Motion to dismiss


30
What are the kinds of dismissal in Civil Procedure?
o
1. There is a motion to dismiss in Rule 16, prompted by
defendant. – MOST COMMON
o
2. But there is also a motion to dismiss in Rule 17, filed by
the very same plaintiff who filed.

Rule 17 also covers failure to prosecute, which is
another form of motion to dismiss.
o
3. Demurrer to evidence
What are the grounds in Rule 16?
o
1. Lack of J over the SM
How do you determine subject matter
jurisdiction?

It is the law that confers the right to hear,
try, and decide a case

The most common source is RA 7691
amending BP 129
2. Lack of J over the defendant

Look again into proper service of summons

Or voluntary appearance
3. Improper venue

Fall back to Rule 4, or special rule under law
4. No legal capacity to sue

Minor – age of majority

Corporation – must be duly registered with SEC

Attorney in fact – look into scope of authority
5. Pleading Asserting the Claim States no COA (PACS-COA)

Does not go into the falsity or truthfulness of the
claim

The pleading does not appear to state a COA
6. Res judicata

What are the elements?

1. Final judgment

2. J over SM and person

3. Judgment on merits

4. Identity of parties, SM, cause of action
7. Litis pendentia

Same as RJ, but without final judgment yet
8. Prescription
9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay

Is this waivable?
o
YES.
Because
it
is
not
jurisdictional.

Ex. Earnest efforts to compromise

Ex. Exhaustion of administrative remedies

Does this fall under this ground?
o
Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
10.
PWEA
(Payment,
waiver,
extinguishment,
or
abandonment)

o
o
o
o
o
o
o
o
o





31
o
11. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
o
ALL
o
Except – [F,H,I]

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)
When can you file a MTD?
o
Within the reglementary period. Fifteen days.
How do you count a period?
o
Just remember the rule on interruption. [Read up Bill of
Particulars portion – same rule for counting here, including
the 5 day buffer]
There was MTD filed on basis of lack of J over the defendant.
The court, instead of dismissing the action, dismissing the MTD,
or ordering amendment of the complaint, filed alias summons.
Is this grave abuse of discretion?
o
There was none. Instead of dismissing the case and waiting
for re-filing, the court issued alias summons which will
produce the same effect.
Preliminary hearing of the affirmative defenses. What is this?
o
You can file an answer, and the court has discretion to hold
preliminary hearing of your affirmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
MTD.

This is a new feature of the 1997 Rules of Court.
This has never been asked in the Bar.
o
What is the reason for this new rule?

Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
file an MTD, but to file an answer with an affirmative
defense.
o
Why such court attitude?

Because issues will be joined, and pre-trial sets in
where parties can compromise.
o
What is the difference between filing a MTD and an
answer?

There is no preliminary hearing of defenses in a
MTD. Obviously, in an MTD, the motion itself will be
heard anyway and that is where the grounds will be


proved. In an answer, the court can prioritize the
grounds to dismiss the case, which is why the
preliminary hearing is needed.
What actions are available to the court?
o
1. Dismiss action or claim
o
2. Deny the motion
o
3. Order amendment of the pleading
o
Can the court defer resolving the motion because the
ground is not indubitable?

No, it cannot.
If the court mistakenly denies your MTD, what is your remedy?
o
Petition for certiorari on Rule 65 based on GADALEJ.
o
Does this petition for certiorari suspend the main
proceedings?

No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended unless
you obtain a TRO.
o
The Eternal Gardens rule, which has been repeatedly
abused, invoking judicial courtesy here, does not apply
anymore.
o
Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?

The court, subject to its discretion, can either
dismiss or remand it. There is no hard and fast rule.
It does not get dismissed.
Pingga limits the
dismissal to the complaint, not the counterclaim.
This abandoned BA Finance rule.
Does this rule cover both permissive and compulsory
counterclaim?

Yes.
What is the option of the counterclaimant?

Within 15 days, the party would have to manifest its
willingness to prosecute it in the same action;
otherwise it will be prosecuted in a separate action.
is there dismissal due to the fault of the plaintiff?
1. Plaintiff fails to appear on the date of presentation of his
evidence in chief without just cause
2. Failure to prosecute his action for an unreasonable length
of time
3. Failure to comply with the ROC or any order of the court
How is the dismissal under this section done?

1. Upon motion of the defendant

2. Upon court’s own discretion
How does this affect counterclaims?

Same; it can be prosecuted by the defendant in the
same or separate action.
What is the effect of dismissal under this section?

It is an adjudication upon the merits (thus with
prejudice)

o
o

When
o
o
o
o
o
o
Dismissal of Actions
Pre-trial


What are the ways by which a plaintiff can dismiss a case?
o
Filing a notice of dismissal any time before the answer is
served (or before his motion for summary judgment, if
applicable). Dismissal is a matter of right.
o
What happens to the counterclaim?

There is no counterclaim yet, because there is no
answer.
o
Can this case be re-filed?

Yes.
o
What is the exception?

Dismissed a second time under this section.
What if there is already an answer? – See Pingga case
o
File a motion for dismissal.
o
What happens to the counterclaim, if there is?



32
When is pre-trial conducted?
o
Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintiff to move the case for pre-trial must be
done “promptly”
o
BUT the 2004 guidelines say it must be within 5 days after
the last pleading has been filed
What if the plaintiff fails to move for pre-trial?
o
The 1997 rules are silent.
Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o
2004 rules: DUTY OF THE CLERK OF COURT to move for pretrial.
Before actual pre-trial, a few days before, what happens?
Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o
They explore possibility of compromise, etc.
o
This is almost like a mini pre-trial.
Expect two dates in one notice –
o
One setting the preliminary conference
o
One setting the pre-trial itself
On the first day of pre-trial – what is the order of the day?
o
The court issues an order referring the case to a courtannexed mediator. Forward the records to him.
o
You have to pay fees for a mediator.
o
For the time-being, the pre-trial proceedings are suspended.
o
What is the period for suspension?

30-60 days.

But in the same order, the court will say that if
within this period, there is no compromise, there will
be resumption of pre-trial on a later day.
What if there is inability to compromise?
o
Records returned to court. The court will resume pre-trial.
o
The Judge with all “tact, patience, and impartiality,” endeavor
to arrive at a settlement of the dispute

Confers with each party as to what is acceptable as a
compromise at the present stage

Judge talks to parties and their counsel separately

Judge talks to only parties
What do you need to submit at pre-trial?
o
Pre-trial brief.
o
What if you fail to submit a PTB?

Same effect as if you didn’t appear at pre-trial.
Request for admissions: Rule 129 Section 4 – Judicial Notice:
o
No need for introduction of evidence
o
You want an admission to abbreviate the proceedings
o
You are submitting just proposals. If accepted by the other
party, it becomes an admission.
Issues – to be submitted for resolution
Documentary and testimonial evidence to be presented:
o
“One day examination of witness rule” – if you can direct,
cross, re-direct, and re-cross a witness in one day, do so.
(This is in the guidelines, not in the Rules of Court.)
o
Submit the most important evidence first.
o
Evidence will be pre-marked.







What is the effect of failure to pre-mark?

You can no longer present the evidence if
you failed to pre-mark it.

Unless the court allows you in the interest
of justice, or if newly discovered.
o
What if you fail to name the witness in court?

You cannot present the witness anymore.
What are the other contents of the brief that you may put?
o
Referral to Commissioners
o
Explore possibility of compromise
o
Possibility of judgment on pleadings or summary judgment
o
Avail of deposition/modes of discovery
How do you avoid consequences of absence?
o
According to the provision, if there is a good excuse for
absence, the consequence will not vest.
You can also
authorize someone to appear on your behalf in pre-trial.
What happens next?
o
Pre-trial order is issued by the court.
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
o
What if it is a criminal case and the prosecution is
absent. What happens?

It will be re-scheduled.
o
What if the accused is absent?

The prosecution CANNOT present evidence ex-parte
because it will violate the accused person’s right to
confront witnesses.
o
RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE
BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o
For an admission of the accused to take effect against
him, what must be done?

It must be in writing and signed, by both the counsel
and accused.

No such requirement in civil admissions in pre-trial.
Judicial Dispute Resolution
o
In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o
The judge here is both a mediator and a conciliator and an
independent evaluator.
o
Unless the parties consent to continue with the JDR judge, it
is mandatory that there will be a new raffle – and the new

o





33

judge who will undergo pre-trial, hear, try, and decide the
case is the trial judge
o
This step happens when the Clerk of Court receives the
Mediator’s Report of a “not settled mediation”
o
Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
To summarize:
o
1. Preliminary conference
o
2. Court-annexed mediation
o
3. Judicial Dispute Resolution

If QC, Makati, Manila
o
4. Pre-trial


Intervention




For appellate courts, it is subject to their discretion (because
the ROC is silent)
After judgment, can there still be intervention?
o
As a rule, no.
o
But for an indispensable party, the court will allow
intervention even after judgment.
Nordic:
o
There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o
There was a complaint filed by the crew members of the
vessel against the vessel in RTC Manila (sum of money case).
o
The mortgagee sought to intervene in the sum of money
case, because it held a Preferred Ship Mortgage.
o
HELD: No legal interest, no cause of action. There must be
a personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
What is the remedy if the intervention is denied?
o
Aggrieved party must appeal.
o
Mandamus will not lie except in case of GADALEJ
What is the remedy if the intervention is granted?
o
Petition for certiorari (since the order is interlocutory, unlike
the dismissal of the complaint/answer-in-intervention, which
is final.
o
What is the concept of intervention?
o
A third party takes part in a case between other parties
o
Because he has a legal interest in the subject matter of the
case
or
he
will
be
adversely
affected
by
distribution/disposition of property in custody of the court
What are the requisites of intervention?
o
1. Either:

a. Legal interest in the matter in controversy

b. Legal interest in the success in either of the
parties

c. Legal interest against both

d. Will be adversely affected by distribution or
disposition of property in the custody of the court
o
2. Intervention will not unduly delay or prejudice the
adjudication of rights of the original parties
o
3. Intervener’s rights may not be fully protected in a separate
proceeding
How do you intervene – requisites?
o
1. File a motion to intervene
o
2. Attach the pleading-in-intervention to it

What are the pleadings in intervention?

1. Complaint-in-intervention if he asserts
against either or all of the original parties

2. Answer-in-intervention if he unites with
the defending party
o
2. Serve to the original parties
When can you intervene?
o
Any time before rendition of judgment in the trial court


Subpoena


34
Types of subpoena?
o
1. Ad testificandum: appear and testify
o
2. Duces tecum: appear and bring with him the documents or
things

N.B. He must appear too. Cannot just mail or send.
Who can issue a subpoena?
o
1. Court where witness must attend
o
2. Court where deposition is taken
o
3. Officer/body conducting investigation
o
4. Any justice of CA/SC in any case/investigation pending
o
Can the OMB issue a subpoena?

Yes.
Can the office of the prosecutor issue?

Yes.
Is the receipt of a subpoena by a respondent in a case filed
before the office of the prosecutor necessary for the office to
acquire jurisdiction over the respondent?
o
No. It is totally irrelevant. Preliminary investigation before
the Office of the Prosecutor is a statutory right, not
constitutional right. You can altogether dispense with it, or
waive it. It is not essential for due process.
o
There is an express provision in Rule 112(D) that says failure
to receive the subpoena will not bar the prosecutor from
issuing a resolution. It is not imperative.
Can a regular court judge subpoena a convicted person?
o
Yes, but the judge examines if it is for a valid purpose
o
For those under death/RP/Life and confined: must be
authorized by the SC to appear under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o
How do you quash a subpoena ad testificandum?

1. Witness is not bound thereby

What is an example of this?
o
If the witness is not qualified. Ex
the witness is the spouse of the
person he/she is testifying against

2. Witness fees and kilometrage allowed by the Rules
were not tendered

Witness must live within 100 KM of the
place where hearing is conducted
o
How do you quash a subpoena duces tecum?

1. Unreasonable and oppressive

2. Relevancy of the books, documents, etc. does not
appear

3. Failure to tender the costs of production

4. Kilometrage/witness fees

5. Failure to describe with particularity  N.B. not
in the rules
Can the clerk of court issue a subpoena in the absence of a
judicial action? (Note, this is not referring to investigation by a
quasi-judicial body.)
o
No.
What are the consequences of failure to comply with the
subpoena?
o





o
o
o
1. Arrest

Witness pays for the costs of arrest if failure is
without just cause
2. Contempt, if without just cause
To whom do these provisions not apply to?

1. Those who reside beyond 100KM from place
where he is to testify

2. Detention prisoner where no permission of court
was obtained
Depositions (Rule 23)



35
What can be the subject of Modes of Discovery?
o
As long as (1) relevant and (2) not privileged, and it must be
in (3) good faith
What do you mean by relevant?
o
“Germane” – need not as strict in definition as what the Rules
of Evidence require

So “not covered by pleadings” or “not a fact in issue”
is not a defense

It just needs to have something to do with the case
o
Why the wide latitude in taking advantage of Modes of
Discovery?

So that litigants and lawyers cannot suppress
information, and so that all information needed for a
just decision is on the table
What is the difference between taking a deposition and using
it?
o
Taking deposition – the court affords the widest latitude.
o
Using deposition – the rules are stricter

Ex. Witness is dead, abroad, cannot be summoned,
etc.

What is the difference in the standard of
relevance as regards use, vis-a-vis taking?

Follow the usual rules of evidence.
o
Can a deposition take the place of an actual oral
testimony?

As a general rule, it cannot. It’s hearsay. You have
to present the witness in court.

A deposition is not a substitute for oral testimony.
Oral testimony is required under Rule 132.
But this pertains to the use of depositions. In taking
them, you have wide latitude. But to use it, you
have to present the actual witness in court still.
o
What are the exceptions?

Provided in ROC. Ex. Witness is out of the country,
is dead, resides 100 km away from place of hearing,
cannot be subpoenaed, sick, infirm, etc.
o
If you take a deposition, are you compelled to present
it in court?

No.
o
If you use a part of a deposition, can the rest be
presented?

Yes.
o
If you fail to cross examine the witness in the
deposition, can you still cross-examine him in court?

Yes, you definitely can! (Sabio)
o
Always distinguish between “take” and “use.”
Are modes discretionary?
o
Yes, the court ultimately has discretion
o
While the parties can resort to it without leave of court, the
latter still can control how modes of discovery are used

Ex. Changing from oral deposition to written
interrogatories; deeming something as harassment,
etc.
o
Also, if there is no answer yet, there must be leave of court.
o
Can the court say “you have enough information
already, don’t resort to modes?

Yes. It’s within court discretion.
o
What is the rule on SC involvement?

SC does not get involved with TC decision unless it is
committed with GADALEJ.
Are modes of discovery cumulative?
o
Yes. You can use them one after another, or at the same
time.
o
But when will the court prevent resort to one mode
after another?

When you slept on your rights. Example: you could
have filed all at the same time, but you chose not to.
When can you avail of Modes of Discovery?
o
Any time, even during execution
When do you need leave of court, and when do you not?





Prior to filing of the answer, you need leave of court. The
issues for contention have not yet been joined. You don’t
exactly know yet what is germane to the case.
o
After filing of the answer, no need for leave of court.
o
Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
Who can be examined?
o
Anyone.
Who can seek deposition?
o
Any party.
What is the scope of examination?
o
Any matter not privileged, even if it is hearsay and may not
be used in court eventually (again, taking is different from
use)
o
See Sec. 2
How is information taken?
o
Question and answer, like in trials. Direct, cross.
How is it used in trial (Sec. 4)?
o
1) To impeach or contradict the testimony of the deponent as
witness

What if you called the witness yourself? Can
you impeach your own witness by presenting
the deposition?

Yes.
Because when you take the
deposition, you are not considered to have
made the deponent your witness.

Or, if the witness starts becoming hostile,
you can move to have him declared an
adverse witness so you can impeach him.

Alternatively: just get another witness to contradict
the prior one.
o
2) Can be used by one party against an adverse party
(including responsible officers of corporation as adverse
party) of for any purpose

WIDEST discretion.

Can be used to support own evidence, can be used
to impeach, etc.
o
3) Used in place of oral testimony, when:

A) Witness-deponent is dead
o





36
B) Resides more than 100KM away, except if the
party calling that witness procured the party’s
absence // or out of the Philippines

C) Unable to attend due to age, sickness,
imprisonment, etc.

D) Unable to compel attendance of the witness
through a subpoena

E) Exceptional circumstances

Take note that for this ground, there must
be application and notice to the court, since
it has to decide whether exceptional
circumstances exist.
What if the witness lives in Rockwell and he is temporarily
assigned to Pangasinan, do you need to summon him to court
or can you depose him?
o
Even if he is assigned elsewhere, the term is “RESIDES” so he
must live there. This is the rule that applies if he is still inside
the Philippines, but elsewhere.
o
This rule DOES NOT apply if the person is outside the
Philippines.
Even if a party is temporarily outside the
Philippines, you can depose him.
o
N.B. Take note, however of the rule that absence must not be
procured by the deposing party.
A party can present a part of a deposition at any time. What is
the right of the other party?
o
Right to compel the introduction of the rest of the deposition
relevant to the fact in issue.
X substituted for Y. X raised the objection that the deposition
cannot be used against her because she said she is a new party
and the deposition cannot be used against her.
o
Rule 23, Sec 5 provides that substitution does not affect the
right of depositions previously taken;
o
Notice to Y is notice to X. X only stepped into the shoes of Y.
How do you object when a deposition is being used against
you?
o
There are actually two stages in objecting to depositions:

First stage – during taking of the deposition. You
can object to questions as being leading, etc.

Second stage – time of use. You can object on any
ground that would lead to the exclusion of the
deposition, as if the witness were present.










37
Ex. witness is incompetent to testify, is a
minor and has no capacity to perceive, etc.
o
Exactly in which stage of trial do you object to the use
of the deposition?

At the time it is being offered, as with all kinds of
evidence
Before whom can a deposition be taken?
o
A. If in Philippines:

1. Judge

2. Notary public

3. Any person agreed upon by the parties, as long as
he can administer oaths
o
B. Outside the Philippines:

1. Embassy, legation, consul, consular agent

2. Any person

By commission

Letters rogatory

3. Any person agreed upon by the parties, as long as
he can administer oaths
Who are disqualified to be deposition officers? [Memorize; this
has not yet been asked]
o
1. Sixth degree of consanguinity from party
o
2. Employee or counsel of party
o
3. Sixth degree of consanguinity or employee of party’s
counsel
o
4. Financially interested in the action
Can a judge before whom the action is pending take
depositions?
o
Yes. (Ayala Land)
Dulay v. Dulay – A brother duped his brother; both are Filipinos. One
brother is a naturalized American, and applied for the latter’s
naturalization. The US government approved it. The later, once
there, was made the trustee of the deposits of the former. He spent
the money.
Filed case in Philippines.
Took deposition of bank
manager in US. The local court communicated the request with
foreign authority (letters rogatory – communication by one judicial
authority to another – to follow the rules of the latter). This is
distinguished from commission – where a person is appointed
commissioner; the deposition is governed by Philippine rules.
o
What is the difference?
Commissioner has no power to issue compulsive
processes like subpoenas. Courts can.
o
In this case, the court of Boston ignored the letters rogatory,
so they applied for deposition before a notary public. The
local court refused to accept, requiring a consular
certification.
o
The court here allowed because the letters were ignored and
there was no consular office in Boston, so they allowed
deposition before NY notary.
What is the rule in setting the time/date for deposition?
o
Reasonable notice is the general rule.
o
What is the rule on notice?

Give name and address of deponent

Give time, place, date of deposition
o
Do you have to say who the deposition officer is?

No. No need to disclose it.
o
Why is notice to the other party needed?

Due process.
So the other party can make
objections, etc.
o
Whose duty is it to give notice to the other party?

The party taking the deposition, because in general,
the court does not intervene
o
What notice is given?

Actual notice.
Can the other party oppose the taking of a deposition?
o
Yes.
o
Under what grounds?

“Annoy, embarrass, oppress”  memorize these
words

It is irrelevant
What is the process to take deposition?
o
Rule 23, Sections 19-21.
o
Who does the recording?

A stenographer, clerk, secretary – under the
direction and supervision of the officer
o
Then?

The deponent examines it and signs it

Can signing be waived?

Yes.
o
After the signature, what next?

The officer certifies it first




Then files it in court with indication that it is
authentic and complete
o
If there are objections, etc, can the officer rule upon
them?

No. He just records the objections.
o
There is a notice for oral deposition. If one of the
parties to the deposition cannot attend, and just
instead sends a list of questions, can this be done?

Yes. But the officer will read the questions verbatim
and record the answers verbatim.
o
What if the deponent does not want to answer? (Ex. He
says “no comment.”)

Generally, if you’re the officer in a deposition, you
cannot do anything about it.

EXCEPT: if you are a judge empowered through
letters rogatory
If the procedure is not followed, what will happen? What is the
consequence?
o
A party can file a motion to suppress deposition because the
procedure was not followed
o
What is the Ayala doctrine?

The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows it’s authentic and complete by personal
knowledge.
Can a subpoena be issued by reason of deposition-taking to
make sure that the deponent comes?
o
Yes. Rule 21, Sec. 5
What if the one called for the deposition does not show up?
o
He will be asked to pay for the costs of the other
party/witness which attended
o
[If you ask for a deposition, you can rely on the compulsory
powers of the court (ex. To issue a subpoena) to make sure
witnesses attend, because at least you won’t be liable if he
fails to show up.]
Can a deposition of a deceased person be presented in court?
Is this not hearsay?
o
It can be presented, as long as it was subjected to cross
examination. It is hearsay, but it can be submitted.
o
Is cross examination a necessity?

Yes; necessary to exempt it from the hearsay rule.





38








Re: irregularities on taking of deposition. What is the general
rule on errors/irregularities on taking depositions?
o
General rule is that it is waivable
o
What is the exception?

Relevance or competency of evidence  failure to
object is not a waiver

Unless a timely objection could have obviated the
defect
How are written interrogatories different from oral deposition?
o
The questions are in written form instead, instead of
personally appearing.
o
This is usually the most relied upon form of deposition since it
saves time and costs, and especially if the issue to be
discovered is not very contentious
When are cross-interrogatories submitted?
o
Within 10 days
Re-direct?
o
Within 5 days
Re-cross?
o
Within 3 days
When is the period to object?
o
The same as the period to file the responsive pleading.
Can you take deposition even after pre-trial?
o
Yes.
o
Do you need to reserve?

No need, even if you do not reserve it during pretrial. (Jonathan Landoil)
What are the consequences for non-compliance with order for
deposition? Can it be dismissed?
o
Yes, the court can dismiss. There can even be a judgment by
default
o
However, in the old case of Arellano, the court dismissed the
case due to refusal to be subjected to deposition. But the SC
said it was wrong. In this case though, the matter subject to
deposition is an incidental matter only, not the main issue of
the case.
o
Bottom line: it IS a possible result, but fall back on
materiality of the matter








Depositions before action or pending appeal

If there is no pending case can you take a deposition?
39
o
No. You file a case for the perpetuation of a testimony
o
So you file a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o
Place where the expected adverse party resides
Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is
expecting that Ms. Tan will file an action against her for malicious
mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take
his deposition and file a verified petition in the court of the place
where Ms. Tan resides.
What are the contents of the petition?
o
1. That the petitioner expects to be a party to an action in a
court in the Philippines but is presently unable to bring it
o
2. Subject matter of expected action and his interest therein
o
3. Facts he wants to establish by the proposed testimony and
reasons for such
o
4. Names/description of expected adverse parties and
addresses if known
o
5. Names and addresses of persons to be examined and
substance of testimony expected
o
What is the relief sought?

Ask for order authorizing petitioner to take
depositions of these persons
What is the requirement for notice and service?
o
Petitioner serves notice upon each expected adverse party
o
At least 20 days before hearing, court causes notice to be
served on:

1. Parties

2. Prospective deponents
For which can it be used?
o
It can be used in any action involving the same subject
matter
What if it involves the same subject matter but different parties
– but not impleaded?
o
Cannot be used. Must be the same party, or one represented
during the deposition taking. The general rule should apply.
When could you apply for deposition pending appeal?
o
Before judgment becomes final
Where filed?
o
In the court where judgment was rendered
The taking is different from the use, again. So it can be
taken in the RTC but used in the CA.
There is a pending case for certiorari, can you take a deposition
pending appeal?
o
No, certiorari is not an appeal
o


Interrogatories to parties








What is the nature of interrogatories to parties?
o
Served only by parties to parties
o
Generally only one set, unless allowed by court (sec. 4)
How are interrogatories to parties served?
o
Serve on adverse party and file in court
o
Serve on party, not on counsel; but counsel may answer
How are answers served?
o
Answers are served on party submitting and filed in court
o
Written, subscribed and sworn to under oath
o
15 days to file answers
When must objections be filed?
o
Objections must be filed within 10 days
o
N.B. Fresh period applies (according to some opinions)
What objections may be made?
o
1. Irrelevant
o
2. Meant to harass
o
3. Not within knowledge, hearsay
What is consequence of failure to file written interrogatories to
parties?
o
Failure to serve and file  can’t call adverse party as witness
o
Party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open
court or to give deposition pending appeal
What is the scope and use of these interrogatories?
o
May relate to any matter under Rule 23 Sec. 2 for same use
in Rule 23 Sec. 4
What is the effect of failure to answer?
o
Case may be dismissed if material
o
Or judgment by default

Request for admission





Rule 23 – there is direct, cross, re-direct, and re-cross
Rule 25 – Just one set of questions to be answered by the
other party
Re: time to answer
o
Rule 23 – no fixed time to answer, because what dictates the
period is the officer (since they have to appear before the
officer)
o
Rule 25 – 15 days from service thereof
Segue: can you call the adverse party to the witness stand?
o
YES! In general, YES. The answer is in Rule 132, Sec. 12
o
It is different if you call on the witness the accused himself (in
a criminal case)
o
o
Distinguish Rules 23 and 25:
o
Rule 23 – Party or a witness, or any person for that matter
o
Rule 25 – Interrogatories to PARTIES. Always to parties.
How must the questions be answered?

40
What is a request for admission?
o
1. Requesting to the other party that he admit the
genuineness of any material/relevant document

What else do you need to do?

Attach the document so it can be examined

Does an admission cover the contents of the
document?

No, just the genuineness – so you do not
have to prove it exists and it is genuine

The contents can be up for contentions

Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete,
and asked that the first party prepare a new list to
submit to the court within X days.
Instead of
submitting it to court, the first party submitted a
request for admission to the other party. Instead of
answering, the second party kept quiet. HELD: It
was an implied admission.
o
2. Or truth of any material and relevant matter
How do you initiate it?
o
File it in court and serve it to the other party
When?
o
After issues have been joined
The admission must be directed to whom?
o
The adverse party (Not the counsel – it must be served to
the other party) (Duque)





o
But the party’s counsel may answer (Larada)
What is the effect of failure to answer or reply to a request for
admission?
o
It is deemed admitted.
o
Must reply within 15 days.

What can the party also do in this period?

Can submit an objection

What happens to the period?

It suspends the fifteen days

What if the objection is denied, what happens
to the period?

The court sometimes gives extra 10 days, 5
days, etc. So it’s really within its discretion.
Who will suffer the cost?
o
The other party who refused to admit, if it is eventually
proven to be genuine or true
o
But in the meantime, advanced by the party requesting
What is the effect if you fail to ask the party to admit certain
material facts, which you could have asked and ought to be
within the personal knowledge of the latter?
o
You cannot present evidence on such facts.
o
This is very important although a lot of judges or litigants fail
to take advantage of this or recognize this.
o
But this is still subject to the court’s discretion.
What do you attack in requests for admission? Ultimate facts
or evidentiary matters?
o
As a matter of advice, attack the evidentiary matters.
o
Evidentiary matters are harder to deny (Ex. “Is it true that
the day before you were caught beating the red light and
your license was already confiscated for a prior violation?”)
There are four ways to respond to respond the request for
written admission:
o
1. Specifically deny written admissions
o
2. Not do anything
o
3. Admit
o
4. State why he cannot truthfully admit or deny for lack of
knowledge

N.B. A denial for want of knowledge if the fact is so
plainly and necessarily within the defendant’s
knowledge, his alleged ignorance or lack of
information will not be considered as a specific denial


Can you use an admission made in one case for another case?
o
No. It can only be used for that case and for that purpose
alone.
o
If it’s the same case, but for a different purpose?

It’s actually hard to say because admissions are not
stated for a particular purpose.

Atty. Melo: So it’s safe to say that once admitted, it
usually be used in that same case.
When an admission is made, is there any way for it to be
retracted?
o
The party making the admission can withdraw or amend
o
Must have “good reason.” So this is discretionary upon the
court.
Producing or inspection of things/documents




41
How do you initiate or start?
o
Filing a motion in the court where the case is pending
o
Comply with the requisites of motions (so give notice to other
parties)
What kinds of documents can you produce or inspect?
o
Anything that is relevant/material and not privileged
o
But you have to show good cause
“Fishing expeditions” are generally allowed in Modes. Is it the
same for this rule?
o
No. Rule 27 is not as free as the other rules – see Solidbank

The SC said that the motion to produce must not
permit a “roving inspection of a promiscuous mass of
documents.”

So the general rule that fishing expeditions are
allowed has less application for this rule.
o
Because here: (MEMORIZE)

1. You need a motion

2. You need to show good cause

3. You need to describe the documents with
particularity
What’s the difference between a subpoena duces tecum and
production of a document?
o
1. SDT: just request for a subpoena to be issued by the court
and the court will issue.
POD: you have to name the
documents with more particularity.
The process to secure the subpoena is a bit more
lenient (as opposed to motion for production, which
is in a motion that must be heard)
o
2. POD: you have to file a motion and provide good cause.
Since this is a mode of discovery, you still don’t have
particular documents in mind, though you still have to
describe them with some particularity.
o
3. SDT: If the one with custody over the documents is a nonparty, use a subpoena duces tecum
What must be the subject?
o
Books or things in the custody of the party addressed
o
“Possession, control or custody”  So if it’s no longer in the
possession, control, or custody of the party, he or she may
refuse
o
“Control” implies that sometimes the person does not have
authority to release/disclose these things or books
When can it be done?
o
There must be a pending case.
Can it be applied to land or other property?
o
Yes, there can be ocular inspection of land or other property.
What are the tests involved?
o
Reasonableness and practicability
Tanda v. Aldaya:
o
Motion to produce must be for inspection, photocopying, etc.
o
The document cannot be left with the court for distraint, as
one party here wanted to leave them with the clerk of court.
Is production required for presentation of secondary evidence?
o
Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o
But there is need for request to produce
o
So if you get a request to produce but it is targeted to a
specific document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and
you are allowed to examine. Are you bound to present it as
your evidence?
o
No, you’re not required. It is a mode of discovery – a way of
discovering evidence. If you like what you see, you still have
to go through the process of presenting it in court.









N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 2527
Physical and mental examination









42
This is so limited in its use that even the ‘04 guidelines do not include
it
When can you apply for this?
o
Mental or physical condition is in controversy
N.B. This is the only mode of discovery which the court can motu
propio can issue. The other modes, you have to apply for.
What is required?
o
1. Also upon motion
o
2. And with good cause shown
When can it be done?
o
When the physical or mental condition of a party is in
controversy
o
Ex. Guardianship, Physical Injuries, etc.
What does “in controversy” mean?
o
It has to be one of the main issues of the case, not just a side
matter.
What is the consequence if the copy of the examination is given
to the party examined, upon the latter’s request?
o
That examining party can now also ask for previous or
subsequent examination on the same matters of the
examined party
o
It must refer to the same condition. So if the examination
was on the other party’s head for mental examination, she
can only ask for similar reports on the mental condition of
that party.
What if the examined party refuses?
o
The court may make an order for delivery of the report
o
If there is refusal or failure to do so, and if by chance, that
examined party’s physicians were allowed to testify, their
testimonies can be excluded.
What is the effect of the requested party requesting for a copy
of the report made or taking the deposition of the examining
physician?
o
He waives any privilege in that action or another action
involving the same controversy, as regards testimony of other
examining persons, whether before or after
o
N.B. Privilege of doctor-patient only applies to civil case, not
criminal case
Consequences of non-compliance



What if there is refusal to answer questions in oral examination
or interrogatories (Rule 23 or 25)?
o
1. The proponent may pursue other questions
o
2. The examination may be adjourned
o
3. The proponent may request for a court order to compel an
answer
o
What if the application for the order is granted?

1. The deponent must answer

What if the deponent still refuses to
answer?
o
Indirect contempt

2. And if there was without substantial justification
to refuse, the court may compel payment of
reasonable expenses to procure the order, including
attorney’s fees
o
What if the application is denied?

1. The deponent need not answer

2. If the application was without substantial
justification, the court may require the proponent or
counsel or counsel (or both) to pay the deponent
reasonable expenses to oppose the application,
including attorney’s fees
When is there indirect contempt of court?
o
1. The deponent refuses to be sworn in
o
2. The deponent refuses to comply with court order to answer
a question
What if a party or officer/managing agent of a party refuses to
obey
either:
a)
order
to
answer,
b)
Rule
27
(production/inspection), or c) Rule 28 (physical/mental
examination), what are the court’s options?
o
1. The matter asked, contents of the paper/property, or
mental/physical condition – deemed established, for purposes
of the action
o
2. Order refusing to oppose claims on that matter, or submit
designated documents/thing, or introducing evidence on
physical/mental condition
o
3. Any of the following:





43

Striking out pleadings or some parts thereof

Staying proceedings

Dismissal of the action

Judgment by default
o
4. Arrest of the party/agent of the party

Exception?

For Rule 28 (examination of physical/mental
condition)
What if a party refuses to admit genuineness of a document or
truth of a matter of fact (Rule 26) and then it was found to be
genuine/true?
o
The proponent may apply to the court for an order requiring
reimbursement of reasonable fees to procure his proof,
including attorney’s fees
o
When does the court award this?

Every time, except:

1. If the denial was with good reasons

2. The admissions sought were without substantial
importance
What if a party/managing agent of a party fails to appear in
deposition or fails to serve answers to written interrogatories?
o
On motion and notice, the court may:

N.B. There must be notice by the party
o
1. Strike out
o
2. Dismiss action
o
3. Enter judgment by default
o
4. Order payment of reasonable fees including attorney’s fees
Against whom can there be no order of payment of expenses
and attorney’s fees?
o
The Republic
Can you use modes of discovery in special proceedings?
o
Yes.
o
Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o
There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is no trial yet.
o
You can call witnesses even before trial and obtain their
testimony.
o
o

Does
apply
o
But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.

For prosecution – examination before trial can only
be done in the court where the action is pending
because the law wants it to be harder for
prosecution.

For the accused, it should be made before either any
judge, before any member of the Bar (good
standing, etc.), any inferior court designated or
appointed by a superior court.
But the law does not say it’s deposition. But it’s akin to such,
according to a Supreme Court decision.
physical/mental examination as a mode of discovery
in criminal trial?
It’s inherent.


Trial





N.B. it does not say the party must be
indispensable; just his presence
o
2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o
Generally, the judge
o
Exception: to the clerk of court – delegated authority to
receive evidence

1. There are default proceedings

2. Ex parte

Examples of ex parte proceedings?
o
Default
o
Application of indigent
o
“As in” default [did not appear
during PT]

3. Parties agree in writing
Can an adoption case proceeding be delegated to the clerk of
court for reception of evidence?
o
No.
o
Always with the judge
Can a clerk of court issue a subpoena?
o
Yes, if it is a subpoena ad testificandum. If it is a subpoena
duces tecum, there must be order by court.
Can the clerk of court resolve objections raised in an ex parte
proceeding?
o
No.
o
Just note the objections, and forward to the judge.
o
The other party is not there – who will object?

Well, the clerk of court just has to note it down if
clearly objectionable.

Both civil and criminal procedures will not provide for conduct
in examination of a witness. Where is it found?
o
Rules on Evidence.
What is the order of presentation of evidence?
o
1. Plaintiff, to support complaint
o
2. Defendant, present defense
o
3. Third party, and so on
o
4. Parties faced with counter or cross claim, present defense
o
5. Rebutting evidence
Can it be reversed?
o
Yes, it can, if there is an affirmative defense.
o
Plaintiff in the usual and ordinary course of things presents
before the defendant.
o
Can there be reverse order if it is a civil case?

[Check answer]
Can there be judgment without trial?
o
When parties agree on facts involved in the action
o
If the agreement of facts is partial, trial shall be held as to
others
What are the grounds for cancellation of hearing (actually,
postponement)?
o
1. His presence is indispensable and illness is excusable


Trial by commissioner



44
Who is a commissioner?
o
Person authorized by the court to receive evidence
o
Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o
If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
commissioner?
o
1. Requires examination of long account
2. Taking of account necessary for court’s information for
court to render judgment/execute it
o
3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o
Yes.
o
Can he issue a subpoena duces tecum?

Yes, as long as within the order of reference (his
authority)
What if a witness refuses to obey a subpoena issued by the
commissioner or give evidence before him?
o
Deemed a contempt of the court that appointed the
commissioner
Can he resolve objections?
o
Yes.
o
N.B. this distinguishes him from a clerk of court
When are commissioners mandatory?
o
Expropriation  mandatory in second stage
o
Partition  only optional

If the parties stipulate how the property will be
partitioned, there is no need to go to the second
stage where commissioners are required
Report of a commissioner is not a judgment. It only aids the
court. What are the options of the court?
o
It may adopt, modify, or reject the report
o
What if the parties stipulate that the commissioner’s
findings of fact are final?

Only questions of law shall be considered thereafter
What is the rule on objections?
o
10 days from filing of report, parties can object to the findings
of the report
o
BUT, must make it before the commissioner during
proceedings, if these can be made by then – otherwise, will
not be considered by the court
Who shoulders the cost?
o
The losing party, in general. But the court may apportion
o









Demurrer to evidence




Consolidation


In consolidation, the cases are already pending; in joinder,
the cases are just being filed
There was a case where the court allowed for the consolidation of
cases in two different judicial regions – even when it was not even an
issue in the case!
What are the grounds for separate trials?
o
Convenience or avoidance of prejudice – may separate a
claim (ordinary, cross, counter, third-party)
o
When can there be a consolidation?
o
When actions involve a common question of law or fact
What is the difference between consolidation and joinder?

45
When do you apply for demurrer?
o
In civil, when plaintiff has completed presentation of evidence
o
In criminal, when the prosecution rests its case
o
When is this exactly?

After formal offer of evidence
Do you need leave of court?
o
In civil cases, no need for leave of court.
o
But if you file leave, is it okay?

Nothing really wrong, but you’re just delaying your
case.
o
In criminal cases, can you file demurrer without leave
of court?

Yes, but if it is denied, the consequences are serious.

If there is no leave, and demurrer is denied 
accused waives the right to present evidence

If there is leave of court, and demurrer is denied 
accused can still present evidence
What is your remedy of the losing party defendant if the
demurrer is granted? (civil)
o
Can still appeal, because demurrer is a final disposition of a
case.
If your demurrer is denied, what do you do? (civil)
o
You can submit evidence, and continue until judgment.
o
Can you file for an MR of the denial?

Yes, you can file. As long as there is an order, you
can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o
If the MR is denied, what can you do?

File certiorari
But in criminal demurrer, can you file for certiorari after denial
of the MR?
You cannot appeal a denial or file for certiorari until final
disposition of the case.
Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o
It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-file.
o
But is it reviewable by appeal?

No. It is an acquittal. Double jeopardy has set in.
o
But is it reviewable by another mode?

Petition for Certiorari (Rule 65)
Salazar: Demurrer to evidence takes the nature of a motion to
dismiss. If he files it without leave of court, he waives his right to
present evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o
If the demurrer is granted and the accused is
acquitted, can the accused adduce evidence on the civil
aspect of the case?

Despite the acquittal, the court can still hear the
case as to the civil aspect, unless there is a
declaration that the fact from which the civil liability
would arise does not exist.

So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o
The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o
This effect does not apply to criminal cases
P v. Cachola: N.B. In a bar exam, demurrer was once coined as
“motion to dismiss on the ground of insufficiency of evidence.” This
case used the very same terms.
o











Judgment on the pleadings


See the next section on Summary Judgment as to what the
difference is with that concept
Who files a motion for judgment on the pleadings?
o
The plaintiff, always
Can there be partial judgment on the pleadings on this ground?
o
No. It’s ALWAYS a full judgment on the pleadings.
o
N.B. This is different from summary judgment, where there
can be partial or complete summary judgments.
Can the defendant file a motion for judgment on the pleadings?
o
Based on a counterclaim.
If you’re the plaintiff, when can you file a motion for judgment
on the pleadings?
o
After the defendant files an answer.
o
Can it be during pre-trial?

Yes under Rule 18, Section 2g.

But as a rule of strategy, file it upon first chance to
do so.
o
Can you file a motion for judgment on the pleadings
after pre-trial?

Yes. But this is really belated.
If you’re the defendant, when can you file?
o
Anytime. (Note: this is on a counterclaim, so it doesn’t kill the
general rule that only the plaintiff can file this motion)
Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o
No. It must always be upon application.
o
Very important: But during pre-trial, the judge may prompt
the parties during pre-trial to have judgment on the pleadings
(Rule 18). But it’s still, ultimately with the parties’ consent.
So in the end, the judge still cannot grant it on his own.
What are the effects of motion for judgment on the pleadings?
o
1. The movant admits all of the material allegations of the
other party and rests his motion for judgment on those.
o
2, Movant waives or renounces claims for damages because
allegations as to amount of damages are not deemed
admitted if not specifically denied.
What is the requirement for notice of hearing?
o
3-day notice of hearing (general rule on motions)
o
N.B. in summary judgment, the opposing party is given 10
days notice
What is the remedy against judgment on the pleadings?
o
When is there judgment on the pleadings?
o
1. The answer fails to tender an issue
o
2. Or the answer admits the material allegations of the
adverse party’s pleading
What do the “material allegations” mean in the second ground?
o
It means the cause of action


46
o
Rule 45 certiorari, because a judgment on the pleadings does
not raise questions of fact, as the judgment is based on
pleadings alone and the judgment is final

Summary judgment







What is summary judgment?
o
There is no genuine issue as to a material fact. Memorize this
phrase.
o
When is there “no genuine issue”?

When the issue does not require presentation of
evidence for its resolution, and was just set up as
sham, fictitious, contrived, set-up in bad faith, or is
unsusstantial
What is the difference between this and “the answer does not
tender an issue”?
o
There is no issue as to a material fact (note: not on the
issues)
But can you have a summary judgment based on a tort?
o
No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o
Declaratory relief
o
Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, affidavits, depositions.
o
Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
o
N.B. these attachments must be sworn or certified copies
o
What must the affiant show?

The he is competent to the matters stated therein,

that the facts are the admissible in evidence,

and it is based on personal knowledge
What is the requirement for the motion and hearing?
o
Written motion at least 10 days before it is heard
o
When can the opposing party serve opposing
affidavits?

