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REVIEWER IN REMEDIAL LAW Table of Contents

CIVIL PROCEDURE

Part 1: JURISDICTION 5 E. Summons 30

I. Definition 5 F. Motions 31
II. Prescribed Jurisdiction 5 VI. Terminating the Action Before 34
III. Specific Jurisdiction 5 Trial 35
A. Supreme Court 5 A. Motion to Dismiss
B. Constitutional Commissions 7 B. Dismissal of Actions 35
C. Court of Appeals 7 C. Dismissal of Counterclaims/ 39
D. Regional Trial Courts 7 Cross-Claims/3rd-Party 40
E. Metropolitan, Municipal and 8 Complaints 40
Municipal Circuit Trial Court D. Defaults
F. Katarungang Pambarangay 9 E. Remedies of a Party Declared 40
In Default 42
Part 2: ORDINARY CIVIL ACTION 11 F. Judgment on the Pleadings
I. Preliminaries 11 G. Summary Judgments 43
A. Actions, In General 11 H. Partial Summary Judgment 43
B. Cause of Action 12 VII. Modes of Discovery 43
C. Requirements for a Person to 13 A. Depositions Under Rule 23 44
be a Party to a Civil Action B. Depositions Before Action 44
D. Parties to a Civil Action 14 Under Rule 24 46
E. Venue of Actions 18 C. Depositions Pending Appeal
II. Pleadings 19 Under Rule 24 47
A. Definition 19 D. Rule 23 Applies on the
B. Pleadings Allowed 19 Manner or Conduct of the 47
C. Parts of a Pleading 19 Deposition
D. Disciplinary Action on 20 E. Request for Admission Under 48
Counsel Regarding Pleadings Rule 26
E. Verification 20 F. Production or Inspection of 49
F. How a Pleading is Verified 20 Documents or Things
G. Certification of Non-Forum 20 G. Physical and Mental 49
Shopping (CNFS) Examination of a Party Under
H. Test to Determine WON There 20 Rule 28.
is Forum Shopping H. Consequences of Refusal 50
I. Effect of Submission of False 20 Under Rule 29
CNFS or Non-Submission of VIII. Pre-Trial 50
CNFS A. Notice of Pre-Trial 50
J. Effect of Wilful and Deliberate 20 B. Appearance of Parties C. Pre- 50
Forum Shopping Trial Brief 51
K. Different Pleadings 20 D. Record of Pre-Trial 51
III. Manner of Making Allegations 25 E. Calendar of Cases 51
A. In General 25 IX. Trial 52
B. Facts that may be Averred 25 A. Notice of Trial 52
Generally B. Adjournments and 52
C. Facts That must be Averred 25 Postponement
Particularly C. Subpoena 52
D. Three Ways of Making a 25 D. Conduct of Trial 53
Specific Denial E. General Order of Trial 53
IV. Acquisition of Jurisdiction 25 F. Agreed Statement of Facts 54
A. Filing and Service 25 G. Statement of the Judge 54
B. Papers Required to be Filed 25 H. Suspension of Actions 54
and Served I. Reception of Evidence 54
C. Proof of Filing 26 J. Trial by commissioner 54
D. Mode of Service 26 K. Consolidation and Severance 54
V. Amendment and Supplemental 26 L. Demurrer to Evidence 55
Pleadings 27 X. Judgements, Final Orders and 56
A. Amendment Entry of Judgment 56
B. Supplemental Pleadings 27 A. Parts of a Judgment 56
C. Bill of Particulars 28 B. Distinction between 56
D. Intervention 29 Judgment and Opinion of the

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REVIEWER IN REMEDIAL LAW Table of Contents
Court 56 Property Claimed by Third
C. Requisites of a Valid 56 Person
Judgment 56 M. Recovery Upon the Counter- 76
D. Interpretation of the 58 Bond Disposition of Deposit/
Judgment 58 Attached Property After
E. Kinds of Judgment Judment
F. Amendments to Judgment 58 N. Improper Irregular or 76
G. Entry of Judgments and Final 58 Excessive Attachment
Orders 60 II. Preliminary Injunction 77
XI. Execution of Judgments 60 A. Definition 78
A. Execution as a Matter of Right B. Purpose 78
B. Discretionay Execution 62 C. Grounds 78
C. Execution of Judgments for D. Requirements 78
Money 63 E. Rule 58 Provides for both a 79
D. Execution of Judgments for Main Action for Injunction
Specific Acts 63 and an Ancillary Writ of
E. Execution of Special Preliminary Injunction
Judgments 68 III. Temporary Restraining Order 79
F. General Rules Governing (TRO)
Execution 68 A. Status Quo Order vs. 79
G. Effects of Judgments Or Final 69 Injunction
Orders B. Objection to/Motion for 80
XII. Summary Procedure 70 Dissolution of Injunction/
A. Scope 70 Restraining Order
B. Determination of Applicability 70 C. Global Injunction of a Foreign 80
C. The Only Pleadings Allowed 70 Court
D. Courty Duty 70 IV. Receivership 80
E. Answer 71 A. Nature 80
F. Effect of Failure to Answer 71 B. Appointment of Receiver 80
G. Preliminary Conference 71 V. Replevin 82
H. Record of Preliminary 71 A. Nature 82
Conference B. Requirements 82
I. Submission OF Affidavits and 71 C. Order of Replevin 82
Position Papers D. Disposition of Property by 83
J. Rendition of Judgment 71 Sheriff
K. Referral to Lupon 72 E. Where Property Claimed by 83
L. Prohibited Pleadings and 72 Third Person
Motions VI. Support Pende Lite 83
M. Affidavits 72 A. Nature 83
N. Appeal 72 B. Requirements 83
O. Applicability of the Regular 72 C. Verified Comment 84
Rules D. Hearing 84
E. Order of Support 84
Part 3: PROVISIONAL REMEDIES 73 F. Remedies of a Party Who Was 84
I. Preliminary Attachment 73 Erroneously Compelled to
A. Definition 73 Give Support
B. Purposes 73
C. Grounds 73 Part 4: SPECIAL CIVIL ACTIONS 85
D. Stages in the Grant of 74 I. Interpleader 85
Preliminary Attachment 74 1. Definition 85
E. Issuance and Contents of 74 2. Purpose 85
Order of Attachment 3. When Proper 85
F. Contents of Affidavit of 74 4. Procedure 85
Applicant II. Declaratory Relief 86
G. Condition of Applicants Bond 74 1. Requisites 86
H. Manner of Attaching Property 74 2. Who May File 87
I. Effects of Attachment 75 3. Parties 87
J. Sale of Attached Property 76 4. Where Filed 87
K. Discharge of Attachment 76 5. When Court may Refuse to 87
L. Proceedings Where Attached 76 Declare Rights/Construe

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REVIEWER IN REMEDIAL LAW Table of Contents
Instruments Part 5: REMEDIES AND APPEALS 109
6. Similar Remedies Covered BY 87 I. KINDS 109
Rule 63 A. Before Finality 109
III. Review of Judgments and Final 87 B. After Finality 109
Orders or Resolutions of the II. RECONSIDERATION AND NEW 110
COMELEC and COA 87 TRIAL
A. Scope 87 A. Rules 110
B. Procedure 87 B. Motion for Reconsideration 111
IV. Certiorari, Prohibition and 89 C. Motion for New Trial 112
Mandamus III. APPEAL 113
A. Procedure 91 IV. MODES OF APPEAL 114
V. Quo Warranto 92 A. MTC to RTC 114
A. How Comenced 92 B. MTC to RTC to CA 114
B. By Whom/Against Whom 92 C. MTC to RTC to CA to SC 114
C. Contents of Petition 92 D. MTC to SC 116
D. Venue 92 E. RTC to CA 116
E. When Filed 93 F. RTC to CA to SC 117
F. Judgment 93 G. RTC to SC 117
VI. Expropriation 93 H. CA to SC 117
A. Concept and Basis of 93 I. QJA to CA 117
Expropriation J. QJA to CA to SC 118
B. Two Stages in Expropriation 93 K. QJA to SC 118
Proceedings V. RULES 118
C. Procedure 94 A. General Rule 118
VII. Foreclosure of Real Estate 96 1. Procedure in the CA 118
Mortgage 2. Procedure in the SC 126
A. Complaints Contents 96 B. Questions of Fact vs. 127
B. Judgment 96 Questions of Law
C. Disposition of the Proceeds of 97 C. Notice of Appeal 128
the Sale D. Record on Appeal 128
D. Deficiency Judgment 97 E. Perfection of Appeal 129
E. Registration 97 F. Period to Appeal 129
VIII. Partition 98 VI. SPECIAL TOPIC: REMEDIES 130
A. Complaint 99 FROM A VOID JUDGMENT
B. Venue 99
C. When to File 99 APPENDICES 132
D. Order of Partition 99 APPENDIX 1: Service of Summons 132
E. Partition by Agreement 99 upon Different Entities
F. Partition by Commissioners 100 APPENDIX 2: Subpoena Duces 133
G. Judgment 100 Tecum and Order for the Production
IX. Forcible Entry and Unlawful 101 or Inspection
Detainer APPENDIX 3: Consequences of 134
A. Actions for the Recovery of 101 Refusal under Rule 29
Possession of Real Property APPENDIX 4: Procedure for 136
B. Forcible Entry 102 Expropriation
C. Unlawful Detainer 102
D. Pleadings 103
E. Procedure 103
F. Preliminary Injunction 105
G. Matters not Constituting 105
Prejudicial Question to
Ejectment
X. Contempt 106
A. Definition 106

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REVIEWER IN REMEDIAL LAW Table of Contents

SPECIAL PROCEEDINGS
PRELIMINARY MATTERS 142 L. Proof where testator petitions for 152
A. Special Proceedings 142 allowance of holographic will
B. Applicable Rules 142 M. Certificate of allowance attached 152
C. Venues and Jurisdictions of Special 143 to prove will. To be recorded in
Proceedings the Office of Register of Deeds
V. Rule 77 Allowance of Will Proved 153
CHAPTER 1: General Provisions 144 Outside of Philippines and
I. Subject matter and applicability of 144 Administration of Estate
general rules Thereunder
II. Difference between action and 144 A. Will proved outside the 153
special proceeding Philippines
B. Requisites for allowance: 153
CHAPTER 2: Settlement of Estate of 145
C. When will allowed, and effect 153
Deceased Persons
thereof
I. Venue and Process 145
D. Estate, how administered 153
A. Where estate of deceased persons 145
VI. Letters Testamentary and of 153
settled
Administration, When and to Whom
B. Where estate settled upon 146
Issued
dissolution of marriage
A. Who cannot serve as executors or 153
C. Process 146
administrators:
D. Presumption of death 146
B. The executor of an executor shall 153
II. Summary Settlement of Estate 146
not, as such, administer the
A. Extrajudicial settlement by 146
estate of the first testator.
agreement between heirs
C. Married woman may serve 153
B. Summary settlement of small 147
D. Letters testamentary issued when 154
value
will allowed
C. Bond to be filed by distributees 148
E. Where some co-executors 154
D. Liability of distributees and estate 148
disqualified others may act
E. Period for claim of minor or 149
F. When and to whom letters of 154
incapacitated person
administration granted
III. Production of Will. Allowance of 149
VII. Rule 79 Opposing Issuance of 154
Will Necessary
Letters Testamentary. Petition and
A. Allowance necessary. Conclusive 149
Contest For Letters Of
as to execution
Administration
B. Custodian of will to deliver 150
A. Opposition to issuance of letters 154
C. Executor to present will and 150
testamentary
accept or refuse trust
B. Contents of petition for letters of 155
D. Custodian and executor subject 150
administration
to fine for neglect
C. Court to set time for hearing. 155
E. Person retaining will may be 150
Notice thereof
committed
D. Opposition to petition for 155
IV. Allowance or Disallowance of Will 150
administration
A. Who may petition for the 150
E. Hearing and order for letters to 155
allowance of will
issue
B. Contents of the petition 151
F. When letters of administration 155
C. Court to appoint time for proving 151
granted to any applicant
will. Notice thereof to be
VIII. Rule 80 Special Administrator 155
published
A. Appointment of special 155
D. Heirs, devisees, legatees, and 151
administrator
executors to be notified by mail or
B. Powers and duties of special 156
personally
administrator
E. Proof at hearing. What sufficient 151
C. When special administrator cease; 156
in absence of contest
duties
F. Proof of lost or destroyed will. 151
IX. Rule 81 Bond of Executors and 156
Certificate thereupon
Administrators
G. Proof when witnesses do not 151
A. Bond to be given issuance of 156
reside in province
letters. Amount. Conditions.
H. Proof when witnesses dead or 152
B. Bond of executor where directed 156
insane or do not reside in the
in will. When further bond
Philippines
required
I. Grounds for disallowance of will 152
C. Bonds of joint executors and 157
J. Contestant to file grounds for 152
administrators
contest
D. Bond for special administrator 157
K. Subscribing witnesses produced 152
or accounted for where will
contested

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REVIEWER IN REMEDIAL LAW Table of Contents
X. Revocation of Administration, 157 G. Mortgage debt due from estate 163
Death, Resignation, and Removal of H. Claim of executor or 163
Executors or Administrators administrator against an estate
A. Administration revoked if will 157 I. How to file a claim. Contents 163
discover. Proceedings thereupon thereof. Notice to executor or
B. Court may remove or accept 157 administrator
resignation of executor or J. Answer to the claim by executor 164
administrator. Proceedings upon or administrator. Offsets 164
death, resignation or removal K. Disposition of admitted claim 164
C. Acts before revocation, 158 L. Trial of contested claim 164
resignation, or removal to be valid M. Judgment appealable 164
D. Powers of new executor or 158 N. Costs 164
administrator XV. Actions By and Against Executors 165
XI. Inventory and Appraisal. Provision 158 and Administrators
for Support of Family A. Actions which may and which 165
A. Inventory and appraisal to be 158 may not be brought against
returned within 3 months executor or administrator
B. Articles not to be inventoried: 158 B. executor or administrator may 165
C. Allowance to widow and family 158 bring or defend actions which
D. Provision for support 158 survive
XII.General Powers and Duties of 158 C. Heir may not sue until share 166
Executors and Administrators assigned
A. Executor or administrator to have 158 D. Executor or administrator may 166
access to partnership books and compound with debtor
property. How right enforced E. Mortgage due estate may be 166
B. Keep buildings in tenantable 159 foreclosed
repair F. Proceedings when property 166
C. Right to possession and 159 concealed, embezzled or
management of the real and fraudulently conveyed
personal properties G. Powers entrusted with estate 166
XIII. Accountability and 159 compelled to render account
Compensation of Executors and H. Embezzlement before letters 167
Administrators issued
A. Executor or administrator 159 I. Property fraudulently conveyed by 167
chargeable with all estate and deceased may be recovered. When
income executor or administrator must
B. Not to profit by increase or lose by 159 bring action
decrease in value J. When creditor may bring action. 167
C. When not accountable 159 Lien for costs
D. Accountable for income from 159 XVI. Payment of the Debts of the 167
realty used by him Estate
E. Accountable if he neglects or 159 A. Debts paid in full if estate 168
delays to raise or pay money sufficient
F. When allowed money paid as 160 B. Part of estate from which debt 168
costs paid when provision made by will
G. What expenses and fees allowed 160 C. Personally first chargeable for 168
executor or administrator. Not to debts, then realty
charge for services as attorney. D. Estate to be retained to meet 168
Compensation provided by will contingent claims
controls unless renounced. E. Contingent claim; when allowed 168
H. When executor or administrator 160 F. Court to fix contributive shares 169
to render account where devisees, legates, or heirs
I. Examination on oath by court 161 have been in possession
J. Account to be settled on notice 161 G. Order of payment if estate is 169
K. Surety on bond may be party to 161 insolvent
accounting H. Dividends to be paid in proportion 169
XIV. Claims Against Estate 161 to claims
A. Notice to creditors to be issued by 161 I. Insolvent non-resident 169
court J. Insolvent resident; foreign 169
B. Time within which claims shall be 162 creditors
filed K. Order of payment of debts 169
C. Publication of notice to creditors 162 L. Appeal taken from a decision of 169
D. Filing copy of printed notice 162 the court concerning the claim
E. Claims which must be filed under 162 M. Time to time further orders of 169
the notice. If not filed, barred; distribution
exceptions N. Creditors to be paid in accordance 170
F. Solidary obligation of decedent 162 with terms of order

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REVIEWER IN REMEDIAL LAW Table of Contents
O. Court shall allow executor or 170 IV. Period to appeal and claim the 179
administrator a time for disposing estate
the estate any paying debts and V. Other actions for escheat 179
legacies
P. Ground for extension 170 CHAPTER 4: Special Rules 180
XVII. Sales, Mortgages, and Other 170 Implementing the Family Courts
Encumbrances of Property of I. Guardianship 180
Decedent A. Guardianship In General 180
A. Sale of personal estate; 170 B. Guardianship of Minors 180
requirements 1. Parents as Legal Guardians 180
B. Sale, mortgage, or encumbrance 170 (Art. 225, FC)
(s/m/e) of real property 2. Rule on Guardianship of 181
C. Requisites for disallowing s/m/e 171 Minors (A.M. No. 03-02-05-
real or personal SC)
D. Sale of whole or part of personal 171 a. Scope and Applicability 181
or real estate b. Petition for Appointment 181
E. Personal/real s/m/e is NOT 171 of Guardian
necessary to pay debts, expenses c. The Guardian 182
of administration or legacies in d. Selling and Encumbering 184
the PHILIPPINES the Property of the Ward
F. Court authorize s/m/e of realty 171 e. Removal, Resignation, 184
acquired on execution or and Termination of
foreclosure Guardianship
G. Regulations for authorizing 171 C. Guardianship of Incompetents 185
s/m/e: (Rules 92-98)
H. When court may authorize 172 a. Scope and Applicability 185
conveyance of realty which b. Petition for Appointment of 185
deceased contracted to convey Guardian
I. Where the deceased in his lifetime 173 c. The Guardian 186
held real property in trust for d. Selling and Encumbering the 188
another person Property of the Ward (Rule
XVIII. Distribution and Partition of 173 95)
the estate e. Termination of Guardianship 189
A. When order for distribution of 173 (Rule 97)
residue made II. Adoption 190
B. Questions as to advancement 174 A. Domestic Adoption 190
made, or alleged to have been a. Scope and Applicability 190
made, by the deceased to any heir b. The Adopter and the Adoptee 190
C. Expenses of partition 174 c. Petition for Adoption 192
D. Recording of the order of partition 174 d. Rescission of Adoption of the 196
of estate Adoptee
E. Effect of Final Decree of 174 B. Inter-Country Adoption (RA 8043) 197
Distribution 1. Scope and Applicability 197
XIX. Trustees 175 2. Inter-country Adoption as the 197
A. Where trustee appointed 175 Last Resort
B. Appointment and powers of 175 3. Petition for Adoption 197
trustee under will. Executor of III. Rules on Custody of Children (Rule 198
former trustee need not 99, Secs. 6 and 7)
administer trust A. Proceedings as to the child whose 198
C. New Trustee 175 parents are separated (Rule 99, 199
D. Trustee appointed abroad 176 Sec. 6)
E. Trustee must file bond before 176 B. Proceedings as to vagrant or 199
performing duties abused child (Rule 99, Sec. 7)
F. Conditions of the Bond 176 IV. Custody of Minors and Writ of 199
G. Appraisal and compensation of 177 Habeas Corpus in Relation to
trustee Custody of Minors (A.M. No. 03-04-
H. Removal or resignation of trustee 177 04-SC)
I. If sale or encumbrance of trust 177 V. Commitment of Children (A.M. No. 203
estate necessary or expedient 02-1-19-SC)
A. Involuntary Commitment of a 204
CHAPTER 3: Escheats 178 Dependent, Abandoned, or
I. When Allowed 178 Neglected Child
II. Duty of court; when petition 179 B. Voluntary Commitment of a 206
sufficient Dependent, Abandoned, or
III. Court shall adjudge that the estate 179 Neglected Child
shall escheat C. Commitment of a Disabled Child 207

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REVIEWER IN REMEDIAL LAW Table of Contents
CHAPTER 5: Other Special Proceedings 209 H. When Prisoner Discharged if no 224
I. Hospitalization of Insane Persons 209 Appeal
(Rule 101) I. Penalties 225
A. Petition for Commitment 209 J. Record of Writ, Fees and Costs 225
B. Petition for Discharge of Insane 209 II. Writ of Amparo 225
II. Declaration of Absence (Rule 107) 209 A. General principles 225
and of Presumptive Death (Arts. B. Aspects of Filing 226
390-392, CC) C. Issuance and Service of the Writ 227
A. Absence 210 D. Aspects of the Return 227
B. Presumption of Death 210 E. Hearing on the Writ 227
III. Change of Name and Cancellation 210 F. Allowable Reliefs 228
or Correction of Entries in the Civil G. Penalties 229
Registry H. Burden of Proof 229
A. Change of Name (Rule 103) 210 I. Judgment and Appeal 229
B. Change of First name or 211 J. Effect of Other Actions 230
Nickname and Correction of K. Other Matters 230
Clerical or Typographical Errors III. Writ of Habeas Data 230
in Entries in the Civil Registry (RA A. General Principles 230
9048) B. Aspects of Filing 230
1. Scope and Application 211 C. Issuance and Service 231
2. RA 9048 and Rule 103 211 D. Aspects of Return 231
Compared E. Hearing on the Writ 231
3. The Petition 212 F. Penalties 232
C. Cancellation or Correction of 215 G. Judgment and Appeal 232
Entries in the Civil Registry (Rule H. Return of Judgment, Hearing 232
108) thereon
IV. Voluntary Dissolution of 215 I. Effects of Other Actions 232
Corporations J. Other Matters 232
V. Naturalization 215 IV. Writ Matrix 233

CHAPTER 6: Appeals in Special 219 CHAPTER 8: Corporate Rehabilitation 240

Proceedings I. Petition for Rehabilitation 240
II. Stay Order 241
CHAPTER 7: The Writs 220 III. Hearing 242
I. Writ of Habeas Corpus 220 IV. Corporation plan of rehabilitation 242
A. To What Habeas Corpus Extends 220 V. Final Orders and Appeals Therefom 243
B. Who May Grant the Writ 222
C. Requisites of Application 222
D. When Writ not Allowed or 222
Discharge Authorized
E. When Writ Must be Granted and 223
Issued
F. Aspects of the Return 223
G. When person Lawfully Imprisoned 224
Recommitted, and When let to
Bail

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REVIEWER IN REMEDIAL LAW Table of Contents

CRIMINAL PROCEDURE

Chapter 1: CRIMINAL 248 4. Substance of application 255

JURISDICTION 5. Generally 255
A. DEFINITION 248 6. Issuance and form of search 255
B. HOW DETERMINED 248 warrant 255
C. ESTOPPEL AND LACHES TO 248 7. Personal Property to be Seized 255
DENY JURISDICTION 8. Validity of search warrant 255
D. JURISDICTION OF COURTS 249 9. Service of search warrant 255
1. Municipal Trial Courts 249 10. Search of house, room, or 255
2. Regional Trial Courts 249 premise, to be made, in
3. Sandiganbayan 250 presence of two witnesses
4. Military Courts 250 11. Time of making search 255
12. Post-service 255
Chapter 2: RIGHTS OF THE 251 13. Delivery of property and 259
ACCUSED inventory thereof to court
A. TO BE PRESUMED INNOCENT 251 C. WARRANTLESS SEARCHES 260
B. TO BE INFORMED OF THE 251 1. When allowed 260
NATURE AND CAUSE OF 2. Probable cause justifying 262
ACCUSATION AGAINST HIM warrantless arrest and
C. TO BE PRESENT AND DEFEND 251 warrantless search
IN PERSON AND BY COUNSEL AT D. REMEDIES OF PARTY SUBJECT 262
EVERY STAGE OF THE OF SEARCH WARRANT
PROCEEDINGS 1. Who may avail of remedies 262
D. TO TESTIFY IN HIS OWN 251 2. Remedies 262
BEHALF 3. Effect of failure to quash 263
E. TO BE EXEMPT FROM BEING 251 warrant
COMPELLED TO BE A WITNESS 4. Effects of illegal search 263
AGAINST HIMSELF 5. Waiver of immunity against 263
F. TO CONFRONT AND CROSS- 251 unreasonable searches and
EXAMINE WITNESSES AGAINST seizure [Pasion v. Locsin
HIM AT THE TRIAL (1938)]
G. TO HAVE COMPULSORY 251 6. Liability for illegal search 263
PROCESS ISSUED TO SECURE warrant
ATTENDANCE OF WITNESSES E. CIVIL LIABILITY 263
AND PRODUCTION OF OTHER
EVIDENCE IN HIS BEHALF Chapter 4: ARREST 264
H. TO HAVE A SPEEDY, IMPARTIAL 252 A. CONCEPT 264
AND PUBLIC TRIAL B. PROCEDURE 264
I. TO HAVE THE RIGHT OF 252 1. Constitutional requirements on 264
APPEAL IN ALL CASES ALLOWED arrest
AND IN THE MANNER 2. Arrest with warrant 264
PRESCRIBED BY LAW 3. Arrest without warrant 266
4. Illegal arrest 267
Chapter 3: SEARCH AND SEIZURE 253 5. Right of attorney or relative to 267
A. CONCEPT 253 visit arrested person
1. Definition 253 C. OTHER FORMS OF ARREST 267
2. Nature of a Search Warrant 253 WARRANTS
3. Constitutional safeguard 253 1. Human Security Act, RA No. 267
against unreasonable search 9372
and seizures 2. BID arrest by virtue of an order 267
4. Constitutional protection is 254 of deportation
against public officers acts, not D. CUSTODIAL INVESTIGATION 267
private persons 1. What is embraced in custodial 267
B. PROCEDURE 254 investigations; what is not
1. Application 254 2. Custodial rights of the accused 267
2. Exception: Malaloan v. CA 254 3. Consequences of violation of 267
(1994) - subject to R126, Sec. 1 custodial rights
3. Search guidelines under 254
Circular No. 19, s. 1987

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REVIEWER IN REMEDIAL LAW Table of Contents
Chapter 5: PROSECUTION OF 269 I. RECORD OF PI 282
OFFENSES J. CASES NOT REQUIRING 282
A. INSTITUTION OF CRIMINAL 269 PRELIMINARY INVESTIGATION
ACTIONS NOR COVERED BY RULE ON
1. In general 269 SUMMARY PROCEDURE
2. Prosecution 269
3. Effects 270 Chapter 7: PRELIMINARY 283
4. Complaint or information 271 REMEDIES
5. Place where action is to be 274 A. BAIL 283
instituted 1. Definition 283
6. Intervention of offended party 275 2. Purpose 283
B. PROSECUTION OF CIVIL ACTION 275 3. Conditions of bail 283
1. In general 275 4. Availability of bail 284
2. Civil liability 275 5. Amount of bail 285
3. Suspension of civil action 277 6. Kinds of bail 285
4. Effect of death of accused on 277 7. Procedural matters in bail 287
civil action 8. Arrest of accused out on bail 288
5. Effect of judgment in civil case 277 9. Bail required of witnesses 288
on criminal action B. MOTION TO QUASH 288
1. Defnition 288
Chapter 6: PRELIMINARY 278 2. Time to file MTQ 288
INVESTIGATION 3. Form and contents 289
A. GENERAL PRINCIPLES 278 4. Grounds 289
1. Definition 278 5. Procedure upon filing 296
2. When required 278 6. Effect of order granting MTQ 296
3. Nature 278 7. Failure to assert grounds 297
4. Purpose 279 8. Provisional dismissal 297
B. RIGHT TO PRELIMINARY 279 C. PROVISIONAL REMEDIES IN 298
INVESTIGATION CRIMINAL CASES
C. WHO MAY CONDUCT PI 279 1. Availability 298
1. Generally 279 2. Attachment 298
2. COMELEC, when vested 279
3. Ombudsman 279 Chapter 8: PRE-TRIAL 299
D. PROCEDURE to be observed by 280 A. PRE-TRIAL CONFERENCE 299
prosecutors in PI 1. Coverage 299
1. Filing of the complaint 280 2. Period 299
2. Action of the investigating 280 3. Purposes 299
officer B. PRE-TRAIL AGREEMENTS AND 299
3. Defendants counter-affidavit 280 SUBMISSIONS
4. Hearing 280 1. Form 299
5. Resolution 280 2. Effect 300
6. Review 280 C. PRE-TRIAL ORDER 300
7. Filing of information/complaint 281 1. When issued 300
in court 2. Contents 300
E. RIGHTS OF RESPONDENT IN A 281 3. Effects 300
PI D. NON-APPEARANCE 300
F. DUTIES OF INVESTIGATING 281
FISCAL OR PROSECUTOR Chapter 9: ARRAIGNMENT 301
1. Determine WON there is 281 A. IN GENERAL 301
probable cause 1. Definition 301
2. Must include all persons guilty 281 2. Purpose: Procedural due 301
of offense process
3. Prosecutor cannot file 281 3. Four-fold duty of the TC before 301
information without prior arraignment
approval of superior 4. Issues that may be raised 301
4. Appeal to Secretary of Justice 281 before arraignment 301
G. WHEN WARRANT OF ARREST 282 B. PROCEDURE 301
MAY ISSUE 1. Where 301
H. WHEN ACCUSED LAWFULLY 282 2. Manner 302
ARRESTED WITHOUT WARRANT 3. Types of plea 303

