PUP Iskolar's Aid Remedial Law

CONTENTS:

Chapter I – General Principles .............. Page 001

Chapter II – Jurisdiction .................. Page 004

Chapter III– Civil Procedure .............. Page 012

Chapter IV – Special Proceedings .................. Page 117

Chapter V – Criminal Procedure .............. Page 153

Chapter VI – Evidence .................. Page 191

CONTRIBUTORS:

Office of the Dean:

Atty. Gemy Lito L. Festin Dean, PUPCollege of Law

Faculty BarOps:

Atty. Maria Christina Gimenez, Atty.Arnel Mateo, Atty. Judy Lardizabal,

Atty. Benzon Judd Cong, Atty. RonaldCrisanto Mercado and Faculty Club

BarOps Core Group:

Jay Salendab, Sylvia Sarmiento,Romie Rose Alcaraz, Kolleen De

Guzman, Roberto Valerio, Erold JohnBeunaflor

Remedial Law Team:

John Ramil Rabe, Khristian JeffEpiscope, Sylvia Patricia Sarmiento,

Sabrina Herhandez

REMEDIAL LAWREVIEWER

REMEDIAL LAW REVIEWER Chapter I – General Principles

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I. GENERAL PRINCIPLES

1.1. CONCEPT OF REMEDIAL LAW

Remedial law- branch of law which prescribes themethod of enforcing the rights and obtaining redressfor their invasions.

Remedial statutes – refers to statutes relating toremedies or modes of procedure, which do not createnew or take away vested rights, but only operate infurtherance of the remedy or confirmation of rightsalready existing.

Mechanics of due process as part of remedial law

1. A court or tribunal clothed with judicialpower to hear and determine mattersbefore it

2. Jurisdiction must be lawfully acquired overthe person of the defendant or over theproperty which is the subject of theproceeding.

3. Defendant must be given an opportunity tobe heard and

4. Judgment must be rendered upon a lawfulhearing

1.2. SUBSTANTIVE LAW vis-á-REMEDIALLAW

Substantive law creates defines and regulates rights;while procedural law prescribes the rules and formsof procedure in the administration of justice.

Substantive law cannot be waived, while procedurallaw can be waived or subject to agreement of theparties.

Procedural laws have retroactive application.

They are considered applicable to actions pendingand unresolved at the time of their passage.

Procedural laws and rules are retroactive in thatsense and to that extent. The effect of proceduralstatues and rules on rights of a litigant may not

preclude in their retroactive application to pendingactions.

1.3. RULE-MAKING POWER OF THESUPREME COURT

Power to promulgate rules of procedure lodged withthe Supreme Court: Constitutional basis – Sec. 5, Art.VIII, par 5 of 1987 Constitution

5.) Promulgate rules concerning theprotection and enforcement ofconstitutional rights, pleading, practice, andprocedure in all courts, the admission to thepractice of law, the integrated bar, and legalassistance to the under-privileged. Suchrules shall provide a simplified andinexpensive procedure for the speedydisposition of cases, shall be uniform for allcourts of the same grade, and shall notdiminish, increase, or modify substantiverights. Rules of procedure of special courtsand quasi-judicial bodies shall remaineffective unless disapproved by the SupremeCourt.

1.3.1 Limitations on the rule-making power ofthe Supreme Court

a. Simplified and inexpensive procedure forspeedy disposition of cases

b. They shall be uniform in all courts of samegrade

c. They shall not dismiss, increase, or modifysubstantive rights

1.3.2. Power of the Supreme Court to amendand suspend procedural rules

It is discretionary upon courts to suspend proceduralprocedures for the purpose of justice.


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1.4. NATURE OF PHILIPPINE COURTS

1.4.1. Meaning of a court

Court is the tribunal clothed with the power andauthority to entertain and resolve legal disputesbetween the parties to carry out dispensation ofjustice in accordance with the law. A judge is a publicofficer who exercises the power of the court indispersion of justice.

1.4.2. Court as distinguished from a judge

A judge is a public officer who exercises the power ofthe court in dispersion of justice.

A court is more of a permanent status or existencewhile judge is mere temporary.

1.4.3. Classification of Philippine courts

a. First level – MTCsb. Secondary level –RTC’s and Family Courtsc. Third level – Court of Appeals and

Sandiganbayand. Fourth level - Supreme Court

Courts outside the Judicial System

Tribal courts - This are courts which are exiting underthe customs and traditions of an indigenous culturalcommunity and are not part of the Philippine JudicialSystem.

Decisions of a tribunal based on a compromise maybe enforced or set aside, in and through regularcourts only.

Military Courts – These are not judicial courts. Theyare agencies of executive in character. Their decisionare not appealable to the courts but would pass thereviewing and conferring authority, but the SupremeCourt may exercise its supervision or correctingpower over the court-martial proceedings whenjurisdictional errors are involved or when there isgrave abuse of discretion.

1.4.4. Courts of original and appellatejurisdiction

A court is one with original jurisdiction when actionsor proceedings are originally filed with it. A court isone with appellate jurisdiction when it has the powerof review over the decisions or orders of a lowercourt.

1.4.5. Courts of general and special jurisdiction

Courts of general jurisdiction are those withcompetence to decide on their own jurisdiction andto take cognizance of all cases, civil and criminal, of aparticular nature.

Courts of special (limited) jurisdiction are those whichhave only a special jurisdiction for a particularpurpose or are clothed with special powers for theperformance of specified duties beyond which theyhave no authority of any kind.

1.4.6. Constitutional and statutory courts

Constitutional – SC

Statutory – Court of Appeals, Sandiganbayan, Courtof Tax Appeals, Regional Trial Court, Shariah DistrictCourt, Metropolitan Trial Court, Metropolitan CircuitCourt, Municipal Circuit Trial Court, Shariah DistrictCourt

1.4.7. Courts of law and equity

Court of law decides a case according to what thepromulgated law is while a court of equityadjudicates a controversy according to the commonprecepts of what is right and just without inquiring tothe terms of statutes.

In Philippines, every court is both equity and law.

1.4.8. Principle of judicial hierarchy

The principles provides that a higher court will notentertain direct resort to it unless the redress cannotbe obtained in the appropriate courts.


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1.4.9. Doctrine of non-interference or doctrineof judicial stability

Courts of equal and coordinate jurisdiction cannotinterfere with each other’s orders. Thus, the RTC hasno power to nullify or enjoin the enforcement of awrit of possession issued by another RTC.

REMEDIAL LAW REVIEWER Chapter II – Jurisdiction

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II. JURISDICTION

Jurisdiction – defined as the power of the court tohear and decide cases, and to execute judgmentthereon. It is also the authority to hear and determinea cause – the right to act in particular case.

Jurisdiction is lodged with the Court not with thejudge.

2.1 OVER THE PARTES

2.1.1. How jurisdiction over the plaintiff is acquired

Jurisdiction over the plaintiff is acquired by his filingof the complaint or petition and payment of requisitedocket fees. By doing so, he submits himself to thejurisdiction of the court.

2.1.2. How jurisdiction over the defendant isacquired

Jurisdiction over the person of the defendant isobtained either by a valid service of summons uponhim or by his voluntary submission to the court’sauthority.

2.2 OVER THE SUBJECT MATTER

2.2 1. Meaning of jurisdiction over the subjectmatter

It is the power to deal with the general subjectinvolved in the action, and means not simplyjurisdiction of the particular case then occupying theattention of the court but jurisdiction of the class ofcases to which the particular case belongs. It is thepower or authority to hear and determine cases towhich the proceeding is question belongs.

2.2 2. Jurisdiction versus the exercise of jurisdiction

Jurisdiction is the power or authority of the court. Theexercise of this power or authority is the exercise ofjurisdiction.

2.2 3. Error of jurisdiction as distinguished from errorof judgment

Error of Jurisdiction Error of Judgment

One where the actcomplained of wasissued by the courtwithout or in excess ofjurisdiction

One which the courtmay commit in theexercise of itsjurisdiction, it includeserrors of procedure ormistakes in the court’sfindings.

2.2 4. How jurisdiction is conferred anddetermined

Allegations in the complaint determines thejurisdiction

Determinative of which regular court had jurisdictionwould be the allegations of the complaint.

2.2 5. Doctrine of primary jurisdiction

The principle provides that courts will not resolve acontroversy involving a question which is within thejurisdiction of an administrative tribunal, especiallywhere the question demands the exercise of thesound administrative discretion requiring specialknowledge, experience and services of theadministrative tribunal to determine the technicaland intricate matters of fact.

2.2 6. Doctrine of adherence of jurisdiction

Once the court has acquired jurisdiction, thatjurisdiction continues until the court has done all thatit can do in the exercise of that jurisdiction.

2.2 7. Objections to jurisdiction over the subjectmatter

When it appears from the pleadings or evidence onrecord that the court has no jurisdiction over the


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subject matter, the court shall dismiss the same.Sec.1, Rule 9.

Jurisdiction over the subject matter may be raised atany stage of the proceedings, even for the first timeon appeal.

When the court dismisses the complaint for lack ofjurisdiction over the subject matter, it is commonreason that the court cannot remand the case toanother court with the proper jurisdiction. Its onlypower is to dismiss and not to make any other order.

2.2 8. Effect of estoppel on objections tojurisdiction

The active participation of a party in a case istantamount to recognition of that court’s jurisdictionand will bar a party from impugning the court’sjurisdiction. The general rule remains that court’s lackof jurisdiction may be raised at any stage of theproceedings even on appeal.

2.3 OVER THE ISSUES

Jurisdiction over the issues is conferred anddetermined by the pleadings of the parties. Thepleadings present the issues to be tried anddetermine whether or not the issues are of fact orlaw.

Stipulations in pre-trial

The parties may also be determined and conferred bystipulation of the parties as when in the pre-trial, theparties enter into stipulations of facts and documentsor enter into agreement simplifying the issues of thecase.

Failure to object to the presentation of evidence

The parties may also be conferred by waiver or failureto object to the presentation of evidence on a matternot raised in the pleadings. Here the parties try withtheir express or implied consent or issues not raised

by the pleadings. The issues tried shall be treated inall respects as if they had been raised in the pleadings.

2.4 OVER PROPERTY IN LITIGATION

This refers to the jurisdiction over the res.

How the jurisdiction over the res acquired:

1. By placing it in custodial egis. It is the actualseizure of the thing

2. Through legislative authority conferringupon it the power to deal with the propertyor thing within the court’s territorialjurisdiction.

2.5. JURISDICITON OF COURTS

What are the classifications of jurisdiction?

General Special or limited Original Exclusive Exclusive original Appellate Concurrent Delegated Territorial

General – Power of the court to adjudicate allcontroversies except those expressly withheld fromthe plenary powers of the court.

RTC is a court of general jurisdiction. A court ofgeneral jurisdiction is presumed to be acting within itsjurisdiction unless contrary is shown.

Special or limited – One which restricts the court’sjurisdiction only to particular cases and subject tosuch limitations as may be provided by the governinglaw. Example, probate proceedings.


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Courts of special jurisdictions:

Sandiganbayan Court of Tax Appeals Shari’ah Courts RTC Family Courts MTC

Scope of limited jurisdiction – has only thejurisdiction expressly delegated and must appearfrom the record that its acts are within thejurisdiction.

Probate court is of limited jurisdiction:

Approval of the agreement entered other thanjudicially approved compromise agreement is notwithin its jurisdiction.

Original – power of the court to take judicialcognizance of a case instituted for a judicial action forthe first time under the conditions provided by law.

Courts that have original jurisdictions:

SC CA SB RTC Sharia Courts MTC

Original jurisdiction of SC-

Sec. 5, Par 1 – Article VII:

a) Over actions involving ambassadors, publicministers and consuls

b) Over petition for certiorari,probhibition,mandamus, quo warranto, habeas corpus

c) Petition for writ of amparod) Petition for habeas datae) Petition for writ of continuing mandamus,

Sec. 2, Rule 8, Part II Rules of Procedure inEnvironmental cases

f) Petition for writ for kalikasan

Original jurisdiction of Court of Appeals-

a) Petition for certiorari, prohibition,mandamus, quo warranto, habeas corpus,

b) Writ of amparoc) Habeas Datad) Writ of Continuing Mandamuse) Writ of Kalikasanf) Action for annulment of judgment of RTCg) Petition for freeze order or any monetary

instrument, property, or proceeds, relatingto or involving unlawful activity as definedunder Sec. 3 (j) of RA 9160 as amended by RA9194.

Original Jurisdiction of RTC, Sec. 21 BP129:

a) Actions involving ambassadors, publicministers and consuls;

b) Over petition for CPMQH.c) Petitions for Amparod) Petition for Habeas Datae) Petition for Continuing Mandamus

Original jurisdiction of Shari’ah Disctrict Courts, Art413, Par 2 PD 1083:

a) Petition by mustlims for constitution forfamily home, change of name, andcommitment of insane person to an asylum

b) All other personal or real actions notmentioned in par 1d wherin parties aremuslim, except forcible entry and unlawfuldetainer which shall be in MTC.

c) All special civil actions for interpleader ordeclaratory relief wherein the parties areMuslims for property involve belongsexclusively to Muslims.

Exclusive – The power to adjudicate a case orproceeding to the exclusion of all other courts at thatstage.

Exclusive and original – power of the court to takejudicial cognizance of a case instituted for judicialaction for the first time under the conditions providedby law, and to the exclusion of all other courts.


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Courts that have exclusive and original jurisdictions:

SC CA SB RTC Sharia Courts MTC

Exclusive orginal jurisdiction of the Supreme Court-

Over petitions for certiorari, prohibition, andmandamus against judgment, final order andresolutions of the following:

a) CAb) SBc) CTAd) COMELECe) COAf) OMB in Criminal Cases ( Salvador vs Mapa )

Exclusive original jurisdiction of CA-

i. Petitions for CPM against:

a) Decision, final orders and resolution of RTCb) Decisions, final orders and resolution of

NLRC [St. Martin Funeral Homes vs NLRC]c) Decision, final orders of DOLE in its exercise

of appellate jurisdiction over decision, finalorders of the following offices:

1. POEA Admin in exercise ofadjudicatory function in case ofviolation of Labor Code, POEA rulesand regulations.

2. Decision of Secretary of Labor overdecision of its duly authorizedrepresentatives brought on appealin case of violation ofapprenticeship agreement which isalready final and executor

3. Decision of NWPC on appeal overWage Order by Tripartite Board

4. Decision over direct or indirectcontempt cases decided by NLRC

5. Decision of Secretary of Labor onappeal in case of denial of union

registration by Regional Director orBureau of Labor Relations

6. Decision of the Bureau of LaborRelations on appeal over order ofcancellation of union registration.

7. Decision of the Secretary of Laboron appeal over order of Bureau ofLabor Relations over intra labordispute.

ii. Exclusive original jurisdiction over actions ofannulment of final and executor judgment of RTCwhich is governed by Rule 47.

Exclsuvie orginal jurisdiction of SB ( civil )

Over civil cases for forfeiture of illegally acquiredwealth under RA 1379.

Note – Sec. 15, Article IX of Consti providingimprescriptivity of unlawfully acquired wealth appliesonly in civil actions and not to criminal cases.

Nature of Sandiganbayann – is a special court of samelevel as CA. Edgar vs Sandiganbayan.

Exclusive Orginal Jurisdiction of RTC-

Sec. 19 of BP129 as amended by RA 7691-

a) Cases wherein the subject is incapable ofprecuniary estimation

b) Civil actions which involve title, orpossession of real property or any interest,where assessed value exceeds 20k MM/ 50 kOMM, except forcible entry or unlawfuldetainer which shall be in MTC.

Note: Metro Manila – 17 lGU:

Caloocan, Las Piñas, Makati, Malabon,Mandaluyong, Manila, Marikina,Muntinlupa, Navotas, Parañaque,Pasay, Pasig, Patero, sQuezon City, SanJuan, Taguig, Valenzuela

c) In all actions in admiralty and maritimejurisdiction where claim exceeds400MM/300 OMM.


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d) In all matters of probate, testate orintestate, where gross value of estateexceeds 400MM/ 300 OMM.

e) IN all actions involving contract of marriageand marital relations

f) In all cases not within the exclusivejurisdiction of any court

g) In all civil actions and special proceedingsfalling within EO jurisdiction of Juvenile andDomestic Relations Court and Court ofAgrarian Relations as now provided by law.

h) In all other cases in which the demand,exclusive of interest, damages of whateverkind, atty fees, litigation expenses, costs ofvalue of property exceeds 400k MM / 300kOMM.

Other cases falling within EO of RTC from special laws

a) Sec. 5.2 of Securities and Regulations CodeRA 8799-

1. Cases involving devices andschemes employed by board ofdirectors, business association, itsofficers or partnership, amountingto fraud of misrepresentationwhich is demerital to the interest ofpublic.

2. Controversies arising out of intra-corproate or partnership relations,

3. Controversies in the e ections andappointment of directors, trustees,officers or managers of suchcorporations.

4. Petitions of corporation,partnership or associations to bedeclared in state of suspension ofpayments.

b) RTC acting as Special agrarian court – that ispetition for determination of justcompensation for that province.

c) Over petition for annulment of judgmentover decision and final orders of MTC

d) Civil cases for infringement of Copyright andUnfair Competition under IP Code

e) RTC Acting as family court has jurisdictionover petition for guardianship, custody ofminor, habeas corpus relating to minor

f) Petition for custody of minor, habeas corpusin relation to the latter

g) Complaints for annulment of marriage anddeclaration of nullity of marriage and thoserelating to marital status and propertyrelation of husband and wife,

h) Petition for support and acknowledgementi) Summary Judicial Proceedings brought

under Family Codej) Petition for Constitution of Family Homek) Petition for declaration of status of children

as abandoned, dependent, or neglectedchildren

l) Petition for involuntary commitment, orchild caring agency or individual orcommitment of disabled child.

m) Petition for civil forfeiture of monetaryinstrument relating to an unlawful activity orto a money laundering offenses.

Exclusive original jurisdiction of Shari’ah DistrictCourt

i. All cases involving custody,guardianship, legitimacy, and filiationarising under the code

ii. All cases involving disposition andsettlement of estate of deceasedMuslims, probate of a will, issuance ofletters of administration orappointment of administrator orexecutors regardless of nature oraggregate amount of property

iii. Petitions for declaration of absence anddeath and for cancellation or correctionof entries in the Muslim Registries

iv. All actions from customary contract inwhich parties are Muslims, if they havenot specified the law which shall governtheir relations.

v. All petitions for mandamus, prohibition,injunction, certiorari, habeas corpus,and auxiliary writs and processes in aidof its appellate jurisdiction

Exclusive original jurisdiction of MTC-

i. Just reversed the jurisdiction of RTC asregards to amounts.

ii. Cases under Rules on SummaryProceedings-


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a) Forcible entry and unlawfuldetainer

b) All other cases, except probate,where the claim does not exceed100k OMM / 200 k MM.

iii. Cases under Small Claims-

Payment of money where the value of theclaim does not exceed 100k exclusive of costand interst.

Purpose of small claims: No lawyers, formalpleadings, strict legal rules of evidence. It isdesigned to function quickly and informally.

Exclusive Original Jurisdiction of Shari’ah CircuitCourts-

i. All civil actions and proceeding between partieswho are Muslims or have been married inaccordance with Article 13 involving disputesrelating to:

a) Marriageb) Divorce recognized under the Codec) Betrothal or breach of contract to

marriaged) Customary dowere) Disposition or distribution of property

upon divorcef) Maintenance and support and

cosolatary giftsg) Restitution of marital gifts

ii. All cases involving disputes relative tocommunal properties

Special Jurisdiction -

The following courts have special jurisdiction:

Regitonal Trial Court MTC

Special jurisdiction of RTC, Sec. 23 BP 129

The Supreme Court may designate certain branchesof Regional Trial Courts to handle exclusively thefollowing special cases:

a. Criminal casesb. Juvenile and domestic relations casesc. Agrarian Casesd. Urban land reform cases which do not fall

under the jurisdiction of quasi-judicialbodies and agencies

e. Such other special cases as the SC maydetermine in the interest of speedy andefficient administration of justice.

Special Jurisdiction of MTC, Sec. 35 BP 129

a. Petition for habeas corpus and;b. Application for bail in criminal cases in the

province or city where the absent regionaltrial judge sits.

Apellate – power and authority conferred upon asuperior court to rehear and determine causes whichhave been tried in lower courts, the cognizance whicha superior court takes a case to removed to it, byappeal or writ of error from the decision of a lowercourt, or the review by superior court of finaljudgment or order of some lower courts.

The following have appellate jurisdiction:

SC CA SB CTA RTC SDC

Apellate jurisdiction of the Supreme court [Sec. 5, Par2, Article VIII)-

i. Review,revise,reverse,modify, or affirm onappeal or certiorari judgment, as the Rules ofCourt may provide, final judgment and orders oflower courts in:


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1. All cases in which the constitutionalityor validity of any treaty, international orexecutive agreement, law, PD,proclaimation, order, instruction,ordinance, or regulation is in question

2. All cases involving the legality of nay tax,impost, assessment, or toll or any pentlyimposed in relation thereto

3. All cases in which the jurisdiction of anylower court is in issue

4. All criminal cases in which the penaltyimposed is reclusion perpetua or higher

5. All cases in which only an error orquestion of law is involved

ii. Cases which shall be decided by the SupremeCourt en banc, Article VIII 4(2), Consti-

a. All cases involving the constitutionalityof a treaty, international agreement orlaw and,

b. All other cases which under the Rules ofCourt are required to be heard en banc,including those involving theconstitutionality, application, oroperation of PD, proclamation, orders,instruction, ordinances, and otherregulations.

Supreme Court may review decisions of thelower courts by way of petition for review oncertiorari under Rule 45.

iii. Cases falling under the appellate jurisdictionof the Supreme Court- over judgments, infalorders, and resolutions of the following courts:

a. CA under R45.b. SDc. CTA en bancd. RTC r45e. CA, SB, RTC in petition for writ of

Amparof. CA, SB, RTC in petition for habeas data

Note – as a rule, only pure questions of law may be aground for r45.

A question of law exists when there is doubt orcontroversy as to what law is applicable on certain setof facts. Questions of fact exist when the doubt orcontroversy arises as to truth or falsity of the allegedfacts.

Appellate Jurisdiction of Court of Appeals- Sec. 9, BP129

i. Over judgments, resolutions, orders or awardof the following courts or tribunal:

a) RTC in exercise of its originaljurisdiction, Rule 41.

b) RTC in exercise of its appellatejurisdiction Rule 42.

c) Quasi-judicial bodies in exercise ofquasi-judicial functions under Rule 43.

What are these quasi-judicial bodies?

1. Civil Service Commission2. Security and exchange commission3. Office of the President4. Land Registration Authority5. Social Security Commission6. Civil Aeronautics Board7. Bureau of Patents and Trademarks and

Technology Transfer8. National Electrification Administrations9. Energy Regulatory Board10. National Telecommunication Commission11. Department of Agrarian Reform12. Government Service Insurance System13. Employees Compensation Commission14. Agricultural Inventions Board15. Insurance Commission16. Philippine Atomic Energy Comission17. Board of Investments18. Construction Industry Arbitration

Commission19. Voluntary Arbitration20. Decision of OMB in administrative cases,

OMB vs Liggayu


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What are the powers of the Court of Appeals in theexercise of exclusive and appellate jurisdiction?

Sec. 9(3) par. 2, BP 129 –

a. Try cases and conduct hearingsb. Receive Evidencesc. Perform any and all acts necessary to resolve

factual issues raised in cases falling within itsoriginal and appellate jurisdiction, includingpower to conduct new trial and furtherproceedings.

Note – Rules in the conduct of hearings before the CAmust be continuous and must be completed withinthree months, unless extended by the CJ.

Appellate jurisdiction of Sandiganbayan-

Shall exercise exclusive appellate jurisdiction overfinal judgment, resolutions, or orders of RTC whetherin exercise of their own original jurisdiction or theirappellate jurisdiction. Filomena Villanueva vs People,2011

2.6. BARANGAY CONCILLATION

Purposes:

1. Reduce the number of court litigations2. Prevent deterioration of the quality of

justice, brought about by the indiscriminatefiling of cases in court

General rule:

No complaint, petition, action or proceeding involvingany matter within the authority of the lupon shall befiled or instituted directly in court or any othergovernment office for adjudication, unless there hasbeen a confrontation between the parties before thelupon chairman or the pangkat, and that noconciliation or settlement has been reached ascertified by the lupon secretary or pangkat secretaryas attested to by the lupon chairman or pangkatchairman or unless the settlement has beenrepudiated by the parties thereto.

Exceptions:

1. Where one party is the government or anysubdivision or instrumentality thereof;

2. Where one party is a public officer or employee,and the dispute relates to the performance of hisofficial functions;

3. Offenses punishable by imprisonment exceeding 1year or a fine exceeding P5000

4. Offenses where there is no private offended party

5. Where the dispute involves real properties locatedin different cities or municipalities, unless the partiesthereto agree to submit their differences to amicablesettlement by an appropriate lupon

6. Disputes involving parties who actually reside inbarangays of different cities of municipalities, exceptwhen such barangay units adjoin each other and theparties thereto agree to submit their differences toamicable settlement by an appropriate lupon.

When they can go directly to court

1. Where the accused is under detention

2. Where the accused has otherwise been deprived ofpersonal liberty calling for habeas corpus proceedings

3. Where actions are coupled with provisionalremedies

4. Where the action may otherwise be barred by thestatute of limitations

2.7 TOTALITY RULE

Where there are several claims or causes of actionsbetween the same or different parties, embodied inthe same complaint, the amount of the demand shallbe the totality of the claims in all the claims of action,irrespective of whether the causes of action arose outof the same or different transactions.

REMEDIAL LAW REVIEWER Chapter III – Civil Procedure

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III. CIVIL PROCEDURE

3.1. ACTIONS

3.1.1. Meaning of ordinary civil actions

A civil action is one by which a party sues another forthe enforcement or protection of a right, or theprevention or redress of a wrong,

3.1.2. Meaning of special civil actions

Governed by the rules for ordinary civil actions,subject to the specific rules prescribed for a specialcivil action.

3.1.3. Meaning of criminal actions

A criminal action is one by which the State prosecutesa person for an act or omission punishable by law.

Civil Action CriminalAction

SpecialProceeding

One by which aparty suesanother forenforcement orprotection of aright, orprevention of awrong.

A civil actionmay eitherordinary orspecial. Bothare governedby the rules forordinary civilactions, subjectto the specificrulesprescribed forspecial civilaction.

Is one bywhich thestateprosecutes aperson for anact oromissionpunishable bylaw.

Criminalproceedingsare governedby 110-127 ofRevised Ruleson CriminalProcedure.

Specialproceeding isa remedy bywhich a partyseeks toestablish astatus, a right,or particularfact.

It is governedby Rules 72-109 of Rulesof court, andrules onordinary civilactions onlyapplies insuppletorycharacter.

Special civilactions aregoverned bythe Rules 62-71suppletory arethe rules onordinary civilactions.

3.1.4. Civil actions versus special proceedings

A special proceeding is a remedy by which a partyseeks to establish a status, a right, or a particular fact.

Civil actions are based from cause of action while inspecial proceedings, it is not based on a cause ofaction except in habeas corpus. Unlike civil actions,special proceedings are initiated through a petitionand may involve only one party

3.1.5. Personal actions and real actions

Personal action - A personal action is one that isfounded on privity of contract.

Real actions - Actions affecting title to or possessionof real property, or interest therein

3.1.6. Local and transitory actions

Local action – the venue depends on the location ofproperty.

Transitory action – the venue depends on theresidence of the parties.

3.1.7. Actions in rem, in personam and quasi inrem

Actions in rem – action bought against the thing itselfand with a purpose of binding the whole world.

Actions in personam – action directed againstparticular persons and the judgment of which isbinding only upon the parties impleaded and theirsuccessors in interest

Action quasi-in-rem – one bought against particularpersons but intended to bind the persons who mighthave interest in the subject matter.


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3.1.8. Independent Civil Actions

In the cases provided for in Articles 32, 33, 34 and2176 of the Civil Code, the independent civil actionmay be brought by the offended party. It shallproceed independently of the criminal action andshall require only a preponderance of evidence.

In no case, however, may the offended party recoverdamages twice for the same act or omission chargedin the criminal action.

3.2. CAUSE OF ACTION

3.2.1. Meaning of cause of action

Cause of action is the act or omission by which a partyviolates a right of another.

Elements:

1. A right in favor of the plaintiff by whatevermeans and under whatever law it arises or iscreated;

2. An obligation on the part of the nameddefendant to respect or not to violate suchright; and

3. Act or omission on the part of suchdefendant in violation of the right of theplaintiff or constituting a breach of theobligation of the defendant to the plaintifffor which the latter may maintain an actionfor recovery of damages or otherappropriate relief.

3.2.2. Right of action versus cause of action

Right of action Cause ofAction

Action

The remedialright of theplaintiff toinstitute anaction

Act oromission bywhich a partyviolates theright ofanother

A suit toenforce onesright or toprevent orredress awrong

Determined bythesubstantivelaw

Can be takenaway bystatutes oflimitations likeprescriptions

Determined bythe allegationsin thepleadings

Not subject tostatute oflimitations

Requisites for right of action:

1. A cause of action2. Compliance with all conditions precedent3. Actions must be instituted by a proper party

3.2.3. Failure to state a cause of action

Failure to state a cause of action is one of the groundsfor dismissal of the complaint.

Failure to State Causeof Action

Lack of Cause of Action

1. The remedy ismotion to dismissunder Rule 16.

2. Made before filingresponsivepleading

3. Nature of dismissalis withoutprejudice, remedyof the plaintiff is tofile an amendedpleading

4. If MTD is denied,file an answer.

1. The remedy isDemurrer toEvidence.

2. Made after theprosecution restsits case

3. The dismissal iswith prejudice.Remedy of theplaintiff is to file anApeal of dismissal.

4. If DTE is denied, theremedy is topresent evidence

3.2.4. Test of the sufficiency of a cause of action

The test is whether or not admitting the facts alleged,the court could render a valid verdict in accordancewith the prayer of the complaint.


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What is to be considered by the court are the materialallegations in the complaint. The court shall not takecognizance of the external facts.

3.2.5. Splitting a single cause of action and its effects

A party may not institute more than one suit for asingle cause of action. Sec.3, Rule 2.

Effect of splitting single cause of action

If two or more suits are instituted on the basis of thesame cause of action, the filing of one or a judgmentupon the merits in any one is available as a ground forthe dismissal of the others. Sec. 4, Rule 2.

The ground of dismissal may be based on res judicataor litis pendentia.

3.2.6. Joinder and mis-joinder of causes of action

A party may in one pleading assert, in the alternativeor otherwise, as many causes of action as he mayhave against an opposing party.

Requisites:

a. The party joining the causes of action shallcomply with the rules on joinder of parties;

b. The joinder shall not include special civilactions or actions governed by special rules;

c. Where the causes of action are between thesame parties but pertain to different venuesor jurisdictions, the joinder may be allowedin the Regional Trial Court provided one ofthe causes of action falls within thejurisdiction of said court and the venue liestherein; and

d. Where the claims in all the causes action areprincipally for recovery of money, theaggregate amount claimed shall be the testof jurisdiction.

Non-joinder of causes of action has no legalconsequence. The plaintiff has the discretion whetherto assert all of his cause of action in one pleading.

Misjoinder of cause of action

Misjoinder of causes of action is not a ground fordismissal of an action.

Remedy in case of misjoinder of cause of action

A misjoined cause of action may, on motion of a partyor on the initiative of the court, be severed andproceeded with separately.

3.3. PARTIES TO CIVIL ACTION

3.3.1. Real parties-in-interest; indispensableparties; representatives as parties; necessaryparties; indigent parties; alternativedefendants

Who may be parties

Only natural or juridical persons, or entitiesauthorized by law may be parties in a civil action. Sec.1, Rule 3.

Entities authorize by law to be a patties include:

1. Estate of a deceased person2. Political party duly incorporated3. Registered labor union4. Partnerships5. Dissolved corporations concerning suits filed

for or against it within 3 years fromdissolution in connection with winding up ofits affairs

Plaintiff - may refer to the claiming party, thecounter-claimant, the cross-claimant, or the third(fourth, etc.) — party plaintiff.

Defendant - may refer to the original defending party,the defendant in a counter-claim, the cross-defendant, or the third (fourth, etc.) — partydefendant.

Real parties in interest - A real party in interest is theparty who stands to be benefited or injured by the


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judgment in the suit, or the party entitled to the availsof the suit. Unless otherwise authorized by law orthese Rules, every action must be prosecuted ordefended in the name of the real party in interest.Sec. 2, Rule 3.

Rule in representatives are parties

General rule: Where the action is allowed to beprosecuted and defended by a representative orsomeone acting in a fiduciary capacity, thebeneficiary shall be included in the title of the caseand shall be deemed to be the real property ininterest. Sec. 3, Rule 3.

A representative may be a trustee of an expert trust,a guardian, an executor or administrator, or a partyauthorized by law or these Rules. Sec 3, Rule 3.

Where the name of the principal need not to bedisclosed

An agent acting in his own name and for the benefitof an undisclosed principal may sue or be suedwithout joining the principal except when thecontract involves things belonging to the principal.

REMEDY:

If the complaint was prosecuted not in the name ofreal party in interest, the same can be dismissed forfailure to state cause of action.

Indispensable parties - Parties in interest withoutwhom no final determination can be had of an actionshall be joined either as plaintiffs or defendants. Sec.7, Rule 3.

The presence of indispensable parties is a conditionfor the exercise of juridical power and when anindispensable party is not before the court, the actionshould be dismissed.

Although as a general rule, the joinder of parties ispermissive, it is compulsory with respect toindispensable parties.

Necessary parties – A necessary party is one who isnot indispensable but who ought to be joined as aparty if complete relief is to be accorded as to those

already parties, or for a complete determination orsettlement of the claim subject of the action. Sec. 8,Rule 3.

Alternative defendants - Where the plaintiff isuncertain against who of several persons he isentitled to relief, he may join any or all of them asdefendants in the alternative, although a right torelief against one may be inconsistent with a right ofrelief against the other. Sec. 13, Rule 3.

Unknown identity or name of defendant. -Whenever the identity or name of a defendant isunknown, he may be sued as the unknown owner heirdevisee, or by such other designation as the case mayrequire, when his identity or true name is discovered,the pleading must be amended accordingly. Sec. 14,Rule 3.

Indigent parties - satisfied that the party is one whohas no money or property sufficient and available forfood, shelter and basic necessities for himself and hisfamily. Sec. 21, Rule 3.

Rule in indigent parties Sec. Rule 3.

A party may be authorized to litigate his action, claimor defense as an indigent if the court, upon an exparte application and hearing.

Such authority shall include an exemption frompayment of docket and other lawful fees, and oftranscripts of stenographic notes which the court mayorder to be furnished him. The amount of the docketand other lawful fees which the indigent wasexempted from paying shall be a lien on any judgmentrendered in the case favorable to the indigent, unlessthe court otherwise provides.

Any adverse party may contest the grant of suchauthority at any time before judgment is rendered bythe trial court. If the court should determine afterhearing that the party declared as an indigent is infact a person with sufficient income or property, theproper docket and other lawful fees shall be assessedand collected by the clerk of court. If payment is notmade within the time fixed by the court, executionshall issue or the payment thereof, without prejudiceto such other sanctions as the court may impose


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3.3.2. Compulsory and permissive joinderof parties

Rule on compulsory joinder of parties

Parties in interest without whom no finaldetermination can be had of an action shall be joinedeither as plaintiffs or defendants.

Rule on permissive joinder of parties

All persons in whom or against whom any right torelief in respect to or arising out of the sametransaction or series of transactions is alleged to exist,whether jointly, severally, or in the alternative, may,except as otherwise provided in these Rules, join asplaintiffs or be joined as defendants in one complaint,where any question of law or fact common to all suchplaintiffs or to all such defendants may arise in theaction; but the court may make such orders as may bejust to prevent any plaintiff or defendant from beingembarrassed or put to expense in connection withany proceedings in which he may have no interest.Sec. 6, Rule 3.

3.3.3. Non-joinder of necessary parties to bepleaded ;Misjoinder and non-joinder of parties

Non-joinder of necessary parties to be pleaded

Whenever in any pleading in which a claim is asserteda necessary party is not joined, the pleader shall setforth his name, if known, and shall state why he isomitted. Should the court find the reason for theomission unmeritorious, it may order the inclusion ofthe omitted necessary party if jurisdiction over hisperson may be obtained.

The failure to comply with the order for his inclusion,without justifiable cause, shall be deemed a waiver ofthe claim against such party.

The non-inclusion of a necessary party does notprevent the court from proceeding in the action, andthe judgment rendered therein shall be withoutprejudice to the rights of such necessary party. Sec. 9,Rule 3.

Misjoinder and non-joinder of parties

Neither misjoinder nor non-joinder of parties isground for dismissal of an action.

Parties may be dropped or added by order of thecourt on motion of any party or on its own initiativeat any stage the action and on such terms as are just.

NOTE: If the plaintiff fails to comply with the ordersof the court for joinder of party, the same may bedismissed under Rule 17.

Any claim against a misjoined party may be severedand proceeded with separately Sec. 11, Rule 3.

Unwilling co-plaintiff

If the consent of any party who should be joined asplaintiff can not be obtained, he may be made adefendant and the reason therefor shall be stated inthe complaint. Sec. 10, Rule 3.

3.3.4. Class suit

Class suit - When the subject matter of thecontroversy is one of common or general interest tomany persons so numerous that it is impracticable tojoin all as parties, a number of them which the courtfinds to be sufficiently numerous and representativeas to fully protect the interests of all concerned maysue or defend for the benefit of all. Sec. 12, Rule 3.

Requisites or class suit:

1. the subject matter of controversy is one ofcommon or general interest to manypersons;

2. the parties affected are so numerous that itis impracticable to bring them all to court;and

3. the parties bringing the class suit aresufficiently numerous or representative ofthe class and can fully protect the interestsof all concerned.

Class suit Citizen Suit Derivative

Suit

Taxpayers

suit

When thesubject

Suit filedby the

Suit filedby

A suitbrought by


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matter of thecontroversyis one ofcommon orgeneralinterest tomanypersons sonumerousthat it isimpracticableto join all asparties, anumber ofthem whichthe courtfinds to besufficientlynumerousandrepresentative as to fullyprotect theinterests ofall concernedmay sue ordefend forthe benefit ofall.

citizen ofthePhilippinesfor theirgenerationas well asgenerations yetunborn

stockholder ormembermay bringan actionin thename of acorporation orassociation forinaction oftheofficers ofsuchcorporation orassociation.

a taxpayerfor illegalexpenditure oftaxpayer’smoney.

Any party in interest have the right to intervene inclass suit

Any party in interest shall have the right to interveneto protect his individual interest. Sec. 12, Rule 2.

3.3.5. Suits against entities without juridicalpersonality

When two or more persons not organized as an entitywith juridical personality enter into a transaction,they may be sued under the name by which they aregenerally or commonly known.

In the answer of such defendant, the name andaddresses of the persons composing said entity mustall be revealed. Sec. 15, Rule 3.

3.3.6. Effect of death of party-litigant

Whenever a party to a pending action dies, and theclaim is not thereby extinguished

It shall be the duty of his counsel to inform the courtwithin thirty (30) days after such death of the factthereof, and to give the name and address of his legalrepresentative or representatives. Failure of counselto comply with his duty shall be a ground fordisciplinary action.

The heirs may be substituted

The heirs of the deceased may be allowed to besubstituted for the deceased, without requiring theappointment of an executor or administrator and thecourt may appoint a guardian ad litem for the minorheirs.

The court shall forthwith order said legalrepresentative or representatives to appear and besubstituted within a period of thirty (30) days fromnotice.

If no legal representative, remedy of the opposingparty

If no legal representative is named by the counsel forthe deceased party, or if the one so named shall failto appear within the specified period, the court mayorder the opposing party, within a specified time toprocure the appointment of an executor oradministrator for the estate of the deceased and thelatter shall immediately appear for and on behalf ofthe deceased. The court charges in procuring suchappointment, if defrayed by the opposing party, maybe recovered as costs.

Remedy if a party becomes incompetent orincapacitated

Upon motion with notice, the court may allow theaction to be continued by or against the incompetentor incapacitated person assisted by his legal guardianor guardian ad litem.

Transfer of interest

In case of any transfer of interest, the action may becontinued by or against the original party, unless the


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court upon motion directs the person to whom theinterest is transferred to be substituted in the actionor joined with the original party. Sec. 19, Rule 3.

Action and contractual money claims

When the action is for recovery of money arising fromcontract, express or implied, and the defendant diesbefore entry of final judgment in the court in whichthe action was pending at the time of such death, itshall not be dismissed but shall instead be allowed tocontinue until entry of final judgment. A favorablejudgment obtained by the plaintiff therein shall beenforced in the manner especially provided in theseRules for prosecuting claims against the estate of adeceased person. Sec. 20, Rule 3.

When notice to Solicitor General is necessary

In any action involving the validity of any treaty, law,ordinance, executive order, presidential decree, rulesor regulations, the court, in its discretion, may requirethe appearance of the Solicitor General who may beheard in person or a representative duly designatedby him. Sec. 22, Rule 3.

3.4. VENUE

Venue – the geographical area where the case shouldbe filed and tried.

3.4.1. Venue versus jurisdiction

Venue Jurisdiction

1. The geographicalplace where the caseshould be filed andtried.

2. Matter of procedurallaw

3. Establishesrelationship betweenplaintiff/petitionerand

1. Authority of thecourts to hearand determinecases andimplement itsdecision

2. Matter ofsubstantive law

3. Establishesrelation between

defendant/respondent

4. May be stipulated bythe agreement of theparties on exclusivityof venue

5. Not a ground formotu propiodismissal, except insummary procedureand small claims.

the court andsubject matter

4. Cannot be fixedby the partiesbecause it isconferred by law

5. Ground for motupropio dismissal

3.4.2. Venue of real actions

Actions affecting title to or possession of realproperty, or interest therein, shall be commencedand tried in the proper court which has jurisdictionover the area wherein the real property involved, ora portion thereof, is situated.

Forcible entry and detainer actions shall becommenced and tried in the municipal trial court ofthe municipality or city wherein the real propertyinvolved, or a portion thereof, is situated. Sec. 1, Rule4.

3.4.3. Venue of personal actions

All other actions may be commenced and tried:

1. where the plaintiff or any of the principalplaintiffs resides, or

2. where the defendant or any of the principaldefendants resides, or in the case of a non-resident defendant where he may be found,at the election of the plaintiff. Sec. 2, Rule 4.

3.4.4. Venue of actions against non-residents

If any of the defendants does not reside and is notfound in the Philippines, and the action affects thepersonal status of the plaintiff, or any property of saiddefendant located in the Philippines, the action maybe commenced and tried:

1. In the court of the place where the plaintiffresides, or


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2. In the court of the place here the property orany portion thereof is situated or found. Sec.3, Rule 4.

What kinds of action this applies:

1. Action affects the personal status of theplaintiff

2. Any property of said defendant located inthe Philippines

3.4.5. When the rules on venue do not apply

1. In those cases where a specific rule or lawprovides otherwise; or

2. Where the parties have validly agreed inwriting before the filing of the action on theexclusive venue thereof. Sec. 4, Rule 4.

3.4.6. Effects of stipulations on venue

If the stipulation is restrictive, the suit may be filedonly in the place agreed upon by the parties. It mustbe reiterated and made clear that under Rule 4, thegeneral rules on venue of actions shall not applywhere the parties, before the filing of the action, havevalidly agreed in writing on an exclusive venue.

3.5. PLEADINGS

Pleadings - are the written statements of therespective claims and defenses of the partiessubmitted to the court for appropriate judgment

Note – A motion is not a pleading because it is anapplication for relief other than by a pleading.

Pleadings allowed under the rules

The claims of a party are asserted in a complaint,counterclaim, cross-claim, third (fourth, etc.)-partycomplaint, or complaint-in-intervention.

The defenses of a party are alleged in the answer tothe pleading asserting a claim against him.

An answer may be responded to by a reply

Initiatory pleading – a pleading that initiates anaction.

Responsive pleading –a pleading that responds to thepleading of adverse party.

3.5.1. Kinds of pleadings

a) Complaint - The complaint is the pleading allegingthe plaintiff's cause or causes of action. The namesand residences of the plaintiff and defendant must bestated in the complaint.

b) Answer - An answer is a pleading in which adefending party sets forth his defenses.

i. Negative defenses - is the specific denial ofthe material fact or facts alleged in thepleading of the claimant essential to hiscause or causes of action.

ii. Negative pregnant - It is a form ofnegative expression which carries with it anaffirmation or at least an implication of somekind favorable to the adverse party. It is adenial pregnant with an admission of thesubstantial facts alleged in the pleading.

iii. Affirmative defenses - is an allegation ofa new matter which, while hypotheticallyadmitting the material allegations in thepleading of the claimant, would neverthelessprevent or bar recovery by him.

It includes:

a. fraud,b. statute of limitations,c. release,d. payment,e. illegality,f. statute of frauds,g. estoppel,h. former recovery,i. discharge in bankruptcy,j. and any other matter by way of

confession and avoidance.


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c) Counterclaims - A counterclaim is any claim whicha defending party may have against an opposingparty.

i. Compulsory counterclaim - is one which,being cognizable by the regular courts ofjustice, arises out of or is connected with thetransaction or occurrence constituting thesubject matter of the opposing party's claimand does not require for its adjudication thepresence of third parties of whom the courtcannot acquire jurisdiction..

Such a counterclaim must be within thejurisdiction of the court both as to theamount and the nature thereof, except thatin an original action before the Regional TrialCourt, the counter-claim may be consideredcompulsory regardless of the amount.

ii. Permissive counterclaim - is one which,being cognizable by the regular courts ofjustice, does not arises out of or is connectedwith the transaction or occurrenceconstituting the subject matter of theopposing party's claim and does not requirefor its adjudication the presence of thirdparties of whom the court cannot acquirejurisdiction.

iii. Effect on the counterclaim when thecomplaint is dismissed - If a counterclaimhas already been pleaded by the defendantprior to the service upon him of theplaintiff‘s motion to dismiss, and the courtgrants the said motion to dismiss, thedismissal shall be limited to the complaint.Sec. 2, Rule 17

Rule in bring in new parties

When the presence of parties other than those to theoriginal action is required for the granting ofcomplete relief in the determination of acounterclaim or cross-claim, the court shall orderthem to be brought in as defendants, if jurisdictionover them can be obtained. Sec. 12, Rule 6

d) Cross-claims - is any claim by one party against aco-party arising out of the transaction or occurrencethat is the subject matter either of the original actionor of a counterclaim therein. Such cross-claim mayinclude a claim that the party against whom it isasserted is or may be liable to the cross-claimant forall or part of a claim asserted in the action against thecross-claimant.

e) Third (fourth, etc.) party complaints - A third(fourth, etc.) — party complaint is a claim that adefending party may, with leave of court, file againsta person not a party to the action, called the third(fourth, etc.) — party defendant for contribution,indemnity, subrogation or any other relief, in respectof his opponent's claim

Answer to third (fourth, etc.)—party complaint.

party defendant may allege in his answer hisdefenses, counterclaims or cross-claims, includingsuch defenses that the third (fourth, etc.) — partyplaintiff may have against the original plaintiff's claim.In proper cases, he may also assert a counterclaimagainst the original plaintiff in respect of the latter'sclaim against the third-party plaintiff.

f) Complaint-in-intervention – a complaint filed, withleave of court, by a person who has a legalinterest in the matter in litigation, or in the success ofeither of the parties, or an interest against both, or isso situated as to be adversely affected by adistribution or other disposition of property in thecustody of the court or of an officer thereof may, withleave of court. Sec. 1, Rule 19.

g) Reply – A reply is a pleading, the office or functionof which is to deny, or allege facts in denial oravoidance of new matters alleged by way of defensein the answer and thereby join or make issue as tosuch new matters. If a party does not file such reply,all the new matters alleged in the answer are deemedcontroverted.

If the plaintiff wishes to interpose any claims arisingout of the new matters so alleged, such claims shallbe set forth in an amended or supplementalcomplaint. Sec. 10, Rule 6.


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Reply is a responsive pleading.

3.5.2. Pleadings allowed in small claim cases andcases covered by the Rules on Summary Procedure

Pleadings allowed

Small Claims Summary Procedure

Verified Statement ofClaims, (Form 1-SCC)

Permissive counter-claim as long as withinthe scope of smallclaims

Response with orwithout compulsorycounter-claim

Complaint

Compulsory counter-claim pleaded in theanswer

Cross-claim pleaded inthe answer

Answers thereto

Prohibited pleadings and motions

Small Claims Summary Procedure

1. Motion to dismissthe complaintexcept on theground of lack ofjurisdiction;

2. Motion for a bill ofparticulars;

3. Motion for newtrial, or forreconsideration ofa judgment, or forreopening of trial;

4. Petition for relieffrom judgment;

5. Motion forextension of timeto file pleadings,

1. Motion to dismissthe complaint or toquash thecomplaint orinformation excepton the ground oflack of jurisdictionover the subjectmatter, or failureto comply with thepreceding section;

2. Motion for a bill ofparticulars;

3. Motion for newtrial, or forreconsideration ofa judgment, or foropening of trial;

affidavits, or anyother paper;

6. Memoranda;7. Petition for

certiorari,mandamus, orprohibition againstany interlocutoryorder issued by thecourt;

8. Motion to declarethe defendant indefault;

9. Dilatory motionsfor postponement;

10. Reply;11. Third-party

complaints; and12. Interventions.

4. Petition for relieffrom judgment;

5. Motion forextension of timeto file pleadings,affidavits or anyother paper;

6. Memoranda;7. Petition for

certiorari,mandamus, orprohibition againstany interlocutoryorder issued by thecourt;

8. Motion to declarethe defendant indefault;

9. Dilatory motionsfor postponement;

10. Reply;11. Third party

complaints;12. Interventions.

Note – pleadings under Summary Procedure shall beverified.

3.5.3. Parts of a pleading

a) Caption

The caption sets forth the name of the court, the titleof the action, and the docket number if assigned.

The title of the action indicates the names of theparties. They shall all be named in the originalcomplaint or petition; but in subsequent pleadings, itshall be sufficient if the name of the first party oneach side be stated with an appropriate indicationwhen there are other parties.

b) Signature and address

Every pleading must be signed by the party or counselrepresenting him, stating in either case his addresswhich should not be a post office box.


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c) Verification and certification against forumshopping

Rule on verification

Except when otherwise specifically required by law orrule, pleadings need not be under oath, verified oraccompanied by affidavit

All initiatory pleadings shall be verified.

As a rule, responsive pleadings need not to beverified. Exceptions:

1. Answer to allegations of usury in a complaint2. Answer based on actionable document3. Answer to written interrogatories4. Answer to interrogatories to parties5. Answer to written request for admission6. Answer in Summary Proceedings7. Response in Small claims

How verification is made.

A pleading is verified by an affidavit that the affianthas read the pleading and that the allegations thereinare true and correct of his knowledge and belief.

A pleading required to be verified which contains averification based on "information and belief", orupon "knowledge, information and belief", or lacks aproper verification, shall be treated as an unsignedpleading.

A verification may be signed by the counsel orplaintiff.

Certification against Forum Shopping

The plaintiff or principal party shall certify under oathin the complaint or other initiatory pleading assertinga claim for relief, or in a sworn certification annexedthereto and simultaneously filed therewith:

(a) that he has not theretofore commencedany action or filed any claim involving thesame issues in any court, tribunal or quasi-judicial agency and, to the best of hisknowledge, no such other action or claim ispending therein;

(b) if there is such other pending action orclaim, a complete statement of the presentstatus thereof; and

(c) if he should thereafter learn that thesame or similar action or claim has been filedor is pending, he shall report that fact withinfive (5) days therefrom to the court whereinhis aforesaid complaint or initiatory pleadinghas been filed.

All initiatory pleadings need to have certificationagainst forum shopping.

As a rule, responsive pleadings need not to havecertification against forum shopping

Except:

1. Answer with Permissive Counterclaim2. Answer with Permissive CounterCounterclaim3. Answer with Cross-claim

Non-compliance with certification of Non-ForumShopping

Failure to comply with the foregoing requirementsshall not be curable by mere amendment of thecomplaint or other initiatory pleading but shall because for the dismissal of the case without prejudice,unless otherwise provided, upon motion and afterhearing.

The submission of a false certification or non-compliance with any of the undertakings therein shallconstitute indirect contempt of court, withoutprejudice to the corresponding administrative andcriminal actions.

Willful non-compliance

If the acts of the party or his counsel clearly constitutewillful and deliberate forum shopping, the same shallbe ground for summary dismissal with prejudice andshall constitute direct contempt, as well as a cause foradministrative sanctions

NOTE: Only the plaintiff can sign the certificationagainst forum shopping. The counsel cannot sign it.


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Exception: If the plaintiff is a corporation and thecounsel is duly authorized.

i. Requirements of a corporation executingthe verification/certification of non-forumshopping

It may be executed by properly authorizedpersons.

This person may be the lawyer of acorporation. As long as he is duly authorizedby the corporation and has personalknowledge of the facts required to bedisclosed in the certification against forumshopping, the certification may be signed bythe authorized lawyer. National Steel Corp.vs. CA, 388 SCRA 85

d) Effect of the signature of counsel in a pleading

Effect of signature of the counsel

The signature of counsel constitutes a certificate byhim that he has read the pleading; that to the best ofhis knowledge, information, and belief there is goodground to support it; and that it is not interposed fordelay.

Effect of unsigned pleading

An unsigned pleading produces no legal effect.However, the court may, in its discretion, allow suchdeficiency to be remedied if it shall appear that thesame was due to mere inadvertence and not intendedfor delay.

Deliberate filing of unisigned pleading

Counsel who deliberately files an unsigned pleading,or signs a pleading in violation of this Rule, or allegesscandalous or indecent matter therein, or failspromptly report to the court a change of his address,shall be subject to appropriate disciplinary action

3.5.4. Allegations in a pleading

In general

Every pleading shall contain in a methodical andlogical form, a plain, concise and direct statement ofthe ultimate facts on which the party pleading reliesfor his claim or defense, as the case may be, omittingthe statement of mere evidentiary facts. Sec. 1, Rule8.

a) Manner of making allegations

i. Condition precedent - In any pleading ageneral averment of the performance oroccurrence of all conditions precedent shallbe sufficient.

ii. Fraud, mistake, malice, intent,knowledge and other condition of the mind,judgments, official documents or acts - In allaverments of fraud or mistake thecircumstances constituting fraud or mistakemust be stated with particularity. Malice,intent, knowledge, or other condition of themind of a person may be averred generally

b) Pleading an actionable document

Actionable document – a document from which theaction or defense arises.

Whenever an action or defense is based upon awritten instrument or document,

1. The substance of such instrument ordocument shall be set forth in the pleading

2. The original or a copy thereof shall beattached to the pleading as an exhibit, whichshall be deemed to be a part of the pleading,or said copy may with like effect be set forthin the pleading.

How to contest such documents

1. The adverse party, under oath specificallydenies them, and

2. Sets forth what he claims to be the facts,


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Effect if failed to contest under oath

The genuineness and due execution of the instrumentshall be deemed admitted

Exception to the rule on under oath denial

But the requirement of an oath does not apply whenthe adverse party does not appear to be a party to theinstrument or when compliance with an order for aninspection of the original instrument is refused.

c) Specific denials

Absolute denial - A defendant must specify eachmaterial allegation of fact the truth of which he doesnot admit and, whenever practicable, shall set forththe substance of the matters upon which he relies tosupport his denial.

Partial denial - Where a defendant desires to denyonly a part of an averment, he shall specify so muchof it as is true and material and shall deny only theremainder.

Denial by disavowal of knowledge- Where adefendant is without knowledge or informationsufficient to form a belief as to the truth of a materialaverment made to the complaint, he shall so state,and this shall have the effect of a denial

Effect of failure to make specific denials

Material averment in the complaint, other than thoseas to the amount of unliquidated damages, shall bedeemed admitted when not specifically denied.

ii. When a specific denial requires an oath

1. Allegations of usury in a complaint torecover usurious interest are deemedadmitted if not denied under oath.

2. When the action or defense is founded onactionable documents

Striking out of pleading or matter contained therein.

Upon motion made by a party before responding to apleading or, if no responsive pleading is permitted bythese Rules, upon motion made by a party within

twenty (20) days after the service of the pleadingupon him, or upon the court's own initiative at anytime, the court may order any pleading to be strickenout or that any sham or false, redundant, immaterial,impertinent, or scandalous matter be stricken outtherefrom. Sec. 12, Rule 8

3.5.5. Effect of failure to plead

a) Failure to plead defenses and objections

Defenses and objections not pleaded either in amotion to dismiss or in the answer are deemedwaived.

This is also called omnibus motion rule.

Exceptions:

1. When it appears from the pleadings or theevidence on record that the court has nojurisdiction over the subject matter,

2. That there is another action pendingbetween the same parties for the samecause

3. That the action is barred by a prior judgmentor by statute of limitations, the court shalldismiss the claim.

b) Failure to plead a compulsory counterclaim andcross-claim

A compulsory counterclaim, or a cross-claim, not setup shall be barred

3.5.6. Default

a) When a declaration of default is proper

Requisites:

1. If the defending party fails to answer withinthe time allowed therefor,

2. Upon motion of the claiming party withnotice to the defending party,

3. Proof of such failure,


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Order of default Judgment by default

Order issued by thecourt on plaintiff’smotion and at the startof the proceedings, forfailure of the defendantto file his responsivepleading

A judgment renderedby the court based onthe presentation ofthe plaintiff’sevidence ex parteafter the defendanthas been declared indefault, and theaward shall notexceed the amount orbe different from thekind of prayer thatthe plaintiffcomplained as thefacts and evidence sowarrants.

b) Effect of an order of default

A party in default shall be entitled to notice ofsubsequent proceedings but not to take part in thetrial

c) Relief from an order of default

A party declared in default may at any time afternotice thereof and before judgment file:

1. A motion under oath to set aside the orderof default

2. Upon proper showing that his failure toanswer was due to fraud, accident, mistakeor excusable negligence

3. That he has a meritorious defense.

In such case, the order of default may be set aside onsuch terms and conditions as the judge may imposein the interest of justice.

d) Effect of a partial default

When a pleading asserting a claim states a commoncause 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 theevidence presented.

e) Extent of relief

A judgment rendered against a party in default shallnot exceed the amount or be different in kind fromthat prayed for nor award unliquidated damages.

f) Actions where default is not allowed

1. Action for annulment of marriage2. Declaration for nullity of marriage3. Action for legal separation

Course of action of the court in case of default inthese cases.

If the defending party in an action for annulment ordeclaration of nullity of marriage or for legalseparation fails to answer, the court shall order theprosecuting attorney to investigate whether or not acollusion between the parties exists, and if there is nocollusion, to intervene for the State in order to see toit that the evidence submitted is not fabricated.

Remedies:

After notice of order of default but before judgment:

a. Motion to lift order of default based onFAME and that he has meritorious defense

i. Granted – file an answerii. Denied – MR, then Rule 65.

After judgment but before it become final andexecutory

Motion for new trial

After judgment and already becomes final andexecutory

1. Petition for relief of judgment2. Action for nullity of judgment3. Petition for certiorari under Rule 65


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3.5.7. Filing and service of plea dings

a) Payment of docket fees

It is not simply the filing of the complaint orappropriate initiatory pleading but the payment ofthe prescribed docket fee that vests a trial court withjurisdiction over the subject matter or nature of theaction.

Any defect in the original pleading resulting inunderpayment of the docket fee cannot be cured byamendment.

The Rules now require that appellate docket andother lawful fees must be paid within the same periodfor taking an appeal.

b) Filing versus service of pleadings

Filing – act of presenting the pleading or other paperto the clerk of court

Service – act of providing a party with a copy of thepleading or paper concerned

c) Periods of filing of pleadings

Answer to thecomplaint

15 days from theservice of summonsunless different periodis fixed

Answer of a defendantforeign private juridicalentity

a. If he has residentagent

b. if he has no residentagent but it has anagent or officer withinthe PH

c. If no resident agent,agent or office withinPH, summons be madeon proper government

a. 15 days from theservice of summons tosuch agent

b. 15 days after theservice of summons tosaid agent or officer

c. 10 days from theservice of summons tothe corporation’s office

office which willforward the same byregistered ail

Service made bypublication

Within time specified inthe order granting theleave to serve summonsby publication whichshall not be less than 60days after service

Defendant is non-resident on whomextrajudicial service ismade

60 days from the theservice

Answer to the amendedcomplaint

a. Amendment as amatter of right

b. Amendment not amatter of right

a. 15days from the theservice of the amendedcomplaint

b. 10 days from thenotice of order ofadmitting the same

Answer to counter-claim or cross-claim

10 days from thereceipt of the servicethereof

Answer to the third-party complaint

Same period inanswering thecomplaint.

Reply 10 days from theservice of the pleadingresponded to

Answer tosupplementalcomplaint

10 days from the noticeof the order admittingthe supplementalcomplaint, unlessdifferent period is set bythe court.


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d) Manner of filing

How the pleadings, orders, motion, etc to be filed?

Personal filing

By presenting the original copies thereof, plainlyindicated as such, personally to the clerk of court andthe clerk of court shall endorse on the pleading thedate and hour of filing.

Filing by mail

By sending them by registered mail, and the date ofthe mailing of motions, pleadings, etc or payments ordeposits, as shown by the post office stamp on theenvelope or the registry receipt, shall be consideredthe date of their filing, payment or deposit in court.The envelope shall be attached to the records of thecase.

It does not matter when the court actually receivesthe mailed pleading. (Alama B. Russel vs TeofistaEbasan and Agapito Austria. )

e) Modes of service

i. Personal service

How personal service is being done?

1. By delivering personally a copy to thatparty or his counsel

2. By leaving it in his office in his clerk orwith a person having in charge thereof

3. If no person is found in his office, or hisoffice is not known, or he has no office,then by leaving the copy, between thehours of eight in the morning and six inthe evening, at the party’s or counsel’sresidence if known, with a person ofsufficient age and discretion thenresiding therein.

ii. Service by mail

If by registered mail, it shall be made bydepositing the copy in the office, in a sealedenvelope plainly addressed to the party ofhis counsel at his office, if known, otherwise

at his residence if known, with postage fullyprepaid, and with instructions that thepostmaster to return the mail to the senderafter 10 days if undelivered.

What is the rule if no registry service isavailable in the locality of either the senderor addressee?

The service can be made in ordinary mail.

iii. Substituted service

When to resort to substituted service

Service made if the pleadings, motions,notices, resolutions, orders and other paperscannot be made under the two precedingsections, the office and place of resident ofthe party or his counsel being unknown.

How it is being made:

Delivering the copy to the clerk of court, witha proof of failure both personal service andservice by mail.

The service is complete at the time of suchdelivery.

NOTE: It is the duty of the counsel to informthe court of his change of address. In theabsence of proper and adequate notice tothe court of change of his address, theservice of the order or resolution of a courtupon the parties must be made at the lastaddress of their counsel on record.

Service to the counsel of record eventhough deceased is valid.

It is the duty of the party-litigants to be incontact with their counsel from time to timein order to be informed of the progress oftheir case. It is likewise the duty of theparties to inform the court of the fact of theircounsel’s death. Their failure to do so meansthey have been negligent in the protectionof their cause.


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iv. Service of judgments, final orders orresolutions

How is service of judgment, final orders, orresolutions being made?

Either:

1. Personally2. Registered Mail3. When a party summoned by

publication has failed to appear inthe action, judgments, final ordersor resolutions against him shall beserved upon him also by publicationat the expense of the prevailingparty.

This rule does not permit the service ofnotice to file an answer by publication.Service by publication is only applicable injudgments, final orders, and resolutionswhen a party summoned by publicationfailed to appear.

After service, a judgment or order which isnot appealed nor made subject of a motionfor reconsideration within the prescribed 15day period attains finality.

v. Priorities in modes of service and filing

Whenever practicable, the service and filingof pleadings and other papers shall be donepersonally.

A resort to other modes must beaccompanied by a written explanation whythe service or filing was not done personally.

Except - with respect to papers emanatingfrom the court,

vi. When service is deemed complete

1. Personal service – upon actualdelivery

2. Ordinary mail – complete uponexpiration of 10 day after the

mailing, unless the court providesotherwise.

3. Registered mail – complete uponthe actual receipt by the addresseeas shown by the registry returncard, or five (5) days from the datehe received the first notice of thepost master, whichever date isearlier (also known as constructiveservice).

Insofar as constructive notice is concerned,there must be conclusive proof that a firstnotice was duly sent by the postmaster tothe addressee.

NOTE: The presumption of official duty is notapplicable here.

Best evidence of the completeness ofservice

The best evidence would be, certificationfrom the postmaster who should certify notonly that the notice was issued or sent butalso as to how, when and to whom thedelivery and receipt was made.

The mailman may also testify that the noticewas actually received.

vii. Proof of filing and service

How to prove the filing of the pleading?

Its existence in the record of the case.

If it is not in the record?

If claimed to have been filed personally, itshall be proved by the written or stampedacknowledgement of its filing by the clerk ofcourt on a copy of the same.

If filed by a registered mail, by the registryreceipt and by the affidavit of the personwho did the mailing, containing a fullstatement of the date and place ofdepositing the mail in the post office in asealed envelope addressed to court, with


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fully prepaid, and with instructions to thepostmaster to return the mail to the senderafter ten days if not delivered.

3.5.8. Amendment

Amendment - Amendment is an act of adding,changing, substituting or omitting something from apleading, or instrument.

How amendment is made

b. Adding or striking out an allegation, or thename of any party, or

c. By correcting a mistake in the name of aparty, or

d. Correcting a mistaken or inadequateallegation or description in any other respect

so that the actual merits the controversy mayspeedily be determined, without regard totechnicalities, and in the most expeditious andinexpensive manner.

a) Amendment as a matter of right

A party may amend his pleading once as a matter ofright at any time before a responsive pleading isserved or, in the case of a reply, at any time within ten(10) days after it is served

b) Amendments by leave of court

Substantial amendments may be made only uponleave of court.

But such leave may be refused if it appears to thecourt that the motion was made with intent to delay.

Requirements for amendment by leave of court

Orders of the court upon the matters provided in thissection shall be made upon motion filed in court, andafter notice to the adverse party, and an opportunityto be heard.

c) Formal amendment

It is an amendment for any defect in the designationof the parties and other clearly clerical ortypographical errors

How formal amendment is made

A defect in the designation of the parties and otherclearly clerical or typographical errors may besummarily corrected by the court at any stage of theaction, at its initiative or on motion, provided noprejudice is caused thereby to the adverse party

d) Amendments to conform to or authorizepresentation of evidence

The rule - When issues not raised by the pleadings aretried with the express or implied consent of theparties they shall be treated in all respects as if theyhad been raised in the pleadings.

How amendment is made

Such amendment of the pleadings as may benecessary to cause them to conform to the evidenceand to raise these issues may be made upon motionof any party at any time, even after judgment; butfailure to amend does not effect the result of the trialof these issues.

If evidence is objected to at the trial on the groundthat it is not within the issues made by the pleadings,the court may allow the pleadings to be amended andshall do so with liberality if the presentation of themerits of the action and the ends of substantial justicewill be subserved thereby. The court may grant acontinuance to enable the amendment to be made.