At least 3 days before the hearing
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,

the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable.
X owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this
something that would lead to summary judgment or judgment
on the pleadings?
o
Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but it’s
actually sham or fictitious.
o
Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
What is the remedy of the aggrieved party against a summary
judgment?
o
Appeal
o
Except if there is already a writ of execution, then certiorari
might be more applicable (because there is no plain, speedy,
available remedy)
Judgments






47
Can the court change its judgment?
o
Before it becomes final (ex. appeal period), it can as a matter
of right.
o
Once it becomes final, only clerical errors can be corrected.
What is immutability of judgments?
o
General rule: judgments are immutable; they cannot be
modified once final and executory
When is the judgment considered promulgated or rendered?
o
Filing with the Clerk of court, not mere signing
What are the exceptions?
o
1. Nunc pro tunc 

antedated judgment, when delay or error is due to
the court’s fault
o
2. Clerical or typographical errors
o
3. Void judgments
o
4. But some judgments cannot really obtain finality – like
support
Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o
No.
Is it required that the judge who heard the case is the same
who renders the decision?








o
No. But the judge must personally review it.
Is filing of memoranda by the parties (after the trial, after
submission of evidence) required/mandatory?
o
It is not mandatory. It is not essential.
o
Non-submission is not fatal.
What is a separate judgment?
o
If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o
Ex. In expropriation – there are two judgments:

1. Authority to expropriate

2. Just compensation
o
Ex. Summary judgment (one case has several judgments –
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
What is the difference between a separate judgment from a
several judgment?
o
Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o
Judgment will be against the members, not the entity itself
The judgment awards attorney’s fees. What is required for it to
be valid?
o
The court must state its factual, legal, and equitable
justification. They are not recoverable as a matter of right. If
there is no factual basis, then the award of attorney’s fees is
void.
What is required for a memorandum decision?
o
It must attach the findings of the lower court in an attached
annex which is made an indispensable part of the decision.
o
Remote reference is not allowed.
What is a sin prejuicio judgment?
o
It is not binding, because it makes reservation in favor of
some parties as to the right to do something in a separate
and further proceeding
What is a mittimus?
o
Final process for carrying into effect the decision of the
appellate court and the transmittal to the court a quo. It is
predicated on the finality of judgment.






Execution


When is execution a matter of right?
o
Judgment is final and executory  USUAL CASE
48

Ex. period appeal has already lapsed
When is execution a matter of discretion?
o
For good reasons, when it is not yet final and executory
o
Execution of several, separate, or partial judgment
Which court issues the writ of execution?
o
Court that rendered judgment
o
RTC issued a decision, it was appealed to the CA, then
to the SC. Who issues the writ of execution?

The RTC – the court of original jurisdiction
o
Are there instances wherein the writ will be issued by
an appellate court, or a court other than that of original
jurisdiction?

In the interest of justice, you can apply to the
appellate court. But the general rule is that it is still
the court that rendered the decision.
o
Can the CA issue a writ of execution, other than in this
instance?

When it exercises original jurisdiction.
Where do you file a motion for execution?
o
File it in the court that rendered the judgment.
o
Can it be filed with the appellate court?

Same with above.
Do you need to file a bond to apply for discretionary execution?
o
The obligor needs to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file
a supersedeas bond to apply for discretionary execution.
o
What does the obligee need to present then?

Proof showing good reason
o
What are examples when discretionary execution vest?

1. Perishable goods

2. Old age + sickness [?]
When does judgment become final and executory?
o
A final judgment or order is one that finally disposes of a
case.
This is the only thing that could be subject to
execution.
What is the difference between discretionary execution and
execution pending appeal?
o
They are the same. And both require good reasons.
Should the writ of execution conform to the dispositive
portion?
Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the
judgment. (Intramuros)
Is a full blown trial required for a motion for execution?
o
No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o
For as long as the TC has jurisdiction over the case.
o
See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued
as a matter of right?
o
No. You cannot stay it anymore – even with a bond. It’s a
matter of right.
o
What is the exception?

Get an injunction or TRO, claiming GADALEJ.
What are the judgments not stayed by appeal?
o
Injunction,
receivership,
accounting,
support,
other
judgments saying it’s immediately executory
Can an MR stay a motion for execution?
o
The provision only says “an appeal” can stay a judgment…
theoretically, jurisdiction is still with the court of original
jurisdiction.
o
But there is no clear answer.
In an ejectment case, which court issues the order of
demolition?
o
The court of original jurisdiction, i.e. the MTC
o
What is the exception?

Mina: Discretionary execution can be entertained by
the RTC.
Who has to make reports?
o
The sheriff, on any matter of execution, esp. the conduct of
such.
Is a motion for execution indispensable before the court can
execute?
o
Yes, even for those immediately executory in nature.
o
Cagayan de Oro: A lawful levy for execution is needed
before there can be a sale can be effected.
o
Can the court motu propio issue a writ of execution?

OCA v. Corpuz: Court on its own, cannot issue a
writ of execution without motion of another party

o














49
What is revival of judgment by an independent action?
o
If you went beyond 5 years from entry of judgment, but are
still within the prescriptive period, you can file an independent
action to execute.
When can you file a motion for execution?
o
Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o
No.
o
Is it always ten years?

YES.
This is the flat prescriptive period for
judgments.
Death after judgment:
o
If the judgment obligee dies, then the executor/administrator
applies for execution
o
If the judgment obligor dies, and judgment is for recovery of
real/personal property – there is a lien over his property
o
What if levy has already been effected?

Proceed to sale of the property to satisfy the
judgment.
o
What if the judgment is for money, not property?

File a claim against the estate
Section 8: Contents.
o
Do the contents have to always be there?

No. Only to the extent applicable.
Money judgments
o
Payment must be in what form?

In cash.
o
Payment must be made to whom?

To the judgment obligee, if available

What if he is not available?

To his representative

What if he is not available?

To the sheriff
o
Can payment be effected not by cash (Ex. check or
PN)?

Certified bank check is allowed

Or any other form of payment acceptable to the
latter
o
What if there is no cash?

Go to 
Levy on real or personal property
What will be disposed first?

Choice of judgment obligor

If he doesn’t make a choice, personal property is
prioritized over real property
o
What if there is no property?

Go to 
Garnishment
o
Custodian of the funds/deposit/royalty has to make a report.
o
How many days to report?

5
days
from
receipt
of
notice.
The
custodian/manager has 5 days to report if there is
money.
o
What does the court do next?

It issues an order requiring transfer of funds.
o
Can you garnish without prior demand of payment?

No.
Specific acts
o
If the court requires the obligor to do something, but
he refuses, what happens?

The court can require another person to perform it.
o
If the other person does not comply?

The court may consider that it has been DEEMED
complied with.

Give an example.

The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem
it complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o
Can an order for demolition be given along with the
writ of execution?

No. It is punitive in nature, so there must be a
hearing.

How is this accomplished?

There must be motion of judgment obligee
after due hearing and after the former has
failed to remove the same within a
reasonable time fixed by the court
o
When can there be contempt?


ONLY applies for special judgment, and there is
refusal to comply.
What are the properties exempt from judgment?
o
Family home, homestead, and the land

If you mortgaged your Family Home, will it still
be exempt from execution?

No.

What are homestead lands?

Public lands given to people giving them a
chance to cultivate
o
Libraries of professionals not beyond 300K
o
Furniture for the family not beyond 100K
o
Beasts of burden (up to 3)
o
Tombstones

What about mausoleums?

No.
o
[Among others]
When can you apply for a motion for execution?
o
Section 14. This also tells you the life of the writ.
o
What is the life of the writ?

5 years, before it expires.
Sec. 15-34:
o
Important parts:

Requirements of sale

Certificates of sale

Redemption

Redemption period

Who will be in possession of the property sold in
public sale

Who will be entitled to fruits/profits of the property

What if after participating in the sale, you are unable
to take possession of the property – remedies
o
What are the requirements for sale?

TWO NOTICE REQUIREMENT: one to the judgment
obligor, one to the public

Public – posting in 3 conspicuous places (or
even by publication if assessed value of real
property is 50K+)

What if it is a perishable good or personal
property?

o



50

o
o
Perishable goods – within reasonable time
(no strict timeframe)

Personal property – at least 5 days notice

Real property – posted for 20 days
o
N.B. not “at least”

What if the assessed value of the real property
exceeds 50,000, what is needed?

There must be publication

Should you notify the judgment obligor?

Perishable goods – just notice before the
sale

In all cases, notice at least 3 days before
the sale

What time must the sale be?

9 am to 2 pm, and it must be in the office of
the Clerk of Court. But usually, it is done
outside the hall of justice

What if it is personal property capable of
delivery?

It must be done in the place where the
property is located
What is the consequence of selling without notice or
defacing/removing the notice?

Penalty of 5000 pesos recoverable in the same action
What if there is a third party claimant?

He asserts his claim in the proceedings through an
affidavit of title

Served on the levying officer

Serve copy to the judgment obligee

What is the effect?

The officer is not bound to keep the
property

What is the remedy of the judgment obligee?

Post a bond approved by the court to
indemnify the claimant (value is not less
than value of property)

In such a case the officer shall not be liable
for damages for taking/keeping the property
if the bond is filed

When can there be a claim of damages for
taking or keeping of the property?

o
o
51
Only within 120 days from the date of filing
of the bond

N.B. The claimant is not precluded from filing a claim
to the property in a separate action
Is a certificate of sale mandatory for personal
properties capable of manual delivery?

No, it is not.

For real properties, you need a certificate of sale.

What are the contents of a certificate of sale?

1. Particular description of the real property
sold

2. Price paid for each distinct parcel or lot

3. Whole price paid

4. Statement that right of redemption
expires 1 year from the date of registration
of the certificate of sale

 registered with the ROD
Can you redeem personal property sold on public sale?

No. Personal properties cannot be redeemed, only
real properties.

Who can redeem real property?

The judgment obligor can redeem

Who else?

Those who have interest on the property,
either
by
credit,
encumbrance
(redemptioners)

What is the distinction?

Judgment obligor always has a period of 1
year, non-extendable

Once the judgment obligor redeems, no
further redemption is allowed.

Redemptioners may redeem, but it may
again be redeemed from them within 60
days by another redemptioner

What about the redemptioners?
o
Their
rights
were
never
extinguished. It still exists, over
the property.

If the judgment obligor does not
redeem, can the redemptioners redeem
beyond the 1 year period?
No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets
the property.
Who has possession during redemption period?

Obligor.
Who is entitled to fruits and profits?

Obligor.

N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
How must redemption be made?

It must be willingness and intention coupled with
tender of payment.
Willingness and intention
without tender is not enough.

Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held to
be invalid.

Beyond the redemption period, can it still be
redeemed?

It
is
not
anymore
redemption
as
contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.

Amount subject to sale + interest + taxes,
if before the one year period; however,
after the period is over, the amount can be
dictated by the parties freely.
I purchased property in a public sale, but someone with
a better interest came forward, so I wasn’t able to get
possession and transfer of the property. But I already
parted with my money, and paid the sheriff. What
should I do?

1. You can recover its value in the same action or
separate action

2. You can have the judgment revived in the name of
the purchaser – he steps into the shoes of the
judgment obligee.

o
o
o
o
o


52
In this case, he can execute – just like any
other judgment obligee.

[So if he cannot pay, he can levy, and if
not, he can garnish.]
In execution, you need to remember the word “satisfaction.” Sections
44 and 45 have this end in mind. The books of the case will not be
closed, even if you won, if judgment has not yet been fully satisfied.
What are the remedies of the judgment obligee if the writ of
execution as returned shows that the judgment has not been
satisfied?
o
1. Call the judgment obligor and have him examined in court,
through subpoena

N.B. only if the residence of the judgment obligor is
in the province or city of the court
o
2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena

What if in the course of examination, we find
that he owes the obligor?

He can then be charged.

NB. Obligor/debtor of the judgment obligor may pay
what he owes directly to the sheriff, and the sheriff
issues a proper receipt – enough to discharge
o
3. Amortization of payments
o
4. Court appoints a receiver over the property

Akin to the provisional remedy on receivership

This is the only provisional remedy that can be given
by the court even after judgment

The reason: to preserve the property.
o
5. If it is later discovered that the obligor has an interest over
a certain real property, the court can order a sale to satisfy
the judgment

Who is ordered to sell it?

The receiver

The property must be within the place in which
proceedings are had

N.B. the interest over the real property must be
ascertainable without controversy
o
6. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor:







1. The court may issue an order that the judgment
obligee institute an action for recovery of the interest
or debt against the judgment obligor
2. The court can forbid a transfer or other disposition
of the property within 120 days from notice of the
order
3. Punish the judgment obligee for failure to comply
with the order

N.B. ironically, it is the judgment obligee
subjected to punishment for failure to
comply

N.B. Atty. Salvador said the sale must be
within the 120 days provided by the order


In sum:
o
1. Examine obligor
o
2. Examine obligor’s obligor
o
3. Amortize
o
4. Receivership
o
5. Sale of obligor’s interest
o
6. Obligee action against obligor’s adverse claimant
What are the 3 scenarios to show full satisfaction?
o
1. The writ of execution has been returned to court

Every 30 days, the sheriff has to report on the status
of the writ
o
2. Written acknowledgement of the judgment obligee or
counsel
o
3. When there is an endorsement on the face of the records
of the case
Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
What are the effects of domestic judgment? (MEMORIZE)
o
1. As against a specific thing, condition/status/relationship of
a person – conclusive upon it

As an exception to this, where a will has been
probated, is death of the party conclusive?

It’s only presumed
o
2. Res judicata

Baretto v. CA: Two aspects of RJ – 1. judgment
bars the prosecution of the same claim, demand, or
cause of action, 2. Precludes the re-litigation of a


particular fact or issue in another action between the
same parties in a different claim or cause of action
o
3. Preclusion of issues/conclusiveness of judgment

As to other litigation actually and necessarily
included therein
What are the effects of foreign judgment?
o
1. Conclusive as a specific thing
o
2. Presumptive evidence of rights between parties
How do you enforce foreign judgments?
o
1. File a verified petition in the RTC
o
2. Show there was jurisdiction of the court over the subject
matter and over the parties
o
3. Prove the law of that jurisdiction
How do you impugn that foreign judgment?
o
1. Want of jurisdiction/notice to party
o
2. Collusion
o
3. Fraud
o
4. Clear mistake of law/fact
How about foreign arbitral awards?
o
You file an action for recognition.
It is not a foreign
judgment.
POST-JUDGMENT REMEDIES
Motion for reconsideration



53
Is an MR a prerequisite to appeal?
o
No.
In a case involving summary procedure, is MR allowed?
o
No, it is a prohibited pleading
How many days to file?
o
15 days
o
Can it be extended?

Cannot be extended

This rule has never been changed. You cannot file
an extension on an MR
o
So what’s the remedy?

Some lawyers suggest filing a supplement.
But
actually, there must be a new event or fact that
arises to do this. So this is dangerous.






How long must an MR be resolved?
o
Within 30 days
Can there be a partial MR?
o
Yes, when the court finds that the MR affects only a part of
the judgment (ex. just one of the issues).
Distinguish an MR from an MNT.
o
A. The grounds are different. In MNT, the grounds are FAME
and newly discovered evidence.

What fraud is needed here?

Extrinsic fraud.

What is mistake?

Mistake of fact in good faith

If there’s a mistake of law, the remedy is an
MR, not MNT

What is newly discovered evidence?

1. It must be material

2. It was not available during trial despite
exercise of due diligence

3. If considered by the court, it could
later/change the result
o
B. The effect is different. An MR involves a trial de novo, if
approved.
o
What are the grounds for MR?

1. Evidence not sufficient to support the judgment

2. Excessive damages

3. Decision contrary to law
What is the fresh period rule?
o
Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o
No. Just Rules 40 and 41 (ordinary appeal).
Why? What about the others?
o
Rule 42 (petition for review) – no need for Neypes ruling,
because the provision itself provides for it

“The petition shall be filed and served within 15 days
from notice of the decision to be reviewed or of the
denial of the petitioner’s MNT/MR filed in due time”
o
Rule 43 (review of QJA) – no need as well

Same wording as Rule 42.
o
Rule 45 (petition for review on certiorari) –

Same
wording
(15
days
from
notice
of
judgment/final order or of denial of MNT/MR)





How many times can you file an MR?
o
Just once
How many times for a MNT?
o
Can be multiple, as long as on grounds not existing when the
first MNT was filed
What is the effect of granting an MNT?
o
There will be a trial de novo.
o
The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o
Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
o
Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o
There are different periods as well –

In the MNT in trial court: 15 days from judgment

In the CA: for as long as it’s an active case (no need
to wait for a judgment in the CA – as long as the CA
has jurisdiction)
Is there a MNT in the SC?
o
Rule 56 –
o
As a rule, an MNT cannot be entertained in the SC.
o
But it is left with the sound discretion of the court if it feels
that it should do it in the interest of justice.
Petition for relief



54
How many kinds of petition for relief do we have?
o
Two.
o
1. From judgment
o
2. From denial of appeal
Where do you file it?
o
From judgment: before the court that rendered judgment, not
before the appellate court
o
From denial of appeal: from the court that gives due course
to an appeal

N.B. So if it’s ordinary review, to the lower court. If
it’s a petition for review, then to the appellate court.
A lawyer forgot to file an appeal on time. He filed late, and it
was denied. What do you apply for?
Cannot use petition for relief from denial of appeal, because
there is no ground. He just forgot; he wasn’t prevented.
o
You file an MR.
o
Why?

You file a petition for relief from denial of appeal if
you were prevented from filing it. Here, he was not.
What is the time period for filing petition for relief?
o
Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
o
BUT NOT more than 6 months after entry of judgment/order
o
N.B. both periods must apply (“60 within 6”)

The sixty days can only move around the six
months. If you found out the day before six months
expire, you are left with one day, not 60 days.
Can you file a petition for relief from judgment when there is
still an available remedy of MR, MNT, or appeal?
o
No. As long as there are still available reliefs, you cannot
resort to petition for relief from judgment. Take note, that
there must be entry of judgment, which means if there is no
final judgment yet, you can still do an MR/MNT/appeal.
Where else does FAME apply?
o
1. MNT
o
2. Petition for relief from judgment/denial of appeal
o
3. MR to court order declaring defendant “as in default”
(failed to appear in pre-trial)
o
4. Motion to lift order of default (failure to file an answer)
What are the grounds for annulment of judgment (Rule 47)?
o
1. Extrinsic fraud

Prescribes 4 years from time of discovery
o
2. Lack of jurisdiction (covers both SM and person)

N.B. This is the only provision that uses lack of
jurisdiction both ways
Mr. X died, leaving an estate. Juan claims to be the sole heir.
The estate court adjudicated the entire estate in favor of Juan.
Judgment became final and executory. After 2 months, the rest
of the heirs who learned of the judgment came forward and
filed a motion to set aside the judgment. Court denied the
motion to set aside the judgment. So they went to the CA on
an annulment of judgment. (N.B. a petition for annulment of
judgment is an original action; it is not an appeal. You file this for a
decision of the MTC, to the RTC and for a decision of the RTC, to the
o






CA.) Did they use the proper remedy for filing petition for
annulment of judgment in the CA and not petition for relief to
the court that issued the judgment? (Alaban v. CA)
o
Petition for relief.
o
1. Although section one states that only a party may file a
petition for relief from judgment, settlement of estate is an
action in rem. It requires publication, so the heirs have been
notified and deemed as parties.
o
2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition
for relief, since it falls within the period.
N.B. Remember this: petition for relief is filed by a party to a case.
Annulment of judgment can be availed of even by a non-party to a
case.
Appeals




55
1. Appeal is a statutory privilege
o
Neither a natural right nor a constitutional right
o
There is right to due process. But the right to appeal an
adverse decision is not part of the right to due process.
o
Thus you cannot deviate from the requirements made
mandatory under that law that gave you such privilege.
2. “Matter of right” (qualified)
o
One can technically view appeal as a right as long as there is
a statute providing you such privilege already laid down
o
Ex. judgments of MTC and RTC exercising original jurisdiction

So if the RTC exercised original jurisdiction, the CA
must entertain the appeal
3. Not a “matter of right”
o
Ex. appealing from judgment of a court already exercising
appellate jurisdiction
o
Ex. MTC (original)  RTC (appellate)

One may file a Petition for Review  technically, this
is still a matter of right [at least, to file, from one’s
point of view]

But whether it is given due course by the higher
court or not is another issue – there is discretion not
to entertain the petition for review
o
Ex. Rule 42, Rule 43, Rule 45
4. Purpose of appeal
o
Review errors of judgment
Errors of fact or errors of law
One is talking about a court having jurisdiction over
the person and subject matter

Goal: to achieve reversal or modification of judgment
o
Contra: errors of jurisdiction

Goal: set aside judgment. This is covered by Rule
65.
ONLY the defenses that were put up in trial court may be elevated for
appeal. Issues not discussed below at all, in the pleadings, may not
be elevated for appeal. (Rule 44, Sec. 15)
o
How are issues raised in the trial court?

Raised in the pleadings
o
May that issue not included in the pleadings be tried
nonetheless?

No. Except if one moves to amend the pleadings to
conform to evidence or authorize its presentation
o
A party submits evidence outside the issues raised in
the pleadings. The other party accedes to it. How does
the other party show that he did not object to the
raising of issues outside the pleadings?

Submitted evidence on that issue too

Cross-examination

Remaining silent
A question of jurisdiction is something that you can question
anytime. (“A dragon that may be slain each time it rears its
ugly head.”):
o
It doesn’t matter if you raise it on appeal or through SCA; the
point is you can raise it to a higher court.
What is the exception?
o
Estoppel. For instance, X failed to object to jurisdiction of the
tribunal and actively participated in the trial.
If a party to a case got a smaller amount than prayed for, but
he won the case, can he appeal?
o
Yes, he was not satisfied with the award. It does not follow
that just because a person won the case, he is not allowed to
appeal.
In a criminal case, the accused is convicted. May he appeal?
o
Yes.
May the State appeal on the ground that the penalty imposed is
not what the prosecution wanted?
o
Yes.











56
Appeal is a remedy. A remedy to what?
o
An appeal may be taken from a judgment or final order that
completely disposes of the case,
o
Or of a particular matter therein when declared by these
Rules to be appealable. (Rule 41, Sec. 1)

Ex. special proceedings or SCAs usually allow
multiple appeals; e.g. settlement of estate: probate
of will, appointment of executor, etc.
o
Why does the provision not put the word “final” before
“judgment”?

Because if the judgment is final, then it would be
executory otherwise. To remove this confusion, then
the provision does not state “final”
o
Why does the provision put “final” before “order”?

Because the provision wants to contrast this against
interlocutory orders, which are non-appealable.
o
Is there a distinction between judgment that
completely disposes of the case and final order that
completely disposes of the case?

Judgment is based on the merits of the case, after a
full-blown trial and evaluation of evidence.

Final order is based on adjudication not after going
through a full blown trial. Ex. MTD or demurrer
The defendant files an answer but it did not controvert the
allegations in the complaint. What should the plaintiff do?
o
File motion for judgment on the pleadings (Rule 34).
o
This is a final order that completely disposes of the case, and
is appealable.
What matters cannot be appealed?
o
1. Order denying petition for relief from judgment:

Remedy is any of the Rule 65 remedies
o
2. Order denying interlocutory order:

Judy Ann Santos v. People – MTQ denied. Filed MR
to the denial of the MTQ. HELD: The denial of the
MTQ is an interlocutory order which is not the proper
subject of appeal or petition for certiorari.

There would be no procedural void:

A) There can still be appeal of the main case

B) There can be petition for certiorari of the
main case if there is GADALEJ
Two reasons why interlocutory order cannot be
appealed:

A) Still subject to modification or rescission
by the court
o
Ex. for preliminary injunction, may
file for motion to discharge the
injunction or may file counter bond

B) To avoid multiplicity of appeals
3. An order disallowing or dismissing an appeal.

“Disallowing an appeal” – this is fairly obvious

“Dismissing an appeal”

This does not refer to adverse decisions. It
just gets confusing for many because the
appellate courts use the term “hereby the
appeal is dismissed” if a party loses an
appeal.

It actually means the same thing as
disallowance; so for instance, there was no
payment of docket fees, etc.
4. An order denying a motion to set aside judgment by
consent, confession, or compromise on ground of duress,
fraud, or mistake or any ground vitiating consent.

What is unique about judgment rendered by
court based on compromise?

It is immediately executory.

For instance, a party is defrauded by the other
party in a compromise agreement. He files a
motion to set aside the judgment. It was
denied. What is the remedy?

He can’t appeal, but can avail of Rule 65.
5. Order of execution
6. Order dismissing an action without prejudice

What is a dismissal without prejudice?

One that does not bar the party from again
filing the same action disposed of.

MTD was filed by the defendant on the ground
of failure to state cause of action, and it was
granted. Is it appealable?

No. It is dismissal without prejudice.

MTD based on statute of limitations: dismissal
without prejudice?


o
o
o
o



57
No. It is a dismissal with prejudice, and
therefore appealable, because the action
has prescribed, and cannot be re-filed.

What are the four grounds where dismissal is
with prejudice?

1. Statute of limitations

2. Statute of frauds

3. Res judicata

4. Payment, waiver, extinguishment,
abandonment
o
7. Judgment or final order in an action with several parties or
claims, counterclaims, cross-claims, and 3rd party claims,
when the main case is pending unless the court allows

General rule: wait for the main decision. Even if
the main decision comes out 2 years after, the party
receiving an adverse decision may still file an appeal
in time.
In all of the grounds stated therein, where there is no appeal
allowed, what is the proper remedy?
o
Rule 65.
What ground has been deleted?
o
Order denying MNT or MR – this used to be the first in the
enumeration
o
SC-07-7 (Dec 2007) removed this from the enumeration.
o
Does this mean that you may appeal from the order
denying the MR or MNT?

No, still not.
o
So why was this removed from the enumeration?

So the parties cannot avail of the last paragraph of
Sec. 1 (Rule 65 – certiorari, prohibition, mandamus)
to question the denial of the MR or MNT.

But this is a bit unfair, because for instance, your
MNT was denied even if there actually was new
evidence – you don’t have certiorari as a remedy
anymore!

Although nothing prevents filing a separate petition
for certiorari to question this act by the TC.
What are the three modes of appeal?
o
1. Ordinary appeal (Rules 40 and 41)
o
2. Petition for review
o
3. Petition for review on certiorari



What are the ordinary appeals?
o
1. Notice of appeal
o
2. Record on appeal
When is there record on appeal?
o
1. Multiple appeals
o
2. Special proceedings
What happens to the title of the case?
o
The title remains the same. So the plaintiff is still mentioned
first, and the defendant next.

But the designation just changes.

Ex. Glenn Tuazon, plaintiff v. Rensi Pua, defendant

 Glenn Tuazon, appellee v. Rensi Pua, appellant or

 Glenn Tuazon, appellant v. Rensi Pua, appellee
o
What if it goes up to the Supreme Court?

When one goes up to the Supreme Court, it becomes
petitioner v. respondent.

And the title need not remain the same.

You do not include the CA as a respondent when you
appeal to the SC, still the same private party. (The
SC already issued a circular for this.)

The lower court only becomes a respondent, for
instance, in a petition for certiorari. If there is
GADALEJ, for instance, the defendant is the court.
The private respondent just files the response on
behalf of the public respondent.
o
Under Rule 43 (Q-J), what is the rule?

There is no set rule. It can be appellant/appellee or
petitioner/respondent.
o
What if both parties appeal?

Plaintiff-appellant v. Defendant-appellant

But in their briefs, they would refer to the other
party as “appellee”

Ordinary appeals (Rule 40-41)

If there was notice sent to both the party and the
counsel, and the notice to counsel arrived earlier, what
is the reckoning point?

The notice to counsel, because notice to counsel is
notice to the party.
o
If you have multiple counsels, and the court clerk sent
a copy to all such, what is the reckoning point?

Upon the receipt of the lead counsel, as opposed to
collaborating counsel.

If both are co-counsels, then receipt by either starts
the reglementary period.
o
Can you extend the period of 15 days?

Not extendable

But if you file an MR and it is denied, following
Neypes (as adopted by SC 07-7), you get a fresh
period.

X set a hearing for MNT on June 20. The court
ruled on July 6, denying the MNT. X got a copy
on July 9 by registered mail.

X can still appeal. It is immaterial how long
the court took to resolve the MNT.

Fresh period of 15 days to appeal.
o
X, instead of filing an MR, filed a motion for extension
to file the MR. He filed on the 14th day. It was denied
outright. Having the motion denied, how many days
remain to file a notice of appeal?

This is a prohibited motion, so it should be treated as
if it were not filed. The period continues to run. If it
was decided beyond the 15th day, then X is barred.
When is the period of appeal 30 days?
o
Record on appeal (to be discussed in Rule 41)
o
But you must file both notice and record. When is the
notice of appeal filed?

There is no separate time frame for the notice of
appeal. Both can be filed within the 30 day period.
o
Can you extend the period of 30 days?

No

Except when there is an authorized alteration or
modification of the record
What is the period to appeal for Habeas Corpus cases?
o
Within 48 hours
o
Period to appeal?
o
15 days for notice of appeal, from receipt of notice of the
judgment
o
Receipt by whom?

The party or the counsel

58
What about Writ of Amparo and Writ of Habeas Data
cases?

Within 5 working days, Petition for Review on
Certiorari (Rule 45) – but can raise both questions of
fact and law
Appeal docket fee and other lawful fees – when and where do
you pay?
o
Where: to the court that rendered the decision
o
When: within the period to take appeal (so same as 15/30)
o
Note: this above requirement is MANDATORY AND
JURISDICTIONAL.
o
What if the notice was filed within 15 days, but the
docket fees were not paid within the same time (ex. 18
days)?

The dismissal is not automatic – the trial court still
retains jurisdiction. It can decide whether to decide
to dismiss the appeal (failure to comply with a
mandatory and jurisdictional requirement) or to
continue with the appeal.
o
What if he paid but the fees are short?

What is mandatory and jurisdictional is the payment
of the whole docket fee.

Usually the judge gives an order giving the party
time to comply with filing the entire docket fee.
Contrast the Neypes fresh period with other fresh periods in
Civil Procedure –
o
Filed motion to dismiss on the 13th day. It was denied.
How many days remain for you to file an answer – the
2 days or a fresh period?

Fresh period of 5 days. (Rule 16)
o
If it is a bill of particulars, filed on the 13th day. 2 days
remain or fresh period?

Fresh period of 5 days. (Rule 12)
If the notice of appeal to the MTC did not make mention to
which court the appeal will go to, is it fatal?
o
No. The law will fill the gaps that it would be the RTC hearing
the appeal.
If the notice of appeal to the MTC was flawed enough to state
that the appeal will go straight to the Supreme Court, because
he is just raising pure questions of law?
o




The court may have discretion to send it to the RTC instead.
But of course, this is up for question.
If a court must to make a ruling that the appeal is erroneous,
who makes that decision? The trial court or the erroneously
selected higher court?
o
Higher court.
What if there was no copy of the notice filed to the other party?
o
It is a fatal defect.
What is a record on appeal?
o
It’s a sequential compilation of the pleadings, orders, etc. of
the judge.
o
Unlike a notice of appeal, which is just a statement of: a)
when you received the decision, b) that you paid appeal
docket fees within period, and c) you intend to appeal
When is a record of appeal required?
o
1. Special proceedings
o
2. Separate or multiple appeals if allowed by law or the rules

For separate appeals, the judge decides if it is
allowed. GENERAL rule: wait for all the claims to be
decided (in a case with multiple claims).
Can there be record on appeal be required for an appeal coming
from the MTC?
o
Yes. For example, settlement of estate of decedent who
resided outside MM, and 300K or less.
Why is there a need for approval of the Record by the trial
court?
o
The court must determine whether the record of appeal is
complete.
o
Note: the copy furnished to the other party also gives him
chance to scrutinize the completeness of the record.
When will you not indicate which documentary or testimonial
evidence you are including in the record in the reference?
o
When ALL of the testimonial and documentary evidence is
included. One just has to make a statement to that effect.
When is appeal perfected?
o
Upon filing notice + payment of docket fees
When is the trial court’s jurisdiction lost?
o
Upon the perfection of appeal by all the parties in due time
OR upon the lapse of the reglementary period given for them
to appeal lapses
How about record on appeal?
o










59
Not upon mere filing of notice, but upon APPROVAL of the
record on appeal
When does the court lose jurisdiction over the whole case?
o
Only upon final order or decision of the case
o
Because the record on appeal is only about a particular
subject matter in the trial
If you go from the MTC to the RTC, what is the process?
o
Take note that the RTC is an appellate court here.
o
Parties file a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
o
Period for filing of briefs?

15 days, appellant’s memorandum (from notification
of RTC clerk of receipt of complete record/record on
appeal)

15 days, appellee’s memorandum (from receipt of
appellant’s memorandum)
In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o
Because it’s only been decided on once, and will be reviewed
for the first time.
o
What is the procedure in the CA?

Filing of appellant’s and appellee’s brief.
The
procedure is found in Rule 44, not 41.
o
Period for filing of briefs?

45 days, appellant’s brief (from receipt of notice of
the clerk that all evidence have been attached to
record)

45 days, appellee’s brief (from receipt of appellant’s
brief)

20 days, for reply (from receipt of appellee’s brief)
Coming from a loss in the RTC (exercising original jurisdiction),
what are the available remedies?
o
1. Ordinary appeal
o
2. Petition for review on certiorari (Rule 45)

For pure questions of law
o
3. Record on appeal + Notice of appeal
Differentiate:
o
Petition for certiorari (Rule 65) – errors of jurisdiction
o
Petition for review (Rule 42 and 43) – second level appeal
o
Petition for review on certiorari (Rule 45) – pure questions of
law

o






When can you NOT go straight to the SC despite the appeal
being of pure questions of law?
o
If it is coming from the MTC, it has to go to the RTC first,
then CA, then SC. Cannot go straight to the SC.
o
N.B. If the RTC is exercising appellate J (came from the
MTC), you cannot go straight to the SC by Rule 45. If
original, you can go straight to the SC by Rule 45.
A case was filed in the MTC, but it was dismissed for lack of
jurisdiction. There was notice of appeal filed, and it was held
that the RTC had jurisdiction, which heard the case. Is the RTC
performing original or appellate jurisdiction?
o
Either argument seems defensible.
o
As a practitioner, what would be more protective of
your client, Rule 41 or 42?

Rule 41 seems precarious. Play safe, go for Rule 42.

Although using Rule 42 would be more burdensome,
since you have to come up with your entire
assignment of errors within 15 days (rather than just
filing the notice).
Petitions for review (Rules 42-43)




60
What are the two kinds of petition for review?
o
Rule 42
o
Rule 43 (quasi judicial agencies)
o
What about petition for review of the decisions of the
Prosecutor?

It is technically not a petition for review because it is
for criminal procedure, and is in the executive
branch
When does Rule 42 apply?
o
There is denial in the MTC, and then denial in the RTC, and
then it goes up to the CA through Petition for Review.
When does Rule 43 apply?
o
Body with original jurisdiction is a quasi-judicial agency
o
Is the enumeration in Rule 43 of QJAs exclusive?

No.
Particular rules:
o
HLURB  Office of the President  CA
o
NLRC  CA, but under Rule 65, not 43
o
DARAB  CA
o
CTA  CTA en banc  SC
COMELEC, COA  SC (Rule 65)
CSC  CA (Rule 43)
OMB  CA (Rule 43) for admin cases
OMB  SC (Rule 65) for non-admin cases
DOJ Prosecutors  DOJ Secretary (petition for review) 
CA (Rule 65, based on GADALEJ)

N.B. this is only for civil procedure. The rule for
criminal procedure differs (involves Office of the
President)
If the issues you are going to raise are questions of fact (ex.
whether there was cultivation of the land, to the DAR), where
should he bring that problem?
o
To the CA (of course, exhaust admin remedies first)
If the question you are going to raise is purely legal, where do
you go?
o
Still to the CA
o
Sec. 3 (“whether the appeal involves questions of fact, law, or
mixed questions of fact and law”)
Why is Rule 43 still called petition for review even if the QJ-A is
exercising original jurisdiction?
o
Because the QJ-A is presumed to have the proper expertise,
beyond what the courts possess. The presumption is
definitely against the one appealing.
o
This is why the CA does not automatically provide due course.
What are the periods?
o
Same for Rule 42 and 43 – 15 days
o
Can you ask for an extension?

Yes, you can ask for one during the reglementary
period.

Upon motion and payment of docket fees
o
Can you ask for a second extension?

General rule is that no further extensions are
allowed, except for the most compelling reasons.
What are the requirements of a Rule 42?
o
1. It must be verified
o
2. Attach a copy of the decision or a duplicate original
o
3. Affidavit of material dates

Date of receipt of decision, date of filing of MR, date
of denial of MR
o
4. Contents of petition:

Parties
o
o
o
o
o










61

Issues, grounds relied upon, errors

Explanation if service is other than personal
o
5. Furnish RTC and other copy a copy of the petition
o
6. Pay docket fees to CA
o
What are some causes that will dismiss the petition?

1. The jurat does not comply with the requirements
of the notarial law

2. Failure to attach registry receipt
What are the requirements of a Rule 43?
o
SAME, but you attach all certified true copies
o
Why?

Because it came from a QJA, the court cannot verify
if the issued resolutions, etc. are genuine
Is a Certification of Non-Forum Shopping required?
o
Yes, for both Rules 42 and 43.
What actions can be taken by the CA?
o
1. Require respondent to file comment within 10 days of
notice

Not motion to dismiss
o
2. Dismiss petition outright if:

A) patently without merit

B) manifestly filed for delay

C) too unsubstantial to require consideration
What are the requirements of the comment to be filed by the
adverse party?
o
1. 7 copies
o
2. Accompanied by relevant certified true copies of material
portions of record
o
3. Contents:

A) whether or not he accepts statement of matters

B) point out insufficiencies and inconsistencies in
statement of matters

C) reasons why petition must not be given due
course
o
4. Copy given to petitioner
What is due course?
o
That which is given when the CA finds prima facie that the
lower court has committed an error of fact or law that will
warrant reversal or modification of decision
o
You have to wait for a notice whether the CA is giving due
course to the petition.
When does the CA decide w/n to give due course?

After submission of the comment or expiration of
date to file it.
Does the appeal stay the implementation or execution of the
judgment of lower courts in a Rule 42 petition?
o
Yes.
o
Exception: summary proceedings in MTC

Ex. Ejectment from MTC. The judgment in this
ejectment case is immediately executory.

But it can be appealed to the RTC. However, even
pending appeal, it is still executory.

BUT it can be stayed by posting supersedeas bond
and making deposit of monthly rentals and fair
compensation for usage.
Does the appeal stay the implementation or execution of the
judgment of QJAs in a Rule 43 petition?
o
QJ-A’s decisions is NOT stayed, as a general rule.
o
Although each law creating the administrative agency will
provide a specific rule as to whether its decision will be stayed
by appeal to the CA. BUT remember the general rule. It will
not be stayed.
o
Why is it that the general rule under Rule 42, is that
the judgment of the RTC will be stayed pending
resolution, whereas in Rule 43, it will not be stayed?

Because there is presumption of correctness on the
matter of expertise of the QJ-A.
When is there elevation of record from the RTC?
o
Only when CA deems necessary
o
May order clerk of RTC to elevate records 15 days from notice
When is there perfection of appeal?
o
Upon timely filing of petition for review + payment of docket
and other lawful fees
o
When does the RTC lose jurisdiction over the case?

Perfection of appeals + expiration of time for others
o
When can the RTC issue orders under its residual
powers?

Before giving due course by CA
o
Residual powers:

1. Protection and preservation of rights of parties on
matter not subject of appeal

2. Approve compromises
o







3. Permit appeals of indigent litigants

4. Order execution of judgment pending appeal

5. Approve withdrawal of appeal
o
Why are there no residual powers in Rule 43?

Because we are dealing with QJ-As, not regular
courts.
After giving due course, what may the CA require?
o
1. Set case for oral argument
o
2. Or require parties to submit memoranda within 15 days
When is the case deemed submitted for decision?
o
Upon filing last memorandum or pleading
Petition for Review on Certiorari (Rule 45)


62
The only way to go up to the SC is through Petition for Review on
Certiorari.
o
EXCEPTION: what if in a criminal case, the judgment of
the SB, RTC, or CA is life imprisonment or reclusion
perpetua?

Go to the SC, but NOT by appeal by certiorari but by
notice of appeal.
o
There are two situations where the SC can entertain
questions of facts, apart from life/RP decisions. What
are these?

Writ of amparo (2007)

Writ of habeas data (2008)

(“Any aggrieved party in a lower court decision re:
WOA or WOHD may go straight to the SC, even if
there are questions of fact.”)
What does Rule 45 cover?
o
Only appeals involving pure questions of law
o
Because the SC does not try facts, nor calibrate evidence
o
Question of law:

If the doubt or the difference pertains to what law
applies to a given set of facts.
o
Question of fact:

If the doubt pertains to the truth or falsity of an
alleged fact
o
What if the issue raised in appeal is whether the
contract between parties is a contract of sale or
contract of equitable mortgage – what is the nature of
the question?





Question of fact and law.
What are the exceptions to the rule that the SC cannot review
findings of fact of the lower court?
o
1. Conclusion based on speculation, surmises, conjectures
o
2. Inference is manifestly absurd, mistaken, impossible
o
3. Grave abuse in apprehension of facts
o
4. Decision based on misapprehension of facts
o
5. Contradicting findings of fact
o
6. Lower court went beyond issues raised and against what
was stipulated by the parties
Whose decisions can you appeal to the SC under Rule 45?
o
1. CA

EITHER original or appellate (from RTC) jurisdiction,
as long as questions are purely of law

Examples of original J: certiorari, prohibition, etc.
o
2. CTA

Under RA 9282, it must be a decision of the CTA en
banc
o
3. RTC

ONLY those decided under its original jurisdiction.

Because for decisions under its appellate jurisdiction,
you have to go to the CA. (Rule 42), EVEN IF it is
only pure questions of law.
o
4. Sandiganbayan

It goes automatically to the SC, because it is a coequal court with the CA. So the CA cannot review its
decisions
Take note of this amendment: AM 07-7-12-SC:
o
The petitioner can now apply for provisional remedies (like
preliminary injunction, TRO) along with the petition for review
by certiorari
o
May seek these same remedies through verified motion in the
same action or proceeding anytime during its pendency
o
N.B. can include attachment, but this would be rare in the SC
level. Support pendente lite is fairly common. Replevin is
also fairly common.
Petition for Review on certiorari – what is the period?
o
15 days.

N.B. count from receipt of final order or judgment,
or denial of the MR (“auto fresh period”)
o
Can there be extension?

ONLY ONE extension for 30 days, for good reason
I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?

NOPE. You only get one extension.
o
What are the requirements for motion for extension?

1. Pay docket and filing fees.

N.B. The docket and filing fees must be
paid at the time you ask for the extension;
and NOT during the extended period.

2. There must be a justifiable reason.

3. Serve a copy of the motion for extension of time
to the adverse party
You raise a question of law to the SC. Is the review on
certiorari a matter of right?
o
No. It is still subject to judicial discretion.
So what questions of law do you need to raise to raise the
likelihood that your appeal will be given due course?
o
It must not just be a question of law; it must be a substantial
question of law.
o
What are the grounds to not give due course?

1) patently without merit

2) filed manifestly for delay

3) too unsubstantial to require further consideration

N.B. Same as in the CA
What are the contents of the petition?
o
1. Full name of the parties, without impleading the lower
court
o
2. Material dates showing timeliness
o
3. Concise statement of matters involved
o
4. Duplicate or CTC of judgment or final order or resolution
appealed from
o
5. Sworn certification against forum shopping

This is an odd rule, since usually it is only required
for initiatory pleadings
COMPARE with Rule 65.
o
Who is the private respondent in a petition for
certiorari (Rule 65)?

The other party, who benefited from the adverse
decision.
o
Who is the public respondent in Rule 65?

The judge or public officer.
o




63

Not required to answer the petition.
What about Rule 45?

The lower court is NOT impleaded. The case title
also doesn’t change.