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REVIEWER IN REMEDIAL LAW Table of Contents
4. Withdrawal of plea 303 Chapter 12: POST-JUDGMENT 323
5. Suspension of arraignment 303 REMEDIES
A. MOTION FOR 323
Chapter 10: TRIAL 305 RECONSIDERATION OR NEW
A. GENERAL PROCEDURE FOR 305 TRIAL (MFR/MNT)
TRIAL 1. Definition 323
1. Notice and commencement 305 2. Grounds for MNT 323
2. Time to prepare for trial 305 3. Ground for MFR 323
3. Trial Proper 305 4. Procedure 324
4. Order of trial 305 5. Effect of granting MNT/MFR 324
B. SPECIAL PROCEDURES 307 B. ORDINARY APPEAL 325
1. Trial of several accused jointly 310 1. Definition 325
charged 2. Final judgment or order 325
2. Consolidation of trials of 310 3. Appellate jurisdiction of the CA 325
related offenses 4. Modes of Review 325
3. Discharge of an accused to be a 311 5. Procedure 326
state witness 6. Jurisdiction of the TC prior to 329
4. Other modes of discharge of the 312 expiration of period to appeal
accused to be a state witness C. PROCEDURE IN THE DIFFERENT 330
5. The Ombudsmans power to 313 COURTS
grant immunity. [Sec. 17, RA 1. Procedure in the MTC (incl. 330
6770] Rule on Summary Procedure)
6. Effect of discharge 314 2. Procedure in the CA 332
7. Re-opening of trial 314 3. Procedure in the SC 335
C. OTHER PROCEDURAL RULES 315
1. When proper offense is not 315 APPENDICES
charged Appendix 1: AVAILABILITY OF BAIL 337
2. Duties of counsels and 316 Appendix 2: MODES OF REVIEW 339
prosecutors
3. Appointment of acting 316
prosecutor
4. Exclusion of the public from 316
the courtroom
5. Archiving of criminal cases 316
6. Inhibition of judges 316
7. Desistance by the offended 317
party

Chapter 11: JUDGMENT 318

A. IN GENERAL 318
1. Requisites 318
2. Conviction 319
3. Acquittal 320
B. PROMULGATION OF JUDGMENT 321
1. Promulgation where judge is 321
absent
2. Presence of accused required; 321
exception
C. MODIFICATION OF JUDGMENT 322
1. When judgment on conviction 322
becomes final
2. When judgment of acquittal 322
becomes final
D. ENTRY OF JUDGMENT 322
1. Manner 322
2. Formalities required 322
3. Existing provisions governing 322
suspension of sentence

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REVIEWER IN REMEDIAL LAW Table of Contents

EVIDENCE
Chapter I: GENERAL PROVISIONS 343 e. Common reputation [rule 354
A. Definition 343 130, sec. 41]
B. Scope 343 f. Part of res gestae [rule 354
C. Admissibility V. Relevancy 343 130, sec. 42]
D. Competence 343 g. Entries in the course of 354
business [rule 130, sec.
Chapter II: WHICH OF THE FACTS 344 43; rule 8, rules on
DO NOT NEED PROOF electronic evidence (ree)]
A. Judicial Notice 344 h. Entries in official records 355
B. Judicial Admissions 344 i. Commercial list and the 355
like
Chapter III: WHO MUST PROVE 345 j. Learned treatises 355
THESE FACTS THAT NEED TO BE k. Testimony or deposition at 355
PROVEN? a former proceeding
A. Burden of Proof 345 5. What testimony involves 355
B. Presumptions 345 opinions and how can
objections thereto be met? )
Chapter IV: WHAT DEGREE OF 347 6. When is character evidence 356
PROOF IS NEEDED? admissible?
A. Weight and sufficiency of 347 7. Recalling a witness to the 356
evidence stand (recalling witnesses
1. Preponderance of Evidence 347 8. Adverse party as witness 356
(Civil Cases) (impeachment of adverse
2. Proof Beyond Reasonable 347 partys witness
Doubt (Criminal Cases) 9. Excluding witnesses from 357
3. Substantial Evidence 347 courtroom (exclusion and
(Administrative Cases) separation of witnesses
B. Quantum of Evidence 348 10. May parol evidence be given? 357
1. Confessions 348 B. Documentary 357
2. Circumstantial Evidence 348 1. What documents require 357
3. Interpretation of Documents 348 authentication and by whom?
4. Evidence on Motion a. Public documents [rule 357
132, sec. 19])
Chapter V: WHAT AVAILABLE 350 b. Private documents 359
EVIDENCE IS ADMISSIBLE TO c. Impeachment of judicial 359
PROVE THESE FACTS? record
A. Testimonial 350 d. Alterations [rule 132, sec. 359
1. Which witnesses are subject 350 31]
to objection for competence? e. Seal [rule 132, sec. 32] 360
2. Which witnesses will testify 350 f. Documents written in an 360
on privileged matters and to unofficial language [rule
what extent does the privilege 132, sec. 33]
cover? 2. Do documents comply with 360
3. What testimony is subject to a 352 best evidence rule? [rule 130,
claim of privilege and by sec. 3]
whom? a. Best evidence 360
4. What evidence is hearsay and 352 b. Secondary evidence 360
upon what proposition, if it is C. Object 361
hearsay, can it be brought D. Circumstantial evidence 361
within any exception? E. Extrajudicial admissions 361
a. Dying declaration 353 1. Self-serving declarations 362
b. Declaration against 353 2. Admission by silence 362
interest 3. Compromise 362
c. Act or declaration about 353 4. Res inter alios acta 362
pedigree 5. Exceptions to res inter alios
d. Family reputation or 354 acta 363
tradition regarding a. Partners/agents
pedigree [rule 130, sec. admission; [rule 130,
40]

xi
REVIEWER IN REMEDIAL LAW Table of Contents
b. Co-conspirators 363 D. Objections 368
admission; [rule 130, sec. 1. When Repetition of Objection 368
30] is Unnecessary
2. Ruling on the Objection 368
F. Electronic evidence 363 3. Motion to Strike
1. What evidence is covered by 363 E. Tender of Excluded Evidence 368
the ree? (r2,s1; r11, ss1-2, F. Electronic Examination of 369
ree) Witness
2. When and to what extent 364 G. Examination of a Child Witness 369
admissible? (r3,s2, ree) 1. Scope and Applicability 369
3. Evidentiary weight of 364 2. Child Witness 369
electronic evidence (r7, ss1-2) 3. Exclusion of the Public 369
4. The hearsay rule and the 365 During the Child's
business records exception Examination
(r9, ss1-2) 4. Alternative Modes of Giving 369
Testimony
Chapter VI: HOW DO I PRESENT 366 5. When to Take the Child's 370
AND OFFER THE EVIDENCE AT Testimony
TRIAL? 6. Provisions for Ease of Child in 370
A. Order of Proof 366 Testifying
1. Manner of Examination 366 7. Hearsay Exception in Child 370
2. Mode of Answering 366 Abuse Cases
3. Exceptions in General 366 8. Sexual Abuse Shield Rule 370
4. Record of Proceedings 366 9. Other Protective Measures 370
5. Transcript 366
6. Rights and Obligations 366
7. Order of Examination 367
B. Form of Questions 367
1. Leading and Misleading 367
Questions 367
C. Offer of Evidence 367
1. Offer of Evidence 368
2. When to Make Offer 368

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REVIEWER IN REMEDIAL LAW Table of Contents

CIVIL PROCEDURE

Part 1: JURISDICTION 5 E. Summons 30

CIVIL PROCEDURE
I. Definition 5 F. Motions 31
II. Prescribed Jurisdiction 5 VI. Terminating the Action Before 34
III. Specific Jurisdiction 5 Trial 35
A. Supreme Court 5 A. Motion to Dismiss
B. Constitutional Commissions 7 B. Dismissal of Actions 35
C. Court of Appeals 7 C. Dismissal of Counterclaims/ 39
D. Regional Trial Courts 7 Cross-Claims/3rd-Party 40
E. Metropolitan, Municipal and 8 Complaints 40
Municipal Circuit Trial Court D. Defaults
F. Katarungang Pambarangay 9 E. Remedies of a Party Declared 40
In Default 42
Part 2: ORDINARY CIVIL ACTION 11 F. Judgment on the Pleadings
I. Preliminaries 11 G. Summary Judgments 43
A. Actions, In General 11 H. Partial Summary Judgment 43
B. Cause of Action 12 VII. Modes of Discovery 43
C. Requirements for a Person to 13 A. Depositions Under Rule 23 44
be a Party to a Civil Action B. Depositions Before Action 44
D. Parties to a Civil Action 14 Under Rule 24 46
E. Venue of Actions 18 C. Depositions Pending Appeal
II. Pleadings 19 Under Rule 24 47
A. Definition 19 D. Rule 23 Applies on the
B. Pleadings Allowed 19 Manner or Conduct of the 47
C. Parts of a Pleading 19 Deposition
D. Disciplinary Action on 20 E. Request for Admission Under 48
Counsel Regarding Pleadings Rule 26
E. Verification 20 F. Production or Inspection of 49
F. How a Pleading is Verified 20 Documents or Things
G. Certification of Non-Forum 20 G. Physical and Mental 49
Shopping (CNFS) Examination of a Party Under
H. Test to Determine WON There 20 Rule 28.
is Forum Shopping H. Consequences of Refusal 50
I. Effect of Submission of False 20 Under Rule 29
CNFS or Non-Submission of VIII. Pre-Trial 50
CNFS A. Notice of Pre-Trial 50
J. Effect of Wilful and Deliberate 20 B. Appearance of Parties C. Pre- 50
Forum Shopping Trial Brief 51
K. Different Pleadings 20 D. Record of Pre-Trial 51
III. Manner of Making Allegations 25 E. Calendar of Cases 51
A. In General 25 IX. Trial 52
B. Facts that may be Averred 25 A. Notice of Trial 52
Generally B. Adjournments and 52
C. Facts That must be Averred 25 Postponement
Particularly C. Subpoena 52
D. Three Ways of Making a 25 D. Conduct of Trial 53
Specific Denial E. General Order of Trial 53
IV. Acquisition of Jurisdiction 25 F. Agreed Statement of Facts 54
A. Filing and Service 25 G. Statement of the Judge 54
B. Papers Required to be Filed 25 H. Suspension of Actions 54
and Served I. Reception of Evidence 54
C. Proof of Filing 26 J. Trial by commissioner 54
D. Mode of Service 26 K. Consolidation and Severance 54
V. Amendment and Supplemental 26 L. Demurrer to Evidence 55
Pleadings 27 X. Judgements, Final Orders and 56
A. Amendment Entry of Judgment 56
B. Supplemental Pleadings 27 A. Parts of a Judgment 56
C. Bill of Particulars 28 B. Distinction between 56
D. Intervention 29 Judgment and Opinion of the

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REVIEWER IN REMEDIAL LAW Table of Contents
Court 56 Property Claimed by Third
C. Requisites of a Valid 56 Person
Judgment 56 M. Recovery Upon the Counter- 76

CIVIL PROCEDURE
D. Interpretation of the 58 Bond Disposition of Deposit/
Judgment 58 Attached Property After
E. Kinds of Judgment Judment
F. Amendments to Judgment 58 N. Improper Irregular or 76
G. Entry of Judgments and Final 58 Excessive Attachment
Orders 60 II. Preliminary Injunction 77
XI. Execution of Judgments 60 A. Definition 78
A. Execution as a Matter of Right B. Purpose 78
B. Discretionay Execution 62 C. Grounds 78
C. Execution of Judgments for D. Requirements 78
Money 63 E. Rule 58 Provides for both a 79
D. Execution of Judgments for Main Action for Injunction
Specific Acts 63 and an Ancillary Writ of
E. Execution of Special Preliminary Injunction
Judgments 68 III. Temporary Restraining Order 79
F. General Rules Governing (TRO)
Execution 68 A. Status Quo Order vs. 79
G. Effects of Judgments Or Final 69 Injunction
Orders B. Objection to/Motion for 80
XII. Summary Procedure 70 Dissolution of Injunction/
A. Scope 70 Restraining Order
B. Determination of Applicability 70 C. Global Injunction of a Foreign 80
C. The Only Pleadings Allowed 70 Court
D. Courty Duty 70 IV. Receivership 80
E. Answer 71 A. Nature 80
F. Effect of Failure to Answer 71 B. Appointment of Receiver 80
G. Preliminary Conference 71 V. Replevin 82
H. Record of Preliminary 71 A. Nature 82
Conference B. Requirements 82
I. Submission OF Affidavits and 71 C. Order of Replevin 82
Position Papers D. Disposition of Property by 83
J. Rendition of Judgment 71 Sheriff
K. Referral to Lupon 72 E. Where Property Claimed by 83
L. Prohibited Pleadings and 72 Third Person
Motions VI. Support Pende Lite 83
M. Affidavits 72 A. Nature 83
N. Appeal 72 B. Requirements 83
O. Applicability of the Regular 72 C. Verified Comment 84
Rules D. Hearing 84
E. Order of Support 84
Part 3: PROVISIONAL REMEDIES 73 F. Remedies of a Party Who Was 84
I. Preliminary Attachment 73 Erroneously Compelled to
A. Definition 73 Give Support
B. Purposes 73
C. Grounds 73 Part 4: SPECIAL CIVIL ACTIONS 85
D. Stages in the Grant of 74 I. Interpleader 85
Preliminary Attachment 74 1. Definition 85
E. Issuance and Contents of 74 2. Purpose 85
Order of Attachment 3. When Proper 85
F. Contents of Affidavit of 74 4. Procedure 85
Applicant II. Declaratory Relief 86
G. Condition of Applicants Bond 74 1. Requisites 86
H. Manner of Attaching Property 74 2. Who May File 87
I. Effects of Attachment 75 3. Parties 87
J. Sale of Attached Property 76 4. Where Filed 87
K. Discharge of Attachment 76 5. When Court may Refuse to 87
L. Proceedings Where Attached 76 Declare Rights/Construe

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REVIEWER IN REMEDIAL LAW Table of Contents
Instruments Part 5: REMEDIES AND APPEALS 109
6. Similar Remedies Covered BY 87 I. KINDS 109
Rule 63 A. Before Finality 109

CIVIL PROCEDURE
III. Review of Judgments and Final 87 B. After Finality 109
Orders or Resolutions of the II. RECONSIDERATION AND NEW 110
COMELEC and COA 87 TRIAL
A. Scope 87 A. Rules 110
B. Procedure 87 B. Motion for Reconsideration 111
IV. Certiorari, Prohibition and 89 C. Motion for New Trial 112
Mandamus III. APPEAL 113
A. Procedure 91 IV. MODES OF APPEAL 114
V. Quo Warranto 92 A. MTC to RTC 114
A. How Comenced 92 B. MTC to RTC to CA 114
B. By Whom/Against Whom 92 C. MTC to RTC to CA to SC 114
C. Contents of Petition 92 D. MTC to SC 116
D. Venue 92 E. RTC to CA 116
E. When Filed 93 F. RTC to CA to SC 117
F. Judgment 93 G. RTC to SC 117
VI. Expropriation 93 H. CA to SC 117
A. Concept and Basis of 93 I. QJA to CA 117
Expropriation J. QJA to CA to SC 118
B. Two Stages in Expropriation 93 K. QJA to SC 118
Proceedings V. RULES 118
C. Procedure 94 A. General Rule 118
VII. Foreclosure of Real Estate 96 1. Procedure in the CA 118
Mortgage 2. Procedure in the SC 126
A. Complaints Contents 96 B. Questions of Fact vs. 127
B. Judgment 96 Questions of Law
C. Disposition of the Proceeds of 97 C. Notice of Appeal 128
the Sale D. Record on Appeal 128
D. Deficiency Judgment 97 E. Perfection of Appeal 129
E. Registration 97 F. Period to Appeal 129
VIII. Partition 98 VI. SPECIAL TOPIC: REMEDIES 130
A. Complaint 99 FROM A VOID JUDGMENT
B. Venue 99
C. When to File 99 APPENDICES 132
D. Order of Partition 99 APPENDIX 1: Service of Summons 132
E. Partition by Agreement 99 upon Different Entities
F. Partition by Commissioners 100 APPENDIX 2: Subpoena Duces 133
G. Judgment 100 Tecum and Order for the Production
IX. Forcible Entry and Unlawful 101 or Inspection
Detainer APPENDIX 3: Consequences of 134
A. Actions for the Recovery of 101 Refusal under Rule 29
Possession of Real Property APPENDIX 4: Procedure for 136
B. Forcible Entry 102 Expropriation
C. Unlawful Detainer 102
D. Pleadings 103
E. Procedure 103
F. Preliminary Injunction 105
G. Matters not Constituting 105
Prejudicial Question to
Ejectment
X. Contempt 106
A. Definition 106

Page 4 of 370
REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction

Civil Procedure
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

CIVIL PROCEDURE
Prof. Theodore O. Te REMEDIAL LAW LECTURES
FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
CIVIL PROCEDURE --------
Samantha Poblacion Kae Guerrero
DIRECTOR FOR ACADEMICS Hermie Banayat-Nas
PRINTING AND DISTRIBUTION
EDITOR-IN-CHIEF Blanca Labay
LEAD WRITERS --------
Rania Joya Mike Rivera Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS LOGO, COVER AND TEMPLATE DESIGN
Res Rosario
LAYOUT HEAD
WRITERS

Part 1: Exception: Jurisdiction by estoppel.

Jurisdiction [Soliven v. Fastforms (2004)]
Rationale: To prohibit parties from
I. DEFINITION accepting judgments of court only if
II. PRESCRIBED JURISDICTION favorable to them.
III. SPECIFIC JURISDICTION Cannot be the subject of compromise
A. SUPREME COURT [Art. 2035, CC]
B. CONSTITUTIONAL COMMISSIONS Once attached to a court, cannot be
C. COURT OF APPEALS [SEC. 9, BP 129] ousted by subsequent statute.
D. REGIONAL TRIAL COURTS Exception: The statute itself conferring
E. METROPOLITAN, MUNICIPAL AN
new jurisdiction expressly provides for
MUNICIPAL CIRCUIT TRIAL COURT
F. KATARUNGANG PAMBARANGAY retroactive effect. [Southern Food v.
Salas (1992)]
The filing of the complaint or
I. DEFINITION
appropriate initiatory pleading and the
payment of the prescribed docket fee
Power of the court to hear an action or
vest a trial court with jurisdiction over
proceedings, and to render a judgment
the subject matter or the nature of the
thereon which will bind the parties to
action (Asked in the 2008 Bar Exam).
such action/proceeding. [Regalado]
Exception: The court may allow
Judicial power includes the duty of the
payment of the fee within a reasonable
courts of justice: [Art 8, Sec. 1, Consti]
time, but in no case beyond the
1) To settle actual controversies involving applicable prescriptive period. [IBP v.
rights which are legally demandable and Legasto (2006)]
enforceable;
2) To determine WON there has been a III.SPECIFIC JURISDICTION
grave abuse of discretion amounting to
lack or excess of jurisdiction on the part A. Supreme Court
of any government branch/
instrumentality. The judicial power shall be vested in
one SC and in such lower courts as may
II. PRESCRIBED JURISDICTION be established by law. [Art. 8, Sec. 1,
Consti]
Jurisdiction over a particular subject
matter. SCS POWERS [Art. 8, Sec. 5, Consti]
Conferred only by the Constitution or by 1. HAVE ORIGINAL JURISDICTION
law. OVER:
Determined by the allegations in the Cases affecting ambassadors
complaint. and other public ministers and
An error in jurisdiction can be raised at consuls;
any time and even for the first time on Petitions for certiorari,
appeal. [David v. Cordova (2005)] prohibition, mandamus, quo
Cannot be waived; Judgment warranto, and habeas corpus.
without jurisdiction is void.

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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
2. REVIEW/REVISE/REVERSE/MODI (The CAs findings are
FY/AFFIRM ON APPEAL OR contrary to the admissions of
CERTIORARI, FINAL both parties.

JUDGMENTS/ORDERS OF LOWER
COURTS ON:
Constitutionality/validity of any
treaty, international or executive
agreement, law, presidential
decree/proclamation/order/
instruction, ordinance
regulation;
Legality of any tax /impost
/assessment /toll, or
penalty imposed in relation
thereto;
Any lower courts jurisdiction;
3. CRIMINAL CASES WHERE THE
PENALTY IMPOSED IS RECLUSION
PERPETUA OR HIGHER;
4. ONLY ERRORS/QUESTIONS OF
LAW ARE INVOLVED.
Exception: [Josefa v. Zhandong
(2003)]
The conclusion is grounded
on
speculations/surmises/conje
ctures;
(The inference is manifestly
mistaken/absurd/impossible
;
(There is grave abuse of
discretion;
The judgment is based on a
misapprehension of facts;
The findings of fact are
conflicting;
(There is no citation of
specific
evidence on which the
factual
findings are based;
The finding of absence of
facts is
contradicted by the presence
of
evidence on record;
The CAs findings are
contrary to
those of the trial court;
The CA manifestly
overlooked certain relevant
and undisputed facts that, if
properly considered, would
justify a different conclusion;
The CAs findings are beyond
the issues of the case;
CIVIL PROCEDURE
Distinctions between Questions of Law
and Fact (Asked in the 2004 Bar Exam)
A question of law exists when the doubt
or controversy concerns the correct
or application of law or jurisprudence to a
certain set of facts;
or when the issue does not call for an
any examination of the probative value of
the evidence presented, the truth or
falsehood of facts being admitted.
A question of fact exists when the doubt
or query invites calibration of the whole
evidence considering mainly the
credibility of the witnesses, the
existence and relevancy of specific
surrounding circumstances, as well as
their relation to each other and to the
whole, and the probability of the
situation (Mendoza vs. Salinas, 2007).
5. TEMPORARILY ASSIGN JUDGES OF
LOWER COURTS TO OTHER STATIONS
AS PUBLIC INTEREST MAY REQUIRE,
WHICH SHALL NOT LAST 6 SIX
MONTHS WITHOUT THE CONSENT OF
THE JUDGE CONCERNED.
6. ORDER A CHANGE OF VENUE OR
PLACE OF TRIAL TO AVOID A
MISCARRIAGE OF JUSTICE.
7. PROMULGATE RULES ON:
Protection and enforcement of
constitutionalrights;
Pleading/practice/procedure in all
courts;
Admission to the practice of law;
The integrated bar;
e) Legal assistance to the under-
privileged.
Guidelines on the rules:
(1) Simplified and inexpensive
procedure
for the speedy disposition of cases;
(2) Uniform for all courts of the
same
grade;
(3) Not diminish/increase/modify
substantive rights.
8. APPOINT ALL JUDICIARY
OFFICIALS/EES IN ACCORDANCE
WITH THE CIVIL SERVICE LAW.

Page 6 of 370
REVIEWER IN REMEDIAL LAW
B. Constitutional Commissions
General rule: Decisions/orders/rulings
of constitutional commissions (CSC,
COMELEC and COA) may be brought to
the SC on certiorari by the aggrieved
party, within 30 days from receipt of
copy. [Art. 9-A, Sec. 7, Consti]
Exception: If otherwise provided by the
Constitution or by law.
CSC judgments/decisions/orders are
within the exclusive appellate
jurisdiction of the CA through Rule
43.[RA 7902]
CTA judgments/decisions are not
D. Regional Trial Courts
appealable by petition for review on
certiorari to the SC. [RA 9282]
1. EXCLUSIVE ORIGINAL JURISDICTION
C. Court of Appeals [SEC. 9, BP 129]
ORIGINAL JURISDICTION
Mandamus, prohibition, certiorari,
habeas corpus and quo warranto,
and auxiliary writs/processes,
WON in aid of its appellate
jurisdiction.
EXCLUSIVE ORIGINAL JURISDICTION
Annulment of RTC judgments.
EXCLUSIVE APPELLATE
JURISDICTION
Final judgments /decisions
/resolutions /orders/ awards of:
a. RTC;
b. 2)Quasi-judicial agencies
/instrumentalities/boards/commiss
ions including:
a. SEC;
b. Social Security Commission;
c. ECC;
d. CSC.
Exception: Those falling within the
SCs appellate jurisdiction of the
Supreme Court in accordance with:
a. The Constitution;
b. Labor Code;
c. BP 129;
d. Sec. 17, Par. 3(1) and Par.
4(4) of
e. the Judiciary Act of 1948.
St. Martins Funeral Home v. NLRC (1998)
Supposed appeals from the NLRC to the
SC are interpreted and hereby declared
to mean and refer to petitions for
certiorari under Rule 65.
All such petitions should henceforth be
initially filed in the CA in strict
observance of the doctrine on the
hierarchy of courts as the appropriate
forum for the relief desired.
Part 1: Jurisdiction
POWERS
1) Try cases;
2) Conduct hearings;
CIVIL PROCEDURE
Trials/hearings must be
continuous and must be
completed within 3 months,
unless extended by the Chief
Justice.
1) Receive evidence;
2) Any and all acts necessary to resolve
factual issues raised, including the
power to grant and conduct new
trials or further proceedings.
IN CIVIL CASES [SEC. 19, BP 129,
ASKED IN THE 2002 BAR
EXAMINATIONS)
Incapable of pecuniary estimation
(Asked in the 2000 Bar Exam);
If the action is primarily for the
recovery of a sum of money, the
claim is considered capable of
pecuniary estimation, and
jurisdiction over the action will
depend on the amount of the claim.
[RCPI v. CA (2002)]
If the basic issue is something other
than the right to recover a sum of
money, if the money claim is purely
incidental to, or a consequence of,
the principal relief sought, the
action is one where the subject of
the litigation may not be estimated
in terms of money. [Soliven v.
Fastforms (1992)]
1) If the thing sought to be deposited
or consigned is a sum of money, the
amount of the debt due is
determinable and capable of
pecuniary estimation. [Ascue v. CA
(1991)]
2) Action for support is incapable of
pecuniary estimation because the
court is asked to determine first
WON the plaintiff is indeed entitled
to support. [Baito v. Sarmiento
(1960)]
3) Action for specific performance is
incapable of pecuniary estimation.
[Manufacturers Distributors v. Yu
Siu Liong (1966)]
4) The jurisdiction of the respective
courts is determined by the value of
the demand and not the value of the
Page 7 of 370
REVIEWER IN REMEDIAL LAW
transaction out of which the
demand arose.
The alternative prayer for
specific performance is also of
the same value, for the
alternative prayer would not
have been made in the
complaint if one was more
valuable than the other.[Cruz v.
Tan (1950)]
5) Rescission is a counterpart of
specific performance therefore also
incapable of pecuniary estimation.
[Lapitan v. Scandia (1968)]
6) Action for declaration of nullity of a
deed of partition is incapable of
pecuniary estimation. [Russel v.
Vestil (1999)]
7) An action for expropriation is
incapable of pecuniary estimation.
[Bardillon v. Masili (2003)]
Title to, or possession of, real
property (or any interest therein) where
the propertys assessed value exceeds
P20K or P50K (for civil actions in Metro
Manila);
Exception: Forcible entry into and
unlawful detainer of
lands/buildings.
Admiralty and maritime jurisdiction
where the demand/claim exceeds
P300K or P400K (in Metro Manila);
Maritime and admiralty cases
involve trade and transactions in the
sea. Maritime jurisdiction includes
maritime tort. [Negre v. Cabahug
(1966)]
Probate (testate and intestate) where
the gross value of the estate exceeds
P300K or P400K (in Metro Manila);
Marriage contract and marital
relations;
2. GENERAL ORIGINAL JURISDICTION
All cases not within the exclusive
jurisdiction of any court /tribunal
/person/ body exercising judicial or
quasi-judicial functions;
Within the exclusive original jurisdiction
of a Juvenile and Domestic Relations
Court and of the Court of Agrarian
Relations;
All other cases where the demand
(exclusive of interest, damages of
whatever kind, attorney's fees,
Part 1: Jurisdiction
litigation expenses and costs) or the
value of the property in controversy
exceeds P300K or P400K in Metro
CIVIL PROCEDURE
Manila.
The exclusion of the term damages
of whatever kind in determining the
jurisdictional amount under Sec.
19(8) and Sec. 33 (1) of BP 129, as
amended by RA7691, applies to
cases where the damages are merely
incidental to or a consequence of the
main cause of action.
However, if the claim for damages is
the main cause of action, or one of
the causes of action, the amount of
such claim shall be considered in
determining the jurisdiction of the
court.[Admin Circ. 09-94]
Actions for damages based on quasi-
delicts are primarily and effectively
actions for the recovery of a sum of
money for the damages suffered
because of the defendants alleged
tortious acts.
This money claim is the principal
relief sought, and is not merely
incidental thereto or a consequence
thereof. [Iniego v. Purganan(2006)]
3. ORIGINAL JURISDICTION [SEC. 21, BP
129]
Certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction
which may be enforced in any part of
their respective regions;
Actions affecting ambassadors and
other public ministers and consuls.
4. APPELLATE JURISDICTION [SEC. 22,
BP 129]
All cases decided by
MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions.
Metropolitan, Municipal and Municipal
Circuit Trial Courts
E. Metropolitan, Municipal and
Municipal Circuit Trial Courts
(asked in the 2002 Bar Exam)
1. EXCLUSIVE ORIGINAL JURISDICTION
[SEC. 33, BP 129]
Civil actions and probate proceedings
(testate and intestate), including the
grant of provisional remedies, where the
value of the personal property, estate
or amount of the demand does not
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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
exceed P300K or P400K (in Metro F. Katarungang Pambarangay
Manila);
Interest, damages of whatever kind, Purpose: To reduce the number of court

CIVIL PROCEDURE
attorney's fees, litigation expenses litigations and prevent the deterioration
and costs shall be included in the of the quality of justice which has been
determination of the filing fees. brought about by the indiscriminate
filing of cases in the courts. [Lumbuan v.
If there are several claims or causes of Republic (2006)]
actions between the same/different
parties in the same complaint, the General rule: Authority to bring
amount of the demand shall be the together the parties actually residing in
totality of the claims in all the causes of the same city or municipality for
action, WON the causes of action arose amicable settlement of all disputes.
out of the same/different transactions. [Sec. 480, RA 7160]
Exceptions:
Forcible entry and unlawful detainer;
If one party is the government;
If the defendant raises the question
If one party is a public officer/EE
of ownership in his pleadings and
and
the question of possession cannot
the dispute relates to the
be resolved without deciding the
performance
issue of ownership,
of his official functions;
the issue of ownership shall be
resolved only to determine the issue Offenses punishable by
of possession. imprisonment exceeding 1 year or a
fine exceeding P5K;
That the MeTC has jurisdiction even
in cases where the issue of Offenses with no private offended
possession is closely intertwined party;
with the issue of ownership is now a Real properties located in different
settled doctrine in ejectment cities/municipalities;
proceedings. [Heirs of B. Hernandez o Exception to exception: Parties
v. Vergara (2006)] agree to submit their differences
to amicable settlement by an
All civil actions that involve title to, appropriate lupon.
or possession of, real property (or any Parties who actually reside in
interest therein) where the assessed barangays of different
value of the property (or interest cities/municipalities;
therein) does not exceed P20K or o Exception to exception: If such
P50K (in civil actions in Metro Manila). barangay units adjoin each
other and the parties agree to
2. DELEGATED JURISDICTION IN submit their differences to
CADASTRAL AND LAND amicable settlement by an
REGISTRATION CASES [SEC. 34, BP appropriate lupon.
129] Such disputes which the President
may determine in the interest of
Lots where there is no justice or upon the recommendation
controversy/opposition; of the Secretary of Justice.
Contested lots the value of which does
Venue [Sec. 409, RA 7160]
not exceed P100K.
The value is to be ascertained: Nature of Dispute Venue
o By the claimants affidavit; Disputes between Their barangay
o By agreement of the respective persons actually
claimants, if there are more than residing in the same
one; barangay
o From the corresponding tax Disputes between Barangay where the
declaration of the real property. actual esidents of respondent (or any of
different barangays the respondents)
MTC decisions in cadastral and land within the same actually resides, at
registration cases are appealable in city/municipality the complainant's
the same manner as RTC decisions. election

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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
Disputes on real Barangay where the o By any party, within 10 days
property real from the date of the settlement;
(or any interest therein) property (or the larger o By filing with the lupon
portion thereof) is

CIVIL PROCEDURE
chairperson a statement to that
situated
effect, sworn to before him;
Disputes arising at the Barangay where the
workplace or at the workplace or
o Where the consent is vitiated by
institution where the institution is fraud/violence/intimidation;
parties located o Where there is sufficient basis
are enrolled for the issuance of the
certification for filing a
Procedure For Amicable Settlement complaint.
[Sec. 410, Ra 7160] If a petition to nullify the award was
filed before the proper
1) Any individual who has a cause of city/municipal court.
action against another individual may
complain (orally or in writing) to the Execution [Sec. 417, RA 7160]
barangays lupon chairperson. By the lupon, within 6 months from
2) Within the next working day, the lupon the date of the settlement.
chairperson shall summon the After the lapse of the 6 months, by
respondents, with notice to the action in the appropriate
complainants, for them and their city/municipal court
witnesses to appear before him for
mediation. Note: In the 2006 Bar Exams, questions
3) If the mediation effort fails within 15 were asked on the following: (1) jurisdiction
days from the 1st meeting, he shall set of the Court of Tax Appeals En Banc in
a date for the constitution of the comparison with the Court of Tax Appeals
pangkat. Division, (2) the jurisdiction of the
4) While the dispute is under mediation, Ombudsman, and (3) cases handled by the
the prescriptive periods for offenses and Office of the Solicitor General. These areas
causes of action shall be interrupted are discussed in the proper subjects to
upon filing the complaint with the which they belong to namely Taxation and
punong barangay. Political Law.
5) Such interruption shall not exceed 60
days from the filing of the complaint
with the punong barangay.
6) The prescriptive periods shall resume
upon receipt by the complainant of the
complaint or the certificate of
repudiation or of the certification to file
action issued by the lupon or pangkat
secretary.
7) The pangkat shall arrive at a
settlement/resolution of the dispute
within 15 days from the day it
convenes, extendible for another period
which shall not exceed 15 days, except
in clearly meritorious cases.