Amendment to confer jurisdiction

As a rule, this is not allowed. However, if theamendment is as a matter of right, that’s before aresponsive pleading is served, the party may amendthe pleading to confer jurisdiction.


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e) Difference from supplemental pleadings

Amendment ofPleadings

SupplementalPleadings

1. Refers to factsexisting at the timeof thecommencement ofthe action

2. Supersedes theoriginal pleading

3. May be madewithout leave ofcourt beforeresponsivepleading is served

4. When amendedpleading is filed, anew copy of theentire pleadingmust be filed

1. Refers to factsarising after thefiling of the originalpleading

2. Taken togetherwith the originalpleading

3. Always with leaveof court

4. A substantialpleading does notrequire the filing ofa new copy of theentire pleading

f) Effects of amended pleading

1. An amended pleading supersedes thepleading that it amends.

2. The admissions in the supersededpleadings may be received in evidenceagainst the pleader

3. Claims or defences alleged therein notincorporated in the amended pleadingshall be deemed waived

4. The admissions made in the originalpleading shall be treated as anextrajudicial admission which shall bealleged and proved

5. All ancillary orders to the originalpleading are lifted.

6. If substantial amendment, it requiresanother certification against forumshopping.

7. In case the complaint is amended, itrequires the service of summons if thedefendant has court has not yetacquired jurisdiction over his person.

3.6. SUMMONS

3.6.1. Nature and purpose of summons inrelation to actions in personam, in rem andquasi in rem

Summons - is a writ by which a defendant is notifiedof the action brought against him or her. In civilaction, service of summons means by which the courtacquires jurisdiction over the person of defendant.

Any judgment without such service, in the absence ofvalid waiver is null and void. This is so because thecourt does not acquire jurisdiction over the person ofthe defendant.

Two fold purpose of summons:

1. To acquire jurisdiction over the person of thedefendant

2. To notify the defendant that an action hasbeen commenced so that he may be giventhe opportunity to be heard in the claimagainst him.

In an action in personam,

The purpose of summons is not only to notify thedefendant of the action against him but also toacquire jurisdiction over his person.

In an action in rem or quasi in rem,

Jurisdiction over the defendant is not required andthe court acquires jurisdiction over an action as longas it acquires jurisdiction over the res.


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The purpose of summons in these actions is not theacquisition of jurisdiction over the defendant butmainly to satisfy the constitutional requirement ofdue process.

Knds of Summons

Original Summons – a writ issued by the clerk of thecourt upon receipt of the complaint and the paymentof the requisite docket and other lawful fees by whichthe defendant is notified of the action broughtagainst him and require him to file his responsivepleading within the period prescribed by the rules.

Alias Summons – a writ issued by the clerk of courtwhen the original summons has been lost of not dulyserved without the fault on the part of the plaintiff.

Contents of summons

Summons shall be directed to the defendant, signedby the clerk of court under seal and contain thefollowing:

1. The name of the court and the names of theparties to the action.

2. A direction that the defendant answerwithin the time fixed by these rules.

3. A notice that unless the defendant soanswers, the plaintiff will take judgment bydefault and may be granted the reliefapplied for,

4. A copy of the complaint and the order forappointment of guardian ad litem, if any,shall be attached to the original and eachcopy of the summons. Sec. 2, Rule 14.

Who can serve summons:

Summons issued by the clerk of court may be servedby:

1. The sheriff2. His deputy; or3. Other proper court officer; or

4. For justifiable reasons, by any suitableperson authorized by the court issuingsummons. Sec. 3, Rule 14.

Issuance of alias summons

When can he court issue alias summons?

An alias summons may be issued after the server hasserved a copy of the return to the plaintiff’s counselstating the reason for the failure of service, on thefollowing instances:

a. If a summon is returned without beingserved on any or all of the defendants, or

b. If the summons has been lost.

3.6.2. Voluntary appearance

The voluntary appearance of the defendant isequivalent to service of summons.

Voluntary appearance is a waiver of the necessity offormal notice.

The inclusion in a motion to dismiss of other groundsaside from lack of jurisdiction over the person of thedefendant shall not be deemed a voluntaryappearance. Sec. 20, Rule 14.

Exception to the voluntary submission to thejurisdiction of the court

Special appearance, Such that party who make specialappearance to challenge among others, the court’sjurisdiction over his person.

Therefore,

1. When the defendant objects precisely to thejurisdiction of the court, it cannot beconsidered a voluntary appearance.

2. When a party makes a appearance in courtbased on the ground of invalid service, it isnot deemed to be voluntary appearance.


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Filing of opposition amounts to voluntary appearance– considering that the defendant has participated inthe proceedings and he has given the opportunity tofile his opposition to the petition.

Filing a motion to set aside the order of the defaultand motion to admit answer is tantamount tosubmission to the authority of the court – b/c thepleader seeks affirmative relief.

Filing a motion to dismiss assailing the jurisdiction ofthe court over his person is not equivalent tovoluntary appearance.

NOTE: If there is no valid service of summons, amotion to dismiss can be filed on the ground of lackof jurisdiction over the person of the defending party.

3.6.3. Personal service

Whenever practicable, the summons shall be servedupon the person of the defendant by:

a. Handing a copy thereof to the defendant inperson, or

b. If he refuses to receive and sign for it, bytendering it to him.

NOTE: The personal service of summon is thepreferred mode, provided he is in the PH.

Reason – it ensures that he notice desired underconstitutional requirement of due process isaccomplished. Therefore, the personal service ofsummons must be the first option before substitutedservice in case of in personam and the defendant isin the PH.

The mode itself, and not just service of summon, isstrictly required.

3.6.4. Substituted service

When substituted service of summons be made

Substituted service may be resorted to only whenservice of summons within a reasonable time isimpossible – impossible prompt the service shouldappear in the return of service.

What are the requisites for valid substituted serviceof summons?

a. Impossibility of prompt personal serviceParty relying on substituted service or thesheriff must show that the defendant cannotbe served promptly or there is impossibilityof prompt service

b. Specific details in the returnThe sheriff must describe in the Return ofSummons the facts and circumstancessurrounding the attempted personal service

c. A person of a suitable age and discretion Thesheriff must determine if the person foundin the alleged dwelling or residence of thedefendant is of legal age,

d. Competent person in charge, who must havesufficient knowledge to understand theobligation of the defendant in summons, itsimportance, and the prejudicial effectsarising from inaction on summons.

How can substituted service of summons be effected

If, for justifiable causes, the defendant cannot beserved within a reasonable time as provided in thepreceding section, service may be effected by:

a. Leaving copies of the summons at thedefendant’s residence with some person ofsuitable age and discretion then residingtherein.

b. Leaving the copies at the defendant’s officeor regular place of business with somecompetent person in charge thereof.

Service in person of the defendant is the preferredmode of service.

If the defendant refuses the service, the server shouldnot resort to substituted server. He must TENDER itto him. Tendering is a part of the service in person.


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The sheriff or server must first exert all efforts toserve the defendant in person. If this effort fails, thensubstituted service can be made. This effort must bestated in the proof of service.

3.6.5. Constructive service (by publication)

As a rule, summons by publication is available only inactions in rem or quasi in rem.

It is not available as a means of acquiring jurisdictionover the person of the defendant in an action inpersonam.

Publication is notice to the whole world that theproceeding has for its object to bar indefinitely allwho might be minded to make an objection of anysort against the right sought to be established. It is thepublication of such notice that brings the whole worldas a party in the case and vests the court withjurisdiction to hear and decide it

a) Service upon a defendant where his identity isunknown or his whereabouts are unknown

How can the summons be served in case defendant’sidentity or whereabouts are unknown?

a. In action where defendant is designated asunknown owner, or

b. Whenever his whereabouts are unknown andcannot be ascertained by diligent inquiry,

Service may, by the leave of court, be affectedupon him by:

a. Publication in a newspaper of generalcirculation and in such places and for suchtime as the court may order.

How can a party ask for the leave of court regardingservice of summons?

It must be:

1. Motion in writing

2. Supported by affidavit of the plaintiff orsome person on his behalf, setting forth thegrounds for application.

Can it be allowed in case of action in personam?

Yes. Because Sec. 14 says “in any action”. Therefore,service of summons by publication is allowed in anaction in personam if the defendant’s whereabouts isunknown.

b) Service upon residents temporarily outside thePhilippines

Who are these?

Defendant who ordinarily resides within the PH butwho is temporarily out of it.

How summons made? – with leave of court, thesummons can be be effected out of the Philippines asin extra-territorial service of summons under Sec. 15,of Rule 14.

3.6.6. Extra-territorial service, when allowed

When extra-territorial service of summons beeffected?

a. When the defendant does not reside or isnot found in the PH, or the action affects thepersonal status of the plaintiff or relates to;or

b. The subject of which is, property within thePH, in which the defendant has or claims alien or interest, actual or contingent, orwhich the relief demanded consists, whollyor in part, in excluding the defendant fromany interest therein; or

c. The property of the defendant has beenattached within the PH,

The service may, by leave of court, be effected out ofthe PH.


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How can extra-territorial service of summons bedone?

a. By personal service as under Sec. 6, Rule 14.b. By publication in a newspaper of general

circulation in such places and for such timeas the court may order, in which case a copyof the summons and order of court shall besent by registered mail to the last knownaddress of the defendant.

c. In any other manner the court may deemedsufficient.

Any order granting such leave shall specify areasonable time, which shall not be less than sixty[60] days after the notice, within which the defendantmust answer.

NOTE: In in rem proceedings, summon is throughpublication. It is the notice to the whole world thatthe proceeding has for its object to bar indefinitely allwho might be minded to make an objection of anysort to the right sought to be established.

They are all deemed notified in the publication.

NOTE: In case of a non-resident defendant and thecase is action in personam, the court cannot acquirejurisdiction. Unless, the person voluntarily appears incourt.

But if it is in rem, then the jurisdiction over the personof defendant is not required, and publicationvalidated the proceedings.

If the defendant is a PH resident, service of summonsmay, by leave of court, be effected out of Philippines(Rule 14, Sec. 15). NOTE: here, the defendant must bea citizen of the Philippines otherwise, the PH courtcannot acquire jurisdiction.

3.6.7. Service upon prisoners and minors

To whom the summons shall be served in case ofprisoners

Upon him by the officer having the management ofsuch jail or institution who is deemed deputized as aspecial sheriff for the said purpose. Sec. 9, Rule 14.

To whom summons shall be served in case of a minoror incompetent?

a. Upon him by personally and on his legalguardian if he has one,

b. If none, upon his guardian ad litem whoseappointment shall be applied for by theplaintiff

c. In the case of a minor, service may also bemade on his father or mother. Sec. 10, Rule14.

Summons to Domestic Juridical Entity

When defendant is a corporation, partnership, orassociation organized under laws of PH with juridicialpersonality, service may be made on the following:

a. Presidentb. Managing partnerc. General partnerd. Corporate secretarye. Treasurerf. In-house counsel

Otherwise, the service is insufficient.

The enumerations are exclusive.

What is the remedy of the plaintiff in case ofsummons cannot be made to officers of thecorporation in action in personam?

The remedy of the plaintiff in case of failure to servethe summons to the officers of a domesticcorporation in an action in personam is to amend hiscomplaint and asked for the issuance of writ ofpreliminary attachment thereby converting theaction into an action quasi in rem where service ofsummons by publication is allowed in order to actionjurisdiction over the res and the acquisition ofjurisdiction is merely for observance of due process.


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3.6.8. Proof of service

It must be in writing.

Contents of the proof of service of summons:

1. Manner, place and the date of service2. Specify any papers which have been served

with the process3. Name of the person who received the same4. It shall be sworn to when made by a person

other than the sheriff or his deputy

Proof of the service of summons by publication

1. Affidavit of the printer, his foreman orprincipal clerk or of the editor, business oradvertising manager, to which affidavit acopy of the publications shall be attached,

2. By an affidavit showing the deposit of acopy of the summons and order forpublication in the post office, postage,prepaid, directed to the defendant byregistered mail to his last known address.

3.7. MOTIONS

3.7.1. Motions in general

a) Definition of a motion

Motion - A motion is an application for relief otherthan by a pleading.

A party’s request, written or oral, to the court for anorder or other action. It shall include an informalwritten request to the court, such as a letters. Ruleson Small Claims

b) Motions versus pleadings

Motion Pleadings

A motion is anapplication for relief

Pleadings are thewritten statements ofthe respective claims

other than by apleading.

A Motion is no apleading

and defenses of theparties submitted tothe court forappropriate judgment

Motions must be in writings

All motions shall be in writing except those made inopen court or in the course of a hearing or trial. Sec.2, Rule 15.

c) Contents and forms of motions

A motion shall state:

1. the relief sought to be obtained and2. the grounds upon which it is based, and3. if required by these Rules or necessary to

prove facts alleged therein, shall beaccompanied by supporting affidavits andother papers.

d) Notice of hearing and hearing of motions

Except for motions which the court may act uponwithout prejudicing the rights of the adverse party,every written motion shall be set for hearing by theapplicant.

Three day notice rule

Every written motion required to be heard and thenotice of the hearing thereof shall be served in such amanner as to ensure its receipt by the other party atleast three (3) days before the date of hearing, unlessthe court for good cause sets the hearing on shorternotice.

Ten day notice rule

The notice of hearing shall be addressed to all partiesconcerned, and shall specify the time and date of thehearing which must not be later than ten (10) daysafter the filing of the motion

Proof of service is necessary

No written motion set for hearing shall be acted uponby the court without proof of service thereof.


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e) Omnibus motion rule

Subject to the provisions of section 1 of Rule 9, amotion attacking a pleading, order, judgment, orproceeding shall include all objections then available,and all objections not so included shall be deemedwaived

Exceptions to the omnibus motion rule:

1. Lack of jurisdiction over the subject matter2. Litis pendentia3. Res judicata4. Statute of limitations

f) Litigated and ex parte motions

Litigated - a motion which is made with notice to theadverse party to give an opportunity to oppose.

Ex parte - A motion made without the presence or anotification to the other party because the questiongenerally presented is not debatable.

Other kinds of motions

Non litigated – a motion where notice and hearingare not required.

Special – a motion addressed to the sound discretionof the court.

Written – motions not made in open court. This is thegeneral rule.

Oral – a motion made in open court.

Motion of course – the applicant is entitled to therelief sought subject to the discretion of the court.

g) Pro-forma motions

A motion that fails to comply with the requirementsof the rule is a pro-forma motion. The same producesno legal effect and the court has no authority to actupon it.

3.7.2. Motions for bill of particulars

Bill of Particulars – a more definite statement of factand material allegations in the pleadings.

Motion for bill of particulars – application before thecourt for a more definite statement of fact andmaterial allegations in the pleadings.

NOTE: Failure to allege fraud does not constituteground for dismissal because it can be cured in a billof particulars

Bill of particulars inCivil Cases Rule 12

Bill of particulars inCriminal Cases Rule 116

1. Must be filedbefore responsivepleading, or 10days in case ofreply

2. Directed againstthe pleading

3. The moving partymay file hisresponsivepleading withinthe period he isentitled to but inno case less thanfive days, unlessthe denial istainted with graveabuse ofdiscretion, hencePetition forCertiorari is theremedy.

1. Must be filed beforearraignment

2. Directed against thecriminal complaintor information

3. The accused mayproceed with thearraignment andenter his plea,unless the denial istainted with graveabuse of discretion,hence Petition forCertiorari is theremedy.

a) Purpose and when applied for

Purpose

The purpose of the motion is to seek an order fromthe court directing the pleader to submit a bill ofparticulars which avers matters with sufficient


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definitiveness or particularity to enable the movant toprepare his responsive pleading.

When a party can apply for bill of particulars

Before a responding to a pleading. Therefore, withinthe time required to file a responsive pleading andbefore a responsive pleading is filed by him.

In a reply, it must be within 10 days from the servicethereof.

The motion for bill of particulars should contain:

1. The defects complained of2. Paragraphs wherein they are contain3. Details desired

b) Actions of the court

Upon filing, the clerk of court must immediately bringit to the attention of the court, in which the courtmay:

1. Deny2. Grant it outright3. Allow the parties the opportunity to be

heard

When to comply if the motion is granted?

1. Within 10 days from the notice of order2. Unless a different period if fixed by the court

It may be in whole or in part.

How to file bill of particulars?

1. By separate pleading2. Amended pleading,

c) Compliance with the order and effect ofnoncompliance

Effects of non-compliance of insufficient compliance

1. Order the striking out of the pleading2. Order the striking the portions to which the

order directed

3. Make such other order as it deemed just

d) Effect on the period to file a responsive pleading

Effect of filing motion for bill of particulars

The filing of the motion of bill of particulars stays thefilling of the answer or responsive pleading.

Effect of service of a more definite statement or thedenial of the motion

The moving party may – file a responsive pleadingwithin the period to which he was entitled at the timeof filing in his motion, which shall not be less than 5days in any event.

In what proceedings Bill of Particualrs is prohibited?

a. Prohibited in intra-corproate controversies

Bill of particulars is prohibited in Intra-CorporateControversies under Interim Rules of Procedure onIntra-Corporate Controversies.

It is therefore essential for the complaint to show onits face what are claimed to be fraudulent corporateacts if the complainant wishes to invoke the court’sspecial jurisdiction. Reason – fraud in intra-corporatecontroversies must be based on “devises andschemes employed by, or any act, the board ofdirectors, business associates, officers or partners,amounting to fraud o misrepresentation which maybe detrimental to the interest of public and/or of thestock holders, partners, or members of anycorporation partnership, or association.

The act of fraud and misrepresentation complained inthe pleading of becomes a criterion in determiningwhether the complaint on its fact has merits, orwithin the jurisdiction of special commercial court, ormerely a nuisance suit.

b. Prohibited in Summary Procedure – expresslyprovided in Sec. 19, b.

c. Prohibited in Small Claim Cases – Sec. 14, b.d. Prohibited in Environmental Cases – Rule 2, Sec.

2, b.


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3.7.3. Motion to dismiss

Motion to dismiss – an application for the dismissalof the action based on the grounds set forth in theSec. 1, Rule 16.

It is filed answering to a complaint or pleading.

a) Grounds

A motion to dismiss may be made on any of thefollowing grounds:

a. That the court has no jurisdiction over theperson of the defending party;

b. That the court has no jurisdiction over thesubject 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 samecause;

f. That the cause of action is barred by a priorjudgment or by the statute of limitations;

g. That the pleading asserting the claim statesno cause of action;

h. That the claim or demand set forth in theplaintiff's pleading has been paid, waived,abandoned, or otherwise extinguished;

i. That the claim on which the action isfounded is enforceable under the provisionsof the statute of frauds; and

j. That a condition precedent for filing theclaim has not been complied with.

b) Resolution of motion

The hearing, the court may dismiss the action orclaim, deny the motion, or order the amendment ofthe pleading.

The court shall not defer the resolution of the motionfor the reason that the ground relied upon is notindubitable.

In every case, the resolution shall state clearly anddistinctly the reasons therefor.

c) Remedies of plaintiff when the complaint isdismissed

If without prejudice, the plaintiff may refile theaction.

If with prejudice, Appeal from the order of dismissal.

If with prejudice, and with grave abuse of discretion– Petition for certiorari.

d) Remedies of the defendant when the motion isdenied

a. File an answer with the reglementaryperiod, If the motion is denied, the movantshall file his answer within the balance of theperiod prescribed by Rule 11 to which he wasentitled at the time of serving his motion,but not less than five (5) days in any event,computed from his receipt of the notice ofthe denial. If the pleading is ordered to beamended, he shall file his answer within theperiod prescribed by Rule 11 counted fromservice of the amended pleading, unless thecourt provides a longer period. Sec. 4, Rule16.

b. If the denial is with grave abuse ofdiscretion, petition for certiorari under Rule65.

c. File an answer, proceed to trial, and awaitjudgment before interposing an appeal

e) Effect of dismissal of complaint on certain grounds

Subject to the right of appeal, an order granting amotion to dismiss based on paragraphs (f), (h) and (i)of section 1 hereof shall bar the refiling of the sameaction or claim.

Where there is a bar for refiling the same action orclaim

f. That the cause of action is barred by a priorjudgment or by the statute of limitations;

h. That the claim or demand set forth in theplaintiff's pleading has been paid, waived,abandoned, or otherwise extinguished;

i. That the claim on which the action isfounded is enforceable under the provisionsof the statute of frauds


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Therefore, dismissal based on other grounds wouldtantamount to dismissal without prejudice, and theplaintiff can still refile the case.

f) When grounds pleaded as affirmative defenses

Remedy is no motion to dismiss has been filed

No motion to dismiss has been filed, any of thegrounds for dismissal provided for in this Rule may bepleaded as an affirmative defense in the answer and,in the discretion of the court, a preliminary hearingmay be had thereon as if a motion to dismiss hadbeen filed.

The dismissal of the complaint under this section shallbe without prejudice to the prosecution in the sameor separate action of a counterclaim pleaded in theanswer.

g) Bar by dismissal

Res judicata as a ground for dismissal is based on twogrounds, namely:

a. public policy and necessity, which makes it to theinterest of the State that there should be an endto litigation (republicae ut sit litium); and

b. the hardship on the individual of being vexedtwice for the same cause (nemo debet bis vexariet eadem causa).

Two concepts of res judicata

1. Bar by prior judgment2. Conclusiveness of judgment

Requisites for barred by prior judgment-

1. The former judgment or order must be final2. It must be a judgment on the merits3. It must have been rendered by a court

having jurisdiction over the subject matterand the parties

4. There must be between the first and secondactions, identity of parties, subject mattersand cause of actions.

If as between the two cases, only the identities of theparties can be shown, but not identical cause ofaction, the res judicata as conclusiveness ofjudgment applies.

Conclusiveness of Judgment

Where there is identity of parties in the first andsecond cases, but no identity of causes of action thefirst judgment is conclusive only as to those mattersactually and directly controverted and determinednot as to matters merely involved therein. This is theconcept of res judicata known as conclusiveness ofjudgment.

Effect – the binding effect and enforceability of thatearlier dictum can no longer be re-litigated in a latersince the issue has already been resolved and finallylaid to rest in the earlier case.

h) Distinguished from demurrer to evidence underRule 33

Motion to dismiss Demurrer to evidence

Filed before filing ananswer to a complaintor pleading

Grounds set forth inSec. 1, Rule 16.

If denied, remedy is tofile an answer, and waitfor the case to beterminated and allegeon appeal the groundsfor motion to dismiss.

Made after the plaintiffrests its case (afterpresentation ofevidence)

Ground is that theplaintiff is not entitledto relief

If denied, presentevidence.


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3.8. DISMISSAL OF ACTIONS

3.8.1. Dismissal upon notice by plaintiff; two-dismissal rule

A complaint may be dismissed by the plaintiff by filinga notice of dismissal at any time before service of theanswer or of a motion for summary judgment.

When to be made:

1. Any time before service of the answer2. Motion for summary judgment3. If there is none, before the introduction of

evidence at the trial or hearing.

Upon such notice being filed, the court shall issue anorder confirming the dismissal. Unless otherwisestated in the notice, the dismissal is withoutprejudice. Sec. 4, Rule 17.

Two dismissal rule

A notice operates as an adjudication upon the meritswhen filed by a plaintiff who has once dismissed in acompetent court an action based on or including thesame claim.

3.8.2. Dismissal upon motion by plaintiff; effecton existing counterclaim

Except as provided in the preceding section, acomplaint shall not be dismissed at the plaintiff'sinstance save upon approval of the court and uponsuch terms and conditions as the court deems proper.

Effect of the counter-claim

If a counterclaim has been pleaded by a defendantprior to the service upon him of the plaintiffs motionfor dismissal, the dismissal shall be limited to thecomplaint.

The dismissal shall be without prejudice to the rightof the defendant to prosecute his counterclaim in aseparate action unless within fifteen (15) days fromnotice of the motion he manifests his preference tohave his counterclaim resolved in the same action.Unless otherwise specified in the order, a dismissalunder this paragraph shall be without prejudice.

Requirement for dismissal upon motion of theplaintiff in class suit

A class suit shall not be dismissed or compromisedwithout the approval of the court.

3.8.3. Dismissal due to the fault of plaintiff

When there can be dismissal due to the fault of theplaintiff

If, for no justifiable cause,

1. The plaintiff fails to appear on the date of thepresentation of his evidence in chief on thecomplaint, or

2. The plaintiff fails to prosecute his action foran unreasonable length of time, or

3. The plaintiff fails to comply with these Rulesor any order of the court

How the dismissal can be made

The complaint may be dismissed upon motion of thedefendant or upon the court's own motion, withoutprejudice to the right of the defendant to prosecutehis counterclaim in the same or in a separate action.

Effect of the dismissal under this Rule

This dismissal shall have the effect of an adjudicationupon the merits, unless otherwise declared by thecourt

3.8.4. Dismissal of counterclaim, cross-claim orthird-party complaint

The provisions of this Rule shall apply to the dismissalof any counterclaim, cross-claim, or third-partycomplaint.

A voluntary dismissal by the claimant by notice as insection 1 of this Rule, shall be made before aresponsive pleading or a motion for summaryjudgment is served or, if there is none, before theintroduction of evidence at the trial or hearing.


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3.9. PRE-TRIAL (Rule 18)

3.9.1. Concept of pre-trial

Pre-trial – A procedural device used prior to trial tonarrow issues to be tried, and to secure stipulationsas to matters and evidence to be heard, and to takeall other steps necessary to and in the disposition ofthe case.

When to Conduct

After the last pleading has been served and filed. Itshall be the duty of the plaintiff to promptly move exparte that the case be set on pre-trial.

If the plaintiff fails to move ex parte to set the case onpre-trial, the clerk of court shall set the same.

3.9.2. Nature and purpose

A pre-trial is mandatory.

Purposes of Pre-trial

1. The possibility of an amicable settlement orof a submission to alternative modes ofdispute resolution;

2. The simplification of the issues;3. The necessity or desirability of amendments

to the pleadings;4. The possibility of obtaining stipulations or

admissions of facts and of documents toavoid unnecessary proof;

5. The limitation of the number of witnesses;6. The advisability of a preliminary reference of

issues to a commissioner;7. The propriety of rendering judgment on the

pleadings, or summary judgment, or ofdismissing the action should a valid groundtherefor be found to exist;

8. The advisability or necessity of suspendingthe proceedings; and

9. Such other matters as may aid in the promptdisposition of the action.

Court annexed mediation

Court annexed mediation (CAM) is a part of pre-trialand now mandatory. Once agreed, it will besubmitted to the court’s approval. Mediators areaccredited and trained from Philippine MediationCenter.

3.9.3. Notice of pre-trial

Rule in notice of pre-trial conference

1. The notice shall be served on counsel2. Or to the party is he has no counsel

The counsel is then charged with eth duty of notifyingthe party represented by him.

3.9.4. Appearance of parties; effect of failure toappear

It shall be the duty of the parties and their counsel toappear at the pre-trial.

How can a party be excused from appearing in thepre-trial

1. Valid cause is shown therefore,2. If a representative shall appear in his behalf,

he shall be fully authorized in writing to:a. Enter amicable settlementb. Submit to alternative modes of dispute

resolutionc. Enter into stipulation or admissions of

facts and documents.

Effects of failure to appear in pre-trial

If plaintiff fails to appear,

1. He will be declared non-suited2. It will cause dismissal of the action,

a. with prejudice,b. unless provided by the court.

The dismissal is without prejudice to the counterclaim raised by the defendant which can beprosecuted in another case.


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Since the dismissal is with prejudice and it hasadjudication on merits, the remedy is appeal. If thecourt provided that it shall be not with prejudice, thencertiorari is the remedy.

If defendant fails to appear,

1. Allow the plaintiff to present evidence ex-parte

2. Allow the court render judgment on basisthereof, in this case, there is no limitation onextend of award or relief prayed.

Possible remedy of the defendant

a. Before judgment – since it is interlocutoryorder, certiorari under R 65

b. After judgment but before finality – MR orNew Trial based on FAME, if denied, appealon the judgment, unless tainted with GADthen certiorari is available.

c. After finality of judgment – Petition forrelief of judgment, Rule 38, Motion forannulment of judgment if the MR or NT isnot available, petition for certiorari,collateral attack.

3.9.5. Pre-trial brief; effect of failure to file

When filed

In such manner as to insure their receipt at least 3days before the date of pre-trial.

Contents of pre-trial brief

1. A statement of their willingness to enter intoamicable settlement or alternative modes ofdispute resolution, indicating the desiredterms thereof;

2. A summary of admitted facts and proposedstipulation of facts;

3. The issues to be tried or resolved;4. The documents or exhibits to be presented

stating the purpose thereof;5. A manifestation of their having availed or

their intention to avail themselves of

discovery procedures or referral tocommissioners; and

6. The number and names of the witnesses,and the substance of their respectivetestimonies.

What is the effect of non-filing?

Same effect of failure to appear. Therefore, a plaintiffmay be declared non-suited and the case bedismissed with prejudice. In case of defendant, therewill be an ex parte presentation of evidence andjudgment will be rendered based on the same.

Contents of records of pre-trial

1. Recite in detail the matters taken up2. Action taken3. Amendments allowed to the pleadings4. Agreements or admissions made by the

parties as to any of the matters considered.5. Should the action proceed to trial, the order

shall, explicitly define and limit the issues tobe tried.

6. The contents of the order shall control thesubsequent course of the action, unlessmodified before trial to prevent manifestinjustice

May pre-trial order be amended or modified?

Yes. The contents or order shall control thesubsequent course of action, unless modified beforetiral to prevent manifest of justice.

3.9.6. Distinction between pre-trial in civil caseand pre-trial in criminal case

Civil Pre-Trial Criminal Pre-Trial

1. The plaintiff moveex parte to set thecase for pre-trial

1. The court orderspre-trial, nomotion is required


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2. Filed after the lastpleading have beenserved and filed

3. There is apossibility ofamicablesettlement

4. Agreements andadmissions in pre-trial need not besigned by theparties and theircounsel. It isimplied.

5. In case of non-appearance ofplaintiff, it willcause dismissalwith prejudice, if itis the defendant,there will be ex-parte presentationof evidence.

2. Filed 30 days afterthe court acquiredjurisdiction

3. No possibility ofamicablesettlement

4. Agreements andadmissions mustbe signed by theparties andcounsel.

5. In case of non-appearance,sanctions areimposed againstthe counsel ofaccused andprosecutor

3.9.7. Alternative Dispute Resolution (ADR)

a) Special Rules of Court on ADR (A.M. No. 07-11-08-SC)

Cases that are mediatable-

1. All civil cases2. Settlement of Estate3. Cases coginizable by Lupon Tagapamayapa4. Cases governed by Summary Procedure5. Civil aspect of criminal negligence under RPC6. Family law issues, such as support, custody,

visitation, guardianship and propertymatters

7. Civil aspect of BP22, simple theft, libel andestafa.

Matters cannot be compromised –

1. Civil status of persons2. Validity of marriage3. Legal separation4. Grounds for legal separation5. Future support6. Legitime7. Jurisdiction

Lawyers are allowed to attend in mediation and theirrole is that of an adviser, consultant or free legal aidcounselor for indigent litigants.

Alternative Dispute Resolution Act

Sec. 24 states that RTC does not have jurisdiction overdisputes that are properly subject of arbitrationpursuant to arbitration clause, and mandates thereferral to arbitration.

Uncitral Law

Sec. 35 states that foreign arbitral awards must beconfirmed by the RTC to be enforceable.

NOTE: Parties are bound by delimitation of issuesduring the pre trial because they themselves agreedto the same. Munasque vs CA

3.10. INTERVENTION

Intervention - a proceeding whereby a party, withleave of court, is allowed to intervene in an actionwhenever he has a legal interest in the matter inlitigation, or in the success of either of the parties, oran interest against both, or is so situated as to beadversely affected by the distribution or otherdisposition of property in the custody of the court orof an officer thereof.

3.10.1. Requisites for intervention

Requisites:

1. The party has a legal interest in the matter inlitigation, or in the success of either of theparties, or an interest against both, or is sosituated as to be adversely affected by a


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distribution or other disposition of propertyin the custody of the court or of an officerthereof

2. With leave of court3. The same is not intended for delay or

prejudice the adjudication of the rights ofthe original parties

3.10.2. Time to intervene

The motion to intervene may be filed at any timebefore rendition of judgment by the trial court. A copyof the pleading-in-intervention shall be attached tothe motion and served on the original parties.

The intervenor shall file:

1. A complaint-in-intervention if he asserts aclaim against either or all of the originalparties, or

2. An answer-in-intervention if he unites withthe defending party in resisting a claimagainst the latter.

The answer to the complaint-in-intervention shall befiled within fifteen (15) days from notice of the orderadmitting the same, unless a different period is fixedby the court

3.10.3. Remedy for the denial of motion tointervene

The remedy in case of denial is to file a separateaction, or appeal, or mandamus if the denial is taintedwith grave abuse of discretion, petition for certiorariunder Rule 65 if there are no other plain, speedy, andadequate remedy.

3.11. SUBPOENA (Rule 22)

Subpoena – a coercive process issued by the court orjudge stating the name of the court and the title ofthe action for investigation, direct to a person andrequiring him to attend the hearing on the trial of anaction, at the state date, time and place.

Kinds of Subpoena-

1. Subpoena ad testificandum2. Subpoena duces tecum.

Who may issue subpoena?

1. The court before whom the witness isrequired to attend

2. The court of the place where the depositionis to be taken

3. The officer or body authorized by law to doso in connection with investigationsconducted by the said officer or body

4. Any justice of the SC or CA in any case orinvestigation pending within the PH

Subpoena to a prisoner

When application for a subpoena to a prisoner ismade, the judge or officer shall examine and studycarefully such application to determine whether thesame is made for a valid purpose.

Limitation in issuance of subpoena - No prisonersentenced to death, reclusion perpetua or lifeimprisonment and who is confined in any penalinstitution shall be brought outside the said penalinstitution for appearance or attendance in any courtunless authorized by the Supreme Court

3.11.1. Subpoena duces tecum

A subpoena for the taking of his deposition. It mayalso require him to bring with him any books,documents, or other things under his control

3.11.2. Subpoena ad testificandum

A subpoena directed to a person requiring him toattend and to testify at the hearing or the trial of anaction, or at any investigation conducted bycompetent authority


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3.11.3. Service of subpoena

How subpoena is served?

Service of a subpoena shall be made in the samemanner as personal or substituted service ofsummons.

What is the duty of the person serving thesubpoena?

1. The original shall be exhibited2. A copy thereof delivered to the person on

whom it is served,3. Tendering to him the fees for one day's

attendance and the kilometrage allowed bythese Rules, except that, when a subpoena isissued by or on behalf of the Republic of thePhilippines or an officer or agency thereof,the tender need not be made.

What is the manner of service?

The service must be made so as to allow the witnessa reasonable time for preparation and travel to theplace of attendance. If the subpoena is duces tecum,the reasonable cost of producing the books,documents or things demanded shall also betendered

What is the effect if person is in court?

A person present in court before a judicial officer maybe required to testify as if he were in attendance upona subpoena is sued by such court or officer. Sec. 7,Rule 22.

3.11.4. Compelling attendance of witnesses;contempt

Courses of action of the court in case of failure of thewitness to attend:

Upon proof of the service thereof and of the failure ofthe witness, may-

1. May issue a warrant to the sheriff of theprovince, or his deputy, to arrest the witnessand bring him before the court or officerwhere his attendance is required, and

2. The cost of such warrant and seizure of suchwitness shall be paid by the witness if thecourt issuing it shall determine that hisfailure to answer the subpoena was willfuland without just excuse. Sec. 8, Rule 22.

3.11.5. Quashing of subpoena

When to file

Upon motion promptly made, in any event, at orbefore the time specified therein. Sec. 4, Rule 22.

Grounds for quashing subpoena duces tecum:

1. If it is unreasonable and oppressive2. Relevancy of the books, documents or things

does not appear3. If the person in whose behalf the supoeana

is issued fails to advance the reasonable costof production thereof.

Grounds for quashing subpoena ad testificandum:

1. The witness is not bound thereby2. In either case, the subpoena may be

quashed on the ground that witness fees andkilometrage allowed by these Rules were nottendered when subpoena is served. Sec. 4,Rule 22.


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3.12. MODES OF DISCOVERY

Modes of discovery – It is a device to obtaininformation about relevant matters on case formadverse party in preparation of pre-trial.

Purposes of modes of discovery-

1. Used as device to narrow and clarify basicissues between the parties

2. Used as device for ascertaining facts relativeto the issues between the parties

3. To obtain full knowledge of the issues andfacts of the case

4. To avoid perjury and detection of false andfraudulent claims and defenses

5. To expedite the proceedings6. To simplify the issues of the case

Nature of modes of discovery

It rests upon the sound discretion of the court. In thesame vein, their sanctions for failure to comply alsorest on sound discretion of the court.

What are the modes of discoveries under the Rules?

1. Deposition pending action - Rule 232. Deposition before action or pending appeal -

Rule 243. Interrogatories to parties - Rule 254. Admission by adverse party - Rule 265. Production or inspection of documents or

things – Rule 276. Physical and mental examination of persons

- Rule 28

Kinds of deposition

a. As to nature –1. Deposition de bene esse – testimony of

a witness or party pending action2. Deposition in perpetuam rei memoriam

– testimony of a witness or a partybefore action

b. As to maker of taking –1. Deposition by oral examination2. Deposition by written interrogatories

Purpose of taking depositions –

1. Assist the parties ascertaining the truthin checking and preventing injury

2. Provide an effective means of detectingand exposing false, fraudulent claimsand defenses

3. Make available in a simple, convenientand inexpensive way, facts whichotherwise could not be proved exceptwith greater difficulty

4. Educate the parties in advance of trial sto real value of their claims anddefenses thereby encouragingsettlement

5. Expedite litigation6. Prevent delay7. Simplify and narrow down issues8. Expedite both preparation and trial

3.12.1. Depositions pending action (Rule 23);depositions before action or pending appeal(Rule 24)

a) Meaning of deposition

Deposition defined – it it’s the taking of thetestimony of any person, upon oral or writteninterrogatories whether a part or not, at instance ofany party.

Depositions pending action; how made

By leave of court, after the court acquired jurisdictionover the defend ant or property of the subject matter.

Without such leave, after an answer has been served.Sec. 1, Rule 23.


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Depositions before action; how made

Any person who desires to perpetuate his owntestimony or that of another person may file petitionregarding:

1. Any matter that may be cognizable before inany court of PH

2. In court of the place of residence of expectedadverse party. Sec. 1, Rule 24

Deposition pending appeal; how made

If an appeal has been taken from a judgment of acourt, including the Court of Appeals in proper cases,or before the taking of an appeal if the time thereforhas not expired, the court in which the judgment wasrendered may:

1. Allow the taking of depositions of witnessesto perpetuate their testimony for in theevent of further proceedings in the saidcourt. Sec. 7, Rule 24.

Primary function of modes of discovery – is tosupplement the pleadings for the purpose ofdisclosing the real points of dispute between theparties and affording an adequate factual basis duringthe preparation of the trial.

b) Uses; scope of examination

Uses of depositions

At the trial or upon the hearing of a motion or aninterlocutory proceeding, any part or all of adeposition, so far as admissible under the rules ofevidence, may be used against any party who waspresent or represented at the taking of the depositionor who had due notice thereof, in accordance withany one of the following provisions;

(a) Any deposition may be used by any partyfor the purpose of contradicting orimpeaching the testimony of deponent as awitness;

(b) The deposition of a party or of any onewho at the time of taking the deposition wasan officer, director, or managing agent of apublic or private corporation, partnership, orassociation which is a party may be used byan adverse party for any purpose;

(c) The deposition of a witness, whether ornot a party, may be used by any party for anypurpose if the court finds: (1) that thewitness is dead, or (2) that the witnessresides at a distance more than one hundred(100) kilometers from the place of trial orhearing, or is out of the Philippines, unless itappears that his absence was procured bythe party offering the deposition, or (3) thatthe witness is unable to attend or testifybecause of age, sickness, infirmity, orimprisonment, or (4) that the party offeringthe deposition has been unable to procurethe attendance of the witness by subpoena;or (5) upon application and notice, that suchexceptional circumstances exist as to make itdesirable, in the interest of justice and withdue regard to the importance of presentingthe testimony of witnesses orally in opencourt, to allow the deposition to be used;and

(d) If only part of a deposition is offered in evidenceby a party, the adverse party may require him tointroduce all of it which is relevant to the partintroduced, and any party may introduce any otherparts.

Scope of depositions

Unless otherwise ordered by the court as provided bysection 16 or 18 of this Rule, the deponent may beexamined regarding any matter, not privileged, whichis relevant to the subject of the pending action,whether relating to the claim or defense of any otherparty, including the existence, description, nature,custody, condition, and location of any books,documents, or other tangible things and the identityand location of persons having knowledge of relevantfacts.


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c) When may objections to admissibility be made

Subject to the provisions of section 29 of this Rule,objection may be made at the trial or hearing, toreceiving in evidence any deposition or part thereoffor any reason which would require the exclusion ofthe evidence if the witness were then present andtestifying

d) When may taking of deposition be terminated orits scope limited

At any time during the taking of the deposition, onmotion or petition of any party or of the deponent,and upon a showing that the examination is beingconducted:

1. in bad faith or2. in such manner as unreasonably to annoy,

embarrass, or oppress the deponent orparty,

The court in which the action is pending or theRegional Trial Court of the place where the depositionis being taken may order the officer conducting theexamination to cease forthwith from taking thedeposition, or may limit the scope and manner of thetaking of the deposition, as provided in section 16 ofthis Rule.

If the order made terminates the examination, it shallbe resumed thereafter only upon the order of thecourt in which the action is pending. Upon demand ofthe objecting party or deponent, the taking of thedeposition shall be suspended for the time necessaryto make a notice for an order. In granting or refusingsuch order, the court may impose upon either partyor upon the witness the requirement to pay suchcosts or expenses as the court may deem reasonable.

Commission – an instrument issued by a court ofjustice, or other competence tribunal to authorize aperson to take depositions, or do any other act byauthority of such court or tribunal.

Letter rogatory – instrument whereby a foreign courtis informed of pendency of a case and the name of thewitness, and Is requested to cause their depositionsto be taken in due course of law for furtherance of

justice, with an offer on the part of the court makingthe request, to do the like for another, in a similarcase.

Commission Letter Rogatory

1. An instrumentissued by a court ofjustice, or othercompetencetribunal toauthorize a personto take depositions,or do any other actby authority of suchcourt or tribunal.

2. Addressed to non-judicial foreignofficer who willtake deposition

3. Rules applicableare those ofrequesting court

4. Allowed ifpermission of theforeign country isgiven

1. Instrumentwhereby a foreigncourt is informedof pendency of acase and the nameof the witness, andIs requested tocause theirdepositions to betaken in duecourse of law forfurtherance ofjustice, with anoffer on the part ofthe court makingthe request, to dothe like foranother, in asimilar case.

2. Addressed tojudicial officer of aforeign countrywho will direct thetaking ofdeposition

3. Rules applicable isthe of foreign court

4. Allowed ifcommission wasdisallowed by theforeign country


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Deposition vs Affidavit

Deposition Affidavit

1. Taking of testimonyrequires notice toother party

2. May be taken in formof question andanswer based onwritten examinationor writteninterrogatoriesbefore authorizedpersons;

3. May be used asevidence pending acase

1. It may be taken exparte

2. It does not needsuch form

3. May or may notbe used in aproceeding

3.12.2. Written interrogatories to adverseparties (Rule 25)

Rule on written interrogatories to adverse parties

Under the same conditions specified in section 1 ofRule 23, any party desiring to elicit material andrelevant facts from any adverse parties shall:

a. File and serve upon the latter writteninterrogatories to be answered by the partyserved

b. If the party served is a public or privatecorporation or a partnership or association,by any officer thereof competent to testify inits behalf. Sec. 1, Rule 25.

Remedy in case of denial of written interrogatories

It is interlocutory in nature, and the extraordinaryremedy of writ of certiorari is generally not anavailable remedy to challenge an interlocutory orderof a trial court. The proper remedy in such a case is

appeal from adverse judgment where incorporatedin said appeal is the grounds for assailing theinterlocutory order.

Exception – is the order disallowing the petitioner’swritten interrogatories are patently erroneous, hencecertiorari is warranted.

a) Response to the written interrogatories;Consequences of refusal to answer

Requirements in response to interrogatories:

a. Answered fully in writingb. Shall be signed and sworn by the person

making them.

When to file answer to interrogatories?

a. Shall file and serve a copy of the answers onthe party submitting the interrogatorieswithin fifteen (15) days after service thereof

b. Unless the court on motion and for goodcause shown, extends or shortens the time.Sec. 2, Rule 25.

If the adverse party fails to properly respond to thewritten interrogatories, he shall be deemed as indefault, and will be subject to judgment by default.

b) Effect of failure to serve written interrogatories

The effects of failure to serve writteninterrogatories:

Unless thereafter allowed by the court for good causeshown and to prevent a failure of justice, a party notserved with written interrogatories may not be:

a. Compelled by the adverse party to givetestimony in open court, or

b. To give a deposition pending appeal. Sec. 6,Rule 25.


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Written InterrogatoriesRule 23

WrittenInterrogatories Rule 25

a. Deponent is a thirdperson notnecessarily a party

b. An officer isrequired to takedepositions

a. Directly served toadverse party

b. No officer to takedeposition isrequired

Bill of Particulars WrittenInterrogatories Rule

25a. Intended for

purpose ofclarifyingambiguities in apleading or to statewith sufficientdefiniteness theallegations in thepleading

b. Direct to thepleadings withambiguousallegations

a. Seek to disclose allmaterial andrelevant facts forma party

b. Not directed topleadings, but tomaterial andrelevant factswithin theknowledge ofadverse party

3.12.3. Request for admission (Rule 26)

Admission defined,

An admission is any statement of fact made by a partyagainst his interest or unfavorable to the conclusionfor which he contents or is inconsistent with the factsalleged by him.

Requirements for admission to be admissible:

1. Involve matters of fact and not of law2. Be categorical and definite3. Be knowingly and voluntarily made4. Be adverse to the admitter’s interests,

otherwise it would be self-serving and

inadmissible. Lacbayan vs Samoy, GR165427, March 21 2011

How can a request by adverse party be made?

At any time after issues have been joined, a party mayfile and serve upon any other party may file and serveupon any other party a written request for:

1. The admission by the latter of thegenuineness of any material and relevantdocument described in and exhibited withthe request or

2. The truth of any material and relevantmatter of fact set forth in the request.

3. Copies of the documents shall be deliveredwith the request unless copy have alreadybeen furnished.

a) Implied admission by adverse party

Implied admission rule –

Each matter must be denied specifically under oathsetting forth in detail the reason why he cannottruthfully admit or deny. The silence of the defendanton the plaintiff’s request for admission amounts to animplied acceptance of the facts set forth therein withthe effect that plaintiff’s claim stood undisputed.

Limitations to the rule –

The redundant and unnecessarily vexatious nature ofthe petitioner’s request for admission rendered itineffectual, futile and irrelevant so as to proscribe theoperation of the implied admission. Limos vs Sps.Odones

b) Consequences of failure to answer request foradmission

If the adverse party fails to answer the request forwritten admission, the admission shall be deemedadmitted.


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The plaintiff may now move for Motion for Judgmenton the Pleadings because there is no more genuineissue.

What are the actions that can be made by party awritten request for admission is served?

Each of the matters of which an admission isrequested shall be deemed admitted unless, within aperiod designated in the request, the party servedwill:

a. File and serves upon the party requestingthe admission a sworn statement eitherdenying specifically the matters of which anadmission is requested or setting forth indetail the reasons why he cannot truthfullyeither admit or deny those matters whichshall not be less than 15 days after theservice thereof.

b. Within such further time as the court mayallow on motion

Rule in case of filing an objection –

a. Submitted to the court by the partyrequested within the period for and prior tothe filing of his sworn statement ascontemplated in the preceding paragraphand

b. His compliance therewith shall be deferreduntil such objections are resolved, whichresolution shall be made as early aspracticable.

c) Effect of admission

What are the effects of admission –

a. It is only for the purpose of the pendingaction

b. Shall not constitute an admission by him forany other purpose

c. Nor said admission be used against him inany proceedings.

d) Effect of failure to file and serve request foradmission

Effect of failure to file and serve request foradmission –

Party who fails to file and serve a request foradmission on the adverse party of material andrelevant facts at issue which are, or ought to be,within the personal knowledge of the latter, shall notbe permitted to present evidence on such facts.

Exception – For good cause shown and to prevent afailure of justice

3.12.4. Production or inspection of documentsor things (Rule 27)

Two motions under Rule 27

1. Motion for production and inspection ofdocuments and things

2. Motion to allow entry upon a designatedplace for purposes of inspection, measuring,and surveying of property

Courses of action on the motion for production andinspection of documents and things –

(a) order any party to produce and permitthe inspection and copying orphotographing, by or on behalf of themoving party, of any designated documents,papers, books, accounts, letters,photographs, objects or tangible things, notprivileged, which constitute or containevidence material to any matter involved inthe action and which are in his possession,custody or control, or

(b) order any party to permit entry upondesignated land or other property in hispossession or control for the purpose ofinspecting, measuring, surveying, or


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photographing the property or anydesignated relevant object or operationthereon. The order shall specify the time,place and manner of making the inspectionand taking copies and photographs, and mayprescribe such terms and conditions as arejust.

Things that are privileged and cannot be subject ofRule 27:

1. Privileged communication between husbandand wife, Sec. 24(a) Rule 130

2. Between attorney and client Sec. 24 b Rule130

3. Between physician and patient, Sec. 24c Rule130

4. Communication of public officer and publicinterest Sec. 24 e, Rule 130

5. Editors may not be compelled to disclosesource of published news

6. Voters may not be compelled to disclosewhom they voted

7. Trade secrets8. Information contained in tax census returns9. Bank deposits

Limitations on the remedy of production andinspection of documents and things –

Inspection should be limited to those documentsdesignated with sufficient particularity in the motionsuch that the adverse party can easily identify thedocuments he required to procure.

Production andinspection ofDocuments

Subpoena Duces Tecum

1. Mode of discovery2. Directed against

party litigants

1. A writ or process ofcompelling

3. It can be availed ofby motion

production ofevidence

2. Directed againstany person whichincludes litigants

3. By means of arequest issued exparte

Production andInspection ofDocuments

Exception to the BestEvidence Rule whenthe original is in the

possession of adverseparty under Sec. 3 (b)

Rule 130

1. It can be availed ofthrough motion

2. Movant has noprior knowledge onthe contents of thedocuments to beproduced

1. It can be done bynotice.

2. Has the knowledgecontents of thedocuments to beproduced

3.12.5. Physical and mental examination ofpersons (Rule 28)

When can the court order it? When mental orphysical condition of a party is in controversy

Action of the court – the action which the action ispending in its discretion order him to submit to aphysical or mental examination by physician.

Requisites for order of examination:

1. On motion for good cause shown2. Upon notice to the party to be examined and

to all other parties


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3. Shall specify the time, place, manner,conditions and scope of examination and theperson or persons whom it is to be made.

What are the rules on findings of physician onexamination conducted?

If requested by the party examined, the partycausing the examination to be made shall deliver tohim a copy of a detailed written report of theexamining physician setting out his findings andconclusions.

After such request and delivery, the party causingthe examination to be made shall be entitled uponrequest to receive from the party examined a likereport of any examination, previously or thereaftermade, of the same mental or physical condition.

What are the effects of submission to examinationby the party?

By requesting and obtaining a report of theexamination so ordered or by taking the deposition ofthe examiner:

1. The party examined waives any privilege hemay have in that action or

2. He also waived any privileged on any otherinvolving the same controversy, regardingthe testimony of every other person who hasexamined or may thereafter examine him inrespect of the same mental or physicalexamination

3.12.6. Consequences of refusal to comply withmodes of discovery (Rule 29)

The determination of the sanction a court shouldimpose for failure of a party to comply with themodes of discovery rest on the sound discretion ofthe court, taking into account the overriding interestof justice and the circumstances of each case.

Consequences in case of refusal to answer anyquestion?

A party or other deponent refuses to answer anyquestion upon oral examination the court may:

1. The examination may be completed on othermatters or adjourned as the proponent ofthe question may prefer.

2. The proponent may thereafter apply to theproper court of the place where thedeposition is being taken, for an order tocompel an answer.

3. The same procedure may be availed of whena party or a witness refuses to answer anyinterrogatory submitted under Rules 23 or25.

Effects if failed to serve answers –

1. The court on motion and notice may:2. Strike out all or any part of the pleading of

that party3. Dismiss the action or proceeding4. Enter a judgment by default against that

party5. In its discretion, order him to pay reasonable

expenses incurred by other, including attysfees

Judgment by default for failure to file answer tointerrogatories

Before there could be a judgment by default, thecourt must first require an application by theproponent to compel an answer. Sec. 1, Rule 29.


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3.13. TRIAL (Rule 30)

Definition – judicial process of investigating anddetermining legal controversies, starting with theproduction of evidence by the plaintiff and endingwith his closing arguments. Acosta vs People

Nature of Trial –

It is adversarial in character, and which requirespresentation of evidence and witnesses before thecourt.

Constitutional right to speedy trial, Sec. 16 Art. III1987 Constitution

It extends to call cases.

Factors to determine delay:

1. Duration of the delay2. Reason thereof3. Assertion of the right or failure to assert it4. Prejudice caused by such delay

Trial vs Hearing

Hearing is more broader in scope as it include pre-trialconference, hearing on motion and trial, while trial islimited only to presentation of evidence andwitnesses before the court.

General rule – Trial is necessary to secure a judgment.

Exceptions –

1. Cases falling under Summary Procedure inCivil cases

2. Parties entered into amicable settlement orcompromise of their claims

3. Dismissal of action on Rule 164. Dismissal based on Sec 3, Rule 175. Dismissal of action for failure to appear

during pre-trial conference, Rule 186. Judgment of pleadings under Rule 347. Summary judgment on Rule 35

8. Amicable settlement during mediationbefore Philippine Mediation Center

9. Amicable settlement during JDR10. Amicable settlement by virtue of ADR11. When the parties to any action agree, in

writing, upon the facts involved in thelitigation and submit the case for judgmentbased on the facts agreement upon withoutintroduction of evidence, Sec. 6 Rule 30

NOTE: Plaintiff must rely on the strength of his ownevidence and not upon the weakness of defendant’s.Even through evidenced adduced by the plaintiff isstronger than defendant’s, the evidence must still besufficient to substation his cause of action.

Upon the entry of a case in the trial calendar, theclerk or court shall –

1. Notify the parties of the date of its trial2. In such manner as shall ensure his receipt of

that notice at least five (5) days before suchdate.

3.13.1. Adjournments and postponements

The court may adjourn a trial from day to day, and toany stated time, as the expeditious and convenienttransaction of business may require. Sec. 2, Rule 30.

Limitation -

BUT shall have no power to adjourn a trial for a longerperiod than one month for each adjournment normore than three months in all except, authorized inwriting by the Court Administrator, Supreme Court.

Postponement is not a matter of right and addressedto sound discretion of the court. Graces vs Valenzuela

Grounds for postponements:

1. Absence of evidence2. Illness of a party or counsel


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3.13.2. Requisites of motion to postpone trial

a) For absence of evidence

Requisites of motion to postpone trial for absence ofevidence:

1. A motion for postponement shall be filed2. The motion must be supported by an

affidavit or sworn certification showing thea. Materiality or relevancy of

evidenceb. That due diligence has been used to

procure it3. If the adverse party admits the facts given in

evidence the trial shall not be postponedeven if he reserved the right to object to theadmissibility of the evidence.

b) For illness of party or counsel

Requisites of motion to postpone trial for illness ofparty or counsel:

1. Motion for postponement must be filed2. Motion must be supported by an affidavit or

sown certification showing thea. Presence of the party or counsel at

the trial is indispensableb. That the character of his illness is

such as to render his non-attendable excusable.

3.13.3. Agreed statement of facts

The parties to any action may agree, in writing, uponthe facts involved in the litigation, and submit thecase for judgment on the facts agreed upon, withoutthe 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 suchorder as the court shall prescribe.

3.13.4. Order of trial; reversal of order

The order of trial is as follows: Sec. 5, Rule 30.

Subject to the provisions of section 2 of Rule 31, andunless the court for special reasons otherwise directs,the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

a. The plaintiff shall adduce evidence insupport of his complaint;

b. The defendant shall then adduce evidence insupport of his defense, counterclaim, cross-claim and third-party complaints;

c. The third-party defendant if any, shalladduce evidence of his defense,counterclaim, cross-claim and fourth-partycomplaint;

d. The fourth-party, and so forth, if any, shalladduce evidence of the material factspleaded by them;

e. The parties against whom any counterclaimor cross-claim has been pleaded, shalladduce evidence in support of their defense,in the order to be prescribed by the court;

f. The parties may then respectively adducerebutting evidence only, unless the court, forgood reasons and in the furtherance ofjustice, permits them to adduce evidenceupon their original case; and

g. Upon admission of the evidence, the caseshall be deemed submitted for decision,unless the court directs the parties to argueor to submit their respective memoranda orany further pleadings.

If several defendants or third-party defendants, andso forth, having separate defenses appear bydifferent counsel, the court shall determine therelative order of presentation of their evidence

Reversal of order

In civil cases

If the defendant set-ups an affirmative defense, hemust be the first one to present evidence. Thus, theregular order of trial will be reversed.


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In criminal cases

When the accused admits the act or omission chargedin the complaint or information but interposes alawful defense, the order of trial may bemodified.(Criminal cases) Sec. 11, Rule 119.

3.13.5. Consolidation or severance of hearing ortrial (Rule 31)

When actions involving a common question of law orfact are pending before the court,

1. it may order a joint hearing or trial of any orall the matters in issue in the actions;

2. it may order all the actions consolidated, and3. it may make such orders concerning

proceedings therein as may tend to avoidunnecessary costs or delay. Sec. 1, Rule 31.

3.13.6. Delegation of reception of evidence

Gen Rule – The judge of the court shall personallyreceive the evidence adduced by the parties. Sec. 9,Rule 30.

Exception – a. in default or b. ex parte hearings, andc . in case where the parties agreed in writing, thecourt may delegate the reception of evidence to itsclerk of court who is member of the bar.

The clerk of court cannot make a ruling on objections.

These objections shall be resolved by the court uponsubmission of his report and transcripts within 10days from the termination of the hearing.

3.13.7. Trial by commissioners (Rule 32)

a) Reference by consent or ordered on motion

By written consent of both parties, the court mayorder any or all of the issues in a case to be referredto a commissioner to be agreed upon by the partiesor to be appointed by the court.

As used in these Rules, the word "commissioner"includes a referee, an auditor and an examiner. Sec.1, Rule 32.

b) Powers of the commissioner

When a reference is made, the clerk shall forthwithfurnish the commissioner with a copy of the order ofreference. The order may specify or limit the powersof the commissioner, and may direct him to reportonly upon particular issues, or to do or performparticular acts, or to receive and report evidence onlyand may fix the date for beginning and closing thehearings and for the filing of his report.

Subject to other specifications and limitations statedin the order, the commissioner has and shall exercisethe power

1. to regulate the proceedings in every hearingbefore him and

2. to do all acts and take all measuresnecessary or proper for the efficientperformance of his duties under the order.

3. He may issue subpoenas and subpoenasduces tecum,

4. swear witnesses, and5. unless otherwise provided in the order of

reference, he may rule upon theadmissibility of evidence.

The trial or hearing before him shall proceed in allrespects as it would if held before the court.

c) Commissioner’s report; notice to parties andhearing on the report

Report of the commissioner

Upon the completion of the trial or hearing orproceeding before the commissioner, he shall filewith the court his report in writing upon the matterssubmitted to him by the order of reference.

When his powers are not specified or limited, he shallset forth his findings of fact and conclusions of law inhis report. He shall attach thereto all exhibits,affidavits, depositions, papers and the transcript, ifany, of the testimonial evidence presented beforehim. Sec. 9, Rule 32.


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Notice to the parties of filing of report

Upon the filing of the report,

1. the parties shall be notified by the clerk, and2. they shall be allowed ten (10) days within

which to signify grounds of objections to thefindings of the report, if they so desire.

Objections to the report based upon grounds whichwere available to the parties during the proceedingsbefore the commissioner, other than objections tothe findings and conclusions therein, set forth, shallnot be considered by the court unless they weremade before the commissioner. Sec. 10, Rule 32.

Hearing upon report

Upon the expiration of the period of ten (10) daysreferred to in the preceding section, the report shallbe set for hearing, after which the court shall issue anorder adopting, modifying, or rejecting the report inwhole or in part, or recommitting it with instructions,or requiring the parties to present further evidencebefore the commissioner or the court. Sec. 11, Rule32.

3.14. DEMURRER TO EVIDENCE (Rule 33)

3.14.1. Ground

Upon the facts and the law the plaintiff has shown noright to relief.

When made

After the plaintiff has completed the presentation ofhis evidence, the defendant may move for dismissalunder the rule on Demurrer to Evidence.

3.14.2. Effect of denial

If his motion is denied he shall have the right topresent evidence

3.14.3. Effect of grant

The grant will dismiss the complaint.

3.14.4. Waiver of right to present evidence

If the motion is granted but on appeal the order ofdismissal is reversed he shall be deemed to havewaived the right to present evidence

3.14.5. Demurrer to evidence in a civil caseversus demurrer to evidence in a criminal case

Demurrer to evidencein civil case

Demurrer to evidencein criminal case

1. A motion for leaveis not required

2. If granted, it isappealable.

3. If denied, thedefendant may stillpresent evidence.

4. The plaintiff has tofile a motion todeny the Demurrerto Evidence

1. May be with orwithout leave ofcourt

2. If granted, notappealablebecause it willconstitute doublejeopardy already.

3. If denied, theapplication is withleave of court, theaccused may stillpresent evidence.If without leave, hecannot anymorepresent evidence.

4. The court can motupropio deny theDemurrer toEvidence


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3.15. JUDGMENTS AND FINAL ORDERS (Rule36)

Judgment – is the final ruling by a court of competentjurisdiction regarding the rights or other matterssubmitted to it in action or proceeding. It issynonymous with the term decision.

Constitutional basis of valid judgment –

Sec. 14, Art. II of the Constitution –

“No court shall render a decisionwithout stating clearly and distinctlythe facts and the law on which it isbased.

No petition for review or motion forreconsideration of a decision of thecourt shall be refused due course ordenied without stating the legalbasis therefore”.

Final order – is an order issued by the court whichdisposes of the subject matter in its entirely orterminates a particular proceeding or action, leavingnothing more to be done except to enforce byexecution what the court has determined, but thelatter does not completely dispose of the case butleave something else to be decided upon.

Interlocutory order – one that does not finallydispose of the case and does not end the Court’s taskof adjudicating the parties’ content and determiningtheir rights and liabilities as regards each other, butobviously indicates that other things remain to bedone by the court.

Interlocutory – refers to something interveningbetween the commencement and the end of the suitwhich decides some point or matter but is not a finaldecision for the whole controversy.

Note – the remedy from interlocutory order is not anappeal but special civil action of certiorari. The reasonis to avoid multiplicity of appeals in a single action,which necessarily suspends the hearing and thedecision on the merits of the action during the

pendency of the appeals. The grounds are excess ofjurisdiction or grave abuse of discretion.

Grave abuse of discretion – such capricious andwhimsical exercise of judgment that is equivalent tolack of jurisdiction.

Order for support pedente lite is an interlocutoryorder.

KINDS OF JUDGMENT

A2-C4-D4-F-E-M-N-P-S7-V

1. Judgment upon compromise2. Judgment upon confession3. Judgment upon merits4. Clarificatory judgment5. Judgment nunc pro tunc6. Judgment sin perjuico7. Judgment by default8. Judgment on pleadings9. Summary judgments10. Several judgments11. Separate12. Special judgments13. Judgment for specific acts14. Judgment on demurrer to evidence15. Conditional judgment16. Final judgment17. Final and execotry judgment18. Void judgment19. Amended and clarified judgment20. Supplemental judgment21. Alternative judgment22. Deficiency judgment23. Declaratory judgment

1. Judgment upon compromise –

A judgment based on a compromiseagreement.

A compromise agreement is a contractwhereby the parties , by making reciprocalconcessions avoid a litigation or put an endto one already commenced.


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Requisites –

1. Consent of the contracting parties2. Object certain that is the subject

matter of the contract3. Cause of the obligation that is

established.4. The terms and conditions must not

be contrary to law, morals, goodcustoms, public policy and publicorder. Else, it produces no legaleffect at all.

Nature – it is immediately final and excutoryand cannot be subject to appeal.

2. Judgment by confession –

A judgment made based on the voluntary actof confession of the defendant himself.

A judgment by confession is not a plea butan affirmative and voluntary act of thedefendant himself. The court exercises acertain amount of supervision over the entryof judgment, as well as equitable jurisdictionover their subsequent status.

3. Judgment upon merits-

A judgment when it amounts to declarationof the respective rights and duties of theparties base done the disclosed facts.

4. Clarificatory Judgment-

A judgment made by the court to remove theambiguity of an earlier judgment which isdifficult to execute and comply because ofambiguity of terms. It is done through amotion by a party.

5. Judgment nunc pro tunc (now for then)

The office or function of this judgment is torecord some act of the court done at aformer time which was not then carried intothe record, and the power of the court tomake such entries is restricted to placing

upon the record evidence of judicial actionwhich has been actually taken.

The court has no power to construe what thejudgment means, but only to enter therecord of judgment formerly rendered, butwhich had not been entered of record asrendered.

It does not render a new judgment.

6. Judgment sin perjuico

Judgment rendered by the court withoutprejudice to the refilling of the case.

7. Judgment by default. ( Sec 3, Rule 9 )

A judgment by default is a judgmentrendered by the court based on thepresentation of the plaintiff’s evidenc exparte after the defendant has been declaredin default.

A judgment by default is a judgmentrendered against the defendant for hisfailure to file an answer.

8. Judgment on pleadings

A judgment based exclusively upon theallegation appearing in the pleadings of theparties and annexes, if any, withoutconsideration of any evidence aliunde.

However, when it appear that all thematerials allegations of the complaint wereadmitted in the answer for some of themwere either denied or disputed, and thedefendant has set up certain specialdefenses which, if proven, would have effectof nullifying plaintiff’s main cause of action,judgment on pleadings cannot be rendered.

9. Summary Judgment – Rule 35

A procedural device resorted to in order toavoid long drawn out litigations and uselessdelays where the pleadings on the file show


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that there are no genuine issues of fact to betried.

10. Several Judgment – Sec. 4, Rule 36

It is a judgment rendered by the courtwhenever proper in an action against severaldefendants against one or more of them,leaving the action to proceed against theothers.

11. Separate Judgment – Sec. 5, Rule 36

It is a judgment rendered by the court whenmore than one claim for relief is presentedin an action, the court, at any stage, upon adetermination of the issues material to aparticular claim and all counterclaims arisingout of the transaction or occurrence which isthe subject matter of the claim, may rendera separate judgment disposing of such claim.

12. Special judgments – Sec. 11, Rule 39

When a judgment requires the performanceof any act other than those mentioned in thetwo preceding sections, a certified copy ofthe judgment shall be attached to the writ ofexecution and shall be served by the officerupon the party against whom the same isrendered, or upon any other personrequired thereby, or by law, to obey thesame, and such party or person may bepunished for contempt if he disobeys suchjudgment. (9a)

The special judgment in this section is onewhich requires the performance of any actother than the payment of money or the saleor delivery of real or personal property,which a party must personally do becausehis personal qualifications andcircumstances have been taken intoconsidered. Refusal to comply is punishableby contempt.

