Remedial Law & Ethics Bar Exam Reviewer

THE PRE-WEEK REVIEWER FOR JfYfERY BAR TAKERS VOLUME IV REMEDIAL LAW AND LEGALAND JUDICIAL ETHICS Maria Filomena n. Singh AB English, University ofthe Philippines0989), Cum Laude Juris Doctor, Ateneo De Manila University (1991), Second Honors LL M. (lntemational Legal Studies), American University Washington College of Law (2010), Hubert K Humphrey Fellow Ass6ciateJustice, Court ofAPpeals Examiner, Remedial Law,,2019 Bar Examinations Professorial Lecturer, A.teneo De Manila University School of Law, University of the Philippines College of Law, University.of Sto. Tomas College of Law, Lyceun� of tile Philippines College of Law Member, Remedial Law Department and Civll Law Department, Philippine Judicial Academy Ma:. Soledad Derlquito-JKawis AB Political Science; University. of the Philippines (1983), Cum Laude LL.B., U1¥versity of the Philippines, College of Law Dean, Lyceum ofthe Philippines University ·Professorial I.ectnret"; University.of the Philippines College of Law, University of Sto. Tomas College oH.aw, '.De La Salle University .and Adamson University Former Chairperson and· President,. Philippine Association of Law Schools · Mawis Law Office Lecturer, Civll Law Dqjartment; Philippine Judicial Academy Member, Post Validation Bar Examinations in Remedial Law . . . . �h.urµiist; Philipp�e Daily Inquirer Subject Malter � iri the DOJ�IDLO Project on the Executive Prosecution pf Crimes lnyolvingWoinen and Children Victoria v. I:;oanzon A.B. Sociology, Minor in Psychology, Cum laude; Maryknoll College M.A. Urban-Regional P�giU.P/School of Urban°Regional Planning Post-graduate Diploma in Planning, Housing and 'Building, Dutch Fellow, . Bouwcentrum,.Rotterdam, .The Netherlands Bachelor of laws, U.P. College o&Law;·M,einber of the Order of Purple Feather Li�EnYirotimental Planner Former Associa� Dean, U.E. · College of Law Former Senior Associate, ACCRA Law Offices Professorial Lecturer:. D):.SU College 9f law, FEU Institute of Law, Lyceum of the Philippines College of Law, Ma,nila Law COiiege, U.P. College of Law and UST Faculty bfCivil law. Assisted By: Ms. Patty Reyes Book Store Nicanor��-$c,c·•. ,. : 873&:o567/8733'6746. m Bldg., (;.t,I; Recto Avenue os.: 8522-4521/8522-4107 11a, P11111· · nes PREFACE Jittery Bar Takers This is the first time, to our knowledge, that brings together all the Bar subjects in one work. Yes, there are four volumes - but there are also four Sundays. This work seeks to help Bar Takers who want to quickly review basic concepts the week before the Bar examination. This work presumes that all possible cases and books have been read during the review period and throughout law school, hence, you will not find too many definitions or much discussion unless it is a matter oft-taken up in the Bar. Thank you to all who supported this need for the jittery Bar Takers, and to Rex Publishing, who. are as excited as we are. iii ACKNOWLEDGMENT Jittery Bar Takers II iv Friends, who are experts in the respective fields of law, will always strive to help others succeed in the practice of law. We are grateful for our friends and our families that constantly support our quest for justice and equity in our country. We shall continue, to the best of our abilities, to help the jittery Bar Takers in the dream of becoming a lawyer. V CONTENTS REMEDIAL LAW COMPARATIVE MATRIX OF TIIE 1997 RULES OF CIVIL PROCEDURE AND TIIE 2019 AMENDMENTS TO TIIE 1997 RULES OF CIVIL PROCEDURE RULE6 Kinds of Pleadings ....... .. ................ ................ ...... ................ RULE7 Parts and Contents of a Pleading........................................ RULE8 Manner of Making Allegations in Pleadings....................... RULE9 Effect of Failure to Plead ... ........ ......... ...... ...... .... ........ ......... RULE 10 Amended and Supplemental Pleadings ......... ..... ...... ........ RULE 11 When to File Responsive Pleadings.................................. RULE 12 Bill of Particulars................................................................ RULE 13 Filing and Seivice of Pleadings, Judgments and Other Papers ......... .......... ........... ... ........ ................. ........... RULE 14 Summons............................................................................ RULE 15 Motions ..... ........... .......... ..... .......... ... ........... ... ..................... RULE 16 Motion to Dismiss .............................................................. RULE 17 Dismissal of Actions........................................................... RULE 18 Pre-Trial.............................................................................. RULE 19 Inteivention ........................................................................ RULE 20 Calendar of Cases............................................................... RULE 21 Subpoena............................................................................ RULE 22 Computation of Time......................................................... RULE 23 Depositions Pending Actions............................................. RULE 24 Depositions Before Action or Pending Appeal .... ............ RULE 25 Interrogatories to Parties.................................................... RULE 26 Admission by Adverse Party.............................................. RULE 27 Production or Inspection of Documents or Things.......... RULE 28 Physical and Mental Examination of Persons................... RULE 29 Refusal to Comply with Modes of Discovery .......... ........ RULE 30 Trial..................................................................................... RULE31 Consolidation or Severance............................................... RULE 32 Trial by Commissioner....................................................... vi vii 3 23 46 76 84 93 102 105 129 195 212 216 222 284 296 297 306 307 345 350 355 360 365 367 374 388 395 RULE 33 Demurrer to Evidence........................................................ RULE 34 Judgment on the Pleadings................................................ RULE 35 Summary Judgments.......................................................... 404 418 420 THE CODE OF PROFESSIONAL RESPONSIBILOY THE LAWYER AND THE SOCIE1Y (Canons 1-6) LEGAL AND JUDICIAL ETHICS PRIMER IN LEGAL AND JUDICIAL ETIIlCS Definition Scope of the Practice of Law .......................................................... . Primary Characteristics Which Distinguish the Legal Profession from Business .............................................. . Requisites for Admission .................................................................. . Continuing Requirements ................................................................. . Distinctions ....................................................................................... . Appearance in Courts, Tribunals and Administrative Bodies ........ . Other Exceptions .............................................................................. . Barangay Proceedings ............,......•.................................................... Administrative Bodies .............................. ,........................................ . Court-Ordered Mediation ................................................................. . Student Practice Rule ...............,.............................................. ·........•... Graduated Certifications ......................................................... . Requiremeq.t ··········--.······••.•·······,······························••.•·····,·········· Limited Areas.of Practice .......................................... ,............. . Appearances ........ ,.............. ,......, ............................................ . Sanctions .......................... . Lawyers without·Authority ...•.,.,....·............................................ . Non-lawyers ................... _........................................................... . Applicability of the Code of Professional Responsibility to Government Lawyers ......... ,........ ,....................................... . Absolute Prohibitions/Disqualifications .......................................... . Constitution .....................:........................................................ . Code of Conduct and· Ethical Standards for Public Officials ........................................................ . Partial Prohibitions/Disqualifications ..................................... . Local Government Code ................................. . Rules of Court/DOJ and Ombudsman/Code of Professional Responsibility ........................................... . Civil Service Rules ................... :.............................................. . Lawyers Representing Government ..... ,........................................... . Rule Governing the•Discipline ·of Lawyers in Government Service ................................................................ . Lawyer's Oath (Form 28 of the Judicial Standard Forms) .............. . The Lawyer's Oath ······••.•···················'··············································· viii 433 433 434 434 435 436 438 439 439 439 439 440 440 440 440 440 441 441 441 441 444 444 444 444 445 448 448 448 449 449 449 II Acts of Transgression .. ................ ........................... .............. ............. Unlawful Conduct ............................................ .............. ................... Dishonest and Deceitful Conduct ................................................... Immoral Conduct............................................................................... Other Acts Covered under Canon 1 .......... ........ ... ................... ...... ... Barratry/Maintenance .............................................................. Ambulance Chasing/Solicitation ... .............. .............. .......... .. Grounds for Refusal to Serve as Counsel de Officio....................... Integrated Bar of the Philippines ... ........ .............. . ........... .... ........... Purpose ........ ,................................................. .......................... Membership Dues ........ ...... ........ ............... ... .............. ......... ..... Legal Aid/Community Service .... ... .... .... ........ ... ...... .............. ............ Bar Matter 2012: The Rule on Mandatory Legal Aid Service ..•......... ..... .... .... ... ........ ...... ............... ............ A.M. No: 17-03-09-SC- Rule on Community Legal Aid Service............................................................. Mandatory Continuing Legal Education: (MCLE).............................. Persons Exempt from Complying with MCLE....... ...... .......... ........ ... Purpose of MCLE....................................... ,....................................... MCLE Credit Units ............................................................. ,.............. Penalties ......................................................................................... Restricted Exemptions ··············.•······;···································,········•··· 453 454 454 454 454 454 454 455 455 455 455 456 456 456 456 457 458 458 458 458 THE LAWYER AND THE LEGAL PROFESSION (Canons 7 to 9, CPR) Effects ····.··············'············································································· Before taking the bar exam ... ... ....... .............. ...... ............... ... ....... ... After passing the exam: ................................................... ,.. ... ........... After taking oath ...................................... ......................................... Proscriptions under Canon 7 .. ..... ...... .................. ............... ..... ....... .. 460 460 460 460 460 THE LAWYER AND THE COURTS (canons 10 to 13, CPR) Illustrative Cases ................................................ ................................ Doctrinal Rulings ........................... ,.................................................... Exceptions Where a Lawyer May Testify in Behalf of His Client... Doctrinal Rulings ............... ,............................. .................................. 462 464 465 466 THE LAWYER AND THE CLIENTS (Canons 14 to 22, CPR) Appointment of Counsel de Officio under the Rules of Court....... ix 467 Tests to Determine Conflicting Interests ......................................... . Rule on Conflict of Interest under an Engagement Agreement with a Law Firm ................................................... . Effects of Representation of Conflicting Interest ............................ . Conflict of Interest Cases Covering Former Government Lawyers .................................................................................... . Related Canons Pertaining to the Lawyer's Duty of Loyalty and Confidentiality ....................................... . Related Guidelines ........................................................................... . Doctrinal Rulings .............................................................................. . Preservation of Client's Confidences (under the CPR) ................... . The Lawyer and His Professional Fees ........................................... . Two Concepts of Attorney's Fees ........................................... . Classifications of Professional Fees ........................................ . Distinction between Champertous Contract and Contingent Fee .....:........................................................... . Attorney's Liens ........ ,....................................................................... . Controversies Involving Lawyer's Compensation ........................... . Canon 22 - Termination of Lawyer-Client Relationship ................. . On the part of the Client ....................................................... . On the part of the Lawyer ..................................................... . Procedure for Withdrawal of Services by Counsel.. ....................... . 468 468 468 469 469 470 472 473 477 478 478 480 480 483 483 483 483 484 THE LAWYER AS A NOTARY PUBLIC Commissioning of Notary Public ................:...................................... Formal Requisites .............. :............................................................... Oaths.................................................................................................. Powers and Limitations of Notaries Public ........ ............ ...... ............ Definitions ....,................................................................ .......... Prohibitions and Disqualifications .... ..... ...... ............ ...... ........ Competent Proof of Identity ................................... ,.... ........... Notarial Fees ............................................................................ Revocation of Commission and Disciplinary Sanctions ...... ........... The Discipline of Lawyers ..... ... ... ................. ........ ................. ........... 2020 Interim Rules on Remote Notarization of Paper Documents .......... ................ ... .... ................... ............ 485 486 489 490 491 491 493 493 494 496 496 I II Discipline of Filipino Lawyers Practicing in Foreign Jurisdiction ............. ...... ............. ............................................... Forms of Sanctions............................................................................ Lifting of Suspension......................................................................... Readmission to the Bar..................................................................... Resumption of Practice of Filipino Repatriated Lawyers................. Judicial Ethics ..... ................... .......... ...... ..... .... ............. ................... ... Sources of Judicial Ethics......................................................... Applicability of the New Code of Judicial Conduct............... Definition of Terms.................................................................. Code of Judicial Conduct .. ... .................. .......................................... Doctrinal Rulings............................................................................... 523 524 524 524 526 526 526 527 527 527 528 REQUIREMENTS IN THE DISCHARGE OF RESPONSIBILITIES OF MEMBERS OF THE JUDICIARY Rules Governing the Discharge of Responsibilities as a Member of Bench..................................................................... Qualities Required of Members of the Judiciary under the Code of Judicial Conduct......................................................... Code of Judicial Conduct.................................................................. Proscriptions for a Member of the Bench under Canon 1..... ....... .. Doctrinal Rulings............................................................................... Proscriptions for a Member of the Bench under Canon 2. ....... .... .. Doctrinal Rulings............................................................................... Proscriptions for a Member of the Bench under Canon 3 .............. Disqualification under Canon 3, Code of Judicial Conduct ......... .. Disqualification under Section 1 of Rule 137 of the Rules of Court: Mandatory and Voluntary .............. .......... .... Disqualification under the Civil Code ......... .............. ....... ........... ..... Doctrinal Rulings............................................................................... Proscriptions for a Member of the Bench under Canon 4.............. Doctrinal Rulings............................................................................... Proscriptions for a Member of the Bench under Canon 5 ....... ... .... Doctrinal Rulings ............... ................................................................ Proscriptions for a Member of the Bench under Canon 6 ....... ....... Doctrinal Rulings .......... .,. .................................................................. 529 529 530 530 531 532 532 533 534 534 535 536 537 539 540 541 542 543 PROCEDURAL FLOW OF A DISBARMENT CASE REMOVAL OF MEMBERSOF THE JUDICIARY Guidelines ......................................................................................... Grounds for Disbarment, ................................................................. Other Statutory Grounds for Disbarment ........................................ Characteristics of Disbarment Proceedings ..................................... X . . . . 522 522 522 523 Members of the Supreme Court: Impeachment ....................... ...... Grounds for Impeachment................................................................ Jurisdiction of Congress ...... ........ ............ ............ ............ ........... ... ... . Initiation of Complaint ...................................................................... xi 545 545 545 545 Consideration of Complaint ............................................................. . Frequency of Filing .......................................................................... . Votes Required .................................................................................. . Effect of Impeachment ..................................................................... . Doctrinal Rulings .............................................................................. . Discipline of Appellate Justices and Lower Court Judges .............. . Grounds for Disciplinary Action over Appellate and Trial Court Judges .................................................................... . Sanctions Doctrinal Rulings .............................................................................. . Disciplinary Action of the Supreme Court over Employees of the Judiciary ....................................................................... . Doctrinal Rulings ............................................................................. . Practical Exercises ............................................................................ . xii RULE72 Subject Matter and Applicability of Rules ........................ . Definition ................................................................................. . Subject Matter•.......................................................................... . Applicability of Rules for Civil Actions .................................. . 548 548 549 551 551 553 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE RULE 110 Prosecution ofOffenses .................................................. . How Criminal Actioninstituted: (S.1); ........................ ,.......... . Complaint and Information: (S.2-4) ....................................... . Who Must Prosecute: (S.5) .:.................................... :............. .. RULE 111 Prosecution of Civil Action; ............................................ . Rules for Institution of Criminal and Civil Actions: (S.1-5) .... Prejudicial Question (S.6-7) .... ,.:....... ,............... ,.,................... . RUI.,E112 Preliminary Investigation (S.r-8) .......... ,....................... ,.. RULE113•ArresL ............... ,......:.......... :.;.:..:................................... , .... Lawful Warrantless Arrest: (S.5) ..... , .....................• , ...........•...... RULE 114·Bail ...... :....... :........................ ::............ ,...:........................... . RULE 115 Rights of Accused ...,......... ,'-············,;······: .......... ,............ . RULE H6 Arraignment and Plea.,.: .. :..... ,........ ;...•..... ,......... ,...... ,.... . RULE 117. Motion to.Quash ......... :..,..,.., ...........•............................... Double Jeopardy (S,7) ...:..... ,..................... ,............................ . Provisional Dismissal (S-8)...................................................... . RULE 118 Pre-Trial .............................•.............................................. RULE 119 Trial ....................................... ,.......................................... . RULE 120 Judgment ...,.. ,...........:...... :.·..,..,........................................... . RULE 121 New Trial or Reconsideration ......................................... . RULE 122·Appeal.. .............................................. ,... ,.......................... . Where and How to Appeal (S.2) ............................................ . RULE 124 Procedure in the Court of Appeals ................................ . RULE 125 Procedure in the Supreme Court .................................... . RULE 126 Search and Seizure ......................... ,................................ . RULE 127 Provisional Remedies .... ,................................................. . BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 546 546 546 547 547 548 556 556 556 557 558 558 561 562 568 571 572 579 580 584 587 588 588 591 602 606 609 610 613 614 614 620 622 622 622 622 SETfLEMENT OF ESTATE OF DECEASED PERSONS I I RULE73 Venue and Process ............................................................ . RULE74 Summary Settlement of Estates ......................................... . Extrajudicial Settlement by Agreement of Heirs and Affidavit of Self-Adjudication (S. l) Summary Settlement of Estates of Small Value (S.2) ............ . Liability ofdistributees and estate (S.4) Period for claim of minor or incapacitated person (S.5) 623 626 626 626 629 631 PROBATE•OF WILL RULE75 Production of Will; Allowance of Will Necessary ........... . RULE76 Allowance or Disallowance of Will... ............................... . RULE77 Allowance of Will Proved Outside of Philippines ........... . 632 632 632 LETTERS TESTAMENTARY AND 'LETTERS ADMINISTRATION RULE78•Whenand to Whomlssued .............................................. . RULE79 .Petition for Letters of Administrad.on ............................... . RULE80 ·Special Administrator ........................................................ . When Appointed (S,1) ..... ,..................................................... . Powers and Duties (S.2) ........................................................ . When Powers Cease; Duty (S:3) ........................ :.................. . RULE81 Bqnds of Executors and Administrators ........................... . Bond. Conditions (S. l) Bonds of Joint Executors and Administrators (S.3) .............. . Bond of Special Administrator (S.4) ...................................... . RULE82 Termination of Administration ....................... :.................. . RULE83 Inventory ........................................................................... . RULE84 General Powers and Duties of Executors and Administrators ........................................................................... . RULE85 Accountability and· Compensation of Executors and Administrators .................................................................. . xiii 645 648 650 650 650 650 651 651 651 651 654 655 656 657 RULE 86 Claims against the Estate (Actions Which Do NOT Survive Death) ......................................................................... RULE 87 Actions by and against Executors and Administrators (Actions Which Survive Death) ..................... RULE 88 Payment of Debts of the Estate ........................................ RULE 89 Sales, Mortgages, and Other Encumbrances .................... RULE 90 Distribution and Partition of the Estate ............................ RULE 91 Escheats ............................................................................. . 660 . . . . . 660 669 673 678 680 GUARDIANSIIlP RULE 92 Venue ................................................................................. RULE 93 Procedure ............ ,............................................................. Rule on Guardianship of Minors ........................................... RULE 94 Bond .................................................................................. RULE 95 Sale and Encumbrance ...................................................... RULE 96 Powers and Duties ............................................................ RULE 97 Termination ....................................................................... RULE 98 Trustees .............................................................................. RULE 101 Hospitalization of Insane ................................................ RULE 102 Habeas.Corpus ................................................................ Testimonial Evidence ..................................................... . 1. Qualification of Witnesses .................................... . 2. Testimonial Privilege ............................................ . 3. Admissions and Confessions ................................ . 4. Previous Conduct as Evidence ............................. . 5. Hearsay .................................................................. . 6. Exceptions to the Hearsay Rule ........................... . 7. Opinion Rule ......................................................... . 8. Character Evidence ............................................... . 761 761 772 773 779 781 782 793 795 RULE 131 Burden of Proof, Burden of Evidence and Presumptions .................................................................... . RULE 132 Presentation of Evidence ................................................ . A. Examination of Witnesses B. Authentication and Proof of Documents ...................... . C. Offer and Objection ....................................................... . 798 813 813 826 837 RULE 133 Weight and Sufficiency of Evidence ............................... . 841 C. CLAIMS AGAINST TIIE ESTATE . . . . . . . . . . 682 684 684 689 691 694 697 699 702 703 RULE 103 Change of Name............................................................... RULE 108 Cancellation or Correction of Entries in the Civil Registry............................................................................. RULE 109 Appeals............................................................................. Writ of Amparo.................................................................................. Writ of Habeas Data ... ... ....... ... .............. .. ... ....... .. .. ...... ... . ... .. .. ..... .... .. 711 CHANGES IN CIVlL REGISTRY 711 720 722 722 COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE RULE 128 General Provisions .......................................................... RULE 129 What Need Not be Proved., ............................................ RULE 130 Rules on Admissibility .................................................... A. Object (Real) Evidence .................................................. B. Documentary Evidence .................................................. 1. Original Document Rule ....................................... 2. Secondary Evidence .............................................. 3. Parol Evidence Rule .............................................. 4. Interpretation of Documents ................................ . . . . . . . . . 741 743 746 746 746 748 752 755 757 xv xiv ·;,.._~ REMEDIAL LAW xvi II COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE I 1997 RULES OF CIVIL PROCEDURE I 1997 RULES OF CIVIL PROCEDURE ("1997 RULES") A.M. No. 19-10-20-SC 2019 AMENDMENTS TO THE 1997 RULES OF CIVJL PROCEDURE ("AMENDED RULES") COMMENTS/ NOTES RULE 6 KINDS OF PLEADINGS Section 1. Pleadings Section 1. Pleadings de.fined.·--'--Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court.for appropriate judgment. (la) de.fined. Pleadings are the written statements of the respective claims and defenses of the parties submitted _tothe court for appropriate judgment. (1) 1. Same principles as those under the 1997 Rules. 2. Pleadings "are written allegations of what is affirmed on one side or denied on the other. " (Rogers v. Dick, G.R. No. L-18220, 30 April 1963) Section 2. Pleadings Section 2. Pleadings allowed. - The claims .of a party are asserted in a complaint, coup.ter~laim, crossclaim,. third (fourth, allowed. - The claims of a party are asserted in a complaint, counterclaim, crossclaim, third (fourth, 3 1. Reply is only required when the answer is founded on an actionable document. 4 TI-IE PRE-WEEK REVIEWER FORJITIERY Volume IV etc.)-party complaint, or complaint-inintervention. etc.)-party complaint, or complaint-inintervention. The defenses of a party are alleged in the answer to the pleading asserting a claim against him. The defenses of a party are alleged in the answer to the pleading asserting a claim against him or her. An answer may be responded to by a reply. (ri) BAR TAKERS 2. Reply is for the purpose of denying the due execution and authenticity of the document under oath. 3. If actionable document is admitted, then ho' need to file a reply. ' An answer may be responded to by a reply oruy ifthe defending party attaches an actionable document to the answer. (2a) 4. An "actionable document" is a written instrument or c;locull}enton which an action or defense is founded. It may be pleaded in either of two ways: (1) by setting forth the substance of such document in the pleading and attaching the document thereto-as an annex, or (2) by setting forth said document verbatim in the pleading (Metropolitan COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Bank and Trust Co. v. Ley Construction and Development Corp., C.R. No. 185590, ]December 2014) I 5. By express provision of the law, the actionable document should be attached to the answer. (Section 2, Rule 6, 2019 ROC) Section 3Complaint ..- The complaint is the · pleading alleging the plaintiffs cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (3a) Section 4. Answer. An answer is a pleading in which a defending party sets forth his defenses. (4a) - Section 3Complaint. - The complaint is the pleading allyging the plaintiffs or claiming pany's cause or causes of action. The names and residences of the plaintiff and · defendant must be stated in. the complaint. (3a) 1. The claiming party may refer to the third party complainant or the defendant in relation to his permissive counterclaim. Section 4. Answer. 1. Same principles as those under the 1997 Rules. -,- An· answer is a pleading in which a defending party sets forth his or her defenses. (4a) 2. A plaintiff may file an answer 5 6 THE PRE-WEEK REVIEWER FOR JITfERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TifE 1997 RULES OF CML PROCEDURE Volume IV because he will be a defending party to the defendant's permissive counterclaim. Section 5- Defenses. - Defenses may either be negative or affirmative. Section 5. Defenses. - Defenses may either be negative or affirmative. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to. his cause or causes of action. (a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his or her cause or causes of action. (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, (b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him or her. The affirmative defenses include fraud, statute of limitations, release, II illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. (5a) payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. Affirmative defenses may also include grounds for the dismissal of a comnlaint snecifically that the court has no jurisdiction over the subject matter that there is another action nending between the same . narties for the same cause or that the action is barred by a • 12riorjudgment. (5a) Section 6. Counterclaim. ~ A counterclaim is any claim which a defending party may have against an opposing party. (6a) Section 6. Counterclaim. A counterclaim is any claim which a defending party may have against an opposing party. (6) 1. It is now expressly provided that a compulsory counterclaim not raised in the same action is barred, unless otherwise allowed by these Rules. 2. A counterclaim is defined in Section 6 of 7 8 COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN Rule 6 of the Rules of Civil Procedure (now Section 6, Rule 6, 2019 ROC) as "any claim which a defending party may have against an opposing party." They are generally allowed in order to avoid a multiplicity of suits and to facilitate the disposition of the whole controversy in a single action, such that the defendant's demand may be adjudged by a counterclaim rather than by an independent suit. The only limitations to this principle are (l} that the court should have jurisdiction over the subject matter of the counterclaim, and (2) that it could acquire jurisdiction over I third parties whose presence is essential for its adjudication. (Lafarge Cement Philippines, Inc. v. Continental Cement Corp., G.R. No. 155173, 23November 2004) Section 7. Compulsory counterclaim - A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the· opposing. party's claim and does not require for its adjudication the presence of third parties qf whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature.thereof, except that in an original action Section 7. Compulsory counterclaim. - A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action 1. A compulsory counterclaim not raised in the same action is barred, unless otherwise allowed by the Amended Rules. 2. Rule 6, Section 6 of the Amended Rules defines .a counterclaim as any claim which a defending party may have against an opposing party. Filing a counterclaim is generally allowed in order to avoid a multiplicity of suits and to facilitate the disposition of the entire controversy in a single action, 9 10 TIIE PRE-WEEK REVIEWER FOR]ITfERY BAR TAKERS Volume IV before the Regional Trial Court, the counter-claim may be considered compulsory regardless of the amount; (n) before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. A comi;1ulson: counterclaim not raised in the same action is barred unless otheiwise allowed b:£ these Rules. (7a) such that defendant's demand may be adjudged by a counterclaim rather than by an independent suit. 3. Filing a counterclaim is subject to the following principles: (a) the court should have jurisdiction over the subject matter of the counterclaim; and (b) it could acquire jurisdiction over third parties whose presence· is essential for its adjudication. (Lafarge Cement Philippines, Inc: v. Continental Cement Corp., C.R. No. 155173, 23 November) 4. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or COMPARATIVE MATRIX OF TI-IE 1997 RULES OF CML PROCEDURE AND TI-IE 2019 AMENDMENTS TO TIIE 1997 RULES OF CIVIL PROCEDURE II occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 5. A counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court (RTC), necessarily connected with the subject matter of the opposing party's claim or even where there is such a connection, the court has no jurisdiction to entertain the claim or it requires for adjudication the presence of third 11 12 1HE PRE-WEEK REVIEWER FORJ[ITERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO 1HE 1997 RULES OF CML PROCEDURE the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. persons over whom the court acquire jurisdiction. A compulsory counterclaim is barred if not set up in the same action. (Ong v. Ponce Emile, G.R. No. 212904, 22November 2017) 6. A counterclaim may either be permissive or compulsory. It is permissive if it did not arise out ofor is not necessarily connected with the subject matter of the opposing party's claim. A permissive counterclaim is essentially an independent claim that may be filed separately in another case. A counterclaim is compulsory when its object arises out of or is necessarily connected with 13 Unlike permissive counterclaims, compulsory counterclaims should be set up in the same action; otherwise, they would be barred forever. (Lafarge Cement Philippines, Inc., G.R. No. 155173) 7. The criteria to determine whether the counterclaim is compulsory or permissive are as follows: a. Are issues of fact and law raised by the claim .· 14 IBE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF IBE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE v. Fort Ilocandia Property Holdings and Development, G.R. No. 170483, 19 April 2010) and by the counterclaim largely the same? b. C. d. Would res judicata bar a subsequent suit on defendant's claim, absent the compulsory rule? Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim? Is there any logical relations between the claim and the counterclaim? A positive answer to all four questions would indicate that the counterclaim is compulsory. (Bungcayao 15 8. A compulsory counterclaim does not require a certificate of non-forum shopping because a compulsory counterclaim is not an initiatory pleading. (Agana, G.R. No. 139018) 9. Pursuant to Rule 141, Section 7 of the Rules of Court, as amended by A.M. No. 04-204-SC, effective 16 August 2004, docket fees are required to be paid in compulsory counterclaim or cross-claims. Subsequent).y, however, in OCA Circular No. 96-2009 entitled, "Docket Fees For Compulsory 16 COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Counterclaims' dated 13 August 2009, this rule has been suspended. This suspension is still being enforced. (Ong, G.R.No. 212904) 10. The rule in permissive counterclaims is that for the trial court to acquire jurisdiction, the counterdaimant is bound to pay the prescribed docket fees. Since petitioner failed to .pay the docket fees, the RTC did not acquire jurisdiction over its .permissive counterclaim. (GSIS v. Heirs of Caballero, G.R. No. 158090, 4 October 2010) Section 8. Crossclaim: - A crossclaim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter Section 8. Crosscla,im. - A crossclaim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter 1. No amendment. Same principles as those under the 1997 Rules. . either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. (7) either of the original action or of a counterclaim therein. Such cross-claim may cover all or 12art of the original claim. (8a) Section 9. Countercounterclaims and counter-cross-claims. -A counter-claim may be asserted against an original counter-claimant. Section 9. Countercountercla,ims and counter-cross-cla,ims. - A counterclaim may be asserted against an original counter-claimant. A cross-claim may also be filed against an original crossclaimant. (n) A cross-claim. may also be filed against an original crossclaimant. (9) Section 10. Reply. -A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters Section 10. Reply. - All new matters alleged in the answer are deemed controverted. If the 12laintiffwishes to intemose any claims arising out of the new matters so alleged such claims shall be set forth in an amended or su1212lemental com12laint. However the 12laintiffmay file a re12lyonly if the 1. No amendment. Same principles as those under the 1997 Rules. 1. See notes under Rule 6, Section 2,Amended Rules. 2. As a rule, there is no need to file a reply since all new matters raised in the answer are deemed denied or refuted. 3. It is only when there is a need to deny the <lue 17 18 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint. (11) defending gam: attaches an actionable document to his or her answer. execution and authenticity of an actionable document that a filing of reply becomes imperative. Failure to file a reply will give rise to a technical admission as to the due execution and authenticity of the document. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new maners alleged in or relating to said actionable document. In the event of an actionable document attached to the reply the defendant may file a rejoinder if the same is based solely on an actionable document. (10a) 4. If the piaintiff wishes to interpose any claims arising out of the new matters alleged in the answer, then the plaintiff shall allege in an amended or supplemental complaint. 5. A rejoinder may be filed only to the deny the due execution and authenticity of an actionable document that is the foundation of a reply. Section 11. Tbird, (fourth, etc.)-party complaint. - A third (fourth, etc.)-party Section 11. Tbird, (fourth, etc.)-party complaint. - A third (fourth, etc.)-party 1. The admission of a third-party complaint lies within the trial COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc)party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. (12a) complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc)party defendant for contribution, indemnity, subrogation or any other relief, in respect of his or her opponent's claim. The third (fourth etc.}-pany complaint shall be denied admission ·and the court shall re!:juire the defendant to institute a separate action where: (a2 the third (fourth etc.}-pany defendant cannot be located within thirty (302 calendar days from the grant of such leave· Cb}matters extraneous to the issue in the principal case are raised· or (c2 the effect would be to introduce a new and separate controversy into the action. (lla) 19 court's sound discretion. If the trial court denied the motion for leave to admit a thirdparty complaint, then the proper remedy is to file a separate case, and not to 1.nsist on the admission ·. of the thirdparty complaint all the way up to this Court. (Development Bank of the Phils. v. Clarges Realty Corp., G.R. No. 170060, .. 17August 2016) 2. The order granting the motion to admit third party complaint may be recalled · ·. and the court may require defendant to institute a separate action in cases where the third(fourth-, etc.) party defendant cannot be located within 30 calendar days 20 THE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV from the grant of such leave; COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE C. The claim of the original defendant against the third-party defendant must be based upon the plaintiffs claim against the original defendant; and d. Defendant is attempting to transfer to the third-party defendant the liability asser:ted against him by the original plaintiff. e. The foregoing indicates, the claim that the third-party complaint asserts against the third-party defendant must be predicated on substantive law. 3. Other grounds for denying a motion to admit a third-party complaint: a. b. Matters extraneous to the issue in the principal case are raised; or The effect would be to introduce a new and separate controversy into the action. 4. Requisites for the filing of a third-party action are: a. The party to be impleaded was not yet a party to the action; b. The claim against the third-party defendant must belong to the original defendant; 21 22 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN (Philtranco Seroice Enterprises, Inc. v. Paras, G.R. No. 161909, 25April 2012) Section 12; Bringing new parties. - When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (14) Section 13. Answer to third (fourth, etc.)party complaint. - A third (fourth, etc.)-party defendant Section 12. Bringing new parties. - When the presence. of parties other than those to the original action is required for the granting of complete E!=!lief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained. (12) Section 13. Answer to third (fourth, etc.}party complaint. - A third (fourth, etc.)-party defendant 1. No amendment. Same priri.dples as those under the 1997 Rules. 2. The prerogative of briri.ging in new parti~s to the action at any stage before judgment is intended to accord complete relief to allof them in a single action and to avert a· duplidty and even a multiplicity of suits thereby. (Lafarge Cement Philippines v. Continental Cement Corporation, G.R. No. 155173, 23November 2004) 1. The amendment refers to gender inclusiveness. Same principles as those under the 1997 Rules. COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the thirdparty plaintiff. (n) 23 may allege in his or her answer his or her defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.)party plaintiff may have against the original plaintiff's claim. In proper cases, he or she may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (13a) RULE 7 PARTS AND CONTENTS OF A PLEADING Section 1. Caption. - The caption sets forth the name of the court, the title of the action, and the docket number if assigned. Section 1. Caption. - The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the 1. No amendment. Same principles as those under the 1997 Rules. 2. The office of a caption is to declare the purpose of the acts, and if the matter mentioned· in the caption is not contained in the body of the act, it is merely stirplusage, and does not affect 24 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated. (la, 2a) name of the first party on each side be stated with an appropriate indication when there are other parties. the matters set forth in the act itself-Captions are purely formal, and may be am.ended. (People v. Tbe Hon.Judge Navarro, G.R. No. L-38453-54, 25 March 1975) Their respective participation in the case shall be indicated. (1) 3. Section 2. Ibe body. - The body of the pleading sets fourth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (n) (a) Paragraphs. - The allegations in the body of a Section 2. Ibe body. ---'·The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading. (a) Paragraphs. - The allegations in the body of a pleading shall be 1. pleading shall be divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a) The caption but the allegations in the complaint or other initiatory pleading which give meaning to the pleading and on the basis of which such pleading may be legally characterized. (Rf3Publicv. Nolasco, G.R. No. 155108, 27 April2005) (b) Headings. When two or mcire causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by-"second cause of action", and so on for the others. No amendment. Same principles as those ·under the 1997 Rules. "- When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or 25 divided into paragraphs so numbered to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (b) Headings. When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action", and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs 2. In determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the criterion of first ascertaining the nature of the principal actio:1 or remedy sougit. If it is primarily for the 26 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (4) (c) Relief - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6) (d) Date. - Every pleading shall be dated. (n) of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. (c) Relief-The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (d) Date. - Every pleading shall be dated. (4) l recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal trial courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relie[_soug_ht, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance (now Regional Trial Courts). COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 3. Signature and address. Every pleading must be signed by the party or counsel representip.g him, stating in either case his address which should not be a post office box. The signature of counsel ccmstitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, .or signs a pleading in violation of this Rule, or alleges Section 3. Signature and address. - (a) Every pleading and other written submissions to the court must be signed by the party or counsel representing him or her. (b) The signature of counsel constitutes a certificate by him or her that he or she has read the pleading arid document; that to the best of his or her knowledge, information; and belief, formed after an inguiJ:y: reasonable 'under the circumstances: a. It is riot being gresented -for anx 'imgro12er gu!'.[!Ose such as to harass· cause unnecessacy: delay or needlesslx inctease the cost oflitigation · b. The claims defenses and other' legal contentions are warranted· b)?: existing law 1. 27 When the lawyer affixes his signature, he guarantees the following: a. he or she has read the pleading and document; b. that to the best of his or her knowledge, information, arid belief, formed after an inquiry reasonable under the circumstan-: ces: i. It is not being presented._. for any ·improper purpose! such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; 28 COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. (5a) or jurisprudence or bi a nonfrivolous argument for extending. modif£ing or reversing existing jurisprudence· C. The factual contentions have evidentia~ support or if specifically: so identified will likely have evidentia~ sug12ort after availment of the modes of discove~ under these rules· and d. The denials of factual contentions are warranted on the evidence or if s12ecifically: so identified are reasonably: based on belief or a lack of information. (c) If the court determines on motion or motu f2_ro(l_rioand after notice and hearing that this rule has 2. The claims, defenses, and other legal contentions are warranted by existing law or jurisprudence, or by anonfrivolous argument for extending, modifying, or reversing existing jurisprudence; 3. The factual contentions have evidentiarysupport or, if specifically so identified, will likely have evidentiary support after availment of the "--- been violated it may: im);!ose an a12J;1roQriate sanction or refer such violation to the groger office for disciplina~ action on any: attorney: law firm or party that violated the rule or is res12onsible for the violation. Absent exceptional circumstances a law firm shall be held jointly: and severally: liable for a violation committed by: its partner associate or employee. The sanction may: include but shall not be limited to. non-moneta~ directive or sanction· an order to pay: a penalty in court· or if imposed on motion and warranted for effective deterrence an order directing modes of discovery under these rules; and 4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. 2. If the court determines, on motion or on its own motu proprio arid after notice and hearing, that the above rule has been violated, then: a. The court may impose an appropriate sanction or 29 30 THE PRE-WEEK REVIEWER FORJITIBRY BAR TAKERS Volume IV payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation including attornets fees for the filing of the motion for sanction. The la~er cir law finn cannot pass on the moneta~ 12enalty to the client. (3a) COMPARATrvE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE refer such violation to the proper office for disciplinary action, on any attorney, law firm,· or party that violated the rule, or is responsible for the violation. b. C. motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation, including attorney's fees for the filing of the motion for sanction. Absent exceptional circumstances, a law firm shall be held jointly and sever~ ally liable for a violation committed by its partner, associate, or employee. The sanction may include, but shall pot be limited to, nonmonetary directive or sanction; an order to pay a penalty in court; or, ·if imposedon 31 d. The lawyer or law firm cannot pass on the monetary penalty to the client. 3. It is also incumbent upon the lawyer to verify the representations of the client because under Rule 7, Section 3Cb) of the 32 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV Amended Rules, the allegations in the pleading have been formed after an inquiry reasonable under the circumstances. Section 4. Verification. Except when otheiwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. (Sa) A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his Section 4. Verification. Except when otheiwise specifically required by law or rule, pleadings need not be under oath or verified. A 12leading is verified by an affidavit of an affiant duly authorized to sign said verification. The authorization of the affiant to act on behalf of a 12artY whether in the form 4. What would constitute an inquiry reasonable under the circumstances, however, has not been defined. 5. The pleading is no longer based on ultimate facts but on evidentiary facts. 1. Pursuant to Rule 7, Section 4 of the 1997 Rules, a pleading is verified when the affiant attests that he/ she has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic knowledge and belief. A pleading required to be verified which contains a verification based on "information and belief', or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading. (6a) of a secretary's certificate or a s12ecial12ower of attorney should be attached to the 12leading and shall allege the following attestations: (a) The allegations in the i;2leading are true and correct· based on his or her 12ersonal knowledge or based on authentic documents· Cb) The 12leading is not filed to harass. cause unnecessary delay or needlessly increase the cost of litigation· and \, (c) The factual allegations therein have evidentiai:y su1212ortor if si;2ecificallyso identified will likewise have evidentiary SUQQOrtafter a reasonable O1212ortuniJ¥ for discovery. records. (Mediserv, Inc. v. CA, G.R. No. 161368, 5 April 2010) 2. Under the amendments, it is insufficient to merely state in the verification that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. Thus, the verification must now contain the following attestations: a. The allegations in the pleading are true and correct based on his or her personal knowledge, or based on authentic documents; b. The pleading is not filed 33 34 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV The signature of the affiant shall further serve as a certification of the truthfulness of the allegations in the pleading. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and A pleading required to be verified that contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading. (4a) c. defect which does not affect the jurisdiction of the tribunal. (Torres v. Codilla, G.R. No. 195191, 20March 2012) The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery. 3. The purpose of the verification is to secure an assurance that the allegations in the pleading are true and correct and the pleading has been filed in good faith. (Salenga v. CA, G.R. No. 174941, 1 February 2012) \, 4. A defective verification is merely a formal 35 \., Section 5. Certification against Jornm shopping. - The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading. asserting a claim foi:-relief, or in a swo~n certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the Section 5. Certification against fornm shopping. - The plaintiff or principal party·shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he or she has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or .her knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete 1. Under the amendments, the affiant's authorization to act in behalf of a party, whether in.the form of a secretary's certificate or a special power of attorney, should be attached to the pleading. 2. "Days" now mean "calendar days." Thus, Saturdays, Sunday and holidays are included in determining the reglementary. 3. Forum shopping is an act.of a party against whom an adverse judgment has been rendered 36 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his · aforesaid.complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and · after hearing. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt ·of court, without ·prejudice to the corresponding administrative and criminal actions. If the acts of the party statement of the present status thereof; and (c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within five (5) calendar days therefrom to the court wherein his or her aforesaid complaint or initiatory pleading has been filed. in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. It is primarily intended to cover an initiatory pleading or an incipient application of a party asserting a claim for relief. (University of Sto. Tomas Hospital v. Surla, G.R. No. 129718, 17 August 1998) The authorization of the affiant to act on behalf of a gai::cy:whether in the form of a secretary's certificate or a sgecial gower of attorney should b'e attached to the gleading. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon 4. Forum shopping canbe committed in three ways: (a) by filing multiple or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n) '~ "' motion and after hearing. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his or her counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (5a) cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); {b) by filing multiple cases based on the same cause of action and with the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (c) by filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res jucficata). (Heirs of Arana 37 38 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE v. Intestate Estate of Sangalang, G.R. No. 193208, 13 December 2017) 5. Plaintiff or the principal party shall certify under oath that he has not commenced any action involvirig the same issues in arw court,. etc. The attestation contained in the certification on non~forum shopping requires personal knowledge. by· the party who . executed the same. Petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard ofthe rules cannot justly be rationalized by harking on the policy of liberal construction. (Loqufasv. Ombudsman, G.R. No. 139396, 15August 2000) "· 39 6. Petitioner here made the certification for himself and in his wife's behalf. The husband may reasonably be presumed to have personal knowledge of the filing or non:filing by his wife of any action or claim similar with a petition for certiorari and prohibition given the notices and legal processes involving their real property. There is no justifiable reason that he may not lawfully undertake together with his wife to inform the court of any similar action or proceeding which may be ·filed. If anybody may repudiate the certification or undertaking for having been incorrectly made, it is the wife who may conceivably do 40 THE PRE-WEEK REVIEWER FORJIT[ERY COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE BAR TAKERS VolumeN recognized as either an indispensable or necessary party-plaintiff, whatever action or inaction he may take on the verification or certification against forumshopping is inconsequential. (Chua v. Torres, G.R. No. 151900, 30 August 2005) so. (Docena v. Lapesura, G.R. No. 140153, 28 March 2001) 7. The general rule is that the certificate of non-forum shopping must be signed by all plaintiffs in a case and the signature of only one of them is insufficient. The signature of only one of petitioners in the certification against forum shopping in this case substantially complied with the rules, however, because they share a common interest and invoke a common cause of action or defense. (Heirs of Gallardo v. Soliman, G.R. No. 178952, 10 April2013) .. 8. Since plaintiff was a misjoined party whom the court had not 41 \, 9. The following officials or employees of a company can sign the verification and certification without need of a board resolution: (a) the chairperson of the Board of Directors; (b) president; (c) general manager or acting general manager; (d) personnel officer; and (e) an employment speciaiist in a labor case. (Cagayan Valley Drug Corp. v. CIR, G.R. No. 151413, 13 February 2008) 42 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 6. Contents. - Every pleading stating a party's claims or defenses shall, in addition to those mandated by Section 2, Rule 7, state the following: a) Names of witnesses who will be presented to prove a party's claim or defense; b) Summan1: of the witnesses' intended testimonies 12rovided that the judicial affidavits of said witnesses shall be attached to the 12leading and form an integral part thereof. Only: witnesses whose judicial affidavits are attached to the pleading shall be presented by: the 12artiesduring trial. Except if a pa!1y:12resents meritorious reasons as basis for the admission of additional witnesses no 1. 2. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE other witness or affidavit shall be heard or admitted by the court· and Rule 8, Section 1 of the amendments requires that every pleading shall contain in a methodical and logical form, a plain, concise, and direct statement of the ultimate facts, including the evidence on which the party pleading relies for his or her claim or defense, as the case may be. c) provided that the judicial affidavits of said witnesses shall be attached to the pleading and form an integral part thereof. Only witnesses whose judicial affidavits are attached to the pleading shall be presented by the parties during tnal. Except if a party presents meritorious reasons as basis fotthe admissioll of additional witnesses, no other witness ot affidavit shall be heardor admitted by the-court; and Documentan1: and object evidence in support of the allegations contained in the pleading. (n) Accordingly, the amended Rule 7, Section 6 states that the following shall be alleged in or attached to the complaint or answer: a. Names of witnesses who will be presented to prove a party's claim or defense; b. Summary of the witnesses' intended testimonies, C. '-- 43 Documenta 0 ry and object evidence in support ' 44 lHE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE of the allegations contained therein. 3. "Ultimate facts" are the essential and substantial facts which either form the basis of the primary right and duty or which directly make up the wrongful acts or omissions of the defendant. (Far East Marble [Pbils./ v. C4, G.R. No. 94093, 10 August 1993) 4. The term - - "ultimate facts" means the essential facts constituting plaintiffs cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. (I MORAN, RULES OF COURT ed.}) 213 [1963 5. Ultimate facts are important facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not referto the details of probative matter or particulars of evidence bywhich these material elements are to be established. It refers to the principal, determinate, and constitutive facts, upon the existence of which; the entire cause of action rests: (Tantuico, Jr. v. Republic, G.R. No. 89114, 2December 1991) 6. "Evidentiary facts" are those whichtend to prove or establish said ultimate facts. 45 46 COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 1HE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV (Far East Marble [Phils.l v. CA, G.R. No. 94093, 10 August 1993) They are facts which furnish evidence of existence of some other fact. (Tantuico, Jr., G.R. No. 89114) RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS Section 1. In general. - Every pleading shall contain in a methodical and logical form, a· plain, concise arid direct statement of the ulp.mate facts on which the party pleading relies for his _claim or defense, as the case may be, omitting the st.;ttement of niere evidentiary facts. (1) If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (n) Section 1. In general. - Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts, including the evidence on which the party pleading relies for his or her claim or defense, as 'the case may be. If a cause of action or. defense relied on is based on law, the pertinent provisions thereof and their applicability to him or her' shall be clearly and concisely stated. (la) 1. See notes under Rule 7, Section 6 of the Amended Rules. 2. Under Rule 8, Section l of the 1997 Rules, the pertinent provisions of tlle law shall be cited only when the defense relied on is based thereon:··Toe amended rule now requires that if the cause of:.action or the defense is based ori law, the pertinent provisions shall be clearly and concisely stated. , Section 2. Section 2. Alternative causes of action or defenses. - A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2) Alternative causes of action or defenses. - A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently woukl be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. (2) Section 3. Section 3. Conditions precedent. - In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. Conditions precedent. - In any pleading, a general averment of the performance or occurrence of all conditions precedent shall be sufficient. (3) (3) 1. No amendment. Same principles as those under the 1997 Rules. 2. The Supreme Court have authorized the pleading of inconsistent alternative cause of action or defense provided that each is consistent in itself. (Prudence Realty and Development Corporation v. CA, G.R.No. 110274, 21 March 1994) 1. No amendment. Same principles as those under the 1997 Rules. 2. The following must be alleged as conditions precedent: a. Article 151, of the Family Code, which provides: Art. 151. No suit between 'Amendment refers to gender inclusiveness 47 48 THE PRE-WEEK REVIEWER FOR]ITfERY BAR TAKERS Volume IV members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same had failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. (Guerrero v. Regional Trial Court of !locos Norte, BR. XVI, G.R. No. 109068, JO January 1994) b. Section 412(a) ofR.A. No. 7160 provides, the conduct ofbarangay conciliation proceedings is COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE a pre-condition to the filing of a complaint involving any matter within the authority of the !upon, to wit: Section 412. Conciliation. - (a) Pre-condition to Filing of Complaint in Court. - No corµplaint, petition, action, or proceeding involving any· matter within the authority of the /upon shaH be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the !upon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the /upon secretary or pangkat secretary as attested to by the !upon or pangkat chairman or unless the settlement has been repudiated by the parties thereto. Under Section 409(a) of R.A. No. 7160, 49 50 TI-IE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV "[d]isputes between persons actually residing in the same barangay [(as in the parties in this case)] shall be brought for amicable settlement before the Zupan of said barangay." (Lansangan v. Caisip, C.R. No. 212987, 6 August 2018) Section 4. Capacity. - Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative Section 4. Capacity. - Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association ofpersons that is made a party, must be averred. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative 1. No amendment. Same principles as those under the 1997 Rules. 2. Lack of legal capacity to sue is different from lack of capacity to sue. Lack of legal capacity means that the plaintiff is not in the exercise of his civil rights, or does not have the necessary qualification to appear in the case, or does not have the character or COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO IBE 1997 RULES OF CIVIL PROCEDURE capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. (4) (4) - 51 representation he claims. Lack of capacity to sue refers to a plaintiff's general disability to sue, such as on account of minority, insanity, incompetence, lack of juridical personality · or any other general disqualifications of a party such as when a corporation is no longer possesses juridical personality by reason of its dissolution and laps~ of the three~y~r grace period provided un,der Section 122 of the Corporation Code, as will be discussed below. (Aiabang Developmeni corp: v; Alabang Hills Village . . . Associatiqn, ·G.R, • No. 187456; 2 June2014) 52 THE PRE-WEEK REVIEWER FORJI1TERY BAR TAKERS Volume IV Section 5. Fraud, mistake, condition of the mind. - In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. (Sa) Section 5. Fraud, mistake, condition of the mind. - In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. (5) 1. No amendment. Same principles as those under the 1997 Rules. 2. Allegations that must be alleged with particularly: a. b. C. Section 6. judgment. - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to· render it. An authenticated copy of the judgment or decision shall be attached to the 12leading. (6a) 3. 3. Must be alleged generally: a. 1. Condition precedent 2. Under this · provision, an authenticated copy of the judgment or decision shall now be attached to the pleading averring it. A copy of the judgment or decision shall be authenticated in accordance with "The Hague Convention Abolishing the Requirement 53 of Legalisation for Foreign Public Documents" (the "Convention"). Capacity Fraud Mistake b. Judgment C. Malice d. Knowledge or other condition of the mind. Section 6. Judgment. - In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judkial tribunal, or of a board or. officer, it is sufficient to aver the judgment or decision without setting forth matter· showing jurisdiction to render it. (6) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE ; 4. Article 2 of the Convention defines "legalisation" as the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signirlg the document has acted and,where appropriate, the . identity of the seal or stamp which it bears. The following are deemed to be public documents: a. documents emanating from an authority or an official connected i 54 THE PRE-WEEK REVIEWER FORJfITERY COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE BAR TAKERS Volume IV with the courts or tribunals of the State, including those emanating from a public prosecutor, clerk of court, or processserver; b. administrative documents; c. notarial acts; and d. official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the.fact that itwas in existence on a certain date.and 55 official and notarial authentications of signatures. 5. Not included in the above are: '' ,, '- .. 1. documents executed by diplomatic or consular agents; and 2. admi~ nistrative documents dealing directly with · commercial or customs operations. 6. Under the Convention, the only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it beats, is the addition of the certificate described in 56 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Article 4 thereof, issued by the competent authority of the State from which the document emanates. Section 7. Action Section 7. Action or defense based on document. - Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and ~he original or a copy thereof shall be attached to the pleading as an exhibit, which shall be ,deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading. (7) or defense based on document. ~ Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading. (7a) 1. No amendment. Same principles as those under the 1997 Rules. 2. The admission of the genuineness and due execution of a document means that: a. \ b. the party whose signature it bears admits that he voluntarily •signed the document orit was signed by another for him and with his authority; that at the time it was signed, it was in words and figures exactly as set out in the pleading of the party relying upon it; C. that the document was delivered; and d. that any formalities required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. 3. It effectively , eliminated any defense relating to the authenticity and due execution of the document, e.g., that the document was spurious, counterfeit, or of different import on its face as the one executed by the parties; or that the signatures appearing thereon were forgeries; or that the signatures 57 1HE PRE-WEEK REVIEWER FORJilTERY 58 BAR TAKERS Volume IV were unauthorized." (Go Tong Electrical Supply Co., Inc. v. BPI Family Savings bank, Inc., G.R. No. 187487, 29 June2015) Section 8. How Section 8. How to contest such documents . .:_ When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under ~ath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance to contest such documents. - When an action or defense is founded upon a written instrument, or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies _them, and sets forth what he or she 2 claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or 2 Amendment refers to gender inclusiveness. 1. No substantial amendment. Same principles as those under the 1997 Rules. 2. Failure to deny the due execution and authenticity of an actionable document would result to the admission thereof. 3. However, this rule shall apply when the party whose plaintiff introduced evidence purporting to support his allegations of deposit on the dates he wanted the court to believe, and_ offered no COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE with an order for an inspection of the original· instrument is refused. (8a) when compliance with an order for an inspection of the original instrument is refused. (8a) Section9. Official Section 9~ Official document or act. - In pleading an official document or official act, it is sufficient to aver that the document was issued or the act was done in compliance with law. (9) document or act. - In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance :with law. (9) 59 objection during the trial to the testimonies of defendant's witnesses and documentary evidence showing_ differen~.dates of deposit. By these acts,. the plaintiff waived the defendant's technical admission through failure to deny under oath the genuineness and due execution of the document (Cf Legarda Koh v. Ongsiako, 36 Phil. 185; Yu Chuck v. Kong Li Po, 46 Phil. 608, both cited in 1 Moran 232, 233, 1957 ed.). It has, likewise, been ruled that '-'1. Same principles as those under the 1997 Rules. 60 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV Section 10. Specific denial. ~A defendant must ·specify each material allegation of fact, the truth of which he does not admit .and, whenever practkable, shall set forth the· substance of the)natters upon which h~ relies to support his denial. Where a defendant desires tcideny only a part· ofan avermerit, he shall spe~ify_s,9.~uch of it as is true and material arid shail deny only .the remainde::f...Where a defendant is without.Jmqwle::dge or info~i0n sufficiep.t.to form a belief as. to the truth 9f a material avermertt made to .the complaint; he .shall so state; and this shall have the effect of a denial. (10a) 3 Section 10. Specific denial. -A defendant must specify each material allegation of fact the truth of which he or she 3 does not admit and, whenever practicable, shall set forth the substance of the matters upon which he or she 4 relies to support his or her 5 denial. Where a defendant desires to deny only a part of an averment, he or she 6 shall specify so much of it as is true and material and shall deny only the remaindeL Where a defendant is without knowledge or information sufficient to a belief as to the truth of a material averment made to the complaint, he or she7 shall so state, and this shall have the effect of a denial. (l0a) form Amendment refers to gender inclusiveness. Id. 5 Id. 6 Id. 7 ld. 4 1. Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 11. Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover ustirious interest are deemed admitted if not denied under oath ..(la, R9) Section 11. Allegations not specifically denied deemed admitted. - Material averments in ~ pleading asserting a claim or claims other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. (1 la) Section 12. ·Striking out of pleading or matter contained therein. ~ Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative Section 12. Affirmative defenses. - (a) A defendant shall raise his or her affirmative defenses in his or her answer which shall be limited to the reasons set forth under Section 5{b) Rule 6 and the following grounds: 1. That the court has no 1. Under Rule 8, Section 11 of the 1997 Rules, the material averments that are deemed admitted are those stated in the complaint. 2. This provision now appears to be more inclusive and appropriate as it may now include material averments in a third-party complaint or even in answer where a permissive counterclaim is being asserted. 1. The following are the procedural consequences of the deletion of the Rule 16 of the 1997 ROC in its entirety: a. Defendant must file an answer and raise as affirmative defenses the grounds mentioned in the 61 62 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9) jurisdiction over the person of the defending party; 2. 3. 4. 5. That venue is imnronerly laid· That the glaintiff has no legal canacity to sue· That the pleading asserting the claim states no cause of action· and That a condition nrecedent for' filing the claim has not been comnlied with. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE former Rule 16. These grounds are those• stated in Rule 6, Section 5(c) ofthe Amended Rules, thus: i. Fraud; ii. Statute of limitatioris; iii. Release; Illegality; 'V. vi. Statute of frauds; vii. Estoppel, viii. Former reco very; 0 ix. Dis- charge in bank: niptcy; and . (c) The court shall motuJl_to(lrio resolve the above Any x. . other matter by ,, waybf confession and avoi~ dance. b. Confession of judgment-an acknowledgment that a debt is justly due and cuts off all defenses and right of appeal. It is used as a shortcut to a judgment in a case where the defendant concedes liability. It is seen as the written authority of the debtor and a direction for entry of judgment against the debtor. (Sara Lee Philippines, Inc. V. Macatlang, G.R.No. 180147, 14January 2015) C, Affirmative defenses may also include grounds (d) As to the other affirmative defenses under the first J;!aragraph of Section 2{b2 Rule 6 the court may conduct a summary hearing within fifteen 052 calendar days from the filing of the answer. Such affirmative defenses shall be resolved by the court within thim,: {302 calendar days from the termination of the summary hearing. iv, Payment; (b) Failure to raise the affirmative defenses at the earliest OQJ;>Ortunity shall constitute a waiver thereof. affirmative defenses within thirty (30) calendar days from the filing of the answer. '-- (e) Affirmative defenses if denied shall not be the subject of a motion for reconsideration or petition for certiorari grohibition or mandamus but maybe among 63 ,,, m- 64 '11: THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV the matters to be raised on a(::!i;1eal after a judgment on the merits. (n) for the dismissal of a complaint, specifically: i. The court has no jurisdiction over the subject matter; ii. There is another action pending between the same parties for the same cause; iii. The action is barred bya prior judgment; and iv. Prescription of claims. d. Grounds under Rule 8, Section 12 of the Amended Rules: COMPARATIVE MATRO( OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE i. 65 The court has no jurisdiction over the person of the defending party; ii. Venue is improperly laid; iii. Plaintiff has no legal capacity to sue; iv. The pleading asserting the claim states no cause of action; and v. A condition precedent for filing the claim has not been complied with. 66 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 2. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE any of the grounds under Rule 8, Section 12 of the Amended Rules, the court shall, on its own, resolve the affirmative defense raised in the answer within30 calendar days from the filing thereof. Under Rule 15, Section 12 of the Amended Rules, the filing of a Motion to Dismiss may only be fj_1.ed on any of the following grounds: a. The court has no jurisdiction over the subject matter; b. There is another action pending between the same parties for the same cause; C. The action is barred by a prior judgment; or d. The action is barred l>y statute of limitations. 3. The court's action will depend on the affirmative defense raised by defendant, thus: a. If the affirmative defense was 67 b. If the affirmative defense was any of the grounds• under Rule 6, Section (5)(b) (1) of the Amended Rules, the court may conduct a summary hearing thereon within 15 calendar days from the filing of the answer. The court shall resolve 68 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV the affirmative defense raised in the answer within 30 calendar days from the termination of the summary hearing. C. Unlike affirmative defenses found in Rule 8, Section 12 of the Amended Rules, those mentioned in Rule,6, Section S(b) (1) thereof require the presentation of supporting evidence, except lack of jurisdiction over the subject matter. It must be noted that COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 69 jurisdiction over the subject matter of a case is conferred by law and determined by the allegations in the complaint which comprise a concise statement of the ultimate facts constituting the plaintiffs cause of action. (Anamav. Citibank, NA., G.R.No. 192048, 13 December 2017) d. Since a motion to hear affirmative defense is a prohibited pleading pursuant to Rule 15, Section 12(c) of the Amended Rules, then: 70 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV i. ii. Plaintiff must submit his comment/ opposition to the affirinative defenses raised. But, the Amend~ ed Rules do not specify when the comment/ oppositionmay be filed: The court shall set• the summary hearing in accordance with Rule 8, Section 12(d) of the Amended Rules. iii. In the event that the affirmative defense is denied3. The order of denial shall not be subject to a motion for reconsiderationor petition forcer- tiorari, prohibition or mandamus. 4. The proper remedy is to go to trial, and in the event ofan adverse judgment, appeal the same and raise the 71 72 TIIB PRE-WEEK REVIEWER FORJ!TfERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVlL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV order of denial as one of the assigned errors. iv. The court's order granting the affirmative defenses raised cannot be subject to a motion for reconsideration since any action of the court on the affirmative defenses cannot be subject to a motion for reconsideration. (Rule 15(3) of the 2019 Rules. - V. The order granting is in the nature ofa final order, as it left nothing else to be resolved thereafter. Thus, plaintiffs proper remedy is to appeal the court's order. (Nuque V. Aquino, G.R.No. 193058, 8July 2015) 4. What will happen to the counterclaims raised in the answer in the event the affirmative defenses are granted by the court? This becomes a grey area because: 73 74 THE PRE-WEEK REVIEWER FORJ!TfERY BAR TAKERS Volume IV a. Rule 16, Section 6(2) of the 1997 Rules, which states that the dismissal of a complaint on the ground of the affirmative defense raised shall be without prejudice to the prosecution in the same or separate action of the counterclaim pleaded in the answer, was repealed. It seems that there is no specific provision in the Amended Rules that addresses the situation. b. The author submits that· defendant must be allowed to manifest his COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 75 interest in having his counterclaim tried in the same proceeding or in a separate action within 15 days from receipt of the order dismissing the complaint. It is only fairfor defendant's counterclaim to survive the dismissal of the ~oi:ripfaint espedally in cas~swher.e he already paidthe prescribed . filirlg fee .due on his permissive .. . .. counterclaim. ,. Section 13. St'riking out bf pleading or matter contained therein. - Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by 1. Renumbered. Same prlnciples as those unde.r the 1997 Rules; 76 IBE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a) these Rules, upon motion made by a party within twenty (20) calendar days after the service of the pleading upon him or her, 8 or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (12a) between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (1) dismissed, then the motion to dismiss may be filed within the following periods for filing an answer, specified under Rule 11 of the Amended Rules: a. 30 calendar days; b. 60 calendar days from receipt by defendant foreign private juridical entity of the summons from the government official designated by law to receive the same; RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However; when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending 8 Section 1. Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadj.ngs; qr the. evidence record that the court has no jurisdiction over the subject matter, that there is another action pending on Amendment refers to gender inclusiveness. 1. See notes under Rule 8, Section 12. 2. The Amended Rules do not specify the period of time to file a motion to dismiss. In this regard, the author submits that since defendant naturally wants to have the complaint immediately 77 C. 20 calendar days from service of the permissive counterclaim; and d. The time to answer a third(fourth-) party complaint 78 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV shall be governed by the same rule as the answer to the complaint. 3. The requirement that a motion to dismiss should be filed within the time for filing the answer is not absolute. Even after .an answer has been filed, defendant can still file a motion to dismiss on the following grounds: (a) lack of jurisdiction; (b) litis pendentia; (c) lack of cause of action; and (d) discovery during trial of evidence that would constitute a ground for dismissal. (Panganiban v. Pilipinas Shell Petroleum Co,poration, G.R. No. 131471, 22January 2003) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 2. Section 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a) Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a cross-claim, not set up shall be barred. Section 3. Default; Section 3. Default; declaration of If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (la, Declaration of If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his or her 9 pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. R18) 9Amendment 79 1. Same principles as those under the 1997 Rules. 2. See notes under Rule 6, Section 7 of the Amended Rules. 1. Same principles as those under the 1997 Rules. 2. A default judgment is frowned upon because of the policy. of the law to hear every litigated case on the merits. But the default judgment will not be vacated unless the defendant satisfactorily explains the failure to file the answer, and shows that it has a meritorious defense. (Momarco Import Company, Inc. v. Villamena, G.R. No. 192477, 27 July2016) (2) refers to gender inclusiveness. 80 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV (a) Effect of order of def a ult. A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (2a, R18) (a) Iiffect of order of default. - A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial. (b) Relief from order of default. A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (3a, R18) (b) Relieffrom order of default. A party declared in default may at any time after notice thereof and before judgment.,_file a motion under oath to set aside the order of default upon proper showing that his or her 10 failure to answer was due to fraud, accident, mistake or excusable negligence and that he or she 11 has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (c) Effect of partial default. When a pleading asserting a claim (c) Effect of partial default. When a pleading asserting a claim 10 Amendment refers to gender inclusiveness. 11 /d. 3. A defendant declared in default has the following remedies: (a) a motion to set aside the order of default under Section 3(b), Rule 9 of the Rules of Court; (b) a motion for new trial under Section l(a), Rule 37. if the default was discovered after judgment but while appeal is still available; (c) a petition for relief under Rule 38 if judgment has become final and executory; and (d) an appeal from the judgment under Section 1, Rule 41 even if no petition to set aside the order of default has been resorted to. (Austria v. Licbauco, G.R. No.170080, April 4, 2007) COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a, R18). (d) Extent of relief to be awarded-A judgment rendered against a party in default shall not exceed the. amount or be different in kind from that prayed for nor award unliquidated damages. (5a, R18) (e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (d) Extent of relief to be awarded-A judgment rendered against a party in default shall neither exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (e) Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor General or his or her degutized gublic prosecutor, to investigate whether or not a collusion between the parties 4. 5. 81 When the delayed filing of an answer causes no prejudice to the plaintiff, default orders· should be avoided. Inasmuch as herein respondent was improvidently declared in default, its petition for certiorari to annul its default may be given due course. (Indiana Aerospace University v. CHED, G.R. No. 139371, 4April 2001) Section 3(c), Rule 9 of the Amended Rules mandates that the answer filed by a defendant inures to the benefit of all the defendants, defaulted or not, and all of them share a common fate in the action. It is not within the authority of the trial court to 82 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV no collusion, to inteivene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18) exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (3a) divide the case before it by first hearing it ex parte as against the defaulted defendant and rendering a default judgment (in the instant case, partial decision) against it, then proceeding to hear the case, as to the non-defaulted defendant. This deprives the defaulted def endanf of due process as it is denied the benefit of the answer and the evidence which could have been presented by its non-defaulted co-defendanL (Heirs of ., Manguiat V; CA, G.R. No. 150768, 20 August 2008) 6. Because Section 3(d), Ifole 9 of the Rules of Court limits the relief that may be granted by the courts to what has been prayed for in the COMPARATIVEMATRIX OF TIIE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE Complaint. It the raison d'etre in limiting the extent of relief that may be granted is that it cannot be presumed that the defendant would riot file an Answer and allow himself to be declared in default had he known that the plaintiff will be accorded a relief greater than or different in kind from that sought in the Complaint. The reason behind Section 3(d), Rule 9 of the Rules of Court is to safeguard defendant's right todue process against unforeseen and arbitrarily issued judgII1ent.It is akin to the very essence of due process. It embodies "the sporting· idea of fafr play" and forbids the grant ofreliefon matters where 83 84 THE PRE-WEEK REVIEWER-FORJITIERY BAR TAKERS V0lume IV the defendant was not given the opportunity to be heard thereon. (Diona v. Balangue, G.R. No. 173559, 7January 2013) RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS Section 1. Section 1. Amendments iri general. - Pleadings may be amended by adding or striking out an·allegation or the name ·of any party; bf correcting a mistake in the name of a party or a mistaken or inadequate allegatidh or description irr any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the -most expeditious and inexpensive manner. (1) Amendments in general. - Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken . or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, in the most expeditious and inexpensive manner. (la) Section 2. Section 2. Amendments as a matter of right. - A party may amend his pleading once as a Amendments as a matter of rigbf. - A party may amend his pleading once as a matter of right at any or 1. Same principles as those under the 1997 Rules. : 1. Same principles as those under the 1997 Rules. I COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (2a) time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) calendar days after it is served. (2a) Section 3. Section 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it ;;tpp~ars to the court that the motion wa:s made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to oe heard. (3a) Amendments by leave of court. - Except as provided in the next preceding Section, substantial amendments may be made only upon leave of court. But such leave shall be refused if it appears to the court that the motion was made with intent to delay or confer jurisdiction on the court or the gleading stated no cause of action from the beginning which could be amended. Orders of the court upon the matters provided in this Section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a) 1. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served. But, the court may, upon motion at any stage of an action, and upon ·such terms as may be just, order or give leave to a party to amend his pleading, to the end that the real matter ih dispute and all matters in the action in dispute between the parties may, as far as possible, be completely determined in a single proceeding. Even after an order dismissing 85 86 1HE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN his complaint is issued, an amendment may still be allowe& The motion to amend should be filed before the order of dismissal becomes· final a:nd unappealable, because theteafter there would be riothing to amend. ( Coristariiino v. Reyes,G.R. No: z:..16853,'29 Junei963). •'. 2. The,policy ;in •• this jurisdiction .. is that amend.merits to plea,dings a~y,. f~vore4 a,nd,,, 41:>ei;:ally allowed in.the. interests of substantial justice. Thµs; apiendqi.en~ ._of the complaint ; may be allowed even ·if an· order for its dismissal· has been iss.ued so long as the motion to amend is filed before the. order COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND IBE 2019 AMENDMENTS TO 1HE 1997 RULES OF CIVIL PROCEDURE 87 of dismissal acquired finality. (Tirona v. Alejo, G.R. No. 129313, 10 October 2001) 3. The motion to amend the complaint may be denied on the following grounds: a. The motion was made with intent to delay; b. The motion seeks to confer jurisdiction on the court; or C. The pleading stated no cause of action from the beginning which could be amended. 4. Pursuant to Rule 10, Section 1 of the 1997 Rules, if the amendment of the complaint was a matter of right, then it 88 THE PRE-WEEK REVIEWER FORJITIBRY BAR TAKERS Volume IV COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE delaying the resolution of the motion to amend the complaint until after the expiration of 30 days from notice to plaintiff of the order of dismissal. If the appeal was taken , from the order of dismissal, plaintiff stands on the sufficiency of his complaint. But if he decides to amend his pleading and his motion for leave to do is denied, an appeal from the order of denial puts in issue the propriety of the amendment. (Constantino, G.R.No. L-16853) would seem that plaintiff can amend his complaint to the end of conferring jurisdiction on the court or in order for the complaint to state a cause of action since it is only under Rule 10, Section 2 of the 1997 Rules where said amendments was expressly stated to be have been disallowed. 5. If the amendment was denied, the order of denial is appealable and the time within which to appeal is counted from the order of denial, not from the order dismissing the original complaint. Otherwise, the right to take such appeal would be at the mercy of the court, which could frustrate it by the simple expedient of 89 Section 4., Formal Section 4. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the 1. No amendments. Same principles as those under the 1997 Rules. 90 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV court at any stage of the action, at its initiative or on motion; provided no prejudice is caused thereby to the adverse party. (4a) court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party. ( 4) Section 5Amendment to conform to or authorize presentation of evidence. - When issues not raised by the pleadings are tried with the express or implied consent of the parties they shaltbe treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues Section 5- No amendment necessary to conform to or authorize presentation of evidence. - When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. No amendment of such pleadings deemed amended is necessary: to cause them to conform to the evidence.{2fil 1. The failure of a party to amend a pleading to conform to the evidence adduced during trial does not preclude an adjudication by the court on the basis of such evidence which may embody new issues not raised in the pleadings, or serve as a basis for a higher award of damages. Although the pleading may not have been amended to conform to the evidence submitted during trial, judgment may nonetheless be rendered, not simply on the basis of the issues alleged but also on the COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 91 basis of issues discussed and the assertions of fact proved in the course of trial. The court may treat the pleading as if it· had been arriendedt6 conform to the evidence, although it had not been actually so amended. (Greenstar Express, Inc. V. Universal Robina Corp., G.R. No. 205090, 17 October 2016) made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a) . Section6. Supplemental pleadings,..~ Upon motion· of a•party the court may, upon reasonable. notice and upon,su,ch terms a.s:are just, permit Jtim to serve a sµppleJillental pleading• setting forth transactions, occurrences or events which have happened since the date· qf the .pleading sought to be. 12Amertdment Section 6. Supplemental plead(ngs. - Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him or her 12 to serve a supplemental pleading setting forth. transactions, occurrences or events which have happened since the date of the pleading sought to be refers to gender inclusiveness. 1. Same principles as those under the 1997 Rules. 92 TIIE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. (6a) supplemented. The adverse party may plead thereto within ten (10) calendar days from notice of the order admitting the supplemental pleading. (6a) Section 7 ~ ''Filing of amended pleadings. - When any pleading is amended, a new copy of the er1.tit,:e pleading, ihcorpora:ting the amendments, which shall be indicated by appropriate marks, shall be filed. (7a) Section 7. Filing of amended pleadings. - When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (7) Section 8. Effect of amended pleadings. -An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n) Section 8. Effect of amended pleadings. · - An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may' be offered in evidence against the pleader, and claims ?r defenses, alleged therein not incorporated· in the amended pleading shall be deemed waived. (8a) COMPARATNE MATRlX OF THE 1997 RULES OF ClVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF ClVIL PROCEDURE 1. No amendment. Same principles as those l;mder the 1997 Rules. 1. Pleadings superseded or amended· disappear frbin the record; · lose their· status as pleadings, and cease to be judicial admissions; While they may nonetheless be utilized against the pleader as extrajudkial admissions, they -must, in order to have . such effect; be formally offered in evidence. If 1 93 not offered in evidence, the admission contained therein will not be considered. Consequently, the original complaint, having been amended, lost its character as a judicial · admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. (Ching v. CA, G.R. No. 110844, 27 April 2000) RULE 11 WHEN TO, FILE RESPONSIVE PLEADINGS Section 1. Answer to the complaint. - The defendant shall file his answer to the-complaint within fifteen (15) days after service of summons, unless a 13Amendment Section 1. Answer . to the complaint. - The defendant · shall file his or : her 13 answer to the complaint within . thirty (30) calendar days after service of summons, refers to gender inclusiveness. Summary of Periods Pleading Answer Rec- Period koned From From per. sonal service or substituted 30 calendar days, unless a different time is 94 IBE PRE-WEEK REVIEWER FORJITfERY VolumeN different period is fixed by the court. (la) BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND IBE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE seivice of summons unless a different period is fixed by the court. (la) fixed by the court (section) When amended Same com- notice of plaint was filed ,notasa the order admitting the same. period for answers to third party complaints, etc. Answer of a defendant · foreign juridical entity If summons served ona resident agent 30 clays Answer of a defendant foreign juridical entity Where the defendant shall be filed within 60 calendar clays after receipt of 1s a foreign private juridical II matter of right Answer supplemental complaint maybe an- ;: .,., .. by-such. entity . Answer to amend-· ed complaint .When 30 . ~ine'nd: -~lendar' :eel ·c1aysJrom µ>m, •.servic;e of :siunm011S plaint new or supplemental answer is filed. ,w;;s· filedas a'mat ter of right 0 within 20 calendar days from notice of the order admitting the same, unless a different period is fixed by the court. (N.B.: The answer to the complaint shall serve as the answer to the supplemental complaint ifno same, sum- ., earlier filed may setve as the filed.) Answer swered .•fuons. answer answer is service I (N.B.:An answer tityand >=::'' .I within 15 calendar clays from to the amended complaint if no new en-, of summons is made on the governrnent official designated by law to ,.. -':"ive 95 Answer Answer .toa compulsory or permissive within 20 calendar clays from service. ' 96 Tiffi PRE-WEEK REVIEWER FOR JI1TERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE coun- complained of, the paragraphs wherein they are contained, and the details desired. terclaim or cross- claim Reply If allowed under Section 10, Rule6 hereof. (when the defense raised in the answer is foundedon may be filed within 15 calendar days from service of the pleading responded to. Answer If summons was served by publication To Bill of Particulars 60 days after notice (Rule 14, Sections 15-17, Amended Rules (N.B.: an ac- While summons maybe served by publication under Rule 14, Section 14 of the Amended Rules, there is no period indicated to file an answer if tionable document) Answer 97 Before responding to a pleading, a party may move for a definite statement or for a bill of particuJars. summonswas If the served to a foreign juridical entity through publica- pleading is a reply, the motion must be filed within 10 calendar days from service thereof. Such motion shall point out the defects tion. Answer in Intervention to the com- within 15 calendar days from plaintin-inter- notice of the order vention admitting we same, unless a different period is fixed by the court. 98 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 2. Answer of a defendant foreign private juridical entity. - Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such entity. (2a) Section 3. Answer to amended complaint. - Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended complaint Section 2. Answer of a defendant foreign private juridical entity. - Where the defendant is a foreign private juridical entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within sixty (60) calendar days after receipt of summons by such entity. (2a) Section 3. Answer to amended complaint. - When the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within thirty: C30) calendar days after being served with a copy thereof. Where its filing is not a matter of right, the defendant shall answer the amended complaint within fifteen 052 calendar days from notice of the order admitting the same. An answer earlier filed may serve as the answer to the amended 1. 1. See notes under Rule 11, Section 1 of the Amended Rules. See notes under Rule 11, Section 1 of the Amended Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE if no new answer is filed. complaint if no new answer is filed. This Rule shall apply to the answer to an amended . counterclaim, amended crossclaim, amended third (fourth, etc.)party complaint, and amended complaintin-intervention. (3a) This Rule shall apply to the answer to an amended counterclaim, amended crossclaim, amended third (fourth, etc.)-party complaint, and amended complaintintervention. (3a) Section 4. Answer to counterclaim or cross-claim. - A counterclaim or cross-claim must be answered within ten (10) days from service. (4) Section 4. Answer to counterclaim or cross-claim. - A counterclaim or cross-claim must be answered within twen!)'. (20) calendar days from service. (4a) 1. See notes under Rule 11, Section 1 of the Amended Rules. Section 5. Answer to third (fourth, etc)party complaint. The time to answer a third (fourth, etc.)