So instead of Tuazon v. CA, it is still Tuazon v. Pua
Why is there a need to append to the appeal material portions
of the record?
o
Because the matter of elevating the records comes at a later
time, from the CA clerk to the SC. So at the time of the filing
of petition, you need to pinpoint the errors ahead of time.
What are the factors that must be considered whether the
petition should be given due course?
o
N.B. These are not controlling over the court’s ultimate
discretion
o
1. The question of substance has not yet been passed upon
by the SC [novel issue]; or decided not according to law
[power of correction]
o
2. Departed from usual accepted course of judicial
proceedings, or sanctioned such an act by a lower court
[power of supervision]

E.g. In a lower court hearing, the judge
arbitrarily disallowed a party from presenting
evidence.

This is an example of #2.

How do you differentiate it from GADALEJ
under Rule 65?

It’s difficult to do so, because the wording
of the second ground has all the trimmings
of Rule 65 Petition on Certiorari.
The CA and SC have concurrent jurisdiction over original
petitions for certiorari, mandamus, prohibition, etc. What
negative considerations must you have in deciding where to
file?
o
For CA – know that this is not final. There is still possibility of
petition for review by certiorari to SC.
o
For SC – Sol-Gen can launch the issue of judicial hierarchy
There are possible sanctions in case of non-filing or unauthorized
filing, or non-compliance with conditions, when the SC asks for
comment.
Sec 8 – due course after exchange of pleadings
o
o





It is a good sign and there is a receipt of resolution that the
SC has given due course to the petition
Rules 44-56 – CA




64
How is jurisdiction acquired over persons for original cases
filed in CA?
o
Service of order/resolution or voluntary submission to the
court’s jurisdiction
o
What does service of order or resolution mean?

Akin to Rule 13 service of judgment
o
What if there was an effort to serve and it was not
received?
Is the court deemed to have acquired
jurisdiction?

No. There must be proper service of the resolution
or order. Not like summons, but the same as Rule
13.
Can the CA conduct a hearing?
o
For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o
N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.

Can you seek an annulment of judgment of an
MTC decision?

Yes. You file annulment in the RTC.

Can you seek an annulment of judgment of a
CA decision?

No. Fall back to the usual rule that you can
only go up to the SC through Rule 45.
o
Can the justices hear the case?

Yes. Alternatively, it can ask the RTC to receive
evidence.
Preliminary conference is the equivalent of pre-trial in the CA.
Whether it is an original or appealed case, the CA can set it for
preliminary conference.
o
What is the effect if the appellant is absent here?

The appeal will be dismissed. This is provided in
Rule 50. This is almost the same rule as absence of
the plaintiff in a regular pre-trial.
Rule 50 enumerates grounds for dismissal of appeals:
o
[Failure to properly appeal]
1. Order or judgment is not appealable
2. Failure to file notice of or record of appeal within proper
period
o
3. Failure of appellant to pay docket and lawful fees
o
[Record of appeal-related]
o
1. Failure of record on appeal to show on its face that the
appeal was taken within the proper period
o
2. Unauthorized alterations, omissions, additions to the
approved record on appeal
o
3. Failure to make necessary corrections or completion of
record, according to order by court
o
[Brief-related]
o
1. Failure to serve proper number of copies of brief or
memorandum

When is a brief filed, and when is a
memorandum filed?

If you lose in an SCA in the lower court, you
file a memorandum on appeal.

Otherwise, you file a brief.
o
2. Absence of specific assignment of errors in appellant’s
brief; OR absence of page references to the record
o
[Failure to comply]
o
1. Failure of appellant to appear in preliminary conference;
o
2. Failure to comply with orders, circulars, directives of court
without justifiable cause
If any one of these circumstances appear, will the dismissal be
mandatory?
o
No. It “may” be dismissed. There is court discretion.
o
Except: if order of judgment cannot be appealed
If your appeal in disallowed, what is the remedy?
o
Petition for certiorari, or petition for mandamus
Two errors noted by Sec. 2 – and the appeal “SHALL” be
dismissed:
o
1. Pure questions of law sent to CA, instead of SC
o
2. Notice of appeal instead of petition for review from RTC to
CA
When is withdrawing appeal a matter of right?
o
Before filing of appellee’s brief  matter of right
o
After: discretion of court
o
“Motion for withdrawal.”
What is the legal effect of withdrawal?
o
o











65
o
Lower court decision becomes final and executory.
Compromise agreement – when can it be done?
o
Anytime. Even when the judgment has become final and
executory.
Can the parties stipulate on the facts?
o
Yes, if it is an original action, or there is a grant of new trial
on the ground for newly discovered evidence
o
(Note: newly discovered evidence is the only ground for the
CA; FAME is not included)
Oral arguments: what do I need to know?
o
1. Only original cases are argued in court; not appealed cases

But if the CA feels that there is a need for the parties
to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o
2. Motions are NOT heard in the CA

While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
party.

BUT in the Court of Appeals, motions in the CA need
not be heard (same with the SC)
o
3. Comply with minimum requirements of Rule 44 and 50.

What if you don’t have an assignment of
errors?

Your appeal will be dismissed.

What if you don’t comply with court circulars?

Dismissed.
Rule 51 – provision on judgment.
o
For trial courts, it is Rule 36.
Can you file an MR in the appellate court?
o
Yes. Rule 52.
o
Same period (15 days)
o
Same three grounds – except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
Can you file a MNT in the CA?
o
Yes.
o
In the TC, grounds are FAME and newly discovered evidence
o
In the CA, the only ground is newly discovered evidence
o
Periods?

TC – reglementary period within receipt of adverse
decision

CA – from the time appeal is perfected and as long
as the CA has jurisdiction
Annulment of judgment in the CA







When does annulment of judgment vest as a remedy?
o
For final judgments of the RTC where ordinary remedies of
MNT, appeal, petition for relief, or other remedies are not
available
o
What if it’s a decision of the MTC?

File with the RTC and follow these same rules, and
treat it as an ordinary civil action
What are the grounds?
o
1. Extrinsic fraud

But not if it could have been availed of in an MNT or
petition for relief
o
2. Lack of jurisdiction
When is the period for filing?
o
If based on extrinsic fraud, within 4 years from discovery
o
If based on lack of jurisdiction, before barred by laches or
estoppel
Must it be verified?
o
Yes
What else is required?
o
1. Attach CTC of the judgment sought to be annulled
o
2. CNFS
What is the court action available?
o
Either dismiss it or issue summons to respondent
What is the effect of a favorable judgment on the action?
o
The judgment becomes null and void, without prejudice to
refilling
o
Or if the ground is extrinsic fraud, the court can order a trial
de novo, as if an MNT was granted
o
The court can grant damages



Rule 56 – Supreme Court


3. Disciplinary actions against members of the Bar/bench

But if you file a case against a member of the Bench,
it will be referred to the Court Administrator. If
against a member of the Bar, it will be referred to
the IBP.
o
4. Against ambassadors, consuls, other public ministers, etc.
o
5. Found in the Constitution: constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
What do you need to follow for original cases?
o
Rule 46 – original cases
o
PLUS:

Rule 48 (preliminary conference),

Rule 49 (oral argument),

Rule 51 (judgment),

Rule 52 (MR)
o
Is there a MNT?

No.
For appealed cases to the Supreme court, what is the mode?
o
Rule 45 – the only way to go up to the Supreme Court
o
PLUS:

Rule 48 (preliminary conference),

Rule 51 (judgment),

Rule 52 (MR)
o
Is there oral argument?

No.
Grounds for dismissal of appeals in the Supreme Court?
o
[Failure to properly appeal]
o
1. Failure to appeal within proper period

Ex. 15 days in Rule 45
o
2. Failure to pay docket and lawful fees or make deposit for
costs

You have to pay directly to the SC because you are
appealing directly to the SC

The usual rule that you pay the docket and lawful
fees in the lower court, and it will merely transmit to
the higher court does not apply here
o
3. Error in the choice or mode of appeal
o
4. Fact that case is not appealable to SC

Always think of rule 45, general rule

Note: Rule 65 is not an appeal, but an
original action
o
Remember Sec. 1 and 3. Memorize the cases that will be originally
filed in the SC.
What are the cases that can be originally filed in the SC?
o
1. Certiorari, prohibition, mandamus
o
2. Quo warranto
66
There is no other. Ex. Notice of appeal is improper,
except one situation: Reclusion Perpetua or Life
Imprisonment (to be discussed later)
o
[Patently without merit]
o
1. Lack of merit in the petition

An appeal patently without merit
o
[Failure to comply]
o
1. Failure to comply with requirements regarding proof of
service and contents of and the documents which should
accompany the petition

Not just to adverse party, but also the lower court
who rendered the judgment
o
2. Failure to comply with circular, directive, or order of SC
without just cause

Ex. Indicating telephone number, e-mail address –
stuff in addition to PTR, etc.
N.B. For all grounds, take note it says “MAY BE” dismissed, so it is not
automatic.
What if there is appeal by Rule 45 to the SC from the RTC
submitting issues of fact?
o
May be referred to CA for decisions or appropriate action.
Determination of SC whether or not there are issues of fact is
final
o
What is the situation contemplated here?

On its face, there are only issues of law. But after a
while, the SC realized there are mixed questions of
fact and law.
o
Options of SC:

1) dismiss the case – improper mode

Consequence: appellant had lost his time to
properly appeal to the CA (15 days only)

2) remand to the CA

Because otherwise, there would be no more
time for you to go to the CA
What is the procedure if opinion of the SC is equally divided
(stalemate situation)?
o
This applies in an en banc case. This rule does not apply to a
division in the SC.
o
1. Deliberate again.
o
2. If still no majority:

Original action – dismissed






Appealed cases – decision affirmed
Incidental matters – petition of motion denied
Contents of briefs
[Appellant’s brief]
1.
2.
3.
4.
5.
6.
7.
8.
Subject index
a. Like a table of contents
b. For posterity’s sake, put this even if it’s just short
Assignment of errors
a. How the lower court erred
b. Key word: “specific” errors. Not allowed to just make general
statements
Statement of the Case
a. Clear and concise statement of:
i. Nature of action
ii. Summary of proceedings
iii. Appealed rulings and orders, and nature of judgment
b. Easiest way to do it: chronological sequence
c. Don’t bother mentioning the irrelevant motions like motion to
extend, unless there is a timing issue, etc.
Statement of Facts
a. Clear and concise statement in narrative form of the facts
b. E.g. “The following facts are not disputed by both parties:”
Statement of issue
a. Just a simple statement of what the court needs to resolve:
e.g. W/N the marriage between plaintiff and defendant should
be declared void on the ground of psychological incapacity.
Arguments
a. Must be with reference to the record
b. And cite authorities
Relief
Copy of the final order or judgment being appealed
a. In cases not brought up through record on appeal, appellant’s
brief must contain this as an appendix,
[Appellee’s brief]
1.
2.
67
Subject index
Statement of facts
a. Or counter-statement
3.
Arguments

PROVISIONAL REMEDIES
Rule 57 – attachment

When should jurisdiction over the defendant vest in
attachment? (Manguila, citing Davao Light and Power)
o
Distinguish between issuance and implementation of the writ
of attachment – to determine when jurisdiction is needed over
the defendant.
o
Remember you could file an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
upon motion.
o
To answer the question: there are three stages for
attachment –

1. Court issues order granting application

2. Writ of attachment issues pursuant to the order

3. Implementation of the writ

FOR THE FIRST TWO STAGES, jurisdiction over the
defendant is not yet required because it is an ex
parte application.
However, when you are
implementing the writ, you need jurisdiction over the
defendant.
o
Thus, how can the writ be implemented?

You have to get jurisdiction over the defendant first.
o
Summons should be served prior to, or contemporaneous
with the order (for implementation). Contemporaneous is
better.
o
Summons belatedly served does not cure fatal defect in the
enforcement of the writ.

Either personal or substituted service.
o
What are the exceptions to prior or contemporaneous
service of summons?

1. Summons cannot be served personally or by
substituted service, despite diligent efforts

2. Defendant is a resident of the RP temporarily
absent therefrom

3. Defendant is a nonresident of the RP

4. Action is in rem or quasi in rem


68
Grounds for attachment? MEMORIZE
o
1. Any claim for money or damages except moral/exemplary,
if the claim arises from an obligation (law, contract, quasicontract, delict, quasi-delict) AND defendant is about to
depart with intent to defraud

What if claim is recovery for sum of money
only?

No. You could only apply for attachment if
the defendant is about to depart with intent
to defraud.
o
2. Embezzlement/abuse of trust by one with a fiduciary
relationship

For all intents and purposes, this is estafa
o
3. Action to recover property and there is willful fraudulent
concealment of the property
o
4. Action against a person who removes/conceals property

Unlike (3), this is directed against a person
o
5. Fraud in contracting the obligation or fraud in the
performance thereof – most asked ground

First: If not for the fraud, the other party would not
have entered into the transaction

Second: In the manner of the performance, it was
fraudulent
o
6. Defendant is a non-resident

Fraud not required here, because he can leave at
any time
What are the contents of affidavit for attachment?
o
1. Cause of action
o
2. Statement that any of the grounds applies
o
3. There is no sufficient security
o
4. Amount due to applicant or value of the property he seeks
to recover is as much as the sum for which the order is
granted, above all legal counterclaims
How do you discharge an attachment?
o
1. Most common: post a counter-bond

When do you post a counter-bond?

Can be posted after enforcement of the
writ.

You cannot anticipate its enforcement.
o
2. Improper, irregular, or excessive attachment

What is “improper”?

Grounds are not present in the case
What is “irregular”?

Wrong process.

When can this be raised?

ANYTIME, even before enforcement.
o
What if the writ of attachment was issued for a ground
that it is also the cause of action of the plaintiff?

The only way to dissolve it is to post a counter bond.
Can you recover damages?
o
Yes, Section 20 – if there is improper, irregular, or excessive
attachment.

N.B. Section 20 applies to all provisional remedies
except support pendent lite.
o
Where can you apply for it?

In the trial court; during or after trial.

You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o
If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?

No.
What kind of damages can be recovered?
o
Yu v. Ngo: Evidence required for wrongful attachment.
When there is wrongful attachment, defendant may recover
actual damages, without need of proof of bad faith. When
there is malicious attachment, defendant may recover actual,
moral, and exemplary damages.
o
What is the scope of the award of actual damages from
attachment?

1. With best evidence obtainable, fact of loss or
injury

2. Amount thereof
o
Can actual damages cover unrealized profits?

Yes.
But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o
How do you prove moral/exemplary damages?

Prove that the wrongful attachment was with malice
or bad faith.
How about attorney’s fees?



Generally, attorney’s fees cannot be awarded when moral or
exemplary damages are not granted.
o
Exception: when a party incurs expenses to lift wrongfully
issued writ of attachment.
What is the procedure for terceria (third party claim)?
o
The applicant has posted a bond when he applied for a writ of
attachment (to cover whatever damages defendant will suffer
due to attachment)
o
By reason of a third party claim (with no bond needed from
the third party claimant – just an affidavit of his title), the
process will be suspended.
o
Now it is the burden of the applicant to post another bond in
the value of the property, to cover the third party’s damages.
o
How long can a claim for damages for taking/keeping
of property be enforced against the bond?

Within 120 days from date of filing of the bond
What is the difference in the third party claim in execution of
judgment (Rule 39) and Preliminary Attachment (57) or other
provisional remedies?
o
The right of the third party claimant in attachment could be
vindicated in the same or in a separate action. In execution,
it could only be done in a separate action.
o
Why?

Because in execution, the judgment is already final.
In Rural Bank, a motion was filed to release property from
attachment, giving affidavit of title to the sheriff. The court said that
the filing of the motion can be deemed the same as a third party claim
(because 3P claim must be filed with sheriff). It can also be treated as
a form of intervention.
What takes precedence, levy on attachment or prior
unregistered sale?
o
Levy on attachment duly registered takes preference over a
prior unregistered sale.
The preference created by
attachment is not defeated by the subsequent registration (to
the attachment) of a prior sale, because attachment is a
proceeding in rem.
What is the procedure when there is an alleged irregular and
improper issuance of attachment?
o
When the attachment is challenged for being illegally or
improperly issued, there must be a hearing. The hearing
o






69


embraces the right to present evidence, and also the
establishment of rights of other parties.
o
Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o
N.B. The discharge of an attachment, whether through
counterbond or irregular, improper, or excessive – can only
be done through hearing.
o
Security case: Two ways to secure discharge of attachment.
1) Party whose property or his representative has been
attached can post a security. 2) Said party can show that the
attachment has been improperly or irregularly issued. Mere
posting of counter bond does not discharge the attachment.
There should be a specific resolution for the discharge.
What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of
execution?
o
1. If there is money duly garnished or obtained through sale
of perishable goods, the money will be applied.

What does this refer to?

If the property attached is perishable or the
sale of the property will best subserve the
parties’ interests, as determined by the
court, the property can be sold in public
auction

The proceeds will be deposited in court and
take the place of the property
o
2. If not sufficient, sell real or personal property that has
been attached.
These have to be sold on public sale.
Procedure is consistent with Rule 39.
o
3. What if the properties attached are not sufficient to
satisfy the judgment?

Court proceeds with ordinary execution to cover the
balance.
What if the defendant filed a counterbond?
o
Recovery can be sought against it; it takes the place of the
property sought to be attached, but released by the CB



Rule 58 - Injunction


N.B. Rule 58 has been amended on Dec 2007.
alongside Rules 41 and 65.
What was affected by the amendment?
It was amended
70
o
Rule 58, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for
injunction?
o
Yes. There can be a principal action for injunction. There is a
distinction made in this case between principal action and
preliminary injunction:
o
Principal action – seeks a judgment for a final injunction
which is separate and distinct from a preliminary injunction
o
Preliminary injunction – object is just to preserve status quo
What are the requisites for a PI?
o
1. A clear and unmistakable right
o
2. The right has been violated, and invasion has been
material and substantial

Borromeo: Where the parties stipulated in their
credit agreement, PN, contract, etc., that the
mortgagee has the right to foreclose in case of
default, this defeats any future claim for the issuance
of a PI.
o
3. There is an urgent and permanent necessity for the writ to
prevent serious damage
How is a WPI granted?
o
1. Verified application showing facts entitling applicant to the
relief demanded
o
2. Bond (to cover for damages to other party in case the
WPI/TRO is wrongfully issued)
o
3. If the application for WPI or TRO is alongside a complaint
or initiatory pleading,:

A. Notice given to party to be enjoined

Raffle case only after such notice, and in the
presence of that person

B.
Notice
preceded
or
contemporaneously
accompanied by summons

What are the exceptions to the
requirement
that
summons
are
required to be
served
prior or
contemporaneously?
o
1. Cannot be served personally or
through substituted service despite
diligent efforts
o
2.
Defendant
is
a
resident
temporarily absent from the RP
3. Defendant is a nonresident of
the RP
o
4. Action is in rem or quasi in rem

C. Notice with copy of the initiatory pleading + bond
o
4. Hold a summary hearing conducted within 24 hours after
the sheriff’s return of service and the records are received by
the branch selected to hear it
Types of PI?
o
1. Preliminary injunction to prohibit or stop (status quo ante)
o
2. Preliminary mandatory injunction – an injunction which
requires you to do something or perform something that you
do not ordinarily want to perform, in order to maintain the
status quo
Estares: A writ of PI based only on initial and incomplete
evidence – is this allowed? What kind of evidence is required?
o
You don’t need to present your entire case. Only a sampling
of evidence is needed, to give the court an idea to justify why
you need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o
No. It’s an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o
Today, yes. (This is the amendment)
o
1. 20 day TRO ex parte – if great and irreparable injury
o
2. 72-hour TRO ex parte – if the matter is of extreme urgency
and the applicant will suffer grave injustice and irreparable
injury
o
N.B. “Ex parte” means no notice and hearing
What are the differences between the 20 day and the 72 hour
TROs?
o
1. Only an executive judge of a multi-sala court, or the
presiding judge of a single-sala court, there can issue a 72
hour TRO
o
2. Count the 20 days from service to the party or person to
be enjoined; count the 72 hours from issuance of the TRO

N.B. this is because the 72 hour TRO can precede
summons, which must still be complied with and
served after
o
3. What is heard/determined within the period

Within the 20 day period, the court must order the
enjoined person or party to show cause at a specified
o










71
time and place which the PI should not be granted
(and the court decides);

Can a 20 day TRO be extended?
o
No, it automatically expires w/ or
w/o a period.
o
Unless you obtain a preliminary
injunction

Within the 72 hour period, the court determines
whether extension to a 20 day TRO must be granted
in a summary hearing
How long is a TRO that was issued by a higher court?
o
CA: 60 days from service on the party enjoined
o
SC: indefinite
Can a preliminary injunction be issued without notice and
hearing??
o
No. NEVER. There must always be notice and hearing.
o
The hearing is always summary in nature whether TRO or
preliminary injunction.
Can an injunction have an effect if enforced outside the judicial
district? (ex. enforced in Makati and Mandaluyong, and the
judge is stationed in Marawi)
o
No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o
To protect the person against whom the writ of injunction has
been issued. Garcia: Posting of a bond is a condition sine
qua non to issue a writ of PI.
o
The posting of a bond in connection with PI does not operate
to relieve the party obtaining the injunction from paying
damages – the bond only gives additional protection in favor
of the defendant
o
So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.

Aquino: Dissolution of the injunction, even if it was
obtained in good faith, amounts to a determination
that it was wrongfully obtained. A right of action
against the bond accrues.
A court issued a writ of PI. What is the duty of the court in
relation to the main case?
o
The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.






SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o
1. Today it is not enough to say that you have paid the
amount. Mere allegation of payment without showing actual
payment is not basis for issuance of PI.
o
2. Mere claim/allegation that the interest is unconscionable or
excessive does not justify issuance of the PI unless the legal
interest is paid.
What is a Status quo order?
o
It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o
It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fixed term.
o
BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or extrajudicial
foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o
Yes.
If you file a petition for certiorari against the PI, does it
suspend the main case?
o
No, it does not. This is an amendment introduced in 2007.
o
Can you extend the period by which you can file a
petition for certiorari (60 days)?

No more.

Before the 2007 amendment, you can ask for a 15
day extension. This was removed already.
How can you deny a writ of PI or TRO?
o
Prove insufficiency of the application for injunction.
o
This is just a ground to deny but not to dissolve; so once the
WPI or TRO is granted, insufficiency is not a ground anymore.
How can you dissolve a writ of PI or TRO?
o
1. File affidavits showing there is no reason for the PI
o
2. File a counterbond + an affidavit showing that he will suffer
more damage than applicant will

Is a mere counterbond enough?

No

Is the mere statement enough?

No
o
N.B. Note the difference with preliminary attachment, where
a counterbond alone can dissolve the writ. In preliminary
injunction, it has to be statement + counterbond.

What is the prohibition under RA 8975?
o
There can be no PI or TRO against acquisitions, bidding or
awarding of contracts, commencement or execution of such,
termination or rescission of the same, or other similar lawful
activities in relation to government projects.
o
Any TRO or PI issued is null and void.
o
What is the exception?

Except when issued by the SC.
Rule 59 – Receivership





72
The only provisional remedy that can be applied for post-judgment and
even if it is already final and executory.
Grounds:
o
1. There is interest in property which is in danger of being lost
o
2. In a foreclosure action, and the property is in danger of
being wasted/dissipated, and that its value will not be
sufficient to cover the value of the debt

Or there is a stipulation for such in the mortgage
contract
o
3. Preserve property during pendency of appeal, to dispose of
it according to judgment, to aid execution if execution is
returned unsatisfied, or to carry judgment into effect
o
4. Other reasons the court finds convenient and feasible
What are the requirements?
o
1. The applicant files a bond
o
2. The receiver must also file a bond and take oath
o
N.B. TWO bonds (applicant and receiver himself)
What are the ways to dissolve the bond?
o
1. Show no cause
o
2. Post a counter bond
What are the general powers of a receiver that need no court
approval?
o
1. Take and keep possession of property in controversy

Receive rents
o
2. Collect debts due on the property, estate, person, fund,
etc.

Compound for and compromise these

Make transfers

Pay outstanding debts
o
3. Divide money and other property remaining among
persons legally entitled


o
4. Perform acts authorized by the court
What powers of the receiver need court approval?
o
1. Bring and defend actions in his name

N.B. need court approval for either
o
2. Invest the funds – must have written consent of the parties
to the action
When is receivership terminated?
o
When there is no more need for a receiver.

1. Motu propio determined by the court or

2. Upon motion of either party
o
What happens?

After due notice to all interested parties and hearing,
settle accounts of receiver, and direct delivery of
property.

The receiver receives reasonable compensation.

Rule 60 – Replevin





1. If you want to regain immediately custody or
possession, you just simply post a counter-bond

N.B. Take note. No need to oppose the
grounds, etc. Just post a counterbond.

When can he post this counterbond?
o
Anytime before the property is
delivered to applicant

What is the time period between the
sheriff’s taking of the property and its
delivery to the applicant?
o
5 days. So this is the time frame
to object.

2. Attack the sufficiency of the bond

Here, you cannot effect an immediate
release
What is the value of the bond?
o
This
is
the
only
provisional
remedy
where
the
bond/counterbond is double the value of the property.
o
Pinggol: A replevin bond was deemed invalid because the
officer who signed the bond is without authority to do so from
his company.
When can replevin be applied for?
o
You can only apply for this at any time before an answer.
o
For the other provisional remedies, you can apply anytime
while the action is pending (or for receivership, even after)
What is your remedy after an answer is filed?
o
You file an attachment, but the effects are different.
o
What are the differences?

1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
personal are attached to secure the judgment

2. In replevin, when the writ is served, the sheriff
takes possession, and delivers it to the applicant
(unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff
and delivered to the court; for real property, the
sheriff annotates at the dorsal portion of the title.
Note that the main action is recovery of possession of property. The
issuance of a writ of replevin is just a provisional remedy.
Once the sheriff takes the property what is his duty?
o
He delivers it to the applicant for the writ of replevin.

What are the contents of the affidavit?
o
Memorize this for the bar
o
1. The applicant is the owner of the thing
o
2. Property is wrongfully detained
o
3. Property is not lawfully taken
o
4. The fair market value of the property
Can property held as evidence in criminal case be subject to a
writ of replevin?
o
Superlines: NO. In the affidavit of the affiant, the property
is not subject of custodia legis, execution, or attachment.
The deprivation, to be validly subject to replevin, must be
illegal or unlawful.
o
Property can be said to be in custodia legis, not only when it
is in official custody, but if it pursuant to a legal order in a
case
Danao: Can you subject to replevin a motor vehicle in custody
of another court?
o
No. It is in custodia legis.
Can goods under custody of an agency of the government
(here, ex. Bureau of Forestry) be subject to a writ of replevin?
o
No. It is under lawful process.
Can one quash a writ of replevin?
o
Of course, it may be quashed or dissolved
o
How do you dissolve?




73
How long does the adverse party have to object?

Within 5 days of taking, can object to sufficiency of
the bond
Can there be a principal action for replevin as a provisional
remedy?
o
No, just like everything else, it is a provisional remedy.
o
BUT because of the ADR rules, you can file any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
In attachment and replevin, there are rules for third party
claims. What are these?
o
1. Rule 39 Sec 16
o
2. Rule 57 Sec 14
o
3. Replevin
o
Note that unlike execution, in attachment and replevin, a
third party claimant can vindicate his right in the same or a
separate action. In Rule 39, a third party claimant can only
vindicate his right in a separate action, because judgment is
final and executory.
o
What is the rule on intervention (Rule 19)?

You can intervene anytime before judgment. But
this only applies to trial courts.
o
What about appellate courts?

You can still intervene, but subject to the appellate
court’s sound discretion.
o





Rule 61 – Support pendente lite



So what is the rule if you are wrongfully compelled to
give support?

You don’t recover damages.
You ask for
reimbursement.
What if there is refusal to comply with court order to give
support?
o
The court can order execution.
o
There are only two instances where there can be writ of
execution even when there is no final judgment:

1. Support pendente lite

2. Indigent (which the court finds that you are not an
indigent and requires you to give filing fees)
Who can apply for support in criminal cases where the accused
is charged with a crime where a child is borne by the offended
party?
o
1. Offended party
o
2. Parents
o
3. Grandparents
o
4. Guardian
o
5. State
What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
o
If the action is still pending, you can apply for reimbursement
in the same action.
o
If there is a judgment already, you can apply for it in a
separate court proceeding.
Can you dissolve support pendente lite?
o
When there is no reason to give support pendente lite.
o

When can you apply for this?
o
Anytime before final judgment
What is the procedure?
o
1. Submit verified application for SPL stating grounds,
attaching affidavits, depositions, documents
o
2. Adverse party files verified comment within 5 days
o
3. Set for hearing not more than 3 days thereafter
o
N.B. only provisional remedy that cannot have ex parte
hearing
This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
needs money.
o
N.B. For all these other provisional remedies, just follow Rule
57 Rule 23.
The general rule is you can only recover
damages from a bond while the action is pending.
SPECIAL CIVIL ACTIONS
Rule 62 – Interpleader


74
When is interpleader proper (Requisites)?
o
1. Conflicting claims on the same subject matter
o
2. Made against a person who:

Claims no interest over it

Or an interest which is not disputed by the claimants
What is the procedure?
o
1. Action for interpleader brought to court
2. Court issues order requiring parties to interplead

May ask for subject matter to be delivered/paid to
court
o
3. Issue summons to parties, with complaint and order
o
4. Parties can file:

MTD (if denied, at least 5 days to file answer)

Answer
Can there be a counterclaim in an interpleader case?
o
Yes.
Stuff to remember:
o
In the interpleader case, the one filing the case was not
violated. There was no breach.
o
The person filing the action can either have an interest which
is not in conflict with the claiming parties, or has no interest
at all.
Are there filing fees for an interpleader action?
o
Yes.
o
However, the applicant, not being violated nor is he a Real
Party in Interest – is entitled to a lien on the judgment award
What is the difference with intervention?
o
In intervention, there is already a pending case. Here, you
initiate the action.

o









Rule 63 – Declaratory relief and Similar Remedies


What are the requisites of declaratory relief?
o
1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o
2. The terms of the documents are doubtful and require
judicial construction
o
3. There must have been no breach of the documents in
question

Malana:
Reiterates
that
declaratory
relief
presupposes no actual breach.
An action for
declaratory relief must be dismissed if there is a
pending action for unlawful detainer.
o
4. Actual justiciable controversy
o
5. Ripe for judicial determination
o
6. Adequate relief is not available
Bottom line: purpose is for interpretation and determination of validity.
It’s not about constitutionality.
o
Also, there must be no breach
What if there is breach?
o
There will be conversion to an ordinary civil action. This is
the only such action that can be converted.
Do you need to pay filing fees when it is converted?
o
Yes, you need.
Which court has original jurisdiction?
o
RTC.
o
What if there is an allegation of unconstitutionality?

The RTC has no exclusive jurisdiction; you can file it
elsewhere like the SC. The RTC only has exclusive
jurisdiction if it is a pure question of declaratory
relief
What are the “other similar remedies” covered by par. 2?
o
1. Removal of cloud
o
2. Quieting of title
o
3. Reformation of instrument

When can you reform?

There must be mutual mistake.
Can there be execution in a declaratory relief case?
o
Yes, nothing prevents the filing of a counterclaim in a
declaratory relief, and there can be execution pursuant to
this.
Who intervenes when there is challenge against validity of
statute, EO, or other government regulation?
o
Solicitor General
o
What about local government ordinances?

LGU prosecutor or attorney

Solicitor General as well, if there is challenge against
constitutionality
Rule 64 – Review of judgments and Final orders of COMELEC/COA


75
What is the nature of this petition?
o
This is actually a petition for certiorari. If you file under Rule
64, it will be named a Petition for Certiorari
o
This has a limited application; it only covers decisions by the
COMELEC and COA.
What is the difference in period for a Rule 64 petition as
compared to Rule 65?
o
The period to file a petition for certiorari under Rule 64 is 30
days, non-extendable.
o
What if there was an MR/MNT and it was denied?
If there is an MR or MNT and denied, you get the
period remaining which will always be at least 5 days
(“partial fresh period”)
o
N.B. this is unlike the 60 day period for Rule 65
o
N.B. for Rule 65, you always get the full 60 days period even
after denial of MR/MNT
What must be the nature of the attachments?
o
As with Rule 43, all the attachments in Rule 64 are certified
true copies, because you involve Quasi Judicial Agencies.
Must it be verified?
o
Yes.
Is a CNFS needed?
o
Yes.
After filing the petition and serving a copy with the adverse
party and the Commission, what is the next step?
o
1. If SC finds the petition sufficient in form and substance, it
orders respondents to file comment within 10 days from
notice.

N.B. Comment: 18 copies too, with CTC of record
and supporting papers
o
2. SC may dismiss the petition outright if:

A. It is not sufficient in form or substance

B. it was filed manifestly for delay

C. Questions raised are too unsubstantial to warrant
further proceedings
Does the Rule 65 petition stay execution of judgment?
o
No, unless the SC directs otherwise
When is the case deemed submitted for decision?
o
Upon submission of the comment by the respondent
o
Unless the SC requires submission of memoranda or requires
oral argument















Rule 65 – Petition for certiorari, mandamus, prohibition




Yes. The same is required – GADALEJ. No plain, available,
speedy ordinary remedy.
o
It is the same as certiorari.
o
In prohibition, you cannot prohibit an act that has already
been performed. It is already moot.
Certiorari – whose decision can you question?
o
Judicial or QJA
Prohibition – whose decision can you question?
o
Judicial, QJA, or ministerial
How does mandamus differ from prohibition?
o
Limited to ministerial functions.
o
Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to file an
information?
o
No. It is not ministerial.
If you entered into a contract with X to build a house for you,
and X received the advance of the contract price, and X did not
build the house, can you compel his performance by
mandamus?
o
No; it is not a ministerial function.
It is a contractual
obligation – specific performance is the proper remedy.
How can an OMB judgment be reviewed?
o
Generally, under Rule 43.
o
However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
Must a petition under Rule 65 (C, P, or M) be verified?
o
Yes.
What must be included too?
o
1. CNFS
o
2. For certiorari or prohibition, the copies of order, resolution,
or judgment (for certiorari) questioned, and all pertinent
documents
What is the period to file the petition?
o
60 days from the notice of judgment, order, or resolution
o
What if an MR or MNT is denied?

Count 60 days from denial of the motion (real fresh
period rule)

N.B. this is different from Rule 64 where only the
remaining period not less than 5 days would remain
Where do you file a Rule 65 petition?
o
A. For MTC, corporation, board, officer, or person:
o

First rule of Rule 65: you do not talk about Rule 65. Second rule of
Rule 65: you do not talk about Rule 65. Third rule of Rule 65: You
have to fight on your first night.
Real first rule of Rule 65: this is not an appeal
Elements of certiorari?
o
1. GADALEJ
o
2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?

76
RTC
It could be in the CA or SB, whether or not the same
is in aid of the court’s appellate jurisdiction
o
B. Act or omission of a QJA:

CA only
o
C. Election cases involving act or omission of MTC or RTC:

COMELEC, in aid of appellate jurisdiction

[N.B. based on 2007 amendment]
Who defends the questioned judgment, order, etc?
o
The private party interested in the judgment
o
The public party will be nominally made a party but shall not
appear in or file an answer/comment to the petition or file a
pleading
What does the court do after filing of the petition?
o
If sufficient in form and substance, issue an order requiring
respondent/s to comment on the petition within 10 days from
receipt of copy
o
What is the rule if the petition is filed before the CA or
SC?

Before giving due course, it can require the
respondents to file their comment to the petition
and, if it wants to, a reply from the petitioner

Can the respondent file a motion to dismiss
instead?

No.
What happens after comment is filed?
o
1. The court may hear the case or require submission of
memoranda
o
2. Or it may dismiss the petition if it is found to be:

A. Patently without merit

B. prosecuted manifestly for delay

C. Questions raised are too unsubstantial to require
consideration
Does Rule 65 suspend the principal case?
o
No, unless the court where the petition is filed issues a TRO
or preliminary injunction
o
If there is no TRO or PI, the public respondent must proceed
with the principal case within 10 days from the filing of the
petition

N.B. else, administratively liable







What are the consequences of filing a petition patently without
merit or manifestly for delay, or questions are too
unsubstantial for consolidation?
o
1. The court may award in favor of respondent treble costs
solidarily against petition and counsel
o
2. Counsel may be subjected to administrative sanctions
o
May the court motu propio impose disciplinary
sanctions and measures on erring lawyers?

Yes, based on res ipso loquitur
Quo Warranto
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77
Who commences an action for quo warranto?
o
Liban: Generally commenced by the government.
o
1. President, directing the Sol-Gen
o
2. Sol-Gen, in the name of the government, when he has
good reason to believe
o
3. Upon the relation of another person, telling the Sol-Gen to
institute the action

What is the special requirement if it is upon the
relation of another person?

There must be approval by the court. If not
approved by the court, the Sol-Gen will not
file.

N.B. also, the Solicitor General will require the other
person to file indemnity for expenses/costs of the
action to the court

N.B. the respondent will also be given prior notice
and the chance to be heard prior to the court giving
approval for the filing
o
4. The person instituting quo warranto in his own behalf must
show that he is entitled to the office in dispute.

This is where the person aggrieved himself files

What should he show?

1. His claim

2. And that he is entitled to the office
When can you file it?
o
1. Usurpation of public office, position, or franchise
o
2. Public officer who does or suffers an act constituting
ground to forfeit office
o
3. Association acting as a corporation but not duly
incorporated
Quo warranto is also available if a government
corporation has offended against its chapter.
It is a prerogative writ, where the government can exercise its right to
demand proof of what right a person has over office
What is the venue?
o
1. RTC where respondent resides
o
2. CA
o
3. SC
o
This is another example of concurrent jurisdiction
o
What is the special rule?

If it is the Sol-Gen who institutes the action, it can
be filed in the RTCs of the City of Manila
What is the period to institute an action for quo warranto?
o
One year from happening of the event (usurpation)
Can you recover damages from a quo warranto judgment?
o
One year from entry of judgment entitling petitioner to the
position
What are the rights of the person adjudged entitled to the
public office?
o
A. After taking oath and executing any bond required by law,
may demand books and papers in respondent’s custody

What if the respondent refuses?

Contempt of court
o
B. Action for damages against usurper
If there is a dispute between and among the Board of Directors
of a private corporation, one group claiming that they have
been usurped, is the proper remedy quo warranto?
o
No. This is an intra-corporate dispute to be filed in the
regular courts (RTC) having original jurisdiction.
Distinguish from Quo Warranto in election cases:
o
1. Filed by any registered voter in the constituency
o
2. On grounds of a) ineligibility or b) disloyalty to the RP (ex.
Having a green card)
o
3. Within 10 days from proclamation of results

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
Rule 67 – Expropriation


LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is “inferior domain.”
o
But an LGU can expropriate.
o
What are the requisites before an LGU can exercise
eminent domain?

1. Public use, public purpose, public welfare

2. Ordinance by local legislative body authorizing
local chief executive to exercise eminent domain

3. Just compensation

4. Valid and definite offer previously made to owner
but not accepted
What must be alleged in the expropriation complaint?
o
1. Right and purpose of expropriation
o
2. Description of the property sought to be expropriated
o
3. Names of persons owning or claiming to own it, or
possessing it, or having interest over it
o
N.B. it must be verified
Can a complaint for expropriation be withdrawn?
o
It can be withdrawn for as long as there is no judgment yet
o
Once there is an order for expropriation, it can no longer be
withdrawn
What if the defendant has no objection?
o
He files and serves a notice of appearance and manifestation
only. Thereafter, he is entitled to notices.
What if the defendant has objections?
o
He files and serves an answer within the time stated in the
summons, stating his objections.
o
Can there be a counter-claim, cross-claim, or third
party complaint?

No.
o
Can there be amendments to the answer filed?

Generally no, but in the interest of justice, the court
may allow an extension of not more than 10 days.
o
N.B. Even if the defendant initially objected and filed an
answer (not a manifestation/appearance), he is still entitled
to just compensation.
When does an order of expropriation issue?
o
If the objections and defenses are overruled, or when there is
no defendant, the court issues an order of expropriation
o
May the order of expropriation be appealed?
o
Who can expropriate?
o
National government
o
LGU
o
Instrumentality of government
Veluso v. Panay:

78
Yes, but it does not prevent the court from entering
the second stage (just compensation)
After order of expropriation, what is the second stage?
o
Determination of just compensation
o
The court appoints not more than 3 commissioners to
ascertain the value of the property.

Non-compliance with this step is a denial of due
process
When can the plaintiff enter the property and appropriate it for
public use?
o
In general, after judgment and payment of just compensation
as determined by the court
o
Or the plaintiff can continue its possession of the property if it
made a prior deposit and entry

N.B. see below
When is there immediate entry allowed for expropriation under
Rule 67?
o
1. Filing of complaint + due notice to defendant and
o
2. Deposit with authorized government depositary an amount
equivalent to the assessed value of the property
When is there immediate entry allowed for expropriation under
the LGC?
o
1. Filing of complaint for expropriation sufficient in form and
substance and
o
2. Deposit of amount equivalent to 15% of FMV of the
property to be expropriated, based on latest tax declaration
When is there immediate entry allowed for expropriation under
RA 8974 (acquisition of property for right of way or for
government infrastructure projects)?
o
1. Filing of complaint + immediate payment of 100%
assessed value of the property and the improvements (same
rule as Rule 67)
o
2. If there is no zonal valuation AND the expropriation is of
utmost importance: Filing of complaint + payment of
proffered value of the property
What is the general rule for valuation?
o
Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general.
If it is personal property,
assessed too
Government entered property (took it) and caused demolition
of improvements.
But before there was order for










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79
expropriation, the government said “huwag na lang.” Can the
government withdraw?
o
Yes. But it is liable for damages.
What if there is a subsisting contract between government and
the private person?
o
There can be no expropriation contrary to that contract.
What is the nature of determination of just compensation?
o
It is a judicial function, which is why the judiciary still has
control over the commissioners.
In traversing a lot with transmission lines, is there
expropriation or easement?
o
There is expropriation (NPC v. Manubay)
What is the nature and limitation of “public purpose”?
o
Mactan Cebu Airport: When you say “public purpose,” it
must be the purpose stated, and not another, even if public
too
o
The acquisition of government of property is limited to the
public purpose stated, because it is not a simple purchase in
fee simple, unlike in the normal purchase of property.
How is just compensation ascertained?
o
1. Court appoints 3 commissioners

Copies of order served on the parties

Objections to appointment of commissioners must be
filed within 10 days of service

Resolved within 30 days after all commissioners have
received copies of the objections
o
2. Commissioners take oath
o
3. Commissioners receive evidence

Consider consequential damages and consequential
benefits

N.B. But in no case should he be deprived of actual
value of the property taken
o
4. Commissioners issue report

Can they issue partial reports?

Yes

What is the time period for the report?

60 days from notice of appointment

What is the period to file objections?

10 days from receipt of the report by the
parties
o
5. Court may accept, reject, or recommit the report
N.B. can be in part or wholly
When does the court do this?

After expiration of 10 day period or after
submission of objections by all parties

What else can the court do?

Secure to the plaintiff the property essential
to the right of expropriation and to the
defendant, just compensation
o
6. Plaintiff may take over property after payment of costs

What if the defendant refuses to accept the
payment?

Tender in court
Does appeal stay entry by the plaintiff?
o
No.




Rule 68 – Foreclosure




Two kinds of foreclosure?
o
Judicial foreclosure (Rule 68)
o
Extrajudicial (Act 3135)
What is the difference?
o
Rule 68 – you have to file a case, just like any other action;
you have to pay filing fees
o
Act 3135 – you file a verified petition before the office of the
clerk of court, who is the ex-officio sheriff

When is the EJF scheduled?