13. Judgment for specified acts, Sec. 10 Rule 39

It directs a party to execute conveyance ofland, or to deliver deeds or other documentsor to perform any other specific acts inconnection there with but which acts can beperformed by persons other than the saidparty.

14. Judgment on demurrer to evidence, Rule 33

It is a judgment rendered by the court on theground of insufficiency of evidence after theplaintiff has rested its case. The nature is likemotion to dismiss.

15. Conditional judgment

Where the judgment is indefinite, orrequires the performance of a condition, thecourt must first determine whether or notthe condition imposed therein had beencomplied with before it could issue writ ofexecution.

16. Final judgment – Sec. 47 Rule 39

Once a judgment becomes final andexecutory, all the issues between the partiesare deemed resolved and laid to rest.

The prevailing party is entitled to a writ ofexecution, the issuance of which is the trialcourt’s ministerial duty.

17. Final and executor judgment

A final and executor judgment is onerendered by the court when there is nomotion for reconsideration or appeal is filed,or the same has already been denied withfinality.

What is the remedy? Petition for relief formfinal order under Rule 38 on the ground ofextrinsinc fraud and error or jurisdiction.

18. Void judgment

A judgment is null and void when the courtwhich rendered it had no power to grant the


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relief or no jurisdiction over the subjectmatter or over the parties or both.

Effects of void judgment – it is a not adecision in contemplation of law and hence,can never be executor.

19. Amended and clarified judgment

A judgment in which the lower court makesa thorough study of the original judgmentand renders the amended and clarifiedjudgment only after considering all thefactual and legal issues.

The amended and clarified decision is anentirely new decision which supersedes theoriginal decision.

20. Supplemental judgment –

A kind of judgment which serves to bolsteror adds something to the primary decision.

Amended judgment vs Supplementaljudgment

21. Alternative judgment

Rule – when the dispositive part of a finalorder of decision is definite, clear andunequivocal and can be wholly given effectwithout need of interpretation orconstruction, the same is considered as thejudgment of the court, to the exclusion ofanything said in the body thereof.

22. Deficiency judgment

A contingent claim and must be filed withprobate court where the settlement of theestate of the deceased mortgagor ispending, within the period of time fixed forthe filling of claims.

23. Declaratory judgment

Where the petition for declaratory judgmentis coupled with a prayer for issuance of

injunction, the same is equivalent to anaction for prohibition against public officers.

3.15.1. Judgment without trial

The same can be had in Summary Judgments.

Sec. 1, of Rule 35 provides that a party seeking torecover upon a claim, counterclaim, or cross-claim orto obtain a declaratory relief may, at any time afterthe pleading in answer thereto has been served,move with supporting affidavits, depositions oradmissions for a summary judgment in his favor uponall or any part thereof.

In small claims and summary proceedings, thejudgment can be had even without trial.

Judgment can be also attained in case of settlementof a case.

3.15.2. Contents of a judgment

The judgment or order determining the merits of thecase must be:

1. In writing2. Directly and personally prepared by the

judge3. Stating clearly and distinctly the facts and

the law on which it is based4. Signed by him5. Filed with the clerk of court

The filing of judgment or order with clerk of courtconstitutes rendition of judgment.

Two essential parts of a decision:

1. Body – this is where the facts and the law onwhich it is based are stated.

2. Decetal portion – the controlling part.

The omission of either makes the judgment inviolative of rules of court and constitution.


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Findings of facts – Statement of fact, not to theconclusions of law. The decision should not only statethe ultimate facts but also should specify thesupporting evidentiary facts.

Findings of facts and law are important part of dueprocess.

Effects of lack of jurisdiction on the judgment – it isnull and void and may be attacked anytime. It createsno rights and produces no effects.

3.15.3. Judgment on the pleadings

Grounds for judgments on the pleadings

1. Where an answer fails to tender an issue2. Admits the material allegations of the

adverse party's pleading,.

The court may; on motion of that party, directjudgment on such pleading.

Where there can be no Judgment on the Pleadings

However, in actions for declaration of nullity orannulment of marriage or for legal separation, thematerial facts alleged in the complaint shall always beproved

3.15.4. Summary judgments (Rule 35)

Summary judgment – A procedural device resortedto in order to avoid long drawn out litigatins anduseless delays where the pleadings on the file showthat there are no genuine issues of fact to be tried.

Genuine issue – is such issue of fact which requirepresentation of evidence as distinguished from sham,fictitious, contrived or false claim.

Even the pleading raised an issue but the affidavitsshow that it has no genuine issue, a summaryjudgment is available.

a) For the claimant

When the claimant may move for summaryjudgment? – After the pleading in answer to the

claim, counter-claim, cross claim, and declaratoryrelief has been served.

The claimant may either seeking to recover:

a) A claimb) Counterclaimc) Cross-claimd) To obtain declaratory relief

The motion must be supported with affidavits,depositions or admissions for summary judgment.

b) For the defendant

A defendant against whom the claims are assertedmay any time move for summary judgment.

Requirements for summary judgment-

a) Motion shall be served at least 10 daysbefore the time specified for the hearing

b) The adverse party may serve opposingaffidavits, deposition or admissions at least3 days before the hearing.

c) After the hearing, the judgment sought shallbe rendered forthwith if the pleadings,supporting affidavits, depositions on file,show that there is no genuine issue as to anymaterial fact and that the moving party isentitled to a judgment as a matter of law.Except – as to the amount of damages.

c) When the case not fully adjudicated

If the judgment cannot be rendered on the wholecase the court shall–

1. Ascertain what material facts exist withoutsubstantial controversy and what areactually and in good faith controverted

2. It shall thereupon make an order specifyingthe facts that appear without substantialcontroversy, including the extent to which


Pg.63

the amount of damages or other relief is notin controversy

3. Directing such further proceedings in theaction as are just.

4. The facts so specified shall be deemedestablished, and the trial shall be conductedon the controverted facts accordingly.

d) Affidavits and attachments

Supporting and opposing affidavits shall be made on:

a) Personal knowledgeb) Shall set forth facts as would be admissible

in evidencec) Show affirmatively that the affiant is

competent to testify as to the matters statedtherein

d) Certified true copies of all papers or partsthereof referred to in the affidavits shall beattached thereto or served therewith.

Rule in affidavits in bad faith

This speaks of:

a) Affidavits in bad faithb) Solely for the purpose of delay

In which case, the court then shall:

Order the offending party or counsel to pay to theother party the amount of the reasonable expenseswhich the filing of the affidavits caused him to incurincluding attorney's fees,

It may, after hearing further adjudge the offendingparty or counsel guilty of contempt.

3.15.5. Judgment on the pleadings versussummary judgments

Judgment on thepleadings

Summary Judgments

1. The answer doesnot tender an issue

2. Basis is thepleadings alone

3. Three days noticeof hearing

4. Entire case isterminated

5. Only the plaintiff orthe defendants asfar as thecounterclaim,cross-claim orthird-partycomplaint isconcerned can filethe same

6. If filed by theplaintiff, the samemust be made afterthe pleading inanswer to theclaim, counter-claim, cross claim,and declaratoryrelief has beenserved. If by thedefendant, it maybe filed any time

1. There is an issuetendered in theanswer, but it is notgenuine or realissue.

2. The basis arepleadings,affidavits,depositions andadmissions

3. Ten days noticerule

4. May be terminatedpartially

5. Either plaintiff ordefendant may filethe same

6. After filing of ananswer by theadverse party

3.15.6. Rendition of judgments and final orders

Rendition of judgment is the filing of the same withthe clerk of court.

A judgment or final order determining the merits ofthe case shall be in writing personally and directlyprepared by the judge, stating clearly and distinctlythe facts and the law on which it is based, signed by


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him, and filed with the clerk of the court. Sec. 1, Rule36.

3.15.7. Entry of judgment and final order (Rule36)

When the entry can be done?

If no appeal or motion for new trial or reconsiderationis filed within the time provided in the rules.

The date of finality of judgment is the date of its entry.It shall contain the dispositive part of the judgment,signed by the clerk with a certificate the judgment hasbecome final and executory.

A summary judgment that satisfies the requirementsof final orders shall be considered as res judicata also.

An order or judgment is deemed final when it finallydisposes of pending action, so that nothing more canbe done with it in the trial court.

Immutability of judgment –

A decision that has acquired its finality becomesimmutable and unalterable and may no longer bemodified in any respect, even is the modification ismeant to correct erroneous conclusions of fact or lawand whether it will be made by the court thatrendered it or by the highest court of the land.

3.16. POST JUDGMENT REMEDIES

3.16.1. Motion for new trial or reconsideration (Rule36)

Motion for new trial – it is a complete retrial of thecase after judgment has been rendered based on thegrounds specified in the sec. 1, Rule 37.

It is an application for relief requesting that the judgeset aside the judgment and order a new trial on thebasis that the trial was improper or unfair due to thespecified errors occurred.

Cosntitutional basis –

Sec. 14, Art. II of the Constitution –

“No court shall render a decisionwithout stating clearly and distinctlythe facts and the law on which it isbased.

No petition for review or motion forreconsideration of a decision of thecourt shall be refused due course ordenied without stating the legal basistherefore”.

Purpose of motion for reconsideration – is to pointout the findings and conclusions of the decisionwhich, in the movant’s view, are not supposed by lawor evidence. The movant is therefore, confined to theamplification or further discussion of the same issuealready passed upon by the court.

Right of the defendant to file motion for new trial orreconsideration

The parties may not deprive each other the right tofile a motion for reconsideration or move for a newtrial or an execution pending appeal by immediatefiling a notice of appeal.

a) Grounds

Grounds for Motion for New Trial–

a) FAME, which ordinary prudence could nothave guarded against and by reason of whichsuch aggrieved party has been probablyimpaired in his rights.

b) Newly discovered evidence, which he couldnot, within reasonable diligence havediscovered and produced at the trial, and ifpresented, would probably alter the result.


Pg.65

Newly discovered evidence –

These must not be raised for the first time on appeal.Under the rules of court, the requisites of newlydiscovered evidence are:

1. The evidence was discovered after trial2. Such evidence could not have been

discovered and produced at the trial withreasonable diligence

3. It is material, and not merely cumulative,corroborative or impeaching, and is of suchweight that, if admitted, will probablychange the judgment.

Extrinsic fraud – refers to any fraudulent act of theprevailing party in litigation which is committedoutside the trial of the case, whereby theunsuccessful party has been prevented fromexhibiting fully his case.

Accident – It is an event that takes place withoutone’s foresight or expectation. An event hatproceeded from an unknown cause; or is unusualeffect of a known cause and therefore, not expected.

Mistake – An error in action, a blunder. An incorrectbelief held by some concerned about a fact involvedin a transaction or a proceeding, or an incorrectopinion about the law which governs the transactionsand proceedings.

Rule – Client is bound by the counsel’s mistake.Exception – where the lawyer’s gross negligencewould result in grave injustice of depriving his clientdue process of law.

Excusable negligence – A negligence is excusablewhere it is caused by failure to receive notice of theaction or trial, by a genuine and excusable mistake ormiscalculation, by reliance upon assurance given bythose upon whom the party had a right to depend, asthe adverse party or counsel retained in the case, ora competent adviser, that would necessary for him totake an active part in the case.

Affidavit of merit – a sworn statement which statesthe nature of character of FAME on which the motionfor new trial is based, or the facts constituting themovant’s good and substantial defense for validcauses of action.

Grounds for Motion for Reconsideration-

a) Damages awarded are excessiveb) The evidence is insufficient to justify the

decision or final orderc) The decision or final order is contrary to law

b) When to file

Motion for new trial - Within the period for taking anappeal.

Motion for reconsideration – Within the same period

An appeal is being taken by filing a notice of appealand it is perfected upon the expiration of the last dayof the period to appeal by any party.

In cases where a record on appeal is required, appealis taken by filing a notice of appeal and the record onappeal and the appeal is perfected upon approval ofthe record on appeal.

Motion for extension of time to file motion forreconsideration does not toll the period to appeal,

The extension if proper is the procedural infirmity wasnot entirely attributable to the fault or negligence ofthe petitioner.

c) Denial of the motion; effect

A decision is final and executory after 15 days ofreceipt of denial of first MR.

Exception: If a motion for leave to file and admit asecond motion for reconsideration is granted, the 2nd

MR is not anymore prohibited.

d) Grant of the motion; effect

Effect of granting of motion for new trial


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1. Original judgment or final order shall bevacated

2. The action shall stand for trial de novo;3. The recorded evidence taken upon the

former trial, insofar as the same is materialand competent to establish the issues, shallbe used at the new trial without retaking thesame.

e) Remedy when motion is denied, fresh 15-dayperiod rule

An order denying a motion for new trial orreconsideration is not appealable, the remedy beingan appeal from the judgment or final order

Neypes or Fresh Period Rule

From the case of Domingo Neypes vs Court ofAppeals – “To standardize the appeal period providedin the Rules and to afford litigants fair opportunity toappeal their cases”, the Court has deemed it practicalto allow a fresh period of 15 days within which to filethe notice of appeal to be counted from receipt of theorder denying the motion for new trial, motion forreconsideration whether full or partial, or any finalorder or resolution.

Rule 37 (New Trial) Rule 53 ( New Trial )

a) Available only inthe trial courts,RTC, MTC, MCTTC

b) Provides groundfor FAME

c) Shall be resolvedwithin 30 daysfrom the date itwas submitted forresolution

a) Available only inappellate courts, CA

b) Grounded only onnewly discoveredevidence

c) Shall be resolvedwithin 90 dayswhen the courtdeclares itsubmitted forresolution

Rule 37 (MR) Rule 52 ( MR)

a) Available onlyin the trialcourts, RTC,MTC, MCTTC

b) Providesground forexcessivedamages,evidence isinsufficient tojustify thedecision, ordecision iscontrary tolaw

c) Shall beresolvedwithin 30 daysfrom the dateit wassubmitted forresolution

a) Available onlyin appellatecourts, CA

b) Does notprovide forspecificgrounds

c) Shall beresolved within90 days whenthe courtdeclares itsubmitted forresolution

3.16.2. Appeals

In general

The right to appeal is not part of due process but amere statutory privilege that has to be exercised onlyin the manner and in accordance with the provisionsof law

Final Order Interlocutory Order

Disposes of the subjectmatter in its entirely orterminates a particularproceeding or action,leaving nothing moreto be done except toenforce by execution

Does not completelydisposes of the case butleaves something to bedecided upon

Deals with preliminarymatters and the trial onthe merits is yet to be


Pg.67

what the court hasdetermined

held and the judgmentrendered.

Certain rules on appeal

a) There can be no trial de novo anymore. Theappellate courts must decide on the basis ofthe record, except when the proceedingswhere not duly recorded

b) There can be no new partiesc) There can be no change of theoryd) there can be no new matterse) There can be amendments of pleadings to

conform to the evidence before the trialcourt

f) The liability of solidarity defendant who didnot appeal is not affected by the appeal bysolidarity debtor

g) Appeal by the guarantor does not inure tothe principal

h) RTC cannot award to the appellant on hiscounterclaim more than the amount ofdamages beyond the jurisdiction of the MTC.

i) Appellate court cannot dismiss the appealedcase for failure to prosecute because thecase must be based on records

a) Judgments and final orders subject to appeal

Appeal may only be taken from judgments or finalorders that completely dispose of a case.

b) Matters not appealable

1. Order denying motion for new trial orreconsideration

2. Order denying a petition for relief and anysimilar motion seeking relief from judgment

3. An interlocutory order4. Order disallowing or dismissing an appeal5. An order denying a motion to set aside

judgment by consent, confession orcompromise, on the ground of fraud,mistake, duress, or any other ground

6. An order of execution7. A judgment or final order for or against one

or more several parties or in separate claims,

counterclaims, cross-claims and third partycomplaints, while the main case is pending,unless the court allows an appeal therefrom

8. An order dismissing an action withoutprejudice

c) Remedy against judgments and orders which arenot appealable

In any of the foregoing circumstances, the aggrievedparty may file an appropriate civil action as providedin Rule 65.

Rationale of non-appealable character ofinterlocutory order - allowing appeals frominterlocutory orders would result in the ‘sorryspectacle’ of a case being subject ofcounterproductive ping pong to and from appellatecourt as often as trial court is perceived to have madean error in any of its interlocutory rulings.

d) Modes of appeal

The three modes of appeal-

1. Ordinary appeal. — The appeal to the Courtof Appeals in cases decided by the RegionalTrial Court in the exercise of its originaljurisdiction shall be taken by filing a notice ofappeal with the court which rendered thejudgment or final order appealed from andserving a copy thereof upon the adverseparty. No record on appeal shall be requiredexcept in special proceedings and othercases of multiple or separate appeals wherelaw on these Rules so require. In such cases,the record on appeal shall be filed andserved in like manner.

2. Petition for review. — The appeal to theCourt of Appeals in cases decided by theRegional Trial Court in the exercise of itsappellate jurisdiction shall be by petition forreview in accordance with Rule 42.

3. Appeal by certiorari / petition for review oncertiorari. — In all cases where onlyquestions of law are raised or involved, theappeal shall be to the Supreme Court bypetition for review on certiorari inaccordance with the Rule 45.


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e) Issues to be raised on appeal

Whether or not the appellant has filed a motion fornew trial in the court below, he may include in hisassignment or errors any question of law or fact thathas been raised in the court below and which is withinthe issues framed by the parties Sec. 15, Rule 44.

1) In an Ordinary Appeal, the appeal raises thequestions of fact or mixed questions of fact and law.

2) In Petition for Review, the appeal raises questionsof fact, of law or mixed questions of fact and law.

3) In a Petition for Review on Certiorari, the appealraises purely questions of law.

Mixed question of law and of facts; purely questionof law – remedy –

Where a litigant files an appeal raises only questionsof law with the CA, CA should dismiss the appealoutright as the appeal is not reviewable by that court.

Question of fact exists when the doubt centers on thetruth or falsity of alleged facts while question of lawexists if the doubt centers on what the law is on acertain set of facts.

Where the Supreme Court can act upon questions offact

The exception applies only in the presence ofextremely meritorious circumstances like:

1. When the inference made is manifestlymistaken, absurd or impossible.

2. When there is a grave abuse of discretion3. When the findings are grounded entirely on

speculations, surmises or conjectures.4. When the judgment of the Ca is based on

misapprehension of facts5. When eh findings of fact of the lower courts

are conflicting6. When the CA, in making its findings, went

beyond the issues of the case and the sameis contrary to the admissions of bothappellant and appellee.

7. When the findings of fact are conclusionswithout citation of specific evidence onwhich they are based;

8. When the CA manifestly overlooked certainrelevant facts not disputed by the partiesand which, if properly considered, wouldjustify a different conclusion,

9. Went eh findings of fact of the CA arepremised on the absence of evidence andare contradicted by evidence on record.

10. When the findings are contrary to those oftrial court.

11. Adverse decision in a petition for writ ofamparo;

12. Adverse decision in a petition for writ ofhabeas corpus;

13. Adverse judgment in a writ of kalikasan;

f) Period of appeal

What is the period of taking an appeal-

1. 15 days after the notice to the appellant ofthe judgment or final order appealed from;or

2. Where a record on appeal is required, theappellant shall file a notice of appeal andrecord on appeal within 30 days after thenotice of judgment or final order

The effect of filing MR on period to appeal-

The period of appeal shall be interrupted by a timelymotion for new trial or reconsideration.

Limitation - No motion for extension of time to file amotion for new trial or reconsideration shall beallowed. (n)

Exception for suspension of period to appeal in filingMR-

1. To serve substantial justice – HabaluyasEnterprises vs Japson

2. When the procedural infirmity was notentirely attributable to the fault or


Pg.69

negligence of the petitioner Barnes vsPadilla

g) Perfection of appeal

Appeal is deemed perfected when:

1. A party’s appeal by notice of appeal isdeemed perfected as to him upon filing ofthe notice of appeal in due time

2. A party’s appeal by record on appeal isdeemed perfected as to him with respect tothe subject matter thereof upon theapproval of the record on appeal filed in duetime.

Effect of perfection of appeal-

In appeals by notice of appeal, the court losesjurisdiction over the case upon the perfection ofappeals filed in due time and the expiration of time toappeal of the other parties

What are the residual powers of the court?

Prior to the transmittal of the original record of therecord on appeal, the court may issue:

1. Orders for protection and preservation ofthe rights of the parties which do not involveany matter litigated by appeal;

2. Approve compromises3. Permit appeals of indigent litigants4. Order execution pending appeal in

accordance with Sec. 2 of Rule 39.


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Table of Appeals

Rule 40

APPEAL FROM

METROPOLITAN /

MUNICIPAL TRIAL

COURTS TO THE

REGIONAL TRIAL COURT

Rule 41

APPEAL FROM THE

REGIONAL TRIAL

COURTS TO THE

COURT OF APPEALS

(RTC in exercise of

original jurisdiction

to CA)

Rule 42

PETITION FOR

REVIEW WITH

COURT OF APPEALS

(RTC in exercise of

Appellate

Jurisdiction to CA)

Rule 43

APPEALS FROM THE

COURT OF TAX

APPEALS AND

QUASI-JUDICIAL

AGENCIES TO THE

COURT OF APPEALS

Rule 45

APPEAL BY

CERTIORARI TO THE

SUPREME COURT

When to

Appeal

15 days for Notice of

Appeal / 30 days for

Record on Appeal

15 days for Notice of

Appeal / 30 days for

Record on Appeal

15 days from notice

of the decision, may

be extended for 15

days.

15 days d from notice

of the award,

judgment, final order

or resolution, or from

the date of its last

publication, if

publication is

required by law for

its effectivity, maybe

extended for 15

days.

15 days from notice

of judgment or final

order or resolution

appealed from, may

be extended for 30

days.

How to

Appeal

Notice of Appeal /

Record on Appeals

(required in special

proceedings and multiple

appeals )

Notice of Appeal /

Record on Appeals

(required in special

proceedings and

multiple appeals )

Verified Petition for

Review


Review


Review

Certification

against non-

forum

shopping

Not required Not required Required Required Required

Issues Questions of fact, of law,

or mixed questions of

fact and law

Questions of fact, of

law, or mixed

questions of fact and

law


law, or mixed

questions of fact

and law


law, or mixed

questions of fact and

law.

General rule,

questions of law.


Pg.71

Quasi-judicial power defined – the term whichapplies to the discretion, etc., of public administrativeofficers or bodies, who are required to investigatefacts, or ascertain the existence of facts, holdinghearings, and draw conclusions from them, as a basisfor their official function and to exercise discretion ofjudicial nature.

Decision of the Ombudsman in administrative casesis reviewable by the CA under Rule 43.

Findings of facts of the Ombudsman in administrativecases are accorded with respect and finality.

Decision of Department of Agrarian Reform isreviewable under Rule 43.

Sec. 61 of RA No. 6657 clearly mandates that judicialreview of DAR Secretary decisions, orders orresolutions are governed by rule 43 of ROC.

Excluded quasi-judicial bodies under the coverage ofthe rules

1. Court of Tax Appeals – It must be notedhowever, that by virtue of AM No 05-11-07-CTA 2005 of RA 9282 or Revised Rules ofCourt of Appeals, as amended, Sec. 1 Rule 16thereof, a party adversely affected by adecision of the CTA en banc may appealtherefrom by filing with SC a verified petitionfor review on certiorari under Rule 45.

2. Central Board of Assessment Appeals – Sec2(e), Rule 4 of Revised Rules of CTA, the CTAen banc will also exercise exclusive appellatejurisdiction over cases involving theassessment and taxation of real propertyoriginally decided by the provincial or cityboard of assessment of appeals.

3. Labor Cases with NLRC – the procedure inlabor cases enunciated by the Court in caseof St. Martin Funeral Home vs NLRC hasremained to be prevailing rule and authoritygoverning judicial review of decisions andinterlocutory orders of the NLRC. Thepeculiar decision has reached the courtsolely for the purpose of “drasticallyreducing the workload of the SC without

depriving the litigants the privilege of reviewby an appellate tribunal. Hence, the CA hasstill authority to review decisions of the NLRbut not on Rule 43, but through petition forcertiorari under Rule 65 – a remedy whereinthe SC exercises concurrent jurisdiction withCA.

Petition for Review on Certiorari (Rule 45)

Article VIII, Sec. 5, (2) Review, revise, reverse, modify,or affirm on appeal or certiorari, as the law or theRules of Court may provide, final judgments andorders of lower courts in:

a) All cases in which the constitutionality orvalidity of any treaty, international orexecutive agreement, law, presidentialdecree, proclamation, order, instruction,ordinance, or regulation is in question.

b) All cases involving the legality of any tax,impost, assessment, or toll, or any penaltyimposed in relation thereto.

c) All cases in which the jurisdiction of anylower court is in issue.

d) All criminal cases in which the penaltyimposed is reclusion perpetua or higher.

e) All cases in which only an error or questionof law is involved.

Rule 45 Rule 65

a) Petition is based onquestions of lawwhich theappellant desiresthe court to resolve

b) It is a mode ofappeal involvingthe review ofjudgment, awardor final order onthe merits

c) It is a mode ofappeal whichcenters on thereview on the

a. The petition raisesthe issue whetheror not the lowercourt actedwithout or inexcess ofjurisdiction or gaveabuse ofjurisdiction

b. Directed againstthe interlocutoryorder of the courtprior to appealform judgment orwhere there is no


Pg.72

merits of finalorder of the lowercourt involvingpure questions oflaw

d) Must be madewithin thereglementaryperiod for appealor within 15 daysfrom the receipt ofthe assailedjudgment

e) Stays thejudgment, award,or order appealedfrom

f) Petition andrespondent are theoriginal parties tothe action, and thelower court orquasi-judicialagency is notimpleaded

g) Prior filing ofmotion forreconsideration isnot required

h) The appellate courtis in the exercise ofits appellatejurisdiction and thepower of review

appeal or any otherplain, speedy andadequate remedy

c. Is an original actionthat dwells on thejurisdictional errorsof whether thelower court actedwithout or inexcess of itsjurisdiction or withgrave abuse ofjurisdiction

d. May be filed notlater than 60 daysfrom the notice ofjudgment, order orresolution soughtto be assailed

e. Unless a writ ofpreliminaryinjunction ortemporaryrestraining ordershall have beenissued, does notstay the challengedproceeding

f. The parties are theaggrieved partyagainst the lowercourt or quasi-judicial agency andthe prevailingparties

g. Motion forreconsideration isrequired as ageneral rule.

h. The higher courtexercises originaljurisdiction underits power of controland supervisionover theproceedings of thelower court

Appeal from Constitutional Bodies

Review of Judgment or Final Orders from COMELEC

A judgment, resolution or final order of the COMELECmay be brought by the aggrieved party to the SC oncertiorari under Rule 65 in relation to Rule 64, by filingthe petition within 30 days from notice.

Review of Judgment or Final Orders from CivilService Commission

A judgment, final order or resolution of the CivilService Commission may be taken to the CA underRule 43. Note the difference between the mode ofappeal from a judgment of the CSC and the mode ofappeal from the judgments of other constitutionalcommissions.

Review of Judgment or Final Orders from CivilService Commission

A judgment, resolution or final order of theCommission on Audit may be brought by theaggrieved party to the SC on certiorari under Rule 65in relation to Rule 64, by filing the petition within 30days from notice.

3.16.3. Relief from judgments, orders and otherproceedings (Rule 38)

Petition for relief – a legal remedy whereby a partyseeks to set aside a judgment rendered against himby a court whenever he was unjustly deprived ofhearing or was prevented from taking an appealbecause of FAME.

Requirements-

1. Verified,2. Filed within sixty (60) days after the

petitioner learns of the judgment, finalorder, or other proceeding to be set aside,and not more than six (6) months after suchjudgment or final order was entered, or suchproceeding was taken

3. Must be accompanied with affidavitsshowing the fraud, accident, mistake, orexcusable negligence relied upon (Affidavitof merit)

4. State the facts constituting the petitioner'sgood and substantial cause of action or


Pg.73

defense, as the case may be. (Affidavit ofmerit)

a) Grounds for availing of the remedy

Final and executory decision can only be annulled bya petition to annul the same on the ground ofextrinsic fraud lack or jurisdiction, or by a petition forrelief from a final order of judgment under the Rule38.

b) Time to file petition

The petition for relief shall be filed within sixty (60)days after the petitioner learns of the judgment, finalorder, or other proceeding to be set aside, and notmore than six (6) months after such judgment or finalorder was entered, or such proceeding was taken

c) Contents of petition

1. Must be accompanied with affidavitsshowing the fraud, accident, mistake, orexcusable negligence relied upon (Affidavitof merit)

2. State the facts constituting the petitioner'sgood and substantial cause of action ordefense, as the case may be. (Affidavit ofmerit)

If the petition is sufficient in form and substance tojustify relief, the court in which it is filed, shall-

1. Shall issue an order requiring the adverseparties to answer the same within fifteen(15) days from the receipt thereof.

2. The order shall be served in such manner asthe court may direct, together with copiesof the petition and the accompanyingaffidavits.

Inunction is allowed

Injunction is allowed, but there must be a bond infavor of the adverse party conditioned that if thepetition is dismissed or the petitioner fails on the trialof the case upon its merits, he will pay the adverseparty all damages and costs that may be awarded tohim by reason of the issuance of such injunction orthe other proceedings following the petition

BUT, such injunction shall not operate to discharge orextinguish any lien which the adverse party may haveacquired upon, the property, of the petitioner

3.16.4. Annulment of judgments or final ordersand resolutions (Rule 47)

a) Grounds for annulment

The annulment may be based only on the grounds ofextrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it wasavailed of, or could have been availed of, in a motionfor new trial or petition for relief.

b) Period to file action

If based on extrinsic fraud, the action must be filedwithin four (4) years from its discovery; and if basedon lack of jurisdiction, before it is barred by laches orestoppe

c) Effects of judgment of annulment

A judgment of annulment shall set aside thequestioned judgment or final order or resolution andrender the same null and void, without prejudice tothe original action being refiled in the proper court.However, where the judgment or final order orresolution is set aside on the ground of extrinsicfraud, the court may on motion order the trial courtto try the case as if a timely motion for new trial hadbeen granted therein.


Pg.74

3.16.5. Collateral attack of judgments

A collateral attack is an attack on the judgment ismade as an incident in said action.

This is proper only when the judgment, on its face, isnull and void, as where it is patent that the courtwhich rendered said judgment has no jurisdiction.

Examples:

1. A petition for certiorari under Rule 65 is adirect attack. It is filed primarily to have anorder annulled.

2. An action for annulment of a judgment islikewise a direct attack on a judgment.

3. A motion to dismiss a complaint forcollection of a sum of money filed by acorporation against the defendant on theground that the plaintiff has no legalcapacity to use is a collateral attack on thecorporation. A motion to dismiss isincidental to the main action for sum ofmoney. It is not filed as an action intended toattack the legal existence of the plaintiff.

3.17. EXECUTION, SATISFACTION, ANDEFFECT OF JUDGMENT (Rule 39)

Execution – Remedy afforded by law for theenforcement of a judgment. Its object is to obtainsatisfaction of the judgment on which the writ isissued. It issues by order of a court a quo, on motionof the judgment oblige, upon finality or order soughtto be enforced.

3.17.1. Difference between finality of judgmentfor purposes of appeal; for purposes ofexecution

For purposes of appeal, an order is final if it disposesof the action as opposed to an interlocutory orderwhich leaves something to be done in the trial courtwith respect to the merits of the case.

For purposes of execution, an order is final orexecutory after the lapse of the reglementary periodto appeal and no such appeal has been perfected.

3.17.2. When execution shall issue

Execution shall issue as:

a. A matter of right,b. Or motion,

When to appeal

Upon a judgment or order that disposes of the actionor proceeding upon the expiration of the period toappeal therefrom if no appeal has been dulyperfected

If the appeal has been duly perfected and finallyresolved:

The execution may forthwith be applied forin the court of origin,

a. On motion of the judgment obligee,b. Submitting therewith certified true copies of

the judgment or judgments or final order ororders sought to be enforced and of the entrythereof,

c. With notice to the adverse party.

The appellate court may:

a. On motion in the same case, when theinterest of justice so requires,

b. Direct the court of origin to issue the writ ofexecution. (n)

General rule – Execution as a matter of right,requisites-

1. It will be a matter or right only when,2. The judgment has become final and

executor,3. When the judgment debtor has renounced

or waived his right of appeal4. When the period for appeal has lapsed with

an appeal having been filed, the appeal


Pg.75

resolved and the records to the case havebeen returned to the court of origin.

Exception to the general rule- Execution pendingappeal on the existence of good reasons. Goodreasons are compelling circumstances that justify theimmediate execution lest the judgment becomesillusory.

Effect of finality – the winning party has thecorrelative right to enjoy the finality of the resolutionof his case by the execution and satisfaction ofjudgment which is the “life of the law”.

As a rule, once the judgment has become final andexecutor, the court cannot refuse to issue a writ ofexecution, except:

1. When the subsequent facts andcircumstances transpire which render theexecution unjust and impossible

2. On equitable grounds, as when there hasbeen a change in the situation of partieswhich makes the execution equitable

3. Where the judgment has been novated bythe parties

4. When a petition for relief or an action toenjoin the judgment is filed and apreliminary injunction I sprayed for andgranted

5. Where the judgment has become dormant,the 5 year period under Sec. 6 of this rulehaving been expired with judgment beingrevived.

6. Where the judgment turns out to beincomplete.

Motion for execution need not be served on thedefeated party; granting of writ of execution is amatter of right not a violation of due process.

Issuance of writ of execution is trial court’sministerial duty once decision is final

Mandamus is available in case of execution of finaland executory judgment. Valenzuela vs Court ofAppeals 1993, 226 SCRA 306

The remedy for issuance of order of execution isCertiorari under Rule 65, Sec. 1

Execution of a judgment or final order pendingappeal:

a. On motion of the prevailing partyb. With notice to the adverse party filed in the

trial courtc. While it has jurisdiction over the case and is

in possession of either the original record orthe record on appeal, as the case may be, atthe time of the filing of such motion,

Said court may, in its discretion, orderexecution of a judgment or final order evenbefore the expiration of the period toappeal.

After the trial court has lost jurisdiction:

The motion for execution pending appeal may be filedin the appellate court.

Discretionary execution may only issue:

a. Upon good reasonsb. To be stated in a special order after due

hearing.

Execution of several, separate or partial judgments:

a. A several,b. Separate orc. Partial judgment

May be executed under the same terms andconditions as execution of a judgment orfinal order pending appeal.


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Execution pending appeal is a matter of discretion

When an appeal had been duly perfected, executionof the judgment, whether wholly or partially, was nota matter or right, but discretion provided goodreasons therefor existed. Associated Anglo-AmericanTobacco Corporation vs CA, April 23, 2010

Good Reasons, meaning – compelling circumstancesthat justify immediate execution lest the judgmentbecomes illusory.

Requisites for execution pending appeal-

1. There must be a motion by the prevailingparty

2. There must be good reasons for issuing thewrit of execution

3. Good reasons must be stated in specialorder. Maceda, Jr vs DBP, 313 SCRA 233

Execution pending appeal is not applicable in a landregistration proceeding. Top Management ProgramsCorporation vs Luis Fajardo, June 15, 2011

Residual power of the Court of Appeals, executionpending appeal under Rule 42

Rule 42 of the Rules of Court governs the appeal of adecision of the RTC rendered in the exercise if itsappellate jurisdiction; the appeal is made by filing apetition for review with the CA.

Despite the filing of a petition with CA, however, Rule42 grants the RTC residual jurisdiction to orderexecution pending appeal, so long as:

1. The CA has not yet given due course to thepetition

2. The requirements of Sec. 2, Rule 39 areobserved. ALPA-PCM Inc, vs VincentBulasao, March 19, 2012

Posting of a bond to answer for damage is not alonea sufficient reason, otherwise execution pending

appeal could be obtained through the mere filing ofsuch bond.

3.17.3. How a judgment is executed

a) Execution by motion or by independent action

A final and executory judgment or order may beexecuted:

a. On motion within five (5) years from the dateof its entry.

b. By action, after the lapse of such time, andbefore it is barred by the statute oflimitations,

The revived judgment may also be enforced:

a. By motion within five (5) years from the dateof its entry

b. By action before it is barred by the statute oflimitations.

Once a judgment becomes final and executory, theprevailing party can have it executed as a matter ofright by mere motion within five years from the dateof entry of judgment. If the prevailing party fails tohave the decision enforced by a motion after thelapse of five years, the said judgment is reduced to aright of action which must be enforced by theinstitution of a complaint in regular court within tenyears from the time the judgment becomes final.

Instances of execution by motion after five years;Excluded period in computing the time for execution

The court held that in computing the time limit forenforcing a final judgment, the general rule is thatthere should not be included the time when theexecution is stayed, either by agreement of theparties for a definite time, by injunction, by taking ofan appeal or writ of error so as to operate assupersedeas, by death of the party or otherwise.

Any interruption or delay occasioned by the debtorwill extend the time within which the writ may be


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issued without scire facias. Thus, the time duringwhich the execution is stayed should be excluded,and the said time will be extended by any delayoccasioned by the debtor.

The five year period of execution may be extended

Where the delay is through no fault of the prevailingparty but due to the delay caused or occasioned byactions of the judgment obligor for his benefit oradvantage. Camacho vs CA, 287 SCRA 311, 1998

Nature of action for revival of judgment

Action for revival of judgment is a new andindependent action, different and distinct from eitherrecovery of the property case or reconstitution case,wherein the cause of action is the decision itself andnot the merits of the action upon which judgment issought to be enforced.

Execution by motion or independent action is notapplicable in a petition for writ of possession

The rule on execution by motion or by independentaction under Sec. 6 Rule 39 applies only to civil actionsand not to special proceedings such as an ex partepetition for the issuance of writ of possession as it isnot the nature of civil action. Sps. Topacio vs BancoFilipino Savings and Mortage Bank, Nov. 17, 2010

b) Issuance and contents of a writ of execution

The writ of execution shall:

a. Issue in the name of the Republic of thePhilippines from the court which granted themotion;

b. State the name of the court, the casenumber and title, the dispositive part of thesubject judgment or order; and

c. Require the sheriff or other proper officer towhom it is directed to enforce the writaccording to its terms, in the mannerhereinafter provided:

c) Execution of judgments for money

Immediate payment on demand. —

The officer shall enforce an execution of a judgmentfor money by:

Demanding from the judgment obligor theimmediate payment of the full amountstated in the writ of execution and all lawfulfees.

The judgment obligor shall-

a. Pay in cash,b. Certified bank check payable to the

judgment obligee,c. Or any other form of payment acceptable to

the latter, The amount of the judgment debt

under proper receipt directly to thejudgment obligee or his authorizedrepresentative if present at thetime of payment.

The lawful fees shall be-

Handed under proper receipt to theexecuting sheriff who shall turn over the saidamount within the same day to the clerk ofcourt of the court that issued the writ.

If the judgment obligee or his authorizedrepresentative is not present to receive payment, thejudgment obligor shall-

Deliver the aforesaid payment to theexecuting sheriff.

a. The latter shall turn over all theamounts coming into his possessionwithin the same day to the clerk ofcourt of the court that issued thewrit, or

b. if the same is not practicable,deposit said amounts to a fiduciary


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account in the nearest governmentdepository bank of the RegionalTrial Court of the locality.

The clerk of said court shall:

Thereafter arrange for the remittance of thedeposit to the account of the court thatissued the writ whose clerk of court shallthen deliver said payment to the judgmentobligee in satisfaction of the judgment.

The excess, if any, shall:

a. Be delivered to the judgment obligor

While the lawful fees shall:

Be retained by the clerk of court fordisposition as provided by law.

In no case shall the executing sheriff demand that anypayment by check be made payable to him.

Satisfaction by levy. —

If the judgment obligor cannot pay all or part of theobligation in cash, certified bank check or other modeof payment acceptable to the judgment obligee, theofficer shall:

Levy upon the properties of the judgmentobligor of every kind and nature whatsoeverwhich may be disposed,

a. Of for value andb. Not otherwise exempt from

execution Giving the latter the option to immediately

choose which property or part thereof maybe levied upon, sufficient to satisfy thejudgment.

If the judgment obligor does not exercise the option,

The officer shall first levy on the

a. Personal properties, if any, andthen on the

b. Real properties if the personalproperties are insufficient toanswer for the judgment.

The sheriff shall sell only a sufficient portion of thepersonal or real property of the judgment obligorwhich has been levied upon.

When there is more property of the judgment obligorthan is sufficient to satisfy the judgment and lawfulfees,

He must sell only so much of the personal orreal property as is sufficient to satisfy thejudgment and lawful fees.

Real property, stocks, shares, debts, credits, andother personal property, or any interest in either realor personal property,

May be levied upon in like manner and withlike effect as under a writ of attachment.

Garnishment of debts and credits. —

The officer may levy on:

a. Debts due the judgment obligor andb. Credits, including bank deposits, financial

interests, royalties, commissions andc. Personal property not capable of manual

delivery in the possession or control of thirdparties.

Levy shall be made by:

Serving notice upon the

a. Person owing such debts orb. Having in his possession or control

such credits to which the judgmentobligor is entitled.


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The garnishment shall cover only suchamount as will satisfy the judgment and alllawful fees.

The garnishee shall:

Make a written report to the court withinfive (5) days from service of the notice ofgarnishment stating whether or not thejudgment obligor has sufficient funds orcredits to satisfy the amount of thejudgment.

If not, the report shall state how much funds orcredits the garnishee holds for the judgment obligor.

The garnished amount in cash, or certified bank checkissued in the name of the judgment obligee, shall be

Delivered directly to the judgment obligeewithin ten (10) working days from service ofnotice on said garnishee requiring suchdelivery, except the lawful fees which shallbe paid directly to the court.

In the event there are two or more garnisheesholding deposits or credits sufficient to satisfy thejudgment, the judgment obligor, if available,

Shall have the right to indicate the garnisheeor garnishees who shall be required todeliver the amount due, otherwise, thechoice shall be made by the judgmentobligee.

The executing sheriff shall observe the sameprocedure under paragraph (a) with respect todelivery of payment to the judgment obligee.

d) Execution of judgments for specific acts

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

If a judgment directs a party to execute:

1. A conveyance of land or personal property,or

2. To deliver deeds or other documents, or3. To perform, any other specific act in

connection therewith,

And the party fails to comply within the timespecified,

The court may direct the act to be done atthe cost of the disobedient party by someother person appointed by the court and theact when so done shall have like effect as ifdone by the party.

If real or personal property is situated within thePhilippines,

the court in lieu of directing a conveyancethereof may by an order divest the title ofany party and vest it in others, which shallhave the force and effect of a conveyanceexecuted in due form of law. (10a)

Sale of real or personal property. —

If the judgment be for the sale of real or personalproperty,

1. To sell such property, describing it, and2. Apply the proceeds in conformity with the

judgment. (8[c]a)

(c) Delivery or restitution of real property. —

1. The officer shall demand of the personagainst whom the judgment for the deliveryor restitution of real property is renderedand all persons claiming rights under him topeaceably vacate the property within three(3) working days, and

2. Restore possession thereof to the judgmentobligee,


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Otherwise, the officer shall:

a. Oust all such persons therefrom with theassistance, if necessary, of appropriatepeace officers, and

b. Employing such means as may be reasonablynecessary to retake possession, and placethe judgment obligee in possession of suchproperty.

c. Any costs, damages, rents or profits awardedby the judgment shall be satisfied in thesame manner as a judgment for money.(13a)

(d) Removal of improvements on property subject ofexecution. —

When the property subject of the execution containsimprovements constructed or planted by thejudgment obligor or his agent,:

The officer shall not destroy, demolish orremove said improvements

Except upon:

1. Special order of the court,2. Issued upon motion of the judgment obligee3. After the hearing and4. After the former has failed to remove the

same within a reasonable time fixed by thecourt. (14a)

(e) Delivery of personal property. —

In judgment for the delivery of personal property,

The officer shall take possession of the sameand forthwith deliver it to the party entitledthereto and satisfy any judgment for moneyas therein provided. (8a)

e) Execution of special judgments

When a judgment requires the performance of anyact other than those mentioned in the twopreceding sections,-

1. Aa certified copy of the judgment shall beattached to the writ of execution and

2. Shall be served by the officer upon the partyagainst whom the same is rendered, or uponany other person required thereby, or bylaw, to obey the same, and

Such party or person may be punished for contemptif he disobeys such judgment

f) Effect of levy on third persons

The levy on execution shall:

1. Create a lien in favor of the judgment obligeeover the right, title and interest of thejudgment obligor in such property at thetime of the levy,

Subject to liens and encumbrances then existing.

3.17.4. Properties exempt from execution

Except as otherwise expressly provided by law, thefollowing property, and no other, shall be exemptfrom execution:

(a) The judgment obligor's family home asprovided by law, or the homestead in whichhe resides, and land necessarily used inconnection therewith;

(b) Ordinary tools and implementspersonally used by him in his trade,employment, or livelihood;

(c) Three horses, or three cows, or threecarabaos, or other beasts of burden, such asthe judgment obligor may select necessarilyused by him in his ordinary occupation;


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(d) His necessary clothing and articles forordinary personal use, excluding jewelry;

(e) Household furniture and utensilsnecessary for housekeeping, and used forthat purpose by the judgment obligor and hisfamily, such as the judgment obligor mayselect, of a value not exceeding one hundredthousand pesos;

(f) Provisions for individual or family usesufficient for four months;

(g) The professional libraries and equipmentof judges, lawyers, physicians, pharmacists,dentists, engineers, surveyors, clergymen,teachers, and other professionals, notexceeding three hundred thousand pesos invalue;

(h) One fishing boat and accessories notexceeding the total value of one hundredthousand pesos owned by a fisherman andby the lawful use of which he earns hislivelihood;

(i) So much of the salaries, wages, orearnings of the judgment obligor for hispersonal services within the four monthspreceding the levy as are necessary for thesupport of his family;

(j) Lettered gravestones;

(k) Monies, benefits, privileges, or annuitiesaccruing or in any manner growing out ofany life insurance;

(l) The right to receive legal support, ormoney or property obtained as suchsupport, or any pension or gratuity from theGovernment;

(m) Properties specially exempted by law.

But no article or species of property mentioned in thissection shall be exempt from execution issued upon ajudgment recovered for its price or upon a judgmentof foreclosure of a mortgage thereon. Sec. 13, Rule39.

3.17.5. Proceedings where property is claimed bythird persons

If the property levied on is claimed by any personother than the judgment obligor or his agent, andsuch person makes an affidavit of his title thereto orright to the possession thereof, stating the grounds ofsuch right or title, and serves the same upon theofficer making the levy and copy thereof, stating thegrounds of such right or tittle, and a serves the sameupon the officer making the levy and a copy thereofupon the judgment obligee, the officer shall not bebound to keep the property, unless such judgmentobligee, on demand of the officer, files a bondapproved by the court to indemnity the third-partyclaimant in a sum not less than the value of theproperty levied on. In case of disagreement as to suchvalue, the same shall be determined by the courtissuing the writ of execution.

Bond is required

No claim for damages for the taking or keeping of theproperty may be enforced against the bond unlessthe action therefor is filed within one hundred twenty(120) days from the date of the filing of the bond.

Officer is not liable if bond is filed

The officer shall not be liable for damages for thetaking or keeping of the property, to any third-partyclaimant if such bond is filed. Nothing hereincontained shall prevent such claimant or any thirdperson from vindicating his claim to the property in aseparate action, or prevent the judgment obligeefrom claiming damages in the same or a separateaction against a third-party claimant who filed afrivolous or plainly spurious claim.


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When the writ of execution is in favor of theRepublic of the Philippines

When the writ of execution is issued in favor of theRepublic of the Philippines, or any officer dulyrepresenting it, the filing of such bond shall not berequired, and in case the sheriff or levying officer issued for damages as a result of the levy, he shall berepresented by the Solicitor General and if held liabletherefor, the actual damages adjudged by the courtshall be paid by the National Treasurer out of suchfunds as may be appropriated for the purpose. Sec.16, Rule 39

a) In relation to third-party claim in attachment andreplevin

Remedies available to a third person not party to theaction but whose property is the subject of execution:

1. Terceria - By making an affidavit of his titlethereto or his right to possession thereof,stating the grounds of such right or title.

2. Exclusion or release of the property - Uponapplication of the third person through amotion to set aside the levy on attachment,the court shall order a summary hearing forthe purpose of determining whether thesheriff has acted rightly or wrongly in theperformance of his duties in the execution ofthe writ of attachment.

3. Motion for intervention – a motion forintervention may be filed before therendition of judgment by the trial court.

4. Accion Reivindicatoria - The third partyclaimant is not precluded by Sec. 14, Rule 57from vindicating his claim to the property inthe same or in a separate action. He may filea separate action to nullify the levy withdamages resulting from the unlawful levyand seizure. This action may be a totallydistinct action from the former case.

3.17.6. Rules on redemption

Who may redeem the property sold

Real property sold as provided in the last precedingsection, or any part thereof sold separately, may beredeemed in the manner hereinafter provided, by thefollowing persons:

(a) The judgment obligor; or his successor ininterest in the whole or any part of theproperty;

(b) A creditor having a lien by virtue of anattachment, judgment or mortgage on theproperty sold, or on some part thereof,subsequent to the lien under which theproperty was sold. Such redeeming creditoris termed a redemptioner. Sec. 27, Rule 39

Time and manner of, and amounts payable on,successive redemptions; notice to be given and filed.

The judgment obligor, or redemptioner, may redeemthe property from the purchaser, at any time withinone (1) year from the date of the registration of thecertificate of sale, by paying the purchaser theamount of his purchase, with the per centum permonth interest thereon in addition, up to the time ofredemption, together with the amount of anyassessments or taxes which the purchaser may havepaid thereon after purchase, and interest on such lastnamed amount at the same rate; and if the purchaserbe also a creditor having a prior lien to that of theredemptioner, other than the judgment under whichsuch purchase was made, the amount of such otherlien, with interest.

Property so redeemed may again be redeemed withinsixty (60) days after the last redemption uponpayment of the sum paid on the last redemption, withtwo per centum thereon in addition and the amountof any assessments or taxes which the lastredemptioner may have paid thereon afterredemption by him, with interest on such last namedamount, and in addition, the amount of any liens heldby said last redemptioner prior to his own, withinterest. The property may be again, and as often asa redemptioner is so disposed, redeemed from anyprevious redemptioner within sixty (60) days after thelast redemption, on paying the sum paid on the lastprevious redemption, with two per centum thereon inaddition, and the amounts of any assessments ortaxes which the last previous redemptioner paid afterthe redemption thereon, with interest thereon, and


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the amount of any liens held by the last redemptionerprior to his own, with interest.

Written notice is required

Written notice of any redemption must be given tothe officer who made the sale and a duplicate filedwith the registry of deeds of the place, and if anyassessments or taxes are paid by the redemptioner orif he has or acquires any lien other than that uponwhich the redemption was made, notice thereof mustin like manner be given to the officer and filed withthe registry of deeds; if such notice be not filed, theproperty may be redeemed without paying suchassessments, taxes, or liens.

3.17.7. Examination of judgment obligor whenjudgment is unsatisfied

When the return of a writ of execution issued againstproperty of a judgment obligor, or any one of severalobligors in the same judgment, shows that thejudgment remains unsatisfied, in whole or in part,

1. the judgment obligee, at anytime after suchreturn is made,

2. shall be entitled to an order from the courtwhich rendered the said judgment,

3. requiring such judgment obligor to appearand be examined concerning his propertyand income before such court or before acommissioner appointed by it at a specifiedtime and place; and

4. proceedings may thereupon be had for theapplication of the property and income ofthe judgment obligor towards thesatisfaction of the judgment.

But no judgment obligor shall be so required toappear before a court or commissioner outside theprovince or city in which such obligor resides or isfound.

3.17.8. Examination of obligor of judgmentobligor

When the return of a writ of execution against theproperty of a judgment obligor shows that:

1. the judgment remain unsatisfied, in whole orin part, and

2. upon proof to the satisfaction of the courtwhich issued the writ, that a person,corporation, or other juridical entity hasproperty of such judgment obligor or isindebted to him,

The court may, by an order, require suchperson, corporation, or other juridical entity,or any officer, or member thereof, to appearbefore the court or a commissionerappointed by it, at a time and place withinthe province or city where such debtorresides or is found, and be examinedconcerning the same.

The service of the order shall bind all credits due thejudgment obligor and all money and property of thejudgment obligor in the possession or in the controlof such person corporation, or juridical entity fromthe time of service; and the court may also requirenotice of such proceedings to be given to any party tothe action in such manner as it may deem proper. Sec.37, Rule 39.

3.17.9. Effect of judgment or final orders

The effect of a judgment or final order rendered by acourt of the Philippines, having jurisdiction topronounce the judgment or final order, may be asfollows:

In case of a judgment or final order against a specificthing, or in respect to the probate of a will, or theadministration of the estate of a deceased person,or in respect to the personal, political, or legalcondition or status of a particular person or hisrelationship to another,

The judgment or final order is conclusive upon thetitle to the thing, the will or administration or thecondition, status or relationship of the person,however, the probate of a will or granting of letters ofadministration shall only be prima facie evidence ofthe death of the testator or intestate;


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In other cases,

the judgment or final order is, with respect to thematter directly adjudged or as to any other matterthat could have been missed in relation thereto,conclusive between the parties and their successorsin interest, by title subsequent to the commencementof the action or special proceeding, litigating for thesame thing and under the same title and in the samecapacity; and

In any other litigation between the same parties ortheir successors in interest, that only is deemed tohave been adjudged in a former judgment or finalorder which appears upon its face to have been soadjudged, or which was actually and necessarilyincluded therein or necessary thereto.

3.17.10. Enforcement and effect of foreignjudgments or final orders

The effect of a judgment or final order of a tribunal ofa foreign country, having jurisdiction to render thejudgment or final order is as follows:

In case of a judgment or final order upon a specificthing,

The judgment or final order, is conclusive upon thetitle to the thing, and

In case of a judgment or final order against a person,

The judgment or final order is presumptive evidenceof a right as between the parties and their successorsin interest by a subsequent title.

How to repel foreign judgment or final order

In either case, the judgment or final order may berepelled by evidence of a want of jurisdiction, want ofnotice to the party, collusion, fraud, or clear mistakeof law or fact. Sec. 48, Rule 39.

3.18. PROVISIONAL REMEDIES

3.18.1. Nature of provisional remedies

Provisional remedies can be availed of at thecommencement of the action, or at the time of filingof the complaint or by motion.

Provisional remedies – are temporary, auxiliary, andancillary remedies resorted to by litigants to preserveor protect their rights or interests while the mainaction is pending, to secure judgment, to preserve thestatus quo, or to preserve the subject matter of theaction.

Purposes of provisional remedies –

1. To preserve or protect their rights orinterests while the main action is pending

2. To secure judgment,3. To preserve the status quo, or4. To preserve the subject matter of the action.

Kinds of provisional remedies under the Rules-

1. Preliminary attachment Rule 572. Preliminary injunction Rule 583. Receivership Rule 594. Replevin Rule 605. Support pendent lite Rule 61

Other provisional remedies under the rulespromulgated by the Supreme court:

a. Environmental protection order ( just likeTRO in environmental cases ), AM No 09-6-8-SC, Sec. 8, Rule 2, Part II

b. Writ of Amparo AM No. 07-9-12, Rules onWrit of Amparo

1. Temporary Protection order Sec.14(a)

2. Inspection Order Sec. 14(a)


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3. Production Order Sec. 14(a)4. Witness Protection Order Sec. 14(a)

c. Writ of Habeas Data AM No. 08-1-16-SC

1. Inspection Order Sec. 142. Production Order Sec. 14

d. Declaration of Nullity Absolute Nullity ofVoid Marriages and Annulment of VoidMarriages, AM No. 02-11-10-SC, 2003, andProvisional Orders AM No. 02-11-12, 2003

1. Spousal Support, Sec. 2onRule onProvisional Orders

2. Child Support, Sec., 33. Child Custody, Sec. 44. Visitation Rights, Sec. 55. Hold Departure Order, Sec. 66. Order of Protection, Sec. 6

e. Custody of Minors and Writ of HabeasCorpus in relation to Custody of Minors, AMNo. 03-04-04, 2003

1. Provisional Order awardingcustody, Sec. 13

2. Temporary Visitation Rights, Sec. 153. Hold Departure Order, Sec. 164. Protection Order, Sec. 17

f. Violence against women and children, AMNo. 04-10-11, 2004

1. Protection Order (TRO) Sec. 7.2. Barangay Protection Order, Sec. 42.

g. Alternative Dispute Resolution – AM No.070-11-08, 2009

Interim Measure of Protection, Rule 5.6:

1. Preliminary injunction directedagainst a party to arbitration

2. Preliminary attachment againstproperty or garnishment of funds incustody of bank or a third person

3. Appointment of a receiver4. Detention, preservation, delivery or

inspection of property5. Assistance in the enforcement of an

interim measure of protectiongranted by the arbitral tribunal,which the latter cannot enforceeffectively

h. Civil forfeiture, assets preservation, andfreezing of monetary instrument, property,or proceeds, representing, involving, orrelating to an unlawful activity or moneylaundering offense under RA 9160, asamended. AM No. 5-11-04

1. Asset preservation order, Sec. 11,Title III, AM No. 05-11-04

Courts which can grant provisional remedies

Supreme Court, CA, RTC, MTC, McTC, MTC can issuethe provisional remedies:

1. Attachment2. Injunction3. Receivership, and4. Replevin

The support pedente lite can only be issued byRegional Trial Court/Family Court since an action forsupport can only be filed with it being an actionsubject matter of which is incapable of pecuniaryestimation.

3.18.2. Jurisdiction over provisional remedies

The court which grants or issues a provisional remedyis the court which has jurisdiction over the mainaction.

Even an inferior court may grant a provisional remedyin an action pending with it and within its jurisdiction.


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3.18.3. Preliminary attachment (Rule 57)

Preliminary attachment – is a provisional remedyissued upon order of the court where the action ispending, to be levied upon the property or propertiesof the defendant therein, the same to be heldthereafter by the sheriff as security for thesatisfaction of whatever judgment might be renderedin said action in favor of the attaching creditor againstthe defendant, Virata vs Aquino, Sept 10. 1973

Nature of attachment –Purely statutory remedy

The provisions thereof must be strictly construed.Courts have consistently held that no court has noauthority to issue writ of attachment without expressstatutory permission.

a) Grounds for issuance of writ of attachment

Grounds for preliminary attachment-

1. In an action for the recovery of a specifiedamount of money or damages, other thanmoral and exemplary, on a cause of actionarising from law, contract, quasi-contract,delict or quasi-delict against a party who isabout to depart from the Philippines withintent to defraud his creditors;

2. In an action for money or propertyembezzled or fraudulently misapplied orconverted to his own use by a public officer,or an officer of a corporation, or an attorney,factor, broker, agent, or clerk, in the courseof his employment as such, or by any otherperson in a fiduciary capacity, or for a willfulviolation of duty;

3. In an action to recover the possession ofproperty unjustly or fraudulently taken,detained or converted, when the property,or any part thereof, has been concealed,removed, or disposed of to prevent its beingfound or taken by the applicant or anauthorized person;

4. In an action against a party who has beenguilty of a fraud in contracting the debt orincurring the obligation upon which theaction is brought, or in the performancethereof;

5. In an action against a party who hasremoved or disposed of his property, or isabout to do so, with intent to defraud hiscreditors; or

6. In an action against a party who does notreside and is not found in the Philippines, oron whom summons may be served bypublication. (1a)

When preliminary attachment can be availed of-

At the commencement of the action or at any timebefore entry of the judgment, a plaintiff or any properparty may have the property of the adverse partyattached as security for satisfaction of any judgmentthat may be recovered in the cases enumeratedabove.

The mere change in the name of the plaintiff in theamended complaint does not affect the validity ofthe attachment.

Attachment is not available if the property is inpossession of the attaching creditor. Calo vs Roldan,76 Phil 445

Attachment is available if the defendant disposinghis properties, to evade the payment of hisindebtedness to the plaintiff. The subsequent liftingof the writ upon filing of a counterbond by thedefendant did not ipso facto make the writ unlawful.

Lien obtained by attachment is equivalent to a“vested interest”, an actual and substantial securityaffording specific security for satisfaction of debt, putin a suit, which constitutes a cloud in the title. Eventhough inchoate, it is a lien in a real sense.Government, et. al vs Mercado


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Preference of attachment over an unsecured debt,

Not even a judgment on an unsecured debt couldprevail over a prior attachment.

Attachment is inferior to the mortgage of theconsortium bank

Properties of a non-resident defendant in thePhilippines can be attached, through the process ofgarnishment or attachment.

b) Requisites

Requirements for issuance of writ of attachment:

When it appears by the affidavit of the applicant, orof some other person who personally knows the factsthat:

1. That a sufficient cause of action exists,2. That the case is one of those mentioned in

section 1 hereof,3. That there is no other sufficient security for

the claim sought to be enforced by theaction,

4. That the amount due to the applicant, or thevalue of the property the possession ofwhich he is entitled to recover, is as much asthe sum for which the order is granted aboveall legal counterclaims.

5. The affidavit, and the bond required by thenext succeeding section, must be duly filedwith the court before the order issues

c) Issuance and contents of order of attachment;affidavit and bond

The party applying for the order must thereafter givea bond executed to the adverse party in the amountfixed by the court in its order granting the issuance ofthe writ, conditioned that:

1. The latter will pay all the costs which may beadjudged to the adverse party and

All damages which he may sustain by reason of theattachment, if the court shall finally adjudge that theapplicant was not entitled thereto.

d) Rule on prior or contemporaneous service ofsummons

When the contemporaneous service of summonsare not required In levy on attachment-

The requirement of prior or contemporaneousservice of summons shall not apply:

1. Where the summons could not be servedpersonally or by substituted service despitediligent efforts, or

2. The defendant is a resident of the Philippinestemporarily absent therefrom, or

3. The defendant is a non-resident of thePhilippines, or

The action is one in rem or quasi in rem.

e) Manner of attaching real and personal property;when property attached is claimed by third person

How can property be attached-

The sheriff enforcing the writ shall without delay andwith all reasonable diligence attach, to awaitjudgment and execution in the action, only so muchof the property in the Philippines of the party againstwhom the writ is issued, not exempt from execution,as may be sufficient to satisfy the applicant's demand,unless the former makes a deposit with the courtfrom which the writ is issued, or gives a counter-bondexecuted to the applicant, in an amount equal to thebond fixed by the court in the order of attachment orto the value of the property to be attached, exclusiveof costs.

What is the remedy of the party against whom thewrit was issued-

A party against whom the writ was issued may makea deposit with the court from which the writ is issued,


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or gives a counter-bond executed to the applicant, inan amount equal to the bond fixed by the court in theorder of attachment or to the value of the property tobe attached, exclusive of costs.

What are the requirements before the sheriff caneffect levy on attachment-

No levy on attachment pursuant to the writ issuedunder section 2 hereof shall be enforced unless it ispreceded, or contemporaneously served by:

1. Service of summons2. Cop of the complaint3. Applicant’s affidavit and bond4. The order and writ of attachment, on the

defendant within the Philippines

Real property:

Real property, or growing crops thereon, or anyinterest therein, standing upon the record of theregistry of deeds of the province in the name of theparty against whom attachment is issued, or notappearing at all upon such records, or belonging tothe party against whom attachment is issued and heldby any other person, or standing on the records of theregistry of deeds in the name of any other person, by:

1. Tiling with the registry of deeds a copy of theorder, together with a description of theproperty attached, and

2. A notice that it is attached, or that such realproperty and any interest therein held by orstanding in the name of such other personare attached, and

3. By leaving a copy of such order, description,and notice with the occupant of theproperty, if any, or with such other person orhis agent if found within the province.

4. Where the property has been brought underthe operation of either the Land RegistrationAct or the Property Registration Decree, thenotice shall contain a reference to thenumber of the certificate of title, the volume

and page in the registration book where thecertificate is registered, and the registeredowner or owners thereof.

Duty of the Registry of Deeds after levy onattachment-

The registrar of deeds must:

1. Index attachments filed under this section inthe names of the applicant, the adverseparty, or the person by whom the propertyis held or in whose name it stands in therecords.

2. If the attachment is not claimed on theentire area of the land covered by thecertificate of title, a description sufficientlyaccurate for the identification of the land orinterest to be affected shall be included inthe registration of such attachment

Personal property:

Stocks or shares, or an interest in stocks or shares, ofany corporation or company:

1. By leaving with the president or managingagent thereof, a copy of the writ.

2. A notice stating that the stock or interest ofthe party against whom the attachment isissued is attached in pursuance of such writ;

Stocks and shares of the defendant may beattached if their situs is within thePhilippines. The situs of corporation stocksand shares is within the PH if the corporationis domiciled therein.

Debts and credits, including bank deposits, financialinterest, royalties, commissions, and other propertynot capable of manual delivery by:

a. Leaving with the person owing such debts, orhaving in his possession or under his control,such credit or other personal property, orwith his agent, a copy of the writ.


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b. Leaving a notice that the debts owing by himto the party against whom attachment isissued, and the credits and other personalproperty in his possession, or under hiscontrol, belonging to said party, are attachedin pursuance of such writ.

f) Discharge of attachment and the counter-bond

What is the remedy of the party whose property hasbeen attached?

After a writ of attachment has been enforced, theparty whose property has been attached, or theperson appearing on his behalf, may move for thedischarge of the attachment wholly or in part on thesecurity given.

Discharge by filing a counter-bond

The court shall, after due notice and hearing, orderthe discharge of the attachment subject to thecondition that:

1. The movant makes a cash deposit, or files acounter-bond executed to the attachingparty with the clerk of the court where theapplication is made, in an amount equal tothat fixed by the court in the order ofattachment, exclusive of costs.

2. If the attachment is sought to be dischargedwith respect to a particular property, thecounter-bond shall be equal to the value ofthat property as determined by the court.

3. In either case, the cash deposit or thecounter-bond shall secure the payment ofany judgment that the attaching party mayrecover in the action. A notice of the depositshall forthwith be served on the attachingparty.

What are the effects of the discharge?

Upon the discharge of an attachment in accordancewith the provisions of this section the discharge hasthe following effects:

1. The property attached, or the proceeds ofany sale thereof, shall be delivered to theparty making the deposit or giving thecounter-bond, or to the person appearing onhis behalf

2. The deposit or counter-bond aforesaidstanding in place of the property so released.

Remedy of the applicant if the counter-bond isinsufficient or failed to file additional bond-

Should such counter-bond for any reason be found tobe or become insufficient, and the party furnishingthe same fail to file an additional counter-bond, theattaching party may apply for a new order ofattachment.

The subsequent lifting of the writ upon the filing ofa counter-bond by the defendant did not ipso factomake the writ unlawful.

Only the defendant, or the party whose property hasbeen attached, and no a stranger, may apply for thedischarge of an attachment.

Discharge by other gourds

What is the remedy of the party against whomattachment is issued?

The party whose property has been ordered attachedmay:

File a motion with the court in which he action ispending, before or after levy or even after therelease of the attached property, for an order to setaside or discharge the attachment


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What are the grounds for setting aside of the writ ofattachment-

a. That the same was improperly or irregularlyissued or enforced

b. The bond is insufficient.c. If the attachment is excessive, the discharge

shall be limited to the excess.