-party complaint shall be governed by the same rule as · the answer to the complaint. (Sa) Section 5. Answer to third (fourth, etc.)party complaint. The time to answer a third (fourth, etc.)-party complaint shall be governed by the same rule as the answer to the complaint. (5) 1. See notes under Rule 11, Section 1 of the Amended Rules. Section 6. Reply. A reQly if allowed under Section 10 Rule 6 hereof may be filed within fifteen 052 calendar days from service of the pleading responded to. (6a) 1. See notes under Rule 11, Section 1 ofthe Amended Rules. Section 6. Reply. A reply may be filed within ten (10) days from service of the pleading ·responded to. (6) 99 100 THE PRE-WEEK REVIEWER FORJ!TrERY BAR TAKERS Volume IV COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE . Section 7. Answer Section 7. Answer to supplemental complain. - A supplemental complaint may be answered within ten (10) days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no.new or supplemental answer is filed. (n) to supplemental complaint. - A supplemental complaint may be answered within twenty (20) calendar days from notice of the order admitting the same, unless a different period is fixed by the court. The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental. answer is filed. (7a) Section 8. F.xisting Section 8. F.xisting counterclaim or cross-claim. A compuJsory counterdaim or a · cross-claim that a defending party has at the· time he files his answer shall be · contained therein. (Sa, R6) counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a defending party has at the time he or she files his or her 14 answer shall be contained therein. (Sa) Section 9. Counterclaim or cross-claim arising . after answer: - A counterclaim or a cross~claim which either matured or was acquired by a 14 Section 9. Counterclaim or cross-claim arising after answer. - A counterclaim or a cross-claim which either matured or was acquired by a Amendment refers to gender inclusiveness. I. I. See notes under Rule 11, Section 1 of the Amended Rules. See notes under Rule 11, Section 1 of the Amended Rules. party after serving his pleading may, with the permission of the court, be presented as a counterclaim or a crQss-claim by supplemental pleading before judgment. (9, R6) 1. See notes under Rule U, Section 1 of the Amended Rules. party after serving his or her pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9a) Section to. Omitted Section 10. Omitted counterclaim or cross-claim. -,- When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or crossclaim by amendment before judgment. (3, R9) counterclaim or cross-claim. - When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he or she' 5 may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment. (10a) Section 11. Extension of time to plead. - Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules. The court may also, upon like terms, allow an answer or other pleading to be 15Amendment 101 See notes under Rule 11, Section 1 of the Amended Rules. I. Only a motion for extension of time to file an answer may be filed. Moreover, only one of such motion is allowed. Section 11. 1. Extension of time to file an answer. - A defendant may for meritorious reasons be granted an additional ~riod of not more than thitn: (30) calendar days to file an answer. A defendant is only allowed to file one (1) motion for 2. A motion seeking an additional period within which to file other refers to gender inclusiveness. 102 IBE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV filed after the time fixed by these Rules. (7) extension of time to file an answer. A motion for extension to file any gleading other than an answer is grohibited and considered a mere scrag of gageE The court however may allow any other gleading to be filed after .the time fixed by these Rules. (Ila) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE pleadings will be considered a mere scrap of paper. It is a prohibited pleading. I RULE 12 BILLOF PARTICULARS Section L When · applied for; purpose. - Before responding to a pleading, a .· party may. move for a definite statement · or for a bill of particulars of any matter which is hot averted with sufficient definiteness or .particularity to enable him ptoperly · to prepare his. . responsive pli;:ading. If the pleadin~ is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point out the defects 16 Section 1. Wben applied for,'.purpose. ---:-Before responding to a pleading, a party may move for a definite statement · or for a bill of particulars ofany matter, which is not averred with sufficient definiteness or particularity, to enable him or her 16 properly to prepare his or her 11 responsive pleading. If the pleading is a reply; the motion must be filed within ten (10) calendar days from service thereof. Such motion Amendment refers to gender inclusiveness. 17/d. L Amendment refers to gender inclusiveness. Same principles as those under the 1997 Rules: . complained of, the paragraphs wherein they are contained, and the details desired. (la) shall point out the defects complained of, the paragraphs wherein they are contained, and the details desired. (la) Section 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court which may either deny or grant it outright, or allow the parties the opportunity to be heard. (n) Section 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court, which may either deny or grant it outright, or allow the parties the opportunity to be heard. (2) 1. Same principles as those under the 1997 Rules. Section 3. Compliance with order. - If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n) Section 3. Compliance with order. - If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) calendar days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (3a) 1. Same principles as those under the 1997 Rules. 103 104 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULESOF CML PROCEDURE Volume IV 4. Effect of non-compliance. - If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (l[c]a) 4. Effect of non-compliance. - If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the striking out of the pleading or the portions thereof to which the order was directed, or make such other order as it deems just. (4) Section 5. Stay Section 5. Stay Section of period to file responsive pleading. - After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within.the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event. (l[b]a) 18 Section of period to file responsive pleading. - After service of the bill of particulars or of a more definite _pleading, or after notice of denial of his or her 18 motion, the moving party may file his or her 19 responsive pleading within the period to which he or she 20 was entitled at the time of filing his or her 21 motion, which shall not be less than five (5) calendar days in any event. (Sa) Amendment refers to gender inclusiveness. 19/d. zold. 21/d. 1. Sarne principles as those under the 1997 Rules. Section 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for which it is intended. (l[a]a) Section 6. Bill a part of pleading A bill of particulars becomes part of the pleading for which it is intended. (6) 1. Same principles as those under the 1997 Rules. 105 RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS 1. Sarne principles as those under the 1997 Rules. Section 1. Coverage. - This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (n) Section 1. Coverage. - This Rule shall govern the filing of all pleadings, motions and other court submissions as well as their service, except those for which a different mode of service is prescribed. (la) 1. This Rule now includes motions and other court submissions. Section 2. Filing Section 2. Filing 1. and seroice, de.fined. - Filing is the act of presenting the pleading or other paper to the clerk of court. and Service, de.fined. - Filing is the act of submitting the pleading or other paper to the court. Filing is the act of submitting a pleading and other papers in court. 2. Service is the act of providing a party with a copy of the pleading or any other court submission. If £! party has appeared by counsel, service upon such party shall be made upon his or her counsel, unless service upon the party and the Sen-ice is the act of furnishing a pc.rty with a copy of the plei:.ding or any other court submission to be filed in court. 3. When a party is rep:-esented by counsel, service of the copy shall be :nade upon the latter. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party 106 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a) pa11Y:'scounsel is ordered by the court. Where one counsel appears for several parties, such counsel shall only be entitled to one copy of any paper served by the opposite side. Where several counsels aQgear for one pa!1Y: such pa11Y:shall be entitled to only one coQy of any Qleading or 12a2er to be served UQon the lead counsel if one is designated or UQOnany one of them if there is no designation of a lead courisel. (2a) 4. The importance of designating a lead counsel is now statutorily recognized. Service will be made on the lead counsel and it is his receipt that will be the reckoning point of the reglementary period. 5. Without a lead counsel being designated, notice to any one of the several counsels on record is equivalent to notice to all and such notice starts the time running for appeal notwithstanding that the other counsel on record has not received a copy of the decision. (Philippine Ports Authority v. Sargasso Construction & Development Corp., G.R. No. 146478, 30 July 2004) COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Section 3. Manner of filing. - The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, per~onally to the clerk of court or by sending them by registered· mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, -.pleadings, or any otlier papers or payments or deposits, as shown by the post office stamp on the envelope or the reg1stry receipt, shall be considered as the date of their filing; payment, or deposit in court. The envelope shall be attached to the . record ofthe case. (la) , Section 3. Manner of filing. - The filing of pleadings and other court submissions shall be made by: 1. (a) Submitting personally the original thereof plainly indicated as such to the court; (b) Sending them by registered mail; (c) Sending them by accredited courier· or (d) Transmitting them by electronic mail or other electronic means as may be authorized by the Court in. Qlaces where the court is electronically eguii;>Qed. In the first case, the clerk of.court shall endorse on the pleading the date and hour of filing. In the second and third cases, the date of the mailingof motions, pleadings, and other court submissions, and payments or ,· 107 Modes of filing in court: a. Personal service; b. Registered mail; c. Courtaccredited private courier; and d. With prior approval of the court, via electronic mail. 2. With the repeal of Rule 13, Section 13 of the 1997 Rules, there is no more priority as to the mode in the filing and service of pleadings. 3. Under Rule 13, Section 1(2) of the Amended Rules, the date of the mailing of motions, pleadings, and other court submissions, and payments or deposits, as shown by the post office stamp on the envelope 108 lHE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. In the fourth case the date of electronic transmission shall be considered as the date of filing. (3a) or the registry receipt, shall be considered as the date oftlieir filing, payment, or deposit in court. This provision only referred to filing via registered mail. One is thus bound to ask: When is the pleading deemed filed in court if the mode of filing is through the court accredited private courier? Will the ruling that "the date of delivery of pleadings to a private letterforwarding agency is not to be considered as the date of filing thereof in court, but the date of actual receipt by the court, is deemed the date of filing of that pleading (Heirs of Numeriano v. Miranda, G.R. No. 179638, 13 July 2013) still apply? COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 109 Section 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court," and served upon the parties affected. (2a) Section 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected. (4) 1. No amendment. Same principles as those under the 1997 Rules. Section 5. Modes of service. - Service of pleadings motions, notices, orders, . judgments and other papers shall be made either personally or by mail.(3a) Section 5. Modes of Service. - Pleadings, motions, notices, orders, judgments, and other court submissions shall be served 12ersonally or by registered mail accredited courier electronic mail facsimile transmission other electronic means as may be authorized by the Court or as 12rovided for in international conventions to which the Phili1;mines is a ~(Sa) 1. Modes of serving a pleading to the adverse party under the Amended Rules: a. Personal service; b. Registered mail; C. Courtaccredited private courier; d. Facsimile transmission; e. Electronic mail; f. g. Other electronic means; As maybe provided for international conventions to which the 110 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN Philippines is a party; 2. Secµon 6. Personal seroice. - Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's Section 6. Personal Seroice. - Court submissions may be served by gersonal delivery of a copy to the party or to the ~ counsel, or · to their authorized regresentative named in the ag12rogriate gleading or motion or by leaving it in his or her 22 office with his or her clerk, or with a person having charge thereof. If no person is found in his or her 23 office, or his or her office is not known, or he or she 24 has no office, h. Substituted service of pleadings; and i. Ordinary mail. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE residence, if known, with a person of sufficient age and discretion then residing therein. ( 4a) The court's approval is necessary before service through other electronic means. then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein. (6a) Modes of Personal Service: 1. 2. Personal delivery of a copy to the party or to the party's counsel, or to their authorized representative named in the appropriate pleading or motion; By leaving it in his or her office with his or her clerk, or with a person having charge thereof; or Section 7. Service by mail. - Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after Section 7. Service by mail. - Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or to the ~counsel at his or her office, if known, otherwise at his or her 25 residence, if known, with postage fully pre-paid, and with instructions to the postmaster to 22 Amendment refers to-gender inclusiveness. 23/d. 24/d. 3. 25Amendment refers to gender inclusiveness. 111 (f no person is found in his or her office, or his or her office is not known, or he or she has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion residing therein. Service by mail can be effected by: 1. Registered mail; or 2. Ordinary mail, which can be resorted to only if no registry service is available in the locality of either the sender or the addressee. 112 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. (5a; Bar Matter No. 803, 17 February 1998) return the mail to the sender after ten (10) calendar days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. (7a) Section 8. Substituted senJice. - If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the pa[o/ or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a) Section 8. Substituted service. - If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his or her 26 counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (8a) 26 Amendment refers to gender inclusiveness. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 2. Service ~ electronic means and [acsimile. Service by electronic means and facsimile shall be made if the gany concerned consents to such modes of service. 1. 2. 3. Substituted service can be resorted to after: (a) failure to personally serve the pleading; and (b) failure to serve by mail. Service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. Clearly, there is no need to resort to electronic service or service through Service by electronic means shall be made by: sending an e-mail to the gany's or counsel's electronic mail address or through other electronic means of transmission as the garties may agree on or ugon direction of the court. 113 an accredited courier before one can resort to substitute service of pleadings. 1. The parties must agree to have pleadings served either through facsimile or through electronic means. 2. Again, under Rule 13, Section 5 of the Amended Rules, pleadings, motions, notices, orders, judgments, and other court submissions shall be served personally or by registered mail, accredited courier, electronic mail, facsimile transmission, other electronic means as may be authorized by the Court. 3. Service by electronic means shall be made by sending an email to the party or counsel's electronic email Service by facsimile shall be made by sending a facsimile cogy: to the gany's or counsel's given facsimile number. (n) 114 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV address or through other electronic means as may be agreed on or upon the direction of the court. From the foregoing, can the parties agree or may the court direct that service of pleadings be done through Facebook or Viber? Section 10. Presum{l_tiveseroice. ~ There shall be presumptive notiE:e to a paJ1Yof a court setting if such notice appears on the records to have been mailed at least twenty {202 calendar dais 12riorto the scheduled date of hearing and if the addressee is from within the same judicial region of the court where the case is pending or at least thim,: {302 calendar dais if the addressee is from outside the judicial region. (n) The presumptive notice to a party of a court setting may arise and invoked it: 1. It appears from the court records that the notice was mailed at least 20 calendar days prior to the scheduled date of hearing if the addressee is from within the same judicial region of the court where the case is pending; or 2. At least 30 calendar days if the addressee is from outside the judicial region. COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 11. Change o{_electronic mail address or [acsimile number: __,.A paJ1Y who changes his or her electronic mail address: or facsimile number while the action is pending must n.romptli file within five {52 calendar dais from such change a notice· of change of e-mail address or facsimile number with the court and serve the notice on all other parties. 1. 115 It is the responsibility of a party or counsel to inform the court any changes in his facsimile or email address within five calendar days from such change. Setvice through the electronic mail address or facsimile number of a paJ1Y shall be· presumed valid unless such partv notifies the court of ani change as aforementioned. (n) Section 12. Electronic mail and [acsimile subiect and title o{,(l_leading_s and other documents . ..;_ The subject of the electronic mail and facsimile must follow the prescribed format: case number case title and the 1. As to form, the pleading may either be attached or the pleading can be the body of the email, provided that it shall contain sufficient information to enable the 116 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN 12leading order or document title. The title of each electronically-filed or seived gleading or other document and each submission served by facsimile shall contain sufficient information to enable the court to ascertain from the title: (a2 the {:;!a!.1¥ or 12arties filing or serving the 12a12er Cb2nature of the 12a12er · (c2 the gany or garties against whom relief if any is sought and (d2 the nature of the relitt sought. (n) Section 9. Seroice of judgments, final orders, or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication Section 13. ·service of Judgments, Final Orders or Resolutions. judgments, final orders; or resolutions shall be seived either personally or by registered mail. Ugon ex (l_artemotion of any gany in the case a cogy of the judgment final order or resolution mav be delivered by accredited courier at the e;imense of such ~ When a court to ascertain from the title: (a) the party or parties filing or setving the paper; (b) nature of the paper; (c) the party or parties against whom relief, if any, is sought; and (d) the nature of the relief sought. COMPARATIVEMATRIX OF 1HE 1997 RULES OF CIVIL PROCEDURE AND TI-IE 2019 AMENDMENTS TO 1HE 1997 RULES OF CML PROCEDURE at the expense of the prevailing party. (7a) Section 14. Conventional service or{iling o[orders tJ_leadingsand other documents. - Notwithstanding the foregoing the following orders gleadings and other documents must be served or filed 12ersonally or by registered mail when allowed and shall not be served or filed electronically ·unless express 12ermission is granted by the Court: Modes of service of judgments, final orders, or resolutions: 1. Personal service; 2. Registered mail; 3. Publication, if summons was setved through publication; and 4. Accredited private courier can be resorted to only: (a) upon ex parte motion; and (b) payment by the party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him or her 27 shall be setved upon him or her 28 also by means of publication at the expense of the prevailing party. (9a) (a) Initiatory gleadings and initial resgonsive gleadings such ·as an answer· 27Amendment "JJ3Jd. refers to gender inclusiveness. 117 movant of the expenses to be incurred to effect the same. The following pleadings cannot be served or filed electronically, unless expressly allowed by the court: 1. Initiatory pleadings and initial responsive p!eadings, s_uch as an answer. This includes answer to a third party complaint or answer to a -permissive counterclaim; 2. Subpoena, protection orders, and writs; 3. Appendices and exhibits to motions, or other documents 118 THE PRE-WEEK REVIEWERFORJITfERY BAR TAKERS Volume IV (b) Subpoena protection orders and writs· (c) Appendices and exhibits to motions or other documents that are not readily amenable to electronic scanning may at theoption of the Pam' filing such · be filed and served conventionally· and Sealed and confidential. documents or records.Jo) that are not readily amenable to electronic scanning may, at the option of the party filing such, be filed and served conventionally; and 4. Sealed and confidential documents or records. Section 10. Section 15. 1. Completenessof service. - Personal Completen?SSoj service. - J:>ersonal service is complete upon actual delivery, Service by ordinary mail is· complete upon the expiration often (10) days after mailing, unless the cciurt otherwise provides. Service by regist<:'!redmail is complete upon actual receipt by the addressee, or after five (5) days from the date he service is cor:nplete upon actua~ delivery. Service by or<;ljnary mail is complete upon the expiration often (10) calendar days after mailing, unless the court otherwise provides. Servke by registered mail is ccinipl~te upon actual. receipt by the addressee, or after five (5) calendar days from Personal Actual receipt Ordinary Mail Upon the expiration of 10 calendar days after mailing, unless the court othetwise provide Registered Mail Upon actual receipt by the addressee, or after five calendar days ·from the date he or she received the first notice of.the Service is complete when: COMPARATIVEMATRIXOF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTSTO THE 1997 RULESOF CIVIL PROCEDURE received the first notice of the postmaster, whichever date is earlier. (8a) the date he or ~ received the first notice of the postmaster, whichever date is earlier. Service by accredited courier is complete upon actual receipt by the addressee or after at least two (2) attempts to deliver by the courier service or u12on the ex12iration of five calendar days after the first attempt to deliver whichever is earlier. postmaster, whichever date is earlier Accredited private courier Upon actual receipt by the addressee, or after at least two anempts to deliver by the courier service, or upon the expiration of five calendar days after the first anempt to deliver, whichever is earlier Electronic Service At the time of the electronic transmission of the document, or when available, at the time that the electronic notification of service of the document is sent. en Electronic service is complete at the time of the electronic transmission of the document or when available at the time that the electronic notification of service of the document is sent. Electronic service is not effective or complete if the gany serving the document learns that it did not reach the addressee or gerson to be served. Service by facsimile transmission is complete upon receipt by the 119 Electronic service is not effective or complete if the party· serving the document learns that it did not reach the addressee or person to be served. Faesimile Upon receipt by the other party,as indicated in the facsimile transmission printout 120 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume 1V other 12am: as indicated in the facsimile transmission 12rintout. (10a) 2. Service by registered mail is complete upon actual receipt by the addressee. But, if the addressee failed to claim his mail from the post office within five days from the date of the first notice, service becomes effective upon the expiration of five days therefrom. In such a case, there arises a presumption that the service was complete at the end of the said five-day period. This means that the period to appeal or to file the necessary pleading begins to run after five days from the first notice given by the postmaster. This is because a party is deemed to have received and to have been notified of the judgment at 121 that point. (Quelnan v. VHF Philippines, C.R. No. 138500, 16 September 2005) Section 12. Proof of filing. - The Section 16. Proof of filing. - The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster filing of a pleading or any other court submission shall be proved by its existence in the record of the case. (a) If the 12leading or any other court subrnission is not in the record, but is claimed to have been filed personally, the filing shall be proven by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the pleading or court submission: (b) If the 12leading or any other court submission ~ filed by registered mail, the filing shall be i2roven by 1. Proof of filing of pleading is can be found in the court's case folder or records. 2. If the pleading could not be found in the court records, but is claimed to have been filed, the proof shall depend upon the mode of filing: By personal service By the written or stamped acknowledgmentof its filing by the clerk of court on a copy of the pleading or court submission By registered mail a. the registry receipt; and b. bythe affidavit of the person who mailed it, containing a full statement 122 COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV to return the mail to the sender after ten (10) days if not delivered. (n) the registry receipt and by the affidavit of the person who mailed it, containing a full statement of the date and place of deposit of the mail in the post office in a sealed envelope addressed to · the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) calendar days if not delivered. (c) If the pleading or any other court submission was filed through an accredited courier service the filing shall be proven by an affidavit of service of the person who brought the pleading or other document to the service provider together with the courier's official receipt and document tracking number. of the date and place of deposit of the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 calendar days if not delivered. By registered mail By the registry receipt and by the affidavit of the person who mailed it, containing a full statement of the date and place of deposit of the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after 10 calendar days if not delivered By ac- (d) Ifthe pleading credited private or any other courier court submission was filed by electronic mail the same shall be proven b:y an affidavit of electronic filing of the filing party: accompanied by a. pa12er cop:y of the pleading or other document transmitted or a written or stamped By auacknowledgthorized ment of its filing elecb:y the clerk tronic of court. If the means pa12er copy sent b:y electronic mail was filed by registered mail. paragraph Cb) of this Section agglies. . If the pleading or any other court submission was filed through other authorized· electronic means· the same 123 a. An affidavit of service of the person who brought the pleading or other document to the service provider; _b. together with the courier's official receipt and document tracking number. Byan affidavit of electronic filing of the filing party accompanied by a copy.of the electronic acknowledgment of its filing by the court. 124 THE PRE-WEEK REVIEWER FORJITfERYBAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV shall be 1,2roven by an affidavit of electronic filing of the filing 1,2a~ accom1,2anied by a co1,2y of the electronic acknowledgment of its filing by the court. (12a) Section 13. Proof of Seroice. - Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit bf the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed Section 17. Proof of service. - Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a statement of the date, place, and manner of service. If the service is made by: 1. Proof of service of pleading: By ordinary mail By personal service a. A wriuen admission of the party served; b. The official return of the server; or (a) Ordinary mail. - Proof shall consist of an affidavit of the person mailing stating the facts showing compliance with Section 7 of this Rule. c. The affidavit of the party serving, containing a statement of the date, place, and manner of service. (b) Registered mail. - Proof shall be made by the affidavit mentioned Affidavit of the person mailing stating the facts showing compliance with Section 7 of this Rule. By registered mail (a)Abovementioned affidavit; and immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a) (b) The registry receipt above and the registry receipt issued by the mailing office. The registry return card shall be. filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (c) Accredited courier service. - Proof shall be made by an affidavit of service ·executed by the 12erson who brought the pleading or 1,2it2erto the service provider together with the courier's official recei1,2t or document tracking number. (d) Electronic mail facsimile or other authorized electronic means of transmission. - Proof shall 125 issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed leuer together with the certifled or sworn copy of the notice given by the postmaster to the addressee. By accredited private courier i. Affidavit of service executed by the person who brought the pleading or paper to the service provider; and ii. Courier's official receipt or document tracking number. Byelectronic mail, facsimile, or other authorized a. An affidavit of service executed by the person who sent the e-mail, 126 THE PRE-WEEK REVIEWERFORJITfERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDME!\'TS TO THE 1997 RULES OF CIVlL PROCEDURE Volume IV be made by: an affidavit of service executed by: the gerson who sent the e-mail facsimile or other electronic transmission together with a grinted groof of transnlittal. (13a) Section. 18 •. Court- issued orders and other documents. - The court may: electronically: serve orders and other documents to all the garties in the case whk:h shall have the same effect arid validicy:as grovided herein. A gager cogy: of the order or other document electronically served shall be retained and. attached to the record of the case. (n) electronic means of transmission. authorized electronic means facsimile, or other electronic transmission; and b. Printed proof of transmitta!. 1. Does this mean that judgments, final orders or resolutions can be served through electronic means? This may conflict with Rule 13, Section 9 of the Amended Rules Will it not conflict with Rule 13, Section 9 of the Amended Rules. 2. The author submits that Rule 13, Section 13 of the Amended Rules shall apply to the service of judgments and final orders. Section 14. Notice of lis pendens. - In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Oruy from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. Section 12. Notice of lis pendens. In an action affecting the title or the right of pos.session of real property, the plaintiff and the defendant, when affirmative relief is claimed in his or her answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. 1. Same principles as those under the 1997 Rules. 127 128 COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it to be recorded. (24a, R-14) [NOTE: Section 11. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (14a) Rule may be cause to consider the paper as not filed. (h) RULE 14 SUMMONS Section 1. Clerk to Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk ofcourt shall forthwith issue the corresponding summons to the defendants. (la) issue summons. Unless the complaint is on its face dismissible under Section 1 Rule 2 the court shall within five {5) calendar days from receipt of the initiatory pleading and proof of payment of the reQuisite legal fees direct the clerk of court to issue the corresponding summons to the defendants. (la) Priorities in modes of seroice and filing.-deleted] Section 11. Priorities in modes of seroice and filing. - Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from J:hecourt, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this 129 / 1. Jurisdiction over defendant is acquired either upon summons validly served on him or his voluntary appearance in court. When defendant does not voluntarily submit to the court's jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void. (Manotoc v. CA, G.R. No. 130974, 16 August 2006) 2. No summons will issue if the court, motu proprio, decides to dismiss the complaint on the following grounds: (a) no jurisdiction over I 130 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN the subject matter; (b) litis pendentia; (c) res judicata; and (d) prescription. COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE ;; "] $\1 3. Courts-·are now given five calendar days from receipt of the initiatory pleading, with proof of payment of the legal fees, to cause the issuance of the summons. 4: The service of summons is a vital and indispensable ingredient of due process. As a rule, if defendants were not validly summoned, then the court does not acquire jurisdiction over their persons, and a judgment rendered against them is null and vqid. (Chu v. Mach Asia, G.R. No. 184333, 1 Apri/2013) 5. If the court failed to acquire jurisdiction over 131 the defendant because of improper service of summons, then: a. Under Rule 8, Section 12 (aXl) of the Amended Rules, said ground should be raised as affirmative defense in the answer. b. Under Rule 8, Section (b) of the Amended Rules, the ccurt shall resolve motu proprio the said affirmative defense within 30 cc.lendar days from t.1i.efiling of the ans'\ver. c. In the, event that the affirmative defense is denied: i. It shall not be subject toa motiorifor reconsi- 132 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN deration or petition for certiorari, prohibition or mandamus. ii. The proper remedy is to go to trial, and in the event of an adverse judgment, appeal the same and raise the order of denial as one of the assigned errors; pursuant to Rule 8, Section 12(d) of the Amended Rules. ~on. 2. ,Contents. - The summons shall be directed to the def~ndant, signedby th~clerk of court under seal and contain (a) the nameofthe court and thena:mes of the parties to the action; (b) a direction that the defendant Section 2. Contents. - The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) The name of the court and the names of the parties to the action; 1. COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem if any, shall be attached to the original and each copy of the summons. (3a) Under item (b) of this Section under the Amended Rules, if the court authorized plaintiff to serve the summons, such must be stated in the summons. Section 3- By whom served. ..:._The summons may be served by the sheriff, his deputy, or other 29Amendment (b) When authoriz!;:d hy the court upon ex 12.artemotion an authorization for the plaintiff to serve summons to the defendant· (c) A direction that the defendant answer within the time fixed by these Rules; and (d) A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the ·complaint and order for appointrnent of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (2a) Section 3. By whom served.- The summons may be served by the sheriff, his or her29deputy, or refers to gender inclusiveness. 133 2. The court may issue the authorization upon exparte motion an authorization for the plaintiff to serve summons via electronic service. 1. Under the Amended Rules, the following persons are now 134 THE PRE-WEEK REVIEWER FORJITfERY Volume IV proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons, (5a) BAR TAKERS other proper court officer, and in case of failure of service of summons by them the court may authorize the glaintiff - to seive the summons together with the sheriff. In cases where summons is to be served outside the judicial region of the court where the case is geI1dihg the glaintiff shall be authorized to cause the service of summons. If the 1ifaintiff is a juridical entity it shall no!ili'. the court in writing and name its authorized regresentative therein attaching a board resolution or secreta!:l['S certificate thereto as the case may be ·stating that such representative is duly authorized to serve the summons on behalf of the plaintiff. If the plaintiff misrepresents that the defendantwas served summons and it is later proved authorized to serve summons: 2. a. Sheriff b. Deputy sheriff C. Plaintiff, if authorized by the court, and the court sheriff. This Section must be read in conjunction with Section 2. Thus, plaintiff may be authorized to serve the summons as follows: a. Where there is failure of service of summons, the court may authorize plaintiff to serve the summons anew with the sheriff; b. Where summons is to be seived outside .the ju,diciaJ region of the ·court where the case is pending, COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE that no summons was served the case shall be dismissed with grejudice the proceedings shall be nullified and the plaintiff shall be meted aggropriate sanctions. 135 plaintiff shall be authorized to cause the service of summons. The sheriff of the issuing court may not assist him since such service is outside his territorial jurisdiction. If summons is returned without being served on any or all the defendants the court shall order the plaintiff to cause the service of summons by other means available under the Rules. Nevertheless, the author submits that plaintiff must still coordinate with the sheriff having territorial jurisdiction over the case. Plaintiff alone cannot serve the summons, and is merely authorized to cause the same. Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice. (3a) c. If the plaintiff was a juridical entity, it should 136 THE PRE-WEEK REVIEWER FOR JITfERY BAR TAKERS Volume IV designate a representative that maybe authorized to serve the summans. The pertinent secretary's certificate or ,director's resolution should be submitted to the court. 3. 4. If plaintiff would misrepresent that defendant was served summons, then: a. The case will be dismissed with prejudice; b. The proceedings will be nullified; and C. Plaintiff shall be meted appropriate sanctions. If summons was returned unserved, the court shall order plaintiff to COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 137 cause the service of summons by other means such as by publication. a. Failure to comply with· the court's order of the court shall cause the dismissal of the initiatory pleading, without prejudice. b. This appears to be an exception to Rule 17, Section 3 of the Amended Rules where the dismissal of the complaint is with prejudice if plaintiff failed to comply with the court's order. 138 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VolumeN [NOTE: Section 4. Return, Section 9] Section 5. Issuance of alias summons. - If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiffs counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a) Section 6. Seroice in person on defendant. -Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for is now Section 4. ValiditJ! o{.summons and issuance of alias summonsSummons shall remain valid until duly: served unless it is recalled by: the court. In case of loss or destruction of summons the court may: upon motion issue an alias summons. it, by tendering it to him. (7a) 1. Summons will remain valid until it is: (a) recalled; (b) destroyed; or (c) lost. 2. An alias summons is merely a continuation of the original summons. There is no sense in issuing an alias summons on the original complaint since the complaint had already been amended. (1be Philippine American Life &General Insurance v. Breva, G.R. No. 147937, 11 November 2004) There is failure of service after unsuccessful attempts to personally: serve the summons on the defendant in his or her address indicated in the complaint. Substituted service should be in the manner provided under Section 6 of this Rule. (Sa) Section 5. Seroice in person on defendant. -Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or COMPARATNE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 1. Jurisdiction over a defendant in a civil case is acquired either through service of summons or through voluntary appearance in court and she is being served or, if he or she refuses to receive and sign for it, .!2y: leaving the summons within the view and in the presence of the defendant. (6a) 139 submission to its authority. In the absence of service or when the service of summons upon the person of the defendant is defective, the court acquires no jurisdiction over his person, and a judgment rendered against him is null and void. (Interlink Movie Houses, Inc. v. CA, G.R. No. 203298, 17 January 2018) 2. J>er:sonalservice is effected by handing a copy of the summons to the defendant in person or, if he would refuse to receive and sign for it, by tendering it to him. (Interlink Movie Houses, Inc. v, CA, G.R. No, 203298, 17 January 2018). 3. Tendering summons as mentioned in l(b) above is itself a means of personal 140 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume fV COMPARATIVE MATRIX OF TiiE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE thereof. (Sansio Philippines, Inc. v. Sps. Mogol, G.R. No. 177007, 14July 2009) service. (Manuel v. Ong, G.R. No. 205249, 15 October 2014) 4. If defendants would refuse to receive and sign the summons, then the process server must tender the same to them by leaving a copy at the residence of defendants. If summons could not be served in person because of the absence of the defendants at the address stated, then the same can be served by: (a) leaving copies of the summons at the defendants' residence with some person of suitable age and discretion residing therein; or (b) leaving the copies at defendants' office or regular place of business with some competent person in charge 141 Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as. provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving tl,ie copies at defendant's office or regular place of business with some competent person in charge thereof. (Sa) Section 6. Substituted service. - If, for justifiable causes, the defendant cannot be served personally after at least three (32 attempts on two (22 different dates service may be effected: (a) By leaving copies of the summons at the defendant's residence to a person at least eighteen (182 years of age and of sufficient discretion residing therein· (b) By leaving copies of the summons at the defendant's office or regular place of business with some competent person in charge thereof. A comgetent ~rson includes but is not limited 1. Regardless of the. type of actionwhether it is in personam in rem or quasi in rem - the preferred mode of service of summons is personal service. To avail themselves of substituted service, courts must rely on a detailed enumeration of the sheriffs actions and a showing that the defendant cannot be served despite diligent and reasonable efforts. The sheriffs return, which contains these details, is entitled to a presumption of regularity, and on this basis, the court may allow substituted service. Should the sheriffs return be 142 THE PRE-WEEK REVIEWER FORJITIERY Volume IV BAR TAKERS to one who customarily receives correspondences for the defendant· wanting of these details, substituted service will be irregular if no other evid~nce of the efforts to serve summons was presented. Failure to serve summons will mean that the court failed to acquire jurisdiction over the perso"u of the defendant. However, the filing of a motion for new trial' or reconsideration is tantamount to voluntary appearance. (DePedrdv. Romasan Corp., G.R. No. 194751, 26November 2014) (c) By leaving copies of the summons. if refused engy upon making his or her authority and pumose known with any of the officers of the homeowners' association or condominium comoration or its chief security officer in charge of the community or the building where the defendant may be found· and (d) By sending an electronic mail to the defendant's electronic mail address if allowed by the court. (7a) 2. To enjoy the presumption of regularity, a sheriffs return must contain: (1) detailed circumstances surrounding the sheriffs attempt to serve the summons on the COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 143 defendant; and (2) the specifics showing impossibility of service within a reasonable time. 48 Based on these requirements, a sheriffs return is merely pro Jorma. (People's General Insurance Corp. v. Guansing, G.R. No. 204759, 14November 2018) 3. The following requirements to effect a valid substituted service: a. Impossibility of Prompt Personal Service The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility 144 TIIE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV of prompt service. Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to serve the summons to the defendant in person but no specific time frame is mentioned. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND TI-IE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CML PROCEDURE 145 if any[,] to the other party." Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. What then is 2. reasonable time for the sheriff to effect a personal 146 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 147 provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administra- tor within the first ten (10) days of the succeeding month. Thus, one monthfrom the. issuance of slim-' mans can be· considered "reasonable time".with regard to personal ser~ vice 01). the defendant. Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, 148 TIIE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus,they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of COMPARATIVEMATRIX OF TIIE 1997 RULES OF CML PROCEDURE AND TIIE 2019 AMENDMENfS TO THE 1997 RULES OF CML PROCEDURE 149 summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries preferably on at least two different dates. In addition the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted. 150 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV (b) Specific Details in the Return The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal seivice. The efforts made to find the defendant and the reasons behind the failure must becleady narrated in detail in the Retum.·The date and time of the attempts on. personal service, the inquiries inade to locate the defendant, thename/s ofthe occupants of the alleged residence or house of defendant COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVlL PROCEDURE 151 and all other acts done, though futile, to seive the summons on defendant must be specified in the Return to justify substituted seivice. The form on Sheriff's Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. Supreme Court Administrative Circular No. 5 dated November 9, 1989 152 TIIE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV COMPARATIVE MATRlXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE requires that "im12ossibilicy of 12rom12t service should be shown by stating the efforts made to find the defendant 12ersonally and the failure of such efforts " which should be made in the 12roofof service. (c) A Person of Suitable Age and Discretion If the substituted service will be effected at defendant's house or residence, it should be left with a person of "suitable age and discretion then residing therein." A 12erson of ., 153 suitable age and discretion is one who has attained the age of full legal ca12acicy 08 years old) and is considered to have enough discernment to understand the im12ortance of a summons. "Discretion'.' is defined as "the abilicy to make decisions which re12resent a res12onsible choice and for which an understanding of what is lawful right or wise may be 12resu12wsed." Thus, to be of sufficient discretion, such person must know how to read and understand 154 IBE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus the person must have the "relation of confidence" to the defendant ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND TIIE 2019 AMENDMENTS TO TIIE 1997 RULES OF CIVIL PROCEDURE 155 found in the alleged dwelling or residence of defendant is of legal age what the recipient's relationship with the defendant is, and whether said person comprehends the significance ofthe receipt of the summons arid his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons. 156 COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return. (Manotoc v. CA, G.R. No.130974, 16August 2006) (d) A Competent Person in Charge If the substituted service will be done at defendant's office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation 157 I 4. The Amended Rules provides different ways of effecting substituted service of summons: e. By leaving copies of the summons at the defendant's residence to a person at least eighteen (18) years of age and I, 158 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV of sufficient discretion residing therein; f. g. By leaving copies of the summons at the defendant's office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant; By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 159 the homeowners' association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant maybe found; and h. By sending an electronic mail to the defendant's electronic mail address, if allowed by the court. 5. The service of the summons on a person at a place where he was a visitor is not considered to have been left at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends to 160 THE PRE-WEEK REVIEWER FOR JITI'ERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE return. (Domagasv. Jensen, C.R. No. 158407, 17 January 2005) be "duly qualified" and "having sufficient capacity, ability or authority. 6. The recipient of the summons, was merely a "maintenance" man who offered his services not only to petitioner but to anyone who was so minded to hire his assistance. His occupation as a freelance service contractor, not as employee of defendant. It follows from this that the maintenance man, not being an employee thereof, would be an incompetent person to receive the summons in defendant's behalf. Tobe a "competent" person to receive the summons means that he should {61 The rule presupposes that such a relation of confidence exists between the person with whom the copy is left and the defendant and, therefore, assumes that such person will deliver the process to defendant or in some way give him notice thereof." (Sandoval v. HRET, C.R. No. 149380, 3 July 2002) 7. In his Return, Sheriff Potente declared that he was refused entry by the security guard in Alabang Hills twice. The latter informed him that petitioner prohibits him from allowing anybody to 162 TI-IE PRE-WEEK REVIEWER FORJ!TrERY BAR TAKERS Volume IV proceed to her residence whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. We note that she failed to controvert the sheriffs declaration. Nor did she deny having received the summons through the security guard. Considering her strict instruction to the security guard, she must bear its consequences. Thus, we agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her. (Robinson v. Miralles, G.R. No. 163584, 12 December 2006) COMPARATIVE MATRIX OF TI-IE 1997 RULES OF CIVlL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Section 8. Seroice upon entity without juridical personality. - When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) Section 7. Seroice upon entity without juridical personality. - When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due , notice, been severed before the action was filed. (Sa) 1. 163 The law does not vest separate legal personality on the sole proprietorship so that it may file or defend an action in court. Only natural or juridical persons authorized by law maybe parties to a civil action and every action must be prosecuted and defended in the name of the real parties-ininterest. Thus,,~ petition for injunction should have impleaded the owner of a sole proprietorship as respondent either by mentioning his name or denominating him as doing business under the name and style of the sole proprietorship. It was erroneous to refer to him, as the petition did in both its caption and body, as representing 164 IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVEMATRIX OF IBE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULESOF CIVIL PROCEDURE Volume IV the enterprise. (Ejercito v. M.R. Vargas Corp., G.R. No. 172595, 10 April 2008) Section 9-·Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for. said purpose: (12a) Section 8. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her 30 by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. The jail warden shall file a return within five (52calendar dais from service of summons to the defendant. (9a) Section 2- Service consistent with international conventions. Service max be made through methods which are consistent with established international conventions to which the Phili1212inesis a ~ (n) 30 Amendinentrefers to gender inclusiveness. 1. The jail warden, and not the sheriff, will serve summons on the prisonerdefendant and prepare the return. By way of accession, the Philippines is a signatory to the "Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters," (the "Convention") concluded on 15 November 1965. 165 Under Article 3 of this Convention, the authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed thereto, without any requirement of legalization or other equivalent formality. If the Central Authority would . find the request compliant with the provisions of this Convention, it shall itself serve the document or shall arrange to have it served by an appropriate agency by: (a) a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory; or (b) a particular method requested by the applicant, unless a method is incompatible with the law of the State ~ddressed. 166 THE PRE-WEEK REVIEWER FOR]IITERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVlL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV Thereafter, the Central Authority shall issue a certificate stating: (a) that the document has been served; (b) the method, place, and date of service; and (c) the person to whom the document was delivered. If the document was not served, it shall set out the reasons which have prevented service. : Section 10. Seroice upon minors:and incompetents. When the• defendant is a minor, insane or otherwise ah incompetent; service ... shall'be made upon him personally and on his legal guardian if he has one, or if none his guardian ad /item whose appbintmerit shall ·be applied• for by the plaintiff. In the•·case of a minor; service may .also be made on his father or mother. (lOa, lla) Section 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an · incompetent· person service of summons shall be made upon . him or her personally and on his or her 31 legal guardian if he or she has one, or if none, upon his or her 32 guardian ad litem whose appointment shall be applied for ~ the plaintiff. In the case of a minor, service shall be made l. 2. on his or her 33 parent or gJJardian. (1 Oa) Section 11. Seroice u{l.ons/}Quses.When s12ouses are sued jointly service of summons should be made to each spouse individually. (n) can secure the appointment in the same case. 1. The sheriff cannot, on the first attempt to serve the summons to the wife, leave the summons addressed to the wife to the latter's husband as this would be deemed an improper substitute service of summons. 2. The question ofwhether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. The rules on service of summons under Rule 14 of the Rules of Court likewise apply according to the nature of the action. Service must be made on: a. The minor and his parent or legal guardian; b. Insane or incompetent and his guardian ad !item. Plaintiff is not required to institute a separate action to secure the appointment of a guardian ad !item. Plaintiff 31 Amendment refers to gender inclusiveness. 32/d. 33Amendment refers to gender inclusiveness. 167 168 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume N An action in personam is an action against a person based on his personal liability. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. An action in rem is an action against the thing itself instead of against the person, while an action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. In both actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULESOF CML PROCEDURE 169 on the court, provided that rhe court acquires jurisdiction over the res. Jurisdiction over the res is acquired either: (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or Cb) as a result of the institution of legal proceedings, in whk:h the power of the court is recognized and made effective. Nonetheless, summons must be served upon defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. A resident defendant who does not voluntarily 170 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV appear in court must be personally served with summons in accordance with the Rules of Court. If she could not be personally served with summons within a reasonable time, substituted service may be effected: (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein; or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. In this case, the judicial foreclosure proceeding instituted by respondent undoubtedly vested the trial court with COMPARATIVE MATRIX OF TIIB 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO TIIB 1997 RULES OF CML PROCEDURE 171 jurisdiction over the res. Ajudiaal foreclosure proceeding is an action quasi in rem. As such, jurisdiction over the person of petitioner is not required, it being sufficient that the trial court is vested with jurisdiction over the subject matter. There is a dimension to this case though that needs to be delved into. Petitioner avers that she was not personally served summons. Instead, summons was served to her through her husband at his office without any explanation a:sto why the particular surrogate service was resorted to. Without ruling on petitioner's allegation that her husband 172 THE PRE-WEEK REVIEWER FOR]ITI'ERY BAR TAKERS Volume IV and the sheriff connived to prevent summons from being served upon her personally, the trial court denied the wife due process and consequently, was not able to participate in the judicial foreclosure proceedings. The violation of petitioner's constitutional right to due process arising from want of valid service of summons on her warrants the annulment of the judgment of the trial court. Moreover, the trial court granted respondent's ex partemotion for deficiency judgment and ordered the issuance of a writ of execution against the spouses to satisfy the remaining balance of the COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 173 award. In short, the trial court went beyond its jurisdiction over the res and rendered a personal judgment against the spouses. This cannot be countenanced. Foreclosure and attachment proceedings are both actions quasi in rem. As such, jurisdiction over the person of the (non-resident) defendant is not essential. Service . of summons on a non-resident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requiremerits of fair play, so that he may be informed of the pendency of the action against 174 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN - him and the possibility that property belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, should he be so minded. In this case, while the trial court acquired jurisdiction over the res, its jurisdiction is limited to a rendition of judgment on the res. It cannot extend its jurisdiction beyond the res and issue judgment enforcing petitioner's personal liability. ln doing so without first ha:virig acquired jurisdiction over a COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 175 the person of petitioner, as it did, the trial court violated her constitutional right to due process, warranting the annulment of the judgment rendered in the case. (Biaco v. Philippine Countryside Rural Bank, G.R. No. 161417, 8 February 2007) Section 11. Service Section 12. Service upon domestic private juridical entity. - When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or inhouse counsel. (13a) upon domestic private juridical entity. - When the defendant is a corporation, partnership or association organized under the laws o(the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or ihhouse counsel of the corporation wherever they: may: be found or in their absence or 1. The amended provision no longer limits the service of summons on domestic private juridical entities through its president, managing partner, general manager, corporate secretary, treasurer, or inhouse counsel. 2. Thus, while summons may now be served on these persons, in case of their absence 176 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV unavailabili!;y: on their secretaries. or unavailability, it can be served on their secretaries. Note that service to the secretaries is not subiect to the requirement that summons was attempted tobe served at least three attempts on two different dates. If such service cannot be made UQOnany of the foregoing 12ersons it shall be made u12on the 12erson who customarily receives the corres12ondence for the defendant at its Qrinci12aloffice. In case the domestic juridical enti!;y:is under receivershiQ or liQuidation service of summons shall be made on the receiver or liQuidator -as the case may be. COMPARATIVE•MATRIX OF TI-IE 1997 RULESOF CIVIL PROCEDURE AJ\fD THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 3. Should there be a refusal on the 12artof the 12ersons above-mentioned to receive summons des12ite at least three (3} attem12ts on two (22 different dates . service may be made electronically if allowed by the court as 12rovide·d under Section 6 of this Rule. (1 la) 4. If service still could not be made to these secretaries, summons c::an be served upon the person who customarily receives the correspondence for defendant at its principal office . .As with secretaries, notice, service to this person is not subject to the requirement of at least three attempts of service of summons on two different dates. In case the domestic juridical· entity 177 is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be. a. J b. ' A receiver is appointed by the court for the purpose of preserving and conserving the property under receivership and preventing its possible destruction or dissipation, if it goes to the possession of another person. (Salientes v. IAC, G.R. No. 66211, 14July 1995) A liquidator shall refer to the natural person or juridical 178 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE 5. Service of summons through electronic means can be resorted to only when summons could not be served on all abovementioned persons despite at least three attempts on two different dates. entity appointed as such by the court and entrusted with the powers and duties stated under the Financial Rehabilitation and Insolvency Act of 2010 (FRIA). If the liquidator is a juridical entity, it must designated a natural person who possesses all the qualifications and none of the. disqualifications as its representative, it being understood that the juridical entity and the representative are solidarity liable for all obligations and responsibilities of the liquidator. (Section 4/w], FRIA) 179 Sectionl;'\.· Duty of counsel o(record. ~ Where i:he suinmons is served an~ a hWyer make~ a speciaLappeararice on behalf of the deMnckhtto among others . qu~stibri the· validity of service at summons ...the. couri.selifiall def>utlzed bythe court'tO.sei-ve summons 6n his or h'ef1tlien:f (ri) •irbprooerly be L A counsel· can now be dt:!pui:izeclto serve summons his die.fit. Thus, the author submits that the conc~pt of conditional appearance, in which a party makes a. special appearance to challenge, among others, the court's jurisdiction over the person of defendant and thus, cannot be considered to have submitted to its authority, is not anymore applic::able. to 180 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV Section 12. Seroice Section 14. Seroice upon foreign private juridical entities. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers· or agents within the Philippihes. (14a) upon foreign private juridical entities. When the defendant is a foreign private juridical entity which has transacted or is doing business in the Philippines, as defined by law service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers, agents, directors or trustees within the Philippines. 1. a. b. If the foreign i;2rivate juridical eritij;£is not registered in the PhiliQi;2ines or has no resident agent _, but has transacted or is doing business•in it as defined by law such service may with leave of court be effected outside of the PhiliQQines through any of the following means: (a) By uersonal service coursed through the Summons may be served on foreign private juridical entities doing business in the Philippines through the following persons: C. 2. Its resident agent designated in accordance with law for that purpose; The government official designated by law to receive summons if the corporation does not have a resident agent; or On any of its officers, agents, directors, or trustees within the Philippines. Meanwhile, summons may COMPARATIVE MATRIX OF TiiE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE azwrouriate court in the foreign country with the assistance of the de12artrnent of foreign affairs· (b) By uublication once in a news12ai;2er of general circulation in the country where the defendant maybe found and by serving a cow of the summons and the court order by registered mail at the last known address of the defendant· be served outside of the Philippines on a foreign private juridical country not locally registered or which has not appointed a resident agent herein, with leave of court, as follows: a. By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs; b. By publication once in a newspaper of general circulation in the country where defendant maybe found and by serving a copy of the (c) By facsimile· (d) By electronic means with the 12rescribed i;2roof of service· or (e) By such other means as the court iri its discretion may direct. (12a) 181 182 TI-IE PRE-WEEK REVIEWER FOR.JITTERY BAR TAKERS VolumeN COMPARATIVE MATRIX OF TI-IE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE summons and the court order by registered mail at the last known address ofthe defendant; c. e. 3. an agent in the Philippines for summons to be validly served thereto, even without prior evidence advancing such factual allegation. (Avon Insurances PLC v. CA, G.R. No. 97642, 29 August 1997) By facsimile; d. By electronic means with the prescribed . proofof . service; or By.such other means as the court, in its discretion, may direct. For the pµrpose of acquiring jurisdiction by way of summons oridefendant foreign corporation, there is no need to first prove first the fact that it is doing busfuess··in the Philippines; Plaintiff only has to allege in its complaint that defendant has 183 Section 13~ Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or mu.rricipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. {15) Section 1S. Service upon public corporations. When. the defendant is the Republic of the Philippines, service may be effected on· the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (13a) Summons may be served on a public corporation as follows: Section 14. Service upon defendant whose identity or whereabouts are unknown. - In any action where the defendant is designated as an Section 16. Service upon defendant whose identity or whereabouts are unknown. - In any action where the defendant is designated as an In any action where the defendant is designated as an unknown owner, or the like, or whenever his .whereabouts are unknown and PublicCorporatlon On Whom Served Republie of the Philippines Solicitor General Province Governor City Mayor Municipality Mayor Barangay Mayor 184 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 185 VolumeN unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a) unknown owner, or the like, or whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry, within nine~ (902 calendar days from the commencement of the action service may, by leave of court, be effected 34 upon him ~ by publication .in) a newspaper qf general circulation and in such places and for such timeas the court may order: cannot be ascertained by diligent inquiry. This rule applies to any action, whether in personam, in rem or quasi in rem. Notice that the rules do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and mocesses, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication. (Santos v. PNOC, G.R ..No. 170943, 23 September 2008) Any order granting such leave shill! specify a reasonable time which shall not be less than s~ ··· {602 calertda:r dais after notice within which the defendant must answer. (14a) Section 15. Extraterritorial service. - When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of 34Amendment Sectioll'l:Z> Extraterritorial service. - When the defendant· does not reside and is not found in the Philippines, and the action affects· the personal status _of refers to gender inclusiveness. 1. ' Extraterritorial service of summons is proper when defendant does not reside and is not found in the Philippines, and: the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, .service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; Qr i!S grQvideg for in international !::Qriventions tQ which the fhilippines is a party; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by a. The action affects the personal status of the plaintiff; b. Relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or C. The relief demanded consists, wholly or in part, in excluding defendant from any interest therein; or d. The property of the defendant has been attached within the Philippines. 2. In any of these instances, 186 THE PRE-WEEK REVIEWER FORJITfERY Volume IV granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a) registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) calendar days after notice, within which the defendant must answer. (15a) BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE d. Any other manner the court may deem sufficient. service of summons, may by leave of court be effected through any of the following means: a. By personal service; b. As c: By publication in a newspaper ofgeneral circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant; or 187 3. Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which defendant ·must answer. provided for in international conventions to which the Philippines is a party; Section 16. Resf4ents temporarily out of the Philippines. ~ When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the PhiHppines, as under the preceding section. (18a) Section 18. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinadly resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the· Philippines, as under the pr~ceding Section. (16a) 1. "Resipence" is the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the · country at the time. Plaintiff is merely required to know defendant's residence, office, or regular business place: He is notrequired·.to know 188 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS VolumeN defendant's actual whereabouts at the very moment of filing the suit. He is not even duty-bound to ensure that the person authorized to serve summons has actually delivered it to defendant or informs him about it. The law presumes that for him. It is immaterial that defendant does not receive actual notice. Because Rule 14, Section 16 of the 1997 Rules (now Section 18 of the Amended Rules) uies th~ words "may'" . and , "also ,, '" it is i ~ot mandatory. Other methods of service of summons allowed under the Rules may also be availed of, such as substituted service of summons. il COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE The normal method of service of sumn1ons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. Summons in a suit in personam against a temporarily absent resident maybe by substituted service as domiciliaries of a State are always amenable to suits in personam therein. (Monte/a/con v. Vasquez, G.R. No. 165016, 17 June2008) i j ' Section 17. Leave of court. - Any application to the court under this Rule for leave to effect service in any manner for which Section 12. Leave · of court. -Any application to the court under this Rule for leave to effect service in any manner for which 189 Service of publication may be authorized with prior leave of court in the following instances: 1. Service upon foreign juridical 190 THE PRE-WEEK REVIEWER FORJITI:ERY BAR TAKERS Volume IV leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19) leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (17a) entities not registered in the Philippines or have no resident agent but have transacted or are doing business in the Philippines; (Section 14) 2. Service upon defendant whose identity or whereabouts are· unknown; (Section 16) 3. Extra-territorial service of sui:nril.ons;and (Section 17) 4. Service upon residents temporarily outside the Philippines. (Section 18) Section 4. Return. - When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk, who Section 20. Return .. - Within thircy:_ {30} calendar days from issuance of summons bl;'.the clerk of court and receint-thereof · the sheriff or nrocess , server or nerson authorized by the court shall comnlete ." its service; Within five {5) calendar COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE issued it, accompanied by proof of service. (6a) days from service of summons. the server shall file with the court and serve a COJ2Y of the return to the 12laintifPs counsel nersonally by registered ·mail or by electronic means authorized by the Rules. Should substituted service have been effected the return shall state the following: (1) The itnnossibility ofprorhnt nersonal service within a 12eriod of thiny {30) calendar days from issue and receint of summons· (2) The date and time of the three {3) attemnts on at least {2) two different dates to cause ~rsonal service and the· details of the inguiries made to locate the defendant residing thereat· and (3) The name of the nerson atleast eighteen 191 192 THE PRE-WEEK REVIEWER FORJI'ITERY BAR TAKERS Volume IV (18) years of age and of suffident discretion residing thereat name of com12etent person in charge ofthe defendant's office or reirular place of business Qr name of the officerof the homeowners' association or condominium COIJ>oration or its chief security Qfficer in charge of the community Qr building where the defendant mal!:be foYDQ (4a) Section 18. Proof of service. - The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received Section 21. Proof of service. - The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any pap¢rs which have been served with the process and the name of the person who· received COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) the same; and shall be sworn to when made by a person other than a sheriff or his or her deputy. If summons was served by electronic mail a printout of said e-mail with a COlll{.of the summons as served and the affidavit•of the person mailing shall constitute as prnof of service. (18a) Section 19. Proof of service by ,publication. - If the service has been made by •publication, .service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the Section 22. Proof of service b:r · , publication . ..:_ If the service has been made by publication, service may be proved by the affidavit of the publisher. editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed t_othe defendant by registered mail to his 1. Same principles as ·those. under the 1997 Rules. 193 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV 194 defendant by registered mail to his last known address. (21) or her 35 last known address. (19a) Section 20. Voluntary appearance. - The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the· defend:;mt shall not be deemed a voluntary appearance. (23a) Section 23. Voluntary appearance. The defendant's voluntary ·appearance in the action shall be equivalent to service of summons, The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance. (20a) 1. 2. 35 Amendment refers to gender inclusiveness. One who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. Thus, it has been held that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration are deemed voluntary submission to the trial court's jurisdiction. (Inter/in~ Movie Houses, Inc. v. wt, G.R.No. 203298, 17 January 2018) COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 195 be raised as an affirmative defense. It cannot be raised in a motion to dismiss. RULE 15 MOTIONS Section 1. Motion defined. - A motion is an application for relief other than by a pleading. (la) Section 1. Motion d(ijined. ,- A motion is an application for relief other than by a pleadins. (1) 1. No amendment. Same principles as those under the 1997 Rules. Section 2. Motions must be in writings, - All motions shall be in writing except those made in open court or in the course of a hearing or trial. (2a) Section 2. MotiQns must be in writing; - All motions shall be in writing except those made in op~h court or in the course of a hearitl$ or trial. 1. Kinds of motion as to form: A motion made in 012en court or in the course of a hearing of trial should immediately 2. be resolved in 012en court after the adverse ·nali)!:is given the opporturu.J¥ to argge his or her 36 opposition thereto. When a motion is based on facts not ap12earing on record the· court may hear the matter on . affidavits It must be noted that lack of jurisdiction over the person of the defendant must 36Amendment refers to gender inclusiveness. a. Written motion; and b. - Bench/Oral motion, which must be resolved - after the other party to be heard. When a motion is based on facts not appearing on the record: a. The court may hearthe matter on affidavits or depositions. b, But, the court may direc:t that the.matter 196 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS COMPARATNE MATRlX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE VolumeN or dei;1ositions i;1resented bi the resi;1ectiveRarties but the court mai direct that the matter be heard wholli or Rartl:£on oral testimoni or deRositions. (2a) Section 3. Contents. Section 3. Contents. - A motion shall - A motion shall state the relief state the relief sought to be sought to be obtained and the obtained and the grounds upon which · grounds upon which it is based, and if it is based, and if requ'ired by these required by these Rules or necessary to Rules or necessary to prove facts alleg~d prove facts alleged therein, shall be therein, shall be accompanied by accompanied by supporting affidavits supporting affidavits and other papers. and other papers. (3) (3a) be heard wholly or partly on oral testimony or deposition. 1. No amendment. Same principles as those under the 1997 Rules. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. (4a) c) Motion for postponement· Section 4. Hearing of motion. - Except for motions which the court may act upon withou.t prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Section 4. Nonlitigious motions. ~ Motions which the court may act UROn without prejudicing the rights of adverse parties are nonlitigious motions. These motions include: e) Shall not be set for hearing and shall be resolved by the court within five calendar days from receipt thereof. f) Motion for the issuance of a writ of possession· g) Motion for the issuance of an order directing the sheriff to execute the final certificate of sale· and h) Other similar a) Motion for the issuance of ·an alias summons· b) Motion for extension to file answer· 1. Difference between NonLitigious Motion and Litigious Motion Nonlitigious Motion Motions which the court may act on without prejudicing the rights of the adverse litigious motion V. Hostanosas, AM.No. RT]-051915, 6 May2005) motions. [Section 4. Hearing of motion. Deleted] party (Baganos d) Motion for the issuance of a writ of execution· Motion for the issuance of an alias writ of execution: These motions shall not be set for hearing and shall be resolved by the court within five (5) calendar days from receipt thereof. (n) 197 1. The court may, in the exercise of its discretion, and if deemed necessary for its resolution, call a hearing on the motion. 2. The notice of hearing shall be addressed to all parties concerried, and shall specify the time and date of the hearing. 3. Under the Amended Rules, l98 COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULF.5OF CML PROCEDURE THE PRE-WEEK REVIEWER FORJI1TERY BAR TAKERS Volume IV movant isno longer required set the motion for hearing. 2. C. Examples of nonlitigious motions a. Motion for die.issuance of an alias summons; b. Motion for extension to file answer. Note that under Rule 11, Section 11 of the Amended Rules, defendant, under meritorious reasons, may only be granted an additional period of not more than 30 calendar days to file an answer. A defendant is only allowed to file one motion for extension of time to file an answer; d. 199 Motion for postponement; Under Rule 30, Section 2 of the Amended Rules, the party who caused the postponement is warned that the presentation of its evidence must still be terminated on the remaining dates previously agreed upon; Motion for the issuance of a writ of execution. Note that once a judgment becomes final, the prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is 200 TiiE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CML PROCEDURE VolumeN the court's ministerial duty, compellable by mandamus; (Mindanao Terminal and Brokerage Service, Inc. v. CA, G.R. No. 163286, 22August 2012) e. Motion for the issuance of an alias writ of execution; f. Motion for the issuance of a writ of possession, which may be issued under the following instances: (i) in land registration proceedings; (ii) in a judicial foreclosure, provided the debtor is in possession of the mortgaged realty and ', 201 no third person has inteivened; (iii) in an extra judicial foreclosure of a real estate mortgage; and (iv) in execution sales; (Spouses Reyesv. Spouses Chung, G.R.No. 228112, 13 September 2017) g. Motion for the issuance of an order directing the sheriff to execute the final certificate of sale; and h. Section 5. Litigious motions. (a) Litigious motions include: 1) Motion for bill of i:iarticulars· 2) Motion to dismiss; Other similar motions. 1. It is the court that will determine whether the litigious motion need to be set for hearing. 2. Failure to seive notice on the 202 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS VolumeN 3) Motion for new trial· 4) Motion for reconsideration· adverse party rendered a litigious motion a mere scrap of paper. (Community Rural Bank o/Guimba v. Judge Talavera, A.M. No. R1]05-1909, 6April 2005) 5) Motion for execution pending appeal· 6) Motion to amend after a responsive pleading has been filed· 7) Motion to cancel statutory lien· 8) Motion for an order to break in or for a writ of demolition: 3. 4. The litigious motions shall be served by personal service, accredited private courier or registered mail, or electronic means so as to ensure their receipt by the other party. 5. The opposing party shall file his or her opposition to a litigious motion within five (5) calendar days from receipt thereof. No other submissions shall be considered by 9) Motion for intervention· 10) Motion for judgment on the i;1leadings· 11) Motion for summary judgment· 12) Demurrer to evidence· 13) Motion to declare defendant in default· and The list stated in Section 5 is not exclusive. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 14) Other similar motions. (b) All motions shall be served by i;1ersonal service accredited i;1rivatecourier or registered mail or electronic means so as to ensure their receiptby the other pam,:. (c) The opgosing pam,:shall file his or her opi;1osition to a litigious• motion within five CS2 calendar days from receii;1tthereof: No other submissions shall be c6risidered by the. coU:rtih the. resolution ofthe motion. The motion shall be resolved by the court within fifteen 022 calendar dais· from its receiI2t of the oi;1i;1osition. thereto, or UQOnexpiration of the period to file such op~sition. (n) 203 the court in the resolution of the motion. 6. The motion shall be resolved by the court within fifteen (15) calendar days from its receipt of the opposition thereto, or upon expiration of the period to file such opposition. 204 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV Section 5. Notice of hearing. - The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (Sa) Section. 6. Notice o[_hearing_ou litig_iousmotions· discretionar:)!_.The court may in the exercise of its discretion and if deemednecessa!::£ for its resolution call a hearing on the motion. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing. (Sa) 1. Section 6. Proof of seroice necessary . ..,No written motion set for hearing shall be acted upon by the court without proof of service thereof. (6a) Section 7. Proofof seroice necessary. No written motion shall be acted ugon by the court without proof of service thereof, gursuant to Section 2Cb) hereof. (6a) 1. See notes under Section 5. Section 7. Motion day. - Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a nonworking day, in the afternoon of the next working day. (7a) Section 8. Motion day. - Except for motions requiring immediate action, where the court decides to conduct hearing on a litigious motion, the same shall be set on a Friday. (7a) 1. The court, in setting the motion for hearing, will set it on a Friday. See notes under Rule 15, Section 4 of the Amended Rules. COMPARATIVE MATRIX OF TifE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 8. Omnibus motion. - Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. (8a) Section 9. Omnibus motion. - Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include an· objections then available, and all objections not so included· shall be deemed waived. (8a) 1. 205 The omnibus motion rule is embodied in Rule 15, Section 9, in relation to Rule 9, Section 1 of the Rules of Court. Under this rule, all available objections be included in a party's motion; otherwise, said objections shall be deemed waived. The only grounds the court could take cognizance of, even if not pleaded in said motion are: (a) lack of jurisdiction over the subject matter; (b)exfstence of another action pending between the same p~rties for the saine cause; and (c) bar by prior judgment or by statute of limitations. (Pilipinas Shell Petroleum Corp. v. Romars International 206 THE PRE-WEEK REVIEWER FOR]IITERY BAR TAKERS COMPARATIVEMATRIXOF TIIE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENI'S TO TIIE 1997 RULES OF CIVIL PROCEDURE Volume IV Gases Corp., G.R. No, 189669, 16 February 2015) 2. Section 9. Motion for/eave. -,- A motion for ieave to file a pleading or motion shall be accompanied by the pleading or motion sought to· be admitted: (n) . for leave. .~.·A .. motion"forleave . to.file a pleading or motion shall be accom,paniecl by · the· pleac:ling or motion soughfto be adrtiitted. (9) Section 10. Form.-The Rules applicable to pleadings shall apply to written motions Section 11. Form._.:::.C..The Rules applicable to pleadings .shall ::tpply to written motions section 10; Motion The omnibus motion rule requires the movant to raise all available exceptions in a single opportunity to avoid multiple piecemeal objections. But to apply that statutory norm, the objections must have been. available to the party at thetime the motion was filed. (PH Credit Corp. v; CA; G.R. No. 109648, 22 November 2001) . L ' so far as concerns caption, designation, signature, and other matters of form. (9a) so far as concerns caption, designation, signature, and other matters of form. (10) Section 12. Prohibited motions. - The following motions shall not be allowed: 1) That the court has no jurisdiction over the subject matter of the claim· 2) That there is another action pending between the same parties for the same cause· and . 3) Same principles as those under • the 1997 Rules. 1. This provision stresses the underlying principle of amendments, i.e., to make the disposition of every action and proceeding more just, speedy, and inexpensive, as well as to prevent delay and to decongest the courts. 2. A motion to dismiss is a prohibited pleading, unless it is based on any of the following grounds: (a) Motion to dismiss except on the following grounds: No amendment. Same. principles as those under the 1997 Rules. 1. •·No amendment. 207 That the cause of action is barred by a prior judgment orby the statute of limitations· (b) Motion to hear affirmative defenses· a. The court has no jurisdiction over the subject matter of the claim; b. There is another action pending between the same parties 208 THE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV (c) Motion for reconsideration of the court's action on the affirmative defenses· (d) Motion to suspend proceedings without a temporary restraining order or injunction issued bya higher court· (e) Motionfor extension of time to file pleadings affidavits or any other·papers exce12ta motion for extension to file an answer as provided by Sectiorl 11 Rule 11· and (f) Motion for postponement intended for delay except if it is based on acts of GQd [.orcemaieure or physical inabilitt of the witness to ap'pear and testify. If the· motion- is granted based on such for the same cause; and C. The cause of action is barred by a prior judgment or by the statute of limitations. .3. These grounds are the same grounds that may cause a dismissal of the complaint motu proprio. 4. The author submits that the ground of prescription of action can also be raised in a motion to dismiss if the complaint on its face shows that indeed the action has already prescribed. If the issue of prescription, however, is one involving evidentiary matters requiring a full-blown trial on the merits, it cannot be determined in a COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE A.KO THE 2019 AMENDMENTS TO 1HE 1997 RULES OF CIVIL PROCEDURE exceptions the moving pany shall be warned that the presentation of its evidence must still be terminated on the dates previously agreed upon. A motion for postponement whether written or oral shall at all times be accompanied by the original official receipt from the office of the clerk of court evidencing paymenrbf the postgdnernent fee under Section 21Cb) Rule 141 to be submitted either at the time of the filing of said motion or not later than the next hearing date. The clerk of court shall not accept the motion unless accompanied by the original receipt. (n) 209 motion to dismiss. (Sanchezv. Sanchez, G.R. No. 187661, 4 December 2013) Prescription, as a ground for a motion to dismiss, is adequate when the complaint, on its face, shows that the action has already prescribed. (Aqua/ab Pbils., Inc. v. Heirs of Bagobo, G.R. No. 182673, 5 October 2009) 5. Laches must be raised as an affirmative defense, and not in a motion to dismiss. This is because the elements of laches must be proven positively. Lachesis evidentiary in nature, a fact that cannot be established by mere allegations in the pleadings and cannot be 210 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO TIIE 1997 RULES OF ClVIL PROCEDURE Volume IV theactiotris founded I 2. is,unenforceable under th~ provisions of the statute of frauds shall bar the refiling of the,same action or claim. (5, resolved in a motion to dismiss. Said issue must be resolved at the trial of the case on the merits, wherein both parties will be given ample opportunity to prove their respective claims and defenses. (Sanchez, G.R. No.187661) Rule 16, Section 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof shall bar the refiling of the same action or claim. (n) Section 13. Dismissal with. prejudice. - Subject to the right of appeal, an order granting, a motion to dismiss or an affirmative defonse that the cause of actioO: is barred bi a Qrior judgment or b~ the statute of limitations; lliat the claim or demand set forth in the glaintiffs Qleading has been gaid waived abandoned or otherwise extingyished · or that the claim on which 0 6. See notes under Rule 8, Section 12 of the Amended Rules. 1. Dismissal of a case with prejudice bars the refiling of a complaint, unlike the dismissal of a case without prejudice. Where the law permits, a dismissal with prejudice is subject to the right of appeal. (DBP v. Carpio, G.R. No; 195450, 1 February 2017) R16) ',_ 211 The dismissal of a case is with prejudice if it is based on any of the following grounds: (a) the cause of action is batted by a prior judgment or by the statute of limitations; (b) the claim or demand set forth in plafotiffs pleading has beenp.iid, waived, abandoned, or otherwise extinguished; and{c)the claim on which the action is founded is unenforceable under the provisions of ,the statute of frauds. Logically, the nature of the dismissal founded on any of the preceding grounds is , with prejudice because the dismissal prevents the refiling of the same action or:claim. (DBP, G.R. No. 195450) 212 THE PRE-WEEK REVIEWER FQR,JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TiiE 1997 RULES OF CML PROCEDURE RULE 16 MOTION TO DISMISS [Provisions either deleted or transposed] Section 1. Grounds. - Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; CO That the cause of action is barred by a prior judgment or by the statute of limitations; DELETED (g) That the pleading asserting the claim states no cause of action; I (h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is enforceable under the provisio~ of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. (la) Section 2. Hearing of motion. - At the hearing of the motion, the parties shall submit their arguments on the questions of law and 213 214 THE PRE-WEEK REVIEWER FORJITIERY Volume IV their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n) Section 3. Resolution of Motion. - After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied µpon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a) Section 4. Time to plead. - If the motion is denied, the movant shall file his answer within the balance of the period prescribed by BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF C!VlL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a) NOTE: Section 5 is now Rule 15, Section 13 Section 5- Effect of dismissf.l_l.Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof shall bar the refiling of the same action or claim. (n) Section 6. Pleading grounds as affirmative defenses. - If no motion to dismiss has been filed, any of the 215 216 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVEMATRIX OF 1HE 1997 RULES OF CML PROCEDURE A,'\fDTHE 2019 AMENDMENTS TO 1HE 1997 RULES OF CML PROCEDURE in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (la) grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed. (5a) The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action . of a counterclaim pleaded in the answer. (n) answer with the court (either personally or by mail), but the service on plaintiff of said answer or of a motion for summary judgment. (Go v. Cruz, C.R. No. L-58986, 17 April 1989) in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a. plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1) 2. RULE 17 DISMISSAL OF ACTIONS Section 1. Dismissal Section 1. Dismissal upon notice by plaintiff - A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated upon notice by plaintiff -'- A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless -otherwise stated 1. A complaint may be dismissed as a matter of right any time before the service of the answer or of a motion for summary judgment. What marks the loss by plaintiff of the right to cause dismissal of the action by mere notice is not the filing of defendant's 217 While the notice of dismissal may be filed as a matter of right, plaintiff must wait for the order of the court confirming the dismissal before he can institute the same action with another court. Otherwise, it may be construed as an act of disrespect since plaintiff should await the court's action on their notice of withdrawal of the petition. (Executive Secretary v. Gordon, C.R. No. 134171, 18 November 1998) 218 TIIE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV 3. The dismissal will no longer be a matter of right if the plaintiff who has once dismissed in -a competent court an action based on or including· the same claim. 4. Rule 17 of the Rules of Civil Procedure governs dismissals of actions at the instance of plaintiff. Hence, the "twodismissal rule" under Rule 17, Section 1 of the Rules of Civil Procedure will not apply if the prior dismissal was done at defendant's instance. (Ching v. Cheng, G.R. No. 175507, 8 October 2014) Section 2. Dismissal upon motion of plaintiff - Except as provided in the preceding Section, a complaint shall not be dismissed at the plaintiff's instance Section 2. Dismissal upon motio_nof plaintiff. - Except as provided in Jhe preceding Section, a complaint shall not be dismissed at the plaintiffs instance 1. As in this case, if defendant pleaded a counterclaim prior to the service upon him of plaintiffs motion for the COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right.of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15). days from notice of the motion, he manifests his preference.-to·_have his counterclaim resolved in. the same·action ..Unless otherwise specified in the order, a dismissal under this paragraph. shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a) save upon approval of the· court and upon such terms and conditions as the court deems. proper. If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint'. The dismissal shall be . without prejudice to the right of the defer1dant.to prosecute his or her_counterclaim ih a separate action unless within fifteen (15) calendar days 2. from. notice c>f the motion he QI she manifests his or her preference to have his ru: her counterclaim reiolved in the · same action. Unless _· _otherwise specified .. in the order, a dismissal-·under this para~ph shaH ~ without prejudice. A class suit shall not dlsmissed or conipromised without the approval of the fourt. (2a). be 219 dismissal, the rule is that the dismissal shall be limited to the complaint. A dismissal of an action is different from a mere dismissal of the complaint. For this reason, since only the complaint and not the action is dismissed, defendant may still prosecute his counterclaim in the same action, (Blay v. Bana, G.R. No. 232189, 7 March2018) But, if defendant would desire to prosecute his counterclaim in the same action, he is required to file a manifestation within 15 days from notice of the motion. Otherwise, his counterclaim maybe prosecuted in a separate action. (Blay, G.R. No. 232189) 220 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS VolumeN 3. The rationale behind this rule is not difficult to discern: the passing of the fifteen (15)-day period triggers the finality of the court's dismissal of the complaint and hence, bars the conduct of further proceedings, i.e., the prosecution of respondent's counterclaim, in the same acti9n. Thus, in order to obviate this finality, defendant is required to file the required manifestation within the aforesaid period; otherwise, the counterclaim maybe prosecuted only in a separate action. (Blay, G.R. No. 232189) Section 3. Dismissal due to fault of plaintiff. ---:-If, for no justifiable cause, · the plaintiff fails to appear on the date Section 3. Dismissal due to fault of plaintiff ---:-If, for no justifiable cause, the plaintiff fails to appear on the date l. Amendment refers to gender inclusiveness. 2. Under this provision, the court may COMPARATNE MATRIX OF TiiE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TiiE 1997 RULES OF CML PROCEDURE of the presentation of the presentation of his evidence of his or her in chief on the evidence in chief complaint, or to on the complaint, prosecute his action or to prosecute his for an unreasonable or her action for an length of time, or unreasonable length to comply with of time; or to comply these Rules or any with these Rules order of the court, or any order of the the. complaint may court, the complaint be dismissed upon may be dismissed motion of the upon motion of the defendant or upon defendant or upon the court's own the court's own motion, without motion, without prejudice to the right prejudice to the. right of the defendant of the defendant to prosecute his . to prosecute his or counterclaim in her counterdaim the same or in a in the same or in separate action. a separate action. This dismissal shall This dismissal shall have the effect of an have the effect of an adjudication upon adjudication upon the merits,, unless the merits, unless otherwise. declared otherwise declared by the court. (3a) by the court. (3a) 221 dismiss a complaint in case there are no justifiable reasons for plaintiffs absence during the presentation of the evidence-inchief. Generally speaking, the use of "may" denotes its directory nature, especially if used in remedial statutes that are known to be construed liberally. Thus, the word "may" in Rule 17, Section 3 of the Rules of Court operates to confer on the court the discretion to decide between the dismissal of the case on technicality vis-a-vis the progressive prosecution thereof. (Republic of the Philippines v. DiazEnriquez, et al., G.R. No. 181458, 20 March 2013) 222 IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume·IV Section 4. Dismissal I Section 4. Dismissal I 1. of counterclaim; of counterclaim, cross-claim, or thirdcross-claim, or thirdparty complaint. party. cornplti,int. The provisions of The provisions of this Rule shall apply this Rule.shall apply to the dismissal of to· the dismissal of any counterclaim, any counterclaim, cross-claim, or thirdcross-claim, or third'party complaint. A party complaint.· A voluntary dismissal voluntary .dismjssal by the claimant by by the claim.ant by notice as in section notice as in Section 1 of this Rule, shail · 1 of this Rule, sh;all be made ·before a be made.bc:::forea responsive pleading responsive•ple~c:Ung or a motion for or ,a motion for ' summary judgment· summary judgµi~nt · is .served. or, if there is sc:::rvedor, if there . is none, before ·. : is. noO:e,befori:: . . the introduction of . theintroduotion~qf evidence at the· trial . evidence at the, mid . orh~armg'. ;c4),., . or hearing. (4a) ' Section 1. W'ben · Section 1~ :w1Jen· H I ·1. Pte-.ttialis a conducted. -'- After ·,•procedural conducted: _:, Aftet the last pleading has , the last responsive device •intended been served and to clarify and pleading has been filed, it shall be the limit the basic served and filed, the duty of the plaintiff branch clerk court .. issues between the.parties. Its to promptly move ex shall· issue within main· objective parte that the case five (5).ca:lendar is to simplify, be set for pre-trial. days fromfiling a ·abbreviate and (5a, R20) notice of pre'-trial expedite the which shall be set trial, or totally not ldter than sixty dispense with (60) calendar davs it. (Interlining from the filing of (:01p .. v. the last responsive Philippine pleading. (hi.) Trust Co., 223 G.R. No. 144190, 6 March 2002) The need for strict adherence to the rules on pre-trial thus proceeds from its significant role in the litigation process. ( Chua v. Spouses Cheng, G.R. No.219309, 22 November 2017) No amendment. Same principles as those under the 1997 Rules. RULE 18 PRE-TRIAL of COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO IBE 1997 RULES OF CIVIL PROCEDURE 2. The last responsive pleading is not necessarily the answer. It may be the reply, in which complainant denies the due execution and authenticity of the actionable document attached to the answer or the rejoinder if defendant denied the due execution and authenticity of an actionable document attached to the reply. 224 COMPARATIVE MATRIXOF'THE 1997 RULESOF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWERFOR]ITI'ERY BAR TAKERS Volume IV 3. Issues must be joined before the pre-trial can be scheduled. Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court. (Rosete v. Lim, G.R. No. 136051, 8June2006) ! Section 2. Nature and purpose. The pre-trial is mandatory. The court shall consider: (a) The possibility ofan amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; Section 2. Nature and Purpose. The pre-trial is mandatory and should be terminated promptly. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 4. It is the duty of the clerk of court to schedule the pre-trial conference and issue the notice thereof. 1. It is mandatory for the trial court to conduct pre-trial in civil cases in order to realize the paramount objective of simplifying, abbreviating, and expediting trial. Jn light of these. objectives, the parties are mandatorily required to (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) TheJirpiJation of the. number witnesses; of (D The advisability of a preliminary reference of issues to a·, commissioner; (g) The propriety of rendering judgment op_• the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisabi1ity or necessity of suspending the proceedings; and (i) Such other matters as may aid in submit their respective pre-trial briefs. Failure to do so is a ground for dismissal of the action with prejudice, unless otherwise ordered by the court. (Vera v . Rigor, G.R. No. 147377, 10 August 2007) (b) The simplification of the.1issues; (c) The possibility of obtaining stipulations or .adnli_E;sions ()f facts and of QQCIJ.Illents to avdid' . ···-' Unt!ece~sary prqq_f; (d) The limitation of the number and identification of witnesses and @le setting of trial dates; :ce) The,advi:sability of-a'p'rellininary · refe'ren<Ze·of issues to a cdrruniSsioner; ,'I'li~ pr~priety . of r,¢nµe,ring ,CO jµggment. on pleaq.ings, or surnµiary , jµ,dgin~,;it,or of disrriis~ing the action should a va:Hdground · therefor be found' to .exist; tlf (g) The reQuirement for the 12arties t,?; 1. Mark their resi;2ective evidence if 225 2. Admissions made in a stipulation of facts at pre-trial. by the parties must be treated as judicial admissions. Hence, pursuant to the rules of evidence, judicial admissions require no proof. (Eastern Shipping Lines v.BPIIMS Insurance Corp., G.R. No. 182864, 12January 2015) 3. The veracity of judicial admissions requires no further proof and may be "\ 226 TI-IE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX.OF THE 1997 RULES OF CIVIL_PROCEDURE AND THE 2019 AMENDMENfS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV the prompt disposition of the action. (la, not yet marked in the judicial affidavits of their vvitnesses; R20) 2; Examine and make com12arisons ofthe, adverse 12arties'; evidence ms.,.ti.,.vis the co12ies to_be marked· 3. Manifest.for the iecbrd · sti12ulations regarding the faithfulness of the re12;roductions and tlil:: ·gefniinen~s1\tnd d.uJei~tutfond(ilie 'advt:!i-Afe 12ariies':eiiderice'· 4. ,Reser:ve evidence not available at the ~r~trial but orilyin:the following manner: controverted only upon a clear showing that the admissions were made thre>ugh palpable mistake or that no admissions were made. Thµs, the admissio~ of parties dui;i.rlg the pre-trial, as embodied in the pre-trial' order, are binding and conclusive upon them. (Cuenco v. Talisay Tourist Sports Complex, Inc., G.R. No. 174154, 17 October 200{3) 4. Documents identified·and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in. any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary i. I I. I , Fortestimonial evidence by giving the name or 12osi- tion and the nature of the testimony of the 12ro12osed witness· ii. Fordocu- mentary:_ _evidence arid other .object evidence by giving . a. 12artictilarde.c scriptioh of the evidence, Nor,es~ ervation shaffbe allowed if not made in.the manner described above. . (h) Such other matters.as may aid in the prompt disposition of the action. weight and value. There is a significant distinction between identification of documentary evidence and its format. offer. The former is done in the course of pretrial, and trial is accompanied by· the· ,:riarking ofthe evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as. an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be 227 }· 228 THE PRE-WEEK REVIEWER FORJITfERY Volume IV The failure without just cause of a party and counsel to appear during pre-trial despite notice. shall result in a waiver of any objections to the faithfulness. of the reproductions marked or their genuineness and due execution. The failure without just cause of a party and/or counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence. The branch clerk of court shall prepare the minutes ofthe pre-trial which shall have the following format: (See prescribed form) (2a) BAR TAKERS offered by the party; otherwise, it is excluded and rejected. (Heirs of Pasag v. Spouses Parocba, G.R. No. 155483, 27 April 2007) 5. Reservation evidence is now expressly allowed subject to the following conditions, to wit: a. For testimonial evidence,. by giving the name or position and the nature of the testimony of the proposed witness; and b. For documentary evidence and other object evidence, by giving a particular description of the evidence. 6. No reservation shall be allowed COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE A.ND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 2'29 if not made in the manner described above. 7. The following are the consequences of the party's failure to appear at the pre-trial despite due notice: a. b. The failure of plaintiff and counsel to appear without valid cause shall cause the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court; The failure on the part of defendant and counsel shall be caused to allow plaintiff to present his evidence expartewithin 10 calendar days from 230 THE PRE-WEEK REVIEWEJl FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF TI!E 1997 RULES OF CML PROCEDURE AND TI!E 2019 AMENDMENTS TO TI!E 1997 RULES OF CIVIL PROCEDURE VolumeN termination of the pretrial, and the court to render judgment on the basis of the evidence offered; c. d. 8. Any objections to the faithfulness of the reproductions marked, or their genuineness and due execution are deemed waived; and The failure without just cause of a party.and/ or counsel to bring the evidence required shall be deemed a waiver of the presentation of such evidence. But, the nonappearance of a party and counsel may be excused if: (a) a 231 . valid cause is shown; or (b) there is an appearance of a representative on behalf of a party fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. What constitutes a valid cause is subject to the court's sound discretion and the exercise of such discretion shall not be disturbed except in cases of clear and manifest abuse. (Philippines Steel Coating Corp. v. Quinones, G.R. No. 194533, 19 Apri/2017) 232 THE PRE-WEEK REVIEWER FORJfITERY BAR TAKERS Volume IV Section 3. Notice of pre-trial. - The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (n) Section 3. Notice of pre-trial. - The notice of pre-trial shall incl11dethe dates respectively set for: (a) Pre-trial· (b) Court-Annexed Mediation· and (c) Iudicial Dispute Resolution if necessaiy. The notice of pretrial shall be served on counsel, or on the party if he or she has no counsel. The counsel seived with such notice is charged with the duty of notifying the party represented by him or her. Non-api;2earance at any of the foregoing settings shall be deemed as nonai;2i;2earance at the i;2re-trialang shall merit the same sanctions under Section 5 hereof. (3a) 1. Mediation is part of pre-trial where parties are encouraged to personally attend the proceedings. The personal non-appearance, of a party, however, may be excused only when the representative, who appears in his behalf, has been duly authorized to enter into possible amicable settlement or to submit to alternative modes of dispute resolution. (Kent v. Micarez, G.R. No. 185758, 9 Marcb2011) 2. Judicial Dispute Resolution is also a component of pre-trial. (Narciso v. Garcia, G.R. No. 196877, 21 November 2012) COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 4. Appearance of parties. - It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (n) Section 4. Appearance of Parties. - It shall be the duty of the parties and their counsel to appear at the pre-trial, courtannexed mediation and judicial dispute resolution if necessaiy. The non-appearance of a party and counsel may be excused only for acts of God force maieure or duly substantiated physical inability. A rei;2resentative may appear on behalf of a i;2arty,·but must be fully authorized in writing to enter into an amicable settlement to submit to alternative modes of disi;2uteresolution. and 'to enter into stii;2ulationsor admissions of facts and documents. 233 1. It is the duty of the parties and their counsels to attend the pre-trial, court-annexed mediation and judicial dispute resolution, if necessary. 2. Non-appearance may be excused only for acts of God. Force majeure, or duly substantiated physical inability. 3. The representative of a.party must have a special power of attorney that authorizes the former to enter into a compromise settlement, to submit to alternative dispute resolution and to enter into stipulations or admissions of facts and documents. 234 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 5. Effect of failure to appear. The failure of the plaintiff to appear when so ·required pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex· parte and the court to render judgment on the basis thereof. (2a, R20) Section 6. Pre-trial brief. - The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective Section 5. Effect of failure to appear. When duly notified the failure of the plaintiff and counsel to appear without valid cause when so required, pursuant to the next preceding Section, shall cause the dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court, A similar failure on the part of the defendant and counsel shall be cause to allow the plaintiff to present his or her evidence ex-parte within ten (102 calendar days from termination of the 12re-trial and the court to render judgment on .the basis of the evidence offered. (5a) , 1. Section 6. Pre-trial brief - The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their receipt thereof at least three (3) calendar days before the date of the pre-trial, their 1. See notes under Rule 17, Section 3 of the Amended Rules. COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND THE 2019 Ac\1ENDMENTSTO THE 1997 RULES OF CML PROCEDURE pre-trial briefs which shall contain, among others: (a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof; (b) A summary of admitted.facts and Amended stipulation of facts; (c) The issues to be tried or resolved; (d) The documents or e~ipits to be presented stating the purpose thereof; While Rule 18, Section 6(e) of the 1997 Rules was deleted from the provision under the Amended Rules, the author submits that the use of discovery is still much (e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and (f) The number and names of the witnesses, and respective pre-trial briefs which shall contain, among others: (a) A concise statement of the case and the reliefs 12rayed fur. (b) A summary of admitted facts and Amended stipulation of facts; (c) The main factual and legaUssues .to be tried or resolved; (d) The 12ro12rie1;y of referral of factual issues to commissioners; (e) The documents or other object evidence to be marked, stating .the purpose thereof; (f) The names of ,. the witnesses, and the. summary of their respective testimonies; and (g) A brief statement of 12oints of law and citation of authorities, 235 encouraged (Producers Bank of the Philippines v. CA, G.R. No. 110495, 29January 1998) because the modes of discovery are intended to attain the resolution of litigations with great expediency. (Zepeda v. China Banking Corporation, G.R. No. 172175, 9 October 2006) 2. Under Rule 18, Section 7(h) ofthe Amended Rules, Administrative Matter ("A.M.") No. 03-1-09 (the "Pre:..Trial Guidelines") must still be complied with. In this regard, Paragraph 1.2 of the Pre-Trial Guidelines states: 1.2 The court shall issue an order requiring the parties 236 TiiE PRE-WEEK REVIEWER FORJI1TERY BAR TAKERS Volume IV the substance of their respective testimonies. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n) Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (8) to avail of interrogatories to parties under Rule 25 and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rules 27 and 28 within five days from the filing of the answer. A copy of the order shall be served upon the defendant together with the summons and upon the plaintiff. 3. Moreover, "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it is the purpose and COMPARATIVE MATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TiiE 1997 RULES OF CML PROCEDURE 237 policy of the law that the parties - before the trial if not indeed even before the pre-trial should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the depositiondiscovery mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary 238 TiiE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULESOF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULESOF CIVIL PROCEDURE ends of modern procedure: it not only eliminates unessential issues from trials thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of an air settlement before trial is . lileaslirably increased. (Commissioner oflnternal proceeding or part thereof; b. Rendering judgment by default against the disobedient party; C. Contempt of court; d. Arrest of the party or agent of the party; e. Payment of the amount of reasonable expenses incurred in obtaining a court order to compel discovery; f. Taking the matters inquired into as established in accordance with the claim of the party seeking discovery; g. Refusal to allow the disobedient Revenuev; sanMiguet . , ...Corporation, G.R. No. 205045, 25January 2017) 4. To ensure that .the availment · of the modes of discovery is.otherwise untrammeled and efficadous, the Iawimposes serious sanctions Ori the party who refuses to make discovery, such as: ·a. Dismissing the actioh or 239 240 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN party support or oppose designated claims or defenses; h. i. : Section 7. Record of pre-trial. - The proceedings in the pre-trial, shall be recorded. Upon the termination thereof, the court shall issue an order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to Section z. Pre-Trial Order. - Ugon termination of the gre-trial the court shall issue an order within ten (102 calendar days which shall recite in detail the matters taken up. The order shall include: (;;0_ An enumeration of the admitted facts· ili2 The minutes of the gre-trial conference· 1. Striking out pleadings or parts thereof; or Staying further proceedings. (Capitol Hills Golf &Country Club, Inc. v. Sanchez, G.R.No. 182738, 24 February 2014) Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pre-trial order may be considered only if they were included in the issues raised by necessary implication. The basis of the rule COMPARATNE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE any of the matters considered. Should the action proceed to trial, the order shall, explicitly define arid limit the issues tO be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevenr manifest injustice. (5a, R20) ;' ,;:. Petitioners are bound by the delimitation of the issues during the pretrial because they themselves agreed to the same. (Licomcen, Inc. v. Abainza, G.R. No. 199781, 18 February 2013) factual issueL'.sto be tried· @ The applicable law rules and jurisgrudence· (cl The evidence marked· ill The specific (g2 The case flowchart to be determined. bl'.: the court which shall contain the differe~t stages of th~ Qroceedings . up to the promulgation of the decision and the use of time •frainesfor each stage insetting the. trial dates; (hl A statement that the one-dal'.: examination of witness rule and most important witness rule u.nderAM. ·r· is simple. li} The legal and trial dates for continuous trial which shall be within the ':geriod ~rovided bl'.:the Rules; · 'Na.03-1-02-sc {Guidelines for 241 2. Pre-trial shall proceed pursuant to the Pre-Trial Guidelines as follows: a. Within one day from receipt of the complaint: i. Summons shall be prepared and shall contain a reminder to defendant to observe restraint in filing a motion to dismiss 242 1HE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND 1HE 2019 Ai.'vlENDMENTST0,1HE 1997 RULES OF CML PROCEDURE Volume IV Pre-Trial} shall be strictly followed· and ill A statement that the cmi"rtshall render judgment on the pleadings or summary judgment as the case may be. •. The direct testimony of witnesses for the plaintiff sha:11 be in the forril.of judicial afficfrrviii.. '.After the identificai:ion of such affidavits cross-examination shall prbceed imfuediately. Postpohei:rient of .. presentation: of the parties' w1trtes~es at a schedul~d date i~ prohibited. ;except if it is based 0~ acts· of God fprcemt1,feure or duly substantiated physical inability: . of the witness to ap12ear and testify. The· pa~ · who caused the postponement is warned that the presentation of .its evidence must still be terminated within the remaining dates previousli a.greed upon. and instead allege the grounds thereof as defenses inthe answer; and ii. The court shall issue an order requiring the parties to avail themselves of the modes of discovery under the Rules of Court within five days from the filing of the answer. A copy of the order shall be served upon defendant together with the summons and upon plaintiff: Should the opposing party fail tci appear without valid cause stated in the next preceding paragraph the presentation of the scheduled witness will proceedwith the absent party being·deemed ·to have waive&the right to inteq;>ose objection arid• conduct cross-· examination. b. The· contents of the pre~tnal order•. shall control · .the subsequent pi:oceedii.1.gsunless modified before trial to ptevei:it manifest .··. injustice. {7a). c. 243 Within five days from date of filing of the reply, plaintiff must promptly move ex partethat the case be set for pre~trial conference. If plaintiff fails to file said· motion within the given period, the Branch Clerk of Court (COC) ··shall issue a riotice of pre~trial.. The parties shall submit, · at lea.st three days before the pretrial; pretrialbriefs containing the following: i. A statement of their willingness to enter 244 THE PRE-WEEK REVIEWER FOR]ITTERY BAR TAKERS COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV :·· ~· .. into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution; ii. A summary of admitted facts and Amended stipulation of facts; iii. The issues to be tried or resolved; iv. The documents or exhibits to be presented, stating the purpose thereof; 245 v. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and vi.The numberand names of the witnesses, the substance of their testimonies, and the approximate number of hours that will be required by the parties for the presentation of their respective witnesses. 246 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV The rule on the contents of the pretrial brief must strictly be complied with. The parties are bound by the representations and statements in their respective pre-trial briefs. d. At the start of the pre~trial conference, the judge shall 'llli.inediateiy refer the parties and/ _or their · ·counsel if authorized by their clients to' the Philippine Mediation Center (PMC) mediation unit for the purposeof mediation if available. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 247 If mediation fails, the judge will schedule the continuance of the pre-trial conference. Before the continuance, the judge may refer the case to the Branch COC for a preliminary conference to assist the parties in reaching a settlement, to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison, and to consider such other matters as may aid in its prompt disposition. 248 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE During the preliminary conference, the Branch attached by the Branch COC to the case record before the pre-trial. coc shall also ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of the documents marked as exhibits. The proceedings during the preliminary conference shall be recorded in the "Minutes of Preliminary Conference" to be signed by both parties and/ or counsel. The minutes of preliminary conference and the exhibits shall be 249 e. Before the continuation of the pre-trial conference, the judge must study all the pleadings of the case, and determine the issues thereof and the respective positions of the parties thereon to enable him to intelligently steer the parties toward a possible amicable settlement of the case, or, at the very least, to help reduce and limit the issues. 250 TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV The judge should not allow the termination of pre-trial simply because of the manifestation of the parties that they cannot settle the case. He should expose the parties to the advantages of pre-trial. He must also be mindful that there are other important aspects of the pre-trial that ought to be taken up to expedite the disposition of the case. The judge with all tact, patience, impartiality, and with due regard to the rights of the parties shall COMPARATIVE MATRIX OF TifE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE 251 endeavor to persuade them to arrive at a settlement of the dispute. The court shall initially ask the parties and their lawyers if an amicable settlement of the case. is possible. If not, the judge may confer with the. parties with the opposing counsel·to consider the following: i. Given the evidence of plaintiff presented in his pre~trial brief to support his claim, what manner ofcompromise is considered 252 1HE PRE-WEEK REVIEWER FORJfITERY BAR TAKERS Volume IV COMPARAITvE MATRIXOF THE 1997 RULESOF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO lHE 1997 RULES OF CML PROCEDURE acceptable to defendant at the present stage? ' C the judge shall confer with the parties without their counsel for the same purpose of settlement. ii. Given the evidence of defendant described in his pre-trial brief to support his defense, what manner of compromise is considered acceptable to plaintiff at the present stage? If not successful, the court shall confer with the party and his counsel separately. If the manner of compromise is not acceptable, 253 f. If all efforts to settle fail, the trial judge shall: i. : \_ Adopt the minutes of preliminary conference as part of the pretrial proceedings and confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution 254 TIIE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF TIIE 1997 RULES OF CML PROCEDURE AND TIIE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE of documents; ii. Inquire if there are cases arising out of the same facts pending before other courts and order its consoli~ dation if warranted; iii. Inquire if the plead~· ings are in·order, If not, order the amend:; ments if neces~· sary; iv, Inquire if interlocutory issues are· involved 255 and resolve the same; V. Consider the adding or dropping of parties; vi. Scrutinize every single allegation of the complaint, answer, and other pleadings and attachments thereto and the contents of documents and all other evidence identitied and premarked during 256 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO 1HE 1997 RULES OF CIVIL PROCEDURE pre-trial in determining further admissions of facts and documents. To obtain admissions, the Court ' shall ask the parties to submit the depositions taken under Rule 23, the answers to written interrogatories under Rule 25, and the answers to request for admissions by the adverse party • 257 under Rule 26. It may also require the production of documents or things requestedby a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28; vii. Define and simplify the factual and legal issues arising from the pleadings. Uncontraverted issues 258 COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 .RULESOF CML PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 259 VolumeN and frivolous claims or defenses should be eliminated. For each factual issue, the parties/ counsel shall state all the evidence to support their positions, thereon. For each legal issue, parties/ counsel shall state the applicable law and jurisprudence supporting their respective positions thereon. If only legal issues are presented, the judge shall require the parties to submit their respective memoranda and the court can proceed to render judgment; viii. Determine the propriety of render~ ing a summary judgment dismissitlgthe case based on the disdosures made at the pre~ · trial or a 260 COMPARATIVE MATRIX OF TIIE 1997 RULES OF CML PROCEDURE AND TIIE 2019 AMEl\'DMENTS TO TifE 1997 RULES OF CML PROCEDURE THE PRE-WEEK REVIEWER FOR JITfERY BAR TAKERS Volume IV judgment based on the pleadings, evidence identifled and admissions made during pre-trial; _, ' ix. Ask parties to agree on the specific trial dates for continuous trial in accordance with Circular No. 1-89 dated January 19, 1989, adhere to the case flow chart determined by the court, 261 and use the time frame for each stage in setting the trial dates. The OneDay Exarnination of Witness Rulethat is, a witness has to be fully examined in one (1) day only, shall be strictly adhered to, subject to the courts' discretion during trial on whether to extend the direct and/or 262 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Voiume·N COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE crossexamination for justifiable reasons. the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presen~ tation of his last witness and the opposing party is required to immedi~ ately interpqse his objec_tion thereto. Thex:eafter;the ·Judge. On ) 263 shall make the ruling on the offer of evidence in open court. But, the judge has the discretion to allow the offer of evidencein writing in conformity with Section 35, Rule 132; x. Determine the most important witnesses to be heard and limit the number of witnesses (Most Important 264 COMPARATIVEMATRIX OF TiiE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE TiiE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Witness Rule). The facts to be proven by each witness and the approximate number of hours per witness shall be fixed; I xi. At his discretion, order the parties to use the affidavits of witnesses as direct testimonies subject to the right to object to inadrnissible portions thereof and to the right 265 of crossexamination by the other party. The affidavits shall be based on personal know!edge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The affidavits shall be in question 266 COMPARATIVE MATRIX OF THE 1997 RULES O.F CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV and answer form, and shall comply with the rules on admissibility of evidence; / xii. Require the parties and/ or counsel to submit to the Branch COC the names, addresses and contact numbers of the witnesses to be summoned by subpoena; xiii. Order the delegation of the receptionof evidence to 267 the Branch coc under Rule 30 under the Rules of Court; and xiv. Refer the case to a trial by commissioner under Rule 32. During the pre~trial; the judge shall be the orie to ask qrit!stions on is5ues ·raised tl:erein and all qaestions or comments bycounsel or parties must be directed to the judge t:d avoid hostilities between the p:j.fties. 268 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV g. The trial judge shall schedule the pretrial in the afternoon sessions and set as many pre-trial conferences as may be necessary. h. All proceedings during the pre-trial shall be recorded. The minutes of each pre-trial conference shall contain matters taken up therein more particularly admissions of facts and exhibits and shall be signed by the parties and their counsel. ·, i. The judge shall issue the required Pre-Trial Order within 10 days after COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF Cfv1L PROCEDURE 269 the termination of the pretrial. Said Order shall bind the parties, limit the trial to matters not disposed of and control the course of the action during the trial. However, the Court may opt to dictate the PreTrial Order in open court in the presence of the parties and their counsel and with the use of a computer, shall have the same immediately finalized and printed. Once finished, the parties and/or their counsel 270 IBE PRE-WEEK REVIEWER FOR JI1TERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND IBE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 271 . VoltimeN resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. (Section 3[a], RA. No. shall sign the same to manifest their conformity thereto. j. The court shall endeavor to make the parties agree to an equitable compromise or settlement atany stage of the proceedings before rendition of judgment. Sediott 8~ Court-"- ·','.L: ."Alternativt::: Annexed Mediation Dispute ~ Afterpre-trial · .. and after issues are joined .the'coufr· shall referToe,pa:rties for mandatmy court-. annexed medfation. The peiiofffor ~ouri~ anriexedmediation · shall riofexceed thirty:(30) calendar. · days. withotit further exi:~nsion.Crt)· Resolution System". means any process . qr procedure used to resolve a:dispute or controversy; other than by adjudication of a. presiding judge of a court ot?ri o(fker of a government · agency, in which a neutral third · party participates . to assist in the 9285) 2. Court-Annexed Mediation (CAM) means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute. (Section 3lll, RA. No.9285) The general rule is that information obtained through mediation shall be privileged and confidential and shall not be subject to discovery and shall be inadmissible if 272 TI-!E PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF TI-!E 1997 RULES OF CIVIL PROCEDURE AND TI-!E 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE any adversarial proceeding, whether judicial or quasi-judicial. r In this regard, the following persons involved or previously involved in the CAM may not be compelled to disclose confidential information obtained during mediation: (a) the parties to the dispute; (b) the mediator or mediators; (c) the counsel for the parties; (d) the non-party participants; (e) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (0 any other person who obtains or possesses confidential information by reason of his/her profession. 273 The above protections shall continue to apply even of a mediator is found to have failed to act impartially. '< A mediator may not be called to testify to provide information gathered in mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney's fees and related expenses. (Section 9, R.A. No. 9285) 3. Exceptions to Privilege a. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery 274 IBE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV solely by reason of its use in a mediation. (Section 9, R.A.No. 9285) b. There is no privilege against disclosure under Section 9 ofR.A. No. 9285 if mediation communication is: i. In an agreement evidenced bya record authenticated by all parties to the agreement; ii. Available to the public or that is made during a session ofa 275 mediation which is open, or is required by law to be open, to the public; iii. A threat or statement of a plan to inflict bodily injury or commit a crime ofviolerice; iv. Intemationally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal activity; 276 1HE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV V. COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE 277 AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROC:C:DURE Sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law;but this exception does not apply where a child protection matter is referred to mediation bya court or a public agency participates in the child protection mediation; vi. Sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against mediator in a proceeding; or vii. Sought or offered to prove or disprove a claim of complaint of professional misconduct of 278 COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE THE PRE-WEEK REVIEWERFORJITI'ERY BAR TAKERS Volume IV malpractice filed against a party, nonparty participant, or representativ~ of a party based on conduct occurring during a mediation. (Section 11, RA.No. that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in: i. A court proceeding involving a crime or felony; or ii. A proceeding to prove a claim or defense that under the law is sufficient to reform or avoid 9285) C. There is no privilege under Section 9 if a court or administrative agency, finds, after a hearing in camera, that the party seeking discovery of the proponent of the evidence has shown 279 280 COMPARATIVEMATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose. a liability on a contract arising out of the mediation. d. e. A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding. If a mediation communication is not privileged and falls in either subsections (a) or (b) of Section 11 ofR.A. No. 9285, only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. The admission of 281 4. The following cannot be subject to compromise: a. Article 2035, Civil Code i. The civil status of persons; ii. The validity of a marriage or a legal separation; iii. Any ground for legal separation; iv. Future support; 282 COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TOlHE 1997 RULES OF CIVIL PROCEDURE THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN V. The jurisdiction of courts; and vi. Future legitime. b. Section 2. ludicial Di§pute Resolution. - Only if the judge of the court to which the case was originally raffled is convinced that settlement is still ROssible the case may be referred to anQther court for judicial disRute resolution. The judic:ial dis12ute 1. Any act constituting the crime of violence against women and their children and other prohibited matters (Section 23, RA.No. 9262;BBB v.AAA, G.R. No.193225, 9Febmary 2015) Referral to Judicial Dispute Resolution (JDR) is not a matter of right. It is only when the judge of the court to which the case was originally raffled is convinced that settlement is still possible, that the case will be resolution shall be cQnducted within a non-extendible ~riod .of fifteen 052 calendar days from notice of failure of the court-'annexed mediation. 283 referred to another court for JDR. 2. If judicial dis12ute resolution fails .trial .before the original court shall 12roceed on the dates agreed u12on. All i;2roceedings ·during thecotirt~ annexed mediation and the judicial dispute re~olution •shall be fonfidential. Matters discussed in the course of the judicial dispute resolution are confidential. (h) Section 10. .··. [µdgment after · fl.re-trial:~ Should there be no more controverted facts, or no more genuine issue as to any material fact or an absence of any issue or should the answer fail to tender an issue · the court shall without 12rejudiceto a 12am,: moving for judgment on the 12leadings under Rule 34 or surriniati'. judgment under Rule 35, 1; It is clear from the amended provisions that the court, in the course of the pre-trial proceedings, may motu proprio include in the pretrial order that the case be submitted forsummary judgment or judgment on the pleadings, without need of position 284 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV motu tz.roJlrioinclude in the 12re-trial order that the case be submittedfor · summan:: judgment or judgment on the 12leadings• without need of 12osition 12a12ersor memoranda. In such cases judgment shall be rendered within ninety (90) caiendar dais from termination of the 12re-trial. The order of the court to submit the case for judgment 12ursuant to ·this Rule shall not be the subject to a1212ealor certiorari ..·(ti) papers or memoranda. 2. The order directing the submission the case for summary judgment or judgment on the pleadings cannot be subject to appeal or certiorari. 3. The exercise of the court to direct the submission of the case for summary judgment or judgment on the pleadings is without prejudice to the right of a party to avail of the remedies provided under Rules 34 and 35 of the Amended Rules. RULE 19 INTERVENTION Section 1. Who Section 1. Who may interoene. - A person who has a legal interest in the matter in litigation, or in the success of either of the may interoene, ·-:- A person who has a legal interest in the matter in litigation, or in the succe~s of either of the parties, 1. A court which has no jurisdiction over the principal action has no jurisdiction over a complaint-in- COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12) or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. (1) 285 intervention. Intervention presupposes the pendency of a suit in a court of competent jurisdiction. Jurisdiction of intervention is governed by jurisdiction of the main action. (Asian Terminals, Inc. v. BautistaRicafort, G.R. No. 166901, 27 October 2006) 2. Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litiganttherein for a certain purpose: to enable the third party to protect or preserve a right or interest that may be affected by those proceedings. (Ongco v. Dalisay, G.R. No. 190810, 18July 2012) 286 THE PRE-WEEK REVIEWER FOR JllTERY BAR TAKERS Volume IV 3. 4. Intervention is not a matter of right, but is instead addressed to the sound discretion of the courts and can be secured only in accordance with the terms of the applicable statute or rule. (Office of the Ombudsman v. Bongais, G.R. No. 226405, 23 July2018) Aside from: (a) having legal interest in the matter in litigation; (b) having legal interest in the success. of any of the parties; (c) having an interest against both parties; or (d) beingso situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof, the movant must COMPARATIVE MATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 287 also be able to interpose the motion before rendition of judgment, pursuant to Rule 19, Section 2 of the Rules of Court. The period requirement is premised on the fact that intervention is not an independent action, but is ancillary and supplemental to an existing litigation. Thus, when the case is resolved or is otherwise terminated, the right to intervene likewise expires. (Office of the Ombudsman v. Gutierrez, G.R. No. 189100,21 June2017) 5. The interest contemplated by law must be actual and material, direct and immediate, and not simply 288 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV contingent or expectant. It must be in the matter in litigation and of such direct and immediate character that the intetvenor will either gain or lose by the direct legal operation and effect of the judgment. The words "an interest in the subject" mean a direct interest in the cause of action as pleaded, and which would put the intetvenor in the legal position to litigate a fact averred in the complaint, without the establishment of which plaintiff could not recover. Accordingly, intervention is improper and should be disallowed if the claim of the intervenor COMPARATIVEMATRIXOF TtlE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO TIIE 1997 RULES OF CML PROCEDURE 289 could be decided or fully protected in a separate proceeding. (Carino v. O.filada, C.R. No. 102836, 18 January 1993) Section 2. Time to interoene. - The motion to intetvene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-inintervention shall be attached to the motion and setved on the original parties. (n) Section 2. Time to interoene. - The motion to intetvene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-inintetvention shall be attached to the motion and setved on the original parties. (2) 1. 2. Intetvention may be allowed only before or during the trial. The term "triai" is used in its restricted sense (i.e. the period for the introduction of evidence of both parties). This period of trial terminates when the judgment begins. (Carino v. Ofilada, G.R. No.102836) Case law states that intetvention is never an independent action, but is merely ancillary and supplemental to the existing litigation. Its purpose is not to obstruct or unnecessarily 290 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VolumeN delay the placid operation of the machinery of trial, but merely to afford one not an original party, who is claiming a certain right or interest in the pending case, the opportunity to appear and be joined so he could assert or protect such right or interests. In other words, the right of an intervene or should only be in aid of the right of the original party. Thus, as a general rule, where the right of the latter has ceased to exist, there is nothing to aid or fight for and, consequently, the right of intervention ceases. (Majestic Finance and Investment Co., Inc. v. Tito, G.R. No. 197442, 22 October 2014) COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CML PROCEDURE 3. 291 In one case, however, the Supreme Court said that having been permitted to become a party in order to better protect his interests, an intervenor is entitled to have the isst1es raised between hinl and the original parties tried and determined. He had submitted himself and his cause of action to the jurisdiCtion of the court and was entitled to relief as though he were .himself a party in the action. After the intervenor has appeared .in the action, the plaintiff has no absolute right to put the intervenor out of court by the dismissal of the action. The parties to the original suit have no 292 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VolumeN COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVlL PROCEDURE power to waive or otherwise annul the substantial rights of the intervenor. When an intervening petition has been filed, a plaintiff may not dismiss the action in any respect to the prejudice of the intervenor. The intervenor in a pending case is entitled to be heard like any other party. A claim in intervention that seeks affirmative relief prevents a plaintiff from i:aking a voluntary dismissal of the main action. Where a complaint in intervention was filed before plaintiffs action had been expressly dismissed, the intervenor's complaint was not subject to r , 293 dismissal on the ground that no action was pending, since dismissal of plaintiffs action did not affect the rights of the intervenor or affect the dismissal of intervenor's complaint. An intervenor's petition showing it to be entitled to affirmative relief will be preserved and heard regardless of the disposition of the principal action. (Metropolitan Bank and Tmst Company v. 1be Presiding judge, G.R. No. 89909, 21 September 1990) 4. The rule requiring intervention before rendition of judgment is flexible. As jurisprudence has shown, interventions have been 294 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS VolumeN allowed even beyond the period prescribed in the Rule: (a) when demanded by the higher interest of justice; (b) to afford indispensable parties, who have not been imp leaded, the right to be heard; (c) to avoid grave injustice and injury and to settle orice and for all the ··substantive issues raised by the parties; or (d) because of the grave legal issues raised. Stated otherwise, the rule may be relaxed and intervention may be allowed subject to the court's discretion after consideration of the appropriate circumstances. (Office of the Ombudsman, GR.No. 226405) COMPARATNE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 295 5. An order denying a motion for intervention is appealable. Where the lower court's denial of a motion for intervention amounts to a final order, an appeal is the proper remedy, as when the denial leaves the intervenor without further remedy or resort to judicial relief. (Gallego v. Galang, G.R. No. 130228, 27 July 2004) Section 3Pleadings-inintervention. - The intervenor shall file a complaintin-intervention if he asserts a claim against either or all of the original parties, or an answer-inintervention if he unites with the defending party in resisting a claim against the latter. (2[c]a, R12) Section 3Pleadings-inintervention. - The intervenor shall file a complaintin-intervention if he or she asserts a claim against either or all of the original parties, or an answer-inintervention if he or she unites with the defending party in resisting a claim against the latter. (3a) 1. Amendments refer to gender inclusiveness. 2. Same principles as those under the 1997 Rules. 296 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 4. Answer Section 4. Answer to complaintin-interoention. - The answer to the complaint-inintervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the court. (2[d]a, R12) to complaintin-interoention. - The answer to the complaint-inintervention shall be filed within fifteen (15) calendar days from notice of the order admitting the same, unless a different period is fixed by the court. (4a) Same principles as those under the 1997 Rules. Section 1. Calendar of cases. - The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so required by law. (la, R22) habeas corpus cases, election, cases, special civil actions, and those so required by law. (1) Section 2. Section 2. Assignment of cases. - The assignment of cases to the different branches of Assignment of cases. - The assignment of cases to the different branches of a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shali be given so as to afford interested parties the opportunity to be present. (7a, R22) 297 a court shall be done exclusively by raffle. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. (2) RULE 21 SUBPOENA Section 1. Subpoena RULE 20 CALENDAR OF CASES Section 1. Calendar of cases. - The clerk of court, under the direct supervision ofthejudge,shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. Preference shall be given to COMPARATIVEMATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Same principles as those under the 1997 Rules. Same principles as those under the 1997 Rules. and subpoena duces tecum. - Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. (la, R23) 1. Amendments refer to gender and subpoena duces inclusiveness. tecum. - Subpoena is a process directed 2. Same principles to a person requiring as those under him or her to attend the 1997 Rules. and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his or her deposition. It may also require him or her to bring with him or her any books, documents, or other things under his or her control, in which case it is called a subpoena duces tecum. (la) Section 1. Subpoena 298 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS VolumeN Section 2. By whom issued. - The subpoena may be issued by- Section 2. By whom issued. - The subpoena may be issued by- (a) the court before whom the witness is required to attend; (a) The court before whom the witness is required to attend; (b) the court of the place where the deposition is to be taken; (b) The court of the (c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or (c) The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or (d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. (d) Any Justice of the Supreme Court or the Court of Appeals in any case or investigatiori pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. When an application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. place where the deposition is to be taken; 1. Same principles as those under the 1997 Rules. COMPARATNE MATRIX OF THE 1997 RUIES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CIVIL PROCEDURE No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a, 299 No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. (2a) R23) Section 3. Form and contents. - A subpoena shall state the name of the court and the title of the action or inyestiga,tion, shall be directed to the person , whose attendance .· is required, and in the case of a subpoena duces tecum, it shall also contairi a reasonable description of the· books; documents or things demanded which must appear to the court prinia facie relevant. (3a, R23) . . Section 3. Form and contents; - A subpoena shall state thena~eof the court and the title of.the action or investigation, shall be directed to the person whb~e attendance . is required, and ih thecase ofa subpoena duces tecum; it'shall also contain a reasonable <;tescriptioncif the books,. documents odhirigs demanded· ·which must appear to the court prima Jacietel(!vant. (3) L Sarne principles as those under the 1997 Rules. 300 IBE PRE-WEEK REVIEWER FOR]ITfERY BAR TAKERS Volume IV Section 4. Quashing Section 4. Quashing a subpoena. - The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. a subpoena. - The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or·the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. ( 4a, R23) The court may . quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. (4) 1. 2. Requests by a party for the issuance of subpoena do not require notice to other parties to the action. No violation of due process results by such lack of notice since the other parties would have ample opportunity to examine the witnesses and documents subpoenaed once they are presented in court. (Afulugencia v. Metropolitan Bank& Trnst Co., G.R. No. 185145,5 February 2014) In order to entitle a party to the issuance of a subpoena duces tecum, it must appear, by clear and unequivocal proof, that the book or document sought to be produced contains COMPARATIVE MATRIX OF IBE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 301 evidence relevant and material to the issue before the court, and that the precise book, paper or document containing such evidence has been so designated or described that it may be identified. (Universal Rubber Products, Inc. v. 01, G.R. No. L-30266, 29 June 1984) 3. A subpoena duces tecum once issued by the court may be quashed upon motion if the issuance thereof is unreasonable and oppressive or the relevancy of the books, documents or things does not appear, or if the persons in whose behalf the subpoena is issued fails to advance the reasonable cost 302 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE of production thereof. (Universal Rubber Products v. G4, Inc., G.R. No. L-30266) 4. Section 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk A subpoena will not be issued or may also be quashed, if one was issued, if the costs for court· attendance and the production of documents and other materials subject of the subpoena was riot tendered or charged accordingly; . Section 5. Subpoena for depositions. '-Proof of service of a notice to take a deposition, as provided in Sections 15 arid 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken; The clerk 1. Same principles as those .under the 1997 Rules. shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (Sa, R23) shall not, however, issue a subpoena duces tecum to any such person without an order of the court. (5) Section 6. Service. - Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day's attendance and· the kilometrage allowed by these Rules, except that, when a subpoen~ is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the Section 6. Service. - Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited •and a copy thereof delivered to the person on whom it is served. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Costs for court attendance and the production of documents and other materials subject of the subpoena shall be tendered or charged accordingly. (6a) 303 1. A subpoena may only be served personally or by substituted service. In fact, Rule 13, Section 14 of the Amended Rules states that subpoena must be served or filed personally or by. registered mail when allowed, and shall not be served or filed electronically, unless express permission is granted by the court. 304 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N reasonable cost of producing the books, documents or things demanded shall also be tendered. (6a, R23) Section 7- Personal Section 7. Personal appearance in court. - A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10, R23) appearance in court. - A person present· · in court before a judicial officer inay be required to testify as if he or she were in attendance upon a subpoena- issued by such: court or officer. (7a) Section.8. Section 8. Compelling attendance. -:-- In case offailure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be Compelling attendance. - In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his or her deputy, to arrest the witness and bring him or her before the court or officer where his or her attendance is required, and the cost of such warrant and seizure of such 1. Amendment· refers to gender inclusiveness. 2.. Same principles as those under the 1997 Rules 1. Same principles as .those under the 1997 Rules. 2. Amendment refers to gender ,inclusiveness. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. (11, R23) witness shall be paid by the witness if the court issuing it shall determine that his or her failure to answer the subpoena was willful and without just excuse. (8a) Section 9. Section 9- Contempt. - Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. (12a R23) Contempt. - Failure by any person without adequate cause to obey a subpoena served upon him or her shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. (9a) Section 10. Section 10. Exc~ptions. The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of Exceptions. The provisions of Sections 8 and 9 of this Ru_leshall not apply to a witness who resides more than one hundred (100) kilometers from his or her residence to the place where he or she is to testify 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. 1. If a witness was not bound by a subpoena since his residence was admittedly not less than 50 kilometers (now 100 kilometers) from the place of trial, the failure to obey the same or to comply with 305 306 THE PRE-WEEK REVIEWER FORJITIBRY Volume IV travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23) BAR TAKERS by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his or her case is pending was obtained. (lOa) it could not in any manner whatsoever constitute contempt of court. (People v. Montejo, G.R. No. L-24154, 31 October 1967) RULE 22 COMPUTATION OF TIME • 1 Section 1. How to compute time. · - In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legal holiday in the place where the court sits, the time shall not run until· the next working day. (a) Section 1. How to compute time. - In computing any period of time prescribed or allowed by these· Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. ·If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. (1) 1. Under A.M. No. 00-2-14-SC, the Supreme Court clarified that this provision speaks only of "the last day of the period" so that when a party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday, COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 307 Sunday or legal holiday. (Luz v.National Amnesty Commission, G.R. No. 159708, 24 September 2004) Section 2. Effect of interruption. - Should an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation·ofthe cause thereof. Section 2. Effect of interruption. - Should a~ act be done which effectively interrupts the running of the period, the·allowable period after such interruption shall start to rim on the day after notice of the cessation. of the cause· thereof. The day of the act that caused the interruption shall be excludecl-in the computation of the period. (n) The day of the act that caused the interruption shall be excluded· in the computation ofthe period. (2) 1. Same· principles as those under the 1997 Rules. RULE 23 DEPOSIDONS PENDING ACTIONS Section 1. Depositions pending action; when may be taken. - By leave of court after jurisdiction has. been obtained over any defendant or over property which is the subject of the action, or without Section 1. Depositions pending action, when may be taken. -:- Upon ex (l.artemotion of a ~ the testimony · of any person, whether a party or not, may be taken by deposition upon oral examination or 1. Deposition now requires to be a subject of a motion ex parte. 2. The depositiondiscovery rules are to be accorded a broad and liberal treatment. 308 THE PRE-WEEK REVlEWER FORJITfERY BAR TAKERS VolumeN such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (la, R24) written interrogatories. The attendance-of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only in accordance with · these Rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (la) No longer can the timehonored cry of fishing expedition serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The depositiondiscovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, this reducing the possibility of surprise, (Security Bank Corporation v. COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 309 CA, G.R.No. 135874, 25 January 2000) 3. A deposition should be allowed, absent any showing that taking it would prejudice any party. It is accorded a broad and liberal treatment and the liberty of a party to make discovery is well-nigh unrestricted if the matters inquired into are otheiwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of law. It is allowed as a departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge, consistent with 310 THE PRE-WEEK REVIEWER FORJITTERY BAR TAKERS VolumeN the principle of promoting just, speedy and inexpensive dispositiori of every action and proceeding; and provided it is taken in accordance with the provisions ofthe Rules of Court, i.e., with leave of court.if summons have been served, and without such leave if an ·answer has been submitted; and provided further that a circumstance for its admissibility exists (i.e;, Rule 23, Section 4; Rules of Court). Thenileson discovery should not be unduly restricted, otherwise, the advantage of a liberal discovery procedure in ascertaining the truth and expeditirig the disposal of litigation would be defeated. COMPARATNE MATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 311 (Hyatt Industrial Mfg. Corp. v. Ley Constrnction and Development Corp., C.R. No. 147143, 10 March2006) 4. A.M.No. 03-1-09-SC provides for the guidelines to be observed by trial court judges and clerks of court in the conduct of pre-trial and use of depositiondiscovery measures. (Hyatt Industrial Mfg. Corp., C.R. No. 147143) 5. The other principal benefits derivable from the availability and operation of a liberal discovery procedure are the following: a. It is of great assistance in ascertaining the truth and in checking and preventing petjury. The : 312 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV 1, reasons for this are: (i) the witness (including a party) is examined while his memory is fresh; (ii) the witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous; (iii) A party or wit~ ness whose deposition has been taken at an early stage in the litigation cannot, at a later date, readily manufacture testimony in contradiction to his deposition; (iv) testimany COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 313 is preserved, so that if a witness unexpectedly dies or becomes unavailable at the trial, his deposition is available. ' b. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses. C. ' It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all. 314 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV d. e. f. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court. It expediates the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried. It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried, COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO 1HE 1997 RULES OF CML PROCEDURE 315 thereby expediting the trial. g. It facilitates both the preparation and trial of the cases. (Fortune Corp. v. CA, G.R.No. 108119, 19January 1994) 6. The availability of the deponent to testify in court does not constitute "good cause to justify the court's order that his deposition· shall not be taken. That the witness is unable to attend or testify is one ofthe grounds when the deposition of a witness may be used in court during the trial. But the same reason cannot be successfully invoked to prohibit the taking of his deposition. 316 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV ' The right to take statements and the right to use them in court have been kept entirely distinct. The utmost freedom is allowed in taking depositions; restrictions are imposed upon their use. As a result, there is accorded the widest possible opportunity for knowledge by both parties of all the facts before the trial. Such of this testimony as maybe appropriate for use as a substitute for viva voce examination ·may be introduced at the trial; the remainder of the testimony, having served its purpose in revealing the facts to the parties before tri:d, drops out of the judicial picture. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO 1HE 1997 RULES OF CML PROCEDURE 317 (Santamaria v. Cleary, G.R. Nos. 197122and 197161, 15June 2016) 7. There are limitations to discovery, even when permitted to be undertaken without leave and without judicial intervention. "As indicated by (the) Rules ... , limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or. in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry. And ... further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains 318 THE PRE-WEEK REVIEWER FORJITfERY Volume IV BAR TAKERS of privilege." (Republic v. Sandiganbayan, G:R. No. 90478, 21 November 1991) 8. The various methods of discovery as provided for in the Rules are clearly intended to be cumulative, as opposed to alternative or· mutually exclusive. (Fortune V. 01, G.R. No, 108119, 19January 1994) Section 2. Scope of examination. Unless otherwise ordered by the court as provided by section 16 or 18 ofthis Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the Section 2 •.Scope of examination. Unless otherwise ordered by the court as provided by SectionJ6 or 18 ofthis Rule, the deponent inay be · examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the 1. Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 319 existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2, R24) existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (2) Section 3. Examination and cross-examination. - Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24) Section 3. Examination and cross-examination. - Examination and cross-examination of deponents may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. (3) 1. Same. principles as those under the 1997 Rules. Section 4. Use of depositions. - At the trial ofupon the hearing of a motion or an interlocutory proceeding, ari:y part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in Section 4. Use of depositions. - At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, maybe used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in 1. Depositiops are principally made available by law to the parties a.s a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must 320 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV accordance with any one of the following provisions: accordance with any one of the following provisions: (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; (a) Any deposition may~be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness; (b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, P.artnership, or association which is a party may pe used by an adverse party for any purpose; (b) The deposition (c) Th~ deposition of a witness, whether or not a party, may be used by any party for any pµrpose if the court finds: (1) that the witness is dead, or (2) (c) TJi.e deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which 'is a party may be used by an adverse party for any purpose; as a rule be presented for oral examination in open court at the trial or hearing. (Dasmariiias Garments, Inc. v. Reyes, G.R. No. 108229, 24 August 1993) 2. Any deposition offered t9 prove the facts therein s.et out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that opportunity for crossexamination was afforded during the taking of the deposition; for COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition, or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment, or (4) that the party offering the deposition has been unable to procure the attendance of the witness. by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance (2) that the witness. resides at a distance more than one hundred (100) kilometers from the pla~ of trial or hearing, or is· out of the Philipp~es, unless it appears that his or her absence was procured by the party offering 11:he deposition; or (3) ·that the witness is unable to attend or 3. testify because of age, sickness, infirmity,' or imprisonment; or ( 4) that the party offering the deposition has been unable to procure the attendance of ' the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with ' 4. due regard to the importance 321 normally, the opportunity for crossexamination must be accorded a party at the time that the testi~onial evidence is actually presented against him during the trial o.r hearing. (Dasm,q.ij.nas Garrrtf;!n(S, Inc., G.R. No. 108229) Depositions maybe used, however, without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Rule 24, Section 4, of the Rules of Court. The principle conceding 322 THE PRE-WEEK REVIEWER FORJTITERY BAR TAKERS Volume IV of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24) of presenting the testimony of witnesses orally in open court, to allow the deposi~ion to be used; and (d) If only part of a deposition is offered in evidence by a party, the adverse party may require him or her to introduce all of it which is relevanr to 'the part introduced, and any party may introduce any other parts. (4a) ,,, COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE admissibility to a deposition when the deponent is dead, out of the Philippines, or otherwise unable to come to court to testify, is consistent with Rule 132, Section 47 of the Rules of Court. general, consul, vice-consul, or consular agent of the Republic of the Philippines; or (b) before such person or officer as may be appointed by commission or under letters rogatory. (Dasmarinas Garments, Inc., G.R. No. 5. It is apparent then that the deposition of any person may be taken wherever he may be, in the Philippines or abroad. Under Rule 24, Section . 10 of the Rules . of Court, if the party or witness is in the Philippines, his deposition shall be taken before any judge, municipal or notary public. If in a foreign state or country, the deposition shall be taken: (a) on notice before a secretary or embassy or legation, consul 108229) Section 5. Effect of substitution of parties. Substitution of parties does riot affect the right to use. depositions previously_taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor. (5, R24) Section 5. Effect of substitution of parties . ..;_ Substitution of parties does not . affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the sarrie subject is afterward . brought between the same parties or their representatives or successors in interest; all depositions lawfully taken and duly filed in the former action may be .used in the latter as if originally taken therefor. (5) L Same principles as those under the 1997 Ruies. 323 324 THE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV Section 6. Objections to admissibility. Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing, to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6, R24) Section 6. Objections to admissibility. Subject to the provisions of Sect;ion 29 of this Rule, objection~ may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (6) Section 7. Effectof taking depositions. - A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. (7, R24) Section 7. Effect of taking depositions. - A party shall not· be deemed to make a person his or her own witness for any purpose by taking his or her deposition. (7a) 1. Section 8. Effect of using depositions, - The introduction in evidence of the deposition or any part thereof for ariy purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the 1. Section 8. Effect of using depositions. - The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing 1. Same principles as those under the 1997 Rules. Same principles as those uncler the 1997 Rules. Same prindples as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24) deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of Section 4 of.this Rule. (8) Section 9. Rebutting deposition. - At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (9, R24) Section 9. Rebutting deposition. - At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or her or by any other party. (9a) 1. Same principles as those under the 1997 Rules. Section 10. Persons before whom depositions may be taken within the Philippines. -Within the Philippines depositions may be taken before any judge, notary public, or the person referred to in section 14 hereof. (lOa, R24) Section .10. Persons befor~whom depositions may be taken within the Philippines. -Within the Philippines, depositions may be take9- before any judgt:!, notary public, or the person referred to in Section 14 hereof. (10) 1. Same principles as those under the 1997 Rules. Section 11. Persons before whom depositions may be taken in foreign countries. - In a foreign state or country, depositions Section 11. Persons before whom depositions may be taken in foreign countries. - In a foreign state or country, depositions 1. Same principles as those under the 1997 Rules. 325 326 IBE PRE-WEEK REVIEWER FOR]ITfERY BAR TAKERS Volume IV may be taken (a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before· such person or officer as may be appoirited by com.mission or under letters rogatory; or (c) the person referred to in· section 14 hereof. (1 la, R24) Section 12. Commission or letters rogatory: - A commission or letters rogatory shall be issued only when necessary or convenient, on applica,tion and notice, and on such terms, and with such direction as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the foreign country. (12a, R24) may be taken Ca) on notice.before a secretary of embassy or legation, consul: general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as ma:y be appointed by .. commission or under letters•·t<Jgatory; or(c) .the person referred -to. in. Section 14 hereof. (11) Sectionu. Cornmfysion or: ·. letters rog(,i/qry. ..· - A corturi.ission . or letters rogatory sh.all be 'issued only When ne::c'essary.•···... or convenient, on . application and. notice,· and.on such .terms and\vith such direction are just .. and. appropriate. ··Officers maybe designated mJioti~es or commissions · eith~~by name or . descriptive letters roga,iory ~y be addressed to.the appropriate judicial . aui:h()rity .UJ the foreign country. (12) as title and · 1. Same principles as. those imde.r .the 1997 Rules. COMPARATIVEMATRIXOF IBE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO IBE 1997 RULES OF CIVIL PROCEDURE Section 13. Disqualification by interest. - No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties, or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13a, R24) Section 13. Disqualification by interest. - No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action. (13) 1. Same principles as those under the 1997 Rules. Section 14. Stipulations regarding taking of depositions. If the parties so stipulate {n writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules and when so taken may be used like other depositions. (14a, R24) Section 14. Stipulations regarding taking of depositions. If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions. (14) 1. Same principles as those under the 1997 Rules. Section 15. Deposition upon oral examination; notice-, time and place. - A party desiring to take Section 15. Deposition upon oral examination; notice-, time andplace. - A party desiring to take 1. Same principles as those under the 1997 Rules. 327 328 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS Volume IV the deposition of any person upon oral examination shall give reasonable notice in writing, to eveiy other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to· which he belongs. On motion a:hy party upon whom the notice is served, the court may for cause shown eruarge or shorten the time. 05, R24) of Section 16. Orders for the protection of parties and deponents. - After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be the deposition of any person upon oral examination shall give reasonable notice in writing to eveiy other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs. On motion of any party upon whom the notice is served, the court may for cause shown eruarge or shorten the time. (15a) Section 16. Orders for the protection of parties and deponents. - After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be 1. Rule 24, Section 16 of the Rules of Court states that after notice is served for taking a deposition by oral examination, upon motion seasonably made COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE examined and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the hotice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that tpe scope of the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed · the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court or the court may make examined and for good cause shown, the court in which the action is pending may make the following orders: (a) That the • deposition shall not be taken; (b) That the deposition may be taken only at some designated place other than that stated in the notice; (c) That the deposition may be taken only on written interrogatories; (d) That certain matters shall not be inquired into; (e) That the scope of the examination shall be held with no one present except the parties to 1theaction and their officers or counsel; (D That after being sealed the deposition shall be opened only by order of the court; 329 by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may, among others, make an order that the deposition shall not be taken. This provision explicitly vests in the court the power to order that the deposition shall not be taken and this grant connotes the authority to exercise discretion in connection therewith. It is well settled, however, that the discretion conferred by law is not unlimited: that it must be exercised, not arbitrarily, capriciously, or oppressively, but in a reasonable manner and in consonance with 330 TI-IE PRE-WEEK REVIEWER FORJl1TERY BAR TAKERS VolumeN any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. (16a, R24) (g) That secret processes, developments, or research need not be disclosed; or (h) That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the · court. The court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or opRression. (16a) COMPARATIVE MATRIX OF THE1997 RULES OF CIVIL PROCEDURE AND TI-IE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CIVIL PROCEDURE The requirement, however, that good cause be shown for a protective order puts the burden on the party seeking relief to show some plainly adequate reasons for the order. A particular and specific demonstration of facts, as distinguished from conclus01y statements; is required to establish good cause for the issuance of a protective order. What constitutes good cause ·furthermore depends upon the kind of protective order that is sought. (Fortune, G.R. No. 108119) the spirit of the law, to the end that its purpose may be attained. (Fortune v. CA, G.R: No. 108119, 19January 1994) 2. The said section clearly states that it is only upon notice and for good cause that the court may order that the deposition shall not be taken. The matter of good cause istb be determined by the court in the exercise of judicial discretion. Good cause means a substantial reason --'- one that affords a legal excuse. Whether or not substantial reasons exist is for the court to determine, as. there is no har<l· and fast rule ,for determining the question as to what is meant by the term "for good cause shown." 331 Section 17. Record of examination, oath; objections. - The officer before whom the deposition is to be taken shall put the witness on oath and Sectionl.7. Rec;ord : of examination; oath; obj~ctions; ~Th~qffi;cer .befor~ ~li.om th~ .·depositionjs to be taken shallput the witness on oath and Sa.me principles as those under the 1997 Rules. 332 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the · qualifications of the officer taking the deposition, or to the manner of talkirlg it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedirlgs, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examirlation, parties served with notice of takirlg a deposition may transmit written irlterrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17, R24) shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the · evidence presented, or to the conduct of any party, and any other objection to the proceedirlgs, .shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of takirlg a deposition may transmit written irlterrogatories to the officers, who shall propound them to the witness and record the answers verbatim. (17a) COMPAR...,_TIVE MATRIX OF TIIE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 18. Motion to terminate or limit examination. - At any time during the taking of the deposition, on motion or petition of any party or of the deponent, and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court irl which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examirlation to cease forthwith from takirlg the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Section 16 of this Rule. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which 333 Same principles as those under the 1997 to terminate or limit Rules. examination. - At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted irl bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conductirlg the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided irl Section 16 of this Rule. If the order made termirlates the examination, it shall -be resumed thereafter only upon the order of the court in which the Section 18. Motion 334 TiiE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem . reasonable. (18a, action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs · or expenses as·the court may deem: reasonable. (18) R24) Section 19. · Submission to witness,. changes, signing. - When Secnon 19. Submission to witness, changes, signing. - When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties~ Any changes in form or substance which the witness desires to the testimony is fully transcribed; the deposition shall be sµbrnitted · to the witness for examination and shall be readto or by him or her, uriless such examination · and reading are waived by the witness and by the parties. Any changes in form or substance which the witness Same principles as · those under the 1997 Rules. COMPARATIVEMATRIXOF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO TifE 1997 RULES OF CML PROCEDURE desires to make make shall be shall be entered entered upon the upon the deposition deposition by by the officer with the officer with a a statement of the statement of the reasons given by reasons given by the witness for the witness for making them. The making them. The deposition shall then deposition shall then be signed by the be signed by the witness, unless the witness, unless the parties by stipulation parties by stipulation waive the signing waive the signing or the witness is ill or the witness is ill or cannot be found or cannot be found or refuses to sign. or refuses to sign. If the deposition is If the deposition is not signed by the not signed by the witness, the officer witness, the officer shall sign it and state shall sign it and state on the record the on the record the fact of the waiver fact of the waiver or of the illness or of the illness or absence of the or absence of the witness or the fact witness or the fact of the refusal to of the refusal to sign together with sign together with the reason.given the reason be given therefor, if any, and therefor, if any, and the deposition may the deposition may then be used as fully then be used as fully as though signed, as though signed, unless on a motion unless on a motion to suppress under to suppress under Section 29(0 of this section 29 (f) of this Rule, the court holds Rule, the court holds that the reasons that the reasons given for the refusal given for the refusal to sign require to sign require rejection of the rejection of the deposition in whole deposition in whole or in part. (19a, R24) or in part. (19a) 335 336 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 20. Section 20. Certification, and Certification and filing by officer. filing by officer. - The officer - The officer shall certify on the shall certify on the deposition that the deposition that the witness was duly witness was duly sworn to by him and sworn to by him that the deposition is or her and that · a true record of the the deposition is a testimony given by true record of the the witness. He shall testimony given then securely seal by the witness. He the deposition in an or she shall then envelope indorsed securely seal the with the title of the deposition in an action and marked envelope indorsed "Deposition of (here with the title of the insert the name action and marked of witness)" and· "Deposition of (here shall promptly file insert the name it with the court in of witness)" and which the action is _shall promptly file pending or send it it with the court in by registered mail to which the action is the clerk thereof for pending or send it filing. (20, R24) by registered maiho the clerk thereof for filing. (20a) Same principles as those under the 1997 Rules. Section 21. Notice of Section 21. Notice of filing. - The officer filing. - The officer taking the deposition taking the deposition shall give prompt shall give prompt notice of its filing to notice of its filing to all the parties. (21, , all the parties. (21) R24) Same principles as those under the 1997 Rules. Section 22. Furnishing copies. - Upon payment of reasonable charges Same principles as those under the 1997 Rules. Section_ 22. Furnishing copies, - Upon payIT1entof reasonable charges COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22, R24) therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (22) Section 23. Failure · Section 23. Failure to attend of party to attend of party giving notice. - If giving notice. - If the party giving the the party giving the notice of the taking notice of the taking of a deposition of a deposition fails to attend and fails to attend and proceed therewith proceed therewith and another attends and another attends in person or by in person or by coum,el pt1rsuant to counsel pursuant to the notice, the court the notice, the court may order the· party may order the party giving the notice to giving the notice to pay such other party pay such other party the amount of the the amount of the reasonable expenses reasonable expenses incurred by him incurred by him and or her and his or his counsel in so her counsel in-so attending, including attending, including reasonable attorney's reasonable attorney's fees. (23a, R24) fees. (23a) '" Section 24. Failure of party giving notice to serve subpoena. - If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not 337 Section 24. Failure of party giving notice to serve subpoena. - If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him or her and the witness. because of such failure does Same principles as those under the 1997 Rules. Same principles as those under the 1997 Rules. 338 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN attend, and if not attend, and if another party attends . another party attends in person or by in person or by counsel because counsel because he he expects the or she expects the deposition of that deposition of that witness to be taken, witness to be taken, the court may order the court may order the party giving the party giving the notice to pay the notice to pay to such other party such other party the amount of the the amount of the reasonable expenses reasonable expenses incurred by him and incurred by him his counsel in so or her and his or attending, including her counsel in so reasonable attorney's attending, including fees. (24a, R24) reasonable attorney's fees. (24a) Section 25. Deposition upon written interrogatories, seroice of notice and ofinterrogatories. A party desiring to take the deposition of any person upon written interrogatori'es shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the Section 25. Deposition upon written interrogatories, seroice of notice and of interrogatories. A party desipng to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them arid the name or descriptive title and address of the officer before whom the Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE deposition is to be taken. Within ten (10) days thereafter, a party. so served may serve crossinterrogatories upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon a party who has served crossinterrogatories. Within three (3) days after being served with re-:.clirect interrogatories, a party may serve recrossinterrogatories upon the party proposing to take the deposition. (25, R24) Section 26. Officers to take responses and prepare record. - A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, 339 deposition is to be taken. Within ten (10) calendar days thereafter, a party so served may serve cross-interrogatories upon the paity proposing to take the deposition. Within five (5) calendar days . thereafter. th~ latter may serve r¢--0irect interrogatories . upon a partywh9 has served cross,interrog;:i.tories. Within three (3) calendar days after beingserved with redirect interrogatories, a party may serve recrossinterrogatories upon the pa,;ty proposing to take the deposition,. (25a) .• Section 26; · Officers to takeresporises and prepare record. · - A copy of the notice and.copies of all interrogatories served shall be delivered by the party taking the deposition to· the officecdesjgnated in the notice, who shall proceed .promptly, Same principles as those under the 1997 Rules. Amendments refer to gender inclusiveness. 340 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV in the manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories · received by him. (26, R24) in the manner provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him or her. (2.<5a) Section 27. Notice of filing and furnishing copies. - When.a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor. (27, R24) Section 27. Notice of filing and furnishing copi~s. -When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to allthe parties and may furriish copies to them or to the.depon~1,1t upon payme11t ,of reasonable charges therefor. (27) Same principles as those under the 1997 Rules. Section 28. Order for the protection of parties and deponents. - After the service of the interrogatories and prior to the taking of the testimony of Section 28. Orders for theprotection of parties and deponents. -'-. After the service of the interrogatories· and prior to the taking of the testimony of the Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE the deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28a, R24) deponent, the court in which the action is pending, on motion promptly made by a party or a deponent, and for good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination. (28) Section 29. Effect of errors and irregularities in depositions. - Section 29. Effect of errors and irregularities in depositions. - (a) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (a) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (b) As to disqualification of officer. Objection (b) As to disqualification of officer. Objection to 341 Same principles as those under the 1997 Rules. 342 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence. (c) As to competency or relevancy of evidence. Objections to the competency of witness or the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground; of the objection is one which might have been taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made befcire thetaking of the deposition begins or·· as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.· (c) As to competency orrelevan</y of evidence~..:.......Objecti()ns to the cotnpetency of a witness or the competency, relevancy, or materiality of testimony are r1ot waived by failure to make them· before or during the taking of the deposition; unless the· ground 6fthe objection •is one which might have been COMPARATIVEMATRIX OF 'ffiE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE obviated or removed if presented at that time. obviated or removed if presented at that time; (d) As to oral examination and other particulars. -Errors and irregularities occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition. (d) As to oral examination and other particulars. -Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking ofthe deposition. (e) As toform of written interrogatories. - Objections to the form of (e) Astoform of written interrogatories. ~ Objections to the form of 343 344 TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N written interrogatories submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service of the last interrogatories authorized. (0 As to manner of preparation. - Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otheiwise dealt with by the officer under Sections 17, 19, 20 and 26 of this Rule are waived written interrogatories submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within three (3) calendar days after service of the last interrogatories authorized. (f) As to manner of preparation. -Errors and irregularities in the manner in which the testimony is transcribed or the depos1tion is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Sections· 17, 19, 20 and 26 of this COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a, R24) 345 Rules are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (29a) RULE 24 DEPOSffiONS BEFORE ACTION OR PENDING APPEAL Section 1. Section 1. Depositions before action; petition. - A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition in the court of the place of the residence of any expected adverse party. (la R134) Depositions before action;petition. - A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party.(la) Section 2. Contents Section 2. Contents of petition. - The petition shall be entitled in the name of the petitioner and shall show: (a) that of petition. ----,The petition shall be entitled in the name of the petitioner and shall show: (a) that Same principles as those under the 1997 Rules. Amendments refer to gender inclusiveness. Same principles as those under the 1997 Rules. Amendments refer to gender inclusiveness. 346 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VoltimeIV the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the Amended testimony and his reasons for desiring to perpetuate it; (d) the names or a' description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony, (2, R134) the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his· or her interest therein; (c) the facts which he or she desires to establish by the Am~nded testimony and his or her reasons for desiring to perpetuate it; (d) the names or a description of the persons he or she expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined arid the substance of the testimony which he or she expects to elicit from each, and shall ask for an order authorizing the petitioner i:o take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. (2a) COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 347 Section 3. Notice and service. - The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of:summons. (3a, R134) Section 3. Notice and seroice. - The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, t9gether with a copy of the petition, stating that the petitioner will apply to the court; · at a time and pface named· therein, for the order described in the petition. At least twenty (20) calendar days befon:i.the date of the l).earing, the court _shallcause ·notice· thereof to be · served on theparties and prospective deponents in the manner provided for service of summons. (3a) Same principles as those under the 1997 Rules Section 4. Order and examination. - If the court is satisfied that the perpetuatiori of the testimony may prevent a failure or delay of justice, it shall make ah order designating or describing the persons whose deposition·.may be Section 4. Order and examination. ~ If the court is satisfied that the perpetuation. of the testimony may prevent a failure or delay of justice, it shall make an order·designating or describingthe. persons whose deposition may be Same principles as those under the 1997 Rules. 348 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may be taken in accordance with Rule 23 before the hearing. (4a, R134) taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4) Section 5. Reference to court. - For the purpose of applying Rule 23 to depositions . for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (Sa, R134) Section 5. Reference to court. - For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending sha:11be deemed to refer to the court in which the petition for such deposition was filed. (5) Same principles as those under the 1997 Rules. Section 6. Use of deposition. - If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the Section 6. Use of deposition. - If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action. involving Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134) the same subject matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 23; (6) Section 7. Depositions pending appeal. - If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the .action was pending therein. Section 7. Depositions pending appeal. - If an appeal has been taken from a judgment of a court, including the·Court of Appeals in.proper cases, or before the taking of an . appeal if the time therefor. has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party wh<:> desires to perpetuate the testimony may make a motion in the said court for leave totake the depositions, .upon the same notice and service thereof as if the action was pencling therein. The 349 Same principles as those under the 1997 Rules. Amendments refer to gender inclusiveness. 350 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and Cb) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken, and thereupon the depositions may be taken and used iri the same mariner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, Rl34) motion shall state (a) the names and addresses of the persons to be examirns!d.and the substance of the testimony which he or she expects to elicit from each; and Cb)the reason for perpetuating their testimOl).y.If the court finds that the perpetuation of the· testimony is proper to avoid a failure or delay of justice, it maymake an order allowing the depositions to be taken, and thereupon the depositions,niay be taken and used in the same ffi4nner and under the same condition,s as ~e prescribed in .these Rules for· depositions taken in. peµQing actions. (7a) RULE 25 INTERROGATORtts Section 1. Interrogatories to parties, service thereof - Under the same conditions specified in section 1 of Rule 23; any party desiring to elicit material and TO P~TIES Section 1. Interrogatories to parties, Service thereof - Upon ex parte motion; any party. desiring .to elicit material and relevant facts from any adverse parties 1. Interrogatories to Parties can orily be availed through an exparte application; 2. Same principles as those under the 1997 Rules COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE relevant facts from any adverse parties shall file and serve upon the latter written interrogat01ies to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. (la) shall file and serve upon the latter written interrogatories to be answered by the patty served or, if the party served is a public or private corporation or a partnership. or association, by any officer thereof competent to testify in its behalf. (la) Section 2. Answer to interrogatories. The interrogatories shall be answered fully in writing and shall be signed a:nd sworn to by the person making them. The party upon whom the interrogatories have been served· shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown, extends or shortens the time. (2a) Section 2. Answer to interrogatories. The interrogatories shall be answered fully iri writing and shall be signed and sworn to by the person making them. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories withm fifteen (15) calehdar days after service thereof, unless the court, on motion and for good cause shown, extends or shortens the time. (2a) 351 Same principles as those under the 1997 Rules. 352 IBE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS Volume IV Section 3. Objections to interrogatories. - Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a) Section 3. Objections to interrogatories. ~ Objections to any interrogatories may be presented to the court within ten (10) calendar days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a) Section 4. Number of interrogatories. - No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party. ( 4) Secti~m 4. Number of interrogatories. - No p~rty may, without leave of 1 court, se,rve more , than one set of interrogatories to be answered by tp.e same party. (4) Same principles as those under the 1997 Rules. Section 5. Scope and use of interrogatories. Interrogatories may relate to any n1atters that can be in,qµJr<rd into under Section 2 of Rule 23, .and the answers m,w be used for the s3;me purposes provided in Sectiop 4 of the same Rule. (5) Same principles as tµose under the 1997 Rules. Section 5. Scope and use of interrogatories. Interrogatories may relate to any matters that can be inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided in section 4 of the same Rule. (5a) = ·•:o- Same principles as those under the 1997 Rules. COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND IBE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Section 6. Effect of failure to seroe written interrogatories. Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (n) Section 6. Effect of failure to seroe written interrogatories. Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be i:ompelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (6) 353 1. The party presenting the adverse party witness must comply with Rule 25, Section 6 of the Amended Rules. 2. In civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter. (Ng Men Tam v. China Banking Corp., G.R. No.214054,5 August 2015) 3. Purposes of Rule 25, Section 6: a. To prevent fishing expeditions and needless delays; b. If a party cannot elicit facts or information useful to its case through the facility of written interrogatories or other 1. 354 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV mode of discovery, then the calling of the adverse party to the witness stand could only serve to weaken its own case as a result of the calling party's being bound by the adverse party's testimony, which may only be worthless and instead detrimental to the calling party's cause; C. To prevent the calling party from straying or harassing the adverse party when it takes the latter to the stand; d. To protect the adverse party from COMPARATIVE .MATRIX OF IBE 1997 RULES OF CIVlL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 355 unwarranted surprises or harassment; and e. Prevents the calling party from conducting a fishing expedition or bungling its own case. (Spouses Afulugencia, G.R.No. 185145) RULE 26 ADMISSION BYADVERSE PARTY Section 1. Request for admission. At any time after issues have been joined, a party may file and serve upon any other P?rty may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and· relevant matter of fact set forth in the request. Copies of the Section 1. ·Request for admission. At any time after issues have been joined, a party may file and serve upon any other party a written request for the_admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the 1. This Rule seeks to obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions to enable a party to discover the evidence of the adverse side thereby facilitating an amicable settlement of the case or expediting the 356 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV documents shall be delivered with the request unless copy have already been furnished. (la) request unless copies have already been furnished. (1) trial of the same. (Duque v. CA, G.R. No. 125383, 2July2002) 2. The rule authorizing a party to call on the other party to make an admission implies the making of demands for admission of relevant and material matters of facts - and not for admission of matters of law, conclusions, or opinions. (Development Bank of the Philippines v. CA, G.R.No. 153034, 20 September 2005) 3. A request for admission is not intended to merely reproduce or reiterate the ~llegations of the requesting party's pleading but should set forth relevant evidentiary matters of fact COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 357 described in the request, whose purpose is to establish said party's cause _ofaction or defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy. Verily then, if the trial court finds that the matters in a Request for Admission were already admitted or denied in previous pleadings by the requested party, the latter cannot be compelled to admit or deny them anew. In turn, the requesting party cannot reasonably expect a response to the request and thereafter, assume or even demand the application of the implied 358 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE admission rule in Section 2, Rule 26. (Limos ·v. Odones, G.R. No.186979, 11 August 2010) Section 2. Implied admission. - Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within. Such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party reqtiesting the admission a sworn statement either denying specifically the· niatters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Sectio:n 2. Implied admission. - Each of the. matters of which an admission is request~d shaJl be deemed admitted uriless, within a period designated in the request, which shall not be less· than fifteen (15) calendar days after service thereof, or within such furthertime as the court may allow on motion, the party to whom the requ.est. is directed files.·and serves upon the party requesting the admission a Sworn statement· either denying specifically the matters of which· an admission is requested or Setting forth in detail the reasons why he or she cannot truthfully either admit or deny those matters. Objections to any request for admission shall be submitted to the Objections to any request for admission shall be submitted to the 1. The request for admission must be served up()h the person to whom the request is directed. Service to the counsel alone is. not sufficient. (Duque, G.R; No. 125383) 2. . Nbte, however, that there is reason to strictly construe the phrase ''the party to whom tl:ie request is directed" to. refer solely or personally . to the parties themselves. Hence, a counsel can answer the request for admission. (Eaiiada v. CA, no G.R. No. 102390, lFebrnary 2002) court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a) court by the party requested within the period for and prior to the filing of his or her sworn statement as contemplated in the preceding paragraph and his or her compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable. (2a) Section 3. Effect of admission. ~ Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. (3) Section 3. Effect of admission. - Any admission made by a party pursuant to such request is for the purpose of the pending action orily and shall not constitute an admission by him or her for any other purpose nor may the same be used against him or her in any other proceeding. (3a) Section 4. Withdrawal. - The court may allow the party making an admission under the Rule, whether express or implied, Section 4. Withdrawal. - The court may allow the party making an admission under this Rule, whether express or implied, 1. 359 Same principles as those under the 1997 Rules. 2. Amendments refer to gender inclusiveness. Same principles as those under the 1997 Rules. 360 TI-IE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N to withdraw or amend it upon such terms as may be just. to withdraw or amend it upon such terms as may be just. (4) (4) Section 5- Effect off ailure to file and serve request for admission. Unless otherwise allowed by the court for good cause shown and to prevent a failure· of justice a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (n) Section 5. Effect off ailure to file and serve request for admission. Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts. (5) Same principles as those under the 1997 Rules. Amendments refer to gender inclusiveness. RULE27 PRODUCTION OR INSPECTION OF DOCUMENTS OR TIIINGS Section 1. Motion for production or inspection; order. - Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection Section 1. Motion for production or inspection; orqer. - Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection 1. Rule 27 provides the mechanics for the production of documents and the inspection of things_during the pendency of a case. It also deals with the inspection COMPARATIVE MATRIX OF 1HE 1997 RULES OF CML PROCEDURE AND 1HE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring,· surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (la) and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, ph0tographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his or her possession, custody or control; or (b) order any party to permit entry upon designated land or other property in his or her possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just. (la) 361 of sources of evidence other than documents, such as land or other property in the possession or control of the other party. (Solidbank Corp. v. Gateway Electronics Corp., G.R. No. 164805, 30 April 2008) 2. This Rule permits "fishing" for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, that they are in the possession of the party ordered to produce them and that they are material to any matter involved in the action. However, fishing for evidence that is allowed under the rules is not without limitations. In this regard, the requisites in order that a 362 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN party may compel the other party to produce or allow the inspection of documents or things are as follows: a. ' The party must file a motion for the production or inspection of documents or things, showing good cause therefor; b. Notice of the motion must be served to all other parties of the case; C. The motion must designate the documents, papers, books, accounts, letters, photographs, objects or tangible things which the party wishes to be COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 363 produced and inspected; d. Such documents, etc., are not privileged; e. Such documents, etc., constitute or contain evidence material to any matter involved in the action, and f. Such documents, etc., are in the possession, custody or control of the other party. (Solidbank Corp. V. Gateway Electronics Corp., G.R. No.164805, 30April 2008) 3. Although the grant of a motion for production· of 364 THE PRE-WEEK REVIEWER FORJI1TERY BAR TAKERS Volume IV document is admittedly discretionary on the part of the trial court judge, nevertheless, it cannot be arbitrarily or unreasonably denied because to do so would bar access to relevant evidence that maybe used by a partylitigant and hence, impair his fundamental right to due process. The test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability. (Eagleridge Development Corp. v. Cameron Granville 3 Asset Management, Inc., G.R. No. 204700, 10 April 2013) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 365 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. When Section 1. When examination may be ordered. - In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician. (1) examination may be ordered. .:_ In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him or her to submit to a physical or mental •examination by a physician. (la) Section 2. Order for examination. ~ The order for examination may be made only on motion for good cause shown and upon notice,to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2) Section 2. Order for examination. - The order for examination may be made only on motimi for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. (2) 3. Report of .findings. - If requested by the party examined, the party causing the Section 3. Report of .findings. - If requested by the party examined, the party causing the Section 1. Same principles as those under the 1997 Rules. 2. Amendments refer to gender inclusiveness. Same principles as those under the 1997 Rules. Same principles as those under the 1997 Rules. 2. Amendments refer to gender inclusiveness. 1. 366 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and condusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a .like report of any examination:; . previo1isly or thereafter m:ade, of the same mental or physical conditio~. If the party examined refuses to deliver such report, the court on motion and notice lllay make an order requiring delivery on such terms as are just, and if a physician fails· or refuses to make such a report the court may exclude his testimony if offered at the trial. (3a) examination to be made shall deliver to him or her a copy of a detailed written report of the examining physician setting out his or her findings and conclusions. After such request and delivery, the party causing the examination tobe made shall be entitled upon request to receive froin the party examined a like report of any examination, previously or thereafter made, of the saine mentalor physical condition. If the party examined refuses to deliver such report, the court oh motion and notice may make an order requiring delivery on: such·· terins as ·are just, .and if a physiciail fails or refuses to, make such a report, the court may exclude his or her testimony· if offered at the trial. (3a) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 A.1\1ENDMENTSTO THE 1997 RULES OF CIVIL PROCEDURE 4. Waiver of privilege. - By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. (4) Section 4. Waiver of privilege. - By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he or she may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him or her in respect of the same mental or physical examination. ( 4a) Section 367 Same principles as those under the 1997 Rules. RULE 29 JIBFUSAI. TO COMPLY WITH MODES OF DISCOVERY Section 1. Refusal to Section 1. Refusal to answer. - If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question m:ay prefer. The proponent may thereafter apply to answer. - If a party or other deponent refuses to answer any question upon oral examination, th~ e:l.(amination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply Same principles as those under the 1997 Rules .. 368 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. to the proper court of the place where the deposition is being'taken, for an order:to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25. If the application is granted, the court shall require the refusing party or deponent to answer the que~tion or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees. If the application is granted, the court shall require the refusing party or deIJonent to answer the question or interrogatory and if it also finds that the refusal to _answer was without.substantial just#ication, it may require th~ refusing party or deponent or the coi.msef advising the refusal, or both of them, to pay the proponent the amount ofthe reasonable expenses incurred iri obtaining the order, including attorney's fees. If the application is denied and the court finds that it was filed without substantial justification, the If the application is denied and 'the court finds that it was filed without substantial justification, the COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. (la) court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney's fees. (1) Section 2. Contempt of court. - If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so . by the court of the place in which the deposition is being taken, the 'refusal may be considered a contempt of that court. (2a) Section 2. Contempt of court. - If a party or other. witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal : may be considered a contempt of that court (2). Section 3. Other Section 3. Other consequences. - consequences. If any party or an officer or managing agent ·of a party refuses to obey an order·made under Section 1 of this Rule requiring him or her to answer designated questions, or an If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an 369 Same principles as those under the 1997 Rules. 1. Same principles as those under the 1997 Rules. 2. Amendments refer to gender inclusiveness. 370 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the. following: order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made. under Rul.e 28 requiring him or her to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in (a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of· the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in COMPARATIVEMATRIX OF THE 1997 RULESOF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE accordance with the claim of the party obtaining the order; accordance with the claim of the party obtaining the crder; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things items of testiµiony, or from introducing evidence ofphyska1· ormerital condition; (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him or h'etfrom introducing in evidence designated documents or things or items of testi~ony,. or from introducing evidence of physical or mental c,:ondition; or (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the. action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;and (c)· AI)l qrder, striking out _pleadings or parts .thereof, or stayi:ig further proceedings until ..the order is obeyed, or . dismissing the action or proceeding or any part thereof, or rendering a judgement by default against the diso.bedient party;and 371 372 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN (d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. (3a) (d) In lieu of any of the foregoing orders or in addition· thereto, an order directing the arrest of any party or agent of a. party for disobeying any of such orders except an orderto submit to a physical or mental examination: (3a) Section 4. Expenses on refusal to admit. - If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses Section 4. F,xpenses on refusal to admit. __;_ if a party after being served with a request' under Rule 26 to admit the genuineness of any doctiment or the truth of any matter· of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of such document or the truth of any such matter of fact, _he or she may apply to the court for an order requiring the other party to pay him .m: her the reasonable 1. Same principles as those under the 1997 Rules. 2. Amendments refer to gender inclusiveness. COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE incurred in making such proof, including attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. ( 4a) expenses incurred in making such proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought were of no substantial importance, such order shall be issued. ( 4a) Section 5. Failure of party to attend or seroe answers. - If a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with a proper n9tice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all 9r any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, and in Section 5. Failure of party to attend or seroe answers. - If a party or an officer or managing agent of a party willfully fails to appear before the.officer who is to take his or her deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, ot dismiss the action ot proceeding or any part thereof, or enter a judgment by default against 1. Same principles as those under the 1997 Rules. 2. Amendment tefers to gender inclusiveness. 373 374 TI-IE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV its discretion, order him to pay reasonable expenses incurred by the other, including anorney's fees. (5) that party, and in its discretion, order him or her to pay reasonable expenses · incurred by the other, including attorney's• fees. (Sa) Section 6. Expenses Section 6. Expenses against the Republic against the Republic of the Philippines. of the Philippines. - Expenses and ~Expens.es and anorney's fees are anomey'sfees are not to be imposed • not to bf imposed upon the Republic upon the Republic of the Philippines of thePhilippines under this R\.lle.(6) · under thisRule; (6) Same principles as those under the 1997 Rules. 1: Notice of Trial.Deleted] Section 1. Notice of Trial. - Upon entry of a case in · the trial calendar; the clerk shall notify the parties ofthe date of its trial in such tnanner as shall ensure his receipt of that notice at least five (5) days before such date. (2a, R22) Section i. Schedule of trial: ..::c...The parties shall strictly . observe the ·. . . scheduled hearings as agreed Upon and set forth in the pre~ trial ..order.· · . (a) the schedule . ofthetrial dates for btith . . . plaintiff artd defendant shall be Continuous · a:ricl Within the fol.lowing periods: L The initial· presentation .··.of.plaintiffs evidence shall be..:.s~.t not later than thiny C~02 calendar days after the termination of the pre-trial conference. Plaintiff shall be allowed to present its evidence within a period of three months or ninety {202 calendar days which • shall include the date of the judicial dispute resolution if necessary; en · RULE 30 TRIAL [NOTE: Section COMPARATIVE MATRIX OF THE 1997 RULESOF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 1. ·.Consistent.with the u11derlying premises of the amendments, the • schedule of trial is required to be continuously conducted ·and the periods strictly i:o be observed. Thus, under Rule 30, .Section 2 of theAmended ·Rult!$,·the· party who caused the . . postporiement is warned that .the pre.seritatiori of its. evidence mustst:ill be terminated on ii. .The initial presentation of defendant's evidence shall be set not later than thiny {302 calendar days after the court's ruling on plaintiffs 375 the. remaining dates previously agreed upon. 376 THE PRE-WEEK REVIEWER FO&JITI'ERY BAR TAKERS Volume IV formal offer of evidence. The defendant shall be allowed to present its evidence within a period of three (32 months or nine~ (202 calendar days· iii. ~The period for the presentation t>fevidence onthe third (fourth etc.2 :-'r2a.riy claim counterclaim or crossclaim shall be determined __ by the court the total of which shall in no case exceed nine~ (202 calendar days· and iv. If deemed necessa~ the court shall set the presentation of the COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENI'S TO THE 1997 RULES OF CML PROCEDURE parties' respective rebuttal evidence which shall be completed within.a period of thirty (302 calendar days. (b} The trial dates may be shortened depending on the· number of witnesses to be presented provided tha:t the presentation of evidence of all parti~s shall be terminated ' within a period of ten: (102 months or three hundred (3002 calendar days. If there are no third ffrnirth etc.2:-J;>~rty claim counterclaim or .cross"-'cl1imthe pre~entation of evidence shall be terminated within a period of six (6) months or one hundred 377 378 THE-PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV the gresentation of its evidence must still be terminated on the remaining dates greviously: agreed ugon. (2a) eighty (1802 calendar day:s. The court shall decid'Ei~a.iidserve coi:;1iesbf its decision to the garties with1n a geriod not exceeding ninen: (202-calendar day:s from !'he-submission of the case for resolution with or without memoranda. (n) .1 ','•, Section 2. Segio,n2. Adjournments and postponements. -A court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require, but shall have no power to adjourn a trial for a longer period than one month for each adjournment nor more than three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (3a, R22) Adjournments and postponernfnts. -A court may adjourn, a-,pi~l from cl;iy.to day,and to statec;ltime, as th<'! exjiedttious and conveni~nt tra,nsaction of business may req!fire, but shall have no, power to adjourn a·trial for a longer period than one month for each adjournm~nt,. nor more _thari ·three mo,nths· in. all, except when a\Jthorized in writing by the Court Adi:ninistrator, Suprertie Court. a:~y . The garcy:who caused the i:;1ostgonementis warned that COMPARATIVEMATRIX OF THE 1997 RULESOF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 1. Granting continuance belongs to the sole discretion of the court. Lawyers must not assume that any motion for postponement will be granted. (Dy Tehan Trading, Inc. v. Dy, G.R. No. 185647, 26July 2017) 2. The grant of a motion for continuance or postponement is not a matter of right. It is addressed to the sound discretion of the court. Action thereon will not be disturbed by appellate courts, in the absence of clear and manifest abuse of discretion resulting in a denial of substantial justice. In other words, the Supreme Court cannot make a finding of grave abuse of discretion simply because a co.urt decides to proceed. with the trial of a case rather than postpone the hearing to another day, because of the absence of a party. That the absence of a party during trial constitutes a waiver of his right to present evidence ·arid cross-examine the opponent's witnesses is firmly supported by jurisprudence. To constitute grave abuse of · discretion 379 380 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV amounting to lack or excess of jurisdiction, the refusal of the court to postpone the hearing must be characterized by arbitrariness or capriciousness. (Bautista v. CA, G.R. No. 157219, 28May2004) [NOlE: Section 3. Requisites of motion to postpone trial for absence of evidence. Deleted] Section 3. Requisites of motion to postpone trial for absence of evidence. - A motion to postpone a trialon the ground of absence of evidence can be granted only upon affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves the right COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENfS TO THE 1997 RULES OF CIVIL PROCEDURE 381 to object to their admissibility, the trial shall not be postponed. {4a, R22; Bar Matter No. 803, 21 July 1998) Section 4. Requisites of motion to postpone trial for illness.of party or counsel. -A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presen~e of such party or counsel at the trial is indispensable and that the character of his illness is such as to render his non-attendance excusable. (5a, R22) Section 3. Requisites of motion to postpone trial for illness of party or counsel. -A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn certification that the presence of such party or counselat.the trial is indispensable and that the character of his or her illness is such as to rend~r his or her non-attendance excusable. ( 4a) Section 4. Hearing dars and calendar (;.all.- Trial shall be held from Monda~ to Thursda~ and courts shall call the cases at exact!~ 8:30 a.m. and 2:00 p.m. pursuant to Administrative Circular No. 3-99. Hearing on motions shall be held on 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. Same principles as those under the 1997 Rules. 382 THE PRE-WEEK REVIEWER FORJITIBRY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Volume IV Fridays pursuant to Section 8 Rule 15All courts shall ensure, the posting of their court calendars outside . their courtrooms at least one (1) day · before the scheduled hearings · pursuant to OCA Circular No. 250-2015. (n) Section 5. Order · of trial, - Subject to the provisions of section 2 of Rule 31; and unless the court for special reasons otherwise directs, the trial shall be limited to the issues . stated in the pretrial order and shall proceed as follows: (a) The plairltiff shall adduce evidence in support of his complairlt; (b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaints; (c) The third-party defendant if any, shall· adduce Section 5. Order of trial. ~ Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons 'otherwise directs, the. trial shall be · limited to the issues stated irf"the pretrial.ordef and shall proceed as follows: (a) The_plaintiff shall adduce evidence in . support of his or her complaint; Cb)·.The defendant shall then addtice evidence .in support of-his or her defense, cotinterclaiin,' cross4:la:im and third-party coniplaint; Cc) The third~party defendant, evidence of his defense, counterclaim, cross-claim and fourth-party complaint; 1. Same principles as those under the 1997 Rules. 2. Amendments refer to gerder in~lusiveness. (d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the cburt, for good reasons and in the furtherance of justice, permits _them to adduce evidence upon their original case; and (g) Upon admission of the evidence, the case shall if any, shall adduce evidence of his or her defense, counterclaim, cross~claim and fourth-party complaint; (d) Thefourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; (e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; (f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and 383 384 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. If several defendants or third-party defendants, and so forth, having separate defenses appear by different counsel, the court shall determine ~e relative order of presentation of their evidence. (la, R30) 385 immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. (g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleacµngs. If several defendants or third-party defendants, and so fortl)., having separate defenses appear by different counsel, the court shatl dete1;mine the relative order of presentation of their evidence. (Sa) Section 6; Oral o(ffer 1. This section is o(_exhibits. _.: The offer of evidence the comment or objection thereto and the court ruling shall be made oralli in accordance with Sections 34 to 40 of Rule 132. (n) COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMEJ\1DMENTSTO THE 1997 RULES OF CML PROCEDURE consistent with Section 8 of the Judicial Affidavit Rule, which states: Section 8. Oral offer of and objections to exhibits. (a) Upon the termination of the testimony of his last witness, a party shall (b) After each piece of exhibit is offered, the adverse party shall state tlie legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling · respecting that exhibit. (c) Since the documentary or object exhibits form part of the judicial affidavits that describe and authenticate them, it is sufficient that such exhibits are simply cited 386 TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN by their markings during the offers, the objections, and the rulings, dispensing with the description of each exhibit. Section 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. Section 7. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of evidence. If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. (2a, R30) If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe. [Section 7. Statement of judge. - Deleted] Section 7. Statement of judge. - During the hearing or trial of a case any statement made by the judge with (6) Same principles as those under the 1997 Rules. COMPARATNE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND TIIE 20l9 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 387 reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes. (3a, R30) Sections. Suspension of actions. - The suspension of actions shall be governed by the provisions of the Civil Code. (n) Section 8. Suspension of . actions. - The suspension of actions shall be governed by the provisions of the Civil Code and other laws. (8a) Section 9. Judge Section 9. Judge to receive evidence; to receive evidence, delegation to clerk of delegation to clerk of court. ~ The judge · court . ..c._ The judge of the court where of the court where the case Js pending the case is pending shall personally shall personally receive the evidence receive the evidence to be adduced to be adduced by the parties, by the parties. However, in default However, in default or exparte hearings, or exparte hearings, and in any case and in any case where ·the .parties where the parties agree in writing, the agree in writing, the court may delegate court. may· delegate the reception of the reception of evidence to its clerk evidence to. its clerk ofcourt who is a of court who is a member of the bar. member of the bar. The clerkof.court The clerk of court shall have rto power shall have no power Same principles as those under the 1997 Rules . Same principles as those under the 1997 Rules. 388 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of the hearing. (n) 2. to rule on objections to any question or to the admission of exhibits, which objections shall be resolved by the court upon submission of his or her report and the transcripts within ten (10) calendar days from termination of the hearing. (9a) Section 1. Consolidation. - When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated, and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1) - When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (1) 1. Consolidation is a procedural device granted to the court as an aid in deciding how cases in its docket are to be tried so that the business of the court may be dispatched expeditiously and with economy while providing justice to the parties. (Producers Bank of the Phils. v. Excelsa Industries, Inc., G.R, No. 173820, 16 April 2012) 389 Consolidation of cases may take place in any of the following ways: a. RULE 31 CONSOLIDATION OR SEVERANCE Section 1. Consolidation. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation) b. Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by 390 IBE PRE-WEEK REVIEWER FORJI1TERY BAR TAKERS Volume IV a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation) C. Where severa! actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. Thjs type of consolidation does not merge the·suits into a single ·. action, or cause the parties to one·action tobe parties · to the other. (consolidatiorifor trial) COMPARATIVE MATRIX OF IBE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO IBE 1997 RULES OF CIVIL PRCCEDURE 391 (Producers Bank of the Phils. v. Excelsa, G.R. No. 173820) 3. Joint trial is permissible where the actions arise from the same act, event or trans::cction, involve the same or like issues, and depend largely or su':Jstantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the subs:antial rights of any of the parties. More elaborately, joint trial is proper where the offenses charged are simEar, relate<l, or connected, or a:-e of the same or similar character or 392 THE PRE-WEEK REVIEWER FOR ]ITI'ERY BAR TAKERS Volume IV class, or involve or arose out of the same or related or connected acts, occurrences, transactions, series of events, or chain of circumstances, or are based on acts or transactions constituting parts ofa common scheme or plan, or are of the same pattern and committed in the same manner, or where there is a common element of substantial importance in their commission, or where the same, or much the same, evidence will be competent and admissible or required in their prosecution, and if not joined for trial the repetition or reproduction of substantially the same testimony COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO TI-IE 1997 RULES OF CML PROCEDURE 393 will be required on each trial. (Neri v. Sandiganbayan, G.R. No. 202243, 7 August 2013) 4. Cases were consolidated because: (a) they involve a common question of law; (b) to minimize therein appellant's expenses in pursuing his ~ppeal; (c) they sought the same reliefs ; (d) or involved the same parties and basically the same issues; (e) to avoid the possibility of conflicting decisions; and (f) to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court and save unnecessary costs and 394 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV COMPARATIVEMATRIX OF THE 1997 RULES OF OVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE expense. (People of the Philippines v. Sandiganbayan, C.R. No. 149495, 21 August 2003) Section 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, crossclaim, counterclaim, or third-party complaint, or of any separate is:;ue or of any nun:iber of claims, cross-claims, counterclaims, thirdparty complaints or issues. (2a) Section 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, crossclaim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, crossclaims, counterclaims, thirdparty complaints or issues. (2) 1. Generally speaking, a lawsuit should not be tried piecemeal, or at least such a trial should be undertaken only with great caution and sparingly. There should be one full and comprehensive trial covering all disputed matters, and parties cannot, as of right, have a trial diVided. It is the policy of the law to limit the number of trials as far as possible, and separate trials are granted only in exceptional cases. (Metropolitan Bank and Trust Companyv. Sandoval, C.R. No. 169677, 18 Febrnary 2013) TRI.AL BYco~~I<>NER 1. Reference ··.·Secti.0111. Re[f!!°eni;e 395 2. Exceptions to the general rule are permitted only when there are extraordinary grounds for conducting separate trials on different issues raised in the same case, or when separate trials of the issues will avoid prejudice, or when separate trials of the issues will farther convenience, orwhen separate trials of the issues will promote justice; or when separate trials of the issues will give a fair trial to all parties; Otherwise, the general rule mi.Istapply. (Metropolitan Bank and Trust Company, C.R. No. 169677) 1. Trial by commissioners is permissive. RULE 32 Section by consent.- By written conseµt of both parties, the by co~er,L -- :ey written consent of • both_p~~-ti~s,the 396 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (la, R33) court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (1) Section 2. Reference ordered on motion. - When the parties do not consent, the court may, upon the application of either or of its own motion, direct a reference to a commissioner in the following cases: Section 2. Reference ordered on motion. - When the parties do not consent, the court may, upon the application of either or of its own motion, direct a:reference to a commissioner in the following cases: (a) When the trial of an issue of fact requires the (a) When the trial of an issue of fact requires the 2. Trial by commissioners may be ordered written consent of the both parties or upon motion by a party. 3. The practice of designating the clerk of court as a commissioner to receive evidence in the event of the non-appearance of the defendant and its counsel, is not irregular and is sanctioned by Rule 33 of the Rules of Court on trial by commissioner. (Dy v. CA, C.R. No. 97130, 19 June 1991) Same principles as those under the 1997 Rules. COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein; (b) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. (b) When the taking (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2a, R33) (c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect. (2) Section 3. Order of reference, powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the commissioner with Section 3. Order of reference; powers of the commissioner. When a reference is made, the clerk shall forthwith furnish the commissioner with 397 of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. 398 IBE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume N a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may fix the date for beginning and closing the hearings and for the filing of his report .. Subject to other specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the · efficient performance of his duties under the order. He may issue subpoenas and subpoenas duces tecutn, swear witnesses, and unless otherwise provided in the order of reference, he may rule upon the admissibility of I a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him or her to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginning and dosing the hearings and for the filing of his or her report.· Subject to the specifications and limitations stated in the order, the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him or her and to do all acts and take all measures necessary or proper for the efficient performance of his or her duties under the order. He or she mayissue subpoenas and subpoenas · duces tecurri, swear witnesses, and unless otherwise provided in the COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE evidence. The trial or hearing before him shall proceed in all respects as it would if held before the court. (3a, R33) order of reference, he or she may rule upon the admissibility of evidence. The trial or hearing before him or her shall proceed in an· respects as it would if held before the court. (3a) Section 4. Oath of commissioner. - Before entering upon his duties the commissioner shall be sworn to a faithful and honest performance thereof. Section 4. Oath of commissioner. .- Before entering upon his or her duties the commissioner shall be sworn toa faithful and honest performance thereof. (4a) (14, R33) · I. Section 5. Proceedings before commissioner. Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33) Section 5. Proceedings before commissioner. Upon receipt of the order of reference unless otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) calendar days after the date of the order of reference and shall notify the parties or their counsel. (Sa) 399 I. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. Same principles as those under the 1997 Rules. 400 THE PRE-WEEK REVIEWER FORJITTERY BAR TAKERS COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Volume IV Section 6. Failure of parties to appear before commissioner. - If a party fails to appear at the time and place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice i~ the absent party or his counsel of the adjournment. (6a, R33) Section 7. Refusal of witness. - The refusal of a witness to obey a subpoena issued by the commissioner or to gi~e 'ividence before him, shall be deemed a contempt of the court whic;h appointed commissioner. (7a 'R33) the Section 8. Commissioner shall avoid delays. - It is the duty of the commissioner to . proceed with all reasonable diligence. Either party, on notice to the parties and commissioner, Section 6. Failure of parties to appear before commissioner. - If a party fails to appear at the time and ·place appointed, the commissioner may proceed ex parte or, in his -or her discretion, adjourn the proceedings to · a future day, giving notice to i:he absent party or his or her counsel of the adjournment. (6a) 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. Section 7. Refusal 1. of witness. _;_:_ The refusal of a Witness to obey a·subpoena ._ 2. · issued by the , . commissioner or to give·evicie~ce before him or her, shall be deemed _acontempt of the court which . appointed the cornrcissipner,. (7a) Section 8. Commissioner shall avoid delays. - It is the duty of the commissioner to proceed with all reasonable• diligence. Eithef party, on notice 'to the parties and commissioner, Same principles as those under the 1997 Rules. Amendment refers to gender inclusiveness. Same principles as those under the 1997 Rules. may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33) may apply to the court for an order requiring the commissioner to expedite the proceedings and to make his or her report. (8a) Section 9. Report of commissioner. -Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him. (9a, R33) Section 9. Report of commissioner. -Upon the completion of the trial or hearing or proceeding before the commissioner, he or she shall file with the court his ot her repoi:t in writ{t;i-& upon the matters submitted t9 hjm or her by the order cl reference. When his or her powers are not specified or limited, he or she s~all set forth his or her findings of fact and conclusions of law in his or her report. He or. she shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the testimonial evidence presented before him or her. (9a) 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. 401 402 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N Section 10. Notice to parties of the filing of report. - Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report, if they so . desire. Objections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein, set forth, shall not be considered by the court unless they were made before the commissioner. (10, R33) Same principles as to parties of the filing those under the 1997 of report. - Upon Rules. the filing of the report, the parties shall be notified by the clerk, and they shall be allowed ten (10) calendar days within which to signify grounds of objections to the findings of the report, if they so desire. Objections to the report based upon grounds which were available to the parties during the proceedings ·before the commissioner, other than 61:;>jectioris to the findings and conclusions therein set forth, shall not be considered by the court unless they were made before the commissioner. (l0a) Section 11. Hearing Section 11. Hearing upon report. Upon the expiration of the period of ten (10) days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order adopting, upon report. Upon the expiration of the period of ten (10) calendar days referred to in the preceding section, the report shall be set for hearing, after which the court shall issue an order Section 10. Notice 1. The court will conduct a hearing on the commissioner's report. The Court may: (a) adopt; (b) modify; (c) reject in whole or in part; (d) recommit it with COMPARATIVE MATRIX OF 1HE 1997RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to present further evidence before the commissioner or the court. (1 la, R33) adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or requiring the. parties to present further evidence before the commissioner or the court. (lla) Section 12. Section 12. . Stipulations as to .findings. When the parties stipulate that a commissioner's findings of fact ·.shall. be final, only . questions of law shall thereafter be considered. (12a, R33) Section 13. Compensation of commissioner. - · The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. (13, 'R33) Stipulations as to .findings. -'When the parties stipulate that a · commissioner 1s findings of fact shall be final;. only questions of law shall• thereafter be ··considered. (12) 403 instructions; or (e) require the parties t9 present further evidence before the commissioner or the court. Same principles as those under the 1997 Rules. .•Saine principles as those under the 1997 Compensation of · Rules. commissioner. __:_ The court shall allow the commissioner such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned;·• as justice requires ..(13) ' Section 13. 404 THE PRE-WEEK REVIEWER FORJilTERY BAR TAKERS 11 Volume IV I COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE i): RULE 33 DEMURRER TO EVIDENCE ·fj§; ·'§ .. Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied he shall have the right to present evidence. If the motion is granted but on · appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (la, R35) Section 1. Demurrer to evidence. After the plaintiff has completed the presentation of his or her evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his or her motion is denied, he or she shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed, he or she shall be deemed to have waived the right to present evidence. (la) 1. :lli Difference between: I Affirmative defense of failure of the complaint to state a cause of action Motion to dismiss based on lack of cause of action governed by Section 12, Rule 8, 2019 RoC governed by Rule 33 Demurrer to Evidence 1. can be 1. can be deter~ed after the plaintiff .has rested his case and can be resplved only on the basis of the evidence J:iehas presented determined only from the allegations in the initiatory pleading and not from evidentiary or other matters aliunde ·;~i in support of his claim. 2. is based on preliminary ~. 2. is. in the nature {\: i~l: 405 objec- of a tions de- which can be ventilated before the beginning of the trial murrer to evidence on the ground of insufficiency of evidence and is presented only after the plaintiff has rested his case (TbeManila Banking Corp. v. University of Baguio, Inc., G.R. No. 159189, 21 February 2007) 2. Demurrer to evidence authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part as he would ordinarily have to do, if plaintiffs evidence shows 406 COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE THE PRE WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 0 that he is not entitled to the relief sought. Demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss, which the court .or tribunal may either grant or deny. (Dandoy v. CA, G.K No. 150089,28 August20O7) 3. Where plaihtiffs . evidence together with such inferences and conclusions as may reasonably be drawnth~refrnm does notwariant recovery against the ·defendant, a demurrer io evidence should be sustained. A 'demurrer . to evidence · is likewise sustainable when, admitting every proven fact favorable to plaintiff and 1 ' 407 . indulging in his favor all conclusions fairly and reasonably inferable therefrom, plaintiff has failed to make out one or more of the material elements of his case, or when there is no evidence to su?port an allegation necessary to his claim. It should be sustained where the plaintiffs evidence is primafacie insufficient for a recovery. (Republic of the Philippines v. Gimenez, G.R. No. 174673, 11 January 2016) 4. When the Order granting the demurrer to evidence is reversed on appeal, the appellate court cannot remand the case to the court of origin 408 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV for further proceedings. The pertinent provision states that if the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. Explaining the consequence of a demurrer to evidence, the Supreme Court said: "The rationale behind the rule and doctrine is simple.and logical. The defendant is permitted, without waiving. his right to offer evidence in the event that his motion is not granted, to move for a dismissal (i.e., demur to the COMPARATIVEMATRIXOF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 409 plaintiffs evidence) on the ground that upon the facts as thus established and the applicable law, the plaintiff has shown no right to relief. If the trial court denies the dismissal motion, i.e., finds that plaintiffs evidence is sufficient for an award of judgment in the absence of contrary evidence, the case still remains before the trial court which should then proceed to hear and receive the defendant's evidence· so that all the facts and evidence of 410 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV the contending parties may be properly placed before it for adjudication as well as before the appellate courts, in case of appeal. Nothing is lost. The doctrine is but in line with the established procedural precepts in the conduct of trials that the trial court liberally receive all proffered evidence at the trial to enable it to render its decision with all possibly relevant proofs in the record, thus assuring that the appellate courts upon COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 411 appeal have all the material before them necessary to make a correct judgment, and avoiding the need of remanding the case for retrial or reception of improperly excluded evidence, with the possibility thereafter of still another appeal, with all the concomitant delays. The rule however, im12oses the 'Condition by the same token that if his· demurrer is granted by the trial court and the order of dismissal is reversed on appeal, the. movant losses his . right fo . 412 THE PRE-WEEK REVIEWER FORJITfERY Volume IV BAR TAKERS present ·evidence in his behalf and he shall have been deemed to have elected to stand on the insufficien~ of plaintiffs case and evidence In such event the appellate court which reverses the order of dismissal shall proceed to render judgment on the merits on the basis of plaintiffs evidence." (xxx) In other words, defendants who present a demurrer to the plaintiffs evidence retain the right to present their own evidence, if the trial COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND TI-IE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 413 court disagrees with them; if the trial court agrees with them, but on appeal, the appellate court disagrees with both of them and reverses the dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations. (Radiowealtb Finance Company v. Del Rosario, G.R. No. 138739, 6July 2000) 414 THE PRE-WEEK REVIEWER FORJl1TERY BAR TAKERS Volume IV Section 2. Action on demurrer to evidence. - A. demurrer to evidence shall be subject to the grovisions of Rule Q 1. The order denying the demurrer to evidence shall not be subject of an apgeal or petition for certiorari grohibition or mandamus before judgment. (n) COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND TI-IE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE A demurrer to evidence is a litigious motion. Thus, pursuant to Rule 15 of the Amended Rules: a. The movant need not set the case for hearing. b. It will be the since it is not a prohibited motion. Note, however, said order cannot be subject of a certiorari, prohibition or mandamus petition. court, in the exercise of its discretion ; and if deemed necessary for its resolution, call a hearing on the motion. The notice of hearing shall be addressed to all parties concerned, and shall specify the ' time and date of the hearing. 2. A .motion. for reconsideration may be filed against the order denying the demurer to evidence 415 ' 3. The order denying the demurrer to evidence shall not be subject of appeal because it is merely an interlocutory. The remedy is for the movant to proceed to trial. 4. The order granting a demurrer to evidence is a final order and therefore is appealable. 5. A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the 416 THE PRE-WEEK REVIEWER FORJ!TrERY BAR TAKERS Volume IV basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties' next move x x x and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE 417 established and more distinctive term, "final and executory." (Heirs of Dimaampao v. Alug, G.R. No. 198223, 18 February 2015) 6. An order that does not finally , . dispose of the case, and does not end the Court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is "interlocutory," e.g., an order denying a motion to dismiss under Rule 16 of the Rules x xx Unlike a "final" judgment or order, which is appealable, as 418 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case. (Heirs of Dimaampao v. Alug, G.R. No. 198223) RULE 34JUDGMENf ON TIIE PLEADINGS Section 1. Judgment Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (la, R19) on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (1) L Same principles as those under the 1997 Rules. 2. An answer would "fail to tender an issue" if it "does not deny the material allegations in the complaint or admits said material allegations of the adverse party's pleadings by confessing the truthfulness thereof and/or omitting to deal with them at all. Now, ifan COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES Of CML PROCEDURE 419 answer does in fact specifically deny the material averments of the corn.plaint and/or asserts aJfirmative defenses (allegations of new matter. which, while . admitting the material . allegatioos of the corn.plaint expressly gr iillpliedly, would nevertheless. prevent or bat re~overyby th,eplaintiff), aju1gment on the pleadings would naturally be improper. · (Adolfo. v. ..Adol/0,G.R.. No.201427, 18 March2015) Section 2 . .Action on l. motion· for iudg'lilerit on the pkadirigs: ':-" The court may motu proprloor on motion render judgment on.the pleadings if it is apparent that 2. the answer faHs,t<>. tender an issue· or Qtherwise admits th_e A motidrifoi judgment onthe .pleildings ma.y b~ fait:iatt!dby a party or by the court motu ·pr.opno. The court may ..rnQtupropriq. ·•·.. :?rdet the case submitted:for 420 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VolumeN COMPARATNE MATRIX OF TIIE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE ; 1 material allegations of the adverse parcy's pleadings. Otherwise the motion shall be subject to the provisions of Rule l;i of these Rules. Any action of the court on a motion for judgment on the pleadings shall not be subject of an am;;1ealor petition for certiorari prohibition or mandamus. (n) judgment on the pleadings even before the pretrial conference. 3. The grant or denial of a judgment on the pleadings may be subject to a motion for reconsideration since the said motion is not a prohibited pleading. 4. Note, however, that the grant or denial of a juqgment on the pleadings cannot be subject of an appeal, or petition for certiorari, prohibition or mandamus. RULE 35 SUMMARYJUDGMENTS Section 1. Summary judgment for claimant. - A party seeking to recover upon a clain;t, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been Section 1. Summary judgment for claimant. - A party seeking to r<;!coverupon a claim, counterclaim, or cross-claim or to obtain a·dedaratory relief may, at any time after the pleading in answer thereto has been· . 1. Same principles as those under the 1997 rules. 2. Amendment refers to gender inclusiveness. j_ ll ~; served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. (la, R34) served, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor upon all or any part thereof. (la) Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (2a; R34) Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought.may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his or her favor as to all or any part thereof. (2a) Section 3. Motion and proceedings thereon. - The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or admissions at least three (3) days before the hearing. After Section 3. Motion and proceedings thereon. - The motion shall cite the supporting affidavits depositions or admissions and the specific law relied uwn. The adverse party may file a comment and serve opposing affidavits depositions or admissions within a 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. 1. The period to file an opposition to the Motion for Summary Judgment has been shortened, i.e., nonextendible period of five calendar days from receipt of the motion. 421 422 THE PRE~WEEK REVIEWER FOR JITfERY BAR TAKERS COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO nrn 1997 RULES OF CML PROCEDURE Volume IV the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a. judgment as a matter of law. (3a, R34) non-extendible period of five (5) calendar days from receipt of the motion. Unless the court orders the conduct of a hearing judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depbsitions·and admissions on file, show that, except as to the amount bf damages, there is no· genuine .issue as to any material fact and that the moving party is. entitled to · judgment as a· matter of law. Any action of the court on a motion for summary judgment shall not be subject of art appeal or petition for certiorari. prohibition or mandamus. (3a) 2. It will be the court, in the exercise of its discretion, and if deemed necessary for its resolutiont call a hearing on the mdtiort. The notice of headng shall be addressed to all parties;lnd shall specify the time and da~e of the heaiin1f 3. Rule 18, -~G.ction 10 ofthJ '· . Aniep.<ied··~tiles states: Section 10:Judg~ rfJ.entafter pre~trial .-Should •. there be.no more controverted facts, or ri.o more geriuineissueas to any material fact, ·or. ari absence ofany issue,_or should the answer fail toteilder air issu·e,.the court s,hall, 423 without prejudice to a party moving for judgment on the pleadings under Rule 34 or summary judgment under Rule 35, motu proprio include in the pre-trial order that the case be submitted for summary judgment or judgment on the pleadings, without need of position papers or memoranda. In such cases, judgment shall be rendered within ninety (90) calendar days from termination of the pretrial. The order of the court to 424 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE submit the case for judgment pursuant to this Rule shall not be the subject to appeal or certiorari. (n) judgment on the pleadings if it is apparent that the answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleadings. From the foregoing it is clear that during pre-trial proceedings that the court may, motu proprio, include in the pre-trial order that the case be submitted to summary judgment or judgment on the pleadings. 4. While the court during pre-trial proceedings may motu proprio order the case be submitted for summary judgment or judgment on the pleadings, it is only in Rule 34 where the court may motu proprio render 425 5. It is noticeable that the court can no longer motu proprio order that the case be submitted to summary judgment after pre-trial, as there is nothing in Rule 35 that would show that the court has such discretion. ln fact, Rule 35, Section 3 provides that a party needs to file a motion for summary judgment. Section 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs Section 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs 1. A careful reading of this section reveals that a partial summary judgment was never intended to be considered a "final 426 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a, R34) sought and a trial is necessary, the court may. by examining the pleadings and the evidence before it and by interrogating counsel, ascertain what material facts exist without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy and direct such further groceedings in the action as are just. The facts so ascertained shall be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a) judgment," as it does not "{put] an end to an action at law by declaring that plaintiff either has or has not entitled himself to recover the remedy he sues for." The Rules provide for a partial summary judgment as a means to simplify the trial process by allowing the court to focus the trial only on the assailed facts, considering as established those facts which are not in dispute. After this sifting process, the court is instructed to issue an order, the partial summary judgment, which specifies the disputed facts that have to be settled in the course of trial. In this way, the partial summary COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE 427 judgment is inore akin to a record·of pre-trial, an ·interlocutory order, rather than final judgment. (Philippine BusinessBank a v. Chua, G.R. No. 178899, 15 November 2010) 2. Bearing in mind these differences, there can be no doubt that the partialsuinrruuy judgffi:~nt · envisi~nedb. y ·.·theRriJe~ is an • futer16cut6ry <:>rderthat was never .meant tb be treated Jeparately •fr9rri the maincase .. {Philippine . ·• j3usirzess' Barz!?,V • . Chua,(J:"Q..No. 1]8899) . . '-···· ' 3. ·.·\Vhatthe rules contemplateis that tll.e•appeal 'fromthe ·partial .·summary judgment shall be takefl_ together with the jµdgment .tllat 428 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS VolumeN may be rendered in the entire case after a trial is conducted on the material facts on which a substantial controversy exists. This is on the assumption that the partial summary judgment was validly rendered. (Philippine Business Bank v. Chua, G.R. No. 178899) Section 5- Form of affidavits and supporting papers. - Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5a, R34) Section 5. Form of affidavits and supporting papers. - Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. (5) Same principles as those under the 1997 Rules. COMPARATIVEMATRIX OF THE 1997 RULES OF CML PROCEDURE AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CML PROCEDURE Section 6. Affidavits in bad faith. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt. (6a, R34) Section 6. Affidavits in bad faith. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him or her to incur, including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt. (6a) 1. Same principles as those under the 1997 Rules. 2. Amendment refers to gender inclusiveness. 429 LEGAL AND JUDICIAL .. ETHICS PRIMER IN LEGAL AND JUDICIAL ETHICS Definition Legal Ethics is the embodiment of all principles of morality and refinement that should govern the conduct of every member of the bar. 1 It is a privilege and not a right. The Supreme Court may discipline lawyers and even strip them of their license. 2 It covers any activity, in or out of court, which requires the application of law, legal principles, practice or procedures and calls for legal knowledge, training and experience. 3 Not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and -::~: .¢' I In general, all advice to clients, and all action taken for them in matters connected with the law is included in the practice of law. 4 ·!',_ \ .. 'Justice Moran's Foreword to Malcolm's Legal and J4~icial Ethics" -,,:, ' Sec. 5(5), Art. VIII, 1987 Constitution. · 3Ruthie Lim-Santiago v. Atty. Carlos Sagucio, A.C. N~'.~6-705, 31 r.'iarch 2006 4 5 American Jurisprudence (Am. Jur.) p. 262, 263 as cited in Renato Cayetano v. Christian Monsod, G.R. No. 100113, 3 September 1991 2 433 THE PRE-WEEKREVIEWERFOR JITTERY BAR TAKERS Volume IV 434 special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. PRIMERIN LEGALAND JUDICIAL ETHICS Completion of a law degree in a duly recognized school in the Philippines (b) recognition or accreditation of the law school by the proper authority; and 2. A relation as an "officer of court" to the administration of justice involving ~horough sincerity, integrity, and reliability. (c) completion of all fourth-year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government. 9 A relation to clients in the highest degree fiduciary. 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients. 5 Filipino citizen Apply provisions of Republic Act No. 922S7 if one has become a naturalized citizen of another country Apply Bar Matter (B.M.) No. 1153 [Re: Letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations Through Amendments to Rule 138 of the Rules of Court] if the Filipino applicant completed his law degree abroad. Submission to the Supreme Court of certifications showing: (a) completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; 1. A duty of public service, of which the emolument is a byproduct, and in which one may attain the highest eminence without making much money. 3. 435 Passing the bar examinations with an average of 75% 10 Taking the Lawyer's Oath 11 Signing the Roll of Attorneys 12 At least 21 years old Resident of the Philippines Evidence of Good Moral Character 5Petition 1. Possession of Good Moral Character INo. charges against him, involving moral 2. Continued Membership in IBP turpitude, have been filed or are pending in any court. 8 · 3. for Authority to Continue use of the Firm Name Sycip, Salazar, Feliciano, Hernandez & Castillo, En Banc Resolution dated July 30, 1979, No case number, 92 SCRA l. 6sec. 2, Rule 138, Rules of Court (ROC). 7 R.A. No. 9225, titled Philippine Citizenship Retention and Re-acquisition Law of 2003. 8 In Re: Argosino, B.M. No. 712, 13 July 1995. 4. Payment of all IBP Dues Compliance with MCLE Requirements 13 9In the Matter of the Petition for Disbarment of Telesforo A. Diao, A.C. No. 244, 29 March 1963; Patrick A. Caronan v. Richard A. Caronan, A.C. No. 11316, 12 July 2016. 10 Sec. 14, Rule 138, ROC. 11 In Re: Michael Medado, B.M. No. 2540, 24 September 2013. 12 Id. 13Santos, Jr. v. Llamas, A.C. No. 4749, 20 January 2000. 436 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS Volume IV Attorneys-at Law/ Lawyers Attorney-in-Fact Licensed officers of the courts who are empowered to appear, prosecute and defend; and upon whom peculiar duties, responsibilities and liabilities are devolved by law as a consequence. 14 Counsel de officio Attorney Ad Hoc A person named and appointed by the court to defend an absentee defendant in a suit in which the appointment is made. Attorney of Record A member of the bar appointed by a client to represent in cause of a court and upon whom service of papers may be made. Of Counsel A member of the bar who is associated with a law office but does not normally appear as counsel of record of cases handled by the law office. Lead Counsel A member of the bar who charged with the principal rnariagemerii and direction of a party-litigant. In-House Counsel A member of the_bar who acts as attorney for a business company as an employee of such company and renders legal advice on matters necessary in the ordinary course of its business; Amicus Curiae A friend of the court. A person with strong interest in or views on the subject matter of the action. One who is considered as an experience and impartial attorney to help in the disposition of issues submitted to the Court. 18 Amicus Curiae par Excellence Bar associations who appear in court as amici curiae or friends of the court. Like an individual amicus curia,·.amicus curiae par excellence qoes not represent any party to the cas<:tl:fotact as consultant in a doubtful issue for resolution of the court. An agent whose authority is strictly limited by the instrument appointing him. His authority is provided in a special power of attorney or a general power of attorney or letter of authority. An attorney-in-fact is not necessarily a lawyer. A counsel, appointed or assigned by the court, from among such members of the bar in good standing who, by reason of their experience and ability may adequately defend the accused. The person need not be a member of the bar ,if no lawyer is available in a given lOG;lity.15 A counsel de officio is appointed to defend an indigent in a criminal action; or to represent a destitute party in a case. 16 A lawyer may validly refuse to accept representation of an indigent client when: (a) he is not in a pos1tion to carry out the work effectively or competently; (b) he labors under a conflict of interest between him and the prospective client or between a present client and the prospective client. 17 14 Jn Re: Suspension of Atty. Rogelio z. Bagabuyo, A.C. No. 7006, 9 October 2007. 15 sec. 7, Rule 116, ROC. 16/d. 17 Rule 14, Code of Professional Responsibility (CPR). 437 8sec. 36, Rule 138, ROC. 1 PRIMER IN LEGAL AND JUDICIAL ETHICS TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 438 They do not receive any compensation for their legal services to the court. Counsel de parte Pro bona Counsel Advocate A lawyer retained by a party litigant, usually, for a fee, to prosecute or defend his cause in court. The term implies freedom of choice either on the part of the lawyer to accept the employment or on the part of the litigant to continue or terminate the retainer at any time. A lawyer who renders legal services without charging any professional fees but does not shoulder the costs of litigation on behalf of his client. 439 In a criminal case before the MTC - In a locality where a duly licensed member of the bar is not available, the Judge may appoint a lawyer who is: a) A resident of that province; and b) Of good repute and probity and ability to defend the accused. Shari'a Bar passers are not full-:'ledged Philippine Bar members so they may only practice before Shari'a courts. Both are counselors, but only the latter is an "attorney." 20 Both are counselors, but only the latter is an "attorfley." 21 A lawyer who pleads on behalf of a third party. Barrister In England, a person entitled to practice law as an advocate or counsel in superior courts. Solicitor In England, a person prosecuting or defending suits in a Court of Chancery. A Court of Chancery is a court which administers equity and proceeding according the forms and principles of equity. to Proctor In England; an attorney in the admiralty and ecclesiastical courts whose duties and business correspond exactly to those of an attorney-at-law or solicitor in a Chancery. Unless the lawyer is the complainant or respondent, a lawyer is not allowed to appear in barangay proceedings. A lawyer who is also a member of the Lupong Tagapamaya may likewise participate in barangay proceedings. 1. NLRC 2. Cadastral Courts 4. intellectual Property Office 5. Any official or other person _appointed or Exceptions before first level courts: A party may conduct his litigation or case in person with the aid of an agent or a friend appointed by him. 19 20 Alawi Sec. 34, Rule 138, ROC. Examples: 3. Bureau of Immigration General Rule: Only those who are licensed to practice law can appear and handle cases in court. 19 Non-lawyers may represent parties where the rules of procedure allow nonlawyers to participate in the conduct of proceedings. 21 Id. v. Alauya, A.M. SDC-97-2-P, 24 February 1997: The trial court may order mediation in pending· cases and lawyers may not participate in the mediation proceedings. 440 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS 441 Volume IV Exception: must seek permission from DILG Secretary_22 Punong Barangay designated in accordance with the law to appear for the government of the Philippines or any of its officials Level 2 Certification completed third year law courses. Level 2 can perform all activities under Level 1, assist in the taking of sworn evidence and prepare judicial affidavits of witnesses, appear on behalf of the client at any stage of trial, among other tasks .. Lawyers without Authority Contempt of Court. Any person who practices law or who assumes to be an attorney is liable for contempt of court, punishable by fine or imprisonment or both in the discretion of the court. 23 Non-lawyers Indirect Contempt. The fact that Karaan did not indicate in the pleadings that he was a member of the Bar, or any PTR, Attorney's Roll; or MCLE Compliance Number does not detract from the fact that, by his actions, he was actually engaged in the practice of law. 24 Other tribunals and administrative agencies Level 2 is valid before all courts, quasi-judicial and administrative bodies. Student Practice Rule (Rule 138-A, Rules of Court, Bar Matter No. 730 dated June 10, 1998, Law Student Practice Rule, A.M. No. 19-03-24-SC) The Rule covers the limited practic,e of law by,stuqents certified under the Cljnical Legal Education Program (CLEP) of the law school, to include among others, the following: [a] Appearances; [bl Drafting·and submission of pleadings and documents before trial and appellate courts and quasi-judicial and administrative bodies; [c] Assistance in mediation, legal counseling and advice; and [d] Others mentioned under Section 1. Amended Student Practice Rule: All acts are subject to approval of the supervising lawyer in good standing. Canon 6: These canons shall apply to lawyers in government service in the discharge of their official tasks. Doctrinal Rulings: Level 1 Certification for those who have completed the 1st year 2 Level 1·may give legal advice to clients, draft legal documents, and provide legal public orientations, among others. 2catu v. Rellosa, A.C. No. 5738, 19 February 2008. Level 1 is valid before all courts, · quasi-judicial and administrative bodies within the judicial region where the law . school is located. 1. The Office of the Ombudsman suspended Ceniza for six months for disgraceful and immoral conduct for· cohabiting with a woman other than his wife while serving legal officer of Mandaue City. The Court called out the attention of the IBP for the nonchalant discharge of the responsibility of fact-finding as it was almost perfunctory, certainly lackluster, and bereft of the requisite enthusiasm. What makes it worse for the timid, if not lethargic, recommendation 23Ruie 71, ROC; Philippine Association of Free Labor Unions v. Binalbagan Isabeia Sugar Co., G.R. No. L-23959, 29 November 1971. 24Ciocon-Reer v. Judge Lubao, A.M. OCA !PI No. 09-3210-R1J, 20 June 2012. 442 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 443 Volume IV was the unquestioning affirmance by the IBP Board of Governors, which seemingly failed to even notice the glaring inadequacy. The Court ordered the disbarment of Atty. Ceniza. 25 2. Maranan filed a case against Vice Mayor Isko Moreno for having signed Consultancy Contracts on behalf of Manila with persons who are either deceased or who are abroad during the period of the contract. The case against Isko Moreno was dismissed based on his defense that his secretary, Abraham Cabochan, assured him that all papers were in order. The Ombudsman referred the matter to the IBP to determine the liability of Maranan since he notarized all the contracts. Finding that he violated his notarial commission, Maranan was suspended for six months and was prohibited fr:om renewing his notarial commission for two years. 26 3. The Court exonerated Atty. Rivera since his acts cannot be considered of the Lawyer's Oath and the CPR. Atty. Rivera was merely performing his official duties as Municipal Administrator of Binangonan particularly in the implementation of the Closure Order against the businesses by the Baygar family and other matters related thereto. As the Municipal Administrator, it was one of the duties of Rivera to "assist in the coordination of the work of all the officials under the supervision of the mayor." 27 4. The complainant accused Martinez of falsely issuing a DBP Board Resolution designating Atty. Ongkiko-Acorda as the spokesperson of the bank insofar as the P150M loan it granted to Mr. Ongpin's company. The subject P150M loan was included in the alleged anomalous transaction with DBP with the petitioner company. The Court dismissed the case since the complaint is purely rn:ere suspicion and speculation undeserving of credence. The Court said institution of disbarment cases is not a tool and should not be used as an alternative to reliefs that may obtained from proper offices. 28 2 5AmaliaCeniza v. Atty. Eliseo B.Ceniza, A.C. No. 8335, April 10, 2019, 5. This case arose out of the Opinion released by respondent which authorized APECO to issue on-line gaming permits beyond its territorial jurisdiction as an export processing zone. In a r::ublic event, President Duterte said he dismissed Jurado for overstepping his powers for such opinion. This prompted the filing of the instant disbarment case against Atty. Rudolf Philip Jurado, Government Corporate Counsel.. For this act, Atty. Jurado was reprimanded cinly and sternly warned that a similar offense will merit a more severe penalty. He was advised to be more circumspect with his responsibilities asa lawyer. 29 6. All the respondents are lawyers working with the Office of the Ombudsman. In separate resolutions, they dismissed the charges filed by Tablizo against the Mayor and Vice Mayor of Virac, Catanduanes. Tablizo instituted the disbarment cases against .the four lawyers. As a general rule, the Court laid down the general rule that a lawyer who holds a government office may not be disciplined as a member of the bar in the discharge of his duties. However, if the misconduct constitutes a violation· of his Oath and the CPR, the Court may discipline him as a member of the bar. All lawyers were exonerated by the Court. 30 7. Macaventa charged Atty. Nuyda of Gross.Neglect of D-1,1.ty to faithfully implement the Ombudsman's Order of Dismissal of Capiz Governor Tanco and his son, Vladimir. The delay was due to the clarification sought by the DILG as to the application of the. Aguinaldo doctrine on. the governor. The· order· of dismissal against.\ 1adimir was duly implemented since he holds an appointive position. Since the Aguinaldo doctrine applied with the re-election of Gov. Tanco, Atty. Nuyda did not prepare the Implementing Order against tte governor. The Court exonerated Atty. Nuyda.3' General Rule: The appointment or election 2 G. Maranan v. Francisco Domagoso, A.C. No. 12877. December 7, 2020, Perlas-Bernabe, J. Z?Risie G. Baygar v. Atty. Claro Manuel M. Rivera, A.C. No. 8959. October 7, 2020, Hernando, J. 28 Delta Venture Resources, Inc. v. Atty. Cagllotro 9268, September 30, 2020, Delos Santos, J. Miguel Martinez, I of Con.duct and Ethical Standar~ for Per Curiam '1£,InRe: OMB-C-CI3-0I04 Atty. Socrates l Rules found under the Constin:.tion, Code A.C. No. 9vega and Efren B. Gonzales v. Atty. Rudolf Philip B. J•rado, Former Government Corporate Counsel and Atty. Gabriel Guy' P. Oldansca. Former Chief of Staff, OGCC, A.C. No. 12247. October 14, 2020, Inting,J. 30Manuel B. Tablizo v. Attys.Joyrlch M. Golangco, AdoracionA..Agbada, Elbert L Bunagan and Joaquin F. Salazar, A.C. No. 10636. October 12, 2020, Hernando, J 31Pastor Abaracoso Macaventa v. Atty. Anthony .C.Nuyda, A.C. No. 11087. October 12, 2020, Peralta, C.J. 444 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV of an attorney to a government office disqualifies him from engaging in the private practice of law. 32 Public Officials, Local Government Code, Canon 6 of the Code of Professional Responsibility Governing Lawyers as Public Servants 1. President, VicePresident, and members of the cabinet and their deputies and assistants. 33 Sections 7(b) and 11 of R.A. No. 6713 proscribe that lawyers employed by government shall not -have any outside employment; 2. Members of Congress (Senators, Congressional Representatives, and Party List Members) 3. Members of Constitutional Commissions 35 Shall not have any interest in a private company; and 4. Ombudsman and his deputies 36 Shall not engage in private practice or recommend a person for employment in a private enterprise which has pending transactions with government. Shall not engage in private practice or recommend a person for employment in a private enterpdse which has pending transactions with government. Governors, City or Municipal Mayors. 37 Shall not engage in private practice during their term. 445 Sanggunian members may practice their professions, engage in any occupation, to teach in schools, except during session hours: Sanggunian A member of Congress is only prohibited from appearing or filing pleadings as "counsel before any court of justice or before Electoral Tribunals, or quasi-judicial and other administrative bodies." 34 32 Ramos v. Rada, A.M. No. P-202, 22July 1975. Sec. 13, Art. VII, Constitution. 34 sec. 14, Art. VI, and Sec. 17, Art. VII, Constitution; L-12890, 8 March 1918. PRIMER IN LEGAL AND JUDICIAL ETHICS members who are members of the Bar shall not appear as counsel - L in civil cases wherein a !ocal government unit or any office, agency, or instrumentality of the government is the adverse party; 3 33 Flores v. Zurbito; G.R. No. 5sec. 2, Art. IX(A), Constitution. 36Sec. 8, Art. IX, Constitution. 37 Sec. 90(a), Title III, R.A. No. 7160, titled the Local Government Philippines (LGC). Code of the 446 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS VolumeN 2. in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; Sanggunian members cannot 1. c61lectany. ·. fee for their · appearance in adniinistrative proceedings involving•the focal government unit of which he is an official; and 2. use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government. 38 Scin,ggunian members may practice their professions, engage in any 38sec. 90(b), Title III, RA. No. 716o. 447 occupation, to teach in schools, except during session hours: Sanggunian members who are members of the Bar shall not appear as counsel 1. In civil cases wherein a local government unit or any office, agency,or instrumentality of the government is the adverse party; 2. In any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; Sanggunian members cannot 1. Collect any fee for their · appearance in administrative proceedings involving the local government unit of which he is an official; and 448 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV of the bar to appear in any case in which the government has an interest, direct or indirect. 44 2. Use property and personnel of the Government except when the Examples: Solicitor General; Assistant Solicitors General; State Solicitors; Assistant Solicitors; State prosecutors or special counsel in the Department of Justice; Provincial and city prosecutors and their assistants and other attorneys in other legal offices of the government. Sanggunian member concerned is defending the interest of the government. 39 Judges and other officials and employees of the superior courts or of the Office of the Solicitor General. 40 Officials and employees of other government prosecution officeS.41 Acceptance of appointment in government demands resignation of the firm42 A government lawyer shall not engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department4 3 General Rule: A lawyer who holds a government position may not be disciplined as a member of the bar for misconduct in the discharge of his duties as a government official. Exception to the Rule: The Supreme Court may discipline a lawyer, as a member of the bar, if his misconduct as a government official constitutes a violation of his oath as a lawyer. 45 If the misconduct of the government lawyer also constitutes a violation of the Code of Professional Responsibility or the lawyer's oath or is of such character as to affect his qualification as a lawyer or shows moral delinquency on his part, such individual may be disciplined as a member of the bar for such misconduct. 46 The lawyer's oath has been likened to a condensed version of the canons of professional responsibility. 47 "I, [name ], do solemnly swear that I will maintain allegiance to the Republic of the Philippines, I will support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor Any official or other persons appointed in accordance with law to appear for the Government of the Philippines shall have all the rights of a duly authorized member 39Sec. 90(b), R.A. No. 7160. sec. 35, Rule 138, ROC. 41 G.R. No. 237738, 10 June 2019. 42 Rule 3.03, CPR. 4 3sec. 12, Rule XVIII, Revised Civil Service Rules. 40 449 44sec. 33, Rule 138, ROC. v. Florin, A.C. No. 5110, 17 April 2013. 46pjmentel, Jr. v. Llorente, A.c: No. 4680, 29 August 2000. 47Sebastian v. Cali, A.C. No. 5118, 9 September 1999. · 45Berenguer-Landers 450 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV consent to the doing of any in court; I will ·not wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients; and I impose upon myself these voluntary obligations without any mental reservation or purpose of evasion. So help me God." "x x x lawyer's oath is NOT a mere ceremony or formality for practicing law. Every lawyer should at ALLTIMES weigh his actions according to the sworn promises he makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the lawyer's oath and the Code of Professional Responsibility, the administration of justice will undoubtedly be faster, fairer and easier for everyone concerned. "48 Historical background The Code of Professional Responsibility was drafted by the Committee on Responsibility, Discipline and Disbarment of the Integrated Bar of the Philippines. It was chaired by Dean Irene Cortes who was later appointed to the Supreme Court. It was promulgated by the Supreme Court on June 21, 1988. The CPR is substantially based on the Code of Professional Ethics of the American Bar Association. PRIMER IN LEGAL AND JUDICIAL ETHICS Doctrinal 451 Rulings: 1. On 23 September 2013, the Court suspended Villarente for one year for cohabiting with his mistress and siring a child with her. Despite a stern warning from the Court, Villarente ·continued to live with the mistress and another child was born out of this relationship. On February 25, 2015, Catherine informed the Court of the continued infidelity of her spouse. The Court disbarred him for maintaining an adulterous relationship as this scandalized the public.49 2. The practice of law is not a right but a privilege bestowed by the state upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege. When a lawyer's moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, it behooves him to meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to keep his name in ile Roll of Attorneys. Atty. Velasquez was disbarred for committing bigamy for contracting marriages with Shirley Yunzal in 1990 and Leny Azur in 1996, and he also made Mecaral, his secretary, as mistress and subsequently, tortured her to the point of death. 50 3. In light of the public service character of the practice of law and the nature of disbarment proceedings as a public interest concern, Maelotisea's affidavit of desistance cannot have the effect of discontinuing or abating the disbarment proceedings. She is .more of a witness than a complainan: in these proceedings. The Court noted that she filed her affidavits of withdrawal only after she had presented her evidence; her evidence are now available for the Court's examination and consideration, and their merits are not affected by her desistance. The affidavit od desistance was solely borne out of compassion (and, impliedly, out of concern for her personal financial interest in continuing friendly relations with Atty. Garrido). Both Garrido and Valencia were disbarred. 51 49Catherine V. Villarente v. Atty. Benigno C Villarente, Jr., A.C. No .. 8866. September 15, 2020, Per Curiam 50Rosario Mecarat.,v. Atty. Danilo Velasquez, A.C. No. 8392, June 29, 2010, Per 48 Re: Petition of Al Argosino 19, 1997 to take the Lawyer's Oath, B.M. No. 712 March Curiam 51Maelotisea S. Garrido v. Attys. Angelo. Garrido and Romana P. Valencia, A.C. No. 6593, February 4, 2010, Per Cu"7am: · 452 4. Cojuangco filed a complaint for disbarment against Atty. Leo J. Palma, alleging as grounds "deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct. He hired respondent as his personal counsel in the 70's. Their relationship became intimate and he frequented his residence and would tutor his 22-year old daughter. Sometime in 1982, he was surprised when Palma married his daughter in Hongkong. Palma set up the defense that Cojuangco is not the injured party and it should be Leo's wife who should be the cbmplainant. Despite this, the Court disbarred him because his acts constituted deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his oath as a lawyer. 52 5. Complainant filed a disbarment case against Celera. She alleged that Celera married her sister, Grace, on May 8, 1997. He then contracted a second marriage to Ma. Cielo Paz Torres Alba on January 8, 1998. Celera moved for dismissal ofthe case since there is already a pending case on the same matter filed by wife, Grace. Guilty of grossly immoral conduct and willful disobedience of lawful orders rendering him unworthy of continuing membership in the legal profession, the Court ordered him DISBARREDfrom the practice of law and his name stricken of the Roll ofAttorneys, effective immediately. 53 6. In 1997, due to financial constraints of Caballero; Sampana agreed to acquire his property for Php60,000.00 with the condition that he would assume Caballero's outstanding amortizations with the GSIS. However, CabaHero was surprised when GSIS sent him a final notice in 2004 to settle his outstanding loan of P2.98M. For failure to honor the terms of their agreement, Sampana w_a:;; disbarred. 54 money. Despite receipt of partial payment, Asuncion, Jr. failed to show details of title to the subject property and other related documents. Aguinaldo withdrew his offer to buy and demanded the return of his money. Despite repeated demands, Asuncion, Jr. did not heed his plea. The Court held that Asuncion, Jr. was "guilty of dishonest, deceitful and fraudulent acts" and suspended him from the practice of law for six months with a warning that similar misconduct in the future shall be dealt with more severely. 55 8. The Court found Atty. Jonathan Cristobal guilty of acts of violence committed upon his wife. He was suspended only for three months due to the following mitigating circumstances: 1. Continued support to all his children; 2. Three out of the four children live with him after his separation from his wife; and 3. His wife never denied the injuries he sustained when she hit him with his belt. 56 Canon 1: A lawyer shall: (a) uphold the Constitution; Reminder: Canon 1 together with Canon 7 (Duty to Uphold the Integrity and Dignity of the Legal Profession) should be a default answer in assessing any transgression of a lawyer. (b) obey the laws of the land; and (c) promote respect for law and legal processes. Reminder: Canon 1 together with Canon 7 (Duty to Uphold the Integrity and Dignity of the Legal Profession) should be a default answer in assessing any transgression of a lawyer. 7. This case arose from a complaint on a transaction in: 2010 when Atty. Asuncion, Jr. agreed to sell 4.4 hectares ofhis property in Banauang, Moncada, Tarlac after receiving PlO0,0QO;00as earnest 52Eduardo Cojuangco v. Atty. Leo Palma, A.C. No. 2474, September 15, 2004, PerCuriam: 53Rose Bunagan-Bansig v. Atty. RogelloJuan Celera, A.C. No. 5581, January 14, 2014, PerCuriam: 54 Wilfredo C Caballero v. Atty. Glicerio A. Sampana, A.C. No. 10699. October 6, 2020, Per Curiam: 453 PRIMER IN LEGAL AND JUDIClAL E1HICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 55Antonio T. Aguinaldo v. Atty. Isaiah C Asuncion,Jr., 7, 2020, Peralta, CJ. 56Divine Grace P. Cristobal November 10, 2020, Carandang, J. v. Atty. Jonathan A.C. No. 12086. October A. .Cristobal; A.C. No. 12702. 454 THE PRE-WEEKREVIEWERFOR JITTERY BAR TAKERS \t>lume!V repulsive and reprehensible act which the court will not countenance. 57 A An act of lying and cheating. 58 Honesty is essential for every lawyer to retain his standing as a member of the bar. 59 Grossly immoral conduct must be so corrupt as to virtually constitute a criminal act or so unprincipled as to be reprehensible to a high degree or, committed under such scandalous or revolting circumstances as to shock the common sense of decency. 60 - the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise. "the solicitation of almost any kind of legal business by an attorney, personally or through an agent in order to gain employment. "61 - the lawyer's act of fomenting suits amorig individuals and offering his legal services to orie of them for monetary motives or purposes. 62 - also known as maintenance at common law. 63 PRIMERIN LEGALAND JUDICIAL ETHICS 455 Canon 2: Efficient and Convenient Legal Services This must be appreciated with Rule 14.03 of Canon 14 as well as Rule 15.03 of Canon 15 of the Code of Professional Responsibility. The spirit of public service underlies the legal aid program of the IBP; it is not a matter of charity, but a public responsibility, a means of correcting the social imbalance. 64 Rule 14.03, Code of Professional Responsibility A lawyer cannot represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. No advertisement, no touting or solicitation of services Rule 2.03, Code of Professional Responsibility Canon 3: True, honest, fair, dignified and objective information on legal services Canon 4: Participation in the improvement and reform in the legal To elevate the standards of legal profession, Exception: When it ,·is'Compatible with the dignity of the legal profession and made in a modest .and decorous manner. The continued use of the name of a deceased partner is permissible provided that the firm indicates in all, its communications that said partner is deceased (Rule 3.02, Code of Professional Responsibility). Filipino lawyers cannot practice law under the name of a foreign law firm.65 Annual dues of P2,000 per year effective 1 January 201966 57 Gonzaga v. Realubin A.C. No. 1955, 14 March 1995. Alsup v. State, 91 Tex. Crim. 224. 5 9People v. Gilmore, 117 NE 710. 60 Advincula v. Macabata, A.C. No. 7204, 7 March 2007. 61 Linsangan v. Tolentino, A.C. No. 6672, 4 September 2009. 62 Pineda, Legal and Judicial Ethics, 3rd ed.; p. 46. 63 Agpalo, Legal and Judicial Ethics 2009 ed., p. 74. 58 64sec. 1, Art. I, Guidelines Governing the Establishment and Operation of Legal Aid Offices in Chapters of the Integrated Bar of the Philippines. 65Jd. 66sec. 9, Rule 139-A, ROC. 456 THE PRE-WEEK REVIEWER FORJITrERY Volume IV improve the administration of justice, and enable the bar to discharge public responsibility more effectively67 PRIMER IN LEGAL AND JUDICIAL ETHICS BAR TAKERS 2. Lifetime Membership Fee: P25,000 subject to the following conditions: i. 457 Representative of the IBP 3. Representative from the Philippine Judicial Academy be a member of good standing; ii. ten (10) years of continuous membership; 4. Representative from a law center designated by the Supreme Court iii. attended at least five (5) conventions of the IBP, either national or regional, or a combination thereof; and 5. Representative from the associations of law schools and/or law professors iv. rendered at least 120 hours of free legal aid service with the IBP.· Reminder: The grant by R.A. No. 7432 to senior citizens of "exemptions from the payment of individual income taxes" does not include payment of membership or association dues. 68 1. The President, Vice-President and the Secretaries and Undersecretaries of executive departments; 2. Senators and Members of the House of Representatives; 3. The Chief Justice and Associate Justices of the SC, incumbent and retired justices of the judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers who have availed of by the Philippine Judicial Academy programs of continuing judicial education; Requiring practicing lawyers to render 60 hours of free legal aid services in all cases (whether, civil, criminal or administrative) involving indigent and pauper litigants where the assistance of a lawyer is needed. Requiring all 2017 bar passers to render 120 hours of community legal aid service. Status: S.C. suspended this on September 19, 2019 5. The Solicitor-General and the Assistant Solicitor-General; 6. The Government Corporate Counsel, Deputy and Assistant Government Corporate Counsel; 7. The chairman and members of the constitutional commissions; 8. The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of the Ombudsman; Status: The proposal remains pending. Canon 5: Participation in Legal Education Program MCLE Board serving for a term of three years 4. The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries of the Department of Justice; 1. A retired Justice of the Supreme Court as Chair 9. Heads of Government agencies exercising quasi-judicial functions; 10. Incumbent deans, bar reviewers and professors of law who have teaching experience for at least ten years in accredited law schools; 11. The ·Chancellor, Vice-Chancellor and members of the Corps of Professional Lecturers of the Philippine Judicial Academy; and 67 Sec. 2, Rule 139-A, ROC. Santos v. Llamas, supra, Note 13. 68 458 THE PRE-WEEK REV1EWERFOR JITTERY BAR TAKERS Volume IV PRIMER IN LEGAL AND JUDICIAL ETHICS 459 12. Governors and Mayors; 13. Those who are not in law practice, private or public; and 14. Those who have retired from law practice with the approval of the IBP Board of Governors. 69 To keep abreast with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the practice of law. 70 36 hours of credit units for a 3--yearperiod Note: Newly admitted lawyers must start taking up their MCLE units within the first month after taking oath. All practicing members of the bar to indicate in all pleadings filed before any courts or quasi-judicial bodies, the number and date of issue of their MCLE certificate of Compliance or Certificate of Exemption 71 Failure to disclose the required information would not cause the dismissal of the case, the expunction of the pleadings from the records but would subject the counsel to appropriate penalty and disciplinary action. 72 Lawyers may file a verified request setting forth good cause for exemption 73 Note: Exemption will not be granted lawyer continues to practice law. 69 sec. 1, Rule 7, B.M. No. 850, 2 October 2001. 70 sec. 1, Rule 1, B.M. No. 850. 71 Rule 12, B.M. No. 850. 72 B.M. No. 1922; Amado v. Adaza, A.C. No. 9834, 26 August 2015. Sec. 3, Rule 7, B.M. No. 850. 73 if Doctrinal.Rulings: 1. The Court ordered the disbarment of the respondent for maintaining extra-marital relations with a married woman, and having a child with her. Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution which provides: "Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State." In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe muti.Iallove, .respect and fidelity, and render mutual help and sµpport." The Court held that he is no longer fit to be a member of the bar. 74 2. Talens-Dabon, Clerk ofCourt,charged her immediate .. superior, ExecutiveJudge Herrnin Arceo with gi:oss misconduct. The complaint was later amend<::d to include inunciraHty. Complainant was reluctant with her reassignment to the safa of the respondent because he has been characterized "bastes/ "maniakis" and indulges in "chancing" female court staff. For the lewd and lustful acts committed by respondent judge ori the· complainant, he failed to measure up the exacting standards required bf a judge. He behaved in a manner unbecoming <>fa judge and as model of moral uprightness. He has betrayed the people's high expectations and diminished the esteem in which they hold the judiciary in generaL He was dismissed for gross misconduct and irnmorality. 75 as 3. Atty. De Los Reyes is guiltyof"sextortion" which is the abuse of his position or authority to obtain sexual fav9rs from his subordinate, the complainant, his unwilling victim who was not in a position to resist respondent's demands for feat of losing.her·means of livelihood. The sexual exploitation of his subordinate done over 74.Joselano Guevarra v. Atty. Jose Manuel Eala, A..C. No. 7136, August l; 2007, PerCuriam.'ISJ'alens-Dabonv.Judge Arceo, A.M. No. RTJ-96--1336July 25, 1996, Per Curiam: PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV 460 shall not support an application for admission of an unqualified bar candidate a period of time amounts to gross misbehavior on the part of respondent Atty. De Los Reyes that affects his standing and character as a member of the Bar and as an officer of the Court. All these deplorable acts of respondent Atty. De Los Reyes puts the legal profession in disrepute and places the integrity of the administration of justice in peril, thus warranting-disciplinary action from the Court. He was disbarred. 76 4. The Court said that the fraudulent acts Balicanta carried out against his client followed a well thought of plan to misappropriate the corporate properties and funds entrusted-to him. At the very outset, he embarked on his devious scheme by making himself the President, Chairman of the Board, Director and Treasurer of the corporation, although he knew he was prohibited from assuming the position of President and Treasurer at the same time. As Treasurer, he accepted in behalf of the corporation the 19 titles tµat complainant and her daughter co-owned. Respondent committed grave and serious misconduct that casts dishonor on the legal profession. 77 Canon 7: Upholding the Dignity and Integrity of the Legal Profession Liability for making a false statement or suppressing a material fact in connection with one's application for admission to the bar 78 461 shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or in private, behave in a scandalous manner to the discredit of the legal profession Canon 8: Courtesy, Fairness, and Candor towards a Fellow Lawyer Proscriptions under Canon 8 Rule 8.01 - shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper 79 Rule 8.02 - shall not, directly or indirectly, encroach upon the professional employment of another lawyer Rule 8.02 - shall give proper advice and assistance to those seeking relief against unfaithful or neglectful counsel Canon 9: No Assistance in Unauthorized Practice of Law Rule 9.01 - not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the bar in good standingBO Rule 9.02 - not divide or stipulate to divide a fee for legal services with persons not licensed to practice law81 Exceptions: (a) Where there is a pre.:existing agreement with· a partner or associate that, upon the latter's death, money shall be paid over a reasonable period of time to his estate or to persons specified in the agreement; or no concealment of a material fact in application for admission to the bar 76 AAA v. Atry. Antonio Delos Reyes, A.C. No. 10021 and A.C. No. 10022, September 18, 2018, Per Curiam 77 Rosaura Cordon v. Airy.Jesus Balicanta, A.C. No. 2797, October 4; 2002, Per Curiam 78 Rule 7.01, CPR. 79Habawel v. Court of Tax Appeals, G.R. No. 174759, 7 September 2011. Cambaliza v. Atty. Cristal-Tenorio, A.C. No. 6290, 14 July 2004; Tapay v. Atty. Bancolo, A.C. No. 9604, 20 March 2013; Atty. Edita Noe-Busmente v. Atty. Yolando Busmente, A.C. No. 7269, 23 November 2011. 81 PAFLU, supra. 80 462 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV Canon 10: Candor, Fairness, and Good Faith towards the Court PRIMER IN LEGALAND JUDICIAL ETHICS (b) Where a lawyer undertakes to complete unfinished legal business of a deceased lawyer; or Alleging in one pleading that his clients were merely lessees of the property involved, but in another pleading, alleges that his clients were owners of the same property'6 (c) Wher-e a lawyer or law firm includes non-lawyer employees in. a retirement plan even if the plan is based in whole or in part, on a profit-sharing agreement. Rule 10.02 - shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved. an officer of the court, it is the lawyer's sworn and moral duty to help build and not destroy unnecessarily the high esteem and regard towards the courts is essential to the proper administration of justice. His superior retainer is with the court, which outlasts all his retainers with his clients. 82 As The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before !h~ courts. 83 463 If not faithfully and exactly quoted, the decisions and rulings of the court may lose their proper and correct meaning, to the detriment of other courts, lawyers and the public who may thereby be misled 87 Rule 10.03 - shall observe the rules of procedure and shall not misuse them to defeat the ends of justice. Filing multiple actions constitutes an abuse of the court's processes. 88 Canon 11: Respect to the Courts Rule 10:01 - shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice Rule 11.01 - shall appear in court properly attired. Rule 11.02 - shall punctually appear at court hearings. Rule 11.03 - shall abstain from scandalous, offensive or menacing language or behavior before the Courts. · Falsely stating the deed is not one of sale with pacto de retro, but one of equitable mortgage, causing ambiguity in the terms of the contract. 84 Rule 11.04 - shall not attribute to a judge motives not supported by the record or have no materiality to the case. Making it appear that a person long dead, executed a deed of sale in his favor85 Rule 11.05 - submit grievances against a Judge to the proper authorities only. Bisurigao Mineral Reservation Board v. Cloribel, G.R. No. L-27072, 9 January 1970. 3serana v. Sandiganbayan, G.R. No. 162059, 22 January 2008. 84 Zaladaga v. Astorga, A.C. No. 4697, 25 November 2014. 85 Monterey v. Arayata, Per. Rec. No. 3527, 23 August 1935. 8 86 Chavez v. Viola, G.R. No. 2152, 19 April 1991. Life Assurance Co., Ltd. Employees Association v. Insular Life Assurance Co., Ltd., G.R. No. L-25291, 30 January 1971. 88Pablo R. Olivares, etc. v. Atty. Arsenic Villalon, Jr., A.C. No. 6323, 13 April 2007. 87Insular 464 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV PRIMER IN LEGALAND JUDICIAL ETHICS Rule 12.03 - shall not, after obtaining extensions of time let the period lapse without submitting the pleadings or offering an explanation for his failure to do so. 1. Despite errors which one may impute on the orders of the Court, these must be respected, especially by the bar or the lawyers who are themselves officers of the courts. 89 2. Liberally imputing sinister and devious motives and questioning the impartiality, integrity and authority of the members of the Court result in the obstruction and perversion of the dispensation of justice. 90 Rule 12.04 - shall not unduly delay a case, impede the execution of a judgment or misuse Court processes. Rule 12.05 - shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. 3. Inexcusable absence from, or repeated tardiness in attendance in attending pre-trial or hearing may not only subject the lawyer to disciplinary action, but may also prejudice his client who, as a consequence thereof, tnay be non-suited, declared in default or adjudged ex parte. 91 Rule 12.05 - shall refrain from talking to his witness during a break or recess in the trial, while the witness is still under examination. 4. The Court suspended Pangan for two years for 'violating the rule of conflict of interests and betraymg his client's trust [He represented two opposing clients in a cout:t-mediated proceeding; be excluded complainant as a forced heir in the settlement of estate of her son, and h_eused information relayed by complainant in confidence]; and use of inappropriate words [He used the following words to describe the complainant: 'devil, ' 'with a devil smile' and 'atat na atat' contained in his counter-affidavit before the Prosecutor's Office in Manila.]92 Canon 12: Assistance in the Speedy and Efficient Administration of ]listi~e Rule 12.06 - shall not knowingly assist a witness to misrepresent himself or to impersonate another. Rule 12.07 - shall not abuse, browbeat or harass a witness nor needlessly inconvenience him: Constitutional basis: All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. 93 Rule 12.01 - shall not appear for trial unless he has adequately prepared himself on the law and the facts of his case. Rule 12.02 - shall not file multiple actions arising from the same cause. 89yap-Paras v. Atty. Paras, A.C. No. 4947, 7 June 2007. 90 Estrada v. Sandiganbayan, G.R. Nos. 159486-88, 25 N(?vember 2003. 91 De Gracia v. Warden of Makati, G.R. No. L-42032, 9 January 1976. 92 Myriam Tan-Te Seng v. Atty. Dennis C Pangan/Myriam Tan-Te Seng v. Atty. Dennis C Pangan, A.C. No. 12829/ A.C. No. 12830, September 16, 2020, Perlas-Bernabe, J. 93Sec. 16, Art. IIi, 1987 Constitution. 465 Rule 12.08 - shall avoid testifying in behalf of his client. (a) On formal matters, suc:h as the mailing, authentication or custody of an instrument, and the like; (b) On substantial matters, in cases where his testimony is essential to the ends ·of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel. Canon 13: Reliance on Merits of his Cause and Avoidance of any Impropriety which tends to Influence or gives the Appearance of Influence upon the Courts Rule 13.01 - shall not extend extraordinary attention or hospitality to, nor seek opportunity for cultivating familiarity with Judges. 466 THE PRE-WEEK REVIEWER FORJl1TERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS 467 Volume IV Rule 13.02 - shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party. Rule 14.03 - can refuse appointment as counsel de officio when (a) he is not in a position to carry out the work effectively or-competently; Rule 13.03 - shall not brook or invite interference by another branch or agency of the government in the normal course of judicial proceedings. Cb) he labors under a conflict of interest between him· and the prospective client or between a present client and the prospective client. Rule 14..04 - shall observe the same standard of conduct governing his relations with paying clients and nonpaying clients. 1. A lawyer should not seek any form of publicity concerning a pending litigation may interfere with a fair trial.94 2. Picketing should not be held to influence the court in a particular manner. 95 3. A lawyer should refrain from making such public statements on a case that may tend to arouse public opinion for or against a party.96 4. A lawy~r should not ask the Office of the President to lift his two-year suspension from the practice of law since the Constitution has vested the power to discipline lawyers solely upon the Supreme Court. 97 · Canon 14: Availability of Services to the Needy Rule 14.01 - shall not decline to represent a person solely on account of the latter's race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person. Rule 14.02 - shall not decline, except for serious and sufficient cause, an appointment as counsel de officio or as amicus curiae, or a request from the Integrated Bar of the Philippines or any of its chapters for rendition of free legal aid. 94 Cruz v. Salva, G.R. No. L-12871, 25 July 1959. Nestle Phil., Inc. v. Sanchez, G.R. No. 75209, 30 September 1987. 96Estrada v. Sandiganbayan, G.R. No. 159486-88, 25 November 2003. 97 De Bumanlag v. Bumanlag, A.M. No. 188, 29 November 1976. 95 Section 6, Rule 116, Revised Rules of Criminal Procedure Section 31, Rule 138, Rule of Court Appointment of counsel de officio to defend an accused in a criminal case The court may appoint a counsel to a party in any case other than a criminal case where the service of counsel is needed because the party-litigant is destitute and unable to. employ an attorney Canon 15: Candor, Fairness and Loyalty to Client (Conflict of Interest) Rule 15.01 - shall inform a prospective client if there exists a conflict with another client or his own interest. Rule 15.02 - shall be bound by the rule oh privilege communication in respect of matters disclosed to him by a prospective client. Rule 15.03 ~ shall not represent confliqing interests except by written consent of all concerned given after a full disclosure of the facts. Rule 15.04- may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in settling disputes. 468 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV PRIMER IN LEGAL AND JUDICIAL ETHICS 469 2. Judgment may be set aside (Ibid.) l. Conflicting Duties This test will examine whether the lawyer will be required to contest for that which his duty to another client requires him to oppose: 2. Invitation of Suspicion This test will determine if the acceptance of a new relation of the lawyer to a new client will invite suspicion and/ or actually lead to unfaithfulness or double-dealing towards another c;:lient. 3. Use of Prior Knowledge Obtained This test will establish if the lawyer will be called upon in his new,:relation to use against his former.client knowledge acquired in·the previous employment. any General Rule: Where a lawyer is disqualified or forbidden from appearing as counsel in a case because of conflict of interests, the law firm of which he is a member as well as any member, associate or assistant therein is similarly disqualified or prohibited from so acting. 98 Rule when services are engag~ through a law office: As an organization of individual lawyers which, albeit engaged as a collective, assigns legal work to a corresponding handling lawyer, it behooves the law firm to value coordination in deference to the conflict of interest rule. This lack of coordination intolerably renders its clients' secrets vulnerable to undue ancl .even adverse exposure, eroding in the balance the lawyer~client relationship's primordial ideal of unimpaired trust and confidence. 