After paying of incidental fees and fees for
publication
What is diff between JF and execution?
o
A. When there is award of JF, the mortgagor continues to be
in possession of the property.

When does the purchaser at auction sale or the
last redemptioner get possession of the
property?

Finality of the order of confirmation (or
expiration of redemption period if allowed
by law)
o
B. In execution, the obligor continues to be in possession of
the property.
o
C. What about Banking Law?

In Banking Law, the possession is different. If the
lender is a bank and the borrower/mortgagor is an


80
individual – the one in possession after foreclosure
sale is the purchaser or the bank, if it purchased.
o
D. What about Act 3135?

After foreclosure, the mortgagor still possesses.

Unless the lender is a banking institution – follow the
Banking law.
How is the disposition of the proceeds of sale?
o
1. Deduct costs of sale
o
2. Pay to the person foreclosing the mortgage
o
3. Balance or residue to junior encumbrancers in order of
priority
o
4. If no junior encumbrancers, balance to mortgagor or his
agent
o
What if after execution, there is still a deficiency?

Can execute against the mortgagor
What is the redemption period in JF?
o
Equity of redemption: period 90-120 days.

This is just the general rule. If there is a law giving
a longer period of redemption for the mortgagor,
then that prevails.
o
In execution in Rule 39?

Redemption is one year.
o
In Act 3135?

Redemption is one year.
o
Bank as lender and mortgagor/borrower is a
corporation?

90 days or registration of certificate of sale,
whichever comes first.
Metrobank v. Tan:
o
Filing of a civil case involving annulment and cancellation of
an EJF sale.
o
The general rule in redemption – not enough to manifest
intent to redeem. It must be accompanied by actual and
simultaneous tender of payment. (This also applies even to
redemption in execution.)
What constitutes payment for purposes of redemption?
o
1. The price which the purchaser paid for the property
o
2. Interest of 1% per month on the purchase price
o
3. Amount of any assessment or taxes which the purchaser
may have paid on the property
o
4. Interest of 1% per month on such assessment





Distinguish a legal redemption from conventional redemption?
o
Legal redemption is one that is within the period provided for
by law.
o
Conventional redemption – beyond the redemption period,
and you still want to redeem, and you would like to agree on
a different price

Governed by contractual law.
So the redeemer
cannot insist on the calculation above
Metrobank case:
o
When the complaint to enforce a repurchase, if filed within
the redemption period is treated as an offer to redeem and
will have the effect of preserving the right of redemption.
Take note of the 2007 SC Circular re: TRO and injunction of
foreclosures [discussed in Rule 58]
Different types of sale of property?
o
1. Ordinary execution sale

Governed by Rule 39
o
2. Judicial foreclosure sale

Rule 68
o
3. Extrajudicial foreclosure sale

Act 3135
What is the jurisdiction of courts in JF?
o
“Any right title or interest over real property” depends on
assessed value. So decide whether it’s RTC or MTC.


Rule 69 – Partition





There is a need to refer the matter to a commissioner. But
remember that under this rule, it is NOT mandatory. If the
parties agreed, the matter will not be referred. (As compared
to expropriation, where failure to refer to commissioners is a
violation of due process)
Step-by-step example of JP:
o
There is a co-ownership created by death (inheritance)
o
An action was instituted under Rule 69.
o
The provision of law does not provide for an answer. But in
the absence of rules, there is an answer. So file one.
o
The pre-trial.
o
Then parties can agree. If they do, there will be a judgment
based on the stipulation of the parties.
o
If there is lack of agreement, refer to commissioners.

What if the property cannot be divided without
prejudice to the interest of the parties?

Commissioners can assign the property to
one party, who reimburses the others

If one party asks that the property be sold
instead, the commissioners sell it

What is the procedure for approval of the
Commissioners’ report?

Same as expropriation (10 days to object
and court may accept, reject, etc. it)
Examples of EJP:
o
1. Affidavit of self-adjudication
o
2. EJP upon a notarized public instrument
o
3. Even if there is petition for JP, but the parties agreed, it
will be treated as an EJP

Needs publication
Do you need a bond?
o
For JP, no.
o
For EJP, yes, for personal property.
Requisites of EJP?
o
1. There is no will
o
2. There is no debt
o
3. If there are minors, there is appointment of guardians
Until what period can you contest the distribution of the estate
under EJP?
o
Within a period of 2 years.
Can you contest a JP?
o
In the last five years, there were questions in the Bar exam, but they
involved EJ partition, not J partition.
Compare an EJP from a JP?
o
JP – covered by Rule 69

You must implead all the co-owners because
everyone is an indispensable party
o
EJP – covered by Rule 74
What are the two stages in JP?
o
1. Determination of existence of a co-ownership

The co-ownership is created by agreement of the
parties or by operation of law
o
2. Partition of the property
Who institutes action for JP?
o
Any co-owner
What is the role of the commissioner?




81
Paramount rights cannot be prejudiced, even if there is
judgment already
Can JP cover both real and personal properties?
o
Yes.
o


Rule 70 – Forcible entry and unlawful detainer





But the determination is not binding /prejudicial to future
questions of ownership.
Salient portions of procedure:
o
In ejectment cases, unlike ordinary cases, the court can
dismiss the case outright.
o
Absence of an answer will not lead to default, but a judgment
of the court. No need to declare the defendant in default.
o
There is a Preliminary conference, just like summary
procedure. But after preliminary conference even without
position papers, the court can render judgment if it is already
satisfied.
o
Third chance to make a decision: 30 days from filing of last
judicial affidavit or position paper
How do you stay execution of the MTC decision?
o
1. File notice of appeal and pay filing fees
o
2. Post a supersedeas bond

Covers arrearages
o
3. Pay the monthly rentals before the trial court
o
What if the defendant’s appeal is clearly frivolous or
dilatory or the plaintiff’s appeal is prima facie
meritorious?

Upon motion of the plaintiff, within 10 days of
perfection of appeal, the RTC may issue a writ of
preliminary mandatory injunctions restoring the
plaintiff to possession of the property
Can you file an MR in an ejectment case?
o
No, it is a prohibited pleading.
o
Don’t file an MR, file a notice of appeal.
Are you entitled to a provisional remedy?
o
Yes. You can apply for a TRO or preliminary mandatory
injunction so you can recover possession in the pendency of
the case.
o
But you have to file it within 5 days from filing of the
complaint.

In the rule on property, it says 10 days.

What prevails: 5 days.
Can you appeal?
o
Yes. The appeal will be elevated to the RTC.
o
The decision of the RTC, once final, is executory and cannot
be stayed.
o
Even an appeal will not stay the execution.
o
Distinguish.
o
Forcible entry – possession by reason of force, intimidation,
strategy, threat, or stealth
o
Unlawful detainer – previous lawful possession but by
violation of K or expiration of the period, it became unlawful
What is the most important allegation in FE cases?
o
Prior physical possession and when
o
This must be proved because it is the way the 1 year period is
counted
What is the most important requirement in UD cases?
o
A demand letter is a specific requirement
o
1. There is a demand to pay unpaid rentals or comply
o
2. AND vacate

There must always be a demand to vacate for
unlawful detainer
o
What if the demand letter is defective?

The complaint can be dismissed.
A defective
demand letter is jurisdictional.
o
When is demand not required?

Expiration of contract, because there’s nothing left to
pay
o
When should demand to vacate be given prior to action
for unlawful detainer?

15 days prior in case of land

5 days prior in case of buildings
What is the period to file this action?
o
Within 1 year of entry into the property for forcible entry

Except if done by stealth – 1 year from discovery of
entry and prohibition
o
Within 1 year of the last demand for unlawful detainer
Can you touch on the question of ownership in FE and UD
cases?
o
Yes, but only to preliminarily determine who is entitled to
possession.

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

82
Benedicto v. CA: If you can get a preliminary injunction or
TRO from the next level court, it can be stayed.
What is the mode of appeal from RTC decision in exercise of its
appellate jurisdiction?
o
Petition for review
o
Can you file an MR before you file a petition for review?

Yes, because RTC is an appellate court and not
subject to rules of summary procedure.
What is accion publiciana?
o
Action to recover right to possess property
o
Filed in the RTC or MTC depending on property value
o
File within 10 years after possession was lost
What is accion reivindicatoria?
o
Action to recover ownership of property
o
Follow same valuations for jurisdiction
o
Filed within 10 years or 30 years, as the case may be (if the
defendant is in GF or BF)
Usually, ejectment suit is in personam. But who else can be
bound by the judgment even if not impleaded?
o
1. Trespasser, squatter, or agent of defendant occupying the
property to frustrate the judgment
o
2. Guest of the defendant or member of family
o
3. Sub-lessee, co-lessee
o
4. Transferee pendente lite or privy of defendant
Will the filing of another action for annulment of sale,
cancellation of title, etc. suspend the action fro ejectment?
o
No. Note that the other actions all deal with ownership and
ejectment is just a matter touching on possession so the
actions can coincide.

o



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




Rule 71 – Contempt


What is direct contempt?
o
An act of disrespect in the presence of, or so near the court of
a judge
o
It MUST be within the four corners of his office
o
Ex. Refusal to take the witness stand or refuses to take an
oath. Or wearing shorts in court. Or your phone keeps
ringing.
What is the nature of direct contempt?
o
Direct contempt is summary.
You will not be asked to
explain.


83
Distinguish from indirect contempt.
o
Contempt which is in violation of order or process of court.

Ex. failure to comply with subpoena of court.
o
There is notice and hearing.
How do you charge?
o
For direct contempt, there is no need to charge. You just
need to disobey or disrespect.
o
For indirect contempt, there are two ways:

1. Formal charge of the judge motu propio

2. Upon a verified complaint filed and docketed
separately
o
Where do you file case for indirect contempt?

If against an RTC, file in the RTC

If against MTC, either:

RTC

Or MTC, subject to appeal to RTC
X had a main case pending in an RTC branch in Makati. X
obtained a preliminary injunction but the other party refused to
comply. Can he file a motion for indirect contempt in the same
court that issued the injunction?
o
No, a motion for indirect contempt is NOT a remedy now.
o
You file a verified petition (separate case).
o
After it gets raffled to another branch, you can either:

Let them proceed separately

File a motion to consolidate.
What is your remedy for direct contempt?
o
It’s immediately executory, so you can stay its execution by
posting a bond.
o
File a petition for certiorari or prohibition based on GADALEJ.
What is your remedy for indirect contempt?
o
Remedy is an appeal.
o
Judgment will only be stayed from being executed by posting
a bond.
What are the penalties for direct contempt?
o
If in the RTC or higher court, imprisonment up to 10 days.
Fine not exceeding 2,000.
o
In MTC, imprisonment not exceeding 1 day.
Fine not
exceeding 200.
Penalty for indirect contempt?
o
RTC or up. Imprisonment not exceeding 6 months, Fine not
exceeding 30,000.


o
MTC not exceeding 1 month. Fine of 5,000 pesos.
When is imprisonment imposed?
o
When the contempt stems from the refusal or omission to do
an act which is yet in the power of the respondent to perform
– he may be imprisoned by the court until he performs it
What is difference between criminal and civil contempt?
o
Criminal contempt  disrespect of the court/judiciary
o
Civil contempt  violation of right of other party
o
Can there be administrative contempt? See below (QJAs)
o
In case of absence of rules in QJA, what is the rule?

Venue is RTC where the contemptuous act was
performed (default)

Rules of Court apply

PART II: CRIMINAL PROCEDURE
General matters, jurisdiction



2. Under the Human Security Law (Sec. 49)

Covers acts of terrorism

Even if the act was committed outside the Philippines
(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)

Act against Philippine citizens or against a specific
ethnic group.
But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o
No, it’s not an exception, even if there are instances like the
Ampatuan case being heard in Manila instead of
Maguindanao, or Mayor Sanchez case being heard in Pasig
instead of Laguna.
o
What happened here was a mere transfer of venue. What
was transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o
Where is this rule allowing transfer of hearing found?

Found in the Constitution, and subject to approval of
the SC.
What is the jurisdiction of courts under RA 7691?
o
RTC: Penalty exceeds six years imprisonment

W/N committed in MM or outside MM does not
matter at all.

Regardless of fine or accessory penalty.
o
MTC: Penalty does not exceed six years imprisonment.
o
What if the penalty consists of just a fine?

SC Circular 09-94

If the fine exceeds 4,000 pesos, RTC has jurisdiction.

If it does not exceed 4,000 pesos, the MTC has
jurisdiction.
What is the jurisdiction of Special Agrarian Court?
o
This is important because there can be a penalty for its
violation.
o
DAR court has exclusive jurisdiction over all matters
pertaining to the DAR Law

Exception to DAR’s exclusive and original jurisdiction
are matters pertaining to just compensation which
goes to the courts

Also and more importantly the RTC as special
Agrarian Reform Court also has exclusive and
o
When did Rules on Criminal Procedure take effect?
o
Dec 1, 2000
What is the rule on venue and jurisdiction?
o
VENUE IS JURISDICTIONAL.
The place of commission
determines jurisdiction.
o
Contrast with civil cases where these are separate concepts.
o
The crime of stabbing was committed in Makati; where
can it be filed?

ONLY in the courts of Makati.
o
What is the exception?

Transitory and continuing offenses, wherein one or
more of the elements happened in more than one
venue.

Ex. Estafa, where the elements may be committed in
different places (ex. misappropriation in one place
and damage in another).

Ex. BP22  either place of issue, or where the check
bounced
Can an offense be committed outside the Philippines yet be
filed here?
o
Yes.
o
1. Exceptions under article 2 of the RPC


84






original jurisdiction for prosecution of all criminal
cases under the DAR Law
What is the jurisdiction of the Sandiganbayan?
o
1. The accused is at least a Salary Grade 27 employee.
o
2. And the office must be a constitutive element of the
offense.
o
Can you be charged of offenses falling under the RPC?

Yes.
Can there be instances when you are not SG27 and still be
under the SB jurisdiction?
o
Yes, if there is an express provision.
o
Serrano: UP Student Reagent is a public officer under the
SB’s jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the first
part of 4a only covers officials SG27 and above, the second
part covers officers whose positions may not be SG27 and
higher, but who are by express provision of law are placed
under the SB.

Sec 4a(1g) gives the SB jurisdiction over officers in
State-owned universities [Student Reagent is part of
the board]
What if the public officer is not SG27 but the office was a
constitutive element of the offense?
Which court has
jurisdiction?
o
Regular courts, subject to appeal before the SB.
o
Because the SB has both original and appellate jurisdiction.
What if there is one public officer falling under the SB
jurisdiction and the other is not?
o
They can both be charged as co-accused under the SB if at
least one is SG27.
o
Esquivel v. OMB: There was a session in Sanggunian
involving both a Municipal Mayor and a Barangay Captain.
The MM was charged in the SB (since he was SG27) and the
Brgy. Captain was charged as co-accused, even if he was not
SG27. HELD: Valid, because at least one of the co-accused
was SG27.
What if a co-accused is a private party?
o
Yes, the SB can have jurisdiction over him.
Which court has jurisdiction to issue hold departure orders?
o
Monejar: An MTC CANNOT. Only an RTC can issue a hold
departure order.
Circular 39-97 – Hold Departure Orders by RTC only apply to
offenses cognizable by second level courts.
o
But there are instances when the DOJ Secretary can
issue a hold departure order, right?

Yes, but this is not under the law but under the
powers of the Executive.

There must be probable cause for the DOJ to issue
one.
o
What is the difference between a HDO and a watch list?

HDO prevents you from leaving.

Watch list – you’re only being watched, but you can
leave.
What determines jurisdiction of the court?
o
It is determined by the allegations in the information
o
And any one of the ingredients of the offense or the offense
itself must be committed within the territorial jurisdiction of
the court.
What is the concept of a prohibited second MR?
o
As a rule, a second MR is a prohibited pleading.
o
Padiola: Such motion is prohibited and will not be allowed
except 1) for ordinarily persuasive reasons and 2) only after
express leave has been obtained.
o
A wrong mode of appeal under Rule 56 will cause the
dismissal of the case.
o
Does dismissal of a criminal charge cover dismissal of
an administrative case?

No. It does not prevent the continuation of an
administrative action.

The degree of evidence is different (proof beyond
reasonable doubt and substantial evidence)
What is the jurisdiction of the OMB?
o
Covers any act of malfeasance/misfeasance or omission by a
public officer.
o
It does not have to be in related to an office. The mere fact
that you are a public officer means that the OMB has
jurisdiction.
o
Is the OMB a court?

No, it’s an investigative body.
What is the difference between the powers of investigation of
the OP and the OMB?
o




85
Unlike the Office of the Prosecutor, which can only act upon
an affidavit complaint, while the OMB can investigate upon:

Own initiative, even without a formal complaint

Inquiry into acts of government
o
Method of filing a complaint before the OMB is direct,
informal, speedy, and inexpensive. Just sufficient information
is needed.
Which has primary jurisdiction to prosecute cases cognizable
by the SB – OP or the OMB?
o
The OMB. The OMB has primary jurisdiction over cases
cognizable by the SB. He can take over at whatever stage of
investigation by another prosecutor.
What is the Office of the Special Prosecutor?
o
The OSP is merely a component of the office of the OMB and
may only act upon authority by the OMB.
o
Without authority, the OSP cannot file an information
o
The OMB’s power to prosecute carries with it the power to file
an information
How do you review the actions of the OMB?
o
Administrative cases can be reviewed by the CA under Rule
43
o
If it involves a criminal case and there is GADALEJ, you go to
the SC.
o
Which decisions of the OMB in administrative cases are
unappeallable?

1. Public censure, reprimand,

2. Suspension of not more than 1 month

3. Fine of not more than 1 month salary
Can a case be dismissed outright by the OMB?
o
Yes, for want of palpable merit.
Can the OMB prosecute cases within the jurisdiction of regular
courts?
o
The powers granted to the OMB are very broad, so it can.
Who represents the people during trial?
o
Office of the Prosecutor.
Who represents the people during appeals?
o
Solicitor general
What is controlling in determining the age of a child in conflict
with the law?
o
Remember, below 15 years of age, he is exempt
o
15 to below 18, exempt if without discernment
o









If with discernment, go through juvenile law
What controls is NOT the age at the time of promulgation of
judgment, but the age at the time of commission of the
offense.
What exceptional circumstances call justify an injunction to
restrain criminal prosecution? (IMPT)
o
1. To afford adequate protection to the constitutional rights of
the accused
o
2. Necessary for orderly administration of justice or to avoid
oppression/multiplicity of actions
o
3. Double jeopardy is clearly apparent
o
4. Charges are manifestly false and motivated by lust for
vengeance
o
5. When there is clearly no prima facie case against the
accused and a motion to quash on that ground was denied
o

Rule 110 – institution of criminal actions

When does distinguishing between offenses committed in and
outside of MM matter?
o
If for purposes of jurisdiction of courts, there is no need to
distinguish between MM and Outside MM (OMM), for purposes
of institution of the criminal complaint, you will have to
distinguish between MM/Chartered City (CC) and OMM.
Requiring PI
Not requiring PI
Falling under Rule
on summary proc.
(ex. BP22)



86
MM/CC
Office of the Prosecutor
Office of the Prosecutor
Office of the Prosecutor
OMM/OCC
Office of the Prosecutor
Provincial
Prosecutor/MTC
Provincial
Prosecutor/MTC
So who can conduct a preliminary investigation?
o
1. Prosecutor.

The old rule which includes an MTC judge was
already amended.
o
2. Ombudsman.
Can there be direct filing in a Metropolitan TC (Met. C)?
o
No. Just a MTC (Municipal Trial Court).
o
Because only MM/CCs have Metropolitan TCs.
What is the procedure in MM, requiring PI?
The entire Rule 112, Sec. 3:

1. File complaint

2. Investigating officer dismisses it or issues
subpoena to respondent

3. Respondent submits counter-affidavit

4. If subpoena impossible or no counter-affidavit,
investigating officer decides based on complaint

5. If there is counter-affidavit, the officer can set up
a clarificatory hearing

6. Resolution
o
N.B. Remember, all periods here are 10 days
What is the procedure in MM, not requiring PI?
o
Only Rule 112, Sec 3(A):

1. File complaint
o
Then the prosecutor already decides
On a BP 22 case, when is the prescriptive period deemed as
interrupted? Upon filing the case in court or filing of the case
before the Office of the Prosecutor?
o
Note that prescription is 4 years for BP 22. When Act 3326
was passed on 4 Dec 1926, preliminary investigation was
conducted by Justices of the Peace (equivalent of MTC
before), and so when it was filed with the JOP for PI, then the
prescriptive period is interrupted.
o
So by filing the case with the Office of the Prosecutor, it
interrupts the running of the period.
o
(It cited a case where the SEC is investigating a violation of
the Securities Code, and it was deemed to have interrupted
the period.)
Who has control and supervision of a criminal case?
o
The public prosecutor.
o
So what are the 3-fold duties of a PP?

1. Conduct preliminary investigation

2. Prosecute a case

3. Conducting inquest proceedings, consistent with
Rule 112, Sec. 6
o
It means that the public prosecutor must be there during the
case.
If the prosecutor is absent, the hearing will be
cancelled.
o
A PP cannot come to court because he needed medical
attention. He was not able to inform the court that he
could not come. The counsel of accused asked if he
o









87
could proceed even if the PP was absent, subject to the
prosecutor’s right to cross-examine the witness upon
his return. When the PP returned, he claimed the
proceedings were null and void. The other party said
that the PP can cross-examine anyway.
Who is
correct?

The PP. The proceedings were null and void because
he was not present.
o
So even if the PP’s presence is a mere passive presence, and
not an active presence, that is fine, because everything is still
under his control and direction.
What is the only exception?
o
The private prosecutor can obtain a certification from the
Chief of the Prosecution Office to prosecute even in the
absence of a PP. This certification lasts until the end of the
case.
What is the role of a private prosecutor?
o
The private prosecutor intervenes for the private offended
party. He does not represent the people.
What is the rule on private offenses?
o
Adultery and concubinage cannot just be instituted by
anyone. It must be the offended spouse. You would have to
likewise implead as accused the paramour and the partner (so
both), unless either is dead.
o
If he has condoned, pardoned, etc. the offense, he/she
cannot file.
o
Same rule applies to seduction, abduction, and acts of
lasciviousness.
Who can institute a rape case?
o
The minor, the victim, parents, grandparents, guardian, State
in default
o
The minor now can file alone, without assistance of parents
(esp. when the parents are the offender)
What about defamatory statements in connection with adultery
or concubinage?
o
Can only be instituted by the offended party.
When is there sufficiency of information?
o
Sections 7-12 are elaborations of Section 6.
o
1. Name of the accused

Full name (first and surname)

If his full name is not known?

o
o
o
o
2.
3.
4.
5.
Can use a nickname or appellation (“Boy
Singkit”)

What if there is no nickname or appellation?

Use John Doe or Jane Doe. For civil cases,
you use “unknown owner” or “unknown
heir” or whatever.
Designation of the offense by statute

Ex. murder, homicide, estafa

If there is no designated name of the offense, just
say “Violation of Sec. 5 and 11 of the Dangerous
Drugs Law”

Recent SC decision: Even in the absence of a
particular section, but the allegation in the
information shows that you know the nature of the
offense, then there is substantial compliance.
Qualifying and aggravating circumstances

Both should be alleged

If it is an aggravating circumstance, it must be
alleged. If it is not alleged but proven in trial,
can it be taken against the accused?

No.

Even
more
reason
for
qualifying
circumstances.

How about mitigating circumstances?

No need to allege, because it is part of the
defense of the accused.
Facts or circumstances constituting the offense.

“Cause of accusation” is the equivalent of a cause of
action in a civil case

The language of the information should be in a
language known to the accused.

What is the reason for this?

Rule 116 says that the accused must be
properly informed of the nature and cause
of accusation against him to make a proper
arraignment and plea.
Date of commission

Do you need to provide the specific date of
commission of the offense?

No need. Just an approximation is needed.


6. Place

Need to show that it is committed within the
territorial jurisdiction of the court

But for offenses like trespass to dwelling, violation of
domicile, election cases, arson, etc. where the place
of commission is material, you have to allege it with
particularity
o
7. Name of the offended party

Place it there, if it is known

If it is a crime against property, you describe the
property so that you will know who the offended
party is

What if it is later on discovered?

It can be inserted in the information
Only one offense per information
o
Is there an exception?

Yes. If there are multiple offenses in the information
and the accused fails to object, each offense proved
can be used against him.
Can you amend the information?
o
Yes.
Can you substitute the information for another?
o
Yes.
o
We always remember amendment but forget about
substitution. So remember this.
When can you amend or substitute?
o
Whether a matter of form or substance, there can be
amendment if it is before plea.
o
Can you still change the substance of an information
after a plea?

No.
o
Can you still change a matter of form after a plea?

Yes, as long as it will not prejudice the right of the
accused.
o




88
Exception: if the date is a material element of the
offense.

Election offense

Infanticide
Is date a material element of the offense of
rape?

No.
What is the test to know w/n it will prejudice
the rights of the accused?

If the original defense of the accused will
have to be changed due to the change in
the formal amendment.

Ex. The original case is for rape, except that
in the formal amendment, it was alleged
that the age should have been 17 and not
18 due to a typo. This will prejudice the
rights of the accused.
What is downgrading and exclusion?
o
Downgrading is lessening the offense (ex. robbery to theft,
murder to homicide, seduction to acts of lasciviousness)
o
Exclusion is removing from the information a person
o
When must downgrading or exclusion take place?

Before plea.
o
What
are
the
requirements
for
exclusion
or
downgrading?

1. Upon motion of prosecution

2. With leave of court

3. With consent of the offended party
What is difference between exclusion before plea and
discharge of the accused as State witness?
o
If exclusion, there is no need to submit an affidavit. In
discharge, you have to.
o
In exclusion before plea, double jeopardy has not yet
attached so you can be charged again later on. In discharge
as State witness, it is tantamount to an acquittal so double
jeopardy sets in.
What is substitution?
o
The information will be substituted with a new one to be filed,
if the prosecution cannot prove the offense charged in the
prior information
o
The accused will not be released until a new information has
been filed as a substitute







Rule 111 – civil liability in criminal cases


1. Reservation

When is reservation not allowed?

BP 22 cases

When can reservation take place?

Any time before the prosecution commences
with presentation of evidence considering
the circumstances of the case. Take note of
the underlined part because the timeline is
not a strict rule.
o
2. Instituted ahead of the criminal case
o
3. Waived
When is there need for filing fees?
o
Moral, nominal, exemplary, temperate damages require filing
fees.
o
Actual damages do not require filing fees.
o
For BP 22, what is the rule?

For EVERYTHING claimed, even liquidated and actual
damages (this is the face value of the check).
Consolidation of writ of amparo cases:
o
Can you consolidate a Writ of Amparo case with a civil
case or an admin case?

No.
o
Can you consolidate a Writ of Amparo case with a
criminal case?

Yes.

Follow the general rule: if the civil case was
instituted ahead of the criminal case, the civil case is
interrupted in whatever stage and the criminal case
proceeds until judgment.

And there is an option to consolidate.
What are kinds of acquittal?
o
1. Based on reasonable doubt
o
2. Did not commit the crime
o
3. Purely civil
o
4. The acts from which the civil liability arises from were not
committed
What is a prejudicial question?
o
A criminal case will be suspended when there is a pending
civil case which must be suspended until the prejudicial
question is resolved.
o
What are the requisites?
o

What is the general rule in civil liability?
o
Once a criminal action is instituted, the civil is likewise
instituted
Exceptions?
89
1. The civil action was filed first
2. The resolution of the civil action is determinative
of the criminal action
o
Give an example of a prejudicial question.

Can trespassing be only committed against the
owner of a property?

No. So you need not file a civil case to
determine who owns the property first.

Theft: determine first who owns the property

Who determines whether there is a prejudicial
question?

The court.

What will be suspended?

The criminal case.
o
Where do you file a motion to suspend on the ground of
prejudicial question?

1. The court

2. The prosecutor conducting PI
o
When do you file the motion to suspend?

Anytime before the prosecution rests its case
o
Can an administrative case suspend a criminal case on
the ground of prejudicial question?

No.
o
Can another criminal case suspend a criminal case on
the ground of prejudicial question?

No.
What is an independent civil action?
o
One that can proceed independent of a criminal case
o
Arts. 31-34 of the NCC
o
Art. 2176 of the NCC (quasi-delict)
If there is an independent civil case filed before the criminal
case, is the independent civil case suspended?
o
No.
o
If there is a criminal case filed ahead, do you need to
reserve the independent civil action?

No. YOU DO NOT RESERVE AN INDEPENDENT CIVIL
ACTION.
o
Can it proceed side by side with a criminal case?

Yes.

Compare with a reserved civil action (i.e. not
independent).





It cannot proceed side by side.
Must an independent civil action be reserved?

No need to be reserved, and it will not be suspended
If the civil action was instituted ahead of the criminal, and
there was a judgment stating that there was no civil liability, is
the offended party barred from filing another criminal action?
o
No. Again, the burden of proof is different.
o

Rule 112 – Preliminary investigation




90
What is PI?
o
Where the prosecutor determines whether there is probable
cause to file a case against a respondent
Distinguish from inquest?
o
Inquest is conducted by an inquest prosecutor, when one is
caught under the three exceptional circumstances provided in
law
Who can conduct preliminary investigation?
o
City prosecutors, and their assistants, Provincial prosecutors
and their assistants
o
OMB, and if they authorize the Special Prosecutor he can too
What is the procedure for PI?
o
1. After receiving affidavit-complaint, the prosecutor will
determine within 10 ten days whether there is probable cause

Raffle

Assigned to assistant prosecutor
o
2. Assistant prosecutor issues a subpoena to the respondent
o
3. The respondent will issue a counter affidavit within 10 days

In practice there can be a reply or rejoinder, but this
is not provided by the rules
o
4. Optional clarificatory hearing
o
5. Resolution

Who prepares the resolution?

The Assistant prosecutor

Is it the city prosecutor or the assistant
prosecutor?

Assistant prosecutor prepares it, and then
the city prosecutor approves it

City prosecutor has discretion to dismiss the
complaint, file the information himself, or
ask another assistant/State prosecutor to
file it
o
Regardless of recommendation
Can a resolution be issued by an assistant
prosecutor even without approval of the City
prosecutor?

No.

What if the City prosecutor does not
agree with the recommendation of the
assistant prosecutor?
o
He has discretion to reverse it.

If the assistant prosecutor believes that there is
probable cause, he prepares a resolution AND an
information.
Information is filed in court and
resolution served to the parties. If he does not find
that there is probable cause, he only prepares a
resolution. But regardless, no resolution can be
issued without the approval of the City or Provincial
prosecutor.
Can you file a complaint with the OMB?
o
Yes, and he will then investigate. He can also motu propio
investigate.
o
Can the NBI conduct preliminary investigation?

No.
Is service of a subpoena and receipt thereof necessary for the
Office of the Prosecutor to obtain jurisdiction over the
respondent?
o
No.
o
There is still no case filed against him, just an investigation.
o
Even if he does not get to file a counter affidavit, there can
still be a resolution issued against him.
X is arrested, accused of possessing illegal drugs, without a
warrant. What is the procedure?
o
1. X is taken to the police station
o
2. X can choose to apply for preliminary investigation, or have
them proceed with inquest

If X applies for preliminary investigation, what
happens?

You sign a waiver of Art. 125 of RPC

Will X be released?

If he applies for bail.

Where does X apply for PI?

Before the inquest prosecutor.



Where do you apply for bail?

With the Executive Judge. (This is a “trade
secret”)
What is the procedure if someone is arrested for vagrancy,
without warrant?
o
Note that vagrancy does not need preliminary investigation,
so the information can be directly filed with the MTC.
o
Can you apply for bail?

Yes, because you were already arrested.
You were sued for slight physical injuries in MM, and it was not
in flagrante delicto, so it was on the basis of affidavit
complaint. What happens?
o
There is no need for preliminary investigation.
o
So the prosecutor will determine probable cause, then will file
the information in court.
o
Is there a need for the respondent to file a counter
affidavit here, and is there need for preliminary
investigation?

No.
When are inquest proceedings applicable?
o
It must be due to a warrantless arrest:

A. In flagrante delicto

B. A crime has been committed and the police officer
has personal knowledge that the person committed
the crime

C. Escaped from confinement or escape
o
Also, it must be for an offense that requires PI (at least 4y,
2m, 1d) 

If no need for PI, just file affidavit-complaint to the
office of the prosecutor.
(Because only 3A is
required)
o
How do we distinguish (A) from (B)?

First kind – the arresting officer was there when the
crime was committed

Second kind – the arresting officer has personal
knowledge
If a person is arrested with a warrant can he be placed on
inquest?
o
No.






91






What if he was arrested for an offense for which he was
previously charged, and then he escaped from detention and he
was arrested without a warrant?
o
Inquest must be conducted.
How do you appeal a resolution?
o
Within 15 days, file a Petition for Review to the DOJ.
o
Must the petition be verified?

Yes.
o
Can the period be extended?

No.
o
If the DOJ decision is adverse, to where do you go?

Rule 43, to the CA

(Or Rule 65, to the CA if there was GADALEJ)

Only to the SC if it’s the OMB

(Or Office of the President if punishable by reclusion
perpetua or higher)
o
Can you have the DOJ review the resolution if the
offense in question does not require a PI?

No. This is clear in the circular. The offense must
require, for its charging, at least preliminary
investigation OR has gone through reinvestigation.

What is reinvestigation?

There was a regular PI, and you were not
satisfied with it, so one files for a
reinvestigation with the Office of the
Prosecutor or in court.

This is not provided in the rules.
Do all offenses in the RTC require PI?
o
Yes, because all offenses charged in the RTC exceed 6 years
(and PI is for 4y,2m,1d)
Once the information is filed in court, what can the judge do?
o
1. Issue a warrant of arrest, after personally determining the
existence of probable cause
o
2. Dismiss the case for absence of probable cause
o
3. The court can call for a hearing to determine probable
cause
So what are the options for a judge in an RTC case?
o
Just these three.
What about the MTC? – Distinguish:
o
A. Not exceeding 6y, but more than 4y,2m,1d:

See above [the three options]. So it’s like the RTC.
B. Below 4y,2m,1d, more than 6m

Same as three above, but the issuance of the
warrant is up to the discretion of the court. If the
court believes the offense is not so grave, it may not
issue a warrant and will just issue summons.
o
C. Not more than 6m, falling under the rule on SP

The court cannot issue a warrant of arrest. Instead,
the court requires you to file a counter affidavit

So when does the court issue a warrant of
arrest?

Only when there is failure by the accused to
appear in court despite repeated notice

What is an example of a crime involving
summary procedure?

BP 22
When can you file a motion for determination of probable
cause?
o
After filing of information, but before the judge has acted on
it
o
Can you file after issuance of a warrant of arrest?

No.
Will the filing of a petition for review suspend the issuance of a
warrant of arrest?
o
No. The mere filing of a petition for review will not suspend
the issuance of a warrant of arrest.
o
What it suspends is the arraignment.
o
For how long?

60 days suspension of arraignment.
o


Rule 113 – Arrest


92
Duty of
o
o
o
arresting officer when the arrest is with warrant?
1. Inform cause of arrest
2. And that a warrant had been issued for his arrest
Exception to this?

1. Flees/forcible resistance

2. Informing the accused imperils the arrest
What is the duty of the arresting officer if the arrest is without
a warrant?
o
1. State authority to arrest
o
2. Cause of the arrest
o
Exceptions to this?





1. Engaged in commission of the offense

2. Pursued immediately after offense

3. Flees/forcible resistance

4. Informing accused imperils arrest
What about arrest by a private person?
o
1. State cause of arrest
o
2. And intent to arrest him
What are the other circumstances where there can be arrest
without warrant?
o
1. Judicial bondsman may arrest him to surrender accused to
court
o
2. Attempt to depart the country
o
3. Person who has been lawfully arrested and has escaped
After arrest what do you do?
o
1. Bring him to the police station
o
2. He will be incarcerated until he files for bail

What if he does not apply for bail?

He will stay in the city jail in the pendency
of the case.

If it’s a non-bailable offense, it’s a different
procedure.

Just wait for arraignment.

What if he applies for bail?

He is released from the city jail and he has
responsibility to attend arraignment/appear
o
3. Afterwards, there will be an arraignment
What if a person is arrested without a warrant?
o
1. Brought to the nearest police station
o
2. Inquest proceeding will be done

Brought to the Prosecutor’s Office
o
3. The inquest prosecutor can either release you or keep you
in detention

When the inquest prosecutor releases you,
does this mean your case is dismissed?

No.
You are released for preliminary
investigation.

This just means the affidavit-complaint of
the police officer used as basis for inquest
will be filed with the prosecutor as an
ordinary case.

What if the prosecutor says “detain”?




You can either apply for preliminary
investigation or not.
What if you apply for preliminary
investigation?
o
You sign a waiver of Art. 125.
o
Can you then apply for bail?

Yes. You file it with the
executive judge.
After waiver of 125, what is the next
step?
o
Go to preliminary investigation.
What if you did not ask for a
preliminary investigation?
o
An information can be filed
o
Afterwards, there is arraignment
Rule 114 – Bail


93
When does bail apply?
o
Whenever there is deprivation of liberty
o
In a voluntary surrender, you do not need a certificate of
arrest, for an application for bail.
What are the types of bail?
o
1. Cash bond

In a cash bond, how much is deposited in
court?

The full amount

Who receives it?

Municipal, city, or provincial treasurer or the
CIR

Clerk of court where the case is pending

When does the warden release the accused?

Upon submission of property certificate of
deposit and written undertaking showing
compliance with this rule

What happens to excess?

Returned to accused or whoever made
deposit
o
2. Corporate surety

Just pay the premium
o
3. Property bond
What is the most important requirement for a
property bond?

The owner must be resident of the
Philippines

Registration of the lien must be done within 10 days
from approval of the bond

Does the accused need to be the owner of the
property?

No.

Property must be worth at least the amount of
undertaking, or if there are 2 or more, the aggregate
sums must be worth at least that amount

What is justification of surety?

File affidavit before the judge that he
possesses the qualifications needed.

Include in affidavit:
o
1. Description of property
o
2. Nature of title
o
3. Encumbrances
o
4. Other bails undischarged
o
4. Recognition

Can
you
be
released
on
your
own
recognizance?

Yes.
What are the stipulations in a bond?
o
1. Bond is effective upon approval and unless cancelled

Lasts until promulgation of judgment in RTC,
whether case is originally filed or on appeal
o
2. Accused must appear in court if required
o
3. Failure to appear in trial is deemed a waiver

Trial can proceed in absentia
o
4. Bondman must surrender accused to the court for final
judgment
When is bail a matter of right?
o
1. Before conviction, whether MTC or RTC

Except for cases punishable by RP, LI, DP
o
2. After conviction, if MTC
When is it a matter of discretion?
o
1. After conviction, if RTC and not punishable by RP, LI, DP
o
And not accompanied by the following instances:




1. Recidivism, habitual delinquency, reiteration,
quasi-recidivism

2. Prior escape from legal confinement

3. Commission of offense while under probation, or
parole

4. Risk of flight

5. Risk of commission of crime during pendency of
appeal
o
If any of the disqualifiers applies, then bail is denied.
Where do you apply for bail in appeal?
o
1. If appealed before transmission of records: to RTC
o
2. If appealed and RTC conviction changed nature of offense
from non-bailable to bailable: to appellate court
From when and up until when is a bail in force?
o
From approval, until promulgation of judgment by the RTC
o
Whether originally filed there or on appeal

N.B. thus if the case started in the MTC, you filed for
and were given bail, it can continue up to appeal in
the RTC
When there is conviction in the RTC, are you still entitled to
bail?
o
As a rule, no. But if you appeal the conviction, you can still
apply for bail as long as it is not yet final and executory,
assuming it is a bailable offense.
o
In this case, bail is a matter of discretion of the court.
o
Remember: If it’s from the MTC, the bail is still effective.
What if the original charge is non-bailable, but one is convicted
for bailable offense, where must he apply for bail?
o
With the appellate court
What if one is charged with a non-bailable offense (murder)?
o
Not entitled to bail as a rule, but he can file petition for bail.
This is different from bail as matter of discretion (which is
post-conviction in RTC for non DP/LI/DP crime)
o
Notify prosecution of application for bail
o
The judge will then do a preliminary examination of the
prosecution’s evidence. If evidence of guilt is not strong,
then bail will be granted.
o
Nature of hearing: summary

N.B. there can be joint summary hearings for bail
o
Can we dispense with hearing for bail, as when the
judge thinks the prosecution’s case is strong?






94
No. The judge cannot dispense with the hearing for
bail.
Is arraignment a prerequisite to petition for bail?

No.
Although the judge in the Ampatuan case
required arraignment before bail, which is fine. The
general rule applies: the very moment there is
deprivation of liberty, you can apply for bail.

o
Charged with
Convicted for
Bail
Murder (and petition
for bail granted)
Homicide
Bail
as
discretion
Murder (and petition
for bail granted)
Murder
No bail (because it is
non-bailable,
and
having been convicted,
evidence of guilt is
strong)
Murder (and petition
for bail granted)

Less serious physical
injuries (less than 6
years sentence)
matter
of

Bail is now matter of
right

How do we determine if bail is excessive?
o
Look at Section 9 parameters:
o
1. Financial ability of accused
o
2. Nature and circumstances of offense, penalty for offense
o
3. Character, reputation, age, health of accused
o
4. Weight of prosecution evidence
o
5. Probability of appearing in trial, forfeiture of other bail, fact
that accused was a fugitive when arrested
o
6. Pendency of other cases where accused is on bail

Where to File Bail:
Situation
Where to file bail
Case is pending
In the court where the case is
pending
Case is pending, and
absent or unavailable
judge
is
Any trial court (RTC/MTC) in the
province, city, or municipality
Arrested in a different place from
where case is pending
Any RTC of place where arrested;
Or court where case is pending
Arrested in a different place from
where case is pending, and judge is
absent or unavailable
Any MTC of place where arrested
Or court where case is pending

You were arrested in Kamagong (Makati). The case was filed
in Makati as well:

Apply in court where case is pending

In absence or unavailability of judge, in any trial
court in the area
o
Person arrested in Marikina, case pending in QC

Can apply either in Marikina or in QC

But in practice, apply in Marikina, because he will be
taken to nearest police station in Marikina.
o
Person is in Cavite, but the case is pending in Makati, but he
hasn’t been arrested.

Can only apply in Makati. NOT in Cavite.
o
Arrested in Ilocos, case pending in Manila. He applied for bail
in Ilocos and was granted. Later the records were sent to
Manila. Is the judge in Manila obligated to accept the bail?

No. He’s not required. He can require a new bail.
Can a person out on bail depart from the Philippines?
o
No, not without securing approval of the court. If he departs
without such approval, he can be arrested without warrant.
Can the court increase/decrease the bail?
o
Yes. And if increased, the accused may be arrested if he does
not give increased amount within a reasonable period of time.
o
If strong showing of guilt emerges, the court may require
bail, when none was initially asked for.
When is bail forfeited?
o
Failure of accused to appear as required
o
Effect:

1. Bondsmen have 30 days to produce the principal
and show cause why no judgment must be rendered
against their bond

May:
o
1. Arrest him themselves
o
2. Cause police officer to arrest
him
(upon
written
authority
endorsed on a certified copy of
undertaking)

2. If they are unable to produce the body, must
explain why when required to do so

Failure to comply – render solidary judgment against
bondsmen
When is bail cancelled?
o
Upon application by bondsmen, and with notice to prosecutor

1. Surrender of accused

2. Proof of his death
o
Automatically

1. Acquittal of accused

2. Dismissal of case

3. Execution of judgment of conviction
o

Illustrations:
95

Is bail a bar to objections on illegal arrest or violation of rights
of detainee?
o
No. Bail is not a waiver.
o
But he must raise these defenses before plea.
Rule 115 – Rights of the accused









If the value is 99.9% or higher – it is a disputable
presumption
o
Why is it just a disputable presumption?