The burden of proof lies with the creditor if themotion to quash is filed.

Remedy of the attaching party-

If the motion be made on affidavits on the part of themovant but not otherwise, the attaching party mayoppose the motion by counter-affidavits or otherevidence in addition to that on which the attachmentwas made.

Courses of action of the court-

After due notice and hearing, the court shall orderthe setting aside or the corresponding discharge ofthe attachment if it appears that it was improperly orirregularly issued or enforced, or that the bond isinsufficient, or that the attachment is excessive, andthe defect is not cured forthwith.

Family home is exempt from execution and alsoexempt from attachment and forced sale, Art. 155 ofFamily Code.

g) Satisfaction of judgment out of property attached

How can the judgment be satisfied by the attachedproperty?

If judgment be recovered by the attaching party andexecution issue thereon, the sheriff may cause thejudgment to be satisfied out of the property attached,if it be sufficient for that purpose in the followingmanner:

1. By paying to the judgment obligee theproceeds of all sales of perishable or otherproperty sold in pursuance of the order of

the court, or so much as shall be necessaryto satisfy the judgment;

2. if any balance remains due, by selling somuch of the property, real or personal, asmay be necessary to satisfy the balance, ifenough for that purpose remain in thesheriff's hands, or in those the clerk of thecourt;

3. By collecting from all persons having in theirpossession credits belonging to thejudgment obligor, or owing debts to thelatter at the time of the attachment of suchcredits or debts, the amount of such creditsand debts as determined by the court in theaction, and stated in the judgment, andpaying the proceeds of such collection overto the judgment obligee.

The sheriff must make a return-

The sheriff shall forthwith make a return in writing tothe court of his proceedings under this section andfurnish the parties with copies thereof

3.18.4. Preliminary injunction (Rule 58)

Preliminary injunction – order granted at any stageof an action or proceeding prior to the judgment orfinal order, requiring a party or a court, agency or aperson to refrain from a particular act or acts. It mayalso require the performance of particular acts, whichis known as preliminary mandatory injunction.

Injunction is a judicial writ, process or proceedingwhereby a party is directed to either to do a particularact, in which case it is called a mandatory injunctionor to refrain from doing an act, in which case is calledprohibitory injunction.

Purpose of injunction / definition of status quo

The primary purpose of the injunction is to preservethe status quo by restraining action or interference orfurnishing preventive relief.


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The status quo is the last actual peaceable,uncontested status which precedes the pendingcontroversy.

a) Definitions and differences: preliminaryinjunction and temporary restraining order; statusquo ante order

Preliminaryinjunction

Temporaryrestrainingorder

Status QuoOrder

An ordergranted at anystage of anaction orproceedingprior to thejudgment orfinal order,requiring aparty or acourt, agencyor a person toeither refrainfrom or toperform aparticular actor acts duringthe pendencyof the action.

Issued topreserve thestatus quo636until thehearing of theapplication forpreliminaryinjunction.

Nature ofcease anddesist order;

Remains untilit is dissolved

Cannot begrantedwithout noticeand hearing.

Has a lifetimeonly of 20 daysor 60 days.

An order tomaintain thestatus quobetween andamong theparties untilthedeterminationof the prayerfor a writ ofpreliminaryinjunction

No specifiedduration (lastsuntil revoked)

The court inwhich theapplication forpreliminaryinjunction wasmade mayissue a TRO exparte for aperiod notexceeding 20days fromservice to theparty soughtto be enjoined.

May begranted exparte if it shallappear fromfacts shown byaffidavits or bythe verifiedapplicationthat great orirreparableinjury wouldresult to theapplicantbefore thematter can beheard onnotice.

Bond is notrequired

b) Requisites

Requisites for injunction:

1. There must be a verified petition2. The application must establish that he has a

right of relief3. The applicant must establish that there is a

need to restrain the commission orcontinuance of the acts complained

4. A bond must be posted, unless exempted5. The threatened injury must be incapable of

pecuniary estimation

c) Kinds of injunction

Kinds of injunction

Preliminary injunction – an order granted at anystage of an action or proceeding prior to thejudgment or final order.

Prohibitory injunction – which commands a party torefrain from doing a particular act

Mandatory injunction – which commands theperformance of some positive act to correct a wrongin the past.

Preliminary prohibitory injunction – an ordergranted at any stage of an action or proceeding prior


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to the judgment or final order, requiring a party, orcourt, agency or a person to refrain from doingparticular act or acts.

Preliminary mandatory injunction – an order grantedat any stage of the action or proceeding prior to thejudgment or final order requiring the performance ofparticular act or acts.

Final/Permanent injunction – one issued in thejudgment in the case permanently restraining thedefendant or making the preliminary

Writ of injunction is not a judgment on merits:Hearing on the application is therefore required.

The nature of action for injunction is in personam,until the final determination of the case. Munoz vsYabut, June 6 2011

d) When writ may be issued

For injunction to issue, there must be:

1. There must be a right to be protected2. The acts against which the injunction is to be

directed are violative of such right.

e) Grounds for issuance of preliminary injunction

Grounds for injunction:

1. That the applicant is entitled to the reliefdemanded, and the whole or part of suchrelief consists in restraining the commissionor continuance of the act or acts complainedof, or in requiring the performance of an actor acts either for a limited period orperpetually;

2. That the commission, continuance or non-performance of the act or acts complained ofduring the litigation would probably workinjustice to the applicant; or

3. That a party, court, agency or a person isdoing, threatening, or is attempting to do, oris procuring or suffering to be done someact or acts probably in violation of the rights

of the applicant respecting the subject ofthe action or proceeding, and tending torender the judgment ineffectual.

For injunction to issue, there must be:

1. There must be a right to be protected2. The acts against which the injunction is to be

directed are violative of such right.

As an adjunct to the main action subject to the latter’soutcome, on the other hand, a writ of preliminaryinjunction may be issued upon the concurrence of thefollowing essential requisites:

1. That the invasion of the right is material andsubstantial

2. That the right of complainant is clear andunmistakable

3. That there is an urgent and paramountnecessity for the writ to prevent seriousdamage.

“Clear legal right” meaning: Must be present

It contemplates a right “clearly founded in or grantedby law.” In the absence, of a clear legal right, theissuance of the writ constitutes grave abuse ofdiscretion.

The injunctive writ is conditioned on the existence ofa clear and positive right of the applicant of theapplicant which should be protected, the writ beingthe strong arm of equity, an extraordinaryperemptory remedy which can be availed of onlyupon the existence of well-defined circumstances.

Doctrine of the “Strong Arm of the Equity” – injunction.

The court has consistently ruled that there is nopower the exercise of which is more delicate andwhich calls for greater circumspection than theissuance of an injunction. It should only be extendedin cases of great injury where courts of law cannot


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afford an adequate or commensurate remedy indamages; “in cases of extreme urgency; where theright is very clear; where considerations of relativeinconvenience bear strongly in complainant’s favor;where there is a willful and unlawful invasion ofplaintiff’s right against his protest and remonstrance,the injury being a continuing one, and where theeffect of mandatory injunction is rather to re-establish and maintain a pre-existing continuingrelation between the parties, recently and arbitrarilyinterrupted by the defendant, than to establish a newrelation. Thunder Security and Investigation Agencyvs National Food Authority.

f) Grounds for objection to, or for the dissolution ofinjunction or restraining order

a) The application for injunction or restrainingorder may be denied, upon a showing of itsinsufficiency.

b) The injunction or restraining order may alsobe denied, or, if granted, may be dissolved,on other grounds upon affidavits of the partyor person enjoined, which may be opposedby the applicant also by affidavits.

c) It may further be denied, or if granted, maybe dissolved, if it appears after hearing thatalthough the applicant is entitled to theinjunction or restraining order, the issuanceor continuance thereof, as the case may be,would cause irreparable damage to the partyor person enjoined while the applicant canbe fully compensated for such damages ashe may suffer, and the former files a bond inan amount fixed by the court conditionedthat he will pay all damages which theapplicant may suffer by the denial or thedissolution of the injunction or restrainingorder.

If it appears that the extent of the preliminaryinjunction or restraining order granted is too great, itmay be modified

g) Duration of a Temporary Restraining Order (TRO)

TRO – an interlocutory order or writ issued by thecourt as a restraint on the defendant until the

propriety of granting an injunction can bedetermined, thus doing no further in its operationthan to preserve the status quo until thatdetermination.

The urgent nature of an injunction or TRO casedemands a prompt action and immediate attention,thereby compelling the filing of the case in the propercourt without delay.

Purpose of a TRO or injunction

The purpose of a TRO is to prevent a threatenedwrong and to protect the property or rights involvedfrom further injury, until the issues can bedetermined after hearing on the merits.

When can a temporary restraining order be issued-

If it shall appear from facts shown by affidavits or bythe verified application that great or irreparableinjury would result to the applicant before the mattercan be heard on notice, the court to which theapplication for preliminary injunction was made, mayissue a temporary restraining order to be effectiveonly for a period of twenty (20) days from service onthe party or person sought to be enjoined, except asherein provided.

What are the actions of the court within the 20 dayperiod-

1. Order said party or person to show cause, ata specified time and place, why theinjunction should not be granted,

2. The court shall also determine within thesame period whether or not the preliminaryinjunction shall be granted, and

3. Accordingly issue the corresponding order.

The test in the issuance of a TRO or injunction-

The injunction may be issued only when the plaintiffappears to be entitled to the main relief he asks in hiscomplaint. This mean that the plaintiff’s allegationsshould show clearly that he has cause of action.


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The power to stay proceedings: Discretionary uponthe court-

The power to stay proceedings is incidental to thepower inherent in every court to control thedisposition of the cases on its dockets, considering itstime and effort, that of counsel and the litigants.

Grant of injunctive writ: Discretionary.

The grant or denial of a writ of preliminary injunctionin a pending case rests on the sound discretion of thecourt taking cognizance of the case, since theassessment and evaluation of the evidence towardthe end involves findings of fact left to the said courtfor its conclusive determination.

Can the court issue a temporary restraining order exparte-

However, and subject to the provisions of thepreceding sections, , the executive judge of amultiple-sala court or the presiding judge of a singlesala court may issue ex parte a temporary restrainingorder based on the following grounds:

1. If the matter is of extreme urgency and2. The applicant will suffer grave injustice and

irreparable injury

What is the period of effectively of temporaryrestraining order issued ex parte? Service ofsummons and documents.

The temporary restraining order effective for onlyseventy-two (72) hours from issuance but he shallimmediately comply with the provisions of the nextpreceding section as to service of summons and thedocuments to be served therewith.

Can the period of the 72-hour effectively beextended? Total period.

Yes. Within the aforesaid seventy-two (72) hours, thejudge before whom the case is pending shall conducta summary hearing to determine whether thetemporary restraining order shall be extended until

the application for preliminary injunction can beheard. In no case shall the total period of effectivityof the temporary restraining order exceed twenty(20) days, including the original seventy-two hoursprovided herein.

What is the effect of the denial or non-resolutionwithin 20-day period?

In the event that the application for preliminaryinjunction is denied or not resolved within the saidperiod, the temporary restraining order is deemedautomatically waived.

Can the restraining order be extended? Prohibition.

The effectively of a temporary restraining order is notextendible without the need of any judicialdeclaration to that effect, and no court shall have theauthority to extend or renew the same on the groundfor which it was issued.

What is the lifetime of the TRO issued by the Courtof Appeals?

If the temporary restraining order is issued by theCourt of Appeals or member thereof, it shall beeffective for 60 days from the service on the party orperson sought to be enjoined.

What is the lifetime of the TRO issued by theSupreme Court?

A restraining order issued by the Supreme Court or amember thereof shall be effective until furtherorders.

Period to resolve the main case or the petition

The trial court, the Court of Appeals, theSandiganbayan or the Court of Tax Appeals thatissued a writ of preliminary injunction against a lowercourt, board, officer or quasi-judicial agency shalldecide the main case or petition within the sixmonths from the issuance thereof.

General rule is that injunction is not available foracts already done, exception.


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As a rule, the writ of prohibition will not lie to enjoinacts already done. However, as an exception to therule on mootness, courts will decide a questionotherwise moot if it is capable or repetition yetevading review.

General Rule – Injunction cannot restrain theexecution of judgment; exceptions-

The general rule is that after a judgment has grantedfinality, it becomes the ministerial duty of the courtto order its execution. No court should interfere, byinjunction or otherwise, to restrain such execution.

Exceptions:

1. When the facts and circumstances latertranspire that would render the executioninequitable or unjust,

2. When there is a change in situation of theparties that may warrant injunctive relief.

The issuance of the writ should not in effect be a pre-judgment of the case. Rivas vs SEC, 1990

h) In relation to R.A. No. 8975, ban on issuance ofTRO or writ of injunction in cases involvinggovernment infrastructure projects

Sec. 3, of R.A. No. 8975 provides:

Section 3.Prohibition on the Issuance ofTemporary Restraining Orders,Preliminary Mandatory Injunctions. –No court, except the Supreme Court,shall issue any temporary restrainingorder, preliminary injunction orpreliminary mandatory injunctionagainst the government, or any of itssubdivisions, officials or any person orentity, whether public or private actingunder the government direction, torestrain, prohibit or compel thefollowing acts:

(a) Acquisition, clearance anddevelopment of the right-of-way and/or site or location of

any national governmentproject;

(b) Bidding or awarding ofcontract/ project of thenational government asdefined under Section 2hereof;

(c) Commencementprosecution, execution,implementation, operation ofany such contract or project;

(d) Termination or rescissionof any such contract/project;and

(e) The undertaking orauthorization of any otherlawful activity necessary forsuch contract/project.

This prohibition shall apply in all cases,disputes or controversies instituted bya private party, including but notlimited to cases filed by bidders orthose claiming to have rights throughsuch bidders involving suchcontract/project. This prohibition shallnot apply when the matter is ofextreme urgency involving aconstitutional issue, such that unless atemporary restraining order is issued,grave injustice and irreparable injurywill arise. The applicant shall file abond, in an amount to be fixed by thecourt, which bond shall accrue in favorof the government if the court shouldfinally decide that the applicant wasnot entitled to the relief sought.

i) Rule on prior or contemporaneous service ofsummons in relation to attachment

Rule: In any event, the notice of application shall bepreceded, or contemporaneously accompanied, byservice of summons, together with a copy of thecomplaint or initiatory pleading and the applicant's


Pg.96

affidavit and bond, upon the adverse party in thePhilippines.

When the contemporaneous service of summons isnot required?

1. Where the summons could not be servedpersonally or by substituted service despitediligent efforts

2. The adverse party is a resident of thePhilippines temporary absent therefrom

3. He is a non-resident thereof.

3.18.5. Receivership (Rule 59)

Receivership – ancillary to the main action, directedto the property which is the subject of the originalaction to protect and preserve the rights of theparties during the pendency of the main action,during the pendency of appeal, or as an aid in theexecution of judgment when the writ of execution hasbeen returned unsatisfied.

a) Cases when receiver may be appointed

Grounds for appointment of a receiver:

1. The party applying for the appointment of areceiver has an interest in the property orfund which is the subject of the action orproceeding and such party or fund is indanger of being lost, removed or materiallyinjured;

2. In an action for the foreclosure of amortgage that the property is in danger ofbeing wasted, dissipated, or materiallyinjured and that its value is probablyinsufficient to discharge the debt or that theparties have so stipulated in the contract ofmortgage;

3. After judgment, to preserve the propertyduring the pendency of appeal, or dispose ofit according to the judgment, or to aidexecution when execution has beenreturned unsatisfied or the judgment-obligor refuses to apply his property insatisfaction of the judgment; OR

4. When appointment of receiver is the mostconvenient and feasible means ofpreserving, administering, or disposing ofthe property in litigation.

b) Requisites

1. Verified application filed by the partyapplying for the appointment ofreceivership;

2. Affidavit which shows the applicant’sinterest and grounds to which it is based;

3. Notice and hearing;4. Applicant should post a bond in which the

amount shall be fixed by the court;5. When the receiver is appointed, he shall also

file a bond; AND6. Receiver must be sworn to perform his

duties faithfully.

c) Requirements before issuance of an order

Before issuing the order appointing a receiver thecourt shall require the applicant to file a bondexecuted to the party against whom the application ispresented, in an amount to be fixed by the court, tothe effect that the applicant will pay such party alldamages he may sustain by reason of theappointment of such receiver in case the applicantshall have procured such appointment withoutsufficient cause; and the court may, in its discretion,at any time after the appointment, require anadditional bond as further security for such damages.

d) General powers of a receiver

The powers of a receiver are the following:

1. To bring and defend actions in his ownname, in his capacity as receiver;

2. To take and keep possession of the propertysubject of the controversy;

3. To receive rents;4. To collect dues to himself or to the fund or

property of which he is the receiver;5. To compound for and to compromise the

same;


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6. To make transfers;7. To pay outstanding debts; and8. Generally, to do such acts representing the

property as the court may authorize.

e) Two kinds of bonds

1. Applicant’s Bond (for appointment ofreceiver) – To pay the damages the adverseparty may sustain by reason of appointmentof receiver; and

2. Receiver’s Bond (of the appointed receiver,aside from oath) – To answer for receiver’sfaithful discharge of his duties.

f) Termination of receivership

Grounds:

1. If necessity of a receiver no longer exist;2. Aster notice and hearing;3. Receiver should settle the accounts;4. Direct the delivery of the funds or other

property on his possession to the personentitled to receive them;

How the termination is made:

Motu propio or upon motion of either party.

Court should order the discharge of the receiver fromfurther duty as such.

Receiver shall be entitled to reasonablecompensation to be taxed against the defeated party.

3.18.6. Replevin (Rule 60)

Replevin is a remedy, the purpose of which is torecover personal property. It may be a main action orprovisional remedy.

a) As a main action, its ultimate goal is to recoverthe personal property capable of manual deliverywrongfully detained by a person.

b) As a provisional remedy, it seeks to recoverpossession of the property prior to thedetermination of the principal action.

Procedure for Application for Replevin

1. File an application for a writ of replevin atthe commencement off the action or beforethe defendant answers;

2. Attached to the application is an affidavitwhich contains the following:

a. That the applicant is the owner or isentitled to the possession of aproperty particularly described,

b. Must state that the property waswrongfully detained by the adverseparty and alleging the cause ofdetention,

c. That the property has not beendistrained or taken for taxassessment, fine pursuant to law,seized under writ of execution orpreliminary attachment, or placedunder custodial egis, or if so, such isexempt from seizure and custody,and

d. The actual market value of theproperty.

3. Applicant must give a bond, executed to theadverse party, double the value of theproperty.

Sheriff’s duty in the implementation of the writ;when property is claimed by third party

Order of the court and duty of the sheriff:

1. Approval of application;2. Issue writ of replevin ordering the sheriff to

take the property into his custody (Sec. 3);3. Sheriff should serve a copy of the order to

the adverse party, together with the copy ofthe application, affidavit, and bond, and takecustody of the property (Sec. 4); and


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4. If after five (5) days and the adverse partydoes not object, the property shall bedelivered to the applicant.

If property is claimed by third party

If the property taken is claimed by any person otherthan the party against whom the writ of replevin hadbeen issued or his agent, and such person makes anaffidavit of his title thereto, or right to the possessionthereof, stating the grounds therefor, and serves suchaffidavit upon the sheriff while the latter haspossession of the property and a copy thereof uponthe applicant, the sheriff shall not be bound to keepthe property under replevin or deliver it to theapplicant unless the applicant or his agent, ondemand of said sheriff, shall file a bond approved bythe court to indemnify the third-party claimant in asum not less than the value of the property underreplevin as provided in section 2 hereof. In case ofdisagreement as to such value, the court shalldetermine the same.

No claim for damages for the taking or keeping, of theproperty may be enforced against the bond unlessthe action therefor is filed within one hundred twenty(120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages, for thetaking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothingherein contained shall prevent such claimant or anythird person from vindicating his claim to theproperty, or prevent the applicant from claimingdamages against a third-party claimant who filed afrivolous or plainly spurious claim, in the same or aseparate action. Sec. 7, Rule 60.

3.19. SPECIAL CIVIL ACTION

3.19.1. Nature of special civil actions

Special civil actions are basically ordinary civilproceedings; what makes them special are thedistinct peculiarities inherent in their very nature notfound in ordinary civil actions.

They are actions in themselves, but possessing specialmatters that required special procedures.

For this reason, these proceedings are classified asspecial civil actions.

3.19.2. Ordinary civil actions versus special civilactions

Ordinary civil action Special Civil Action

Based on a cause ofaction, act or omissionby which one violatesthe right of another

Not all is based oncause of action likedeclaratory relief andinterpleader

May be filed in RTC orMTC depending onvalue

Some are filed only inMTC like Forcible Entryand Unlawful Detainer

Venue is determined bythe residence of theparties or the locationof property

Not necessarily the case

Ordinarily initiated bycomplaints

Petitions andcomplaint,

Initiated by filing of Petitions:

1. Declaratory relief other than similarremedies

2. Review of adjudication of COMELEC and COA3. Petitions for Certiorari, prohibition and

mandamus4. Quo warranto5. Contempt


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Initiated by filing of a complaint:

1. Interpleader2. Expropriation3. Foreclosure of real estate mortgage4. Partition5. Forcible entry and unlawful detainer

3.19.3. Jurisdiction and venue

The subject matter of a petition for declaratory reliefraises issues which are not capable of pecuniaryestimation and must be filed with the Regional TrialCourt. It would be error to file the petition with the

Supreme Court which has no original jurisdiction toentertain a petition for declaratory relief.

3.19.4. Interpleader (Rule 62)

Interpleader – It is a special civil action filed by aperson, who has property in his possession or anobligation to render, wholly or partially, againstwhom two conflicting claims are made upon the samesubject matter and over which he claims no interest,or have an interest which in whole or in part is notdisputed by the claimants, to compel the claimants tointerplead and to litigate their conflicting claimsamong themselves.

InterpleaderComplaint inIntervention

a. Original Actionb. Presupposes that

the plaintiff has nointerest in thesubject matter ofthe action or has aninterest thereinwhich, in whole orin part, is notdisputed by theother parties to theaction

c. Defendants arealready original

a. Ancillary Actionb. Is proper in any of

the four situationsmentioned in Rule19, wherein thirdperson has legalinterest over thesubject matter ofaction or in thesuccess of either orboth defendant, orwill greatlyaffected in thedisposition of the

parties to thepending suit

property subject ofthe action

c. Defendants arebeing suedprecisely toimplead them

a) Procedure and requisites for interpleader; whento file

Whenever conflicting claims upon the same subjectmatter are or may be made against a person whoclaims:

1. No interest whatever in the subject matter,or

2. An interest which in whole or in part is notdisputed by the claimants

He may bring an action against theconflicting claimants to compel them tointerplead and litigate their several claimsamong themselves.

The sheriff who is in possession of the proceeds of thesale of property on execution may file action forinterpleader.

Lessee may file an action for interpleader if he is indoubt as to whom he shall pay the rent.

Action for interpleader must be filed within thereasonable time after the dispute has arisen,otherwise it may be barred by laches. Wack-WackGolf and Country Club vs Lee Wo, March 26, 1976

Interpleader cannot be availed of to resolve the issueof breach of undertakings made by defendants, whichissues should be resolved in ordinary action forspecific performance. Beltran vs PHHC, Aug 28, 1969

When to file motion to dismiss –

Within the time for filing an answer.


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Grounds:

1. Impropriety of the interpleader action or2. On other appropriate grounds specified in

Rule 16.

The period to file the answer shall be tolled

If the motion is denied,

The movant may file his answer within theremaining period, but which shall not be lessthan five (5) days in any event, reckonedfrom notice of denial

Answer and other pleadings

Each claimant shall:

1. File his answer setting forth his claim withinfifteen (15) days from service of thesummons upon him,

2. Serving a copy thereof upon each of theother conflicting claimants who may filetheir reply thereto as provided by theseRules.

If any claimant fails to plead within the time hereinfixed,

The court may, on motion, declare him indefault and thereafter render judgmentbarring him from any claim in respect to thesubject matter.

The parties in an interpleader action may file:

1. counterclaims,2. cross-claims,3. third-party complaints and4. responsive pleadings thereto, as provided by

these Rules.

3.19.5. Declaratory reliefs and similar remedies(Rule 63)

a) Who may file the action

Who may file petition. —

1. Any person interested under a deed, will,contract or other written instrument, or

2. Whose rights are affected by a statute,executive order or regulation, ordinance, orany other governmental regulation

Before breach or violation thereof, they may:

1. Bring an action in the appropriate RegionalTrial Court

2. To determine any question of constructionor validity arising, and for a declaration of hisrights or duties, thereunder. (Bar Matter No.803, 17 February 1998)

Other actions can be brought under this rule

An action for the reformation of an instrument,

1. to quiet title to real property or2. remove clouds therefrom, or3. to consolidate ownership under Article 1607

of the Civil Code,

Who can be parties

All persons who have or claim any interest whichwould be affected by the declaration shall be madeparties

(b) Requisites of action for declaratory relief

1. The subject matter must be a deed, will,contract or other written instrument,statute, executive order or regulation orordinance;

2. The terms of said document or the validitythereof are doubtful and require judicialconstruction;


Pg.101

3. There must have been no breach of saiddocument;

4. There must be actual justiciable controversyor the ripening seeds of one (there isthreatened litigation the immediate future);

5. There must be allegation of any threatened,imminent and inevitable violation ofpetitioner’s right sought to be prevented bythe declaratory relief sought;

6. The controversy is between persons whoseinterests are adverse;

7. The issue must be ripe for judicialdetermination e.g. administrative remediesalready exhausted;

8. The party seeking the relief has legal interestin the controversy; and

9. Adequate relief is not available thru othermeans.

(c) When court may refuse to make judicialdeclaration

Except in actions falling under the second paragraphof section 1 of this Rule, the court,

1. motu proprio or2. upon motion,

May refuse to exercise the power to declarerights and to construe instruments:

1. In any case where a decision would notterminate the uncertainty or controversywhich gave rise to the action, or

2. In any case where the declaration orconstruction is not necessary and properunder the circumstances.

d) Conversion to ordinary action

If before the final termination of the case, a breach orviolation of an instrument or a statute, executiveorder or regulation, ordinance, or any othergovernmental regulation should take place,

1. The action may thereupon be converted intoan ordinary action, and

2. The parties shall be allowed to file suchpleadings as may be necessary or proper.

3.19.6. Review of judgments and final orders orresolution of the Comelec and COA (Rule 64)

a) Application of Rule 65 under Rule 64

This Rule 64 shall govern the review of judgments andfinal orders or resolutions of the Commission onElections and the Commission on Audit.

Mode of review

A judgment or final order or resolution of theCommission on Elections and the Commission onAudit may be brought by the aggrieved party to theSupreme Court on certiorari under Rule 65

Period of filing

The petition shall be filed:

1. Within thirty (30) days2. From notice of the judgment or final order

or resolution sought to be reviewed.

The filing of a motion for new trial orreconsideration of said judgment or final order orresolution, if allowed under the procedural rules ofthe Commission concerned,

Shall interrupt the period herein fixed.

If the motion is denied,

The aggrieved party may file the petition within theremaining period, but which shall not be less than five(5) days in any event, reckoned from notice of denial.

b) Distinction in the application of Rule 65 tojudgments of the Comelec and COA and theapplication of Rule 65 to other tribunals, personsand officers

Rule 64 Rule 65

Review of thejudgement, final

Review of the decision,orders or resolutions of


Pg.102

orders, orresolutions of theCOMELEC and COA

the court or tribunalexercising judicial andquasi-judicial functions

Filed within 30 daysfrom notice ofjudgement or finalorder Sought to bereviewed

Filed within 60 daysfrom notice ofjudgement, orders orresolution or notice ofthe denial of the Motionfor Reconsideration ortrial

Filed with SC Filed with RTC, SB, CA orSC, subject to hierarchyof courts

Filing of MR can bemade if allowed bythe rules of theCommission

Filing of MR is acondition sine qua nonfor the filing of thepetition, unless it fallsunder the exceptions

3.19.7. Certiorari, prohibition and mandamus(Rule 65)

a) Definitions and distinctions

Certiorari Prohibition Mandamus

When anytribunal, boardor officerexercisingjudicial or quasi-judicialfunctions hasacted without orin excess its orhis jurisdiction,or with graveabuse ofdiscretionamounting tolack or excess ofjurisdiction, andthere is noappeal, or anyplain, speedy,and adequateremedy in the

When theproceedings ofany tribunal,corporation,board, officer orperson, whetherexercisingjudicial, quasi-judicial orministerialfunctions, arewithout or inexcess of its orhis jurisdiction,or with graveabuse ofdiscretionamounting tolack or excess ofjurisdiction, andthere is no

When anytribunal,corporation,board, officer orpersonunlawfullyneglects theperformance ofan act which thelaw specificallyenjoins as a dutyresulting froman office, trust,or station, orunlawfullyexcludesanother fromthe use andenjoyment of aright or office towhich such

ordinary courseof law, a personaggrievedthereby may filea verifiedpetition in theproper court,alleging the factswith certaintyand praying thatjudgment berenderedannulling ormodifying theproceedings ofsuch tribunal,board or officer,and grantingsuch incidentalreliefs as lawand justice mayrequire.

appeal or anyother plain,speedy, andadequateremedy in theordinary courseof law, a personaggrievedthereby may filea verifiedpetition in theproper court,alleging the factswith certaintyand praying thatjudgment berenderedcommandingthe respondentto desist fromfurtherproceedings inthe action ormatter specifiedtherein, orotherwisegranting suchincidental reliefsas law andjustice mayrequire.

other is entitled,and there is noother plain,speedy andadequateremedy in theordinary courseof law, thepersonaggrievedthereby may filea verifiedpetition in theproper court,alleging the factswith certaintyand praying thatjudgment berenderedcommandingthe respondent,immediately orat some othertime to bespecified by thecourt, to do theact required tobe done toprotect therights of thepetitioner, andto pay thedamagessustained by thepetitioner byreason of thewrongful acts ofthe respondent.

i. Certiorari distinguished from appeal by certiorari

Rule 45 – Appeal byCertiorari / Petition for

Review on Certiorari

Rule 65 – Petition forCertiorari

a) Petition is based onquestions of lawwhich the appellant

a. The petition raisesthe issue whether ornot the lower court


Pg.103

desires the court toresolve

b) It is a mode of appealinvolving the reviewof judgment, awardor final order on themerits

c) It is a mode of appealwhich centers on thereview on the meritsof final order of thelower court involvingpure questions of law

d) Must be made withinthe reglementaryperiod for appeal orwithin 15 days fromthe receipt of theassailed judgment

e) Stays the judgment,award, or orderappealed from

f) Petition andrespondent are theoriginal parties to theaction, and the lowercourt or quasi-judicialagency is notimpleaded

g) Prior filing of motionfor reconsideration isnot required

h) The appellate court isin the exercise of itsappellate jurisdictionand the power ofreview

acted without or inexcess of jurisdictionor gave abuse ofjurisdiction

b. Directed against theinterlocutory order ofthe court prior toappeal formjudgment or wherethere is no appeal orany other plain,speedy and adequateremedy

c. Is an original actionthat dwells on thejurisdictional errorsof whether the lowercourt acted withoutor in excess of itsjurisdiction or withgrave abuse ofjurisdiction

d. May be filed not laterthan 60 days from thenotice of judgment,order or resolutionsought to be assailed

e. Unless a writ ofpreliminaryinjunction ortemporaryrestraining ordershall have beenissued, does not staythe challengedproceeding

f. The parties are theaggrieved partyagainst the lowercourt or quasi-judicialagency and theprevailing parties

g. Motion forreconsideration isrequired as a generalrule.

h. The higher courtexercises originaljurisdiction under itspower of control andsupervision over theproceedings of thelower court

The remedies of appeal and certiorari are mutuallyexclusive

The remedies of appeal and certiorari are mutuallyexclusive and not alternative or successive. Theantithetic character of appeal and certiorari has beengenerally recognized and observed save only on thoserare instances when appeal is satisfactorily shown tobe an inadequate remedy. Thus, a petitioner mustshow valid reasons why the issues raised in hispetition for certiorari could not have been raised onappeal

ii. Prohibition and mandamus distinguished frominjunction

Prohibition Mandamus Injunction

Always mainaction, toprevent act ofrespondent

Directedagainst acourt, atribunalexercisingjudicial orquasi-judicialfunctions

Ground is lackor excess ofjurisdiction

Always mainaction, tocompel the actdesired

Directedagainst judicialor non-judicialbody,exercisingministerialduty

Maybe a mainaction orprovisionalremedy

Directedagainst a party

Does notinvolvejurisdiction asground.

b) Injunctive relief

The court in which the petition is filed may issueorders expediting the proceedings, and it may alsogrant a temporary restraining order or a writ ofpreliminary injunction for the preservation of therights of the parties pending such proceedings. Thepetition shall not interrupt the course of the principalcase unless a temporary restraining order or a writ ofpreliminary injunction has been issued against the


Pg.104

public respondent from further proceeding in thecase.

The public respondent shall proceed with theprincipal case within ten (10) days from the filing of apetition for certiorari with a higher court or tribunal,absent a Temporary Restraining Order (TRO) or a Writof Preliminary Injunction, or upon its expiration.Failure of the public respondent to proceed with theprincipal case may be a ground for an administrativecharge (AM 07-7- 12-SC, Dec. 12, 2007).

c) Exceptions to filing of motion for reconsiderationbefore filing petition

1. When the issue is one purely of law;2. When there is urgency to decide upon the

question and any further delay wouldprejudice the interests of the government orof the petitioner;

3. Where the subject matter of the action isperishable;

4. When order is a patent nullity;5. When questions have been duly raised and

passed upon by the lower court;6. When is urgent necessity for the resolution

of the question;7. When Motion for Reconsideration would be

useless;8. In a criminal case, where relief from order of

arrest is urgent and the granting of suchrelief by the trial court is improbable;

9. Where the proceeding was ex parte or inwhich the petitioner had no opportunity toobject;

10. When petitioner is deprived of due processand there is extreme urgency for urgentrelief; and

11. When issue raised is one purely of law orpublic interest is involved.

d) Reliefs petitioner is entitled to

The primary relief will be annulment or modificationof the judgment, order or resolution or proceedingsubject of the petition. It may also include such otherincidental reliefs as law and justice may require

The court, in its judgment may also award damagesand the execution of the award for damages or costsshall follow the procedure in Sec. 1, Rule 39

e) Actions/omissions of MTC/RTC in election cases

Under Rule 65, the proper party who can file apetition for certiorari, prohibition or mandamus is theperson aggrieved by the action of a trial court ortribunal in a criminal case pending before it.Ordinarily, the petition is filed in the name of thePeople of the

Philippines by the Solicitor General. However, thereare cases when such petition may be filed by otherparties who have been aggrieved by the order orruling of the trial courts.

In the prosecution of election cases, the aggrievedparty is the Comelec, who may file the petition in itsname through its legal officer or through the SolicitorGeneral if he agrees with the action of the Comelec.

f) When and where to file petition

The petition shall be filed not later than sixty (60) daysfrom notice of the judgment, order or resolution. Incase a motion for reconsideration or new trial istimely filed, whether such motion is required or not,the sixty (60) day period shall be counted from noticeof the denial of said motion.

The petition shall be filed in the Supreme Court or, ifit relates to the acts or omissions of a lower court orof a corporation, board, officer or person, in theRegional Trial Court exercising jurisdiction over theterritorial area as defined by the Supreme Court. Itmay also be filed in the Court of Appeals whether ornot the same is in aid of its appellate jurisdiction, orin the Sandiganbayan if it is in aid of its appellatejurisdiction. If it involves the acts or omissions of aquasi-judicial agency, unless otherwise provided bylaw or these Rules, the petition shall be filed in andcognizable only by the Court of Appeals.

No extension of time to file the petition shall begranted except for compelling reason and in no caseexceeding fifteen.


Pg.105

g) Effects of filing of an unmeritorious petition

The court, however, may dismiss the petition if it findsthe same to be patently without merit, prosecutedmanifestly for delay, or that the questions raisedtherein are too unsubstantial to requireconsideration. Sec. 8, Rule 65.

3.19.8. Quo warranto (Rule 66)

Quo warranto is a demand made by the state uponsome individual or corporation to show by what rightthey exercise some franchise or privilegeappertaining to the state which, according to theConstitution and laws they cannot legally exercise byvirtue of a grant and authority from the State.

a) Distinguish from quo warranto in the OmnibusElection Code

Quo Warranto Rule 66 Quo Warranto,Election Code

The subject position isappointive office

Subject position iselective office

The issue is the legalityof the occupancy of theoffice by virtue of alegal appointment

Grounds relied uponare:

(a) ineligibility to theposition; or (b)disloyalty to theRepublic

Petition is broughteither to the SupremeCourt, the Court ofAppeals or the RegionalTrial Court;

May be instituted withthe COMELEC by anyvoter contesting theelection of any memberof Congress, regional,provincial or cityofficer; or to the MeTC,MTC or MCTC if againstany barangay official;

Filed within one (1) yearfrom the time the causeof ouster, or the right ofthe petitioner to hold

Filed within ten (10)days after theproclamation of theresults of the election;

the office or positionarose;

Petitioner is entitled toa office

Petition may be a voternot entitled not theoffice

Commencement of Quo Warranto

An action for the usurpation of a

1. public office,2. position or3. franchise

May be commenced by a verified petitionbrought in the name of the Republic of thePhilippines against:

a. A person who usurps, intrudes into,or unlawfully holds or exercises apublic office, position or franchise;

b. A public officer who does or suffersan act which, by the provision oflaw, constitutes a ground for theforfeiture of his office; or

An association which acts as a corporation within thePhilippines without being legally incorporated orwithout lawful authority so to act.

b) When government may commence an actionagainst individuals

When the Solicitor General or Public prosecutor mustcommence the action,

1. directed by the President of the Philippines,or

2. when upon complaint or3. otherwise he has good reason to believe that

any case specified in the preceding sectioncan be established by proof


Pg.106

c) When individual may commence an action

A person claiming to be entitled to a public office orposition usurped or unlawfully held or exercised byanother

may bring an action therefor in his ownname.

d) Judgment in quo warranto action

When the respondent is found guilty of usurping into,intruding into, or unlawfully holding or exercising apublic office, position or franchise,

a) Judgment shall be rendered that suchrespondent be ousted and altogetherexcluded therefrom, and

b) That the petitioner or relator, as the casemay be, recover his costs.

Such further judgment may be rendered determiningthe respective rights in and to the public office,position or franchise of all the parties to the action asjustice requires

e) Rights of a person adjudged entitled to publicoffice

If judgment be rendered in favor of the personaverred in the complaint to be entitled to the publicoffice

He may, after taking the oath of office and executingany official bond required by law,

1. Take upon himself the execution ofthe office, and

2. May immediately thereafterdemand of the respondent all thebooks and papers in therespondent's custody or controlappertaining to the office to whichthe judgment relates.

3. If the respondent refuses orneglects to deliver any book orpaper pursuant to such demand,

a. He may be punished forcontempt as having

disobeyed a lawful orderof the court.

The person adjudged entitled to the office may alsobring action against the respondent to recover thedamages sustained by such person by reason of theusurpation.

3.19.9. Expropriation (Rule 67)

Expropriation - is an exercise of the State’s power ofeminent domain wherein the government takes aprivate property for public purpose upon payment ofjust compensation.

To be filed with the RTC; this is action incapable ofpecuniary estimation

a) Matters to allege in complaint for expropriation

The right of eminent domain shall be exercised by:

1. the filing of a verified complaint2. which shall state with certainty the right and

purpose of expropriation,3. describe the real or personal property

sought to be expropriated, and4. join as defendants all persons owning or

claiming to own, or occupying, any partthereof or interest therein, showing, so faras practicable, the separate interest of eachdefendant.

a. If the title to any property sought to beexpropriated appears to be in the Republic of thePhilippines, although occupied by privateindividuals, or

b. if the title is otherwise obscure or doubtful sothat the plaintiff cannot with accuracy orcertainty specify who are the real owners,

Averment to that effect shall be made in thecomplaint.

b) Two stages in every action for expropriation

a) Determination of the authority of theplaintiff to expropriate

b) Determination of just compensation throughthe court-appointed commissioners.


Pg.107

e) Defenses and objections

If a defendant has no objection or defense to theaction or the taking of his property,

he may file and serve a notice of appearanceand a manifestation to that effect,

a. Specifically designating oridentifying the property in whichhe claims to be interested, withinthe time stated in the summons.

b. Thereafter, he shall be entitled tonotice of all proceedings affectingthe same.

If a defendant has any objection to the filing of orthe allegations in the complaint, or any objection ordefense to the taking of his property,

He shall serve his answer within the time stated in thesummons.

The answer shall:

a. Specifically designate or identify theproperty in which he claims to have aninterest,

b. State the nature and extent of theinterest claimed, and

c. Adduce all his objections and defensesto the taking of his property.

d. No counterclaim, cross-claim or third-party complaint shall be alleged orallowed in the answer or anysubsequent pleading.

A defendant waives all defenses and objections not soalleged

But the court, in the interest of justice, may permitamendments to the answer to be made not laterthan ten (10) days from the filing thereof.

However, at the trial of the issue of just compensationwhether or not a defendant has previously appearedor answered,

He may present evidence as to the amount of thecompensation to be paid for his property, and he mayshare in the distribution of the award.

f) Order of expropriation

a. If the objections to and the defenses against theright of the plaintiff to expropriate the propertyare overruled, or

b. When no party appears to defend as required bythis Rule,

the court may issue an order ofexpropriation declaring that the plaintiff hasa lawful right to take the property sought tobe expropriated, for the public use orpurpose described in the complaint,

upon the payment of just compensation tobe determined as of the date of the taking ofthe property or the filing of the complaint,whichever came first.

A final order sustaining the right to expropriate theproperty may be appealed by any party aggrievedthereby.

Such appeal, however, shall not prevent the courtfrom determining the just compensation to be paid.

After the rendition of such an order,

The plaintiff shall not be permitted to dismiss ordiscontinue the proceeding except on such terms asthe court deems just and equitable.

g)-h) Ascertainment of just compensation;Appointment of commissioners; commissioner’sreport; court action upon commissioner’s report

Upon the rendition of the order of expropriation,

a. The court shall appoint not more than three(3) competent and disinterested persons ascommissioners to ascertain and report to thecourt the just compensation for the propertysought to be taken.

b. The order of appointment shall designatethe time and place of the first session of thehearing to be held by the commissioners andspecify the time within which their reportshall be submitted to the court.


Pg.108

Copies of the order shall be served on the parties.

Objections to the appointment of any of thecommissioners shall be filed with the court within ten(10) days from service, and shall be resolved withinthirty (30) days after all the commissioners shallhave received copies of the objections

Report by commissioners and judgment thereupon.

The court may:

1. order the commissioners to report when anyparticular portion of the real estate shallhave been passed upon by them, and

2. may render judgment upon such partialreport, and

3. direct the commissioners to proceed withtheir work as to subsequent portions of theproperty sought to be expropriated, and

4. may from time to time so deal with suchproperty.

The commissioners shall:

1. make a full and accurate report to the courtof all their proceedings, and

2. such proceedings shall not be effectual untilthe court shall have accepted their reportand rendered judgment in accordance withtheir recommendations.

Except as otherwise expressly ordered by the court,such report shall be filed within sixty (60) days fromthe date the commissioners were notified of theirappointment, which time may be extended in thediscretion of the court.

Upon the filing of such report, the clerk of the courtshall serve copies thereof on all interested parties,with notice that they are allowed ten (10) days withinwhich to file objections to the findings of the report,if they so desire.

Action upon commissioners' report.

Upon the expiration of the period of ten (10) daysreferred to in the preceding section, or even beforethe expiration of such period but after all theinterested parties have filed their objections to the

report or their statement of agreement therewith,the court may, after hearing,

a. accept the report and render judgment inaccordance therewith, or,

b. for cause shown, it may recommit the sameto the commissioners for further report offacts, or

c. it may set aside the report and appoint newcommissioners; or

d. it may accept the report in part and reject itin part and it may make such order or

e. render such judgment as shall secure to theplaintiff the property essential to theexercise of his right of expropriation, and tothe defendant just compensation for theproperty so taken

i) Rights of plaintiff upon judgment and payment

Upon payment by the plaintiff to the defendant of thecompensation fixed by the judgment, with legalinterest thereon from the taking of the possession ofthe property, or after tender to him of the amount sofixed and payment of the costs,

the plaintiff shall have the right to enterupon the property expropriated and toappropriate it for the public use or purposedefined in the judgment, or

to retain it should he have taken immediatepossession thereof under the provisions ofsection 2 hereof.

If the defendant and his counsel absent themselvesfrom the court, or decline to receive the amounttendered,

The same shall be ordered to be deposited in courtand such deposit shall have the same effect as actualpayment thereof to the defendant or the personultimately adjudged entitled thereto.

j) Effect of recording of judgment

The right of the plaintiff to enter upon the property ofthe defendant and appropriate the same for publicuse or purpose shall not be delayed by an appeal fromthe judgment.


Pg.109

But if the appellate court determines that plaintiffhas no right of expropriation,

The judgment shall be rendered ordering the RegionalTrial Court to forthwith enforce the restoration to thedefendant of the possession of the property, and todetermine the damages which the defendantsustained and may recover by reason of thepossession taken by the plaintiff.

3.19.10. Foreclosure of real estate mortgage(Rule 68)

In an action for the foreclosure of a mortgage or otherencumbrance upon real estate:

1. the complaint shall set forth the date anddue execution of the mortgage;

2. its assignments, if any;3. the names and residences of the mortgagor

and the mortgagee;4. a description of the mortgaged property; a

statement of the date of the note or otherdocumentary evidence of the obligationsecured by the mortgage,

5. the amount claimed to be unpaid thereon;and

6. the names and residences of all personshaving or claiming an interest in theproperty subordinate in right to that of theholder of the mortgage, all of whom shall bemade defendants in the action

a) Judgment on foreclosure for payment or sale

If upon the trial in such action the court shall find thefacts set forth in the complaint to be true:

1. it shall ascertain the amount due to theplaintiff upon the mortgage debt orobligation

2. including interest and other charges asapproved by the court, and costs, and

3. shall render judgment for the sum so founddue and order that the same be paid to thecourt or to the judgment obligee within aperiod of not less than ninety (90) days nor

more than one hundred twenty (120) daysfrom the entry of judgment, and

4. that in default of such payment theproperty shall be sold at public auction tosatisfy the judgment.

b) Sale of mortgaged property; effect

When the defendant, after being directed to do so asprovided in the next preceding section, fails to pay theamount of the judgment within the period specifiedtherein, the court, upon motion:

a. Shall order the property to be sold in themanner and under the provisions of Rule 39and other regulations governing sales of realestate under execution.

b. Such sale shall not affect the rights ofpersons holding prior encumbrances uponthe property or a part thereof, and

c. When confirmed by an order of the court,also upon motion, it shall operate to divestthe rights in the property of all the parties tothe action and to vest their rights in thepurchaser, subject to such rights ofredemption as may be allowed by law.

Rules on Redemption

Upon the finality of the order of confirmation orupon the expiration of the period of redemptionwhen allowed by law,

The purchaser at the auction sale or lastredemptioner, if any, shall be entitled to thepossession of the property unless a third party isactually holding the same adversely to the judgmentobligor.The said purchaser or last redemptioner may securea writ of possession, upon motion, from the courtwhich ordered the foreclosure.

c) Disposition of proceeds of sale

The amount realized from the foreclosure sale of themortgaged property shall, after deducting the costs of


Pg.110

the sale: be paid to the person foreclosing themortgage

When there is any balance or residue

When there shall be any balance or residue, afterpaying off the mortgage debt due, the same shall bepaid to junior encumbrancers in the order of theirpriority, to be ascertained by the court, or if there beno such encumbrancers or there be a balance orresidue after payment to them, then to themortgagor or his duly authorized agent, or to theperson entitled to it

If the debt for which the mortgage or encumbrancewas held is not all due as provided in the judgment assoon as a sufficient portion of the property has beensold to pay the total amount and the costs due:

a) the sale shall terminate; andb) afterwards as often as more becomes due

for principal or interest and other validcharges, the court may, on motion, ordermore to be sold.

But if the property cannot be sold in portions withoutprejudice to the parties, the whole shall be ordered tobe sold in the first instance, and the entire debt andcosts shall be paid, if the proceeds of the sale besufficient therefor, there being a rebate of interestwhere such rebate is proper

d) Deficiency judgment

If upon the sale of any real property as provided in thenext preceding section there be a balance due to theplaintiff after applying the proceeds of the sale:

the court, upon motion, shall renderjudgment against the defendant for anysuch balance for which,

a. by the record of the case, he maybe personally liable to the plaintiff,

b. upon which execution may issueimmediately if the balance is alldue at the time of the rendition ofthe judgment;

c. otherwise; the plaintiff shall beentitled to execution at such time

as the balance remaining becomesdue under the terms of the originalcontract, which time shall be statedin the judgment.

i. Instances when court cannot render deficiencyjudgment

Where the debtor-mortgagor is a non-resident andwho at the time of the filing of the action forforeclosure and during the pendency of theproceedings was outside the Philippines, it is believedthat a deficiency judgment would not be procedurallyfeasible.

e) Judicial foreclosure versus extrajudicialforeclosure

Extrajudicialforeclosure Judicial foreclosure

No complaint is filed Complaint is filed incourts

There is a right ofredemption

No right ofredemption exceptwhen the mortgageeis a banking institution

Has to file separateaction to recover anydeficiency

Can move fordeficiency in the sameaction

The buyer in publicauction becomes theabsolute owner afterthe consolidation

Becomes the owner ofthe property afterconfirmation of sale

There is a specialpower of attorney

No need for specialpower of attorney

3.19.11. Partition (Rule 69)

Partition – separation, division and assignment of athing held in common among those to whom it maybelong.

Classes of partition:

a. Voluntary partition –a division of theproperty by the act of the partiesthemselves.


Pg.111

b. Compulsory partition- partition by judicialproceedings at the instance of one or moreof the co-tenants without regard to thewishes of the other co-tenants.

Kinds of partition:

a. Total – Partition is total when all the thingsare divided among the participants.

b. Partial – when some of the things aredivided and the rest remaining thecommunity ownership

c. Provisional – when it is temporary orconditional, that is until a final or definitedivision is made.

d. Definite – when the division resulting ispermanent, final and absolute

e. Judicial – when the court intervenes andapproves the division

f. Extrajudicial – division may be made by thetestator himself, or by some person namedby the deceased or amicably the interestedheirs by common agreement.

It is in nature of action quasi-in rem since it is not onlydirected to a particular person, but it constitutes alien on the property subject matter of the action withthe intention of excluding the interest of defendanttherein.

Partition is capable of pecuniary estimation,therefore, the jurisdiction depends on the amount ofthe property. If it is real property, the venue dependswhere the property is located, if it is personalproperty, it depends on the residence of the parties.

a) Who may file complaint; who should be madedefendants

Person having the right to compel the partition of realestate may do so as provided in this Rule,

a. setting forth in his complaint the nature andextent of his title and

b. an adequate description of the real estate ofwhich partition is demanded and

c. joining as defendants all other personsinterested in the property.

b) Matters to allege in the complaint for partition

The plaintiff shall state in his complaint, the natureand extent of his title, an adequate description of thereal estate of which partition is demanded, and shalljoin as defendants all other persons interested in theproperty.

He must also include a demand for the accounting ofthe rents, profits and other income from the propertywhich he may be entitled to. These cannot bedemanded in another action because they are partsof the cause of action for partition.

They will be barred if not set up in the same actionpursuant to the rule against splitting a single cause ofaction.

c) Three stages in every action for partition

Three (3) stages in the action, each of which could bethe subject of appeal:

a) the order of partition where the property ofthe partition is determined;

b) the judgment as to the accounting of thefruits and income of the property; and

c) the judgment of partition.

d) Order of partition and partition by agreement

If after the trial the court finds that the plaintiff hasthe right thereto, it shall order the partition of the realestate among all the parties in interest.

Thereupon the parties may, if they are able to agree,

a. make the partition among themselves byproper instruments of conveyance, and

b. the court shall confirm the partition soagreed upon by all the parties, and

c. such partition, together with the order of thecourt confirming the same, shall be recordedin the registry of deeds of the place in whichthe property is situated

e) Partition by commissioners; appointment ofcommissioners, commissioner’s report; court actionupon commissioner’s report


Pg.112

If the parties are unable to agree upon the partition,

a. the court shall appoint not more than three(3) competent and disinterested persons ascommissioners to make the partition,

b. commanding them to set off to the plaintiffand to each party in interest such part andproportion of the property as the court shalldirect

f) Judgment and its effects

If actual partition of property is made, the judgmentshall

a. state definitely, by metes and bounds andadequate description, the particular portionof the real estate assigned to each party, and

b. the effect of the judgment shall be to vest ineach party to the action in severalty theportion of the real estate assigned to him.

If the whole property is assigned to one of theparties upon his paying to the others the sum orsums ordered by the court,

a. the judgment shall state the fact of suchpayment and of the assignment of the realestate to the party making the payment, and

b. the effect of the judgment shall be to vest inthe party making the payment the whole ofthe real estate free from any interest on thepart of the other parties to the action.

If the property is sold and the sale confirmed by thecourt,

a. the judgment shall state the name of thepurchaser or purchasers and a definitedescription of the parcels of real estate soldto each purchaser, and

b. the effect of the judgment shall be to vestthe real estate in the purchaser orpurchasers making the payment orpayments, free from the claims of any of theparties to the action.

A certified copy of the judgment shall in either casebe recorded in the registry of deeds of the place inwhich the real estate is situated, and the expenses ofsuch recording shall be taxed as part of the costs ofthe action

g) Partition of personal property

The provisions of this Rule shall apply to partitions ofestates composed of personal property, or of bothreal and personal property,

In so far as the same may be applicable.

h) Prescription of action

Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-heirs aslong as there is a recognition of the co-ownershipexpressly or impliedly.

The action for partition cannot be barred byprescription as long as the co-ownership exists.

But while the action to demand partition of a co-owned property does not prescribe, a co-owner mayacquire ownership thereof by prescription wherethere exists a clear repudiation of the co-ownershipand the co-owners are apprised of the claim ofadverse and exclusive ownership.

3.19.12. Forcible entry and unlawful detainer(Rule 70)

a) Definitions and distinction

Forcible entry – where one is deprived of physicalpossession of real property by means of force,intimidation, strategy, threats or stealth.

Unlawful detainer - where one illegally withholdspossession after the expiration or termination of hisright to hold possession under any contract, expressor implied.

Forcible Entry Unlawful Detainer

Possession ofdefendant is unlawfulfrom the beginning

The physical possessionis lawful from the


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beginning but becomesillegal afterwards

Does not requiredemand to vacate

Demand to vacate isrequired

Plaintiff must provethat he was in priorpossession

No need to prove priorposession

The one year periodstarts form the actualentry

The one year periodcounts from the date ofthe demand

b) Distinguished from accion publiciana, accionreivindicatoria and accion interdictal

AcctionPubliciana

AcctionReinvindicatoria

AccionInterdictal

A plenaryordinary civilaction for therecovery of thebetter right ofpossession

An action for therecovery of theexercise ofownership,particularlyrecovery ofpossession as anattribute orincident ofownership

Action foreviction.Comprisesof twocause ofaction,forcibleentry andunlawfuldetainer.

c) How to determine jurisdiction in accionpubliciana, accion reivindicatoria and accioninterdictal

Forcible entry and unlawful detainer is within theoriginal exclusive jurisdiction of MTC irrespective ofthe amount of unpaid rents. But the acitons must bemade within 1 year from the actual entry (FE) or fromthe receipt of the demand (UD).

Accion publiciana and accion reinvindicatoria areboth real actions, and therefore, the jurisdiction andvenue on real actions applies.

d) Who may institute the action and when; againstwhom the action may be maintained

A person deprived of the possession of any land orbuilding by

1. force,2. intimidation,3. threat,4. strategy, or5. stealth, or6. a lessor, vendor, vendee, or other person

against whom the possession of any land orbuilding is unlawfully withheld after theexpiration or termination of the right to holdpossession, by virtue of any contract,express or implied, or the legalrepresentatives or assigns of any such lessor,vendor, vendee, or other person,

May, at any time within one (1) year after suchunlawful deprivation or withholding of possession,

Bring an action in the proper Municipal TrialCourt against the

1. person or persons unlawfullywithholding or depriving ofpossession, or

2. any person or persons claimingunder them,

For the restitution of such possession, together withdamages and costs.

Lessor to proceed against lessee only after demand.

Unless otherwise stipulated, such action by the lessershall be commenced only

1. after demand to pay or comply with theconditions of the lease and to vacate is madeupon the lessee, or

2. by serving written notice of such demandupon the person found on the premises if noperson be found thereon, and

The lessee fails to comply therewith after fifteen (15)days in the case of land or five (5) days in the case ofbuildings.


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e) Pleadings allowed

The only pleadings allowed to be filed are the

a) complaint,b) compulsory counterclaim andc) cross-claim pleaded in the answer,d) and the answers thereto.

All pleadings shall be verified.

f) Action on the complaint

From an examination of the allegations in thecomplaint and such evidence as may be attachedthereto,

The court may dismiss the case outright on any of thegrounds for the dismissal of a civil action which areapparent therein

If no ground for dismissal is found, it shall forthwithissue summons

Answers

Within ten (10) days from service of summons,

1. the defendant shall file his answer to thecomplaint and

2. serve a copy thereof on the plaintiff.

Gen rule: Affirmative and negative defenses notpleaded therein shall be deemed waived,

Exception: lack of jurisdiction over the subjectmatter.

Cross-claims and compulsory counterclaims notasserted in the answer shall be considered barred.

The answer to counterclaims or cross-claims shall beserved and filed within ten (10) days from service ofthe answer in which they are pleaded.

3.19.13. Contempt

Contempt- a disregard of, or disobedience to therules or orders of a judicial body, or an interruption ofits proceedings by disorderly behavior or insolentlanguage, in its presence or so near thereto as to

disturb the proceedings or to impair the respect dueto such body.

a) Kinds of contempt

1. Direct2. Indirect3. Criminal4. Civil5. Inside6. Outside

Rule in direct contempt:

A person guilty of

1. misbehavior in the presence of or so near acourt as to obstruct or

2. interrupt the proceedings before the same,including

a. disrespect toward the court,b. offensive personalities toward

others, orc. refusal to be sworn or to answer as

a witness, ord. to subscribe an affidavit or

deposition when lawfully requiredto do so,

may be summarily adjudged in contempt bysuch court and

punished by ao fine not exceeding two thousand

pesos or imprisonment notexceeding ten (10) days, or both, ifit be a Regional Trial Court or acourt of equivalent or higher rank,or

o by a fine not exceeding twohundred pesos or imprisonmentnot exceeding one (1) day, or both,if it be a lower court.

The person adjudged in direct contempt by any courtmay not appeal therefrom,


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Remedy:

But may avail himself of the remedies of certiorari orprohibition.

The execution of the judgment shall be suspendedpending resolution of such petition,

a. provided such person files a bond fixed bythe court which rendered the judgment and

b. conditioned that he will abide by andperform the judgment should the petition bedecided against him.

Rule in indirect contempt

Requirements for indirect contempt:

a. After a charge in writing has been filed, andb. An opportunity given to the respondent to

comment thereon within such period as maybe fixed by the court and

c. An opportunity to be heard by himself orcounsel

Grounds for contempt:

a. Misbehavior of an officer of a court in theperformance of his official duties or in hisofficial transactions;

b. Disobedience of or resistance to a lawfulwrit, process, order, or judgment of a court,including the act of a person who, after beingdispossessed or ejected from any realproperty by the judgment or process of anycourt of competent jurisdiction, enters orattempts or induces another to enter into orupon such real property, for the purpose ofexecuting acts of ownership or possession,or in any manner disturbs the possessiongiven to the person adjudged to be entitledthereto;

c. Any abuse of or any unlawful interferencewith the processes or proceedings of a court

not constituting direct contempt undersection 1 of this Rule;

d. Any improper conduct tending, directly orindirectly, to impede, obstruct, or degradethe administration of justice;

e. Assuming to be an attorney or an officer ofa court, and acting as such withoutauthority;

f. Failure to obey a subpoena duly served;g. The rescue, or attempted rescue, of a

person or property in the custody of anofficer by virtue of an order or process of acourt held by him.

But nothing in this section shall be so construed as toprevent the court from:

a. issuing process to bring the respondent intocourt, or

b. holding him in custody pending suchproceedings

How initiated

Proceedings for indirect contempt may be initiated

a. motu propio by the court against which thecontempt was committed by an order or

b. any other formal charge requiring therespondent to show cause why he shouldnot be punished for contempt.

In all other cases, charges for indirect contempt shallbe commenced by:

a. a verified petition with supportingparticulars and

b. certified true copies of documents or papersinvolved therein, and

c. upon full compliance with the requirementsfor filing initiatory pleadings for civil actionsin the court concerned.


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If the contempt charges arose out of or are relatedto a principal action pending in the court,

The petition for contempt shall allege that fact butsaid petition shall be docketed, heard and decidedseparately,

Exception: the court in its discretion orders theconsolidation of the contempt charge and theprincipal action for joint hearing and decision.

Punishment for indirect contempt

If the respondent is adjudged guilty of indirectcontempt committed against a Regional Trial Court ora court of equivalent or higher rank, he may bepunished by a fine not exceeding thirty thousandpesos or imprisonment not exceeding six (6) months,or both. If he is adjudged guilty of contemptcommitted against a lower court, he may be punishedby a fine not exceeding five thousand pesos orimprisonment not exceeding one (1) month, or both.If the contempt consists in the violation of a writ ofinjunction, temporary restraining order or status quoorder, he may also be ordered to make completerestitution to the party injured by such violation ofthe property involved or such amount as may bealleged and proved.

REMEDIAL LAW REVIEWER Chapter IV– Special Proceedings

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IV. SPECIAL PROCEEDINGS

Special Procedure - A special proceeding is a remedyby which a party seeks to establish a status, a right, ora particular fact. Sec. 3, Rule 1 of the Rules of Court.

Coverage: Sec. 3, Rule 72

a. Settlement of estate of deceased persons;b. Escheat;c. Guardianship and custody of children;d. Trustees;e. Adoption;f. Rescission and revocation of adoption;g. Hospitalization of insane persons;h. Habeas corpus;i. Change of name;j. Voluntary dissolution of corporations;k. Judicial approval of voluntary recognition of

minor natural children;l. Constitution of family home;m. Declaration of absence and death;n. Cancellation of correction of entries in the

civil registry.

The enumeration under Rule 72 is not exclusive.Petition for declaration of nullity of marriage,liquidation proceeding, etc are also regarded as underspecial procedure.

Applicability of rules in civil action

I the absence of special provisions, the rules providedfor in ordinary actions shall be, as far as practicable,applicable in special proceedings. Sec. 2, Rule 72

Therefore in probate proceedings certificate of forumshopping, docket fees, explanation of non-personalservice are still required because there is no specialprovision regarding those requirements. Sheker vsSheker, Dec 13, 2007.

4.1. SETTLEMENT OF ESTATE, VENUE ANDPROCESSES (Rule 73)

4.1. 1. Which court has jurisdiction

According to R.A. 7691, the jurisdiction is as follows:

If within Metro Manila – does not exceed 400K, MTC.If it exceeds, RTC.

If outside Metro Manila – does not exceed 300K, MTC.If exceeds, RTC.

4.1. 2. Venue in judicial settlement of estate

If the decedent is resident at the time of his death,his will shall be proved, letters of administration beapproved, and estate be settled in court of theprovince where he resides.

In case of non-resident decedent, in the Court wherehe had the estate.

In probate proceedings, residence means bodilypresence as an inhabitant in a given place asdistinguished in domicile which includes an intentionto return.

4.1. 3. Extent of jurisdiction of probate court

Contest of jurisdiction

General Rule: The jurisdiction shall not be contestedso far as it depends on the place of the decedent orof location of his estate.

Exceptions:

1. Appeal from that court in the original case2. When want of jurisdiction appears on the

record

Probate proceedings

If there is a will, it is a testate proceeding. If there isnone, or the will is defective, it will be intestateproceeding.


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If there’s a will, probate of the will is necessary.

Can probate court issue writ of execution?

No. Because it refers the adjudication of the claims tothe administrator.

Exceptions:

1. Satisfy the contributive shares of thedevisees, legatees, and heirs on thepossession of decedent’s assets as laid downin Rule 88, Sec. 6.

2. Enforce payment of the expenses forpartition under Rule 90, Sec. 3.

3. To satisfy the costs when a person is cited forexamination of probate proceedings underRule 142, Sec. 13.

4.1.4. Powers and duties of probate court

Courts of First Instance may issue warrants andprocess necessary

1. to compel the attendance of witnesses or2. to carry into effect theirs orders and

judgments, and all other powers grantedthem by law.

If a person does not perform an order or judgmentrendered by a court in the exercise of its probatejurisdiction,

it may issue a warrant for the apprehensionand imprisonment of such person until heperforms such order or judgment, or isreleased.

4.2. SUMMARY SETTLEMENT OF ESTATES(Rule 74)

As a rule, when a person died leaving a property, itmust be judicially administered. The court mustappoint a qualified administrator in case the

deceased left no will, or there’s a will but he failed toname an executor therein.

Exception where the estate should be judiciallyadministered:

1. Extrajudicial settlement2. Summary settlement of estate of small value

4.2.1. Extrajudicial settlement by agreementbetween heirs, when allowed

Extrajudicial settlement by agreement betweenheirs. Sec. 1, Rule 74

1. If the decedent left no will and2. no debts and3. the heirs are all of age, or the minors are

represented by their judicial or legalrepresentatives duly authorized for thepurpose,

The parties may without securing letters ofadministration, divide the estate among themselvesas they see fit by means of:

a. Public Instrument

A public instrument filed in the office of the registerof deeds

b. Stipulation pending partition

Should they disagree, they may do so in an ordinaryaction of partition

c. Affidavit of Self-Adjudication

If there is only one heir, he may adjudicate to himselfthe entire estate by means of an affidavit filled in theoffice of the register of deeds.

Affidavit of self-adjudication – affidavit requiredunder Rule 74 Sec. 1 to be executed by the sole heirof the deceased person in adjudicating to himself theentire estate left by the decedent. It is filed with theRegistry of Deeds.


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As condition precedent of extrajudicial settlement, abond shall be simultaneously filed with the saidregister of deeds,

1. In an amount equivalent to the value ofthe personal property involved

2. As certified to under oath by the partiesconcerned and

3. Conditioned upon the payment of anyjust claim that may be filed undersection 4 of this rule.

4.2.2. Two-year prescriptive period

It shall be presumed that the decedent left no debtsif no creditor files a petition for letters ofadministration within two (2) years after the death ofthe decedent.

4.2.3. Affidavit of self-adjudication by sole heir

If there is only one heir, he may adjudicate to himselfthe entire estate by means of an affidavit filed in theoffice of the register of deeds.

