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The Pre Week Reviewer for Jittery Bar Takers Volume IV Remedial

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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.
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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
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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
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AND THE 2019 AMENDMENTS TO THE 1997 RULES OF CIVIL PROCEDURE
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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
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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
.·
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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
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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
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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
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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
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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
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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;
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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
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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
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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
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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
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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
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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
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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)
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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
'
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COMPARATIVE MATRIX OF THE 1997 RULES OF CIVIL PROCEDURE
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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
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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
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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,
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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)
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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
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THE PRE-WEEK REVIEWER FORJfITERY
COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE
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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
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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
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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.
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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
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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
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64
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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 ac-
tion 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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
com-
plaint
.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.
'
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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
respon-
ding 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
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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.
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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
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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
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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
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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.
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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)
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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
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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
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(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
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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
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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.
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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,
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BAR TAKERS
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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
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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
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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
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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
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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
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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
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[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
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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
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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
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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
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TIIE PRE-WEEK REVIEWER FORJITI'ERY BAR TAKERS
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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,
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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
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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
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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,
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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
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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.
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(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
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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
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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
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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
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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.
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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
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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
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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
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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
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TI-IE PRE-WEEK REVIEWER FORJ!TrERY BAR TAKERS
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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)
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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BAR TAKERS
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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,
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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
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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
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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
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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.
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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)
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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COMPARATIVE MATRIX OF THE 1997 RULES OF CML PROCEDURE
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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
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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
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Volume IV
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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
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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
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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
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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
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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 simplifica-
tion 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
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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
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228
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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
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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
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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
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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 state-
ment of
their willingness to
enter
244
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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
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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
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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
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COMPARAITvE MATRIXOF THE 1997 RULESOF CML PROCEDURE
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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V.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)
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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
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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
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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)
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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)
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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\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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Volume IV
Notarial Powers
I Certifying the
affixing of a
signature by
thumb or other
mark
(1)
acknowledg-
ments;
(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;
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(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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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:
..
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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
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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
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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.
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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
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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
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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;
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(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.
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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.
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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
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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.
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(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
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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.
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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
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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\
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PRIMER IN LEGAL AND JUDICIAL ETIIICS
TIIE PRE-WEEK REVIEWERFOR JITTERY BAR TAKERS
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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.
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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
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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
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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
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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
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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
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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
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Volume IV
4) If re-
spondent
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.
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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
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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
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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
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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
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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
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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
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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
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!
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*
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(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
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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
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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
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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
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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.
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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
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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)
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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
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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
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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~.
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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
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(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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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(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
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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.
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BAR NOTES IN REMEDIAL LAW:
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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
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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
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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
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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
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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_
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t
If
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f
I
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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
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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
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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
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(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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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:
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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
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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
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(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
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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
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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
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(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
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(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.
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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.
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(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.
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(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
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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)
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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
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(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.
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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)
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(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
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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
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(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)
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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
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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
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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,
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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
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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:
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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
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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
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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
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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
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!
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
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:1.
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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
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.
.
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(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
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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
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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
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(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)
!
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1
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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
(~
;
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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
{
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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"
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(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.
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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.
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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.
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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
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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.
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(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
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(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
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(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
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(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.
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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.
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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
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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.
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(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
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Grounds:
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When guardian's accounts
presented for settlement: (S.8)
Upon the expiration of a year
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(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.
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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
!"
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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.
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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)
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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.
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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)
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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
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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.
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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.
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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)
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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
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Home Guaranty Corporation v. R-II Builders, G.R. No. 192649, 22 June 2011, 652
SCRA649.
703
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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
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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:
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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.
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That the person in whose behalf the application is made is
imprisoned or restrained of his liberty;
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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)
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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.
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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
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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
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(2) Due to
distance, the Local
Civil Registrar
where petitioner is
residing.
(3) For nonresident Filipinos,
at any Philippine
Consulate.
,!!
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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
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(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
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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
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- Must not involve
nationality, age or
status.
91Republic
921d.
v. Valencia, L-32181, 5 March 1986, 141 SCRA 463.
713
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.
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
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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
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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
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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
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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.
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(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
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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.
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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.
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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.
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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
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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
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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.
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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.
~,
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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
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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
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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,
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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
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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
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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
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IJ
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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.
-
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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
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I
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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,
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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)
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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
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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
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I
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~,'.
...
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.
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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
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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
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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
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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:
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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
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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
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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
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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
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COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE
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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
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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
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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
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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
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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
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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.
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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
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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
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·COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE
AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE
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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
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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-':
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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
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COMPARATIVE MATRIX OF 1989 RULES OF EVIDENCE
AND 2019 AMENDMENTS TO THE RULES ON EVIDENCE
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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
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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
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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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