Note: In the 1999 Bar Examination, a

question was asked on the distinctions
between conciliation proceedings in the
Katarungang Pambarangay and the Pre-
trial Conference.

Effect [Sec. 416, RA 7160]

General rule: Same as a courts final
judgment, upon the expiration of 10
days from the date thereof.
Exception: If the settlement was
repudiated:

Page 10 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

Part 2:
Ordinary Civil Action
Distinguished from cause of action

CIVIL PROCEDURE
I. PRELIMINARIES (Asked in the 1999 Bar Exam):
II. PLEADINGS A cause of action is the fact or
III. MANNER OF MAKING ALLEGATIONS combination of facts which affords a
IV. ACQUISITION OF JURSIDICTION party a right to judicial interference
V. AMENDMENT AND SUPPLEMENTAL in his behalf.
PLEADINGS An action means an ordinary suit in
VI. TERMINATING THE ACTION BEFORE a court of justice, by which one
TRIAL
party prosecutes another for the
VII. MODES OF DISCOVERY
VIII. PRE-TRIAL enforcement or protection of a right,
IX. TRIAL or the prosecution or redress of a
X. JUDGEMENTS, FINAL ORDERS AND wrong (Into vs. Valle, 2005).
ENTRY OF JUDGMENT
XI. EXECUTION OF JUDGMENTS 2. KINDS OF ACTIONS
XII. SUMMARY PROCEDURE
CRIMINAL ACTION One by which the
I. PRELIMINARIES State prosecutes a person for an
act/omission punishable by law. [Rule
A. ACTIONS, IN GENERAL 1, Sec. 3(b)]
B. CAUSE OF ACTION CIVIL ACTION One by which a party
C. REQUIREMENTS FOR A PERSON TO BE A prosecutes another for the
PARTY TO A CIVIL ACTION enforcement/protection of a right or the
D. PARTIES TO A CIVIL ACTION
prevention/redress of a wrong. [Rule 1,
E. VENUE OF ACTIONS
Sec. 3(a)]
A. Actions, In General Ordinary Governed by rules for
ordinary civil actions;
1. DEFINITION Special Subject to specific rules
but also governed by rules for
ACTION An ordinary suit in a court of ordinary civil actions. [Rule 1,
justice by which one party prosecutes Sec.3(a) par 2]
another for the enforcement/protection SPECIAL PROCEEDINGS One by
of a right or the prevention/redress of a which a party seeks to establish a
wrong (Santos vs. Vda. De Caparas, status, a right, or a particular fact.
1959).

Distinctions between Civil Actions and Special Proceedings

(Asked in the 1998 Bar Exam)
Action Special Proceeding
As to parties Involves 2 or more parties Involves at least 1 party or 2 or more
parties in proper cases
As to cause of action Involves a right and a violation of such May involve a right, but there need
right by the defendant which causes not be a violation of this right
some damage/prejudice upon the
plaintiff
As to formalities Requires the application of legal Requires no such formalities, as it
remedies in accordance with the may be granted upon application
prescribed rules

As to governing rules Ordinary rules of procedure Special rules of procedure

As to appeal from an Cannot be directly and immediately Can be immediately and directly
interlocutory appealed to the appellate court until appealed to the appellate court
order after final judgment on the merits

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3. CLASSIFICATION OF ACTIONS Every ordinary civil action must be
based on a cause of action [Rule 2, Sec.
As to nature: 1]

CIVIL PROCEDURE
Ordinary Civil Action Special Civil Action A cause of action stems from the
Governed by ordinary Also governed by sources of obligations under Art. 1156,
rules ordinary CC - Law, Contract, Quasi-contract,
rules but subject to Acts and omissions punishable by law
specifically prescribed and Quasi-delict. [Sagrada de Orden v.
rules Nacoco (1952)]
(Rules 62 to 71)
3. SPLITTING OF CAUSE OF ACTION
As to object: Definition: The act of dividing a single or
indivisible cause of action into several
Real action Personal Mixed action parts or claims and bringing several
action actions thereon. It is not allowed.
[Regalado] (Asked in the 1998 Bar Exam
Ownership or Personal Both real and
particularly its comparison with joinder
possession of property is personal
real property is sought to be properties are of causes of action)
involved recovered or involved A party may not institute more than one
damages for suit for a single cause of action. [Rule 2,
breach of Sec. 3]
contract are Purpose: [City of Bacolod v. SM Brewery
sought (1969)]
Action in rem Action in Action
Founded on Founded on Founded on personam quasi in rem
privity of real privity of both
estate contract Directed Directed Directed
Filed in the Filed in the The rules on against the against against
court where court where venue of real thing itself particular particular
the the actions govern persons persons
property (or plaintiff or Jurisdiction Jurisdiction Jurisdiction
any portion any over the over the over the
thereof) is of the person of person of the person of the
situated defendants the defendant defendant is defendant is
resides, at is not required required not required
the as long as
plaintiffs jurisdiction
option over the res is
acquired
As to place of filing: A proceeding An action to A proceeding
Local action Transitory action to determine impose to subject the
One that could be One that could be the state/ responsibility/ interest of a
instituted in one prosecuted in any one condition of a liability upon named
specific place of several places thing a person defendant
directly over a
particular
property to an
B. Cause of Action obligation/lien
burdening it
1. DEFINITION Judgment is Judgment is Judgment is
CAUSE OF ACTION The act/omission binding on the binding only binding upon
by which a party violates a right of whole world upon parties particular
another. [Rule 2, Sec. 2] impleaded or persons
their
successors
2. ELEMENTS OF A CAUSE OF ACTION
in interest
Plaintiffs legal right; Ex: Accion Ex: Action for Ex: Action for
Defendants correlative obligation to reivindicatoria; specific partition;
respect plaintiffs right; annulment of performance; action to
Defendants act/omission in marriage; action to foreclose real
violation of plaintiffs right [Mao naturalization recover money estate
Sugar Central v. Barrios (1947) proceedings or property mortgage
)(Asked in the 1997 Bar Exam). (real or
personal)

Page 12 of 370
REVIEWER IN REMEDIAL LAW
To prevent repeated litigation
between the same parties in regard
to the same subject or controversy;
To protect the defendant from
unnecessary vexation. Nemo debet
vexare pro una et eadem causa (No
man shall be twice vexed for one
and the same cause);
To avoid the costs and expenses
incident to numerous suits.
4. EFFECTS OF SPLITTING A CAUSE OF
ACTION [RULE 2, SEC. 4] (ASKED IN
THE 1999 AND 2005 BAR EXAMS)
a. Filing of the 1st complaint may be
pleaded in abatement of the 2nd
complaint, on the ground of litis
pendentia; or
b. A judgment upon the merits in any
of the complaints is available as
ground for dismissal of the others
based on res judicata.
c. A MTD under Rule 16 Sec. 1(e) or (f)
may be filed in order that the
complaint may be dismissed.
A single act/omission can be violative of
various rights at the same time, as
when the act constitutes juridically a
violation of several separate and distinct
legal obligations.
However, where there is only one
delict/wrong, there is but a single cause
of action regardless of the number of
rights that may have been violated
belonging to one person.
The singleness of a cause of action lies
in the singleness of the delict/wrong
violating the rights of a person. If only 1
injury resulted from several wrongful
acts, only 1 cause of action arises.
[Joseph v. Bautista (1989)]
For a single cause of action or violation
of a right, the plaintiff may be entitled
to several reliefs. It is the filing of
separate complaints for these several
reliefs that constitutes splitting up of
the cause of action which is proscribed
by Rule 2, Sec. 3 and 4. [City of Bacolod
v. SM Brewery (1969)]
5. JOINDER OF CAUSES OF ACTION
(ASKED IN THE 1998 BAR EXAM)
The joinder of causes of action in one
complaint promotes the policy on
avoiding multiplicity of suits.
The rule however is purely permissive
as the plaintiff can always file separate
actions for each cause of action
(Baldovir vs. Sarte, 36 Phil. 550)
Part 2: Ordinary Civil Action
6. REQUISITES FOR JOINDER OF
CAUSES OF ACTION [RULE 2, SEC. 5]
a. The party joining the causes of
CIVIL PROCEDURE
action must comply with the rules
on joinder of parties;
b. The joinder shall not include special
civil actions or actions governed by
special rules;
c. Where causes of action are between
the same parties but pertain to
different venues/jurisdictions, the
joinder may be allowed in the RTC
provided one of the causes of action
are within the RTCs jurisdiction
and the venue lies therein;
TOTALITY RULE - Where the claims in
all the causes of action are principally
for recovery of money, the aggregate
amount claimed shall be the test of
jurisdiction.
7. MISJOINDER OF CAUSES OF ACTIONS
[RULE 2, SEC. 6]
Misjoinder of causes of action is not a
ground for dismissal of an action.
A misjoined cause of action may, on
motion or motu propio, be severed and
proceeded with separately.
There is no sanction against non-
joinder of separate causes of action
since a plaintiff needs only a single
cause of action to maintain an action
(Regalado).
C. Requirements for A Person to Be a
Party to a Civil Action
1. HE MUST BE EITHER:
A natural person;
A juridical person; or
An entity authorized by law.
The estate of a deceased person
[Limjoco vs. Intestate Estate of
Fragante (1948)] ;
(A political party incorporated under
Act 1459 [now BP 68 (Corporation
Code)];
A registered labor union [Sec. 243,
PD 442 (Labor Code)], with respect
to its property;.
The Roman Catholic Church has
legal capacity to sue. [Barlin v.
Ramirez (1906)].
2. HE MUST HAVE THE LEGAL CAPACITY
TO SUE;
Page 13 of 370
REVIEWER IN REMEDIAL LAW
3. HE MUST BE THE REAL PARTY IN
INTEREST.
[Berman v. Cheng (2005)]
The rule is that only natural or juridical
persons or entities authorized by law
may be parties in a civil case.
A sole proprietorship is not vested with
juridical personality and cannot sue or
file or defend an action.
There is no law authorizing sole
proprietorship to file a suit.
A sole proprietorship does not possess a
judicial personality separate and
distinct from the personality of the
owner of the enterprise.
[Rimbunan v. Oriental (2005)]
An unlicensed foreign corporation is
nonetheless permitted to bring suit in
the Philippines if it is suing on an
isolated transaction.
Thus, the ascertainment of whether a
foreign corporation is merely suing on
an isolated transaction or is actually
doing business in the Philippines
requires the elicitation of at least a
preponderant set of facts.
Note: A foreign corporation may be party to
an action in Philippine courts:
1) If licensed to engage in business in the
2) Philippines, it may sue or be sued in
3) our courts;
4) If not licensed, it cannot sue, but it
5) may be sued in our courts;
6) If not engaged in business in the
7) Philippines, it may sue in courts on a
single isolated transaction, but it
cannot be sued in our courts on such
transaction.
Lack of legal capacity to Lack of legal
sue personality to sue
The plaintiffs general The plaintiff is not
disability to sue, such as the real party in
on account of minority, interest
insanity, incompetence,
lack of juridical
personality or any other
general
disqualifications
It can be a ground for a It can be used as
MTD [Rule 16 (1) (d)] ground for a MTD
based on the failure
of complaint
state a cause of
action. [Rule 16 (1)
(g)]
Part 2: Ordinary Civil Action
D. Parties to a Civil Action
PLAINTIFF One having interest in the
CIVIL PROCEDURE
matter of the action or in obtaining the
relief demanded.
DEFENDANT One claiming an interest
in the controversy or the subject thereof
adverse to the plaintiff. The term may
also include [Rule 3, Sec 1):
UNWILING CO-PLAINTIFF A party
who should be joined as plaintiff but
whose consent cannot be obtained.
He may be made a defendant and
the reason therefore shall be stated
in the complaint. [Rule 3, Sec. 10]
The original plaintiff becoming a
defendant to the original defendants
counterclaim [Rule 3, Sec 1];
1. CLASSIFICATION OF PARTIES
REAL PARTY IN INTEREST - [Rule 3,
Sec. 2]
a. The party who stands to be
benefited/injured by the judgment
in the suit;
b. The party entitled to the avails of
the suit.
The partys interest must be direct,
substantial and material [Sumalo v.
Litton (2006)].
Husband and wife shall sue and be
sued jointly, except as provided by
law [Rule 3, Sec. 4]
A minor or a person alleged to be
incompetent may sue or be sued,
with the assistance of his father,
mother, guardian, or if he has none,
a guardian ad litem. [Rule 3, Sec. 5]
REPRESENTATIVE PARTY [Rule 3,
Sec. 3]
Those acting in fiduciary capacity,
such as a
trustee/guardian/executor/administ
rator or a party authorized by law or
ROC.
The beneficiary shall be included in
the title of the case and shall be
deemed to be the real party in
interest.
An agent acting in his own name and
to for the benefit of an undisclosed
principal may sue or be sued without
joining the principal.
Exception: If the contract
involves things belonging to the
principal. [Art. 1883, CC]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
2. KINDS OF PARTIES IN INTEREST is deemed a waiver of the claim
against such party. [Rule 3, Sec. 9]
Indispensable parties Necessary parties Minors (represented by their parents)

CIVIL PROCEDURE
[Rule 3, Sec. 7] [Rule 3, Sec. 8] are real parties in interest under the
Must be joined under Should be joined principle of intergenerational
any and all whenever possible; responsibility. [Oposa v. Factoran ()]
conditions, his the action can
presence being a sine proceed even in their
qua non for the absence Note: This doctrine is inconsistent with
exercise of judicial Rule 3, Sec. 1 which provides that only
power natural or juridical persons may be
No valid judgment if The case may be parties in a civil action.
indispensable party is determined in court
not joined. but the judgment 3. KINDS OF JOINDERS OF PARTIES
therein will not
resolve the entire Compulsory joinder of indispensable
controversy if a
parties; [Rule 3, Sec. 7]
necessary party is
not joined Permissive joinder of:
They are those with They are those necessary parties; [Rule 3, Sec. 8]
such an interest in the whose presence is on a common question of law or
controversy that a necessary to fact; [Rule 3, Sec. 6]
final decree would adjudicate the whole Class suit. [Rule 3, Sec. 12]
necessarily affect their controversy but Alternative defendants; [Rule 3, Sec. 13]
rights so that the whose interests are
court cannot proceed so far separable that
a. PERMISSIVE JOINDER [Rule 3, Sec. 6]
without their a final decree can be
presence. made in their
Parties can be joined, as plaintiffs or
absence without defendants, in one single complaint or
affecting them. may themselves maintain or be sued in
separate suits.
Rule 3, Sec. 2 requires that an action Requisites:
must be brought in the name of, but not 1) Right to relief arises out of the same
necessarily by, the real party in interest. transaction or series of transactions;
In fact, the practice is for an attorney- SERIES OF TRANSACTIONS
in-fact to bring an action. [Tuason v. Transactions connected with the
Bolanos] same subject matter of the suit.
Neither misjoinder nor non-joinder of 2) There is a question of law or fact
parties is ground for dismissal of the common to all the plaintiffs or
action. [Rule 3, Sec. 11] defendants;
Non-joinder of an indispensable party is 3) Such joinder is not otherwise
not a ground for outright dismissal. proscribed by the rules on
Reasonable opportunity must be given jurisdiction and venue.
for his inclusion by amendment of the
complaint[Cortez v Avila (1957)]. b. CLASS SUIT [RULE 3, SEC. 12]
Objections to defects in parties should Requisites
be made at the earliest opportunity. 1) Subject matter of the controversy is
The moment such defect becomes one of common/general interest to
apparent, a motion to strike the names many persons;
of the parties must be made. 2) The persons are so numerous that it
Objections to misjoinder cannot be is impracticable to join them all as
raised for the first time on appeal. parties (i.e. impracticable to bring
If a necessary party is not joined, the them all before the court);
pleading shall set forth his name (if 3) Parties bringing the class suit are
known) and shall state reason why he is sufficiently numerous and
omitted. representative of the class and can
If court finds the reason for the fully protect the interests of all
omission unmeritorious, it may concerned;
order the inclusion of the omitted 4) The representative sues/defends for
necessary party if jurisdiction over the benefit of all.
his person may be obtained. If a class suit is improperly brought, the
Failure to comply with the order for action is subject to dismissal regardless
inclusion, without justifiable cause,

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
of the cause of action [Rule 16, Sec 1 4. UNKNOWN IDENTITY OR NAME OF
(d)]. DEFENDANT [RULE 3, SEC. 13]
A taxpayer's suit or a stockholder's

CIVIL PROCEDURE
derivative suit is in the nature of a class Rules and requisites:
suit, although subject to the other a. There is a defendant;
requisites of the corresponding b. His identity or name is unknown;
governing law especially on the issue of c. A fictitious name may be used
locus standi. [Regalado] because of ignorance of defendant's
In a class suit, any party in interest true name and said ignorance is
shall have the right to intervene to alleged in the complaint;
protect his individual interest. d. An identifying description may be
used (e.g. as unknown
Class Suit Permissive Joinder of owner/heir/devisee);
Parties e. Pleading is amended when the
There is a single cause There are multiple identity or true name is discovered;
of action pertaining to causes of action
f. The unknown defendant is the
numerous persons. separately belonging to
several persons.
defendant being sued, not a mere
additional defendant.
CLASS SUIT AND DERIVATIVE SUIT, Service of summons upon a defendant
COMPARED whose identity is unknown may be
(Asked in the 2005 Bar Examination) made by publication in a newspaper of
CLASS SUIT DERIVATIVE SUIT general circulation in accordance with
When the subject An action brought Rule 14, Sec. 14.
matter of the by minority
controversy is one of shareholders in 5. ENTITY WITHOUT JURIDICAL
common or general the name of the
PERSONALITY AS DEFENDANT [RULE
interest to many corporation to
persons, and the redress wrongs
3, SEC. 15]
parties are so committed against
numerous that it is it, for which the Requisites:
impracticable to bring directors refuse to a. There are 2 or more persons not
them all before the sue. organized as a juridical entity;
court, one or more It is a remedy b. They enter into a transaction;
may sue or defend for designed by equity c. A wrong is committed against a 3rd
the benefit of all. (Rule and has been the person in the course of such
3.12) principal defense
transaction.
of the minority
shareholders Persons associated in an entity without
against abuses by juridical personality may be sued under
the majority. the name by which they are
In a derivative generally/commonly known, but they
action, the real cannot sue under such name.
party in interest is The service of summons may be effected
the corporation upon all the defendants by serving upon
itself, not the any of them, or upon the person in
shareholders who
charge of the office or place of business
actually instituted
it (Lim vs. Lim Yu maintained under such name. [Rule 14,
2001) Sec. 8]

c. Alternative Defendants [Rule 3, Sec. 13] 6. SUBSTITUTION OF PARTIES

Where the plaintiff is uncertain against
whom of several persons he is entitled
to relief,
he may join any or all of them in the
alternative, although a right to relief
against one may be inconsistent with a
right to relief against the other.
Death of a party, where the claim is not
extinguished by the death of the party
(e.g. cases involving property and
property rights); [Rule 3, Sec. 16] (Asked
in the 1998 and 1999 Bar Exams)
In this case, the heirs will be
substituted for the deceased or if no
legal representative is named, the
court will order the opposing party to
procure the appointment of an
executor or administrator for the
estate.

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REVIEWER IN REMEDIAL LAW
In case of minor heirs, the court
may appoint a guardian ad litem for
them.
The substitute defendant need not
be summoned. The order of
substitution shall be served upon
the parties substituted for the court
to acquire jurisdiction over the
substitute party.
When a party to a pending action
dies and the claim is not
extinguished, it is the counsels
duty to:
a) Inform court within 30 days
after such death of the fact
thereof;
b) Give the name and address of
the legal representatives.
Failure to comply with this duty is a
ground for disciplinary action.
Death or separation of a party who is a
public officer; [Rule 3, Sec. 17]
Requisites:
a) Public officer is a party to an
action in his official capacity;
b) During the pendency of the
action, he either dies/resigns or
otherwise ceases to hold office;
c) It is satisfactorily shown to the
court by any party, within 30
days after the successor takes
office, that there is a substantial
need to continue/maintain the
action;
d) The successor adopts/continues
(or threatens to do so) his
predecessors action;
e) The party or officer affected was
given reasonable notice of the
application therefore and
accorded an opportunity to be
heard.
Incompetency/incapacity; [Rule 3, Sec.
18]
If a party becomes incompetent/
incapacitated during the pendency
of the action, the action survives
and may be continued by/against
the incompetent/ incapacitated
assisted by his legal guardian or
guardian ad litem.
Transfer of interest during the pendency
of the action. [Rule 3, Sec. 18]
General rule: The rule does not
consider the transferee an
indispensable party. Hence, the
action may proceed without the
need to implead him.
Part 2: Ordinary Civil Action
Exception: When the substitution
by or joinder of the transferee is
ordered by court.
CIVIL PROCEDURE
o The case will be dismissed if the
plaintiffs interest is transferred
to defendant
o unless there are several
plaintiffs, in which case the
remaining plaintiffs can
proceed with their own cause of
action.
7. ACTION ON CONTRACTUAL MONEY
CLAIMS [RULE 3, SEC. 20]
Requisites:
1) The action must primarily be for
recovery of money/debt or interest
thereon;
2) The claim arose from
express/implied contract;
3) Defendant dies before the entry of
final judgment in the court in which
the action was pending.
The defendants death will not result in
the dismissal of the action.
The deceased shall be substituted by
his legal representatives in the manner
provided for in Rule 3, Sec. 16, and the
action will continue until the entry of
final judgment (Asked in the 2000 Bar
Exam)
However, execution shall not issue in
favor of the winning plaintiff. It should
be filed as a claim against the
decedents estate without need of
proving the claim.
8. INDIGENT PARTY [RULE 3, SEC. 21]
INDIGENT One who has no money or
property sufficient and available for
food, shelter and basic necessities. He
need not be a pauper to entitle him to
litigate in forma pauperis.
While the authority to litigate as an
indigent party may be granted upon an
ex parte application and hearing, it may
be contested by the adverse party at any
time before judgment is rendered.
If one is authorized to litigate as an
indigent, the authority shall include an
exemption from:
1) Payment of docket fees;
2) Payment of TSN.
The amount of docket and other lawful
fees is a lien on any judgment rendered
in favor of indigent party, unless court
otherwise provides.
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REVIEWER IN REMEDIAL LAW
9. NOTICE TO THE SOLICITOR GENERAL
[RULE 3, SEC. 21]
The court may require appearance of
the OSG in actions involving validity of
any treaty, law, ordinance, EO, PD,
rules or regulations.
E. Venue of Actions
1. DEFINITION
VENUE Place of trial or geographical
location in which an action/proceeding
should be brought.
Distinctions between Venue and Jurisdiction
(Asked in the 2006 and 2008 Bar Exams)
Place where the action Power of the court to
is instituted hear and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature
of the action is
conferred by law and
cannot-be waived
Procedural Substantive
May be changed by Cannot be the subject
the written agreement of the agreement of the
of the parties parties
2. PROPER VENUES
a. Real actions Where the real property
(or any portion thereof) is located. [Rule
4, Sec. 1] (Asked in the 2006 Bar Exams,
compare with Personal Actions)
If the property is located at the
boundaries of 2 places, file the case in
either place (at the plaintiffs option).
If the case involves 2 properties located
in 2 different places:
If the properties are the object of the
same transaction, file it in any of the
2 places;
If they are the objects of 2 distinct
transactions, separate actions
should be filed in each place unless
properly joined.
b. Personal actions At the plaintiffs
election: [Rule 4, Sec. 2] (Asked in the
1997 bar Exam)
Where the plaintiff or any of the
principal plaintiffs resides;
Where the defendant or any of the
principal defendants resides;
In case of a non-resident-defendant,
where he may be found.
Part 2: Ordinary Civil Action
c. Actions against non-residents
Non-resident found in the
Philippines
CIVIL PROCEDURE
(1) For personal actions Where
the plaintiff resides;
(2) For real actions Where the
property is located.
Non-resident not found in the
Philippines An action may be filed
only when the case involves:
(1) Personal status of plaintiff -
Where plaintiff resides;
(2) Any property of said defendant
located in the Phil. - Where the
property (or any portion thereof)
is situated/found.
Actions in personam/in rem refers to
the binding effect of the judgment.
Real/personal action, on the other hand
refers to venue.
Where several/alternative reliefs are
prayed for in the complaint, the nature
of the action as real or personal is
determined by the primary object of the
suit or by the nature of the principal
claim.
Thus, where the purpose is to nullify
the title to real property, the venue of
the action is in the province where the
property lies, notwithstanding the
alternative relief sought, recovery of
damages, which is predicated upon a
declaration of nullity of the title.
The venue of an action for review of an
administrative decision regarding real
property is the court of the province
where the officer who rendered the
decision holds office, and not the
province where his real property is
situated.[Salud v. Exec Secretary (1969)]
The Court may not motu propio dismiss
an action on the ground of improper
venue. [Dacoycoy v. IAC (1991)]
Exception: In summary
procedures.
The SC has the power to change the
venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti]
3. WAIVER OF VENUE
Until and unless the defendant objects
to the venue in a motion to dismiss
prior to a responsive pleading, the
venue cannot truly be said to have been
improperly laid
since for all intents and purposes, the
venue though technically wrong may yet
be considered acceptable to the parties
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
for whose convenience the rules on II. PLEADINGS
venue had been devised.
Although venue is mandatory, it is A. DEFINITION