4.2.4. Summary settlement of estates of smallvalue, when allowed

Requirements:

1. Gross value of estate does not exceed10,000, testate or intestate

2. Petition by any person before CFI havingjurisdiction

3. Publication of notice of hearing once a weekin every three weeks in newspaper ofgeneral circulation

4. Upon hearing, which should 1-3 monthsfrom the last publication of notice.

5. After such notice to other persons as thecourt may direct, Sec. 2, Rule 74

4.2.5. Remedies of aggrieved parties afterextrajudicial settlement of estate

Lawful participation

If it shall appear that within 2 years, an heir or otherperson has been unduly deprived of lawfulparticipation in the estate, they may compelsettlement of estate for purpose of satisfying theirlawful participation. Sec. 4, Rule 74

Debts and lawful participation payable in money

If it shall appear within 2 years that there debtsoutstanding against the estate which have not beenpaid, or an heir or other person has been undulydeprived of lawful participation payable in money,

The court may, by order for that purpose, afterhearing:

Settle the amount of such debts or lawfulparticipation and

Order how much and in what manner eachdistributee shall contribute in the paymentthereof, and may issue execution, ifcircumstances require, against the bondprovided in the preceding section or againstthe real estate belonging to the deceased, orboth.

Person who had no knowledge or had notparticipated in the extrajudicial settlement are notbound by the 2 years limitation

The provisions of Sec 4, Rule 74 barring distribute orheirs form objecting to extrajudicial partition aftertwo years is applicable only to person who hasknowledge of it. People who have no knowledge of itor had not participated in the extrajudicial settlementare not bound by 2 years limitation – because the Sec.1 Rule 72 is an ex parte proceeding. Publication of thesettlement does not constitute constructive noticebecause the same was notice after the fact ofexecution Benatiro vs Cuyos, 560 SCRA 478 2008.

Period for claim of minor or incapacitated person.Sec. 5, Rule 74

If after two years, and the heir and other person is a


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1. minor or2. mentally incapacitated or3. in prison or4. outside of the Philippines,

He may present his claim within one (1) yearafter such disability is removed.

4.3. PRODUCTION AND PROBATE OF AWILL (Rule 75)

No will shall pass either real or personal estate unlessit is proved and allowed in the proper court. Sec. 1,Rule 75Probate or allowance of wills – an act ofproving in a court a document purporting to be thelast will and testament of a certain deceased personfor the purpose of its official recognition, registrationand carrying out of its provisions in so far as they arein accordance with the law.

4.3.1. Nature of probate proceeding

Probate proceedings are proceedings in rem. Onceprobated, it binds the whole world even the state.

Allowance of will is conclusive as to its due execution

Subject to the right of appeal, such allowance of thewill shall be conclusive as to its due execution. And itcannot be impugned on any grounds except that offraud, in any separate or independent proceeding.Sec. 1, Rule 75

Concept and meaning of due execution:

1. The will was executed in accordance with thestrict formalities of the law;

2. The testator was of sound and disposingmind at the time of the execution of the will;

3. Consent is not vitiated by any duress, fear,and threats

4. The will was not procured by any undueinfluence from the beneficiary or by someother person for his benefits

5. The signature of the testator is genuine

Doctrine of estoppels is not applicable in probateproceedings

Since the presentation and probate of a will arerequired by public policy. Fernandez et al, vsDimagiba, L-23638, Oct 12, 1967

Probate of a will is not subject to prescription

As such, petition may be filed at any time and isrequired by public policy. Guevarra vs Guevarra, 98Phil 249

4.3.2. Who may petition for probate; personsentitled to notice

Any executor, devisee, or legatee named in a will, orany other person interested in the estate, may, at anytime after the death of the testator, petition the courthaving jurisdiction to have the will allowed, whetherthe same be in his possession or not, or is lost ordestroyed.

The testator himself may, during his lifetime, petitionthe court for the allowance of his will. Sec. 1, Rule 76

4.4. ALLOWANCE OF A WILL (Rule 76)

4.4. 1. Contents of petition for allowance of will

Contents of the Petition:

a. The jurisdictional facts;b. The names, ages, and residences of the

heirs, legatees, and devisees of the testatoror decedent;

c. The probable value and character of theproperty of the estate;

d. The name of the person for whom letters areprayed;

e. If the will has not been delivered to thecourt, the name of the person havingcustody of it.


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But no defect in the petition shall render void theallowance of the will, or the issuance of letterstestamentary or of administration with the willannexed. Sec. 2, Rule 76

4.4. 2. Grounds for disallowing a will

The will shall be disallowed in any of the followingcases:

a) If not executed and attested as required bylaw;

b) If the testator was insane, or otherwisementally incapable to make a will, at thetime of its execution;

c) If it was executed under duress, or theinfluence of fear, or threats;

d) If it was procured by undue and improperpressure and influence, on the part of thebeneficiary, or of some other person for hisbenefit;

e) If the signature of the testator was procuredby fraud or trick, and he did not intend thatthe instrument should be his will at the timeof fixing his signature thereto. Sec. 9, Rule 76

4.4. 3. Reprobate (Rule 77)

a) Requisites before a will proved abroad would beallowed in the Philippines:

1. A copy of the will and order or decree of theallowance, must be duly authenticated

2. A petition must be filed by the executor orother persons interested, with thedocuments mentioned.

The court shall fix a time and place for the hearing,and cause notice thereof to be given as in case of anoriginal will presented for allowance.

When will allowed, and effect thereof.

If it appears at the hearing that the will should beallowed in the Philippines, the shall so allow it, and acertificate of its allowance, signed by the judge, andattested by the seal of the court, to which shall be

attached a copy of the will, shall be filed and recordedby the clerk, and the will shall have the same effect asif originally proves and allowed in such court. Sec. 3,Rule 77

What must be proved during the re-probateproceeding:

a. That the testator was domiciled in theforeign country

b. That the will has been admitted to probatein such country

c. That the foreign court was, under the laws ofsaid foreign county, a probate court withjurisdiction over the proceedings

d. The laws on probate procedure in saidcountry and proof of compliance therewith

e. Leal requirements in the said foreign countryfor valid execution of a will Fluemer vs Hix 54Phil 610

4.4.4. Effects of probate

Subject to the right of appeal, such allowance of thewill shall be conclusive as to its due execution. And itcannot be impugned on any grounds except that offraud, in any separate or independent proceeding.Sec. 1, Rule 75

What are the effects of allowance of will provenoutside the Philippines?

1. The will shall be treated as if originallyproved and allowed in Philippine Courts

2. Letters testamentary or administration witha will annexed shall extend to all estates inthe Philippines

3. After the payment of debts and expenses ofadministration, the residue of the estateshall be disposed of as provided by law incases of estate in the Philippines belongingto persons who are inhabitants of anotherstate or country, Sec. 4, Rule 77


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4.5. LETTERS TESTAMENTARY AND OFADMINISTRATION (Rule 78)

Letters testamentary – it is an authority issued to anexecutor named in the will to administer the estate

When a will has been proved and allowed, the courtshall issue letters testamentary thereon to the personnamed as executor therein, if he is competent,accepts the trust, and gives bond as required by theserules. Sec. 4, Rule 78

Letters of administration – it is an authority issued bythe court to a competent person to administer theestate of the deceased who died intestate.

Executor – person named expressly by the deceasedperson in his will to administer, settle and liquidatehis estate.

Administrator – person appointed by the intestatecourt to administer the estate of the deceased personwho:

a. Dies without leaving a willb. Did not name any executor even if there was

a willc. If there be one named, he is incompetent,

refuses the trust, or fails to give a bondd. Or that the will, subsequently, declared null

and void

Incompetent persons to serve as executors oradministrators:

1. Minor2. Not resident of the Philippines3. In opinion of the court unfit to execute the

duties of trust by reason of drunkenness,improvidence, or want of understanding orintegrity, or by reason of conviction of anoffense involving moral turpitude.

4.5. 1. When and to whom letters ofadministration granted

If no executor is named in the will, or the executor orexecutors are incompetent, refuse the trust, or fail togive bond, or a person dies intestate,

4.5. 2. Order of preference

Order of preference is the executor is incompetent:

a) To the surviving husband or wife, as the casemay be, or next of kin, or both, in thediscretion of the court, or to such person assuch surviving husband or wife, or next ofkin, requests to have appointed, ifcompetent and willing to serve;

b) If such surviving husband or wife, as the casemay be, or next of kin, or the person selectedby them, be incompetent or unwilling, or ifthe husband or widow, or next of kin,neglects for thirty (30) days after the deathof the person to apply for administration orto request that administration be granted tosome other person, it may be granted to oneor more of the principal creditors, if may begranted to one or more of the principalcreditors, if competent and willing to serve;

c) If there is no such creditor competent andwilling to serve, it may be granted to suchother person as the court may select. Sec. 6,Rule 78

Q: Can the court set aside the order of preference?

A: No. The Rules of Court provides an order ofpreference in the appointment of an administrator.Ventura vs Ventura 160 SCRA 810

Scope or limit of administration

General rule universally recognized is thatadministration extends only to the assets of adecedent found within the state or country where itwas granted, so that an administrator appointed in


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one state or country has no power over the propertyin another state or country. Sec. 4, Rule 78

4.5. 3. Opposition to issuance of letterstestamentary; simultaneous filing of petitionfor administration (Rule 79)

Any person interested in a will may state in writingthe grounds why letters testamentary should notissue to the persons named therein as executors, orany of them, and the court, after hearing upon notice,shall pass upon the sufficiency of such grounds.

A petition may, at the time, be filed for letters ofadministration with the will annexed. Sec. 1, Rule 79.

Contents of the petition:

A petition for letters of administration must be filedby an interested person and must show, so far asknown to the petitioner:

a) The jurisdictional facts;b) The names, ages, and residences of the

heirs, and the names and residences of thecreditors, of the decedent;

c) The probable value and character of theproperty of the estate;

d) The name of the person for whom letters ofadministration are prayed.

But no defect in the petition shall render void theissuance of letters of administration. Sec.2, Rule 79

4.5. 4. Powers and duties of executors andadministrators; restrictions on the powers (Rule84)

The general powers and duties of executors are thefollowing, Rule 84 Sec. 1-3:

1. The executor or administrator of the estateof a deceased partner shall at all times haveaccess to, and may examine and take copiesof, books and papers relating to thepartnership business,

2. Make examine and make invoices of theproperty belonging to such partnership; andthe surviving partner or partners

3. An executor or administrator shall maintainin tenanble repair the houses and otherstructures and fences belonging to theestate, and deliver the same in such repair tothe heirs or devisees when directed so to doby the court.

4. An executor or administrator hall have theright to the possession and management ofthe real as well as the personal estate of thedeceased so long as it is necessary for thepayment of the debts and the expenses ofadministration.

The right to possession and management is notabsolute

The right of an executor or administrator to thepossession and management of the real and personalproperties o the deceased is not absolute and canonly be exercised ”so long as it is necessary for thepayment of the debts and expenses of theadministration. Estate of Hilario Ruiz vs CA, 252SCRA 541

In exercise of these powers, there is no need for leaveof court. Constitution of lease over property of theestate is an act of administration, therefore does notrequire leave of court. San Diego vs Nombre, L-19265, May 29 1964

Acts not considered as administration (requiresleave of court):

1. Right of redemption over a partition of theproperty owned in common sold by one ofthe co-owners since this is not within thepowers of administration.

2. Where estate of a deceased person isalready subject of testate or intestateproceeding, the administrator cannot enterinto any transaction involving it withoutprior approval of the court.


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Duties of Executors

Executor or administrator chargeable with all estateand income. Rule 85, Sec. 1

Every executor or administrator is chargeable in hisaccount with:

a. The whole of the estate of the deceasedwhich has come into his possession, at thevalue of the appraisement contained in theinventory;

b. With all the interest, profit, and income ofsuch estate; and

c. With the proceeds of so much of the estateas is sold by him, at the price at which it wassold.

d. Exception - Except as otherwise expresslyprovided in the following sections.

Summary of duty of the administrator to render anaccounting:

The administrator or executor is under obligation torender a true and just account of his administrationto the court.

1. Hearing is held before an administrator’saccount is approved, especially is aninterested party raises objection to certainitems in the accounting report.

2. At the hearing, the practice is foradministrator to take the witness stand,testify under oath on his accounts andidentify the receipt vouchers and documentsevidencing his disbursements which areoffered as exhibits.

3. He may be interrogated by the court andcoss-examined by oppositor’s counsel.

4. The oppositor may present proofs to rebutthe administrator’s evidence in support ofhis accounts.

Not to profit by increase or lose by decrease in value.

No executor or administrator shall profit by theincrease, or suffer loss by the decrease or destruction,without his fault, of any part of the estate. Sec. 2,Rule 85

Excess if he sells more than the appraisement

He must account for the excess when he sells any partof the estate for more than the appraisement.

If he sold property less than the appraisement

If any is sold for the less than the appraisement, he isnot responsible for the loss, if the sale has justlymade.

If he settles claim less than its nominal value

If he settles any claim against the estate for less thanits nominal value, he is entitled to charge in hisaccount only the amount he actually paid on thesettlement.

4.5. 5. Appointment of special administrator(Rule 80)

Special administrator – representative of thedeceased appointed by the probate court to care forand preserve his estate until an executor or generaladministrator is appointed.

When the court can appoint a special administrator-

When there is delay in granting letters testamentaryor of administration by any cause including an appealfrom the allowance or disallowance of a will.

Appointment, upto when

The court may appoint a special administrator to takepossession and charge of the estate of the deceased


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until the questions causing the delay are decided andexecutors or administrators appointed.

Administrator Special Administrator

1. Appointed when adecedent diedintestate or did notappoint anyexecutor in his willor the will issubsequentlydisallowed

2. Obliged to pay thedebts of the estate

3. The appointmentmay be subject ofappeal

1. Specialadministrator isappointed whenthere is delay ingranting letterstestamentary oradministration

2. Not obliged to paythe debts

3. The appointment isregarded asinterlocutory,therefore notsubject to appeal

Powers and duties of special adminsitrator. Sec. 2,Rule 80.

Such special administrator shall:

1. Take possession and charge of the goods,chattels, rights, credits, and estate of thedeceased and

2. Preserve the same for the executors oradministrator afterwards appointed, and

3. For that purpose may commence andmaintain suits as administrator.

He may sell only such perishable and other propertyas the court orders sold. A special administrator shallnot be liable to pay any debts of the deceased unlessso ordered by the court.

When powers of special administrator cease.Transfer of effects. Pending suits.

When letters testamentary or of administration aregranted on the estate of the deceased, the powers of

the special administrator shall cease, and he shallforthwith deliver to the executor or administratorthe goods, chattels, money, and estate of thedeceased in his hands. Sec. 3, Rule 80

What will happen to the suit commenced by specialadministrator?

The executor or administrator may prosecute to finaljudgment suits commenced by such specialadministrator.

4.5. 6. Grounds for removal of administrator(Rule 82)

Administration is revoked if will is discovered

When a will is later discovered, what will happen toletters of administration previously granted?

If after letters of administration have been grantedon the estate of a decedent as if he had died intestate,his will is proved and allowed by the court,

1. the letters of administration shall berevoked and

2. all powers thereunder cease, and3. the administrator shall forthwith surrender

the letters to the court, and4. render his account with such time as the

court directs.

Proceeding for the issuance of letters testamentary orof administration under the will shall be ashereinbefore provided.

Grounds when the court may remove or acceptresignation of an administrator:

1. If an executor or administrator neglects torender his account and settle the estateaccording to law, or

2. Fails to perform an order or judgment of thecourt, or a duty expressly provided by theserules, or

3. Absconds, or becomes insane, or otherwiseincapable or insuitable to discharge thetrust,


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The court may remove him, or in its discretion, maypermit him to resign. Sec. 2, Rule 82

When an executor or administrator dies, resign, or isremoved the remaining executor or administratormay administer the the trust alone, unless the courtgrants letters to someone to act with him. If there isno remaining executor or administrator,administration may be to any suitable person.

Are the grounds enumerated therein exclusive?

No. The court is invested with ample discretion in theremoval of an administrator as long as there isevidence of an act or omission on the part of theadministrator or conformable to or in disregard of therules or orders of the court which it deems sufficientor substantial to warrant the removal ofadministration.

The grounds for removal of administrator is differentfrom removal of special administrator, in which in thelatter, there is no ground, only upon discretion of thecourt.

The acts of administrator before removal are valid

The lawful acts of an executor or administrator beforethe revocation of his letters testamentary or ofadministration, or before his resignation or removal,shall have the like validity as if there had been no suchrevocation, resignation, or removal. Sec.3, Rule 82

4.6. CLAIMS AGAINST THE ESTATE (Rule 86)

Immediately after granting letters testamentary or ofadministration,

The court shall issue a notice requiring allpersons having money claims against thedecedent to file them in the office of theclerk of said court. Sec. 1, Rule 86

4.6.1. Time within which claims shall be filed;exceptions

In the notice provided in the preceding section,

The court shall estate the time for the filingof claims against the estate, which shall notbe more than twelve (12) not less than six (6)months after the date of the first publicationof the notice. The period becomesmandatory once the probate court fixed it.

Extension for the time of filing-

However, at any time before an order of distributionis entered, on application of a creditor who has failedto file his claim within the previously limited,

the court may, for cause shown and on suchterms as are equitable, allow such claim to befiled within a time not exceeding one (1) month.

4.6.2. Statute of non-claims

Statute of non-claims

It is the period fixed in the Sec. 2 Rule 86 for the filingof claims against the estate. It mandate certaincreditors of a deceased person to present their claimsfor examination and allowance within a specifiedperiod, the purpose thereof being to settle the estatewith dispatch, so that the residue may be delivered topersons entitled thereto without their beingafterwards called upon to respond in actions forclaims, which under the statute of limitations not yetprescribed. Santos vs Manarang, 27 Phil 213

Publication of notice to creditors.

Every executor or administrator shall, immediatelyafter the notice to creditors is issued,

a. Cause the same to be published three (3)weeks successively in a newspaper ofgeneral circulation in the province, and


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b. To be posted for the same period in fourpublic places in the province and in twopublic places in the municipality where thedecedent last resided. Sec. 3, Rule 86

Significance of the publication of notice to creditors

It is a constructive notice to all; hence a creditorcannot be permitted to file his claim beyond theperiod fixed in the said notice on the bare ground thathe had no knowledge of the administrationproceedings. Villanueva vs PNB, L-18403, Sept 1983.

Claims which must be filed under the notice. If notfiled, barred; exceptions.

Types of claims that must be filed before the probatecourt under notice:

1. All claims for money against the decent,arising from contract, express or implied,whether the same be due, not due, orcontingent,

2. All claims for funeral expenses and expensefor the last sickness of the decedent, and

3. Judgment for money against the decent,

The enumerations stated therein are exclusive.Claims other than money, debt or interest thereonarising from contract cannot be presented in thetestate or intestate proceedings.

Money claims – claims for money, debt or interestthereon upon a liability by the decedent before hisdeath. Claims contracted after his death cannottherefore be presented with the exception of funeralexpenses and expenses incurred on the last sicknessof the decedent.

Consequence if the claims are not filed within thetime in the notice-

If the said claims are not filed within the time limitedin the notice, they are barred forever form presentingthem.

Exception-

Except that they may be set forth as counterclaims inany action that the executor or administrator maybring against the claimants.

Where an executor or administrator commences anaction, or prosecutes an action already commencedby the deceased in his lifetime, the debtor may setforth by answer the claims he has against thedecedent, instead of presenting them independentlyto the court as herein provided.

Mutual claims may be set-off

Mutual claims may be set off against each other insuch action; and if final judgment is rendered in favorof the defendant, the amount so determined shall beconsidered the true balance against the estate, asthough the claim had been presented directly beforethe court in the administration proceedings.

Claims not yet due, or contingent, may be approvedat their present value.

Contingent claims – It is one by which, by its naturenecessarily dependent upon an uncertain event for itsexistence and claim, and its validity and enforceabilitydepending upon an uncertain event.

4.6.3. Claim of executor or administratoragainst the estate

If the executor or administrator has a claim againstthe estate he represents,

a. He shall give notice thereof, in writing, to thecourt, and

b. The court shall appoint a specialadministrator, who shall, in the adjustmentof such claim, have the same power and besubject to the same liability as the generaladministrator or executor in the settlementof other claims. The court may order theexecutor or administrator to pay to thespecial administrator necessary funds todefend such claim. Sec. 8, Rule 86.


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How to file a claim. Contents thereof. Notice toexecutor or administrator.

How claim is being filed-

A claim may be filed by delivering the same with thenecessary vouchers to the clerk of court and byserving a copy thereof on the executor oradministrator.

Original need not to be filed

If the claim be founded on a bond, bill, note, or anyother instrument, the original need not be filed, but acopy thereof with all indorsements shall be attachedto the claim and filed therewith. Sec. 9, Rule 86.

When the original shall be exhibited

On demand, however, of the executor oradministrator, or by order of the court or judge, theoriginal shall be exhibited, unless it be list ordestroyed, in which case the claimant mustaccompany his claim with affidavit or affidavitscontaining a copy or particular description of theinstrument and stating its loss or destruction. Sec. 9,Rule 86.

When the claim is due, it must be supported byaffidavit stating:

1. The amount justly due,2. That no payments have been made thereon

which are not credited, and3. That there are no offsets to the same, to the

knowledge of the affiant. Sec. 9, Rule 86.

If the claim is not due, or is contingent, when filed, itmust also be supported by affidavits stating theparticulars thereof.

When the affidavit is made by a person other than theclaimant, he must set forth therein the reason why itis not made by the claimant.

The claim once filed shall be attached to the record ofthe case in which the letters testamentary or of

administration were issued, although the court, in itsdiscretion, and as a matter of convenience, may orderall the claims to be collected in a separate folder.

Answer of executor or administrator. Offsets

Within fifteen (15) days after service of a copy of theclaim on the executor or administrator,

a. He shall file his answer admitting or denyingthe claim specifically, and

b. Setting forth the admission or denial.c. If he has no knowledge sufficient to enable

him to admit or deny specifically, he shallstate such want of knowledge. Sec. 10, Rule86.

The executor shall allege the offset, otherwise, it isbarred.

The executor or administrator in his answer shallallege in offset any claim which the decedent beforedeath had against the claimant, and his failure to doso shall bar the claim forever.

A copy of the answer shall be served by the executoror administrator on the claimant. The court in itsdiscretion may extend the time for filing such answer.

As a general rule, a probate court has no jurisdictionto entertain a claim in favor of the estate against athird person as the same must be the subject ofordinary action.

The exception to this rule is provided in Rule 86, Sec.10, as it authorizes the executor or administrator tointerpose any counterclaim in offset of a claim againstthe estate. Said counterclaim is regarded ascompulsory counterclaim as the failure to file shallbar the claim forever.

Note – the amount of the offset against must bestated, otherwise it will be disallowed.

Disposition of admitted claimAny claim admittedentirely by the executor or administrator shallimmediately be submitted by the clerk to the court


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who may approve the same without hearing; but thecourt, in its discretion, before approving the claim,may order that known heirs, legatees, or devisees benotified and heard.

If upon hearing, an heir, legatees, or devisee opposesthe claim, the court may, in its discretion, allow himfifteen (15) days to file an answer to the claim in themanner prescribed in the preceding section. Sec. 11,Rule 86

Trial of contested claim.

When the clerk will set the trial for the claim-

a. Upon the filing of an answer to a claim, orb. Upon the expiration of the time for such

filing

The clerk of court shall set the claim for trialwith notice to both parties. The court mayrefer the claim to a commissioner. Sec. 13,Rule 86.

Judgment appealable.

The judgment of the court approving or disapprovinga claim, shall be filed with the record of theadministration proceedings with notice to bothparties, and is appealable as in ordinary cases.

A judgment against the executor or administratorshall be that he pay, in due course of administration,the amount ascertained to be due, and it shall notcreate any lien upon the property of the estate, orgive to the judgment creditor any priority of payment.Sec. 13, Rule 86

4.6.4. Payment of debts

If , after hearing all the money claims against theestate, and after ascertaining the amount of suchclaims, it appears that there are sufficient assets topay the debts, the executor or administrator pay thesame within the time limited for that purpose. Sec. 1,Rule 88.

Part of estate from which debt paid when provisionmade by will.

Preference in the payment of debts-

If the testator makes provision by his will, ordesignates the estate to be appropriated for thepayment of his debts, the expenses of administration,or the family expenses, they shall be paid accordingto the provisions of the will; Sec. 2, Rule 88.

If the provision is not sufficient for that purpose-

But if the provision made by the will or the estateappropriated, is not sufficient for that purpose, suchpart of the estate of the testator, real or personal, asis not disposed of by will, if any shall be appropriatedfor that purpose. Sec. 2, Rule 88.

4.7. ACTIONS BY AND AGAINSTADMINISTRATORS AND EXECUTORS (Rule

87)

4.7.1. Actions that may be brought againstexecutors and administrators

Actions that may not be commence-

No action upon a claim for the recovery of money ordebt or interest thereon shall be commenced againstthe executor or administrator;

Actions that may commence-

1. Recovery real or personal property, or aninterest therein, from the estate,

2. To enforce a lien thereon3. Actions to recover damages for an injury to

person or property, real or personal

The aforementioned instances are deemed actionsthat survive the death of the decedent. Sec. 1, Rule87

When an executor or administrator is appointed andassumes the trust, the following actions cannot bemaintained by him by an heir or devisee:


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1. Action to recover the title or possession oflands

2. Action for damages done to such lands shall

Until when-

Until there is an order of the court assigning suchlands to such heir or devisee or until the time allowedfor paying debts has expired.

As a rule, heirs have no standing to court to sue forrecovery of estate represented by an executor oradministrator during the pendency of administrativeprobate proceedings.

Exceptions:

1. If the executor or administrator is unwillingto bring suit

2. When the executor or administrator is madea party defendant where he is alleged t haveparticipated in the act complained of

3. No appointed executors or administrators4.

Judicial declaration of ownership of an heir is notnecessary to assert his right

As provided in Art. 777 of the Civil Code, the rights tosuccession are transmitted from the moment ofdeath of the decedent. A judicial declaration ofheirship is not necessary in order for an heir to assethis right to the property of a deceased.

Executor or administrator may compound withdebtor.

Within the approval of the court, an executor oradministrator may compound with the debtor of thedeceased for a debt due, and may give a discharge ofsuch debt on receiving a just dividend of the estate ofthe debtor. Sec. 4, Rule 87

Mortgage due estate may be foreclosed

A mortgage belonging to the estate of a deceasedperson, as mortgagee or assignee of the right or a

mortgage, may be foreclosed by the executor oradministrator. Sec. 5, Rule 87

Proceedings when property concealed, embezzled,or fraudulently conveyed. Rule

if an executor or administrator, heir, legatee, creditoror other individual interested in the estate of thedeceased, complains to the court having jurisdictionof the estate that:

1. a person is suspected of having concealed,embezzled, or conveyed away any of themoney, goods, or chattels of the deceased,or

2. that such person has in his possession or hasknowledge of any deed, conveyance, bond,contract, or other writing which containsevidence of or tends or discloses the right,title, interest, or claim of the deceased,

The court may cite such suspected person toappear before it any may examine him onoath on the matter of such complaint; and

if the person so cited refuses to appear, orto answer on such examination or suchinterrogatories as are put to him, the courtmay punish him for contempt, and maycommit him to prison until he submits tothe order of the court. Sec. 6, Rule 87.

Form of the interrogatories and answers

The interrogatories put any such person, and hisanswers thereto, shall be in writing and shall be filedin the clerk's office.

Person entrusted with estate compelled to renderaccount.

The court, on complaint of an executor oradministrator, may-

a. Cite a person entrusted by an executor oradministrator with any part of the estate ofthe deceased to appear before it, and


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b. Require such person to render a full account,on oath, of the money, goods, chattels,bonds, account, or other papers belonging tosuch estate as came to his possession in trustfor such executor or administrator, and ofhis proceedings thereon; and if the person socited refuses to appear to render suchaccount, the court may punish him forcontempt as having disobeyed a lawful orderof the court. Sec. 7 Rule 87

Embezzlement before letters

If a person, before the granting of letterstestamentary or of administration on the estate of thedeceased, embezzles or alienates any of the money,goods, chattels, or effects of such deceased,

Such person shall be liable to an action infavor of the executor or administrator ofthe estate for double the value of theproperty sold, embezzled, or alienated, tobe recovered for the benefit of such estate.Sec. 8, Rule 87.

Property fraudulently conveyed by deceased may berecovered.

When executor or administrator must bring action.

When there is a deficiency of assets in the hands ofan executor or administrator for the payment ofdebts and expenses of administration, and

a. The deceased in his lifetime had conveyedreal or personal property, or a right orinterest therein, or an debt or credit, withintent to defraud his creditors or to avoidany right, debt, or duty; or

b. The deceased had ad so conveyed suchproperty, right, interest, debt or credit thatby law the conveyance would be void asagainst his creditors, and the subject of theattempted conveyance would be liable toattachment by any of them in his lifetime,

The executor or administrator maycommence and prosecute to final judgmentan action for the recovery of such property,right, interest, debt, or credit for the benefitof the creditors; Sec. 9, Rule 87

The executor is not bound to commence such action-

But he shall not be bound to commence the actionunless on application of the creditors of the deceased.

Unless the following requisites are present:

a. The creditors making the application paysuch part of the costs and expenses, or

b. Give security therefor to the executor oradministrator, as the court deemsequitable.

4.7.2. Requisites before creditor may bring anaction for recovery of property fraudulentlyconveyed by the deceased

When creditor may bring action. Lien for costs.

When there is such a deficiency of assets, and thedeceased in his lifetime had made or attempted sucha conveyance, as is stated in the last precedingsection (Sec. 9, Rule 87) , and the executor oradministrator has not commenced the action thereinprovided for-

Any creditor of the estate may, with thepermission of the court, commence andprosecute to final judgment, in the name ofthe executor or administrator, a like actionfor the recovery of the subject of theconveyance or attempted conveyance forthe benefit of the creditors. Sec. 10, Rule 87

Bond is required-

But the action shall not be commenced until thecreditor has filed in a court a bond executed to the


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executor or administrator, in an amount approved bythe judge, conditioned to indemnify the executor oradministrator against the costs and expensesincurred by reason of such action.

Such creditor shall have a lien upon any judgmentrecovered by him in the action for such costs andother expenses incurred therein as the court deemsequitable.

When bond is not necessary-

Where the conveyance or attempted conveyance hadbeen made by the deceased in his lifetime in favor ofthe executor or administrator, the action which acredit may bring shall be in the name of all thecreditors, and permission of the court and filing ofbond as above prescribed, are not necessary.

Note – Even if the administration have already beencommenced, the heirs may still bring the suit if anadministrator has not yet been appointed. This isproper modality despite the total lack ofadverterence to the heirs in the rules of partyrepresentation, Sec. 3 Rule 3, and Sec. 2 of Rule 87. Infact, in the case of Gochan vs Young, the courtrecognized the legal standing of the heirs to representthe rights and property o the decedent underadministration pending appointment of anadministrator.

4.8. DISTRIBUTION AND PARTITION (Rule90)

When the debts, funeral charges, and expenses ofadministration, the allowance to the widow, andinheritance tax, if any, chargeable to the estate inaccordance with law, have been paid,

The court, on the application of the executoror administrator, or of a person interested inthe estate, and after hearing upon notice,shall assign the residue of the estate to thepersons entitled to the same, naming themand the proportions, or parts, to which eachis entitled, and such persons may demand

and recover their respective shares from theexecutor or administrator, or any otherperson having the same in his possession.Sec. 1, Rule 90.

When there is a controversy

If there is a controversy before the court as to whoare the lawful heirs of the deceased person or as thedistributive shares to which each person is entitledunder the law, the controversy shall be heard anddecided as in ordinary cases.

No distribution until payment of obligations,exception is the filing of bond.

No distribution shall be allowed until the payment ofthe obligations above mentioned has been made orprovided for, unless the distributees, or any of them,give a bond, in a sum to be fixed by the court,conditioned for the payment of said obligationswithin such time as the court directs. Sec. 1, Rule 90.

By whom expenses of partition paid.

If at the time of distribution the executor oradministrator has retained sufficient effects in hishands which may lawfully be applied for the expensesof partition of the properties distributed,

such expenses of partition may be paid bysuch executor or administrator when itappears equitable to the court and notinconsistent with the intention of thetestator;

Otherwise, they shall be paid by the parties inproportion to their respective shares or interest in thepremises, and the apportionment shall be settled andallowed by the court,

If any person interested in the partition does not payhis proportion or share, the court may issue anexecution in the name of the executor oradministrator against the party not paying the sumassessed.Sec. 3, Rule 90


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4.8.1. Liquidation

Liquidation – determination of al assets of the estateand payment of all debts and expenses.

4.8.2. Project of partition

Effect of final decree of distribution of the estate

It vests the title to the land of the estate in thedistributees. If the decree Is erroneous, it should becorrected by an opportune appeal, for once becomesfinal, its binding effect is like any other judgment inrem, unless properly set aside for lack or jurisdictionor fraud.

Where the court has validly issued a decree ofdistribution and the same has become final, thevalidity or invalidity of the project of partitionbecomes irrelevant. Vda. De Kolayco vs Tengo 207SCRA 600

When the probate court loses jurisdiction

Only after the payment of all debts and the remainingestate delivered to the heirs entitled to receive them.

The finality of the approval of the project of partitionitself alone does not terminate the proceedings. Aslong as the order of distribution of the estate has notbeen complied with, the probate proceeding cannotbe deemed closed and terminated. Guilas vs Judge ofCFI Pampanga, 43 SCRA 11

Recording the order of partition of estate.

Certified copies of final orders and judgments of thecourt relating to the real estate or the partitionthereof shall be recorded in the registry of deeds ofthe province where the property is situated. Sec. 4,Rule 90

4.8.3. Remedy of an heir entitled to residue butnot given his share

Remedy of an heir who has not received his share

a. Motion with the probate court for deliveryto him of his share.

b. If the estate proceeding had been closed, heshould file a motion for reopening of theproceeding, within the prescriptive periodand not to file an independent action ofproject of partition which, would be tried byanother court which may thus reverse adecision or order .

4.8.4. Instances when probate court may issuewrit of execution

The probate court may issue writ of execution on thefollowing instances:

1. Satisfy the contributive shares of thedevisees, legatees, and heirs on thepossession of decedent’s assets as laid downin Rule 88, Sec. 6.

2. Enforce payment of the expenses forpartition under Rule 90, Sec. 3.

3. To satisfy the costs when a person is cited forexamination of probate proceedings underRule 142, Sec. 13.

4.9. TRUSTEES (Rule 98)

4.9.1. Distinguished fromexecutor/administrator

Trustees Executor/administrator

An instrument or agentof the cestui que trust,who acquires nobeneficial interest inthe estate; he merelytook the legal estateonly as the properexecution of the trustrequired; and, hisestate ceases upon thefulfillment of thetestator‘s wishes, inwhich case, the same

An executor is theperson named in thewill to administer thedecedent‘s estate andcarry out theprovisions thereof.

An administrator isthe person appointedby the court toadminister the estate


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vest absolutely in thebeneficiary.

Duties are usuallygoverned by theintention of thetrustor or the partiesif established by acontract. Duties maycover a wider range.

where the decedentdied intestate, orwhere the will wasvoid and not allowedto probate, or whereno executor wasnamed in the will, orthe executor namedtherein isincompetent orrefuses to serve assuch.

Duties are fixedand/or limited by law.

4.9.2. Conditions of the bond

The following conditions shall be deemed to be partof the bond whether written therein or not;

a) That the trustee will make and return to thecourt, at such time as it may order, a trueinventory of all the real and personal estatebelonging to him as trustee, which at thetime of the making of such inventory shallhave come to his possession or knowledge;

b) That he will manage and dispose of all suchestate, and faithfully discharge his trust inrelation thereto, according to law and thewill of the testator or the provisions of theinstrument or order under which he isappointed;

c) That he will render upon oath at least once ayear until his trust is fulfilled, unless he isexcused therefrom in any year by the court,a true account of the property in his handsand the management and dispositionthereof, and will render such other accountsas the court may order;

d) That at the expiration of his trust he willsettle his account in court and pay over anddeliver all the estate remaining in his hands,or due from him on such settlement, to theperson or persons entitled to thereto.

4.9.3. Requisites for the removal andresignation of a trustee

When a trustee under a written instrument declines,resigns, dies or removed before the objects of thetrust are accomplished, and no adequate provision ismade in such instrument for supplying the vacancy,the proper Court of First Instance may, after duenotice to all persons interested, appoint a newtrustee to act alone or jointly with the others, as thecase may be. Such new trustee shall have and exercisethe same powers, right, and duties as if he had beenoriginally appointed, and the trust estate shall vest inhim in like manner as it had vested or would havevested, in the trustee in whose place he is substitutedand the court may order such conveyance to be madeby the former trustee or his representatives, or by theother remaining trustees, as may be necessary orproper to vest the trust estate in the new trustee,either or jointly with the others.

4.9.4. Grounds for removal and resignation of atrustee

The proper Court of First Instance may, upon petitionof the parties beneficially interested and after duenotice to the trustee and hearing, remove a trustee ifsuch removal appears essential in the interest of thepetitioner.

The court may also, after due notice to all personsinterested, remove a trustee who is:

a. Insane orb. Otherwise incapable of discharging

his trust or evidently unsuitabletherefor.

A trustee, whether appointed by the court or under awritten instrument, may resign his trust if it appearsto the court proper to allow such resignation.

4.9.5. Extent of authority of trustee

When the sale or encumbrance of any real orpersonal estate held in trust is necessary orexpedient, the court having jurisdiction of the trust


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may, on petition and after due notice and hearing,order such sale or encumbrance to be made, and there-investment and application of the proceedsthereof in such manner as will best effect the objectsof the trust.

The petition, notice, hearing, order of sale orencumbrance, and record of proceedings, shallconform as nearly as may be to the provisionsconcerning the sale or imcumbrance by guardians ofthe property of minors or other wards. Sec. 9, Rule98.

4.10. ESCHEAT (Rule 91)

Escheat – it I a proceeding whereby the real andpersonal property of a deceased person become theproperty of the State upon his death without leavinga will or legal heirs.

It is an ordinary action but a special proceeding,commenced by petition and not by complaint.Municipal Council of San Pedro, Laguna vs Colegio deSan Jose, 65 Phil 318

4.10.1. When to file

When escheat proper-

1. When a person dies intestate, seized of realproperty in the Philippine

2. Leaving no heir or person by law entitled tothe same Sec. 1 Rule 90

Who will file-

Solicitor General or his representative in behalf of theRepublic of the Philippines

Venue-

File a petition in the Court of First Instance of theprovince where the deceased last resided or in whichhe had estate, if he resided out of the Philippines.

4.10.2. Requisites for filing of petition

Setting forth the facts, and praying that the estate ofthe deceased be declared escheated.

Real parties in interest in escheat proceedings

In all actions for reversion to the government thelands of the public domain and improvementsthereon, the Republic of the Philippines is the realparty in interest. The action shall be instituted by theSolicitor General or the officer acting in his stead inbehalf o the Republic of the Philippines. Luis B.Manese s Sps. Velasco, GR 164024, Jan 29, 2009

Instance when the escheat proceeding is propereven if the decedent died testate

Even if the decedent died testate but his will was notallowed to probate, it is as if he died intestate. In sucha case, he has no known heirs and there are nopersons entitled to his property, the same can still beescheated.

The venue is the place where the deceased personlast resided.

Order for hearing.

If the petition is sufficient in form and substance, thecourt, by an order reciting the purpose of the petition,

a. shall fix a date and place for the hearingthereof, which date shall be not more thansix (6) months after the entry of the order,and

b. shall direct that a copy of the order bepublished before the hearing at least once aweek for six (6) successive weeks in somenewspaper of general circulation publishedin the province, as the court shall be deembest. Sec. 2, Rule 90

Hearing and judgment. When the court orderhearing for escheat-

Upon satisfactory proof in open court on the datefixed in the order that such order has been publishedas directed and that:


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a. the person died intestate,b. seized of real or personal property in the

Philippines,c. leaving no heir or person entitled to the

same, andd. no sufficient cause being shown to the

contrary,

The court shall adjudge that the estate of thedeceased in the Philippines, after thepayment of just debts and charges, shallescheat; and shall, pursuant to law, assignthe personal estate to the municipality orcity where he last resided in the Philippines,and the real estate to the municipalities orcities, respectively, in which the same issituated.

If the deceased never resided in the Philippines, thewhole estate may be assigned to the respectivemunicipalities or cities where the same is located. Theestate shall be for the benefit of public schools, andpublic charitable institutions and centers in saidmunicipalities or cities.

The court, at the instance of an interested party, oron its own motion, may order the establishment of apermanent trust, so that the only income from theproperty shall be used. Sec. 3, Rule 90.

4.10.3 Remedy of respondent against petition;period for filing a claim

When and by whom claim to estate filed.

If a devisee, legatee, heir, widow, widower, or otherperson entitled to such estate appears and files aclaim thereto with the court within five (5) years fromthe date of such judgment,

a. Such person shall have possession of andtitle to the same, or

b. If sold, the municipality or city shall beaccountable to him for the proceeds afterdeducting reasonable charges for the care ofthe estate; but a claim not made within the

said time shall be forever barred. Sec. 4,Rule 90.

Can the trial court convert an escheat proceedinginto an ordinary special proceeding?

No. The two actions are entirely different form eachother and the requirements in vesting jurisdiction arelikewise different. In special proceedings, publicationis once a week for three consecutive weeks while inescheat, once a week for fix weeks.

Other actions for escheat. Rule 90 Sec. 5

Until otherwise provided by law, actions reversion orescheat of properties alienated in violation of theConstitution or of any statute shall be governed bythis rule, except that the action shall be instituted inthe province where the land lies in whole or in part.Sec. 5, Rule 90

4.11. GUARDIANSHIP

Guardianship of incompetents who are not minors

Rules 92-97 of the Rules of court limit its applicationonly to guardianship of incompetents who are notminors pursuant to AM 03-02-05 SC.

Guardianship of minors

AM 03-02-05-SC governs the rule in guardianship ofminors. Section 27 of the circular provides:

Effect of the rule – the rule amends Rule 92-97inclusive of the Rules of Court on guardianship ofminors. Guardianship of incompetents who are notminors shall continue to be under the jurisdiction ofregular courts governed by the rules.

Guardianship – it is a trust relation of the most sacredcharacter, in which one person, called a guardian actsfor another called ward whom the law regards asincapable or managing his own affairs.

Where minors are involved, the State acts as parenspartriae.


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Guardian – a person in whom the law has entrustedthe custody and control of the person or estate orboth of an infant, insane or other person incapable ofmanaging his own affairs.

Classification and kinds of guardians :

a. According to scope of powers –

1. General – one whose responsibility is overthe person of the ward or over his property

2. Limited – over the property only

b. According to constitution-

1. General guardian –2. Legal guardian – person who, without the

need of judicial appointment, is designatedas such y provision of law as in the case ofparents over the persons of their minorchildren.

3. Guardian ad litem – any competent personappointed by the court to prosecute ordefend minor, insane or person declared tobe incompetent, in action in court.

Jurisdiction over Guardianship Proceedings

In guardianship proceedings involving incompetentswho are not minors, the RTC where he resides havethe jurisdiction in accordance to BP 129 as amended.

In guardianship of minors, it is the Family Courtwhere the minor resides.

4.11.1. General powers and duties of guardians(Rule 96)

Summary of general powers and duties of guardians:

1. Have the care and custody of the person ofthe ward, and the management of hi estate,or management of estate only, as the casemay be, Sec. 1

2. Pay the debts of the ward, Sec. 23. Settle accounts, collect debts and appear in

actions for ward, Sec. 4

4. Manage the estate of the ward frugally andapply the proceeds to maintenance of theward, Sec. 4

5. Render verified inventory within 3 monthsafter his appointment and annuallythereafter upon application of interestedperson, Sec. 7

6. Must present his account to the court forsettlement and allowance, Sec. 8

4.11.2. Conditions of the bond of the guardian(Rule 94)

Bond to be given before issuance of letters. Amount.Condition. Rule 94 Sec. 1

Before a guardian appointed enters upon theexecution of his trust, or letters of guardianship issue,he shall give a bond, in such sum as the court directs,conditioned as follows:

a) To make and return to the court, withinthree (3) months, a true and completeinventory of all the estate, real andpersonal, of his ward which shall come to hispossession or knowledge of any otherperson for him;

b) To faithfully execute the duties of his trust,to manage and dispose of the estateaccording to these rules for the bestinterests of the ward, and to provide for theproper care, custody, and education of theward;

c) To render a true and just account of all theestate of the ward in his hands, and of allproceeds or interest derived therefrom, andof the management and disposition of thesame, at the time designated by these rulesand such other times as the courts directs,and at the expiration of his trust to settle hisaccounts with the court and deliver and payover all the estate, effects, and moneysremaining in his hands, or due from him onsuch settlement, to the person lawfullyentitled thereto;


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d) To perform all orders of the court by him tobe performed.

4.11.3. Rule on guardianship over incompetentwho are not minor, Rule on guardianship overminor (Rule 93, AM 03-02-05-SC)

With respect to minor, the following may petition:

1. Any relative2. Other person on behalf of the minor3. The minor himself if 14 years of age or over4. The Secretary of Social Welfare and by the

Secretary of Health in case of an insaneminor who needs to be hospitalized, Sec. 2SC AM 03-02-05

With respect to incompetent other than a minor, thefollowing persons may petition:

1. Any relative2. Friend3. Other person on behalf of the resident

incompetent who has no parents or lawfulguardian

4. Director of Health in favor of an insane whoshould be hospitalized or in favor of anisolated leper

5. Any one interested in the estate of non-resident incompetent.

Contents of petition.

A petition for the appointment of a general guardianmust show, so far as known to the petitioner(Incompetent who are not minors):

1. The jurisdiction facts;2. The minority or incompetency rendering the

appointment necessary or convenient;3. The names, ages, and residence of the

relatives of the minor or incompetent, and ofthe person having him in their care;

4. The probable value and character of hisestate;

5. The name of the person for whom letters ofguardianship.

The petition shall be verified; but no defect in thepetition or verification shall render void the issuanceof letters of guardianship. Sec. 2, Rule 93.

Contents for petition for guardianship over a minor:

1. Jurisdictional facts2. Name, age and residence of prospective

ward3. The ground rendering the appointment

necessary or convenient4. The death of the parents of the minor or the

termination, deprivation or suspension ofparental authority

5. The remarriage of the minor’s survivingparent

6. The names, ages and residences of relativewithin the fourth civil degree of minor and ofpersons having him in their custody;

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

8. The name age and residence of personwhom letters of guardianship are prayed.

Court to set time for hearing. Notice thereof.

When a petition for the appointment of a generalguardian is filed,

a. the court shall fix a time and place forhearing the same, and

b. shall cause reasonable notice thereof to begiven to the persons mentioned in thepetition residing in the province, includingthe minor if above 14 years of age or theincompetent himself, and

c. may direct other general or special noticethereof to be given. Sec. 3, Rule 93.


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Notice to a minor who is above 14 years old isjurisdictional

The non-compliance with the required notice asprovided under Sec. 3 of the Rule 93 of the RevisedRules of Court renders the guardianship proceedingnull and void. Nery et al, vs Lorenzo, L 23096, Apr 271972

Opposition to petition. Rule 93 Sec. 4

Any interested person may, by filing a writtenopposition, contest the petition on the ground of

1. majority of the alleged minor,2. competency of the alleged incompetent, or3. insuitability of the person for whom letters

are prayed,

And may pray that the petition be dismissed,or that letters of guardianship issue tohimself, or to any suitable person named inthe opposition.

4.12. ADOPTION (Rule 99, DomesticAdoption Act, Inter-Country Adoption)

4.12.1. Distinguish domestic adoption from inter-country adoption

Domestic adoption Inter-country adoption

Jurisdiction is underFamily Court where theadopter resides

Application is madeonly by filing a petitionwith the Family Court inthe Philippines

Trial custody shall bemade in the Philippinesfor six months

Family Court havingjurisdiction over theplace where the childresides or may befound. It may be fileddirectly with the Inter-Country AdoptionBoard

Application may bethrough the agencylocated in the foreigncountry

Publication of petitionis necessary

Petition is allowed to beaccompanied withprayers of change ofname, rectification ofsimulated birth ordeclaration that thechild is foundling,abandoned orneglected child.

The trial custody shallbe made mandatory inthe country of theadopter

No requirement forpublication

There is no such feature

4.12.2. Domestic Adoption Act

Who May Adopt. –

The following may adopt:

(a) Any Filipino citizen of legal age, in possession offull civil capacity and legal rights, of good moralcharacter, has not been convicted of any crimeinvolving moral turpitude, emotionally andpsychologically capable of caring for children, at leastsixteen (16) years older than the adoptee, and who isin a position to support and care for his/her childrenin keeping with the means of the family. Therequirement of sixteen (16) year difference betweenthe age of the adopter and adoptee may be waivedwhen the adopter is the biological parent of theadoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications asabove stated for Filipino nationals: Provided, Thathis/her country has diplomatic relations with theRepublic of the Philippines, that he/she has beenliving in the Philippines for at least three (3)continuous years prior to the filing of the applicationfor adoption and maintains such residence until theadoption decree is entered, that he/she has beencertified by his/her diplomatic or consular office orany appropriate government agency that he/she hasthe legal capacity to adopt in his/her country, andthat his/her government allows the adoptee to enter


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his/her country as his/her adoptedson/daughter: Provided, Further, That therequirements on residency and certification of thealien's qualification to adopt in his/her country maybe waived for the following:

(i) a former Filipino citizen who seeks to adopt arelative within the fourth (4th) degree ofconsanguinity or affinity; or

(ii) one who seeks to adopt the legitimateson/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeksto adopt jointly with his/her spouse a relative withinthe fourth (4th) degree of consanguinity or affinity ofthe Filipino spouse; or

(c) The guardian with respect to the ward after thetermination of the guardianship and clearance ofhis/her financial accountabilities.

General rule: Husband and wife shall jointly adopt,

Except:

a. if one spouse seeks to adopt thelegitimate son/daughter of the other; or

b. if one spouse seeks to adopt his/herown illegitimate son/daughter:Provided, However, that the otherspouse has signified his/her consentthereto; or

c. if the spouses are legally separated fromeach other.

In case husband and wife jointly adopt, or one spouseadopts the illegitimate son/daughter of the other,joint parental authority shall be exercised by thespouses.

Who May Be Adopted.

The following may be adopted:

(a) Any person below eighteen (18) years of age whohas been administratively or judicially declaredavailable for adoption;

(b) The legitimate son/daughter of one spouse by theother spouse;

(c) An illegitimate son/daughter by a qualifiedadopter to improve his/her status to that oflegitimacy;

(d) A person of legal age if, prior to the adoption, saidperson has been consistently considered and treatedby the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previouslyrescinded; or

(f) A child whose biological or adoptive parent(s) hasdied: Provided, That no proceedings shall be initiatedwithin six (6) months from the time of death of saidparent(s).

Whose Consent is Necessary to the Adoption.

After being properly counseled and informed ofhis/her right to give or withhold his/her approval ofthe adoption, the written consent of the following tothe adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, orthe legal guardian, or the proper governmentinstrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten(10) years of age or over, of the adopter(s) andadoptee, if any;


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(d) The illegitimate sons/daughters, ten (10) years ofage or over, of the adopter if living with said adopterand the latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to beadopted.

a) Effects of adoption

1. Transfer of parental authority – except in caseswhere the biological parent is the spouse of theadopter, the parental authority of the biologicalparents shall terminate and the same shall be vestedin the adopters

2. Legitimacy – the adoptee shall be considered thelegitimate son/daughter of the adopter(s) for allintents and purposes and as such is entitled to all therights and obligations provided by law to legitimatesons/daughters born to them without discriminationof any kind.

3. Successional rights

In legal and intestate succession, the adopter(s) andthe adoptee shall have reciprocal rights of successionwithout distinction from legitimate filiation

b) Instances when adoption may be rescinded

A minor or other incapacitated person may, througha guardian or guardian ad litem, petition for therescission or revocation of his or her adoption for thesame causes that authorize the deprivation ofparental authority.

The adopter may, likewise, petition the court for therescission of revocation of the adoption in any ofthese cases:

a) If the adopted person has attempted againstthe file of the adopter

b) When the adopted minor has abandonedthe home of the adopter for more than three(3) years;

When by other acts the adopted person hasrepudiated the adoption

c) Effects of rescission of adoption

If the petition is granted, the parental authority of theadoptee's biological parent(s), if known, or the legalcustody of the Department shall be restored if theadoptee is still a minor or incapacitated. Thereciprocal rights and obligations of the adopter(s) andthe adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel theamended certificate of birth of the adoptee andrestore his/her original birth certificate.

Succession rights shall revert to its status prior toadoption, but only as of the date of judgment ofjudicial rescission. Vested rights acquired prior tojudicial rescission shall be respected.

All the foregoing effects of rescission of adoption shallbe without prejudice to the penalties imposableunder the Penal Code if the criminal acts are properlyproven. Sec. 20, RA. 8552

4.12.3. Inter-country adoption

a) When allowed

It is allowed when all the requirements and standardsset forth under R.A. 8043 are complied with.

Who May be Adopted

Only a legally free child may be the subject of inter-country adoption. In order that such child may beconsidered for placement. Sec. 8. RA 8043.

Who May Adopt.

An alien or a Filipino citizen permanently residingabroad may file an application for inter-countryadoption of a Filipino child if he/she:

a. is at least twenty-seven (27) years of age andat least sixteen (16) years older than thechild to be adopted, at the time ofapplication unless the adopter is the parent


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by nature of the child to be adopted or thespouse of such parent:

b. if married, his/her spouse must jointly file forthe adoption;

c. has the capacity to act and assume all rightsand responsibilities of parental authorityunder his national laws, and has undergonethe appropriate counseling from anaccredited counselor in his/her country;

d. has not been convicted of a crime involvingmoral turpitude;

e. is eligible to adopt under his/her nationallaw;

f. is in a position to provide the proper careand support and to give the necessary moralvalues and example to all his children,including the child to be adopted;

g. ) agrees to uphold the basic rights of thechild as embodied under Philippine laws, theU.N. Convention on the Rights of the Child,and to abide by the rules and regulationsissued to implement the provisions of thisAct;

h. comes from a country with whom thePhilippines has diplomatic relations andwhose government maintains a similarlyauthorized and accredited agency and thatadoption is allowed under his/her nationallaws; and

i. possesses all the qualifications and none ofthe disqualifications provided herein and inother applicable Philippine laws.

b) Functions of the RTC

An application to adopt a Filipino child shall be filedeither with the Philippine Regional Trial Court havingjurisdiction over the child, or with the Board, throughan intermediate agency, whether governmental or anauthorized and accredited agency, in the country ofthe prospective adoptive parents, which applicationshall be in accordance with the requirements as setforth in the implementing rules and regulations to bepromulgated by the Board. Sec. 10, RA. 8043

c) “Best interest of the minor” standard

Best interests of the child means the totality of thecircumstances and conditions as are most congenialto the survival, protection, and feelings of security ofthe child and most encouraging to his physical,psychological, and emotional development.

4.13. WRIT OF HABEAS CORPUS (Rule 102)

Habeas corpus – A writ directed to the persondetaining another, commanding him to produce thebody of the prisoner at a designated time and place,with the day and cause of his capture and detention,to do, submit to, and receive whatsoever to the courtor judge awarding the writ shall consider in thatbehalf.

Scope of Habeas Corpus

Except as otherwise expressly provided by law, thewrit of habeas corpus shall extend to all cases ofillegal confinement or detention by which any personis deprived of his liberty, or by which the rightfulcustody of any person is withheld from the personentitled thereto. Sec. 1, Rule 102

4.13.1. Contents of the petition

Application for the writ shall be by petition signed andverified either by the party for whose relief it isintended, or by some person on his behalf, and shallset forth:

a) That the person in whose behalf theapplication is made is imprisoned orrestrained on his liberty;

b) The officer or name of the person by whomhe is so imprisoned or restrained; or, if bothare unknown or uncertain, such officer orperson may be described by an assumedappellation, and the person who is servedwith the writ shall be deemed the personintended;

c) The place where he is so imprisoned orrestrained, if known;


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d) A copy of the commitment or cause ofdetention of such person, if it can beprocured without impairing the efficiency ofthe remedy; or, if the imprisonment orrestraint is without any legal authority, suchfact shall appear. Sec. 3, Rule 102

4.13.2. Contents of the return

When the person to be produced is imprisoned orrestrained by an officer, the person who makes thereturn shall state therein, and in other cases theperson in whose custody the prisoner is found shallstate, in writing to the court or judge before whomthe writ is returnable, plainly and unequivocably:

a) Whether he has or has not the party in hiscustody or power, or under restraint;

b) If he has the party in his custody or power,or under restraint, the authority and the trueand whole cause thereof, set forth at large,with a copy of the writ, order execution, orother process, if any, upon which the party isheld;

c) If the party is in his custody or power or isrestrained by him, and is not produced,particularly the nature and gravity of thesickness or infirmity of such party by reasonof which he cannot, without danger, bebought before the court or judge;

d) If he has had the party in his custody orpower, or under restraint, and hastransferred such custody or restraint toanother, particularly to whom, at what time,for what cause, and by what authority suchtransfer was made. Sec. 10, Rule 102.

4.13.3. Distinguish peremptory writ frompreliminary citation

Preliminary citation Peremptory writ

Where a person isdetained undergovernmental authorityand illegality of hisdetention is not patentfrom the petition forthe writ, the court mayissue a citation to thegovernment officerhaving the person in hiscutody to show causewhy the writ of habeascorpus should notissue.

This is issued when thecause of the detentionappears to be patentlyilelga, and the non-compliance wherewithis punishable. Lee yickHon vs Insular Collectorof Customs

4.13.4. When not proper/applicable

(a) For asserting or vindicating denial of right to bail;Galvez vs. CA, 237 SCRA 685

(b) For correcting errors in appreciation of facts orappreciation of law – where the trial court had nojurisdiction over the cause, over the person of theaccused, and to impose the penalty provided for bylaw, the mistake committed by the trial court, in theappreciation of the facts and/or in the appreciation ofthe law cannot be corrected by habeas corpus Sottovs. Director of Prisons, May 30, 1962

(c) Once a person detained is duly charged in court,he may no longer file a petition for habeas corpus. Hisremedy would be to quash the information orwarrant. Rodriguez vs. Judge Bonifacio, Nov. 26,2000

4.13.5. When writ disallowed/discharged

If it appears that the person alleged to be restrainedof his liberty is in the custody of an officer underprocess issued by a court or judge or by virtue of ajudgment or order of a court of record, and that the


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court or judge had jurisdiction to issue the process,render the judgment, or make the order, the writ shallnot be allowed.

If the jurisdiction appears after the writ is allowed, theperson shall not be discharged by reason of anyinformality or defect in the process, judgment, ororder. Not shall anything in this rule be held toauthorize the discharge of a person charged with orconvicted of an offense in the Philippines, or of aperson suffering imprisonment under lawfuljudgment.

4.13.6. Distinguish from writ of amparo andhabeas data

HabeasCorpus

Amparo Habeas Data

Rule 102 AM. 07-9-SC AM No. 08-1-16-SC

Writ directedto the persondetaininganother,commandinghim toproduce thebody of theprisoner atdesignatedtime or day.

Remedyavailablewhose rightto life,liberty andsecurity hasbeenviolated orthreatenedwithviolation byan unlawfulact oromission ofa publicofficial oremployee,or of aprivateindividual orentity.

The writ of habeasdata is a remedyavailable to anyperson whoseright to privacy inlife, liberty orsecurity is violatedor threatened byan unlawful act oromission of apublic official oremployee, or of aprivate individualor entity engagedin the gathering,collecting orstoring of data orinformationregarding theperson, family,home andcorrespondence ofthe aggrievedparty.

Filed by aparty forwhose reliefit is intendedor by someother personin his behalf

Filed byaggrievedparty, or byanyqualifiedperson orentity.

General rule: Byaggrieved party

Except: inextrajudicialkillings andenforceddisappearances

4.14. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

It is a remedy available to any person whose right tolife, liberty and security has been violated or isthreatened with violations of unlawful act or omissionof public official or employee, or of a privateindividual or entity.

4.14.1. Coverage

The writ covers extralegal killings and enforceddisappearances and threats thereof.

4.14.2. Distinguish from habeas corpus andhabeas data

See table in 4.13.6.

4.14.3. Differences between amparo and searchwarrant

Writ of Amparo Search Warrant

Issuance of the Writ.

Upon the filing of thepetition, the court,justice or judge shallimmediately order theissuance of the writ ifon its face it ought toissue. The clerk of courtshall issue the writunder the seal of thecourt; or in case of

Requisites for issuingsearch warrant

A search warrant shallnot issue except uponprobable cause inconnection with one (1)specific offense to bedetermined personallyby the judge afterexamination under oathor affirmation of the


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urgent necessity, thejustice or the judge mayissue the writ in his orher own hand, and maydeputize any officer orperson to serve it. Thewrit shall also set thedate and time forsummary hearing of thepetition which shall notbe later than seven (7)days from the date ofissuance.

complainant and thewitness he mayproduce, andparticularly describingthe place to besearched and the thingsto be seized, which maybe anywhere in thePhilippines.

4.14.4. Who may file

The petition may be filed by the aggrieved party or byany qualified person or entity in the following order:

1. Any member of immediate family, namely:the spouse, children and parents of theaggrieved party;

2. Any ascendant, descendant or collateralrelative of the aggrieved party within thefourth civil degree of consanguinity oraffinity, in default of those mentioned in thepreceding paragraph, or

3. Any concerned citizen, organization,association or institution, if there is noknown member of immediate family orrelative of aggrieved party.

The filing of a petition by aggrieved party suspendsthe right of all other authorized parties to file petition.Likewise, the filing of the petition by an authorizedparty on behalf of the aggrieved party suspends theright of all others, observing the order establishingtherein.

What the petition for Writ of Amparo must contain?

The petition shall be signed and verified and shallallege the following:

1. The personal circumstances of the petitioner2. Name and personal circumstances of the

respondent responsible for the threat, act or

omission, or if the name is unknown oruncertain, the respondent may be describedby an assumed appellation.

3. The right to life, liberty and security of theaggrieved party violated or threatened withviolation by an unlawful act or omission ofthe respondent, and how such threat orviolation committed with the attendantcircumstances detailed in supportingaffidavits

4. The investigation conducted, if any,specifying the names, personalcircumstances, and address of theinvestigating authority or individuals, as wellas the manner and conduct of theinvestigation, together with any report.

5. The actions and recourses taken by thepetitioner to determine the fate orwhereabouts of the aggrieved party and theidentity of the person responsible for thethreat, act or omission; and

6. The relief prayed for the petition mayinclude a general prayer for other just andequitable reliefs

4.14.5. Contents of return

After the service of the writ, the respondent must:

Within 72 hours after service of the writ, therespondent shall file a written return together withsupporting affidavits which shall among other things,contain the following:

1. The lawful defenses to show that therespondent did not violate or threaten withviolation the right to life, liberty and securityof the aggrieved party, through any act oromission.

2. The steps or actions taken by therespondent to determine the fate orwhereabouts of the aggrieved party and theperson or persons responsible for thethreat, act or omission.


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3. All the relevant information in thepossession of the respondent pertaining tothe threat, act or omission against theaggrieved party; and

4. If the respondent is a public official oremployee, the return shall further state theactions that have been or will be taken:

a. To recover the identity of theaggrieved party

b. To recover and preserve theevidence related to the death ordisappearance of the personidentified in the petition which mayaid in the prosecution of the personor persons responsible

c. To identify witnesses and obtainstatements from them concerningthe death or disappearances

d. To determine the cause, manner,location and time of the death ordisappearance as well as anypattern or practice that may havebrought about the death ordisappearance.

e. To identify and apprehend theperson or persons involved in thedeath or disappearance; and

f. To bring the suspected offendersbefore a competent court

The return shall also state other matters relevant tothe investigation, its resolution and prosecution ofcases.

The general denial of the allegations in the petitionshall not be allowed

4.14.6. Effects of failure to file return

If the respondent fails to file a return, what willhappen to the proceeding?

The court, justice, or judge shall proceed to hear thepetition ex parte or even without the appearance ofthe respondent.

4.14.7. Omnibus waiver rule

All defenses shall be raised in the return, otherwise,they shall be deemed waived. Sec. 10 of Rules on Writof Amparo.

4.14.8. Procedure for hearing

Nature of the hearing on the petition of the writ

It shall be summary. However, the court, justice, orjudge may call for a preliminary conference tosimplify issues and determine the possibility ofobtaining stipulations and admissions from theparties. The hearing be from day to day untilcompleted and given the same priority as habeascorpus.

4.14.9. Institution of separate action

The Rule shall not preclude the filing of separatecriminal, civil or administrative actions.

4.14.10. Effect of filing of a criminal action

When a criminal action has been commenced, noseparate petition for the writ shall be filed. The reliefsunder the writ shall be available by motion in thecriminal case.

The procedure under this Rule shall govern thedisposition of the reliefs available under the writ ofamparo.

4.14.11. Consolidation

When a criminal action is filed subsequent to the filingof a petition for the writ, the latter shall beconsolidated with the criminal action.

When a criminal action and a separate civil action arefiled subsequent to a petition for a writ of amparo,the latter shall be consolidated with the criminalaction.

After consolidation, the procedure under this Ruleshall continue to apply to the disposition of the reliefsin the petition.


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4.14.12. Interim reliefs available to petitionerand respondent

Interim reliefs available to the petitioner-

Upon filing of the petition or at any time before finaljudgment, the court, justice or judge may grant any ofthe following reliefs:

1. Temporary Protection Order2. Inspection Order3. Production Order4. Witness Protection Order

These are provisional reliefs that the courts may grantin order to, inter alia, protect the witnesses and therights of the parties, and to preserve all relevantevidence. These provisional reliefs are intended toassist the court before it arrives at a judiciousdetermine of amparo petition.

Are interim reliefs available to the respondent?

Yes, but only the interim reliefs of inspection orderand production order.

These interim reliefs may be issued only:

1. After a verified motion is filed by therespondent,

2. Supported by affidavits or testimonies ofwitnesses having personal knowledge ordefenses of the respondent,

3. After due hearing.

4.14.13. Quantum of proof in application forissuance of writ of amparo

Parties shall establish their claims by substantialevidence.

The respondent who is a private individual or entitymust prove that ordinary diligence as required byapplicable laws, rules and regulations were observedin the performance of the duty.

The respondent who is a public official or employeemust prove that extraordinary diligence as requiredby applicable laws, rules, and regulations areobserved in the performance of duty.

Substantial evidence – Quantum of evidence which areasonable mind might accept as adequate tosupport a conclusion.

4.15. WRIT OF HABEAS DATA (A.M. No. 08-1-16-SC)

4.15.1. Scope of writ

The writ of habeas data is a remedy available to anyperson whose right to privacy in life, liberty orsecurity is violated or threatened by an unlawful actor omission of a public official or employee, or of aprivate individual or entity engaged in the gathering,collecting or storing of data or information regardingthe person, family, home and correspondence of theaggrieved party.

4.15.2. Availability of writ

Any aggrieved party may file a petition for the writof habeas data. However, in cases of extralegalkillings and enforced disappearances, the petitionmay be filed by:

(a) Any member of the immediate family of theaggrieved party, namely: the spouse, children andparents; or

(b) Any ascendant, descendant or collateral relative ofthe aggrieved party within the fourth civil degree ofconsanguinity or affinity, in default of thosementioned in the preceding paragraph; or

Where to File. –

The petition may be filed with the Regional Trial Courtwhere the petitioner or respondent resides, or thatwhich has jurisdiction over the place where the dataor information is gathered, collected or stored, at theoption of the petitioner.