Because you can still argue that it would have been
physically impossible for one to do it, or there is no
access, and that there is someone who could have
similar DNA makeup (twins, for instance).
o
Differentiate corroborative from cumulative evidence?

Corroborative  proving same point, but different
kind and character of evidence

Cumulative  Same kind and character, proving
same point
o
Can a person who has already been convicted and
serving sentence, apply for DNA examination?

Yes.
o
If the court finds after DNA evidence that the person
serving sentence is not guilty, what is the remedy?

He must apply for habeas corpus.
D. Right to be present in the course of the proceedings
o
What is the consequence of his absence in the hearing?

There can be a trial in absentia if there already is
arraignment and the accused is unjustifiably absent
o
When is his presence mandatory?

The general rule is the he must be present at all
stages of the proceeding.
o
Can this be waived?

Yes.
o
Where and when should it be waived?

There should be a stipulation in the conditions of
bail. So as a rule, it cannot be waived.
o
What if the private complainant is absent?

It’s fine.
E. The right to public trial
o
General rule is that the trial is public
o
When can the public be excluded?

Found in Rule 119, Sec 21. (offensive to
decency/public morals)
o
Does public trial include public viewing on TV or radio
broadcast?

No. It opens room for lawyers to grandstand.
F. Right to speedy trial
o
How many kinds of speedy trial?
o
A. Presumption of innocence
How did the court apply presumption of innocence in P v.
Dimalanta?
o
When circumstances lead to two or more inferences, one or
more leading to innocence and one or more leading to guilt,
the former should prevail.
B. To be informed of the nature and cause of the accusation against
him
To be informed of the nature and cause of accusation against
him:
o
Get an authorized interpreter if the accused does not speak
Filipino/English
When can a counsel de officio be appointed?
o
1. During arraignment
o
2. During trial
o
3. Before records are elevated on appeal (accused informed
of right to counsel by clerk of court at this point)
o
4. In the CA –

When the accused signed his appeal by himself

Or accused is in prison
o
5. In the SC – have their own guidelines
C. Right against self-incrimination
What is the concept of chain of custody in the DNA rule?
o
Usually it’s a concept that is connected with drugs, as re:
possession of seized item from the scene of the crime
o
For purposes of evidence, it is considered for tampering or
authenticity of the sample. If the sample has been tampered
with, you cannot get an accurate result.
What are the ways by which a laboratory can be accredited?
o
See Rules on DNA Evidence 7c
What is the rule on filiation?
o
DNA results that exclude from paternity are conclusive
o
If the value of probability of paternity is less than 99.9% merely corroborative



96
o
o
o
o
o
o
o

1. Speedy disposition of the case (constitutional law)

2. Right to speedy trial (criminal law)
What is the difference?

In the Crim Pro concept, you can invoke it anytime
before or during trial.

In Constitution, any time as long as the action is
pending.
What is the remedy for speedy trial under the
Constitution?

Habeas Corpus

Because your continuous detention has no more
legal basis
What if it’s in criminal procedure?

Certiorari

Prohibition

Mandamus
Rule 119 has a computation. How long is the maximum
time between the arraignment and trial?

80 days

If you don’t follow number days, you could expect a
MTD on ground of violation of right to speedy trial
Entire period of trial?

180 days
But why are a lot of cases that do not commence in
time, and are not dismissed due to violation of this
right?

Because of the exclusions.
What are the exclusions?

1. Other proceedings:

Mental/physical examination of accused

Other criminal charges

Extraordinary
remedies
against
interlocutory orders

Pre-trial proceedings, as long as not
exceeding 30 days

Orders of inhibition or change/transfer of
venue

Prejudicial question

Any period not exceeding 30 days when the
accused is actually under advisement

[Unavailable, unable]







Cases:

In one case, Pre-trial happened after 7 years. Delay
was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion

But as a rule, extraordinary remedies must
not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.

In another case, there were 20 postponements. The
witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o
What is “VCO”?

Vexatious, capricious, oppressive

VCO delays violate the right to speedy trial
G. Right to confront witnesses presented against him
o
Basically, can cross examine
H. Right to have compulsory processes to secure attendance of
witnesses and production of evidence
o
Can apply for subpoena ad testificandum and duces tecum
o
Right to modes of discovery:

Can apply modes of discovery in criminal cases.
o


97
2. Absence or unavailability of an essential witness

Absent  whereabouts unknown

Unavailability  whereabouts known
3. There is a co-accused over whom the court has
not acquired jurisdiction or for whom time for trial
has not run and no motion for separate trial is
granted
4. Mental incompetence or physical inability of the
accused to stand trial
[Upon motions]
5. Prosecution dismissed information upon motion
and then filed another charge for the same case –
the time limit between the dismissal and the
subsequent charge
6. Continuance granted by the court motu propio or
on motion
Memorize this list. Rule 119 Sec 3.
Rule 119, Secs. 12, 13, 15  Conditional
examination
of
witnesses
for
the
prosecution/accused. This is the equivalent of Rule
23 depositions in criminal trial.

Purposes for prosecution:

1. Sick or infirm, or unavailable

2. or the witness is about to depart.

Purposes for accused:

1. Sick or infirm or unavailable

2. or more than 100km

What is the difference if it will be availed of
prosecution or accused?

Prosecution: ONLY in the court where the
action is pending

Accused: Before any judge, member of the
Bar in good standing, and if ordered by a
superior court directing an inferior court
I. Right to testify on his own behalf
o
Can the accused testify for the prosecution?

Yes, but he can refuse
o
Can a party in a criminal case be asked a question that
would raise civil liability but not criminal liability?

[Answer unclear, but since it’s purely civil, I think
the witness can be compelled]
o
What is the effect of silence?

It should in no manner prejudice him
J. Right to appeal
o
Will be discussed below (Rule 122-125)






Rule 116 – Arraignment and Plea

When must arraignment take place?
o
Within 30 days of obtaining jurisdiction over the person of the
accused
o
Take note that pre-trial must happen within this same period,
but after arraignment
o
What if the person is preventively detained?

Follow the 3:10:10 rule. So it’s shorter (max 23
days)

1. From filing of information, case is raffled
within 3 days

2. Arraignment within 10 days of raffle
98

3. Pre-trial within 10 days of arraignment
What comes first, plea or arraignment?
o
Arraignment, where the information is read against him
o
Can the arraignment be dispensed with? (Ex. by an
accused that does not want to hear the information)

Never. You cannot waive the arraignment.
o
Can the arraignment or reading be in a language
different from what the accused knows?

No. It must be in a language known to the accused.
What about a belated arraignment? (P v. Trinidad)
o
This happened when they realized that there was no
arraignment. There was a belated arraignment that was
validated because the lawyer had an opportunity to cross
examine and the lawyer actively participated in the
proceedings.
What are the kinds of pleas?
o
1. Plea of guilty

A. Plea of guilty to lesser offense

Until when can you do this?
o
At very latest, pre-trial (or at least,
before trial)
o
At trial, cannot plea guilty to lesser
offense

B. Plea of guilty to capital offense

[N.B. this is a moot and academic
discussion]

Punishable by death.

What is required?
o
Conduct searching inquiry to see if
it
is
voluntary
and
if
he
understands the plea

What does it entail?
o
1.
Background
check
(age,
education,
socio-economic
conditions)
o
2.
Conduct
of
custodial
investigation
o
3. Explain the nature of the offense
and extenuating circumstances to
the accused

o
Hearing after the plea – require where
prosecution must prove his guilt and precise
degree of culpability.
Accused may still
present evidence

C. Plea of guilt to a non-capital offense

Should there be a hearing?
o
It’s not mandatory
o
Only for purpose of establishing
the penalty to be imposed

D. Improvident plea

What is an improvident plea?
o
Plea
of
guilty
without
fully
understanding consequences of the
plea
o
X pleaded guilty to homicide.
He didn’t know that if he
pleaded guilty, there won’t be
any hearing anymore. Can he
withdraw the improvident plea?

Yes.

When can it be withdrawn?
o
Any time before judgment of
conviction becomes final
o
So it can still be withdrawn even
on appeal

What are the further actions of the
court in case of an improvident plea?
o
If the sole basis of conviction is the
improvident plea, it is remanded
for further proceedings in the trial
court. (Ex. the SC sends it back to
the RTC)
o
If the conviction is supported by
other evidence, the SC will render
judgment
2. Plea of non-guilty

A. Conditional plea

What is this equivalent to?
o
It’s akin to a plea of not guilty

B. Refusal to enter a plea

The court assumes it’s not guilty


When
o
o
o
o
Can a representative enter a plea of not
guilty?
o
No. The accused must be the one
to enter the plea.

[Should the accused be present during
promulgation of judgment?]
o
Yes.
o
Is there an exception to this
rule?

Yes, for light offenses.
The
accused
can
be
represented.

C. Direct plea of not guilty

D. Say guilty but present exculpatory evidence
is there suspension of arraignment?
1. Accused suffers from unsound mental condition
2. Prejudicial question
3. Petition for review pending with DOJ

Not exceed 60 days
4. Pending incidents:

A. Motion to quash

B. Motion for inhibition

C. Motion for bill of particulars

Can there be a bill of particulars in a
criminal case?
o
Yes. Apply before enter of plea.

What is required?
o
Identify defects and details desired
Rule 117 – Motion to quash



99
Why do you file motion to quash the information?
o
1. It is defective or
o
2. The court has no jurisdiction.
Differentiate from provisional dismissal:
o
In P.D., there is no questioning of the information. In fact, it
is valid and charges a proper offense and the court has
jurisdiction over the SM and the person.
o
Provisional dismissal is always with the consent of the
accused.
What is the effect of a grant of a MTQ?
o
Dismissal of the case.
Is it always dismissal?

No. The court can order amendment. [No period
provided.]

Amendment is a remedy, but it has a narrow
application. It does not apply to all grounds.
Can a case dismissed by a MTQ be re-filed?
o
As a general rule, yes.
o
It depends on the ground.
o
When can it not be re-filed?

1. Prescription

2. Double jeopardy
Can the prosecution file a MTQ?
o
No. The applicable remedy is substitution of information.
When a case is dismissed provisionally, what is the effect?
o
The case is temporarily dismissed.

Ex. “This case is dismissed for 30 days”
o
It can be revived (don’t use “re-file” because the dismissal
was just provisional)
o
Who will ask for provisional dismissal?

1. The prosecution

With consent of accused

If there is no consent of accused, is it a
provisional dismissal?
o
No.
A dismissal without the
consent of the accused would lead
to
double
jeopardy
(obtains
finality).

2. Or the accused

Is the prosecution’s consent required?
o
No. Even without consent, it’s still
a provisional dismissal. As long as
it doesn’t pass the time leading to
permanence.
o
When can you ask for provisional dismissal?

Any time.
For a dismissal to take effect in MTQ, do you need to wait for a
lapse of time?
o
There is still a period to seek a remedy after. Ex. You can file
an MR.
o
After this period, it can be re-filed. (Except for the two
exceptional grounds.)

o





100
For a provisional dismissal to be permanent, what is the period
required?
o
Beyond 6 years  2 years
o
6 years or less  1 year
o
When will this period begin to run?

Upon receipt of notice by the accused (given by the
code)

But this has been supplemented by Lacson: Period
can only start upon receipt of notice by the public
prosecutor

Rationale: because it is the public
prosecutor’s duty to revive the case
What are the grounds for a MTQ?
o
Problem as to form
o
1. Facts stated do not constitute an offense

The elements of the offense are not there

But is it possible that while not constituting an
offense, you can be liable for another offense?
Can this be the proper ground of a MTQ?

It’s possible. This is not a ground for a
MTQ.

Ex. Charged with qualified theft, but
relationship was not alleged. You file a
MTQ. The court can order an amendment
to show relationship.
The court cannot
quash because there is an offense alleged in
the information.
o
2. More than one offense was charged in the information

How do you know if there is more than one
offense?

Ex. murder – can you kill a person twice?
No.

Ex. rape – you can rape someone multiple
times.
For instance X raped Y five
times. How many informations should
you file?
o
Five.

What if ten checks bounced?
o
Ten informations, because each is
an offense in its own.
o
3. Does not conform substantially to prescribed form
o
o
o
o
o
o
o
o
4. Officer who filed the information had no authority to do so.

There was a case in the Sandiganbayan. There
was a motion for reinvestigation and it was
granted. The Special Prosecutor amended it
and re-filed it. Can he do that?

No. He has no authority; it is not within his
powers.

Ex. a Prosecutor with authority only extending to
Bulacan cannot file an information in Makati.

If a State prosecutor is appointed as Acting city
prosecutor, does he have authority to
approve/file the information prepared by the
asst. prosecutor?

Yes as long as he is properly appointed by
the DOJ.
Jurisdictional matters
5. Lack of jurisdiction over the person of the accused

Accused has not voluntarily surrendered

Or Accused not arrested
6. Lack of jurisdiction over the offense charged
Exculpatory matters
7. Criminal liability has been extinguished by prescription

Recall that there is prescription of crimes and
prescription of penalties.

To which does this ground apply to?

Prescription of crimes. In prescription of
penalties, there is already a judgment.
8. Contains averments that if were true, would constitute a
legal excuse or justification

Ex. Self-defense
9. Double jeopardy

What are the requisites?

1. Court of competent jurisdiction

2. Valid information

3. Plea

4. Conviction, acquittal, or dismissal without
express consent of the accused

What are examples of dismissal without the
express consent of the accused?

Ex. failure to prosecute
What about motion to dismiss prompted by the
accused on the ground of violation of right to
speedy trial?

It is tantamount to an acquittal and thus
leads to DJ. This is an exception to the
general rule

What about a demurrer to evidence which is
granted by the court?

It is also tantamount to an acquittal and
thus leads to DJ. Another exception.

What about a motion for determination of
probable cause filed by the accused and
granted by the court?

No, this is not an exception. There is no
plea yet. There is no dismissal without
express consent of the accused.
Compare motion to dismiss (civil procedure) from motion to
quash (criminal procedure).
o
Re: court actions
o
Motion to dismiss:

The court can grant, deny, or order an amendment
o
Motion to quash:

The court could only order amendment if it’s a defect
that can be corrected by such amendment.

UNLIKE in motion to dismiss, regardless of
the ground, the court has a free hand: can
grant, deny, or order amendment.

Whereas here, the court has to order an amendment
before denying/granting, on some grounds.
o
Re: refiling
o
Motion to dismiss:

In general, it can be re-filed.

Except:

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)
o
Motion to quash:

In general, it can be re-filed.

Except:

1. Prescription


101

2. Double jeopardy
Re: objections not raised
Motion to dismiss:

In general, grounds not raised are waived.

Except for:

1. Lack of jurisdiction over the SM

2. Prescription

3. Litis pendentia

4. Res judicata
o
Motion to quash:

In general, grounds not raised are waived.

Except for:

1. Lack of jurisdiction over the offense

2. Prescription

3. Does not constitute an offense

4. Double jeopardy
When will double jeopardy not set in?
o
1. When there is a supervening event.
o
2. Facts constituting graver charge only were discovered after
a plea was entered
o
3. Plea of guilty to lesser offense was made without consent
of prosecutor and offended party

Except?

For purpose of plea bargaining, the private
offended party was notified but did not
appear during arraignment

And the offense is necessarily included in
the offense charged
When can there be consent of the accused but double jeopardy
can set in?
o
1. Speedy trial
o
2. Demurrer to evidence





Rule 118 – Pre-trial


Basic rule: you cannot compromise criminal action
But you can compromise the civil aspect of the case

But when you compromise the civil liability, it does
not lead to the dismissal of the criminal case

What do you need?

Affidavit of desistance by the offended
party. This is as to the civil aspect.

The prosecution has to move for the dismissal of the
case
o
If the prosecution moves for dismissal, does double
jeopardy set in?

Check the requisites.
If there is plea, double
jeopardy sets in. If there is none, double jeopardy
will not.
Can the admissions of the accused be used against him in the
proceedings?
o
Yes, if it is in writing and signed by the accused and his
counsel.
What is the rule for agreements entered into in the pre-trial
conference?
o
Same rule – reduced in writing and signed by both accused
and counsel.
o
What are these agreements?

1. Plea bargaining

2. Stipulation of facts

3. Marking of evidence

4. Waiver of objections to admissibility of evidence

5. Modification of order of trial (lawful defense)

6. Matters that promote a fair and expeditious trial of
the civil and criminal aspects of the case
o
What is required for these agreements?

Must be approved by the court
Absences and appearances:
o
The rule of absences in pre-trial (in civil case) does not apply
in criminal cases.
o
The pre-trial will be reset.

If the witness is absent, the court can rely on
compulsory processes

If the accused in absent

1. There is forfeiture of bail

2. There will be a warrant of his arrest
o
o
o
o
When must pre-trial happen?
o
Within 30 days from the court acquiring jurisdiction over the
person AND after arraignment

N.B. within the same 30 day period as arraignment

N.B. but take note of the exception (3:10:10 rule) if
the accused is detained
Can there be compromise?
102
[Distinguish cancellation from forfeiture of
bail]:

Cancellation –
o
Voluntary surrender or death.
o
It is automatically cancelled upon
acquittal, conviction, or dismissal
of the case against him without
express consent of the accused.

Forfeiture – failure to appear

What is the procedure?

The court will order the bondsman to
produce the accused within 30 days. If he
fails to do so, the bail will be forfeited.

What is your remedy for forfeited bail?

Appeal
Is it mandatory?
o
Yes. There is pre-trial before Clerk of Court
Can there be stipulations?
o
Yes
Can there be marking of documents?
o
Yes






Rule 119 – Trial



Can it be reversed?

Yes, when there is self defense and other
exculpatory defenses
Discharge of the accused as state witness – requisites?
o
1. There is no direct evidence

So for this, you have no one who can point to the
perpetrator.

What is the opposite of direct evidence?

Circumstantial evidence
o
2. There is absolute necessity for the evidence
o
3. Could be corroborated in its material points
o
4. Not the most guilty
o
5. Not convicted of a crime involving moral turpitude
When can an application for discharge be made?
o
Before the prosecution rests its case
o
What does the applicant need to do or submit?

Submitting sworn affidavit
o
What happens to the statement?

Becomes part of the evidence of prosecution
o
What happens to the accused?

Becomes acquitted
o
If the application is denied, what happens to the
statement?

It’s inadmissible
Compare with requisites for discharge under Witness
Protection Program?
o
The requisites are the same.
o
But the mode of application is different – you file it with the
DOJ, not with the court. (Yu v. RTC of Tagaytay)
o
Does double jeopardy set in, if under WPP?

No, because there is no plea.

So he can be prosecuted afterwards (!)
When do you file a demurrer to evidence?
o
Civil – after plaintiff has completed presentation of evidence
o
Criminal – after the prosecution rests
Do you need leave of court?
o
In criminal: you don’t need to, but there are serious
consequences if you do not secure leave.

If you file with leave of court and it’s denied, the
accused can still present evidence
o
When must trial commence?
o
Within 30 days from receipt of PTO
o
What if there is an order for new trial?

Within 30 days from notice of that order

But if impractical, it can be extended up to 180 days
from the notice of the order
Period to conclude trial?
o
180 days from first day of trial (unless authorized by the SC)
What is the order of trial?
o
1. Prosecution
o
2. Defense
o
[optional:]
o
3. Rebuttal
o
4. Surrebuttal
o
5. Submission of memoranda
o
Are rebuttal and surrebutal necessary?

No. This is upon court’s discretion.

Likewise, with submission of memoranda.



103
If you file without leave of court and it’s denied, the
accused will not be able to present evidence – there
will be a judgment
o
In civil: no need for leave of court
o
N.B. demurrer in criminal case on the court’s own initiative
(motu propio) after giving prosecution chance to be heard is
allowed
When do you file motion for demurrer in criminal case?
o
1. Non-extendible period of 5 days from prosecution resting
its case
o
And then?

Prosecution can oppose the motion in non-extendible
period of 5 days from receipt
o
And then?

If leave is granted, accused has non-extendible
period of 10 days from notice to file the demurrer

Prosecution can oppose the demurrer in nonextendible period of 10 days from receipt
In criminal cases, if the demurrer is denied, can you file a
petition for certiorari?
o
No. You cannot file a petition for certiorari. You have to wait
for judgment.
What’s the effect of a grant of demurrer in a civil case?
o
It’s a final disposition of the case.
o
In a criminal case?

It’s a dismissal. It amounts to an acquittal.
o
If the demurrer is granted and the accused is
acquitted, can the accused adduce evidence on the civil
aspect of the case?

Despite the acquittal, the court can still hear the
case as to the civil aspect, unless there is a
declaration that the fact from which the civil liability
would arise does not exist.

So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
Recall: Exclusions to the 180-day rule for trial to finish from its first
day.
When can the court grant a continuance?
o
N.B. correlate with last ground for exclusions
o
1. Consider w/n it will lead to a miscarriage of justice






So this can include the civil procedure grounds (ex.
unavailability
of
material
evidence
or
sickness/absence of party or counsel)
o
2. The issues in the case are so novel, unusual, and complex
that it requires more time to prepare
NOTE: Check discussion in Rule 115 for Conditional examination of
witnesses
When can the testimony of a discharged witness be
disregarded?
o
ONLY when he deliberately fails to testify truthfully in court
Can there be a reopening of a case?
o
Yes, anytime before finality of conviction, the court may motu
propio or upon motion (with hearing) reopen the hearing to
avoid miscarriage of justice
o
How long before the proceedings terminate?

30 days from granting




Rule 120 – Judgments



104
What should a judgment contain?
o
1. Offense you have committed
o
2. Penalty to be imposed
o
3. Participation, whether principal, accomplice, accessory
o
4. Aggravating or mitigating circumstances
o
5. If acquitted, whether:

Complete non-liability

Reasonable doubt

Or if the facts from which the civil liability might rise
from were not committed
Does the prosecution have remedy against an acquittal?
o
Note than an acquittal is immediately executory.
o
But if there is GADALEJ (P v. Hernandez) – you can file for
certiorari

Before you challenge an acquittal this way, you have
to secure consent of the Solicitor General

And this is only for exceptional circumstances
How do you promulgate judgment?
o
The accused should be present during promulgation

Except if it is a light offense

Or else he forfeits his remedies
There is a period – within 15 days from promulgation of
judgment – within this period he has to explain why he was
absent
o
If he is in jail, to whom is the notice served?

The warden
o
If he is out on bail?

The bondsman
o
If he is at large?

Notice sent to last known address
Is there promulgation in appellate courts?
o
Yes.
o
When duly certified by the division, and then forwarded to the
clerk of court, who will give notice of promulgation on paper
Can a judgment be modified?
o
Yes, before it is final and executory

o




Ordinary appeal

Rule 121-5 – Remedies (NT/MR/Appeals)


Is there a record of appeal on criminal cases?
o
No.
Is there ordinary appeal (notice of appeal)?
o
Yes.

MR/MNT


Ground for MR?
o
1. Errors of law or fact requiring no further proceedings
Can you file MNT in the CA?
o
Yes
o
What ground?

Newly discovered evidence only
o
What is the period?

From perfection of appeal until the court loses
jurisdiction
Can you file MR in the CA?
o
Yes, but just one.
When?
o
15 days
o
Is Neypes applicable (fresh period rule)?

Yes.
Grounds for MNT?
o
1. Errors of law/irregularities prejudicing substantive rights of
accused during trial
o
2. Newly discovered evidence

Material

Could not have been discovered with reasonable
diligence

Would probably change judgment
o
How long does the court have to commence a new trial
from the order granting an MNT?

30 days from the notice of such order

Extendable up to 180 days from notice, if the period
is impractical


105
Who may appeal in a criminal case?
o
Any party may appeal, unless it would place the accused in
double jeopardy
o
Parties:

1. Accused

A statutory right, and affirmed in the ROC

2. Offended party

3. People of the Philippines
When may the private offended party appeal?
o
Only as regards the civil aspect of the case

Ex. Did not have a finding of civil liability, did not
order restoration, etc.
o
This does not place the accused in double jeopardy.
When may the people appeal?
o
See sample question: A person is charged with rape in the
information. Counsel for accused filed a motion to quash for
lack of J over the offense charged. The motion is granted.
What is the effect?

Dismissal of the case.
o
Can the State appeal?

Yes. Because double jeopardy has not yet set in.
You file the MTQ before arraignment.
In appeals in civil cases, when a party appeals, only such assignment
of errors that he made in the appeal will be taken up by the court.
The appellate court cannot go beyond this assignment of errors. In
criminal cases, when the accused appeals from his conviction, he
throws open the entire case for review. He will not be limited to the
assignment of errors in the appeal brief.
Significance: the penalty imposed, instead of being lowered or
cancelled, it can be increased.
In the case of several accused, where some appealed and some
didn’t, what is the rule?
o
Appeal made by one party does not affect those who did not
appeal.
o
Except if it ends up being beneficial.
What happens to the decision?
o
The decision is stayed until appeal is not yet completed.
Criminal: X was charged with acts of lasciviousness (within
MTC jurisdiction). MTC renders judgment. Who reviews it?
o
RTC, through notice of appeal filed with the MTC. (RULE 122)
o
Compare/contrast with Civil:

MTC  RTC, through notice of appeal. (RULE 40)

Or MTC  RTC, through record of appeal (not
available in criminal cases)
What is the procedure in the RTC for criminal cases, when
acting as appellate court?
o
Parties submit their memoranda (Rule 122, Sec 9)
o
Compare/contrast with Civil:

Same. Parties submit memoranda.
Criminal: Court of original jurisdiction is the RTC, and he was
convicted for homicide. Appeal?
o
Go to the Court of Appeals, through Notice of appeal filed with
the RTC.
o
Compare/contrast with RTC in civil action:

Go to the CA, through Notice of appeal filed with
RTC. OR file a record of appeal.

So still the same.
o
What is the procedure followed by the CA in criminal
cases?

File appellant’s brief (Rule 124), within 30 days

File appellee’s brief, within 30 days

Reply brief, within 20 days
o
Compare/contrast with civil cases:

45/45/20 days

o








What about civil cases?
o
Found in Rule 42.
o
Still MTC  RTC  CA
Criminal: Review by the Supreme Court, if the penalty is not
punished by death, life, or reclusion perpetua: from where
should it come from?
o
From the CA or the SB only
o
Use Rule 45, whether civil or criminal. Again, the general rule
is that you cannot go up to the SC except through petition for
review on certiorari.
o
In civil, from where can you come from?

RTC, CA, SB, CTA en banc, etc.
RTC, penalty is death, based on the law (although it cannot be
implemented). How do you appeal?
o
There is automatic review to the Court of Appeals, even in the
absence of a notice of appeal.
o
The case is with the CA. What can the CA do?

If it finds for death again, it can render judgment but
not enter it.
o
What happens after?

The CA will certify the case to the SC.
The penalty is life/RP. Is it covered by automatic review?
o
No. You need notice of appeal.  CA
o
The Court of Appeals found in favor of life/RP. Can it
render and enter a decision?

Yes.
o
How do you appeal this?

This is the singular instance where you file a NOTICE
OF APPEAL with the Court of Appeals to go up to the
SC.
Sandiganbayan

Petition for review



How does it reach the CA on petition for review?
o
If the original case was filed in the MTC.
o
MTC  RTC  CA
106
What if the penalty is less than death/life/RP, whether original
or on appeal?
o
Rule 45 to SC
o
[Note that the CA and SB are same level courts]
What if the penalty is death?
o
Automatic review to SC
What if the penalty is life/RP?
o
Notice of appeal to SC (like in the CA)
General provisions





Can there be a valid judgment even if the judge who rendered
the judgment was not the same one who heard the case?
o
Yes.
Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not
appeal when there are multiple accused, and there is a favorable
judgment, it could benefit the non-appealing accused.
o
However, in this case, the accused invoking this provision
actually filed an appeal, but it was dismissed due to a
technicality.
When is as appeal deemed to be abandoned?
o
When the accused jumps bail, escapes, or fails to file an
appellant’s brief.
Counsel-de-officio:
o
The general rule is the accused is given the choice to retain a
counsel de parte (of his choice)
o
If he cannot afford one, the court appoints a counsel de officio
o
One can be appointed during arraignment, or for the rest of
the trial.
o
Can a counsel de officio be named in the Court of
Appeals?

Yes, when the accused signed his own appeal. Also,
when he was not assisted by counsel.
o
Can the SC appoint a counsel de officio for the accused?

Yes, the SC can, but this is not provided for in the
rules.




Sample scenarios

Seduction – what court has jurisdiction?
o
File in MTC (since MTC cut-off is 6 years)
o
Appeal – to RTC which has territorial jurisdiction.

Notice of appeal

Records of MTC elevated to RTC, no new trial.
Parties are required to submit memoranda.

Rule 42
o
Appeal again – to CA

Regardless of the question involved, because RTC
was exercising appellate jurisdiction
o
Appeal again – to SC

Rule 45 only (pure questions of law)
107
Estafa
o
File in RTC, performing original jurisdiction
o
Appeal –

Questions of fact and mixed questions, go to CA

Pure questions of law, go to SC
o
If you go to SC, what mode?

Rule 45
o
If you go to the CA, what mode?

Ordinary appeal, Rule 41
RTC sentences accused to RP or LI. What is the remedy?
o
Notice of appeal to CA, Rule 41
o
What issues can you raise?

Facts, or Mixed
o
If your questions are just purely legal, are you prevented
from raising it to the SC via Rule 45?

No you are not. There is nothing the rules
preventing you from doing so.
RTC imposes penalty of RP or LI. The CA affirmed. Your MR is denied.
What is your remedy?
o
Go to the SC, under Notice of Appeal
o
This is the exception
o
Purpose: so you raise both questions of law and fact
Where appealed cases from Sandiganbayan go?
o
SB (= CA)  SC (Rule 45)
o
SB (reclusion perpetua or LI)  SC (notice of appeal)
o
Note: there can still be certiorari (Rule 65) for instances, such
as when the prosecution was deprived its day in court
Does the Rule 41 provision which enumerates what cannot be
appealed apply suppletorily to criminal appeals?
o
No.
o
Resolution on MTQ is thus appealable regardless of the
ground availed of (because it is a final order)
o
If the basis of MTQ is prescription of the offense or double
jeopardy  if this is granted by the TC, this means that the
prosecution cannot simply refile it. There is no problem here,
so remedy is appeal.
o
The only issue is when the MTQ is based on grounds like
alleging multiple offenses or lack of J of the court, which can
be cured by refiling in a different court  the losing party can
still challenge it in an appeal!
Because as highlighted above, the Rule 41
prohibition does not translate to criminal procedure
Practitioner-type question: If as prosecutor, your complaint was
dismissed under Rule 117 Sec 3 (5) – did not comply with
proper form. What is the better remedy to choose: certiorari or
appeal (since this is allowed too)?
o
N.B. If this were a civil case, the obvious remedy is re-file or
certiorari under Rule 65, since appeal does not vest.
o
In a criminal case, you have to choose appeal because
certiorari cannot vest if there is a plain, speedy, available
remedy.
o
But sir left this issue hanging. “It’s not yet clear cut.”




Rule 126 – Searches and seizures



N.B. But if there is already a criminal action, file it in the
court where the action is pending
o
Is application for a search warrant a criminal action?

No. It is a special judicial process.
o
Can it become one?

No. You need information because the application
for a search warrant will not evolve into one.
Where do you file for quashal of search warrant?
o
In the court wherein it was applied for if there is no case yet
o
If there is a case, in the court where the case is pending
Who determines probable cause for search warrants?
o
The judge. Not the prosecutor.
o
Wherelse is probable cause required, apart from
application for search warrant?

1. Preliminary investigation

2. Rule 113, warrantless arrest (personal knowledge
that crime has been committed)

3. Warrant of arrest

4. Search and seizure
o
What is required for the judge to do?

Personal examination and determination by the
judge of the complainant/applicant and witnesses.

It does not involve mere submission of affidavits.
Give an example of a search based on a warrant, where the
place is described with particularity.
o
Ex. if it’s an apartment, you give the number of the
apartment.
o
What if it’s a stretch of apartments, and what was
indicated is apartment B, but what was searched was
apartment C. Was there a valid search?

No.
o
But was the search warrant valid?

Yes.
The search warrant can be valid, but the
implementation was invalid.
o
There were illegal items seized from apartment C. How
can you prevent these goods from being used in a
criminal trial?

Motion to suppress.
o
Differentiate motion to quash from motion to suppress.

Motion to quash is before implementation of the
search warrant.
o
How long is the life of the search warrant?
o
10 days from date of issue, and then void
What can be the personal property subject to search and
seizure?
o
1. Subject of offense
o
2. Stolen or embezzled, or fruits of the offense
o
3. Used or intended to be used as means to commit offense
o
The search warrant said “an undetermined amount of
shabu.” Will this be enough for the police officers to
conduct a search?

Yes, even if the amount was not specified. What is
required is that the object of the search be described
with particularity. Quantity is not required.
o
The police officer was armed with a search warrant.
But before implement or enforcing it, on plain view, he
saw illegal firearms. Can there be a valid search?

Yes. Plain view exception applies, even if there is a
search warrant.
Where could you apply for a search warrant?
o
1. You apply to the court, following the rule on territoriality.
o
2. For compelling reasons, any court within judicial region
where the crime was committed or any court within judicial
region where warrant shall be enforced
o
What can be a compelling reason?

It’s a question of fact, but an example is when he is
a public officer of that locality and there is doubt that
a search warrant can be properly applied for.

108
Motion to suppress is after implementation and
before presentation in court.
o
What if there is no way to describe with particularity
the place, esp. when it is a province?

It’s possible to say “kilometer 30.” But this can’t
apply for cities or municipalities.
To whom must a search warrant be served?
o
The lawful occupant.
o
In the absence of the lawful occupant?

To a relative.
o
In the absence of the occupant or relative?

To two witnesses of sufficient age and discretion
residing in that locality.
When the items are seized, to whom must the receipt be given?
o
To the lawful occupant or relative
o
If there are two witnesses, the receipt will be left in the
premises where they were seized
When can it be conducted?
o
The warrant must provide that search is in day time
o
N.B. Unless affidavit asserts the property is on the person or
place ordered to be searched, in which case, it is day or night
What is the duty of the officer after the search?
o
He should present an inventory of the items. Failure to
submit inventory makes him liable for contempt.
Dangerous Drugs Law: what are the special rules?
o
The inventory must be made at the scene of the crime. (For
normal crimes, it can be done in court or police station or
wherever.)
o
The person must make a physical science report to track the
chain of custody.
What is the rule as to search and arrest?
o
The general rule is that the arrest must come before the
search and seizure.
o
Or, the search and seizure must be contemporaneous to
arrest.
If you apply for a search warrant in QC, can it be applied
outside of the territorial jurisdiction?
o
As a general rule, no.
o
But allowed as an exception for violations of:

1. DDL,

2. IP code,











3. illegal possession of firearms,

4. illegal gambling,

5. Heinous crimes,

6. AML,

7. Violation of tariff and customs code.
o
You have to apply before an executive judge before the City
of Manila or Quezon City. This will be effective anywhere in
the Philippines.
Re: Seizure of fake goods (ex. fake Adidas) – What is the role
of the private party?
o
The private party can submit documents and pleadings to
support the application of the NBI.
The place of manufacture of the fake goods is in Cavite, and
place of sale is in San Juan. Where do you apply?
o
Either place.
Rule 127 – Provisional remedies



109
What is the general rule?
o
Provisional remedies in civil procedure are applicable to
criminal procedure.
What about replevin?
o
Does not apply because it can only be filed before an answer,
but in a criminal case, there is no answer.
What are the grounds for attachment in criminal cases?
o
1. The accused is about to abscond or depart with intent to
defraud
o
2. Claim for money or property that has been embezzled with
abuse of trust (estafa)
o
3. Accused resides outside the Philippines
o
4. Accused has concealed/removed/disposed his property
Situation
PRELIMINARY
INVESTIGATION
Filing of complaint
Period
Remarks
Initial
action
of
prosecutor (no PI)
Initial
action
of
prosecutor (with PI)
Within
filing of
Within
filing of
Respondent
Within 10 days from
*start
of
criminal
procedure*
Either dismissing or
prosper
Dismiss case or issue
subpoena
to
respondent
If respondent cannot
submits
10 days from
complaint
10 days from
complaint
counter-affidavit
Clarificatory hearing
Termination
of
clarificatory hearing
Resolution
Forward record of case
to provincial or city
prosecutor
or
OMB/deputy
Action by the provincial
or city prosecutor or
OMB/deputy
Judge
determines
probable cause
Prosecutor to present
additional
evidence
upon judicial order
(Post inquest) Filing of
complaint
or
information in court
without
preliminary
investigation – accused
may
ask
for
preliminary
investigation
ARRAIGNMENT and
PRE-TRIAL
Arraignment of person
not under preventive
detention
Arraignment of person
under
preventive
detention
receipt of subpoena
Within 10 days from
submission of counteraffidavits
Within 5 days from
first hearing
Within 10 days after
investigation
Within 5 days from
resolution
be subpoenaed or did
not submit counteraffidavit
within
10
days,
prosecutor
resolves
based
on
complaint alone
(Optional)
Suspension
of
arraignment due to
petition for review filed
with Sec. of DOJ
Filing of motion to
quash
TRIAL
Time for accused to
prepare for trial
Commencement of trial
Within 10 days from
receipt
Can: a) dismiss or b)
file information
Within 10 days from
filing of information or
complaint
Within 5 days from
notice
If
judge
doubts
existence of probable
cause, he may opt to:
The
10
days
to
determine extends to
30 days
Commencement of trial
after MNT granted
Entire trial period
Exclusion from 180 day
limit of delay due to
pre-trial
proceedings
or period in which
accused
is
actually
under advisement
Examination of witness
for
defense
(aka
modes of discovery for
criminal action)
Leave of court to file
demurrer to evidence
Within 5 days from the
time he learns of its
filing
Within 30 days from
date court acquires
jurisdiction over him
Raffled within 3 days
from
filing
of
information
or
complaint;
Arraigned within 10
days from date of
raffle;
Opposition
by
prosecution
to
the
motion
After being granted
leave,
filing
of
demurrer to evidence
Reopening of trial to
avoid miscarriage of
justice
This same period must
cover pre-trial
Remember
3:10:10 rule
the
JUDGMENT,
REMEDIES
Surrender of convicted
accused, after initially
failing to appear in
110
Pre-trial within 10 days
from arraignment
Maximum
60
days
from filing of petition
Any time before he is
arraigned
At least 15 days from
plea of not guilty
Within 30 days from
receipt
of
pre-trial
order
Within 30 days from
notice of the order
Maximum 180 days
from first day of trial
Maximum 30 days
Allow extension up to
180 days, by the court
Order by court (upon
application of accused)
issued at least 3 days
before the examination
Within 5 days after
prosecution rests its
case
Within 5 days from
receipt of the motion
Before
a
judge,
member of bar in good
standing, or inferior
court
Non-extendible
Within 10 days from
notice
Non-extendible
Anytime before finality
of conviction
Terminate proceedings
within 30 days from
order granting it
Within 15 days from
promulgation
of
judgment
Surrender
and
file
motion to avail of postjudgment
remedies
Non-extendible
promulgation
of
judgment
Availing
of
postjudgment remedies of
above-stated person
Appeal from judgment
Submission
appellant’s brief
of
Submission
appellee’s brief
of
(because these will not
avail anymore)
without need for inference or
presumption
Within 15 days from
notice, after proving
justifiable reasons for
non-appearance
Primary: best evidence; affords
greatest certainty of fact
Positive: witness affirms that a fact
did or did not occur. Positive
trumps negative, when witnesses
equally credible
*follow usual periods
in appeal
Within 30 days of
receipt of notice from
clerk of transmittal of
evidence
Corroborative: Different kind and
character proving the same point
Prima facie: that which suffices to
prove a fact, until contradicted by
other evidence
PART III: EVIDENCE


General provisions





When did the Rules on Evidence take effect?
o
July 1, 1989
What is evidence?
o
Evidence is the means, sanctioned by the Rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Not all concepts of evidence will require presentation of
evidence. What are these exceptions?
o
1. Judicial notice
o
2. Judicial admissions
When you’re required to present evidence, there are three
kinds:
o
1. Object
o
2. Documentary
o
3. Testimonial
Whether it’s object, documentary or testimonial, what is
required?
o
They have to pass the test of admissibility (Rule 128, Sec. 3)
Direct: proves fact in dispute


Circumstantial: proof of facts,
111
when taken collectively, existence
of particular fact may be inferred as
a necessary or probable
consequence.
Secondary: inferior to primary
evidence and shows on its face that
better evidence exists.
Negative: witness states that he
did not see or know the occurrence
of a fact; only admissible to
contradict positive evidence.
Cumulative: Same kind and
character as that already given,
proving same point
Conclusive: incontrovertible
When is evidence admissible?
o
When it is relevant and competent
When is it relevant?
o
1. When it is material

When is it material?

Has direct relation to the fact in issue
o
2. When it has probative value

When does it have probative value?

Can induce belief as to its existence or nonexistence
When is it competent?
o
Not excluded by law
o
What are not competent – give examples:

Those excluded by the Best Evidence Rule

Those seized without valid warrant and without a
valid exception

Those violating the Parol Evidence Rule (contents in
the written document are presumed to be the
repository of all the matters agreed upon by the
parties)
Differentiate direct from circumstantial evidence.
o
Direct: prove a matter without need for inference or
presumption
o
Circumstantial: facts, from which the existence of another
fact may be inferred as a necessary or probable consequence
When is testimonial evidence direct evidence?

When the witness was able to perceive the matter
being testified upon
o
Can circumstantial evidence be the basis for
conviction?

Yes. As long as there is more than one circumstance
and each is proven.
o
Can circumstantial evidence be basis for identification?

Yes.
What are the characteristics of admissibility?
o
1. Multiple admissibility – evidence may be admissible for
multiple purposes
o
2. Limited admissibility – it may be admissible for one
purpose but not another, or against one party, but not
another
o
3. Conditional admissibility – if relevancy of a fact is
dependent on evidence not yet submitted, the court may
accept the evidence conditioned on:

A. statement of supposed connecting facts

B. promise to give it in evidence
o
4. Curative admissibility – where inadmissible evidence is
offered and not objected to, if the latter party is presenting
similarly inadmissible evidence to counteract the first
inadmissible evidence, then it is likewise admissible
What is the difference in relevance of direct and circumstantial
evidence?
o
1. Direct evidence is always relevant
o
2. Circumstantial evidence may or may not be relevant

The more steps there are in the chain of inference,
the less probative value it has
What is positive evidence?
o
Evidence that proves something happened.
o
Ex. “I saw him stab person X” or “I did not see him stab
person X”
What is negative evidence?
o
Evidence where the witness was there, but he did not
perceive anything.
o
Ex. “I was there in the scene, but I did not notice anything
happen.”
What is primary evidence?
o
Best available evidence to establish the fact in issue
o





What is an example of primary evidence?

Best Evidence Rule. The secondary evidence here is
photocopy, recital of the contents, or testimony as to
its contents.
What is weightier, physical evidence or testimonial evidence?
o
Physical evidence.
Note: exceptions to the hearsay rule are not absolute. They can be
contested or impugned.
o
How do you destroy the exception?

Destroy the requisites.