CIVIL PROCEDURE
waivable. [Diaz v. Adiong (1993)] B. PLEADINGS ALLOWED
C. PARTS OF A PLEADING
4. MEANS OF WAIVING VENUE D. DISCIPLINARY ACTION ON COUNSEL
1) Where parties validly agreed in writing REGARDING PLEADINGS
E. VERIFICATION
before the filing of the action on the
F. HOW A PLEADING IS VERIFIED
exclusive venue thereof [Rule 4, Sec 4 G. CERTIFICATION OF NON-FORUM
(b)]; and SHOPPING (CNFS)
2) Failure to raise improper venue as H. TEST TO DETERMINE WON THERE IS
affirmative defense or in motion to FORUM SHOPPING
dismiss I. EFFECT OF SUBMISSION OF FALSE CNFS
OR NON-SUBMISSION OF CNFS
The court may declare agreements on J. EFFECT OF WILFUL AND DELIBERATE
venue as contrary to public policy if FORUM SHOPPING
K. DIFFERENT PLEADINGS
such stipulation unjustly denies a party
fair opportunity to file a suit in the
place designated by the Rules. A. Definition
[Regalado]
In Sweet Lines, Inc v. Teves, 1978, the They are the written statements of the
Court declared void and unenforceable respective claims and defenses of the
the agreement on exclusive venue parties, submitted to the court for
imprinted on passage tickets due to the appropriate judgment [Rule 6, Sec. 1]
state of the shipping industry which
could not provide enough Pleading Motion
accommodations for plaintiffs. Purpose: To submit a Purpose: To apply for
claim/defense for an order not included
[Regalado]
appropriate judgment in the judgment
The agreement of parties must be
restrictive and not permissive [Regalado]
May be initiatory Cannot be initiatory
5. INAPPLICABILITY OF THE RULE ON as they are always
made in a case
VENUE [RULE 4, SEC. 4]
already filed in court.
If a specific rule/law provides otherwise Always filed before May be filed even after
(e.g. action for damages arising from judgment judgment
libel);
If the parties have validly agreed in B. Pleadings Allowed [Rule 6, Sec. 2]
writing, before the filing of the action, 1) Complaint;
on the exclusive venue thereof. 2) Counterclaim;
In the absence of qualifying 3) Cross-claim;
restrictive words (e.g. 4) 3rd-party Complaint,
only/solely/exclusively in such 5) Complaint-in-intervention;
court), venue stipulation is merely 6) Answer;
permissive; 7) Reply;
that is, the stipulated venue is in 8) Counter-counterclaim;
addition to the venue provided for in 9) Counter-crossclaim.
the rules. [Polytrade Corp. v. Blanco
(1969)] PARTS OF A PLEADING [RULE 7]
CAPTION Courts name, actions title
(i.e. parties names) and docket number.
BODY Pleadings designation,
allegations of party's claims/defenses,
relief prayed for and pleadings date.
Paragraphs must be numbered, and
each paragraph number must
contain a single set of
circumstances

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REVIEWER IN REMEDIAL LAW
Headings: if more than one cause of
action, use "1st cause of action,"
2nd cause of action," etc.
Specify relief sought, but it may add
a general prayer for such
further/other relief as may be
deemed just/equitable.
Every pleading shall be dated.
Pleading must be signed by the
party/counsel. State address (not PO
box) in either case.
Counsels signature is a certification
that:
a) He has read the pleading;
b) To the best of his knowledge,
information and belief there is
good ground to support it;
c) It is not interposed for delay.
An unsigned pleading produces no
legal effect.
However, the court may allow such
deficiency to be remedied if it shall
appear that the same was due to
inadvertence and not intended for
delay.
DISCIPLINARY ACTION ON COUNSEL
REGARDING PLEADINGS
Deliberately filing an unsigned
pleading;
Deliberately signing a pleading in
violation of the Rules;
Alleging scandalous/Indecent
matter in the pleading;
Failing to promptly report a change
of his address.
VERIFICATION [RULE 7, SEC. 4]
Pleadings need not be verified, unless
otherwise provided by the law/rules.
HOW A PLEADING IS VERIFIED
By an affidavit that:
That the affiant read the pleading;
That the allegations therein are true
and correct of his personal
knowledge or based on authentic
documents.
CERTIFICATION OF NON-FORUM
SHOPPING (CNFS) [RULE 7, SEC. 5]
Definition: The filing of multiple suits
in different courts, simultaneously or
successively, involving the same parties,
to ask the courts to rule on the
same/related causes and/or to grant
the same or substantially the same
relief. [T'Boli Agro-Industrial
Part 2: Ordinary Civil Action
Development, Inc. (TADI) v. Solidapsi
(2002)] (Asked in the 2006 Bar Exam).
CIVIL PROCEDURE
TEST TO DETERMINE WON THERE IS
FORUM SHOPPING (ASKED IN THE
2002 BAR EXAM)
WON in the 2 or more cases pending,
there is identity of:
1) Parties;
2) Rights or causes of action;
3) Relief sought.
CNFS is to be executed by the
petitioner, not by the counsel.
CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
CNFS is not required in a
compulsory counterclaim. A
counterclaim is not an initiatory
pleading. [UST Hospital v. Surla]
Failure to comply is not curable by mere
amendment of the pleading but shall be
cause for the dismissal of the case,
without prejudice and upon motion and
after hearing, unless otherwise
provided.
4)
EFFECT OF SUBMISSION OF FALSE
CNFS OR NON-SUBMISSION OF CNFS
Indirect contempt;
Administrative and criminal actions.
EFFECT OF WILFUL AND
DELIBERATE FORUM SHOPPING
(Asked in the 2006 and 2007 Bar Exams)
Ground for summary dismissal of the
case with prejudice;
Direct contempt and administrative
sanctions.
Pleadings as well as remedial laws
should be liberally construed
in order that the litigant may have
ample opportunity to prove their
respective claims, and possible
denial of substantial justice, due to
technicalities, may be avoided.
[Gerales v. CA (1993)]
DIFFERENT PLEADINGS
COMPLAINT [Rule 6, Sec. 3]
Definition: The pleading alleging the
plaintiffs cause/s of action. It should
contain a concise statement of the
ultimate facts constituting the plaintiffs
cause/s of action, not evidentiary facts
or legal conclusions.
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REVIEWER IN REMEDIAL LAW
It shall contain:
in a methodical and logical form
a plain, concise and direct
statement of ultimate facts on which
the plaintiff relies for his claim,
omitting statement of mere
evidentiary facts.
Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared
to meet the issues at trial.
It should inform the defendant of all
material facts on which the plaintiff
relies to support his demand.
It should state the theory of a cause of
action which forms the bases of
plaintiffs claim of liability. [Tantuico v.
Republic (1991)]
ULTIMATE FACTS Essential facts
constituting the plaintiffs cause of
action. A fact is essential if it cannot be
stricken out without leaving the
statement of the cause of action
insufficient. [Remitere v. Montinola
(1966)]
Not ultimate facts:
Evidentiary or immaterial facts;
Legal conclusions, conclusions or
inferences of facts from facts not
stated, or incorrect inferences or
conclusions from facts stated;
Conclusions of law alleged in the
complaint are not binding on the
court.
The details of probative matter or
particulars of evidence, statements
of law, inferences and arguments.
TEST OF SUFFICIENCY OF THE FACTS
ALLEGED IN THE COMPLAINT
WON upon the averment of facts, a
valid judgment may be properly
rendered [Pamintan v. Costales
(1914)].
ANSWER [RULE 6, SEC. 4]
Definition: The pleading where the
defendant sets forth his
affirmative/negative defenses. It may
also be the response to a counterclaim
or a cross-claim.
1. TWO KINDS OF DEFENSES THAT MAY
BE SET FORTH IN THE ANSWER:
[RULE 6, SEC 5]
a. AFFIRMATIVE DEFENSES
Allegations of new matters which,
while hypothetically admitting the
material allegations in the
claimants pleading, would
Part 2: Ordinary Civil Action
nevertheless prevent/bar recovery
by him. It includes fraud,
prescription, release, payment and
CIVIL PROCEDURE
any other matter by way of
confession and avoidance.
b. NEGATIVE DEFENSES Specific
denials of the material facts alleged
in the pleading of the claimant
essential to his cause of action.
2. KINDS OF DENIAL (ASKED IN THE
2004 BAR EXAM):
a. SPECIFIC DENIAL Specifies each
material allegation of fact the truth
of which he does not admit, and sets
forth the substance of the matters
upon which he relies to support his
denial.[Rule 8, Sec10]
b. DENIAL WITH QUALIFICATION -
Specifies so much of it as is true
and material, and deny the
remainder.
c. SPECIFIC DENIAL FOR LACK OF
KNOWLEDGE/INFORMATION
sufficient to form as belief as to the
truth of a material averment made
in the complaint.
d. SPECIFIC DENIAL UNDER OATH -
Contests the authenticity or due
execution of an actionable
document. [Rule 8, Sec 8]
3. ACTIONABLE DOCUMENT
A document which is really the basis of
the cause of action (or defense), and not
merely evidentiary thereof. [Rule 8, Sec
7]
Genuineness and due execution of an
actionable instrument shall be deemed
admitted unless the adverse party,
under oath, specifically denies them,
and sets forth what he claims to be the
facts. [Rule 8, Sec. 8]
Exception: the adverse party does not
appear to be a party to the instrument.
[Donato v. CA (1993)]
How an action or defense may be based
on a document:
a. By copying a substantial portion of
the document into the pleading;
b. By annexing /incorporating the
document into the pleading;
c. By both copying and annexing
document into the pleading.
4. NEGATIVE PREGNANT DENIAL
PREGNANT WITH AN ADMISSION
It is a denial pregnant with the
admission of the substantial facts in the
pleading responded to which are not
squarely denied.
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REVIEWER IN REMEDIAL LAW
It is in effect an admission of the
averment it is directed to. [Philamgen v.
Sweet Lines (1993)]
5. INSUFFICIENT DENIALS OR DENIALS
AMOUNTING TO ADMISSIONS
General denial;
Negative pregnant.
6. WAIVER OF DEFENSES
Defenses and objections not pleaded
either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
Exception:
LOJ over the subject matter;
Litis pendentia;
Res judicata;
Prescription
COUNTERCLAIM [RULE 6, SEC. 6]
Definition: Any claim which
defending party may have against an
opposing party.
A counterclaim is in the nature of a
cross-complaint. Although it may be
alleged in the answer, it is not part
of the answer.
Upon its filing, the same
proceedings are had as in the
original complaint.
For this reason, it must be answered
10 days from service (Asked in the
2002 and 2008 Bar Exams).
How to raise counterclaims
Included in the answer: [Rule 11,
Sec. 8]
A compulsory counterclaim or a
cross-claim that a defending party
has at the time he files his answer
shall be contained therein.
Exception: Pleadings may
amended under Rule 11, Sec. 10:
a) By leave of court;
b) Before judgment;
c) On the grounds of:
(1) Oversight;
(2) Inadvertence;
(3) Excusable neglect;
(4) When justice requires.
After the answer: [Rule 11, Sec. 9]
Counterclaims/cross-claims arising
after the answer,
with the courts permission,
may be presented as
counterclaim/cross-claim
supplemental pleading before
judgment.
Part 2: Ordinary Civil Action
1. RULES ON COUNTERCLAIMS
In an original action before the RTC, the
counterclaim may be considered
CIVIL PROCEDURE
compulsory regardless of the amount.
[Rule 6, Sec. 7]
In the case of Agustin v. Bacalan, if a
counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived.
But in Calo v. Ajax, the remedy where a
counterclaim is beyond the jurisdiction
of the MTC is to set off the claims and
file a separate action to collect the
balance.
2. KINDS OF COUNTERCLAIMS
Compulsory Permissive
counterclaim counterclaim
One which arises out It does not arise out of
of or is necessarily nor is it necessarily
a connected with the connected with the
transaction or subject matter of the
occurrence -that is opposing party's
the subject matter of claim.
the opposing party's
claim.
Does not require for May require for its
its adjudication the adjudication the
presence of third presence of third
parties of whom the parties over whom the
court cannot acquire court cannot acquire
jurisdiction. jurisdiction.
Barred if not set up in Not barred even if not
the action. set up in the action.
Need not be answered; Must be answered,
no default. otherwise, the
defendant can be
declared in default.
A permissive counterclaim requires the
payment of docket fees. [Sun Insurance
v. Asuncion]
A plaintiff who fails or chooses not to
be answer a compulsory counterclaim may
not be declared in default, principally
because the issues raised in the
counterclaim are deemed automatically
joined by the allegations in the
complaint. [Gojo v. Goyala]
3. REQUISITES OF A COMPULSORY
COUNTERCLAIM [RULE 6, SEC 7]
(ASKED IN THE 1998 BAR EXAM)
a. It must arise out of, or be
necessarily connected with, the
transaction/occurrence that is the
a subject matter of the opposing
by party's claim;
b. It does not require for its
adjudication the presence of 3rd
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
parties of whom the court cannot General Rule - A compulsory
acquire jurisdiction; counterclaim not set up is considered
c. It must be within the courts barred. [Rule 9, Sec. 2]

CIVIL PROCEDURE
jurisdiction both as to the amount Exception If due to oversight,
and the nature. inadvertence, excusable neglect, etc. the
compulsory counterclaim, with leave of
General rule: A compulsory court, may be set up by amendment
counterclaim not set up in the answer is before judgment. [Rule 11, Sec. 10]
deemed barred.
Exception: If it is a counterclaim which CROSS-CLAIM [Rule 6, Sec. 8]
either matured or was acquired by a
party after serving his answer. In this 1. REQUISITES FOR A CROSS-CLAIM
case, it may be pleaded by filing a a. A claim by one party against a co-
supplemental answer or pleading before party;
judgment. [Rule 11, Sec. 9] b. It must arise out of the subject
The filing of a MTD and the setting up of matter of the complaint or of the
a compulsory counterclaim are counterclaim;
incompatible remedies. c. The cross-claimant is prejudiced by
In the event that a defending party has the claim against him by the
a ground for dismissal and a opposing party.
compulsory counterclaim at the same A cross-claim is always compulsory. A
time, he must choose only one remedy. cross-claim not set up shall be barred.
If he decides to file a MTD, he will lose [Rule 9, Sec. 2]
his counterclaim. But if he opts to set Exception:
up his counterclaim, he may still plead a. When it is outside the courts
his ground for dismissal as an jurisdiction;
affirmative defense in his answer. b. If the court cannot acquire
If any of the grounds to dismiss under jurisdiction over 3rd parties whose
Rule 17, Sec. 3 arises, the proper presence is necessary for the
recourse for a defendant who desires to adjudication of said cross-claim. In
pursue his compulsory counterclaim in this case, the cross-claim is
the same proceeding is not a MTD. considered permissive.
Instead, he should only move to have The dismissal of the complaint carries
the plaintiff declared non-suited on the with it the dismissal of a cross-claim
complaint so that the latter can no which is purely defensive, but not a
longer present his evidence thereon, cross-claim seeking an affirmative
and simultaneously move that he be relief.[Torres v. CA (1973)
declared as in default on the
compulsory counterclaim, and reserve Comparative Table:
Cross Claim, Counterclaim and Third Party
the right to present evidence ex parte on
Complaint
his compulsory counterclaim. [BA (Asked in the 1997 and 1999 Bar Exams)cl
Finance v. Co (1993)] Cross-claim Counterclaim 3rd Party
Under Section 3, Rule 17, dismissal of complaint
action due to plaintiffs fault shall be Against a co- Against an Against a
without prejudice to the defendants party opposing party person not
right to prosecute his counterclaim in a party to
the same/separate action. the action
Must arise out May arise out of Must be in
4. TEST TO DETERMINE WHETHER A of the or be necessarily respect of
transaction connected with the
COUNTERCLAIM IS COMPULSORY OR
that is the the transaction opponents
PERMISSIVE subject matter or the subject (plaintiffs)
LOGICAL RELATIONSHIP TEST of the original matter of the claim
Where conducting separate trials of action or of a opposing partys
the respective claims would entail counterclaim claim
substantial duplication of effort and therein (compulsory
time and involves many of the same counterclaim), or
factual and legal issues. [Meliton v. it may not
(permissive
CA]
counterclaim)
5. EFFECT OF FAILURE TO SET UP

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

COUNTER-COUNTERCLAIMS AND 3rd-party complaint Counterclaim

COUNTER-CROSS-CLAIMS[Rule 6, Sec. 9] Need not be within the Must be within the
jurisdiction of the jurisdiction of the
court trying the main court trying the main

CIVIL PROCEDURE
1. COUNTER-COUNTERCLAIM
A claim asserted against an original case case
Diminishes/defeats the Need not
counter-claimant.
recovery sought by the diminish/defeat the
opposing party recovery sought by
2. COUNTER-CROSS-CLAIM the opposing party
A claim filed against an original cross- Cannot exceed the May exceed in
claimant. amount stated in the amount or be
original complaint different in kind from
REPLY [Rule 6, Sec. 10] that sought in the
original complaint
Definition: The plaintiffs response to
the defendant's answer,
2. TESTS TO DETERMINE WHETHER THE
the function of which is to deny or
3RD-PARTY COMPLAINT IS IN
allege facts in denial or in avoidance
RESPECT OF PLAINTIFF'S CLAIM
of new matters alleged by way of
[CAPAYAS V. CFI (1946)]
defense in the answer and
WON it arises out of the same
thereby join or make issue as to
transaction on which the plaintiff's
such new matters.
claim is based, or although arising out
of another/different transaction, is
1. EFFECT OF FAILURE TO REPLY
connected with the plaintiffs claim;
(ASKED IN THE 2000 BAR EXAM)
WON the 3rd-party defendant would be
General rule: Filing a reply is merely
liable to the plaintiff or to the defendant
optional. New facts that were alleged in
for all/part of the plaintiffs claim
the answer are deemed controverted
against the original defendant;
should a party fail to reply thereto.
WON the 3rd-party defendant may
Exception: Reply is required:
assert any defenses which the 3rd-party
Where the answer is based on an
plaintiff has or may have to the
actionable document. [Rule 8, Sec. 8]
plaintiffs claim.
Where the answer alleges the
defense of usury. [Rule 8, Sec. 11] Leave of court to file a 3rd-party
complaint may be obtained by motion
3RD PARTY COMPLAINT under Rule 15.
[Rule 6, Sec. 11] Summons on 3rd (4th/etc.) party
defendant must be served for the court
Definition: It is a claim that a to obtain jurisdiction over his person,
defending party may, with leave of since he is not an original party.
court, file against a person not a party Where the trial court has jurisdiction
to the action for contribution, over the main case, it also has
indemnity, subroqation or any other jurisdiction over the 3rd-party
relief, in respect of his opponent's claim. complaint, regardless of the amount
There could also be a 4th/etc.-party involved as a 3rd-party complaint is
complaint with the same purpose and merely auxiliary to and is a
function. continuation of the main action.
[Republic v. Central Surety]
3rd-party complaint Complaint in A 3rd-party complaint is not proper in
intervention an action for declaratory relief.
Brings into the action Same
a 3rd person who was
not originally a party
Initiative is with the Initiative is with a
person already a party non-party who seeks
to the action to join the action

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

III.MANNER OF MAKING 3. DISAVOWAL OF KNOWLEDGE

ALLEGATIONS By an allegation of lack of knowledge or
information sufficient to form a belief as

CIVIL PROCEDURE
A. IN GENERAL to the truth of the averment in the
B. FACTS THAT MAY BE AVERRED opposing party's pleading.
GENERALLY This does not apply where the fact as to
C. FACTS THAT MUST BE AVERRED which want of knowledge is asserted is,
PARTICULARLY to the knowledge of the court, so plain
D. THREE WAYS OF MAKING A SPECIFIC and necessarily within the defendant's
DENIAL
knowledge that his averment of
ignorance must be palpably untrue.
A. In General [Rule 8, Sec. 1]
In a methodical and logical form. General rule: Allegations not
Plain, concise and direct statement of specifically denied are deemed admitted
the ultimate facts on which the party [Rule 8, Sec. 11]
pleading relies for his claim/defense. Exceptions:
Omit evidentiary facts. Allegations as to the amount of
If defense relied on based on law, cite unliquidated damages;
the provisions and their applicability. Allegations immaterial to the cause
of action;
B. Facts That May Be Averred Allegations of merely evidentiary or
Generally immaterial facts may be expunged
Conditions precedent; but there must from the pleading or may be
still be an allegation that the specific stricken out on motion. [Rule 8, Sec.
condition precedent has been complied 12]
with, otherwise it will be dismissed for Conclusion of law.
lack of cause of action;
Capacity to sue or be sued;
Capacity to sue or be sued in a
representative capacity; IV. ACQUISITION OF JURISDICTION
Legal existence of an organization ;
A party desiring to raise an issue as A. FILING AND SERVICE
to the legal existence or capacity of B. PAPERS REQUIRED TO BE FILED AND
SERVED
any party to sue or be sued in a
C. PROOF OF FILING
representative capacity shall do so D. MODE OF SERVICE
by specific denial which shall include
supporting particulars within the
A. Filing and Service
pleader's knowledge.
Malice/intent/knowledge or other
1. DEFINITION
condition of the mind;
FILING The act of presenting the
Judgments of domestic/foreign
pleading or other paper to the clerk of
courts, tribunals, boards or officers
court. [Rule 13, Sec. 2]
(without need to show jurisdiction);
SERVICE The act of providing a party
Official documents/acts.
or his counsel with a copy of the
pleading or paper concerned. [Rule 13,
C. Facts That Must Be Averred Sec. 2]
Particularly
Circumstances showing fraud/mistake B. Papers Required to Be Filed and
in all averments of fraud/mistake.
Served [Rule 13, Sec. 4]
a. Pleading subsequent to the
D. Three Ways of Making a Specific complaint;
Denial b. Appearance;
1. SPECIFIC ABSOLUTE DENIAL c. Written Motion;
By specifically denying the averment d. Notice;
and, whenever practicable, setting forth e. Order;
the substance of the matters relied f. Judgment;
upon for such denial. g. Demand;
h. Offer of Judgment;
2. PARTIAL SPECIFIC DENIAL i. Resolution;
Part admission and part denial; j. Similar papers.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

C. Filing E. Service
1. MANNER OF FILING [RULE 13, SEC. 3]
(Asked in the 2005 Bar particularly 1. MODES OF SERVICE [RULE 13, SEC. 5]

comparison with filing in criminal actions)
Personally.
By personally presenting the original
to the clerk of court.
The pleading is deemed filed upon
the receipt of the same by the clerk
of court who shall endorse on it the
date and hour of filing.
If a party avails of a private carrier,
the date of the courts actual receipt
of the pleading (not the date of
delivery to the private carrier) is
deemed to be the date of the filing of
that pleading. [Benguet Electric
Cooperative v. NLRC]
By registered mail.
Filing by mail should be through the
registry service (i.e. by depositing
the pleading in the post office).
The pleading is deemed filed on the
date it was deposited with the post
office.
If registry service is not available in
the locality of either sender or
addressee, service may be done by
ordinary mail.
CIVIL PROCEDURE
Personal service. [Rule 13, Sec. 6]
a) Delivering personally a copy to the
party or his counsel.
b) Leaving a copy in counsel's office
with his clerk or with a person
having charge thereof.
c) If no person is found in his office, or
if his office is unknown, or if he has
no office Leaving the copy between
8am and 6 pm at the party's or
counsel's residence (if known) with a
person of sufficient age and
discretion then residing therein.
2. SERVICE BY (REGISTERED) MAIL.
[RULE 13, SEC. 7]
By depositing the copy in the office, in a
sealed envelope, plainly addressed to
the party or his counsel at his office or
at his residence (if known), with postage
fully pre-paid, and with instructions to
the postmaster to return the mail to the
sender after l0 days if undelivered.
If no registry service is available in the
locality of either sender or addressee,
service may be done by ordinary mail.

D. Proof of Filing [Rule 13, Sec. 12] 3. SUBSTITUTED SERVICE. [RULE 13,
Filing is proved by its existence in the SEC. 8]
record of the case. By delivering the copy to the clerk of
If it is not in the record: court, with proof of failure of both
personal service and service by mail.
When Proof of filing
pleading Completeness Proof of service
is deemed of service
filed Personal Upon actual Written
Personally Upon Written/stamped service delivery admission of the
receipt of acknowledgment by party served
the the clerk of court Xxx xxx Official return of
pleading the server; or
by the affidavit of the
clerk of party serving,
court with a full
By On the Registry receipt, and statement of the
registered date the affidavit of the date/place/mann
mail pleading person who did the er of service
was mailing with: Service by 10 days after Affidavit of the
deposited 1) Full statement of ordinary mailing, person mailing,
with the the date/place of mail unless showing facts
post office depositing the mail otherwise that comply with
in the post office in provided by Rule 13, Sec. 7
a sealed envelope the court
addressed to the Service by Whichever is Affidavit of the
court registered earlier: person mailing,
2) Postage fully paid mail showing facts
3) Instructions to that comply with
the postmaster to Rule 13, Sec. 7
return the mail to Xxx 1) Actual Registry receipt
the sender after 10 receipt by the issued by the
days if undelivered addressee post office

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Xxx 2) 5 days after Xxx The notice is for the purpose of
addressee molesting the adverse party; or
received 1st
It is not necessary to protect the
postmaster's

CIVIL PROCEDURE
notice
rights of the party who caused it to
be recorded.
4. SERVICE OF JUDGMENT, FINAL
ORDERS OR RESOLUTIONS [RULE 13,
SEC. 9] V. AMENDMENT AND
By personal service; SUPPLEMENTAL PLEADINGS
By registered mail;
By publication if party is summoned by A. AMENDMENT
B. SUPPLEMENTAL PLEADINGS
publication and has failed to appear in
C. BILL OF PARTICULARS
the action. D. INTERVENTION
E. SUMMONS
5. PRIORITY IN MODES OF FILING AND F. MOTIONS
SERVICE [RULE 13, SEC. 11]
General rule: Personal filing and A. Amendment
service. Resort to other modes of filing
and service must be accompanied by an 1. HOW TO AMEND PLEADINGS [RULE
explanation why the service/filing was 10, SEC. 1]
not done personally. a. Adding an allegation of a party;
If there is no written explanation, b. Adding the name of a party;
the paper considered not filed. c. Striking out an allegation of a party;
Exception: Papers emanating from the d. Striking out the name of a party;
court e. Correcting a mistake in the name of
6. NOTICE OF LIS PENDENS [RULE 13, a party; and
SEC. 14] f. Correcting a mistake or inadequate
LIS PENDENS - Notice of a pendency of allegation or description in any
the action between the parties involving other respect.
title to or right of possession over real Purpose: That the actual merits of the
property. controversy may speedily be
Requisites: [AFP Mutual Benefit determined, without regard to
Association v. CA] technicalities, and in the most
1) Action affects the title or the right of expeditious and inexpensive manner.
possession of the real property; As a general policy, liberality in allowing
2) Affirmative relief is claimed; amendments is greatest in the early
3) Notice shall contain the name of the stages of a law suit, decreases as it
parties and the object of the progresses and changes at times to a
action/defense and a description of strictness amounting to a prohibition.
the property affected thereby; This is further restricted by the
4) Action in rem. condition that the amendment should
The notice serves as a warning to all not prejudice the adverse party or place
persons, prospective purchasers or him at a disadvantage. [Barfel
encumbrancers of the property in Development v. CA (1993)]
litigation to keep their hands off the
property in litigation unless they are 2. FORM [RULE 10, SEC. 7]
prepared to gamble on the result of the A new copy of the entire pleading,
proceedings. incorporating the amendments, which
The defendant may also record a notice shall be indicated by appropriate
of lis pendens when he claims an marks, shall be filed.
affirmative relief in his answer.
The notice of cannot be cancelled on an 3. EFFECT [RULE 10, SEC. 8]
ex parte motion or upon the mere filing The amendment supersedes the
of a bond by the party on whose title the amended pleading.
notice is annotated, as Sec. 14 provides Claims and defenses in superseded
that such cancellation may be pleading which are not incorporated in
authorized only upon order of court, the amended pleading are deemed
after proper showing that: [Roxas v. CA waived.
(1993)]

Page 27 of 370
REVIEWER IN REMEDIAL LAW
Admissions made in the superseded
pleading may still be received in
evidence against the pleader.
4. KINDS OF AMENDMENTS
FORMAL AMENDMENTS
A defect in the designation of the
parties and other clearly clerical
errors may be summarily corrected
by the court or by motion:
o At any stage of the action.
o Provided that no prejudice is
caused to the adverse party.
SUBSTANTIAL AMENDMENTS (Asked
in the 2003 Bar Exam)
If as a matter of right Made at any
time before a responsive pleading is
served. If it is a reply, at any time
within l0 days after it is served.
[Rule 10, Sec. 2]
If as a matter of discretion
Amendment requires leave of court
if:
o It is substantial; and
o A responsive pleading has
already been served. [Rule 10,
Sec. 3]
5. REQUISITES FOR AMENDMENTS BY
LEAVE OF COURT
Motion filed in court;
Notice to the adverse party;
Opportunity to be heard afforded to
the adverse party.
(NOTE: In the 2008 Bar Exam, a question
was asked on amendment of complaint to
implead additional parties)
6. WHEN AMENDMENT BY LEAVE OF
COURT MAY NOT BE ALLOWED
If the cause of action, defense or theory
of the case is changed.
If amendment is intended to confer
jurisdiction to the court.
If the court has no jurisdiction in
the subject matter of the case, the
amendment of the complaint cannot
be allowed so as to confer
jurisdiction on the court over the
property. [PNB v. Florendo (1992)]
If amendment is for curing a premature
or non-existing cause of action.
If amendment is for purposes of delay.
Admitting an amended complaint in
intervention is a matter addressed to
the courts discretion, subject only to
the limitations that amendments should
not substantially change the cause of
Part 2: Ordinary Civil Action
action or alter the theory of the case or
made to delay the action.
Once exercised, it cannot be disturbed
CIVIL PROCEDURE
on appeal, except in case of abuse
thereof. [Metropolitan Bank v. Presiding
Judge (1990)]
7. AMENDMENT TO CONFORM TO
EVIDENCE [RULE 10, SEC. 5] (ASKED
IN THE 2004 BAR EXAM)
If issues not raised by the pleadings are
tried with the express/implied consent
of the parties, they shall be treated as if
they had been raised in the pleadings.
Amendment of pleadings as may be
necessary to cause them to conform to
the evidence and to raise these issues,
may be made upon motion of any party,
any time (even after judgment).
But failure to amend does not affect
the result of the trial on these
issues.
If evidence is objected to at the trial on
the ground that it is not within the
issues made by the pleadings,
the court may allow the pleadings to be
amended and shall do so with liberality
if the presentation of the merits of the
action and the ends of substantial
justice will be subserved thereby.
B. Supplemental Pleadings
(Asked in the 2000 Bar Exam)
Definition: One which sets forth
transactions, occurrences or events
which have happened since the date of
the pleading sought to be
supplemented. [Rule 10, Sec. 6]
It is made upon motion of a party with
reasonable notice and upon terms as
are just.
The cause of action stated in the
supplemental complaint must be the
same as that stated in the original
complaint.
Otherwise, the court should not admit
the supplemental complaint. [Asset
Privatization Trust v. CA]
1. AMENDMENTS VIS--VIS
SUPPLEMENTAL PLEADINGS
A supplemental complaint/pleading
supplies deficiencies in aid of an
original pleading, not to entirely
substitute the latter.
Unlike in an amended complaint, the
original complaint exists side by side
with the supplemental complaint.
[Shoemart v. CA (1990)]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Amendments Supplemental the movant to properly prepare his
pleadings responsive pleading and to prepare
Reason for the Grounds for the for trial. [Tantuico, Jr. v. Republic
amendment is supplemental