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The petition may also be filed with the Supreme Courtor the Court of Appeals or the Sandiganbayan whenthe action concerns public data files of governmentoffices.

4.15.3. Distinguished from habeas corpus andamparo

See table in 4.13.6.

4.15.4. Contents of the petition

A verified written petition for a writ of habeasdata should contain:

(a) The personal circumstances of the petitioner andthe respondent;

(b) The manner the right to privacy is violated orthreatened and how it affects the right to life, libertyor security of the aggrieved party;

(c) The actions and recourses taken by the petitionerto secure the data or information;

(d) The location of the files, registers or databases,the government office, and the person in charge, inpossession or in control of the data or information, ifknown;

(e) The reliefs prayed for, which may include theupdating, rectification, suppression or destruction ofthe database or information or files kept by therespondent.

In case of threats, the relief may include a prayer foran order enjoining the act complained of; and

(f) Such other relevant reliefs as are just andequitable.

Where Returnable; Enforceable.

When the writ is issued by a Regional Trial Court orany judge thereof, it shall be returnable before suchcourt or judge.

When issued by the Court of Appeals or theSandiganbayan or any of its justices, it may bereturnable before such court or any justice thereof, orto any Regional Trial Court of the place where thepetitioner or respondent resides, or that which hasjurisdiction over the place where the data orinformation is gathered, collected or stored.

When issued by the Supreme Court or any of itsjustices, it may be returnable before such Court orany justice thereof, or before the Court of Appeals orthe Sandiganbayan or any of its justices, or to anyRegional Trial Court of the place where the petitioneror respondent resides, or that which has jurisdictionover the place where the data or information isgathered, collected or stored.

The writ of habeas data shall be enforceableanywhere in the Philippines.

4.15.5. Contents of return

The respondent shall file a verified written returntogether with supporting affidavits within five (5)working days from service of the writ, which periodmay be reasonably extended by the Court forjustifiable reasons. The return shall, among otherthings, contain the following:

(a) The lawful defenses such as national security,state secrets, privileged communications,confidentiality of the source of information of mediaand others;

(b) In case of respondent in charge, in possession orin control of the data or information subject of thepetition;

(i) a disclosure of the data or information about thepetitioner, the nature of such data or information,and the purpose for its collection;

(ii) the steps or actions taken by the respondent toensure the security and confidentiality of the data orinformation; and,


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(iii) the currency and accuracy of the data orinformation held; and,

(c) Other allegations relevant to the resolution of theproceeding.

A general denial of the allegations in the petition shallnot be allowed.

4.15.6. Instances when petition may be heard inchambers

A hearing in chambers may be conducted where therespondent invokes the defense that the release ofthe data or information in question shall compromisenational security or state secrets, or when the data orinformation cannot be divulged to the public due toits nature or privileged character.

4.15.7. Consolidation

When a criminal action is filed subsequent to the filingof a petition for the writ, the latter shall beconsolidated with the criminal action.

When a criminal action and a separate civil action arefiled subsequent to a petition for a writ of habeasdata, the petition shall be consolidated with thecriminal action.

After consolidation, the procedure under this Ruleshall continue to govern the disposition of the reliefsin the petition.

4.15.8. Effect of filing of a criminal action

When a criminal action has been commenced, noseparate petition for the writ shall be filed. The reliefunder the writ shall be available to an aggrieved partyby motion in the criminal case.

The procedure under this Rule shall govern thedisposition of the reliefs available under the writ ofhabeas data.

4.15.9. Institution of separate action

The filing of a petition for the writ of habeas data shallnot preclude the filing of separate criminal, civil oradministrative actions.

4.16. CHANGE OF NAME (Rule 103)

Change of name – is a special proceeding to establishthe status of a person involving his relation withothers, that is, his legal position in, or with regard to,the rest of the community.

4.16.1. Differences under Rule 103, R.A. No. 9048and Rule 108.

Rule 103 Rule 108 R.A. 9048

Change ofname

Cancellation/Correction ofEntries in CivilRegistries

Clerical ErrorAct

Change of fullname(substantialcorrections)

Change orcorrections inthe civilentries,(substantialcorretions)

Change of firstname andnickname andcivil entries,(onlytypographicalor clericalerros)

Venue is RTCof the provincein which thepetitionerresides for 3years prior tothe filing or inthe City ofManila, toJuvenile andDomesticRelationsCourt

RTC or city orprovincewherecorrespondingcivil registry islocated

Local civilregistry officeof the city ofmunicipalitywhere therecord is beingsought to becorrect orchange kept

Local civilregistrarwhere theinterestedpartypresently


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residing ordomiciled

Philippineconsulates

Judicialproceedings

Summaryproceeding.Can beconverted toadversarial ifthere aresubstantialchanges andaffect status ofan individual

Administrativeproceedings

File a signedand verifiedpetition

Filed a verifiedpetition

File an affidavit

4.16.2. Grounds for change of name

The grounds for change of name under Rule 103 arethe following:

a. The name is ridiculous, tainted with dishonorand extremely difficult to writ or pronounce

b. Consequences of change of statusc. Necessity to avoid confusiond. Having continuously used and have been

known since childhood by Filipino name,unaware of her alien parentage

e. A sincere desire to adopt a Filipino name toerase signs of former alienage all in goodfaith and without prejudicing anybody.

4.17. ABSENTEES (Rule 107)

4.17.1. Purpose of the rule

To allow the court to appoint an administrator orrepresentative to take care of the property of theperson who is sought to be judicially declared absent.

4.17.2. Who may file; when to file

After the lapse of two (2) years from his disapperanceand without any news about the absentee or sincethe receipt of the last news, or of five (5) years in casethe absentee has left a person in charge of theadministration of his property, the declaration of hisabsence and appointment of a trustee oradministrative may be applied for by any of thefollowing:

a) The spouse present;

b) The heirs instituted in a will, who may present anauthentic copy of the same.

c) The relatives who would succeed by the law ofintestacy; and

d) Those who have over the property of the absenteesome right subordinated to the condition of his death.

Opposition

Anyone appearing to contest the petition shall statein writing his grounds therefor, and serve a copythereof on the petitioner and other interested partieson or before the date designated for the hearing. Sec.5, Rule 107

Termination of administration.

The trusteeship or administration of the property ofthe absentee shall cease upon order of the court inany of the following cases:

a) When the absentee appears personally or bymeans of an agent;

b) When the death of the absentee is proved and histestate or intestate heirs appear;

c) When a third person appears, showing by a properdocument that he has acquired the absentee'sproperty by purchase or other title.

In these cases the trustee or administrator shall ceasein the performance of his office, and the property


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shall be placed at the disposal of whose may have aright thereto. Sec. 8, Rule 107

4.18 CANCELLATION OR CORRECTION OFENTRIES IN THE CIVIL REGISTRY (Rule 108)

4.18.1. Entries subject to cancellation orcorrection under Rule 108, in relation to R.A.No. 9048

Who may file the petition?

Any person interested in any act, event, order ordecree concerning the civil status of persons whichhas been recorded in the civil register, may file averified petition for the cancellation or correction ofany entry relating thereto, with the Court of FirstInstance of the province where the correspondingcivil registry is located.

Grounds:

Upon good and valid grounds, the following entriesin the civil register may be cancelled or corrected:

(a) births:

(b) marriage;

(c) deaths;

(d) legal separations;

(e) judgments of annulments of marriage;

(f) judgments declaring marriages void fromthe beginning;

(g) legitimations;

(h) adoptions;

(i) acknowledgments of natural children;

(j) naturalization;

(k) election, loss or recovery of citizenship;

(l) civil interdiction;

(m) judicial determination of filiation;

(n) voluntary emancipation of a minor; and

(o) changes of name.

Notice and publication

Upon the filing of the petition, the court shall, by anorder, fix the time and place for the hearing of thesame, and cause reasonable notice thereof to begiven to the persons named in the petition. Thecourt shall also cause the order to be published oncea week for three (3) consecutive weeks in anewspaper of general circulation in the province.

Order

After hearing, the court may either dismiss thepetition or issue an order granting the cancellationor correction prayed for. In either case, a certifiedcopy of the judgment shall be served upon the civilregistrar concerned who shall annotated the same inhis record.

4.19. APPEALS IN SPECIAL PROCEEDINGS(Rule 109)

4.19.1. Judgments and orders for which appealmay be taken

Who may appeal-

An interested person may appeal in specialproceedings from an order or judgment rendered bya Court of First Instance or a Juvenile and DomesticRelations Court,

4.19.2. When to appeal

In cases of:

a) Allows or disallows a will;b) Determines who are the lawful heirs of a

deceased person, or the distributive share ofthe estate to which such person is entitled;

c) Allows or disallows, in whole or in part, anyclaim against the estate of a deceasedperson, or any claim presented on behalf ofthe estate in offset to a claim against it;


Pg.152

d) Settles the account of an executor,administrator, trustee or guardian;

e) Constitutes, in proceedings relating to thesettlement of the estate of a deceasedperson, or the administration of a trustee orguardian, a final determination in the lowercourt of the rights of the party appealing,except that no appeal shall be allowed fromthe appointment of a special administrator;and

f) Is the final order or judgment rendered inthe case, and affects the substantial rights ofthe person appealing unless it be an ordergranting or denying a motion for a new trialor for reconsideration.

4.19.3. Modes of appeal

Ordinary appeal - The appeal to the CA in casesdecided by the RTC in the exercise of its originaljurisdiction shall be taken by filing a notice of appealwith the court which rendered the judgment or finalorder appealed from and serving a copy thereof uponthe adverse party. No record on appeal shall berequired except in special proceedings and othercases of multiple or separate appeals where the lawor the Rules so require. In such cases, the record onappeal shall be filed and served in like manner.

Petition for review – The appeal to the CA in casesdecided by the RTC in the exercise of its appellatejurisdiction shall be by petition for review inaccordance with Rule 42.

Petition for review on certiorari - In all cases whereonly questions of law are raised or involved, theappeal shall be to the SC by petition for review oncertiorari in accordance with Rule 45.

4.19.4. Rule on advance distribution

Advance distribution in special proceedings.

Notwithstanding a pending controversy or appeal inproceedings to settle the estate of a decedent, thecourt may, in its discretion and upon such terms as itmay deem proper and just, permit that such part of

the estate may not be affected by the controversy orappeal be distributed among the heirs or legatees,upon compliance with the conditions set forth in Rule90 of this rules.

REMEDIAL LAW REVIEWER Chapter V– Criminal Procedure

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V. CRIMINAL PROCEDURE

5.1. GENERAL MATTERS

Criminal Procedure - A proceeding whereby the stateprosecutes a person for an act or omission punishableby law.

Criminal Proceeding - proceedings before the trialcourt from arraignment to rendition of judgment.

Retroactive application of the rules

The crime was committed before the effectivity of theRules of Criminal Procedure; the rule should beapplied retroactively as it is favor to the appellant.

5.1.1. Distinguish jurisdiction over subjectmatter from jurisdiction over person of theaccused

Jurisdiction oversubject matter

Jurisdiction over theperson of the accused

Refers to the authorityof the court to hear anddetermine a particularcriminal case

Refers to the authorityof the court, not overthe subject matter ofthe litigation, but overthe person charged.

5.1.2. Requisites for exercise of criminaljurisdiction

Requisites:

a. Jurisdiction over the subject matterb. Jurisdiction over the territoryc. Jurisdiction over the person of the accused

5.1.3. Jurisdiction of criminal courts

Supreme Court

Original exclusive

Petitions for certiorari, prohibition and mandamusagainst the CA and Sandiganbayan.

Concurrent jurisdiction

a) with CA: petitions for certiorari,prohibition and mandamus against RTC;

b) with CA and RTC: petitions for certiorari,prohibition and mandamus against lowercourts;

c) with Sandiganbayan: petitions formandamus, prohibition, certiorari, habeascorpus, injunction and ancillary writs in aidof its appellate jurisdiction and overpetitions of similar nature, including quowarranto arising or that may arise in casesfiled or which may be filed.

Exclusive appellate jurisdiction

By Petition for Review on Certiorari

1) from the CA;

2) from the Sandiganbayan;

3) from the RTC where only an error orquestion of law is involved.

From the RTC in cases commenced therein, exceptthose appealable to the SC or the Sandiganbayan.

By Petition for Review:

From the RTC in cases appealed thereto fromthe lower courts and not appealable to theSandiganbayan.

Court of Appeals

Original exclusive

Actions for annulment of judgments of the RTC


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Concurrent jurisdiction

a) with the SC: petitions for certiorari,prohibition and mandamus against RTC;

b) with SC and RTC: petitions for certiorari,prohibition and mandamus against lowercourts.


a) from the RTC in all criminal cases involvingoffenses for which the penalty is reclusionperpetua or life imprisonment, and thoseinvolving other offenses which, although notso punished, arose out of the sameoccurrence or which may have beencommitted by the accused on the sameoccasion;

b) Automatic review where death penalty isimposed

Sandiganbayan

Original exclusive

a. Violations of R.A. 3019, as amended, R.A.1379, and bribery and corruption offensesunder the Revised Penal Code, where one ormore of the accused are officials occupyingpositions in the government, whether in apermanent, acting or interim capacity, at thetime of the commission of the offense;

b. Other offenses or felonies whether simple orcomplexed with other crimes committed inrelation to their office by the public officialsand employees mentioned in Sec. 4[a],1 PD1606, as amended by R.A. 7975;

c. Criminal cases filed pursuant to and inconnection with EO Nos. 1, 2, 14, and 14-A.


From the RTC in cases under PD1606, as amended byPD 1861, whether or not the cases were decided bythem in the exercise of their original or appellatejurisdictions.

Regional Trial Court

Original exclusive

a. All criminal cases which are not within theexclusive jurisdiction of any court, tribunal orbody.

b. Penalty provided by law exceeds 6 yearsimprisonment and which are not within theexclusive jurisdiction of any court, tribunal orbody.

c. Jurisdiction over the whole complex crimes.d. Criminal cases where on ne or more of the

accused is below 18 years of age but not lessthan 9 years of age, or one or more victim isa minor at the time of the commission of theoffense; ...

e. Cases against minors cognizable under theDangerous Drugs Acts, as amended;

f. Violation of RA 7610 (special protection ofchildren against child abuse, exploitationand discrimination act) as amended by RA7658

g. Cases of domestic violence against womenand children.

Exclusive Appellate

All cases decided by lower court in their respectiveterritorial jurisdictions.

Municipal Trial Court

Exclusive Original

a. Violation of city or municipal ordinancescommitted within their respective territorialjurisdictions;

b. All offenses punishable with imprisonmentof not more than 6 years irrespective of theamount of fine, and in all cases of damage toproperty through criminal negligence,regardless of other penalties and the civilliabilities arising therefrom; and

c. All offenses committed by public officers andemployees in relation to their office,including GOCC, and by private individuals


Pg.155

charged as co-principal, accomplices oraccessories, punishable by not more than 6years imprisonment.(except violation of RAno. 3019 (anti-graft and corrupt practicesact);RA no. 1379 (act declaring forfeiture ofill-gotten wealth of public officer andemployees) ARTS.210-212 of RPC (directbribery, indirect bribery and qualifiedbribery)

Under the 1991 rules on summary procedure:

a. traffic violation;b. violation of the rental law;c. violation of city or municipal ordinances; andd. .all offenses where the penalty does not

exceed 6 months imprisonment and/orP1,000 fine, irrespective of other penaltiesor civil liabilities arising therefrom, and inoffenses involving damage to propertythrough criminal negligence where theimpossible fine does not exceed P10,000.

5.1.4. When injunction may be issued torestrain criminal prosecution

As a general rule, the courts will not issue writs ofprohibition or injunction preliminary or final, toenjoin or restrain criminal prosecution.

Exceptions:

1. when the injunction is necessary to affordadequate protection to the constitutionalrights of the accused;

2. when it is necessary for the orderlyadministration of justice or to avoidoppression or multiplicity of actions;

3. when there is a prejudicial question which issub judice;

4. when the acts of the officer are without or inexcess of authority;

5. where the prosecution is under an invalidlaw, ordinance or regulation;

6. when double jeopardy is clearly apparent;

7. where the Court has no jurisdiction over theoffense;

8. where it is a case of persecution rather thanprosecution;

9. where the charges are manifestly false andmotivated by the lust for vengeance; and

10. when there is clearly no prima facie caseagainst the accused and a motion to quashon that ground has been denied.

5.2. PROSECUTION OF CRIMINAL ACTION(RULE 110)

5.2.1. Criminal actions, how instituted

(a) For offenses where a preliminary investigation isrequired pursuant to section 1 of Rule 112, by filingthe complaint with the proper officer for the purposeof conducting the requisite preliminary investigation.

(b) For all other offenses, by filing the complaint orinformation directly with the Municipal Trial Courtsand Municipal Circuit Trial Courts, or the complaintwith the office of the prosecutor. In Manila and otherchartered cities, the complaint shall be filed with theoffice of the prosecutor unless otherwise provided intheir charters. Sec. 1 Rule 110.

The prescriptive period is tolled.

The institution of the criminal action shall interruptthe running period of prescription of the offensecharged unless otherwise provided in special laws.

5.2.2. Who may file them, crimes that cannot beprosecuted de officio

The crimes of adultery and concubinage

It shall not be prosecuted except upon a complaintfiled by the offended spouse. The offended partycannot institute criminal prosecution withoutincluding the guilty parties, if both alive, nor, in anycase, if the offended party has consented to theoffense or pardoned the offenders.


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The offenses of seduction, abduction and acts oflasciviousness

It shall not be prosecuted except upon a complaintfiled by the offended party or her parents,grandparents or guardian, nor, in any case, if theoffender has been expressly pardoned by any ofthem. If the offended party dies or becomesincapacitated before she can file the complaint, andshe has no known parents, grandparents or guardian,the State shall initiate the criminal action in herbehalf.

The offended party, even if a minor, has the right toinitiate the prosecution of the offenses of seduction,abduction and acts of lasciviousness independently ofher parents, grandparents, or guardian, unless she isincompetent or incapable of doing so.

Where the offended party, who is a minor, fails to filethe complaint, her parents, grandparents, or guardianmay file the same. The right to file the action grantedto parents, grandparents or guardian shall beexclusive of all other persons and shall be exercisedsuccessively in the order herein provided, except asstated in the preceding paragraph.

Prosecution for defamation

No criminal action for defamation which consists inthe imputation of the offenses mentioned above shallbe brought except at the instance of and uponcomplaint filed by the offended party.

Prosecution of violation of special laws

The prosecution for violation of special laws shall begoverned by the provisions thereof.

5.2.3. Criminal actions, when enjoined

See. 5.1.4.

5.2.4. Control of prosecution

All criminal actions either commenced by complaintor by information shall be prosecuted under thedirection and control of a public prosecutor.

When a private prosecutor may be authorized toprosecute the case:

In case of heavy work schedule of the publicprosecutor or in the event of lack of publicprosecutors, the private prosecutor may beauthorized in writing by the Chief of the ProsecutionOffice or the Regional State Prosecutor to prosecutethe case subject to the approval of the court.

Extent of the authority given to the privateprosecutor when duly authorized to prosecute theaction

Once so authorized to prosecute the criminal action,the private prosecutor shall continue to prosecute thecase up to end of the trial even in the absence of apublic prosecutor, unless the authority is revoked orotherwise withdrawn. Sec. 5, Rule 110

5.2.5. Sufficiency of complaint or information

Complaint – shown written statement charging aperson with an offense, subscribed by the offendedparty, any peace officer, or other public officercharged with enforcement of the law violated.

Information – is an accusation in writing charging aperson with an offense subscribed by the prosecutorand filed with court.

In Cudia vs CA, it was held that an infirmity in theinformation, such as lack of authority of the officersigning it, cannot be cured by silence, or even byexpress consent and therefore, defective.

A complaint or information is sufficient if it states:

1. The name of the accused;2. The designation of the offense given by the

statute;


Pg.157

3. The acts or omissions complained of asconstituting the offense;

4. The name of the offended party;5. The approximate date of the commission of

the offense; and6. The place where the offense was committed.

When an offense is committed by more than oneperson, all of them shall be included in the complaintor information. Sec. 6, Rule 110.

How to state the name of the accused

The complaint or information must state the nameand surname of the accused or any appellation ornickname by which he has been or is known. If hisname cannot be ascertained, he must be describedunder a fictitious name with a statement that his truename is unknown.

If the true name of the accused is thereafter disclosedby him or appears in some other manner to the court,such true name shall be inserted in the complaint orinformation and record

5.2.6. Designation of offense

The complaint or information shall state thedesignation of the offense given by the statute, averthe acts or omissions constituting the offense, andspecify its qualifying and aggravating circumstances.If there is no designation of the offense, referenceshall be made to the section or subsection of thestatute punishing it. Sec. 8, Rule 110

In Malto vs People, it was held that the failure todesignate the offense by the statue or to mentionspecific provision penalizing the act or an erroneousspecification of the law violated does not vitiates theinformation if the facts alleged clearly receive thefacts constituting the crime.

5.2.7. Cause of the accusation

The acts or omissions complained of as constitutingthe offense and the qualifying and aggravatingcircumstances must be stated in ordinary and conciselanguage and not necessarily in the language used in

the statute but in terms sufficient to enable a personof common understanding to know what offense isbeing charged as well as its qualifying and aggravatingcircumstances and for the court to pronouncejudgment

5.2.8. Duplicity of the offense; exception

General rule: A complaint or information must chargebut one offense

Exception: except when the law prescribes a singlepunishment for various offenses.

5.2.9. Amendment or substitution of complaintor information

Amendment without leave of court

A complaint or information may be amended, in formor in substance, without leave of court, at any timebefore the accused enters his plea.

Amendment with leave of court

After the plea and during the trial, a formalamendment may only be made with leave of courtand when it can be done without causing prejudice tothe rights of the accused.

However, any amendment before plea, whichdowngrades the nature of the offense charged in orexcludes any accused from the complaint orinformation, can be made only:

1. Upon motion by the prosecutor,2. With notice to the offended party and3. With leave of court.

The court shall state its reasons in resolving themotion and copies of its order shall be furnished allparties, especially the offended party.

Substitution of the complaint or information

A complaint or information may be substituted if itappears at any time before judgment that a mistakehas been made in charging the proper offense.


Pg.158

In such case, the court shall dismiss the originalcomplaint for information once the new one chargingthe proper offense is filed provided that the accusedwill not be placed in double jeopardy.

Amendment Substitution

1. Involve eitherformal andsubstantialchanges

2. Amendmentbefore plea hasbeen entered canbe effectedwithout leave ofcourt

3. When theamendment is onlyas to form, there isno need foranotherpreliminaryinvestigation andthe retaking of theplea of the accused

4. Refers to the sameoffense charged inthe originalinformation or toan offense which isnecessarilyincluded in theoriginal charge.

1. Necessarilyinvolves asubstantialchange fromthe originalchange.

2. Substitution oftheinformationmust be withleave of courtas the originalinformationhas to bedismissed

3. Anotherpreliminaryinvestigation isentailed andthe accusedhas to pleadanew to thenewinformation

4. Thispresupposesthat a newinformationinvolvesdifferentoffense whichdoes notinclude or isnot necessarilyincluded in theoriginalcharge, hence,the accusedcannot claimdoublejeopardy.

5.2.10. Venue of criminal actions

Subject to existing laws, the criminal action shall beinstituted and tried in the court of the municipality orterritory where the offense was committed or whereany of its essential ingredients occurred.

Where an offense is committed in a train, aircraft, orother public or private vehicle while in the course ofits trip

The criminal action shall be instituted and tried in thecourt of any municipality or territory where suchtrain, aircraft or other vehicle passed during such itstrip, including the place of its departure and arrival.

Where an offense is committed on board a vessel inthe course of its voyage

The criminal action shall be instituted and tried in thecourt of the first port of entry or of any municipalityor territory where the vessel passed during suchvoyage, subject to the generally accepted principlesof international law.

Crimes committed outside the Philippines butpunishable under Article 2 of the Revised Penal Code

The criminal action shall be cognizable by the courtwhere the criminal action is first filed

5.2.11. Intervention of offended party

Where the civil action for recovery of civil liability isinstituted in the criminal action pursuant to Rule 111,the offended party may intervene by counsel in theprosecution of the offense.

This is because the person convicted of a crime is alsocivilly liable.


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5.3. PROSECUTION OF CIVIL ACTION (RULE111)

5.3.1. Rule on implied institution of civil actionwith criminal action

When a criminal action is instituted, the civil actionfor the recovery of civil liability arising from theoffense charged shall be deemed instituted with thecriminal action unless the offended party waives thecivil action, reserves the right to institute it separatelyor institutes the civil action prior to the criminalaction. Sec. 1, Rule 111.

When there is no implied institution of the civilaction:

a. When the offended party waives the civilaction

b. When the offended party reserves the rightto institute civil action separately

c. When the offended party institutes the civilaction prior to criminal action.

Note – the above rule has no application toindependent civil actions under Art. 32, 33, 34, and2176 of the Civil Code.

The reservation of the right to institute separately thecivil action shall be made before the prosecutionstarts presenting its evidence and undercircumstances affording the offended party areasonable opportunity to make such reservation.

Note – there is no reservation of civil action in casesunder B.P. 22.

5.3.2. When civil action may proceedindependently

Civil actions referred to in Art. 32, 33, 34, and 2176 ofthe Civil Code shall remain separate, distinct, andindependent of any criminal prosecution which maybe based on the same act. Philippine Rabbit Bus Linesvs People.

5.3.3. When separate civil action is suspended

After the criminal action has been commenced, theseparate civil action arising therefrom cannot beinstituted until final judgment has been entered in thecriminal action. Sec. 2 Rule 111

If the criminal action is filed after the said civil actionhas already been instituted

The latter shall be suspended in whatever stage itmay be found before judgment on the merits. Thesuspension shall last until final judgment is renderedin the criminal action.

Consolidation of criminal action

Nevertheless, before judgment on the merits isrendered in the civil action, the same may, uponmotion of the offended party, be consolidated withthe criminal action in the court trying the criminalaction.

Effect of the consolidation in the evidence alreadypresented

In case of consolidation, the evidence alreadyadduced in the civil action shall be deemedautomatically reproduced in the criminal actionwithout prejudice to the right of the prosecution tocross-examine the witnesses presented by theoffended party in the criminal case and of the partiesto present additional evidence. The consolidatedcriminal and civil actions shall be tried and decidedjointly.

Prescription of the civil action

During the pendency of the criminal action, therunning of the period of prescription of the civil actionwhich cannot be instituted separately or whoseproceeding has been suspended shall be tolled. (n)

Effect of acquittal or the extinction of penal actionon the civil action or civil liability


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General rule: the extinction of the penal action doesnot carry with it extinction of the civil action where:

a. The acquittal is based on reasonable doubtas only preponderance of evidence isrequired

b. The court declares that the liability of theaccused is just civil

c. The civil liability of the accused does notarise from or is not based upon the crime ofwhich the accused is acquitted.

However, the civil action based on delict shall bedeemed extinguished if there is a finding in a finaljudgment in the criminal action that the act oromission from which the civil liability may arise didnot exist.

Effect of payment of civil liability

Payment of civil liability does not extinguish criminalliability.

5.3.4. Effect of death of the accused or convicton civil action

The death of the accused after arraignment andduring the pendency of the criminal action shallextinguish the civil liability arising from the delict.However, the independent civil action institutedunder section 3 of this Rule or which thereafter isinstituted to enforce liability arising from othersources of obligation may be continued against theestate or legal representative of the accused afterproper substitution or against said estate, as the casemay be. The heirs of the accused may be substitutedfor the deceased without requiring the appointmentof an executor or administrator and the court mayappoint a guardian ad litem for the minor heirs. Sec.4, Rule 111.

The court shall forthwith order said legalrepresentative or representatives to appear and besubstituted within a period of thirty (30) days fromnotice.

If the accused dies before arraignment, the case shallbe dismissed without prejudice to any civil action theoffended party may file against the estate of thedeceased. Sec. 4, Rule 111.

5.3.5. Prejudicial question

A petition for suspension of the criminal action basedupon the pendency of a prejudicial question in a civilaction may be filed in the office of the prosecutor orthe court conducting the preliminary investigation.When the criminal action has been filed in court fortrial, the petition to suspend shall be filed in the samecriminal action at any time before the prosecutionrests Sec. 6, Rule 111

Ratio – to avoid two conflicting decisions in civil caseand in the criminal case.

The suspension does not include dismissal

The rule authorizing the suspension of the criminalcase does not prescribe the dismissal of the criminalaction. It only authorizes its suspension. Thesuspension shall be made upon the filing of petitionof suspension. Yap vs Paras 205 SCRA 625

Elements of prejudicial question:

The elements of a prejudicial question are:

(a) the previously instituted civil action involves anissue similar or intimately related to the issue raisedin the subsequent criminal action, and

(b) the resolution of such issue determines whetheror not the criminal action may proceed

5.3.6. Rule on filing fees in civil action deemedinstituted with the criminal action

Filing fees apply when the damages are being claimedby the offended party.

Upon filing of the aforesaid joint criminal and civilactions, the offended party shall pay in full the filingfees based on the amount of the check involved,


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which shall be considered as the actual damagesclaimed.

Where the complaint or information also seeks torecover liquidated, moral, nominal, temperate orexemplary damages, the offended party shall payadditional filing fees based on the amounts allegedtherein.

If the amounts are not so alleged but any of thesedamages are subsequently awarded by the court, thefiling fees based on the amount awarded shallconstitute a first lien on the judgment. Sec. 1[b] Rule111.

5.4. PRELIMINARY INVESTIGATION (RULE112)

Preliminary investigation - is an inquiry orproceeding to determine whether there is sufficientground to engender a well-founded belief that acrime has been committed and the respondent isprobably guilty thereof, and should be held for trial.Sec. 1 Rule 112

Scope

Except as provided in section 7 of this Rule, apreliminary investigation is required to be conductedbefore the filing of a complaint or information for anoffense where the penalty prescribed by law is atleast four (4) years, two (2) months and one (1) daywithout regard to the fine.

5.4.1. Nature of right

It is a mere statutory right and not a constitutionalright. However, it becomes a component of dueprocess in criminal justice. Domoral vsSandiganbayan, 117 SCRA 354

The right to preliminary investigation may be waivedfor failure to invoke the right prior or at the time ofplea. People vs Gomez, 117 SCRA73

5.4.2. Purposes of preliminary investigation

a. To avoid indiscriminate filing of criminalcharges

b. To declog court dockets

5.4.3. Who may conduct determination ofexistence of probable cause

The following may conduct preliminaryinvestigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and MunicipalCircuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigationsshall include all crimes cognizable by the proper courtin their respective territorial jurisdictions.

Probable cause – such facts and circumstances aswould lead a person of ordinary caution andprudence to entertain a honest and strong suspicionthat the person charged is guilty of the crime subjectof the investigation.

It is not a determination of guilt, but rather todetermine whether the case should proceed to trial.

The preliminary investigation shall be conducted inthe following manner:

a. The complaint shall state the address of therespondent and shall be accompanied by theaffidavits of the complainant and his witnesses, aswell as other supporting documents to establishprobable cause. They shall be in such number ofcopies as there are respondents, plus two (2) copiesfor the official file.

The affidavits shall be subscribed and sworn to beforeany prosecutor or government official authorized to


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administer oath, or, in their absence or unavailability,before a notary public, each of who must certify thathe personally examined the affiants and that he issatisfied that they voluntarily executed andunderstood their affidavits.

b. Within ten (10) days after the filing of thecomplaint, the investigating officer shall eitherdismiss it if he finds no ground to continue with theinvestigation, or issue a subpoena to the respondentattaching to it a copy of the complaint and itssupporting affidavits and documents.

Right of the defendant to examine

The respondent shall have the right to examine theevidence submitted by the complainant which he maynot have been furnished and to copy them at hisexpense. If the evidence is voluminous, thecomplainant may be required to specify those whichhe intends to present against the respondent, andthese shall be made available for examination orcopying by the respondent at his expense.

Objects as evidence need not be furnished a party butshall be made available for examination, copying, orphotographing at the expense of the requestingparty.

Respondent to file counter affidavit

Within ten (10) days from receipt of the subpoenawith the complaint and supporting affidavits anddocuments, the respondent shall submit his counter-affidavit and that of his witnesses and othersupporting documents relied upon for his defense.The counter-affidavits shall be subscribed and swornto and certified as provided in paragraph (a) of thissection, with copies thereof furnished by him to thecomplainant. The respondent shall not be allowed tofile a motion to dismiss in lieu of a counter-affidavit.

If the respondent cannot be subpoenaed

If the respondent cannot be subpoenaed, or ifsubpoenaed, does not submit counter-affidavitswithin the ten (10) day period, the investigatingofficer shall resolve the complaint based on theevidence presented by the complainant.

Conduct of preliminary hearing

The investigating officer may set a hearing if there arefacts and issues to be clarified from a party or awitness.

The parties can be present at the hearing but withoutthe right to examine or cross-examine. They may,however, submit to the investigating officerquestions which may be asked to the party or witnessconcerned.

The hearing shall be held within ten (10) days fromsubmission of the counter-affidavits and otherdocuments or from the expiration of the period fortheir submission. It shall be terminated within five (5)days.

(f) Within ten (10) days after the investigation, theinvestigating officer shall determine whether or notthere is sufficient ground to hold the respondent fortrial. (3a)

5.4.4. Resolution of investigation prosecutor

If the investigating prosecutor finds cause to hold therespondent for trial, he shall prepare the resolutionand information.

He shall certify under oath in the information:

that he, or as shown by the record, an authorizedofficer, has personally examined the complainant andhis witnesses;

a. that there is reasonable ground to believethat a crime has been committed and thatthe accused is probably guilty thereof;


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b. that the accused was informed of thecomplaint and of the evidence submittedagainst him; and that he was given anopportunity to submit controvertingevidence.

Otherwise, he shall recommend the dismissal of thecomplaint.

5.4.5. Review

Within ten (10) days after the preliminaryinvestigation, the investigating judge shall transmitthe resolution of the case to the provincial or cityprosecutor, or to the Ombudsman or his deputy incases of offenses cognizable by the Sandiganbayan inthe exercise of its original jurisdiction, for appropriateaction.

The resolution shall state the findings of facts and thelaw supporting his action, together with the record ofthe case which shall include:

(a) the warrant, if the arrest is by virtue of a warrant;

(b) the affidavits, counter-affidavits and othersupporting evidence of the parties;

(c) the undertaking or bail of the accused and theorder for his release;

(d) the transcripts of the proceedings during thepreliminary investigation; and

(e) the order of cancellation of his bail bond, if theresolution is for the dismissal of the complaint.

Within thirty (30) days from receipt of the records,the provincial or city prosecutor, or the Ombudsmanor his deputy, as the case may be, shall review theresolution of the investigating judge on the existenceof probable cause.

Their ruling shall expressly and clearly state the factsand the law on which it is based and the parties shallbe furnished with copies thereof. They shall order the

release of an accused who is detained if no probablecause is found against him

5.4.6. When warrant of arrest may issue

By the Regional Trial Court.

Within ten (10) days from the filing of the complaintor information, the judge shall personally evaluatethe resolution of the prosecutor and its supportingevidence.

Judicial determination of probable cause

He may immediately dismiss the case if the evidenceon record clearly fails to establish probable cause. Ifhe finds probable cause, he shall issue a warrant ofarrest, or a commitment order if the accused hasalready been arrested pursuant to a warrant issuedby the judge who conducted the preliminaryinvestigation or when the complaint or informationwas filed pursuant to section 7 of this Rule.

In case of doubt by the judge; order of presentationof additional evidence

In case of doubt on the existence of probable cause,the judge may order the prosecutor to presentadditional evidence within five (5) days from noticeand the issue must be resolved by the court withinthirty (30) days from the filing of the complaint ofinformation

By the municipal trial court

When required pursuant to the second paragraph ofsection 11086 of this Rule, the preliminaryinvestigation of cases falling under the originaljurisdiction of the Metropolitan Trial Court, MunicipalTrial Court in Cities, Municipal Trial Court, orMunicipal Circuit Trial Court shall be conducted by theprosecutor. The procedure for the issuance of awarrant of arrest by the judge shall be governed byparagraph (a)1087 of this section.


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5.4.7. Cases not requiring a preliminaryinvestigation

If filed with the prosecutor.

If the complaint is filed directly with the prosecutorinvolving an offense punishable by imprisonment ofless four (4) years, two (2) months and one (1) day,the procedure outlined in section 3(a) of this Ruleshall be observed. The prosecutor shall act on thecomplaint based on the affidavits and othersupporting documents submitted by the complainantwithin ten (10) days from its filing.

If filed with the Municipal Trial Court.

If the complaint or information is filed directly withthe Municipal Trial Court or Municipal Circuit TrialCourt for an offense covered by this section, theprocedure in section 3(a) of this Rule shall beobserved. If within ten (10) days after the filing of thecomplaint or information, the judge finds no probablecause after personally evaluating the evidence, orafter personally examining in writing and under oaththe complainant and his witnesses in the form ofsearching question and answers, he shall dismiss thesame. He may, however, require the submission ofadditional evidence, within ten (10) days from notice,to determine further the existence of probable cause.If the judge still finds no probable cause despite theadditional evidence, he shall, within ten (10) daysfrom its submission or expiration of said period,dismiss the case. When he finds probable cause, heshall issue a warrant of arrest, or a commitment orderif the accused had already been arrested, and holdhim for trial. However, if the judge is satisfied thatthere is no necessity for placing the accused undercustody, he may issue summons instead of a warrantof arrest.

5.4.8. Remedies of accused if there was nopreliminary investigation

a. To hold in abeyance the proceedings andorder the prosecutor to hold preliminaryinvestigation.

b. If the case has been conducted, the accusedmay within five (5) days from the time helearns of its filing ask for a preliminaryinvestigation. Sec. 3, 2000 NPS Rule onAppeal, DOJ Circular No. 70

The five - day period to file the motion for preliminaryinvestigation is mandatory, and an accused is entitledto ask for preliminary investigation by filing themotion within the said period

Appeal to the Secretary of Justice, filing of petitionor review

The appeal shall be taken within 15 days from thereceipt of the assailed decision. If motion forreconsideration has been filed within 15 days fromthe receipt, the appeal shall be taken within 15 daysfrom the receipt of the denial. Only one motion forreconsideration is allowed.

An appeal is made by filing a petition for review withthe Office of the Secretary, Department of Justice.

The Secretary of Justice may reverse, affirm or modifythe said resolution. He may also motu propio or uponmotion dismiss the review on the following grounds:

a. The appeal is filed beyond prescriptionb. The procedure under D.C. No. 70 was not

complied withc. There is no showing of reversible error, or

that the accused was already arraignedd. The appealed decision is in interlocutory in

nature, except when it suspends theproceedings based on the alleged existenceof prejudicial question

e. The offense is already prescribedf. Other grounds for dismissal, see. Sec. 13, of

D.C. 70

In assailing the adverse decision of the Secretary ofJustice, use Petition for Certiorari under Rule 65.Bautista vs CA, July 6, 2001

Note, if any case the information is already filed incourt while the appeal in Secretary of Justice ispending, the latter proceedings will already be mootand academic.


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5.4.9. Inquest

It is a summary investigation conducted by a publicprosecutor in criminal cases involving personsarrested and detained without the benefit of awarrant of arrest issued by the court for the purposeof determining whether or not said persons shouldremain under custody and correspondingly becharged in court.

Such proceedings must terminate within the periodprescribed under Art. 125 of the Revised Penal Codeunless the accused opted for preliminaryinvestigation, in which case, he must sign a waiver forthe Art. 125 of the RPC.

5.5. ARREST (RULE 113)

5.5.1. Arrest, how made

Arrest - the taking of a person into custody in orderthat he may be bound to answer for the commissionof an offense. Sec. 1, Rule 113.

An arrest is made by an actual restraint of a person tobe arrested, or by his submission to the custody of theperson making the arrest. Sec. 2, Rule 113.

No violence or unnecessary force shall be used inmaking an arrest. The person arrested shall not besubject to a greater restraint than is necessary for hisdetention

Warrant of arrest - is a legal process issued bycompetent authority directing the arrest of a personor persons upon grounds stated therein. It usuallydirected to a regular officer of the law, butoccasionally, it is issued to a private person named init.

5.5.2. Arrest without warrant, when lawful

A peace officer or a private person may, without awarrant, arrest a person:

In flagrante delicto,

(a) When, in his presence, the person to be arrestedhas committed, is actually committing, or isattempting to commit an offense;

Requisites for in flagrante delicto

1. The person to be arrested must execute anover act indicating that he has justcommitted, is actually committing, or isattempting to commit a crime

2. Such act is done in the presence or withinthe view of arresting officer.

Hot pursuit

(b) When an offense has just been committed, and hehas probable cause to believe based on personalknowledge of facts or circumstances that the personto be arrested has committed it; and;

Requisites for hot pursuit:

1. the offense has just been committed2. The person making the arrest has personal

knowledge of the facts indicating that theperson to be arrested has just committed.

Escapee; fugitive from justice

(c) When the person to be arrested is a prisoner whohas escaped from a penal establishment or placewhere he is serving final judgment or is temporarilyconfined while his case is pending, or has escapedwhile being transferred from one confinement toanother.

Flight while on bail exception

(d). An accused released on bail may be re-arrestedwithout the necessity of a warrant if he attempts todepart from the Philippines without permission ofthe court where the case is pending. Sec. 23, Rule114


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5.5.3. Method of arrest

a) By officer with warrant

When making an arrest by virtue of a warrant, theofficer shall inform the person to be arrested of thecause of the arrest and of the fact that a warrant hasbeen issued for his arrest, Sec. 7, Rule 113

Exception: when he flees or forcibly resists before theofficer has opportunity to so inform him, or when thegiving of such information will imperil the arrest.

The officer need not have the warrant in hispossession at the time of the arrest but after thearrest, if the person arrested so requires, the warrantshall be shown to him as soon as practicable

b) By officer without warrant

When making an arrest without a warrant, the officershall inform the person to be arrested of his authorityand the cause of the arrest, unless the latter is eitherengaged in the commission of an offense, is pursuedimmediately after its commission, has escaped, fleesor forcibly resists before the officer has opportunityso to inform him, or when the giving of suchinformation will imperil the arrest. Sec. 8, Rule 113

c) By private person

When making an arrest, a private person shall informthe person to be arrested of the intention to arresthim and cause of the arrest, unless the latter is eitherengaged in the commission of an offense, is pursuedimmediately after its commission, or has escaped,flees, or forcibly resists before the person making thearrest has opportunity to so inform him, or when thegiving of such information will imperil the arrest Sec.9, Rule 113

Rights of the person arrested (RA 7348):

1. The right to be assisted by counsel at alltimes

2. The right to remain silent3. The right to be informed of the above rights

4. The right to be visited by the immediatemembers of his family, by his counsel, or bynon-governmental organization, national orinternational.

5.5.4. Requisites of a valid warrant of arrest

The head of the office to whom the warrant of arrestwas delivered for execution shall cause the warrant tobe executed within ten (10) days from its receipt.

Within ten (10) days after the expiration of theperiod, the officer to whom it was assigned forexecution shall make a report to the judge who issuedthe warrant. In case of his failure to execute thewarrant, he shall state the reasons therefor.

It shall be the duty of the officer executing thewarrant to arrest the accused and to deliver him tothe nearest police station or jail without unnecessarydelay.

Waiver of illegality of the arrest; effect

A warrantless arrest is not jurisdictional defect andany objection to it is waived when the personarrested submits to arraignment without anyobjections.

If the appellants are questioning their arrest for thefirst time on appeal, they are, therefore, deemed tohave waived their right to the constitutionalprotection against illegal arrests and searches. Peoplevs Aminola, GR 178062

Time of making an arrest

The arrest may be made on any day and at any timeof the day or night.

Persons not subject to arrest

According to Sec. 11, Article VI, of the 1987Constitution provides that a senator or member ofthe House of Representatives, shall, in all offensespunishable by not more than six years ofimprisonment, be privileged while the congress is insession.


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But this does not apply if the congress is not insession.

5.5.5. Determination of probable cause for issuanceof warrant of arrest

It is constitutionally mandated that a warrant ofarrest shall issue only upon finding of probable causepersonally determined by the judge afterexamination under oath or affirmation of thecomplainant and the witness he/she may produce,and particular describing the person to be seized.Sec. 2, Art. III, of the 1987 Constitution.

5.5.6. Distinguish probable cause of fiscal fromthat of a judge

The determination of probable cause for purposes ofissuing the warrant of arrest is made by the judge. Itis a judicial function.

The preliminary investigation proper, whether or notthere is a reasonable ground to believe that theaccused is guilty of the offense charged is the functionof investigating prosecutor. It is executive function.

5.6. BAIL (RULE 114)

5.6.1. Nature

Bail - is the security given for the release of a personin custody of the law, furnished by him or abondsman, to guarantee his appearance before anycourt as required under the conditions hereinafterspecified. Bail may be given in the form of corporatesurety, property bond, cash deposit, or recognizance.Sec. 1, Rule 114

The righto bail is a constitutional right. It is personalin nature, and is therefore, waivable. A bailapplication does not only involve the right of theaccused to temporary liberty, but likewise the right ofthe State to protect the people an the peace of thecommunity from dangerous elements.

Forms of bail

Corporate surety –this is bail furnished by thecorporation.

Any domestic or foreign corporation, licensed as asurety in accordance with law and currentlyauthorized to act as such, may provide bail by a bondsubscribed jointly by the accused and an officer of thecorporation duly authorized by its board of directors.

Property bond – it is an undertaking constituted aslien on the real property given as security for theamount of bail.

A property bond is an undertaking constituted as lienon the real property given as security for the amountof the bail. Within ten (10) days after the approval ofthe bond, the accused shall cause the annotation ofthe lien on the certificate of title on file with theRegister of Deeds if the land is registered, or ifunregistered, in the Registration Book on the spaceprovided therefor, in the Registry of Deeds for theprovince or city where the land lies, and on thecorresponding tax declaration in the office of theprovincial, city and municipal assessor concerned.Sec. 11, Rule 114.

Within the same period, the accused shall submit tothe court his compliance and his failure to do so shallbe sufficient cause for the cancellation of theproperty bond and his re-arrest and detention.

The qualification of sureties in a property bond shallbe as follows:

(a) Each must be a resident owner of real estatewithin the Philippines;

(b) Where there is only one surety, his real estatemust be worth at least the amount of theundertaking;

(c) If there are two or more sureties, each may justifyin an amount less than that expressed in theundertaking but the aggregate of the justified sums


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must be equivalent to the whole amount of baildemanded. Sec. 12, Rule 114.

Cash deposit – the bail may also be in the form ofcash.

The accused or any person acting in his behalf maydeposit in cash with the nearest collector or internalrevenue or provincial, city, or municipal treasurer theamount of bail fixed by the court, or recommendedby the prosecutor who investigated or filed the case.Upon submission of a proper certificate of depositand a written undertaking showing compliance withthe requirements of section 2 of this Rule, theaccused shall be discharged from custody. The moneydeposited shall be considered as bail and applied tothe payment of fine and costs while the excess, if any,shall be returned to the accused or to whoever madethe deposit

Recognizance – this I san obligation of record enteredinto before some court or magistrate duly authorizedto take it, with the condition to do some particularact, the most usual condition in criminal case beingappearance of the accused in trial.

Whenever allowed by law or these Rules, the courtmay release a person in custody to his ownrecognizance or that of a responsible person Sec. 14,Rule 114.

5.6.2. When a matter of right; exceptions

All persons in custody shall be admitted to bail as amatter of right, with sufficient sureties, or released onrecognize as prescribed by law or this Rule

a. before or after conviction by the Metropolitan TrialCourt, Municipal Trial Court, Municipal Trial Court inCities, or Municipal Circuit Trial Court, and

b. before conviction by the Regional Trial Court of anoffense not punishable by death, reclusion perpetua,or life imprisonment.

5.6.3. When a matter of discretion

Upon conviction by the Regional Trial Court of anoffense not punishable by death, reclusion perpetua,or life imprisonment, admission to bail isdiscretionary.

The application for bail may be filed and acted uponby the trial court despite the filing of a notice ofappeal, provided it has not transmitted the originalrecord to the appellate court.

If the decision of the trial court convicting theaccused changed the nature of the offense fromnon-bailable to bailable

The application for bail can only be filed with andresolved by the appellate court.

If the penalty imposed by the trial court isimprisonment exceeding six (6) years

The accused shall be denied bail, or his bail shall becancelled upon a showing by the prosecution, withnotice to the accused, of the following or other similarcircumstances:

(a) That he is a recidivist, quasi-recidivist, or habitualdelinquent, or has committed the crime aggravatedby the circumstance of reiteration;

(b) That he has previously escaped from legalconfinement, evaded sentence, or violated theconditions of his bail without valid justification;

(c) That he committed the offense while underprobation, parole, or conditional pardon;

(d) That the circumstances of his case indicate theprobability of flight if released on bail; or

(e) That there is undue risk that he may commitanother crime during the pendency of the appeal.

The appellate court may, motu proprio or on motionof any party, review the resolution of the Regional


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Trial Court after notice to the adverse party in eithercase.

5.6.4. Hearing of application for bail in capitaloffenses

Capital offense - is an offense which, under the lawexisting at the time of its commission and of theapplication for admission to bail, may be punishedwith death.

No person charged with a capital offense, or anoffense punishable by reclusion perpetua or lifeimprisonment, shall be admitted to bail whenevidence of guilt is strong, regardless of the stage ofthe criminal prosecution.

However, the accused may apply for a bail by provingthat the evidence is not strong.

Burden of proof in bail application

At the hearing of an application for bail filed by aperson who is in custody for the commission of anoffense punishable by death, reclusion perpetua, orlife imprisonment, the prosecution has the burden ofshowing that evidence of guilt is strong. The evidencepresented during the bail hearing shall be consideredautomatically reproduced at the trial, but uponmotion of either party, the court may recall anywitness for additional examination unless the latter isdead, outside the Philippines, or otherwise unable totestify. Sec. 8, Rule 114

5.6.5. Guidelines in fixing amount of bail

The judge who issued the warrant or granted theapplication shall fix a reasonable amount of bailconsidering primarily, but not limited to, thefollowing factors:

a. Financial ability of the accused to give bail;b. Nature and circumstances of the offense;c. Penalty for the offense charged;d. Character and reputation of the accused;e. Age and health of the accused;

f. Weight of the evidence against the accused;g. Probability of the accused appearing at the

trial;h. Forfeiture of other bail;i. The fact that accused was a fugitive from

justice when arrested; andj. Pendency of other cases where the accused

is on bail.Excessive bail shall not be required.

5.6.6. Bail when not required

No bail shall be required when the law or these Rulesso provide.

When a person has been in custody for a period equalto or more than the possible maximum imprisonmentprescribe for the offense charged, he shall bereleased immediately, without prejudice to thecontinuation of the trial or the proceedings on appeal.If the maximum penalty to which the accused may besentenced is destierro, he shall be released afterthirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more thanthe minimum of the principal penalty prescribed forthe offense charged, without application of theIndeterminate Sentence Law or any modifyingcircumstance, shall be released on a reduced bail oron his own recognizance, at the discretion of thecourt.

5.6.7. Increase or reduction of bail

After the accused is admitted to bail, the court may,upon good cause, either increase or reduce itsamount. When increased, the accused may becommitted to custody if he does not give bail in theincreased amount within a reasonable period. Sec.20, Rule 114

An accused held to answer a criminal charge, who isreleased without bail upon filing of the complaint orinformation, may, at any subsequent stage of theproceedings and whenever a strong showing of guiltappears to the court, be required to give bail in the


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amount fixed, or in lieu thereof, committed tocustody Sec. 20, Rule 114

5.6.8. Forfeiture and cancellation of bail

Duty of the bondsman

When the presence of the accused is required by thecourt or these Rules, his bondsmen shall be notifiedto produce him before the court on a given date andtime.

If the accused fails to appear in person as required

His bail shall be declared forfeited and the bondsmengiven thirty (30) days within which to produce theirprincipal and to show cause why no judgment shouldbe rendered against them for the amount of their bail.Within the said period, the bondsmen must:

(a) produce the body of their principal or give thereason for his non-production; and

(b) explain why the accused did not appear before thecourt when first required to do so.

Effect of failure to comply with the requisites

Failing in these two requisites, a judgment shall berendered against the bondsmen, jointly and severally,for the amount of the bail. The court shall not reduceor otherwise mitigate the liability of the bondsmen,unless the accused has been surrendered or isacquitted.

Upon application of the bondsmen, with due noticeto the prosecutor, the bail may be cancelled uponsurrender of the accused or proof of his death.

The bail shall be deemed automatically cancelledupon acquittal of the accused, dismissal of the case,or execution of the judgment of conviction.

In all instances, the cancellation shall be withoutprejudice to any liability on the bond.

5.6.9. Application not a bar to objections inillegal arrest, lack of or irregular preliminaryinvestigation

An application for or admission to bail shall not barthe accused from challenging the validity of his arrestor the legality of the warrant issued therefor, or fromassailing the regularity or questioning the absence ofa preliminary investigation of the charge against him,provided that he raises them before entering his plea.The court shall resolve the matter as early aspracticable but not later than the start of the trial ofthe case

5.6.10. Hold departure order & Bureau ofImmigration watchlist

The authority to issue hold departure orders is limitedto the RTCs in criminal cases within their exclusivejurisdiction. SC Cir. No. 39-97 dated June 19, 1997

MTC judges have no authority to issue hold-departureorders, following the maxim, “express mentionimplies the exclusion.” Neither does he haveauthority to cancel one which he issued.

5.7. RIGHTS OF THE ACCUSED (RULE 115)

5.7.1. Rights of accused at the trial

In all criminal prosecutions, the accused shall beentitled to the following rights:

(a) To be presumed innocent until thecontrary is proved beyond reasonabledoubt.

(b) To be informed of the nature and causeof the accusation against him.

(c) To be present and defend in person andby counsel at every stage of the proceedings,from arraignment to promulgation of the


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judgment. The accused may, however, waivehis presence at the trial pursuant to thestipulations set forth in his bail, unless hispresence is specifically ordered by the courtfor purposes of identification. The absenceof the accused without justifiable cause atthe trial of which he had notice shall beconsidered a waiver of his right to be presentthereat. When an accused under custodyescapes, he shall be deemed to have waivedhis right to be present on all subsequent trialdates until custody over him is regained.Upon motion, the accused may be allowedto defend himself in person when itsufficiently appears to the court that he canproperly protect his right without theassistance of counsel.

(d) To testify as a witness in his own behalfbut subject to cross-examination on matterscovered by direct examination. His silenceshall not in any manner prejudice him.

(e) To be exempt from being compelled to bea witness against himself.

(f) To confront and cross-examine thewitnesses against him at the trial. Eitherparty may utilize as part of its evidence thetestimony of a witness who is deceased, outof or can not with due diligence be found inthe Philippines, unavailable or otherwiseunable to testify, given in another case orproceeding, judicial or administrative,involving the same parties and subjectmatter, the adverse party having theopportunity to cross-examine him.

(g) To have compulsory process issued tosecure the attendance of witnesses andproduction of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in themanner prescribed by law.

Prima facie presumption of guilt

San example of this presumption is found in Sec. 3(j)of Rule 131, which provides that a person found inpossession of a thing taken in the doing of a wrongfulact is the taker and the doer of the whole act.

Prosecution must rest on its own merits

5.7.2. Rights of persons under custodialinvestigation

Custodial investigation – It is the stage where thepolice investigation is no longer a general inquiry intoan unsolved crime but has begun to focus on aparticular suspect taken into custody by the police tocarry out a process of interrogation that lends itself toelicit incriminating statements.

It shall include the practice of issuing an "invitation"to a person who is investigated in connection with anoffense he is suspected to have committed, withoutprejudice to the liability of the "inviting" officer forany violation of law.

The rights of a person under custodial investigationare the following:

(a) Any person arrested detained or under custodialinvestigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone actingunder his order or his place, who arrests, detains orinvestigates any person for the commission of anoffense shall inform the latter, in a language knownto and understood by him, of his rights to remainsilent and to have competent and independentcounsel, preferably of his own choice, who shall at alltimes be allowed to confer privately with the personarrested, detained or under custodial investigation. Ifsuch person cannot afford the services of his owncounsel, he must be provided with a competent and


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independent counsel by the investigatingofficer.lawphi1Ÿ

(c) The custodial investigation report shall be reducedto writing by the investigating officer, provided thatbefore such report is signed, or thumbmarked if theperson arrested or detained does not know how toread and write, it shall be read and adequatelyexplained to him by his counsel or by the assistingcounsel provided by the investigating officer in thelanguage or dialect known to such arrested ordetained person, otherwise, such investigation reportshall be null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a personarrested, detained or under custodial investigationshall be in writing and signed by such person in thepresence of his counsel or in the latter's absence,upon a valid waiver, and in the presence of any of theparents, elder brothers and sisters, his spouse, themunicipal mayor, the municipal judge, district schoolsupervisor, or priest or minister of the gospel aschosen by him; otherwise, such extrajudicialconfession shall be inadmissible as evidence in anyproceeding.

(e) Any waiver by a person arrested or detained underthe provisions of Article 125 of the Revised PenalCode, or under custodial investigation, shall be inwriting and signed by such person in the presence ofhis counsel; otherwise the waiver shall be null andvoid and of no effect.

(f) Any person arrested or detained or under custodialinvestigation shall be allowed visits by or conferenceswith any member of his immediate family, or anymedical doctor or priest or religious minister chosenby him or by any member of his immediate family orby his counsel, or by any national non-governmentalorganization duly accredited by the Commission onHuman Rights of by any international non-governmental organization duly accredited by theOffice of the President. The person's "immediatefamily" shall include his or her spouse, fiancé orfiancée, parent or child, brother or sister,

grandparent or grandchild, uncle or aunt, nephew orniece, and guardian or ward.

5.8. ARRAIGNMENT AND PLEA (RULE 116)

Arraignment – a formal mode and manner ofimplementing the constitutional right of the accusedto be informed of the nature and cause of accusationagainst him. 5.8.1. Arraignment and plea, how made

Without prior arraignment, the accused cannotinvoke double jeopardy.

Remedy of the accused before arraignment and plea

1. Bill of particulars under Sec. 9, Rule 116 ofRules of Court

2. Suspension of arraignment , Sec. 11, Rule116

3. Motion to quash4. Challenge the validity of the arrest or

illegality of the warrant issued or assail theregularity or question the absence ofpreliminary investigation charge, Sec. 26,Rule 114.

Plea made before a court with no jurisdiction

A plea made before a court that has no jurisdictionover the criminal action does not give rise to doublejeopardy. Zapatos vs People, 411 SCRA 148

How arraignment is made

The accused must be arraigned before the courtwhere the complaint or information was filed orassigned for trial. The arraignment shall be made inopen court by the judge or clerk by furnishing theaccused with a copy of the complaint or information,reading the same in the language or dialect known tohim, and asking him whether he pleads guilty or notguilty. The prosecution may call at the trial witnessesother than those named in the complaint orinformation.


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The accused must be present

The accused must be present at the arraignment andmust personally enter his plea. Both arraignment andplea shall be made of record, but failure to do so shallnot affect the validity of the proceedings

When the private offended party must appear

The private offended party shall be required toappear at the arraignment for purposes of pleabargaining, determination of civil liability, and othermatters requiring his presence. In case of failure ofthe offended party to appear despite due notice, thecourt may allow the accused to enter a plea of guiltyto a lesser offense which is necessarily included in theoffense charged with the conformity of the trialprosecutor alone.

5.8.2. When should plea of not guilty beentered

The plea of not guilty may should be entered in thefollowing cases:

1. When the accused pleaded guilty2. When the accused refuses to plead3. Makes a conditional plea,4. When the accused pleads guilty but presents

exculpatory evidence, his plea shall bedeemed withdrawn and a plea of not guiltyshall be entered for him

5. When the accused so pleaded guilty here inadmitting the act charged, he sets upmatters of defense or with a lawfuljustification

6. When the plea is indefinite or ambiguous.

5.8.3. When may accused enter a plea of guilty to alesser offense

At arraignment, the accused, with the consent of theoffended party and the prosecutor, may be allowedby the trial court to plead guilty to a lesser offensewhich is necessarily included in the offense charged.Sec. 2, Rule 116

Requisites:

1. It is made at the arraignment2. With the consent of the offended party3. With the consent of the prosecutor4. Offense which is necessarily included in the

offense charged

After arraignment but before trial,

The accused may still be allowed to plead guilty tosaid lesser offense after withdrawing his plea of notguilty. No amendment of the complaint orinformation is necessary

5.8.4. Accused pleads guilty to capital offense,what the court should do

When the accused pleads guilty to a capital offense

The court shall conduct a searching inquiry into thevoluntariness and full comprehension of theconsequences of his plea and require the prosecutionto prove his guilt and the precise degree of culpability.

The accused may present evidence in his behalf

5.8.5. Searching inquiry

Upon motion of the accused showing good cause andwith notice to the parties, the court, in order toprevent surprise, suppression, or alteration, mayorder the prosecution to produce and permit theinspection and copying or photographing of anywritten statement given by the complainant andother witnesses in any investigation of the offenseconducted by the prosecution or other investigatingofficers, as well as any designated documents,papers, books, accounts, letters, photographs,objects or tangible things not otherwise privileged,which constitute or contain evidence material to anymatter involved in the case and which are in thepossession or under the control of the prosecution,police, or other law investigating agencies. Sec. 10,Rule 116.


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5.8.6. Improvident plea

Improvident plea - A plea against his will or withouthis consent.

At any time before the judgment of convictionbecomes final, the court may permit an improvidentplea of guilty to be withdrawn and be substituted bya plea of not guilty. Sec. 5, Rule 116

5.8.7. Grounds for suspension of arraignment

1. Upon motion by the proper party, thearraignment shall be suspended in thefollowing cases:

2. The accused appears to be suffering from anunsound mental condition which effectiverenders him unable to fully understand thecharge against him and to plead intelligentlythereto. In such case, the court shall orderhis mental examination and, if necessary, hisconfinement for such purpose;

3. There exists a prejudicial question; and4. A petition for review of the resolution of the

prosecutor is pending at either theDepartment of Justice, or the Office of thePresident; provided, that the period ofsuspension shall not exceed sixty (60) dayscounted from the filing of the petition withthe reviewing office. (12a)

5.9. MOTION TO QUASH (RULE 117)

Motion to quash – a motion for the dismissal of thecomplaint or information based on the groundsstated in Sec. 3, Rule 117.

When to file motion to quash

At any time before entering his plea, the accused maymove to quash the complaint or information

Motion of quash not allowed in summary procedure;exception

A motion to quash is generally not allowed in asummary procedure

Exceptions:

Lack of jurisdiction over subject matter

Failure to comply with barangay conciliationproceedings

Forms and contents of motion to quash

1. The motion must comply with the followingrequisites:

2. The motion to quash shall be in writing3. Signed by the accused or his counsel and4. Shall distinctly specify its factual and legal

grounds.

The court shall consider no ground other than thosestated in the motion, except lack of jurisdiction overthe offense charged.

5.9.1. Grounds

A complaint or information may be subject to amotion to quash on any of the following grounds:

1. That the facts charged do not constitute anoffense;

2. That the court trying the case has nojurisdiction over the offense charged;

3. That the court trying the case has nojurisdiction over the person of the accused;

4. That the officer who filed the informationhad no authority to do so;

5. That it does not conform substantially to theprescribed form;

6. That more than one offense is chargedexcept when a single punishment for variousoffenses is prescribed by law;

7. That the criminal action or liability has beenextinguished;


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8. That it contains averments which, if true,would constitute a legal excuse orjustification; and

9. That the accused has been previouslyconvicted or acquitted of the offensecharged, or the case against him wasdismissed or otherwise terminated withouthis express consent.

5.9.2. Distinguish from demurrer to evidence

Motion to quash Demurrer to Evidence

Filed before theaccused files his plea

Does not require priorleave of court

Grounds are under Sec.3, of Rule 117.

When granted, adismissal will notnecessarily follow. Thecourt may order filing ofnew complaint orinformation.

In case of denial withGAD, certiorari is theremedy.

Filed after theprosecution rests hiscase

Can be filed with orwithout leave of court

The ground isinsufficiency ofevidence

It is deemed as acquittaland would preclude thefiling of information oran appeal byprosecution

As a general rule, it isnot reviewable by anappeal for certioraribefore judgment.

Execution of affidavit of desistance is not a groundfor motion to quash

The execution of the offended party of an affidavit ofdesistance is not a ground for motion to quash acomplaint or information because it is not among thegrounds.

Absence of preliminary investigation is not also aground for motion to quash, Rodis vsSandiganbayan, GR. 71404

General rule: Grounds not asserted in the motion toquash are waived.

Exceptions:

a. The facts charged do not constitute anoffense

b. That the court trying the case has nojurisdiction over the offense charged

c. The criminal action or liability has beenextinguished

d. Double jeopardy

5.9.3. Effects of sustaining the motion to quash

If the motion to quash is sustained, the court mayorder that another complaint or information be filedexcept as provided in section 6 of this rule. If the orderis made, the accused, if in custody, shall not bedischarged unless admitted to bail.

f no order is made or if having been made, no newinformation is filed within the time specified in theorder or within such further time as the court mayallow for good cause, the accused, if in custody, shallbe discharged unless he is also in custody for anothercharge.

5.9.4. Exception to the rule that sustaining themotion is not a bar to another prosecution

General rule: An order sustaining the motion toquash is not a bar to another prosecution of the sameoffense.

Exceptions:

a. The criminal action has been extinguishedb. That the accused has been previously

convicted or acquitted or the offensecharged, or the case against him wasdismissed or otherwise dismissed withouthis consent (double jeopardy)


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5.9.5. Double jeopardy

Sec. 2, Art. II of the 1987 states that, “No person shallbe twice put in jeopardy of punishment for the sameoffense. If an act is punished by a law or an ordinance,conviction or acquittal under either shall constitute abar to another prosecution for the same act.

Double jeopardy – refers to jeopardy of punishmentfor the same offense, suggesting that double jeopardypresupposes two separate criminal prosecution.

Requisites of double jeopardy:

a. The first jeopardy must have attached priorto the second

b. The first jeopardy must have been validlyterminated

c. The second jeopardy must be for the sameoffense or the second offense includes or isnecessarily included in the offense chargedin the first information, or is an attempt tocommit the same or a frustration thereof.

When deemed the first jeopardy attached thesecond action

a. The accused has been convicted oracquitted, or the case against him wasdismissed or terminated without his expressconsent

b. That the conviction, acquittal, dismissal, wasmade by a court of competent jurisdiction

c. There is a valid complaint or information, orother formal charge sufficient in form andsubstance to sustain a conviction

d. The accused has pleaded to the chargee. Subsequent prosecution for the offense.

5.9.6. Provisional dismissal

A case shall not be provisionally dismissed exceptwith the express consent of the accused and withnotice to the offended party.