99 3. Attorney's rights to compensation for his services may be affected 101 Adverse-interest conflict exists where· the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse. Congruent-interest conflict is the disqualification which does not really involve a conflict at all, because .it prohibits the l~wyer from representing a private practice client even if the interests of the former government client and the new client are entirely parallel. The "congruent-interest representation conflict," unlike the "adverseinterest conflict," is unique to former government lawyers. 102 Atty. Dela Rosa had proven himself disloyalto his client. He was exploitative, untrustworthy, and a double-dealer. The client did not know who the buyer was when the land had been sold. He acted to protect the buyer's interest, and in all likelihood, his as well. The client did not know and still does not know how much was actually paid for the land. Money flowed from an account.set up by Atty. Dela Rosa himself and although under the Cooperative's name, Atty. Dela Rosa alone had access to· it. The cash proceeds of the sale have not been accounted for to this date. Atty. Dela Rosa was disbarred. 103 Canon 15: Candor, Fairness and Loyalty to Client Rule 15.05 - shall give a candid and honest opinion on tlie merits and probable results of a case. Attorney may be disqualified from representing new client upon petition of former client 100 101 98Hi!ado v. David, G.R. No. L-961, 21 September 1949. 99wi!fredo Anglo v. Atty. Jose Ma. Valencia et al., A.C. No. 10567, 25 February 2015. 100 Supra, Note 84. Wright v. Webb, 278 SW 335. PCCG v. Sandiganbayan and Tan, G.R. Nos. 151809-12, 12 April 2005. 103{Palalan Carp Farmers MulJ:i-Purpose Coop, represented by Beverly Domo v. Airy. Ebner A. Dela Rosa, A.C. No. 12008. August 14, 2019) 102 470 THE PRE-WEEK REVIEWERFORJ!TfERY BAR TAKERS Volume IV It is the duty of counsel to advise his client against making untenable and inconsistent claims. 104 Rule 15.06 - shall not state or imply that he is able to influence the outcome of a case. A lawyer who exaggerates the prospects of winning a case will be placed in a dilemma which will adversely affect his reputation. (Agpalo, Legal an,d Judicial Ethics, 2006 ed., pp. 210-211) Rule 15.07 - shall impress upon his client compliance with the laws andthe , principles of fairµess. A lawyer should use his best-efforts to restrain and to prevent,his clients from doing those things which the lawyer himself ought not to do. 105 .,,,,,_ , Rule 15.08 - when engaged in another profess~on or occupatiofi concµrrently with the practice. qf law shall make clear to his dient whether he is act;ing as a lawyer or in another capacity. PRIMER IN LEGALAND JUDICIAL ETHICS 2, A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client. 109 3, A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated. no 4, The lawyer's duty to maintain inviolate his client's confidence is perpetual. It outlasts his professional employment and continues even after the client's death. m 5, It is the duty of an attorney to "maintain inviolate the confidence, and at every peril to himself, to preserve the secret of his client" 112 6. A lawyer shall preserve the confidences and secrets of his client even after the attorney-client relation is terminated. " 3 Canon 16: Fiduciary Duty to Client's Money and Property Rule 16.02 - shall keep the funds of each client separate and apart from his own and those of others kept by him. Impropriety "arises when the business is of such a nature or is in such a manner as to be inconsistent with the lawyer's duties as a member of the bar." 107 The purpose of the attorney-client privilege is to encourage a client to make full disclosure to his attorney and to place unrestricted confidence in him in matters affecting his rights or obligations; The privilege is founded on grounds of public policy. 108 Rule 16.03 - shall deliver the funds and property of his client when due or upon demand subject to rules on lien. A lawyer shall deliver the funds and properties to his client when (a) they become due, or (b) upon demand." 5 109Rule 104 Periquet v. NLRC, G.R. No. 91298, 22June 1990. Nestle Phils., Inc. v. Sanchez, G.R. No. 75209, 30 September 1987. 106 Agpalo, Legal and Judicial Ethics; 2006 ed., p 124. 107 American Bar Association (A.RA.) Op, 57. 108 San Francisco v. Superior Court of San Francisco, 25 ALR2d 1418. 105 Rule 16.01 - shall account for all money or property collected or received for or from the client. Without the client's consent, the lawyer has no authority to apply the client's money to his client, without prejudice to his filing a case to recover his unsatisfied fees.114 Engaging in business· or other lawful calling entirely apart from. the attorney's practice oflaw is not necessarily improp<::r.106 ·, 1. 471 15.02, CPR. uocanon 21, CPR. mHilado, Supra, Note 84. msec. 20(e), Rule 138, ROC. 113Canon 21, CPR. u 4Gonato v. Atty. Adaza, A.C. No. 4083, 27 March 2000. u 5Dumadag v. Lumaya, A.C. No. 2614, 21 May 1991. 472 THE PRE-WEEK REVIEWERFORJITfERY BAR TAKERS VolumeN Rule 16.04 - as a matter of general rule, shall not borrow money from his client neither shall he lend money to a client. Borrowing money from a client comes within those. acts considered as abuse of client's confidence. The client is disadvantaged by the lawyer's ability to use all the legal maneuverings to renege on her obligation. 116 1. A fiduciary relationship exists as a matter of law between attorney and client, which requires all dealings growirig out of such relationship to be subject to the closest judicial scrutiny. 117 PRIMERIN LEGALAND JUDICIAL ETHICS 473 constitutes gross violation of professional ethics and betrayal of public confidence in the legal profession. Lawyer was suspended for one year and ordered to return P73,500.00 he received from complainant. 120 5. Complainant consulted Gille regarding a property mortgaged to her. For a fee of P25,000.00, she agreed to engage his services. Subsequently, Gille borrowed from her P300,000.00 offering a title to a property as security. Upon verification, the title was fake and she asked that the amount he borrowed be paid. He issued a check against a closed account. Thus, a criminal case and a disbarment case was filed against him. Given the gravity of his offense, Gille was disbarred. 121 2. The relatio.n of attorney and client is highly fiduciary in nature and demands of an attorney of an uridivided allegiance, a conspicuous and high degree of good faith, disinterestedness, candor, fairness, loyalty, fide'lity and absolute integrity in all his dealings and transactions with his clients and an utter renunciation of every personal advantage conflicting in any way, directly or indirectly, with tbe. interest of his client. 118 6. Complainant alleged that Rivera defrauded the company of P14,358,477.15. As counsel of the company, he was allowed to draw out cash advances to attend to the civil cases of the company. It was established that he pocketed the money under the pretext that he spent them for filing fees and other related expenses. He was disbarred by the Court for violation of his fiduciary duty. 122 3. A lawyer's act of collecting unreasonable fees may amount to a retention of his client's funds and constitute professional indiscretion or misconduct. 119 It is the duty of an attorney to "maintain inviolate the confidence, and at every peril to himself, to preserve the secret of his client."' 23 4. When a lawyer takes a client's cause, he covenants that he will exercise due diligence in protecting the latter's rights. Failure to exercise that degree of vigilance and attention expected of a good father of a family makes the lawyer unworthy of the trust reposed on him by his client and makes him answerable not just to client but also to the legal profession, the court and society. Money entrusted to a lawyer for a specific purpose·such as for the filing and processing of a case if not utilized; must be returned immediately upon demand. Failure to return gives rise to a presumption that he has misappropriated it in violation of the trust reposed on him. And the conversion of funds entrusted to him 116 Spouses Concepcion v. Atty. Dela Rosa, A.C. No. 10681, 3 February 2015. Hilado, Supra, Note 84. 118 Daroy v. Legaspi, A.C. No. 936, 25 July 1975. 119 /n re: Tuazon, A.C. No. 396, 31 July 1964. 117 Canon 21: Preservation of Client's Confidences Rule 21.01 - shall not reveal the confidences or secrets of his client except: (a) When authorized by the client after acquainting him of the consequences of the disclosure; (lb) When required by law; (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action. 12°15uzette def Mundo v. Atty. Amel C Capistrano, A.C. No. 6903, April 16, 2012, Perlas Bernabe, J.] 121Micbe1le A. Buenavemura v. Atty. Dany B. Gille, A.C. No. 7446. December 9, 2020, Per Curiam: 122Professional Services, inc. v. Atty. Socrates R. Rivera, A.C. No. 11241. November 3, 2020, Per Curiam: 123sec. 20(e), Rule 138, ROC. 474 PRIMERIN LEGALAND JUDICIAL ETHICS THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV Rule 21.02 - shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto. with dedication and care, and i='he should do no less, then he is not true to his lawyer's oath. 124 Canon 18: Duty to Serve his Client with Competence and Diligence Rule 21.03 - shall not, without the written consent of his client, give information from his files to an outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any similar purpose. Rule 21.04 - may disclose the affairs of a client of the firm to partners or associates thereofunless prohibited by the client. Rule 21.05 - lawyer shall adopt such measures as may be required to prevent those whose services are.utilized by him, from disclosing or using confidences. or secrets of the clients. Rule 21.06 - shall avoid indiscreet conversation about a.dient's affairs even with members of his family: Rule 21.07 - shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interest. Reminder: A lawyer should not allow his client to perpetuate fraud. However, the lawyer shall not volunteer the information about the client's commission of the fraud to anyone for that will run counter to his duty to maintain at all times the client's confidences and secrets. Canon 17: Fidelity to Client and the Client's Cause When he undertakes his client's cause, he made a covenant that he will exert all efforts for its prosecution until its final conclusion. He should undertake the task 475 Rule 18.01 - shall not undertake a legal service which he knows or should know that he is not qualified to render. - may engage collaborating counsel with consent of client. Rule 18.02 - shall not handle any legal matter without adequate preparation. Rule_18.03 - shall not neglect a legal matter entrusted to him. • Reminder: Negligence of counsel binds the clients but may recover damages from counsel. 125 Rule 18.04 - shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information. The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the; end that nothing be taken or be withheld from him, save by the rules of law, legally applied. 126 Doctrinal Ruling: 1. The attorney's duty to safeguard the client's interest commences from his retainer until his effect;ive release from the case or the final disposition of the whole subject matter of the litigation.127 2. It is a well-established rule that the acts of the counsel bind the client. However,. as dispensers of justice, the Court is inclined :not to allow the inadvertence of incompetence, of any counsel to result in the outright deprivation of an appellant's right to life, liberty and property. The people whose futures hang in a balancesh::mld not 124PANELCOIv. Atty. Montemayor, A.C.. No, 5739, 12 September 2007. v. Mendoza, G.R. No. L-2820, 21 June 1951. 126 Canon 19, CPR. 127Wack Wack Golf and Country Club v. Court of Appeals, G.R. No. L~11724, 23 125 lsaac November 1959. 476 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV be left to suffer from the incompetence, mindlessness or lack of professionalism of any member of the Law Profession. 128 3. In 2005, the Court found respondent guilty of violating the lawyer's oath, as well as Rule 1.01, 3.01 and 15,.03 of the Code of Professional Responsibility, resulting in his disbarment from the practice of law. He was also guilty of representing conflicting interests. Despite his severance from service as a judge, he continued the use of ''Judge" in his pleadings, communications and his calling card. The Court denied his plea for reinstatement. 129 4. Applying the doctrine of res ipsa loquitur, the Court concluded that respondent committed a·n infringement of ethical standards. The act of receiving money as acceptance fee for legal services in handling a case and subsequently failing to render such service is a dear violation of Canons 17 and 18 of the Code of Professional Responsibility. The acts of inexcusable negligence in legal matters entrusted to him and disloyalty to his client constitute major breaches of respondents oath as a. lawyer. These acts that are inimical to his client's interests render respondent liable. He was suspended for six months. 130 PRIMERIN LEG~ AND JUDICIAL ETHICS Canon 19: Representation within bounds of law Rule 19.01 - shall employ only fair and honest means to attain the lawful objectives of his client and shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an improper advantage in any case or proceeding. Rule.19.02 - shall promptly call upon the dienc to rectify any fraud he commits, and failing which he shall terminate the relationship with such client in accordance with the Rules of Court. Rule 19.03 - shall not allow his client to dicta~e the procedure in handling the case. Rule 20.01 - A lawyer shall be guided by the following factors in determining his fees: 5. The Court found Lorica in breach of his duty under the Lawyer's Oath not to delay any manfor moneyormalice. He was also found to.have violated Canons 17, 18 and 22 of the Code of Professional Responsibility. He failed to promptly inform his clients of the adverse decision of the C.A. He asked for.P25,000.00 to file the Motion for Reconsideration which the complainant did not have at that time and he failed to turnover all documents upon t~rmination of his services. He was suspended for one year.' 3' (a) The time spent and the extent of the service rendered or required; · 6. The Court suspended Atty. Tugade for six months for his failure to file the appellant brief of Cayetano Rabanal in a homicide case in Tuguegarao, Cagayan despite receipt of funds from the Spouses Rabanal. It said that the absence of a contract does not excuse the lawyer from his professional duty. 132 (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; 128 Diaz v. People, G.R. No. 180677, 18 February 2013. 129 San Jose Homeowners Association ·Inc., as represented by Rebecca v. Labrador v. Airy. Roberto B. Romamllos, A.C. No. 5580, July 31, 2018, Per Curiam: 130 Emiliano Court Townhouses Homeowners Association v. Airy. Michael Di.oneda, A. C. No. 5162. March 20, 2003, Bellosillo, j. 131 Lorna L Ocampo v. Atry. Jose Q. Lorica Iv, A.C. No. 12790. September 23, 2020, Inting, J 132 Rabanal v. Atry. Faustino Tugade, A.C. No. 1372. June 27, 2002 Mendoza, J. 477 (b) The novelty and difficulty of the questions involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. 478 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS 479 Volume IV Canon 20 - A Lawyer shall Charge only Fair and Reasonable Fees Rule 20.3 - shall not, without the full knowledge and consent of the client, accept any fee, reward, costs, commission, interest, rebate or forwarding allowance or other compensation whatsoever related to his professional employment from anyone .other than the client. Rule 20.4 - shall avoid:controversies with clients concerning his compensation and shall resort to judicial action only to prevent impositi9n,. ~jvstice. cir fraud. In its ordinaryconcept, an attorney's fee is a reasonable compensation paid to a lawyer by his client for the legal services the former has rendered to the latter. 133 Acceptance Fees Acceptance of an initial fee or during the progress of the litigation does not detract from the contingent nature of the fees, as long as the bulk thereof is made dependent upon the successful outcome of the action. 136 Rule 20.2 - shall, in case of referral, with the consent of the client, be entitled to a division of fees in proportion to the work performed and responsibility assumed. In its' extraordinacy ~oncept, attoriiey's fees are deemed indemnity for damages ordered by th~ 'coutt td be paid by the losing party in li~ga~on. -They are payable ncit to the lawyer but to the client, unless ,they have agreed thafthe iward shall ·pertain to the lawyer as:an additional compensation or ;as part· thereof. 134 Contingent Fees Contractfor contingent fees is an agreement in writing by which the fees, usually a fixed percentage of what may be recovered in the action, are made to depend upon the success in the effort to enforce or defend a supposed right. Contingent fees depend upon an express contract. 137 Quantum mernit Quantum meruit literally means as much as he deserves - is used as basis for determining an attorney's professional fees in the absence of an express agreement. The recovery of attorney's fees. on the basis of quantum mentit is a device that prevents an unscrupulous client from running away with the fruits of the legal services of counsel without paying for it and also avoids unjust enrichment on .the part of the attorney himself. 138 Retainer Fee A monthly retainer fee is a fixed amount for any legal work performed on a regular basis. In a retainer agreement with a company, the scope of services covers drafting minutes of board meetings and board resolutions, secretary's certifications, notarial services and other similar routine documents. An acceptance fee is not a contingent fee, but is an absolute Jee arrangement which·entitles a l~wyer·to get paid for his efforts regardless of the outcome of the litigation. 135 136 133Ortiz 134/d. 13 Francisco v. Matias, G.R. No. L-16349, 31 January 1964. National Power Corporation v. Heirs of Sangkay, G.R. No. 165828, 24 August 137 v. San Miguel Corporation, G.R. No. 151983-84, 31 July 2008. 5Yu v. Bonda!, A.C. No. 5534, 17 January 2005. 2011. 138Supra. \ 480 481 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN Nature of lien: can be paid only in kind may be paid in cash or a portion of a property A lawyer makes an Counsel does not undertake to bear all the expenses of litigation and if he advances costs of litigation, a provision for reimbursement by the client is made. undertaking that he will conduct litigation on his own account, to pay expenses thereof and to receive as his fee a portion of the proceeds of a judgment. Requisites for Valid Claim: (1) There must be an attorneyclient relationship; (2) The attorney has rendered services; (3) A money- judgment favorable to the client has been secured in the action; (2) shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court. (1) Existence of lawyer-client relationship; (2) Lawful possession of the client's funds, documents and papers; and (3) Unsatisfied claim for attorney's fees. (4) The attorney has a daim for attorney's fees or advances; and A statement of his claim has been duly recorded in the case with notice thereof served upon the client and the adverse party. 139 139 Metropolitan Bank and Trust Co. v. Court of Appeals, G.R. Nos. 86100-03, 23 January 1990. (1) lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client; and (1) a right merely to retain the funds, documents and papers as against the client until the attorney is fully paid his fees; (2) only a passive right and cannot be actively enforced. Doctrinal riillng: 1. The lien shall attach to the proceeds of the judgment and the client who receives the same, without paying his attorney who was responstble for its recovery, shall hold said proceeds .in trust for his lawyer to the extent of the value of the lawyer's. recorded lien. 140 1 2. The right to a retaining fee amounts to a mere right to retain the documents and papers as against the client, until ·the attorney is fully paid, the exception being that funds of the client in the attorney's possession may be appliedto the satisfaction of his fees. 141 3. The lawyer's position is similar to that of a creditor, who holds an attachment lien over the property, and the client-debtor must discharge the lien over the property, and the client-debtor must discharge the lien before he can dispose of the property :o third persons. 142 '®National Power Corporation Drivers and Mechanics Association v. National Power Corporation, G.R. No. 156208, 21 November 2017. 141Ampil v. Juliano-Agrava, G.R. No. L-27394, 31 July 1970. 142Rustia v. Abeto, G.R. No. L-47914, 30 April 1941. 482 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume rv PRIMER IN LEGALAND JUDICIAL ETHICS 4. The lawyer need not file an action in court to enforce his retaining lien and recover his fees and disbursements if what he retains in the exercise of his lien. 143 5. The Court dismissed the complaint against the lawyers. Complainant Gow sought the disbarment of the respondents for failure to account the Pl,950,000.00 they received from the Uniwide Group of Companies. The complainant failed to substantiate the allegation. The Court said that it cannot rely solely on the personal note of the complainant that he personally handed P3M to the respondents. 144 6. The Court said that although the practice of law is not a business, an attorney is entitled to be properly compensated for the professional services rendered for the client, who is bound by her express agreement to duly compensate the attorney. The client may not deny her attorney such just compensation. The Court allowed counsel to intervene to recover the professional fees of the firm to be included in the compromise agreement she signed without her counsel's knowledge. 145 7. The Court found untenable respondent's claim that since complainant was already in arrears with his fees, it was proper for him to apply the filing fees to his attorney's fees. It has been held that an attorney's lien is not an excuse for a lawyer's non-rendition of accounting. And while a lawyer is allowed to apply so much of the client's funds as may be necessary to satisfy his lawful fees and disbursements, the lawyer is however under the-obligation to promptly thereafter notify his client. Nothing on record supports respondent's claim that complainant was adequately notified as to the application of the Pl0,000 (for the filing fees) to her arrears. He was suspended for six months and directed to return the amount he received from Garcia. 146 8. Complainant engaged the services· of Calvadores to prosecute the civil aspect of the vehicular accident which resulted to the death of her son. Despite receipt of the agreed professional t t ft 1.1;;° t I .i I ~ t ~ I 483 fees, the lawyer failed to institute an action in court. The breach of respondent's sworn duty as a lawyer and of the ethical standards he was strictly to honor and observe was sufficiently established. The Court suspended him for six months. 147 9. The Court found the respondent dishonest in the performance of her duties to and dealings with her client: She claimed she took care of her client's case when, in truth; she never acted on it. Worse, she deceived her client by informing her the annulment case was already granted by handing him a fabricated copy of the decision and the Certificate of Finality. She was ordered disbarred and directed to return P270,000.00 she received from 148 Manalang at an interest rate of 6% per ailllum ui:tii, fully J.:>,aid. Yi Controversies with dients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his selfrespect and with his right to receive reasonable recoinpensefor his service; and lawsuits with the clients should be resorted to only to · prevent injustice, imposition or fraud. 149 When proper, the lawyer can pursue judicial actions tn protect or collect attorney's fees due him. He has two options: a. in th~ same case, he may enforce his attorney's fees by filing an appropriate motion or petition; 150 b. in a separate and independent civil action. 151 I (1) Pursues an illegal (i) ·Inability to woi:k withccic-Coub.Sel or immoral course of will not promote the best interest of the conduct in connection client; with the matter the lawyer is handling; 143 De Jesus-Alano v. Tan, G.R. No. L-9473, 28 November 1959. :fimmy N. Gow v. Attys. Gertrudo A. De Leon and FeUx B. Desiderlo,Jr No. 12713. September 23, 2020, Hernando, J. 14 145 Czarina Malvar v. Kraft Foods Philippines, 2013, Bersamin,]. 146 Maritess DavideJr., CJ. Garcia v. Atty. lluminado Manuel, ., A.C. G.R No. 183952, September 9, A.C. No. 5811, Jam1ary 20, 2003 147 Sencio v. Calvadores, A. C. No. 5841. January 20, 2003, Davide, C.J. Eduardo B. Manalang v. Atty. Cristina Benosa Buendia, A.C. No. 12079. November 10, 2020, Per Curiam 149 Rule 20.04, Canon 20, CPR. 150 Lichauco v. Court of Appeals, G.R. No. L-23842, 13 March 1975. 151 NWSA v. NWSA Consolidated Union, G.R. No. L-18939, 31 August 1964. 148 484 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 485 Volume IV (2) Insists that the lawyer pursue conduct violative of these canons and rules; (2) The mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively; (3) Deliberately fails to pay the fees for the services or fails to comply with the retainer agreement; and (3) Is elected or appointed to public office; and ( 4) Other similar cases. Cb) to simplify, clarify, and modernize the rules governing notaries public; and (c) to foster ethical conduct among notaries public. Qualifications (4) Other similar cases. (2) must be over twenty-one (21) years of age; (3) must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; Doctrinal Ruling: 1. A lawyer who desires to retire from an action without the written consent of his client must file a petition for withdrawal in court. 152 (4) must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and 2. A lawyer must serve a copy of his petition upon his client and the adverse ·party at least three days before the date set for hearing, otherwise the court may treat the application as a 'mere scrap of paper.' 153 his 3. A lawyer should moreover present petition well iri advance of the trial of the action to enable the client to secure the services of another lawyer. 154 4. If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial or that work prejudice to the client's cause, the court may deny his application and require him to. conduct the trial.155 Rules on Notarial Practice of 2004, A.M. No. 02-8-13-SC 152 Purposes (a) to promote, serve, and protect public interest; In re: Montagne and Dominguez, G.R. No. 1107, 2 April 1904. Visitacion v. Manit, G.R. No. L-27231, 28 March 1969. 154 Finch v. Wallberg Dredging Co., 281 P2d 136, 48 ALR2d 1150, 153 1ssld. (1) must be a citizen of the Philippines; (5) must not have been convicted in the fi.rst instance of any crime involving moral turpitude. Filing of Petition RTC Executive Judge within the territorial jurisdiction where lawyer holds his office. Publication of Petition Publication in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted. in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. The cost of the publication shall be borne by the petitioner. The notice may include more than one petitioner. I l 486 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS Volume IV ' PRIMER IN LEGAL AND JUDICIAL ETHICS 487 P.l ,j: Hearing Jurisdiction and Term Renewal of Commission. Purpose ofNotarial Register: The maintenance of only one active bound Notarial Register available for inspection will allow the lawyer to record all notarial deeds he signed during the validity of his commission. The Executive Judge shall conduct a summary hearing on the petition and shall grant the same if: Supreme Court and in applicable laws. (a) the petition is sufficient in form and substance; Entries in the Notarial Register (b) the petitioner proves the allegations contained in the petition; and (1) the entry number and page number; (c) the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood the 2004 •Notarial Rules. (2) the date and time of day of the notarial act; A.notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year and shall expire on 31 December, A fraction of a year is considered a term of one year. Renewal of notarial.commission must be made within forty-five ( 45) days before the expiration thereof. .Definition: The notarial form used for any notarial instrument or document shall conform to all the requisites prescribed herein, the Rules of Court and all other provisions of issuances by the (3) the type of notarial act; (4) the title or description of the instrument, document or proceeding; (5) the name and address of each principal; (6) the competent evidence of identity as defined by these Rules if the signatory is not personally known to the notary; (7) the name and address of each credible witness sweating to or affirming the person's identity; (8) the fee charged for the notarial act; (9) the address where the notarization was performed if not in the notary's regular place of work or business; and Exclusive Notarial Seal: Notarial seal must be exclusively procured by the Notary Public, bearing his name, his roll number and his territorial jurisdiction. Contents of the Concluding Part of the Notarial Certificate: The notarial certificate shall include the following: (a) the name of the notary public as exactly indicated in the commission; Cb) the serial number of the commission of the notary public; (c) the words "Notary Public" and the province or.city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public;and (d) the roll of attorney's number, the professional tax receipt number and the place and date of issuance thereof, the IBP I,- 488 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN iit ,, PRIMER IN LEGAL AND JUDICIAL ETHICS 489 ~ JI (10) any other circumstance the notary public may deem of significance or relevance. Submission of Monthly Report: Submit to the Clerk of Court within the first ten (10) days of the month. Even no entries were made, lawyer must make a certification. Loss, Destruction or Damage of Notarial Register. Lawyer must report to law enforcement agency if the notarial register is stolen or vandalized. After 10 days, he must notify the Executive Judge of the fact together with the police report. The lawyer must also report the loss, destruction or damage of the Notarial Register. Delivery of Notarial Register: Upon revocation or expiration of a notarial commission, or death of the notary public, the Notarial Register and all notarial records must be delivered to the Executive Judge. membership number and the updated MCLE Compliance Certificate. An act in which an individual on a single occasion: (a) appears in person before the notary public and presents an integrally complete instrument or document; (b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. 156 1 An act in which an individual on a single oq:asion: An act in which (a) appears in person before the notary public and presents an instrument or document; (a) appears in person. before the notary public; (b) is personally known to the notary public or identified by the notary. public through competent evidence of identity as defined by these Rules; and (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. 157 56sec. 1, Rule II, Rules of Notarial Practice (RNP). Sec. 6, Rule II, RNP. 1 58Sec.2, Rule II, RNP. 157 an individual on a single occasion: (c) avows under penalty of law to the whole truth of the contents of the instrument or document. 158 490 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV Notarial Powers I Certifying the affixing of a signature by thumb or other mark (1) acknowledgments; (2) oaths and affirmations; (3) jurats; (4) signature witnessing; (5) copy certifications; and (6) any other act authorized by these Rules. (1) the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; (2) both witnesses sign their own names in addition to the thumb or other mark; (3) the notary public writes below the thumb or other mark: "Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public"; and Signing on beha]f of Affiant who is physically unable to sign or make a mark on an instrument (1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf; (2) the signature of the notary public is affixed in the presence of two disinterested and unaffected Witnesses to the instrument or document; (3) both witnesses sign their own names; (4) the notary public writes below his signature: "Signature affixed by notary in presence of (names and addresses of person and two [Z1witnesses)"; and PRIMER IN LEGAL AND JUDICIAL ETHICS ( 4) the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing. 491 (5) the notary public notarizes his signature by acknowledgment or jurat. Copy Certification - A notarial act in which a notary public (a) is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; Cb) copies or supervises the copying of the instrument or document; (c) compares the instrument or document with the copy; and (d) determines that the copy is accurate and complete. Signature Witnessing - A notarial act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or.identified by the notary public through competent evidence of identity as defined by these Rules; and (c) signs the instrument or document in the presence of the notary public. Prohibitions - General Rule: A notary pubHc shall not perform a notarial act outside his regular place of work or business. Exceptions when a lawyer may perform notarial a!'.15outside his office but within the territorial· jurisdiction of his commission: (1) public offices, convention halls, and similar places where oaths of office may be administered; (2) public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; 492 THE PRE-WEEK REVIEWER FORJITIERY Volume IV (3) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and ( 4) any place where a party to an instrument or document requiring notarization is under detention. A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notary's presence personally at the time of the notarization; and (2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules. Disqualifications notarial act if he: PRIMER IN LEGAL AND JUDICIAL ETHICS BAR TAKERS - A notary public is disqualified from performing a (1) is a party to the instrument or document that is to be notarized; (2) will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by the 2004 Notarial Rules and by law; or (3) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. - A notary public shall not perform any notarial act described in the 2004 Notarial Rules for any person requesting such an act even if he tenders the appropriate fee specified by the Rules if: (a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral; (b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and (c) in the notary's judgment, the signatory is not acting of his or her own free will. 493 On February 19, 2008, the Supreme Court amended Rule II, Section 12(a) of the Rules and enumerated the acceptable competent evidence of identity: 1. Passport 2. Driver's license 3. Professional Regulation Commission ID 4. National Bureau of Investigation clearance 5. Police clearance 6. Postal ID 7. Voter's ID 8. Barangay certification 9. Government Service and Insurance System (GSIS) e-card 10. Social Security System (SSS) card 11. PhilHealth card 12. Senior Citizen card 13. Overseas Workers Welfare Administration (OWWA) ID, 14. OFW ID, Seaman's book 15. Alien Certificate of Registration/Immigrant Certificate of Registration 16. Government Office ID 17. Certification from the National Council for the Welfare of Disabled Persons (NCWDP) 18. Department of Social Welfare and Development (DSWD) certification Im.position and Waiver of Fees - A notary public may charge the maximum fee as prescribed by the Supreme Court unless he waives the fee in whole or in part. Travel Fees and Expenses - Notary public may charge travel fees and expenses separate and apart from the notarial fees traveling to 494 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N PRIMER IN LEGAL AND JUDICIAL ETHICS 495 perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel. (7) fails to require the presence of a principal at the time of the notarial act; Prohibited Fees - No fee or compensation of any kind, except those expressly pres'cribed and allowed under the Rules, shall be collected or received for any notarial service. Any travel fees and expenses paid to a notary public prior to the performance of a notarial act are not subject to refund if the notary public had already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part. (8) fails to identify a principal on the basis of personal knowledge or competent evidence; (9) .executes a false or incomplete certificate under Section 5, Rule IV; (10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and Payment or Refund of Fees - Fees cannot be collected prior to the performance of a notarial act unless otherwise agreed upon. (11) comrpits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction. Notice of Fees - A notary public shall issue a receipt registered with the Bureau of Internal Revenue and keep a journal of notarial fees. A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees. Denial of Petition Grounds for Administrative Sanctions: Revocation of commission or impose appropriate administrative sanctions may be imposed upon any notary public who: The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied. Publication of Revocations and Administrative Sanctions The names of notaries public who have been administratively sanctioned or whose notarial commissions have been revoked shall be posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. Punishable Acts The Executive Judge shall cause the prosecution of any person who: (1) fails to keep a notarial register; (2) fails to make the proper entry or entries in his notarial register concerning his notarial acts; (3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month follo:wing; (a) knowingly acts or otherwise impersona,tes a notary puqlic; (4) fails to affix to acknowledgments the date of expiration of his commission; (b) knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records· of a notary public; and (5) fails to submit his notarial register, when filled, to the Executive Judge; (c) knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct. (6) fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; Reminder: A fake Notary Public may be held liable for "Usurpation of Authority," "Estafa," among others, under the Revised Penal Code. 496 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS Volume IV Scope 1. Disbarment proceedings are undertaken solely for public welfare. The sole question for determination is whether a member of the bar is fit to be allowed the privilege as such or not. For this reason, laws dealing with double jeopardy or prescription or with procedure-like verification of pleadings and prejudicial questions have no application to disbursement proceedings. ' 59 Localities Where the Rules Apply Until the Supreme Court directs otherwise, these Rules shall apply to permit the performance of notarial acts through the use of video conferencing facilities in cases where the notary public or at least one of the principals resides, holds office, or is otherwise situated in a locality that is under community quarantine due to COVID-19, as directed by the lnter~Agency Task Force for the Management of Emerging and Infectious Diseases (IATF), the provincial governors with regard to component cities and municipalities, or mayors of cities and municipalities with regard to barangays, both governors and mayors having the concurrence of the relevant regional counterpart body of the IATF. Notarial Commission A notary public with a valid and existing notarial commission issued under the 2004 Rules on Notarial Practice can perform the notarial acts authorized by these Rules. Legal Effect and Enforceability Any notarial act performed through the use of videoconferencing facilities pursuant to these Rules shall have the same validity, force, effect and may be relied upon the same extent as any other notarial act performed under the 2004 Rules on Notarial Practice. 3. The complainant in a disbarment case is not a direct party to the case, but a witness who brought the matter to the attention of the Court. There is neither a plaintiff nor a prosecutor in disciplinary proceedings against lawyers: Public interest is the primary objective of any disbarment case. 161 A.M. NO. 20-07-04-SC 2020 INTERIM RULES ON REMOTE NOTARIZATION. OF PAPER DOCUMENTS Rule I: General Provisions Title These rules shall be known as the 2020 Rules on Remote Notarization of Paper Documents and may be referred to as the "RON Rules" (the "Rules"). These Rules shall be limited to the notarization of paper documents and instruments with handwritten signatures or marks through the use of videoconferencing facilities as defined herein. These Rules shall not apply to the execution of notarial wills. 2. Disciplinary action against lawyers is intended to preserve the nobility and honor of the legal profession. While the Supreme Court has the plenary power to discipline erring lawyers through this kind of proceedings, it does so in the most vigilant manner so as not to frustrate its preservative principle. 160 4. The complainants' forgiveness or even withdrawal from the case does not ipsofacto obliterate the misconduct committed by the lawyer. Thus, once filed, a disbarment case is not subject to dismissal by the unilateral will of the complainant; Every case is clothed with public interest. 162 • 497 Definition of Terms a) 2004 Rules on Notarial Practice refer to the 2004 Rules on Notarial Practice, hereinafter referred to as the "2004 Notarial Rules"; 15 9Pimentel, Jr. v. Llorente, A.C. No. 4680, 29 August 2000. Feliciano v. Atty. Bautista-Lozada, A.C. Noc 7593, 11 March 2015. 161 Quiachon v. Atty. Ramos, A.C. No. 9317, 4 June 2014. 162 Spouses Amatorio v. Atty. Yap, A.C. No. 5914, 11 March 2015. 160 b) Competent Evidence of Identity refers to the identification of an individual based on: i. at least one current identification document (ID) issued by an official government agency bearing the photograph and 498 THE PRE-WEEK REVIEWER FORJIITERY PRIMER IN LEGAL AND JUDICIAL E'IHICS BAR TAKERS 499 Volume IV signature of the individual, such as the following: passport, driver's license, Professional Regulations Commission (PRC), Integrated Bar of the Philippines (IBP) ID, National Bureau of Investigation (NBI) clearance, police clearance, postal ID, voter's ID, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, PhilHealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, Overseas Filipino Worker (OFW) ID, seaman's book, alien certificate of registration/immigration certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification, Tax Identification Number (TIN) ID, and Unified Multi-Purpose ID (UMID) Card; or ii. the oath or affirmation of one (1) credible witness not privy to the instrument, document, cir transaction who is personally known to the notary public and who personally knows the individual, or of two (2) credible witnesses not privy to the instrument, document or transaction who personally know the individual being identified, and who. show to the notary public any of the IDs enumerated in the immediately preceding paragraph. c) Courier Seivice refers to on-demand express delivery services (such as, but not limited to, Lalamove, GrabExpress, and Transportify), as well as door-to-door express delivery services (such as, but not limited to, LBC,JRS, DHL Express, FedEx, and 2go) including those services offered by private express and/or messengerial delivery service (PEMEDES)·or courier service providers authorized by. the Department of Information and Communications Technology (DICT), provided they are equipped with shipment tracking facilities which enable users to track the movement of shipments in real time. d) Geolocation refers to the geographical location of a computer, networking device, or equipment determined on the basis of geographical coordinates and measurements. e) Locality refers to a barangay, municipality, city, province, or country. f) "Personal appearance," "appears in.person," or "in the presence of the notary public" means that the principal, witnesses, and the notary public can see, hear, and communicate with each other, and present and confirm competent evidence, of identity to each other in real time through the use of videoconferencing facilities and other devices or technologies that achieve the same purposes. g) Principal refers to the person appearing before the notary public whose act is the subject of notarization under these Rules including the person requesting copy certification by videoconference. · h) Quarantine refers to the restriction of movement of persons within, into, and out of a locality under quarantine designed to reduce the likelihood of transmission of COVID-19 among persons in and to persons outside the affected area as declared by the IATF,the provincial governors with regard component cities and municipalities, or mayors of cities arid munidpalities with regard to barangays, both governors and mayors having the cortcurrencf': of the relevant regional counterpart body of the IATF,. The term "Quarantine" may refer to General Community Quarantine (GCQ), Modified General Community Quarantine (MGCQ), Enhanced Community Quarantine (ECQ), and Modified Enhanced Ccimmtinity Quarantine (MECQ) as defined by the proper authorities referred to herein. i) Videoconferencing facilities refers to any tool, device, system, application, and technology that has sufficient· interactive audio-video capabilities that allow all the parties. physically located in different locations to see, hear and communicate with, and present and confirm competent evidence of identity to each other in real time. These facilities include Webex, Zoom, Google Meet, Microsoft Teams, and other similar web conferencing pl~tforms. Suppletory Application of the 2004 Notarial Rules Rule In the absence of any applicable provision in these Rules, the pertinent provisions of the 2004 Notarial Rules may be applied by analogy or in suppletory manner. Rule II: Acknowledgment Acknowledge- The principal shall ment by Video- cause the delivery conference of the instrument or document requiring acknowledgment .to the notary public by personal or courier Rule III: Oath, Affirmation· Rule m: Jurat by Videoconference The.principal Jurat may be also shall cause the accomplished iielivery ofthe in the same manner provided instrument or document tb the in Section 1, Rule III of these notary public through personal Rules. 500 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN service. The instrument or document must be integrally complete, bear the handwritten signature of.the· . principal, and be placed in an envelope sealed with the initials of the principal. In cases where the principal chooses to cause the delivery of the sealed envelope through courier · service, he ot she shall be required to furnish the notary public with the details necessary to track its delivery once these details become available. Competent Proof of Identity of Principal and Witnesses PRIMER IN LEGAL AND JUDICIAL ETHICS or courier service. The instrument or document shall be placed in an envelope which shall be sealed with the initials of the principal. In cases where the principal chooses to cause the delivery of the sealed envelope through courier service, he or she shall be required to furnish the notary public with the details necessary to track its delivery once these details become available. If the principal is not personally personally ~own to the notary public, known to the notary public, he or she shall be · he or she shall required to provide also be r~quired the notary public, to provide the by personal or notary public courier service, two (2) copies of any by perso~l or courier service, competent evidence of identity as defined two (2) copies of any competent herein. If the evidence of principal is signing identity as in a particular defined herein, representative which shall capacity, he or she be placed shall be required to deliver to the notary together with the instrument or public, by personal If the principal is not ' or courier service, two (2) certified copies of the document granting his or her authority to sign in such capacity as well as two (2) copies of any competent evidence of identity of the party granting such authority. If the party granting the principal's authority to sign is a corporation, the principal shall also proVide two (2) copies of any competent evidence of identity of the corporate secretary certifying the principal's authority or two (2) duplicate originals or certified copies of the Board Resolution granting the principal's authority. The principal shall be required to exhibit the notary public the original evidence of his or her identity and the original document granting his or her authority to sign during the videoconference for examination and comparison with the copies so provided. Whenever applicable, the copies of the document in the sealed envelope referred to in paragraph (a) above. The principal shall be required to exhibit the original evidence of identity to the notary public during the videoconference for examination and comparison with the copies so provided. 501 502 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FORJITIBRY BAR TAKERS VolumeN Schedule of Video competent evidence of identity required herein and/or the copies of the document granting the principal's authority to sign shall be placed together with the instrument or document in the sealed envelope referred to in paragraph (a) above. Proof of Actual Signing The principal shall also submit to the notary public a video clip showing that he or she actually signed · the instrument or document delivered for acknowledgment. The principal may choose to submit this video clip to the notary public by storing it in a compact disc (CD) or Universal Serial Bus (USB) which shall be placed in the sealed envelope referred to in paragraph (a) above, or by sending the video clip by e-mail or any other means of digital communication. Procedural Requirements Actual Video Conferencing I. The principal shall also submit to. the notary public a video clip showing that he. or she actually signed the instruµient or document delivered for affirmation .or oat:h. The principal ni:!-Y choose to submit this video clip to the notary public by storing it in a CD or, USB which shall ,be placed in the sealed envelope referred tompanigraph (a) above, _or. by sending .the video clip by e-mail or any other means of digital communication. 0 ~ Upon receipt of the sealed envelope referred to in paragraph (a) above and video clip referred to in paragraph (c) above, the notary public shall schedule a videoconference with the principal during which the notary public shall: Upon receipt of the sealed envelope referred to in paragraph (a) above and the video clip referred to in paragraph (c) above, the notary public shall schedule a vicleoconference with the principal during which the notary public shall: i. require the principal to confirm his or her identity; i. require the principal to confirm his or her identity; ii. require the principal to confirm his or her location to the satisfaction of the notary public by showing his or her geolocation through an application with global positioning satellite (GPS) capabilities or by showing the notary public identifiable landmarks or buildings within the vicinity; ii. require the principal to confirm his or her location to the satisfaction of the notary public by showing his or her geolocation through an application with GPS capabilities or by showing the notary public identifiable landmarks or buildings within the vicinity; iii. open the sealed envelope wherein the instrument or document is placed within full view of the principal and require iii. open the sealed envelope wherein the instrument or document is placed within full view of the 503 504 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV him or her to confirm that the instrument or document exhibited to him or her is the very same instrument or document which he or she caused to be delivered to the notary public for acknowledgement; principal and require him or her to confirm that the instrument or document exhibited to him or her is the same instrument or document which he or she caused. to be delivered to the notary public for affirmation or oath; iv. ensure that the instrument or document is kept within the full view _ofthe principal at all times during the video conference; iv. ensure that the instrument or document is kept within the full view of the principal at all times during the videoconference; require the principal to affix his or her handwritten signature on a blank piece of p~per within full view of the notary public for comparison with the signature appearing on the instrument or document; V. vi. require the principal to,confirm that the signature appearing at the end of the instrument or document belongs to him or her and that it was voluntarily affixed for the purposes stated therein; vi. require the principal to affix his or her handwritten signature on a blank piece of paper within full view of the notary public for comparison with the signature V. require the principal to confirm that he or she has read the instrument or document in its entirety' and has understood: all its contents; PRIMER IN LEGAL AND JUDICIAL ETHICS appearing on the instrument or document; vii. review the video clip submitted by the principal to verify that he or she actually signed the instrument or document as represented; and vii. require the principal to confirm that the signature appearing at the end of the instrument oPdocument belongs to him or her and that it wa~ voluntarily affixed for the purpose stated therein; viii. require the principal to declare that he or she has ~xecuted the instrument or documents as his or her free and voluntary act and deed, and if acting in a particular representative capacity, that he or she has authority to sign in that capacity. The notary public shall assess the principal's voluntariness by examining his or her demeanor and immediate surroundings and by asking searching questions. Should there be other persons present ~ the videoconfererice, the notary public viii. review the video clip submitted by the principal to verify that he or she actually signed the instrument or document as represented; and require the principal to avow to the whole truth of the contents of the instrument or document under penalty of law. The notary public shall assess the principafs · voluntariness by examining his or her demeanor and immediate surroundings and by asking searching questions. ix. 505 506 Multiple Principals Notarial Formalities THE PRE-WEEK REVIEWER FORJITIBRY BAR TAKERS Volume N shall require such persons to identify themselves and state the reasons why they are in the immediate vicinity of the principal and if not satisfied with the reasons given, require them to leave the immediate vicinity of the principal for the duration of the videoconference. Should there be other persons present in the videoconference, the notary public shall require such persons to identify themselves and state the reasons why they are in the immediate vicinity of the principal and if not satisfied with the reasons given, require them to leave the immediate vicinity of the principal for the duration of the videoconference. Should there be more than one principal, each shall be present either singly or in group/s during the videoconference and be required to comply and/ or confirm compliance with the requirements and procedure set forth in paragraphs (a), (b), (c), and (d) above. Should there be more than one principal, each shall be present either singly or in group/s during the videoconference and be required to comply and/ or confirm compliance with the requirements and procedure set forth in paragraphs (a), (b), (e), and (d) above. After the matters set forth above are accomplished, the notary public shall complete the After the matters set forth above are accomplished, the notary public PRIMER IN LEGAL ANDJUDICIAL ETHICS Notarial Certificate attached to the instrument or document or appearing below the signature portion thereof, affix his or her signature thereon by hand, and set his or her Official Seal. The Notarial Certificate shall state that the notarial act was done through .the use of videoconferencing facilities in accordance with these Rules. 507 shall complete the.Notarial Certificate attached to the instrument or document or appearing below the signature portion thereof, affix his or her signature thereon by"hand, and set his or her Official Seal. The Notarial Certificate shall state that the 'notarial act was done through the 1 use of video.conferencing facilities•in accordance with these Rules. Rule IV: General Provisions Witnesses · If the instrument or document subject of the notarial act irt Rules II and III bears the s1gmitures of partfos who a.ct~d as witnesses to the executiorl'thereof, the principal shall provide by personal or courier service two (2) . copies of any coiiipetent evidence of identity, as defined herein, of the witnesses not personally known to the notary public. The copies of the witnesses' competent evidence of identity shall also be placed irt the. sealed envelope wherein the instrument or document is placed. In cases where the. principal chooses to cause the delivery of the sealed envelope through courier service, he or she sllall be required to furnish the _notary public with _the details necessary to·track its delivery once these details become available. 508 Presence of Witnesses THE PRE 0 WEEK REVIEWER FORJITfERY Volume IV PRIMER IN LEGAL AND JUDICIAL ETHICS BAR TAKERS The witnesses shall be present during the videoconference to be conducted by the notary public pursuant to Rules 1I and III. During. the videoconference, in addition to the matters set forth in Rule II (in case of acknowledgment) or Rule III (in case of affirmation, oath, or jurat), the notary public shall: RuleV Thumbmark by Principal Instance when thumbmark may be used instead of signature SECTION 1. Thumbmark or Other Mark. Where the principal in notarial acts performed under these Rules affixes his or her thumbmark or other mark in lieu of his handwritten signature, the principal shall be required to affix such mark in the physical presence of two (2) unaffected and disinterested witnesses who shall sign their own names in addition to the principal's thumbmark or other mark. a) reqllire the witnesses to confirm their respective identities by exhibiting to the notary public the originals of their competent evidence of identity; Thereafter, the principal shall cause the delivery of the instrument or document to the notary public by personal or courier service. The instrument or document shall be placed in a sealed envelope, together with the copies of the competent evidence of identity required in Rule II (in case of acknowledgment) or Rule III (in case of affirmation, oath, or jurat), or Rule IV (in cases where the signatures of witnesses appear in the instrument or document). In cases where the principal chooses to cause the delivery of the sealed envelope through courier service, he or she shall·be.required to furnish the notary public with the details necessary to track its delivery once these details become available. b) require the witnesses to confirm their respe~tive locations. to. the satisfaction of the notary public by showing. their geolocation through an application with GPS capabilities or by showing the notary.public identifiable landmarks or buildings within their respective vicinities; c) determine whether the witnesses are in fact disinterested and unaffected parties to the instrument or document by asking searching questions; d) require each witness to confirm that every signature in the instrument oi-document purporting to be that of the said witness belongs to him or her and that it was voluntarily affixed thereon; e) require each witness to declare that he or she personally witnessed the principal signing the instrument or document or affixing his or her thumbmark or other mark thereon freely and voluntarily; and f) review the video clip submitted by the prindpal to verify that the witnesses actually saw the principal sign or affix his or her thumbmark or other mark on the instrument or document as represented. 509 Procedural Requirements SECTION 2. Procedure. - Upon receipt of the instrument or document, the notary public shall schedule a videoconference with the principal and the two (2) unaffected and disinterested witnesses. During the videoconference, in addition to the matters set forth in Rule II (in case of acknowledgment) or Rule III (in case of affirmation, oath, or jurat), the notary public shall: a) require the principal to confirm that he or she affixed his or her thumbmark or other mark on the instrument or document in lieu of a signature; b) require the principal to affix his or her thumbmark or other mark on a piece of 510 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS 511 Volume IV c) paper within full view of the notary public for comparison with the thumbmark or other mark appearing on the instrument or document; h) require each witness to confirm that he or she personally witnessed the principal affixing their thumbmark or other mark thereon freely and voluntarily; and require the principal to confirm that he or she has read the instrument or document if able to do so, or that the instrument or document has been read to him or her in its entirety, and that .he or she has understood its contents by asking searching questions regarding the instrument or document. Should there be other persons present in the videoconference, the notary public shall require such persons to identify themselves and state the reasons why they are in the immediate vicinity of the principal and if not satisfied With the reasons given, require them to leave the immediate vicinity of the principal for the duration of the videoconferei:lce; i) Formalities After the matters set forth above are accomplished, the notary public shall be required to notarize the instrument or document bearing the thumbmark or other, mark of the principal by acknowledgment or jurat through the use of videoconferencing facilities in accordance with these Rules. The notary public shall complete the Notarial Certificate attached to the instrument or document or appearing below the signature portion thereof, affix his or her signature thereon by hand,· and set his or her Official Seal. The Notarial Certificate shall state that the notarial act was done through the use of videoconferencing facilities in accordance with these Rules. RuleV Signature by Notary Public When allowed under Rules II and III SECTION 3. Notary: Public Requested to Sign, Where the principal in notarial acts performed under Rules II and III is unable to affix his or her handwritten signature, thumbmark, or other mark on the instrument or document subject of the notarial act and requests the notary public to sign on his or her behalf, the principal shall place the instrument or document in a sealed envelope together with the copies of the competent evidence of identity required in Rule II (in case of acknowledgment) or Rule III (in case of affirmation, oath, or jurat), and two (2) copies of any competent evidence of identity, as defined herein, of the witnesses chosen by the principal. Thereafter, the principal shall cause the d) require the witnesses to confirm their respective identities by exhibiting to the nptary p1.1blicthe originals of their competent .evidence of identity; e) f) require the witnesses to confirm their respective• locations to the satisfactiqn of the notary public.by showing their geolocation through an. application with GPS capabilities or by showing the·potary public identifiable landmarks or buildings within their respective vicinities; determine whether the witnesses are in fact unaffected and disinterested parties to the instrument or document by asking searching questions; g) require each witness to confirm that every signature in the instrument or document purporting to be that of said witness belongs to him or her and that it was voluntarily affixed thereon; review the video clip submitted by the principal to verify that the witnesses actually saw the principal affix his thumbmark or other mark on the instrument or document as represented. 512 THE PRE-WEEK REVIEWER FORJ!TfERY Volume IV BAR TAKERS delivery of said envelope to the notary public by personal or courier service. In cases where the principal chooses to cause the delivery of the sealed envelope through courier service, he or she shall be required to furnish the notary public with the details necessary to track its delivery once these details become available. Procedural Requirements Upon receipt of the instrument or document, the notary public shall schedule a videoconference with the principal and two (2) unaffected and disinterested witnesses chosen by the latter. During the videoconference, in addition to the matters set forth in Rule II (in case of acknowledgment) or Rule III (in case of affirmation, oath, or jurat), the notary public shall: a) b) c) PRIMER IN LEGAL AND JUDICIAL ETHICS who shall also be within full view of the principal; d) require the witnesses to confirm their respective identities by exhibiting to the notary public the originals of their competent evidence of identity; I I, confirm the principal' s inability to sign or affix his or her thumbmark on the instrument or document and the latter's request to have the notary public sign the instrument or document on his or her behalf; require the principal to confirm that he or she has read the instrument or document if able to do so, or that the instrument or document has been read to him or her in its entirety, and that he or she has understood its contents by asking searching questions regarding the instrument or document. Should there be other persons present in the videoconference, the notary public shall require such persons to identify themselves and state the reasons why they are in the immediate vicinity of the principal and if not satisfied with the reasons given, require them to leave the immediate vicinity of the principal for the duration of the videoconference; sign the instrument or document within full view of the principal and the two (2) unaffected and disinterested witnesses 513 e) require the witnesses to confirm their respective locations to the satisfaction of the notary public by showing their geolocation through an application with GPS capabilities or by showing the notary public identifiable landmarks or buildings within their respective vicinities; f) determine whether the witnesses are in fact unaffected and disinterested parties to the instrument or document by asking searching questions; g) require each witness to declare that he or she personally witnessed the notary public affixing his or her or signature on the instrument or document on behalf of the principal; and h) indicate below the notary public's signature, the following statement: "Signature affixed by notary in the presence of(names and addresses of the principal and two [2] witnesses)." Formalities After the matters set forth above are accomplished, the notary public shall be required to notarize the instrument or document bearing the notary public's signature by - acknowledgment or jurat through the use of videoconferencing facilities in accordance with these Rules. The notary public shall complete the Notarial Certificate attached to the instrument or document or appearing below the signature portion thereof, affix his or her signature thereon by hand, and set his or her Official Seal. The Notarial Certificate shall state that the notarial 514 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV ii. if the instrument or document can be copy-certified, schedule a videoconference with the principal wherein the notary public shall require him or her to confirm that the instrument or document exhibited by the notary public is the same instrument or document which he or she caused to be delivered to the notary public for copy certification; act was done through the use of videoconferencing facilities in accordance with these Rules. Rule VI: Copy Certification Document sent personally to the Notary Public Nature of Document for Certification No vital record, public record or publicly recorded document may be issued a copy certification Procedural Requirements SECTION 1. Copy Certification by Videoconference of Instruments or Documents Delivered by Personal or Courier Service. Where a person requests a notary public to certify a copy of an instrument or document through the use of videoconferencing facilities and said instrument or document is delivered to the notary public by personal or courier service, the following procedure shall be observed: a) b) The principal shall cause the delivery of the instrument or document for copy certification to the notary public by personal or courier service. The instrument or document shall be placed in an envelope which shall be sealed with the initials of the principal. In cases where the principal chooses to cause the delivery of the sealed envelope through courier service, he or she shall be required to furnish the notary public with the details necessary to track its delivery once these details become available. Upon receipt of the instrument or document for copy certification, the notary public shall: i. determine that the instrument or document to be copied is not a vital record, a public record, or publicly recordable. If it is, the notary public shall immediately notify the principal that the instrument or document cannot be copy-certified, and request him or her to cause its retrieval at his or her expense; 515 iii. proceed to make a copy or copies, as required by the principal or supervise the copying of the instrument or document; and iv. compare the instrument or document with the copy or copies made· and ensure that it is or they are accurate and complete. Formalities c) After the matters set forth above are accomplished, the notary public shall complete the Notarial Certificate attached to the instrument or document or printed at the bottom portion of the copy of copies; affix his ot her signature thereon by hand, and set his or her Official Seal. The Notarial Certificate shall state that the notarial act was done through the use of videoconferencing facilities in accordance with these Rules. Rule VI Document scanned and sent to the Notary Public through e-mail Procedure SECTION 2. Copy Certification by Videoconference of Instruments or Documents Sent bv E-Mail. - Where a person requests a notary public to certify a copy of an instrument or document through the use of videoconferencing facilities, and said instrument or document is sent by e-mail, the following procedure shall be observed: .. 516 TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETIIICS Volume IV a) The principal shall take a photograph or scan the instrument or document for copy certification, and subsequently send such photograph or scanned copy to the notary public by e-mail. b) Upon receipt of the e-mail referred to in paragraph (a) above, the notary public shall: i. determine that the instrument or document to be copied is not a vital record, a public record, or publicly recordable. If it is, the notary public shall immediately notify the principal ~that the instrument or document cannot be copy-certified; ii. if the instrument or document can be copy-certified, print out the instrument or document and schedule a videoconference with the principal wherein the notary public shall exhibit the print out to the principal and require him or her to confirm that the instrument or document so exhibited is the same instrument or document senno the notary public for copy certification; iii. proceed to make such number of copies of the instrument or document as required by the principal, or supervise the copying of the instrument or document; and compare the instrument or document sent by the principal with the copy or copies made and ensure that it is, or they are accurate and complete. Formalities c) After the matters set forth above are accomplished, the notary public shall complete the Notarial Certificate attached to the instrument or document or printed at the bottom portion of the copy or copies, affix his or her signature thereon by hand, and set 517 his or her Official Seal. The Notarial Certificate shall state that the no::arial act was done through the use of videoconferencing facilities in accordance with these Rules. Rule VII: Fees for Remote Notarization Notarial Fees for Remote Notarization SECTION 1. Imposition and Waiver of Fees. For performing a notarial act under these Rules, a notary public may charge the maximum fee prescribed by the Supreme Court ur.Jess he or she waives the fee in whole or in part. The fee charged by the notary public may be paid by the principal through electronic remittance or bank transfer or any other means agreed :ipon by the parties. Delivery of Notarized Document SECTION 2. Delivezy. - The principal shall shoulder all expenses in connection with the remote notarization, including expenses for the reproduction of the instrument or document and delivery thereof either by personal or courier service as required in these Ri,les. After any notarial act under these Rules shall have been performed and the corresponding notarial and courier service fees and expenses paid, the principal shall cause the retrieval of the notarized documents from the notary public either personally or by courier service~ Rule VIII: Miscellaneous Items Venue SECTION 1. Place of Remote Notar.2:ation. - All notarial acts under these Rules shall be performed by the notary public within the territorial jurisdiction of the court which issued the notary public's commiss:on. The notary public, as well as the principals and the witnesses, if any, must be located within the territorial jurisdiction of the notary public's commission during the videoconference required in Rules II (in case of acknowledgment), III (in case of affirmation, oath, or jurat), IV (in cases 518 TiiE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV PRIMER IN LEGAL AND JUDICIAL ETIUCS where the signatures of witnesses appear in the instrument or document), and V (in cases where a thumbmark or other mark is affixed in lieu of a signature or when the notary public signs on behalf of the principal) of these Rules. Retention of copies of notarized documents in the Notarial Register SECTION 4. Entry: of Notarial Act. -The notary shall retain two (2) copies of the instrument or document on which he or she performed a notarial act pursuant to these Rules. The notary public shall attach to these copies the competent evidence of identity provided by the parties and the witnesses and the photographs or screenshots required under Section 2, Rule VIII of these Rules. The competent evidence of identity and photographs or screenshots shall be properly marked with the document number and page number of the relevant entry. The first set of copies shall be attached as annexes to the Notarial Register and form part of the entries corresponding to the notarial act to which they pertain. The remaining set shall be kept by the notary public for his or her records. Requisites for Notarial Certificate done through Remote Notarization SECTION 5. Additional Matters in Notarial Certificate. - In addition to the matters set forth in Section 2, Rule VIII of the 2004 Notarial Rules, all Notarial Certificates pertaining to notarial acts performed under these Rules shall include a statement by the notary public that: During the videoconference required in Rule VI (in case of copy certification), the presence of the notary within the territorial jurisdiction of the court which issued his or her notarial commission shall suffice for purposes of compliance with this Section. Proof of Execution . Inclusion of proof of videoconference in Notarial Registex- SECTION 2. Photograghs Qr Screenshots of the Videoconference. - The notary public shall take a photograph or a screenshot of the videoconference clearly showing all parties who participated in the notarial act. In said photograph or screenshot, the notary public must be seen holding the instrument or document to make the first page of the notarized document visible and identifiable as such. The photograph or screenshot must bear a time and date stamp which accurately reflects the time and date when the videoconference Was conducted. A physical copy of this photograph ox-screenshot must be produced and attached to the notarial register in the manner set· forth under Section· 4, Rule VIII of these Rules. The photograph or screenshot shall serve as proof of the personal appearance of the principal/sand/ or witnesses. before the notary public and shall likewise substitute their signatures in the Notarial Register. SECTION 3. Notarial Register. - In additionto the entries required by the 2004 Notarial Rules, the Notarial Register must include an entry indicating · that the notarial act Was performed through videoconference as required by these Rules and specifying the particular videoconferencing facility used by the parties therein. 519 I·. a) the notarial act had been performed by video conference in accordance with these Rules; and b) the notary public, the principal/ s, and the witnesses, if any, were in a locality within the territorial jurisdiction of the court which issued the notary public's commission at the time the notarial act was performed pursuant to Rules II (in case of acknowledgment), III (in case of affirmation, oath, or jurat), N (in cases where the signatures of witnesses appear in the instrument or document), and V (in cases where a thumbmark or other mark is affixed in lieu of a signature or when the notary public signs on behalf of the principal) of these Rules. When the notarial act is performed pursuant to 520 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Rule VI (in case of copy certification), a statement that the notary public was within the territorial jurisdiction of the court which issued his or her notarial commission shall suffice. New grounds for refusal to notarize in Remote Notarization SECTION 6. Additional Grounds for Refusal to Notarize. - The notary public shall exercise reasonable effort in assessing the demeanor of the principal or witnesses, if any, with respect to notarial acts performed in accordance with these Rules. The notary public may refuse to perform the notarial act requested in the event that the principal or witnesses exhibit/ s behavior that engenders reasonable doubt as to his or her or their understanding of the instrument or document or otherwise indicates a defect in his or her or their consent thereto. The notary public shall also refuse to perform the notarial act requested if the principal or witnesses refuse/s to appear before. the notary public through videoconference, as required by these Rules. New guidelines for personal appearance before a Notary Public SECTION 7. Safety Guidelines. - Where any or some of the principals or witnesses physically appear/s before a notary public for a notarial act while the quarantine is in effect, the safety guidelines issued by the government must be duly observed. In such cases, the notary public shall ensure that all such measures necessary to prevent the spread of COVID-19 shall be undertaken. Posting of Register of Commissioned Lawyers as Notaries Public by all IBP Chapters SECTION 8. Registration. - The Integrated Bar of the Philippines (IBP) is directed to create and disseminate to the general public a register of notaries public in all the chapters of the IBP who shall undertake the performance of notarial acts in accordance with these Rules. This register shall indicate the names, contact numbers, e-mail addresses of the said notaries public, and the territorial jurisdiction of the court which issued PRIMER IN LEGAL AND JUDICIAL ETHICS 521 their respective commissions. This register shall be published by the IBP in its website, and in any other medium it may deem appropriate. Rule IX: Revocation Grounds for revocation of notarial commission and imposition of administrative sanctions for violation of the rules on remote notarization and Administrative Sanctions SECTION 1. Revocation and Administrative Sanctions. - The grounds for the revocation of notarial commission and the imposition of administrative sanctions set forth in Section 1, Rule XI of the 2004 Notarial Rules shall apply to all notarial acts covered by these Rules. Rule X: Effectivity Effectivity of Interim Rules SECTION 1. Effectivity. -These Rules shall take effect fifteen (15) days after their complete publication in the Official Gazette or in at least two (2) newspapers of national circulation in the Philippines and shall remain effective until the Court directs otherwise. Amendments SECTION 2. Subse!:;juent Amendments: - The Supreme Court shall amend these Rules as may be necessary to comply with the safety guidelines issued by the appropriate authorities. 522 THE PRE-WEEK REVIEWER FORJilTERY PRIMER IN LEGAL AND JUDICIAL ETHICS BAR TAKERS 523 Volume IV Breach of professional duty, inexcusable negligence, or ignorance, or 164 for the revelation of the client's secrets Rule 139-B of the Rules of Court governs the investigation by the Integrated Bar of the Philippines ("IBP") of administrative complaints against lawyers. Chairman, CBD. COMPIAINT • By the Supreme Court motu proprio • By the IBP Board of Governors motu proprio __/ IBPBoard ------,► ( of Governors Investigating Commissioner a. upon referral by the Supreme Court b. upon referral by the IBP Chapter Board DECISION based on ✓ facts c. upon verified complaint by any third person ✓ reasons Notice to Parties in Chairman, CBD 1. Being sui generis, the case may proceed independently of civil and criminal cases. 165 There is no double jeopardy. 3. The in pari delicto principle will not apply. 4. It will not consider prejudicial question. 2. 5. It is imprescriptible. 6. It is not subject to dismissal by unilateral will of the complainant. 7. It can proceed motu proprio by S.C. or the IBP. 8. It can proceed regardless of interest or lack of interest of the complainants. All proceedings are strictly confidential. writing If a Filipino lawyer is Supreme Court issues a Decision No motion for Reconsideration before the Commissioner. Motion for Reconsideration before the Board of Governor is allowed. Decision of IBP Board of Governors is reviewed by the Supreme Court. Acquisition of an interest in the subject matter of the litigation, either through purchase or assignment' 63 disbarred or suspended from the practice of law by a competent court or disciplinary agency in a foreign jurisdiction where he has been admitted as an attorney and the ground thereof includes any of the acts enumerated in Section 27, Rule 138 of the Rules of Court, such disbarment or suspension is a mere ground for his disbarment or suspension in the Philippines. 164Art. 163Art. 1491, Civil Code. It does not automatically result• in the suspension or disbarment in the Philippines. A verified complaint must be filed by the party who has knowledge arid can present proof of such foreign proceedings. 208, Revised Penal Code. v. Eala, A.C. No. 7136, 1 August 2007. 165Guevarra 524 PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 525 Volume IV The age of the person asking for clemency will be considered. Warning Admonition Reprimand There must be a showing of promise Censure Suspension - Definite period or indefinite period Interim Suspension - Suspension upon conviction of a "serious crime;" or when the lawyer's continuing conduct is or is likely to cause immediate and serious injury to a client or public. Probation Disbarment ,Ii: I. The lav.yer must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. I The intellectual aptitude, contribution to legal scholarship, etc., and potential for public service will be appreciated. Other relevant factors to justify clemency. 161 A previously disbarred lawyer who is given absolute pardon by the President is not automatically reinstated, he must still file a petition for reinstatement with the Supreme Court. This is in consonance with the principle of separation of powers. Reminder: 1. Upon expiration of the period of suspension, respondent shall file a Sworn Statement with the Court, through the Office of the Bar Confidant, stating therein that he or she has desisted from the practice of law and has not appeared in any court during the period of his or her suspension 1. This is a petition for extraordinary mercy for reinstatement as a officer of the court. In 2004, the Court disbarred respondent from the practice of law for having contracted a bigamous marriage with . complainant Florence Teves and a third marriage with one Josephine Constantino while his first marriage to Helen Esparza was still subsisting, which acts constituted gross immoral conduct in violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the CPR. 2. Copies of the Sworn Statement shall be furnished to the Local Chapter of th~ IBP and to the Executive Judge of the courts where the respondent has pending cases handled by him or her, and/or where he or she has appeared as counsel. To be reinstated to the practice of law, the applicant must, like any other candidate for admission to the bar, satisfy the Court that he is a person of good moral character. The Sworn Statement shall be considered as proof of respondent's compliance with the order of suspension. 166 There must be proof of remors!c:and reformation. The Court now requires. following guidelines in resolving requests for judicial clemency, to wit: 1. There must be proof of remorse. and reformation. These shall include but should not be limited to certifications or testimonials of the officer(s) or chapter(s} of the Integrated Bar of the Philippines, judges or judges associations and prominent members of the community with proven integrity and probity. A subsequent finding of guilt in an administrative case for the same These include testimonials of credible institutions and personalities. Sufficient time must have lapsed from the imposition of the penalty to ensure a period of reformation. Jf,7 166Maniago v. De Dios, A.C. No. 7472, 30 March 2010. 2007. Re: Letter of Judge Augustus C. Diaz, etc., A.M. No. 07-7-17-SC,. 19 September PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 526 527 Volume IV D. The New Canons of Judicial Conduct for the Philippine Judiciary (took effect on June 1, 2004 per A.M. 03-05-01-SC) which was patterned after the Bangalore Draft of Code of Judicial Conduct; and or similar misconduct will give rise to a strong presumption of non-reformation. 2. Sufficient time must have lapsed from the imposition of the penalty to ensure a period of-reform. 3. The age of the person asking for clemency must show that he still has productive years ahead of him that can be put to good use by giving him a chance to redeem himself. 4. There must be a showing of promise (such as intellectual aptitude, learning or legal acumen or contribution to legal scholarship and the development of the ·legal ·system or administrative and other relevant skills), as well as potential for public service. 5. There must be other relevant factors and circumstances that may justify clemency 168 2. In 2004, the Court disbarred de Guzman and reprimanded Atty. Balgos, the examiner in Mercantile Law, for the leakage of Mercantile bar questions in the 2003 bar examination. In the present petition, the Court is called upon to consider the reinstatement of De Guzman as ari officer of the court. In granting the prayer to be reinstated, the Court said that it is willing to strain the limits of its compassion to the uttermost in order that so promising a career may not be utterly ruined. 169 E. Code of Judicial Conduct Applicability of the New Code of Judicial Conduct The New Code of Judicial Conduct for the Philippine Judiciary, supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct heretofore applied in the Philippines to the extent that the provisions or concepts therein are embodied in this Code: Provided, however, that in case of deficiency or absence of specific provisions in this New Code, the Canons of Judicial Ethics and the Code of Judicial Conduct shall be applicable in a suppletory character. New Code of Judicial Conduct Definition of Terms 1. "Court staff includes the personal staff of the judge including law clerks. 2. ''judge' means any person exercising judicial power, however designated. 3. ''judge's family includes a judge's spouse, son, daughter, son-in-law, daughter-in-law, and any other relative by consanguinity or affinity within the sixth civil degree, or person who is a companion or employee of the judge and who lives in the judge's household. Sources of Judicial Ethlcs A. The Constitution; B. The Rules of Court; C. Statues creating courts; Date of Promulgation September 5, 1989 Date of Effectivity October 20, 1989 The Code of Judicial Conduct has basically five (5) canons. Duties of a Judge under the Code of Judicial Conduct (1989) Macarubbo v. Macarubbo, A.C. No. 6148, January 22, 2013, Perlas-Bernabe, J: 2003 Bar Examinauons, Danilo de Guzman Petitumer, B.M. No. 1222, April 24, 2009, Ynares-Santiago, J. 170 sec.5(4), R.A. No. 9225 titled An Act Making The Citizenship of Philippine Citizens Who Acquire Foreign. Citizenship Permanent Amending for the Purpose Commonwealth Act.No. o3, as Amended and for Other Purposes. 168 169Re: A member of the judiciary shall [l] Uphold the integrity and independence of the judiciary; [2] Avoid impropriety and the appearance ofimpropriety in all activities; PRIMERIN LEGALAND JUDICIAL ETHICS THE PRE-WEEK REVIEWERFORJI1TERY BAR TAKERS Volume-;)' 528 529 (31 Perform official duties honestly, and with impartiality and diligence; (41 With due regard to official duties, engage in activities to improve the law, the legal system and the administration of justice; and (51 Regulate extra -judicial activities to minimize the risk of conflict with judicial duties. No decision shall be rendered by any court without expressing therein clearly and distinctly, the facts and law on which it is based. 177 Dedicated service to the judiciary 1. Congress shall only have one representative in the Judicial and Bar Council ("JBC"). No two members of Congress can be together in the deliberations before the JBC. 171 1. Members of the judiciary shall not be designated to any agency performing quasi-judicial or administrative functions. 178 2. 2. The rules of the JBC which are not internal in nature must be published particularly when such rules affect the rights of the applicants in the judiciary. 172 SALN Requirement (Refer to impeachment proceedings against C.J. Corona and the quo warranto proceedings against C.J. Sereno) 3. Every applicant in the judiciary must be accorded due process. When an issue is raised as to the integrity of a candidate to a vacancy in the Supreme Court, that person must be given the opportunity to disprove allegations on his questionable integrity. 173 Members of the Supreme Court shall not only report all their assets, liabilities, and net worth upon assumption to duty but they must disclose such to the PUBLIC in the manner provided by law. 179 4. Appointments are not covered by the midnight appointment rule under Section 15 of Article VII of the Constitution. The power of the President to issue appointments in the judiciary is prescribed under Section 9 of Article VIII of the Constitution. 174 Allegiance to the Philippine Government 5. The ]BC's rule on clustering of nominees in a vacancy in the Sandiganbayan effectively encroached on the appointing powers of the President. The Court struck down the ]BC. rule on clustering of nominees as unconstitutional. 175 Reminder: Appointments made by the President in the judiciary do not need any confirmation by the Commission on Appointments. 176 Any public officer owes allegiance to the Philippine government and its Constitution and a public officer who seeks to change citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. 180 Qualities Required of Members of the Judiciary under the Code of Judicial Conduct 1. Independence 2. Integrity 3. Impartiality 4. Propriety 171 Chavez v. ]BC, et al., G.R. No. 202242, 17 July 2012. 172 Hon. Ferdinand Villanueva, MCTC Compostela v. ]BC, G.R. No. 211833, 7 April 2015. 173 Jardeleza v. Chief Justice Sereno andJBC, G.R. No. 213181, 19 August 2014. De Castro v. ]BC, G.R. No. 191002, 20 April 2010. 175 Judge Aguinaldo v. President Benigno Simeon C. Aquino Ill, G.R. No. 224302, 29 November 2016. 17 6sec.9, Art. VIII, Constitution. 174 177Sec. 14, Art. 12, Art. 179sec. 17, Art. 180Sec. 18, Art. 178Sec. VIII, Constitution. VIII, Constitution. XI, Constitution. VIII, Constitution. PRIMER IN LEGAL AND JUDICIAL ETHICS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 530 531 Volume IV 5. Equality 6. Section 7 shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary Sections shall exhibit and promote high standards of judicial conduct in order·to reinforce public confidence in the judiciary Competence and diligence Reminder: The Constitution requires that to qualify as a member of the judiciary one must be a person of proven competence, integrity probity and independence. Canon 1: Independence The first canon imposes both institutional and personal independence of the members of the bench. A judge must exert every effort to decline any kind of pressure in the discharge of his judicial duties. Section 1 shall exercise the judicial function independently on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law Section 2 shall be independent from judicial colleagues in respect of decisions Section3 shall refrain from influencing in any manner the outcome of a pending litigation or dispute Section4 shall not allow family, social, or other relationships to influence judicial conduct or judgment · Section 5 shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government Section 6 shall be independent in relation to society in general and in relation to the particular parties to a dispute which he or she has to adjudicate 1. The Court dismissed RTC Caloocan Judge Antonia CorpuzMacandog for having rendered a decision under the pressure from a telephone call f~om a national official. The Court held that she had shown herself to be mentally and morally.unfit to remain•in her office.1s1 2. The Court imposed a monetary penalty and a severe warning against Judge Dabalos for acting on pending murder case before his court under the pressure of a rally supporting the accused. The judge allo~ed baiLwit:h9t,1thearing. Th.e Court held that the judge violated due process· and· showed gross ignorance of the law. 182 3. The Court:dismissed an RTCjudge who had the temerity to write a first level court judge to influence the outcome ..of a pending criminal case. He even hinted that the accused should be acquitted:183 · The honor and integrity of the judicial system is measured not only by the fairness and correctness of decisions rendered, but also bythe efficiency with which disputes are resolved. Thus,.judges must perform their offidal duties with utmost diligence if public confidence in the judiciary is to be preserved. There is no excuse for mediocrity in the performance of judicial functions. The position of jupge exacts nothing less than faithful observance of the law and the Constitution in the discharge of official duties. 184 · 181 Samson v. Hon. 182 Libarios v. Hon. Corpuz-Macandog, A.M. No. R-351-RTJ,26 September 1986. Rosarito Dabalos, A.M. No, R1J-89-286, 11 July 1991. 183 Sabitsana, Jr. v. Hon. Villamor, A:M.No. 90-474, 4.October 1991. 184 Office of the Court Administrator v. Hon.· Evelyn A. Atienza-Turla, Presiding Judge, Branch 40, Regional Trial Court, Palayan City, Nueva Ecija, A.M. No. R1J-21-005. December 9, 2020. IBE PRE-WEEK REVIEWER FORJIT[ERY BAR TAKERS 532 PRIMER IN LEGAL AND JUDICIAL ETHICS Volume IV Canon 2: Integrity Every member of the bench must ensure public confidence in the administration of justice and promote respect to the judiciary as an institution. Integrity is a constitutional qualification imposed upon a judge. Section 1 shall ensure that not only is their conduct above reproach Section 2 behavior and conduct of judges must reaffirm the people's faith in the integrity of the judiciary Section3 should take or initiate appropriate disciplinary measures .against lawyers or court personnel for unprofessional conduct The exacting standards of conduct demanded from judges are designed to promote public confidence in the integrity and impartiality of the judiciary because the people's confidence in the judicial system is founded not only on the magnitude bf legal knowledge and the diligence of the members of the bench, but also on the highest standard of integrity and moral uprightness they are expected to possess. 185 Canon 3: Impartiality The Bill of Rights guarantees the accused the right to a fair and impartial trial. It is the hallmark of every criminal prosecution that the ends of justice are served without any kind of bias. Section 1 Shall perform their judicial duties without favor, bias Gr prejudice Section 2 Shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants Section3 Shall, so far as is reasonable, so conduct themselves as to minimize the occasions on which it will be necessary for them to be disqualified from hearing the case Section4 Shall not make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process Section 5 Shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially 1. 2. One who occupies an exalted position in the administration of justice must pay a high price for the honor bestowed upon him, for his private as well as his official conduct must at all times be free from the appearance of impropriety. Because appearance is as important as reality in the performance of judicial functions, like Caesar's wife, a judge must not only be pure but also beyond suspicion. 186 1 ~an v. Rosete, A.M. No. MIJ-04-1563, 8 September 2004 (formerly A.M. OCA IP! No. 02-1207-MIJ). l86sibayan-Joaquin v. Javellana, A.M. No. R1J-00-1001, 13 November 2001. 533 Disqualifications Section6 Remittalof Disqualification May participate in the proceeding under an agreement signed by all parties and lawyers th.at the judge after disclosure of disqualification The agreement shall· be incorporated in the record of the proceedings. I 534 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV ' PRIMER IN LEGAL AND JUDICIAL ETHICS 535 litigant within the sixth civil degree or to counsel within the fourth civil degree; or 1. The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; 2. The judge previously served· as a lawyer or was a material witness in the matter in controversy; 3. The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy; 4. The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein; 5. The judge's ruling in .a lower court is the subject of review; 6. The judge is related by consanguinity or affinity to a party No judge or judicial officer shall sit in any case 1. in which he, or his wife or child, is pecunfarily interested as heir, legatee, cre<;litoror otherwise, or 2. in which he is related to either party within the sixth degree of consanguinity or affinity; or • 3. related to either party to counsel ~ithin the fourth.degree, computed. according to the rules of the civil Jaw; or 4. in which he has been exec:utor, administrator, guardian, trustee or counsel, or 5. in which he has been presided in any inferior court when· his rtilirig or decision is the subject of review, without the written consent of ail parties in interest, signed by them and entered upon the record. 7. The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings. Voluntary Ground: A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. The above disqualification shall likewise apply to all clerks of court, assistant clerks of court, deputy clerks of court and branch clerks of c:ourt in all court levels insofar as relevant to them in the performance of their respective functions and duties. 187 • "Article 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: XXX (4) Public officers and employees, the property of the State or of any subdivision thereof, of any government-owned or controlled corporation, or institution, the administration of which has been entrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale; (emphasis supplied) or 187 As amended under OCA Circular No. 108-2010, 9 August 2010. 536 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV PRIMER IN LEGAL AND JUDICIAL ETHICS (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession; (emphasis supplied)" 1. The Supreme Court imposed a fine upon a Pasay City RTC judge for presiding over a petition for correction of a birth record where the petitioner was the judge's daughter. 188 2. The Court dismissed a first level court judge for taking jurisdiction of a criminal complaint filed by his brother and after issuing a warrant of arrest against the accused, he inhibited himself. 189 Section 1 Shall avoid impropriety and the appearance of impropriety in all of their activities. Section 2 Judges must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. Section 3 Avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality. Section 4 Shall not participate in the determination of a case in which any member of their family represents a litigant or is associated in any manner with the case. Section 5 Shall not allow the use of their residence by a member of the legal profession to receive clients of the latter or of other members of the legal profession. Section 6 In the exercise of his freedom of expression, belief, association and assembly, a judge shall always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. Section 7 Shall inform themselves about their personal fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of their family. Sections Shall not use or lend the prestige of the judicial office to advance their private interests, or those of a member of their family or of anyone else, nor shall they convey or permit others to convey the impression that anyone is in a special position improperly to influence them in ~e performance of judicial duties. 1 3. Recusal is also mandated when the judge's former law partner or associate served as a lawyer in the matter while the judge was practicing with the lawyer. The Court held that it was improper for the judge to preside over a preliminary investigation because this duty belongs to the prosecutor. 190 ' 4. The Court held that the truth about Judge Austria's alleged partiality cannot be determined by simply relying on the verified complaint. Bias and prejudice cannot be presumed, in light especially of a judge's sacred obligation under his oath of office to administer justice without respect to the person, and to give equal right to the poor and rich. There should be clear and convincing evidence to prove the charge; mere suspicion of partiality is not enough. 191 Canon 4: Propriety 188 Judges must at all times avoid inappropriate behavior. Being upright is a requirement for one's tenure in the judiciary. V"tllaluzv. Mijares, A.M. No. R"IJ-98-1402, 3 April 1998. Garcia v. De La Pena, A.M. No. MTJ-92-637, 9 February 1994. 1 90perez v. Suller, A.M. No. M"IJ-94-436, 6 November 1995. 191 Antonio M. Lorenzana v. Judge Ma. Cecilia I. Austria, RTC, Br. 2, Batangas City, A.M. No. RlJ--09-2200, 2 April 2014. 189 537 538 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 9 Confidential information acquired by judges in their judicial capacity shall not be used or disclosed for any other purpose NOT related to their judicial duties Section 10 Subject to the proper performance of judicial duties, judges may: a. Write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters; b. Appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters; C. Engage in other activities if such · activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties. Section 11 Shall not practice law whilst the holder of judicial office. Section 12 May form or join associations of judges or participate in other organizations representing the interests of judges. Section 13 Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties. Section 14 Shall not knowingly permit court staff or others subject to their influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done in connection with their duties or functions. PRIMER IN LEGAL AND JUDICIAL ETHICS Section 15 539 Judges may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance ofjudicial duties or· otherwise give rise to an appearance of partiality. 1. The Court considered inappropriate for a member 9f the Court of Appeals to be seen in a casino on several occasions. 192 2. An administrative complaint was filed against Judge Austria for impropriety for posting in cyber media a photograph of herself in a "off shoulder outfit" for the pubHc's consumption. The Court held that she was guilty of impropriety. While judges are not ·prohibited from becoming members of and from·takingpart in social networking activities,· they do not shed off their status as jlldges. They carry with them in cyberspace the same ethical responsibilities and duties that every judge is expected to follow in his/her everyday activities. 193 3- The Court dismissed Malolos RTC Judge Villalon Pornillos for a notorious history of committing graft and corruption by· "fixingn cases and "selling" decisions or orders, such as receiving P5 million from Lorna Silverio,. extorting P6 million from Romeo Estrella, arid obtaining P200,000 from Leonardo deLeon and asking him to pay her electric bills while simultaneously extorting from de Leon's detractors, all relative to the election protests involving the mayoralty race at San Rafael, Baliuag and Angat, respectively. 