CIVIL PROCEDURE
(1991)]
available at time of pleading arose after
A BOP becomes part of the pleading for
the 1st pleading the 1st pleading was
filed
which it was intended. [Rule 12, Sec. 6]
Either as a matter of Always a matter of
right or a matter of discretion 1. WHEN APPLIED FOR [RULE 12, SEC. 1]
discretion Before responding to a pleading
Supersedes the Supplements the If the pleading is a reply, within 10 days
pleading pleading (i.e. Exists from service thereof
side by side with the
original pleading) 2. WHAT A MOTION FOR BOP SHOULD
When an amended A supplemental POINT OUT [RULE 12, SEC. 1]
pleading is filed, a pleading does not The defects complained of;
new copy of the entire require the filing of a
pleading must be filed new copy of the entire
The paragraph wherein they are
pleading contained;
The details desired.
C. Bill Of Particulars
3. COURT ACTION [RULE 12, SEC. 2]
(Asked in the 2003 Bar Exam)
Deny;
Grant the motion outright;
Definition: It is a detailed explanation
Allow the parties the opportunity to be
respecting any matter which is not
heard.
averred with sufficient
definiteness/particularity in the
4. COMPLIANCE WITH ORDER [RULE 12,
complaint as to enable a party to
SEC. 3]
properly prepare his responsive
If motion for BOP is granted
pleading or to prepare for trial. [Rule 12,
wholly/partially:
Sec. 1]
Within 10 days from notice of order,
It is filed by the plaintiff pursuant to a
BOP or a more definite statement
court order issued upon granting a
should be submitted (unless court fixes
motion for BOP filed by the defendant
a different period).
before the latter files an answer.
BP or definite statement filed either as a
In said motion, the defendant prays for
separate pleading or as an amended
a more definite statement of matters
pleading, a copy of which must be
which are not averred with sufficient
served on the adverse party.
definiteness in the complaint.
An action cannot be dismissed on the
5. EFFECT OF NON-COMPLIANCE [RULE
ground that the complaint is
12, SEC. 4]
vague/indefinite.
In case of non-compliance or
The remedy of the defendant is to move
insufficient with the order for BOP, the
for a BOP or avail of the proper mode of
court:
discovery. [Galeon v. Galeon]
a) May order the striking out of the
Purpose: To inform the adverse party
pleading (or portion thereof) to
more specifically of the precise nature
which the order is directed;
and character of the cause of action or
b) Make such order as it may deem
defense alleged in the pleading, with the
just.
view of enabling him to prepare properly
If the plaintiff fails to obey, his
his responsive pleading or to prepare for
complaint may be dismissed with
trial.
prejudice unless otherwise ordered by
The purpose of a BOP is to define/
the court. [Rule 12, Sec. 4; Rule 17, Sec.
clarify/particularize/limit/circumsc
3]
ribe the issues in the case to
If defendant fails to obey, his answer
expedite the trial and assist the
will be stricken off and his counterclaim
court.
dismissed, and he will be declared in
The only question to be resolved in a
default upon motion of the plaintiff.
motion for a BOP is WON the
[Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17,
allegations in the complaint averred
Sec. 4]
with sufficient
definiteness/particularity to enable

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
6. STAY OF PERIOD TO FILE resisting the claims of plaintiff, or
RESPONSIVE PLEADING [RULE 12, demanding something adversely to both
SEC. 5] of them. [Metropolitan Bank v. Presiding

CIVIL PROCEDURE
A Motion for BOP interrupts the period Judge (1990)]
to file an answer. It is the act/proceeding by which a 3rd
1) If the motion is granted: 15 days to person becomes a party in a suit
file answer. pending between others.
2) If the motion is denied: File answer It is the admission, by leave of court, of
within the period the movant is a person not an original party to
entitled to, which should not be less pending legal proceedings, by which
than 5 days. such person becomes a party thereto for
the protection of some right of interest
Bill of Particulars Intervention alleged by him to be affected by such
(BOP) proceedings.
Purpose is to enable a Purpose is to enable a An intervenor is a party to the action as
party bound to person not yet a party the original parties are, and to make his
respond to a pleading to an action, yet
right effectual he must necessarily have
to get more details having a certain right
about matters which or interest in such
the same powers as the original parties.
are alleged generally action, the He is entitled to have the issues raised
or which are indefinite opportunity to appear between him and the original parties
and vague, and be joined tried and determined.
Intervention is never an
so as to properly guide so he could assert or independent action, but is ancillary
such party in protect such right or and supplemental to the existing
answering the interest litigation.
pleading and to avoid
surprise in the trial of
Its purpose is to afford one not an
the case original party, yet having a certain
Available to the Available to any right/interest in the pending case,
defendant before he person not yet a party the opportunity to appear and be
files his responsive to the action at any joined so he could assert or protect
pleading time after the such right/interest. [Cario vs.
commencement of an Ofilada (1993)]
action, even during Intervention is never an independent
the proceeding, but action, but is ancillary and
not after the trial has
supplemental to the existing litigation.
been concluded
Its purpose is to afford one not an
original party, yet having a certain
D. Intervention
right/interest in the pending case, the
opportunity to appear and be joined so
1. DEFINITION(ASKED IN THE 2003 BAR
he could assert or protect such
EXAM):
right/interest. [Cario vs. Ofilada
A legal remedy whereby a person is (1993)]
permitted to become a party in a case, by
Hence, the final dismissal of the
either:
principal action results into the
1) Joining the plaintiff;
dismissal of said ancillary action.
2) Joining the defendant;
3) Asserting his right against both
2. WHO MAY INTERVENE [RULE 19, SEC.
plaintiff and defendant, considering
1]
that either:
One who has a legal interest in the
a) He has a legal interest in the
matter in litigation;
subject matter of the action;
One who has a legal interest in the
b) He is going to be adversely
success of either of the parties;
affected by the disposition of the
One who has an interest against both
property in the custody of the
parties;
court
One who is so situated as to be
Intervention is a proceeding in a
adversely affected by a
suit/action by which a 3rd person is
distribution/disposition of property in
permitted by the court to make himself
the courts custody.
a party, either joining plaintiff in
claiming what is sought by the
complaint, or uniting with defendant in

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3. HOW INTERVENTION IS DONE 6. REMEDIES
By a motion to intervene, with the For denial of intervention:
pleading-in- intervention attached. a) Appeal.

Must also serve copy of the pleading-in-
intervention on the original parties.
[Rule 19, Sec. 2]
General rule: Allowance of intervention
is discretionary with the court.
Exception: When the intervenor is an
indispensable party.
Factors considered in allowing
intervention:
1) WON intervention will unduly delay
or prejudice the adjudication of the
rights of the original parties.
2) WON the intervenor's rights may be
fully protected in a separate
proceeding.
The interest must be actual and
material, direct and immediate; not
simply contingent or expectant.
It must be in the matter in litigation
and of such direct and immediate
character that the intervenor will
either gain or lose by the direct legal
operation and effect of
judgment. [Cario vs. Ofilada (1993)]
Interest in the subject means a
direct interest in the cause of action
as pleaded and which would put the
intervenor in a legal position to
litigate a fact alleged in the
complaint, without
establishment of which plaintiff
could not recover. [Magsaysay-
Labrador v. CA]
Intervention is allowed any time before
TC renders judgment. [Rule 19, Sec. 2]
After rendition of judgment, a motion to
intervene is barred, even if the
judgment itself recognizes the movants
right. The movants remedy is to file a
separate action.
4. PLEADINGS IN INTERVENTION [RULE
19, SEC. 3]
1) COMPLAINT-IN-INTERVENTION If
intervenor asserts a claim against either
or all of the original parties.
2) ANSWER-IN-INTERVENTION If
intervenor unites with the defending
party in resisting a claim against the
latter.
5. ANSWER TO COMPLAINT-IN-
INTERVENTION [RULE 19, SEC. 4]
It must be filed within 15 days from
notice of the order admitting the
complaint-in-intervention, unless a
different period is fixed by the court.
CIVIL PROCEDURE
b) Mandamus, if there is GAD.
For improper granting of intervention:
Certiorari.
Intervention Interpleader
An ancillary action An original action
Proper in any of the Presupposes that the
four situations plaintiff has no interest
mentioned in Rule 19 in the subject matter of
the action or has an
interest therein, which
in whole or in part is
not disputed by the
other parties to the
action
There is already a Defendants are being
defendant among the sued precisely to
original parties to the implead them
pending suit
E. Summons
Definition: A coercive force issued by
the the court to acquire jurisdiction over the
person of the defendant (asked in the
1999 Bar Exam)
Purpose:
To acquire jurisdiction over the
person of the defendant in a civil
case;
the To give notice to the defendant that
an action has been commenced
against him.
1. ISSUANCE OF SUMMONS
Upon the filing of the complaint and the
payment of legal fees, the clerk of court
shall issue the corresponding summons
to the defendants. [Rule 14, Sec. 1]
2. SUMMONS CONTENTS [RULE 14, SEC.
2]
Summons must be directed to the
defendant, signed by the clerk of the
court under seal, and contain:
1) Name of the court and names of the
parties;
2) Direction that the defendant answer
within the time fixed;
3) Notice that unless the defendant so
answers, plaintiff will take judgment
by default and may be granted the
relief applied for.
A copy of the complaint and order for
appointment of guardian ad litem (if
any) shall be attached to the original
and each copy of the summons.

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REVIEWER IN REMEDIAL LAW
3. SERVICE OF SUMMONS
a. Who serves the summons [rule 14, sec.
3]
1) The sheriff or his deputy;
2) Other proper court officers;
3) For justifiable reasons, any suitable
person authorized by the court issuing
the summons.
b. Return of summons [rule 14, sec. 4]
When the service has been completed,
the server shall, within 5 days
therefrom,
serve a copy of the return (personally or
by registered mail) to the plaintiff's
counsel, and
shall return the summons to the clerk
who issued it, accompanied by proof of
service.
c. Alias summons [rule 14, sec. 5]
Upon plaintiffs demand, the clerk may
issue an alias summons if either:
1) If summons is returned without
being served on any/all of the
defendants.
The server shall also serve a copy of
the return on the plaintiff's counsel
within 5 days therefrom, stating the
reasons for the failure of service.
2) If summons was lost.
d. Modes of service of summons
Any application to the court under Rule
14 for leave to effect service in any
manner for which leave of court is
necessary
shall be made by motion in writing,
supported by affidavit of the plaintiff or
some person on his behalf, setting forth
the grounds for the application. [Rule
14, Sec. 17]
Service in person on defendant [Rule
14, Sec. 6]
1) By handing a copy of summons to him;
2) By tendering it to him, if he refuses to
receive it.
Substituted service [Rule 14, Sec. 7]
(asked in the 2004 Bar Exam)
Rationale: Enjoyment of the
privileges of residence within the
state, and the attendant right to
invoke the protection of its laws, are
inseparable from the various
incidences of state citizenship.
Part 2: Ordinary Civil Action
One such incident of domicile is
amenability to suit within the state
even during sojourns without the
CIVIL PROCEDURE
state, where the state has provided
and employed a reasonable method
for apprising such an absent party
of the proceedings against him.
[Northwest v. CA (1995)]
For a valid substituted service of
summons, the following must be
established in the proof of service:
[Sps. Ventura v. CA (1987)]
1) Impossibility of the personal service
of summons within a reasonable
time;
2) Efforts made to find the defendant
personally and the fact that such
efforts failed; [Laus v. CA (1993)]
3) Service by leaving copy of summons
either:
a) With some person of suitable age
and discretion then residing in
the defendants residence;
b) With some competent person in
charge of the defendants office
or regular place of business.
For a substituted service to be valid,
summons served at the defendant's
residence must be served at his
residence at the time of such service
and not at his former place of residence.
"Dwelling house" or "residence" refer to
the place where the person named in
the summons is living at the time when
the service is made, even though he
may be temporarily out of the country
at the time. [Sps. Ventura v. CA (1987)]
Substituted service must be used only
as prescribed and in the circumstances
authorized by statute.
Statutes prescribing modes other than
personal service of summons must be
strictly complied with to give the court
jurisdiction, and such compliance must
appear affirmatively in the return. [Laus
v. CA (1993)]
Absence in the sheriff's return of a
statement about the impossibility of
personal service does not conclusively
prove that the service is invalid.
Proof of prior attempts at personal
service may be submitted by the
plaintiff during the hearing of any
incident assailing the validity of the
substituted service.
While the sheriff's return carries with it
the disputable presumption of
regularity in the sense that the entries
therein are deemed correct, it does not
necessarily follow that an act done in
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REVIEWER IN REMEDIAL LAW
relation to the official duty for which the
return is made was not done simply
because it is not disclosed therein.
[Mapa v. CA (1992)]
e. Publication [Rule 14, Sec. 14]
Requisites:
1) The action is in rem or quasi in rem;
2) Defendant's identity or whereabouts
are unknown and cannot be
ascertained by diligent inquiry;
3) There must be leave of court.
Summons by publication in a personal
action cannot confer upon the court
jurisdiction over the person of the
defendant, who does not voluntarily
submit himself to the authority of the
court.
The proper recourse for the plaintiff is
to locate properties of the defendant
whose address is unknown and cause
them to be attached. [Consolidated
Plywood vs. Breve (1988)]
f. Service of summons upon different
entities (SEE APPENDIX 1 FOR TABLE)
Summons is validly served if it is left
with some person of suitable age and
discretion then residing in the
defendant's residence, even if defendant
was abroad at that time.
The fact that the defendant did not
actually receive the summons did not
invalidate the service of such summons.
[Montalban v. Maximo]
g. Waiver of service of summons [rule 14,
sec. 20]
Defendant's voluntary appearance in
the action shall be equivalent to service
of summons;
Exception: Special appearance to file a
MTD.
Inclusion in the MTD of grounds
other than LOJ over the defendants
person, is not deemed a voluntary
appearance.
Any mode of appearance in court by
a defendant or his lawyer is
equivalent to service of summons,
absent any indication that the
appearance of counsel for petitioner
is precisely to protest the
jurisdiction of the court over the
person of the defendant. [Delos
Santos v. Montesa (1993)]
4. RETURN OF SERVICE [RULE 14, SEC.
4]
When service has been completed, the
server shall serve a copy of the return
Part 2: Ordinary Civil Action
within 5 days (personally or by
registered mail) to the plaintiff's
counsel, and shall return the summons
CIVIL PROCEDURE
to the clerk who issued it, accompanied
with the proof of service.
General rule: Return of service of
summons immediately shifts burden of
evidence from plaintiff to defendant
since there is a presumption of
regularity.
Without return of service: Burden is
on plaintiff.
In the Mapa case, though, while
there was a return, return was
patently irregular, thus no
presumption of regularity could be
had.
Exception: Doctrine of substantial
compliance If defendant actually
received summons and complaint
despite all these technicalities.
5. PROOF OF SERVICE
1) If personal or substituted service: In
writing by the server and shall: [Rule 14,
Sec. 18]
Set forth the manner/place/date of
service;
Specify any papers which have been
served with the process and the
name of the person who received the
same;
Be sworn to when made by a person
other than a sheriff or his deputy.
2) If by publication: [Rule 14, Sec. 19]
Affidavit of the printer, foreman,
principal clerk, editor,
business/advertising manager, with
a copy of the publication attached.
Affidavit showing the deposit of a
copy of the summons and order for
publication in the post office,
postage prepaid, directed to the
defendant by registered mail to his
last known address.
6. EFFECT OF NON-SERVICE OF
SUMMONS (ASKED IN THE 2006 BAR
EXAM)
Unless the defendant voluntarily
submits to the jurisdiction of the court,
non-service or irregular service of
summons renders null and void all
subsequent proceedings and
issuances in the action from the
order of default up to and including
the judgment by default and the
order of execution.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
If the defendant has already been Exception: Oral motions:
served with summons on the original Made in open court;
complaint, no further summons is In the course of a hearing/trial.

CIVIL PROCEDURE
required on the amended complaint if it
does not introduce new causes of 3. CONTENTS [RULE 15, SEC. 3]
action. [Ong Peng v. Custodio] Relief sought to be obtained
But if the defendant was declared in Grounds upon which it is based
default on the original complaint and If it is required/necessary to prove facts
the plaintiff subsequently filed an alleged in a motion, it shall be
amended complaint, new summons accompanied by supporting affidavits
must be served on the defendant on the and other papers.
amended complaint, as the original Motions raising factual issues must
complaint was deemed withdrawn upon be supported by affidavits.
such amendment. [Atkins v. Domingo]
4. REQUISITES OF MOTIONS (NOT MADE
F. Motions IN OPEN COURT OR IN THE COURSE
OF HEARING/TRIAL):
Definition: An application for relief In writing; [Rule 15, Sec. 2]
other than by a pleading. [Rule 15, Sec. Hearing on the motion set by the
1] applicant;
PRO FORMA MOTION A motion
Motion Pleading failing to indicate time and date of
Contains allegations of Contains allegations of the hearing.
facts the ultimate facts Notice of hearing shall addressed to all
Prays for a relief Prays for a relief parties not later than 10 days from the
Grant of the relief does Grant of relief
filing of the motion. [Rule 15, Sec. 5]
not extinguish the extinguishes the action
action (interlocutory (final relief) Notice must be addressed to the
relief) counsels.
Generally in writing Always in writing A notice of hearing addressed to the
(with some exceptions) clerk of court, and not to the
parties, is no notice at all.
General rule: A motion cannot pray for Accordingly, a motion that does not
judgment. contain a notice of hearing to the
Exception: adverse party is nothing but a mere
Motion for judgment on the scrap of paper, as if it were not filed;
pleadings. hence, it did not suspend the
Motion for summary judgment. running of the period to appeal.
Motion for judgment on demurrer to [Provident International Resources v.
evidence. CA (1996)]
Motion and notice of hearing must be
1. KINDS OF MOTION served at least 3 days before the date of
MOTION EX PARTE - Made without hearing; [Rule 15, Sec. 4]
notification to the other party because Purpose: To prevent surprise upon
the question generally presented is not the adverse party and to enable the
debatable. latter to study and meet the
LITIGATED MOTION - Made with arguments of the motion.
notice to the adverse party so that an Exception:
opposition thereto may be made. a) Ex parte motions;
MOTION OF COURSE - Motion for a b) Urgent motions;
kind of relief/remedy to which the c) Motions agreed upon by the
movant is entitled to as a matter of parties to be heard on shorter
right, Allegations contained in such notice, or jointly submitted by
motion do not have to be the parties;
investigated/verified. d) Motions for summary judgment
SPECIAL MOTION - Discretion of the which must be served at least 10
court is involved. An investigation of the days before its hearing.
facts alleged is required. Proof of service. [Rule 15, Sec. 6]
A written motion set for hearing will
2. MOTIONS FORM [RULE 15, SEC. 2] not be acted upon by the court if
General rule: In writing. there is no proof of service thereof.

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REVIEWER IN REMEDIAL LAW
What may be proof:
a) If by registered mail: Affidavit or
registry receipt or postmark on
envelope or return card, with an
explanation.
b) If by personal service: Affidavit
or acknowledgment of receipt by
the other party.
Exception:
a) If the motion is one which the
court can hear ex parte.
b) If the court is satisfied that the
rights of the adverse parties are
not affected by the motion.
c) If the party is in default because
such a party is not entitled to
notice.
5. MOTION DAY [RULE 15, SEC. 7]
Except for urgent motions, motions are
scheduled for hearing:
1) On Friday afternoons;
2) Afternoon of the next working day, if
Friday is a non-working day.
6. OMNIBUS MOTION RULE [RULE 15,
SEC. 8]
Definition: A motion attacking a
pleading/order/judgment/proceeding
must include all objections then
available. All objections not included in
the motion are deemed waived.
Exception: When the courts
jurisdiction is in issue:
1) LOJ over subject-matter;
2) Litis pendentia;
3) Res judicata;
4) Prescription.
7. MOTION FOR LEAVE TO FILE A
PLEADING/MOTION [RULE 15, SEC. 9]
Must be accompanied by the
pleading/motion sought to be admitted.
8. MOTIONS NOT ACTED UPON
Parties and counsel should not assume
that courts are bound to grant the time
they pray for.
After all, a motion that is not acted
upon in due time is deemed denied.
[Orosa v. CA (1996)]
Part 2: Ordinary Civil Action
VI. TERMINATING THE ACTION
BEFORE TRIAL
CIVIL PROCEDURE
A. MOTION TO DISMISS
B. DISMISSAL OF ACTIONS
C. DISMISSAL OF COUNTERCLAIMS/ CROSS-
CLAIMS/3RD-PARTY COMPLAINTS
D. DEFAULTS
E. REMEDIES OF A PARTY DECLARED IN
DEFAULT
F. JUDGMENT ON THE PLEADINGS
G. SUMMARY JUDGMENTS
H. PARTIAL SUMMARY JUDGMENT
A. Motion To Dismiss (MTD)
1. DEFINITION
MOTION TO DISMISS A remedy of
the defendant, or the responding party
in general, which attacks the entire
pleading and seeks its dismissal based
on:
1) Grounds which are patent on the
face of the complaint;
2) Defenses available to the defendant
at the time of the filing of the
complaint.
It hypothetically admits the facts stated
in the complaint.
It is not a responsive pleading. It is not
a pleading at all. It is subject to the
omnibus motion rule since it is a
motion that attacks a pleading. Hence,
it must raise all objections available at
the time of the filing thereof.
General rule: A court may not motu
propio dismiss a case, unless a motion
to that effect is filed by a party.
Exception:
Cases where the court may dismiss
a case motu propio; [Rule 9, Sec. 1]
Failure to prosecute; [Rule 17, Sec.
3]
Sec. 4, Revised Rule on Summary
Procedure.
2. TYPES OF DISMISSAL OF ACTION:
MTD before answer under Rule 16;
MTD under Rule 17:
a) Upon notice by plaintiff;
b) Upon motion by plaintiff;
c) Due to fault of plaintiff.
Demurrer to evidence after plaintiff has
completed the presentation of his
evidence under Rule 33;
Dismissal of an appeal.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
MTD under Rule 16 MTD under Rule 33 Before any voluntary appearance is
(Demurrer to made.
evidence) If a defendant had not been properly
Based on preliminary Based on insufficiency

CIVIL PROCEDURE
summoned, the period to file a MTD
objections of evidence
for LOJ over his person does not
May be filed by any May be filed only by
defending party against the defendant against
commence to run until he
whom a claim is the complaint of the voluntarily submits to the
asserted in the action plaintiff jurisdiction of the court. [Laus v. CA
Should be filed within May be filed only after (1993)]
the time for, but prior the plaintiff has Appearance of counsel is equivalent
to, the filing of the completed the to summons, unless such is made to
defending partys presentation of his protest the jurisdiction of the court
answer to the pleading evidence over the person of the defendant. If
asserting the claim
grounds other than invalid service of
against him
summons are raised, it cannot be
If denied, defendant If denied, defendant
answers; else, he may may present evidence. considered as a special appearance.
be declared in default. If granted, plaintiff [De los Santos v. Montesa (1993)]
If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is b. LOJ over the subject matter of the claim
subsequent reversed; the If the complaint shows on its face LOJ,
case is not barred, he defendant loses his the court may dismiss the case outright
may re-file the case right to present instead of hearing the motion.
evidence. A MTD on the ground of LOJover the
subject matter may be raised either:
A MTD shall be proved/disproved 1) Before answer;
according to the rules of evidence. 2) After answer is filed;
The hearing shall be conducted as an 3) After hearing had commenced;
ordinary hearing and the parties shall 4) At any stage of the proceeding, even
be allowed to present evidence, except for the first time on appeal and even
when the motion is based upon failure if no such defense is raised in the
of the complaint to state a cause of answer.
action.
When the MTD is based on facts not c. Improper venue
appearing of record, the court may hear Unless and until the defendant objects
the matter on affidavits/depositions. to the venue in a MTD prior to a
responsive pleading, the venue cannot
3. GROUNDS [RULE 16, SEC. 1] (ASKED truly be said to have been improperly
IN THE 2008 BAR EXAM) laid since,
for all practical intents and purposes,
a. LOJ over the defendants person; the venue though technically wrong
b. LOJ over the subject matter of the may yet be considered acceptable to the
claim; parties for whose convenience the rules
c. Improper venue; on venue had been devised. Improper
d. Plaintiffs lack of legal capacity to venue may be waived and such waiver
sue; may occur by laches. [Diaz v. Adiong
e. Litis pendentia; (1993)]
f. Res judicata; A stipulation between the parties as to
g. Prescription; venue does not preclude the filing of
h. Failure to state a cause of action; suits in the residence of
i. Extinguished claim; plaintiff/defendant under Rule 4, Sec.
j. Unenforceable claim under the 2(b). In the absence of
Statute of Frauds; qualifying/restrictive words which
k. Non-compliance with a condition would indicate that a specific place
precedent for filing claim. alone is the venue, an agreement as to
venue is merely permissive and there is
a. LOJ over the defendants person no waiver of right to pursue remedy in
The objection of LOJ over the person on other courts. [HSBC v. Sherman (1989)]
account of lack of service or defective If the court erroneously denies the
service of summons, must be raised: MTD, the remedy is prohibition.
At the very first opportunity;

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REVIEWER IN REMEDIAL LAW
d. Plaintiffs lack of legal capacity to sue
The plaintiff lacks legal capacity to sue:
1) When he does not possess the
necessary qualification to appear at
the trial (e.g. when he plaintiff is not
in the full exercise of his civil
rights);
2) When he does not have the
character which he claims, which is
a matter of evidence (e.g. when he is
not really a duly appointed
administrator of an estate).
Lack of legal capacity to sue refers to
plaintiffs disability; while lack of legal
personality to sue refers to the fact that
the plaintiff is not a real party in
interest,
in which case the ground for dismissal
would be that the complaint states no
cause of action.
e. Litis pendentia
Requisites: [Anderson Group v. CA
(1997) Asked in the 2007 Bar Exam]
1) Identity of parties;
2) identity of rights asserted and relief
prayed for;
3) Relief founded on the same facts
and the same basis;
4) Identity in the 2 proceedings should
be such that any judgment which
may be rendered in the other action
will amount to res judicata on the
action under consideration.
It is not required to allege that there be
a prior pending case. It is sufficient to
allege and prove the pendency of
another case, even if same had been
brought later.
It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated,
apply:
1) The More Appropriate Action Test;
2) The Interest of Justice Test, taking
into account:
a) Nature of the controversy;
b) Comparative accessibility of the
court to the parties;
c) Other similar factors.
In both tests, the parties good faith
shall be taken into consideration.
The 1st case shall be abated if it is
merely an anticipatory action or defense
against an expected suit.
The 2nd case will not be abated if it is
not brought to harass. [Vitrionics
Computers v. RTC (1993)]
Part 2: Ordinary Civil Action
f. Res judicata
Requisites (Asked in the 2000 Bar
Exam):
CIVIL PROCEDURE
1) Former judgment rendered by a
court having jurisdiction over the
subject matter and over the parties;
2) Judgment must be a final judgment;
3) Judgment must be on the merits;
There can be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
4) There must be identity of parties, of
subject matter and of the causes of
action.
For res judicata to apply, absolute
identity of parties is not required
because substantial identity is
sufficient. Inclusion of additional
parties will not affect the application
of the principle of res judicata.
The test of identity of cause of action
lies not in the form of the action but
on WON the same evidence would
support and establish the former
and the present causes of action.
[DBP v. Pundogar (1993)]
Rationale: The sum and substance of
the whole doctrine is that a matter once
judicially decided is finally decided
because of: [Nabus v. CA (1991)]
Public policy and necessity makes it
the interest of the State that there
should be an end to litigation;
The hardship on the individual that
he should be vexed twice for the
same cause.
4. TWO CONCEPTS OF RES JUDICATA
[ABALOS V. CA 1993, ASKED IN THE
1997 BAR EXAM)]
BAR BY PRIOR JUDGMENT
Judgment on the merits in the 1st case
constitutes an absolute bar to the
subsequent action
not only as to every matter which
was offered and received to sustain
or defeat the claim/demand,
but also to any other admissible
matter which might have been
offered for that purpose and to all
matters that could have been
adjudged in that case. (Asked in the
2002 Bar Exam)
CONCLUSIVENESS OF JUDGMENT
Where the 2nd action between the
parties is upon a different
claim/demand,
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
the judgment in the 1st case i. Extinguished claim
operates as an estoppel only with That the claim/demand set forth in the
regard to those issues directly plaintiff's pleading has been paid,