The provisional dismissal of offenses punishable byimprisonment not exceeding six (6) years or a fine ofany amount, or both, shall become permanent one(1) year after issuance of the order without the casehaving been revived. With respect to offensespunishable by imprisonment of more than six (6)years, their provisional dismissal shall becomepermanent two (2) years after issuance of the orderwithout the case having been revived Sec. 8, Rule 117

5.10. PRE-TRIAL (RULE 118)

In criminal cases, pre-trial is mandatory in thefollowing courts:

a. Sandiganbayanb. Regional Trial Courtsc. Metropolitan Trial Court, Municipal Trial

Court in Cities, Municipal Trial Court,Municipal Circuit Trial Court. Sec. 1, Rule 118

Pre-trial in civil cases vs pre-trial in criminal case

Pre-trial in civil cases Pre-trial in criminalcases

1. Preceded by amotion ex partefiled by the plaintiffto set the case forpre-trial.

2. It is set after therequisite motionfrom the plaintiffafter all pleadingshave been servedand filed

3. One of the purposeis amicablesettlement andsubmission toAlternative DisputeResolution.

4. The sanction fornon-appearance isimposed upon thenon-appearingparty

1. No motion isrequired

2. Pre-trial is heldafter arraignmentwithin 30 daysfrom the date thecourt acquiresjuridiction over theperson of theaccused, unless ashorter period isprovide by thespecial laws orcircular of thesupreme court.

3. No purpose ofamicablesettlement orsubmission toAlternative DisputeResolution.


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5. They are requiredto file pre-trialbriefs

6. Pre-trial shall berecorded, but doesnot require to be insigned by theaccused and thecounsel.

4. The penalty isagainst the counselor prosecutor uponwhom propersanctions orpenalties may beimposed.

5. Does not requirepre-trial briefs

6. All agreements andadmissions madeor entered shall notonly be reduced inwriting and signedby the accused andcounsel, otherwise,not admissible.

When pre-trial shall be conducted

The court shall after arraignment and within thirty(30) days from the date the court acquires jurisdictionover the person of the accused

Exception: a shorter period is provided for in speciallaws or circulars of the Supreme Court.

5.10.1. Matters to be considered during pre-trial

a. plea bargaining;b. stipulation of facts;c. marking for identification of evidence of the

parties;d. waiver of objections to admissibility of

evidence;e. modification of the order of trial if the

accused admits the charge but interposes alawful defense; and

f. other matters as will promote a fair andexpeditious trial of the criminal and civilaspects of the case. (secs. 2 and 3, cir. 38-98)

5.10.2. What the court should do when prosecutionand offended party agree to the plea offered by theaccused

During the pre-trail, the trial judge shall consider plea-bargaining agreements except in cases for violationsof Comprehensive Dangerous Dugs Act of 2002. I-B[5], AM No. 03-1-09-SC

If plea bargaining is agreed upon, the court shall:

a. Issue an order to that effectb. Proceed to receive evidence on the civil

aspect of the casec. Render and promulgate judgment on

conviction including civil liability or damagesduly established.

Duty of the judge if the plea bargaining fails

The judge shall

a. adopt the minutes of preliminary conferenceas part of pre-trial proceedings,

b. confirm the markings of exhibits, admissionof genuineness and due execution ofdocuments,

c. list object and testimonial evidence,d. scrutinize every allegation in the

information,e. scrutinize affidavits and documents forming

parts of the record of preliminaryinvestigation,

f. define factual issues,g. ask parties to agree on specific dates for trial,

require the parties to submit the namesaddresses and contact numbers of thewitness summoned,

h. consider modification of trial if the accusedadmits the charge but interpose lawfuldefense.

5.10.3. Pre-trial agreement

All agreements or admissions made or entered duringthe pre-trial conference shall be reduced in writingand signed by the accused and counsel, otherwise,they cannot be used against the accused.

The agreements covering the matters referred to insection 1 of this Rule shall be approved by the court.


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5.10.4. Non-appearance during pre-trial

If the counsel for the accused or the prosecutor doesnot appear at the pre-trial conference and does notoffer an acceptable excuse for his lack of cooperation,the court may impose proper sanctions or penalties.

5.10.5. Pre-trial order

Within 10 days after the termination of the pre-trial,the judge shall issue a pre-trial odder, reciting:

a. the actions taken,b. the facts stipulated, andc. evidence marked.

Such order shall bind the parties, limit the trial tomatters not disposed of, and control the course of theaction during the trial, unless modified by the court toprevent manifest injustice. Sec. 4, Rule 118.

5.10.6. Referral of some cases for courtannexed mediation and judicial disputeresolution

States in the judicial proceedings with JDR,confidentiality

a. from the filing of a complaint, to the conductof Court-Annex Mediation, and JDR duringthe pre-trial stage

b. pre-trial order to trial and judgment

The judge to whom the case has been originallyraffled shall preside over the first stage. He shall becalled the JDR judge. Parties will be morespontaneous once they are assured that the JDRjudge will not be the one to try the case. AS such, thegeneral rule is that the JDR shall not preside over thetrial of the same case when the meditation did notsucceed.

The JDR acts as mediator, conciliator and neutralvaluator as the conditions may warrant, in order toeffect a settlement of a case.

Cases subject to mediation of JDR.

a. All civil cases, settlement of estates, andcases covered by the Rules on SummaryProcedure, except those by which the lawmay not be compromised.

Criminal cases like violation of traffic rules andregulation of municipal or city ordinances althoughincluded in the cases under summary procedureshould not be mediated because they cannot becompromised and might be a source of corruption ifcompromised though.

b. Cases cognizable by the LupongTapamapayapa under the KataraungangPambarangay Law

c. Civil aspect of BP. 22d. Civil aspect of quasi-offenses under Title 14

of the RPCe. Civil aspect of estafa and libelf. Civil aspect of Theft under Art. 308 of RPC.

5.11. TRIAL (RULE 119)

When trial shall commence

After a plea of not guilty is entered, the accused shallhave at least fifteen (15) days to prepare for trial.

The trial shall commence within thirty (30) days fromreceipt of the pre-trial order.

Summary of periods

Arraignment – within 30 days from the date the courtacquires jurisdiction over the accused, but the time ofpendency of the motion to quash or for a bill ofparticulars or other causes justifying the suspensionof the arraignment shall b excluded.

Pre-trial – after arraignment and within 30 days fromthe date the court acquires jurisdiction over theperson of the accused unless a shorter period isprovided in special laws or circulars.


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Trial – the general period applicable is 30 days fromthe receipt of pre-trial order.

Postponement or continuance

Factors for granting continuance:

The following factors, among others, shall beconsidered by a court in determining whether togrant a continuance under section 3(f) of this Rule.

(a) Whether or not the failure to grant acontinuance in the proceeding would likelymake a continuation of such proceedingimpossible or result in a miscarriage ofjustice; and

(b) Whether or not the case taken as a wholeis so novel, unusual and complex, due to thenumber of accused or the nature of theprosecution, or that it is unreasonable toexpect adequate preparation within theperiods of time established therein.

Prohibited grounds for continuance

In addition, no continuance under section 3(f) of thisRule shall be granted because of congestion of thecourt's calendar or lack of diligent preparation orfailure to obtain available witnesses on the part of theprosecutor. Sec. 4, Rule 119.

Order or trial:

The trial shall proceed in the following order:

(a) The prosecution shall present evidence toprove the charge and, in the proper case, thecivil liability.

(b) The accused may present evidence toprove his defense, and damages, if any,arising from the issuance of a provisionalremedy in the case.

(c) The prosecution and the defense may, inthat order, present rebuttal and sur-rebuttalevidence unless the court, in furtherance ofjustice, permits them to present additionalevidence bearing upon the main issue.

(d) Upon admission of the evidence of theparties, the case shall be deemed submittedfor decision unless the court directs them toargue orally or to submit writtenmemoranda. Sec. 11, Rule 119.

Modification of the order of trial, reverse trial.

When the accused admits the act or omission chargedin the complaint or information but interposes alawful defense, the order of trial may be modified.Sec. 11[e], Rule 119.

Reopening of the proceedings

At any time before finality of the judgment ofconviction, the judge may, motu proprio or uponmotion, with hearing in either case, reopen theproceedings to avoid a miscarrage of justice. Theproceedings shall be terminated within thirty (30)days from the order grating it Sec. 24, Rule 119.

5.11.1. Instances when presence of accused isrequired by law

In the following instances, the presence of theaccused is required:

a. at arraignment and plea, whether ofinnocence or guilt

b. during trial, whenever necessary foridentification purposes

c. at the promulgation of sentence, unless it isfor a light offense, in which case, the accusedmay appear on counsel or representative. Atsuch stages of proceedings, his presence isrequired and cannot be waived. People vsJoven de Grano, GR. No.167710.


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5.11.2. Requisite before trial can be suspendedon account of absence of witness

Requisites:

a. The witness is materialb. The party who applies for postponement is

not in neglectc. The witness can be had at the time to which

the trial has been deferred; andd. No similar evidence could be obtained.

5.11.3. Trial in absentia

The accused can only be tried in absentia with thefollowing requisites:

a. The accused has been already arraignedb. The accused has been duly notified of the

trial or hearingsc. The absence of he accused or his failure to

appear is unjustified

5.11.4. Remedy when accused is not brought totrial within the prescribed period

Effect of not bring the accused o trial within theprescribed period

The information may be dismissed on the ground ofhis right to speedy trial. The accused has the burdenof proving the same.

The motion for dismissal must be made prior to trial,otherwise the failure to do so shall be deemed awaiver of the right to have the charge dismissed. Sec.9, Rule 119.

On prosecution, on the other hand, shall go forwardwith the evidence to establish the the delay belongsto the exclusion of time mentioned in Sec. 3, of Rule119.

Exclusions:

Any period of delay resulting from other proceedingsconcerning the accused, including but not limited tothe following:

(1) Delay resulting from an examination ofthe physical and mental condition of theaccused;

(2) Delay resulting from proceedings withrespect to other criminal charges against theaccused;

(3) Delay resulting from extraordinaryremedies against interlocutory orders;

(4) Delay resulting from pre-trialproceedings; provided, that the delay doesnot exceed thirty (30) days;

(5) Delay resulting from orders of inhibition,or proceedings relating to change of venueof cases or transfer from other courts;

(6) Delay resulting from a finding of theexistence of a prejudicial question; and

(7) Delay reasonably attributable to anyperiod, not exceed thirty (30) days, duringwhich any proceeding which any proceedingconcerning the accused is actually underadvisement.

Any period of delay resulting from the absence orunavailability of an essential witness.

Continuous trial

Trial once commenced shall continue from day to dayas far as practicable until terminated. It may bepostponed for a reasonable period of time for goodcause.


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The court shall, after consultation with the prosecutorand defense counsel, set the case for continuous trialon a weekly or other short-term trial calendar at theearliest possible time so as to ensure speedy trial.

The trial period

In no case shall the entire trial period exceed onehundred eighty (180) days from the first day of trial,except as otherwise authorized by the SupremeCourt.

The time limitations provided under this section andthe preceding section shall not apply where speciallaws or circulars of the Supreme Court provide for ashorter period of trial.

5.11.5. Requisites for discharge of accused tobecome a state witness

The court, after hearing may direct that one or moreof the accused be discharged, if th court is satisfiedthat:

a. There is absolute necessity for the testimonyof the accused whose discharge is requested

b. That there is no other direct evidenceavailable for proper prosecution fo theoffense committed, except on the testimonyof the accused

c. The testimony of the said accused can besubstantially corroborated in its materialpoints

d. Said accused does not appear to be the mostguilty

e. The said accused has not at any time beenconvicted of an offense involving moralturpitude.

5.11.6. Effects of discharge of accused as statewitness

The discharge of an accused shall amount to acquittaland shall be a bar to another prosecution for the sameoffense.

Exception – if the accused fails or refuses to testifyagainst his co-accused in accordance with his ownstatement constituting the offense charged.

5.11.7. Demurrer to evidence

After the prosecution rests its case, the court maydismiss the action on the ground of insufficiency ofevidence (1) on its own initiative after giving theprosecution the opportunity to be heard or (2) upondemurrer to evidence filed by the accused with orwithout leave of court.

If the court denies the demurrer to evidence filedwith leave of court, the accused may adduce evidencein his defense. When the demurrer to evidence is filedwithout leave of court, the accused waives the rightto present evidence and submits the case forjudgment on the basis of the evidence for theprosecution. (15a)

The motion for leave of court to file demurrer toevidence shall specifically state its grounds and shallbe filed within a non-extendible period of five (5) daysafter the prosecution rests its case. The prosecutionmay oppose the motion within a non-extendibleperiod of five (5) days from its receipt.

If leave of court is granted, the accused shall file thedemurrer to evidence within a non-extendible periodof ten (10) days from notice. The prosecution mayoppose the demurrer to evidence within a similarperiod from its receipt.

The order denying the motion for leave of court to filedemurrer to evidence or the demurrer itself shall notbe reviewable by appeal or by certiorari beforejudgment. Sec. 23, Rule 119.


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5.12. JUDGMENT (RULE 120)

Judgment in criminal case - is the adjudication by thecourt that the accused is guilty or not guilty of theoffense charged and the imposition on him of theproper penalty and civil liability, if any.

5.12.1. Requisites of a judgment

The following are the formal requisites for a validjudgment:

a. It must be written in the official language,b. Personally and directly prepared by the

judgec. Signed by him and shall contain clearly and

distinctly a statement of the facts and thelaw upon which it is based.

5.12.2. Contents of judgment

The judgment for conviction shall state:

a. The legal qualification of the offenseconstituted by the acts committed by theaccused;

b. The aggravating and mitigatingcircumstances which attended thecommission of the offense

c. The participation of the accused in theoffense whether as principal, accomplice oraccessory

d. The penalty imposed upon the accusede. The civil liability or damages caused by his

wrongful act or omission to be recoveredfrom the accused by the offended party, ifthere is any, unless the enforcement of thecivil liability a separate action has beenreserved or waived.

A judgment of acquittal shall;

a. State whether or not the evidence ofprosecution:

I. Absolutely failed to prove the guiltof the accused

II. Merely failed to prove his guiltbeyond reasonable doubt

b. Determine if the act or omission from whichthe civil liability might arise does not exist

A verdict of acquittal is immediately final. People vsSerrano, 315 SCRA 686

5.12.3. Promulgation of judgment; instances ofpromulgation of judgment in absentia

Promulgation of judgment

The judgment is promulgated by reading it in thepresence of the accused and any judge of the court inwhich it was rendered. However, if the conviction isfor a light offense, the judgment may be pronouncedin the presence of his counsel or representative.When the judge is absent or outside of the provinceor city, the judgment may be promulgated by theclerk of court. Sec. 6, Rule 120.

If the accused is confined or detained in anotherprovince or city, the judgment may be promulgatedby the executive judge of the Regional Trial Courthaving jurisdiction over the place of confinement ordetention upon request of the court which renderedthe judgment. The court promulgating the judgmentshall have authority to accept the notice of appealand to approve the bail bond pendingappeal; provided, that if the decision of the trial courtconvicting the accused changed the nature of theoffense from non-bailable to bailable, the applicationfor bail can only be filed and resolved by the appellatecourt. Sec. 6, Rule 120.

How the accused is notified

The proper clerk of court shall give notice to theaccused personally or through his bondsman orwarden and counsel, requiring him to be present atthe promulgation of the decision. If the accusedtried in absentia because he jumped bail or escapedfrom prison, the notice to him shall be served at hislast known address.


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If the accused fails to appear in the promulgation ofjudgment

In case the accused fails to appear at the scheduleddate of promulgation of judgment despite notice, thepromulgation shall be made by recording thejudgment in the criminal docket and serving him acopy thereof at his last known address or thru hiscounsel.

If the judgment is for conviction and the failure of theaccused to appear was without justifiable cause, heshall lose the remedies available in these rules againstthe judgment and the court shall order his arrest.Within fifteen (15) days from promulgation ofjudgment, however, the accused may surrender andfile a motion for leave of court to avail of theseremedies. He shall state the reasons for his absenceat the scheduled promulgation and if he proves thathis absence was for a justifiable cause, he shall beallowed to avail of said remedies within fifteen (15)days from notice

5.12.4. When does judgment become final (fourinstances)

Four instances when judgment becomes final:

b. After the lapse of the period perfecting anappeal

c. When the sentence has been partially ortotally satisfied or served

d. Went the accused has waived in writing hisright to appeal

5.13. NEW TRIAL OR RECONSIDERATION(RULE 121)

If the judgment is adverse to the accused, he may filea motion for new trial or motion for reconsideration.

The court, however, need not to wait for motion fromthe accused, because it may, at its own instance,grant a new trial or reconsideration of judgment butwith the consent of the accused. Sec. 1, Rule 121.

5.13.1. Grounds for new trial

A new trial shall be granted only based on thefollowing grounds:

a. That errors of law have been committedduring trial

b. That irregularities prejudicial to thesubstantive rights of the accused have beencommitted during the trial

c. That new and material evidence has beendiscovered, Sec. 2 Rule 121.

5.13.2. Grounds for reconsideration

A motion for reconsideration of judgment shall begranted on the following grounds:

a. Errors of law in the judgment which requiresno further proceedings

b. Errors of fact which also requires no furtherproceedings, Sec. 3, Rule 121.

Forms of the motions

It shall be in writing and shall state the facts on whichit is based.

If base on newly-discovered evidence, the motionshall be supported by affidavits of witness by whomsuch evidence is expected to be given or by dulyauthenticated copies of documents which areproposed to be introduced in evidence. Sec. 4, Rule121.

Notice of the motion

Notice of motion for new trial or reconsideration shallbe given to the prosecutor. Sec. 4, Rule 121.

When hearing of motion is required

A hearing shall be conducted when the motion or newtrial calls for resolution of questions of fact. Thecourt may hear evidence on motion by affidavits orotherwise. Sec. 5, Rule 121.


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5.13.3. Requisites before a new trial may begranted on ground of newly-discoveredevidence

For a newly discovered evidence to be a justifiableground for a new trial, the following need to concur:

a. The evidence must have been discoveredafter the trial

b. It could not have been previously discoveredand produced at the trial even with theexercise of reasonable diligence

c. It is a new and material evidence

5.13.4. Effects of granting a new trial orreconsideration

The effects would depend upon the ground availed ofin the granting the new trial, thus:

a. When the new trial was granted on thegrounds of errors of law or irregularitiesduring the trial, al the proceedings andevidence affected thereby shall be:

a. Set asideb. Taken anew and the court, in

interest of justice, may allowadditional evidence.

b. When the new trial is granted on the groundof newly-discovered evidence, the evidencealready adduced shall stand. The newly-discovered evidence together with otherevidence which the court may allow in theinterest of justice, shall be taken andconsidered together with evidence alreadyin record.

c. In all cases, when a new trial orreconsideration is granted, the originaljudgment shall be set aside or vacated andnew judgment shall be renderedaccordingly.

5.13.5. Application of Neypes doctrine incriminal cases

The Supreme Court held in the case of Judith Yu vsSamson-Tatad, The Neypes Rule applies to appeals incriminal cases.

The rule in Neypes provides “ To standardize theappeal periods provided in the Rules and to affordlitigant fair opportunity to appeal their cases, theCourt deemed it practical to allow a fresh period of15 days from whcih to file the notice of appeal in theRegional Trial Court, counted from the receipt oforder dismissing a motion for new trial orconsideration.

5.14. APPEAL ( Rule 122, 124, 125)

Appeal is not a natural right

The right of appeal is not a natural right nor a part ofdue process but merely statutory privilege and maybe exercised only in the manner in accordance withthe provisions of law.

Who may appeal

Any party may appeal from a judgment or final order,unless the accused will be placed in double jeopardy

5.14.1. Effect of an appeal

Upon perfection of the appeal, the execution of thejudgment or order appealed from is stayed as to theappealing party. Sec. 11[c], Rule 121

Appeal from the civil aspect

The civil appeal of the offended party does not affectthe criminal aspect of the judgment or orderappealed from.

Upon perfection of the appeal, the trial court losesjurisdiction over the case, except:

a. To issue orders for the protection andpreservation of the rights of the parties


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b. which do not involve any matter litigated bythe appeal;

c. To approve compromises offered by theparties prior to the transmission of therecords on appeal to the appellate court.

5.14.2. Where to appeal

The appeal may be taken as follows:

a. To the Regional Trial Court, in cases decidedby the Metropolitan Trial Court, MunicipalTrial Court in Cities, Municipal Trial Court, orMunicipal Circuit Trial Court;

b. To the Court of Appeals or to the SupremeCourt in the proper cases provided by law, incases decided by the Regional Trial Court;and

c. To the Supreme Court, in cases decided bythe Court of Appeals. Sec. 2, Rule 112.

5.14.3. How appeal taken

Appeal to the Regional Trial Court or to Court ofAppeals

The appeal to the Regional Trial Court, or to the Courtof Appeals in cases decided by the Regional TrialCourt in the exercise of its original jurisdiction, shallbe taken by filing a notice of appeal with the courtwhich rendered the judgment or final order appealedfrom and by serving a copy thereof upon the adverseparty.

Appeal to the Court of Appeals in cases decided byRegional trial Court

The appeal to the Court of Appeals in cases decidedby the Regional Trial Court in the exercise of itsappellate jurisdiction shall be by petition for reviewunder Rule 42.

The appeal to the Supreme Court in cases where thepenalty imposed by the Regional Trial Court is acapital punishment

The appeal to the Supreme Court in cases where thepenalty imposed by the Regional Trial Court isdeath, reclusion perpetua, or life imprisonment, orwhere a lesser penalty is imposed but for offensescommitted on the same occasion or which arose outof the same occurrence that gave rise to the moreserious offense for which the penalty ofdeath, reclusion perpetua, or life imprisonment isimposed, shall be by filing a notice of appeal inaccordance with paragraph (a) of this section.

When no notice of appeal is necessary

No notice of appeal is necessary in cases where thedeath penalty is imposed by the Regional Trial Court.The same shall be automatically reviewed by theSupreme Court as provided in section 10 of this Rule.

When Petition for Review on Certiorari under Rule45 be taken

Except as provided in the last paragraph of section 13,Rule 124, all other appeals to the Supreme Court shallbe by petition for review on certiorari under Rules 45

5.14.4. Effect of appeal by any of severalaccused

An appeal taken by one or more several accused shallnot affect those who did not appeal.

Except – insofar as the judgment of the appellatecourt is favorable and applicable to the latter.

5.14.5. Grounds for dismissal of appeal

The Court of Appeals may, upon motion of theappellee or motu proprio and with notice to theappellant in either case, dismiss the appeal if theappellant fails to file his brief within the timeprescribed by this Rule, except where the appellant isrepresented by a counsel de oficio.

The Court of Appeals may also, upon motion of theappellee or motu proprio, dismiss the appeal if theappellant escapes from prison or confinement, jumps


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bail or flees to a foreign country during the pendencyof the appeal.

5.15. SEARCH AND SEIZURE (RULE 126)

5.15.1. Nature of search warrant

Search warrant - is an order in writing issued in thename of the People of the Philippines, signed by ajudge and directed to a peace officer, commandinghim to search for personal property described thereinand bring it before the court.

Search warrant is not a criminal action nor does itrepresent commencement of a criminal prosecutioneven if is entitled like criminal action.

It is a special and peculiar remedy, drastic in nature,made necessary for public necessity.

The application for search warrant is heard ex parte.It is neither trial nor part of trial.

5.15.2. Distinguish from warrant of arrest

Warrant of Arrest Search Warrant

Concerned with theseizure of the person

Determination ofprobable cause musthave sufficient facts inhis hand that wouldtend to show that acrime has beencommitted and that aparticular personcommitted it.

Not required to makepersonal examination

Search may follow anarrest but search mustbe incident to a lawfularrest.

Probable cause requiresfacts to show thatparticular thingsconnected with a crimeare found in a specificlocation

The judge mustpersonally examine thecomplainant and thewitnesses he may

before issuing warrantof arrest.

Arrest may be made onany day and at any timeof the day or night

produce in determiningprobable cause beforeissuing search warrant.

It is generally served inday time, unless herebe a direction in thesearch warrant that itmay be served at anytime or day and night.

5.15.3. Application for search warrant, wherefiled

An application for search warrant shall be filed withthe following:

1. Any court within whose territorialjurisdiction a crime was committed.

2. For compelling reasons stated in theapplication, any court within the judicialregion where the crime was committed if theplace of the commission of the crime isknown, or any court within the judicialregion where the warrant shall be enforced.

3. If the criminal action has already been filed,the application shall only be made in thecourt where the criminal action is pending.

Requisites for issuance of search warrant:

a. There must be a probable cause inconnection with one offense

b. The presence of probable cause is todetermine by judge personally

c. The determination by the judge must bemade after an examination under oath oraffirmation of the complainant and thewitness he may produce

d. The warrant must specifically describe theplace to be search and the things to beseized which may be anywhere in thePhilippines, Sec. 4, Rule 126


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5.15.4. Probable cause

Probable cause in search warrants means such factsand circumstances which would lead a reasonablydiscreet and prudent man to believe that an offensehas been committed and the objects ought in theconnection with the offense are in the place to besearched.

5.15.5. Personal examination by judge of theapplicant and witnesses

In determining probable cause, oath required mustrefer to the truth of facts within the personalknowledge of the application or his witness, becausethe purpose thereof is to convince the magistrate, notthe individual making affidavit and seeking theissuance of the warrant of the probable cause.

How examination shall be conducted by the judge

a. The examination must be personallyconducted by the judge

b. The examination must be in form ofsearching questions and answers

c. The complainant and the witness shall beexamined on those facts personally knownto them

d. The statements must be in writing andunder oath

e. The sworn statements of the complainantand the witness, together with the affidavitssubmitted, shall be attached in the record.Sec. 5, Rule 126.

Doctrine of the ”fruit of the poisonous tree”- did notcomply with the requisites of the law, therefore, void,or when the search made without warrant isunjustifiable, whether it is found or discoveredafterwards, cannot be used as evidence against thesuspect.

5.15.6. Particularity of place to be searched andthings to be seized

The Sec. 4, Rule 126 requires that the applicant mustparticularly describe the place to be searched and thethings to be seized,

Ratio for the turtle – to prevent general exploratorysearches which reasonably interfere with one’s rightto privacy.

General warrants – warrants which do not describethe tings to be seized with required particularity. Theyare void warrants.

5.15.7. Personal property to be seized

In Yao vs People, it was held that the law does notrequire that the property to be seized should beowned by the person against whom the searchwarrant is directed. It is sufficient that the personagainst whom the warrant is directed has the controland possession of the property sought to be seized.

5.15.8. Exceptions to search warrantrequirement

a) Search incidental to lawful arrest

A person lawfully arrested may be searched fordangerous weapons or anything which may havebeen used or constitute proof in the commission ofan offense without a search warrant. Sec. 13, Rule126.

Limitation of the search incidental to lawful arrest:

a. only for dangerous weaponsb. for anything which may have been used in

the commission of an offensec. anything which constitute proof in the

commission of the offense

However, in case of search after lawful arrest, thesearch is not limited to the things in connection withthe commission of the offense.


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b) Consented search

Jurisprudence requires that in case of consentedsearches or waiver of constitutional guaranteeagainst obstructive searches, it is fundamental that toconstitute waiver, it must appear that:

1. The right exists2. The person involved had knowledge, either

actual or constructive, of th existence ofsuch right

3. The said person had an intention torelinquish such right. People vs Nuevas, 516SCRA 463

c) Search of moving vehicle

A warrantless search of a moving vehicle is justifiedon the ground that “it is not practicable to secure awarrant because the vehicle can be quickly movedout of the locality or jurisdiction in which the warrantis ought. People vs Tuazon, 532 SCRA 152

In recognition of the possible abuse, jurisprudencedictates that all times, it is required that probablecause exist in the order to justify the warrantlessarrest of the vehicle.

Checkpoints

Searches conducted in checkpoints are valid for aslong as they are warranted by exigencies of publicorder and conducted in a way least intrusive tomotorist. People vs Ninvecario, 420 SCRA 280

e) Plain view situation

Under the plain view doctrine, objects falling in theplain view of an officer who has a right to be in theposition to have that view are subject to seizure andmay be presented as evidence.

The plain view doctrine applies when the followingrequisites concur:

a. the law enforcement officer in search of theevidence has a prior justification for anintrusion or is in a position from which hecan view a particular area;

b. the discovery of the evidence in plain view isinadvertent; and

c. it is immediately apparent to the officer thatthe item he observes may be evidence of acrime, contraband or otherwise subject toseizure. Judge Felimon Abelita III vs P/Supt.German Doria, GRA N0. 170672

f) Stop and frisk situation

This is also known as Terry doctrine.

It is of two parts: the “stop” and the “risk”. A validstop by an officer requires that he has reasonablearticulable belief that criminal activity happened or isabout to happen.

The frisk made after the stop must be done becauseof the reasonable belief that the person stopped is inpossession of a weapon that will pose a danger to theofficer and others. The risk must be a mere pat downoutside the person’s outer garment and notunreasonable intrusive.

Terry search and search incidental to a lawful arrest

The terry stop is not full arrest. The terry doctrine asoriginally formulated, does not require proof ofprobable cause and the person is not under a full scalearrest but mere belief, investigate to stop followed bya surface, non-instrusive pat down of one’s outergarments to determine presence of weapons.

g) Enforcement of custom laws

Exercise of Power of Seizure and Arrest.

It shall be within the power of a customs official orperson authorized as aforesaid, and it shall be hisduty, to make seizure of any vessel, aircraft, cargo,


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articles, animal or other movable property when thesame is subject to forfeiture or liable for any fineimposed under customs and tariff laws, and also toarrest any person subject to arrest for violation of anycustoms and tariff laws, such power to be exercisedin conformity with the law and the provisions of thisCode. Sec. 2205 Tariffs and Customs Law .

h) Remedies from unlawful search and seizure

Motion to quash search warrant or to suppressevidence

A motion to quash a search warrant and/or tosuppress evidence obtained thereby may be filed inand acted upon only by the court where the actionhas been instituted. If no criminal action has beeninstituted, the motion may be filed in and resolved bythe court that issued the search warrant.

If such court failed to resolve the motion and acriminal case is subsequent filed in another court, themotion shall be resolved by the latter court. Sec. 14,Rule 126.

Who may assail the issuance of a search warrant

The legality of the seizure can be contested only bythe party show rights have been impaired thereby,and the objection to an unlawful search and seizure ispurely personal and cannot be availed of by thirdparties.

Petition for certiorari for unwarranted quashal orsearch warrant

The Court held that the special civil action forcertiorari was the proper recourse availed by therespondent in assailing the quashal of search warrant.The Court had allowed even direct resource to theCourt or to the Court of appeals via special civil actionfor certiorari from the trial court’s quashal of searchwarrant.

5.16. PROVISIONAL REMEDIES (RULE 127)

5.16.1. Nature

The provisional remedies in civil actions, insofar asthey are applicable, may be availed of in connectionwith the civil action deemed instituted with thecriminal action. Sec. 1, Rule 127

To avail of provisional remedy in a criminal action, itmust be one with a corresponding civil liability.

5.16.2. Kinds of provisional remedies

Attachment; when available

When the civil action is properly instituted in thecriminal action as provided in Rule 111, the offendedparty may have the property of the accusedattached as security for the satisfaction of anyjudgment that may be recovered from the accusedin the following cases:

(a) When the accused is about to abscondfrom the Philippines;

(b) When the criminal action is based on aclaim for money or property embezzled orfraudulently misapplied or converted to theuse of the accused who is a public officer,officer of a corporation, attorney, factor,broker, agent, or clerk, in the course of hisemployment as such, or by any otherperson in a fiduciary capacity, or for a willfulviolation of duty;

(c) When the accused has concealed,removed, or disposed of his property, or isabout to do so; and

(d) When the accused resides outside thePhilippines. Sec. 2, Rule 127


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Note that the grounds for preliminary attachment incriminal case are not as varied as the grounds orpreliminary attachment in civil case.

Under Civil procedure, the following provisionalremedies are available:

1. Injunction2. Receivers3. Replevin4. Support Pedente Lite

The provisional remedies in civil actions, insofar asthey are applicable, may be availed of in connectionwith the civil action deemed instituted with thecriminal action

REMEDIAL LAW REVIEWER Chapter VI– Evidence

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VI. EVIDENCE

6.1. GENERAL PRINCIPLES (Rule 128)

6.1.1. Concept of evidence

Evidence – is the means, sanctioned by the rules ofCourt, of ascertaining in judicial proceeding the truthrespecting matter of fact.

Evidence is also secured by resorting to modes ofdiscovery, such as:

1. Taking of depositions of any person oral orwritten

2. Serving interrogatories to parties3. Serving requests for admissions by the

adverse party4. Production and inspection of documents5. Examination of physical and mental

conditions of persons.

A matter may also be proved by means of affidavit,such as motions based on facts not appearing onrecord, in cases covered by the Rules of SummaryProcedure, and those filed in administrative or quasi-judicial bodies.

6.1.2. Scope of the Rules on Evidence

The rules of evidence is guided by the principle ofuniformity. As a rule, the rule on evidence shall besame in all courts and in al l trials and hearings. Sec.2, Rule 128

Rules of evidence, as components of Rules of Court,apply only to judicial proceedings.

The Rule 1, Sec. 4 also provides scope for the non-application of Rules of Court to certain cases, to wit:

a. Election casesb. Land registrationc. Cadastrald. Naturalizatione. Insolvency proceedings

f. Other cases not herein provided for.g. Labor casesh. Impeachment cases

When can the rules be applicable in these kinds ofproceedings?

Only by analogy or in suppletory character, andwhenever practicable or convenient.

General rule is that administrative agencies are notbound by the technical rules of evidence.

Technical rules of procedure and evidence are notstrictly applied in administrative cases andadministrative due process cannot be fully equatedwith due process in strict judicial terms.

Thus, formal offer of evidence is not applicable to acase involving naturalization. Ong Chia vs Republic.

Also, in Sasan Sr, vs NLRC, the NLRC may still receiveevidence for the first time on appeal for the caseelevated to them from the Labor Arbiter. Thesubmission of additional evidence on appeal does notprejudice the other party for the latter could submitcounter-evidence.

Also in the same case, it has been held that bestevidence rule under Sec.3 Rule 130 does not apply inlabor proceedings.

Even if not bound by the technical rules of procedure,“the findings of facts of administrative bodies are,however, respected as long as they are supported bysubstantial evidence, even if such evidence is notoverwhelming or preponderant.”

When evidence is required; when not required

Where no factual issue exists in a case, there is noneed to present evidence because where the casepresents a question of law, such question is resolvedby mere application of the relevant statues or rules ofthis jurisdiction to which no evidence is required.


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Cases where no evidence is required:

a. Matters of judicial noticesb. Judicial admissionsc. When pleadings in civil case do not tender an

issue of fact. In which case, judgment on thepleadings Rule 34 is proper.

d. It may be dispensed by the agreement of theparties, made in writing.

e. When the law or the rule presumes the truthof a fact (Ex. Presumption of negligence onthe part of common carrier in case of breach)

Application of the Rules on Electronic Evidence

The definition of evidence under the Rules of Courtmakes reference only to judicial proceedings, theprovisions of the Rules on Electronic Evidence applyto all civil actions and proceedings, as well as quasi-judicial and administrative cases. Sec.2, Rule 1 of theRules on Electronic Evidence.

However, the Rules on Electronic Evidence do notapply to criminal actions.

There is no vested right in the rules of evidence

This is because the said rules are subject to change bythe Supreme Court pursuant to its powers topromulgate rules concerning pleadings, practice andprocedure.

However, the rules on evidence is still subject to theconstitutional limitation on enactment of ex postfacto laws. An ex post facto law includes that whichalters the rules on evidence and receives less ordifferent testimony than that required at the time ofthe commission of an offense.

Waiver of the rules on evidence

The rules on evidence may be waived. When anotherwise objectionable evidence is not objected to,the evidence becomes admissible because of waiver.

May a party stipulate waiving rules on evidence?

Yes. Art. 6 of the Civil Code provides that rights maybe waived, unless contrary to law, public order, publicpolicy, morals and good customs, or prejudicial tothird persons with a right recognized by law.

However, failure to object with respect to privilegedcommunication involving state secretscommunicated to a public officer in a officialconfidence should not be construed as a waiver ofprivileged character of the communication because ofpublic policy considerations as when the state secretis one involving national defense and security.

6.1.3. Evidence in civil cases versus evidence incriminal cases

Evidence in Civil Cases Evidence in CriminalCases

a. The party havingthe burden of proofmust prove hisclaim by apreponderance ofevidence.

b. An offer ofcompromise is notan admission of anyliability, and is notadmissibleevidence againstthe offeror.

c. Generally, there isno presumption foror against a party.Exception – insome civil casessuch as contractualsuit against thecarrier, there existsa presumptionagainst thedefendant.

a. The guilt of theaccused has to beproven beyondreasonable doubt.

b. Except thoseinvolving quasi-offenses or thoseallowed by law tobe compromised,an offer ofcompromise by thecounsel may bereceived inevidence as animplied admissionof guilt.

c. The accused enjoyspresumption ofinnocence.


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6.1.4. Proof versus evidence

Proof – the probative effect of evidence and is theconviction or persuasion of the mind resulting from aconsideration of evidence.

Distinction between proof and evidence

Evidence Proof

1. Medium of proof

2. Means to end

1. End and result ofevidence

2. End result

6.1.5. Factum probans versus factumprobandum

Factum Probans Factum Probandum

1. Fact or propositionto be established

2. Conceived ashypothetical, thatwhich one partyaffirms and theother denies

1. Fact or materialevidencing theproposition to beestablished

2. Conceived as forpractical purposesas existent and isoffered as such forthe considerationin court

Stated in another way, the factum probandum is thefact to be proved; the fact which is in issue and towhich the evidence is directed. On the other hand,factum probans is the probative or evidentiary facttending to prove the fact in issue.

For instance, in a suit for collection of sum of money,in the absence of any admission by the defendant, thefactum probandum of the plaintiff would be:

1. Existence of the debt of the defendant

2. Maturity of the debt3. Demand made by the plaintiff upon the

defendant to pay4. Failure to pay despite the demand

From the side of the defendant, the fact of paymentof obligation or of the prescription of the debt or theelements of any defense he may interpose wouldconstitute factum probandum.

6.1.6. Admissibility of evidence

a) Requisites for admissibility of evidence

Two elements of admissibility:

1. Evidence must be relevant to the facts in issue

2. Evidence is not excluded by the rules (it must becompetent), Sec. 3, Rule 128

Admissibility and weight

Admissibility refers to the question of whether or notthe evidence is to be considered at all.

On the other hand, probative value of the evidencerefers to the question whether or not it proves anissue.

b) Relevance of evidence and collateral matters

Evidence must have such a relation to the fact in issueas to induce belief in its existence or non-existence.

General rule: Evidence on collateral matters shall notbe allowed.

Exception: when it tends in any reasonable degree toestablish the probability or improbability of the factin issue. Sec. 4, Rule 128

c) Multiple admissibility

When evidence is offered for two or more purposes,there is multiple admissibility.


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Sometimes, it is admissible for one purpose andinadmissible for other purpose or vice versa.

Evidence may also be admissible against one partybut not against one another. An extrajudicialstatement of robbery suspect is not admissibleagainst co-accused under res inter alios acta rule butmay be admissible against the declarant himself

d) Conditional admissibility

It is when evidence is presented to the courtconditionally to be admitted in the meantime, subjectto a condition that he is going to establish therelevancy and the competency oat a later time.

e) Curative admissibility

The doctrine of curative admissibility allows a party tointroduce otherwise inadmissible evidence to answerthe opposing party’s previous introduction ofinadmissible evidence if it would remove any unfairprejudice caused by the admission of the earlierevidence.

f) Direct and circumstantial evidence

Direct evidence – proves a fact without the need tomake an inference from another fact.

Circumstantial evidence/indirect evidence - anevidence which indirectly proves a fact in issuethrough an inference which a fact finder draws fromevidence established.

In criminal cases, circumstantial evidence is sufficientfor conviction if:

a. There is more than one circumstanceb. The facts from which the inference are

derived are provenc. The combination of all the circumstances is

such as to produce a conviction beyondreasonable doubt

In People vs Matito it was held that circumstantialevidence is not a weak evidence vis-à-vis directevidence.

g) Positive and negative evidence

Positive evidence – when a witness affirms in thestand that a certain state of facts does exist or that acertain facts happen.

Negative evidence – when the witness states that anevent did not occur or that the state of facts allegedto exist does not actually exists.

h) Competent and credible evidence

Competent evidence – one that is not excluded bythe law or rules in a particular case.

Credible evidence – it is the worthiness of belief, thatquality which renders a witness worthy of belief.

Note – when an evidence is considered competent, itdoes not necessary follow that it is credible ortrustworthy.

i) Cumulative evidence and corroborative evidence

Cumulative evidence – refers to the evidence of samekind and character as that already given and thattends to prove the same proposition.

Corroborative evidence – one that is supplementaryto that already given tending to strengthen or confirmit.

Corroborative evidence is not always required. It isnecessary only when there are reasons to suspectthat the witness falsified the truth or that hisobservations are inaccurate.

6.1.7. Burden of proof and burden of evidence

Burden of proof – the duty of the party to presentevidence to establish his claim or defense by theamount of evidence required by law. Sec. 1, Rule131.

Burden of evidence – duty to the party to goforward with the evidence to overthrow the primafacie evidence against him.


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One who denies the due execution of deed wherehis signature appears has the burden of proof toshow the contrary, Chua vs Westmont, 667 SCRA 56,February 27, 2012

In administrative proceedings, the burden of proofthat the respondent committed the acts complainedof rests on the complainant.

6.1.8. Presumptions (Rule 131)

Presumption – an assumption of fact resulting froma rule of law which requires such fact to be assumedfrom another fact or group of facts found orotherwise established in an action.

Kinds of presumptions

a. Presumptions of law or presumptions juris –an assumption which the law required to bemade from a set of facts

b. Presumption of fact or presumption hominis- an assumption is made from the factswithout any direction or positiverequirement of the law.

Effect of presumption

A party in whose favor the legal presumption existsmay rely on and invoke such legal presumption toestablish a fact in issue. One need not introduceevidence to prove the fact for a presumption is primafacie proof of the fact assumed.

Classification of presumptions according to theRules of Court –

a. Conclusive or presumption juris et de jure –irrebutable upon t e presentation ofevidence and any evidence tending to rebutthe presumption is not admissible.

b. Disputable or presumption juris tantum – itmay be contradicted or overcome by otherevidence.

a) Conclusive presumptions

Conclusive presumptions:

1. Estoppel in pais, Sec. 2[a], Rule 1312. Estoppel by tenant Sec. 2[b], Rule 131

Estoppel - It is an equitable principle rooted uponnatural justice, prevents persons from going back ontheir own acts and representations, to the prejudiceof others who have relied on them.

Estoppel in pais

Whenever a party has, by his own declaration, act, oromission, intentionally and deliberately led toanother to believe a particular thing true, and to actupon such belief, he cannot, in any litigation arisingout of such declaration, act or omission, be permittedto falsify it Sec. 2[a], Rule 131

In relation to the party to be estopped, the essentialelements are:

a. Conduct amounting to false representationor concealment of material facts; or at leastcalculated to convey the impression that thefacts are otherwise than, and inconsistentwith, those which the party subsequentlyattempts to assert;

b. Intent, or at least, expectation, that thisconduct shall be acted upon by, or at leastinfluence, the other party

c. Knowledge, actual or constructive, of thereal facts

In relation to the party claiming estoppel, theessential elements are:

a. Lack of knowledge of the means ofknowledge of the truth as to the facts inquestion

b. Reliance, in good faith, upon the conduct orstatements of the party to be estopped

c. Action or inaction based thereon of suchcharacter as to change the position or status


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of the party claiming the estoppel, to hisinjury, detriment or prejudice

Estoppel by tenant

The tenant is not permitted to deny the title of hislandlord at the time of commencement of therelation of landlord and tenant between them. Sec.2[b], Rule 131

This estoppel applies even though the lessor had notitle at the time the relation of lessor and lessee wascreated, and may be asserted not only by the originallessor, but also by those who succeed to his title.Germiano vs CA, 259 SCRA 344

b) Disputable presumptions

Disputable presumptions are presumptions that canbe rebutted by other evidence.

Under Sec. 3 of Rule 131, the following are thedisputable presumptions:

(a) That a person is innocent of crime orwrong;

(b) That an unlawful act was done with anunlawful intent;

(c) That a person intends the ordinaryconsequences of his voluntary act;

(d) That a person takes ordinary care of hisconcerns;

(e) That evidence willfully suppressed wouldbe adverse if produced;

(f) That money paid by one to another wasdue to the latter;

(g) That a thing delivered by one to anotherbelonged to the latter;

(h) That an obligation delivered up to thedebtor has been paid;

(i) That prior rents or installments had beenpaid when a receipt for the later one isproduced;

(j) That a person found in possession of athing taken in the doing of a recent wrongfulact is the taker and the doer of the wholeact; otherwise, that things which a personpossess, or exercises acts of ownership over,are owned by him;

(k) That a person in possession of an orderon himself for the payment of the money, orthe delivery of anything, has paid the moneyor delivered the thing accordingly;

(l) That a person acting in a public office wasregularly appointed or elected to it;

(m) That official duty has been regularlyperformed;

(n) That a court, or judge acting as such,whether in the Philippines or elsewhere, wasacting in the lawful exercise of jurisdiction;

(o) That all the matters within an issue raisedin a case were laid before the court andpassed upon by it; and in like manner that allmatters within an issue raised in a disputesubmitted for arbitration were laid beforethe arbitrators and passed upon by them;

(p) That private transactions have been fairand regular;

(q) That the ordinary course of business hasbeen followed;

(r) That there was a sufficient considerationfor a contract;

(s) That a negotiable instrument was given orindorsed for a sufficient consideration;

(t) That an endorsement of negotiableinstrument was made before the instrument


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was overdue and at the place where theinstrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed wasreceived in the regular course of the mail;

(w) That after an absence of seven years, itbeing unknown whether or not the absenteestill lives, he is considered dead for allpurposes, except for those of succession.

The absentee shall not be considered deadfor the purpose of opening his succession tillafter an absence of ten years. If hedisappeared after the age of seventy-fiveyears, an absence of five years shall besufficient in order that his succession may beopened.

The following shall be considered dead for allpurposes including the division of the estateamong the heirs:

(1) A person on board a vessel lost during asea voyage, or an aircraft with is missing,who has not been heard of for four yearssince the loss of the vessel or aircraft;

(2) A member of the armed forces who hastaken part in armed hostilities, and has beenmissing for four years;

(3) A person who has been in danger ofdeath under other circumstances and whoseexistence has not been known for four years;

(4) If a married person has been absent forfour consecutive years, the spouse presentmay contract a subsequent marriage if he orshe has well-founded belief that the absentspouse is already death. In case ofdisappearance, where there is a danger ofdeath the circumstances hereinaboveprovided, an absence of only two years shallbe sufficient for the purpose of contracting a

subsequent marriage. However, in any case,before marrying again, the spouse presentmust institute a summary proceedings asprovided in the Family Code and in the rulesfor declaration of presumptive death of theabsentee, without prejudice to the effect ofreappearance of the absent spouse.

(x) That acquiescence resulted from a beliefthat the thing acquiesced in wasconformable to the law or fact;

(y) That things have happened according tothe ordinary course of nature and ordinarynature habits of life;

(z) That persons acting as copartners haveentered into a contract of copartneship;

(aa) That a man and woman deportingthemselves as husband and wife haveentered into a lawful contract of marriage;

(bb) That property acquired by a man and awoman who are capacitated to marry eachother and who live exclusively with eachother as husband and wife without thebenefit of marriage or under void marriage,has been obtained by their joint efforts,work or industry.

(cc) That in cases of cohabitation by a manand a woman who are not capacitated tomarry each other and who have acquireproperly through their actual jointcontribution of money, property or industry,such contributions and their correspondingshares including joint deposits of money andevidences of credit are equal.

(dd) That if the marriage is terminated andthe mother contracted another marriagewithin three hundred days after suchtermination of the former marriage, theserules shall govern in the absence of proof tothe contrary:


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(1) A child born before one hundred eightydays after the solemnization of thesubsequent marriage is considered to havebeen conceived during such marriage, eventhough it be born within the three hundreddays after the termination of the formermarriage.

(2) A child born after one hundred eightydays following the celebration of thesubsequent marriage is considered to havebeen conceived during such marriage, eventhough it be born within the three hundreddays after the termination of the formermarriage.

(ee) That a thing once proved to existcontinues as long as is usual with things ofthe nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book,purporting to be printed or published bypublic authority, was so printed orpublished;

(hh) That a printed or published book,purporting contain reports of casesadjudged in tribunals of the country wherethe book is published, contains correctreports of such cases;

(ii) That a trustee or other person whoseduty it was to convey real property to aparticular person has actually conveyed it tohim when such presumption is necessary toperfect the title of such person or hissuccessor in interest;

(jj) That except for purposes of succession,when two persons perish in the samecalamity, such as wreck, battle, orconflagration, and it is not shown who diedfirst, and there are no particularcircumstances from which it can be inferred,

the survivorship is determined from theprobabilities resulting from the strength andthe age of the sexes, according to thefollowing rules:

1. If both were under the age of fifteen years,the older is deemed to have survived;

2. If both were above the age sixty, theyounger is deemed to have survived;

3. If one is under fifteen and the other abovesixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, andthe sex be different, the male is deemed tohave survived, if the sex be the same, theolder;

5. If one be under fifteen or over sixty, andthe other between those ages, the latter isdeemed to have survived.

(kk) That if there is a doubt, as between twoor more persons who are called to succeedeach other, as to which of them died first,whoever alleges the death of one prior tothe other, shall prove the same; in theabsence of proof, they shall be considered tohave died at the same time. (5a) Sec. 3, Rule131.

Rule in Writ of Amparo

According to the Rule on Writ of Amparo, therespondent public official or employee cannot invokethe presumption that official duty has been regularperformed to evade responsibility or liability.

The presumption of regularity does not apply duringcustodial investigation

It is incumbent upon prosecution to prove during trialthat prior to the questioning, the confessant waswarned of his constitutionally-protected rights.


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Presumption of innocence prevails overpresumption of regularity

The presumption of innocence of the accused prevailsover the presumption that law enforcement agentswere in the regular performance of duty.

Evidence willfully suppressed would be adverse ifproduced

The presumption that evidence when willfullysuppressed would be adverse if produced does notapply if:

a. the evidence is at the disposal of bothparties

b. the suppression is not willfulc. it is merely corroborative or cumulatived. the suppression is an exercise of a privilege

such as it is covered by privilegedcommunication

Mail received in regular course of mailing

When a mail matter is sent by registered mail, thereexists a presumption, set forth under Sec. 3(v), Rule131 of Rules of Course, that it was received in theregular course of mail.

Requisites:

a. The letter was property addressed withpostage prepaid

b. That it was mailed

Unfavorable terms of contract

All private transactions has the presumption that it isfair and regular and that a person takes ordinary careof his concerns. Thus, a person cannot just claim thatthe terms of the contract is unfavorable to him.

Bare allegations, when unsubstantiated by evidence,documentary or otherwise, are not equivalent toproof under the Rules of Court.

Tender-age presumption

The tender-age presumption may be overcome onlyby compelling evidence of the mother’s fitness. Theinstances are: neglect, abandonment,unemployment, immorality, habitual drunkenness,drug addiction, maltreatment, insanity, or afflictionwith communicable disease.

Enforcement of a contract by a party who is unableto read

Under 1332 of the Civil Code, if mistake or fraud isalleged, and one of the parties is unable to read, or ifthe contract is in a language not understandable tohim, the person enforcing the contract must showthat the terms thereof have been fully explained tothe former. Cayabyab vs IAC, 232 SCRA 1

Dangerous weapons and substance

There is a prima facie presumption of negligence onthe part of the defendant if the death or injury resultsfrom his possession of dangerous weapons orsubstances, such as firearms and poisons. Except-when the possession or use thereof is indispensablein his occupation or business. Art. 2188 of the CivilCode.

Doctrine of Res Ipsa Loquitur, the thing speaks foritself

It establishes a presumption of negligence against thedefendant and furnishes a substitute for a specificproof of negligence.

The following requisites must concur:

a. Direct evidence is absent and not readilyavailable

b. The accident Is of a kind which ordinarilydoes not occur in the absence of someone’snegligence

c. It is caused by an instrumentality within theexclusive control of the defendant ordefendants; and


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d. The possibility of contributing conduct whichwould make the plaintiff responsible iseliminated.

No presumption of legitimacy or illegitimacy

There is no presumption of legitimacy of a child bornafter three hundred days following the dissolution ofthe marriage or the separation of the spouses.Whoever alleges the legitimacy or illegitimacy ofsuch child must prove his allegation. Sec. 4, Rule131.

6.1.9. Liberal construction of the rules ofevidence

These Rules shall be liberally construed in order topromote their objective of securing a just, speedy andinexpensive disposition of every action andproceeding. Sec. 6, Rule 1.

The Rules on Electronic Evidence shall likewise beconstrued liberally. Sec. 2, Rule 2, Rules on ElectronicEvidence

6.1.10. Quantum of evidence (weight andsufficiency of evidence) (Rule 133)

a) Proof beyond reasonable doubt

In a criminal case, the accused is entitled to anacquittal, unless his guilt is shown beyond reasonabledoubt.

Proof beyond reasonable doubt does not mean sucha degree of proof, excluding possibility of error,produces absolute certainly. Moral certainly only isrequired, or that degree of proof which producesconviction in an unprejudiced mind. Sec. 2, Rule 132.

A finding of guilt must rest on the evidence of theprosecution, not on the weakness or even absence ofevidence for the defense.

b) Preponderance of evidence

Preponderance of evidence – means that theevidence adduced by one side is, as a whole, superiorto or has greater weight than the other. It meansevidence which is more convincing to the court asworthy of belief than that which is offered inopposition thereto, Republic vs Bautista, 532 SCRA598

It is the quantum of proof needed for civil cases.

In determining whether or no there is apreponderance of evidence, the court may considerthe following:

a. All the facts and circumstances of the case;b. The witness’ manner of testifying, their

intelligence, their means and opportunity ofknowing the facts to which they aretestifying, the nature of the facts to whichthey testify, the probability or improbabilityof their testimony;

c. The witness’ interest or want of interest, andalso their personal credibility so far as thesame may ultimately appear in the trial;

d. The number of witnesses, although it doesmean that preponderance is necessarily withgreater number. Sec. 1, Rule 133 of the Rulesof Court.

c) Substantial evidence

In cases before administrative and quasi-judicialbodies, substantial evidence is enough to establish afact.

Substantial evidence – relevant evidence which areasonable mind might accept as adequate to justifya conclusion.

In Duduaco vs Laquindanum, The Supreme Courtheld that the administrative proceedings againstjudges are highly penal in character and are to begoverned by the rules applicable to criminal cases.

Quamtum of evidence in petition for writ of amparo


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In petition for writ of amparo, the parties shallestablish their claim by substantial evidence.

d) Clear and convincing evidence

Clear and convincing evidence

It is clear and convincing evidence if it produces in themind of the trier of fact a firm belief or conviction asto allegations sought to be established. It is more thanpreponderance, but less than beyond reasonabledoubt.

When the court may stop further evidence?

When the evidence upon it is already so full that morewitnesses to the same point cannot be reasonablyexpected to be additionally persuasive. Sec. 6, Rule133.

Limitation - . But this power should be exercised withcaution.

In Government of Hongkong Special AdministrativeRegion vs Olalia, the Supreme Court held that inextradition proceeding, being sui generis, thestandard of proof required in the granting or denyingbail can be either be beyond reasonable doubt orpreponderance in civil cases. In this case, clear andconvincing evidence must be proven. The potentialextradite must prove by “clear and convincing”evidence that he is not a flight risk and will abide withall the orders and processes of extradition court.

In case of notarial documents, to overcome thepresumption of its due execution, there must be aclear and convincing evidence.

6.2. JUDICIAL NOTICE AND JUDICIALADMISSIONS (Rule 129)

Function of judicial notice – to abbreviate litigationby admission of mattes that need no evidencebecause judicial notice is substitute for formal proof

of a matter evidence. It takes place of proof and is ofequal force.

Limitation – judicial notice should not fill the gaps ofthe party’s evidence. Judicial notice should not beused to deprive an adverse party the opportunity toprove a disputed fact. 29 AM Jur 2d, Evidence, 1994

6.2.1. What need not be proved

Judicial notice is based on the maxim, “what isknown need not be proved,” hence, when the rule isinvoked, the court may dispense with thepresentation of evidence on judicially cognizablefacts.

6.2.2. Matters of judicial notice

a) Mandatory

The following are the matters subject to mandatoryjudicial notice:

1. Existence and territorial extent of the states2. Political history, forms of government and

symbols of nationality of states3. Law of nations4. Admiralty and maritime courts of the world

and their seals5. Political constitution and history of the

Philippines6. Official acts of legislative, executive and

judicial departments of the Philippines7. Laws of nature8. Measure of time9. Geographical divisions

Thus, the court shall take judicial notice ofamendment in Rules of Court. The parties need not toallege and prove the same.

b) Discretionary

When can the court take discretionary judicialnotice?


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1. Matters which are of public knowledge2. Capable of unquestionable demonstration3. Mattes ought to be known to judges because

of their judicial functions

Requisites:

1. The mattes is among the section 2.2. The matters must be settled beyond

reasonable doubt, if there is any uncertaintyabout the matter, then evidence must beadduced

3. The knowledge must exist within thejurisdiction of the court.

4. The parties must be allowed to be heard

A judge may not take judicial notice of a fact generallyknown within its territorial jurisdiction.

Stage when judicial notice may be taken

1. Judicial notice may be taken during the trialof the case. The court, during trial , mayannounce its intention of take judicial noticeof any matter.

How?It may do so on it own initiative or on therequest of any party and allow the parties to be heardthereon. The hearing is for the purpose ofdetermining the propriety of taking judicial notice ofa certain matter and not for the purpose of provingthe issues in the case.

2. Judicial notice may be taken by the courtafter trial, and before judgment or onappeal. The proper court, on its owninitiative or on request of a party, may takejudicial notice of any matter and allow theparties to be heard thereon if such matter isdecisive of a material issue in the case

6.2.3. Judicial admissions

Judicial admission – admission, verbal or written,made by a party in the course of the proceedings inthe same case. The same does not require proof.

Requisites for judicial admission:

1. The same must be made by a party to thecase

2. It must be made in the course of theproceeding in the same case. If it is inanother case, it will be considered asextrajudicial.

A party may make judicial admissions in:

a. Pleadingsb. During the trial, either written or verbalc. In other stages of judicial proceeding

Note – stipulations of facts at the pre-trial of a caseconstitutes judicial admission.

An answer which is a mere statement of fact whichthe party filing it expects to prove is not evidence. Itis not considered as judicial admissions. SpousesSantos vs Spouses Lumbao

The admissions made by the accused in criminalcases are necessarily judicial admission, but thesame is not necessarily admissible against him.

To be admissible, the following must concur:

1. Reduced in writing2. Signed by the accused and the counsel.

Note - stipulation of facts entered into by theprosecution and defense counsel during trial in opencourt is automatically reduced in writing andcontained in official transcript of proceedings had inopen court.

a) Effect of judicial admissions

Effect of judicial admissions

The judicial admissions cannot be contradicted by theadmitter who is the party himself and binds theperson who makes the same, absent of any showingthat this was made through palpable mistake, noamount of rationalization can offset. The admissionsbecame conclusive against him. Thus, the effects are:


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1. They do not require proof2. They cannot be contradicted because they

are conclusive upon the party making it

b) How judicial admissions may be contradicted

Grounds in contradicting an admission:

1. It was made through palpable mistake2. No such admission was made

6.2.4. Judicial notice of foreign laws, law ofnations and municipal ordinance

Judicial notice of foreign laws; doctrine of processualpresumption

It is well settled rule that our courts cannot takejudicial notice of foreign laws. They must be allegedand proved.

When the court may take judicial notice of a foreignlaw

Where the foreign law is within the actual knowledgeof the court, such as when the law is generally well-known, had been ruled upon in previous cases beforeit and none of the parties claim otherwise, the courtmay take judicial notice of the foreign law.

When foreign law is a part of foreign treatise

Where the foreign law is a part of published treatise,periodical or pamphlet and the writer is recognized inhis profession or calling as expert in the subject, thecourt, it is submitted, may take judicial notice of thetreatise containing the foreign law.

Judicial notice of municipal ordinances

Municipal courts should take judicial notice ofmunicipal ordinances in force in the municipality inwhich they sit.

Note – The RTC must still take judicial notice ofmunicipal ordinances in cases on appeal to it from theinferior court in which the latter took judicial notice.

The Court of Appeals may take judicial notice ofmunicipal ordinances because nothing in the Rulesprohibits it from taking cognizance of an ordinancewhich is capable of unquestionable demonstration.

Judicial notice of a court’s own acts and records

A court will take judicial notice of its own acts andrecords in the same case.

No judicial records of other cases; exceptions.

General rule – the court may not take judicial noticeof contents of records in other cases, even the samewas tried in the same court.

Exceptions:

1. When in the absence of any objection, andwith the knowledge of opposing party, thecontents are clearly referred to by title andnumber in pending action and adopted orread into record of the latter;

2. When the original record of the other caseor any part of it is actually withdrawn fromthe archives at the court’s discretion uponthe request, or with the consent of theparties, and admitted as part of the recordsof the pending case.

Propriety acts of GOCCs are not subject to judicialnotice because the same is not official act of thejudicial department. Asian Terminals vs MalayanInsurance

6.3. OBJECT (REAL) EVIDENCE (Rule 130 A)

6.3.1. Nature of object evidence

Objects as evidence are those addressed to thesenses of the court. When an object is relevant tothe fact in issue, it may be exhibited to, examined orviewed by the court. Sec. 1, Rule 130.


Pg.204

Where physical evidence runs counter to testimonialevidence, the physical evidence should prevail. BPI vsReyes.

6.3.2. Requisites for admissibility

Requisites for admissibility of an object or realevidence:

1. Must be relevant2. Authenticated3. Authentication made by competent witness4. The evidence must be formally offered in

evidence

The right against self-incrimination cannot be invokedagainst object evidence because no compulsion wasinvolved.

6.3.3. Categories of object evidence

Categories of object evidence

1. Objects that have readily identifiable marks(unique objects)

2. Objects that are made readily identifiable(objects made unique) and

3. Objects with no identifying marks or cannotbe marked (non-unique objects)

If the object has unique characteristic, like a serialnumber of a gun, it comes readily identifiable. Awitness may testify that the object has uniquecharacteristics.

If it has no serial number, the witness may identify thesame in courts if it has some unique characteristicslike marks on it.

The third category is not readily identifiable, likeblood or oil. Under this situation, the proponent ofevidence must establish chain of custody.

6.3.4. Demonstrative evidence

Demonstrative evidence – not the actual thing butrepresents or demonstrates the real thing. Forexample, maps, diagram, photograph and a model.

6.3.5. View of an object or scene

View of an object or scene

The court may make an ocular inspection of acontested land to resolve questions of fact raised bythe parties. It may inspect a crime scene to clarifyitself with certain matters raised by the litigants.

The grant of view is a matter to judicial discretion. Theinspection or view should be made in the presence ofthe parties or at least with previous notice to them.

6.3.6. Chain of custody, in relation to Section21 of the Comprehensive Dangerous Drugs Actof 2002

Chain of custody

Purpose – to guaranty the integrity of the physicalevidence and prevent introduction of evidence whichis not authentic.

There must also be links to the chain. The links are thepeople who actually handled or had custody of theobject.

The prosecution need not to elicit testimony fromevery custodian, as long as one of the “chain’ testiiesand his testimony negates the possibility oftampering and that the integrity of the evidence ispreserved.

Note - if the object is not readily identifiable, chain ofcustody must be shown.

Chain of custody in drug cases

Under the Philippines, drug operations are governedwith specific procedure with respect to the seizureand custody of the drugs.

Section 1 (b) of Dangerous Drugs Board Regulation No1 Series of 2002, in relation with Sec. 81 b] of RA 9165provides:


Pg.205

b. Chain of custody means the duly recordedauthorized movements and custody of seized drugsor controlled chemicals or plant sources of dangerousdrugs or laboratory equipment of each stage, fromthe time of ht seizure/confiscation to receipt in theforensic laboratory to safekeeping to presentation incourt for destruction. Such record of movements andcustody of seized item shall include the identity andsignature of the person who held temporary custodyof the seized item, the date and time when suchtransfer of custody were made in the court ofsafekeeping and use in court as evidence, and thefinal disposition . People vs Obmiranis

Narcotic substances are not readily identifiable,hence, in authenticating the same, more stringentstandard than that applied to readily identifiableobjects is necessary.

In drug cases, it is essential that the identity of theprohibited drug must be established beyondreasonable doubt. More than just a fact ofpossession, the fact that the substance said to beillegally possessed it the very same substance offeredin court as exhibit must be established.

Procedures to be followed as provided in Sec. 21,Art. II of RA 9165:

1. The apprehending team shall have physicalinventory and photograph the same in thepresence of the accused or persons fromwhich the substance were seized, orrepresentative or counsel, and arepresentative from media, and DOJ and anyelected public official who shall be requiredto sign the copies of the inventory.

2. Within 24 hours, the same shall besubmitted to PDEA forensic for qualitativeand quantitative exam.

3. The forensic lab is required to issue within 24hrs the receipt of drugs, and certificationunder oath.

4. After filing of criminal case, the court, within722 hrs, conduct an ocular inspection ofconfiscated drugs, and through PDEA, within

24 hours, proceed with the destruction ofthe same.

5. The board will issue a sworn certification asto the fact of destruction. The same shall besubmitted to courts.

The officer or his/her representative or counsel shallbe allowed to personally observe the procedure, andsuch cannot be construed as admission.

Effect of non-compliance of procedure

As a rule, it will render the search and seizure void.

Except – the non-compliance is due to justifiablegrounds, and the apprehending officer has properlypreserved the integrity and evidentiary value of theseized items.

Therefore, the non-compliance does notautomatically makes the seizure void, if the elementsof the exception are present.

Elements to be established in the prosecution forsale of dangerous drugs

Elements are:

1. Identity of the buyer and the seller, objectand the consideration

2. The delivery of the thing sold and payment

What is material is the proof that the transaction orsale actually took place, coupled with presentation incourt of the corpus delicti.

Therefore, in buy-bust operation, a search after theoperation is a valid warrantless arrest because it is anapprehension in flagrante delicto.

The absence of the marked money does not createhiatus in the evidence for prosecution as long as thesale of dangerous is adequately proven and the drugsubject of the transaction is presented before thecourt. Neither the law or jurisprudence requirespresentation of money used in buy-bust operation.People vs Almodiel


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6.3.7. Rule on DNA Evidence (A.M. No. 06-11-5-SC)

DNA Evidence

DNA – a molecule that encodes the geneticinformation in all living organisms.

It is not against the right against self incriminations. Itcan be admitted when competently obtained in aid ofsituations presented.

Guidelines in assessing the probative value of DNA:

1. How samples were collected2. How they are handled3. The possibility of contamination of the

samples4. The procedure followed in analyzing the

samples5. Whether the proper standards and

procedure were followed in conducting thetests

6. The qualification of the analyst whoconducted the test

Rule on DNA Evidence, AM 06-11-05-SC

The DNA evidence is the primary rule to be appliedwhenever DNA evidence is offered, used, or proposedto be offered or used as evidence in:

1. Criminal actions2. Civil Actions3. Special Proceedings

When the matter is not specifically governed by theRule on DNA evidence, ROC and other provisions oflaw apply.