194 The Court said that Justice Pizarro, as a magistrate of the CA, is clearly a government official directly involved in the administration of justice; and in the performance of such function, he exercises discretion. Thus, by gambling .in a casino, Justice Pizarro violated the 192Re: Anonymous Letter Complaint (with attached pictures) against Associate Justice Normandie B. Pizarro, Court of Appeals, A.M. No. 17-11--06-CA. 193Antonio M. Lorenzana v. Judge Ma. Cecilia I. Austria, RTC, Br. 2, Batangas City, A.M. Nq. R1J-09~2200, 2 April 2014. 194Concemed Lawyers of Bulacan v. PresidingJudge victoria Villalon-Pomillos, RTC, Branch 10, Malolos City, Bulacan, A.M. No. R'I}-09-2183, 7 July 2009. 540 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS PRIMER IN LEGAL AND JUDICIAL ETHICS 541 Volume IV prohibition from gambling in casinos as provided under Section 14(4) (a) of P.D. No. 1869. He was fined Pl00,000.00. 195 Canon 5: Equality A member of the bench must ensure all litigants will get a fair and impartial trial. Section 1 Ensure equality of treatment and recognize diversity in society and differences arising from various sources (race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes) Section 2 Shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds. Section·3 Shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. Section4 Shall not knowingly permit court staff or others subject to his or her influence, direction or control to differentiate between persons concerned, in a matter before the judge on any irrelevant ground. Section5 Shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy. 1. In the secrecy of his chambers, Judge Juan informed the complainants who were the victims of rape of the weakness of their cases and that he is likely to acquit the accused. He impressed upon them that it would be to their advantage to settle, as the most he could do on their behalf was to have such accused indemnify them and this will no longer subject them to embarrassment. The court ordered Judge Juan to desist from further trying the case. 196 2. The Court said that the presiding judge should be sanctioned for his negligence in the performance of his duties with respect to accused minor since he failed to ascertain the age of the accused. The Court reversed the conviction of the accused holding that while it is doctrinal that the Court will not interfere with the judgment of the trial court in passing upon the credibility of witnesses. It said that in the instant case, the trial court's assessment of Russel's testimony is not only perfunctorily done but its· decision is also partly based on the evidence presented by the defense, in stark violation of the well-settled rule thatthe conviction of appellant must not act on the weakness of the defense but· on the strength of the prosecution. 197 3. Complainant accused Judge Fineza of bribery, grave misconduct, conduct unbecoming of a judge and conduct prejudicial to the best interest of the service. The Court suspended Judge Fineza for six months. It said that the integrity of the judiciary rests not only upon the fact that it is able to administer justice but also upon the perception and confidence of the community that the people who run the system have done justice. The assumption of office of a judge places upon him duties and restrictions peculiar to his exalted position. He must be perceived, not as a repository of arbitrary power, but as one who dispenses justice under the sanction of the mle of law. 198 Canon 6: Duty of Competence and Diligence 196Rosario The duty of competence and diligence requires that the judge is able to appreciate both substantive and procedural laws and to promptly Castillo and Sonia Vitlasanta v.JudgeJuan, G.R. Nos. 39516-17, 28January 1975. 195 Re Anonymous Letter ( with attached photographs) against CA. Justice Normandie Pizarro, A.M. No. 17-11-06-CA, March 13, 2018. People v. Ortillas, G.R. No. 137666, 20 May 2004. Sy, et al. v. Judge Antonio Fineza, A.M. No. RlJ-03-1808, 15 October 2003. 197 198Radelia 542 THE PRE-WEEK REVIEWER FORJITIERY PRIMER IN LEGAL AND JUDICIAL ETHICS BAR TAKERS 543 Volume IV discharge his responsibilities since the judiciary plays a pivotal role in the dispensation of justice. Not less than the Constitution requires that a member of the judiciary must be a person of pn;wen Section 1 Judicial duties of a judge· take prec~dence over all other activities .. Section 2 Shall devote their professional activity to judicial duties, which incltid,e not the performance of judicial functions and responsibilities in, coyrt a.nd _the makiiig of decisions, but also other_ tasks relevant to the judicial office or the cotirt's. . .. operations,. t o~y. Section3 Shall take reasonable steps to maintain and enhance their knowledge, skills· , and personal qµalities necessary for the proper perf9up.ap~e of judicial duti~s. ;, L·: -·· . Section4 Sh.all keep themselves informed about relevant developments of international law, -including international conventions and other instruments establishing-human. rights norms. Section 5 Shall perform an j~di~ial duti~s, inclucfuig the delivery of reserved decisions,, . · efficiently, fairly and with reasonable promptness. Section6 Shall maintain order and decoruqi in · all proceedings before the court arid be patient, dignified and courteous in relation to litigants, witnesses; lawyers and others with whom the judge deals in an official capacity. 1 Section 7 • • • , Shall not engage in conduct incompatible with the diligent discharge of judicial duties. 1. Judge Gines and his other court staff were charged for their collective illegal acts involving deliberate and surr~ptitious assignment of cases to the detriment of the party-litigants. After due investigation, it was established that it could not have been committed so blatantly, brazenly and openly for an unusually long period of time if the respondent Judge did not have the cooperation of some of the court employees. The Court ordered the dismissal of Judge Gines with prejudice to re-employment, in the government, including government-owned or controlled corporations, and with forfeiture of all benefits except earned leave credits. 199 2. The judicial audit team created by the OCA reported alleged irregularities in the solemnization of marriages in several branches of the trial courts in Cebu City. Certain package fees were offered to interested parties by "fixers" or "facilitators" for instant marriages. The Court held that the respondent judges violated Canons 2 and 6 of the Canons of Judicial Ethics which exact competence, integrity and probity in the performance of their duties. This Court previously said that "Ignorance of the law is a mark of incompetence, and where the law involved is elementary, ignorance thereof is considered as an indication of lack of integrity." In connection with this, the administration of justice is considered a sacred task and upon assumption to office, a judge ceases to be an ordinary mortal. He or she becomes the visible representation of the law and more importantly of justice. All the respondent judges -and all other court employees involved in the irregularities were all dismissed by.the Court. 200 3. The Court imposed a monetary fine and suspendedJudge Villanueva for his persistent tardiness. The Court said that the image of a court of justice is necessarily mirrored in the conduct, qfficial or otherwise, of the men and women, from the judge to the least and lowest of its personnel, hence, it becomes the imperative sacred duty of each and everyone in the court to maintain its good name and standing .as a true temple of justice. For his part, a judge, as the 199Office of the Court Administrator v. Hon. Genaro C. Gines, A.M. No. R'IJ-92-802, 5 July 1993. 200 office of the Court Administrator v. Judge Anatalio S. Necessario, Branch 2; Judge Gil R. Acosta, Branch 3; Judge Rosabella M. Tormis, Branch 4; and Judge Edgemelo C. Rosales, Branch 8; all of MTCC-Cebu ·City, A.M. No. MTJ-07-1691, 2 April 2013. f\ \ PRIMER IN LEGAL AND JUDICIAL ETIIICS TIIE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV 544 visible representation of the law and the embodiment of the people's sense of justice must always strive to live up to his responsibility of assisting parties-litigants in obtaining a just, speedy and inexpensive determination of their cases and proceedings. Judicial indolence is considered gross inefficiency punishable by fine or suspension from service without pay with the gravity of the penalty dependent on the attendant -aggravating or mitigating circumstances. 201 resolving motions. He was fined P50,000.00 to be taken from his retirement benefits. 206 4. The Court dismissed Judge Reyes for gross ignorance of the law, gross misconduct and flagrant violation of the Canons of the New Code of Judicial Conduct. The respondent judge was one of the seven judges whom President Duterte publicly denounced for being involved in illegal drugs. For acquittal in drug cases, the respondent judge would ask from PZ00,000.00 to P300,000.00. The strategy included the preparation of two draft decisions, one for conviction and one for dismissal. ·The allegations were duly proven in the conduct .of investigation by the Office of the Court Administrator. 202 Grounds for Impeachment The. Court dismissed Judge Tu pas for irregular issuances of the injunctive reliefs of Temporary Restraining Order and the Writ of Preliminary Injunction. The questioned orders iss~ed by the erring judge directly contravened the provisions of the Rules of Court. 203 Jurisdiction of Congress 1. culpable violation of the Constitution 2. treason 3. bribery 4. graft and corruption 5. other high crimes 6. betrayal of public trust 207 House ofRepresentatives the exclusive power to initiate all cases of impeachment. 208 Senate has the sole power to try and decide all cases of impeachment.2(>9 5. T_heCourt dismissed Judge Buyucan for gross misconduct for violating the New Code of Judicial conduct for occupying a public land. 204 The Senate President presides over all trial proceedings. The respondent judge was fined Pll,000.00 to be taken from his retirement benefits for delay in resolving a civil case. 205 6. The Court found the respondent judge guilty of gross dereliction of duty, gross inefficiency and gross incompetence for undue delay in rendering judgment and undue delay in 545 Both. chambers shall promulgate its respective rules .on impeachment. Initiation of Complaint Verified complaint for impeachment may be filed by any Member of the House of Representatives or by any dtizen upon a resblution or endorsement by any Member2 10 201 Yu-Asensi v. Villanueva, A.M. No. MTJ-00-1245, 19 January 2000. 202 0/fice of the Court Administrator v. Judge Antonio C. Reyes, Regional Trial Court, Branch 61, Baguio City, Benguet, A.M. No. R1J-17-2506. November 10, 2020 203 Philippine National Construction Corporation v. Hon.Jesus B. Mupas, Presiding Judge Branch 112, Regional Trial Court, Pasay City, A.M. No. R1J-20-2593. November 10, 2020 204 Anonymous Complainant v. Judge Buyucan, MCTC, Bagabag-Diadi, Nueva Vizcay~ A.M. No. M'IJ-16-1879 (Formerly OCA IPI No. 14-2719-M'IJ),July 24, 2018 205Sps. Pacho v.judge Agapito Lu, RTC-Cavite City, A.M. No. RTJ-13-2350 (Formerly 0CA IPI Noo 10-3507-RTJ), July 23, 2018 2060CA v. Pasay City RTC judge Guiling et al, A.M. No. RTJ-19-2549 [Formerly OCA IPI Noo 19-4920-RTJl, June 18, 2019 207sec. 2, Art. XI, Constitution. 20SSec.3(1), Art. XI, Constitution. 209Sec. 3(6), Art. XI, Constitution. 210Sec. 3(2), Art. XI, Constitution. 546 THE PRE-WEEK REVIEWER FORJIITERY BAR TAKERS PRIMER IN LEGAL A..1\1D JUDICIAL ETHICS 547 Volume IV of Impeachment of the Committee, or override its contrary resolution. 218 Verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House 211 Under the 2nd manner of impeachment, the resolution is transformed into the Article of Impeachment. 212 Consideration Complaint of No person shall be convkted without the concurrence of two-thirds of all the Members of the Senate. 219 Effect of Impeachment Inclusion of Complaint in the Order of Business: Within ten session days from initiation 213 Referral to Appropriate Committee (Committee on justice: Within three Determination of Form and Substance: Within sixty session days from such referral, the Committee shall submit its resolution 215 The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. 216 Plenary Consideration: Adoption or rejection of Articles of Impeachment Votes Required No more than once within a period of one year217 A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution,. trial; and punishment, according tolaw. 220 The Court granted to the suiviving spouse of former Chief Justice Corona l:tls full. retirement benefits and stiivivorship pension; It said that the late Chief Justice Corona was involuntarily removed from office through impeachmeq.t. Since the civil, criminal or administrative liability of the late Chief Justice was never established, the·.Court deemed it proper for him and his suiviving spouse to receive the prescribed benefits under R.A. 9946 and R.A. 8291.221 session days after inclusion in the Calendar of Business 214 Frequency of Filing I Impeachment 1. An incumbent member of the Supreme Court may be removed from office if there is an infirmity in the appointment. In the case of former Chief Justice Sereno, it was established that she did not have the necessary integrity required of a member of the 211 Sec. 3(4), Art. XI, Constitution. 2sec. 3(4), Art. XI, Constitution. 21 3Sec. 3(2), Art. XI, Constitution. 21 214supra. 21s1d. 216/d. 217 Sec. 3(5), Art. XI, Constitution. Sec. 3(3), Art. XI, Constitution. Sec 3(6), Art. XI, Constitution. 220 sec. 3(7), Art. XI, Constitution. 221Re: Letter of Mrs. Ma. Cristina Raco Corona requesting the grant of retirement and other benefits to the late former Chief Justice Renato C. Corona and her claim for survivorship pension as his wife under Republic Act No. 9946, AM. No. 2M7°10-:SC. January 12, 2021 218 219 548 THE PRE-WEEK REVIEWERFORJITfERY BAR TAKERS Volume IV judiciary for her failure to file her SALNfor a period of years while she served the University of the Philippines. 222 2. The Court applied the res ipsa loquitur doctrine upon a retired member of the Supreme Court for a premature release of a decision involving a citizen issue of a member of the House of Representatives. He was indefinitely suspended and slapped with a PS00,000.00. 223 3. The Court held that where a party is not able to substantiate allegations involving acts of graft and corruption against the members of the Court, the same must be.dismissed. 224 Discipline of Appellate Justices and Lower CourtJudges (Read Section 11, Article VIII, 1987 Constitution) Jurisdiction over disciplinary cases The Supreme Court en bane shall have the power to discipline appellate justices and lower court judges. Vote required dismissing a member of thejudiciary A majority vote of all justices who actually took part in the deliberations on the issues in the case and voted thereon. As a general rule, a member of the judiciary may be disciplined for violation of the Code of Judicial Conduct which bring dishonor to the judiciary. Sanctions may also be imposed for violatioii. of administrative issuances of the Court which concern the discharge of their duties. In the discipline of the members of the bench, the Court may impose fines, suspension, dismissal from office, forfeiture of all retirement and other benefits earned during their tenure, disbarment and perpetual ban from being employed in any branch of government 222 Repub!ic v. Sereno, G.R. No. 237428, 18 May 2018. /n Re: Undated letter of Mr. Louis C. Biraogo, A.M. No. 09-2-19, S.C. 224 In Re: Letter Complaint of Atty. Pena against Justices Carpio and Sereno, A.M. No. lUi-11-SC. 223 PRIMER IN LEGALAND JUDICIAL ETHICS 549 1. This case stemmed from the failure of Judge Alumbres to return the executive table he borrowed from Judge Caoibes. An altercation followed after Judge Caoibes blurted "Tarantado ito ah," and he boxed Judge Alumbres at his right eyebrow and left lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses unserviceable, a Criminal Complaint for physical injuries, malicious mischief for the destruction of complainant's eyeglasses, and assault upon a person in authority. Judge Alumbres filed a criminal case against Judge Caoibes before the Office of the Ombudsman. The latter moved for dismissal of the case because only the Supreme Court has jurisdiction over t:he members of the bench. The court granted the petition. The Court held that the Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved. 225 2. The Court held that where a criminal complaint against a judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the Supreme Court for determination whether said judge or court employee had acted within the scope of their administrative duties. 226 3. The Court found Judge Arabani, Jr. found guilty of sexual harassment classified as a less grave offense under Section 53(B)(5), Rule X of Civil Service Commission Resolution No. 01-0940, and was suspended for six (6) months without pay. 227 4. The subsequent retirement of a judge or any judicial .officer from the service does not preclude the finding of any administrative liability to which he is answerabie. A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case. The instant case is not 2' 5JudgeJose F. Caoibes, Jr. v. Tbe Honorable Ombudsman and Judge Florentino M. Alumbres, G.R. No. 132177, 19 July 2001. 226 Hon. Judge Bonifacio Sanz Maceda v. Ombudsman Vasquez and Atty. Napoleon Abiera, G.R. No. 102781, 22 April 1993. 227 Judge Bensaudi A. ArabaniJr. v. Arabani, A.M. No. SCC-10-14-P,A.M. No. SCC-1015-P, A.M. No. SCC-11-17, 21 February 2017. 550 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV moot and academic, despite Justice Reyes's retirement. Even if the most severe of administrative sanctions may no longer be imposed, there are other penalties which may be imposed if one is later found guilty of the administrative offenses charged, including the disqualification to hold any government office and the forfeiture of benefits. Under the circumstances of this case, the Court imposed the penalty of indefinite suspension from the practice of law and a monetary fine of P500,000.00. 228 5. Notably, for administrative proceedings such as the consolidated administrative cases here, only substantial evidence is required. Substantial evidence is defined asthat amount of relevant evidence that a reasonable mind might accept as adequate to supply a conclusion. The standard of substantial evidence is satisfied when there is. reasonable ground to believe that respondent_ is responsi!Jle for the misconduct complained of; even if such evidence might hot be overwhelming or even preponderant. The complaint against Ruiz was sufficiently proved which merited his dismissal from service · while the allegation relative to the illicit felationship of Judge Pinlac with his stenographer was dismissed for lack of merit. 229 6. The Court found Judge Aguilar guilty of Undue Delay iri Issuing Orders in Several Cases and Undue Delay in Transmitting the Records of a Case and suspended her from office without salary and other benefits for a period of three (3) months.2 30 7. The complainants filed an administrative complaint imputing abuse of authority, disregard of due process, misuse and fabrication of judicial orders, arrogance and conduct unbecoming of an_officer of the court against Hon. Ovejera. The complaint stemmed from 228 2009 PRlMER lN LEGALAND JUDICIAL ETHICS 551 the order of Judge Ovejera for failure of the complainants in fully complying with the filing of their respective SLANsin conformity with the requirements of R.A. No. 6713 otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees." The Court dismissed the case against Judge Ovejera and found no basis for such complaint and it imposed the necessary penalties upon those complainants who failed with file their SALNs in accordance with law. 231 Disciplinary Action of the Supreme Court over Employees of the Judiciary Doctrinal Rulings 1. Among the powers of the Supreme Court is its authority to appoint its officers and employees. The appointment of Atty. Brenda Jay Angeles is infirm since the same was not approved by the Supreme Court en banc.232 2. Section 6 of Article VIII of the Constitution vests in the Supreme Court the supervision over its employees. The Court has the sole authority to discipline its employees. The execution of final judgment of the courts is a ministerial function of the sheriff. No other fees except those allowed under the Rules may be exacted from litigants in the execution of decisions of the court. Serious dishonesty and dereliction of duty merits dismissal from office with forfeiture of all retirement benefits.233 3. The Court dismissed Abubacar, a steneographer of the Shari'a Court in Lumbatan, Lanao del Norte, for asking another person to take the Civil Service Eligibility Examination. With an impressive rating of 85.07%, Abubacar was issued a permanent appointment. Based on an anonymous letter, the Office of the Court Administrator was tasked to investigate if indeed, Abubacar falsified 1n Re: Undated Letter of Mr. lpuis C. Eiraogo, A.M. No. 09°2-19-SC, February 24, 229 Anonymous Complaint Against Judge Edmundo P. Pintac and Ms ...Lorelei T. Sumague, Stenographer, Both of the Regional Trial Court, Branch 15, Ozamiz City/Executive Judge Edmundo P Pintac v. Rolando 0. Ruiz, Process Seroer, Regional Trial Court, Bran,ch 15, Ozaniiz City/Rolando 0. Ruiz, Process Server, Regional Trial Court, Bran.ch 15, Oiamiz City v.judge Edmundo P Pintac, Executive Judge and PresidingJudge, Same Court/Rolando 0. Ruiz v. Executive Judge Edmundo P. Pintac, Regional Trial Court Branch 15, Ozamiz City, A.M. Nb. RTJ-20-2597/ A.M. No. P-20-4091/ A.M, R1J-20-2598/ A.M. No.· R1J-20c2599. September 22, 2020 230 2016. Atty. Florame Miano v. Hon. Ma. Ellen Aguilar, A.M. No. R1J-15-2408, 2.March 231Marquez, et al. v. Hon. Venancio Ovejera, A.M. No. P-11-2903, 5 February 2014. Re: Memorandum dated July 10, 2017 from Associate Justice De Castro , A.M. 1707-05 SC; Re: Letter of Resignation of Atty. Brenda Jay Angeles, AM. 18-02-13 SC, July 18, 232 2018, Leonen,J. 233Litonjua v.Jerry Marcelino, Sheriff III, MTC, Branch 71, Pasig City, A.M.P-18-3865, Per Curiam; Trinidad v. Alan Javier, Sheriff IV; RTC-Tanauan City, A.M. No. P-11-2894 (Formerly OCA IPI No. 10-3429-P), April 10, 2019, Complaint of Ricky Rega/a against Security Guard Manabat, A.M. No. CA-18-35-P [Formerly A.M. OCA IPI No. 17-260-CAP], November 27, 2018 552 THE PRE-WEEK REVIEWER FORJITIBRY 553 PRIMER fN LEGAL AND JUDICIAL ETI-IICS BAR TAKERS Volume IV PRACTICAL EXERCISES her civil service eligibility. For such act, she was dismissed from service with perpetual disqualification for reemployment in the government service, including in government-owned or controlled corporations, without prejudice to any criminal and/or civil liability in a proper action. 234 The following are the forms Practical Exercises: which are normally included l. Verification and certificate of non-forum shopping 4. The erring respondents were all dismissed by the Supreme Court for Grave Misconduct, Dishonesty, and Falsification of Public Documents. The evidence gathered by the Office of the Court Administrator proved_ by convincing evidence that there were discrepancies in the civil service eligibilities of both employees. 235 2. Notice of hearing and explanation in motions 3. Judicial Affidavit 4. Affidavit Complaint 5. Compromise Agreement 5. Time and again, the Court has stressed that the behavior of all employees and off).cials involved in the administration of justicefrom judges to the most junior clerks - is circumscribed with a heavy responsibility. Their conduct must be guided by strict propriety and decorum at all times. Being the custodians of court funds and revenues, clerks of court have always been reminded of their duty to immediately. deposit the various funds received by them to the authorized government depositories. 236 6. Quitclaims in Labor Cases 7. Notarial Certificates - Jurat and Acknowledgement 8. Affidavits - Loss, Change of Name 9. Special Power of Attorney 10. Promissory Notes 11. Contract of Sale of Realty or Personal Property 12. Contract of lease 13. Board Resolution 14. Secretary's Certificate 15. Demand and authorization letters in Practice Questions: I. A. B. 234Alleged Examination Irregularity Committed by Court Stenographer I Norbata A. Abubacar, Shari'a Circuit Court, A.M. No. 15-02-02-SCC. October 6, 2020 235In Re: Alleged Civil Service Examinations Irregularity of Mr. Villamar D. Bautista, Cashier I, and Ms. Erlinda T Bulong, Clerk JV, Office of the Clerk of Court, both of the Municipal Trial Court in Cities, Santiago City, Isabela/In Re: Anonymous complaint against Docket Clerk Erlinda Bulong, Office of the Clerk of Court, Municipal Trial Court in Cities, Santiago City, Isabela, A.M. No. 16-03-29-MTCC/A.M. No. 17-01-16-MTCC 236 Re: Final Report on the Financial Audit Conducted in the Municipal Circuit Trial Court, Valladolid-San Enrique-Pulupandan, Negros Occidental, A.M. No. 20-06-18-MCTC. September 29, 2020 What is scope of the duties of the lawyer under the Attorney's Oath? A disbarment case was filed against Atty. B. The basis of the complaint was a Deed of Sale executed between the lawyer and the complainant. Atty. B moved for the dismissal of the case arguing that the matter does involve any lawyer-client relationship. Is his legal argument tenable? Justify your answer. II. A. What are the requirements for admission to the practice of law? B. Mr. G was born in Australia of Filipino parents. After he completed his college degree in Business Administration in Sydney, Australia, PRIMER IN LEG.li AND JUDICIM ETHICS 554 he enrolled in one of the universities in Metro Manila to obtain his law degree. He successfully graduated with a Doctor in Jurisprudence degree and is now processing his documents to be able to take his bar examinations. Can he qualify to take the bar examinations? Justify your answer. C. 555 IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Atty. A was suspended from the practice of law for a period of two years. During his suspension, his brother was charged with estafa. Can Atty. A plead the court that he be appointed counsel de officio of his brother? He did not disclose his suspension when he filed his application. Atty. F was eventually appointed and te took his oath. When Ms. D learned of Atty. F's appointment, she wrote the Supreme Court that the appointment should be revoked. When asked by the Office of the Court Administrator to explain, Atty. F argued that he never lost his membership in the bar and he remains qualified to apply for the post in the judiciary. Is the legal argument of Atty. F tenable? Why? VIL m. Atty. XYZ has not finished the 36-unit requirement under the Mandatory Continuing Legal Education. A. B. Can he still practice law? What will be the effect on the pleadings he files in court if he lacks the required MCLE units? IV. KLM Company signed a retainer agreement with the QRS and T Law Offices for a period of one year at a monthly fee of P25,000.00. After the lapse of one year, QRS and T Law Offices sent a bill to KIM company in the total amount of P300,000.00 representing the one-year retainer fee. KLM refused to pay the professional fees of QRS and T Law Offices because it never used the services of the law firm during the period of one year. May KLM Company refuse to pay the professional fees of QRS and T Law Offices? Justify your answer. v. Mr. G appeared before Atty. J to present to him his Last Will and Testament. Atty. J affixed his signature to the Last Will and Testament of Mr. G but he failed to indicate the expiry date of his notarial commission. Mr. G filed a disbarment case against Atty. J. Will the case prosper? Why? VI. Ms. D instituted a complaint against Atty. F for defrauding her. The IBP Board of Governors recommended the susp'ension of Atty. F for a period of one year. The Supreme Court affirmed the recommendation of the IBP Board of Governors. Despite his suspension, Atty. F filed his application to become a municipal trial court in Sta. Cruz, Marinduque. After passing the Philippine Bar in 2000, Atty. Rpracticed law in the Philippines until· 2004 when he was awarded a Fullbright scholarship to pursue his Master of Laws Degree at Yale University. Aft.er completing his graduate studies, he was invited to have an internship program in of the prestigious faw offices in New York City. Enticed by the new experience, he had obtained, he took the New York State Bar and he eventually became a naturalized American citizen in 2006. With the COVID-19 pandemic taking a heavy toll on the pt!ople of New York, Atty. R is presently contemplating of retuming to the Philippines. Outline briefly the steps he. must undertake! to resume his practice of law in the l;'hilippines. vm. Explain in not more than five (5) sentences the meaning and ramifications of this statement: "The Judge is an. arbiter of law and a minister of justice." IX. Draft an Affidavit Corrqlaint against Judge A for contracting a second marriage knowing that he has a subsisting marriage. BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE How Criminal Action Instituted: (S. l) For offenses .requiring a preliminary investigation For all other offenses where the penalty is, at least, 4 years, 2 months and 1 day, regardless of fine (cf. R.112, S.1) where the penalty is less than 4 years, 2 months and 1 day by filing the complaint with the Office of the Prosecutor. (a) by filing the complaint with the Office of the Prosecutor in Metro Manila and other chartered cities, unless the charter provides otherwise; or, (b) by filing the information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts. 1 Complaint and Information:· (S.2-4) Complaint Information a written statement under oath charging a person with an offense a written charge against a person/s of an offense signed by either the offended party, or his/her representative, or a law enforcement officer. signed by the prosecutor and filed with the court. 2 557 Must state: full name of accused, including any nickname or alias; designation of the offense given by statute; acts or omissions constituting the offense; qualifying and aggravating circumstances; place and date of commission; full name of offended party. (S. 6-12) One information One Offense Rule: must charge only one offense, except in complex crimes or compound crimes (S.13) Duplicity of offense is a ground for a motion to quash. (R.117, S.3{f])It can be waived if not raised seasonably. 3 Amendment or Substitution: (S.14) After arraignment and Before arraignment: during trial: Only in form and with leave of court IF no prejudice to rights of accused. In form or substance, without leave of court. Before judgment: Mistake in charging proper offense, court shall dismiss original charge upon filing of proper one unless accused will be placed in double jeopardy. 4 If amendment downgrades the offense charged or excludes an accused from the charge, only by motion of Public Prosecutor and with leave of court. Who Must Prosecute: (S.5) The Public Prosecutor: all criminal actions, whether by complaint· or information, must be prosecuted under the direction and control of the prosecutor. Violation of Adultery and Seduction, ?efa~tion Special Laws unputmg Abduction, Concubinage: Filed with the Office of the Prosecutor (cf S.1) I 1 A.M: No. 05-8-26-SC amended Rules 112 and 114 and removed the conduct of preliminary investigation from First Level Courts effective 3 October 2005. 2 Cf Rule 112, Section 4: The Information must be signed only by the provincial or city prosecutor, or chief state prosecutor, or the Ombudsman or his deputy, or someone duly authorized by them; Onkingco v. Sugiyama, G.R. No. 217787, 18 September 2019; Quisay v. People, G.R. No. 216920, 13 January 2016. 556 3People I I v. Jugueta, G.R. No. 212124, 5 April 2016; Loney v. People, G.R. No. 152644, 10 February 2006. 4 Cf Rule 119, Sec. 19. 558 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV Acts of Lasciviousness By complaint of offended spouse BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE IAdultery, it; (2) reserves the right to institute it separately before the presentation of prosecution evidence; or, (3) files it prior to the criminal action. Concubinage, Seduction, Abduction, or Acts of Lasciviousness By complaint of By complaint offended party, of the offended even a minor; party or her parents, grandparents, or guardian; or the State, lf she dies or becomes incapacitated and has no p<1-rents, grandparents or guardian As provided therein. Basis: Every person criminally liable is also civilly liable. 5 r against BOTT-I offenders Barred by offended party's consent or p<1-rdon. Criminal Action Once instituted May be filed at any time by the offended party and shall proceed independently of the criminal action. These are actions for damages for violations of constitutional rights and civil liberties; for defamation, fraud and physical injuries; for refusal or failure to render aid by law enforcement and peace officers; and, for quasidelicts.6 May be pursued simultaneously or cumulatively with the civil action ex delicto. 7 Barred by express pardon by the offended party, or her parents, grandparents, or guardian. Rules for Institution of Criminal 559 andCivil Actions: Civil Action ex delicto · Deemed instituted with the criminal action, except: (1) offended party waives (S+5) Independent For Violation of BP Big. 22 (Bouncing Checks Law) Always included in criminal action. No reservation allowed. No counterclaim, cross-claim or thirdparty complaint may be filed by accused in Any such claim may be filed as a separate civil action. civU)iction 5Article 100, The Revised Penal Code of the Philippines. 32, 33, 34 and 2176 et seq, The Civil Code of the Philippines. 7Lim v. Kou Co Ping, G.R. No. 175256, 23 August 2012. 6Articles BAR NOTES IN REMEDIALLAW:CRIMINALPROCEDURE THE PRE-WEEKREVIEWERFORJITTERY BAR TAKERS 560 561 Volume IV arising from the offense is extinguished. 11 the criminal action. It may be litigated in a separate action. 8 If filed ahead of the civil action If filed after the civil action Extinction of criminal action Death of accused, extinguishes criminal liability as to the personal penalties. 10 Cannot be filed separately until final judgment in criminal action. May be filed separately and proceed independently. Suspended at any stage before judgment until final judgment in the criminal action, unless offended party moves for consolidation with the criminal action. May be filed separately and proceed independently. Civil action ex delicto is not extinguished except upon finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.9 Not affected. Independent. If after arraignment and before final judgment, civil liability May be continued or filed against the estate or legal representative of accused. 12 Prejudicial Question (S.6-7) One that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It determines the guilt or innocence of the accused. 13 Requisites Elements Definition 1) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent· criminal action; AND, the resolution of such issue determines whether or not the criminal action may proceed. 14 2) 1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; AND, 2) jurisdiction to try said question must be lodged in another tribunal. 15 3) Where civil and criminal actions are pending and the issues involved in both cases are similar or so An action for specific performance before the HLURB is by nature a civil action but which the law 8 Casupanan v. Laroya, G.R. No. 145391, 26 August 2002. Co v. Munoz, Jr., G.R. No. 181986, 4 December 2013 cited the 3 instances when offended party may still claim civil liability despite accused's acquittal: acquittal is based on reasonable doubt, as only preponderance of evidence is required for the civil claim; if the court declared that the liability of the accused is only civil; and, if the civil liability does not arise from or is not based on the offense for which the accused was acquitted. 10 Article 89., par. 1, The Revised Penal Code of the Philippines; People v. Lipata, G.R. No. 200302, 20 April 2016, citing People v. Bayotas, G.R. No. 102007, 2 September 1994. "Id. 12 People v. Lipata, supra; Cabugao v. People, G.R No. 163879, 30 July 2014. 13People v. Arambulo, G.R. No. 186597, 17 June 2015. 14Rule 111, Sec. 7; San Miguel Properties v. Perez, G.R. No. 166836, 4 September 9 2013. 15People v. Arambulo, supra, citing Sabandal v. Tongco, 419 Phil. 1, 6 (2001), and Prado v. People, 218 Phil. 573, 577 (1984). 562 IBE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV closely related that an issue must be preemptively resolved in the civil case before the criminal action can proceed. 16 requires to be filed with the HLURB. The doctrine of prejudicial question applies. 17 and respondent is probably guilty and should be held for trial. Case for Annulment of Marriage is not a prejudicial question in a criminal case for Parricide. 18 Defutltlon I Authorized Officers I Procedure I Issuance ofWarrant of Arrest I Cases not requiring Pre- liminary Investigation An inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed 16 Provincial or City Prosecutors and their assistants; 1) 2) National and Regional State Prosecutors; Other officers as maybe authorized by law. 19 3) 10 days from receipt of subpoena, respondent shall submit a counteraffidavit and affidavits of his witnesses and other supporting documents, duly subscribed. 3) 1) File complaint with affidavits of complainant and witnesses and other supporting documents, duly subscribed. REGIONAL 1) Inquest TRIAL Cases when a person is arrested without a warrant for an offense requiring preliminary investigation, an inquest will be COURT 1) 10 days from filing of Information, Judge must personally evaluate the resolution of the prosecutor and Domingo v. Spouses Singson, G.R. No. 203287, 5 April 2017. San Miguel Properties v. Perez, supra. 18 Pimentel v. Pimentel, G.R. No. 172060, 13 September 2010. 19 As amended by A.M. No. 05-8-26-SC, effective 3 October 2005, which removed the conduct of preliminary investigation from First Level Court Judges. 17 2) 10 da ys from filing of complaint, Investigating Prosecutor must either dismiss it OR issue subpoena to respondent,.with copies of the complaint and supporting affidavits anddocuments. No motion to dismiss the complaint may be filed. the supporting evidence,and (a) dismiss the case for lack of probable cause; OR (b) if there is probable cause, issue a warrant of arrest or a commitment order, if accused already under ar.:.. rest; OR (c) in case of doubt, order the prosecutor to present additional evidence 5 days from notice, and resolve, with or without compliance by prosecutor, 30 days from filing of information. 563 I conducted instead. Before information is filed, accused may ask for a preliminary investigation but he must sign a waiver under Artide 125 of the RPC. After filing of information in court but within 5days from time accused learns of its filing, accused may ask for a preliminary investigation. 2) Cases with a penalty of less than 4 years, 2 months and 1 day: 564 IBE PRE-WEEK REVIEWER FOR JITrERY BAR TAKERS Volume IV 4) If respondent cannot be subpoenaed, or does not file a counter-affidavit, Investigating Prosecutor shall resolve the complaint. 5) 10 days after submission of counteraffidavit or lapse of period to submit, a hearing may be set by the Investigating Prosecutor if there are facts and issues to be clarified, where parties can be present but will not have a right to crossexamine; FIRST LEVEL COURTS For cases with a penalty of 4 years, 2 months and 1 day or beyond, same procedure as the RTc.20 BAR NOTES IN REMEDlAL LAW: CRIMINAL PROCEDURE (a) if filed with the Office of the Prosecutor, same procedure as regular preliminary investigation. Questions maybe submitted to the Investigating Officer. The hearing shall be terminated within 5 days. (b) if filed with the Municipal Trial Court CASES or the GOVMunicipal ERNED Circuit BYTIIE Trial Court, RULEON (i)dismiss SUMMARY forlackof PROCEprobable DURE cause; (ii) No require initiatory submission warrant of addiof arrest. tional eviWarrant of dence; or, arrest only (iii) issue for nonwarrant attendance of arrest despite if there is notice. probable a) If com- cause, or menced by a commitment complaint order, if - based ZOUyv. Javellana, A.M. No. MTJ-07-1666, 5 September 2012. 6) 10 days after completion ofinvestigation, Investigating Prosecutor shall issue a resolution if there is probable cause to hold respondent for trial. He will then prepare the Information. 21 Otherwise, he will dismiss the corn plaint. 5 days from issuance of 7) 21 Please see Note 2. on complaint and supporting affidavits and other documents, court may dismiss outright and order release of accused if patently without merit or basis. b) If commenced by information orby complaint and it is not dismissed pursuant to (a)- court require accused to submit counter-affl.davit and supporting affidavits and documents 10 days from service of 565 accused already arrested; OR issue summons if there is no necessity to place accused under custody. 566 THE PRE-WEEK REVIEWER FORJITfERY Volume IV resolution by Investigating Officer, foiward record to Provincial or City or Chief State Prosecutor, or to Ombudsman or his Deputy, for approval. 8) 10 days from receipt, act on the resolution. Required for offenses punishable by imprisonnient of, at least, 4 years, 2 months and 1 day, regardless of fine. 2 BAR TAKERS complaint, affidavits and supporting documents. Prosecution may file replyaffidavit 10 days from receipt of counter-affidavit and supporting affidavits and documents. 22 No complaint or informationmay be filed or dismissed by an Investigating Prosecutor without prior written authority or approval of the provin'." cial or city or chief 2section 12, Revised Rule on Summary Procedure; cf Uy v. Javellana, supra. BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE state prosecutor, or the Ombudsman or his deputy. The executive determination of probable cause concerns itself with whether there is enough evidence to support an information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued. 23 23Mendoza The certification required under S.3(a) is mandatory because preliminary investigation does not require a confrontation and it is to ensure that the affidavits are sworn to before a competent officer before whom the affiants must appear to affirm its voluntary execution. 24 v. People, G.R. No. 197293, 21 April 2014, Callo-Claridad v. Esteban, G.R. No. 191567, 20 March 2013. 24 567 568 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume rv BAR NOTES IN REMEDIALLAW:CRIMINALPROCEDURE Probable cause, although it requires less than evidence justifying a conviction, demands more than bare suspicion. 25 Definition The taking of a person into custody in order that he maybe bound to answer for the commission of an offense. (S.l) I Duty and Rights of Arresting Officer To arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. 26 (S.3) The counting of the 12-18-36 hours under Article 125 of the RPC shall exclude "no office days," i.e., election day and other holidays, I When Executed Within 10 days from receipt by law enforcer to whom warrant is addressed for execution. He must make a return of his action thereon to the court which issued it, within 10 days after expiry of period to enforce it. (S.4) The 10day period provided I "when it was not an easy matter for the fiscal to look for his clerk and stenographer, draft the information, and search for the judge to have him act thereon, and get the clerk of court to open the courthouse, docket the case and have the order of commitment prepared. 27 Method of Arrest 1) Bylaw enforcer by virtue of warrant - (a) inform subject of cause of arrest and existence of warrant; EXCEPT if subject attempts to flee, or forcibly resists arrest, or when giving such information will imperil Made by an actual restraint of a person to be arrested, or by his submission into custody of the person making the arrest. (S.2)31 27 28 Not to use violence or unnecessary force, nor subject the person arrested to greater restraint than is necessary. (S.2) in R.113, S.4 is only a directive to the officer executing the warrant to make a return to the court. 28 No alias warrant of arrest is needed to make an arrest; use the original warrant even if enforced beyond the 10day period. 29 Maybe made on any day, and at any time of day or night. (S.6) No law or circular prohibiting the issuance of a warrant of arrest on a Friday. 32 the arrest; (b) need not have warrant at time of arrest, but if subject asks for a copy, show warrant as soon as practicable. (S.7)30 2) Bylaw enforcer without warrant - (a) inform subject of his authority and cause of arrest, EXCEPT if subject is in the act of committing an offense, is Soria v. Desierto, G.R. Nos. 153524-25, 31 January 2005. People v. Givera, G.R. No. 132159, 18 January 2001. 29/d. 25 Supra. 26 Cf. Art. 125, Revised Penal Code. 30Mallari v. Court of Appeals, G.R. No. 110569, 9 J)ecember 1996. 2014. 2007. 31Sanchez v. People, G.R. No. 204589, 19 November 32Colorado v. Agapito, A.M. No. MIJ-06-1658, 3 July 569 570 TI-IE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV being pursued immediately after committing an offense, has-escaped, flees, or forcibly resists before the law enforcer could give such information, or when giving such information will imperil the arrest. (S.8)33 Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be To break in and out of a building or enclosure when making arrest - with or without a warrant (cf S.5), the law enforcer has the right to break into a building or enclosure where person to be arrested is, or is reasonably believed to be, IF he is refused By private person-Ca) inform the subject of intention to arrest him and cause of arrest, EXCEPT if subject is in the act of committing an offense, has escaped, flees, or forcibly resists before the private person could give such information, or when giving an intent on the part of the other to submit, under the belief and impression that submission is necessary. 34 I [;~~ II 11 3) People v. Tan, G.R. Nos. 116200-02, 21 June 2001. admittance after announcing his authority and purpose. He also has the right to break out of such building or enclosure to liberate himself. (S.1112) such information will imperil the arrest. (S.9) Police officer does not have to break into a building or enclosure if the subject of the warrant voluntarily allciws him inside the premises. Entry is lawful.35 4)Byany person, public or private ,- to pursue or re- . take, without · a warrant, a person lawfully arrested who escapes or is rescued; at any time and in any place within · th_ePhilippines. (S.13) LawfulWarrantless Arrest: (S.5) J.n.flagrante delicto J.nhot pursuit Of an escaped convict or detainee "when in his presence, the person to be arrested has committed, is actually committing, or is "when an offense has just been committed and he has probable cause to believe based on personal ."when the person to be arrested is prisoner who has escaped from a penal establishment 34Homar 33 571 35 v. People, G.R. No. 182534, 2 September 2015. People v. Castiller, G.R. No. 87783, 6August 1990. a 572 TIIE PRE-WEEK REVIEWER FOR JI1TERY BAR TAKERS BAR NOTES IN REMEDIAL !AW: CRIMINAL PROCEDURE Volume IV attempting to commit an offense." (S.S[al) knowledge of facts or circumstances that the person to be arrested has committed it." (S.S[b]) Requisites: Requisites: 1) person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting_ to commit a crime; at the time of the arrest, an offense has in fact just been committed; AND, AND, 2) such overt act is done in the presence or within the view of the arresting officer. 36 1) 2) the arresting officer had personal knowledge of facts indicating that the accused had committed it.37 or place where he is seiving final judgment or is temporarily confined while his case is pending, or has escaped while being tr,ansferred from one confi.nement to another." (S.S[cl) Mere receipt of an anonymous text message that someone is going to transport illegal drugs is not sufficient to create probably cause for a valid search without a warrant. Law enforcers cannot act solely on the basis of tipped information: 38 Definition: (S. l) Bail is the security given for the. release of a person in custody of the law, furnished by him or a bondsman, to guarantee· his appearance · before any court as required under the conditions specified. Thus, bail acts as a reconciling mechanism to accommodate both the accused's interest in his provisional liberty before or during trial, and the society's interest in assuring the accused's presence at trial.39 36 comerciante v. People, G.R. No. 205926, 22 July 2015, citing People v. Villareal, G.R. No. 201363, 18 March 2013. 37 /d., citing People v. Cuizon, 326 Phil. 345 (1996). 38 People v. Sapia, G.R. No. 244045, 16 June 2020. 39 Eruile v. Sandiganbayan, G.R. No. 213847, 18 August 2015. 573 Conditions for bail: (S.2) 1) the undertaking shall be eEective upon approval and, unless cancelled, shall remain in force at all stages of the case until promulgation of judgment of tl:e Regional Trial Court, whether the case was originally filed with it or appealed to it; 2) the accused shall appear before the proper court whenever required by the court or by the Rules; 3) the failure of the accused to appear at trial without justification and despite due notice shall be deemed a waiver of his right to be present, and trial may proceed in absentia. 4) the bondsman shall surrender the accused to the court for execution of final judgment. Forms of Bail: (S.l, 10~15) Corporate Surety Bond (S.10) Property Bond Only from surety companies licensed by the Insurance Commission and accredited by the Office of the Court Administrator. Only premium payments are made for the issuance of the bond guaranteeing the full amount of bail required by the court. An undertaking (S.11-13) constituted as a lien on real property given as security for the amount of bail. Within 10 days after approval of bond, accused shall cause annotation of the lien on (a) the certificate of title on file with the Register of Deeds (if land is registered) or in the Registration Cash Bond (S.14) Recognizance (S.15-16) Accused or ari.y person in his behalf may deposit in cash; with the clerk of court or the municipal treasurer where the case is pending, the amount of bail fixed by the court, or recommended by the prosecutor. Court may release a person in custody on his own recognizance or that of a responsible person when allowed by law or the Rules. Upon submission of certificate of deposit and written undertaking, A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without 574 THE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV Book (if land is unregistered) in the Register of Deeds for the province or city where the land lies; and, (b) on the tax declaration in the office of the provincial, city or municipal assessor concerned. Within same period, accused shall submit to court his compliance with above requirements; failure shall be sufficient cause for cancellation of the bond and re-arrest of accused. the warden or person having custody ofaq:used shall release him without necessity of further order from the court. Cash deposit shall be consider~d as baiLand applied to payment of fine and costs. Any excess shall be returned to .accused or whoever made the, deposit. applying the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on bis own recognizance, at the court's -discretion. ,. Bail as a matter of right: Mandatory (S.4) (c) No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of stage of criminal prosecution. (S.7) · All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of· habeas corpus is suspended. Excessive bail shall not be required. Pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal. In the exercise of that discretion, the proper courts are to. be guided by the fundamental principle that the allowance of bail pending appeal should be exercised not with laxity but with grave caution and only for strong reasons, considering that the accused has been in fact convicted by the trial court. 40 .· (a) before or after conviction by any First .Level Court (b) before conviction by the Regional Trial Court of an offense NOT punishable by death, reclusion perpetua, cirlife imprisonment 2) (b) upon conviction by the Regional Trial Court imposing a penalty of imprisonment in excess of 6 years, bail shall be denied or bail cancelled on the following grounds: accused is a recidivist, quasi-recidivist, habitual delinquent, or has committed a crime aggravated by reiteration; accused escaped from legal confinement, evaded sentence, or violated conditions of his bail without valid justification; accused committed the offense while under probation, parole, or conditional pardon; accused is a flight risk; there is undue risk that accused may commit another crime during pendency of appeal. Cf Article III, Section 13, Constitution: Availability of Bail: 1) 575 "Punishable" should be construed to refer to "prescribed" rather than "imposable" penalty. 41 Burden of proof in bail application: (S.8) The prosecution has the burden of showing that the evidence of guilt is strong. Bail when not a matter of right: Discr~tionary (S.5) (a) upon conviction by the Regional Trial Court of an offense NOT punishable by death, reclusion perpetua, or life imprisonment 4°Qui 41 v. People, G.R. No. 196161, 26 September 2012. People v. Valdez, G.R. Nos. 216007-09, 8 December 2015. 576 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV A hearing with notice to the prosecution is mandatory before bail can be granted to an accused who is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment to ascertain if the evidence of guilt is strong. 42 Guidelines in fixing amount of bail: (S.9) BAR NOTES IN REMEDIAL LAW:CRIMINAL PROCEDURE (6) where bail is discretionary or when the accused seeks to be released on recognizance, only in the court where the case is pending, whether on trial or on appeal; (7) any person in custody or detained but who is not yet charged in court, with any court in the station, province, city or municipality where he is held. a) financial ability of accused b) nature and circumstances of offense c) penalty for the offense charged d) character and reputation of accused e) age and health of accused After accused is admitted to bail, court may for good cause either increase or reduce its amount. f) weight of evidence a~ainst accused Forfeiture of Bail andJudgment g) probability of accused appearing at trial h) forfeiture of other bail i) accused was a fugitive from justice when arrested j) pendency Where to post bail: (S.17) If accused fails to appear in person when required, despite notice to him or his bondsman, court shall issue an order against the bondsman (a) forfeiting the bond, and (b) ordering that it produce the accused before the court and show cause why judgment should not be rendered against it, within 30 days from notice. Noncompliance will cause judgment against the bondsman to issue. No reduction or mitigation of the liability of the bondsman shall be granted unless accused is acquitted or has been surrendered. (1) where the case is pending; Cancellation of Bail: (S.21) (2) in the absence or unavailability of the judge of such court, with any Regional Trial Court judge in the same station, province, city or municipality; Bail may be cancelled on motion of the bondsman, with notice to the prosecutor, upon: (3) in the absence or unavailability of any Regional Trial Court judge under (2), with any First Level Court judge in the same station, province, city or municipality; (b) death of accused (4) if accused is arrested in another station, province, city or municipality other than where the case is pending, in any Regional Trial Court judge of said place; (a) acquittal of accused o[ other cases where accused is on bail Excessive bail shall not be required. A written application for bail must be filed and no bail may be granted without the requisite undertaking. 43 Increase or Reduction of Bail: (S.20) against the Bondsman: (S.21) (a) surrender of accused Bail shall be automatically cancelled upon: (b) dismissal of the case (c) execution of judgment of conviction (5) in the absence or unavailability of any Regional Trial Court judge under ( 4), with any First Level Court judge in the same station, province, city or municipality; 42 /d., citing Concerned Citizens v. Elma, A.M. No. RTJ-94-1183, 6 February 1995; Gaea! v. Infante, A.M. No. RTJ-04-1845, 5 October 2011. 43Pantilo III v. Judge, A.M. No. R1}-ll-2262, 9 February 2011. 577 578 THE PRE-WEEK REVIEWER FORJIITERY BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR TAKERS 579 Volume IV Arrest of Accused out on Bail: (S.23) Accused released on bail may be re-arrested without a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. No bail after final judgment of conviction: (S.24) No bail shall be allowed after a judgment of conviction has become final EXCEPT if before finality, accused applies for probation, he may be granted temporary liberty under his bail. If accused filed no bail or is incapable of filing one, court may release him on recognizance to custody of a responsible member of the community: No bail shall be allowed after accused has commenced the service of sentence. Neither can he be released on recognizance once he starts serving his sentence. 44 Court supervision of detainees: (S.25) Court shall exercise supervision of all persons in custody to i::liminate unnecessary detention. Executive Judges ·of the Regional Trial Courts shall conduct monthly jail inspections and submit a report. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) to testify as a witness in his own behalf but sul)ject to crossexamination. (e) to be exempt from being compelled to be a witness against himself. . to confront and cross-examine the witnesses against him at the trial. (g) to have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf; (f) Bail not a bar to objections on illegal arrest, or lack of or irregularity of preliminary investigation: (S.26) An application for or admission to bail is NOT a bar to the accused questioning: (h) to have speedy, impartial and public trial. (a) validity of his arrest; (i) (b) legality of the warrant issued for his arrest; (c) regularity of his preliminary investigation; (d) absence of preliminary investigation; PROVIDED he raises it before arraignment. Waiver applies only if accused voluntarily enters his plea and participates during trial without previously invoking his objettions. In all criminal prosecutions, the accused shall be entitled to the following rights: (a) to be presumed innocent until the contrary is proved beyond reasonable doubt. Cb) to be informed of the nature and cause of the accusation against him. (c) to be present and defend in person and by counsel at every stage of the proceeding, from arraignment to promulgation of judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of ide~tification. 45 to appeal in all cases allowed and in the manner prescribed by law. The right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court Htigation or, if otherwise; of having his guilt 47 determined within the shortest possible time. 44 46Cf 45 47Jacob Adalim-White v. Bugtas, A.M. No. R'IJ-02-1738, 17 November 2005. Leviste v. Alameda, G.R. No. 182677, 3 August 2010. Art. III, Sec. 14(2), Constitution. v. Sandiganbayan, G.R. No, 162206, 17 November 2010. BAR NOTES IN REMEDIALLAW: CRIMINALPROCEDURE 1HE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV 580 How to Make a Plea: Personally in open court, and made of record An accused's non-appearance for trial on a given date shall be deemed a waiver of his right to be present only on that date, and not for the succeeding dates of trial. 48 (in a Certificate of Arraignment). (S.l[b]) (a) If accused refuses to enter a plea, or makes a conditional plea, a plea of not guilty will be entered for him. (S.l[cl) The task of recalling a witness for cross-examination is imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation. 49 Definition: An arraignment is that stage where, in the mode and manner required by the Rules, an accused, for the first time, is granted the opportunity to know the precise charge that confronts him. The accused is formally informed of the charges against him, to which he enters a plea of guilty or not guilty. 50 Procedure for Arraignment: (S.1-7) Where:. Before the .court where complaint or information was filed OR assigned/raffled for trial. (S.l[a]) How: In open court by the iudge or the clerk, by (1) furnishing accused with copy of complaint or information, (2) reading the complaint or information in a language or dialect knmvn to him, AND (3) asking him whether he pleads guilty or not guilty. (S.l[a]) Arraignment of accused in judge's chambers is gross ignorance of the law. The procedural steps laid down in Section l(a), Rule 116 are not empty rituals that a judge can take nonchalantly. Each step constitutes an integral part of that crucial stage in criminal litigation where the issues are joined xxx and without which the proceedings cannot advance further. 51 :-~- f ::ii r ii,, ,!~ (b) If accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (S.l[d]) (c) Accused may plead guilty to a lesser offense necessarily included in the offense charged at arraignment and at any time before trial, WITH CONSENT of offended party AND prosecutor. (S. l[f]) If offended party is absent at arraignment, despite notice, accused may plead guilty to lesser offense necessarily included in the offense charged WITH CONSENT of prosecutor alone. No amendment of the complaint or information is necessary. (S.2) (d) If accused pleads guilty to a non-capital offense, court may conduct discretionary hearing to determine penalty to be imposed.52 (S.4) (e) Before judgment of conviction becomes final, court may allow withdrawal of improvident plea of guilty and substitute it with a plea of not guilty. (S.5) Plea bargaining is a rule of procedure. The Supreme Court has the constitutionally vested rule-making power which is exclusive, i.e., the power to promulgate rules for enforcing rights and duties and administering remedies, and to promulgate rules of pleading, practice and procedure. Hence, Section 23 of RA No. 9165 which prohibits plea bargaining in all drugs cases is unconstitutional.5 3 After arraignment and a plea of riot guilty, plea bargaining was conducted which resulted to a plea of guilty to a lesser offense by accused, and judgment of conviction was thereupon issued approving the plea bargain. Even if all these actions happened in 54 one day, during one court session, all the proceedings are valid. A conviction under a plea of guilty to a lesser offense shall be equivalent to a conviction of the offense charged for purposes of double jeopardy. 55 48 Crisostomo v. Sandiganbayan, G.R. No. 152398, 14 April 2005. 9People v. Abatayo, G.R. No. 139456, 7 July 2004, citing Fulgado v. Court of Appeals, 182 SCRA 81 (1990). 50Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 172476-99, 15 September 2010. 51 Bandoy v. Judge Jacinto, A.M. No. RTJ-14-2399, 19 November 2014, citing People v. Estornaca, 326 Phil. 429, 437 (1996). 581 4 52People v. Flores, G.R. No. 137491, 23 November 2000. v. Judge Lobrigo, G.R. No. 226679, 15 August 2017. 54Bug-atan v. People, G.R. No. 175195, 15 September 2010: 55Heirs of Gevero v. Guihing Agricultural, G.R. No. 122619, 18 August 2006. 53Estipona 582 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE It is settled that a plea of guilty not merely joins the issues of the complaint or information, but amounts. to an admission of guilt and of the material facts alleged in the complaint or information.and in this sense takes the place of the trial it,self. Such plea removes the necessity of presenting further ev_idence and for all intents and purposes the case is deemed tried on the merits and submitted for decision. It leaves the court with no alternative but to impose the penalty prescribed by law. 56 (d) give appointed counsel de o.ficio reasonable time to confer with accused before arraignment. (S.8) When a defendant appears at the arraignment without an attorney, the court has four important duties to comply with: 1. It must inform the defendant that it is his right to have an attorney before being arraigned; 2. After giving him such information, the court must ask him if he desires the aid of an attorney; 3. If he desires but is unable to employ an attorney, the court must assign an attorney de o.ficioto defend him; and, 4. If the accused desires. to procure an attorney of his own, the court must grant him reasonable time therefor. 59 For a withdrawal of an improvident ple~ of guilty, there should be a categorical declaration from the accused that.he is withdrawing his plea of guilty and substituting it with a plea of not guilty.57 Convictions based on an improvident plea of guilty are set aside only if such plea is. the sole basis .of the judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained because then it is predicated not merely on the guilty plea but on evidence proving the commission of the offense charged. 58 Plea Bargain i, I .fl -ii i~' When: (a) If accused is a detainee, arraignment. within 10 days from receipt of case (by raffle or filing, if single sala ~burt);J're-trial shall be conducted within 10 days from arraignment. (S.l[e]) (b) If accused is a non-detainee, arraignment within 30 days from receipt of case (by raffle or filing, if single sala couit) ..Pre~trial shall be conducted within 30 days from arraignment. (S; l[g]) Duty of Court: (a) inform accused of right to cc;mnsel of his choice; (S.6) . 1W' . i: 0\ J- i -:4 ! I ! ., * tt g #r (b) if accused cannot afford counsel, or is not.allowed to c;iefend himself, ask accused if he wants a counsel de o.ficfo tb be appointyd to represent him; (S.6-7) (c) if accused confirms that he wants a counsel de o.ficio,appoint one for him who is a member of the bar in good standing and competent (based on experience and ability). Where such members of the bar are not available, court may appoint any resident of the province of good reputation for probity and ability. {S.7) I i li l ~,, ;.{ '.~i'- A plea bargain is a procedural rule. Therefore, Section 23 of R.A. No. 9165, which prohibits plea bargain in drug cases, is an unlawful encroachment by the legislature on the Supreme Court's exclusive rule-making authority. It is unconstitutional and void. 60 A plea bargain shall require mutual agreement of the parties and remains subject to the approval of the court. The acceptance of an offer to plead guilty to a lesser offense is not demandable by the accused as a matter of right, but is addressed entirely to the sound discretion of the trial court. 61 Interim Remedies of Accused: (a) Bill of Particulars: accused may move for a bill of particulars before arraignment to enable him to properly plead and prepare for trial, specifying the alleged defects of the complaint or information and the details desired. (S.9) (b) Motion for Production or Inspection of Material Evidence in Possession of Prosecution: accused may move for the prosecution to produce and permit inspection and copying or photographing of any written statement of the complainant and other witnesses in any investigation of the offense charged conducted, as well as other papers or tangible objects, not otherwise privileged, which constitute material evidence and which are in the possession or under control of the prosecution or law enforcement agencies, to prevent· surprise, suppression, or alteration. (S.10) ,,r -~ 56 People v. Flores, supra. 57 People v. Solamillo, G.R. No. 123161, 18 June 2003. ssld. 583 I if 59 Gamas v. Judge Oco, A.M. No. MIJ-99-1231, 17 March 2004. v. Lobrigo, G.R. No. 226679, 15 August 2017. 61 Sayre v. Judge Xenos, G.R. Nos. 244413, 244415-16, 18 February 2020. 60Estipona 584 BAR NOTES IN REMEDIALLAW:CRIMINALPROCEDURE THE PRE-WEEKREVIEWERFORJl1TERY BAR TAKERS Volume IV Suspension of Arraignment: Judge went beyond her authority when she dismissed the cases based on lack of probable cause and not on the ground raised in the motion to quash. 64 ____ _ Grounds: (S.3) (S.11) Upon motion of a party, arraignment shall be suspended: if accused appears to be suffering from an unsound mental condition which renders him unable to fully understand the charge against him and to plead intelligently thereto. Court shall order hjs mental examination and, if necessary, his confinement for such purpose. (1) (2) if there exists a prejudicial question. (3) if a petition for review of the resolution of the prosecutor is :pending at the DOJ or Office of the President, provided that.the period of suspension shall not exceed 60 days from the filing of the petition. While the penderi.cy of a petition for review is a .ground for suspension of arraignment, the deferment of · arraignment to a period of 60 days reckoned from·the filing of the petition with the· reviewing office. It follows, therefore, that after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment. 62 When to File: Before entering a plea at arraignment. 63 (S.1) Form and Contents: Written, signed by accused or counsel, state factual and legal grounds. (S.2) 62 ABS-CBNv. Gozon, G.R. No. 195956, 11 March 2015, citing Samson v. Daway, 478 Phil. 784 (2004). Cf Aguinaldo v. Ventus, G.R. No. 176033, 11 March 2015. 63 State Prosecutor and Special Prosecutor on SSS Cases v. Judge Paqueo, Jr., G.R. No. 150606, 7 June 2007. See also People v. Andrade, G.R. No. 187000, 24 November 2014. 585 1) facts charged do not constitute an offense; The basic test to assess if the facts d1arged do not constitute an offense is to determine if the facts averred establish the presence of the essential elements of the crime as defined by law. In the appraisal of the Information, matters aliunde are not taken into accou_nt.65 2) court has no jurisdiction over the offense charged; l: ~ J:1 3) court has no jurisdiction over the person of the accused; 4) officer who filed the information had no authority; 66 A Regional State Prosecutor is not among the officers authorized to approve the filing or dismissal of an information. 67 I 5) the complaint or information does not conform substantially to the prescribed form; ! 6) more than one offense is charged, except when a single punishment for various offenses is prescribed.by law (complex and compound crimes); ;,,; I :j irf 'I I General Rule: a complaint or information must charge only one offense Except: (a) Complex Crimes and Compound Crimes (b) Waiver - if accused is arraigned without raising the objection through a motion to quash, the court may convict him of as many offenses as are charged and proved and impose upon him the proper penalty for each offense. 68 7) extinction of criminal action or liability; 8) the complaint or information contains averments which, if true, constitute a legal excuse or justification; 64People v. Andrade, supra. v. Bayabos, G.R. No. 171222, G.R. No. 174786, 18 February 2015. 66Quisay v. People, supra. 67State Prosecutor and Special Prosecutor on SSS Cases v. Judge Paqueo, Jr., supra. 68 People v. Jugueta, G.R. No. 202124, 5 April 2016, citing People Court of Appeals 21st Division, G.R. No. 183652, 25 February 2015. 65People v. 586 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV 9) accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otheryvise terminated without his express consent. Amendment of Complaint or Information: (S.4) If MTQ is based on alleged defect in the complaint or information which can be cured by amendment, court shall order an amendment. If MTQ based on ground that facts charged do not constitute an offense, court shall give prosecution a chance to amend to correct the defect. 69 If prosecution fails to amend or despite amendment, complaint or information still suffers from same defect, court shall GRANT the MTQ and quash the complaint or information. Effect of Quashal: (S.5-6) Court MAY order a new complaint or information to he filed (except if ground for quashal is double jeopardy or extinction of Criminal action or liability). If accused is in custody, he will not be discharged unless admitted to bail. If court does NOT order filing of new complaint or information, OR none is filed despite court order, the accused who is in custody shall be discharged unless held for other lawful cause. Order granting MTQ is not a bar to another prosecution for same offense EXCEPT if ground was double jeopardy or extinction of criminal action or liability. Once the court issues an order granting a motion to quash and such order becomes final and executory, there is nothing more to amend. Under Section 5, the trial court has the discretion to order the filing of a new information within a specified period, which must be contained in the same order granting the motion to quash. Otherwise, such order lapses into finality and the court may no longer direct the filing of a new information. The accused if detained shall be released. 70 587 Failure to Move to Quash: (S.9) fi t"f, i I ,, I [I 11 1: Failure to move to quash before arraignment, orto invoke any · ground therefor, shall be a WAIVERof any ground not so pleaded EXCEPT (a) that the facts charged do not constitute an offense; (b) court has no jurisdiction over offense charged; (c} criminal action or liability has been extinguished; and, (d) doublejeopardy (accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent). DoubleJ~pardy (S.7) When is there double jeopardy: (1) when an accused has been convicted, or ac;quitted, or the case against him -dismissed, or otherwise terminated, without his express consent; (2) by a court of competent jurisdiction; (3) upon a valid complaint or information, or other formal charge sufficient in form and substance to sustain a co~vktion;- and, (4) after the accused has_pleaded to the char~e:/has beet}_arraigned. Effect: It shall be a barto another prosecution for: (a).the same offense charged, or (b) an attelllpted_ or frustrated co~ssion of the same,_or (c) any offense which necessarily includes or is necessarily included in the offefue charged in the_first complaint or information. Except: (a) if the graver offense developed due to supervening facts arising from the same act or omission constituting the fonner charge; (b) if the facts constituting the graver charge became kno.wn or were discovered o.nly after a plea was entered in the first complaint or information. (c) if the plea of guilty to a lesser offense was made without consent of the prosecutor and of the offended party, as required under R.116, S.l[fl. An appeal by the prosecution from an order of dismissal by the trial court shall not constitute double jeopardy if (1) the. dismissal is made 69 People v. Andrade, supra. Gonzales v. Judge Salvador, G.R. No. 168340, 5 December 2oo6. 70 upon motion, or with the express consent of the accused; (2). the THE PRE-WEEK REVIEWER FORJITfERY 588 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR TAKERS 589 Volume IV dismissal is not an acquittal, or based upon consideration of the evidence, or of the merits of the case; and, (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings to determine the guilt or innocence of the accused. 71 The dismissal order grounded on the denial of respondent's right to speedy trial is a final order that is not appealable and is immediately executory. Provisional Dismissal (S.8) Requisites: Nature: Nature: Mandatory Mandatory Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties and to take the trial of cases out of the realm of surprise and maneuvering. Its chief objective is to simplify, abbreviate and expedite or dispense with the trial.74 When: When: If accused detained, together with arraignment within 10 days from court's receipt of case. (2) offended party is notified of the motion; After arraignment and within 30 days from date court acquired jurisdiction over the accused. (S.l) (3) court issues an order granting the motion and dismissing the case provisionally; AND, Matters to be taken up: Matters to be taken up: (a) plea bargaining ·Same, strict adherence to A.M. No. 03-1-09-SC (1) prosecution, with the express conformity of accused, OR accused, OR accused and prosecution jointly, MOVE for provisional dismissal of the ca~; (4) public prosecutor is served with a copy of the order of provisional dismissal. 72 Under Rule 118 and SC Circular 38-98 Implementing the Speedy Trial Act Urider The Revised Guidelines for Continuous Trial of Criminal Cases 73 Applicability: Applicability; All criminal cases in all courts. Newly-filed criminal cases, including those governed by special laws and rules First and Second Level Courts, Sandiganbayan, and Court of Tax Appeals 71 Morillo v. People, G.R. No. 198270, 9 December 2015. Atty. Bonsubre, Jr. v. Yerro, G.R. No. 205952, 11 February 2015, citing Los Bafios v. Pedro, 604 Phil. 215, 229 (2009). See also Co v. New Prosperity Plastic Products, G.R. No. 183994, 30 June 2014. 73A.M. No. 15--06-10-SC,1 September 2017. (b) stipulation of facts If accused not detained, together with arraignment within 30 days. (c) marking for identification of evidence of parties (d) waiver of objections to admissibility of evidence (e) modification of the order of trial if accused admits the charge but interposes a lawful defense such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (S.1) (f) Pre-trial Agreements: All agreements or admissions made or entered during the pre- Stipulations: Proposals for stipulations shall be done with the active participation 72 74 Zaldivar v. People, G.R. No. 197056, 2 March 2016, citing LCK Industries, Inc. v. Planters Development Bank, 563 Phil. 957, 968-969 (2007). 590 THE PRE-WEEK REVIEWER FORJITfERY BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR TAKERS 591 VolumeN trial conference shall be reduced to writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. The agreements shall be approved by the court. (S.2) of the court itself and shall not be left alone to the counsels. Non-appearance Absence of Parties: If counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose_ proper sanctions or penalties. (S.3) The court shall proceed with the pre-trial despite the absence of the accused and/ or private complainant, provided they were duly notified, and counsel for the accused as well as· the public prosecutor are present. Court may sanction or penalize counsel for non-appearance subject to these rulE!s: (1) counsel does not appear at the pre-trial, AND (2) counsel does not offer an acceptable excuse. 75 Marking of Evi~nce: The documentary evidence of the prosecution. and the accused shall be marked, Pre-Trial Order Pre-Trial Order After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during trial, unless modified by the court to prevent manifest injustice. (SA) Within 10 days from date of pretrial.. (A.M. No. 03-1-09-SC) The Pre-Trial Order shall irnn1ediately be served upon th~ parties arid counsel on the same day after the termination of the pre-trial. 75 Garayblas v. Hon. Ong, et al., G.R. Nos. 174507-30, 3 August 2_011. .# r (f Under Rule 119 and SC Circular 38-98 Implementing the Speedy Trial Act Under The Revised Guidelines for Continuous Trial of Criminal Cases 76 Time to prepare for trial: Time to prepare for trial: After a plea of not guilty, accused shall have, at least, 15 days to prepare for trial. Trial shall commence within 30 days from receipt of the pre-trial order. (S.l) Trial shall be set within 30 days from conclusion of pre-trial. Continuous Trial until terminated; postponements Where no plea bargaining or plea of guilty takes place Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. If the accused does not enter a plea of guilty, whether to a lesser offense or to the offense charged in the information, the court shall immediately proceed with the arraignment and the pre-trial. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other shortcterm trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed 180 days from the first day of trial, except as otherwise authorized. (S.2) The schedule of the trial dates, for both the prosecution and the accused, shall be continuous and within the periods provided in the Regular Rules/Special Rules. The trial dates may be shortened depending on the number of witnesses to be presented. In this regard, a flowchart shall be prepared by the court, which shall serve as the final schedule of hearings. Factors for Granting Continuance: Motion for Postponement: a) Whether the failure to grant a continuance would likely make continuation of the proceeding PROHIBITED except if based on: (a) acts of God; (b) force majeure, or, (c) physical inability ·- 76A.M. No. 15-06-10-SC, 1 September 2017. 592 THE PRE-~'EEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV impossible, or result in miscarriage of justice. of the witness to appear and testify. of time under S.3, to justify delay. b) Whether the case as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods established. Grant of postponement will nevertheless not extend or add to the party's period to present evidence. The party shall still complete his evidence presentation on the dates previously agreed upon. Dismissal on this ground is a dismissal on the merits and shall be subject to the rule on double jeopardy. No continuance shall be granted because of: congestion of court calendar; prosecution's lack of diligent preparation; failure to obtain available witnesses by the prosecution. (S.4) A motion for postponement must always be accompanied by official receipt of payment of the postponement fee, absent which, the motion will not be accepted by the court. Only delays resulting from proceedings concerning accused may be excluded from computation of time within which trial must commence under Section 3. Hence, time during which a petition to transfer venue filed by complainant is pending cannot be excluded from the 30day time limit from receipt of pretrial order to commence trial.77 Failure of accused to move for dismissal on this ground PRIOR TO TRIALshall constitute a waiver of his right to dismiss under this section. But, this rule shall not be a bar to any charge of denial of the accused'a right to speedy trial under the Constitution. (S.9-10) Accused has onus to prove beyond reasonable doubt the factual basis and demonstrate that delay is vexatious, capricious, oppressive, while prosecution is required to present evidence that the delay was reasonable and attributed to ordinary processes of justice, and that accused suffered no prejudice. Absent showing of bad faith or gross negligence. delay caused by the lapse of prosecution is not violative of the right to a speedy trial.78 Remedy where accused not brought to trial within the time limit Information may be dismissed on motion of the accused on ground of his right to speedy trial. Four-fold factors to determine if accused has been deprived of his right to speedy trial: (1) length of delay; (2) reason for delay; (3) accused's assertion of his right; and, ( 4) prejudice to accused caused by delay. 79 Burden of proof will be on accused-movant, but the prosecution will have the burden of evidence to establish exclusion 78 nchurchill v. Mari and People, G.R. No. 187728, 12 September 2011. Spouses Uy v. Judge Adriano, G.R. No. 159098, 27 October 2006. citing Corpuz v. Sandiganbayan, G.R. No. 173637, 21 April 2009. 79/d., 593 594 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 595 Volume IV Order of Trial (S.11-15) Trial 1st: prosecution present evidence to prove charge and civil liability, where proper (a) Court shall encourage accused and prosecution to avail of: 2nd: accused MAY present evidence to prove his defense and damages, if any arising from issuance of provisional remedy i. conditional examination of witness for accused before trial under R.119, S.12-13. 3rd: prosecution MAY present rebuttal evidence ii. conditional examination of prosecution witness under R.119, S.15. 4th: defense MAY present surrebuttal evidence Cb) If accused's counsel de parte 5th: after admission of respective evidence of parties, case shall be submitted for decision is absent, hearing shall proceed upon court appointment of counsel de o.ftcio. 6th: when accused admits the charge but interposes a lawful defense, order of trial may be modified (c) The offer of evidence, the comments/ objection, and the court ruling shall all be made orally on the same day after the presentation of the party's last witness. Counsel shall cite the specific page number of court record where exhibit being offered is found. If exhibit being offered is not attached to record, party offering must submit the same during the offer in open court. Discretionary on the part of the court as shown by the word "may."00 7th: once charged, accused may file a motion, with supporting affidavit/s, to have a witness conditionally examined if there is reasonable ground to believe he will not be able to attend trial because he is (a) sick or infirm, (b) resides more than lOOkms from place of trial and has no means to attend, or (c) other similar circumstances that will make the witness unavailable or prevent him from attending. (S.12) (e) If court grants motion to present rebuttal evidence, prosecution shall immediately proceed with it after accused rests his case. After prosecution orally rests, accused shall immediately present sur-rebuttal evidence, if any, and then orally rest The If motion is granted, court will order examination on a specific date, time and place, with notice to prosecutor 3 days, at least, before date of examination, before a judge or a lawyer designated by the court in the order. If prosecutor fails to appear despite notice, examination shall proceed. (S.13) • I ~ 1 ~ f I i i t ~ t t• t ~ I i People v. SPOl Ma~cial, G.R Nos. 152864-65, 27 September 2006. One-day examination of witness rule: a witness has to be fully examined in one day. (f) (g) Submission of memoranda is discretionary with the court. Period to submit shall be inextendible and shall not suspend the running of the period to decide the case. Taking of deposition in a criminal case may be allowed only in exceptional situations to prevent Form of testimony: a failure of justice. Conditional examination of defense witnesses (a) First Level Courts who are in the USA is denied In all criminal cases, including for not being necessary because those governed by Summary other witnesses are available to Procedure; testimony shall be testify on the same facts and the (1) the duly subscribed written proposed testimonies are rrierely statements given to law enforcers corroborative. 81 or peace officers; (2) the affidavits For purposes of taking deposition submitted.before the investigating prosecutor; (3) in.the absence in criminal cases· under Sections of (1) and'(2), judicialaffidavits; 12, 13, and 15, the conditional subject to· additional direct and examination must be made before the court where the case is I cross-examination questions. pending. 82 (b) Second Level Courts, SB and CTA 8th: if a material witness will not testify when required by the Testimony shall be (1) the duly court, he may be ordered to post subscribed written statements bail and upon refusal, may be given to law enforcers• or imprisoned until he complies or peace officers; (2) the affidavits testifies. (S.14) submitted before investigating prosecutor; (3) in the absence 9th: if a prosecution witness (a) of {l) and (2), judicial affidavits; is too sick or infirm to appear at subject to additional direct and trial, (b) has to leave the the 81 80 case shall then be submitted for decision. 8 Jaylo v. Sandiganbayan, G.R. No. 111502-04, 22 November 2001. 2Go v. People, G.R. No. 185527, 18July 2012. 596 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE VolumeN Philippines with no definite date of returning, he may be conditionally examined before the court where the case is pending, with notice to accused. But examination may proceed in absence of accused if he is notified but fails to appear. It will be deemed a waiver. (S.15) 10th: The public may be excluded from the courtroom: (a) upon the court's own motion, if the evidence to be produced is offensive to decency or public morals; or, (b) upon the accused's motion. (S.21) 11th: At any time before judgment, the court may (a) on its own initiativ~, or (b) upon motion of a party, after due hearing, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within 30 days from the order granting reopening. (S.24) Right of the accused to a fair trial versus the right of the people to public information and freedom of the press: the request to televise live the trial of former President Joseph Estrada before the Sandiganbayan was NOT allowed putting primacy on the accused's right to a fair trial. Instead, the Court allowed, for documentary purposes only, the recording of the proceedings but to be aired only after the decision cross-examination questions-, in cases: of the Sandiganbayan shall have been promulgated. 83 (i) where the demeanor of witness is not essential in determining credibility, such as forensic chemists, medico-legal officers, investigators, auditors, engineers, custodians, expert witnesses and other similar witnesses who will testify on authenticity, due execution and contents' cifpublic documents and reports; in. cases that are transactional in character, such as falsµication, malversatioi;1, estafa, or other crim~s where guilt or innocence of accused can be established through documents: (ii) Requisites for reopening of trial: (1) reopening must be before finality of a judgment of conviction; .(2) the order is issued by the court motu proprio or upon motion; (3) the order is issued only after a hearing; ( 4) the order is intended to prevent a miscarriage of justice; and, (5) the presentation of further evidence should be terminated within 30 days from issuance of the order. 84 i :l ,t,;, i'ffe ,:,_,, 1:~t· Ji ~ ·}.. l; ti, [;{ l ,f ll J_ Discharge of accused to be State witness (S.17) When 2 or more persons are jointly charged, upon prosecution's motion before resting its case, court may direct the discharge of 1 or more accused as State witness, after hearing and it is satisfied, based on evidence and sworn statements of the proposed State witness, that: (a) there is absolute necessity for testimony of accused sought to be discharged; -i~. ~ He alone has knowledge of the crime. His testimony would not simply be corroborative or additional. 85 83 Secretary of Justice v. Estrada, A.M. No. 01-4-03-SC, 13 September 2001. Cabarles v, Judge Maceda, G.R. No. 161330, 20 February 2007. 85 Jirnenez, Jr. v. People, G.R. No. 209195, 17 September 2014. 84 597 598 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV (b) there is no other direct evidence available for the proper prosecution of the offense except the testimony of the accused sought to be discharged; (c) the testimony can be substantially corroborated on its material points; Order of discharge as State witness is equivalent to an acquittal and shall be a bar to future prosecution for same offense, UNLESSaccused fails or refuses to testify against his coaccused in accordance with his sworn statement. (S.18) Corroboration is required on material points only, not on all points. 86 Mistake in charging proper offense (S.19) (d) accused sought to be discharged does not appear to be the most guilty; and, "Most guilty" refers to the highest degree of culpability in terms of participation in the commission of the offense, and not necessarily the severity of the penalty imposed. A principal by inducement is not automatically the most guilty in a conspiracy. 87 (e) accused sought to be discharged has not been convicted of an offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of trial. If motion for discharge is denied, the sworn statement of accused sought to be discharged shall be inadmissible in evidence. ( ~ ff; IJ,; i I; ~ ~. i'I I * When it becomes manifest at anytime before judgment, that a mistake has been made in charging the proper offense and accused cannot be convicted of the offense charged or any other offense necessarily included therein, accused shall be held to answer the proper offense and the court shall dismiss the original charge upon filing of a new charge. (cf R.110, S.14 infra.) Test to determine if amendment or substitution: where the 2nd Information involves the same offense, or an offense which necessarily includes or is necessarily included in the 1st Information = amendment. Where 2nd Information charges an offense which is distinct and different that charged in the 1st Information= substitution. 88 Test whether rights of the accused are prejudiced by the amendment: (a) whether 86/d. 87/d. BBssgt.Pacpy v. Judge Cajigal, G.R. No. 157472, 28 September 2007. 599 600 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 601 Volume IV case is already at trial, evidence so far presented may be adopted subject to additional direct and cross-examination. a defense under the original information would no longer be available after the amendment; (b) whether any evidence the accused might have under the original information would be inapplicable after the amendment. 89 Consolidation (S.22) Offenses founded on same facts or forming part of a series of offenses of similar character may be tried jointly, in the court's discretion. Requisites for consolidation of cases: (1) where the actions arise from the same act, event, or transaction, involve the same or like issues; (2) depend largely or substantially on the same evidence; (3) the court has jurisdiction over the cases to be consolidated; and, ( 4) joint trial will not give one party undue advantage, or prejudice the substantial rights of any party. 90 Demurrer to Evidence (S.23) Demurrer to Evidence WHEN: WHEN: After prosecution has rested its case After prosecution has rested its case Consolidation HOW: HOW: (a) Newly filed cases: if based on same facts or forming part of a series of offenses of similar character and there is a motion for consolidation from the Prosecutor, the Executive Judge shall cause raffle of the case to only one court, which shall resolve the motion on date of arraignment in presence of accused afid counsel. Court may dismiss action on ground of insufficiency of evidence, upon demurrer to evidence: (1) on its own initiative, after giving prosecution an opportunity to be heard; or (2) filed by accused, with or without leave of court. Court shall inquire from accused if he will: (a) file a motion for leave to file demurrer; or (b) proceed with his eviqence presentation. (b) Pending cases with multiple accused: where a subsequent Information is filed involving an accused who has been subjected to further investigation over an incident which has same subject Expediency is the main reason for matter as a prior Information against different accused, consolidation. Another reason is the subsequent case filed to avoid possibility of conflicting accompanied with a motion for decisions and multiplicity of consolidation from the Prosecutor 91 suits. shall no longer be raffled, but assigned directly by the Executive Judge to the court where the prior case is pending. If prior 89 Supra. People v. Sandiganbayan, G.R. No. 149495, August 21, 2003. 91 /d., citing Querubin v. Palanca, 141 Phil. 432, 29 November 1969; see also Benguet Corporation v. Court of Appeals, 165 SCRA 265, 31 August 1988. 90 ,;,(., t~ ii, j,> I~ tfl I !1 l•,j:~ i,t( II l: ~ '} t I !);' i Motion for leave to file demurrer filed within inextendible 5-day period after prosecution rests its case. If leave granted, demurrer must be filed within 10 days from notice. Prosecution has inextendible 10-day period to oppose demurrer. Denial of motion for leave or of the demurrer itself cannot be questioned by appeal or certiorari. Appeal and certiorari are not available to review a denial of a demurrer to evidence. The proper recourse is to go to trial and in case of conviction, the accused may appeal such conviction and assign the denial as an error. However, where necessary to prevent a substantial wrong or to If accused orally moves for leave to file demurrer, court shall orally resolve the same. Demurrer shall be filed within inextendible 10-day period from notice. Prosecution has inextendible 10-day period to oppose demurrer. Court shall resolve within inextendible 30-day period from filing of opposition or lapse of period to file it. EFFECT: (a) If court denies leave: court to issue order for accused to present evidence on dates previously agreed upon, ;md orally offer on last date of evidence presentation. (b) If court grants leave but the demurrer itself is denied: court to issue order for accused to present evidence on dates previously agreed upon, and orally offer on last date of evidence presentation. ?11 602 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIALLAW:CRIMINALPROCEDURE do substantial justice, certiorari under Rule 65 may be issued. 92 603 conclusions of the court. This is demanded by due process and fair play. 95 EFFECT: Contents: (S.2) If court denies demurrer: (a) if filed with leave of court accused may present evidence. Judgment of Conviction: (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory; (3) the penalty imposed; and ( 4) the civil liability or damages caused by the wrongful act or omission to be paid by the accused to the offended party, if any. 96 (b) if filed without leave of court - accused waives right to present evidence and case is submitted for judgment based on prosecution evidence. The grant of a demurrer to evidence amounts to an acquittal, and the dismissal order may NOT be appealed as this would place the accused in double jeopardy. It may be reviewed only through certiorari under Rule 65.93 Judgment of Acquittal: (1) state whether the evidence of the prosecution absolutely failed to prove the guilt of accused OR merely failed to prove his guilt beyond reasonable doubt; (2) determine if the act or.omission from which civil liability might arise did notexist. 97 Judgment for 2 or more Offenses: (S:3) 98 Definition: (S.l) It is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. Form: (S.1) It must be (1) written in the official language, (2) personally and directly prepared by the fudge, (3) signed by him, and (4) shall contain clearly and distinctly statement of the facts and the law upon which it is based. 94 ~- } tf 1 '.'l j 1 1 tf lI ·t The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the l ot When 2 or more offenses are charged in a single complaint information but accused fails to object before trial, the court may convict him of as many offenses as are charged and proven, and impose on him the penalty for each offense, setting out separately the findings of fact and lawin each offense. 99 Judgment in case of Variance between Allegation and Proof: (S.4) When there is a variance between the offense charged in the complaint or information and that proven, and the offense as charged is included in or necessarily includes the offense proven, the accused shall be convicted of the offense proven. i 92Macapagal-Arroyo v. Sandiganbayan, G.R. No. 220598, 19 July 2016. v. Sandiganbayan 2nd Division, G.R. No. 197953, 5 August 2015, citing People v. Sandiganbayan, 661 Phil. 350 (2011); Dayap v. Sendiong, G.R. No. 177960, 29 January 2009. 94Cf Art. VIII, Sec. 14, Constitution: No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. 93People ~an y, Ramirez, G.R. No. 158929, 3 August 2010, citing Yao v. Court of Appeals, 398 Phil. 86 (2000). · 96Bacofod v. People, G.R. No. 2o6236, 15 July 2013. 97Garces v. Hernandez, Jr., G.R. No. 180761, 9 August 2010. 98 Cf Rule 110, Sec. 13. 99people v. Lindo, G.R. No. 189818, 9 August 2010. 604 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE 605 Volume IV When an offense includes or is included in another: (S.5) An offense charged necessarily includes the offense proven when some of the essential elements or ingredients of the offense charged as alleged in the complaint or _information, constitute the offense proven. An offense charged is necessarily included in the offense proven when the essential elements or ingredients of the offense charged constitute or form part of the essential elements or ingredients constituting the offense proven. Accused was charged with Qualified Rape but was convicted of the lesser offense of Acts of Lasciviousness against a child. 100 Accused was charged with Rape by sexual intercourse (organ rape) but what was proven was Rape by sexual assault (instrument or object rape). Theconviction was invalid for being violative of the accused's right to 'be informed of the nature and cause of the accusation against him. Rape by sexual assault is not necessarily included. in Rape by sexu,~l intercourse. The two have material differences in the mode of commission. 101 Promulgation ofJudgment: (S.6) Under Rule ,;zo (1) By reading it in the presence of the accused and any judge of the courUn which fr was . rendered. (2) If conviction is f9r a light , offense, judgment i:nay"be·· promulgated· in the presence of accused's counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. 100 Under The Revised Guidelines for Continuous Trial of Criminal Cases 102 (a) Schedule of promulgation The court shall announce in open court and incl1,1dein the order submitting the case for decision, the date of promulgation of its decision, which shall not be more than 90 days from the date the case was submitted for decision, except when the case is covered by special rules and laws which provide a shorter period. People v. Sumingwa, 618 Phil. 650 (2009). People v. Pareja, G.R. No. 202122, 15 January 2014. 102 Supra at Note 73. 101 (3) If accused is confined or detained in another province or city, judgment may be promulgated by the Executive Judge of the Regional Trial Court which has jurisdiction over the place of confinement or detention upon request by the court which rendered the judgment. (4) If the conviction changed the nature of the offense from non-bailable to bailable, the application for bail shall only be filed and resolved by the appellate court. (5) Clerk of court shaU give notice to (a) accused OR (b) his bondsman (if out on bail) or warden (if detained) AND (c) to his counsel. If accused jumped bail and was tried in absentia or escaped from prison, notice shall be served at his last known address. (6) Ifaccused fails to a1212ear at the schecluled womulgation des12ite notice, judgment shall be promulgated by recording it in· the c~l docket and serving accused a copy at his last known address OR through his counsel. If judgment is, for conviction and non-appearance is without justifiable cause, accused shall lose all remedies against the judgment and the court shall order his arrest. Within 15 days from promulgation, accused may surrender and file a motion for leave of court to avail of these (b) A motion for reconsideration of judgment of conviction or motion for new trial under Rule 121, filed within the reglementary period of 15 days from promulgation, shall be resolved within an inextendible 10-day period from submission of the prosecution's comment or lapse of the period to file one. f t 606 THE PRE-WEEK REVIEWER FORJITfERY BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR TAKERS 607 Volume IV remedies, stating the reason for his absence. If the reason for absence is. justifiable, the accused • shalLbe allowed to avail of the remedies within 15 days from notice. 103 GROUNDS: GROUNDS: (1) Errors of law (1) Errors of law or irregularities (2) Errors of fact which require no further proceedings. (S.3) Modification of Judgment: (S. 7) A judgment of conviction may be modified or set aside, upon motion of accused, before it becomes final or before an appeal is perfected. Except where the death penalty is imposed, a judgment becomes final: (a) after -lapse of the period to appeal; (b) when the sentence has been partially or totally satisfied or served; (c) when the accused has waived in writing his right to appeal; or, (d) when the accused has applied for probation. the Entry of Judgment: (S.8) After. a judgment becomes final, it shall be entered in the Book of Judgments of the .court. The date of finality of the judgment shall be deemed to be the date of its entry:105 WHEN: any time before judgment of conviction becomes final (S.1) HOW: (l)·upon motion of accused; or, (2) at court's own instance, bot with consent of accused (S.1) An erroneous admission or rejection of evidence by the trial court is not a ground for new trial or reversal of the decision if there are other independent evidence to sustain the decision, or if the rejected evidence, if it had been admitted, would not have changed the decision. 107 Motio~ fc,r New Trial IWHEN: any time before judgment of conviction becomes finaF(S})_ HOW: (1) upon motion of accused; or, (2) at court's own instance, but with consent of accused (S.l) 10 3Salvador v. Chua, G.R. No. 212865, 15 July 2015; Jaylo v. Sandiganbayan,'G.R. Nos. 183152°54, 21 January 2015. 104 Villareal v.People, G.R. Nos. 151258, 154954, 155101, 178057, 178080, 1 December 2014. 105 C/ Rule 36,Sec. 2, Rules of Court. (2) New and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. (S.2) Newly discovered evidence refers to that which: (a) is discovered after trial; (b) could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) is material, not merely cumulative, corroborative or impeaching; and, (d) is of such weight that it would probably change the judgment if admitted. 106 Section 7,. Rule 120 is. inapplicable where the court's jurisdiction is being assailed through a Rule 65 petition. Section 7 bars modification of a criminal judgment only if the appeal brought before ,court is in the nature of a regular appeal under Rule. 41, or an appeal by certiorari under ·Rule 45, and if .that appeal would put the accused in double jeopardy. 