CIVIL PROCEDURE
controverted, upon the waived, abandoned or otherwise
determination of which the extinguished.
judgment was rendered.
j. Unenforceable claim under the statute of
g. Statute of limitations frauds
Prescription applies only when the
complaint on its face shows that indeed k. Non-compliance with a condition
the action has already prescribed. precedent
If the fact of prescription is not Non-compliance with PD 1508
indicated on the face of the complaint (Katarungang Pambarangay Law) may
and the same may be brought out later, result in dismissal of the case on the
the court must defer decision on the ground of non-compliance with a
motion until such time as proof may be condition precedent.
presented on such fact of prescription.
5. PLEADING THE GROUNDS AS
Prescription Laches AFFIRMATIVE DEFENSES [RULE 16,
Concerned with the Concerned with the SEC. 6]
fact of delay effect of delay If no MTD was filed, the grounds in Rule
A matter of time A matter of equity 16, Sec. 1 may be pleaded as an
Statutory Not statutory affirmative defense and the court may
Applies in law Applies in equity conduct a preliminary hearing thereon
Based on fixed time Not based on fixed as if a MTD was filed.
time
6. HEARING AND ORDER
h. Complaint states no cause of action
During the hearing of the motion,
Failure to state a cause of action (not
parties shall submit: [Rule 16, Sec. 2]
lack of cause of action) is the ground for
1) Their arguments on questions of
a MTD. The former means there is
law;
insufficiency in the allegations in the
2) Their evidence on questions of fact.
pleading. The latter means that there is
Exception: Those not available
insufficiency in the factual basis of the
at that time.
action.
If the case goes to trial, such
The failure to state a cause of action
evidence presented shall
must be evident on the face of the
automatically be part of the
complaint itself.
evidence of the party who
Test: Assuming the allegations and
presented them.
statements to be true, does the plaintiff
After the hearing, the court may either:
have a valid cause of action?
[Rule 16, Sec. 3]
A MTD based upon the ground of failure
1) Dismiss the action/claim;
to state a cause of action imports a
2) Deny the MTD;
hypothetical admission by the
3) Order the amendment of pleadings.
defendant of the facts alleged in the
The courts resolution on the MTD must
complaint.
clearly and distinctly state the reasons
If the court finds the allegations of the
therefor.
complaint to be sufficient but doubts
The court cannot defer the resolution of
their veracity, it must deny the MTD
the MTD for the reason that the ground
and require the defendant to answer
relied upon is not indubitable.
and then proceed to try the case on its
merits.
7. EFFECTS
A complaint containing a premature
cause of action may be dismissed for a. Of dismissal: [Rule 16, Sec.5]
failure to state a cause of action. General rule: The action/claim may be
If the suit is not brought against the re-filed.
real party-in-interest, a motion to Exception: The action cannot be re-
dismiss may be filed on the ground that filed (although subject to appeal) if it
the complaint states no cause of action. was dismissed on any of the following
[Tanpinco v. IAC (1992)] grounds:

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REVIEWER IN REMEDIAL LAW
Res judicata;
Prescription;
Extinguishment of the
claim/demand;
Unenforceability under the Statute
of Frauds.
b. On periods for pleading: [Rule 16, Sec.4]
If MTD is denied Movant must file his
answer within the balance of the period
under Rule 11 to which he was entitled
at the time of serving his MTD (but not
less than 5 days).
If pleading is ordered to be amended
Movant must file his answer within the
period under Rule 11, counted from
service of the amended pleading (unless
the court gives a longer period).
c. On other grounds and omnibus motion
rule:
MTD based on the following grounds
may be filed even after filing an answer:
[Rule 9, Sec. 1]
LOJ over subject-matter;
Litis pendentia;
Res judicata;
Prescription.
Dismissal of the complaint under Rule
16, Sec. 6 is without prejudice to the
prosecution (in the same or in a
separate action) of a counterclaim
pleaded in the answer.
B. Dismissal of Actions
1. DISMISSAL UPON PLAINTIFFS NOTICE
[RULE 17, SEC. 1]
Dismissal here is effected not by motion
but by mere notice before the service of
either:
1) The answer;
2) A motion for summary judgment.
Upon plaintiffs filing of notice, the court
shall issue an order dismissing the
case. (i.e. the court has no discretion on
WON to dismiss the case).
The dismissal is without prejudice.
Exception:
1) If the notice of dismissal
provides that it is with
prejudice.
The dismissal is still with prejudice
even it the notice of dismissal does
not so provide, where such notice is
premised on the fact of payment by
the defendant of the claim involved.
[Serrano v. Cabrera]
2) TWO-DISMISSAL RULE
Part 2: Ordinary Civil Action
If the plaintiff has previously
dismissed an action based on or
including the same claim, the notice
CIVIL PROCEDURE
operates as an adjudication on the
merits.
2. DISMISSAL UPON PLAINTIFFS
MOTION [RULE 17, SEC. 2]
Here, dismissal of the complaint is
subject to the courts discretion and
upon such terms and conditions as may
be just.
Leave of court for the dismissal is
necessary because the motion is made
after a responsive pleading or a motion
for summary judgment has been served.
If defendant pleaded a counterclaim
prior to the service upon him of the
plaintiffs motion for dismissal, the
dismissal shall be without prejudice to
the defendants right to either:
1) Prosecute his counterclaim in a
separate action;
2) Have the counterclaim resolved in
the same action, by manifesting
such preference within 15 days from
being notified of plaintiffs motion
for dismissal.
Dismissal here is without prejudice,
unless otherwise provided in the order.
Court approval of the court is necessary
in the dismissal/compromise of a class
suit.
3. DISMISSAL DUE TO PLAINTIFFS
FAULT [RULE 17, SEC. 3]
If, without justifiable cause, plaintiff
fails either:
1) To appear on the date of the
presentation of his evidence-in-chief
on the complaint;
The plaintiffs failure to appear
at the trial after he has
presented his evidence and
rested his case does not warrant
the dismissal of the case on the
ground of failure to prosecute.
It is merely a waiver of his right
to cross-examine and to object
to the admissibility of evidence.
[Jalover v. Ytoriaga]
2) To prosecute his action for an
unreasonable length of time (nolle
prosequi);
The test for dismissal of a case
due to failure to prosecute is
WON, under the circumstances,
the plaintiff is chargeable with
want of due diligence in failing to
proceed with reasonable
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
promptitude. [Calalang v. CA D. Defaults
(1993)] [Rule 9, Sec. 3]
3) To comply with the ROC or any

CIVIL PROCEDURE
court order. Definition: Failure of the defendant to
Here, the case may be dismissed motu answer within the proper period. It is
propio or upon the defendants motion. not his failure to appear nor his failure
The dismissal has the effect of an to present evidence (Asked in the 2000
adjudication on the merits, unless the and 2001 Bar Exams)
court declares otherwise.
Order of default Judgment by default
Rule 17, Sec. 2 Rule 17, Sec. 3 Issued by the court on Rendered by the court
Dismissal is at the Dismissal is not plaintiffs motion, for following a default
plaintiffs instance procured by plaintiff, failure of the order
although justified by defendant to file his or after it received ex
causes imputable to responsive pleading parte plaintiffs
him seasonably evidence
Dismissal is a matter Dismissal is a matter Interlocutory Not Final Appealable
of procedure, without of evidence, an appealable
prejudice unless adjudication on the
otherwise stated in the merits 1. ELEMENTS OF A VALID DECLARATION
court order or on OF DEFAULT
plaintiffs motion for
a. Court validly acquired jurisdiction
dismissal of his own
complaint.
over the defendants person, either
Dismissal is without Dismissal is without by service of summons or voluntary
prejudice to the prejudice to the appearance;
defendants right to defendants right to b. Defendant fails to answer within the
prosecute his prosecute his time allowed therefor;
counterclaim in a counterclaim in the c. Motion to declare the defendant in
separate action (unless same or in a separate default;
within 15 days from action d. Notice to the defendant by serving
notice of the motion he upon him a copy of such motion;
manifests his intention
to have his
e. Proof of such failure to answer.
counterclaim resolved
in the same action) 2. CASES WHERE NO DEFAULTS ARE
ALLOWED
C. Dismissal of Counterclaims/ Cross- Annulment of marriage; Declaration of
Claims/3rd-Party Complaints nullity of marriage; Legal Separation;
[Rule 17, Sec. 4] Here, the court shall order the
prosecuting attorney to investigate
Rule 17 applies to the dismissal of WON parties are colluding and, if
counterclaims, cross-claims or 3rd- there is no collusion, to intervene
party complaints. from the State to ensure that
Where a counterclaim is made the evidence is not fabricated.
subject of a separate suit, it may be Special civil actions of certiorari,
abated upon a plea of auter action prohibition and mandamus, where
pendentia and/or dismissal on the comment (instead of an answer) is
ground of res judicata. required to be filed.
Res judicata, however, is not applicable
since the court held that it did not 3. EFFECT OF ORDER OF DEFAULT
acquire jurisdiction due to non-payment (ASKED IN THE 1999 BAR EXAM)
of docket fees. Party in default loses standing in court
Dismissal on the ground of LOJ does as a party litigant. His failure to answer
not constitute res judicata, there being operates as a waiver of right to take part
no consideration and adjudication of in the trial, of being heard, and of
the case on the merits. Neither is there presenting evidence in his favor.
litis pendentia. [Meliton v. CA (1992)] If the defendant was declared in
default upon an original complaint,
the filing of the amended complaint
resulted in the withdrawal of the
original complaint.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Hence, the defendant was entitled to Rationale: It is presumed that where
file answer to the amended the relief demanded is greater or
complaint as to which he was not in different in kind, defendant would not

CIVIL PROCEDURE
default. have allowed himself to be declared in
The court shall proceed to render default.
judgment granting the claimant relief as In a judgment based on evidence
his pleading may warrant, unless the presented ex parte, judgment should
court in its discretion requires the not exceed the amount or be different in
claimant to submit evidence. Such kind from that prayed for.
reception of evidence may be delegated On the other hand, in a judgment where
to the clerk of court. an answer was filed but defendant did
The party in default shall be entitled to not appear at the hearing, the award
notice of subsequent proceedings but may exceed the amount or be different
not to take part in the trial. in kind from that prayed for. [Datu
A defendant declared in default Samad Mangelen v. CA (1992)]
cannot take part in the trial, but he
cannot be disqualified from 7. FAILURE TO APPEAR AT PRE-TRIAL
testifying as a witness in favor of
non-defaulting defendants. [Cavili v. Who fails to appear Effect
Florendo] Plaintiff Cause for dismissal of
A party in default is entitled to the action which will be
notice of: with prejudice, unless
a. Motion to declare him in default; otherwise ordered by
b. Order declaring him in default; the court
c. Subsequent proceedings; Defendant Cause to allow plaintiff
to present evidence ex
d. Service of final orders and
parte, and court to
judgments. render judgment on the
basis thereof
4. RELIEF FROM ORDER OF DEFAULT
Before judgment, a party declared in Default As in default
default may file a motion under oath to (Rule 9, Sec. 3) (Rule 18, Sec. 5)
set aside the order of default upon Upon motion and notice Not required
proper showing that: to defendant.
1) His failure to answer was due to Requires proof of failure Not required
fraud, accident, mistake or to answer
excusable negligence; Court to render Court to allow plaintiff
2) He has a meritorious defense. judgment, unless it to present evidence ex
requires submission of parte, then the court
In such case, the order of default may
evidence shall render judgment
be set aside on terms and conditions as Relief awarded must be Relief awarded may be
justice requires. the same in nature and of different nature and
amount as prayed for in amount from the relief
5. EFFECT OF PARTIAL DEFAULT the complaint prayed for
If the pleading asserting a claim states a
common cause of action against several A defendant who already filed an
defending parties, answer cannot be declared in default.
and some of the defending parties Only when the defendant fails to file an
answer while the others fail, answer to the complaint may the court
the court shall try the case against all proceed to render judgment. [Lesaca v.
defendants upon the answers filed and CA (1992)]
render judgment upon the evidence The Revised Rules on Summary
presented. Procedure does not provide that an
Exception: If the defense is personal to answer filed after the reglamentary
the one who answered; in which case, it period should be expunged from the
will not benefit those who did not records.
answer. As a matter of fact, there is no provision
for an entry of default if a defendant
6. EXTENT OF RELIEF TO BE AWARDED fails to file his answer.
The award shall not exceed the amount The defense of LOJ may have even been
or be different in kind from that prayed raised by the defendant in a MTD as an
for; nor award unliquidated damages. exception to the rule on prohibited

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
pleadings in the Revised Rule on E. Remedies of a Party Declared in
Summary Procedure. Default
Such a motion is allowed under Sec. (Asked in the 1998 and 2006 Bar

CIVIL PROCEDURE
19(a) thereof. [Bayog v. Natino (1996)] Exams)
Where the failure to appear at the pre-
trial hearing was uncontrovertedly due Pleadings, as well as remedial laws,
to illness, the default order may be set should be liberally construed in order
aside on the ground of accident over that litigants may have ample
which petitioner had no control. opportunity to prove their respective
Also, the order of arrest was illegal as claims, and possible denial of
there is nothing in the ROC which substantial justice. [Gerales v. CA]
authorizes such a consequence of a
default order. [Malanyaon v. Sunga
(1992)]

[Dulos v. CA (1990)]

1. MOTION TO SET ASIDE
ORDER OF DEFAULT
[RULE 9, SEC. 3(B)]
2. MNT [RULE 37, SEC. 1(A)]
3. PETITION FOR RELIEF
FROM ORDER [RULE 38,
SEC. 1 AND 2]
4. APPEAL FROM THE RTC
[RULE 41, SEC. 1]
At any time after the discovery of default and before
judgment, defendant may file a motion under oath to set
aside order of default on the ground that his failure to file an
answer or appear on the date set for the pre-trial was due to
fraud, accident mistake of law, and excusable negligence
and that he has a meritorious defense
If the judgment has already been rendered when the
defendant discovered the default, but before the same
became final and executor.
It should be filed within the period for perfecting an appeal.
Timely filing thereof interrupts the 15-day reglementary
period for an appeal.
It is required that defendant file first a motion to lift order of
default to regain his standing. [Tan v. CA (1997)]
If the defendant discovered the default after the judgment
has become final and executory
The defendant may also appeal from the judgment rendered
against him as contrary to the evidence or the law, even if he
did not present a petition to set aside the order of default

An order of default is an interlocutory A meritorious defense is only one of the

order which is not appealable. A
judgment by default is a final
disposition of the case and is
appealable. [MERALCO v. La Campana
Food Products (1995)]
A petition for certiorari under Rule 65,
although not a substitute for an
available or lost appeal, may be invoked
while the orders of the lower court are
issued without or in excess of
jurisdiction.
Judgment by default being appealable,
appeal should be perfected within 15
days from receipt of copy of order
denying MFR of default judgment.
[Oriental Media v. CA (1995)]
A satisfactory showing by the movant of
the existence of fraud, accident, mistake
or excusable neglect is an indispensable
requirement for the setting aside of a
judgment of default or the order of
default.
two conditions. The meritorious defense
must concur with the satisfactory
reason for the non-appearance of the
defaulted party. If there is no such
reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2.
[Ramnani v. CA (1993)]
The jurisdiction was properly acquired
by the TC over the defendants person;
he was therefore properly declared in
default for not having filed any answer.
Despite his failure to file a motion to set
aside the declaration of default, he has
the right to appeal the default
judgment.
But in the appeal, only the evidence of
the petitioner may be considered,
respondent not having adduced any
defense evidence. [Boticano v. Chu
(1987)]

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REVIEWER IN REMEDIAL LAW
F. Judgment on the Pleadings
[Rule 34]
(Asked in the 1999 and 2005 Bar Exams)
Grounds: If the answer either:
1) Fails to tender an issue;
2) Admits the material allegations of
the adverse partys pleading.
An answer fails to tender an issue due
to either:
1. General denial of the material
allegations of the complaint;
2. Insufficient denial of the material
allegations of the compliant.
A judgment on the pleadings can be
done only upon motion to the effect filed
by the appropriate party. It cannot be
rendered by the court motu propio.
Exception: If at pre-trial the court
finds that a judgment on the
pleadings is proper, it may render
such judgment motu propio. [Rule
18, Sec. 2(g)]
In the following cases, judgment on the
pleadings will not lie and material facts
alleged in the complaint must always be
proved:
1) Declaration of nullity of marriage;
2) Annulment of marriage;
3) Legal separation.
By moving for judgment on the
pleadings, the plaintiff waives his claim
for unliquidated damages (because
claims for such damages must be
alleged and proved).
One who prays for the judgment on the
pleadings without offering proof as to
the truth of his own allegations and
without giving the opposing party an
opportunity to introduce evidence,
must be understood to admit all
material and relevant allegations of the
opposing party and to rest his motion
for judgment upon those allegations
taken together with such of his own as
are admitted in the pleadings.
[Falcasantos v. How Suy Ching]
G. Summary Judgments
Definition: A judgment granted by the
court for the prompt disposition of civil
actions, if it clearly appears that there
exists no genuine issue/controversy as
to any material fact, except as to the
amount of damages.
Also called accelerated judgment.
GENUINE ISSUE An issue of fact
which calls for the presentation of
evidence; as distinguished from an
Part 2: Ordinary Civil Action
issue which is sham, fictitious,
contrived and patently insubstantial so
as not to constitute a genuine issue for
CIVIL PROCEDURE
trial.
When the facts as pleaded appear
uncontested or undisputed, then there
is no real/genuine issue as to the facts.
The TC cannot motu propio issue a
summary judgment. A party must move
for summary judgment.
Who may file motion When
for summary
judgment
Plaintiff May file the motion only
after the answer has
been served
Defendant May file the motion any
time
Filing of a motion for summary
judgment does not interrupt the
running of the period for filing an
answer. Hence, the movant must also
file a Motion for Extension of Time to
File Answer.
Bases of summary judgment: When,
upon the following, no genuine issue as
to any material fact exists:
1) Affidavits made on personal
knowledge;
2) Depositions of the adverse or a 3rd
party; (Rule 23)
3) Admissions of the adverse party;
(Rule 26)
4) Answers to interrogatories. (Rule 25)
H. Partial Summary Judgment
(Asked in the 2004 Bar Exam)
Applies when for some reason there can
be no full summary judgment. Trial
should deal only with the facts not yet
specified or established. The court shall
direct further proceedings in the action
as are just.
Effect of partial summary judgment: A
partial summary judgment is not a final
judgment, but merely a pre-trial
adjudication that said issues in the case
shall be deemed established for the trial
of the case. [Guevarra v. CA (1983)]
Page 43 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Summary Judgment on Judgment by VII. MODES OF DISCOVERY
judgment the pleadings default (Asked in the 2000 Bar Exam)
Based on the Based solely Based on the
pleadings, upon the complaint and

CIVIL PROCEDURE
A. DEPOSITIONS UNDER RULE 23
depositions, pleadings evidence, if B. DEPOSITIONS BEFORE ACTION UNDER
admissions court requires RULE 24
and affidavits its C. DEPOSITIONS PENDING APPEAL UNDER
presentation RULE 24
There is no The answer No issues as D. RULE 23 APPLIES ON THE MANNER OR
genuine issue fails to tender no answer is CONDUCT OF THE DEPOSITION
between the an issue or filed by the E. REQUEST FOR ADMISSION UNDER RULE
parties there is an defending 26
admission of party F. PRODUCTION OR INSPECTION OF
the material DOCUMENTS OR THINGS
allegations G. PHYSICAL AND MENTAL EXAMINATION OF
Available to Generally Available to A PARTY UNDER RULE 28
both plaintiff available only the plaintiff H. CONSEQUENCES OF REFUSAL UNDER
and to the alone RULE 29
defendant plaintiff,
unless the
defendant A. Depositions Under Rule 23
presents a
counterclaim 1. GENERAL RULES

10-day notice 3-day notice 3-day notice PRIMARY FUNCTION OF A

required required rule applies DEPOSITION
May be On the merits On the merits Deposition is chiefly a mode of
interlocutory discovery, the primary function of which
or on the
is to supplement the pleadings for the
merits
purpose of disclosing the real points of
Usually Available in Available in
available in any action, any action, dispute between the parties and
actions to except except affording an adequate factual basis
recover a annulment of annulment of during the preparation for trial.
debt, or for a marriage or marriage or The liberty of a party to avail of such
liquidated legal legal modes of discovery is unrestricted if the
sum of separation separation matters inquired into are relevant and
money, or for cases cases not privileged, and the inquiry is made
declaratory in good faith and within the bounds of
relief
the law.
Limitations would arise if the
examination is conducted in bad faith;
or in such a manner as to annoy,
embarrass or oppress the person under
examination; or when the inquiry
touches upon the irrelevant or
encroaches upon the recognized
domains of privilege.
Under certain conditions and for certain
limited purposes, it may be taken even
after trial has commenced and may be
used without the deponent being
actually called to the witness stand.
[Jonathan Landoil v Mangudadatu
(2006)

General Rule:
A deposition is not generally
supposed to be a substitute for the
actual testimony in open court of a
party or witness.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
If the witness is available to testify, BEFORE WHOM TAKEN
he should be presented in court to General Rule: Depositions may be
testify. taken before any judge, notary public,

CIVIL PROCEDURE
If available to testify, a partys or or the person referred to in section 14
witness deposition is inadmissible (which refers to any person authorized
in evidence for being hearsay. to administer oaths designated by the
[Dasmarias Garments,Inc. v. Reyes parties by stipulation).
(1993)] Exceptions: In our jurisdiction,
Exception: depositions in foreign countries may be
The exceptions however to the taken:
inadmissibility of such deposition on notice before a secretary of
are provided for in Rule 23, Section embassy or legation, consul general,
4, as follows: consul, vice consul, or consular
agent of the Republic of the
1) Any deposition may be used by any Philippines;
party for the purpose of contradicting or before such person or officer as may
impeaching the testimony of deponent be appointed by commission or
as a witness; under letters rogatory; or
2) The deposition of a party or of any one before any person authorized to
who at the time of taking the deposition administer oaths as stipulated in
was an officer, director, or managing writing by the parties.
agent of a public or private corporation,
partnership, or association which is a COMMISSION LETTERS
party may be used by an adverse party ROGATORY
for any purpose; Addressed Any authority A judicial
3) The deposition of a witness, whether or to whom in a foreign authority in
country the foreign
not a party, may be used by any party
authorized country
for any purpose if the court finds: therein to take
a) that the witness is dead; or down
b) that the witness resides at a depositions
distance more than one hundred Rules that Rules laid Rules laid
(100) kilometers from the place of govern the down by the down by
trial or hearing, or is out of the deposition court issuing such foreign
Philippines, unless it appears that the judicial
his absence was procured by the commission authority
party offering the deposition; or When Preferred over Generally
issued letters resorted to
c) that the witness is unable to attend
rogatory since when there
to testify because of age, sickness, the process is is difficulty
infirmity, or imprisonment; or simpler or
d) that the party offering the deposition (generally, no impossibility
has been unable to procure the need to resort of obtaining
attendance of the witness by to diplomatic the
subpoena; or channels deposition
e) upon application and notice, that unlike in by
such exceptional circumstances letters commission
rogatory) (J. Regalado)
exist as to make it desirable, in the
interest of justice and with due
regard to the importance of No deposition shall be taken before a
presenting the testimony of person who is:
witnesses orally in open court, to a relative within the sixth degree of
allow the deposition to be used; and consanguinity or affinity, or
4) If only part of a deposition is offered in employee or counsel of any of the
evidence by a party, the adverse party parties, or who is a relative within
may require him to introduce all of it the same degree, or employee of
which is relevant to the part introduced, such counsel; or
and any party may introduce any other who is financially interested in the
parts. action.