How may an order for DNA testing be obtained?

A person who has legal interest in the litigation mayfile an application for DNA testing order before theappropriate court, at any time.

There must be a further showing that:

a. A biological sample exists that has relevanceto the case

b. The biological sample was not previouslysubjected to DNA requested; or if it waspreviously subjected to DNA testing, theresults may require confirmation for goodreasons

c. DNA testing uses a scientifically validtechnique

d. DNA testing has the scientifical potential toproduce new information that is relevant tothe proper resolution of the case

e. The existence of other factors, if any, whichmay consider as potentially affecting theaccuracy and integrity of the DNA testing

Courses of action of the court-

If the above requirements have been complied with,the court shall now issue an order if appropriate, to:

1. Take biological samples from any person orcrime scene evidence

2. Impose reasonable conditions on the testingto protect the integrity of the biologicalsample and the liability of the test results

3.

Note – the court may motu propio order a DNAtesting.

Is a court order always required before undertakingDNA testing?

Not always required. The last paragraph of Sec. 4allows a testing without prior court order if donebefore a suit or proceeding is commenced at the timeof the request of any party, including lawenforcement and agencies.

This also means that litigation need not exists priorDNA testing. Thus, the court order shall only berequired if there is a pending litigation, but not beforelitigation.


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Note – an order granting the DNA testing isimmediately executory, and therefore, notappealable .Remedy is Certiorari under Rule 65.

Note – there is no automatic admission of DNAevidence obtained in the testing. You will still have toevaluate the probative value of the proposedevidence before its admission.

If a person has already been convicted under finaland executory judgment, may he still avail of DNAtesting?

Yes .The test after his conviction is a termed as “post-conviction” DNA testing. It may be available to theprosecution or person convicted by final andexecutory judgment, provided that the followingrequisites are present:

a. biological sample existsb. such sample is relevant to the casec. the testing would probably result in the

reversal or modification of the judgment orconviction

Note – in post-conviction DNA testing, court order isnot necessary. Sec. 6, RDE.

Remedy if to the convict if the results of the postDNA testing is favorable to him.

He may file a petition for writ of habeas corpus in thecourt of origin. If the court finds it meritorious, it shallreverse or modify the judgment of the conviction andorder the release of the convict, unless the detentionis justified by lawful cause. Sec. 10 RDE.

The rule also allows petition to be filed either in CA,SC, or any member of such courts. A hearing may beconducted by such courts, or by any membertherefore, or a hearing may be instead remanded tothe court of origin and issue appropriate orders. Sec.10 RDE.

Note – DNA profiles of a person are confidential andnot open to the public.

Except upon the order of the court, DNA profiles andother results shall only be released to any of thefollowing:

1. Person from whom sample was taken2. Lawyers representing the parties in the case

or action where DNA evidence is offered andpresented, or sought to be offered andpresented

3. Lawyers of private complainants in criminalactions

4. Duly authorized law enforcement agencies5. Other persons as determined by the court

The person from whom samples were taken maydesigned persons to receive the same by his request.Such request however, must be in writing and verifiedand filed with the court that allowed the DNA testing.Sec. 11, RDE.

Duty of the court

The trial court is mandated to preserve the DNAevidence in its totality, including biological samples.DNA profiles and results or other genetic informationobtained from DNA testing in accordance with Sec. 12of the RDE.

6.4. DOCUMENTARY EVIDENCE (Rule 130B)

6.4.1. Meaning of documentary evidence

Documents as evidence consist of writing or any materialcontaining letters, words, numbers, figures, symbols orother modes of written expression offered as proof oftheir contents. Sec. 2, Rule 130.

Two categories:

a. Writingsb. Any other material containing modes of

written expressions

For writings or materials to be deemed documentaryevidence, the same must be offered as proof of theircontents. If offered for some other purposes, they willbe merely object evidence.


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6.4.2. Requisites for admissibility

Requisites for admissibility of documentary evidence-

1. Document must be relevant2. Evidence must be authenticated3. Document must be authenticated by

competent witness4. The document must be formally offered in

evidence

6.4.3. Best Evidence Rule (Rule 130 B 1)

Best evidence rule – is the rule requiring that theoriginal of writing must, as a general proposition beproduced.

When the subject of inquiry is the contents of adocument, no evidence shall be admissible otherthan the original document itself. Sec. 3, Rule 130.

Therefore, the requisites for the applicability of therule are:

1. Subject matter must involve a document2. The subject of inquiry is the contents of a

document

When the document is merely collaterally in issue

When a document is involved in the inquiry but thedocument is only collaterally in issue, the bestevidence rule apply.

Waiver of the rule

The best evidence rule may be waived if not raised inthe trial. Sy vs Court of Appeals

1. office

Original of document

What are the original of the documents?

(a) The original of the document is one the contentsof which are the subject of inquiry.

(b) When a document is in two or more copiesexecuted at or about the same time, with identicalcontents, all such copies are equally regarded asoriginals.

(c) When an entry is repeated in the regular course ofbusiness, one being copied from another at or nearthe time of the transaction, all the entries are likewiseequally regarded as originals. Sec. 4, Rule 130.

Exceptions to the best evidence rule: (See thediscussions on Secondary Evidence Rule, Secs. 5-8, formore info about the exceptions)

2. When the original has been lost or destroyedor cannot be produced in court, without badfaith on the part of the offeror

3. When the original is in the custody or underthe control of the party against whom theevidence is offered, and the latter fails toproduce it after reasonable notice

4. When the original consists of numerousaccounts or other documents which cannotbe examined in court without great loss oftime and the fact sought to be establishedfrom them is only he general result of thewhole

5. When the original is a public record in thecustody of a public officer or is recorded inpublic office

Secondary evidence (Rule 130 B 2)

When the original document has been lost ordestroyed, or cannot be produced in court, theofferor, upon proof of its execution or existence andthe cause of its unavailability without bad faith on hispart, may prove its contents by a copy, or by a recitalof its contents in some authentic document, or by thetestimony of witnesses in the order stated. Sec. 5,Rule 130.

Requisites for admissibility of secondary evidence ifthe document is lost, destroyed or cannot beproduced (number 1):


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1. The offeror must prove the execution andexistence of the original document;

2. The offeror must show the cause of itsunavailability

3. The offer must show that the unavailabilitywas not due to his bad faith

The due execution or authenticity of the documentmust be provide either: a.) by anyone who saw thedocument executed or written b. ) by evidence of thegenuineness of signature of handwriting of themarker.

The presentation of secondary evidence must be inthe following order:

1. Copy of the original2. Recital of its contents in some authentic

document3. By the testimony of a witness

Secondary evidence – evidence other than theoriginal instrument or document itself.

Note – the secondary evidence must still meet itsprobative value by which reliability is to bedetermined.

When original document is in adverse party'scustody or control.

If the document is in the custody or under the controlof adverse party, he must have reasonable notice toproduce it. If after such notice and after satisfactoryproof of its existence, he fails to produce thedocument, secondary evidence may be presented asin the case of its loss. Sec. 6, Rule 130

Requisites for introduction of secondary evidencewhen the original is in the custody or control of theadverse party.

The offeror must prove the following:

1. That the original exists

2. That the said document is under the custodyor control of the adverse party

3. That the proponent of the secondaryevidence has given the adverse partyreasonable notice to produce the originaldocument

4. That the adverse party failed to produce theoriginal document despite the reasonablenotice

Note – the notice may be in the form of motion forproduction of the original or made in open court inthe presence of adverse party, or via subpoena ducestecum, provided that the party in custody of theoriginal has sufficient time to produce the same.

Requisites for introduction of secondary evidencewhen the original consists of numerous accounts

Requisites:

1. The original consists of numerous accountsor other documents

2. They cannot be examined in court withoutgreat loss of time

3. The fact sought to be established from themis only the general result of the whole, likesummary of accounts.

When the original of document is in the custody ofpublic officer or is recorded in a public office, itscontents may be proved by a certified copy issued bythe public officer in custody thereof. Sec. 7, Rule 130.

Requisites for introduction of secondary evidencewhen the original document is a public record

The evidence is a certified true copy of the originalissued by the public officer in custody of the publicrecords.

Party who calls for document not bound to offer it

A party who calls for the production of a documentand inspects the same is not obliged to offer it asevidence. Sec. 8, Rule 130.


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Note – under section 8 or R 130, the party who callsfor the production of a document and inspect thesame is not obliged to offer it as evidence. Therefore,no inference can be had here.

6.4.5. Parol Evidence Rule (Rule 130 B 3)

a) Application of the parol evidence rule

When the terms of an agreement have beenreduced to writing, it is considered as containing allthe terms agreed upon and there can be, betweenthe parties and their successors in interest, noevidence of such terms other than the contents ofthe written agreement. Sec. 9, Rule 130.

This rule applies to a contract deduced by the partiesto a writing. When parties execute written contract,the parole evidence ipso facto comes into play.

Parol – something oral or verbal but with reference tocontracts it means extraneous evidence or evidencealiunde.

Being a final agreement, any extraneous or parolevidence is inadmissible for any of the followingpurposes:

1. Modify2. Explain or3. Add to the terms of written agreement

Being noted again, the parol evidence rule does notapply to oral agreements.

The rule applies to all forms of writing, may it be in apublic or private instrument.

The application of the rule only applies to the partiesand successors in interest, therefore, third parties orstrangers are not barraged by parol evidence rule.

Application of the rule to wills

By the explicit provision of the Sec. 9, the termagreement includes will. Therefore, there can be no

evidence of the terms of the will other than thecontents of the will itself.

While the parol evidence applies to wills, an expresstrust concerning an immovable or any interesttherein may not be proved by parol evidence.

b) When parol evidence can be introduced

Exception to the Parol Evidence Rule

The rule prohibiting parol evidence is not absolute. Aparty may present evidence when he desires tomodify, explain or add to the terms of writtenagreement by showing the following:

1. An intrinsic ambiguity, mistake orimperfection in the written agreement;

2. The failure of the written agreement toexpress the true intent and agreement of theparties thereto

3. The validity of the written agreement4. Existence of the other terms agreed to by the

parties or their successors in interest afterthe execution of the written agreement Sec.9, Rule 130.

However, these matters must be put in the issue inthe pleadings. Without that, the parol evidencecannot be introduced.

Intrinsic ambiguity – one which is not apparent on theface o the document but which lies in the person orthing that is the subject matter of the document ordeed.

Remedy if the parties failed to expressed their trueintention to the instrument – reformation ofinstrument. Art. 1359, Civil Code.

However, if there is no meeting of minds between theparties because of mistake, fraud, inequitableconduct or accident, the property remedy is notreformation of contract but an action for annulment,because the contract is rendered voidable by thevitiation of the consent of one of the parties.


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Reformation of instrument cannot be brought toreform any of the following;

1. Simple donation where there is noconsideration imposed

2. Wills3. When the real agreement is void

c) Distinctions between the best evidence rule andparol evidence rule

Best Evidence Rule Parol Evidence Rule

1. Establishes apreference for theoriginal documentover the secondaryevidence thereof

2. Precludes theadmission ofsecondaryevidence is theoriginal is available

3. Can be invoked byany litigant to anaction whether ornot the said litigantis a party to thedocument involved

4. Applies to all formsof writing

1. Parol evidence isnot concerned withthe primacy ofevidence butpresupposes thatoriginal is available

2. Precludes theadmission of otherevidence to provethe terms of adocument otherthan the contentsof the documentitself for thepurpose of varyingthe terms of thewriting

3. Can be invokedonly by the partiesto the documentand theirsuccessors-in-interest

4. Applies to writtenagreements

Waiver of the parol evidence rule

It can be waived if the parties failed to invoke thebenefits of the rule. Failure to object to the parolevidence presented by the party operates as a waiverof protection of parole evidence rule.

Probative Value

Admissibility is not equivalent ot credibility orprobative value, If the petitioner for instance, claimsthat the parties entered into verbal agreementsubsequent to the written agreement, the existenceof verbal agreement must be sufficiently supportedby evidence.

6.4.6. Authentication and proof of documents(Rule 132 B)

a) Meaning of authentication

Act of showing to the court that the document orobject is the very same document or object. It is apreliminary step in showing the admissibility ofevidence.

b) Public and private documents

What are public documents?

1. The written official acts, or records of theofficial acts of the sovereign authority,official bodies and tribunals, and publicofficers, whether of the Philippines, or of aforeign country;

2. Documents acknowledge before a notarypublic except last wills and testaments; and

3. Public records, kept in the Philippines, ofprivate documents required by law to theentered therein.

The written official acts and records of officialsovereign authority do not refer only those of thePhilippines, they also refer of foreign countries.

What are private documents?

All other documents not mentioned in the Section 19are private documents.

c) When a private writing requires authentication;proof of a private writing

A private document offered as authentic, its dueexecution and authenticity must be proved either by:


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1. By anyone who saw the document executedor written; or

2. By evidence of the genuineness of thesignature or handwriting of the maker.

If it is not offered as authentic, it need only beidentified as which it is claimed to be. Example, adocument presented for the purpose that a certainpiece of document exists.

But when the witness wants to show that the deedwas indeed executed by his brother, the process ofauthentication required by Sec.20 must be compliedwith.

d) When evidence of authenticity of a privatewriting is not required

When authentication of private document is notrequired

a. When the document is an ancient one withinthe context of Sec. 21, Rule 132.

b. When the genuineness and authenticity ofan actionable document have not beenspecifically denied under oath by theadverse party under Sec. 8, Rule 8 of ROC.

c. When the genuineness and authenticity ofthe document has been admitted under Sec.4, Rule 129.

d. When the document is not being offered asauthentic as implied from Sec. 20, 132 of theRules of Court, which requiresauthentication only when the document isoffered as “authentic”, Patula vs People,April 11, 2012.

Ancient documents

A private document is considered ancient when:

1. It is more than 30 years old, and2. Produced from custody in which it would

naturally found if genuine,

3. Unblemished by any alterations orcircumstances of suspicion, Sec. 21, Rule132.

e) How to prove genuineness of a handwriting

It may be proven by any witnesses who believes it tobe the handwriting of a person because:

1. He has seen the person write; or2. He has seen writing purporting to be is upon

which the witness has acted or beencharged, and has thus acquired knowledgeof the handwriting of such person; or

3. By a comparison made by the witness or thecourt, with writings admitted or treated asgenuine by the party against whom thedocument is offered, or proved to begenuine to the satisfaction of the judge, Sec.22, Rule 130.

f) Public documents as evidence; proof of officialrecord

Documents consisting of entries in public recordsmade in the performance of a duty by a publicofficer are prima facie evidence of the facts thereinstated.

All other public documents are evidence, evenagainst a third person, of the fact which gave rise totheir execution and of the date of the latter. Sec. 23,Rule 132.

g) Attestation of a copy / Proof of public record

The record of a public document may be evidencedby:

1. An official publication thereof; or2. By a copy of a document attested by the

officer having legal custody of the record orby attestation of his deputy; if the record isnot kept in the Philippines, the attestationmust be accompanied by a certificate thatsuch officer has the custody; if the office inwhich the record is kept in a foreign country,


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the certificate may be made by the secretaryof the embassy or legation, consul-general,consul, vice-consul, or consular agent or byany officer in the foreign service of thePhilippines stationed in the foreign countryin which the record is kept, andauthenticated by the seal of his office.

Whenever a copy of a document or record is attestedfor the purpose of evidence, the attestation muststate, in substance, that the copy is a correct copy ofthe original, or a specific part thereof, as the case maybe. The attestation must be under the official seal ofthe attesting officer, if there be any, or if he be theclerk of a court having a seal, under the seal of suchcourt. Sec. 25, Rule 132

The attestation must state, in substance, that thecopy is a correct copy of the original, or a specific partthereof, as the case may be.

The certificate and attestation are required becauseof the general rule on the irremovability of publicrecords. Sec. 24, Rule 130.

h) Public record of a public document, public recordof private document

General rule - Any public record, an official copy ofwhich is admissible in evidence, must not be removedfrom the office in which it is kept. Sec. 26, Rule 130

Exception – Upon order of a court where theinspection of the record is essential to the justdetermination of a pending case.

Note – the court held that a notary public in foreigncountry is not one of those who can issue certificatementioned in Sec. 24. Therefore, a special power ofattorney to prosecute a case certified by such notarypublic is inadmissible as evidence, and thus, will affectthe jurisdiction of the court

Public record of private document

An authorized public record of a private documentmay be proved by the original record, or by a copythereof, attested by the legal custodian of the record,with an appropriate certificate that such officer hasthe custody. Sec. 27, Rule 132.

The public record of private document may be provedby the following;

a. By the original record, orb. By a copy thereof, attested by the legal

custodian of the record, with an appropriatecertificate that such officer has custody

i) Proof of lack of record

The written statement must contain the following:

a. There has been a diligent search of therecord

b. That despite the diligent search, no record ofentry of specified tenor is found to exist inthe records of his office

The written statement must be accompanied by acertificate that such officer has custody of officialrecords. Sec. 28, Rule 132.

Last wills and testaments

Even though they are duly notarized, it must undergoan authentication process. Under Sec. 1 of Rule 75, nowill shall pass either real or personal estate unless itis proved and allowed in the proper court. Subject tothe right of appeal, such allowance of the will shall beconclusive as to its due execution.

j) How a judicial record is impeached

Grounds for impeachment of judicial records:

1. Lack of jurisdiction in the court or judicialofficer

2. Collusion between the parties3. Fraud in the party offering the record, in

respect to the proceeding, Sec. 29, Rule 132.


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Foreign judgments; divorces

The divorce obtained abroad is proven by the divorcedecree itself. Therefore, the requirements in Sec. 24and Sec. 255 of Rule 132, is required for a writing ordocument may be proven as public of official recordof foreign country.

Church registries

Subsequent to the promulgation of G.O. No. 68, onDec, 18, 1889, and the passage of the Act No. 190,enacted on Aug 17, 1091, church registries are nolonger public writings, nor are they kept by dulyauthorized public officials.

They are now regarded as private writings and theirauthenticity must be therefore proved, as well are allother private writings in accordance with the rules ofevidence.

k) Proof of notarial documents

Every instrument duly acknowledged or proved andcertified as provided by law, may be presented inevidence without further proof, the certificate ofacknowledgment being prima facie evidence of theexecution of the instrument or document involved.Sec. 30, Rule 132.

Notarized documents, being public document, do notrequire authentication, unlike private documents.They enjoy the prima facie presumption ofauthenticity and due execution.

To overcome this presumption, there must beevidence to the contrary that is clear and convincingas to exclude all controversy as to the falsity of thecertificate. Denials without clear and convincingevidence to support the claim of fraud and falsity arenot sufficient to overthrow the above-mentionedpresumption.

Note – the irregular notarization or lack ofnotarization does not necessarily affect the validity ofthe contract reflected in the document.

Certain contracts must be embodied in publicinstrument in order to be valid, examples:

1. Donation of immovable2. Donation of movable with value exceeding

five thousand pesos3. A partnership where immovable property or

real rights are contributed

l) How to explain alterations in a document

Explaining alternations in a document

If a party produced a document as genuine but bearsalterations after its due execution, he may show anyof the following:

1. That the alteration was made by anotherwithout his concurrence

2. That the alteration was made with consentof the parties affected by it

3. That the alteration was otherwise properlyor innocently made

4. That the alteration did not in anyway changethe meaning or language of the instrumentSec. 31, Rule 132.

Failure to do any of the above will make thedocument inadmissible as evidence. Sec. 31, Rule132.

m) Documentary evidence in an unofficial language

The document in unofficial language must beaccompanied by translation into English or Filipino,otherwise , it is inadmissible. The same must beprepared by the counsel before the trial. Sec. 33,Rule 132.


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6.5. TESTIMONIAL EVIDENCE (Rule 130 C)

Testimonial evidence or oral evidence – evidenceelicited from the mouth of a witness as distinguishedfrom real and documentary evidence.

Presumption in favor of competence of a witness

General rule – a person who takes the stand as awitness is presumed to be qualified to testify.

A party who desires to question competence of awitness must do so by making an objection as soon asfacts tending to show incompetency.

6.5.1. Qualifications of a witness (Rule 132 C 1)

Basic qualification of a witness:

1. Can perceive2. In perceiving, can make his own perception

to others

Additional qualifications:

1. He must take either an oath or affirmation(Sec. 1, Rule 132)

2. He must not possess any of thedisqualifications imposed by law or the rules

Religious or political belief, interest in the outcome ofthe case, or conviction of a crime unless otherwiseprovided by law, shall not be ground fordisqualification.

Oath or affirmation

Willingness to take an oath or affirmation is anessential qualification of a witness.

Ability to perceive

A witness must be able to perceive an event. Thewitness must have personal knowledge of factssurrounding the subject matter of his testimony.

Sec. 36, rule 130 explicitly requires that a witness cantestify only to those facts which he knows of his

personal knowledge, i.e., those which are derivedfrom his own perception.

Ability to make known the perception to others

It involves two facts:

1. Ability to remember what has beenperceived

2. Ability to communicate the rememberedperception

Deaf-mutes are not necessarily incompetent aswitness. They are incompetent when they can:

1. Understand and appreciate the sanctity ofoath

2. Comprehend facts they are going to testifyto

3. Communicate their ideas through a qualifiedinterpreter (People vs Tuango, 345 SCRA429)

6.5.2. Competency versus credibility of a

Competency and credibility

Competency of a witness has reference to the basicqualification of a witness as his capacity to perceiveand communicate his perception to others. It alsoincludes the absence of any disqualifications imposedupon a witness.

Credibility of a witness refers to the believability of awitness and has nothing to do with the law or therules. It refers to the weight and trustworthiness orreliability of the testimony.

The relationship of a witness of a party does not ipsofacto render him biased with the criminal cases wherethe quantum of evidence is proof beyond reasonabledoubt. There is no reason why the same principleshould not be apply in criminal case where quantumof evidence is only preponderance of evidence.Northwest Airlines Inc vs Chiong, 543 SCRA 308

6.5.3. Disqualifications of witnesses

a) By reason of mental capacity or immaturity


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Requisites for disqualification by reason of mentalincapacity:

1. The person must be incapable of intelligentlymaking known his perception to others

2. His incapability must exist at the time of hisproduction for examination

Therefore, his mental incapacity during the event willnot make him incompetent as long as he is competentat the time he is produced for examination to makeknown his perception to others. However, it willaffect his credibility.

Requisites for disqualification by reason ofimmaturity:

1. Mental maturity of the witness must renderhim incapable of perceiving the factsrespecting which he is examined

2. He is incapable of relating his perceptiontruthfully

Note – in disqualification by reason of mentalincapacity, the incompetence of the witness mustexist, not at the time of his perception of the facts,but at the time he is produced for examination, andconsists in his inability to intelligently make knownwhat he has perceived.

b) By reason of marriage

During their marriage, neither the husband nor thewife may testify for or against the other without theconsent of the affected spouse.

Exception: in a civil case by one against the other, orin a criminal case for a crime committed by oneagainst the other or the latter's direct descendants orascendants.

The prohibition extends not only to testimony ofadverse to the spouse but also to a testimony in favorof the spouse. It also extends to both criminal and civilcases because the rule does not distinguish.

It is also essential that they be validly married, if not,there is no privilege.

The Sec. 22, Rule 30 also requires the existence of thevalid marriage at the moment the witness-spousegives the testimony. Hence, the rule does not prohibita testimony for or against the other after themarriage is dissolved.

If the testimony for or against the other spouse isoffered during the existence of the marriage, it doesnot matter if the facts subject of the testimonyoccurred or came to the knowledge of the witness-spouse before the marriage.

Note that the offer of the testimony is the materialpoint.

Testimony covered by marital disqualificationsconsists not only utterance but also production ofdocuments.

If the spouse is co-accused of a crime

In People vs Quidato, the court ruled that the spousemay testify against them if the case involves otherparties or accused, however, the testimony cannot beused against the accused-appellant directly orthrough the guise of taking judicial notice of aproceeding in the murder case without violating themarital disqualification.

Testimony by estranged spouse

Where the marital and domestic relations are sostrained that there is no more harmony to bepreserved nor peace and tranquility which may bedisturbed, the reason based on such tranquility fails.Therefore, the marital disqualification does notanymore apply.

c) By reason of death or insanity of adverse party

This is also called as dead man statute or survivorshipdisqualification rule.

Requisites:

1. The defendant in the case is the executor oradministrator or representative of thedeceased of person of unsound mind


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2. The suit is upon claim by the plaintiff againstthe state of the said deceased or person ofunsound mind

3. The witness is the plaintiff, or an assignor ofthat party, or person in whose behalf a caseis prosecuted

4. The subject matter of the testimony is as toany matter of fact occurring before thedeath of such deceased person or beforesuch person become unsound mind. Sec. 23,Rule 130.

Note – the rule will not apply where the plaintiff is theexecutor or administrator as representative of thedeceased or if the plaintiff is the person of unsoundmind.

How to rebut the rule? Offer a testimony of adisinterested witness.

Note – if the subject of the testimony is on someother matter, the witness may testify on such matteras when the subject of the testimony is on the factwhich transpired after the death of such person.

Waiver of the rule:

a. Failing to object to the testimonyb. Cross-examining the witness on the

prohibited testimonyc. Offering of evidence to rebut the testimony

d) By reason of privileged communications

The following persons cannot testify as to matterslearned in confidence in the following cases:

(a) The husband or the wife, during or after themarriage, cannot be examined without the consent ofthe other as to any communication received inconfidence by one from the other during the marriageexcept in a civil case by one against the other, or in acriminal case for a crime committed by one againstthe other or the latter's direct descendants orascendants;

(b) An attorney cannot, without the consent of hisclient, be examined as to any communication madeby the client to him, or his advice given thereon in thecourse of, or with a view to, professionalemployment, nor can an attorney's secretary,stenographer, or clerk be examined, without theconsent of the client and his employer, concerningany fact the knowledge of which has been acquired insuch capacity;

(c) A person authorized to practice medicine, surgeryor obstetrics cannot in a civil case, without theconsent of the patient, be examined as to any adviceor treatment given by him or any information whichhe may have acquired in attending such patient in aprofessional capacity, which information wasnecessary to enable him to act in capacity, and whichwould blacken the reputation of the patient;

(d) A minister or priest cannot, without the consent ofthe person making the confession, be examined as toany confession made to or any advice given by him inhis professional character in the course of disciplineenjoined by the church to which the minister or priestbelongs;

(e) A public officer cannot be examined during histerm of office or afterwards, as to communicationsmade to him in official confidence, when the courtfinds that the public interest would suffer by thedisclosure, Sec. 24, Rule 130.

6.5.4. Examination of a witness (Rule 132 A)

Examination of witness presented in trial or hearingshall be done in open court, and under oath oraffirmation. Sec. 1, Rule 132.

Testimonies which need not to be given in opencourt:

1. Rule on summary procedure, whereaffidavits of the testimonies constitutesdirect testimonies of the witness whoexecuted the same

2. Depositions. They may be taken beforenotary public or before any personauthorized to administer oaths.


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3. Sec. 1 [f], Rule 115 – in criminal cases, eitherparty may utilize the testimony of a witnesswho is deceased, out of the country, orunavailable to testify, provided that theprevious proceeding involved the sameparties and the subject matter and theadverse party had opportunity to crossexamine the witness

4. Judicial affidavit rule, the judicial affidavittakes place the direct testimonies ofwitnesses.

Oath or affirmation

The option to take an oath is given to the witness andnot to the court, however, a witness who refused totake an oath or affirmation cannot testify. Theaccused may also draft an oath that he will testifyhonestly. The refusal of the court of such will amountto abuse of discretion.

Examination of witnesses and record of theproceedings

General rule – The answers shall be given orally.

Exceptions:

1. If the witness is incapacitated to speak2. Questions calls for different mode of answer

The questions propounded to a witness and hisanswers shall be recorded. The entire proceedings ofthe trial or hearing must be recorded.

a) Rights and obligations of a witness

As a rule, the witness has the obligation to answer thequestions, although his answer may tend to establishhis claim.

Questions a witness may refuse to answer:

1. Answer which will tend to subject him to apenalty for an offense

2. To be protected from irrelevant, improper,insulting questions and from harsh orinsulting demeanor

3. Not to be examined except as to matterspertinent to the issue

4. Not to be detained longer than the interestof justice requires to give an answer whichwill tend to degrade his reputation, unless

a. it be the very fact at issue orb. to a fact from which the fact in

issue would be presumed. Sec. 3,Rule 132.

Note – under RA 6981, The Witness Protection andSecurity Act, a witness cannot refuse to testify or giveevidence or produce books, documents, records orwritings necessary for the prosecution of the offenseor offenses which he has been admitted on theground of right against self incrimination.

In case of a witness-accused, he may totally refuse totake the stand. A mere witness cannot altogetherrefuse to take the stand. Before he refuses to answer,he must wait for the incriminating questions.

b) Order in the examination of an individualwitness

i. Direct examination

Direct examination is the examination-in-chief of awitness by the party presenting him on the factsrelevant to the issue. Sec. 5, Rule 132.

ii. Cross examination

Upon the termination of the direct examination, thewitness may be cross-examined by the adverse partyas to many matters stated in the direct examination,or connected therewith, with sufficient fullness andfreedom to test his accuracy and truthfulness andfreedom from interest or bias, or the reverse, and toelicit all important facts bearing upon the issue. Sec.5, Rule 132.

General rule- The scope is not confined to the mattersstated by the witness in the direct examination.


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Exceptions –

1. If the witness is an unwilling or a hostilewitness as so declared by court, he may becross-examined only as to the subject matterof his examination-in-chief.

2. Witness examined is an accused because heis subject to cross-examination on matterscovered by direct examination.

Purposes of cross-examination:

1. To bring out facts favorable to counsel’sclient not established by direct testimony

2. To enable counsel to impeach or to impairthe credibility of the witness

iii. Re-direct examination

After the cross-examination of the witness has beenconcluded, he may be re-examined by the partycalling him, to explain or supplement his answersgiven during the cross-examination. On re-direct-examination, questions on matters not dealt withduring the cross-examination, may be allowed by thecourt in its discretion. Sec. 5, Rule 132.

iv. Re-cross examination

Upon the conclusion of the re-direct examination,the adverse party may re-cross-examine the witnesson matters stated in his re-direct examination, andalso on such other matters as may be allowed by thecourt in its discretion. Sec. 5, Rule 132.

Effect of death or absence of a witness

If the witness before his cross-examination is over, histestimony on the direct may be stricken out only withrespect to the testimony not covered by crossexamination.

Where strike out will not prosper:

1. Where the witness has already beensufficiently cross-examined

2. Matter on which the cross examine is soughtis not in controversy

Waiver of the right to cross examine

If the witness was not cross-examined because of thecauses attributable to cross-examining party and thewitness had always made himself available for cross-examination, the direct testimony of the witness shallremain in the record and cannot be ordered tostricken off because the cross-examiner is deemed tohave waived his right to cross examine.

v. Recalling the witness

After the examination of a witness by both sides hasbeen concluded, the witness cannot be recalledwithout leave of the court. The court will grant orwithhold leave in its discretion, as the interests ofjustice may require. Sec. 5, Rule 132.

c) Leading and misleading questions

Leading questions – One that is framed in such a waythat the question indicates to the witness the answerdesired by the party seeking the question.

It is not allowed in direct and re-direct examinations.

It is however, allowed in direct examination in thefollowing instances:

1. On preliminary matters2. When the witness is ignorant, or a child of

tender years, or is feeble-minded or a deaf-mute and there is difficulty in getting directand intelligible answers from such witness

3. When the witness is a hostile witness4. When the witness is an adverse party, or an

officer, director or managing agent of acorporation, partnership or associationwhich is an adverse party. Sec. 10, Rule 132.

Misleading questions

Misleading question is one which assumes as true afact not yet established to by the witness, or contraryto that which he has previously stated. It is notallowed in any type of examination.


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d) Methods of impeachment of adverse party’switness

Impeachment of a witness

Impeachment – a technique employed usually a partof cross-examination to discredit a witness byattacking its credibility.

Impeachment of a witness is to be done by the partyagainst whom the witness is called.

General rule – a party producing the witness is barredfrom impeaching his own witness.

Exception –

1. If the witness is unwilling or hostile, theparty calling him may be allowed by thecourt to impeach the witness. Note –whether the witness is hostile or not is uponthe discretion of the court.

2. When the witness is an adverse party or is anofficer, director, or managing agent of acorporation, partnership or associationwhich is an adverse party.

Evidence of good character

It is also improper for a party calling the witness topresent evidence of good character of his ownwitness. The same is only allowed is the character ofthe witness has been impeached. This only refer to amere witness. It does not refer to an accused in acriminal case. In criminal case, the accused may provehis good moral character relevant to the offensecharged even before his character is attacked.

Under Sec. 11 of the Rule 132, a witness may beimpeached through the following modes:

a. By contradictory evidenceb. By evidence that is general reputation for

truth, honestly or integrity is badc. By evidence that he has made at other times

statements inconsistent with his testimony

No impeachment by evidence of particular wrongfulacts

Note – a witness cannot be impeached by evidence ofparticular wrongful acts except evidence of his finalconviction of an offense as disclosed by hisexamination or the record of the final judgment.

This prior conviction of witness is shown in two ways:

a. By his examination like cross-examining himb. By presenting the record of his prior

conviction

According to Sec. 12, an unwilling or hostile witnessso declared by the court or the witness who is anadverse party cannot be impeached by evidence ofhis bad character.

e) How the witness is impeached by evidence ofinconsistent statements (laying the predicate)

Impeachment by contradictory evidence

The basis of this mode of impeachment is adeclaration made by the witness in his directtestimony. The cross-examiner’s intention is to showto the court that here were allegations made by thewitness that do not correspond to the real facts of thecase.

For this mode, laying of property foundation forimpeachment is essential. The elements of thesefoundations are:

a. The alleged statements must be related tothe witness including the circumstances ofthe times and places and the personspresent.

b. He must be asked whether he made suchstatements and also to explain them if headmits making those statements.

The mere presentation of the prior declaration of thewitness without the same having been read to himwhile testifying in court is insufficient for the desiredimpeachment of his testimony.

The purpose of laying the predicate is to allow thewitness to admit or deny the prior statement andafford him an opportunity to explain the same. Non-


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compliance with foundational elements for this modeof impeachment will be a ground for objection basedon “improper impeachment”.

f) Evidence of the good character of a witness

Impeachment by showing bad reputation

Not every aspect of person’s reputation may be thesubject of impeachment. Evidence of bad reputationshould only refer to:

a. Truthb. Honestlyc. Integrity

Thus, it would be improper for a witness to beimpeach because of his reputation of beingtroublesome and abrasive.

Not that this rule refers to evidence of bad reputationand not bad character. Character is made up of thethings an individual is and does, whereasreputation is what people think an individual is andwhat they say about him.

Exclusion and separation of witnesses.

The judge may exclude a witness who, at the time ofexclusion, is not under examination so that he maynot hear the testimony other witnesses.

The judge may cause the witnesses to be keptseparate and be prevented from conversing with oneanother until all shall have been examined. Sec. 15,Rule 132

When witness may refer to memorandum

A witness may be allowed to refresh his memoryrespecting a fact, by anything written or recorded byhimself or under his direction at the time when thefact occurred, or immediately thereafter, or at anyother time when the fact was fresh in his memory andknew that the same was correctly written orrecorded; but in such case the writing or record mustbe produced and may be inspected by the adverse

party, who may, if he chooses, cross examine thewitness upon it, and may read it in evidence.

So, also, a witness may testify from such writing orrecord, though he retain no recollection of theparticular facts, if he is able to swear that the writingor record correctly stated the transaction whenmade; but such evidence must be received withcaution. Sec. 16, Rule 132

When part of transaction, writing or record given inevidence, the remainder, the remainder admissible

When part of an act, declaration, conversation,writing or record is given in evidence by one party, thewhole of the same subject may be inquired into by theother, and when a detached act, declaration,conversation, writing or record is given in evidence,any other act, declaration, conversation, writing orrecord necessary to its understanding may also begiven in evidence. Sec. 17, Rule 132

Whenever a writing is shown to a witness, it may beinspected by the adverse party. Sec. 18, Rule 132

6.5.5. Admissions and confessions (Rule 130 C3)

Admission – act, declaration or omission of a party asto relevant fact.

Admission Confession

1. Statement of factnot directlyinvolvingacknowledgementof guilt or thecriminal intent tocommit theoffense which isone is charged

2. In general sense, itincludesconfessions, theformer being a

1. There is anacknowledgementof guilt. Thedeclaration of anaccusedacknowledging hisguilt of the offensecharged, or of anyoffense necessarilyincluded therein.

2. Specific type ofadmission whichrefers only to


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broader termbecauseaccordingly, aconfession is alsoan admission

3. May be impliedlike admission bysilence

acknowledgementof guilt

3. Cannot be implied

Admissions Declarations AgainstInterest

1. Admissible inevidence en if theperson makingsuch is alive

2. Made at any time,even during trail

3. Admissible as longas it is inconsistentwith his presentclaim or defenseand need not to beagainst one’specuniary interest

4. Admissible onlyagainst the parties

5. Admissible not asan exception toany rule

1. The declarant mustbe dead or unableto testify

2. Generally madebefore thecontroversy arises

3. Generally madeagainst one’specuniary or moralinterest

4. Admissible evenagainst thirdpersons

5. Exception to thehearsay rule

Effect of admissions

An admission by a party may be given in evidenceagainst him. However, his admission is not admissiblein his favor, because it would be a mere self-servingevidence.

Classification of admissions and confessions

Express Admission – positive statement or act

Implied Admission - one which may be inferred fromthe declarations or acts of a person

A confession cannot be implied. It must be a positiveacknowledgement of guilt and cannot be inferred.

Judicial admission – when made in the course ofjudicial proceeding

Extrajudicial – when made out of court or even in aproceeding other than the one under consideration.

Adoptive admission – occurs when a person manifesthis assent to the statements of another person. Theadmission may be received in evidence if it can beshown that a party adopted the statements as hisown.

It occurs when:

a. When agrees to or occurs in an oralstatement made by another

b. Hears a statement and later essentiallyrepeats it

c. Utters an acceptance or builds upon theascertain of other

d. Replies by way of rebuttal to some specificpoints raised by another but ignores thefurther points which he or she has heard theother make

e. Reads and subsequently signs a writtenstatement of another

Effect of extrajudicial confession of guilt; corpusdelicti

While a judicial confession may sustain a conviction,an extrajudicial confession is not sufficient forconviction. The rule requires that the confession becorroborated by evidence of corpus delicti.

Corpus delicti – body of the crime. The actualcommission of the crime and someone criminallyresponsible therefor.

Two elements of corpus delicti:

1. Proof of the occurrence of a certain event2. Some person’s criminal responsibility of the

act


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For extrajudicial confession made under custodialinvestigation be admissible, the following must bepresent:

1. The confession made shall be in writingsigned by such person

2. In the presence of his counsel, or in thelatter’s absence, upon a valid waiver, and inpresence of any of the parents, olderbrothers and sisters, his spouse, municipalmayor, municipal judge, district schoolsupervisor, or priest or minister of gospelchosen by him.

In civil cases, an offer of compromise is not anadmission of any liability, and is not admissible inevidence against the offeror. Sec. 27, Rule 130

In criminal cases, an offer of compromised by theaccused may be received in evidence as an impliedadmission of guilt. Except:

a. Quasi-offenses such as criminalnegligence

b. Cases allowed by the law to becompromised, including those fallswithin the Barangay Conciliationproceedings Sec. 27, Rule 130

Plea of guilty later withdrawn

Under the rules, the accused, at arraignment, ma pleato a lesser offense with the consent of the offendedparty and the prosecutor, provided that the lesseroffense is necessarily included in the offense charged.

In case that the accused withdraws his guilty plea,that plea of guilty later withdrawn is not admissible inevidence against the accused who made the plea.

Unaccepted plea of guilty to a lesser offense

The rule provides that an unaccepted plea of guilty toa lesser offense is not admissible evidence against theaccused who made the plea or offer.

Offer to pay or the payment of medical, hospital andother offenses

It is not admissible in evidence as proof of civil andcriminal liability for the injury. This is also called“good samaritan rule” other jurisdiction.

Subsequent remedial measures

Admission of evidence of subsequent remedialmeasures when offers to prove the negligence of thedefendant is not admissible against him.

a) Res inter alios acta rule

Res inter alios acta; branches

It is translated as “things done between strangersought not to injure those who are not parties tothem.”

The rule has two branches:

a. The rule that rights of a party cannot beprejudiced by an act, declaration or omissionof other. Rule 28, Rules of Court.

b. The rule that evidence of previous conductor similar acts at one time is not admissibleto prove that one did or did not do the sameact at another time.

Note that the rule has reference only to extrajudicialdeclarations. Hence, statements made in open courtby a witness implicating persons, aside from his ownjudicial admissions, are admissible as declarationfrom one who has personal knowledge of the factstestified to.

Distinctions between extrajudicial and judicialadmission

An extrajudicial confession may be given in evidenceagainst the confessant but not against his co-accusedas they are deprived of the opportunity to cross-examine him.

Judicial confession is not admissible against thedeclarant’s co-accused since the later are affordedopportunity to cross-examine the former.


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Sec. 30 of Rule 130 of the Rules of Court applies onlyto extrajudicial acts or admissions and not totestimony at trial where the party adversely affectedhas the opportunity to cross examine him.

General rule - An extrajudicial confession oradmission of one accused is admissible only againstthe said accused, but is inadmissible against the otheraccused.

Exception – If the declarant or admitter repeats incourt his extrajudicial admission, and the otheraccused is accorded the opportunity to cross-examinethe admitter, the admission is admissible against boththe accused then, it is transposed into a judicialadmission. Yapyuco vs Sandiganbayan,

Exception to the res inter alios rule, (first branch):

a. Admission by a co-partner or agent, Sec. 29of the Rule 130

b. Admission by a co-conspirator, Sec. 30, Rule130

c. Admission by privies, Sec. 31 Rule 130

b) Admission by a party

The act, declaration or omission of a party as to arelevant fact may be given in evidence against him.Sec. 26, Rule 130.

c) Admission by a third party

The rights of a party cannot be prejudiced by an act,declaration, or omission of another, except ashereinafter provided. Sec. 28, Rule 130.

d) Admission by a co-partner or agent

When the admission by co-partner or agentadmissible:

a. If the co-partner or agent is acting within thescope of his authority,

b. The act or declaration was made during theexistence of partnership or agency

c. The partnership or agency is shown byevidence other than by such act ordeclaration. Sec. 29, Rule 130

The same rule applies to the act or declaration of ajoint owner, joint debtor, or other person jointlyinterested with the party.

Any declaration made before the partnership oragency existed, or those made after are notadmissible against the other partners or principal, butremains admissible against the partner or agentmaking such declaration.

e) Admission by a conspirator

When the act or declaration by co-conspiratoradmissible:

a. The act or declaration relates to theconspiracy

b. The act or declaration was made during theexistence of the conspiracy

c. Conspiracy is shown by evidence other thansuch act or declaration, Sec. 30. Rule 130

Conspiracy exists when two or more persons come toan agreement concerning the commission of a felonyand decided to commit it.

Once conspiracy is proven, the act of one is the act ofall.

Note – if the declaration of a co-conspirator was longafter the conspiracy is over, it is not anymoreadmissible.

Incriminating declarations of co-conspirators made inthe absence of or without the knowledge of othersafter the conspiracy has come to an end isinadmissible.

Exception to the above rule –

The requisites for the rule do not apply when thewitness stand and repeats his extrajudicial confessionas a witness. When he testifies as a witness, hisstatements become judicial and are admissible not


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only against him but also against his co-accused. Thisis because the statements by witness in open courtare admissible as testimonies of a person based on hispersonal perceptions and knowledge.

When extrajudicial admission of a conspirator isconfirmed at the trial, it ceases to be hearsay. Itbecomes instead of judicial admission, being atestimony of an eyewitness admissible in evidenceagainst those he implicates.

f) Admission by privies

Where one derives title to property from another, theact, declaration, or omission of the latter, whileholding the title, in relation to the property, isevidence against the former. Sec. 31, Rule 130

Privies – persons who are partakers or have aninterest in any action or thing, or any relation toanother.

Requisites:

1. The act or declaration must be made by thetransferor or assignor

2. It must be made while he was holding thetitle over the property

3. The act or declaration must be in relation tothe property

Note - when the former owner of the property madethe declaration after he ceased to be the owner of theproperty, the rule on admission by privies does notapply.

g) Admission by silence

Requisites for admission by silence:

1. The act or declaration must be made in thepresence and within the hearing andobservation of a party

2. That party who does or says nothing whenthe act or declaration is such as naturally tocall for action or common if not true, andwhen proper and possible for him to do so.Sec. 32, Rule 130.

Ratio for the rule – if an accusation is made, and areasonable person would have denied the same if itwere false, the failure to deny the accusation by theperson accused may be construed as an impliedadmission of truth of the accusation and may be givenin evidence against him.

Note – not every silence is an implied admission. Forinstance, the silence of a person under investigationfor the commission of an offense should not beconstrued as an admission by silence because ofconstitutional reasons. Sec. 2[b], R.A. 7438

For silence be deemed as an admission, it is necessarythat:

a. He heard and understood the statementb. He was at liberty to make a denialc. Statement was about matter affecting his

rights or in which he was interested andwhich naturally calls for a response

d. The facts were within his knowledgee. The fact admitted from his silence is material

to the issue

h) Confessions

The declaration of an accused acknowledging his guiltof the offense charged, or of any offense necessarilyincluded therein, may be given in evidence againsthim. Sec. 33, Rule 130.

If judicial confession, it is sufficient to convict theaccused.

If extra-judicial confession, and under custodialinvestigation, it must be made in writing, signed bythe confessant, in presence of parties.

Mere extrajudicial confession is not sufficient toconvict the accused unless corroborated by evidenceof corpus delicti.


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i) Similar acts as evidence

Evidence that one did or did not do a certain thing atone time is not admissible to prove that he did or didnot do the same or similar thing at another time; butit may be received to prove a specific intent orknowledge; identity, plan, system, scheme, habit,custom or usage, and the like. Sec. 34, Rule 130.

This one refers to the second branch of the Res Interalios rule.

As a general rule, evidence that one did or did not doa certain thing at one time is not admissible to provethat he did or did not do the same or similar thing insome other time.

Exception is that, it may be received to prove:

a. Specific intent or knowledgeb. Identifyc. Pland. Systeme. Schemef. Habitg. Custom or usageh. And the like

Under the same rule, in an action to collect a sum ofmoney, evidence that he debtor had contracted debtswith various persons in the past and had not paid suchdebts despite demand, is not admissible to show thatthe debtor did not pay his obligation to the plaintiff ina certain case.

Note that evidence of similar acts may frequentlybecome relevant, especially in actions based on fraudand deceit, because it sheds light on the state of mindor knowledge of a person, his motive or intent, orthey may uncover a scheme, design or plan.

6.5.6. Hearsay Rule (Rule 130 C 5-6)

A witness can testify only to those facts which heknows of his personal knowledge; that is, which arederived from his own perception, except as otherwiseprovided in these rules. Sec. 36, Rule 130.

What can a witness testify:

1. Those facts which he knows of his personalknowledge

2. Which are derived from his own perception

The personal knowledge of a witness is a substantiveprerequisite for accepting testimonial evidence thatestablishes a disputed fact.

a) Meaning of hearsay

When evidence is called hearsay

It is hearsay when its probative force depends, inwhole or in part, on the competency and credibility ofsome persons other than the witness by whom it issought to produce it.

Hearsay is not limited to oral testimony orstatements. The rule that excludes hearsay evidenceapplies to both written and oral statement.

When affidavits are considered hearsay

While affidavits that have been notarized are publicdocuments if they are acknowledged before a notarypublic, these are still considered hearsay unless theaffiants themselves are placed in the witness standand to testify thereon.

Hearsay evidence not objected to; effect

Hearsay evidence if not objected to, is admissible.However, even if admitted, it has not probative value.

In Estrada vs Disierto, The Supreme Courtacknowledged that the ban on hearsay does notinclude statements which are relevant indecently ofwhether they are true or not, like the statements of aperson to show, among others, his state of mind,mental condition, knowledge, belief, intention, ill-willand other emotion.

Specific elements of hearsay:

a. There must be an out-of-court statement. Itmay be oral or written.

b. The statement made out of the court isrepeated and offered by the witness in court


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to prove the truth of matters asserted bysuch statement.

Hearsay Evidence Opinion Evidence

One that is not based onone’s personalperception but basedon the knowledge ofothers to prove thetruth of matter assertedin an out-of-courtdeclaration.

Based on personalknowledge or personalconclusions of thewitness based on hisskill, training orexperience.

Examples of non-hearsay evidence

a. A statement having probative worth simplyby virtue of fact that it was uttered, ifrelevant to a material fact in issue, is nothearsay and is generally admissible.

b. Statements offered for non-hearsay purposelike statements relating of the statement ofmind of the declarant and statementsrelating to the state of mind of the listener.

Out-of-court statements offered to prove mentalstate of mind of the declarant

As long as an out-of-court statement is offered for anon-hearsay purpose, a purpose other than to provethe truth of matter asserted, the statement isadmissible if it has relevance to the matter in issue.

Out-of-court statement offered to prove its effect onthe listener

When the statement is not offered for the truth of thematter asserted but is offered to show the mentaleffect of the statement on the hearer, the statementis not hearsay.

Out of court statement offered to prove that thestatement was made

Where the statement is not offered for the truth ofthe matter asserted, but to merely show what wassaid, the statement is not hearsay.

Independently relevant statements

Declarant’s statement may have relevance to an issuein a case from the mere fact that the words werespoken or written, irrrespectie of the truth of falsityof assertion.

They are called as independently relevant statementsbecause the statements are admissible for somerelevant reason of independent of their truth orfalsity.

Hence, a witness may be asked questions concerningwhat the accused told him that other persons wereinvolved in conspiracy if the purpose of the testimonyis not to prove that such persons were really involvedin the conspiracy but only to prove what the accusedhad mentioned.

Newspapers as hearsay

Newspaper accounts of an incident are hearsay ifoffered to prove the accounts but are not hearsay ifoffered for a purpose other than the truth of thematter asserted.

Classification of independently relevant statements:

First class

a. Statements which are the very facts in issue;b. The statements which are circumstantial

evidence of the fact in issue

Second class

a. Statements of a person showing his state ofmind, that is, his mental condition,knowledge, belief, intention, ill-will andother emotions

b. The statements of a person which shows hisphysical condition, as illness and the like

c. Statements of a person from which aninference may be made as to the state ofmind of another, that is knowledge, belief,motive, good or bad faith, etc, of the latter

d. Statements which may identify the date,place, and person in question


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e. Statements showing lack of credibility of awitness

b) Reason for exclusion of hearsay evidence

This is because a witness can testify only to thosefacts which he knows of his personal knowledge;

c) Exceptions to the hearsay rule

The exceptions under hearsay rule under the Rulesof Court are the following:

a. Dying declarations, Sec. 37 Rule 130b. Declaration against interest, Sec. 38, Rule

130c. Act or declaration about pedigree, Sec. 39,

Rule 130d. Family reputation or tradition regarding

pedigree, Sec. 40, Rule 130e. Common reputation, Sec. 41, Rule 130f. Parts of res gestae, Sec. 42, Rule 130g. Entries in the course of business, Sec.

43,Rule 130h. Entries in official records, Sec. 44,Rule 130i. Commercial lists and the like, Sec. 45,Rule

130j. Learned treatise, Sec. 46, Rule 130k. Testimony or deposition in further

proceeding, Sec. 40, Rule 130

They are considered as admissible because there exista diminished risk of untrustiworthiness because themotivation to lie is less.

i. Dying declaration

The dying declaration of a person may be received asevidence of the cause and surrounding circumstancesof such death provide that:

1. The declaration is made by a dying person2. It is made under consciousness of an

impending death3. The declaration refers to the cause and

circumstances surrounding the death of thedeclarant and not of anyone else

4. The death is the subject inquiry5. The declarant is competent as a witness had

he survived, People vs Cerilla6. The declarant should have died. Sec. 37, Rule

130.

If the declarant’s survives, the declaration may bereceived in evidence as parts of res gestate if therequisites for such is present.

This exception applies to both criminal and civil casesbecause of the wording in Sec. 37, in any case.

In People vs Lara, the Supreme Court held that if thedeclarant’s statement is made under consciousnessof impending death, a subsequent belief in therecovery before his actual death does not baradmissibility of his statement,.

Assailing a dying declaration

Like any other evidence, the declaration may beattacked in the same manner as one would do to atestimony in open court.

The declarant himself may be impeached throughthe normal methods provide for under the rules.

ii. Declaration against interest

Requisites:

a. The declarant must be a person deceased orunable to testify

b. He made a declaration against his interest, ifthe fact is asserted in the declaration as atthe time it was made so far contrary todeclarant’s own interest

c. A reasonable man in his position would nothave made the declaration unless hebelieved it to be true. Sec. 38, Rule 130.

The declaration may be enforced against himself orhis successors in interest and against third persons.

If the declaration is in favor of his interest, it is notadmissible being self-serving evidence.


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iii. Act or declaration about pedigree

Pedigree – includes relationship, family genealogy,birth, marriage, death, the dates when and the timewhere these fats occurred, and the names of therelatives. It also embraces facts of family historyintimately connected with pedigree.

Requisites:

a. The declarant is dead or unable to testifyb. The declarant is related by birth or marriage

to the person whose pedigree is in issuec. The declaration was made before the

controversyd. The relationship between the two persons is

shown by evidence other than such act ordeclaration. Sec. 39, Rule 130.

iv. Family reputation or tradition regardingpedigree

Requisites:

1. Statement by member of the family either byconsanguinity or affinity

2. The statement is about the reputation ortradition of the family in respect to thepedigree of any member of the family

3. The reputation or tradition is one existing tothe previous controversy. Sec. 40, Rule 130.

v. Common reputation

Common reputation is admissible when:

1. The reputation refers to the matter of publicgeneral interest, or respecting marriage

2. Or moral character and said matter is morethan 3- years old

3. The common reputation must be oneexisting prior to the controversy Sec. 41,Rule 130.

Monuments and inscriptions in public places may bereceived as evidence of common reputation.

vi. Part of the res gestae

Res gestate – those circumstances which areundersigned incidents of a particular litigated act andwhich are admissible when illustrative of such act.

The res gestate in our jurisdiction is limited on twomatters:

a. Spontaneous statementsb. Verbal acts

Requisites for admissibility of res gestate:

1. There is a startling even or occurrencetaking place

2. A statement was made while the event istaking place or immediately prior orsubsequent thereto

3. Statement was made before the declaranthad the time to contrive or devise falsehood

4. The statement relates to the circumstancesof the startling event or occurrence, or thatthe statements must concern theoccurrence in question and its immediateattending circumstances. Sec. 42, Rule 130.

Even if the declarant is unavailable and thus cannotbe cross-examined, the evidence may be received inevidence.

The statement and the event cannot be takenseparately

The statement alone, without the event, will notqualify for admission because it si a circumstancessurrounding the making of the statement which makethe said statement admissible.

Verbal acts

The last sentence of the Sec. 42 of Rule 130 defines averbal act as a “statements accompanying anequivocal act material to the issue, and giving it alegal significance”.

To be admissible under this category, the followingrequisites must be present:


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a. The principal act to be characterized must beequivocal

b. The equivocal act must be material to theissue

c. The statement must accompany theequivocal act

d. The statement gives a legal significance tothe equivocal act.

vii. Entries in the course of business

Requisites for the rule:

a. A person who made the entry must be deador unable to testify

b. The entries were made at or near at the timeof the transactions to which they refer

c. The entrant was in position to know the factsstated in the entries

d. The entries were made in his professionalcapacity or in the performance of a duty,whether legal, contractual, moral orreligious

e. The entries were made in the ordinary orregular course of business. Sec. 43, Rule 130.

The Rules on Electronic Evidence also expresslyexempt business records from application of hearsay.

viii. Entries in official records

Requisites for the rule:

a. The entry was made by a public officer or byanother person specifically enjoined by lawto do so

b. It was made by public officer, or by suchother person in performance of a dutyspecifically enjoined by law

c. The public officer or other person hadsufficient knowledge of the facts by him orher stated, which must have been acquiredby the public officer or other person orthrough special information. Sec. 44. Rule130.

ix. Commercial lists and the like

Evidence of statements of matters of interest topersons engaged in an occupation contained in a list,register, periodical, or other published compilation isadmissible.

Requisites:

1. That compilation is published for use bypersons engaged in that occupation and

2. Generally used and relied upon by themtherein. Sec. 45, Rule 130.

x. Learned treaties

When a published treatise, periodical or pamphleton a subject of history, law, science, or artadmissible in evidence?

When the court takes judicial notice, or a witnessexpert in the subject testifies, that the writer of thestatement in the treatise, periodical or pamphlet isrecognized in his profession or calling as expert in thesubject. Sec. 46, Rule 130.

xi. Testimony or deposition at a former trial

Requisites:

1. The testimony or deposition is made by adeceased person or unable to testify

2. The same was given in a former case, orproceeding, judicial or administrative,involving same parties and same subjectmatter

3. The adverse party against the evidence ispresented had opportunity to cross-examinethe person who made the testimony in theformer proceeding. Sec. 47, Rule 130.

6.5.7. Opinion rule (Rule 130 C 7)

As a general rule, the opinion of a witness isinadmissible because when a witness testifies, thewitness does so with respect to facts personallyobserved by him and it is for the court to draw


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conclusions from the facts testified to. Rule 48, Sec.130.

Exceptions:

1. Opinion of expert witness under Sec. 49 ofRule 130

2. Opinion of ordinary witness in casesprovided under Sec. 50 of the Rule 130

a) Opinion of expert witness

Rule on expert witness:

The opinion of a witness on a matter requiring specialknowledge, skill, experience or training which heshown to posses, may be received in evidence. Sec.49, Rule 130.

The court is not, however, bound by the opinion ofsuch expert witness such as handwriting expert.Expert opinion is to be weighed or considered by thecourt. They are not ordinarily conclusive.

In Loranzo vs Tabayag, the Supreme Court held thata handwriting expert is not indispensable to provethat the signature was indeed a forgery.

b) Opinion of ordinary witness

The witness may also testify on his impressions ofthe emotion, behavior, condition or appearance of aperson. (44a)

The opinion of ordinary witness is admissible when itis about:

a. The identity of a person about whom thewitness has adequate knowledge

b. Handwriting of a person with which thewitness has sufficient familiarity

c. The mental sanity of a person with whom heis sufficiently acquainted

d. The impressions of the witness of theemotion, behavior, condition or appearanceof a person. Sec. 50. Rule 130

6.5.8. Character evidence (Rule 130 C 8)

Character – is aggregate of the moral qualities whichbelong to and distinguish a person

It is not the same as man’s reputation because thelatter depends on attributes which others believe oneto possess.

a) Criminal cases

Evidence of bad moral character of the accused

In criminal case, the prosecution cannot prove thebad moral character of the accused in its evidence-in-chief. He can only do so in rebuttal.

The prosecution therefore must wait until theaccused puts his character in issue during theproceedings.

The accused may prove his good moral character onlyif it is pertinent to the moral trait involved in theoffense.

Evidence of character of the offended party

The good or bad moral character of the offendedparty may be proved by the accused if it teneds toestablish in any reasonable degree of probability orimprobability of the offense charged. Sec. 51 [a][3]Rule 130.

This rule pertains only in criminal cases and not inadministrative cases.

The character evidence must also be limited to thetraits and characteristics involved in the type of theoffense charged.

b) Civil cases

Character evidence in civil cases

In civil cases, evidence of moral character of a party isadmissible only when pertinent to the issue ofcharacter involved int eh case.

Evidence of good character of a witness

Evidence of good character of a witness is notadmissible until such character has been impeached.Sec. 14, Rule 132.


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6.6. OFFER AND OBJECTIONS (Rule 132 C)

6.6.1. Offer of evidence

The court shall consider no evidence which has notbeen formally offered. The purpose for which theevidence is offered must be specified. Sec. 34, Rule132

An evidence must be formally offered. Under theRules of Court, the court shall consider no evidencewhich has not been formally offered.

Note – where the absence of offer of testimonialevidence was not objected to as when the witnesscross-examined by the adverse party despite of thefailure to offer, the court must consider thetestimony.

When the formal offer of evidence is required

a. In summary proceeding, because it is aproceeding where there is no full blown trial;

b. Documents judicially admitted or takennotice of;

c. Documents, affidavits, and depositions usedin rendering a summary judgment

d. Documents or affidavits used in decidingquasi-judicial or administrative cases

e. Lost objects previously marked, identified,described in the record, and testified to bythe witness who had been subjects of cross-examination in respect to and said objects.

There are exceptional cases where the Court allowedthe admission of evidence not formally offeredprovided that the following requisites are present:

a. The evidence must have been duly identifiedby testimony duly recorded; and

b. The same must have been incorporated inthe records of the case

In People vs Lbnao, evidence of the prosecution in acrime involving violation of Dangerous Drugs Act of

1972, were considered by the court even withouttheir having been formally offered because theevidence were properly identified by testimony dulyrecoded and incorporated in the records of the case.The counsel for the accused also cross-examined thewitness.

6.6.2. When to make an offer

When evidence is to be offered:

a. As regards the testimony of the witness, theoffer is to be made at the time the witness iscalled to testify

b. As regards documentary and objectevidence, they are to be offered after thepresentation of a party’s testimonialevidence. The offer is orally made unlessallowed by the court to be in writing. Sec. 35,Rule 132.

Thus, the presentation of documentary or objectevidence for marking and identification in the courseof trial is not offer contemplated by the Rules. Failureto object to the evidence at the time should not beconstrued as a waiver of objection to evidence.

How an offer of evidence is made?

1. When a party makes a formal offer of hisevidence, he must state the nature orsubstance of the evidence, and the specificpurpose for which the evidence is offered.

2. The court shall consider the evidence solelyfor the purpose which it is offered, and notfor any other purposes. Spouses Rgudo vsFabella Estate Tenants Association, Inc, 466SCRa 136

6.6.3. Objection

When an objection be made?

Objection to a question propounded in the course ofthe oral examination of a witness shall be made as


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soon as the grounds therefor shall becomereasonably apparent.

An offer of evidence in writing shall be objected towithin three (3) days after notice of thereof unless adifferent period is allowed by the court. Sec. 36. Rule132.

Note – the objection of evidence cannot be made forthe first time on appeal, both because the party whohas failed to timely object becomes estopped fromraising the objection afterwards.

Objections made during the marking of evidence isconsidered as premature, and not valid objection.

Purposes of objections:

1. To keep out inadmissible evidence thatwould cause harm to a client’s cause.

2. To protect the record3. To protect the witness form being

embarrassed4. To expose the adversary’s unfair tactics like

his consistently asking obvious leadingquestions

5. To give the trial court an opportunity tocorrect his own errors

6. To avoid waiver of inadmissibility of anotherwise inadmissible evidence

General and specific objections

An objection must point out the specific ground of theobjection, and if it does not do so, no error iscommitted in overruling it. The last paragraph of Sec.36, Rule 132 provides that the grounds for theobjections must be specified.

The objection must be specific enough to adequatelyinform the court the rule of evidence of substantivelaw that authorizes the exclusion of evidence.

The mere ground of ”irrelevant” is not enoughbecause it is a general objection, however, whenthere is no other ground for the objection, this should

be deemed as substantially the equivalent of specificobjection.

Note that there are also cases where incompetencyof evidence is so palpable that a mere generalobjection is deemed sufficient, and where the portionof evidence objected to is clearly pointed out, and itsillegality is apparent on its face, then the objectionmust be allowed.

Formal and Substantive Objections

Formal objections – one directed against the allegeddefect in the formulation of the question. E.g.Ambiguous questions, leading and misleadingquestions, multiple questions, and argumentativequestions.

Substantive objection – one made and directedagainst the very nature of the evidence. E.g.Irrelevant and incompetent evidence, hearsay,privileged communication, not authenticated, etc.

Objections may be waived

It is a rule of evidence, that any objection against theadmission of any piece of evidence must be made atthe proper time, and that, if not so made, it will beunderstood to have been waived.

However, in case that a hearsay evidence has beenadmitted, the same should not still be given weight.Admissibility of evidence does not equate with eightof evidence. It is only its admissibility that is beingwaived, and not the credibility of the evidence.

6.6.4. Repetition of an objection

It is not necessary to repeat an objection when itbecomes reasonably apparent while the witness isbeing examined, that he is asked questions which areof the same class as those to which an objection hasbeen already made, whether such objection wassustained or overruled.

Instead of repeating the objection, it is sufficient forthe objection be recorded as a “continuing objection”to such class of objectionable questions. Sec. 37, Rule132.


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6.6.5. Ruling

The ruling of the court must be given immediatelyafter the objection is made, unless the court desiresto take a reasonable time to inform itself on thequestion presented; but:

a. The ruling shall always be made during thetrial and

b. At such time as will give the party againstwhom it is made an opportunity to meet thesituation presented by the ruling. Rule 38,Rule 132.

General rule - The reason for sustaining or overrulingan objection need not be stated.

Exception - However, if the objection is based on twoor more grounds, a ruling sustaining the objection onone or some of them must specify the ground orgrounds relied upon.

Note – if the court fails to rule on the objection, thesame should be brought to the attention of the court.

The ruling of the judge like “will be taken intoconsideration” or “objection noted” are notappropriate rulings, neither sustaining nor overrulingthe objection.

6.6.6. Striking out of an answer

What is the remedy if the witness answered thequestion before the adverse party had theopportunity to voice fully its objection?

Motion to strike out the answer, provided that thesame is meritorious. The court may also order thestriking out of answers which are incompetent,irrelevant, or otherwise improper.

A motion to strike may be availed of in the followinginstances:

a. When the answer is prematureb. When the answer of the witness is

irrelevant, incompetent, or otherwiseimproper

c. When the answer is unresponsived. When the witness becomes unavailable for

cross-examination through no fault on thecross-examining party; or

e. When the testimony was allowedconditionally and the condition for itsadmissibility was not fulfilled. Sec. 39. Rule130.

Note – When in the start of the questioning, the sameis not objectionable, but the ground of objectionbecame apparent later on, which would render theprevious answers incompetent like it being a hearsay,the adverse party may move for the stricken out ofthe answers.

6.6.7. Tender of excluded evidence

If the court sustained the objection of the anotherparty on the admissibility of the evidence, what isyour remedy?

Tender of excluded evidence under the Sec. 40 ofRule 132 which provides:

a. If documents or things offered in evidenceare excluded by the court, the offeror mayhave the same attached to or made part ofthe record.

b. If the evidence excluded is oral, the offerormay state for the record the name and otherpersonal circumstances of the witness andthe substance of the proposed testimony

The same is also called “offer of proof” in otherjurisdiction.

May an objection be interposed to the manner oftender of excluded evidence? The rules are silent onthis issue.

Distinguish formal offer of evidence from offer ofproof-

Formal Offer ofEvidence

Offer of Proof


Pg.235

Refers either to theoffer of the testimonyof a witness prior to thelatter’s testimony, orthe offer of thedocumentary andobject evidence after aparty has presented histestimonial evidence.

Is the process which haproponent of excludedevidence tenders thesame in accordancewith the Section 40,Rule 132 of the Rules ofCourt.

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PUP Iskolar's Aid Remedial Law

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