104 Motion for Reconsideration prejudicial to the substantial rights of the accused were committed during the trial. 1o6-r"adeja v. People, G,R. No. 145336, 20 February 2013. Payumo v. Sandiganbayan, G.R. No. 151911, 25 July 2011. 107 f\ 608 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 609 Volume IV FORM: FORM: - in writing - in writing - state ground/s - state ground/ s - serve notice to public prosecutor (S.4) - serve notice to public prosecutor - if based on newly discovered evidence, attach affidavits of witnesses by whom such evidence is expected to be given, or by duly authenticated copies of documents proposed to be introduced in evidence (S.4) HEARING: Where a motion for new trial calls for resolution of factual question, the court may hear evidence thereon by affidavits or otherwise. (S.5) EFFECT OF GRANT: EFFECT OF GRANT: The original judgment shall be set aside or vacated, in whole or in part, and a new judgment shall be rendered accordingly. (S.6c) (a) If new trial is granted on the ground of errors of law or irregularities committed during trial: all proceedings and evidence affected shall be set aside and taken anew. Court may allow introduction of additional evidence. (S.6a) (b) If new trial is granted on ground of newly discovered evidence: evidence already adduced shall stand and the newly discovered evidence and such other evidence as the court may allow to be introduced shall be considered together with the evidence already in the record. (S.6b) 108 Who may appeal: Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. (S.1) The People of the Philippines are the real parties in interest in a criminal case and only the Office of the Solicitor General can represent them in criminal proceedings before the Supreme Court and the Court of Appeals. The private complainant or offended party may, however, file an appeal without the intervention of the OSG but only in so far as the civil liability of the accused is concerned. He may also file a Rule 65 petition for certiorari even without the OSG's intervention but only to preserve his interest in the civil aspect of the case. 109 A dismissal order granting a demurrer to evidence is equivalent to an acquittal and is thus not subject to an appeal. It may be reviewed by certiorari under Rule 65 instead, for grave abuse of discretion. 110 Similarly, a dismissal for violation of the right of an accused to speedy trial amounts to an acquittal and is reviewable not by appeal, but by certiorari under Rule 65.11' When taken: (S.6) Within 15 days from promulgation of judgment or from notice of the final order appealed from. The period to appeal shall be suspended from the time a motion for reconsideration or a motion for new trial is filed until notice of the denial of such motion is served on accused or his counsel. An appeal may then be filed within 15 days from notice of the denial. The Fresh Period Rule or Neypes Rule applies to criminal cases as well. Thus, the accused will have a fresh 15-day period to file an appeal from receipt of the denial of his motion for reconsideration or new trial. 112 1 09J3urgos,Jr. v. Spouses Naval, G.R. No. 219468, 8 June 2016. 0people v. Sandiganbayan, G.R. No. 164577, 5 July 2010. 111People v. Judge Hernandez, G.R. Nos. 154218 and 154372, 28 August 2006. 112Rodriguez v. People, G.R.-No. 192799, 24 October 2012. 11 108 People v. Licayan, G.R. No. 203961, 29 July 2015. 610 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE 611 Where and How to Appeal: (S.2) Cases decided by First Level Courts (METC, MTC, MTCC, MCTC) Cases decided by Second Level Courts (RTC) Cases decided by the Court of Appeals To the RTC, by notice of appeal filed with the court which rendered the decision or final order, with proof of payment of appeal docket fees. In the exercise of the RTC's original jurisdiction: To the SC, by petition for review on certiorari under Rule 45. To the CA, by notice of appeal filed with the court which rendered the decision or final order, with proof of payment of appeal docket fees. In the exercise of the RTC's appellate jurisdiction: that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed: To the CA, by notice of appeal with the court which rendered the decision or final order, with proof of payment of appeal docket fees. In cases where the RTC imposes the death penalty: In cases where the CA imposes reclusion perpetua, life imprisonment or a lesser penalty: The CA shall automatically review the decision without need of a notice of appeal. The records shall be forwarded to the CA within 20 days from promulgation of judgment. (cf, S.10) To the CA, by petition for review under Rule 42. To the SC, by notice of appeal filed with the CA. (cf R.124, S. 13[cJ)113 In cases where the penalty imposed by the RTC is reclusion perpetut;1,or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence The remedy is to elevate the matter by certiorari under Rule 65_114 The order disallowing a notice of appeal is not subject to review by ordinary appeal. It is not a judgment or a final order. Rule 41, Section l(c) specifically provides that no appeal shall be taken from an order disallowing or dismissing an appeal. I· Failure to file a memorandum on appeal with the RTC does not warrant the dismissal of the appeal because Rule 120, Section 9 regarding submission by the parties of memoranda is directory, using the word "may." 113 Dungo v. People, G.R. No. 209464, 1 July 2015. 114 Macapagal v. People, G.R. No. 193217, 26 February 2014. 612 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE Volume IV Moreover, the same provision states that the RTC shall decide the appeal on the basis of the entire record of the case. It is only in civil cases under Rule 40, Section 7 that the failure to file a memorandum on appeal is a ground for dismissal of the appeal. 115 Service and waiver of notice: Withdrawal of appeal: (S.12) Notwithstanding perfection of appeal, the First Level Courts and Second Level Courts may allow the appellant to withdraw his appeal before the records have been forwarded to the appellate court. In such case, the judgment shall become final. The Second Level Courts may also allow the appellant to withdraw his appeal upon motion filed before rendition of judgment in the appeal. In such case, the judgment of the court of origin shall become final and the case shall be remanded to it for execution. Dismissal of appeal: (S.8) t j Notice of the appeal shall be served personally upon the adverse party or his counsel. Otherwise, service may be done by registered mail or substituted service under Rule 13, Section 8. (S.4) The appellee may-waive his right to a notice that an appeal has been ·taken. The appellate court may entertain an appeal notwithstanding failure to serve notice, in the interest of justice. (S.5) Effect of appeal by any of several accused: (S.11) (a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except if the judgment of the appellate court is favorable to those who did not appeal. ~i f i'J ~ :1 j'' IJ f 1 ' IL} l ,j ; (b) The appeal of the offended party from the civil aspect shall not ¾ if affect the criminal aspect of the judgment or final order appealed from. iI (c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. ~t I Uridei: Rule 122, Section ll(a), a favorable judgment shall benefit the co-accused who did not appeal or those who appealed from their judgment of conviction but for one reason or another the conviction became final and executory. 116 w The CA may dismiss an appeal (a) upon its own initiative, or (b) upon motion of the appellee, with notice to the appellant in either case, if the appellant fails to file his brief within the time prescribed, except where the appellant is represented by a counsel de oficio. The phrase "with notice to the appellant" under Section 8 means that a notice must first be furnished the appellant to show cause why his appeal should not be dismissed. The purpose of such a notice isto give an appellant the opportunity to state the reasons, if any, why the appeal should not be dismissed because of such failure, in order that the appellate court may determine whether or not the reason is satisfactory. Nevertheless, where the appeal was dismissed without prior notice, but the appellant took no steps either by himself or through counsel to have the appeal reinstated, such an attitude of indifference and inaction amounts to his abandonment and renunciation of the right to appeal. 119 l 115 Sanico v. People, G.R. No. 198753, 25 March 2015. Benabaye v. People, G.R. No. 203466, 25 February 2015. See also People v. PO2 Valdez, G.R. No. 175602, 13 February 2013. 117 The CA may dismiss an appeal (a) upon its own initiative, or (b) upon motion of the appellee, if the appellant (1) escapes from prison or confinement, (2) jumps bail, 118 or (3) flees to a foreign country during the pendency of the appeal. f 116 613 117Celestial v. People, G.R. No. 214865, 19 August 2015. Villena v. People, G.R. No. 184091, 31 January 2011. 119Dimarucot v. People, G.R. No. 183975, 20 September 2010. 118 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE 614 615 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN Scope of judgment: (S.11) The CA may (1) reverse, (2) affirm, or (3) modify the judgment, and (4) increase or reduce the penalty imposed by the trial court, (5) remand the case to the RTC for new trial or re-trial, or (6) dismiss the case. Power to receive evidence: (S.12) The CA shall have the power to try cases and conduct hearings, receive evidence and perform all acts necessary to resolve factual issues in cases falling within its original and appellate jurisdiction, including the power to conduct new _t:rialsor furtherproceedings. Motion fQr new trial: (S:14) The issue of where an application for a search warrant should be filed is not jurisdictional because the power to issue a special criminal process like a search warrant is inherent in all courts. 121 Where application shall be filed: (S.2) After an appeal has -been perfe(:ted and before judgment of conviction of CA becomes final; the accused may move for new trial on ground of newly discovered evidence material to his defense; ( Cf (1) Any court within whose territorial jurisdiction a crime has been committed. (2) For compelling reasons stated in the application, any court within R.121, S.4) Motion for reconsideration: of a crime. In that respect, it is an instrument or tool issued under the State's police power and this is the reason why it must issue in the name of the People of the Philippines. Every search warrant is applied for and issued by and under the authority of the State, regardless of who initiates its application or causes its issuance. Hence, failure to implead the People of the Philippines in a petition for certiorari under Rule 65 to nullify the order of the trial court denying a motion to quash the search warrant is a fatal defect and warrants dismissal of the action. 120 (S.16) May be filed within 15 days from notice of the decision or final order. The mittirimsshail be stay~d during the pendency of the motion. the judicial region where the crime was committed if the place of· commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. (3) If a criminal action has already been filed, the application shall A second motion for reconsideration of a judgment or final order shall NQ'f. be allowed.. be filed only in the court where the case is pending. Decision. if opinion is equally divided: (S.3) drugs and illegal possession of firearms anywhere in the Philippines, before the Executive Judges of the RTC Quezon City and Manila City.122 When theSC en bane is equally divided in opinion or the necessary majority amnot be .qbtained either to acquit the accused or convict him, the case shall again be deliberated upon and if no decision is reached after resdeliberation, the· judgment of conviction of the lower court shali b<ireye.rs~d and the accused acquitted. (4) In cases involving heinous crimes, illegal gambling, dangerous Personal property subject of search warrant: (S.3) A search warrant may be issued for the search and seizure of personal property: (a) subject of the offense; (b) stolen or embezzled and other proceeds or fruits of the offense; A search warrant is an order in writing, issued in the name of the People of the Philippines, signed by a judge, and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. The application for a search warrant is not a criminal action. A search warrant is a legal process that may be likened to a writ of discovery employed by no less than the State to procure relevant evidence (c) used or intended to be used as the means of committing an offense. 12°Te v. Judge Breva, G.R. No. 164974, 5 August 2015. 121 Pilipinas Shell Petroleum v. Romars International Gases Corporation, G.R. No. 189669, 16 February 2015. 122sC A.M. No. 99-20-09-SC, 25 January 2000. I 616 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIALLAW: CRIMINALPROCEDURE Requisites for issuance: A search warrant may be said to particularly describe the things to be A search warrant shall not issue except upon probable cause in seized when the description therein is as specific as the circumstances will ordinarily allow; or when the things described are limited to those which bear a direct relation to the offense for which the warrant is being issued. 127 The requirement of particularity is aimed at preventing the law enforcer from exercising unlimited discretion as to what things are to be taken under the warrant and ensure that only those connected with the offense for which the warrant was issued shall be seized. 128 connectiori with one specific offense, to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized, which may be anywhere in the Philippines. (S.4) The judge must, before issuing the warrant, personally examine, in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them, and attach to the records their sworn statements together with the affidavits submitted. (S.5) Requisites for issuance: (1) probable_ cause is present; such probable cause must be determined personally by a judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant/ applicant and the witnesses he may produce; (4) the complainant/ applicant and the witnesses must testify on facts personally known to them; and, (5) the warrant must specifically describe the place to be searched and the-things to be seized. 123 Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discrete and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. Probable cause requires more than bare suspicion; it requires less than evidence ~hich would justify conviction. 124 Two conditions for issuance: (1) that no warrant shall issue except upon probable cause, to be determined by the judge in the manner set forth in the rule; and, (2) that the warrant shall particularly describe the things to be seized. 125 A description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the ·community. 126 . J. ·,'.f 1 t l ill 1 l ! The failure to attach to the record the depositions of the complainant and his witnesses and/or the transcript of the judge's examination, though contrary to the Rules, does not by itself nullify the search warrant. It is merely a procedural rule and not a component of the right. As long as there is evidence on record from which it can be inferred that the requisite examination was made, the warrant will not be nullified. 129 There is no violation of the right against unreasonable search and seizure if the evidence w~s discovered and obtained by a private individual, acting in a private capacity, without the intervention of the State authorities. In the absence of governmental interference, ,the liberties guaranteed by the Constitution cannot be invoked against the State. 130 l While it is unnecessary that the property to be searched or seized should be 9wned by the person against whom the search warrant is issued, however, there must be sufficient showing that the property is under his control or possession. 131 I Time of search: (S.9) l t .t }I 't The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case, the warrant may direct that it be served at any time of the day or night. 127 . 123 People v. Mamaril, G.R. No. 171980, 6 October 2010. 124 Laud v. People, G.R. No. 199032, 19 November 2014. 12 5stonehill v. Diokno, G.R. No. L-19550, 19 June 1967. 126 Lau<lv. People, supra at Note 120. 617 Supra. 128PLDT v. Alvarez, G.R. No. 179408, 5 March 2014. v. People, G.R. No. 188794, 2 September 2015. 130People v. Marti, G.R. No. 81561, 18 January 1991. 131People v. Del Castillo, G.R. No. 153254, 30 September 2004. 129Ogayon 618 THE PRE-WEEK REVIEWER FORJITfERY 619 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE BAR TAKERS Volume IV (b) Ten days after issuance of the search warrant, the court shall Validity of search warrant: (S.10) ascertain if a return has been made. If no return has been made, the court shall summon the person to whom the warrant was issued and require him to explain why no return has been made. Valid for ten (10) days from date of issuance. Thereafter, it shall be void. How search and seizure in1plemented: (1) If the enforcing officer·¼, refused admittance, after giving notice ~ of his purpose and authority: he may break open any outer or inner door, or wirtdow of a house, or any part of a house, or anything therein, to execute the warrant or liberate himself or any person lawfully aiding him, when unlawfully detained therein. (S.7) i (2) No search of any premises shall be made except in the presence of the lawful occupant thereof, or any member of his family, or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (S.8) ['ij fl I iu. i l: ~ (3) The officer seizing property under the warrant must (a) give a detailed receipt to the lawful occupant in whose presence the search and seizure were made, or (b) in the absence of the lawful occupant, leave a detailed receipt in the place where he found the seized property, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality. (S.11) The police officers were obliged to give notice, show their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after notice and demand, such officers are refused entry to the place of directed search. This is known as the "knock and announce" principle. 132 The two-witness rule is mandatory in character. Non-compliance will render the search invalid and the objects seized as an incident of such search as inadmissible in evidence. 133 Delivery of property and inventory to court: (S.12) (a) The officer must forthwith deliver the property seized to the court which issued the warrant, together with an inventory verified under oath. 132 People v. Huang, G.R. No. 139301, 29 September 2004. Computer Entertainment v. Bright Future Technologies, G.R. No. 169156, 15 February 2007. See also People v. Go, G.R. No. 144639, 12 September 2003. 133Sony If a return has been made, the court shall determine if a receipt has been made under Section 11, and shall require that the property seized be delivered to the court. The duty to deliver the items seized to the court which issued the warrant is mandatory in character. The requirement is to preclude substitution of the items seized by interested parties or the tampering thereof, or the loss of such goods due to the negligence of the officers effecting the seizure, or their deliberate acts. The officers 1 enforcing the search warrant are acting on orders of the court; hence, are under its control and supervision. The court has inherent disciplinary powers over such officers. Such officers cannot retain possession and custody of the items seized unless with the approval of the court. Neither do they have authority to deliver the items to 1another person or agency of the government. 134 Motion to quasn search warrant or to suppress.evidence:· ' . . (S.14) . (1) Filed in the court where the criminal-action has been instituted. (2) If no criminal action has been instituted, the motion may be filed . with the court that issued the search warrant. f (3) If filed with the court that issued the search warrant but it remai~ unresolvedand a criminal action is subsequently filed, the motion sha'.11be resolved by the court where the criminal actitm has been: filed. Searcl1 incident to a lawful arrest: (S.13) A person lawfully arrested may be searched without a search warrant for.dangerous weapons or anything which may h,we.been used, or constitute proof, in the commission of an offense. The purpose of allowing a warrantless search and seizure incident to a lawful arrest is to protect the arresting officer from being harmed by the person arrested, who might be armed with· a concealed weapon, and to prevent the latter from destroying evidence within reach. 135 1~enorio 135People v. Court of Appeals, G.R. No. 110604, 10 October 2003. v. Calantiao, G.R. No. 203984, 18 June 2014. 620 BAR NOTES IN REMEDIAL LAW: CRIMINAL PROCEDURE IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV A valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase 'within the area of his immediate control' means the area from within which he might gain possession of a weapon or destructible evidence. 136 Reasonable Search A reasonable search arises from a reduced expectation of privacy. Article III, Section 2 of the Constitution does not apply. Examples include searches done at airports, seaports, bus terminals, malls and similar public places. In contrast, a warrantless search is presumably a "reason~IJle se~t;:h," but for reasons of practicality, a search warrant can be dispensed'with. Ari.example is a search incident to a lawful arrest, search of evidence in plain view, consented search, and extensive search of a private moving vehicle. 137 Guidelines for bus searches or any moving vehicle that similarly accept passengers at the terminal and along the route: (1) Prior to entry: (a) passengers, their bags and luggages can be subject to routine inspection; (b) passengers can also be frisked; (c) in lieu of electronic scanners, passengers may be required to open their bags for inspection which must be made in the passenger's presence. (2) While in transit: (a) Upon receipt of information that a passenger carries contraband or illegal items, the bus may be stopped en route for inspection of the passenger and his effects; (b) when a bus picks up passengers en route, the prospective passenger can be frisked and his luggage subjected to the same routine inspection as in the bus terminal; (c) a bus can be flagged down at designated military or police checkpoints where State agents can board for routine inspection of the passengers and their luggages. Availability in criminal cases: (S. l) The provisional remedies in civil actions, in so far as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. 136 People v. Valeroso, 614 Phil. 236 (2009). v. People, G.R. No. 215305, 3 April 2018. 137Saluday Attachment: (S.2) When the civil action is instituted with the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused: (1) when the accused is about to abscond from the Philippines; (2) when the criminal action is based on a claim for. money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (3) when the accused has concealed, removed, or disposed of his property, or is about to do so; ( 4) when the accused resides outside the Philippines. 621 BAR NOTES IN REMEDIALLAW: SPECIAL PROCEEDINGS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 623 may be applied in special proceedings where doing so would not pose an obstacle to said proceedings. 3 Definition: WHERE: (S. l) WHERE: (S.1) WHERE: (S.2) A speci~l proceeding is a remedy by which a party seeks to establish a status~ a right, or:a particular fact. (R.l, S.3) If decedent was an inhabitant of the Philippines at the time of his death, whether a citizen or an alien: in the RTC/MTC in the province in which he resided at the time of his death. If decedent was an inhabitant of a foreign country at the time of his death: in the RTC/ MTC in the province in which he had estate. 4 Upon death of either spouse and marriage is dissolved: the community property shall be inventoried, administered and liquidated, and the debts paid in the testate or intestate proceedings of the deceased spouse. 5 RTC: In all matters of RTC: In all matters of probate, both testate and intestate, where the gross value of the estate exceeds Phpl00,000.00, or in Metro Manila, where the gross value exceeds Php200,000.00. probate, both testate and intestate, where the gross value of the estate exceeds Phpl00,000.00, or in Metro Manila, where the gross value exceeds Php200,000.00. MTC: Exclusive MTC: Exclusive original jurisdiction over probate proceedings, testate and intestate, where original jurisdiction over probate proceedings, testate and intestate, where A creditor's suit to collect a sum of money against spouses when one of them dies, cannot be brought as an ordinary action against the surviving spouse, but as a claim against the estate. If no settlement proceedings are commenced by the surviving spouse, the creditor may UsuallYin special proceedings, no formal pleadings are required, unless the statute so provides. The remedy is granted generally upon an application or moti,on. 1 Subject-Matter: (1) The speciaFtules under this Chapter govern the specific proce-edings listed in S.1. (S. l) (2) There are other Special proceedings governed by other special rules.therefor, e.g., the summary procedure under the Family Code for declaration of presumptive death. Hence the requirement of a record on appeal for appeals in Special Proceedings under the Rules of Court, pursuant to Rule 109 in relation Rule 41, does not apply to an appeal from a declaration 6f presumptive death under the Family Code. 2 to Applicability of Rules for Civil Actions: In the absence of special provisions, the rules for ordinary civil actions shall be applicable in special proceedings as far-as practicable. (S.2) The requirements under the regular rules for a Certificate of NonForum Shopping, payment of docket fees and explanation regarding the mode of service do not apply to a contingent money claim filed against the estate of a deceased person. Rules in ordinary actions ~ 'Natcher v. Court of Appeals, G.R. No. 133000, 2 October 2001, 366 SCRA 385; · Hagans v. Wislizenus, G.R. No. 16680, 13 September 1920, 42 SCRA 880. 2 Republic v. Court of Appeals, G.R. No. 163604, 6 May 2005, 458 SCRA 200. 3Sheker v. Estate of Alice Sheker, G.R. No. 157912, 13 December 2007, 540 SCRA 111. 622 4Palaganas 5Agtarap v. Palaganas, G.R. No. 169144, 26 January 2011, 640 SCRA538. v. Agtarap, G.R. No. 177099, 8June 2011, 651 SCRA 455. 624 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV the value of the estate does not exceed Phpl00,000.00, or in Metro Manila, where such estate does not exceed Php200,000.00. 6 Jurisdiction the value of the estate does not exceed Phpl00,000.00, or in Metro Manila, where such estate does not exceed Php200,000.00. 7 BAR NOTES IN REMEDIALLAW: SPECIALPROCEEDINGS file a petition for letters of administration or probate of the will of the deceased spouse, if there is one. 8 necessity of a prior and separate judicial declaration of their status as such. 10 The court first taking cognizance of the settlement of estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The j,urisdiction so assumed shall not be contested in a suit or proceeding except in an appeal from that court, or when the want of jurisdiction appears on record. (S.1) of Probate or Intestate Court The determination of which court exercises jurisdiction over matters of probate depends upon the gross value of the estate of the decedent. 11 General Rule: Special_and Limited Jurisdiction (a) Extends only toniatters of probate of the will and/or settlement of the estate of a deceased person and does NOT extend to questions of ownership that arise during the proceedings. Whether a particular matter should be resolved by the Regional Trial Court in the eoicerciseof its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure. In essence, it is a procedural question involving a mode of practice 'which may be waived.' 12 Cb) Extends to matters incidental or collateral to the settlement and distribution of the estate, such as determination of: (i) who are the heirs and the status of each heir, (ii) whether a property included in the inventory is conjugal or exclusive property of the 9 spouses, or (iii) questions of collation or advancement. Exceptions: (a) may pass upori PROVISIONALLYthe question of inclusion 'in or exclusion from the estate inventory of a piece of property without prejudice to a final determination of ownership in a separate action; £ f (b) if the interested parties are all heirs, and they all consent to the assumption of jurisdiction by the probate court, and the rights of third parties are not impaired, the probate court may resolve the issue of ownership. 9 Latest Rule: "Unless there is a pending special proceeding for the settlement of the decedent's estate or for the determination of heirship, the compulsory or intestate heirs may commence an ordinary civil action to declare the nullity of a deed or instrument, and for the recovery of property, or any action for the enforcement of their ownership rights occupied by virtue of succession, without the 6 B.P. Big. 129, The Judiciary Reorganization Act, Secs. 19 and 33. 7Jd. 8 Alipio v. Court of Appeals, G.R. No. 134100, 29 September 2000, 341 SCRA 441. v. Agtarap, supra. 9Agtarap 625 t f ii 1~: fi lit R.73, S.l is just a rule on venue; it is not jurisdictional. It is just a matter of method, of convenience to the parties. 13 For venue purposes, "residence" means "actual residence," as distinguished from "domicile" or "legal residence." It is the personal, actual or physical habitation of a person, the place of abode. It signifies physical presence and actual stay. No particular length of time of residence is required, but it must be more than temporary. 14 One must reside therein with continuity and consistency. 15 Venue for ordinary civil' actions and venue for special proceedings have the same meaning, actual residence. 16 Testate proceedings always prevail over intestate proceedings. Question of which case must proceed, the first filed intestate settlement case or the second filed probate of will, is a mere question of venue, not jurisdiction. 17 1, !ti ~f 1 °Treyes v. Larlar, et al., G.R. No. 232579, 8 September 2020. Lim v. Court of Appeals, G.R. No. 124715, 24 January 2000, 323 SCRA 102. 12 Natcher v. Court of Appeals, G.R. No. 133000, 2 October 2001, 366 SCRA 385. 13 Maloles II v. Phillips, G.R. No. 129506, 31 January 2000, 324 SCRA 172. 14 Garcia-Fule v. Court of Appeals, G.R. No. L-40502 and L-42670, 29 November 1976, 74 SCRA 189. 15 Garcia-Quiazon v. Belen, G.R. No. 189121, 31 July 2013, 702 SCRA 707. 16 Jao v. Court of Appeals, G.R. No. 128314, 29 May 2002, 382 SCRA 407. 17 Uriarte v. Court of First Instance, G.R. No. L-21938-39, 29 May 1970, 33 SCRA 252. 11 626 BAR NOTES IN REMEDV\L LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV An Extrajudicial Settlement with Extrajudicial Settlement by Agreement of Heirs and Affidavit of Self-Adjudication Deed of Sale which excluded other compulsory heirs is void, but the sale is valid as to the shares of the heirs who participated. The excluded heirs become co-owners with the buyers. 18 Summary Settlement of Estates of Small Value (S.2) (S.1) (1) If the decedent left no will, and (2) no debts, and (3) the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the, purpose: (a) the parties rnay execute an Extrajudicial Settlement of Estate of the decedent, without securing letters of administration, and divide the estate among themselves as they see fit, filed in the office of the Register of Deeds if they are all in agreement. No extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (b) if there is disagreemenk they may do so through an ordinary action for partition; or, (c) if there is only one heir, he may adjudicate to himself the entire estate by means of an Affidavit of Self-Adjudication filed in the Register of Deeds. If the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed Phpl0,000.00: A petition to annul the Extrajudicial Settlement of Estate is irnprescriptible as an action to declare an inexistent contract under Article 1410 of the Civil Code. At the very least, it may be deemed an action to recover property held in trust under . Article 1144, which prescribes after 10 years from actual notice of the agreement which excluded . 19 h lffi. (1) petition filed with the MTC having jurisdiction of the estate; (2) by an interested person; (3) published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province; (4) with notice to interested persons, as the court may direct, served at their last known address; (5) upon hearing, held between 1 to 3 months from date of the last publication of notice. The court may proceed summarily, without the appointment of an executor or administrator, to: I If t The imprescriptibility of an action for reconveyance based on implied or constructive trust applies only when the person in possession is the plaintiff or the person enforcing the trust. 20 627 or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively; (c) apportion and divide the estate among .those entitled, after the payment of such debts of the estate as the court shall then.find to be due. (d) to record all orders and judgments made or rendered in the course thereof iri the office of the clerk of court, and the order of partition or award, if it involves real estate, shall be recorded in the proper Register of Deeds. An Affidavit of Self-Adjudication executed by an affiant who is not the sole heir of the deceased is void. 21 (a) grant, if proper, allowance of the will, if any, (b) determine who are the persons legally entitled to participate in the estate and such persons, in their own right, if they are of lawful age and legal capacity, 18 Neri v. Heirs of Yusop Uy, G.R. No. 194366, 10 October 2012, 683 SCRA553: /d.; Marquez v. Court of Appeals, G.R. No. 125715, 29 December 1998, 300 SCRA 19 653. 2 °Fhilippine Economic Zone Authority v. Fernandez, G.R. No. 138971, 6 June 2001, 358 SCRA489. 21 Rebusquillo v. Spouses Gualvez, G.R. No. 204029, 4 June 2014, 725 SCI¼ 259. 628 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS Volume IV Conditions: Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. 23 (1) Bond (for a and c above) - filed simultaneously with and as a condition precedent, with the Register of Deeds, in an amount equivalent to the value of the personal property involved, as certified to under oath by the parties concerned, and conditioned upon the payment of any just claim that may be filed under S.4, R.74. (2) Publication (for a only) The fact of the extrajudicial settlement or administration shall be published in a newspaper of general c,irculation in the pi:ovirice, once a' week for three (3) consecutive weeks. Persons who did not participate or had no i:iotice of the extrajudicial settlement shall not be bound thereby. The "notice" contemplates one sent out or issued PRIOR to execution of any settlement agreement or deed of partition, and NOT after. The publication of the Extrajudicial Settlement agreement required under R.74, S.l does not constitute the constructive notice to the heirs because it is after the fact of execution already. 22 22<:uav. Vargas, G.R. No. 156536, 31 October 2006, 506SCRA 374. 1 Ii '1 "! if Presumption: It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent ,i I Bond to be filed by distributees (S.3) The court, before allowing a partition of an estate of small value under S.2, may require the distributees, if any personal property is to be distributed,· to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under S.4. liability of distributees and estate (S.4) A. (1) Within 2 years after the settlement and distribution of an estate by Extrajudicial Settlement agreement, Affidavit of Self-Adjudication, or by judicial decree as an Estate of Small Value; (2) an heir or other person unduly deprived of his lawful participation in such estate; (3) may file a petition to compel the settlement of the estate in the courts to collect such lawful participation. 23 Spouses Butiong v. Plazo, G.R. No. 187524, 5 August 2015, 765 SCRA 227. 629 630 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW:SPECIAL PROCEEDINGS B. (1) Within the same time of two (2) years, after the settlement and distribution of an estate by Extrajudicial Settlement agreement, Affidavit of Self-Adjudication, or by judicial decree as an Estate o~ Small Value; (2) an heir or other person unduly deprived of his lawful participation in the estate payable in money. OR if there are outstanding debts against the estate which have not been paid; (3) after hearing; (4) the court J;iaving jurisdiction of the estate may, by order: (a) settle the amount of such debts or lawful participation; (b) order how much and in what manner each distributee shall contribute in the payment thereof; and, (c) issue execution, if circumstances require, against the bond for personal property or against the real estate belonging to the deceased, orboth. 2-year :µen: The bond for personalty and the real estate distributed from-the estate of the decedent, pursuant to an Extrajudicial Settlement agreement, Affidavit of Self-Adjudication, or by judicial decree as an Estate of Small Value, shall remain charged vvith a liability. to· creditors,· heirs, ·or other persons for. the full-period of 2 years after such distribution, notwithstanding any transfers of real estate that ~y have been made. R.74, S.4, specifically the 2-year lien will not apply to persons who did not_participate or had no notice of the extra judicial settlement. 24 R.74 covers oruy'valid partitions. The extrajudicialsettlemerit may be annulled on the ground offraud, within 4 years from discove1y 25 S.4 provides the procedure if within 2 years after an extrajudicial partition or a summary distribution, an heir or other interested person appears who was deprived of his lawful share, or some outstanding debts are discovered. When the lawful participation of the heir is not payable in money. for instance he is entitled.to share in real property that has been partitioned, the partition shall be cancelled and a new division must l:>emade, unless the excluded heir agrees to be paid the value of his share instead. But if the £' deprived participation is a share in personal property or money, the court shall fix the amount of contribution of the heirs who received a share, or it may issue execution against the bond or real property of the deceased, or both. 26 j_ it t If ! f I ,;i: 'f The annotation of the 2-year lien on the title to estate property creates a legal encumbrance or lien on the real property in favor of the excluded heir/ s or creditors. 27 The 2-year lien covers transfers of the real property to any person, as long as the deprived heir or creditor vindicates his rights within 2 years. The provision covers ANY transferee, not just the heirs or original distributees. 28 The registration of the extrajudicial settlement with the Register of Deeds and its annotation on the title to the property are deemed as constructive notice to excluded heirs and the 2-year period will run from such constructive notice, EXCEPT when the title remains in the name of the heirs who fraudulently excluded the other heir/s in the partition agreement OR in the name of transferees who are not innocent purchasers for value. 29 The remedy of an excluded heir fraudulently deprived of his share in estate property that has been sold to an innocent purchaser for value is an action for damages against the other heirs responsible for the fraud. 30 Period for claim of minor or incapacitated person (S.5) If on the date of the expiration of the 2-year lien under S.4, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within 1 year after such disability is removed. 6Tan v. Benolirao, G.R. No. 153820, 16 October 2009, 604 SCRA 36. 2 vld._ 24-r'reyesv. I.arlar, et al., G.R. No. 232579, 8 September 2020. 25 Pedrosa v. Court of Appeals, G.R. No. 118680, 5.March 2001, 353 SCRA 620. 631 28Spouses Domingo v. Roces, G.R. No. 147468, 9 April 2003, 401 SCRA 197. 29phiJippine Economic Zone Authority v. Fernandez, supra. 30Jd. fl 1i i BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 632 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 633 Volume IV What custodian needs todo: Rule 75: Production of Will; Allowance of Will Necessary Rule 76: Allowance or Disallowance of Will Rule 77: Allowance of Will Proved Outside of Philippines RULE: No will shall Who may petition pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution. (S.1) (S.1) Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper RTC/MTC. Even if the decedent left no debts and nobody raises ai;iy question as to_the authenticity and due execution of a will, none of the heirs may sue for partition of the estate in accordance with the will without first securing its allowance or probate by the competent court. 31 A petition for the probate (allowance) of a will may be filed with the proper court by: (1) any executor, The person who has custody of a will shall, within 20 days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor in the will. (S.2) (S.1) devisee, or legatee named in a will, or any other person interested in the estate, at any time after the death of testator. whether the will be in his possession or not, or is lost or destroyed; OR i ,[ ; *' I / f (2) the testator himself during his lifetime. The only issue in the probate of a will is the extrinsic validity of such will, i.e., whether the testator, being of sound mind, \ 32 31 Vda. dePrecilla v. Narciso, G.R. No. L-27200, 18 August 1972, 46 SCRA 538. freely executed the will in accordance with the formalities prescribed by law. Generally, the probate court cannot resolve issues of ownership with finality, only provisionally. 32 The due execution of a will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed· under Articles 805-806 of the Civil Code. To be of "sound mind," it is sufficient if the testator, at the time of making the will (1) knew the nature of the estate to be disposed of; (2) the proper objects of his bounty; and, (3) the character of the .testamentary act. Forgetfulness does not make one mentally unsound. A testator is presumed Spouses Pastor v. Court of Appeals, G.R. No. L-56340, 24June 1983, 122 SCRA885. 634 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV to be of sound mind at the time of execution of his will, under Article 800 of the Civil Code. The burden of proving he was not rests on the oppositor. 33 What 'the executor needs to do: Contents of petition (S.2) The named executor in a will shall, within 20 days after he knows of the death of testator, or within 20 days after he knows that he is named executor if he obtained such knowledge after the death of the testator: A petition for the allowance of a will must allege: a. b. (1) present such will to the court having jurisdiction, unless the will has reached the court in any other manner; and, (2) signify to the court in writing his acceptance or his refusal to accept the trust. (S.3) 33 C. d. The jurisdictional facts; The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; The probable value arid character of the property of the estate; The name of the person for whom letters testamentary (if testate) or letters of administration (if intestate) are prayed; BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS What the court maydo: !t $ Requisites: (S.2) (1) Petition for allowance filed by the executor or other person interested, together with (i) t,1 i f l L,l 1 ! a copy of the will, and (ii) the order or decree of its allowance, both duly authenticated; (2) the court shall set a hearing; (3) notice of hearing shall be served either personally or by registered mail, to the designated or other known heirs, legatees, and devisees of the testator Baltazar v. Laxa, G.R. No. 174489, 11 April 2012, 669 SCRA 249. i '.& J ~ 1 f, j 1 I i :;J t'i J (1) The custodian and/or the executor who neglects any of the above duties without satisfactory excuse shall be fined not exceeding Php2,000.00. (S.4) (2) The custodian who neglects without reasonable cause to deliver the same, when ordered to doso, may be imprisoned until he delivers the will. (S.5) .Delivery of will cannot be compelled by mandamus because it is not a public duty, but a mere private right. 34 e. If the will has not been delivered to the court, the name of the person having custody of it. No defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. Procedure: (S.3-4, 10) When a will is delivered to; or a petition for the allowance of a will is filed: (1) court shall set a hearing; (2) require all interested parties to appear; (3) cause notice of hearing to be published 3 weeks successively, prior to the date of hearing, in a 1 l residing in the Philippines, at their places of residence, and the named executor, if he is not the petitioner, and any co-executor. Requisites for Reprobate: evidence must be submitted of: (1) the due execution of the will in accordance with the foreign law;_(2). the testator has his domicile in the foreign country, and not in the Philippines; (3) the will has been admitted to. probate in that country; (4) the fact that the foreign tribunal is a probate court; and, (5) the laws of the foreign country on procedure and allowance of wills. 35 i 34Uy Kiao Eng v. Lee, G.R. No. 176831, 15 January 2010, 610 SCRA 211. v. Tolete, G.R. No. 76714, 2 June 1994, 232 SCRA 722. 35 V.ia. de Perez 635 636 THE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS Volume IV newspaper of general circulation in the province; EXCEPT IF the petition is filed by the testator himself, then no publication is required. (4) cause copies of the notice of hearing to be served, either personally or by registered mail, to the designated or other known heirs, legatees, and devisees of the testator residing in the Philippines, at their places of residence, and the named executor, if he is not the petitioner, and any co-executor; EXCEPT if the petition is filed by the testator himself, notice shall be sent only to his compulsory heirs. 36 Court action: (S.3-4) (1) (5) Any opposition to the allowance of the will must be in writing, state the grounds, and served on the petitioner and other interested parties. The court shall admit the will to probate if it is satisfied that: (a) the will was duly executed; (b) the testator at the time of its execution was of sound and disposing mind, and not actfng under duress, menace, and undue influence, or fraud. (2) The court shall issue a certificate of allowance, signed by the judge, and attested by the seal of the court. (3) The certificate shall be attached to the will. (4) The will and certificate shall be filed and recorded by the clerk of court. 36Nittscher v. Nittscher, G.R. No. 160530, 20 November 2007, 537 SCRA 681. A proceeding for the probate of a will is one in rem, such that with corresponding publication of the petition, the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate. Publication brings the whole world as party in the case and vests the court with jurisdiction to hear and decide it. The personal notice required to be given to known heirs refer to "compulsory or intestate" heirs, which is a matter of procedural convenience and not a jurisdictional requisite. 37 1 1 1 I I 1 37 637 (5) Attested copies of the will devising real estate and of the certificate of allowance shall be recorded in the Register of Deeds of the province in which the land/s lie. (6) The court shall grant letters testamentary, or letters of administration with the will annexed,and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. (7) The just debts and expenses of administration of the estate shall be paid. (8) The estate shall be disposed of according to the will, so far as such will may Alaban v. Court of Appeals, G.R. No. 156021, 23 September 2005, 470 SCRA 697. 638 TI-IE PRE-WEEK REVIEWER FORJITfERY BAR NOTES [N REMEDfAL LAW: SPECfAL PROCEEDINGS BAR TAKERS Volume IV Proof required: (S.5-8, 11-12) At the hearing: (1) proof must be subirutted of (a) publication, and (b) notice to interested parties. Notice is required to be given to the "designated or other known heirs, legatees, devisees residing in the Philippines at their places of residence, if known." If such addresses are known but the court still fails to cause copies to be served on such interested persons, the proceedings are void and subject to annuln;ient. 38 (2) Testimony shall be taken under oath and reduced to writing: (a) If the will isuncontested: operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. Notarial will - 1 of the subscribing witnesses only. i 1' An administrator's failure to proficiently manage the distribution of the estate according to the terms of the decedent's will and as dictated by the applicable· law is tantamount to extrinsic fraud. The judgment approving the will even in the absence of proof of the foreign Jaw may be annulled within 4 years from discovery of the failure to prove the foreign law; 39 l I i I ,\ Holograi;2hic will - 1 witness who knows the handwriting and signature of the testator. In the absence of any such competent witness, and if the court deems it necessary, expert testimony may be resorted to. Testator is i;2etitioner - testator alone. (b) If the will is contested: fi I I 38 De Aranz v; Gating, G.R. No. L-77047, 28 May 1988, 161 SCRA 628. v. Guersey-Dalaygon, G.R. No. 139868, 8June 2006, 490 SCRA 140. 39Ancheta i J Notarial will - all the subscribing witnesses and the notary, if present in the Philippines and not insane. The death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be Effect of allowance: The will shall have the same effect as if originally proved and allowed in such court. 639 I' 640 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDLAL LAW: SPECIAL PROCEEDINGS Volume IV taken. 40 If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. If all the subscribing witnesses are dead or insane, or none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting 40 Cf Rule 76, Sec. 7. of the testator and of the subscribing witnesses, or of any of them. Holograghic will at least 3 witnesses who know the handwriting of the testator. In the absence of any competent witness, and if the court deems it necessary, expert testimony may be resorted to. il:I i j 1 ·1 l I 'rl !,l Testator is 12etitioner - burden of disproving the genuineness and due execution of the will is on the contestant. Testator may present rebuttal evidence. (c) Ifthewill is lost or destroyed (i) proof of its execution and validity; (ii) proof that it was in existence at the time of the death of the testator, or was fraudulently or accidentally 641 642 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS destroyed in the lifetime of the testator without his knowledge; they must testify, that the will was or was not duly executed in the manner required by law.41 Grounds for disallowing will: (iii) proof of its provisions testified to by, at least, 2 credible witnesses. When a lost will is admitted to probate, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. A will shall not be disallowed just because the attesting witnesses declare against its execution; neither shall it be allowed just because all the attesting witnesses declare in favor of its approval. What is decisive is for the court to be convinced by evidence before it, not necessarily from the attesting witnesses although (S.9) The will shall be disallowed: i i i I a. If not. executed and attested as required by law; b. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; C. If it was executed under duress, or the influence of fear, or threats; d. Ifit was procured by undue and improper pressure and influence, on the part of the. beneficiary, or of some other J 41Baltazar v. Laxa, supra. 643 644 TIIE PRE-WEEK REVIEWER FORJITrERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS Volume IV person for his benefit; e. If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of affixing his signature thereto. The list is exclusive; no other ground can · setve to disallow a will_42 and undue influence, or fraud. (2) The court shall issue a certificate of allowance, signed by the judge, and attested by the seal of the court. (3) The certificate shall be attached to the will. I 1 1 (4) The will and t certificate shall be filed and recorded by the clerk of court. Court action: (S.13) (5) Attested copies (1) The court shall of the will devising real estate and of the certificate of allowance shall be recorded in the Register of Deeds of the province in which the land/s lie. admit the will to probate if it is satisfied that: (a) the will was duly executed; (b) the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, 42 Ajero v. Court of Appeals, G.R. No. 106720, 15 September 1994, 236 SCRA 488. 645 Wh() are incompetent to serve as executors or administrators Wh() may be issued letters of administration and when (S.6) No person is competent to setve as executor or administrator who is: Letters of administration shall issue: (a) if no executor is named in a will; (b) the executor or executors are incompetent, (a) a minor; 646 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 1HE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS Volume rv Cb) not a resident of the Philippines; and (c) unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving. moral turpitude. 43 (S.1) (d) the executor of an executor in so far as the estate of the first testator. (S.2) The choice of the testator for his executor should be respected as it is part of his exercise of the right to dispose. However, the probate court still has the right to pass upon thecompetence of the named· executor. Failure to file income tax returns is not an offense involving moral turpitude. 44 . Married women may,serve A married woman may serve as executrix adininistratrix, and the marriage of a single woman shall not affect•her authority to serve under a previous ·appQintrne11t. (S:3) or • Lettei-stestatnentary when will allowed issued When a will has been proved and allowed,· the cotih shall issue letters testamentary to the person named as executor therein, if: (1) he is competent, (2) accepts the trust, and (3) gives bond, as required by these rules. (S.4) refuse the trust, or fail to give bond; or, (c) a person dies intestate; to: (1) the surviving spouse; or, next of kin; or both, in the discretion of the court; or to such person as such surviving spouse, .or next of kin, requests to have appointed, if competent and willing to serve. (2) if such spouse or next of kin, or the person selected by them, be incompetent or unwilling, or if the surviving spouse or hext of kin neglects for 30 days after the death to apply for administration or to request that administration be granted to some other person, it may be granted to 1 or more of the principal creditors, if competent and willing to serve. (3) if there is no such creditor competent and willing to serve, to such other person as the court may select. The rule lists a sequence, an order of preference, in the appointment of an administrator, i.e:, the survivingspouse,.the next· of kin, and the creditors. This is mandatory in character and cannot be disregarded Where some co-executors disqualified others may act ii !} ii When all of the executors named in a will cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. (S.5) Opposition to Issuance of Letters Testamentary (R.79, S.1) (1) Any person interested in a will may file an opposition stating the grounds why letters. testamentary should not issue to the person/s named as executor/s, or any of them. A petition may, at the same time, be jointly filed for letters of administration with the will annexed. 647 without valid cause. Rationale: those who stand to benefit from a wise, speedy and economical administration of the estate have the best motivation to administer the estate properly. Coadministration is allowed among those in the order of preference. 45 Next of kin means nearest of kin, one entitled by statute to share in the estate, an heir. 46 The order of preference does NOT apply in.the appointment of a Special Admihistrator.47 The third wife is an "interested person" within the meaning of estate settlement rules and has standing to file a petition for letters of administration. An "interested person" is one who stands to be benefitted by the estate, like an heir, devisee or legatee, or one who has a claim against the estate, like a creditor. 48 (2) The court shall set a hearing and issue notices to interested parties. 45 Suntay III v. Cojuangco-Suntay, G.R. No. 183053, 10 October 2012, 683 SCRA439. 46/d. 43 Republic 44/d. v. Marcos 47 II, G.R. Nos. 130371 and 130855, 4 August 2009, 595 SCRA 43. Tan v. Judge Gedorio, G.R. No. 166520, 14 March 2008, 548 SCRA 528. San Luis v. San Luis, G.R. No. 133743, 6 February 2007, 514 SCRA 294. 48 648 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS (3) The court shall resolve the sufficiency of grounds for opposition. that he left real property lies in the province where the probate court is located. 50 The selection of an administrator lies in the sound discretion of the probate court. The determination of a person's suitability for the office of judicial administrator rests on the sound judgment of the court and said judgment is not to be interfered with on appeal unless the court is clearly in error. 49 Contents: 649 Procedure: (S.3-6) (1) The court shall fix a time and place for hearing. (2) Notice of the hearing shall be published for 3 weeks successively prior to the date of hearing, in·a newspaper of general circulation in the province. (3) Notice of the hearing shall be served to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, either personally or by registered mail at their places of residence, if known. (4) Any interested person may file a written opposition on the ground of (a) incompetency of the person for whom the letters are prayed to be issued; or, (b)°the contestant's own right to the administration. The oppositor may pray that letters issue to himself, or to any competent person named in the opposition. (S.2) A petition for letters of administration must be filed by an interested person and must allege: a. Thy jurisdictional facts; b. The names, ages, andresidences decedent; c. The probable value and character of the estate; and, d. The name of the person for whom the letters of administration are prayed to be issued. (5) At the hearing: (i) submit proof of publication and service of notice to all interested parties; and, (ii) present evidence of the parties' respective allegations. of the heirs and creditors of the But no defect in the petition shall render void the issuance of letters of administration. The jurisdictional facts required to be alleged in a Petition for Letters of Administration are: (1) the death of the owner of the estate, whether he left a will or not; (2) his residence at the time of his death in the province where the probate court is located, if the decedent was a resident; (3) if the decedent was a non-resident, the fact that he was a resident in a foreign country at the time of his death and I l I t I l 11 t (6) If the court is satisfied that: (a) the decedent left no will; or, (b) there is no competent and willing executor; it shall order the issuance of letters of administration to the party best entitled thereto. (7) Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having a better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves. Any "interested person" may file an opposition. An interested person is one who stands to be benefitted by. the estate, like an heir, devisee or legatee, or one who has a claim against the estate, like a creditor. 51 Distinction between jurisdiction of the probate court over the proceedings, which vests upon filing of the petition with complete allegation of jurisdictional facts, and jurisdiction over the persons who are interested in the settlement of the estate. Where no notice 49 Marcelo Investment and Management Corporation v. Marcelo, Jr., G.R. No. 209651, 26 November 2014. 50 Vtia. 51/d. de Chua v. Court of Ap~als, G.R. No. 116835, 5 March 1998, 287 SCRA33. 650 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVfEWER FOR JITTERY BAR TAKERS 651 Volume IV as required by R.79, S.3 has been given to persons believed to have an interest in the estate, the proceedings shall be void and should be annulled. The requirement of notice is essential to validity of the proceedings because no person shall be deprived of his property without due process of law.52 POWERS AND DUTIES (S.2) When there is. delay in granting letters testamentary or of administration, by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. A Special Administrator is an officer of the court subject to its supervision and control, and expected to work for the best interest of the estate. He is not an agent or WHEN POWERS CEASE; DUfY (S.3) (1) Take possession When letters and charge of the testamentary or goods, chattels, of administration rights, credits, are granted, the and estate of powers of the special the deceased administrator shall and preserve cease. He shall the same for forthwith deliver the executor or to the executor or administrator administrator the afterwards goods, chattels, appointed. money, and estate of the deceased in his (2) Commence and hands. The executor maintain suits as or administrator administrator. may prosecute to (3) Sell only such final judgement suits perishable and commenced by such other property as special administrator. the court orders sold. ( 4) Pay any debt of the deceased ONLY if so ordered by the court. The power to take possession and charge is not representative of the party who moved for his appointment. He is a mere temporary administrator and the appointment is interlocutory. His appointment and removal are not governed by the rules regarding the appointment and removal of a regular administrator, but is purely discretionary on the court. 53 dependent on a finding of dissipation or wastage. The rule authorizes the Special Administrator to take possession of estate properties in whatever state they are, to preserve them for the regular administrator. This right of possession, whether actual or constructive, empowers the Special Administrator with discretion to exercise dominion or control over estate properties at any time: 54 Bond Conditions Bonds of Joint Executors and Administrators (S.3) Bond of Special Adrnfoistrator (S.4) When 2 or more persons are appointed executors or administraton;, the court may take a separate bond from each, or a joint bond ·from all. A special administrator before entering upon the duties of his trust shaU give a bond, in such sum as the court directs, conditioned that: (S.1) Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows: 53Ocampo 52 De Guzman v. Judge Angeles, G.R No. L-78590, 20 June 1988. 54Valarao (a) He will make and return a true inventory of the goods, chattels, v. Ocampo, G_.R.No. 187879, 5 July 2010, 623 SCRA 559. v. Pascual,"G.R. No.150164, 26 November 2002; 392 SCRA 695. 652 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV (a) To make and file with the court, within 3 months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession· of any other person for him. (b) To administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall at any time come to his possession, or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, .and charges on the same, or such dividends as shall be decreed by the court. (c) To render a true and just accounting of his administration to the court within 1 year, and at any other time when required by the court. rights, credits, and estate of the deceased which come to his possession or knowledge. (b) He will truly account for such as are received by him, when required by the court. ' (c) He will deliver the same to the person appointed as executor or administrator, or to such other person as may be authorized to receive them. I 1,. ,l1? I l ·1 j (d) To perform all orders of the court directed to him If the testator in his will directs that the executor serve without bond, or with only his individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case of a change in his circumstances, o.r for other sufficient cause, with the conditions named in the last preceding section. (S.2) The surety is liable under the administrator's bond 653 654 IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 655 for as long as the administrator has duties to perform as such. 55 Validity of Acts Prior to Termination (S.3) When Terminated: Powers of new executor or administrator (S.4) (1) After letters of administration have been granted as if the decedent had died intestate, if his will is· subsequently proven and admitted to probate by the court. Effect: the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs. (S.1) The person to whom letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of former executor or administrator, shall have like powers to: (a) collect and settle the estate not administered that the former executor or administrator had; (b) prosecute or defend actions commenced by or against the former executor or administrator; (c) execute judgements recovered in the name of such former executor or administrator; (d) renew the authority to sell or mortgage of real estate previously issued to the former executor or administrator, without further notice or hearing. The lawful acts of an executor or administrator before the revocation of his letters testamentary or of administration, or before his resignation or removal, shall have like validity as if there had been no such revocation, resignation or removal. 58 (2) If an exc!cutor or administrator (a) neglects to render his account and settle the estate according to law; (b) fails to perform an order or judgment of the court, or a duty expressly provided by these rules; (c) absconds; (d) becomes insane; or, (e) beconies otherwise incapable or unsuitable to discharge the trust. Effect: thecourt may remove him, or, in its discretion, permit him: to resign. When an executor or administrator dies, resigns, or is remove.cl, the remaining executor·oradministrator may administer the trust alon~, .unless . the court gra~ts letters· to someone to act with hitn ..If there is no remaining executor or administrator, administration may be granted to any suitable person. (S.2) 1 The appointment of a law partner as co-administrator does· not exterid to his law firm and his death will not result fnhis substitution/replacement by his law firm. Upon the death of a coexecutor or co-administrator, the remaining executor or administrator shall continue alone, unless the court appoints.a replacement. A lawyer who is appointed executor or administrator shall not charge the estate for professional fees for his legal services (RBS, S.7).56 Death ofan administratrix does not end the estate proceedings. The court will just appoint a new administrator. 57 55 Luzon Surety v. Quebrar, G.R. No. L-40517, 31 January 1984, 127 SCRA 295. Ancheta, Pena and Nolasco Law v. LCN Construction, G.R. No. 174873, 26 August 2008, 563 SCRA 426. 57 Pascual v. Court of Appeals, G.R. No. 120575, 16 December 1998, 300 SCRA 214. 56Quasha, Inventory and appraisal to be returned within three months (S.1) i \t ti Within 3 months after appointment, every executor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. In the appraisal of such estate, the court may order l or more of the inheritance tax appraisers to give his or their assistance. 1 The use of the word "all'' is qualified by the phrase "which has come into his possession or knowledge," signifying that the properties must be known to the administrator. All such properties must be included in the inventory regardless if they are in the possession of third parties. 59 l Certain articles not to be inventoried j Il ·i .l I (S.2) The wearing apparel of the surviving husband or wife and minor children, the marriage bed and bedding, and such provisions and 58 Vda. de 59Aranas Bacaling v. Laguna, G.R. No. L-26694, 18 December 1973, 54 SCRA 243. v. Mercado, G.R. No. 156407, 15 January 2014, 713 SCRA 194. 656 BAR NOTES IN REMEDIALLAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWERFORJITIERY BAR TAKERS Volume IV examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the court having jurisdiction of the estate may order any such surviving partner or partners, to freely permit the exercise of these rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt. (S.1) other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court, shall not be considered as assets, nor administered as such, and shall not be included in the inventory. Allowance·ofwidow and family (S.3) The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by the law. The court hearing the petition for guardianship has special and limited jurisdiction. It has no jurisdiction to enforce payment of the widow's allowance decreed by the probate court: The widow's allowance is to-be taken from the, common mass of property forming the estate of the decedent. It should thus be the court hearing the settlement of estate case that should effect the widow's allowance.6o Allowance of widow and "minor or incapacitated children" should not be limited to "minors orincapacitated''<ohildren as substantive law, Article 188''of the Civil Code, expressly grants provisional support to the deceased's "surviving spouse and children:," which refers to the legitimate spouse and children, regardless of their age, civil status or gainful employment. But .grandchildren are not entitled to such support because .the allowance is restricted to the "widow and children. "61 The spouse referred to is the legal spouse, not the common law spouse. The children are entitled to the allowance even beyond minority based on the provisions for support under the Civil Code. The fact that they are already of age, gainfully employed, or married is of no moment. 6~ 657 (2) To duty to maintain in tenantable repair the houses and other structures and fences belonging to the estate, and to deliver the same in such repair to the heirs or devisees when directed by the court. (S.2) · 1 ! i I (3) The power to have the possession and management of the real as well as the personal estate of the deceased as is necessary for the payment of the debts and the expenses of administration. The administrator does not have the power to deliver property of the estate to particular heirs without the estate court's approval. Also, the estate shall only be distributed after payment of the debts, funeral charges and other expenses against the estate, except as authorized by the court. 63 · General Rule on Accountability: (S.1-2) The executor or administrator is liable in his account with: (1) the whole of the estate of the deceased which has come into his possession, at the value of the appraisal contained in the inventory; (S.1) (2) all the interest, profit, and income of such estate; (S. l) Powers and Duties: (1) The right to have access to, and examine and take copies of, books and papers relating to the partnership business, arid to (3) the proceeds of so much of the estate a:, is sold by him, at the price at which it was sold. (S.1) (4) the excess from the sale of any part of the estate for more than the appraised value, and if any is sold for less than the appraised value, he is not responsible for the loss, if the sale was 60 Heirs of Sy Bang v. Sy, G.R. No. 114217, 13 October 2009, 603 SCRA 534. Estate of Ruiz v. Court of Appeals, G.R. No. 118671, 29 Janua~ 1996, 252-SCRA 61 541. 6 2santero v. CFI of Cavite, G.R. No. L-61700-03, 14 September 1987, 153 SCRA728. 63Silverio, Jr. v. Court of Appeals, G.R. No. 178933, 16 September 2009, 600 SCRA 1. 658 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR]TITERY BAR Tf\KERS 659 Volumerv of any amount that exc;:eeds Php30,000.00 but does not exceed Phpl00,000.00; and ¼%.of any amount.that exceeds Phpl00,000.00. But where· the estate is large, and the settlement has been attended with great difficulty and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the allowance may be re-examined on appeal. justly made. (5) the amount paid to settle any claim against: the estate. If the settlement is for less than its nominal value, he is entitled to charge in his account only the amount he actually paid. (S.2) (5) his own use or occupation of any pa.rt of the real estate, based on what was agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum ro be allowed, the same may be ascertained by the court, whose determination in this :respect shall be final. (S.4) (6) for any loss or wast.age to the estate by reason of his neglect or unreasonable delay to raise money, or _to collect debts, or sell the real or personal estate of the deceased, or to pay over the money he has in .his hands, which causes the value of the estate to be lessened, or unnecessary cost or interest to accrue, or the persons interested to suffer loss, the same shall be deemed waste, and the damage sustained may be charged and allowed against him in his account, and he. shall be liable therefor on his own bond. (S.5) ¾ ii (3) If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the setvices·actually rendered by them respectively. (4) When the executor or administrator is an attorney, he shall not charge against the estate. any professional fees for legal seivice rendered by him. · (5) When the deceased by will makes some other provision for the compensation of his executor, that provision shall be a fully satisfaction for his setvkes unless by a written instrument filed in the court he renounces all claim to' the compensation provided by the wilL' The executor ot administrator shall not be liable for: Duty to Account: (1) the decrease or destruction, without his fault, of any part of the estate. Neither shall he profit by an increase thereof. (S.2) (a) Every executor or administrator shall render an account of his administration: (i) within 1 •year from receiving letters testamentary br of administration, unless the court otherwise directs, and (ii) such further accounts as. the court may require, until the estate is wholly settled. (S.8) (2) debts due the deceased which :remain uncollected without his fault. (S,3) G) any amount he paid for costs awarded against him, which shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith. (S.6) Expenses and Fees Allowed: (S.7) An executor or administrator shall be entitled to: (1) reimbursement of the necessary expenses in the care, management, and settlement of the estate; and, (2) payment of a fee for his services of: (a) Php4.00 pe:r day for the time actually and necessarily employed; or, (b) a commission upon the value of so much of the est.ate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs o:r devisees, of 2"/4of the first PhpS,000.00 of such value; 1% of any amount that exceeds Php5,000.00 but does not exceed Php30,000.00; ½0/4 (b) The court shall examine the executor or administrator as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on any matter relating to an administration account. (S.9) (c) Before the account of an executor or administrator is allowed, notice shall be given .to persons interested of the time and place of examining and allowing the same, either personally or by advertisement in a newspaper, or both, as the court directs. (S.10) (d) ·Upon the settlement of the account of an executor or administrator, a person liable as surety in respect to such account may, upon application, be admitted as a party to such accounting. (S.11) 660 THE PRE-WEEK REVIEWERFORJITfERY BAR TAKERS Volume IV RULE 86: Claims against the RULE 87: Actions by and Estate (Actions Which Do NOT Survive Death) against Executors and Administrators (Actions Which Survive Death) COVERAGE: COVERAGE: Claims which must be filed Actions which may be brought against executor or administrator: against the. estate: (1) all claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; (2) all claims for funeral expenses and expenses for the last sickness of the decedent; and, (3) any judgment for money against the decedent. TIMEBAR: General Rule: Claims. not filed within the prescribed period are barred forever. Exception: The barred claim may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the 64 (1) actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon; (2) actions to recover damages for an injury to person or property, real or personal. (S.1) A claim· for damages arising from injuries to person or property arising from a case for Reckless Imprudence is not extinguished by the death of the accused pending appeal because his civil liability is not based solely ex delicto, but also on quasi-delict or tort, which may be the subject of an independent action against the executor or administrator of the deceased defendant. 64 Effect of death on civil liability of accused: if accused dies prior to final judgment, including during pendency of appeal: Cabugao v, People, G.R. Nos. 163879 and 165805, 30 July 2014, 731 SCRA214. BAR NOTES IN REMEDiALIAW: SPECiAL PROCEEDINGS z; 0 l l % I 1 lI I i II 'II ,ill I I Yi 'i i ,:i l.. ·a '.· i~i \t l;I .;,:;: ,H decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off agamst each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value. (S.5) Quasi-contract or implied contract, arising from mistaken payment (solutio indebitt), is a claim that does not survive death and must be filed as a claim against the estate of the deceased obligor. 65 , . If defendant in a suit for collection of sum of money dies before entry of judgment, creditorfoust proceed ·until e:ntry of judgment and thereafter file a claim against the estate of deceased defendant based on such money judgment. 66 • PROCEDURE: (1) NOTICE TO FILE CLAIM: Immediately after granting letters testamentary or of administration, 661 criminal liability is extinguished together with civil liability ex delicto-, but NOT the civil liability arising from sources other than the delict (law, contract, quasi-contract, quasidelict), which may still be enforced against the estate or the administrator or executor, depending on the source. 67 Executor or administrator may bring or defend actions which survive For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend; in the right of the deceased, actions for causes which survive. (S.2) Heirs may not sue until share assigned When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee, or until the time allowed for paying debts has expired. (S.3) .~ ,ii 65 Metrobank v. Absolute Management Corporation, G.R No. 170498, 9 January 2013, 688 SCRA 225. 66 Gabriel v, Bilon, G.R .No, 146989, 7 February 2007, 515 SCRA 29, 67 Id., citing People v, Bayotas, G.R. No, 102007, 2 September 1994, 236 SCRA 239. 662 THE PRE-WEEK REVIEWER FORJITIERY Volume IV the court shall issue a notice requiring all persons having money claims against the decedent to file them with the clerk of said court. (S.1) BAR TAKERS Executor or administrator may compound with debtor With the approval· of the court, an executor or administrator may compound with the debtor (2) PERIOD TO m'i;:·-cLAIM: of the deceased for a debt due, The court shall fix the period and may give discharge of for filing claims in the notice, such debt on receiving a just which shall be between 6-12 dividend of the estate of the months from the date of the first debtor. (S.4) publication of notice. However, Mortgage due may be at any time before an order foreclosed of distribution is entered, on A mortgage belonging to the application of a creditor who estate of the deceased, as failed to file his claim within the mortgagee or· assignee of the time prescribed, the court may, right of a mortgagee,· may be for cause shown and on equitable foreclosed by the executor or terms, allow: such claim to be administrator: (S.5) filed within 1 month from order. (S.2) Proceed.in~ when property (3) PUBLICATIONAND c<>ncealed,·embezzled;· or POSTING: Every executor or .. . fraudulently conveyed administrator shall, immediately (1) Complaint by an after the notice to creditorsis • executor or administrator, issued, cause the same to be heir, legatee, creclitor, or other published 3 weeks successively individual 'interested in the in a newspaper of general estate of the de<::eased; circulation iri .the province, and (2) with the court having to be posted for the same period. jurisdiction of the estate; in 4 public places in the province and in 2 public places in the . (3) that a person (a) is municipality where the decedent suspected of having concealed, last resided. (S.3) embezzled,· or conveyed any of ( 4} FILING COPY OF NOTICE AND AFFIDAVIT OF PUBLICATION:Within 10 days after the notice has been published and posted, the executor or administrator shall file in the court a printed copy of BAR NOTES IN REMEDIAL LAW: SPECT.,U, PROCEEDINGS the money, goods, or chattels of the deceased; or (b) has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends to disclose the right, title, interest, j ·~ $ II 1 ~ 1 I! I I I~. I I ~ I 'j ~, I ;~ i 663 the notice with an affidavit: setting forth the dates of the first and last publication and the name of the newspaper in which the same is printed. or claim of the deceased to real or peISOnal estate; or (c) has in his possession or has knowledge of the last will and testament of the deceased; (5) HOW TO FILE CLAIM: A claim may be filed by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor or administrator. ( 4) the court may cite such ~pected person to appear before it and may examine him on oath on the matter of such complaint. (a) If the claim be founded on a borid, bill, note, or any other instrument: the original need not be filed, but a copy with all indorsements shall be attached to the claim and filed therewith. On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unl~ it be lost or destroyed, in whichcasethe claimant must accompany his claim with affidavit or affidavits containing a copy or particu1ar description of the instrument and stating its loss or destruction.. (b) If the claimis due: it must be suppQrted by affidavit stating (i) the amount due, (ii) that no payments (5) If the pcrson so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office. (S.6) The court has no power to adjudicate ownen;hip ex~t provisionally, to include or exclude property/ies from the estate inventory. After examination and there is sufficient evidence of the fraud, etc., the executor or administrator may file an action for recovery of such property. 68 have been made thereon 6'!chuaV. Absolute 413 SCRA547. Managemen1: Corporation, G.R No. 144881, 16 October 2003, 664 THE PRE-WEEK REVIEWER FORJITIERY Volume IV which are not credited, and (iii) that there are no offsets to the same; to the knowledge of the affiant. (c) If the claim is not due or is contingent, when filep: it must also be supported by affidavit stating the particulars. When affidavit is made by a person other than the claimant, he must state the reason why it is ~ot made by the claimant. (S.9) (6) ANSWEROF EXECUTOR OR ADMINISTRATOR:Within 15 days from service of a copy of the claim on the executor or administrator, he shall file his answer: BAR TAKERS Person entrusted with estate compelled to render account court in its discretion may extend the time for filing such answer. The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it and to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator. If the person so cited refuses to appear to render such account, the court may punish him for contempt. (S.10) (S.7) (a) admitting or denying the claim specifically; Embezzlement before letters issued (b) setting forth the substance of the matters which are relied upon to support the admission or denial; (c) if he has no knowledge sufficient to enable him to admit or deny specifically, stating such want of knowledge; If a person, before the grant (d) alleging in offset any claim which the decedent · before death had against the claimant. His failure to do so shall bar the claim forever. A copy of the answer shall be served by the executor or administrator on the claimant.. The BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS of letters. testamentary or of administration, eml;>ezzlesor alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. (S.8) (7) ACTION ON ADMITTED CLAIM: ' 1 -~ ! ~ Any claim admitted entirely by the executor or administrator shall immediately be submitted by theclerk to the court and the latter: (a) may approve the same without hearing; or, (b) may order that known heirs, legatees, or devisees be notified and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in its discretion, allow him 15 days to file an answer to the claim. (S.11) (8) TRIAL OF CONTESTED CLAIMS:Upon the filing of an answer, or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner. (S.12) (9) JUDGMENT ON THE CLAIM: The court shall render judgment either approving or disapproving a claim, which shall be filed with the record of the administration proceedings. Notice shall be given to both parties. The judgment is appealable as in ordinary cases. A judgment approving a claim shall order the executor or administrator to pay, in due course of administration, the 665 Property fraudulently conveyed by deceased may be recovered; When executor or administrator must bring action (1) When there is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, (2) and the deceased in his lifetime had (a) conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or (b) had so conveyed such property, right, interest, debt, or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, (3) the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors, ( 4) but only upon application of the creditors of the deceased and their payment of such part of the costs and expenses, or give security therefor, to the executor 666 THE PRE-WEEK REVIEWER.FORJIT[ERY BAR u\KERS Volume IV amount ascertained to be due, and it shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. (S.13) (10) COSfS: (a) When the executor or administrator, in his answer, admits and offers to pay part of a claim, and the claimant refuses to accept the amount offered, if he fails to obtain a mo~ favorable judgement, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer. · (b) Where an action commenced against the deceased for money has been discontinued and the claim embraced therein was presented under this rule, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. (S.14) Solidary and Joint Obtigation ofPecedeot (1) Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor. or administrator, .as the court deems equitable. (S.9) When creditor may bring action (1) When there is such deficiency of assets for the payment of debts and expenses of administration, I (2). and the deceasedin his lifetime had made or attempted such a fraudulent conveyance underS.9, (3) and the executor or administrator has not commenced ari action to recover such property, ( 4) any creditor of the estate may, with the permission of the court,· commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. (5) But .the action shall not be commenced until the creditor has filed in a court· a bond executed to the executor or administrator, in an amount approved by the judge, against the costs and expenses incwred by a reason of such action. (6) Such creditor shall have lien upon any judgment recovered by him in the action BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS (2) In a joint obligation of the decedent, the· claim shall be confined to the portion belonging to him. (S.6) R.86, S.6 is contrary to Article 1216 of the Civil Code, which allows a creditor to proceed against any one of the solidary debtors, or some or all of them simultaneously. The choice belongs to. the. creditor. In case of death of one of the solidary debtors, the creditor has a choice to proceed aga,inst the• surviving solidary debtors without need of filing a claim against the estate of the deceased solidary debtor. Substantive· 1aw prevails over a procedural rule. 69 667 for such costs and other expenses incurred therein as the court deems equitable. (7) Where the conveyance or attempted conveyance has been made by the deceased in his lifetime in favor of the executor or administrator, the action which ,a creditor may bring shall be in the name of all creditors, and permission of the court and filing of bond as above prescribed, are not necessary. (S.10) Mortgage Debt Due from Estate A creditor holding a claim against the deceased secured. by a mortgage or other co~ateral security may: (1) abandon the security and prosecute his claim under this rule, and share in the general distribution of the assets of the estate; or, (2) foreclose his mortgage or realize upon his security, by judicial action; making the executor or administrator a party defenclant. If there is a deficiency judgment after the sale· of the 69Boston Equity Resources SCRA 16. v:.Court of Appeals, G.R. No. 173946, 19June 2013, 699 668 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS Volume IV mortgaged premises or the property pledged, in the judicial foreclosure or other proceeding to realize upon the securicy, he may claim his deficiency judgement as a claim under this rule; or, 669 claim for any deficiency. These remedies are mutually exclusive, not cumulative. The choice of one bars the others. 70 Claim of executor or administrator awunst an estate (3) rely upon his mortgage or other security alone, and extrajudicially foreclose the same at any time within the period of the statute of limitations. In that event, he shall not be admitted as a creditor, and· shaU receive no share in the distribution of the other assets of the estate. If the executor or administrator has a claim against the estate he represents, he shall give notice in writing, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or · administrator to pay· to the special administrator. necessary. funds. to defend such claim. (S.8) But nothing shall prohibit the executor or administrator from redeeming the property mortgaged or pledged, by paying the debt for which it is. held as security, under the direction of the court, if the court shall adjudge it to be for the best interest of the estate. (S.7) Debts pa,id in full if estate sufficient S.7 covers all debts secured by mortgage or other security, whether contracted by the decedent or the administrator. 3 remedies of the creditor: (1) claim the entire debt against the estate of the deceased mortgagor, and waive the mortgage; (2) judicially foreclose the mortgage and recover any deficiency in an ordinary action, then present the deficiency judgment as a claim against the estate; or, (3) extrajudicially foreclose the mortgage or other security, without any right to file a If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims., it appears that there are sufficient assets to. pay the debts, the executor or administrator shall pay the same within the time limited for that purpose.(S.1) Part of estate from which debt paid when provision made by will If the testator makes provision by his will, or designates the estate to be -appropriated for the payment of his debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provision made by the will or the estate appropriated is not sufficient for that purpose, such part t. it , ~ Ji . 7 "Heirs of the Late Spouses Maglasang v. Manila Banking Corporation, G.R. No. 171206, 23 September 2013, 706 SCRA 235. 670 BAR NOTES IN RE'li!EDIAL IAW: SPEOAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 671 Volume IV of the estate of the testator, real or personal, as is not disposed of by will, if any, shall be appropriated for that purpose. (S.2) Court to fix contributive shares where devisees, legatees, or heirs have been in possession Personalty first chargeable for debts, then realty Where devisees, legatees, or heirs have entered into pos.session of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require ..(S.6) The personal estate of the deceased not disposed of by will shall be first chargeable with the payments of debts and expenses; and if said personal estate is not sufficient fot that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator,. after obtaining the authority of the court. Any deficiency shall be met by contributions in accordance with the provisions of S.6. (S.3) Estate to be retained to Order of payment t"g .11 i meet conting~nt claims If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or, if the estate is insolvent,:sufficient to pay a portion equal to the dividend of the other creditors. (S.4) 1 1 .;'l ~ I ' ] ! J How contingent claim becoming absolute,~ 2 jears allowed and paid. Action against distributees ·· :% If such contingent daim becomes absolute ari.d'ispresented to the court, or to the executor or administl"atbr, "."ithi_n2 yeais from the time limited for other creditors to present their clairils, it may be allowed by the court if not disputed by the executor or administrator, and if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent. claim is allowed, the creditor shall receive payment to. the same extent as the other creditors if the estate retained by the ex<'!cutor or administrator is sufficient. But if the claim is not so presented, after having Become absolute, within said 2 years, and allowed, the assets retained in the hands of the executor or administrator;· not exhausted in the payment of claims, shall be distributed by the order of the court to the persol)S entitled to the same; but the assets so distributed may still be applied to the payment ofthe claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. (S.5) jfestate insolvent If the assets which can be appropriated for the payment of debts are not sufficient, the executor or administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2339 to 2251 of the Civil Code. (S.7) Dividends to be paid in proportion to claims If there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid (S.8) Fstate of insolvent non-resident, how disposed of In case itdministration is taken· in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country and who died insolvent, his estate found in the Philippines shall, as fast as practicable, be so disposed of that his creditors here and elsewhere mayreceiveeach an equal share, in proportion to their respective credits. (S.9) r· When and how claim proved outside the Philippines against insolvent resident's estate paid If it appears to the court having jurisdiction that claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the Philippines, and that the executor or administrator in the Philippines had knowledge of the presentation of such claims in such country and an opportunity to contest their allowance, the court·shall receive a l di' ·I . . ! rt 11 :1. 672 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 673 Volume IV certified list of such claims, when perfected in such country, and add the same to the list of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate may be made equally among all its cr«:!ditorsaccording to their respective claims; but the benefit of this a'Iid-the preceding sections shall not be extended to the creditors in :another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims. (S.10) Tim.e for paying debts and legacies On granting letters testamentary or administration, the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed 1 year; but the court may, on application of the executor or administrator and after hearing with notice given to all persons interested as it shall direct, extend the time as circumstances of the estate require not exceeding 6 months for a single extension, but not to exceed two years. (S.15) ! Order for payment of debts Before the expiration of the time limited for the payment of debts, the court shall order the payment thereof _andthe distribution of the assets received by the executor or administrator for that purpose among the creditors, as the circumstances ofthe estate require and in accordance with the provisions of this rule. (S.11) Orders relating to :payment of debts where appeal is taken Successor of dead executor or administrator may have time extended :\:-. 1! 1-i /\ If an appeal has been taken from a decision of the court concerning a claim, the court may suspend the order for the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. When a disputed cfaim is finally settled the court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. ·cs.12) When an executor or administrator dies, and a new administrator is appointed, the court may extend the time allowed for the payment of debts or legacies beyond the time allowed to the original executor or administrator, not exceeding 6 months at a time and not exceeding 6 months beyond the time which the court might have allowed to such_original executor or administrator; and notice shall be given of the time and place for hearing such application as required in S.15. (S.16) Order of sale of personalty (1) Upon the application of the executor or administrator, and (2) with written notice to the heirs and other persons interested, (3) the court may order the whole or part of the personal estate to be sold if it appears necessary for (a) the purpose of paying debts, expenses of administration, or legacies; or, (b) the preservation of the property. (S.l) When subsequent distribution of assets ordered If the whoie of the debts are not paid on the first distribution, and if the whole assets are not distributed, or other assets afterwards come to the hands of the executor or administrator, the court may from time to time make further orders for the distribution of assets. (S.13) When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies though personalty not exhausted Creditors to be paid in accordance with terms of order (1) (a) When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and legacies, or (b) where the sale of such personal estate may injure the business or other interests of those interested in the estate, and When an order is made for the distributio_n of assets among the creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order. (S.14) (2) where the testator has not otherwise made sufficient provision for the payment of such debts, expenses, and legacies, t j . . 674 THE PRE-WEEK REVIEWER FORJfITERY Vo!umeN (3) upon the application of the executor or administrator and (4) with written notice to the heirs, devisees, and legatees residing in the Philippines, (5) the court may authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons interested; and if part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial under the circumstances. (S.2) Persons interested ~.pr dent such sale, or encumbrance by givingbond No such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted ifany P¢rson interested in the estate gives a bond, in _asum to be fixed by the ·court, conditioned to pay the debts, expenses of administration, and legacies within such time as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either. (S.3) When court may authorize sale of BAR NOTES IN REMEDIALLAW: SPECIALPROCEEDINGS BAR TAKERS estate as beneficial to interested persons; Disposal of proceeds When it appears that the sale of the whole or a part of the real or personal estate will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees, and legateeS who are in interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions. (S.4) · Implicit in the requirement for judicial approval was that the probate court could rescind or nullify the disposition of a property under 675 administration that was effected without its authority. It also includes 71 the authority to nullify or modify its approval of the sale. When an order authorizing the sale or encumbrance of real property was issued by the estate court without previous notice to the heirs, devisees and legatees, as required, it is not only the contract itself which is null and void, but also the order of the court authorizing the same. The requirements under Rule 89 are mandatory and failure to give notice to the heirs would invalidate the authority granted by 72 the estate court to sell, mortgage or encumber the estate assets. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in other countries When the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is.not necessary to pay the debts, expenses of administration,, or legacies in the Philippines, but it appears from records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts, expenses of administration, and legacies there, the court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real estate for the payment of debts or legacies in the other country, in the same manner as for the payment of debts or legacies in the Philippines, (S.5) When court may authorize sale, mortgage, ·or other encumbrance of realty acquired on execution or foreclosure The court mortgage, execution under the mortgage, may authorize an executor or administrator to sell, or otherwise encumber real estate acquired by him on or foreclosure sale, under the same circumstances and same regulations as prescribed in this rule for the sale, or other encumbrance of other real estate. (S.6) Regulations for granting authority to sell, mortgage, or otherwise encumber estate The court may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real Spouses I.ebin v. Mirasol, G.R. No. 164255, 7 September 20H, 657 SCRA 35. v. Philippine National Bank, G.R. No. 156403, 31 March 2005, 454 71 72Pahamotang SCRA681. 676 TI-IE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N estate in cases provided by these rules and when it appears necessary or beneficial, under the following regulations: a. The executor or administrator shall file a written petition setting forth the: debts due from the deceased, the expenses of administration1~44.~gacies, the value of the personal estate, the situation of~~s):ate to be sold, mortgaged, or otherwise encumbered, and strcl;~ther facts as show that the sale, mortgage, or other encumbrance Js necessary or beneficial; b. The court shall thereupon fix a time and place for hearing such petition, an:d cause notice stating the nature of the petition, the reason for the same,• and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper; c. If the court requires it, the executor or administrator shall give an additiorialbond, in such sum as the court directs conditioned that such executor or administrator will account for the proceeds of the ~al~, mort~age, ..or other encumbrance; d. If the requirements 1,llthe preceding subdivisions of this section have been complied With, the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in cased of sale the court may authorize .it to.·be public or. private, as would. be most beneficial to all parties concerned. The executor ciradministrator shall be furnished with a certified copy of such order; e. If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice. of execution sale; f. There shall be recorded in the Registry of Deeds of the province in which the i:eal estate thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be as valid if the deed had been executed by the deceased in his lifetime. (S.7) BAR NOTES IN REMEDIALLAW:SPECIAL PROCEEDINGS 677 Only the executor or administrator may be authorized by the court to sell, mortgage or encumber estate property, not the heirs. 73 When court may authorize conveyance of realty which deceased contracted to convey Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein: (1) upon application; (2) with notice, personally or by mail, to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; (3) the court having jurisdiction of the estate. may authorize the executor or administrator to convey such property according to such contract, or with such modifications are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed, UNLESSthe assets in the hands of the executor or administrator will thereby be reduced as to prevent a creditor form receiving his full debt or diminish his dividend. EFFECT:The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime. (S.S) S.8 mentions only.an application to authorize the conveyance of realty under a contract that the deceased entered into while still alive. While this Rule does not specify who should file the .application, it stands to reason that the proper party must be one who is to be benefitted or iniured by the judgment, or one who is to be entitled to the avails of the suit.74 To be effective and binding against the whole world: notice must be given to all interested persons, court approval must be secured, and the conveyance must be registered with the Register of Deeds . Registration of the contract of conveyance without court approval would be ineffective to bind third persons, specially creditors of as 730rola v. Rural Bank of Pontevedra, G.R. No. 158566, 20 September 2005, 470 SCRA 74Heirs of Spouses Sandejas v. Lina, G.R. No. 141634, 5 February 2001, 351 SCRA 352. 183. 678 THE PRE-WEEK REVIEWER FOR JITfERY BAR TAKERS Volume IV BAR NOIES IN REMEDIAL LAW: SPECIAL PROCEEDINGS the estate. Othetwise, this will open the door to fraud on creditors of the estate. 75 The order of the probate court approving the compromise agreement among the heirs partitioning the estate has the force and effect of a judgment and is immediately executory. There is no appeal from such judgment. It puts an end to the settlement of estate proceeding. 