Page 45 of 370
REVIEWER IN REMEDIAL LAW
2. OTHER RULES
RULE 23 Section 5. Effect of
substitution of parties.
Substitution of parties does not
affect the right to use depositions
previously taken;
and, when an action has been
dismissed and another action
involving the same subject is
afterward brought between the same
parties or their representatives or
successors in interest,
all depositions lawfully taken and
duly filed in the former action MAY
BE USED IN THE LATTER AS IF
ORIGINALLY TAKEN THEREFOR.
A party shall not be deemed to make a
person his own witness for any purpose
by taking his deposition (Section 7).
General Rule: Introduction in evidence
of deposition or any part thereof for any
purpose makes the deponent the
witness of the party introducing the
deposition.
Exception: if the purpose if to
contradict or impeach the deponent.
ONLY INSTANCE WHEN ONE ALWAYS
NEEDS LEAVE OF COURT BEFORE
TAKING DEPOSITIONS: Where the
deponent is in jail.
DEPOSITION, WHEN AVAILABLE IN
CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of
discovery, should be taken BEFORE
AND NOT DURING TRIAL.
In fact, rules on criminal practice -
particularly on the defense of alibi,
which is respondents main defense
in the criminal proceedings against
him in the court below - states that
when a person intends to rely on
such a defense, that person must
move for the taking of the deposition
of his witnesses within the time
provided for filing a pre-trial motion.
The use of discovery procedure in
criminal cases is directed to the
sound discretion of the trial judge.
The deposition taking cannot be
based nor can it be denied on flimsy
reasons. Discretion has to be
exercised in a reasonable manner
and in consonance with the spirit of
the law. [People v. Hubert Webb
(1999)]
Part 2: Ordinary Civil Action
GROUNDS FOR QUESTIONING THE
DEPOSITION
BEFORE DURING AFTER
DEPOSITION DEPOSITION DEPOSITION
CIVIL PROCEDURE
-Lack of notice -Deposition -Manner of
to parties officer is preparing the
-Deposition disqualified deposition
officer is -Error in the
disqualified manner of
-Lack of taking the
relevance, deposition
materiality -Error in the
and form of the
competence of deposition
the deposition
to the action
DASMARINAS GARMENTS VS. REYES
(1993): Any deposition offered to prove
the facts therein at the trial of the case,
in lieu of actual testimony of the
deponent in court, may be opposed and
excluded for being hearsay save in
specific instances under the Rules.
[Dasmarias Garments v. Reyes (1993)]
B. Depositions Before Action Under
Rule 24
Purpose: To perpetuate the testimony
of witnesses for probable use in the
event of further proceedings in said
court.
Procedure:
1. FILE A VERIFIED PETITION IN THE
COURT OF THE PLACE OF THE
RESIDENCE OF ANY EXPECTED
ADVERSE PARTY. THE PETITION
SHALL BE ENTITLED IN THE NAME OF
THE PETITIONER AND SHALL SHOW:
a) that the petitioner expects to be a
party to an action in a court of the
Philippines but is presently unable
to bring it or cause it to be brought;
b) the subject matter of the expected
action and his interest therein;
c) the facts which he desires to
establish by the proposed testimony
and his reasons for desiring to
perpetuate it;
d) the names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known; and
e) the names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and shall
ask for an order authorizing the
Page 46 of 370
REVIEWER IN REMEDIAL LAW
petitioner to take the depositions of
the persons to be examined named
in the petition for the purpose of
perpetuating their testimony.
2. NOTICE AND SERVICE TO EACH
PERSON NAMED IN THE PETITION AS
AN EXPECTED ADVERSE PARTY,
TOGETHER WITH A COPY OF THE
PETITION, STATING THAT:
the petitioner will apply to the court,
at a time and place named therein,
for the order described in the
petition.
At least twenty (20) days before the
date of the hearing, the court shall
cause notice thereof to be served on
the parties and prospective
deponents in the manner provided
for service of summons.
3. ORDER AND EXAMINATION:
If the court is satisfied that the
perpetuation of the testimony may
prevent a failure or delay of justice,
it shall make an order
4. DESIGNATING OR DESCRIBING THE
PERSONS WHOSE DEPOSITION MAY
BE TAKEN AND SPECIFYING THE
SUBJECT MATTER OF THE
EXAMINATION AND
5.
6. WHETHER THE DEPOSITIONS SHALL
BE TAKEN UPON ORAL EXAMINATION
OR WRITTEN INTERROGATORIES
Procedure for taking deposition by oral
examination or written interrogatories
will be governed by Rule 23 on
depositions de bene esse.
C. Depositions Pending Appeal Under
Rule 24
J. Regalado believes that the following
procedure is applicable to civil and
criminal cases.
Procedure:
1. DURING THE PENDENCY OF AN
APPEAL, THE COURT IN WHICH THE
JUDGMENT WAS RENDERED
may allow the taking of depositions
of witnesses to perpetuate their
testimony in the event of further
proceedings in the said court.
In such case the party who desires
to perpetuate the testimony may
make a motion in the said court for
Part 2: Ordinary Civil Action
leave to take the depositions, upon
the same notice and service thereof
as if the action was pending therein.
CIVIL PROCEDURE
The motion shall state:
(a) the names and addresses of
the persons to be examined and
the substance of the testimony
which he expects to elicit from
each, and
(b) the reason for perpetuating
their testimony
2. ORDER ALLOWING THE DEPOSITION:
If the court finds that the
perpetuation of the testimony is
proper to avoid a failure or delay of
justice, it may make an order
allowing the deposition to be taken.
D. Rule 23 Applies on the Manner or
Conduct of the Deposition.
1. INTERROGATORIES TO PARTIES
UNDER RULE 25
Procedure:
By leave of court after jurisdiction has
been obtained over any defendant or
over property which is the subject of the
action, or
Without such leave after an answer has
been served,
any party desiring to elicit material
and relevant facts from any adverse
parties shall file and serve upon the
latter written interrogatories to be
answered by the party served or,
if the party served is a public or
private corporation or a partnership
or association, by any officer thereof
competent to testify in its behalf.
2. ANSWER.
The interrogatories shall be ANSWERED
FULLY IN WRITING and shall be
SIGNED AND SWORN TO BY THE
PERSON MAKING THEM.
The party upon whom the
interrogatories have been served shall
file and serve a copy of the answers on
the party submitting the interrogatories
within fifteen (15) days after service
thereof unless the court on motion and
for good cause shown, extends or
shortens the time.
3. ANSWER DEFERRED
When objections to any interrogatories
is presented to the court within ten (10)
days after service thereof, with notice as
in case of a motion.
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REVIEWER IN REMEDIAL LAW
4. NUMBER OF INTERROGATORIES.
No party may, without leave of court,
serve more than one set of
interrogatories to be answered by the
same party (Section 4, Rule 23).
5. SCOPE OF INTERROGATORIES:
Any matter,
not privileged and which is
relevant to the subject of the
pending action, whether relating to
the claim or defense of any other
party, including the existence,
description, nature, custody,
condition, and location of any
books, documents, or other tangible
things and the identity and location
of persons having knowledge of
relevant facts
6. USE OF INTERROGATORIES:
Same as Rule 23 Section 4 mutatis
mutandis.
7. CONSEQUENCE OF FAILURE TO
SERVE WRITTEN INTERROGATORIES.
A party not served with written
interrogatories may not be compelled by
the adverse party to give testimony in
open court, or
to give a deposition pending appeal
unless thereafter allowed by the court
for good cause shown and to prevent a
failure of justice. (RULE 25, section 6)
8. CONSEQUENCES OF REFUSAL TO
ANSWER THE SET OF
INTERROGATORIES:
The party serving the interrogatories
may apply to the court for an order to
compel an answer.
If it also finds that the refusal to
answer was without substantial
justification, it may require the
refusing party or deponent or the
counsel advising the refusal, or both
of them, TO PAY THE PROPONENT
THE AMOUNT OF THE
REASONABLE EXPENSES
INCURRED IN OBTAINING THE
ORDER, INCLUDING ATTORNEY'S
FEES (Rule 29, section 1).
CONTEMPT for refusal to comply
with an order of the court to compel
an answer
Subject of discovery DEEMED
ADMITTED OR ESTABLISHED
(RULE 29 SECTION 3a).
Part 2: Ordinary Civil Action
Party prohibited from introducing
CONTRADICTORY EVIDENCE
(RULE 29, SECTION 3b)
CIVIL PROCEDURE
STRIKING OUT PLEADINGS OR
PARTS THEREOF (RULE 29,
SECTION 3c)
STAYING FURTHER PROCEEDINGS
UNTIL THE ORDER IS OBEYED, or
DISMISSING THE ACTION OR
PROCEEDING OR ANY PART
THEREOF(RULE 29, SECTION 3c),
or
RENDERING A JUDGMENT BY
DEFAULT AGAINST THE
DISOBEDIENT PARTY; AND (RULE
29, SECTION 3c)
In lieu of any of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of a
party for disobeying any of such orders
(RULE 29, SECTION 3c)
E. Request For Admission Under
Rule 26
1. AT ANY TIME AFTER ISSUES HAVE
BEEN JOINED, A PARTY MAY FILE
AND SERVE UPON ANY OTHER PARTY
MAY FILE AND SERVE UPON ANY
OTHER PARTY A WRITTEN REQUEST
FOR THE ADMISSION BY THE LATTER
OF
The genuineness of any material and
relevant document described in and
exhibited with the request or
the truth of any material and relevant
matter of fact set forth in the request.
2. EACH OF THE MATTERS OF WHICH
AN ADMISSION IS REQUESTED SHALL
BE DEEMED ADMITTED UNLESS,
within a period designated in the
request, which shall not be less than
fifteen (15) days after service thereof, or
within such further time as the court
may allow on motion,
the party to whom the request is
directed files and serves upon the party
requesting the admission a SWORN
STATEMENT either
denying specifically the matters of
which an admission is requested or
setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters.
3. OBJECTIONS TO ANY REQUEST FOR
ADMISSION SHALL BE:
Submitted to the court by the party
requested
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REVIEWER IN REMEDIAL LAW
within the period for and prior to the
filing of his sworn statement as
contemplated in the preceding
paragraph and
his compliance therewith shall be
deferred until such objections are
resolved, which resolution shall be
made as early as practicable.
4. EFFECT OF ADMISSION.
Any admission made by a party
pursuant to such request is for the
purpose of the pending action only and
shall not constitute an admission by
him for any other purpose nor may the
same be used against him in any other
proceeding.
5. WITHDRAWAL. THE COURT MAY
ALLOW THE PARTY MAKING AN
ADMISSION UNDER THE RULE,
WHETHER EXPRESS OR IMPLIED, TO
WITHDRAW OR AMEND IT UPON SUCH
TERMS AS MAY BE JUST.
6. EFFECT OF FAILURE TO FILE AND
SERVE REQUEST FOR ADMISSION.
UNLESS OTHERWISE ALLOWED BY
THE COURT FOR:
good cause shown and
to prevent a failure of justice, a party
who fails to file and serve a request for
admission on the adverse party of
material and relevant facts at issue
which ARE, OR OUGHT TO BE, WITHIN
THE PERSONAL KNOWLEDGE OF THE
LATTER,
shall not be permitted to present
evidence on such facts.
The request for admission MUST BE
SERVED ON THE PARTY and NOT ON
THE COUNSEL.
This is an exception to the general rule
that notices shall be served upon
counsel and not upon the party. [Duque
v. CA (2002)]
F. Production Or Inspection Of
Documents Or Things (See
Appendix 2)
This mode of discovery does not mean
that the person who is required to
produce the document or the thing will
be deprived of its possession even
temporarily.
It is enough that the requesting party be
given the opportunity to inspect or copy
or photograph the document or take a
Part 2: Ordinary Civil Action
look at the thing. (Regalado). (Asked in
the 2002 Bar Exam)
CIVIL PROCEDURE
G. Physical and Mental Examination
of a Party Under Rule 28
Procedure:
1. MOTION FOR THE ISSUANCE OF AN
ORDER FOR EXAMINATION,
REQUISITES
the lis mota of the case is the
physical or mental condition of a
party (NOT A WITNESS!!!)
good cause
notice to the party to be examined
must specify physician
scope of examination
2. COURT IN WHICH THE ACTION IS
PENDING MAY IN ITS DISCRETION
ISSUE THE ORDER FOR
EXAMINATION.
3. REPORT OF FINDINGS.
If requested by the party examined, the
party causing the examination to be
made shall deliver to him a copy of a
detailed written report of the examining
physician setting out his findings and
conclusions.
After such request and delivery, the
party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like
report of any examination, previously or
thereafter made, of the same mental or
physical condition.
If the party examined refuses to deliver
such report, the court on motion and
notice may make an order requiring
delivery on such terms as are just, and
if a physician fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial.
4. WAIVER OF PRIVILEGE.
By requesting and obtaining a report of
the examination so ordered or by taking
the deposition of the examiner,
the party examined waives any privilege
he may have in that action or any other
involving the same controversy,
regarding the testimony of every other
person who has examined or may
thereafter examine him in respect of the
same mental or physical examination.
5. PHYSICIAN-PATIENT PRIVILEGE,
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REVIEWER IN REMEDIAL LAW
Inapplicable because the results of the
examination are intended to be made
public.
Such examination is not necessary to
treat or cure the patient but to assess
the extent of injury or to evaluate his
physic al or mental condition.
H. Consequences of Refusal Under
Rule 29 (See Appendix 3)
VIII. PRE-TRIAL
A. NOTICE OF PRE-TRIAL
B. APPEARANCE OF PARTIES
C. PRE-TRIAL BRIEF
D. RECORD OF PRE-TRIAL
E. CALENDAR OF CASES
Definition:
A mandatory conference and
personal confrontation before the
judge between the parties litigant
and their representative counsels,
called by the court after the joinder
of issues in a case or after the last
pleading has been filed and before
trial,
for the purpose of settling the
litigation expeditiously or
simplifying the issues without
sacrificing the necessary demands of
justice (Asked in the 1999 Bar
Examination, Examiner asked to
compare this with proceedings in the
Katarungang Pambarangay).
Purpose: To consider: [Rule 18, Sec. 2]
Possibility of an amicable settlement
or of a submission to alternative
modes of dispute resolution;
Simplification of the issues;
Necessity/desirability of
amendments to the pleadings;
Possibility of obtaining stipulations
or admissions of facts and of
documents to avoid unnecessary
proof;
Limitation of the number of
witnesses;
Advisability of a preliminary
reference of issues to
commissioner;
Propriety of rendering judgment on
the pleadings, or summary
judgment, or of dismissing the
action should a valid ground
therefor be found to exist;
Part 2: Ordinary Civil Action
Advisability/ecessity of suspending
the proceedings; and
Other matters that may aid in the
CIVIL PROCEDURE
prompt disposition of the action.
Pre-trial is primarily intended to make
certain that all issues necessary to the
disposition of a case are properly raised.
Thus, to obviate the element of surprise,
parties are expected to disclose at a pre-
trial conference (PTC) all issues of law
and fact which they intend to raise at
the trial, except such as may involve
privileged or impeaching matters. The
determination of issues at a pre-trial
conference bars the consideration of
other questions on appeal. [Caltex v. CA
(1992)]
When conducted: After the last pleading
has been served and filed, it shall be the
plaintiffs duty to move ex parte that the
case be set for pre-trial. [Rule 18, Sec. 1]
A pre-trial cannot validly be held until
the last pleading has been filed, which
last pleading may be the plaintiff's
reply, except where the period to file the
last pleading has lapsed.
Discretion to declare a party non-suited
in PTC must not be abused. Unless a
party is so negligent, irresponsible,
contumacious, or dilatory as to provide
substantial grounds for dismissal for
non-appearance, the court should
consider lesser sanctions which would
still amount to achieving the end
desired. [Calalang v. CA (1993)]
A. Notice of Pre-Trial [Rule 18, Sec. 3]
Notice of pre-trial shall be served on
counsel, or on the party who has no
counsel.
Counsel served with such notice has a
duty to notify the party he represents.
B. Appearance of Parties [Rule 18,
Sec. 4]
It is the duty of the parties and their
counsel to appear at the pre-trial.
A partys non-appearance may be
excused only if either:
1) Valid cause is shown for it;
2) A representative appears in his
a behalf, fully authorized in writing:
a) To enter into an amicable
settlement;
b) To submit to alternative modes
of dispute resolution;
c) To enter into
stipulations/admissions of facts
and of documents.
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REVIEWER IN REMEDIAL LAW
Note: See the section on default for the
effects of failure to appear in the pre-
trial.
SC admonishes the courts against
precipitate orders of default as they
have the effect of denying the party the
chance to be heard.
There are instances when parties may
properly be defaulted, but such is the
exception rather than the rule and
should be used only in clear cases of
obstinate refusal or inordinate neglect
to comply with court orders. [Citibank
v. Chua (1993)]
C. Pre-Trial Brief [Rule 18, Sec. 6]
Parties shall file and serve their
respective pre-trial briefs, ensuring
receipt by adverse party at least 3 days
before the date of the pre-trial.
Pre-trial briefs contents (Asked in the
2001 Bar Exam):
1) Statement of their willingness to
enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof;
2) Summary of admitted facts and
proposed stipulation of facts;
3) Issues to be tried/resolved;
4) Documents/exhibits to be
presented, stating the purpose
thereof;
5) Manifestation of their having availed
or their intention to avail themselves
of discovery procedures or referral to
commissioners;
6) Number and names of the
witnesses, and the substance of
their respective testimonies.
Failure to file the pre-trial brief shall
have the same effect as failure to appear
at the pre-trial.
D. Record of Pre-Trial [Rule 18, Sec. 7]
The pre-trial proceedings shall be
recorded. Upon termination of such
proceedings, the court shall issue the
pre-trial order.
Pre-trial orders contents:
1) Matters taken up in the conference;
2) Action taken thereon;
3) Amendments allowed on the
pleadings;
4) Agreements/admissions made by
the parties as to any matters
considered;
Part 2: Ordinary Civil Action
5) Should the action proceed to trial,
the explicit definition and limit of
the issues to be tried.
CIVIL PROCEDURE
Consequence: The contents of the order
shall control the subsequent course of
the action, unless modified before trial
to prevent manifest injustice.
Upon manifestation of the parties of
their willingness to discuss a
compromise, the TC should order the
suspension of the proceedings to allow
them reasonable time to discuss and
conclude an amicable settlement.
If despite all efforts exerted by the TC
and the parties the settlement
conference still fails, then the action
should have continued as if no
suspension had taken place. [Goldloop
Properties v. CA (1992)]
Note: AM 03-1-09-SC
E. Calendar of Cases
Under the direct supervision of the
judge, the clerk of court shall keep a
calendar of cases for pre-trial, for trial,
those whose trials were
adjourned/postponed, and those with
motions to set for hearing. [Rule 20, Sec.
1]
Preference shall be given to habeas
corpus cases, election cases, special
civil actions, and those so required by
law. [Rule 20, Sec. 1]
The assignment of cases to the different
branches of a court shall be done
exclusively by raffle. The assignment
shall be done in open session of which
adequate notice shall be given so as to
afford interested parties the opportunity
to be present. [Rule 20, Sec. 2]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

IX. TRIAL C. Subpoena

A. NOTICE OF TRIAL 1. TYPES OF SUBPOENA [RULE 21, SEC.

CIVIL PROCEDURE
B. ADJOURNMENTS AND POSTPONEMENT 1]
C. SUBPOENA SUBPOENA AD TESTIFICANDUM -
D. CONDUCT OF TRIAL Process directed to a person, requiring
E. GENERAL ORDER OF TRIAL
him to attend and to testify at the
F. AGREED STATEMENT OF FACTS
G. STATEMENT OF THE JUDGE hearing/trial of an action or at any
H. SUSPENSION OF ACTIONS investigation conducted by competent
I. RECEPTION OF EVIDENCE authority, or for the taking of his
J. TRIAL BY COMMISSIONER deposition.
K. CONSOLIDATION AND SEVERANCE SUBPOENA DUCES TECUM Process
L. DEMURRER TO EVIDENCE directed to a person, requiring him to
bring with him any
A. Notice of Trial [Rule 30, Sec. 1] books/documents/things under his
Upon entry of a case in the trial control. (Asked in the 1997 Bar Exam)
calendar, the clerk shall notify parties
the date of its trial, ensuring receipt of 2. BY WHOM ISSUED [RULE 21, SEC. 2]
the notice at least 5 days before the trial The court before whom the witness is
date. required to attend;
The court of the place where the
B. Adjournments and Postponements deposition is to be taken;
[Rule 30, Sec. 2] The officer/body authorized by law to do
so in connection with investigations
General rule: The court may adjourn a conducted by said officer/body;
trial from day to day to any stated time, Any SC/CA Justice in any case or
as the expeditious and convenient investigation pending within the
transaction of business may require. Philippines.
Exception: Court may not adjourn for
longer than 1 month for each 3. APPLICATION FOR SUBPOENA TO
adjournment, nor more than 3 months PRISONER [RULE 21, SEC. 2]
in all. The judge/officer shall examine and
Exception to exception: When study the application carefully to
authorized in writing by the SC Court determine WON it is made for a valid
Administrator. purpose.
However, no prisoner sentenced to
Ground for Requisite for motion to
postponement of postpone death, reclusion perpetua or life
trial imprisonment and who is confined in a
For absence of Affidavit showing: penal institution shall be brought
evidence [Rule 30, 1) The materiality/relevancy outside for appearance/attendance in
Sec. 3] of such evidence; any court unless authorized by the SC.
2) That due diligence has
been used to procure the 4. SUBPOENAS FORM AND CONTENTS
evidence [RULE 21, SEC. 3]
Name of court;
But if the adverse party
admits the facts to be given
Title of action/investigation;
in evidence, trial shall not Directed to a person whose attendance
be postponed even if he is required
objects or reserves the right If subpoena duces tecum, a reasonable
to object to their description of the
admissibility. books/documents/things demanded
which must appear to the court prima
For illness of Affidavit or sworn facie relevant.
party/counsel certification:
[Rule 30, Sec. 4] 1) That the presence of such 5. QUASHING A SUBPOENA [RULE 21,
party/counsel at the trial is SEC. 4]
indispensable; Upon motion promptly made, at/before
2) That the character of his the time specified in the subpoena.
illness is such as to render
Grounds for quashing:
his non-attendance
excusable. 1) Subpoena duces tecum:

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REVIEWER IN REMEDIAL LAW
a) It is unreasonable and
oppressive;
b) The relevancy of the
books/documents/things does
not appear;
c) The person in whose behalf the
subpoena is issued fails to
advance the reasonable cost of
production;
d) Witness fees and kilometrage
were not tendered when
subpoena was served.
2) Subpoena ad testificandum:
a) That the witness is not bound
thereby;
b) That witness fees and
kilometrage were not tendered
when the subpoena was served.
6. SUBPOENA FOR DEPOSITIONS [RULE
21, SEC. 5]
Proof of service of a notice to take a
deposition is sufficient authorization for
the issuance of subpoena ad
testificandum for the persons named in
the notice.
Issued by the clerk of court of the place
in which the deposition is to be taken.
However, subpoena duces tecum for
depositions cannot be issued without
court order.
7. SERVICE OF SUBPOENA [RULE 21,
SEC. 6]
Same manner as personal or
substituted service of summons.
The original shall be exhibited and a
copy delivered to person on whom it is
served, with tender of fees for one days
attendance and kilometrage.
Exception: Tender not required if
subpoena is issued by or on behalf of
the Republic or an officer/agency
thereof.
For subpoena duces tecum, also tender
the reasonable cost of producing the
books/documents/things demanded.
Service must be made so as to allow the
witness reasonable time for preparation
and travel to the place of attendance
8. PERSONAL APPEARANCE IN COURT
[RULE 21, SEC. 7]
A person present in court before a
judicial officer may be required to testify
as if he were in attendance upon a
subpoena issued by such court/officer.
Part 2: Ordinary Civil Action
9. REMEDY IN CASE OF WITNESS
FAILURE TO ATTEND
Upon proof of service of subpoena and
CIVIL PROCEDURE
of witness failure to attend,
the court/judge issuing the subpoena
may issue a warrant to the sheriff to
arrest the witness and bring him before
the court/officer where his attendance
is required. [Rule 21, Sec. 8]
The cost of warrant and seizure
shall be paid by the witness if the
court determines that the failure to
attend was willful and without just
excuse.
Such failure shall be deemed a
contempt of the court which issued the
subpoena. [Rule 21, Sec. 9]
If subpoena was not issued by a
court, the disobedience shall be
punished by applicable law or ROC.
Exception: Arrest warrant and
contempt not applicable to: [Rule 21,
Sec. 10]
1) A witness who resides more than
100km from his residence to the
place where he is to testify.
2) A detention prisoner, if there is no
permission from the court in which
his case is pending.
D. Conduct of Trial [Rule 30, Sec. 5]
General rule: Trial shall be limited to
the issues stated in the pre-trial order.
Exception:
1) Provisions on separate trials.
2) When for special reasons the court
directs otherwise.
E. General Order of Trial
Plaintiff shall adduce evidence in
support of his claim;
Defendant shall adduce evidence in
support of his defense, counterclaim,
cross-claim and 3rd-party complaint;
3rd-party defendant (if any) shall
adduce evidence of his defense,
counterclaim, cross-claim and 4th-party
complaint;
4th-party (and so forth) shall adduce
evidence of the material facts pleaded
by them;
Parties whom any counterclaim or
cross-claim has been pleaded, shall
adduce evidence in support of their
defense, in the order prescribed by the
court.
Parties may then respectively adduce
rebutting evidence only.
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REVIEWER IN REMEDIAL LAW
Exception: When the court permits
them to adduce evidence upon their
original case, for good reasons and
in furtherance of justice.
Upon admission of evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to
argue or to submit their respective
memoranda or any further pleadings.
If several defendants or 3rd-party
defendants having separate defenses
appear by different counsel, the court
shall determine the relative order of
presentation of their evidence.
F. Agreed Statement of Facts [Rule
30, Sec. 6]
Parties may agree in writing upon the
facts involved in the litigation, and
submit the case for judgment without
introduction of evidence.
If the parties agree to only some of the
facts in issue, trial shall be held as to
the disputed facts in such order as the
court shall prescribe.
G. Statement of the Judge [Rule 30,
Sec. 7]
During the hearing/trial of the case,
any statement made by the judge shall
be made of record in the STN if made
with reference to the
case/parties/witnesses/counsels.
H. Suspension of Actions [Rule 30,
Sec. 8]
Governed by the CC provisions.
I. Reception of Evidence [Rule 30,
Sec. 9]
General rule: The judge of the court
where the case is pending shall
personally receive the evidence to be
adduced by the parties.
Exception: The court may delegate the
reception of evidence to its clerk of
court who is a member of the bar in:
a) Default hearings;
b) Ex parte hearings;
c) Cases where parties agree in
writing.
However, the clerk of court has no
power to rule on objections to any
question/admission of exhibits.
Objections shall be resolved by the
court upon submission of the clerks
report and TSN within 10 days from
termination of the hearing.
Part 2: Ordinary Civil Action
J. Trial By Commissioner
COMMISSIONER Includes a referee,
CIVIL PROCEDURE
an auditor or an examiner. [Rule 32,
Sec. 1]
1. KINDS OF TRIAL BY COMMISSIONER
[RULE 32, SEC. 1 AND 2]
Reference by consent of both parties.
Reference ordered on motion when:
a) Trial of an issue of fact requires the
examination of a long account on
either side
b) Taking of an account is necessary
for the courts information before
judgment, or for carrying
judgment/order into effect.
c) A question of fact, other than upon
the pleadings, arises in any stage of
a case or for carrying a
judgment/order into effect.
2. ORDER OF REFERENCE [RULE 32,
SEC. 2 TO 12]
When a reference is made, the clerk
shall furnish the commissioner with a
copy of the order of reference. The order
may specify/limit the commissioners
power, and may direct him to report
only upon particular issues, or to
do/perform particular acts, or to receive
and report evidence only.
The commissioner shall set a
time/place for the first meeting and
shall notify parties/counsels.
Upon completion of the trial/hearing,
the commissioner shall file a written
report with the court.
The clerk shall notify parties of the filing
of the report. The parties 10 days to
object to the reports findings.
After the 10 days, the report shall be set
for hearing. The court may issue an
order adopting/modifying/rejecting the
report or part of it.
When parties stipulate that the
Commissioner's findings of fact are
final, only questions of law shall
thereafter be considered.
K. Consolidation and Severance
1. CONSOLIDATION OF TRIAL [RULE 31,
SEC. 1]
When actions involving common
question of law/fact are pending before
the court, it may:
1) Order a joint hearing/trial of any/all
the matters in issue in the actions;
2) Order all the actions consolidated;
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3) Make such orders concerning the Equivalent to An interlocutory order
proceedings as to avoid unnecessary judgment (i.e. based and not appealable.
costs or delay. on the merits of the However, it may be the
evidence presented so subject of a petition for

CIVIL PROCEDURE
Where a case has been partially tried
far) certiorari for GAD
before one judge, the consolidation of
under Rule 65
the same with another related case [Katigbak v.
pending before another judge who had Sandiganbayan]
no opportunity to observe the demeanor
of the witness during trial makes the MTD Demurrer
consolidation not mandatory. [PCGG v. When Before the service After the
Sandiganbayan (1992)] to File and filing of the plaintiff rests
answer his case
2. SEVERANCE OF TRIAL [RULE 31, SEC. Ground Those enumerated Only ground:
2] in Rule 16 The plaintiff has
The court may issue separate trials for shown no right
convenience or to avoid prejudice: to relief (i.e.
1) Of any claim, cross-claim, evidence is
insufficient)
counterclaim or 3rd-party
Effect If a MTD is
complaint; granted, the
2) Of any separate issue; complaint is
3) Of any number of claims, cross- likewise dismissed.
claims, counterclaims, 3rd-party But, depending on
complaints or issues. the ground, the
complaint may be
L. Demurrer To Evidence re-filed

If the MTD is
Definition: A specie of MTD that may denied, the
be invoked based on insufficiency of defendant shall file
evidence (i.e. upon the facts and the law his responsive
the plaintiff has shown no right to pleading
relief). [Rule 33, Sec. 1]
It is invoked after the plaintiff has DIFFERENCES BETWEEN DEMURRER IN
presented all the evidence available to CIVIL AND CRIMINAL CASES
him. (Asked in the 2003 and 2007 Bar Exams)
Demurrer in civil Demurrer in criminal
Grant of demurrer Denial of demurrer cases cases
Defendant need not May be filed with or
The case shall be The court should set ask for leave of court without leave of court.
dismissed the date for the
reception of the Leave of court is
defendants evidence- necessary so that the
in-chief [Northwest accused can present
Airlines v. CA] his evidence in case
Plaintiff's remedy Xxx the demurrer is denied
would be to appeal.
If the demurrer was
However, if the order without leave, the
granting the demurrer accused can no longer
is reversed on appeal, present his evidence;
the defendant loses his the case is deemed
right to present submitted for decision
evidence. [Rule 33, Sec based on prosecutions
.1; Republic v. Tuvera] evidence
[Rule 119, Sec.23]
The appellate court If the demurrer is The order of dismissal
should render granted, the order of is not appealable
judgment on the basis dismissal is appealable because it will
of the evidence constitute double
submitted by the jeopardy
plaintiff. [Radiowealth
Finance v. Del
Rosario]X

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REVIEWER IN REMEDIAL LAW
X. JUDGMENTS, FINAL ORDERS AND
ENTRY OF JUDGMENT
A. PARTS OF A JUDGMENT
B. DISTINCTION BETWEEN JUDGMENT AND
OPINION OF THE COURT
C. REQUISITES OF A VALID JUDGMENT
D. INTERPRETENTION OF THE JUDGMENT
E. KINDS OF JUDGMENT
F. AMENDMENTS TO JUDGMENT
G. ENTRY OF JUDGMENTS AND FINAL
ORDERS
JUDGMENT - The final ruling by a
court of competent jurisdiction
regarding the rights and obligations of
the parties or other matters submitted
to it in an action/proceeding.
A. Parts of a Judgment
OPINION OF THE COURT - It contains
the findings of facts and conclusions of
law;
DISPOSITION OF THE CASE The
final and actual disposition of the rights
litigated (i.e. the dispositive part);
Signature of the judge.
B. Distinction Between Judgment
and Opinion of the Court
(Asked in the 2006 Bar Exam)
A judgment (or FALLO) must be
distinguished from an opinion.
The latter is the informal expression of
the views of the court and cannot
prevail against its final order or
decision.
While the two may be combined in one
instrument, the opinion forms no part
of the judgment.
So ... there is a distinction between the
findings and conclusions of a court and
its judgment.
While they may constitute its decision
and amount to a rendition of a
judgment they are not the judgment
itself.
They amount to nothing more than an
order for judgment, which, of course,
must be distinguished from the
judgment. (Freeman on Judgments, Vol.
I, 5th Edition, page 6, quoted in Casilan
vs. Salcedo, 1969)
Part 2: Ordinary Civil Action
C. Requisites of a Valid Judgment
[Rule 36, Sec. 1; Art. 8, Sec. 14, 1987
Constitution]
CIVIL PROCEDURE
a. Court/tribunal must be with authority to
hear and determine the matter before it;
b. Court must have jurisdiction over the
parties and the subject matter;
c. Parties must have been given an
opportunity to adduce evidence in their
behalf;
d. Evidence must have been considered by
the tribunal in deciding the case; [Acosta
v. COMELEC]
e. Judgment must be in writing, personally
and directly prepared by the judge;
f. A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan]
g. Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court.
A decision need not be a complete
recital of the evidence presented. So
long as the factual and legal bases are
distinctly and clearly set forth, the
judgment is valid. [Chan v. CA]
D. Interpretation of the Judgment
Where the judgment is difficult to
execute because of ambiguity in its
terms, the remedy of the party is to file
a motion for clarificatory judgment and
not to assail the judgment as void.
Where there is a conflict between the
body and the dispositive portion (fallo)
of the decision, the dispositive portion
controls.
Exception: Where the inevitable
conclusion from the body of the decision
is so clear that there was a mistake in
the dispositive portion, the body of the
decision will prevail. [Poland Industrial
v. National Devt Co.]
E. Kinds of Judgment
1. JUDGMENT UPON COMPROMISE
It is one conferred on the basis of a
compromise agreement entered into
between the parties.
It is immediately executory in the
absence of a motion to set aside on the
ground of FAME.
2. JUDGMENT UPON CONFESSION
It is one rendered by the court when a
party expressly agrees to the other
partys claim or acknowledges the
validity of the claim against him.
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REVIEWER IN REMEDIAL LAW
Judgment upon Judgment by
compromise confession
The provisions and An affirmative
terms are settled by voluntary act of
the parties to the defendant himself.
action. The judgment court exercises
is entered in the record certain amount
by consent of the supervision over
court. entry of judgment.
Kinds of judgment by confession:
a. JUDGMENT BY COGNOVIT
ACTIONEM After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiffs cause of action was just and
rightful.
b. JUDGMENT BY CONFESSION
RELICTA VERIFICATIONE After
pleading and before trial,
defendant both: (a) confessed the
plaintiffs cause of action and (b)
withdrew his plea or other allegations,
whereupon judgment was entered
against him without proceeding to
trial.
Remedy against judgment by consent,
confession or compromise is to first
file a motion to set it aside; if denied,
file the appropriate petition under
Rule 65.
3. JUDGMENT UPON THE MERITS
It is one that is rendered after
consideration of the evidence submitted
by the parties during the trial of the
case.
4. CLARIFICATORY JUDGMENT
It is rendered to clarify an ambiguous
judgment or one difficult to comply
with.
5. JUDGMENT NON PRO TUNC
Literally, now for then. It is a
judgment intended to enter into the
record the acts which had already been
done, but which do not appear in the
records.
6. JUDGMENT SIN PERJUICIO
It may refer to a dismissal of a case
without prejudice to it being re-filed.
7. CONDITIONAL JUDGMENT
It is one the effectivity of which depends
upon the occurrence or non-occurrence
of an event.
8. SEVERAL JUDGMENT
It is one rendered by a court against one
or more defendants and not against all
of them, leaving the action to proceed
against the others. [Rule 36, Sec. 4]
Part 2: Ordinary Civil Action
It is proper when the liability of each
party is clearly separate and distinct
and from his co-parties
the
CIVIL PROCEDURE
such that the claims against each of
The
a
them could have been the subject of
of separate suits, and the judgment for
the or against one of them will not
necessarily affect the other.
9. SEPARATE JUDGMENT
It is one rendered disposing of a claim
among several others presented in a
case, after a determination of the issues
material to a particular claim and all
counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Rule 36,
Sec. 5]
the It is proper when more than one
claim for relief is presented in an
action for the determination as to
the issues material to the claim has
been made.
The judgment shall terminate the
action with respect to the claims
disposed of, and shall proceed as to
the remaining claims.
The court may stay its enforcement
until rendition of subsequent
judgments, and may prescribe
conditions to secure the judgments
benefits.
Judgment may be given for/against one
or more of several plaintiffs/defendants.
The court may require the parties on
each side to file adversary pleadings as
between themselves. [Rule 36, Sec. 3]
If judgment is rendered against 2 or
more persons sued as an entity without
juridical personality, the judgment shall
set out their individual names (if
known). [Rule 36, Sec. 6]
10. PROMULGATION
The process by which a decision is
published, officially announced, made
known to the public or delivered to the
clerk of court for filing, coupled with
notice to the parties or their counsel.
11. MEMORANDUM DECISION
A decision of the appellate court which
adopts the findings and conclusions of
the TC.
A judgment is considered rendered
upon the filing of the signed decision.
This includes an amended decision
because an amended decision is a
distinct and separate judgment and
must follow the established
procedural rule.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

F. Amendments To Judgments Court makes a Serves to add to the

(Asked in the 2008 Bar Exams) thorough study of the original judgment
The power to amend judgments is original judgment and
renders the amended

CIVIL PROCEDURE
inherent to the court before judgment
and clarified judgment
becomes final and executory. only after considering
General rule: The court cannot amend all the factual and legal
the judgment once it has become final issues
and executory.
Exception:
1) To make corrections of clerical
G. Entry of Judgments and Final
errors, not substantial amendments,
as by an amendment non pro tunc; Orders
2) To clarify an ambiguity which is [Rule 36, Sec. 2]
borne out by and justifiable in the If there is no appeal/MNT/MFR filed
context of the decision; within the prescribed periods, the clerk
3) In judgments for support, which can of court shall enter the judgment or
always be amended from time to final order in the book of entries of
time. judgments.
Date of finality of the judgment Date
Amended/clarified Supplemental decision of its entry in the book.
judgment The record shall contain the judgments
An entirely new Does not take the place dispositive part, shall be signed by the
decision and of or extinguish the clerk of court, and certified that the
supersedes the original original judgment judgment has become final and
judgment executor.