“Ex. ‘was it audible?’ ‘was he aware that he was
going to die?’”
Is there primary evidence in object evidence?
o
Yes. If you want to present a car, present the actual thing
itself.
o
What is the secondary evidence?

A car of the same model, same type, etc. which will
aid the court in understanding the object involved.
Is there primary evidence in testimonial evidence?
o
Yes. A person who had personal knowledge.
o
What is the secondary evidence?

Hearsay.

N.B. but note that the codal does not expressly tag
hearsay as secondary evidence although it is. When
asked in the bar what secondary evidence is, give
the answer for documentary evidence to be sure.
What is prima facie evidence?
o
That which suffices to prove a fact, until contradicted by other
evidence
o
What is the difference between prima facie evidence
and disputable presumption?

1. Prima facie evidence arises from a fact that would
sufficiently create a reasonable belief that an act
alleged has arisen

2. Disputable presumption arises from Rule 131
o
N.B. they are the same in such that these can be
controverted
What is a conclusive presumption?
o
It cannot be controverted
o
But can you attack a fact that leads to a conclusive
presumption?
o






112

Yes.
Give an example of a conclusive presumption.

Tenant cannot deny the title of his landlord
Distinguish between preponderance of evidence and proof BRD:
o
Preponderance – Court determines superior weight of
evidence; for civil cases
o
Proof BRD – Moral certainty, conviction will arise from an
unprejudiced mind; for criminal cases
Are the rules of evidence uniformly applied in all our courts?
o
Yes, in general.
o
Trade disputes in DTI?

No.
o
NLRC exercising QJ functions?

No. You don’t need best evidence available here
(can use photocopies, that’s fine)
o
What does “except if otherwise provided by law”?

If otherwise provided, then the uniform application
will not extend to that.
o
Examples:

1. Agrarian cases

2. Rule 130, sec. 26/27: compromise rules are not
the same in civil and criminal cases

3. Character evidence: there is also difference in
civil and criminal cases

4. Two witness rule in treason
What about collateral facts?
o
General rule, not relevant
o
EXCEPT, when the collateral matters establish probability or
improbability of the fact in issue
o
Give an example.

In rape, the accused can point to the character of
the supposed victim to prove that there is probability
that the intercourse was consensual.

N.B. You can only use character evidence if there is
a character trait involved in the offense charged.
What is factum probandum and factum probans?
o
Factum probandum is what must be proved
o
Factum probans is what is used to prove it








Judicial notice and judicial admissions

1. States – existence, territorial extent, political history,
forms of government, symbols of nationality
o
2. Law of nations, admiralty, maritime courts of the world,
and their seals
o
3. Political constitution and history of the Philippines, official
acts of legislative, executive, judicial departments of
Philippines
o
4. Laws of nature, measure of time, geographical divisions
Why are these mandatory?
o
Because they have already been established. They cannot be
disputed anymore. No need to introduce evidence anymore.
Can the court take judicial notice of rentals?
o
No. The court cannot take judicial notice of factual matters.
Is the court bound to take judicial notice of municipal orders?
o
MTC judge  required, if ordinance came from municipality or
city where they sit
o
RTC judge  No. Except when a) required by statute; b)
inferior court took judicial notice of an ordinance in the case
being appealed before RTC
o
What
about
memorandum
circulars
issued
by
departments?

No. The court is not expected to take notice of these
less important matters.
o
What about customs and foreign laws?

No, these must be proved in court
Are courts bound to take judicial notice of cases pending in the
same court or decided in that court?
o
No. The courts will not and cannot, even if it came from the
same court.
o
What
are
the
requisites
for
the
exceptional
circumstance when a marked but unoffered piece of
evidence referencing a prior decided case fell under
judicial notice (note, if it were offered, no need to
resort to judicial notice)? (Basis: Tabuena v. CA)

1. Without objection by the other party

2. With knowledge of the other party

3. At the request or with consent of the parties

4. The case is clearly referred to

5. It is actually withdrawn from the archives

6. It is admitted as part of the record of the case
What is covered by discretionary judicial notice?
o
o

When is it mandatory?
113
1. Matters of public knowledge

Example: Death of Corazon Aquino
o
2. Capable of unquestionable demonstration

What is this? If repeated in a regular manner, it
will establish that fact.

Examples:

Mathematical computation

Statistics

Effects of poison, etc.

Do surveys fall under this?

No, because methods change, samples
change, etc.
o
3. Ought to be known to judges due to their judicial function

Can a judge take judicial notice of proceedings
pending in other courts?

No.

He’s not bound to know all the cases filed.

What about pending cases in his own sala?

No.

Unless he takes the consent of the parties.
When can there be taking of judicial notice?
o
1. During trial – on any matter and with hearing
o
2. After trial and before judgment – same, but only on
matters decisive of a material issue in a case
o
3. After appeal – same, but only on matters decisive of a
material issue in a case
Can every matter be subject of judicial notice?
o
Yes, during the hearing.
o
You are not limited to the enumerations provided in law.
o
What is the need for a hearing?

Check propriety of taking judicial notice
There was an insurance recovery claim, dated September 2009.
It was not alleged in the claim that the loss happened on the
day Ondoy struck Manila. Can the other party request the court
to take judicial notice (or can the court motu propio take
judicial notice) of this fact?
o
Yes.
Differentiate between legislative facts and adjudicative facts:
o
Legislative facts: general facts of political, social, or economic
nature
o




Adjudicative facts: those applicable to the facts in the present
case
Judicial admissions:
o
Statement made as to a fact in issue made in a pleading or in
utterances in a trial
o
Do you need proof as to judicial admissions?

No.
When is there a judicial admission?
o
Made in the same pending proceedings
o
What if made in prior proceedings?

These already become extrajudicial admissions,
which are by nature disputable
What are covered?
o
1. Statements in pleadings (ex. complaint or answer)
o
2. Statements made during testimonial presentation
o
3. Depositions or other documents
o
4. Pre-trial
o
5. Documents submitted in court
Can they be withdrawn?

Yes.

When?

1. There was no intent to make such an admission

2. Or there was palpable mistake
What is the nature of admissions made in amended pleadings?
o
They are mere extra-judicial admissions. Thus, they have to
be offered in evidence first.
o



o

Rule 130

N.B. The rules on admissibility are applicable to object, documentary,
and testimonial evidence alike.
Object evidence


114
What is object evidence?
o
Those addressed to the senses of the court
o
An object is presented so that the court can perceive it.
What is the difference between object and testimonial
evidence?
o
Object – addressed to court’s senses and courts can actually
observe it
What if it is immobilized ex. real property or
personal properties attached?

Ocular inspection
o
Testimonial – recounting, second hand
Differentiate real and demonstrative evidence:
o
Real – tangible object that played an actual role in the issue
in trial
o
Demonstrative – evidence in the form of a representation of
an object
When is object evidence admissible?
o
1. Object is relevant
o
2. Object is authenticated

What is authentication?

That it actually is what you claim it to be

Does authentication apply to demonstrative
evidence?

No. Because it does not purport to be the
actual thing.
What is chain of custody?
o
Before an object can be received in evidence, one must: A)
present all the persons who handled the object and show
what they did to it; B) and that during the time they had it in
their possession, no other person had access to that thing.
o
The purpose is to show that evidence was not tampered with.
Does non-production of object evidence render testimonial
evidence re: the object inadmissible?
o
No. This just goes into weight.
Are experiments admissible?
o
Yes.
o
When is it not?

1. Too complicated to afford any fair inference,

2. Cannot be performed in manner to fairly illustrate
the fact

3. More likely to confuse than shed light.
What is a paraffin test?
o
Test for gunshot residue
o
Are the results conclusive?

No. It’s not 100% reliable.
Is a lie detector test 100% reliable?
o
No. You can cheat it.
What is demonstrative evidence?









o
o
o
Evidence that adds to or explains.
Maps, charts, graphs, etc.
Is it the same as demonstration?

No.
Demonstration is when you ask for a reenactment or display of how an act was done or re:
facts.
Documentary evidence


115
What is documentary evidence?
o
Writings on any material containing, letters, words, numbers,
figures, symbols, or other modes of written expression AND it
is offered as proof of its contents
o
If Blitz had a tattoo saying “I love Jojo” is this
documentary evidence?

Yes.
o
If Blitz wrote on a shirt, saying “Good luck!” is this
documentary evidence?

Yes.
o
Why are these documentary evidence?

It can be in any material, as long as it is a writing or
inscription.

What about text mesage?

Yes.

It is ephemeral evidence
o
When is a piece of writing NOT considered
documentary evidence?

When you not focused on establishing its contents

For instance, you are establishing its existence or its
condition, and not its contents
What is required for photographic evidence?
o
It must be relevant and verified
o
Who must verify it?

Some qualified witness

In general, must be the photographer, who
establishes the production thereof and the
circumstances under which it was produced

But other witnesses can also establish its exactness
and accuracy (for instance, someone who was there
too)
o
What must be proved?
That it is an accurate representation of what
happened.

As to production and circumstances under which
they were produced.

Prove who operated the camera, the ability of the
camera to capture the scene, etc.
Prove all of this first before going into the contents of the
photograph.
about videos?
Similarly, lay down the basis, before presenting the contents
is the Best Evidence Rule?
When the subject of inquiry is the contents of a document, no
evidence is admissible other than the original document itself
What if all you want to establish is the existence of a
document, do you need to present the original?

No. Because it’s not the contents of the document
that are in issue. You can present a copy.

N.B. However in practice, try to always present the
original.
What is the original?

1. The one the contents of which are the subject of
inquiry

Is the copy made an original just
because the contents thereof are the
subject of inquiry?
o
No. You still have to go to the
original.

Do you need to authenticate an original
document even if it appears to be an
original?
o
Yes, even if it appears to be an
original.

2. Document is in two or more copies executed at or
about the same time with identical contents

Usual examples:
o
Carbon copies
o
Computers that shoot straight
through to the Xerox machine, and
then sign all
o
Or printing 5 copies of the same
document, and then sign all


o


What
o
What
o
o
o

116
What if I print and sign one, then make
my secretary produce four copies?
o
The four copies are not originals

I
executed
a
document
by
8
counterparts (ex. bills in set), signed
four here in Manila on Feb. 28 and
shipped four to HK, which were signed
on Mar. 1. Are they all original, even if
executed in different dates?
o
Yes, they can be regarded as
originals.
o
N.B. You have to stipulate in the
contract
(“execution
by
counterparts”) that even if not
executed on or about the same
time, they are all originals.

3. Entry is repeated in the regular course of
business, one copied from another at or near the
time of the transaction

N.B. this refers to “entry” not “execution,”
but you do not sign the books
o
Does “execution” in number 2 include formalities like
notarization and affixing signature?

It depends on what form is required from the
contract.
What are the exceptions to the Best Evidence Rule?
o
1. The original has been lost, destroyed, or cannot be
produced in court

Not through the fault or bad faith of the offeror

Must there be exercise of diligence?

Yes, the offeror must attempt to procure the
original

In cases of loss or destruction, can you present
secondary evidence?

Yes. You need to lay the basis first.

What do you need to do?
o
1. Prove that the document exists
and it was duly executed
o
2. Prove cause of unavailability

o
o
The actual presentation of secondary
evidence will only come after laying the
basis.

What are the types of secondary evidence that
you can present?

1. Copy of the document

2. Recital of its contents in an authentic
document
o
Ex. Secretary’s certificate, in case
of loss of the minutes
o
Ex. There is a mother contract, and
there
is
a
Memorandum
of
Agreement containing the basic
terms
o
Ex. A demand letter
o
Must it be a verbatim copy or is
paraphrasing fine?

Verbatim copy

3. Testimony of a witness

Must it be in this order?

Yes. Follow this order.
2. Original is in the adverse party’s custody or control

What are the requisites?

1. Document exists

2. There is reasonable notice to produce it
given to the other party

3. There is failure to produce

Does this lead to presentation of secondary
evidence?

Yes
3. Original constitutes voluminous documents

Requisites?

1. Prove voluminous nature of the
documents, which cannot be examined in
court without great loss of time

2. Provide access to the other party to the
original documents

What must be proved by these documents?

The fact sought to be established must be
the general result of the whole
What if the voluminous documents are financial
documents for the past 20 years, and the fact
sought to proved is the profit/gain for this
period?

You can present a summary because you
are proving the general result of a whole.

What do you need to present?

You just need to present a summary of the
documents

When do you need to present the original?

When the contents thereof are the subject
of the inquiry – no matter how voluminous
they are.
o
4. Original which is in the custody of a public officer or
recorded in a public office

Can you present the original?

No, because it’s in the custody of that
officer or office.

What do you present?

A certified true copy given by the public
officer in custody thereof.

Give an example.

NSO Birth Certificate.
Just the Xerox copy of buy-bust money is presented in court.
Admissible?
o
Yes, because you are just proving the money exists, and not
the contents of the money.
o
Test: What is being proved?

That the money exists.

Not the content of the money as a document.
If you want to prove payment, can you just present the witness
who was there at the time payment was made, and not the
receipt?
o
Yes. The BER does not apply because what is being proved is
the fact of payment, even when there is a receipt.
o
Test: What is being proved?

That there was payment.

Not the content of the specific receipt.
How does the BER apply to Electronic evidence?
o
An electronic document is regarded as the equivalent of the
original under the BER if:




117
1. It is a printout or output readable by sight or
other means

2. It is shown to reflect the data accurately
What is the rule on electronic documents?
o
In general, they are the functional equivalent of original
documents
When is a photocopy inadmissible under the Rules on Electronic
Evidence?
o
1. There is genuine dispute as to the authenticity of the
original
o
2. Unfair or inequitable under the circumstances to admit it
When a document is altered or amended by the parties, what is
the original?
o
The amended or altered document
X was ejected from his seat in ABC airline. Protesting, he told the
purser about the incident. The purser recorded in his notebook that X
was ejected from his seat. Does BER prohibit testimony re: the
purser’s act because the notebook was not presented?
o
No. The fact at issue is the ouster, not the contents of the
notebook.
X was being investigated for alleged perjury in a senatorial
investigation for malversation charges.
The chief counsel in the
investigation testified as X’s statements in the investigation.
X
objected, claiming the transcript is the best evidence and the chief
counsel’s investigation is barred by BER. Correct?
o
No. The issue here is not the contents of the transcript but
what X said in the investigation. The issue is not re: contents
of a document.
X claimed that a movie infringed on his copyright over original designs
for a vehicle. X was unable to present his original designs, and instead
presented a reconstruction made after the film was released. Barred
by BER?
o
Yes. The fact at issue is the content of the drawings, so the
original must have been presented. X could not properly
prove in this case, moreover, that the original drawings were
lost without his fault.
What is the Parole Evidence Rule?
o
When the contents of a document are reduced to writing, it is
considered as containing all the terms agreed upon – as
between the parties and their successors in interest.
o
No other evidence of such terms can be presented.









118
What are the exceptions?
o
1. Intrinsic ambiguity, mistake, or imperfection in the written
agreement

Must it be ambiguous on its face?

No. The ambiguity must be intrinsic.

Give an example.

In a will, the testator said “I give half my
property to my son Buboy.” When the will
was being probated, it turns out there were
two sons with the nickname Buboy.

What mistake is contemplated?

Mistake of fact, and the mistake was mutual

What are the requisites?
o
1. Mistake is of fact
o
2. Mistake is mutual
o
3. Mistake must be alleged and
proved by clear and convincing
evidence

What do you do with the contract?
o
Reform.
o
When do you not reform?

When
there
was
no
meeting of the minds.
Example, X thought it was
the property in Batangas,
Y thought it was the
property in Cavite.

Give an example.
o
Contract of sale of property. X
thought it was Batangas, Y thought
it was Batangas.
But it was
actually in Cavite.

Give an example of imperfection in the written
agreement?

The provision says that the offended party
must pay damages, when it fact, the
offender must pay.

Another: X and Y entered into a contract of
sale of property, over a Batangas property.
But the technical specifications provided
were those of the Cavite property.
o
o
o


What
o
What
2. The failure of the written agreement to express the true
intent and agreement of the parties

Give an example.

X approached Y, asking for money for
tuition fee of his son. X said he intended to
mortgage his property. Y asked him to sign
a document, but that contract provided for
an absolute sale
3. Validity of the written agreement is at issue

Can a contract void on its face be made valid by
presentation of extraneous evidence?

No. This provision does not contemplate
contracts that are by nature void, to make
them legal.

What situations are covered under this?

1. No contract ever existed

2. Minds of the parties never met on the
terms of the contract

3. No consideration upon which an
agreement was formed
4. Existence of other terms agreed to by the parties/their
successors-in-interest after execution of the written
agreement

Give an example.

There is an original contract and it was
amended from a 20-year agreement to a
10-year agreement

What is the rule?

1. The separate oral agreement must be A)
collateral and B) it must relate to a subject
distinct from that to which the contract
applies

2. Or if there is a new contract

What if the document expressly states that all
the rights and obligations of the parties are
written therein?

Even when there are collateral agreements,
they cannot be presented
is required?
The party questioning it must put it in issue in his pleadings
if a party fails to object, invoking the PER?



o
It will be deemed a waiver.
If the party presenting parol evidence is not a party to the
contract, will the PER apply?
o
No. The PER only binds the parties to the contract.
What if there is a suspensive condition in the contract?
o
When the operation of a contract is made to depend on the
occurrence of the event as a condition precedent, it may be
proved by parol evidence.
o
This is not varying the terms of the agreement, because there
is legally no contract in existence.
To what kind of documentary evidence does PER apply?
o
Written agreement. A receipt is not a written agreement.
Rules on Electronic Evidence





119
To what cases does REE apply?
o
1. Civil actions and proceedings
o
2. Quasi-judicial and administrative cases
o
N.B. NOT criminal
What is the functional equivalence rule?
o
When a rule of evidence refers to a document, it shall be
deemed to include electronic evidence
When is it admissible?
o
If it complies with rules of admissibility in the ROC and
authenticated through methods in the REE
When is an electronic document the equivalent of an original
under the Best Evidence Rule?
o
1. If it is a printout or output readable by sight or other
means AND
o
2. It is shown to reflect the data accurately
When are copies treated as equivalents of originals?
o
1. Document is in 2 or more copies executed at or about the
same time with identical contents OR
o
2. Counterpart produced from same impression or matrix as
the original, or through mechanical/electronic re-recording, or
chemical reproduction
o
When are the copies not admissible to the same extent
as an original?

1. There is genuine question as to authenticity of the
original OR

2. It is unjust or inequitable to admit a copy in lieu of
the original




What are the means by which an electronic document
authenticated?
o
1. Evidence that it had been digitally signed by the person
purported to have signed it
o
2. Evidence that other appropriate security procedures or
devices as may be authorized by the SC/law were applied to
the document
o
3. Other evidence showing integrity/reliability to the judge’s
satisfaction
What is the equivalent of a notarized document under the ROC?
o
Documents that are electronically notarized
What is an electronic signature?
o
Distinctive mark, characteristic, or sound in electronic form
representing the identity of a person and attached to an
electronic document with intent of authenticating, signing, or
approving it

N.B. electronic signatures include digital signatures
o
How is an electronic signature authenticated?

1. Evidence that a method or process was utilized to
establish a digital signature and verify the same

2. Other means provided by law

3. Other means satisfactory to the judge
o
What are the disputable presumptions relating to the
electronic signature?

1. It is that of the person to whom it correlates

2.it was affixed by that person with intent to
authenticate or approve the electronic document, or
indicate consent

3. Methods or processes utilized to affix or verify the
electronic signature operated without error or fault
What is a digital signature?
o
Electronic signature consisting of a transformation of an
electronic document using asymmetric or public cryptosystem
such that a person having the initial untransformed electronic
document and the signer’s public key can determine:

1. whether the transformation was created using the
private key (corresponding to the public key) and

2. whether the electronic document has been altered
o
What are the disputable presumptions re: a digital
signature?

1. Information in the certificate is correct
2. Digital signature was created during operation
period of a certificate

3. Message associated with a digital signature has
not been altered from the time it was signed

4. Certificate had been issued by the certification
authority
What is the additional exception to the hearsay rule added by
the REE?
o
Business records are an exception to the hearsay rule.
o
These are data made by electronic, optical, or similar means
at or near the time of transmission of information, kept in
regular course of business, and it was regular practice to get
such data.
o
Who testifies as to these circumstances?

By the custodian of the information or other qualified
witness
o
How is the presumption overcome?

Evidence of untrustworthiness of the source of
information or the method for preparation,
transmission, or storage of data
See discussion on audio, photographic, video, and ephemeral evidence



Testimonial evidence



120
Who can become witnesses?
o
Those who can perceive, and in perceiving, can make their
perceptions known to others
o
Two steps:

1. Perceiving

2. Making known this perception to others
How can you make your perception known to another?
o
You must be able to communicate it
o
Can a deaf-mute testify? A blind person?

Yes, as long as they can communicate.
Who are disqualified?
o
1. Those whose mental condition, at the time of presentation,
is such that they cannot intelligently make known their
perception to others

X perceived. Then X became insane. Then X
had a lucid interval during presentation of
witness. Can X testify?

o
Yes.
The requirement is during his/her
presentation.

What is the presumption?

That a witness is of sound mind.

What is the exception?
o
He was publicly known as insane or
committed in a mental institution.

When must objections to competency of
witnesses be made?

1. If incapacity is known before trial, before
he takes the witness stand

2. If it becomes apparent during trial, as
soon as incompetency becomes apparent
2. Children whose mental maturity makes them incapable of
perceiving the facts and relating them truthfully

What is the presumption?

Every child is presumed qualified to be a
witness.

Under the Child Witness Rule (CWR), who
determines the competency of the child to
testify?

The judge, who conducts a competency
examination – ONLY when there is challenge
of a child’s competency

Parties can only submit questions, but the
judge has discretion

When is there a competency examination?

Upon motion of a party or there is
substantial doubt regarding the child’s
ability as witness

Who are present in the competency
examination?
o
Judge
and
court
personnel,
counsels,
guardian
ad
litem,
support
persons
for
child,
defendant (unless court deems it
determinable even without the
defendant present)

Is competency dictated by the age of the child?

No. Mental maturity dictates, even prior to
the Child Witness Rule.









121
Who is a child witness under the CWR?

Accused

Victim

Witness
To what type of cases does it apply to?

“Criminal and non-criminal proceedings”
What is a comfort object/person?

One that puts the child at ease, like a doll or
a pillow
Can you ask leading questions to a child?

YES.

What is the special requirement?
o
Give notice to the other party
o
And the judge must approve it first
Can you use live-link TV?

Yes, so the child will not be able to see the
accused.

Ex. The child is in another room from the
judge/accused, etc.
When can there be a videotaped deposition of
the child?

1. Upon application of prosecutor, counsel,
or guardian ad litem

2. If the court finds that the child will not be
able to testify in open court at trial

When is it admissible in lieu of live
testimony?
o
1. As said, if the child for justifiable
reason cannot testify in open court
o
2. Usual exceptions in Rule 23
Who is a facilitator?

Appointed by the court to ask the questions
to the child as to not pressure/harass the
child
How are the documents in these proceedings
treated?

Considered confidential, not open to the
public
What is the sexual abuse shield rule?

The following evidence are inadmissible in
child sexual abuse cases:
1. Evidence offered to prove that
the alleged victim engaged in other
sexual behavior
o
2. Evidence offered to prove the
sexual predisposition of the alleged
victim
What is the exception?
o
Other sexual conduct of the child
to prove that another person, and
not the accused, was the source of
the semen, injury, or other
physical evidence
o
N.B. before offering this kind of
evidence, there must be a written
motion at least 15 days before
trial. This motion is served on all
parties and the guardian ad litem
at least 3 days before hearing.
N.N.B. this is different from the
usual 10/3 rule.
is a protective order?
One that states that any videotape or
audiotape of a child part of the court record
may only be viewed by the parties, counsel,
expert witness, or guardian ad litem.
No such party may view it without written
affirmation that he has read the P.O. and
that in case of violation, he is subject to
contempt.
Within 30 days from receipt, it must be
returned to the clerk of court, unless
extended.
are the other protective orders?
1. Publication of child’s identity is
contemptuous
2. Child can refuse to testify on personal
identifying information that can endanger
his physical safety or his family’s
o
Except if the court requires it
3. Destruction of videotapes and audiotapes
after 5 years from entry of judgment

o


What




What



o
3. DQ






122
4. All records of a youthful offender
charged, after the charges are dropped, are
considered confidential information
by marriage (sec. 22)
What is prohibited here? What does it cover?

Any testimony, for or against the spouse,
during marriage

The other spouse must be a party
What matters are covered?

All matters

Even confidential matters?
o
Yes.
o
After dissolution of the marriage, it
can fall under sec. 24 (privileged
communication)
What are exempted?

1. Civil case between the parties
o
Does this extend to ascendants
and descendants?

No.

2. Criminal case of one spouse against the
other
o
Does this extend to ascendants
and descendants?

Yes.

3. When the marriage is beyond repair, and
there is no more marital harmony to
preserve
Does it survive even after termination of the
marriage?

No. The DQ only lasts during marriage.
Are these DQs waivable?

Yes, by the affected spouse
What if both spouses are co-defendants to the
case?

As an exception, prosecution can call one
spouse as a hostile witness but his/her
testimony will only bind him or herself, and
not the other spouse who was not called.

When does this rule not apply?
o
o
When there is charge of collusive
fraud between the parties because
inevitably, evidence against the
hostile witness-spouse will be used
against the other spouse

Yes.
5. Privileged communication:

See below
A. Marital privilege
o
What are the requisites for marital privilege?

1. Spouses legally married

2. Communication is confidential and was made
during marriage
o
What is the duration of the privilege?

During or even after the marriage

So it applies even after death or divorce
o
What about dying declarations?

They are not covered, because they were
communicated with intent to be disclosed
o
If a third party chanced upon the conversation, is it
covered by the privilege?

Classic rule: no, the privilege is lost

Modern rule: if the parties took proper precautions
but a third person still eavesdropped, the privilege is
NOT lost

When else is the privilege NOT lost?

1. The spouse him or herself colluded with
the third party

2. The spouse deliberately let the
information leak out
o
If a child of sufficient age was present during
communication, is the communication privileged
between H and W?

No. The child is a stranger to the marriage.
o
Distinguish from marital disqualification:

DQ: covers adverse testimony; Privilege – covers
privileged communication

DQ: only during marriage; Privilege – during or after
marriage

DQ: one of the spouses is a party to the case;
Privilege – even if neither spouse is a party

DQ: enjoyed by the affected spouse; Privilege –
either spouse has it
B. Attorney-client
o
What does it cover?
o

4. “Dead man’s statute”

What is the DMS?

Party/assignors
of
parties/beneficiaries
cannot testify as to matters of fact occurring
before the death or insanity of the other
party

What must be the nature of the action?

Claim against the estate of the deceased
person or a person of unsound mind

What about documentary evidence that will
prove the claim?

Not covered by DMS. This prohibition only
extends to oral testimony.

What is the rationale for this?

To avoid self-interested perjury

If death has sealed the lips of one party,
then it must also seal the lips of the other

Does DMS apply if the heirs are sued?

If in their representative capacity, then it
applies

If in their personal capacity, it does not

If a corporation is a party suing against the
estate of the deceased, can the officers testify
as to matters of fact occurring before the death
of the person?

Yes, because they are mere employees of
the party, and not parties or assignors, or
beneficiaries

What if the representative of the deceased was
the one who brought suit?

DMS does not apply because this case is a
suit by the estate and not against it

Are negative facts barred by DMS?

No, because negative facts are those not
occurring before the death of the decedent

Can DMS be waived?

123
Any advice or communication in the course of or in
view to professional employment
Differentiate in the course of and in view to?

In the course of – already retained

In view to – preparatory
What is covered?

Communication by lawyer to client, and client to
lawyer

It does not suppress underlying facts to the
communication
X asked advice from Atty. Y, asking what the
requirements are to form a corporation.
Is this
covered by the privilege?

No.
X said that he had problems with his corporation,
giving particular details, names of incorporators,
reasons, details, and what are the requirements. Is
this covered?

Yes, even if the lawyer are not eventually retained.
Does it recognize agency and what does it imply?

Yes. The privilege extends to secretary, clerk, or
stenographer. That the information falls into their
hands does not affect the privileged nature of the
information.
Does attorney-client extend to third parties?

Yes, it can extend to the secretary, stenographer, or
clerk.

BUT not other third parties, where the privilege is
lost upon having the information fall into their hands.
Can it be waived?

Yes.
Note: if the relationship of the lawyer with the person is a
business relationship, you cannot invoke the privilege.
X communicates confidential information to Y,
believing the latter to be a licensed lawyer when he in
fact is not. It is covered by the privilege?

Yes, as long as the belief is reasonable
Does the privilege cover pre-existing documents not
prepared by the client turned over to the lawyer?

o
o
o
o
o
o
o
o
o
o
No, because they already were not privileged in the
hands of the client. Turning them over to the lawyer
does not clothe these documents with privilege.

What if the documents are prepared by the
client and then turned over to the lawyer?

Covered by the privilege.
o
The client showed to the lawyer the place where he
buried one of his victims. The lawyer checked the body
and saw it, but did not touch it or report it to the
authorities. The lawyer refused to disclose where the
body is. Is this covered?

Yes. Covered.
o
X disclosed to his lawyer that he plans to commit a
crime. Is this covered by the privilege?

No. The privilege does not cover communication as
to a future crime. It only attaches to past crime.
o
Does the privilege cover identity of the client?

No, it’s not privileged communication.

What are the exceptions?

1. Disclosure of identity would be
tantamount to implicating the client

2. Disclosure exposes him to civil liability

3. Identity of the client is the last remaining
link in the chain of testimony
o
What is the work product doctrine?

One party cannot inquire into the memoranda and
files of the opposing client unless there is necessity
or justification.
C. Doctor-patient
o
What are the requisites?

1. Claimed in a civil case

2. Person is authorized to practice medicine

3. Person acquired the info in his professional
capacity

4. Info is necessary for him to act in that capacity

5. Disclosure of the information would tend to
blacken the client’s reputation
o
Can you invoke this privilege in a criminal case?

No, even if it would blacken your reputation. The
privilege only covers civil cases.
o
Who is covered?


124
Person must be a doctor of medicine, surgeon, or
obstetrician

What if he is an optometrist?

No, because he/she is not a doctor of
medicine

What if he is an ophthalmologist?

Covered

What about neurologist?

Covered

What about psychologist?

No, he must pursue further studies to be a
doctor

What about psychiatrist?

Covered

Who is an obstetrician?

For pregnancy

Alternative
medicine
practitioners
and
iridologists?

No.
o
What is the key?

You must be a doctor of medicine.
o
The husband wanted to present the findings of the
doctor on his spouse. Is the information covered by
the privilege?

No.
The husband is not authorized to practice
medicine.
o
Can the privilege be waived?

Yes.
o
What if the doctor is merely presenting hypothetical
facts and is acting as an expert witness, is this
covered?

No.
D. Priest-Penitent
o
Requisites?

1. Confession made to minister or priest in his
professional character, and in the course of discipline
enjoined by the practice of denomination

2. Confession is of penitentiary character
o
A protestant religion does not require confession
through a priest. If a protestant approaches her pastor






125
and asks for a confession and discloses information in
the course thereof, can the pastor invoke the privilege?

No. It should be enjoined by the religious institution
to which he/she belongs.

Just like a Catholic confessing to a nun – not covered
by the privilege.
o
What if a group requires a public confession before a
crowd?

Not covered by the privilege.
o
If “confession” was to simply ask for guidance from a
minister, is it covered?

No.
o
Should the penitent be a member of that religious
institution to which the priest belongs to?

No. The priest will not ask anyway.
E. State Secrets
o
What are the requisites?

1. Communication to public officer

2. Made to him in official confidence

3. When the court finds public interest would suffer
by disclosure
o
Who is the subject of the privilege?

The public office, as regards State secrets
o
Is this waivable?

Yes. It should be done by the court, after application.
E. Executive privilege
o
See Neri case.
o
Is this waivable?

Yes, by the president.
F. Other privileges
o
1. Secrecy of bank deposits
o
2. Non-disclosure of trade secrets
o
3. Non-disclosure of who you voted for
o
4. Newsman’s privilege

As to sources
o
5. Informer’s privilege

As to identity

You don’t need to bring to the stand an informer
G. Parental and Filial privilege
o
What is this?
Nobody may be compelled to testify against a direct
ascendant or descendant
Is this waivable?

Yes.
In a criminal case, no descendant may be compelled to testify
against parents and grandparents, except:

When the testimony is indispensable in a crime
against the descendant or by one parent against the
other


o
o

Admissions and confessions


What is section 26?
o
The act, declaration, or confession of a relevant fact of a
party may be given in evidence against him
o
What does this cover?

Extra-judicial
admissions,
because
judicial
admissions are already covered by the prior rule
(“what need not be proved”)
Differentiate an admission from a declaration against interest:
Admission
Primary evidence – receivable even
if defendant is a witness
Competent only when declarant is a
party to the action, or someone
identified in legal interest with him
Need not have been considered
against his interest when made


Declaration against interest
Secondary evidence – only when
the declarant is unavailable as a
witness
Competent in any action to which it
is relevant (although the declarant
is not a party to the action)
The declarant knew, when it was
made to be against his interest
What is the rule on self-serving admissions?
o
In general, they are inadmissible. This extends even to
agents and diaries of the party.
o
Exceptions?

1. Part of res gestae

2. In the form of a complaint or exclamations of pain
and suffering

3. Part of the confession offered by prosecution

4. When the credibility of the party has been assailed

5. When offered by the opponent

6. Waiver

126
What is the general rule on a third party (“res alios inter actas”
rule)?
o
As a general rule, the acts, declaration, or omission of a third
party cannot be used against you, except when it falls under
the exceptions (res alios inter actas)
What are exceptions?
o
1. Agent or co-partner
o
2. Co-conspirator
o
3. Privies
o
4. Co-owner, joint debtor, joint interest
What are the requisites for admission of co-partner or agent?
o
N.B. these are more or less the same requisites in a
conspiracy
o
1. The admission should have been made during the
existence of the relationship
o
2. Done within the scope of the authority

Ex. if agent, it must be covered by the agency
o
3. Common interest
o
4. The relationship is established by other evidence other
than the admission

Ex. Special power of attorney, articles of partnership,
etc.
o
Vehicular collision – other driver works for company,
said “I’m sorry. I was in a hurry, delivering goods for
the company.” You decide to file a case against the
company. Is the admission admissible?

Yes, the driver was an agent of the company: a)
declaration, b) during existence of agency, c) within
scope of authority, d) relationship is proven by other
evidence
Admissions of a co-conspirator – requisites?
o
1. Act/declaration relates to the furtherance of the conspiracy

This is common design
o
2. During the conspiracy itself
o
3. The conspiracy is established by independent evidence
o
X is one of the conspirators and he takes the witness
stand. Do these requisites have to apply?

No. Remember, this rule only applies to extrajudicial confessions. If there is a judicial admission
where the co-conspirator takes the stand, he can


make such declarations that bind the coconspirators.
o
X and Y were planning to rob a bank. W said, “X tried
to recruit me to join in the robbery by telling me that Y
is in the plan and they’ll make a million pesos.”
Admissible against both X and Y?

Yes. 1) Statement is made by X, a co-conspirator;
2) it was made during the course of the conspiracy,
3) it was in furtherance of the conspiracy
o
X and Y already robbed the bank. One year later, W
testified: “Y told me that he and X were the ones who
robbed the bank last year.” Admissible against both X
and Y?

Only against Y, but not X.
o
D was charged with importation of marijuana and
conspiracy to import marijuana. F told W (an
undercover agent) that he just finished marijuana
imports with D and he didn’t like the way D ran things,
and that he would rather do business with W.
Admissible?

No, because it was not in furtherance of the alleged
conspiracy between F and D.
Admission of joint owner, joint debtor, or one with joint
interest – requisites?
o
1. There is a joint interest
o
2. The act or declaration was made during existence of joint
interest
o
3. The act relates to the subject matter of joint interest
o
N.B. common interest (ex. all are devisees in a will) is
different from joint interest
Admission of privies – requisites?
o
1. Privity between the parties, where one derives title from
the other
o
2. Declaration made the when the privy held the property
o
3. It must have been made as to title over the property
o
Give an example:

X sold land to Y. While X holds the title to the
property, he made statements as regards his title to
the land. When Y holds the land, the statements
made by X can be used against her.
What about statements made by transferors after the
transfer?

In general, these are inadmissible against the
transferee.

What are the exceptions?

1. Made in the presence of the transferee
and the latter acquiesces or does not
protest

2. Where there has been a prima facie case
of fraud established (e.g. fraud in the
transfer)

3. Where the evidence establishes a
continuing conspiracy to defraud – the
conspiracy exists between vendor and
vendee
Do admissions of these third parties extend to court cases? Ex.
Y testified against X on the witness stand that it was X who
was in conspiracy with him.
o
No, these rules do not extend to cases already in court,
because there is an opportunity to cross examine.
Is an offer of compromise admissible in evidence?
o
In civil cases, an offer of compromise is not an implied
admission of liability – it cannot be admitted as evidence
o
In criminal cases, it is treated as an implied admission of
liability
o
What is the exception for criminal cases?

1. When the law allows for compromise

2. Quasi-offenses

i.e. criminal negligence
o
What about a plea of guilty later withdrawn or an
unaccepted plea of guilty to a lesser offense?

It is not admissible in evidence against the accused.
o
What about tax violations with penal sanctions?

Yes, these can be compromised.
o
Is extending offer for medical assistance to the victim
an implied admission?

No.

When is an offer to help admissible to establish
liability?

When the offer to help is accompanied by
an admission of liability.
o


127
Can offer of compromise by relatives bind the person?

Only if the person had knowledge of it and did not
prevent his or her relatives.
o
The JDR rule in criminal cases allows compromise
where
(the
court
here
in
mediation
offers
compromise)?

Libel

Theft

Estafa

BP 22

Criminal negligence
o
What is covered by the compromise?

Only the civil liability

But in practice, once you compromise the civil
liability, usually the prosecution is no longer
interested
o
Compare with admissions of liability:

An offer to settle when there is no controversy at the
time is not an offer of compromise but an admission
of liability
Admission by silence
o
What are the requisites?

1. Statement made in the party’s presence or within
his/her observation

2. Fact would have naturally called for a reaction if
not true

3. To deny is proper under the circumstances

Ex. there were armed 5 men who were
speaking ill about X – his silence may
simply mean that he is being prudent

4. Matter is within the party’s knowledge
o
X was making statements in the radio against Y, a
public official. If Y does not react to the radio caller, is
this an admission by silence?

No. See requisite #1 below.

Same with written letters.
o
Does this apply to those under custodial investigation?

No. Admission by silence does not apply in this case
because it would violate the person’s constitutional
rights.

o



Previous conduct as evidence and character as evidence
128
What is the general rule as to prior conduct?
o
Generally not admissible.
o
What are the exceptions?

To establish intent, knowledge, identity, plan,
system, scheme, habit, custom, or usage, and the
like.
Mr. X and his group robbed BPI in Makati. X and his group
were also suspected of robbing BPI in Intramuros. He was
caught, and a case was filed against him. If there is a separate
criminal case involving the robbery in BPI Intramuros, can the
facts surrounding the Makati BPI robbery be appreciated?
o
No, not to establish a different robbery. But you can use it to
establish any of the exceptions outlined above.
o
Ex. The manner in which the robbery was conducted is the
same, showing a system.
Examples:
o
INTENT – ex. X charged for larceny of ring by substituting a
fake one for a real one: may admit the fact that the same
substitution occurred in two other stores where X was
examining as purchaser to negate honest mistake. // X
charged with larceny of purse: may admit the fact that she
asked a customer “is this your purse?” to show good intent.
o
GUILTY KNOWLEDGE – ex. X denied knowing the combination
of a safe which has been opened and whose contents were
stolen: may admit fact that X was seen surreptitiously
opening the safe before to show knowledge. // X charged with
uttering counterfeit money: may admit fact that X tried to
pay the same notes to three other persons to show
knowledge.
o
IDENTITY – Robbery case where 7 robbers had stripes on
their faces, making identification difficult. But one had
pockmarks on his face and a scar on his left eyelid. The fact
that the same marks were found on an individual robbing
another house that night can be used to establish identity.
o
PLAN, DESIGN, OR SCHEME – Ex. D on trial for killing C.
May admit evidence that A and B were similarly killed by D,
and an insurance policy named as beneficiary all four of them
in that order (A, B, C, D) so that D killing C would fit the
grand design of receiving insurance proceeds.
o
HABIT OR CUSTOM – If course of conduct in a prior dealing is
established as to render its continuance to the point in time in





the question, then admit evidence to show that he acted in
accordance with the habit.
Ms. Y married Mr. A. She obtained insurance. A died. She
married B. She obtained insurance. B died. She married C.
She obtained insurance. C almost died due to poisoning. Are
the previous deaths admissible?
o
Yes, but only to establish intent.
What is the rule on unaccepted offer?
o
An offer in writing to pay a sum of money or deliver a written
instrument/personal property, if rejected without valid cause,
is equivalent to actual production and tender
Character evidence:
o
What is the general rule as to character evidence?

It is not admissible.
o
Why is character evidence generally inadmissible?

1. A person does not always act the same way

2. To prevent prejudice, and

3. To prevent multiplicity of issues
o
N.B. Make sure you distinguish civil and criminal cases
o
When is it applicable?

Only when there is a character trait in the offense
charged

Ex. for murder/homicide – violence

Ex. for estafa – dishonesty

Ex. for rape – sexual perversity of accused
o
For victim, chastity
o
What offenses have no character traits?

Those covered by special laws;

Ex. BP 22

Ex. illegal possession of firearms
How to prove character evidence:
o
1. Personal opinion – inadmissible
o
2. General community reputation – admissible
o
3. Previous conduct – inadmissible [generally]
Exceptions to general rule that character evidence is
inadmissible:
o
Criminal case:

1. Character of the accused:

Accused may prove GMC which is pertinent
to the moral trait involved in the offense
charged

o
o
Prosecution may only prove BMC of accused
which is pertinent to the moral trait involved
in the offense charged in rebuttal

2. Character of offended party

GMC or BMC of the offended party may be
proved if it tends to establish in any
reasonable degree the probability or
improbability of the offense charged
Civil case:

Evidence of MC of a party in a civil case is admissible
only when pertinent to the issue of character
involved in the case

So can there be character evidence
when there is no issue of character in
the case?
o
No.
3. For witnesses (regardless):

Evidence of GMC of a witness is not admissible until
such character has been impeached.
Hearsay rule and exceptions



What is the hearsay rule?
o
A witness may only testify as to matters within his personal
knowledge
What is independent relevant statement?
o
When the statement is the fact of issue, or when the
statement is circumstantial evidence of the facts in issue.
o
During Erap impeachment, his former Secretary
Espiritu was placed on the stand and was asked about
matters he conversed about with Estrada. He started
talking, and there was an objection that is was
hearsay. Is it hearsay?

No, it’s not hearsay.
The conversation actually
happened and he can testify as to the conversation
and what happened.

But as to the truthfulness of these statements, they
have to be established separately.
What are the exceptions?
Declarations
Dying declaration
129
Reputation
As to pedigree
Entries
Entries in
course
of
Declaration
against
interest
Declaration
about
pedigree
Part of res gestae
Prior testimony
Common reputation
business
Entries
in
official
record
Commercial lists

Learned treatises
[Declarations]


Why is this reliable?

Because by human nature, nobody will make a
prejudicial statement against himself
3. Act or declaration about pedigree
o
What must be in issue?

The pedigree of a person, even if not directly – as
long as it is relevant
o
Requisites?