76 When court may authorize conveyance deceased held in trust of lands which Where the deceased in his 'lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize -the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit itwa.s<so held; and the court may order the execution of such trust, whether Created by deed or by law. (S.9) . Order . forDistribution of Residue (1) W4en (a) debts, (b) ·funeral charges, and (c) expenses of administration, (d) the allowance of the• widow,. and (e) inheritance tax, if any, chargeable to the estlte, have been paid, (2)upon application of the executor or administrator, or of a person interested in the estate, (3) after hearing with ri.otice, ( 4) the court shall assign the residue of the estate. to the persons entitled to the same; naming them and the proportions or parts, to which ea.ch is·entitled, anq·such persoris·rriay demand and recover their respective shares from the executor or adtninistrator, or any other.person·having the s~e in his possession._ (5) If there. is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is-entitled, the.controversy shall be heard and decided as in ordinary cases. (6) No distribution shall _be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributes, or any of thein,give a bond, in a sum to be fixed by the court, conditioned.for the payment·ofsaid obligations within such time as the court directs. (S.1) Questions as to .Advancement Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings. The final order of the court thereon shall be binding on the person raising the questions and on the heir. (S.2) It is within the cow:t's discretion to- permit an advance distribution subject to- the following conditions: (1) only part of the estate that is not affected by any pending. controversy or appeal may be the subject of advance distribution; AND, (2) the distributees must post a bond 77 Payment of Expenses of Partition If at the time of the distribution, the executor or administrator has retained sufficient effects in bis hands which: may lawfully be applied for the expenses of partition of the· properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intem,j.on of the testator; otherwise, they shall be paid by the parties in prop<>rtion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and if any person interested in the partition does not pay his proportion or share~ the court may is&Ie an execution in the name of the executor or administrator against the party not paying for the sum assessed. (S.3) Reconling Liu v. Loy, Jr., G.R. No. 145982, 3 July 2003, 405 SCRA 316. the Order of Partition Certified copies of final orders and judgements· of the court relating to the real estate or the partition tb.ereof shall be recorded in the Registly of Deeds of the province where the property is situated. (S.4) . ~esugas 75 679 v. Reyes, G.R. No. 174835, 22 March 2010, 616 SCRA 345. V. J.CN Construction, supra. Quasba Ancbela Penaand Nolasa> law 77 680 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS (9) If a devisee, legatee, heir, widow, widower, or other person entitled to such estate appears and files a claim thereto with the court within 5 years from the date of such judgment, such person shall have possession of and title to the same, Of if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges for the care of the e3tate. A claim not made within 5 years from escheat judgment shall be forever barred. (S.4) Petition for Escheat (1) When a person dies intestate, (2) leaving real orpersonal property in the Philippines, (3) without any heir or person by law'entitled to the same, (4) the Solicitor General, in behalf of the Republic of the Phiiippines, may file a petition in the RTC of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated. (S.1) (5) If the petition is sufficient in form and substance, the court shall issue an order setting· a hearing, not more than 6 months after the entry of the order, and ' (6) cause a copy hearing, at least, once newspaper of general court shall deem-best. of the order to be published before the a week for 6 successive weeks in some circulation published in the province, as the (S.2) ! I i ·1;j 1 I I¾ % 1 (7) At the hearing; proof shall be submitted (a) of the publication; and, (b) that the person died intestate, (c) seized of real or personal property in the Philippines, (d) leaving no heir or person entitled to the same, and (e) there is no sufficient cause to the contr:ary. (8) The court shall adjudge that the estate of the deceased in the Philippines, after the payment of just debts and charges, shall escheat; and pursuant of law, assign the personal estate to the municipality or city where he last resided in the Philippines, and the real estate to the municipalities or cities; respectively, in which the same are situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same are located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. The court, at the instance of an interested party or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (S.3) 681 (~ ; ~j i.i I (j ~l" Escheat proceedings are actions in rem, whereby an action is brought against the thing itself instead of the person. Thus, the action for escheat under the Unclaimed Balances Act for the dormant account of the Spouses Bakunawa may be instituted and carried to judgment without personal service upon the depositors or other claimants. Jurisdiction is secured by the power of the court over the res. Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is cor:.sidered a general and constructive notice to all persons interested. Escheat proceedings refer to the judicial process in which the Sr:ate,by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto. In the case of dormant bank accounts, the State inquires into the status, custody, and ownership of the unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor. 78 A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive against all persons with actual or constructive notice, but not against those who are not parties or privies thereto. The escheat judgment was issued by the trial court on 27 June 1989, but it was only 7 years later wh:=n the alleged donee decided to contest the escheat through c. petition for annulment of judgment. With the lapse of the 5-year period, the alleged donee had irretrievably lost her right. 79 { i: J.'--: iI f0' ~ 78 RCBC v. Hi-Tri Development Corporation, G.R No. 192413, 13 June 2012, 672 SCRA 514. 79 Republic v. Court of Appeals, G.R. No. 143483, 31 January 2002, 375 SCRA 484. BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 682 1HE PRE-WEEK REVIEWER FOR]ITfERY Volume IV the province or city where the incompetent resides, based on the assessed value of the property. (3) Guardianship of the person or estate of a minor who resides in a foreign country, in the Family Court of the province or city where his property or part thereof is situated. Other Actions for Eschea:t Until otherwise provided. by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that: the action shall be instituted in the province where the land lies, in whole or in part_ (4) (a) Guardianship of the person of an incompetent, not a minor, who resides in a foreign country, may be instituted in the RTC of the province or city where the property is situated. (b) Guardianship of the estate ofan incompetent,. not a minor, may be instituted in the RTC or MTC of the province or city where the property is situated, based on the assessed value of such property. (S.S). Nature: A guardianship is a trust relation of the most sacred character, in wruchone person, called a "'gaa:rdian" acts for another called the "ward"whom the law regards as incapable of managing his own affaµs.It is intended to preserve the waro's property, as well as to render any assistance that the ward may personally require. 111 A petition for appointment of a guardian is a special proceeding, without the usual parties, i.e,, petitioner vezsus respondent, in an ordinary civil ~The objective for th~ hearing is to determine first, whether a person is indeed a minor or an inC()mpetent who has no capacity to care for himselfand/or his properties; and second, who is most qualified to l~ appointed as guardian. The rules do not necessitate that creditors be identified and notified. Their presence is not essential. 81 Where to instimte proceedings 683 BAR TAKERS (S.1)82 (1) Guardianship of the person or estate of a minor may be instituted in the Family Court of the province or city where the minor resides. (2) (a) Guardianship of the person of an incompetent, not a minor, may be instituted in the RTC of the province or city where the incompetent resides. (b) Guardianship of the estate of an incompetent, not a minor, may be instituted in the RTC or MfC of ""oropesa v. Oropesa, G.R No. 184528, 25 April 2012,. 671 SCRA 174. 81 Alamayri v. Pabale, G.R No. 151243, 30 April 2008, 553 SCRA 146. "'Ruleon Guatdianship of Minors,A.M. No. 03-02--05-SC, 1 May 2003. Meaning of word "incompetent" Ji ~- 11 ~ 'i• 11 r~. I lI i i I l (S.2) "Incompetent" includes persons suffering the penalty of civil interdiction; or who are hospitalized lepers; prodigals; deaf and dumb who are unable to read and write; those who are of unsound mind, even though they have lucid intervals; and, persons not being of unsound mind; but by the reason of age, disease; weak mind, and other similar causes, caim:ot, without oqtside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation .. Transfer of venue (S.3) The court taking cognizance of a guardianship.proceeding, may transfer .thi same to the court of another provinte or municipality where the ward has acquired real property, if he has transferred thereto his bona fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees. · 684 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV RULE 93 PROCEDURE I Ward a Resident Resident Warda Minor Ward a Non-~.t:. Resident Whomayfile petition: (S. l) (1) Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian; or (2) the minor himself if 14 years old or over. (3) the Secretary of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper. Contents of petition: (S.2) Rule on Guardianship of Minors Wheh andhow guardian for non-resident appointed (S.6) When a person liable to be put under guardianship resides outside the Philippines but has estate therein, any relative or friend of such person, or anyone interested .in his estate, in expectancy or otherwise, may petition a court having jurisdktion for the appointment of a guardian for the estate, and if, after notice given to such NonResident A petition for the appointment of a general guardian must be verified and allege: Warda Minor Who may file petition: (S.1) (1) Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian; or (2) the minor himself if 14 years old or over. (3) the Secretary ofm~alth, in favor of an insane person who shpuld be hqspitalized, or in favor of an isolated leper. When and how guardian for non-resident minor appointed (1) Petition: When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or anyone interested in his property, may petition the Family Court for the appointment of a guardian over the property. (2) Hearing: Notice of hearing of the petition shall be given to a. b. ~ :i I i :~ 11 ~, !I. i~! C. ' I '~ ll d. I I ; l i II e. The jurisdictional facts; The minority or incompetency rendering the appointment necessary or convenient; The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care; The probable value and character of his estate; The name of the person for whom letters of guardianship are prayed. person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate. Contents of petition: (S.2) A petition for the appointment of a general guardian must be verified and alleged: The jurisdictional facts; The minority or incompetency rendering the appointment necessary or convenient; The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care; The probable value and character of his estate; The.name of the person for whom letters of guardianship are prayed. 685 the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the minor. (3) Judgment: If after hearing the court is satisfied that such nonresident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property. 686 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV No defect in the petition or verification shall render void the issuance of letters of guardianship. No defect in the petition or verification shall render void the issuance of letters of guardianship. Procedure: (S.35, 8) Procedure: (S.3-5,8) (1) Set Hearing: The court shall set a hearing. (1) Set Hearing: The court shall set a hearing. (2) Notice: The court shall cause reasonable notice to be given to the persons mentioned. in the petition residing in the province, including the minor if above 14 years of age, or the incompetent himself, and may direct other general or special notice to be given. (3) Opposition: Any interested person may file a written opposition fo the petition on the ground of (i) majority of the 4 lleged minor, (2) Notice: The Court shall cause reasonable notice to be given to the persons mentioned in the petition, including the minor if above 14 years of age, or the incompetent himself, and may direct other general or special notice to be given. (3) Case Study Report: The court shall order a social worker to conduct BAR NOTES IN REMEDIALJAW: SPECIALPROCEEDINGS (ii) competency of the alleged incompetent, or (iii) the unsuitability of the person for whom letters are prayed; and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition. ( 4) Hearing: At the hearing, (i) the alleged incompetent must be present if able to attend; (ii) proof of the required notice niust be given; (iii) the court shall hear the evidence of the parties in support of their respective allegationss (5) Judgment: If the person in question is a minor, or incompetent it shallappoint a suitable guardian a case study of the minor and all prospective guardians, and submit his report to the court before the hearing_ The social worker may intervene on behalf of the minor if he finds that the petition should be denied (4) Opposi- tion: Any interested person may file a written opposition to the petition on the ground of (i) majority of the alleged minor, or, (ii) the unsuitability of the person for whom letters are prayed; and may pray that the petition be denied, or that letters of guardianship 687 688 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume N of his person or estate, or both, with the powers and duties hereinafter specified. (6) Service of Judgment: Final orders or judgments shall be served upon the Local Civil Registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated, and the latter shall annotate the sanie1n the corresponding title and report to the court such compliance within 15 days. issue to himself, or to any suitable person named in the opposition. - - '.:. . -::,-~ .- " 689 (5) Hearing: At the hearing, (i) the prospective ward must be present; (ii) proof of the required notice must be given; (iii) the court shall hear the evidence of the parties in support of their respective allegations. (6) Judgment: If warranted, the court shall appoint a suitable guardian of the person or property of the minor, or both. Bond Conditions (S.1) Bond Conditions: Before letters of guardianship issue, the guardian shall give bond, conditioned: Before letters of guardianship issue, an appointed guardian may be required to post a bond, conditioned: (1) to make and return to the court, within 3 months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; (7) Service of Judgment: Final and executory orders or judgments \ J (1) to make and return to the court an inventory, within 3 months after issuance of letters of guardianship, of all the property, real and personal, of his ward which shall come to his possession or 690 TI-IE PRE-WEEK REVIEWER FORJITfERY BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS BAR TAKERS 691 VolumeN (2) to faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; (3) to render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs, and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and ( 4) to perform all orders of the court. Where filed (S.3) With the office of the clerk of the court, and, in case ofthe breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate: as the court may fix, in no case less than 10% of the value of such property or annual income. A verified petition for approval of such bond shall be filed with the Family Court of the place where the child resides, or if a non-resident, in the place where he has property. The petition shall be docketed as a summary special proceeding. knowledge, or of any person in his behalf; (2) to faithfully execute the duties of his trust, to manage and dispose of the property fot'the best interests of the ward, and"to provide for his proper care, custody and education; (3) to render a true and just account of all the property of the ward, and of all proceeds or interest derived therefrom, and of the management and disposition of the same when directed by the rules or the cour!it .and at the expiration of his t:riist, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled; and (4) to perform all orders of the court and such other duties as may be required by law. Where to Post: In the Family Court where the petition was filed. Bond of Parents as Guardians of Minor's Property: If the market value of the property or annual income of the child exceeds Php50,000.00, the parents shall post a bond in such amount The legal guardian only has the plenary power of administration of the minor's property. It does not include the power of alienation, which needs judicial authority. 83 !~ i or, ' Procedure (S.l-5) {"·.-,,!;•:· ' .· (1) Verified Petition:.(a) When (1) Verified Petition: (a) When the income of an_,e;t:;tteunder guardian~lµp -is irl$ufficient to maintain the ~~rg :ind his fap:illy, or Cb)to maintain and educate the ward when a minor, or (c) when it appears that it is foi: the benefit of the ward that his real estate or some part thereof be sold, or mortgaged ot otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the · the income or property under guardianship is insufficient to maintain and educate the ward, or Cb)when it is for his benefit that his personal or real property, or any part thereof, be sold, mortgaged, or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property, the guardian may file a verified petition setting forth such facts, 83Cabales v. Court of Appeals, G.R. No. 162421, 31 August 2007, 531 SCRA 691. 692 THE PRE-WEEK REVIEWER FORJITIERY BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS BAR TAKERS Volume IV ward, the guardian may present and praying that an order a verified petition to the court issue authorizing the sale or which appointed him, setting forth encumbrance of the property. such facts and praying that an (2) Show Cause Order: If order issue authorizing the sale or ..:c. the sale or encumbrance encumbrance. is necessary or would be (2) Show Cause Order: If it beneficial to the ward, the seems probable that such sale court shall order his next of or encumbrance is necessary, or kin and all persons interested would be beneficial to the ward, in the property to appear at the court shall orderthe 11e.xtof the hearing and show cause kin of the ward, and all p~rsons why the petition should not be interested in the estate, to appear granted. at a hearing to show cause why (3) Hearing: At the scheduled the prayer of petition should nbt hearing, the court shall hear be granted. the evidence of the parties. (3) Hearing: At the scheduled hearing, the court shall hear the proofs· and allegations of the petitioner and.next of kin, and other persons interested, together with their witnesses. ( 4) Judgment: The court shall grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just. If the petition is granted, the court shall order such sale or encumbrance · and that the proceeds thereof be expanded for the maintenance of the ward, if a minor, or for putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold (4) Judgment: The court shall grant or deny the petition as the best interests" of the ward may require: If granted, the court shall specify the grounds for the sale or encumbrance. The court may also authorize and require the guardian to invest the proceeds for the best interests of the ward. be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require, an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than 1 year after granting the same, vyithout a sale being had. (5) Order to Invest: The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require. Property under guardianship can be sold only by prior authority granted by the guardianship court. Therefore, the sale of the ward's property by the guardian without authority from the court is void. 84 84Yuson de Pua v. San Agustin, G.R. No. L-27402, 25 July 1981, 106 SCRA 7. 693 694 1HE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Powers and Duties (S.1-8) Duties: (1) General Duties: A guardian (1) General Duties: A guardian shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a non-resident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship. shall have the care and custody of the person of his ward, and the management of his property, or the management of the property only, as the case may be. The guardian of the property of a non-resident . shall have the management of all his property within the Philippines. (2) To Pay Debts: Every guardian must pay the ward's just debts out of his personal estate and the income of .his real estate, if sufficient; if not, ·gien out of his real estate upon obtaining an order for the sale or encumbrance thereof. (3) To Settle Accounts, Collect Debts, Appear in Court: A guardian must (i) ·settle all accounts of his ward; (ii) demand, sue for, and receive all debts due him; or, (iii) may, with the approval of the court, compound for the same and give discharge to the debtor, on receiving a fair and just dividend of the estate and effects; and, (iv) he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. (2) To Pay Debts: A guardian must pay the ward's just debts out of his personal property · and the income of his real property, if sufficient; if not, then out of his real property upon obtaining an order for the· sale or encumbrance thereof. (3) To Settle Accounts, Collect Debts, Appear in Court: A guardian must (i) settle all accounts of his ward; (ii) demand, sue for, anc:lreceive all debts due him; or, (iii) may, with the approval of the court, compound for the same and give discharge to the debtor, on receiving a fair and just dividend of the estate and effects; and, (iv) he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 695 ( 4) Manage Estate and Apply Proceeds to Ward's Maintenance: A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance. (4) Manage Estate and Apply Proceeds to Ward's Maintenance: A guardian must manage the property of his ward frugally and without waste, and apply the income and profits thereof, so far as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be insuffident for that purpose, the guardian may sell or encumber the real or personal property, upon being authorized by order so to do. (5) Join Partition Proceedings: The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward, jointly or in common with others, but such authority shall only be granted after hearing, upon sud). notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action. (5) Join Partition Proceedings: A guardian may consent to a partition of real or personal property owned by the ward, jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action. (6) Inventory, Account and Appraisal: A guardian must render to the court an inventory of the estate of his ward within 3 months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be {6) Inventory: A guardian must render to the court an inventory of the estate of his ward within 3 months after his appointment, and annually after such appointment, the rendition of any of which may be compelled upon the application of an interested person. 696 Volume sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement, the court may request assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within 3 months after such discovery, succession, or acquisition. Proceedings when person suspected of embezzling or concealing property of ward! (S.6) BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS . Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrumeQ.t, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money; goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance. 697 rv (7) Additional Property: A guardian shall report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within 3 months after such discovery, succession, or acquisition. I =~ ,.I I l :J: ~I (8) Accounting: A guardian shall render an accounting, for the court's approval, within 1 year from his appointment and every year thereafter, or as often as may be required. I from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. {n the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward. ! All the estate of the ward described in the first inventory shall be appraised. In the appraisement, the court may request assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within 3 months after such discovery, succession, or acquisition. 111 ~ii Grounds: I If i,. ! l I i 1 1 .{ :f i I ' i When guardian's accounts presented for settlement: (S.8) Upon the expiration of a year j 1: ':,~ i( r J . ; (1) Ward regains competency: A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition for the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the Grounds for Removal or Resignation: (1) Removal: When a guardian becomes insane, or Cb) otherwise incapable of discharging his trust, or unsuitable therefor, or, (c) has wasted or mismanaged the property of his ward, or (d) failed for 30 days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the property of the ward to the person found to be lawfully entitled thereto. (2) Resignation: The court may allow the guardian to resign for justifiable causes. ']\ 698 THE PRE-WEEK REVIEWER FORJITTERY BAR TAKERS Volume IV parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. (S.1) (2) Removal of guardian: (a) When a guardian becomes insane, or (b) otherwise incapable of discharging his trust, or unsuitable therefor, or, (c) has wasted or mismanaged the estate, or (d) failed for 30 days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto.· (3) Resignation: A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place. (S.2) ( 4) Marriage or emancipation !" \ Upon removal or resignation, the court shall appoint a new guardian. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. (3) Coming of age or death: The court may, motu proprio or upon verified motion filed by anyone permitted to file for guardianship, terminate the guardianship on ground that the ward has come of age or died. The guardian shall notify the court of such fact within 10 days from its occurrence. ; ll ~ 1 1 i j 1 I Izl emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age,buthecannotborrowmoney or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. 699 (5) No more necessity: The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary. The relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward. 85 Wh~re trnstee appointed (S.1) I Atrustee necessary to carry into effect the provisions of a will or ~tten instrument shall be appointed by: (a) the RTC/MTC in which the. will was allowed, if it be a will allowed in the Philippines; or (b) the RTC/MTC of .the province in which the property, or some portion thereof, affected by the trust is situated, if otherwise. ). Appointment and powers of trustee under will (S.2) I ~ ' • f of ward: The marriage or voluntary BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS I J \•. 1 If a testator has omitted in his will to appoint a trustee in the Philippines; and if such appointment is necessary to carry into effect the provisions of the will, the proper RTC/MTC may, after notice to all petso6s interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shaU vest, as if he had been appointed by the testator. No person succeeding to a trust as executor.or.administrator of a former trustee shall be required to accept such trust. Appointment and powers of new trnstee under written instrument (S.3) When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper RTC/MTC may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the 85Caniza v. Court of Appeals, G.R. No. 110427, 24 February 1997, 268 SCRA 640. BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume [V 700 701 b. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, accor.ding to law and the will of the testator, or the provisions of the instrument or order under which he is appointed; others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or jointly with the others. c. Proceeditigs where trustee appointed abroad (S.4) That he will render upon oath, at least, once a year until his trust is fulfilled, unless he excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order; d. That at the expiration of his trust, he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto. When land in the Philippines is held in trust for persons who are residents here b)!\~:,Stri.istee who derives his authority from without the Philippines, sutlitrustee shall, on petition filed in the RTC/MfC of the province ot city where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new tru~te_ein whom. the trust estate shall vest in like manner as if he had been originally appointed by such court, But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly. Appraisal (S.7) Bond(S.5) Before assuming the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount flied by the said court, payable to the Government of the Philippfo.~ and suffitie~t and available for the protection of any party ii1ip.t:erest, and a trustee who neglects to file such bond shal_l be considered to have declined or resigned the trust; but the court may until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond. Conditions of bond (S.6) The following conditions shall be deemed to be a part of the bond whether written therein or not: a. That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of making of such inventory shall have come to his possession or knowledge; When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it b,e not determined in the instrument creating the trust. Removal or resignation of trustee (S.8) ll I i j I 1 The proper RTC/MTC may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust, or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation. Sale or Encumbrance (S.9) When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such ' ! 702 TI-IE PRE-WEEK REvlEWER FORJilTERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS or money belonging to the insane until a guardian is properly appointed. sale or encumbrance to be made , and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record or proceedings,· shall conform as nearly as may be to the provisions concerning the sale or encumbrance ·by guardians of the property of minors or other wards. Discharge of Insane (S.4) When, in the opinion of the Secretary of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger, he may file the proper petition with the Regional Trial Court which ordered the commitment. A trustee does not acquire ownership of the assets entrusted to him but merely manages it for the benefit of the beneficiaiy. 86 J Assistance of Fiscal (S.5) t Petition: Contents and Venue (S.1) l A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Regional Trial Court of the province where the person alleged to be insane is found, by the Secretary of Health where (a) such commitment is for the public welfare, or (b)for the welfare of said person who, in his judgment, is insane, and (c) such person or the one having charge of him is opposed to ~s being taken to a hospital ot other place for the insane. i i I It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Secretaiy of Health and represent him in court in all proceedings arising under the provisions of this rule. I :t ·i Coverage: ~; Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. (S.1) ;;t ,··1 Order of Hearing and Notice (S.2) If the petition filed is sufficient in form and substance, the court, shall set a hearirig and notice shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing. r Hearing and Judgment (S.3) Upon satisfactoiy proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take care proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane, as may be recommended by the Secretaiy of Health. The court shall make proper provisions for the custody of property l I The object of the writ of habeas corpus is to inquire into the legality of the detention and if the detention is found to be illegal, to require the release of the detainee. The writ will not issue where the person in whose behalf the writ is sought is out on bail, or is in the custody of an officer under process issued by a court or judge with jurisdiction, or by virtue of a judgment or order of a court of record. The writ could also not be used as a substitute for another remedy. 87 Restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. It is permissible precautionary measure. It is at best nominal restraint which is beyond the ambit of habeas corpus. 88 J ll !~ 11. 86 Home Guaranty Corporation v. R-II Builders, G.R. No. 192649, 22 June 2011, 652 SCRA649. 703 ..:\:: .... ·· j..·•.· ·1 ~~~ i .J 87Mangi!a v. Pangilinan, G.R. No. 160739, July 17, 2013, 701 SCRA 355. Ampatuan v. Macaraig, G.R. No. 182497, 29 June 2010, 622 SCRA 266. 88 704 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 705 Volume IV Once a person detained is duly charged in court, he may no longer question his detention through a petition for a writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest. The term "court" includes quasi-judicial bodies or governmental agencies authorized to order a person's confinement, Hke the Deportation Board·of 1tlie Bureau of Immigration. 89 Who may issue: I\ -~:~ b. The officer or name of the person by whom he is so imprisoned or restrained; or. if both. are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; c. The place where he is so imprisoned or restrained, if known; d. A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. (S.3) The writ of habeas corpus may be granted by: (1) the Supreme Court, or any member thereof, on any day and at any time; (2) the Court of Appeals or any member thereof, in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Regional Trial Court, for hearing and decision on the merits; any time, and returna,ble before himself, enforceable only within his judicial district. ·cs.2) ii Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and iµunediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own ~nd, and may deputize any officer or person to serve it. To whom directed and what to require (S.6) Defect of form (S.9) No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned of restrained is held and the court or judge before whom he is to be brought. In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall When person lawfully imprisoned recommitted, and when to let bail (S.14) be held to authorize the discharge of (a) a person charged with or convicted of an offense in the ·Philippines, or (b) of a person suffering imprisonment under lawful judgment. 'i l ,,. If That the person in whose behalf the application is made is imprisoned or restrained of his liberty; i !:; I,~. 89Office of the Solicitor General v. Judge de Castro, A.M. No. RTJ-06-2018, 3 August 2007, 529 SCRA 157. 9'>fujan-Militante v. Cada-Deapera, G.R. No. 210636, 28July 2014, 731 SCRA 194. (1) If it appears that the person al- (2) Nor shall anything in this rule Form and contents of application: a. When Granted (S.5) leged to be restrained of his liberty is in the custody of an officer (a) under process issued by a court or judge, or (b) by virtue of a judgement or order of a court of record, and (c) the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgement, or order. (3) a Regional Trial Court, or any judge thereof, on any day and at Considering that ~e writ is made enforceable within a judicial region, petitions for a writ of habeas corpus, whether under Rule 102 or under the Rule on Writ of Habeas Corpus in the Custody of Minors, may therefore be filed with any of the proper RTCs within the judicial region where enforcement is sought. Hence, where the petition was filed in the Family Court of Caloocan City, which issued a writ, such writ may be enforced in Quezon City because both belong to the same judicial region. 90 When Denied (S.4) i_f I I it J i: ;J . 1 706 THE PRE-WEEK REV1EWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL L.\.W: SPECIAL PROCEEDINGS Volume IV command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the · body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. How prisoner designated and writ served (S.7) The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer,· or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it was directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. How writ executed and returned (S8) The officer to whom the writ is directed shall convey the person ff it appears the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, .he may be committed to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement. i f i ~ 1 ~ % ti ? ~ t ¥. ~' t "it f "~ 1 1 ''t so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. Contents of return (SlO) When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: a. Whether he has or has not the party in his custody of power, or under the restraint; b. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth of large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; c. If the party is in his custody or power or is restrained by :I 11 j 707 710 BAR NOTES IN REMEDIAL !AW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 711 Volume IV signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of Phpl,000.00, to be recovered in a proper action. or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. RULE 103: Change ofName Penalty for refusing to issue writ or disobeying (S.16) IRULE 108: Cancellation or Correction of Entries in the Civil Registry A clerk of court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of Phpl,000.00, to be recovered in a proper action, and may also be punished by the court or judge as contempt. Who may file (S.1) Who may file (S.1) Who may file (S.3) A person desiring to change his name or anyone in his behalf Any person interested in any act, event, order, or decree concerning the civil status of persons which has been recorded in the Civil Register Any person with direct and personal interest Where to file (S.1 cf S.2a) Where to file (S.1) Where to file (S.3) RTC where the Local Civil Registry where the record sought to be cancelled or corrected is located. (1) Local Civil Registry where the re:::ord to be corrected is kept. Person discharged not to be again imprisoned(S.17) A person who is set at liberty upon a writ of habeas corpus shall not be.again imprisoned for the same offense·unless by the lawful order or process of a court having jurisdiction of the cause or the offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense; any person set to liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of Phpl,000.00, to be recovered in a proper action,. notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge. granting the writ as for contempt. RTC where petitioner resides for at least 3 years before filing When prisoner may be removed from on:e custody to another (S.18) A person committed to prison or in custody of an officer, for any 1·1 crimina:l matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes ft 11 11 (2) Due to distance, the Local Civil Registrar where petitioner is residing. (3) For nonresident Filipinos, at any Philippine Consulate. ,!! l,f Administrative Correction (Republic Act No. 10172) Contents of Petition (S.2) A verified petition for change of name shall allege: Subject matter (S.2) Upon good and valid grounds, the following entries in the civil Subject matter (S.1-2) General Rule: Corre:::tion of entry in Civil Registry 712 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL L-\W: SPECIAL PROCEEDINGS Volume IV (1) That the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to the date of such filing; (2) The cause for which the change of the petitioner's name is sought; register may be cancelled or corrected: shall be by judicial order. a. Births; Exceptions: b. Marriages; C. Deaths; d. Legal separations; Administrative Correction by the Local Civil Registrar is allowed: e. Judgments of annulments of marriages; f. (3) The name asked for. g. h. Judgments of declaring marriages void from the beginning; Legitimations; Adoptions; (1) Clerical or typographical errors; 1. (2) Change of first f name or nickname; (3) Change in day and/or month in date of birth; (4) Sex; i. Acknowledgements of natural children; (5) Misspelled name or.place of birth; j. Naturalization; k. Election, loss recovery of citizenship; (6) Or like corrections. I. Civil interdiction; m. Judicial determination of filiation; n. 0. Voluntary emancipation of a minor; Changes of name. Even substantial errors in a civil registry may be corrected through a Rule 108 petition, - Must be visible to the eyes, or obvious to the understanding, AND can be changed or corrected by simple reference to other existing records. -Harmless or innocuous corrections. through the proper adversarial proceedings. An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given an opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered. 91 ~- ~:, ~ i ,~ it I ii rt "' t I Change in the petitioner's first name and the first name of his mother are subject to administrative correction under R.A. No. 9048.It is now primarily administrative in nature, and not judicial. The effect is to exclude the change of first • names from the coverage of Rule 103.92 Changing the date and place of marriage of petitioner's parents to "not married" is a substantial correction which requires adversarial proceedings. It is substantial because it will affect his legitimacy and convert his status from legitimate to illegitimate. Adversarial proceedings require >,< t i 'l I ;! l I ~ !.J: :f ii - Must not involve nationality, age or status. 91Republic 921d. v. Valencia, L-32181, 5 March 1986, 141 SCRA 463. 713 714 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS TI!E PRE-WEEK REVIEWER FOR JI1TERY BAR TAKERS Volume IV . the petitioner to implead not only the Local Civil Registrar, but also all persons who have or claim any interest which would be affected by the correction sought, such as the parents and siblings of petitioner in this case. 93 Corrections of entries in the civil register which involve substantial alterations requiring adversarial proceedings include those affecting citizenship, legitimacy of paternity or filiation, or legitimacy of marriage.94 Although it is the policy that a Rule 108 petition cannot substitute for an action to invalidate a marriage as a direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code and J ·~; ·f T ' } ,, J 1 .! :I it i~ :.1 rt .11 i/1 l-¥ 93 Onde v. Office of the Local Civil Registrar, G.R. No. 197174, 10 September 2014, 734 SCRA66L 94Republic v. Uy, G.R. No. 198010, 12 August 2013, 703 SCRA 425. :i related laws and rules, this does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition of a foreign divorce where one of the parties is a foreign citizen. There is neither circumvention of the substantive or procedural safeguards of marriage under Philippine law, or of the jurisdiction of Family Courts under R.A. No. 8369. A recognition of a foreign judgment is not an action to nullify a marriage. It is .an action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already tried and decided under foreign law. Philippine courts are incompetent to substitute their judgment on how a case was decided under foreign law. Thus, Philippine courts are limited to the question of whether to extend 715 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 716 ,1 BAR NOTES IN REMEDIAL LAW:SPECIAL PROCEEDINGS •1! i the effect of a foreign judgment in the Philippines. In a foreign judgment relating to the status of a marriage involving a citizen of a foreign country, Philippine courts only decide whether to extend its effect to the Filipino party, under the rule on lex nationalii expressed in Article 15 of the Civil Code. If there is neither inconsistency with public policy nor adequate proof to repel the judgment, Philippine courts should, by default, recognize the foreign judgment as part of the comity of nations. 95 A Rule 103 petition to change the surname of petitioner to his mother's surname, from his father's surname, is improper as it involves a substantial correction affecting the petitioner's legal status in relation to his 95 Fujiki v. Marinay, G.R. No. 196049, 26 June 2013, 700 SCRA 69. 1 .i "! i tI ii I 1 J if I i. parents. Adversarial proceedings under Rule 108 is the appropriate remedy. 96 A petition under Rule 108 to change the first name from "Jennifer" to "Jeff' and the gender from "female" to "male" of an intersex individual (a human being who cannot be classified as male or female based on their sex chromosomes, genitalia and secondary sex characteristics). The SC in granting .the corrections, focused on the controlling consideration of what the individual, after having reached the age of majority, thinks of as his/her sex. If he has not taken any unnatural steps to arrest or interfere with what he was born with, in the absence of law on the matter, weight must be given to the petitioner's congenital medical condition and his 96Republic v. Coseteng, G.R. No. 189476, 2 Februaiy 2011, 641 SCRA 533. 717 718 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 719 Volume IV decision, supported by natural biological development, to be a male. 97 general circulation in the province. ~3) Opposition: Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Republic. Parties (S.3) When cancellation or correction of an entry in the civil register is sought, the Civil Registrar AND all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Procedure (S.3-6) Procedure (S.4-7) Procedure (S.5) (1) Notice of hearing: If the petition filed is sufficient· in form and substance, the court shall set a hearing. The date set for the hearing shall not be within 30 days prior to an election, nor within 4 months after the last publication of notice; (1) Notice of hearing: The court shall set the hearing on the petition. (1) .File application (Affidavit or Petition) with supporting documents (2 documents, public or private, showing correct entry), citing the page of the Civil Register sought to be corrected. (2) Publication: The court shall· order the publication of the order setting the hearing, once a week for 3 successive weeks, in a newspaper of (2) Serve notice: The court shall cause reasonable notice of the hearing to be given to the persons named in the petition, including the Office of the Solicitor General or the proper provincial or city fiscal, who shall appear on behalf of the Republic. (2) Application is published for 2 consecutive weeks in a newspaper of general circulation, (4) Hearing: The court shall receive proof establishing the jurisdictional and formal requirements and then receive ' the evidence of the petitioner and any oppositor. . t l I it i 1 l ! d :!·} \:,~. .3. Iia !:¥ l ,i 97Republic v. Cagandahan, G.R. No. 166676, 12 September 2008, 565 SCRA 72. rt ~ (5) Judgment: Upon satisfactory proof that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. (6) Service of Judgment/Final Order: Service shall be made on the Local Civil Registrar of the municipality or (3) Publication: The court shall order the publication of the order setting the hearing, once a week for 3 consecutive weeks, in a newspaper of general circulation in the province. ( 4) Opposition: An opposition may be filed by the Local Civil Registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought, within 15 days from notice, or from the last date of publication of . such notice. (5) Hearing: The court shall receive proof establishing the jurisdictional and formal requirements and then receive ' the evidence of the petitioner and any oppositor. (6) Final Order/ Judgment: After h~aring, the court may either (a) dismiss the petition; or (b) issue ~n order granting the cancellation of correction prayed for. (3) Application shall be posted by Local Civil Registrar for 10 consecutive days. (4) A decision must be issued within 5 working days after completion of publication and posting. (5) If the Civil Registrar General does not impugn the decision, it becomes final and executory. (6) If the application is denied by the Local Civil Registrar or the Philippine Consul, appeal may be had with the Civil Registrar General or .the regular courts. If 720 IBE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV !l BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 721 1 city where the court issuing the same is situated, who shall forthwith enter the same in the civil register. Copies shall also be served on the parties, the Civil Registrar General, The Philippine Statistics Authority, and the Solicitor General and City or Provincial Fiscal. (7) Service of Judgment/Final Order: Service shall be made on the Local Civil Registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the Civil Registry. Copies shall aiso be served on the parties, the Civil Registrar General, the Philippine Statistics Authority 1 and the Solicitor General and City or Provincial Fiscal. Orders or judgments from which appeal may be taken (S. l) An interested person may appeal in special proceedings from an order or judgment rendered by the trial court, where such order or judgment: a. Allows or disallows will; b. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; c. Allows or disallows , in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; d. Settles the account of an executor, administrator, trustee, or guardian; e. Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and f. i i# ii: l ~· :t .\\1' I 1 1 l ~ j Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration. A record on appeal is required in special proceedings because of the scenario of multiple appeals during its pendency. The record on appeal is required as the original records of the case must remain with the trial court to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by said court and held to be final already. In a case where the appealed order granted the cancellation of a birth certificate and change in surname, no matter remained for the trial court to adjudicate. The case before it was put to an end with its decision granting the pe~ition. Hence, a record on appeal was no longer necessary. 98 Where in a petition for letters of administration, the court issued an order appointing an administrator, such order is not interlocutory, but a final determination of the rights of the parties in connection with the administration, management and settlement of the decedent's estate. Hence, the order is appealable. A record on appeal was required in such case because _there were other incidents that remained before the estate settlement court relating to the management and distribution of the estate which remained unresolved. 99 Advance distribution (S.2) Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or. appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90. l ~ 1 '~ i f } 98Republic 99Zayco v. Nishina, G.R. No. 186053, 15 November 2010, 634 SCRA 716. v. Hinlo, Jr., G.R. No. 170243, 16 April 2008, 5S1 SCRA 613. THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 722 WRIT OF AMPARO 100 WRIT OF HABEAS DATA 101 Nature: Nature: A remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee or of a private individual or entity. A remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful ·act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondences of the aggrieved party. (S.1) The writ shall cover extralegal killings and enforced disappearances. (S. l) The writ of amparo was intended to address and is thus presently confined to cases involving extralegal killings and/ or enforced disappearances, or threats thereof. Extrajudicial killings are generally characterized as "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings," while enforced disappearances means "the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of a State or a political organization followed by a refusal to acknowledge that deprivation of freedom, or to give information on the fate or whereabouts of those persons 100A.M. The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information and freedom of information of an individual, and to provide a forum to enforce one's right to the truth and to informational privacy. It seeks to protect a person's right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. 102 The writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, liberty or No. 07-9-12-SC, 25 September 2007. No. 08-1-16-SC, 22 January 2008. 102vivares v. St. Theresa's College, -G.R. No. 202666, 29 September 2014, 737 SCRA 101A,M. 92. BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS by, or with the intention of removing from the protection of the law for a prolonged period of time. "103 ~ f: I l 4'' 1 I I I lt JI ! I 1 Under S.l, freedom from fear is the right and any threat to the rights to life, liberty, or security is the actionable wrong. The right to security is the freedom from threat. It is a guarantee of bodily and psychological integrity or security. Threat and intimidation that vitiate the free will, although not involving invasion of bodily integrity nevertheless constitute a violation of the right to security. 104 Elements constituting enforced disappearance under R.A. No. 9851, the Philippine Act on Crimes against International Humanitarian Law, Genocide and Other Crimes against Humanity: (1) that there be an arrest, detention, abduction or any form of deprivation of liberty; (2) that it is carried out by or with the authorization, support or acquiescence of the State or a political organization; '.) 723 security on the other. The existence of a person's right to informational privacy and a showing, by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim. 105 The privilege of the writ of habeas data may be availed of in cases not involving extralegal killings and enforced disappearances. Likewise, it is not confined to individuals or entities engaged in the business of collecting or storing data. Whether the activity is carried with regularity, as when one pursues a business, or is in the nature of a personal endeavor, is immaterial and will not prevent the writ from issuing. 106 The right to informational privacy is the right of individuals to control infomiation about themselves. In the use of online social networks, the use of privacy tools/settings is the manifestation of the user's invocation of his right to informational privacy. A person ,1 1 i 103 Spouses Santiago v. Tulfo, G.R. No. 205039, 21 October 2015, 773 SCRA 558 citing Secretary of National Defense v. Manalo, G.R. No. 180906, 7 October 2008, 568SCRA 1. 1 D4secretary of National Defense v. Manalo, G.R. No. 1809o6, 7 October 2008, 568 SCRA 1. 105/d. 106/d. BAR NOTES IN REMEDIALLAW:SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWERFORJITIERY BAR TAKERS Volume IV 724 (3) that it be followed by the State or political organization's refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; ( 4) that the intention for such refusal is to remove the subject person from the protection of the law for a prolonged period of time.101 The writ of amparo is not for the protection of purely property or commercial concerns. 108 The privilege of the writ of amparo should be distinguished from the actual order called the writ of amparo. The privilege includes the availment of the entire procedure laid out in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. The judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or threat to the petitioner's life, liberty or security. 109 who places a photograph on the internet precisely intends to forsake and renounce all privacy rights particularly where he did not employ protective measures that would have controlled access to it.11° Who May File: Who May File: The aggrieved party OR any qualified person in the following order: An aggrieved party may (1) any member of the immediate family, namely: the spouse, children, and parents of the aggrieved party; The nexus between right to privacy on the one hand and the right to life, liberty or security on the other must be adequately alleged in the petition and proven by substantial evidence. Failure on either count is fatal. 111 (2) any ascendant, descendant or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity, in default of those mentioned in par. (l); The right to privacy is not absolute. It will yield to a compelling State interest, such as the government's initiative to dismantle private armed security groups or private armies, Hence, the publication of the list of those found to be maintaining private armies, based on investigations, is not violative of the right to privacy of those named in the list. 112 (3) any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggneved party. ~, ;;, tl :£i ~ v. Segui, G.R. No. 193652, 5 August 2014, 732 SCRA 86, citing Navia v. Pardico, G.R. No. 184467, 19 June 2012, 673 SCRA 618. 108Pador v; Arcayan, G.R. No. 183460, 12 March 2013, 693 SCRA 192. 109oeLima v. Gatdula, G.R. No. 204528, 19 February 2013, 691 SCRA 226. 110/d. 111Lee v. P/Supt. Ilagan, G.R. No. 203254, 8 October 2014, 738 SCRA59. 112Gamboa v. Chan, G.R. No. 193636, 24 July 2012, 677 SCRA 385. file. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (1) any member of the immediate family, namely: the spouse, children, and parents of the aggrieved party; (2) any ascendant, descendant or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity, in default of those mentioned in par. (1). (S.2) The filing of a petition by the aggrieved party suspends the right of alLauthorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order. established herein. (S.2) Where Filed and Returned: Where Filed and Returned: On any day and at any time with: (1) The RTC (a) where the (1) The RTC of the place where 107caram 725 the threat, act or omission was committed, or any of its elements occurred. Returnable before such court. (2) The SC or any justice thereof. Returnable before such petitioner or respondent resides, or (b) which has jurisdiction over the place where the data or information is gathe~ed, collected, or stored, at the petitioner's option. Returnable before such court. (2) The SC. Returnable before such Couri: or .any justice 726 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS THE PRE-WEEK REVIEWER FOR Jl'ITERY BAR TAKERS Volume rv Court or any justice thereof; or before the Sandiganbayan or the CA, or any justice thereof; or to any RTC of the place where the threat, act or omission was committed, or any of its elements occurred. (3) The CA or any justice thereof. Returnable before such Court or any justice thereof; or to any RTC of the place where the threat, act or omission was committed, or any of its elements occurred. (4) The Sandiganbayan or any justice thereof. Returnable before such Court or any justice thereof; or to any RTC of the place where the threat, act or omission was committed, or any of its elements occurred. The writ shall be enforceable anywhere in the Philippines. (S.3) uncertain, an assumed appellation; thereof; or before the Sandiganbayan or the CA, or any justice thereof; or to any RTC of the place where the petitioner or respondent resides, or has jurisdiction over the place where the data or information is gathered, collected or stored. (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (3) The CA. Returnable before such Court or any justice thereof; or to any RTC of the place where the petitioner or respondent resides, or has jurisdiction over the place where the data or information is gathered, collected or stored .. (4) The Sandiganbayan wl:jen the action concerns pubFc $ta files of government offices. Returnable before such Court or any justice thereof; or to any RTC of the place where the petitioner or respondent .resides, or has jurisdiction over the place where· the data or information is gathered, collected or stored. (S.3-4) (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; . (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (D The relief prayed for. No Docket Fees: No Docket Fees for Indigent: Exempt from docket and other lawful fees. (S.4) Indigent petitioner shall be exempt from docket and other lawful fees. (S.5) Contents of Petition: Contents of Petition: (a) Personal circumstances of petitioner; A verified written petition for a writ of habeas daJa should contain: (b) Name and personal circumstances of respondent responsible for the threat, act or omission, or if unknown or (a) The personal circumstances of the petitioner and the respondent; 727 (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; -(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control· of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and Such other relevant reliefs as are just and equitable. (S.6) (f) The petition may include a general prayer for other just and equitable reliefs. (S.5) Issuance of the Writ: Issuance of the Writ: Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be 728 1HE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS Volume IV necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. (S.6) served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. (S.7) Penalty for Refusing to Issue or Serve Writ: Penalty for Refusing to Issue or Serve Writ: A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. (S.7) A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same; shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. (S.8) How Writ Served: How Writ Served: The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. (S.8) The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. (S.9) 729 Return: Return: Within seventy-two (72) hours after service 'of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: a. b. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and d. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: i. to verify the identity of the aggrieved party; ii. to recover and preserve evidence related to the death or disappearance (a) The lawful defenses such as national security, state_secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, 730 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 731 Volume IV of the person identified in the petition which may aid in the prosecutiem of the person or persons responsible; (c) Other allegations relevant to the resolution of the proceeding. invokes the defense that the -release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. (S.12) A general denial of the allegations in the petition shall not be allowed. (S.10) iii. to identify witnesses and obtain statements from them concerning the death or disappearance; iv. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; V. to identify and apprehend the person or persons involved in the death or disappearance; and vi. to bring the suspected offenders before a competent court. Prohibited Pleadings and Motions: Prohibited Pleadings and Motions: The following pleadings and motions are prohibited: The following pleadings and motions are prohibited: a. Motion to dismiss; a. Motion to dismiss; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; C. Dilatory motion for postponement; c. Dilatory motion for postponement; d. Motion for a bill of particulars; d. Motion for a bill of particulars; e. Counterclaim or cross-claim; e. Counterclaim or cross-claim; f. Third-party complaint; f. Third-party complaint; g. Reply; g. Reply; The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. h. Motion to declare respondent in default; h. Motion to declare respondent in default; i. Intervention; i. lnterventiori; A general denial of the allegations in the petition shall not be allowed. (S.9) j. Memorandum; j. Memorandum; k. Motion for reconsideration of interlocutory orders or interim relief orders; and k. Motion for reconsideration of interlocutory orders or interim relief orders; and l. Petition for certiorari, mandamus or prohibition against any interlocutory order. (S.11) L Petition for certiorari, mandamus or prohibition against any interlocutory order. (S.13) Defenses Not Pleaded. Waived: All defenses shall be raised in the return, .otherwise, they shall be deemed waived. (S.10) When Defenses May be Heard in Chambers: A hearing in chambers may be conducted where the respondent 732 THE PRE-WEEK REV1EWER FOR JITTERY BAR TAKERS Volume IV Effect of Failure to File Return: Effect of Failure to File Return: In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. (S.12) In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. (S.14) Summary Hearing: Summary Hearing: The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. (S.15) The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. (S.13) Interim Reliefs: Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant any of the following reliefs: (a) T-emporary Protection Order. - The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. - .The coqrt, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced 733 734 THE PRE-WEEK REVIEWER FOR JI1TERY BAR TAKERS Volume IV BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS disappearance or whereabouts of the aggrieved party. inspection, copying or photographing by or on behalf of the movant. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right ofthe aggrieved party alleged to be threatened or violated. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their 735 i I i ' J it IJ Il J if rt 11 (d) Witness Protection Order. - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to R.A. No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. (S.14) Availability of Interim Reliefs to Respondent: Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. - 736 TIIE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS BAR NOTES IN REMEDIAL LAW: SPECLA.LPROCEEDINGS 737 Volume IV A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. (S.15) The .respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (S.17) Contempt: Contempt: The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. (S.16) The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. (S.11) Burden of Proof and Standard of Diligence: The parties shall establish their daims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as re.quired by applicable laws, rules and regulations was observed in the performance of duty. Judgment: Judgment: The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (S.18) The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. (S.16) 't ii•·· 1.··1 ' 1- :1 3 j 'fi ~ I ii 1.. . Return of Service: The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles. inspected, updated, 738 BAR NOTES IN REMEDIAL LAW: SPECIAL PROCEEDINGS 739 THE PRE-\X''EEK REv1E\X"ER FOR JITTERY BAR TAKERS Volume [V rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. (S.17) Hearing on Officer's Return: The court shall set the return for hearing with due notice to the parties and act accordingly. (S.18) Appeal: Appeal: Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus cases. (S.19) The appeal shall be given the same priority as in habeas corpus and amparo cases. (S.19) Archiving and Revival of Cases: The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. (S.20) Institution c:>fSeparate Action: Institution of Separate Action: This Rule shall not preclude the filing of separate criminal, civil or administrative actions. (S.21) The filing of a petitionfor the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. (S.20) ,· Effect of Filing of Criminal Action: Effect of Filing of Criminal Action: When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. (S.22) The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. (.23) 740 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Consolidation: Consolidation: When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. (S.23) After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. (S.21) Substantive Rigl,.ts: Substantive Rights: This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. (S.24) This Rule shall not diminish, increase or modify substantive rights. (S.23) Ii Ii ; i !I i I Suppletory Application of Rules of Court: The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. (S.25) The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. (S.24) 1989 RULES OF EVIDENCE 11. Ir A.M. 19-08-15-SC 2019 AMENDMENTS TO TIIE RULES ON EVIDENCE NOTES RULE 128 I GENERALPROVISIONS {. f I i I. II l l Ir i Suppletory Application of Rules of Court: COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE !j f~ /jj I ~~ ~ ~; Section 2. Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except ast>therwise provided by law or these rules. (2a) Section 2. Scope. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (2) disciplinary m ~ proc~gs against lawyers and judges and court personnel are also not strictly boundbythe technical rules of .P_rocedure.3 I I!J I , ~,'. ... II I \if The National Labor Relations Commission is not bound by the .technical rules on evidence which bind regular courts~ 2 Administrative 1 Atienza v. Board of Medicine, G.R. No. 177407, 9 February 2011. 2wallem Maritime Services, Inc. v. Pedrajas, G.R. No. 192993, 11 August 2014. 3Complaint against Otelia Lyn Maceda, A.M. No. P-12-3093, March 26, 2014. 741 742 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS CO\-!PARAT!VE MATRIX OF 1989 RULES OF EVIDENCE AN[) 2019 AMEND~1ENTS TO THE RULES ON EVIDENCE Volume-rv shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. ( 4a) shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. ( 4) RULE 129 WHAT NEED NOT BE PROVED Section 4. Relevancy, collateral matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistenc~. Evidence on collateral matters Section 4. Relevancy, collateral matters. Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Evidence on collateral matters Relevant evidence is any class of evidence which has rational probative value to the issue in controversy. 5 4 Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. 5 0CA v. Lerma, A.M. No. RTJ-07-2076 to 2080, 12 October 2010. 743 744 COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 A.c\1ENDMENTST-0 THE RULES ON EVIDENCE THE PRE-\X'EEK REVIEWER FOR JITTERY BAR TAKERS Volume IV Section 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their· judicial functions: (la) Section 2. Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (2) 745 "Capable of unquestionable demonstration" means notorious, of common or general knowledge, well-settled, and not doubtful or uncertain. 6 No hearing is required for this type of discretionary judicial notice. Section 4.Judicial admissions. - An admission, verbal or written, made by the party in the course of the proceedings in Mere changes in Section 4. Judicial phraseology. admissions. - An admission, oral or Judicial acfmissions written, made by the are conclusive on party in the course of the party making the proceedings in them and require no further proof. 10 7Degayo 8 v. Magbanua-Dinglasan, G.R. No. 173148, 6 April 2015 .. Land Bank of the Philippines v. Yatco Agricultural, G.R. No. 172551, 15 January 2014. 9Land Bank of the Philippines v. Honeycomb Farms, G.R. No. 166259, 12 November 2012. 1°Eastern 6spouses Latip v. Chua, G.R. No. 177809, 16 October 2009. January 2015. Shipping Lines v. BPI/MS Insurance Corporation, G.R. No. 162864, 12 746 COMPARATIVE M.ATRlX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not in fact._made. (4a) evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n) RULE 130 RULES ON ADMISSIBILITY i!i Section 1. Object as evidence. O:bjects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (la) Section 1. Object as evidence. - Objects as evidence are those addressed to the senses of the court. When an object is relevant to the·fact in issue, it may be exhibited to, examined or viewed by the court. (1) Physical evidence enjoys primacy over testimonial evidence because of element of trustworthiness. 11 Physical appearance to determine age is admissible object evidence, not a matter of judicial notice but of the court's observation. 12 i•f II evidence consist of writing, recordings 1.2hotographs or any material containing letters, words sounds numbers, figures, symbols, or their eguivalent, or other modes of written expression offered as proof of their contents. Photographs include still pictures drawings stored images x-ray films, motion pictures or videos. (2a2 I . . . to embrace in the broadest possible terms every memorial that preserves written and spoken language, including recorded sounds and videos. 13 made the definition comprehensive to include electronic documents consistent with R.3, S.1 of the REE.14 inclusion of "photographs incl,ude still pictures; stored images, x-ray films, videotapes, andmotion pictures" should be construed as merely exemplary, and NOT exclusive.1 5 I RULE 130 RULES ON ADMISSIBILITY Section 2. Documentary evidence. Documents as Section 2. Documentary evidence. Documents as nocampo v. People, G.R. No. 194129, 15 June 2015. 12 People v. Rul!epa, G.R. No. 131516, 5 March 2003. Expanded definition of documentary evidence: 13Explanatory ( 747 ' Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. 14The Rules on Electronic Evidence, Rule 3, Section 1: Whenever a rule of evidence refers to writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document. 15Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. ,, 'f :~r 748 'IHE PRE-WEEK REVIEWER FORJITTERY BAR TAKERS Volume N COMPARATNE W.ATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE 749 Photographs as documentary evidence use of photographs as documentary evidence allowed by Supreme Court if relevant to the issue and verified, which need not be by the photographer himself; it can be made by any other competent witness who can testify as to its exactness and accuracy. 16 1 \ ; 1 . . ,I} cl\ Section 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 1 16 Sison v. People, G.R. Nos. 108280-83, 16 November 1995; College Assurance Plan v. Belfrant Development, G.R. No. 155604, 22 November 2007; People v. Zeta, G.R. No. 178541, 27 May 2008. 17 Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. (a) When the original lli lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 'fhe BER prohibits the introduction of secondary or substitutionary evidence, i.e., evidence other than the original of the doCUillent in issue except under the listed exceptions, to which were added two more: "the original cannot be obtained by judicial process or procedure" 19 and "when the original is not closely-related to a controlling issue." 8scunac Corporation v. Sylianteng, G.R. No. 205879, 23 April 2014. 9Philippine National Bank v. Olalia, G.R. No. L-8189, 23 March 1956; 98 Phil. 1002, unreported: when the original is outside the jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible. See also <::haltered Bank of India, Australia & China v. Tuliarmo, 51 O.G. 5211. 1 I Section 3. Original document must be produced; exceptions. -When the subject of inquiry is the contents of a document, writing recording 12hotogra12hor other record no evidence lli admissible other · than the original document itself, except in the following cases: 750 COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE A..1\/D2019 AMENDMENTS TO THE RULES ON EVIDENCE THE PRE-WEEK REVIEWER FORJ!TrERY BAR TAKERS Vo!umeN (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought t-0 be established from them is only the· general result of the whole; and (d) When the original is a public record •inthe custody of a public officer or is recorded in a public office. (2a) (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice, or .the original cannot be obtained bi judicial 12rocesses or 12rocedure; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them js only the general result of the whole; and 751 The latter is known in the US as an exception for "collateral matter," intended to prevent an overly rigid or technical application of the Original Document Rule. It allows for trial efficiency where the original is so tangential that its production would add little or nothing' to the reliability of the fact-finding process. 20 (d) When the original is a public record in the custody of a public officer or is recorded in a public office; and (e) When the original is not closeli-related to controlling issue. (3a) 21Explanatory 20 Mueller & Kirkpatrick, Modem Evidence, Sec. 10.2 (19951 cited in the Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. Ii;'! I Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. electronic document shall be regarded as the equivalent of rn original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. 22An 752 THE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS Volume IV COMPARATIVEMATRIXOF 1989 RULES OF EVIDENCE A.ND 2019 AMENDMENTSTO THE RULESON EVIDENCE 753 il' ii ll :,_:i( ·"' ~ Section 6. When Section 6. When original document original document is in adverse party's is in adverse party's custody or control. custody or control. - If the document - If the document is in the custody or is in the custody or under the control under the control of adverse party, he of adverse party, he must have reasonable or she must have reasonable notice to notice to produce it. produce it. If after If after such notice such notice and after and after satisfactory proof ohts existence, satisfactory proof of its existence, he or he fails to produce she fails to produce the document; secondary evidence. the document, may be presented as secondary evidence in the case of its loss. may be presented as (Sa) in the case of its loss. (Sa) Prove: (1) existence of the document; (2) possession and/or control of adverse party; (3) reasonable notice to adverse party to produce; (4) unjustified failure to produce by adverse party. 28 23 Capital Shoes Factory, Ltd. v. Traveller Kids, Inc., G.R. No. 200065, 24 September 2014 2 "Scunac Corporation v. Sylianteng, supraat Note 18. 5Torres v. PAGCOR, G.R. No. 193531, 6 Dec-ember 2011. 2 "Valencerina v. People, G.R. No. 206162, 10 December 2014. 27Country 2 28Edsa 2008. Bankers Insurance v. Lagman, G.R. No. 165487, 13 July 2011. Shangri-la Hotel v. BF Corporation, G.R. No. 145842 and 145873, 27 June 754 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO IBE RULES ON EVIDENCE 755 When no objection is made against a photocopy of a birth .certificate when it is presented, the same is waived and the photocopy is admissible. 31 Section 7. Evidence admissibk when original document is a ptf,blic record. - When die original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a) 29Compafia Section 8- Evidence admissible when original document is a public record. When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (7) Certified xerox copies of Marriage Contracts from the Office of the Civil Registrar General/National Statistics Office [now, Philippine Statistics Authority] are admissible secondary evidence. 30 Maritima v. Allied Free Workers' Union, 167 Phil. 381. v. Cetera, A.C. No. 5581, 14 January 2014. 30Bunagan-Bansig 31 People v. Villanueva, G.R. No. 169643, 13 April 2007. Paras v. Kimwa Construction, G.R. No. 171601, 8 April 2015. 32Spouses COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 756 Volume IV Section 11. Instrument construed so as to give effect to all provisions. - In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (9) 34Catungal 33Heirs 2011. of Ureta, Sr. v. Heirs of Ureta, G.R. Nos. 165748 and 165930, 14 September I Article 1374 of the Civil Code of the Philippines provides: The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones the sense which may result from all of them taken jointly. 34 v. Rodriguez, G.R. No. 146839, 23 March 2011. 1371, Civil Code of the Philippines; Canedo v. Kampilan Security and Detective Agency, G.R. No. 179326, 21 July 2013. 35Article j; Section 12. Instrument construed so as to give effect to all provisions. In the construction of an instrument, where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (11) 757 THE PRE-WEEK REVIEWER FORJITIERY BAR TAKERS 758 COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE VolumeN Section 13. Interpretation according to circumstances. - For the proper construction of. an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position ofthose who language he is to interpret. (11) Section 14. Interpretation according to circumstances. - For the proper construction· of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those who language he Q£ she is to interpret. Detenrunes the context in which the contract was made to ascertain the parties true intention. 36 Section 15. Written Section 16. Written · words control words control printed. - When an printed. - When an instrument consists instrument consists partly of _written partly of written words and partly of a words and partly of a printed form, and the printed form, and the two are inconsistent, two are inconsistent, the former controls the former controls the latter. 03) the latter. (15) (13) ~PIC 759 Corporation v. TSPIC Employees Union, G.R. No. 163419, 13 February 2008. 37De A handwritten insertion of the word "guarantor" in a typewritten promissory note prevails over the printed designation of a signatory as a mere witness because the handwritten designation is a later expression of the parties' will and intent. 37 los Santos v. Vibar, G.R. No. 150931, 16 July 2008. ' i .?,,~ 760 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 A..MENDMENTS TO THE RULES ON EVIDENCE otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (15) otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. (17a) Section 19. Interpretatio,n according to. usage. - An instrument may be construed according to usage, in ordeuo determine its true character. (17) Section 20. Interpretation according to usage. - An instrument may be construed according to usage, in order to determine its true character. (19) i I/ Section 17. Oftwo Section 18..Of two constructions, which constructio"'s, which preferred. preferred. - When - When the terms of the terms of an an agreement have agreement have been intended in a been intended in a different sense by different sense by the different parties the different partie$ to it, that sense is to it, that sense is to to prevail against prevail against either either party in which party in which he he supposed the or she supposed the other understood it, other understood it, and when different and when different constructions of a constructions of a provision are provision are An obscurity in a contract shall be interpreted against the drafter and between 2 constructions, that which is beneficial to the party in whose favor the provision was included shall prevail. 39 ! ; C. TESTIMONiALEVIDENCE 1._Qualification of Witnesses 38Heirs 39 RULE 130 RULES ON ADMISSIBILITY of Doronio v. Heirs of Doronio, G.R No. 169454, 27 December 2007. Horrigan v. Troika Commercial, Inc., G.R. No. 148411, 29 November 2005. l,W .ll 761 762 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN COMPARATNE MATRIXOF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULESON EVIDENCE respecting which they are examined and of relating them truthfully. (19a) Second testimonial qualification: personal knowledge i I Section 21. Disqualification by reason ofmental incapacity or immaturity. - The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts [Section 21. In line with the Disqualification by reason of mental incapacity or immaturity. - international trend, the presumption is that every child is qualified to be a witness. 40 (Deleted)] A deaf-mute is qualified to be a witness as long as he (1) understands the oath; (2) comprehends the facts testified on; (3) is able to communicate his ideas through a qualified interpreter. 41 !: Mental retardation does not affect credibility and does not make the person incompetent to ~u!e on Examination of a Child Witness, A.M. No. 004-07-SC, 15 December 2000; People v. Esugon, G.R. No. 195244, 22June 2015. 41 People v. Aleman, G.R. No. 181539, 24 July 2013. 42 ,,,-. II& ; I:; ~ testify as long as he can perceive, and make known his perceptions to others. 42 _.- People v, Obogne, G.R. No. 199740, 24 March 2014. 763 764 THE PRE-WEEK REVIEWER FORJITfERY BAR TAKERS COMPAR.J\TIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE Volume IV knew the wife was residing at that house. 44 Section 23Disquali.fication by by reason of reason of marriage. marriage. - During - During their their marriage, marriage, the neither the husband husband or the wife nor the wife may cannot testify for testify for or against or against the other the other without . without the consent the consent of the of the affected affected spouse, spouse, except in except in a civil a civil case by one case by one against against the other, or the other, or in a . in a criminal case for criminal case ·fo_r a crime committed crime committed by one against the by one against the · other or the latter's other or the latter's direct descendants or direct descehdarits or ascendants. (2Oa) ascehdant,s. {20a) Section 22. ms qualification a "'/':~~-/;- 'r~t,r The Marital Disqualification Rule is anchored on the identity of interests of the spouses and the goal of preserving domestic tranquility. Hence, if the marital relations are already so strained, there is no more identity of interests or harmony to preserve. In a case for arson where the husband is the accused and the offended party is his wife's sister, because it is the latter's house he attempted to burn, the wife may testify for the prosecution because the offense is a direct attack against the conjugal relation because the husband 43 People v. Estibal, G.R. No. 208749, 26 November 2014; Pattlla v. People, G.R. No. 164457, 11 April 2012. 44 Alvarez v. Ramirez, G.R. No. 143439, 14 October 2005. 765 766 COMPARATIVE MATRIX OF 1989 RULES OF E\11DENCE AND 2019 AMENDMENTS TO IBE RULES ON EVIDENCE THE PRE-WEEK REVIEV.'ER FOR JITTERY BAR TAKERS VolumeN Attorney-Client Section 24. Privilege Disqualification by reason of privileged The co.,rnmunication. privilege ___:_: The following now persons cannot testify admits of as to matters learned exceptions: in confidence in the (a) Crime or fraud following cases: ("future crimefraud exception"): (a) The husband or (a) The husband or The rationale the wife, during or the wife, during or for this after the marriage, after the marriage,_ exception cannot be examined cannot be examined is obvious: without the consent without the consent aclieµt of the other as to of the other as to should not any communication any communication be allowed to received in received in use a lawyer's confidence by one confidence by one services from the other during from the other during the marriage except for ill,~al the marriage except puryoses. in a civil case by one in a civil case by one against the other, or against the other, or (b) Claimants in a cnminal case for in a criminal case for through a deceased a crime committed a crime committed client: ' by one against the by one a~inst the While the other or the latter's other or the latter's · atiol"°:ey-client direct descendants or direct descendants or privil~e ascendants. ascendants; survives the (b) An attorney or Cb) An attorney deathofthe a i;2erson reasonably cannot, without the client, there is believed to by consent of his client, no privilege in the client to be be examined as to a will contest licensed to engage any communication or other case in the i;2racticeof law made by the client between parties cannot, without the to him, or his advice who both claim consent of theclient, given thereon in the through that be examined as to course of, or with a very client. any communication view to, professional This is because made by the client employment, nor his comm.uni- Section 24. Disqualification by reason of privikged communication. -: The following persons cannot testify as to matters learned in confidence in the following cases: can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; . / \f 'Ii :1; to him or her, or his or her advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk, or other i;2ersons assisting the attorney be examined, without the consent of the client and his or her employer; concerning any fact the knowledge ofwhich has been acquired in such capacity, excei;2t in the following cases: (i) Furthera nee of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit or i;2lanto commit what the client knew or reasonably should have known to be a crime or fraud· 767 cations may be essential to an accurate resolution of competing claims of succession, and the testator would presumably favor disclosure in order to dispose of his estate accordingly. 45 (c) Breach of duty by lawyer or client ("self-defense exception"): For instances when the lawyer and client themselves engage in a suit against each other in regard to the legal services renderedbythe lawyer for the client, either the lawyer or the client may testify as to communications between them. 45Mueller & Kirkpatrick, Modern Evidence, Sec. 5.24 [1995], cited in Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. ~\ if ,)1 768 TI!E PRE-WEEK REVIEWERFORJITfERY BAR TAKERS Volume IV " (ii) Claimants through same deceased client. As to a communication relevant to an issue between garties who claim through the same deceased dient regardless of whether the claims are by testate or intestate or by inter vivos transaction· (iii) Breach o{dut')!_,k'J!.. laY!J!_er or client. As to communication relevant to an issue of breach of duty by the layer to his or her client or by the client to his or her lamer· (iv) Document attested bl! the laYJY.er.- As to a communication relevant to an issue concerning an attested document to 46 .,, COMPARATIVEMATRIXOF 1989 RULESOF EVIDENCE AND 2019 AMENDMENTSTO THE RULESON EVIDENCE (d) Lawyer as attesting witness: This should not really be an exception because the privilege never arises, as a lawyer who acts as an attesting witness is not providing professional legal services. When an attorney serves as an attesting witness, he is not acting as a lawyer and the client's obvious intent is to have him available to testify to the matter attested. 46 (e) Joint clients: The nature of the engagement as "joint clients" implies a waiver of the confidentiality Mueller & Kirkpatrick, Modem Evidence, Secs. 5.25 (1995]; Lempert, R. & Saltzburg, S., A Modem Approach to Evidence, 3rd ed., pp. 269-370 (1982], cited in Explanatmy Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. which the la~er is an attesting witness· or (v) Taint clients. As to a communication relevant to a matter of common interest between two or more client if the communication was made bv any of them to a la~er• retained or consulted in common when offered in an action between any of the clients unless they have exgressly agreed otherwise. (c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined· as to any advice or treatment given by him or any information which he may have acquired (c) A ghysician, psychotherai;2ist or persons reasonably believed by the patient to be authorized to practice medicine or psychotherapy cannot in a civil case without the consent of the gatient be examined as to · 769 rule as communications are normally made with both clients' knowledge or in each other's presence. Psychotherapist Patient Privilege: The inclusion of "psychotherapist" in the Physician-Patient Privilege acknowledges the special need to maintain confidentiality in matters concerning mental health. Confidentiality is a condition sine qua non for a successful psychiatric treatment. 47 The requirement under the old rule that the information must tend to blacken the 47 Lempert, R. & Saltzburg, S., A Modem Approach to Evidence, 2nd ed., pp. 712-713 (1982], citing Report No. 45, Group for the Advancement of Psychiatry 92 [1960], as cited in the Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. 770 THE PRE-WEEK REVIEWER FORJ[TfERY COMPARATIVE MATRIX OF 1989 RULES.OF EVIDENCE AND 2019 AMENDMENTS TO IBE RULES ON EVIDENCE BAR TAKERS Volume IV in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; any confidential reputation of communication made the patient has for the gumose been removed. of diagnosis or Priest - Penitent treatment of the Privilege: gatient's ghysical The new mental or emotional provision condition including expanded the alcohol or drug coverage of addiction between this privilege the Qatient and his by extending or. her Qhysician or itto any gsychotheraQist. This confidential grivilege also ai;iQlies communication to persons including by a person to members of the a minister or ·Qatient's family who priest in his have garticigated professional in the diagnosis character as or treatment of a spiritual the Qatient under advisor. 48 the direction of the Qhysician or Executive Privilege QSychoi:heragist. The elements of A "12sychotheragist" the Presidential is: Communication Privilege i. A person are: (1) it licensed to must involve a practice medicine quintessential engaged in non-delegable the diagnosis presidential or treatment power; (2) it is of a mental authored, solicor emotional itedand condition, or ii. H Explanatory Notes, 2019 Proposed Amendments to the Revised Rules on Evidence. [d) A minister Qriest (d) A minister or Qerson believed to or priest cannot, be so cannot without without the consent of the person making the consent of the affected Qerson be the confession, be examined as to any examined as to any communication or confession made confession made to or any advice to or any advice. given by him in his professional character given by him or her in his professional in the course of character · in the discipline enjoined course of disciQline by the church to which the minister or enjoined by the church to which the priest belongs; minister or griest belongs· (e) A public officer cannot be· examined duri.n:g'his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a) 48 f;: ll'j l ~i A person licensed· as a psychologist by the government while similarly engaged. 49Neri 771 received by the president or a close advisor, who is in such operational proximity that he can direct presidential decisionma.king;(3) the qualified privilege may be overcome by a showing of adequate need and that the information is not available elsewhere. 49 (e) A public officer cannot be examined during or after his or her tenure or afterwards, as to communications made to him or her in official confidence, when the court finds that the public interest would suffer by the disclosure. v. Senate Committee, G.R. No. 180643, 25 March 2008. 772 COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 773 As this is a mere privilege, it may be waived. 52 The communication shall remain 12rivileged even in the::!:Iands of a thircf12erson who mai have obtained the information provided that the original parties to the communication took reasonable precaution to protect its confidentiality. (24a) 2. Testimonial Privilege Section 25. Parental and.filial privikge. - No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. (20a) Section 25. Parental Incorporates and filial privilege: Article 315 of the _Noperson shall be Family Code of the compelled to testify Philippines which against his or her provides that parents, other direct "[n]o descendant . ascendants, children can be compelled, or other direct in a criminal case, descendants, except to testify against when such t_estimoni his parents and is indispensable in · ascendants. "50 a crime against that A stepmother may person or bi one testify against her parent against the stepchild because other. (25a) they are not related in the direct line. 51 52People v. lnvencion, G.R. No. 131636, 5 March 2003. Philippines Corporation v. Pennswell, Inc., G.R. No. 172835, 13 December 2007. sosupra. 53Air 51 54Jd. Lee v. Court of Appeals, G.R. No. 177861, 13 July 2010. rl 774 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS VolumeN Section 27. Offer of compromise not admissible. - In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those _involving quasioffenses (criminal · negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of gu_ilty; to lesser offeI).Se,.is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in . Section 28. Offer of compromise not admissible. - In civil case;.~an offer of compromise is not an admission of any Hability, and is not admissible in evidence against the offerer. Neither is evidence of conduct· nor statements .made in compromise negotiations admissible except evidence otherwise discoverable· oi: offered for· another putpose . such as proving bias or prejudice of a witness negativing a contention of undue delay or proving .an effort to obstruct a criminal investigation or prosecution; Offer of Compromise In criminal cases, except those involving quasi~ offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. If a party denies the existence of a debt but offers to pay the same for the purpose of buying peace and avoiding litigation, the offer of settlement is inadmissible. If in the course thereof, the party making the offer admits a. Civil Cases . . COMPARATNE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE ;i- f evidence as proof of civil or criminal liability for t_heinjury. (24a) INADMISSIBLEas admission ofanyliability. ADMISSIBLEfor other purposes (e.g., to prove bias of a witness, to negateundue delay, to prove obstruction of criminal investigation/prosecution) A plea of guilty later withdrawn, or an unaccepted _offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or. offer. Neither is any statement made in the course of plea bargaining with the prosecution which does not result in a pleas of gyili;y or which results in a plea of gyili;y later ·withdrawn admissible. the existence of an indebte<lness combined with a proposal to settle the claim amicably, then, the admission is admissible to prove such indebtedness. 55 b. Criminal Cases EXCEPf quasioffenses and those allowed to be compromised: An offer to pay . . or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (27a) Rule is NOT absolute: 5Tanv. Rodi! Enterprises, G.R. No. i-68071, 18 December 5 775 2006. ADMISSIBLE asan implied admission ofguilt. INADMISSIBLE if plea of guilt withdrawn; if offer of plea of guilt to lesser offense is not accepted; if statementmade during plea bargain and nopleaof guilt results or plea is later withdrawn. 776 THE PRE-WEEK REV1EWER FOR JITTERY BAR TAKERS ·COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE Volume IV person jointly interesl:ed with the party. (29a) Section 29. Admission"by co-part'flifr or agenL -'-. The act or declaration of a partner or .agent of the party within the scope of his authority and during the existence of the partnership or agency, maybe given in evidence against such party after the partnership or agency is shown by evidericlbther than such~~ or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a) Section 3Q. Mere clarificatory Admission by coinsertions. partner or agent. -.The act or declaration of a partner or agent authorized by the party to make a statement concerning the subject or within · the scope of his or her authority, and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other 56salapuddin v. Court of Appeals, G.R. No. l84fsJSl, 25 February 2013. Section 31. Admission by privies. - Where one derives title to property from another, the act, declaration, or omission··of the latter, while holding the title, in relation to the property, is evidence against the former. (28) Mere clarificatory Section~insertions. Admission by privies. -'- Where one derives title to property from another, the latter's act, declaration, .or omission of the latter, while holding the title, in relation to the property, is evidence against the former if done while the latter was holding title. (31a) I s1supra. 777 778 COMPARATIVE. MATRIX OF 1989 RULES OF EVIDENCE A."ID 2019 AMENDMENTS TO THE RULES ON EVIDENCE THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV 779 knowingly confess himself to be the perpetrator of a crime, unless prompted by truth and conscience. 60 Section 34. Similar as evidence. - Evidence that one did or did not do a certain thing at one time is 11otadmissible to prove that he did or did not do the same or similar thing at another time; but itmay be received to prove a specific iQtent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like: (48a) acts Section 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be giveriin evidence against him. (29a) 58 Section 31,. Confession. The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily i.ncluded therein, may be given in evidence against him or her. (33a) A confession, as distinguished from an admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. 59 It is supported by the strong presumption that no sane person or one of normal mind will deliberately and Office of the Court Administrator v. Amor, G.R No. RTJ-08-2140, 7 October 2014. People v. Satorre, G.R. No. 133858, 12 August 2003. 59 Section 35,. Similar acts as evidence. - Evidence that one did or did not do a certain ·thing at one time is not admissible to prove that he or she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, pfari, system, scheme, habit, custom or usage, and the like. (34a) General Rule: Inadmissible because if evidence of similar acts is to be invariably admitted, they will give rise to a multiplicity of collateral issues an.d will subject the defendant to surprise as well as confuse the court and prolong trial 61 Exception: When evidence of similar acts become relevant "especially in actions based on fraud or deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it 6<lpeople v. Lara, 334 Phil. 779, 796 (1997). 61Metrobank v. Custodio, G.R. No. 173780, 21 March 2011. rt~ r-': THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS 780 Volume IV COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE f' uncovers a scheme, design or plan, or it reveals a t. T ;i 62 Jd., citing Tanzo v. Drilori., G.R. No. 106671, 30 March 2000. I I 781 782 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE Volume IV Section 32. Statement o{.decedent or {2.ersono{.unsound mind. - In an action against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or dema:nd against the estates of such deceased person or against such person of unsound mind, where a 12ar:D:1: or assignor of a 12ar:D:1: or a 12erson whose behalf a case is 12rosecuted testifies on a matter of fact occurring before the death of the deceased person or before the person became of unsound mind, any statement of the deceased or the nerson of unsound mind, may be received in evidence if the statement was made UQOnthe nersonal knowledge of the deceased or the nerson of unsound i ·11 I>' [% 1f, I: ~ ~ ~ i . ' The amendment has done away with what is known as the Dead Man's Statute, which precluded a party from testifying about any transaction with a deceased person because of the perceived disadvantage since the dead can no longer contradict such testimony. 64 With the amendment, the statements attributed to a deceased person maynowbe admitted.in evidence. 63 Peopie v. Quisayas, G.R. No. 198022, 7 April 2014. 64 Garcia v. Vda. deCaparas, 783 G.R. No. 180843, 17 April 2013. 784 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS Volume IV COMPARATIVE MATRIX OF 1989 RULES OF Ev1DENCE AND 2019 A-r.IENDMENTS TO THE RULES ON EVIDENCE r mind at a time when the matter had been recently perceived bv him or her and while his or her recollection was clear. Such statement however is inadmissible if made under circumstances indicating its lack of I~~ ~ i lzi_: t? if i~- i~ '.~: t t I ',t: 65 Lazaro v. Agustin, G.R. No. 152364, 15 April 2010. l •; ~? Section 39. Act or Section 41. Act or declaration about declaration about pedigree. -The,~ct pedigree. - The act or declaration· of a or declaration of a perso11 dec~ased, person deceased, or unable to testify, or unable to testify, in respect to the in r<::spectto the pedigtye of another pedigree of another persori related to him person related to by birth~or marriage, him or her. by birth, may be received in adoption, or marriage evidence where it or in the absence occurred before the thereof with whose controversy, and the family he or she relationship between was.:so intimately the.two persons is . associated as· to shown by evi~ence be likeiy to have other than such act accurite.information or dedariltio~. The ·· . conle'r'n~g b.Is or word "pedigree":_ her pedigree may includes relationship, be receiveff in family genealogy, _evidence where it birth, nl'arriage, occurred before the death, 'the· dates controversy, and the when and the places relationship between where these fast the two persons is occurr,ed, and the shown by evidence names of the other than such act Elements: a) the actor or declarant is dead or unable to testify; b) the actor declaration is made by a person related to_the subject by birth, marriage, or adoption.or with whose family he was so intimately associate.g; c) the relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration; and 785 786 THE PRE-WEEK REVIEWER FOR JITTERY BAR TAKERS COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE Volume IV relatives. It embraces also facts of family history intimately connected with pedigree. (33a) or declaration. The word "pedigree" includes relationship, ;J~mily genealogy, !~rth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (39a) d) the actor declaration was made ante litem motam, or prior to the controversy. 66 ' 66Nepomuceno v. Lopez, G.R. No. 181258, 19 March 2010. If i lf Ji Section 41. Common reputation. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty .years old, or respecting marriage· or moral character,_may be given in ev1dence. Monuments and inscriptions in public places may be received as evidence ·of common reputation; (35) Section ~- Common reputation. Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in p

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