1. The declarant is dead/unavailable

2. Declarant related by birth or marriage to the
person whose pedigree is in question

3. The relationship between the declarant and the
person whose pedigree is in question is shown by
independent evidence

4. Declaration was made prior to the controversy

So there is no motive to falsify
o
Must the witness be related to the declarant?

No. He need not be.

But the relationship should be between the declarant
and the person whose pedigree is in question
4. Res gestae
o
What are the kinds of res gestae?

A. Spontaneous statements

B. Verbal acts
o
Requisites of spontaneous statements?

1. Startling occurrence

2. Spontaneous statements

3. Relating to the circumstances of the occurrence
o
What is to be testified on?

His spontaneous statement
o
Why is this reliable?

No time to fabricate

After 24 hours, is it still a startling occurrence?

Depends on how startled the person still is.
If he was able to go out malling already,
etc., then there was time to fabricate.
o
What are verbal acts?

Statements made contemporaneous to an equivocal
act and characterizing it

Give an example of an equivocal act.
o
1. Dying declaration
o
Requisites

1. The dying person is under the consciousness of his
impending death

2. Declaration relates to the facts/circumstances
pertaining to the death

3. He should eventually die

4. The recipient of the information should be
competent to testify
o
Does this extend to civil cases?

Yes.

As long as it pertains to the circumstances regarding
his death.
o
There is a dying person on the floor and he calls X. He
told X to tell his wife to handle his bank account, tell
his children to manage the properties, etc. Is this the
proper subject of a dying declaration?

No. It does not cover circumstances re: his death.
o
What if he doesn’t die?

It becomes part of res gestae
o
What if the dying declarant made an ante-mortem
statement, in writing, be presented in evidence?

Yes, because this exception covers memoranda.
2. Declaration against interest
o
Requisites?

1. The person is dead/unavailable

2. Made statement against his interest

3. Would not have made that statement had it not
been true
o
Extends to declaration against pecuniary interest, proprietary
interest, criminal acts, etc.

130


X handed a wad of cash to Y. This can
mean anything.

Give an example of a contemporaneous act
characterizing the equivocal act.

“I am lending this to you.”

NOTE: If Y testified, it’s not hearsay because it was
told to him personally.
If a third person who
overheard it testified, this is when the exception
applies.
5. Prior testimony/deposition of a witness
o
Requisites?

1. Witness is dead/unable to testify

2. Identity of parties

3. Identity of issues

4. Opportunity to cross-examine in the prior case
Dying
Who
Dead/unav
Re:
Facts
death
Why
Knows he’s
dying
Reln
re:
Against
int
Dead/unav
Pedigree
Statement
against
interest
Wouldn’t
have said
it if not
true
About
pedigree of
person in Q
Made prior
to
controversy
Dead/unav
Relationship
by blood or
marriage
Independent
evidence of
relationship
Res
Gestae
Even
if
alive
Relating to
startling
occurrence
During or
near such
startling
occurrence
3. Witness testifying must be a member of the family
of that person, by consanguinity or affinity

Or proved by family bibles, rings, etc.
o
What is reputation?

How other people perceive one to be.
o
Can reputation be wrong?

Yes.

This is different from character – who one really is
o
Who will testify?

A member of the family by marriage or
consanguinity.
This is unlike declaration about
pedigree.
o
What else?

Family bibles, charts, rings, engravings, etc.
2. Common reputation
o
A. Public knowledge of more than 30 years

This has a partner provision in documentary
evidence (“ancient documents”)

Give an example of public knowledge of more
than 30 years.

There is a marker in the barangay disclosing
information on the founding of the
barangay.

Sometimes it can border on history, which
will then become subject to judicial notice
o
B. Reputation about marriage

How do you develop a reputation re: marriage?

When people perceive them to be married.
Ex. living in one house, with children, etc.
Even if this is not true.
o
C. Reputation as to moral character


Prior testi
Dead/unav
Same
issues
testified on
Prior case
between
same
parties
Identity of
parties
[Entries]
[Reputation]


1. Family reputation or tradition regarding pedigree
o
Requisites?

1. There is controversy re: pedigree of any member
of the family

2. Reputation or tradition existed prior to the
controversy
131
1. Entries made in the regular course of business
o
Requisites?

1. The person is dead/unavailable

2. Made the entry in a position to know the facts, in
professional capacity

3. Entries made at or near the time of transaction

4. Done in the regular course of business
o
Who is ideally the person testifying?
The one who actually made the entries.
This
exception only applies if he/she is dead or unable to
testify.
o
Who will then testify on his/her behalf if this occurs?

Person who is also in a position to know the facts
2. Entries in official records
o
Requisites?

1. Made by public officer or person enjoined by law
to make entry

2. Made in performance of duty

3. Had sufficient knowledge of the facts, personally
or through official information
o
Does the official have to be dead/unavailable?

No.
o
How do you use this provision?

Secure a certified true copy, then you identify it and
present it in court

When do you present the original only?

If there is issue as to its genuineness
o
Reason behind this provision?

As to not waste the time of the public official
3. Commercial lists
o
Requisites?

1. Contained in published compilation

2. Generally relied upon by these persons

3. Statements are matters of interest to these
persons engaged in the occupation
o
Why can you use this listing?

It is used by the members of the profession and it is
relied upon
o
How do you use this?

Just present the commercial list, no need to present
the writer
o
Give examples

SCRA (which is not an official publication, but used
and relied upon)

Buy and Sell paper  NO. Because it is used, but
not reliable.

Stock Market listings
4. Learned treatises
o
Covers history, science, law, and the arts ONLY




o
o
So it won’t cover billiards, or whatever
How do you present?

1. Court takes judicial notice that the writer is an
expert recognized in his profession

2. Bring in an expert witness to testify that the writer
is an expert in his profession
Opinion rule





What is the opinion rule?
o
It means that only an expert can give an opinion. An ordinary
witness cannot normally give an opinion.
What can an expert testify on?
o
Skill, knowledge, expertise, or training
Is an academic degree required?
o
No. Just the special skill, knowledge, expertise, or training.
Unless, of course, the knowledge or skill requires an academic
degree.
There are two kinds of experts:
o
1. Expert with personal knowledge of the facts

Ex. medico-legal officer who examined a dead body
o
2. Expert with no personal knowledge, only hypothetical facts
Can an ordinary witness give an opinion?
o
General rule: no.
o
Exceptions:

1. Handwriting of which he has sufficient familiarity

2. Identity of which he has adequate knowledge

Not
required
to
know
the
name,
relationships, etc. Just as long as you can
sufficiently identify the person.

3. Mental sanity of person with whom you are
acquainted with

4. Impressions on emotion, behavior, condition,
appearance
Burden of proof and presumptions

132
Distinguish burden of proof from burden of evidence?
o
Burden of proof sticks with the party from the beginning until
the end.

Ex. Breach of contract for damages – burden starts
with the plaintiff and ends with the plaintiff



o
Burden of evidence shifts
What is the difference between conclusive and disputable
presumptions?
o
Conclusive presumptions cannot be rebutted
What are the conclusive presumptions?
o
1. Estoppel in pais

This is regular estoppel

Requisites:

1. Representation

2. Lack of knowledge in the other party

3. Reliance

Similar estoppel:

Estoppel by silence

Estoppel as to question of jurisdiction
o
2. Estoppel by deed

What does “deed” mean?

It means a written document

This has a very limited application: only covers a
landlord-tenant relationship

Upon signing the deed, it is a recognition of the
landlord’s title. You can only challenge it after.
What are common examples of disputable presumptions?
o
1. Presumption of innocence

When does this arise?

1. Only when charged of an offense

2. And one is an accused in that case
o
2. Presumption of regularity

When does this arise?

1. There is a public officer

2. Performing his official function
o
3. When a court renders a decision:

It acted within its jurisdiction

It passed upon all questions
o
4. On filiation

When a child is born within 300 hundred days of
termination of the first marriage AND before 180
days after the solemnization of the second marriage
it is considered to be conceived from the first
marriage

When a child is born within 300 hundred days of
termination of the first marriage AND after 180 days
o
o
133
after solemnization of the second marriage it is
considered to be conceived from the second
marriage

What if the child is born after 300 days after
dissolution of the marriage?

There is no presumption

Whoever alleges legitimacy or illegitimacy
must prove it
5. Absence

What does absence for 7 years establish?

Death, for all purposes EXCEPT succession

When does succession open?
o
After 10 years

What if the person is over 75-years old?

After 5 years is enough to establish death

What are the “exceptional circumstances” that
establish death in a shorter period?

1. Vessel or aircraft goes missing and he
was not heard of for 4 years

2. Person took part in armed hostilities and
missing for 4 years

3. Person under danger of death in other
circumstances and is missing for 4 years

What is the rule for marriage?

Can contract subsequent marriage after
absence for 4 years

What if the spouse disappeared under
exceptional circumstances?
o
2 years of absence is enough

Is declaration of presumptive death of
the spouse to contract subsequent
marriage a special proceeding?
o
No.
o
This is a summary procedure under
the Family Code
6. Survivorship for those who died due to calamity, wreck,
battle, or conflagration

Follow what rule?

Strength and age of the sexes

For what purpose can this be used?

ANY purpose except succession

Allowed for:

Insurance

Survivorship agreements
Conduct of proceedings in the courts





“Matters touched upon on direct examination or
connected therewith… and to elicit all important facts
bearing upon the issue”

So this is more on accord with the English rule,
rather than the American rule. Thus, matters are
not limited to those raised on direct.
o
When does cross examination become a mere
privilege?

When the original cross-examination has ended and
the witness is simply recalled
What is redirect examination?
o
Allow a witness to explain or supplement matters raised in
cross-examination
o
May the courts allow questions on matters not raised
on cross?

Yes, in their sound discretion.
What is re-cross examination?
o
To examine matters raised in re-direct
o
May the courts still allow questions on matters not
raised on redirect?

Yes, again in their sound discretion
What is the rule on recalling witnesses?
o
It cannot be done without leave of court, which exercises
discretion based on the interests of justice
What are leading questions?
o
Questions which suggest to the witnesses the answer which
the examining party desires
Are leading questions allowed?
o
As a rule, not allowed in direct examination.
o
When else can you ask leading questions?

1. Cross examination

2. On preliminary matters

Ex. “Mr. X, you said a while ago you were
an employee of the petitioner corporation.
Are you an employee?”

3. Witness is ignorant, child of tender years, feebleminded, or deaf-mute

And there is some difficulty to get direct and
intelligible answers

4. Unwilling or hostile witness

What is required before witnesses testify?
o
Place the witness under oath or affirmation
o
Oath – imploring divine guidance
o
Affirmation – for those who don’t believe in God
Whose duty is it to receive evidence?
o
The judge

Can delegate to the clerk of court in certain
instances
o
How is it recorded?

1. By stenographer

2. By stenotype

3. By any other means of recording found suitable by
the court
What questions can you NOT ask to witnesses?
o
1. Immaterial, irrelevant, impertinent questions
o
2. Questions that expose him to criminal liability – violates
right against self-incrimination

What if it’s only exposing him to civil liability?

You can ask the question

But not if it exposes him to criminal penalty
o
3. Degrading or humiliating questions
What is direct examination?
o
Examination-in-chief of the prosecution presenting to the
witness facts relevant to the issue
o
What is examination-in-chief?

One that establishes what the prosecution seeks to
prove

Evidence-in-chief is what your witness will testify on
in direct examination.
So if you have eight
witnesses, you have eight evidences-in-chief
What is cross examination?
o
1. Test the accuracy and truthfulness of witness’ testimony
o
2. To elicit all information from the witness
o
What matters can be raised, in general?





134




N.B. There must be a court declaration to
make a person a hostile witness

Who is a hostile witness?
o
1. Adverse interest
o
2. Unjustified reluctance to testify
o
3. Misled the party into calling him

5.
Adverse
witness
–
adverse
party
or
officer/director/managing agent of juridical person
who is an adverse party
What are the ways to impeach the witness?
o
1. Prior inconsistent statement
o
2. Contradictory evidence

N.B. cannot impeach through contradictory evidence
on mere collateral matters
o
3. Reputation of the witness for honesty/truth/integrity of the
witness is bad
o
4. Producing court record for conviction for an offense
May a party impeach his own witness?
o
As a rule, no.
o
Except when the witness is unwilling, hostile, or the adverse
party and the examining party has to have the court declare
him as a hostile witness
o
What is the only evidence that cannot be used in
impeaching?

Evidence of bad character (remember, this only
applies on rebuttal)
o
May the other party still cross-examine the hostile
witness?

Yes.
What are the two kinds of memorandum?
o
1. Present recollection revived

Memorandum written by him or under his direction:

A. When the fact occurred or immediately
after

B. Any other time when it was still fresh in
his memory
o
2. Past recollection recorded

Witness has no recollection but states that the
writing correctly reflected the transaction when made
o
When do these apply?
In both cases he knew, he was in charge, or he
prepared it. That’s why he can testify. So even if
there is no independent recollection, he can testify.
What is the purpose?

To refresh his memory
What is the evidence?

If the witness has independent recollection, then the
testimony is the evidence.

If he has no independent recollection, the
memorandum itself is the evidence. But it must be
taken with caution.
is the rule of completeness?
When a party gives as evidence part of an act, writing,
declaration, conversation, or record, the other party may
inquire into the whole of that evidence.
What if it is one letter in a “chain” of letters?

Admitting one necessarily allows the other letters in
the chain to be admitted
What if part is privileged?

It is waived.

o
o

What
o
o
o
Authentication of documents





135
N.B. Whether public or private, the document must be authenticated.
What are the kinds of public documents?
o
1. Written official acts or records of sovereign authority

Whether Philippines or other country
o
2. Documents duly acknowledged before a notary public
except wills

Not just notarized, but must be acknowledged

Except last wills and testaments
o
3. Private documents recorded in a public office

Ex. affidavit of adverse claim in a R.O.D.
What are private documents?
o
All other documents not falling under the prior three
What is the distinction?
o
Public documents are admissible without further proof of due
execution and genuineness; private writings must be proved
as to authenticity and due execution
o
Public documents bind even third persons as evidence;
private documents only bind the parties as evidence
How do you authenticate acts of sovereign authority?
Certified true copy or official publication
If it is from a foreign country?

Certification from foreign service officer
How do you authenticate a duly acknowledged document
before a Notary Public?
o
Certificate of acknowledgement of the document itself
o
If by chance, your copy is lost, where do you go?

You could get a certified true copy from the RTC who
commissioned him to notarize documents (he
submits the books to the RTC)
How do you authenticate private documents recorded in a
public office?
o
Can be proved by original record or a certified true copy
o
Can there be a certificate of no record?

Yes.
How do you authenticate a private document?
o
1. Genuineness of the handwriting by anyone who saw the
document executed or written
o
2. Evidence of genuineness of the signature/handwriting of
the maker
How is genuineness of handwriting proved?
o
1. Witness believes it to be the handwriting of such person
because:

A. he saw the person write it or

B. he has seen writing purporting to be his, upon
which the witness has acted upon or was charged,
thus acquiring knowledge of such
o
2. Comparison by the witness or the court with:

A. other writing admitted or treated as genuine by
the party against whom the evidence is offered or

B. proved to be genuine by the judge
What private documents need not be authenticated?
o
1. Ancient document
o
2. Admitted by the adverse party
o
3. Immaterial
o
4. Document need only be identified
What is an ancient document – requisites?
o
1. Document existing for at least 30 years
o
2. Unblemished
o
3. In the custody of one who must be with possession over it
What is alteration?
o
o







When there is one, you have to account for it

1. There is consent

2. There is knowledge

3. Did not change the meaning

4. Properly or innocently made
Can you impugn judicial records?
o
Yes.
o
How?

1. Want of jurisdiction

2. Collusion

3. Fraud
o

Offer of evidence






136
What is the rule on formal offer?
o
Evidence must be offered, or else the court will not consider it
as evidence
When is it made?
o
After the documents as marked, and all the witnesses are
presented
Is offer of testimonial evidence the same?
o
It’s not, because it’s made before you present the witness
When is objection made?
o
Evidence offered orally: made immediately after offer is made
o
Evidence offered in writing: within 3 days after notice of offer,
unless court allows different period
o
Question propounded in oral examination: as soon as ground
becomes reasonably apparent
o
FOR ALL: must specify grounds for objection
What is a continuing objection?
o
Objection of the same character after the grant or denial of
the same objection
o
A one-time statement covering objections of the same
character
o
Does it have to be ruled upon by the court?

No.
When does the court rule on the objection?
o
Immediately after it was made. No need to state the reason
for overruling or sustaining it.

Except if the objection was on two grounds; court
must state which ground was sustained.
o
What is the exception?
If the court needs reasonable time to decide. But
the ruling must still be given during trial to give the
party who posed the objection to meet the situation
What if the evidence is erroneously rejected?

Can be ground for new trial.

UNLESS it would not have changed the decision.
is the rule on striking out answers?
It applies when the witness answered the question even
before the adverse party had the chance to object

And the objection is meritorious
Upon motion, what answers can the court strike out?

1. Incompetent

2. Irrelevant

3. improprer
is proffer of evidence?
This is tender of excluded evidence
So for instance an excluded witness can still be presented
through an affidavit showing her qualifications and the
substance of her testimony – so it can be considered on
appeal

o

What
o
o

What
o
o

PART IV: SPECIAL PROCEEDINGS
In general





Distinguish between an ordinary civil action and a special
proceeding:
Civil action
Enforce/protect right or
prevent/redress wrong
Private interests
Weight and sufficiency of evidence

There should be more than one circumstance
And when taken together, they form proof beyond
reasonable doubt
o
Can it be the basis of identification?

Yes
Can the judge stop the presentation of evidence?
o
Yes, if the judge feels there is no more need for additional
evidence;


What is the equipoise rule for preponderance of evidence?
o
When there is equipoise, the party with the burden of proof
fails
When the evidence of one side is stronger than the other, does
it mean there is already preponderance of evidence?
o
No. One must still rely on the strength of one’s case rather
than weakness of the other.
Is an extra-judicial confession sufficient ground to convict a
person BRD?
o
No. It must be corroborated by evidence of corpus delicti.
o
But plea of guilty in open court is sufficient.
What is needed for administrative cases in QJAs?
o
Substantive evidence
o
Where else does this standard apply?

Investigations in the workplace

QJAs that proceed like the NLRC
Circumstantial evidence
o
Can it be a basis of conviction?

Yes
Formal pleadings
Single appeal
Notice of appeal (usually one page)
15 days



137
Spec pro
Establish right, status, or particular
fact
There’s public interest – also binds
the world (generally). So it must be
published.
Motions/application
Multiple appeals
Record of appeal (voluminous)
30 days
Does the prior requirement of earnest efforts to compromise
between relatives apply to settlement of estate?
o
No. “Earnest efforts to compromise” does not apply here,
because that only applies to civil actions. Settlement of
estate is a special proceeding.
Can the court in an ordinary action settle issues relating to
special proceedings?
o
No. For instance, the complaint filed in the RTC was an
ordinary civil action for annulment of sale. An ordinary action
cannot settle issues relating to special and limited jurisdiction
of special court (ex. settlement of estate).
Subject matters of special proceedings:
1. Settlement of estate
2. Escheat
3. Guardianship
4. Trustees
5. Adoption
6. Revocation of Adoption
7. Hospitalization of insane persons
8. Habeas corpus
9. Change of name
10. Voluntary dissolution of corporations  now with the SEC
11. Judicial approval of voluntary recognition of minor natural
children  no more natural children
o
12. Constitution of family home  operation of law under FC
o
13. Declaration of absence and death
o
14. Cancellation/correction of entries in civil registry
What other cases are considered special proceedings?
o
1. Liquidation
o
2. Arbitration
o
3. Alternative Dispute Resolution (ADR)
o
4. Corporate rehabilitation
o
5. Writ of Amparo
o
6. Writ of Habeas data
What is the exception to the general rule that declaration of
absence and presumptive death is a special proceeding?
o
Declaration of presumptive death for purpose of remarriage –
applied FC rules on summary proceedings.
What is the nature of special proceedings?
o
Special proceedings are non contentious proceedings.

o
o
o
o
o
o
o
o
o
o
o







SETTLEMENT OF ESTATES
Extrajudicial settlement



What are the modes of extra-judicially settling estate?
o
1. Extrajudicial settlement through public document filed in
ROD
o
2. Ordinary action for partition (Rule 69)
o
3. Affidavit adjudicating estate to sole heir
A judge reopened settlement proceedings for intervening
illegitimate children. Is this proper?
o
Yes, but he should have made them present evidence first to
establish their right, prima facie.

138
Can there be EJS even if there is an administrator already?
o
Yes. The State’s underlying reason for favoring extrajudicial
settlement – cheaper, faster, simpler
o
Two requisites:

1. Move for appointment of another administrator
(because it is a new estate already)

2. 2 year period
Requirements for summary settlement?
o
1. Gross value of estate = 10K or less
o
2. Whether the decedent left a will or not, DOES NOT MATTER
o
3. Hearing from 1-3 months after last publication – 3
consecutive weeks in newspaper of GC in province + notice to
interested persons
o
Why is it summary?

No administrator or executor
o
What must the court do?

Determine if there are creditors
Difference between summary settlement and usual judicial
probate/admin proceedings:
o
No more portion where the court appoints an administrator
Requisites for EJS?
o
1. No will
o
2. All heirs of legal age, or minors duly represented
o
3. No debts
What are the procedural matters?
o
Record in public document, submitted to ROD
o
Publication of fact of EJS (so it’s post hoc) in newspaper of
GC – 3 consecutive weeks in province
o
Bond for personal property

Can easily be disposed of

Unlike real property which you can annotate
What if there is an adverse claim?
o
In summary settlement of estate (for small estates),
whatever adverse claim can be protected by annotation lis
pendens. This should not bar the distribution of the estate
Procedure?
o
Real property:

Public instrument

Registration (notice to the world)

 annotate/lien
o
Personal property:








File bond
When is the decedent presumed to have left no debts?
o
When no creditor files a petition for letters of administration
within 2 years of the death of the decedent
Is it mandatory for heirs to have an EJ partition?
o
No.
o
General rule: settlement is judicial. If no will, no debts, all
heirs of legal age – EJ. But can still do judicial, if there are
good reasons. But a mere spat is not a good reason.
o
The heirs can pray for:

1. Dismissal of judicial case, if they’re happy with the
partition

2. Conversion of the action to an ordinary action for
partition
What if it’s in a private instrument?
o
Still valid.
o
Note though, that for lack of registration, it will only bind the
heirs. In a case, the ones that donated the land postsettlement were heirs so they should have been bound to the
EJ settlement.
Does posting of a bond terminate the annotation of adverse
interest?
o
No. The two year period has to lapse first.
o
Could not substitute annotation with bond. The bond only
applies to personal properties.
What if the heirs could not actually physically divide the
property?
o
Continued co-ownership could be allowed, by the parties’
agreement. No need for spec pro in this case.
X left a will and died. Can the heirs enter into an EJ settlement
of the estate?
o
Yes, as long as they submit the will for probate and the terms
of the EJ settlement do not vary the terms of the will.
Probate of a will is compulsory.
What if an heir or creditor is excluded?
o
Can go against bond (personal property) or the real property
within 2 years after settlement and distribution of estate by
petitioning for settlement of estate
o
What if the person is a minor, incapacitated, is in
prison, or outside the Philippines?
May present claim within 1 year from disappearance
of disability
What are the remedies against EJS when a creditor or heir is
excluded?
o
Excluded creditor

1. If personal, go against the bond

2. If real, annotation
o
Excluded heir

1. Letters for administration

2. Petition for probate of estate – 2 years

3. Rescission/partition – 4 years

4. Annulment on ground of fraud – 4 years

From discovery of fraud

5. Action reivindicatoria – 10 years

Count from registration: when implied trust
is renounced (already claiming ownership)


Judicial settlement



139
Which court has jurisdiction in probate/admin proceedings?
o
JURISDICTION:

MTC

300,000 and below (outside MM)

400,000 and below (MM)

RTC

Above 300,000 (outside MM)

Above 400,000 (MM)
o
VENUE

Resident

Where the person resided

Non-resident

Any place where estate is
Differentiate residence from domicile:
o
“Resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of
a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat.
o
Domicile requires bodily presence in that place and also an
intention to make it one's domicile. For residence, no
particular length of time is required though; however, the
residence must be more than temporary.
Is venue waivable?
Yes. As this issue is only a matter of VENUE, it is not
jurisdictional. Implication: it can be waived.
What is the exclusion rule?
o
When a probate court has taken cognizance of the
proceeding, it excludes all other courts.
What is the meaning of “taking cognizance” in the exclusion
rule?
o
The court has to do something. So not where you first filed,
but the court that first acted.
What is the “limited and special jurisdiction” of the probate
court?
o
General rule: probate court cannot pass upon issues of
ownership; can only pass judgment on jurisdiction or probate
of a will
o
EXCEPTIONS:

1. For purposes of inclusion in inventory

If all of the parties are heirs and they
submit the issue of ownership to the
probate court and there is no third party
prejudiced

Question of collation or advancement

2. All the heirs consent
o
What are the implications of this rule?

The court cannot include in the estate property
registered in another’s name

The court cannot include in the inventory property
which belong to a third person
o
But the court may:

1. Issue warrants and compulsory processes to carry
into effect orders and judgments

2. All other powers granted by law
What issues can be resolved by the probate court?
o
1. Identity of the will
o
2. Due execution of the will
o
3. Capacity of the testator
Maloles II v. Phillips: In the lifetime of the testator, he filed an
admission for probate. So when the nephew filed a motion to
intervene, the proceedings have already terminated. That’s why when
the deemed executrix filed for letters of administration in another
court, that court said that the first court having jurisdiction over the
first probate proceedings must have jurisdiction.

o







Alipio: Creditor collecting from CPG for a debt cannot sue the
surviving spouse; must file a claim in the settlement of the estate of
the decedent.
Reyes: An adoption decree cannot be subject to collateral attack in a
probate proceeding.
Settlement of estate of a person presumed dead – how is the
estate dealt with?
o
He is entitled to the balance of his estate after payment of
debts
o
Balance may be recovered by mere motion in the same case
where he was declared presumptively dead
Production of will as necessary






140
Why is probate mandatory?
o
Policy of law is to allow a person to freely dispose his property
after death. Respect the wishes of the decedent.
Why is probate necessary?
o
A will that is not probated does not pass property.
o
To prove due execution of the will
What are the issues of due execution included in probate?
o
1. Compliance with formalities
o
2. Mental capacity
What are the issues excluded from probate?
o
Intrinsic aspect of the will (ex. preterition)
What is the implication of allowance of the will in probate?
o
Once a will has been probated, no more questions re: validity
of the will may be raised
o
An order admitting the will to probate is considered final and
appealable.

So it can be appealed
o
“Probate” and “authentication” are the same: court really just
rules upon the extrinsic validity of the will.
o
What is the rule on extrinsic validity as to probate?

Conclusive as to due execution.
o
What about intrinsic validity?

Cannot raise these issues as a general rule.

Exception: when seen on the face of the will, or for
practical purposes.
Does prescription apply in the probate of wills?
o
No. Prescription does not apply in the probate of wills. It is
not a right but a duty.
Court’s duty is to admit to probate unless one of the grounds
to oppose applies.
Exception to probate?
o
Summary settlement of estates – less than P10K (even if
there is a will)
Because probate is mandatory, what are the responsibilities of
the custodian of the will or the executor?
o
1. Custodian of the will must within 20 days of learning of
death of testator’s death, deliver to court or to named
executor
o
2. Executor – to court

Within 20 days of learning of death

OR if appointed after death, then within 20 days
What happens if they fail to comply with the duties?
o
Subjected to fine or detention
o






Allowance or disallowance of the will






1. Jurisdictional facts
2. Names, addresses, ages of heirs, devisees, legatees
3. Probable value and character of property
4. Name of person for whom letters are prayed
5. If will not delivered to court, the name of the person with
custody thereof
What are the jurisdictional facts?
o
1. The person executed a will
o
2. Died in province of RTC or if non-resident, owned property
there
o
4. Submit will to court
Three ways of consolidating cases?
o
1. Recast and conduct one hearing only and one decision
o
2. Consolidate all cases into one hearing, one decision
o
3. Principal one heard and suspend others
Who must the applicant be?
o
Applicant must be executor of the will, or must have custody
over the will
What must be submitted?
o
Must submit original of the will; if mere copy, explain why.
A will was submitted for probate. Can the heirs then decide to
just file a separate case for partition of property?
o
Cannot file subsequent separate case for partition of property,
because everyone is bound through publication (notice to
whole world) of the probate proceedings
o
Contrast this with situation where the heirs first prayed for
the dismissal of the settlement proceedings and converted it
to partition proceedings
What is the nature of the probate proceeding?
o
Probate of will is in rem; court acquires jurisdiction over all
interested persons and any order binds the whole world
o
Mandamus to undergo publication is not the proper remedy –
must appeal in due time and manner
What is the rule on publication?
o
Newspaper of general circulation: published regularly, appeals
to general interest, bona fide subscription list
o
Need not wait full three weeks before the day set for hearing
(can publish for three consecutive weeks for 15 days – 1st
day, 8th day, 15th day)
How do you serve notices?
o
1. To place of residence
o
o
o
o
o
Procedure for probate:
o
1. Application
o
2. Court to set hearing date and time
o
3. Publication (if testator is the one who petitioned, no need)
o
4. Notices sent
o
5. Hearing
Who may file the application for petition?
o
Executor, legatee, devisee, any person with interest
o
Testator himself
Distinguish probate of a will post-mortem and ante-mortem.
o
Post-mortem –

A. Executor, heir, administrator, or any interested
person can apply

B. Notice given to compulsory heirs

Notice given to all heirs too by publication
o
Ante-mortem –

A. The testator himself applies

B. Notice given to compulsory heirs

No notice to other heirs by publication
When can it be filed?
o
Any time
May the testator himself file?
o
Yes.
What are the contents?





141








o
2. Prepaid
o
3. Through mail (20 days prior to hearing)
o
4. Personally (10 days prior to hearing)
What is the implication of failure to send personal notice?
o
If the addresses of the legatees and devisees are known, then
failure to send personal notice is fatal.
o
Exception: if there was no notice sent because the address
indicated was wrong.
What if non-compulsory heirs are not given notice?
o
In a case, two heirs were not given notice (grandchild and
niece) but since they are not compulsory heirs, this was not
fatal.
What if it is the testator himself that submits the will for
probate?
o
No need for publication
o
Notices only to compulsory heirs
What happens first during hearing?
o
First, present jurisdictional facts (death certificate, barangay
certificate, will, publication and notice, etc.):

1. Attach three weeks publication

2. Affidavit of publication
What happens when there is an opponent for a holographic
will?
o
At least 3 witnesses who know the handwriting and signature
of the testator must attest.
o
May resort to expert witnesses
If notarial will?
o
All the subscribing witnesses and the notary must attest
o
If some are not there, explain
o
Cabang: If probate of will is opposed, all subscribing
witnesses of a notarial will must be presented. Here, just 1 –
invalid.
o
What are exceptions to the rule that for opposed wills,
one must present all the subscribing witnesses?

Avera: if the issue was raised for the first time on
appeal
What if all the witnesses are outside the province of RTC?
o
Take one witness’s deposition
What if the witnesses are dead?
o
May admit other witnesses to prove due execution of will.
(Prove handwriting, etc.)





What are the recourses of excluded heirs against a decree of
probate?
o
1. Relief from judgment

(60 days from knowledge + 6 months from decree)
o
2. Certiorari (Rule 65)
o
3. Independent civil action (NCC, Art. 1114), assuming
decision is obtained through fraud
What if the alterations on a holographic will were not dated
and signed?
o
This non compliance with Arts 813 and 814 does not affect
extrinsic validity of the holographic will (which only requires
that it be written, dated, and signed)
What if the original proponent of the will died?
o
Substitute proponent’s amended petition already deemed to
have fulfilled publication and notice.
If the will is lost or destroyed, how can it be proved?
o
1. Establish its existence
o
2. It was fraudulently or accidentally lost/destroyed
o
3. Two credible witnesses prove its contents
What are the rules for probate before foreign courts?
o
The fact that a foreign court is a probate court must be
proved, in the absence of which, procedure assumed to be
the same as here in the Philippines
o
Proof of foreign laws must be submitted
Allowance of will proved outside the Philippines and Administration of
estate thereunder


142
What is the proceeding for a will allowed outside the country?
o
1. Upon due authentication of

Will

AND order or decree of allowance
o
2. Set hearing
o
3. Give notice as in the case of the original will presented for
allowance
o
4. ALSO publication, not just notice (jurisprudence)
Difference between principal and ancillary administration?
o
Ancillary administration is administration of the decedent’s
estate other than the one in which she lived, to dispose the
property she owns there. This is subordinate to, and in aid
of, principal administration.
Duty of ancillary administrator is to present evidence to
support
To which properties does administration extend for these
cases?
o
Administration only extends to property within State or
country where letter was granted
o
No power beyond that.
What does the court issue thereafter?
o
Certificate of allowance

o


Letters testamentary and of administration



When are letters testamentary issued?
o
1. Will has been proved
o
2. Person is competent
o
3. Accept trust
o
4. Give bond
When is an administrator appointed?
o
1. When no executor in named or
o
2. The executor is disqualified, he refuses the trust, or fails to
give a bond or
o
3. A person dies intestate
o
What is the procedure for the issuance of letters of
administration?

1. File petition

2. Court sets hearing

3. Issue order granting letters
o
What are the jurisdictional facts?

1. Death

2. Place of death (residence)

3. Nonresident
To whom is the letter of administration granted?
o
1. Surviving spouse, next of kin, or both, or person appointed
by the SS or next of kin
o
2. One or more of the principal creditors

If the ones in #1 are incompetent or unwilling

Or if they neglect to apply for administration within
30 days of death of decedent

What is the nature of this 30 day
disqualification?




143
The 30-day rule disqualifying SS and next of
kin must only apply when there is good
reason to exclude them. (Gabriel)

But some cases applied the 30 day rule
strictly
o
3. Any other person the court selects
o
Must this order be followed?

Yes.
o
Who has discretion to appoint an administrator?

The Court has discretion to appoint administrator.
Must show proof of filiation.
o
Can the court pass upon issue of filiation?

Yes, the court can pass upon filiation issue in
determining order of interested person as
administrators
Who may not serve as administrators?
o
1. Minor
o
2. Non-resident
o
3. Unfit to perform (DILM)

Drunkenness

Improvidence

Lack of understanding or integrity

Moral turpitude conviction
o
What if there is a claim of incapacity?

Hold a hearing if there is claim of incapacity or
disqualification
What are the grounds to appoint a co-administrator?
o
1. To represent different interests
o
2. Justice and equity demands opposing factions to be
represented
o
3. large or perplexing estate
o
4. To satisfy all persons
o
5. When person appointed entitled to have another competent
person assist him
Up until when does the court have the power to appoint an
administrator or a co-administrator?
o
Probate court may re-open the administration issue as long as
it retains J over spec pro.
o
Ex. Appoint co-admin which knew details of estate.
What if the administrator has some conflict of interest with
part of the properties being administered?
o
o
Exclude the property in which the administrator had
conflicting interests as appellant and appellee
Do not remove him as administrator, but just exclude him
from the property in question
Opposing issuance of Letters







Can petitions for administration be opposed?
o
Yes.
o
On what grounds?

1. Incompetency of the person prayed for

2. Contestant’s own right to be administrator
o
To whom?

To contestant or another person prayed for
Sec 1 of Rule 79 – what does “A petition may at the same time
be filed for LOA with the will annexed”?
o
When there is no executor or the one appointed is
incapacitated. Or when you are questioning the will.
Who are the ones who can file an opposition to the issuance of
letters?
o
Interested persons. Interest must be direct, not just indirect
or contingent
What if there is an heir who assigns his share during the
pendency of the proceeding?
o
If assignment of share occurs in the pendency of the case,
still entitled to notice because the court retains jurisdiction
over the person and that person is still interested. The court
must approve assignment.
What if the assignment occurs before settlement of estate?
o
If assignment of share occurs before settlement of estate, no
interest anymore.
Is the fact that an administrator lacks capacity a jurisdictional
issue?
o
No. If the administrator is not an interested party, the
motion to dismiss filed by the opponent must not be based on
lack of J by the court, but lack of legal capacity of the
administration.
o
Administrator’s capacity is not jurisdictional fact.





Bonds of executors and administrators


Special Administrators

1. When there is a delay in granting letters testamentary or of
administration by any cause (including appeal from allowance
or disallowance of the will)
o
2. If the executor or administrator himself has a claim against
the estate (but the SA is only for that limited purpose – for
the claim)
What can an SA do?
o
1. Preserve property, rights, credits for future E/A
o
2. Maintain and commence suits as SA
o
3. Sell only perishable property and those ordered sold
o
N.B. not liable to pay debts of the deceased
Can there be two SAs?
o
Yes. There can be two special administrators to represent
interests fairly and equitably.
Can the court allow the SA to dispose of other property, and
not just perishables?
o
Yes, but must liquidate first and prove ownership.
De Guzman:
o
Delay caused on probate due to analysis of validity of a prior
deed of donation covering the estate property is “any cause”
contemplated in provision re: delay and appointment of SA.
o
The partisan possession by respondents cannot replace the
neutral possession of SA.
After appeal, may the court still appoint administrators?
o
Yes.
o
Nature of appeal in spec pro is record of appeal, so after the
appeal, the court only loses jurisdiction over the subject of
appeal, but not the spec pro. So it may continue to make
decisions re: appointment of administrators.
Does the order of preference apply to SAs?
o
No. Order of preference does not apply in appointment of SA.
o
When do you appoint a special administrator?
144
Can the probate court execute bonds too?
o
Yes. Given that the probate court has the jurisdiction and
power to require bonds, then execution of bond is also within
jurisdiction of court.
What are the two most important conditions in the bond?
o
1. Inventory within 3 months
o
2. Accounting within 1 year
Revocation of administration, death, resignation, removal





Generally, when may the court remove executor OR
administrator?
o
1. Neglects to render account and settle estate according to
law
o
2. Failure to perform order or judgment of court or duty
under ROC
o
3. Absconding
o
4. Becomes insane or incapable to discharge the trust
When is another ground where the court may revoke letters of
administration?
o
If a will has been proved and allowed by the probate court
Who has discretion to remove the administrator?
o
Removal of administrator lies within discretion of court
appointing him. BUT give that administrator his day in court
prior to removal.
o
General rule: never interfere with discretion of the court.
What if the administrator fails to render accounting?
o
Rendering of accounting after 1 year is mandatory;
negligence is a ground for removal from appointment
What is required to remove an administrator or executor?
o
Sufficient evidence of failure to pay real estate tax and to
render proper accounting.


General powers and duties of executors and administrators

Inventory and appraisal




No, he can still be removed. The Sebial doctrine is only with
re: the court being able to approve inventory filed beyond 3
month period. (THUS, Sebial is a jurisdictional issue.)
Is the inventory conclusive on the issue of ownership?
o
Inventory is merely provisional and is not determinative of
the issue of ownership. Separate action necessary to
determine issue of ownership and recover of possession.
Who gets provisional support?
o
1. Widow, 2. Children (minor or incapacitated)
o
That children are all of age, gainfully employed, or married
does not affect whether they should receive right to allowance
under Art. 188. The Civil Code makes no distinction; the ROC
cannot limit it. The wife that would get support is the
“legitimate spouse.”
o
Grandchildren not entitled to provisional support from the
funds of the decedent’s estate. The law limits allowance to
widow and children, and does not extend it to the
grandchildren.
o
What should be included in the inventory?
o
All real and personal properties in estate
o
In possession OR within knowledge
What are not included?
o
Provisions to be consumed or for family’s subsistence
When is the administrator supposed to submit the inventory?
o
Within 3 months after appointment
o
3 month period to submit inventory is not a mandatory period
(Sebial)
If the administrator fails to submit the inventory within 3
month period, and the interested parties file a motion to
remove him as administrator, can the administrator invoke the
Sebial case?




145
Can an executor/administrator have access over partnership
books?
o
Yes. It only extends to a partnership but not a corporation,
because there is succession in corporation.
o
Failure to comply with order of a court – what is the
consequence?

Partner can be held in contempt
What is the power of the executor or administrator of the
estate of a deceased partner?
o
Can access records, books, and papers of the partnership and
demand the production of such from the other partners
Is court approval needed to lease property of estate?
o
No. Court approval not required prior to an administrator
leasing a property in the estate, because this is not an act of
ownership.
What is the prohibition as regards this lease?
o
The administrator cannot lease the property for himself,
directly or indirectly (ex. acting as agent for the partnership
leasing the property)
What is the remedy to annul a contract?
o
Separate action to annul.

What is the extent of the rights of the A/E over the property?
o
Exercise of rights of A/E over property is for payment of debt
or for administration expenses. It is not absolute.
Accountability and compensation of executors and administrators







1. File an action against admin but in his personal capacity
and not as admin.
o
2. File petition in the testate/intestate proceedings asking
court to direct payment of fees as an expense of
administration.

In this option, essential to give notice to all heirs and
interested parties.
May the law firm of the lawyer-admin claim attorney’s fees?
o
Appointment of individual lawyer from a firm is separate from
that of his law firm – separate persons. The Law Office
cannot claim attorney’s fees when it was not appointed coadministrator. Instead, claim from the heirs that it helped, as
legal fees (but not as admin.)
What is the nature of compensation?
o
Compensation is in the nature of commissions, and not
attorney’s fees.
o
A greater sum than that provided in the rule is allowed in
special cases where the estate is large, and the settlement
was difficult, and required high degree of capacity (extent of
care) on the part of the E/A. – Sound discretion of court.
Can the E/A demand from the estate the expenses for his
bond?
o
Bond filed is not necessary expenses demandable from
estate.
o
Claiming bond from estate is not allowed; that would defeat
the purpose of the bond, as one filed by him with fiduciary
capacity.
De Borja: examples of which expenses are allowed and necessary
o
Compensation to wife as private secretary:

Not allowed
o
Repairs of the house where administrator and family stayed:

Not necessary. In fact, must have paid rent.
o
*See which expenses are necessary/allowed
How to determine whether the expenses can be charged to the
estate?
o
1. Beneficial
o
2. Must be reasonable
What is the notice requirement upon accounting by the E/A?
o
Notice given personally or by publication to all interested
persons
o
What is the rule on increase or loss of value?
o
The E/A cannot profit on sale for amount greater than value –
must account profits to the estate
o
The E/A is not liable for losses without his fault
Until when does the duty to account apply?
o
Until the final order for closure and termination of
administration. It lasts until the estate is wholly settled.
o
Even after final accounting, as long as there is administration.
What if the executor or administrator resigns?
o
The duty applies notwithstanding the existence of
compromise agreement confirming his resignation as coexecutor.
o
Duty cannot be waived or disregarded.
What if the administrator uses the property of the decedent
(ex. occupying it)?
o
He must account for it as may be agreed upon between him
and the interested parties (akin to rentals)
When does the administrator have to render account?
o
Within one year from receipt of Letters.
o
Punongbayan: Exceptional circumstance

In this case, the co-administrator cannot be
compelled to account because he had only been coadministrator for one day when it was filed. But the
denial of the motion to render account does not
preclude the co-administrator from rendering
account, but within 1 year from receipt of letters of
administration.
What is the rule for attorney’s fees?
o
Rule with respect to claiming fees: if lawyer and administrator
at the same time – cannot claim from estate, but from the
executor/administrator.
o
If you are an administrator and engaged services from a
lawyer, then you can claim from the estate as expenses that
benefited the estate.
What if the executor or administrator refuses to pay the
attorney’s fees, what are the modes of recourse of the lawyer?






146
o
The surety on the bond filed by the admin can be a party to
the accounting
Claims against the estate





Time period when a person may file claims against the estate
After which, barred forever.
Exception:

Counter claims against the estate
How do you file a claim?
o
Present to clerk of court
o
Together with:

Contract

Vouchers

Affidavit explaining particulars
What if solidary?
o
Can file complete amount against the estate.
What if joint?
o
Only the share.
What if there is a debt subject to a mortgage – what are the
options?
o
1. Waive the mortgage and just completely claim from the
estate
o
2. Judicially foreclose the mortgage

You can recover the balance
o
3. Extra-judicially foreclose the mortgage

You cannot recover the deficit/balance
What is the nature of a lease contract?
o
A lease contract is transmissible. So when the wife took over
the business of her dead husband, renting certain property,
then there was transfer of interest to her. When she failed to
pay the rents, no need to go after deceased’s husband’s
estate; can go after wife.
What if the will provided that the heirs should pay the money
debts of the estate?
o
Even if the will stated that the heirs should religiously pay the
debt, the creditors must still file claims within the settlement
proceedings. There is no getting around Rule 86.
X was the administrator of an estate. X hired Atty. Y. X died.
Does the claim of Atty. Y for fees survive notwithstanding X’s
death?
o
Yes. The claim of the attorney survives because it is against
estate, not the administrator.
o
A claim against a person, in her capacity as administrator,
can be filed at the court where a special proceeding for
settlement of the estate is pending.
o
o
o

What is the requirement in terms of notice for money claims
against the estate?
o
Court issues order to all persons with money claims against
the estate to file it with the clerk of court
o
What is the period?

Not less than 6 months to not more than 12 months
from date of first publication
o
General rule: All claims must be filed within the time limit,
or else it is forever barred.

Exception?

Except as counterclaim to any action an
administrator or executor may bring
What are the requirements of notice?
o
Notice to creditors by the court after granting Letters

Instructs all creditors with money claims against the
decedent to file them with the clerk of court
o
Published in newspaper of GC (3 weeks)
o
What is the period for filing claims?

Court sets a period not less than 6 months from first
notice but not more than 12 months

If there is a creditor who fails to claim, with just
reason, the court may grant at most a 1 month
extension; but this must be before order of
distribution
What claims are covered?
o
1. Money claims – (Rule 85, Sec 5)

Arising from contract, express or implied

Whether due, not due, contingent
o
2. Claims for funeral expenses and expenses in last sickness
o
3. Judgment for money
Procedure:
o
1. Filing of claims
o
2. Answer (15 days)

1. Admit

2. Oppose
o
3. Goes to trial
What is the statute of non-claims?






147


What if the decedent is one of many solidarily liable persons?
o
Creditor can sue the living surety alone. This is allowed;
death of one creditor does not extinguish the surety’s liability.
What is the rule on lease rentals being assessed after the death
of the person? i.e. There were unpaid rentals accrued from
April 1993 to December 1998, but the decedent passed away in
1989. Do these claims pass to the estate?
o
No, because the rentals accrued after his death.
o
The general rule is that heirs are bound by the contracts
entered into by the predecessor-in-interest.
o
Except if non-transmissible by:

1. Nature

2. Stipulation

3. Provision of law

Actions by and against executors and administrators




2. Person knows deed, bond, contract, conveyance, etc which
contains evidence or discloses the right, title, interest, or
claim of the deceased to real or personal estate
o
3. Person has deceased’s last will and testament:
o
What may the court do in these situations?

1. Examine the person on oath on such complaint

2. May use interrogatories

In writing and filed with clerk’s office

3. Punish for contempt

4. Commit to prison
An heir and an administrator are in conflict as to whether a
certain property must be included in the estate. What may the
court do?
o
It may pass upon the issue for inventory purposes.
o
BUT if there is third person who asserts right to property
contrary to decedent’s, court has no authority to resolve the
issue. Separate action instituted to recover the property.
Obando:
o
Co-administrator was removed for presenting forged will.
Removal was still on appeal.
o
Other guy became the sole administrator. Co-admin sued to
nullify sale he made.
o
Dismissed for lacking legal standing, but without prejudice. If
his case gets reversed, and his appointment restored, then
case may be re-filed without being barred by res judicata.
Villegas:
o
The civil liability that completely arose from criminal liability
was extinguished upon death. Cannot file claim against
estate.
o
Remember which claims survive and which don’t (culpa
criminal doesn’t, for instance, but culpa contractual does)
What if there is embezzlement before the letters are issued?
o
The fraudulent person is liable for double the value of the
property sold, embezzled, alienated, etc., for the benefit of
the estate
o
The E/A files the action
Who may file an action to recover property transferred in fraud
of creditors?
o
The E/A, with the prompting of the creditors (who pay for
expenses or give security)
o
If the E/A refuses to do it, the creditors can do it, if they:
o
What are the claims filed against the executor or administrator
by name?
o
1. Recovery of real/personal property
o
2. Claim for damages caused by the deceased
o
3. All other actions/claims that survive
What is the right of the E/A to bring or defend actions?
o
1. Recovery or protection of property or rights of the
deceased

As long as the action survives
o
2. May foreclose mortgages
When are heirs barred from suing?
o
When an E/A assumes the trust, heirs cannot file actions to
recover title or possession of property, or for damages until
there is an order by the court assigning the properties to such
heirs or the time for payment of debts has expired
o
What if there is no E/A appointed yet?

Heirs can sue even no administrator has been
appointed yet. (Here, cancellation of extrajudicial
settlement by other heirs)
What are the inequitable situations remedied under Sec. 6 that
may be filed by the E/A, heir, creditor, or any individual with
interest?
o
1. Property of deceased was concealed, embezzled, conveyed
away by another person




148
1. Pay expenses of the suit
2. Give bond

When is the bond not necessary?
o
When the property was
fraudulently conveyed in favor of
the E/A
What is the effect?

The creditors obtain a lien over the properties
recovered


o


Payment of debts of the estate





The estate sometimes has debts. In this case, how must they
be paid?
o
First, from the personal estate.
o
Second, from real property not disposed of by will.
o
Third, retention to meet contingent claims

Kept for within 2 years after the expiration of period
of claims by creditors

After 2 years, distribute property to heirs. But the
creditor, if the action ripens, may still go against the
heirs (not the estate anymore)
What is the time to pay the debts?
o
Not exceeding one year in the first instance
Can it be extended?
o
Yes, for not more than six months
What if the estate is insolvent?
o
Follow concurrence and preference of credits
When the estate of partner has become insolvent, how must
claims against his separate property be prioritized?
o
1. Those owing to separate creditors
o
2. Those owing to partnership creditors
o
3. Those owing to partners by way of contribution



Sales, mortgages, other encumbrances

2. Sale of personal property may injure business or
estate

…and the testator did not make provision for
payment of the debt (for both)
How can an interested person stop the court order granting
authority to sell?
o
Issue a bond to cover for claims of the creditors
When can there be sale of real or personal property upon
application of the E/A, even when it is not for the payment of
debts, legacies, or expenses?
o
1. When it is shown that it would be beneficial to the heirs,
devisees, legatees, and other interested persons
o
2. To pay debts or legacies in another country where it shown
that the estate in the other country is not sufficient – in a
probate proceeding in another country
What is the procedure involved?
o
1. E/A files petition to court setting forth debts due, legacies,
or expenses, character of property, plus facts showing sale is
beneficial
o
2. Court fixes time and place for hearing

With notice to interested persons

Optional: publication or otherwise
o
3. Court may require E/A to give additional bond conditioned
on accounting of proceeds of sale
o
4. Court authorizes sale, mortgage, or encumbrance – either
private or public
o
5. Record in ROP
Court, upon claim, may authorize conveyance of property to:
o
1. A person who contracted with deceased
o
2. Beneficiary where the deceased was a trustee
Sale of real property – must it be with consent of court?
o
Any disposition of estate property by an administration or
prospective heir pending final adjudication needs court
approval
o
Unauthorized disposition can be annulled by the probate court
without need for separate action
o
Can the intestate/probate court execute its order
annulling the sale?

It can. No need for separate court.

Can the court authorize sale/mortgage/encumbrance of real
property?
o
Yes.
o
When?

1. Personal estate is not sufficient to pay the debts.
Distribution and partition
149








Order of proceedings:
o
1. Pay obligations, expenses, inheritance tax, etc. first
o
2. Application by E/A or interested person to court for
distribution
o
3. Hearing
o
4. Court orders distribution
Who will pay expenses of administration?
o
E/A from the leftover of the property
o
OR heirs/distributees, from their shares
When is there distribution?
o
No distribution shall be allowed until payment of debt, funeral
expenses, giving of allowance to widow, admin expenses,
estate tax, etc.
N.B. Court doesn’t motu propio order distribution
o
Heirs/person requesting for distribution may file a bond if
they want distribution prior to payment of obligations
Palicte –
o
Heir can redeem properties sold, but cannot register in her
name yet, because that would be tantamount to distribution
without going through court.
Reyes
o
Barretto by will, left fishpond to wife Maria and who he
thought was his daughter, Salud. They executed project of
partition, which divided the fishpond between them.
Therefore, when Maria died, the probate court made a
judgment that Salud was not a legitimate daughter. Now,
project of partition is challenged; claim is that it is an illegal
compromise on her civil status. Held: Valid. Not a
compromise, because there was no litigation to be prevented.
The distribution was also based on will, and not the partition
per se. And the will prevails here.
o
When the court approved the project of partition, can it still
be contested?

No.

Normally, can be challenged before the order of
distribution
Crucillo v. IAC
o
Oral partition amongst heirs is valid.

But just see the rules on w/n it binds third parties
o
Proof: heirs exercised ownership over their shares
De Leon
o
Question is over inclusion of certain properties decedent
purportedly gave to his children inter vivos in inventory. RTC
issued an order stating those in the Motion for Collation are
subject to inclusion. Order was challenged, by Petitioners
stating that these properties were already titled in their name
and could not collaterally be attacked. CA: cannot challenge
Order for Collation because it has become final. HELD: CA
erred. The order is merely for inclusion in inventory which is
provisional. It is interlocutory. To talk about collation is
premature since there was no indication that debts have been
paid and the estate is ready for distribution.
Escheat








150
Who can institute actions for escheats?
o
The Sol-gen on behalf of the Republic.
Where does the solicitor general file the action?
o
In court of province of last residence
o
Or if outside Phils., where he has property
o
What court?

The provision says “CFI,” so now it’s the RTC
When will the hearing be held?
o
Hearing scheduled not more than 6 months from petition
What is the publication notice?
o
Publish 6 consecutive weeks
What is proved in the hearing?
o
Prove that there is no heir
Where does the property go?
o
Personal property  to municipality or city where he last
resided
o
Real property  municipality or city where it is located
o
What if the deceased never resided in the Philippines?

Whole estate assigned to municipality or city where
it is located
o
Purpose of escheated estate:

1. Public school in city/municipality

2. Charitable institutions and centers in
city/municipality
What is the other option?
o
Can establish permanent trust
If you are an heir up until when can you still recover an
escheated property?
Five years from the date of such judgment
Can a donee (but not an heir) recover the property?

Yes, he is an interested party, because he claims a
right to the escheated property. He may appear or
oppose petition for escheat.
What is the effect of a judgment in escheat?
o
Conclusive against all persons with actual or constructive
notice
Tan:
o
Solicitor General is now the one that files the complaint – but
then, allow City (old Rules)
o
39 years of absence without hearing of that person: enough –
can presume death
o
o



Guardianship







N.B. But in the Family Code, parents automatically have
administration over their children’s property. If the amount
exceeds 50K, then just file bond with court.
When can the guardian sell or encumber the property of the
ward?
o
1. The property of the estate is insufficient to maintain the
ward and his family
o
2. For education of the ward
o
3. For the benefit of the ward

Need not explicitly state that the alienation is for the
benefit of the ward, but one can show it by
implication – by establishing that it is for the wards’
benefit
o
How long does the order of sale’s effectivity last?

1 year from the order
o
What else can the proceeds of the sale be approved
for?

Investment of the same
Who is preferred to become the guardian?
o
The natural parent of the ward

Parent is preferred over other guardians unless there
is good reason shown. Mere allegation of moral
unfitness is not valid per se
o
In default –

1. Surviving GP; if several, court chooses

2. Older brother or sister over 21 unless unfit/DQ

3. Actual custodian over 21 unless unfit/DQ

4. Any other person, in court’s sound discretion
Procedure:
o
1. Petition
o
2. Time and place of hearing set
o
3. Give notice to all interested persons
o
4. Hearing conducted
o
Is publication needed?

No. This is not an affair that the public should be
apprised of.
What happens before hearing?
o
Social worker does case study on child
Who are incompetents?
o
1. Suffering from civil interdiction
o
2. Hospitalized lepers
o
Where do you institute petition for guardianship?
o
Where the minor or incompetent is found
o
Ex. Judge from La Union cannot take cognizance of case over
incompetent living in Pampanga
In what particular court, if the person is a minor (over person
or property)?
o
Family courts
For incompetent (not a minor) – as regards property:
o
Follow 300K/400K usual rule
o
This shows if MTC or RTC
If over person of incompetent (not a minor) regardless of
amount of property:
o
Always RTC
Who can petition?
o
Relative, friend, other person, or DSWD
o
Can the minor himself do so?

Yes, as long as he is at least 14 years old
What are the grounds?
o
1. Death, continued absence, incapacity of parents
o
2. suspension, termination, deprivation of parental authority
o
3. remarriage of surviving parent, if latter is unsuitable to
exercise parental authority
o
4. best interest of minor
Must a parent still apply for guardianship?
o
If the property of the child exceeds P50K you need to petition
for guardianship over the property




151
3. Prodigals
4. Illiterate deaf and dumb

Ex. Grade 3, mind of 6 year old, illiterate – shows
incompetence
o
5. Unsound mind
o
6. Those who cannot without outside care take care of their
property
To what situation can a spouse apply for guardianship over
property of the other spouse?
o
Family Code article where the spouse automatically assumes
administration over his/her spouse’s property only applies to
absent, separated-in-fact, abandoned spouse
o
DOES NOT apply to incapacitated spouses (here, stroke)
What is the extent of guardianship powers?
o
Power of guardianship does not include alienation
o
But heirs’ receipt of proceeds is deemed a ratification
Can the guardianship court pass upon issues of ownership?
o
No. The guardianship court cannot pass upon issues of
ownership. It is the duty of the guardian to bring the proper
action.
What are the conditions of the bond of the guardian?
o
1. Inventory within 3 months of appointment or discovery of
property
o
2. Faithfully execute duties of trust for ward’s best interest
o
3. Render account: a) upon order of the court or when
required by the rules, and b) upon termination of
guardianship

Contrast with settlement of estate: in
settlement, account is every one year
o
4. Perform all orders of the court
What are the duties of the guardian?
o
1. Settle accounts of the ward
o
2. Demand, sue for, and receive all debts due

May compound or discharge, on receiving fair and
just dividend of the estate and effects
o
3. Appear and represent the ward in actions and special
proceedings
Can the guardian join in partition proceedings of property held
by the ward as a joint or co-owner?
o
o






Yes, but after hearing only, with notice to the relatives of the
ward and upon establishing necessity and propriety of the
action.
When is the guardianship required to render an inventory to
court?
o
1. 3 months from appointment
o
2. 3 months from discovery of property not included in the
original inventory
o
3. Inventory and account from application of an interested
person
Grounds to terminate guardianship?
o
1. Became insane or otherwise incapable of discharging his
trust
o
2. Wasted or mismanaged the estate
o
3. Failed to render account or return for 30 days
o
4. Resigned from position
o


Trustees




152
Who is a trustee?
o
Can be made to carry in effect the provisions of a will or a
written instrument
o
Appointed/confirmed in the probate court (if carrying out a
will) or the RTC where the property is located (for written
instrument)
When can the court appoint a new trustee under a will or under
a written instrument?
o
1. When the testator in aw ill omitted to appoint a trustee in
the Philippines, and such appointment is necessary to carry
into effect the will’s provisions
o
2. When a trustee under a written instrument declines,
resigns, dies, or is removed before the object of the trust is
accomplished
o
What is the power of the new trustee?

Same as the powers of the original trustee
What if a trustee for property in the Philippines is appointed by
an instrument abroad?
o
Must apply for appointment as trustee before the local courts,
or else, the trust can be declared vacant
What are the conditions of the bond?
o
1. Make an inventory of all real and personal property
belonging to him as trustee
2. Faithfully discharge trust according to law, will, or
instrument
o
3. Render account at least once a year, and upon court order
o
4. Upon expiration of trust, settle accounts in court and
deliver property
What are the requisites for the removal and resignation of the
trustee?
o
1. Petition by party beneficially interested in the trust
o
2. Notice to the trustee
o
3. Hearing
What are the grounds for removal and resignation of the
trustee?
o
1. Essential to interest of petitioners
o
2. Became insane
o
3. Incapable of discharging the trust or is unsuitable therefore
o
4. Resignation
May the trustee sell the property?
o
Yes, but only upon court approval and after proving that it will
best effect the objects of the trust



Adoption

2. Must be living at least 3 years in the Philippines
before adoption application and maintains residence
until the adoption decree is entered.

EXCEPT:

1. Former Filipino seeking to adopt relative
within 4th degree of consanguinity

2. Married to Filipino spouse and seeking to
adopt the latter’s relative within 4th degree
of consangunity

3. Married to Filipino spouse and seeking to
adopt the latter’s legitimate son/daughter

3. Certified by diplomatic or consular office that he
has legal capacity to adopt under his laws

4. At least 27 years old and 16 years older than
adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptee’s parent
o
Qualifications for adopter under inter-country adoption act:

Same as common qualifications, plus:

1. Country has diplomatic relations with the
Philippines

2. At least 27 years old and 16 years older than
adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptee’s parent

3. If married, the spouse must jointly file for
adoption

4. Has capacity to act under national laws and
undergone counseling in the Philippines

5. Agrees to uphold UNCRC, Philippine Law, and R&R
of Inter-country adoption act
Where to file application for adoption?
o
Domestic: RTC where adopter resides
o
Inter-country: RTC where adoptee resides
Who must adopt?
o
Husband and wife, jointly
o
What are the exceptions?

1. Spouse adopting LC of the other

2. Spouse adopting own child

Other spouse must consent

3. Spouses legally separated

o
Distinguish qualifications of a domestic adopter, from an alien
adopter under RA 8552, from an alien adopter under ICAA:
o
Common qualifications of the adopter –

[Capacity]

1. Legal age

2. Full civil capacity and legal rights

3. At least 16 years older than the adoptee, except:

Adopter is biological parent

Adopter is spouse of adoptee’s parent

[Personal characteristics]

4. GMC and not convicted of crime involving moral
turpitude

5. Emotionally and psychologically capable of taking
care of child

6. In a position to provide care/support
o
Qualifications of an alien adopter –

Same as common qualifications, plus:

1. Country has diplomatic relations with the
Philippines


153





What are the legal effects of adoption?
o
1. All legal ties between the biological parents and the
adoptee are severed

Except when it is the biological parent that is the
adopter
o
2. The adoptee becomes the LC of the adopter
o
3. Adopter and adoptee obtain reciprocal successional rights
(just them)
When can adoption be rescinded?
o
1. Repeated physical or verbal abuse by adopter
o
2. Attempt on life of adoptee
o
3. Sexual assault or violence
o
4. Abandonment/failure to comply with obligations
Who may rescind the adoption?
o
Just the adoptee. The adopter can never rescind the
adoption.
What is the effect of rescission?
o
1. It restores the parental authority of the biological parents,
if the adoptee is still a minor or incapacitated
o
2. The amended birth certificate is cancelled
o
3. Rights to succession are restored, but not as far as there
are already vested rights
When is inter-country adoption allowed?
o
Only as a last resort, and when it is in the best interest of the
child.


Habeas corpus, Writ of Amparo
WHC



Case study: There was a child who was left outside of the house of
a childless couple and having noticed that no one is claiming the
child, the couple adopted the child. But they secured a birth
certificate and filled in the child’s details (simulation of birth),
without applying for legal adoption. The child grew up and when
she applied for a visa to the US, she was denied because she was
found to not be the natural child of the mother (who is sterile).
What are implications and what actions must be taken to correct
the situation?

Under jurisprudence, include the child as well and
the declared parent of the child, and those whose
hereditary rights are affected (ex. Grandparents)
2. Get certification that the child was neglected or abandoned
o
Do you need a judicial declaration that the child was
neglected or abandoned?
o
NO. You just need a certificate from DSWD from an
administrative proceeding. (Take note of this; new law and
never asked in the Bar.)
3. Legal adoption


1. Petition for correction/cancellation of entries, because the birth
certificate is false
o
Where do you file it?

The place where the entry was made or recorded
o
Who are the parties; who are impleaded?

Only the civil registrar (under the ROC)
154
When can you file a Petition for Habeas Corpus?
o
There must be 1. ARREST and 2. DETENTION
o
What if it is mere disappearance?

H.C. does not apply

File a criminal case
What must be the nature of the arrest/detention?
o
It must be unlawful or illegal. It cannot be pursuant to a
valid arrest/detention.
Contents of petition for HC?
o
1. Person imprisoned on whose behalf petition is filed
o
2. Officer or person under whom he is restrained or
imprisoned; if unknown, officer’s assumed appellation; person
upon whom writ is served is deemed the person intended
o
3. Place where he is detained if known
o
4. Copy of commitment or cause of detention of the person if
it can be produced without impairment of efficiency of the
remedy; if without legal authority – state it
Return of WHC:
o
1. Whether or not he has the party in his custody or power, or
under restraint
o
2. If he does, the authority and cause thereof – with a copy of
the writ, order, or process
o
3. If the person cannot be produced, the nature or gravity of
sickness or infirmity which is the reason why he cannot be
produced in court without danger
o
4. If transferred to another person: to whom, for what cause,
when, and under what authority






What is the difference between preliminary citation and a
peremptory writ of HC?
o
Preliminary citation:

requires respondent to appear and show cause why
the peremptory writ should not be granted
o
Peremptory writ:

unconditionally commands the respondent to have
the body of the detainee produced before the court
When is a WHC disallowed or discharged?
o
1. Person is lawfully detained or convicted
o
2. Jurisdiction appears after the writ is allowed; cannot use
defect in the process, judgment, or order as reason to
discharge the writ
Detention in violation of the right to speedy disposition of
cases, and the petition for such is denied by the court, what
can you do?
o
File petition for Writ of H.C.
What is post-conviction petition for HC?
o
Under rules on DNA evidence, even after conviction, if the
testing shows that there is no basis for the
conviction/detention, you can file petition for HC
Where can WHC be filed?
o
RTC, CA, or SC
What is WHC on custody of minors?
o
Not a regular WHC. Unlike in ordinary WHC where there is no
pre-trial, there is pre-trial here.
o
See example below.
o
X married Y, but were separated in fact. X requested Y
for some time with their child Z. Y allowed, but X never
returned Z. What is the remedy?

Habeas corpus on custody of minors.




WOA


What is the Writ of Amparo?
o
Also instituted in the RTC, CA, SC
o
Can be filed at any time of day or night
o
Does not just extend to actual or committed acts, but also to
threatened acts
o
Who can file it?

Not just the victim or family members

Extends to religious institutions or NGOs


155
What is the Writ of Habeas Data?
o
Also instituted in RTC, CA, SC
Contents of petition for amparo?
o
1. Personal circumstances of petitioner
o
2. Name and personal circumstances of respondent, or
description/assumed appellation
o
3. Right to life, liberty, security threatened by respondent
(affidavit detailing how)
o
4. Investigation conducted, and identity of investigator
o
5. Actions and resources taken by petitioner to determine fate
of aggrieved, and identity of respondent
o
6. Relief prayed for
Return of WOA, within 72 hours:
o
1. Lawful defenses to show no violation
o
2. Steps or actions taken by the respondent to determine fate
of aggrieved party and persons responsible
o
3. All relevant information in respondent’s possession
o
4. If public official or employee, the actions taken to:

a) verify identity of aggrieved party

b) recover and preserve evidence

c) identify witnesses

d) determine cause, manner, location, time of death
or disappearance

e) indentify and apprehend the person or persons
involved

f) bring suspected offenders to court
o
Is a general denial of allegations allowed in WOA?

No, unlike in Habeas Corpus.
o
What is the omnibus waiver rule in WOA?

All the defenses not raised on the return are deemed
waived
What is the consequence of failure to file return?
o
Ex parte hearing
Can there be institution of separate civil, criminal, or
administrative action notwithstanding a petition for WOA?
o
Yes.
What is the effect of filing a criminal action?
o
The petition for WOA is always consolidated with it, whether
filed ahead or later
What is the quantum of proof required for petition for WOA?
o
Substantial evidence
o
Remedy
Petitioner
Venue
On the defense?

Private persons: ordinary diligence in duties

Public officials: extraordinary diligence in duties
Habeas Corpus
To all cases of
illegal confinement
or detention: 1)
person is deprived
of liberty, or 2)
rightful custody of
any person
withheld from the
person entitled
thereto
Party for whose
relief it is
intended, by some
other person on
his behalf
SC, CA, or SB
RTC:
1)
Plaintiff’s
residence
2)
Defendant’s
residence
3)
Where nonresident
defendant is
found
Amparo
Any person whose
right to life, liberty,
and security is
violated/threatened
by unlawful act or
omission of public
official, public
employee, or private
individual/entity
Aggrieved party, or
any qualified person
or entity in the order
in sec. 2: (1.
Immediate family
member, 2. Relative
to 4th degree of
consanguinity, 3.
Concerned citizen,
org, assoc, etc.)
SC, CA, or SB:
Manila
RTC where the
violation occurred,
or any of its
elements
N.B. if the writ is
issued by a higher
court, the writ is
returnable to it or
any of the lower
courts (e.g. for SB,
either there or RTC.
For SC, either CA,
SB, or RTC)
Habeas Data
…same as
amparo, but the
person must be
engaged in 1)
gathering, 2)
collecting, 3)
storing data or
information
regarding the
person
In general:
aggrieved party
Except for EJ
killings and
enforced
disappearances:
1) immediate
family, 2) in
default, relative
to 4th degree of
consanguinity
Issuance
of writ
Immediately once
it appears
Summary
hearing
Upon filing of
return
Service
Return
Penalties
N.B. no
concerned
citizen, etc.
SC, CA, or SB:
Manila
RTC: 1) where
petitioner
resides, 2)
where defendant
resides, or 3)
has J over place
where data is
gathered, etc.
Interim
reliefs
Served on person
to whom it is
directed; if cannot
be found or not
with custody, then
to person with
custody
Signed and sworn
to if prisoner not
produced
N.B. no period
specified for
return
Clerk who doesn’t
issue writ.
Person fails to
make return,
makes false
return, refuses to
deliver person
demanding (within
6 hours) the copy
of warrant or
order of
commitment
1)
2)
156
Court may
adjourn for
good cause
and make
order for safe
keeping of
person
If person
cannot be
produced due
When in its face,
ought to issue
immediately
Not later than 7
days from issuance
Why is it like this?
This way, it’s not
dependent on the
filing of the return
If cannot do it
personally, then
substituted service
Verified written
return
Same as
Amparo, but
within 3 days
Not later than
10 working days
from issuance
Same as WOA
Same as WOA
Within 5 WORKING
days from service,
without extension
Clerk who doesn’t
issue writ.
Deputized person
who doesn’t serve
the writ.
Person fails to make
return, makes false
return, or
disobeys/resists
lawful court order.
1) Temporary
protection order
2) Inspection order
(5 days)
3) Production order
(of documentary
or object or
electronic
evidence)
4) Witness
Same as WOA
Judgment
Appeal
to grave
illness, court
must be
satisfied that
he cannot be
produced
without
danger
Discharge from
confinement
Ordinary appeal,
48 hours from
notice of judgment
protection order
If court cannot
proceed due to
failure of petitioner
or witnesses to
appear due to threat
to lives, it should
NOT dismiss the
petition; just archive
the case.
N.B. 2 and 3 are
both available to
respondent as well
Judgment within 10
days. If proved by
substantial
evidence, grant
reliefs as applicable.
Standard of
evidence?

Substantial
evidence
Diligence required
for defense?

Private person:
ordinary
diligence

Public official:
extraordinary
diligence
Rule 45 – petition
for review on
certioriari with
peculiar features:
1) Appeal may
raise
questions of
law, fact, or
both
2) Appeal 5
working
days from
notice of
judgment
3) Same
priority as
habeas
corpus
cases
Same as
Amparo, but in
addition, the
judgment must
be enforced by
sheriffs or court
officers within 5
days
Separate
actions
Same as WOA
Revival rule:
Court conducts
periodic review of
archived cases and
revives them if they
can proceed.
Dismiss case with
prejudice if 2 years
have lapsed from
archival.
Allowed
Same as WOA
When there is
criminal case,
cannot file for writ.
But reliefs allowed.
Always consolidate
with the criminal
action
Change of name (103)


Archiving rule:
157
When can you ask for change of name?
o
1. Name is ridiculous, dishonorable, extremely hard to
pronounce
o
2. Change will avoid confusion
o
3. One has been continuously known as that name
o
4. Surname causes embarrassment and the desire to change
it is not for a fraudulent purpose
o
5. Consequence of change of status
Can a person have the child’s Filipino middle name dropped for
the purpose of integration with the Singaporean community?
o
No.



Where to file for change of name?
o
Surname: always in the courts
o
First name:

Local civil registrar:

If clerical

If any of three grounds in section 4 of RA
9048

Courts:

Everything else
What to file?
o
1. That petitioner is a bona fide resident of province where
petition was filed for at least (3) years prior to the date of
such filing
o
2. Cause for which change of petitioner’s name is sought
o
3. Name asked for
RA 9255 –grounds by which an illegitimate child can use the
father’s surname:
o
1. Filiation recognized by father in civil register
o
2. OR Admission in public document or private writings
o
N.B. But the father can institute action for non-recognition
anytime during his lifetime
Name of law
Subject matter
Change of full
name
(substantial
correction)
Who may file
Person desiring
to change name
Venue
RTC of province
where petitioner
has resided the
past 3 years;
City of Manila:
Juvenile and
Domestic
Relations Court
1) petitioner is
bona fide
resident (3
years)
2) cause
3) name asked
for
1) name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) consequence
of change of
status
3) necessity to
avoid confusion
4) continuous
used and known
Cancellation or correction of entries in the civil registry (108)




Petition
contents
Notice given to:
o
LCR
o
All persons interested
How long is publication?
o
3 consecutive weeks (once a week)
Tenor of proceedings: Summary, but not if there are substantial
changes: adversarial
o
For instance, if it is nullity or annulment, then it must be in
adversarial proceedings
o
But see RA 9048 –

Removed from ambit of 108 typographical and
clerical errors, and change of first name/nick name
under the three stated grounds
Differentiate sex change from intersex persons and
implications on change of name:
o
Cagandahan case: natural change in sex – allowed change of
sex and name
o
Silverio case: sex change procedure – did not allow
Grounds
158
103
Change of name
108
Correction or
cancellation of
entries in civil
registry
Change or
corrections in
civil entries
(substantial)
Person
interested in any
matter
concerning
recorded civil
status of person
RTC of city or
province where
the registry is
located
SAME as 103
Good and valid
grounds
RA 9048
Clerical Error Act
Change of first
name, nick
name, and civil
entries
(typographical
or clerical
errors)
Person with
direct and
personal interest
in correction
1) LCR of city or
municipality
where record is
2) LCR of place
where interested
party is residing
3) Phil.
Consulates
1) facts
necessary to
establish merits
2) particular
erroneous entry
1) Name
ridiculous,
tainted with
dishonor,
extremely
difficult to
write/pronounce
2) new first
name or
nickname
habitually and
continuous used,
and publicly
known
Proceeding
Notice
Appeal
by Filipino
name, unaware
of alien
parentage
5) sincere desire
to adopt Filipino
name to erase
signs of alienage
Judicial
3) avoid
confusion

Administrative
Once a week for
3 consecutive
weeks in
newspaper
(notice of
hearing)
Summary (but
adversarial if
there are
substantial
changes)
Once a week for
3 consecutive
weeks in
newspaper
(notice of
hearing)
Not 30 days
prior to election;
not within 4
months of last
publication of
notice
CA
CA
Civil Registrar
General
Appeal

Once a week for
two consecutive
weeks (publish
affidavit)
Posting

Family home


Do you need a judicial declaration of a family home?
o
No more. It’s automatically constituted, under the Family
Code.

Appeal can be taken from what orders or judgments in
settlement of estates?
o
1. Allowance/disallowance of wills
o
2. Determines who are the lawful heirs of a deceased person
or distributive shares
o
3. Allows/disallows a claim, or claims presented on behalf of
the estate to offset a claim against it
o
4. Settlement of account of executor/admin/guardian
o
5. Final determination in lower court of rights of the party
appealing
o
6. Final order or judgment rendered in the case, affecting
substantial rights of appealing person, unless it is an order
granting/denying MBT/MR
Can the appointment of a Special Administrator be subject of
appeal?
o
No.
What is the mode of appeal?
o
Record on appeal
Venue
Settlement of
estate
Absentees

3. Intestate heirs
4. With interest over absentee’s property hinged on
suspensive condition of death
When can it be filed?
o
1. Two years from disappearance and without news about
absentee
o
2. Five years, in case he left an administrator in charge of his
property
o
o
Resident: where
residing;
Non-resident:
where property
is
What is the purpose of the rule?
o
1. For the declaration of a representative or
o
2. Declaration of absence and appointment of a trustee or
administrator
Who may file?
o
1. Spouse present
o
2. Testate heirs (must present an authentic copy of a will)
159
Reglementary
period
Record on
appeal – 30
days
Publication
rule
EJ settlement: 3
weeks pub (of
fact of
settlement)
Summary
settlement: 3
weeks pub (of
time and date of
hearing)
[3 weeks
successively for
proving will]
Postal service 20
days before
hearing,
personal service
10 days before
hearing
Escheat
Guardianship
Court in
province of last
residence
Non-resident:
where estate is
located
Person of minor
– in Family court
where minor
resides ;
Record of appeal
– 60 days
Record on
appeal – 30
days
Plaintiff’s
residence
Defendant’s
residence
Claims: 3 weeks
successively,
posted: 4 public
places in
province, 2 in
municipality
Once a week for
6 weeks
(hearing though
is at least 6
months after
order of court)
Amparo
Habeas data
None
Property of
minor – same
Person of
incompetent,
not minor – RTC
of residence
Adoption
Habeas corpus
Property of
incompetent not
minor – follow
300k/400k rule
Venue: Family
court of the
province or city
where the
adoptive parents
reside
SC, CA, SB
Change of
name
Record on
appeal – 30
days
Ordinary appeal,
None
Correction or
cancellation
Clerical or
typographical
error – 9048
None
160
OR
Non-resident
defendant,
where property
found
Manila: SC, CA,
SB
RTC with
jurisdiction over
where violation
or any of its
elements
happened
Manila: SC, CA,
SB
Plaintiff’s
residence
Defendant’s
residence
OR
RTC with
jurisdiction
where data is
gathered,
collected, stored
RTC of plaintiff’s
residence for 3
years
Manila: Juvenile
and Domestic
relations court
RTC with
jurisdiction over
place of registry
LCR where
record is,
LCR of
residence, or
48 hours from
notice
Rule 45, but can
raise issues of
law and fact,
and within 5
days
None
Rule 45, but can
raise issues of
law and fact,
and within 5
days
None
Record on
appeal
Once a week for
3 weeks
Record on
appeal
Once a week for
3 weeks
Civil Registrar
General
Once a week for
2 weeks
(affidavit
published)
Phil. consulate if
nonresident
o
o
ENVIRONMENTAL CASES
o
o

What is the scope and applicability of the rule?
o
Involves all civil, criminal, and special proceedings cases
pending before courts involving enforcement and violation of
all environmental and related laws
o
Ex. Forestry code, Water code, Sanitation code, LLDA act,
Toxic substances and hazardous waste act, IPRA, Mining act,
Fisheries code, Clean Air act, Chainsaw act, etc.
o
Civil Procedure




What is the rule on TROs?
o
Except for the SC, no court can issue a TRO or preliminary
injunction against lawful acts of government agencies
enforcing environmental laws
What happens in pre-trial?
o
The parties are under oath in all PTCs.
o
The judge must exert best effort to arrive at a settlement of
the dispute.
o
What is a consent decree?

It approves the agreement made by the parties in
accordance with law, morals, public order, and public
policy to protect right to balanced and healthful
ecology
What are the prohibited pleadings and motions?
o
1. Motion to dismiss complaint
o
2. Motion for bill of particulars
o
3. Motion for extension of time to file pleadings

Except to file an answer, where at most 15 days can
be given
o
4. Motion to declare defendant in default
o
5. Reply and rejoinder
o
6. Third party complaint
What is a Temporary Environmental Protection Order (TEPO)?

What
o
o
o
o

What
o
o
o

161
What
o
It is issued when the matter is of extreme urgency and
applicant will suffer from grave injustice or irreparable injury
Who may issue it?

Executive judge of multi-sala court or presiding
judge of a single-sala court
How is it issued?

Ex-parte
How long is it effective?

72 hours from date of receipt, unless there is
summary hearing within the period to determine
whether the TEPO should be extended until the end
of the case
When can a TEPO be dissolved?

If it appears after the hearing that its issuance or
continuance would cause irreparable damage to the
party enjoined, and the applicant can be
compensated adequately

How is the applicant compensated?

The enjoined party has to file a bond
reliefs can the court grant in a citizen suit?
1. Proper reliefs including protection, preservation, or
rehabilitation of the environment
2. Payment of attorney’s fees, costs of suit, litigation
expenses
3. Require violator to submit program for rehab or restoration
of the environment

Costs borne by the violator
4. Require violator to contribute to a special trust fund for
that purpose
is a PEPO and writ of continuing mandamus?
It is a permanent Environmental Protection order. The court
can convert a TEPO into a PEPO.
The court can also issue a writ of continuing mandamus which
requires performance of certain acts effective until judgment
is fully satisfied
How can the court monitor this?

Can require continuing reports to be filed
is a SLAPP?
It is a Strategic Lawsuit Against Public Participation – a legal
action filed to vex, harass, exert undue pressure, or stifle any
o
legal recourse that a person, institution, or the government
has taken or is taking to enforce environmental laws
What is the relevance of this?

When a suit is filed against the aforementioned
persons, they can launch the defense that the suit is
a SLAPP and the court will have the plaintiff prove
that it’s not

5 days for plaintiff to respond, and summary hearing
within 15 days from comment or expiration of the 5
day period

Special proceedings

What is a Writ of Kalikasan?
o
Remedy available to natural/juridical person or entity
authorized by law, PO, NGO, or registered public interest
group, on behalf of persons whose right to a balanced and
healthful ecology has been violated or threatened with
violation – involving environmental damage of such
magnitude as to prejudice life, health, or property of
inhabitants in two or more cities or provinces
o
Contents of the petition?

1. Name and personal circumstances of petitioner

2. Name and personal circumstances of respondent,
or his assumed appellation

3. A) Environmental law, rule, or regulation violated
or threatened to be violated, and B) the act or
omission complained of, and C) the environmental
damage of such magnitude as to affect life, property,
or health of inhabitants in two or more cities or
provinces

4. Evidence to be presented

5. CNFS

6. Reliefs prayed for
o
Where filed?

CA or SC
o
What are the prohibited pleadings and motions?

1. MTD

2. Motion for extension of time to file a return

3. Motion for postponements

4. Motion for BOP

5. Counterclaim or cross-claim

6. Third-party complaint

7. Reply

8. Motion to declare respondent in default
o
What are the discovery measures that a party may file
in a verified motion?

1. Ocular inspection

2. Production or inspection of documents and things

What are these for?

To establish magnitude of the violation or
threat
What is a writ of continuing mandamus?
o
See above – this can also be a relief under special
proceedings to enjoin a government agency or instrumentality
to perform in connection with a law preserving or protecting
the environment
Criminal procedure




162
Who may file?
o
Any offended party, peace officer, or public officer charged
with enforcement of environmental law
Rule on institution of criminal and civil actions?
o
Same rule as usual; civil is deemed filed along with the
criminal unless waived, reserved, or filed ahead
When can there be arrest without warrant?
o
1. In flagrante delicto
o
2. Offense has just been committed and he has probable
cause to believe based on personal knowledge that the person
arrested just committed it

Does the presumption of regularity apply here?

Yes, for individuals deputized by
government to enforce environmental laws
What is the procedure for custody and disposition of seized
items?
o
In accordance with laws or rules by the government agency
concerned. If none, follow the default rules:
o
1. Inventory and photograph where seized
o
2. Submit to court within 5 days of issuance of search warrant
or from seizure if warrantless arrest
o
3. Auction sale of seized items upon motion of any interested
party
Notice to accused, person from whom items were
seized, owner thereof, government agency
concerned

Posted in three conspicuous public places in the city
or municipality where seized

Proceeds held in trust and deposited with authorized
government bank until disposition
is the rule on bail?
1. Bail filed where case is pending
2. If the judge is unavailable, with any RTC or MTC judge in
the province, city, or municipality
3. If arrested in any city, province, or municipality other than
where the case is filed – can file bail with any RTC of said
place, or if none, with any MTC judge
happens in arraignment?
It is set within15 days from acquisition of jurisdiction over the
accused, with notice to the public prosecutor and offended
party, or government agency that it will enter into pleabargaining on the date of arraignment
What happens when the prosecution and offended
party agree to the plea bargain of the accused?

1. Court issues order containing the plea-bargain

2. It then receives evidence on the civil aspect of the
case, if any

3. It renders and promulgates judgment of
conviction, including civil liability for damages
happens in pre-trial?
1. Set within 30 days from arraignment

May refer to branch COC for preliminary conference
at least 3 days before pre-trial
2. During pre-trial, judge:

Places parties under oath

Adopts minutes of preliminary conference and
confirms markings of exhibits, admission of
documents, etc.

Scrutinizes the information and statements in
affidavits to determine:

Court’s territorial jurisdiction as re offenses

Qualification of expert witnesses

Amount of damages

Defines factual and legal issues


What
o
o
o

What
o
o

What
o
o
Asks parties to agree to specific trial dates
Requires parties to submit to the COC the witnesses
to be subpoenaed

Considers modification of trial order if there is a
lawful defense interposed
What is the rule on questions?

All questions and statements must be directed to
court
What is the rule on admissions and agreements, to bind
accused?

Must be signed by accused and counsel
When is the PTO issued?

Within 10 days from termination of pre-trial
is the rule on subsidiary liability?
When the accused is convicted and subsidiary liability is
allowed by law, the court may, upon motion of person entitled
to recover, enforce subsidiary liability against a person or
corporation subsidiarily liable under the RPC


o
o
o

What
o
Evidence


163
What is the precautionary principle?
o
When there is lack of full scientific certainty in establishing a
causal link between human acts and environmental damage,
the burden of proof that it is not harmful falls on those taking
the purportedly harmful action or policy
o
What is given the benefit of doubt?

Constitutional right of people to a balanced and
healthful ecology
o
What are considered in applying the precautionary
principle?

1. Threats to human life or health

2. Inequity to present or future generations

3. Prejudice to the environment without legal
consideration of the environmental rights of those
affected
What is the rule on documentary evidence?
o
1. Photographic, video, or similar evidence of events, acts,
transactions of wildlife, by-products, or derivatives, forest
products or mineral resources subject of a case are
admissible if authenticated by the person who took the photo,
o
a person present during its taking, or some other person
competent to authenticate it
2. Entries in official records in the performance of duty of a
public officer are prima facie evidence of the facts stated
therein
164