XI. EXECUTION OF JUDGMENTS

A. EXECUTION AS A MATTER OF RIGHT

B. DISCRETIONAY EXECUTION
C. EXECUTION OF JUDGMENTS FOR MONEY
D. EXECUTION OF JUDGMENTS FOR SPECIFIC
ACTS
E. EXECUTION OF SPECIAL JUDGMENTS
F. GENERAL RULES GOVERNING EXECUTION
G. EFFECTS OF JUDGMENTS OR FINAL ORDERS

A. Execution as a Matter of Right

JUDGMENT OR FINAL ORDER (order

that disposes of the action or proceeding)

If no appeal has been perfected, or the If an appeal has been perfected and duly
period of appeal has expired resolv ed, there are twoways by whic h
execution can be carried out

Prevailing Party applies (by motion) for a

writ of execution, whic h is granted by the Prevailing party files a The appellate court
judge since it is a matter of right motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.

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REVIEWER IN REMEDIAL LAW
General rule: When the judgment or
order becomes executory, the court
cannot refuse to issue a writ of
execution
Exceptions: The issuance of a writ of
execution which issues as a matter of
right can be countered in any of the
following cases (R-I-N-S-E-D):
When a PETITION FOR RELIEF or
an action to enjoin judgment is filed
and a preliminary injunction is
prayed for and granted (Rule 38.5);
When the judgment turns out to be
INCOMPLETE OR IS
CONDITIONAL since as a matter of
law, such judgment CANNOT BE
FINAL;
When the judgment has been
NOVATED BY THE PARTIES
1) When SUBSEQUENT FACTS
AND CIRCUMSTANCES
transpire as to render such
execution unjust or impossible
2) On EQUITABLE GROUNDS as
when there has been a change in
the situation of the parties
which makes execution
INEQUITABLE.
3) When the judgment becomes
DORMANT, the 5-year period
under Rule39.6 having expired
without the judgment having
been revived.
General rule: An ex parte motion for
the issuance of the writ of execution
would suffice since the trial court may
take judicial notice of the record of the
case to determine the propriety of the
issuance thereof.
Exception: However when the losing
party shows that subsequent facts had
taken place which would render the
execution unjust, a hearing on the
motion should be held. [Luzon Surety v.
Beson (1976)]
General rule: An appeal seasonably
perfected shall stay the execution of the
judgment, unless discretionary
execution is granted by the court.
Exceptions: However, judgments in the
following action, despite perfection of an
appeal, shall be executed, unless the
court orders otherwise:
injunction
receivership
accounting
support
Part 2: Ordinary Civil Action
such other judgments as shall now
or may hereafter be declared to be
immediately executory
CIVIL PROCEDURE
Judgments in these actions shall be
enforceable after their rendition and
shall not, be stayed by an appeal taken
therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
On appeal therefrom, the appellate
court in its discretion may make an
order suspending, modifying, restoring
or granting the injunction, receivership,
accounting, or award of support.
General rule:
According to Rule 39, Section 6: A
final and executory judgment or
order may be executed on motion
within five (5) years from the date of
its entry.
After the lapse of such time, and
before it is barred by the statute of
limitations, a judgment may be
enforced by action.
The revived judgment may also be
enforced by motion within five (5)
years from the date of its entry and
thereafter by action before it is
barred by the statute of limitations.
The maximum period within which a
final and executory judgment may be
executed is 20 years (Rule 39.6 in
relation to New Civil Code provision on
prescription of judgment).
Exceptions:
judgment for support WHICH DO
NOT BECOME DORMANT AND
WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez]
except for support in arrears beyond
10 years from the date they become
due;
contempt orders by reason of
unauthorized reentry on the land by
the ejected defendant [Azotes v.
Blanco];
issuance of writs of possession in
FORECLOSURE CASES within the
statute of limitations;
land registration proceedings (and
other special proceedings), hence
the right to ask for a WRIT OF
POSSESSION THEREIN NEVER
PRESCRIBES
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

B. Discretionary Execution

CIVIL PROCEDURE
Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be.

In Situat ion1, prevailing party f iles a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situat ion2, prevailing party f iles the motion
f or execution pending appeal in the appellate court.

Discretionary execution may be

granted only f or GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICI ENT SUPERSEDEAS BOND FIL ED by the party against w hom it is
directed, conditioned upon the perf ormance of the judgment or order allow ed to be executed
in case it shall be f inally sustained in w hole or in part. The bond thus given m ay be
procee ded against on motion with notice to the s ure ty

IN CASE the judgment w hich w as executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherw ise, the trial court may, on
motion, issue such orders of res titution or reparation of dam ages as
equity and justice m ay w arrant unde r the circumstances

General rule: Under the Rule on It is acquired either by the arrest of

Discretionary Execution, the court the accused or by his voluntary
rendering the judgment, if it still has appearance in court. [Heirs of
jurisdiction, may exercise discretion Justice J.B.L. Reyes v. CA (2000)]
and order execution pending appeal
(Asked in the 2002 Bar Exam). General rule: The filing of a
Exception: This rule, however, is supersedeas bond is sufficient to stay
inapplicable in the case of the Court of the enforcement of a discretionary
Appeals. execution.
The Rule on Discretionary Execution Exception: However, according to J.
contemplates a situation where a Regalado, THE FILING OF
judgment or final order rendered in SUPERSEDEAS BOND does not entitle
the exercise of its original the judgment debtor to the suspension
jurisdiction and the prevailing party of execution as a MATTER OF RIGHT.
in said decision seeks immediate Where the needs of the prevailing
execution during the pendency of an party are URGENT, the Court can
appeal. order immediate execution despite
The CA has no authority to issue such SUPERSEDEAS BOND.
IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS C. Execution of Judgments for
THEREIN. Money
Discretionary execution is allowed (asked in the 2007 Bar Exam)
pending appeal of judgment or final
order of the trial court upon good 1. IMMEDIATE PAYMENT ON DEMAND
reasons to be stated in a e special
Procedure:
order.
The sheriff or executing officer
A JUDGMENT OF THE CA CANNOT
demands from the judgment
BE EXECUTED PENDING APPEAL.
obligor the immediate payment of

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REVIEWER IN REMEDIAL LAW
the full amount stated in the writ of
execution and all lawful fees.
The judgment obligor shall pay in
cash, certified bank check payable
to the judgment obligee, or ANY
OTHER FORM OF PAYMENT
ACCEPTABLE TO THE LATTER (e.g.,
dacion en pago), the amount of the
judgment debt under proper receipt
directly to the judgment obligee or
his authorized representative if
present at the time of payment.
The lawful fees shall be handed
under proper receipt to the
executing sheriff who shall turn over
the said amount within the same
day to the clerk of court of the court
that issued the writ.
If the judgment obligee or his
authorized representative is not
present to receive payment, the
judgment obligor shall deliver the
aforesaid payment to the executing
sheriff. The latter shall turn over all
the amounts coming into his
possession within the same day to
the clerk of court of the court that
issued the writ, or if the same is not
practicable, deposit said amounts to
a fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
The clerk of said court shall
thereafter arrange for the remittance
of the deposit to the account of the
court that issued the writ whose
clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment.
The excess, if any, shall be delivered
to the judgment obligor while the
lawful fees shall be retained by the
clerk of court for disposition as
provided by law. In no case shall the
executing sheriff demand that any
payment by check be made payable
to him.
2. SATISFACTION BY LEVY
Nature:
LEVY MEANS THE ACT OR ACTS by
which an officer sets apart or
appropriates a part or the whole of
the property of the judgment debtor
for purposes of the prospective
execution sale [Llenares v.
Vandevella (1966)].
If susceptible of appropriation, the
officer REMOVES AND TAKES THE
Part 2: Ordinary Civil Action
PROPERTY FOR SAFEKEEPING;
otherwise the same is placed under
sheriffs guards. Without valid levy
CIVIL PROCEDURE
having been made, ANY SALE OF
THE PROPERTY THEREAFTER is
void.
Procedure:
If the judgment obligor cannot pay
all or part of the obligation in cash,
certified bank check or other mode
of payment acceptable to the
judgment obligee, the officer shall
levy upon:
the properties of the judgment
obligor of every kind and nature
whatsoever which may be disposed,
of for value and
not otherwise exempt from
execution
The sheriff gives the judgment
obligor the option as to which of the
property or part thereof may be
levied upon, sufficient to satisfy the
judgment
If the judgment obligor does not
exercise the option, the officer shall
first levy on the personal properties,
if any, and then on the real
properties if the personal properties
are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient
portion of the personal or real
property of the judgment obligor
which has been levied upon.
When there is more property of the
judgment obligor than is sufficient
to satisfy the judgment and lawful
fees, he must sell only so much of
the personal or real property as is
sufficient to satisfy the judgment
and lawful fees.
3. GARNISHMENT OF DEBTS AND
CREDITS
Scope: The officer may levy on debts
due the judgment obligor and other
credits, including bank deposits,
financial interests, royalties,
commissions and other personal
property not capable of manual delivery
in the possession or control of third
parties.
The process of levying shall be
called garnishment if the property
involved is money, stocks, or other
incorporeal property in the HANDS
OF THIRD PERSONS. Garnishment
merely sets apart such funds but
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REVIEWER IN REMEDIAL LAW
does not constitute the creditor as
owner of the garnished property.
In Chinabank v. Ortega, the Court
held that garnishment is not a
violation of RA 1405 on the secrecy
of bank deposits.
Procedure:
Levy shall be made by SERVING
NOTICE UPON THE PERSON
OWING SUCH DEBTS OR HAVING
IN HIS POSSESSION OR CONTROL
SUCH CREDITS TO WHICH THE
JUDGMENT OBLIGOR IS
ENTITLED. The garnishment shall
cover only such amount as will
satisfy the judgment and all lawful
fees.
The garnishee shall make a
WRITTEN REPORT to the court
within five (5) days from service of
the notice of garnishment stating
whether or not the judgment obligor
has sufficient funds or credits to
satisfy the amount of the judgment.
If not, the report shall state how
much funds or credits the garnishee
holds for the judgment obligor
The garnished amount in cash, or
certified bank check issued in the
name of the judgment obligee, shall
BE DELIVERED DIRECTLY TO THE
JUDGMENT OBLIGEE within ten
(10) working days from service of
notice on said garnishee requiring
such delivery, except the lawful fees
which shall be paid directly to the
court.
In the event there are two or more
garnishees holding deposits or
credits sufficient to satisfy the
judgment, the judgment obligor, if
available, shall have the right to
indicate the garnishee or garnishees
who shall be required to deliver the
amount due, otherwise, the choice
shall be made by the judgment
obligee.
The executing sheriff shall observe
the same procedure under
IMMEDIATE PAYMENT ON
DEMAND with respect to delivery of
payment to the judgment obligee.
Part 2: Ordinary Civil Action
D. Execution of Judgments for
Specific Acts
CIVIL PROCEDURE
1. CONVEYANCE, DELIVERY OF DEEDS,
OR OTHER SPECIFC ACTS
Under this situation, there is a
judgment which directs a party to
execute a conveyance of land or
personal property, or to deliver deeds or
other documents, or to perform, any
other specific act IN CONNECTION
THEREWITH.
If the party so ordered fails to comply
within a specified period, there are two
possible remedies. Either:
the court may DIRECT THE ACT TO
BE DONE AT THE COST OF THE
DISOBEDIENT PARTY by some
other person appointed by the court
and the act when so done shall have
like effect as if done by the party, or
if real or personal property is
situated within the Philippines, the
court in lieu of directing a
conveyance thereof may by an order
divest the title of any party and vest
it in others, which shall have the
force and effect of a conveyance
executed in due form of law.
2. SALE OF REAL OR PERSONAL
PROPERTY
If judgment is rendered ordering the
sale of real or personal property, an
order for execution shall be issued
describing such property as may be
ordered sold, selling it, and applying the
proceeds in conformity with the
judgments instructions.
3. DELIVERY OR RESTITUTION OF REAL
PROPERTY
The officer shall demand of the person
against whom the judgment for the
delivery or restitution of real property is
rendered and all persons claiming rights
under him
to peaceably vacate the property within
three (3) working days, and restore
possession thereof to the judgment
obligee,
otherwise, the officer shall oust all
such persons therefrom with the
assistance, if necessary, of appropriate
peace officers, and employing such
means as may be reasonably necessary
to retake possession, and place the
judgment obligee in possession of such
property.
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REVIEWER IN REMEDIAL LAW
ANY COSTS, DAMAGES, RENTS OR
PROFITS AWARDED BY THE
JUDGMENT SHALL BE SATISFIED IN
THE SAME MANNER AS A JUDGMENT
FOR MONEY.
4. REMOVAL OF IMPROVEMENTS ON
PROPERTY SUBJECT OF EXECUTION
When the property subject of the
execution contains improvements
constructed or planted by the judgment
obligor or his agent,
the officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment obligee after the
hearing and after the former has failed
to remove the same within a reasonable
time fixed by the court.
5. DELIVERY OF PERSONAL PROPERTY
In judgment for the delivery of personal
property, the officer shall take
possession of the same and forthwith
deliver it to the party entitled thereto
and satisfy any judgment for money as
therein provided.
E. Execution of Special Judgments
When a judgment requires the
performance of ANY ACT OTHER THAN
THOSE MENTIONED IN THE TWO
PRECEDING SECTIONS (EXECUTION
OF JUDGMENT FOR MONEY AND
SPECIFIC ACTS),
a certified copy of the judgment shall be
attached to the writ of execution and
shall be served by the officer upon the
party against whom the same is
rendered, or upon any other person
required thereby, or by law, to obey the
same, and such party or person may be
punished for contempt if he disobeys
such judgment.
Special judgments are those which can
be complied with by the judgment
obligor because of his personal
qualifications or circumstances (e.g., a
judgment ordering a partner to render
an accounting, a judgment ordering a
party to comply with his recording
contract otherwise, pay damages).
Note the difference with sections 9 and
10 (on execution of money judgments
and specific acts) where contempt is not
a remedy against disobedience by a
party.
Part 2: Ordinary Civil Action
F. General Rules Governing
Executions
CIVIL PROCEDURE
1. PROPERTY EXEMPT FROM
EXECUTION
General rule: Except as otherwise
expressly provided by law, the following
property, and no other, shall be exempt
from execution: (FOTNUP-LBS-GMRE)
(a) The judgment obligor's family home
as provided by law, or the
homestead in which he resides, and
land necessarily used in connection
therewith;
(b) Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
(c) Three horses, or three cows, or three
carabaos, or other beasts of burden,
such as the judgment obligor may
select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles
for ordinary personal use, excluding
jewelry;
(e) Household furniture and utensils
necessary for housekeeping, and
used for that purpose by the
judgment obligor and his family,
such as the judgment obligor may
select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family
use sufficient for four months;
(g) The professional libraries and
equipment of judges, lawyers,
physicians, pharmacists, dentists,
engineers, surveyors, clergymen,
teachers, and other professionals,
not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not
exceeding the total value of one
hundred thousand pesos owned by
a fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages, or
earnings of the judgment obligor for
his personal services within the four
months preceding the levy as are
necessary for the support of his
family;
(j) Lettered gravestones;
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REVIEWER IN REMEDIAL LAW
(k) Monies, benefits, privileges, or
annuities accruing or in any manner
growing out of any life insurance;
(l) The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity
from the Government;
(m) Properties specially exempted by
law. (e.g., property mortgaged to the
DBP [Section 26, CA 458]; savings of
national prisoners deposited with
the POSTAL SAVINGS BANK [Act
2489]; benefits from private
retirement systems of companies
and establishments with limitations
[RA 4917]; laborers wages except for
debts incurred for food, shelter,
clothing and medical attendance
[ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA
1161 AS AMENDED])
Exception: However, no article or
species of property mentioned in this
section shall be exempt from (1)
execution issued upon a judgment
recovered for its price or (2) upon a
judgment of foreclosure of a mortgage
thereon.
The exemptions MUST BE CLAIMED,
otherwise they are deemed waived. It is
not the duty of the sheriff to set off the
exceptions on his own initiative.
[Herrera v. Mcmicking]
2. RETURN OF WRIT OF EXECUTION
The writ of execution shall be
returnable to the court issuing it
immediately after the judgment has
been satisfied in part or in full.
If the judgment cannot be satisfied in
full within thirty (30) days after his
receipt of the writ, the officer shall
report to the court and state the reason
therefor.
Such writ shall continue in effect during
the period within which the judgment
may be enforced by motion.
The officer shall make a report to the
court every thirty (30) days on the
proceedings taken thereon until the
judgment is satisfied in full, or its
effectivity expires.
The returns or periodic reports shall set
forth the whole of the proceedings
taken, and shall be filed with the court
and copies thereof promptly furnished
the parties. [Section 12, Rule 39]
Part 2: Ordinary Civil Action
3. NOTICE REQUIREMENT
Before the sale of property on execution,
notice thereof must be given as follows:
CIVIL PROCEDURE
a. In case of perishable property, by
posting written notice of the time
and place of the sale in three (3)
public places, preferably in
conspicuous areas of the (CPM)
municipal or city hall, post office
and public market in the
municipality or city where the sale is
to take place, for such time as may
be reasonable, considering the
character and condition of the
property;
b. In case of other personal property,
by posting a similar notice in the
three (3) public places above-
mentioned for not less than five (5)
days;
c. In case of real property, by posting
for twenty (20) days in the three (3)
public places abovementioned a
similar notice particularly describing
the property and stating where the
property is to be sold, and if the
assessed value of the property
exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the
notice once a week for two (2)
consecutive weeks in one newspaper
selected by raffle, whether in
English, Filipino, or any major
regional language published, edited
and circulated or, in the absence
thereof, having general circulation
in the province or city;
d. In all cases, written notice of the
sale shall be given to the judgment
obligor, at least three (3) days before
the sale, except as provided in
paragraph (a) hereof where notice
shall be given the same manner as
personal service of pleadings and
other papers as provided by section
6 of Rule 13.
The notice shall specify the place, date
and exact time of the sale which should
not be earlier than nine o'clock in the
morning and not later than two o'clock
in the afternoon (9am-2pm).
The place of the sale MAY BE AGREED
UPON BY THE PARTIES.
In the absence of such agreement, the
sale of the property or personal property
not capable of manual delivery
shall be held in the office of the clerk of
court of the Regional Trial Court or the
Municipal Trial Court which issued the
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
writ of or which was designated by the The proceedings set forth above shall
appellate court. not prevent such claimant or any third
In the case of personal property capable person from vindicating his claim to the

CIVIL PROCEDURE
of manual delivery, the sale shall be property in a separate action,
held in the place where the property is or prevent the judgment obligee from
located. [Section 15, Rule 39] claiming damages in the same or a
separate action against a third-party
PENALTIES claimant who filed a frivolous or plainly
(Selling without notice and defacing notice) spurious claim.
An officer selling A person willfully
without the notice removing or defacing Apart from Rule 39, the only other
prescribed by section the notice posted provisions of the Rules of Court dealing
15 of this Rule with terceria or third party claims are
pay punitive damages if done before the sale, Rule 57.14 on preliminary attachment
in the amount of five or before the and Rule 60.7 on replevin.
thousand (P5,000.00) satisfaction of the
pesos to any person judgment if it be In Sierra v. Rodriguez and Northern
injured thereby, IN satisfied before the Motors v. Coquia, the Court held that
ADDITION TO HIS sale, shall be liable to
the third party claimant CANNOT
ACTUAL DAMAGES, pay five thousand
BOTH TO BE (P5,000.00) pesos to APPEAL NOR AVAIL OF CERTIORARI
RECOVERED BY any person injured by AS A REMEDY in the event that his
MOTION IN THE SAME reason thereof, in claim was denied since HE IS A
ACTION addition to his actual NONPARTY to the original action.
damages, to be
recovered by motion 5. PREVENTING EXECUTION SALE
in the same action
At any time before the sale of property
4. RULES REGARDING TERCERIA on execution, the judgment obligor may
(THIRD-PARTY CLAIMS) prevent the sale by paying the amount
(Asked in the 2000 & 2005 Bar Exams) required by the execution and the costs
that have been incurred therein.
The third person whose property was levied [Section 18, Rule 39]
on must make an (AGS-) This is akin to the equitable right of
affidavit of his title thereto or right to the
redemption under Rule 68, which is
possession thereof,
available to the judgment obligor in
stating the grounds of such right or title,
and judicial foreclosure of mortgage.
serves the same upon the officer making The difference lies in the fact that under
the levy and copy thereof, upon the Rule 68, a definite period is given.
judgment oblige;
The officer shall not be bound to keep the 6. CONCLUDING THE EXECUTION SALE
property, as a general rule
When the purchaser is the judgment
obligee, and no third-party claim has
Sheriff is bound to keep the property when been filed, he need not pay the amount
the judgment obligee, on demand of the of the bid if it does not exceed the
officer, files a bond approved by the court to amount of his judgment. If it does, he
indemnify the third-party claimant in a sum shall pay only the excess. [Section 21,
not less than the value of the property levied Rule 39]
on. By written consent of the judgment
obligor and obligee, or their duly
authorized representatives, the officer
In case of disagreement as to such value of
the bond, the same shall be determined by
may adjourn the sale to any date and
the court issuing the writ of execution. time agreed upon by them. Without
No claim for damages for the taking or such agreement, he may adjourn the
keeping of the property may be enforced sale from day to day if it becomes
against the bond unless the action therefor necessary to do so for lack of time to
is filed within one hundred twenty (120) complete the sale on the day fixed in the
days from the date of the filing of the bond. notice or the day to which it was
The officer shall not be liable for damages for adjourned [Section 22, Rule 39]. Written
the taking or keeping of the property, to any
consent is essential, otherwise the
third-party claimant if such bond is filed

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REVIEWER IN REMEDIAL LAW
adjournment will be void [Abrozar v. IAC
(1988)]
Upon a sale of real property , the officer
must give to the purchaser a certificate
of sale containing: (a) A particular
description of the real property sold; (b)
The price paid for each distinct lot or
parcel; (c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year from
the date of the registration of the
certificate of sale. Such certificate must
be registered in the registry of deeds of
the place where the property is situated.
[Section 25, Rule 39]
How property sold on execution (See
Appendix1)
7. RULES GOVERNING REDEMPTION
Real property sold as provided in the
last preceding section, or any part
thereof sold separately, may be
redeemed in the manner hereinafter
provided, by the following persons:
The judgment obligor; or his
successor in interest in the whole or
any part of the property;
A creditor having a lien by virtue of
an attachment, judgment or
mortgage on the property sold, or on
some part thereof, subsequent to
the lien under which the property
was sold. Such redeeming creditor is
termed a redemptioner. [Section 27,
Rule 39]
Redemption can be made by either
person:
JUDGMENT OBLIGOR, within one
year from the date of registration of
the certificate of sale
REDEMPTIONER, within one year
from the date of registration of the
certificate of sale; or within 60 days
from the last redemption by another
redemptioner.
BUT IN ALL CASES, the judgment
obligor shall have the entire period
of 1 YEAR from the date of
registration of the sale to redeem the
property.
IF THE JUDGMENT OBLIGOR
REDEEMS, no further redemption is
allowed and he is restored to his
estate.
THE PERIOD FOR REDEMPTION IS
NOT SUSPENDED by an action to
annul the foreclosure sale.
Part 2: Ordinary Civil Action
A right of redemption cannot be levied
upon by a judgment creditor. The
creditor may not deprive the debtor of
CIVIL PROCEDURE
any further rights to the property
[Lichauco v. Olegario]
Redemption price varies depending on
who the redemptioner is:
If judgment obligor:
Purchase price
o 1 % interest thereon up to the
time of redemption
o Any amount of assessments or
taxes which the purchaser may
have paid thereon after
purchase and interest on such
last named amount at the same
rate.
o If the purchaser be also a
creditor having prior lien to that
of the redemptioner, other than
the judgment under which such
purchase was made, the amount
of such other lien, with interest.
If redemptioner
Amount paid on the last redemption
o 2% interest thereon.
o Any amount of assessments or
taxes which the last
redemptioner may have paid
thereon after redemption by him
with interest on such last named
amount;
o Amount of any liens held by said
last redemptioner prior to his
own with interest
8. EFFECTS OF REDEMPTION
[Section 29, Rule 39]
If the judgment obligor redeems he
must make the same payments as
are required to effect a redemption
by a redemptioner, whereupon, no
further redemption shall be allowed
and he is restored to his estate.
The person to whom the redemption
payment is made must execute and
deliver to him a certificate of
redemption acknowledged before a
notary public or other officer
authorized to take acknowledgments
of conveyances of real property.
Such certificate must be filed and
recorded in the registry of deeds of
the place in which the property is
situated and the registrar of deeds
must note the record thereof on the
margin of the record of the
certificate of sale.
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REVIEWER IN REMEDIAL LAW
The payments mentioned in this and
the last preceding sections may be
made to the purchaser or
redemptioner, or for him to the
officer who made the sale.
[Section 30, Rule 39]
A redemptioner must produce to the
officer, or person from whom he seeks
to redeem, and serve with his notice to
the officer
a copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein the judgment or final
order is entered, OR,
if he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the
registrar of deeds, OR
an original or certified copy of any
assignment necessary to establish
his claim; AND
an affidavit executed by him or his
agent, showing the amount then
actually due on the lien.
[Section 31, Rule 39]
Until the expiration of the time
allowed for redemption, the court
may, as in other proper cases,
restrain the commission of waste on
the property by injunction, on the
application of the purchaser or the
judgment obligee, with or without
notice;
but it is not waste for a person in
possession of the property at the
time of the sale, or entitled to
possession afterwards, during the
period allowed for redemption, to
continue to use it in the same
manner in which it was previously
used, or to use it in the ordinary
course of husbandry; or to make the
necessary repairs to buildings
thereon while he occupies the
property.
The purchaser or a redemptioner shall
not be entitled to receive the rents,
earnings and income of the property
sold on execution, or the value of the
use and occupation thereof when such
property is in the possession of a
tenant.
All rents, earnings and income derived
from the property pending redemption
shall belong to the judgment obligor
until the expiration of his period of
Part 2: Ordinary Civil Action
redemption. In all, the judgment debtor
shall exercise the following rights:
Remain in possession of the
CIVIL PROCEDURE
property
He cannot be ejected;
Use the property in the same
manner it was previously used;
Make Necessary repairs to buildings
thereon while he occupies the
property
Use it in the ordinary course of
husbandry
vi. Collect rents, earnings and
income derived from the property
until the expiration of peiord of
redemption.
[Section 33, Rule 39]
If no redemption be made within one
(1) year from the date of the
registration of the certificate of sale,
the purchaser is entitled to a
conveyance and possession of the
property; or, if so redeemed
whenever sixty (60) days have
elapsed and no other redemption
has been made, and notice thereof
given, and the time for redemption
has expired, the last redemptioner is
entitled to the conveyance and
possession;
but in all cases the judgment obligor
shall have the entire period of one
(1) year from the date of the
registration of the sale to redeem the
property.
The deed shall be executed by the
officer making the sale or by his
successor in office, and in the latter
case shall have the same validity as
though the officer making the sale
had continued in office and
executed it.
Upon the expiration of the right of
redemption, the purchaser or
redemptioner shall be substituted to
and acquire all the rights, title,
interest and claim of the judgment
obligor to the property as of the time
of the levy.
The possession of the property shall
be given to the purchaser or last
redemptioner by the same officer
unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely
to the judgment obligor.
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REVIEWER IN REMEDIAL LAW
Recovery of purchase price and revival
of judgment:
When property liable to an
execution against several persons is
sold thereon, and
more than a due proportion of the
judgment is satisfied out of the
proceeds of the sale of the property
of one of them, or
one of them pays, without a sale,
more than his proportion,
he may compel a contribution from
the others;
and when a judgment is upon an
obligation of one of them, as
security for another, and the surety
pays the amount, or any part
thereof, either by sale of his
property or before sale,
he may compel repayment from the
principal. [Section 35, Rule 39].
G. Remedies of Judgment Creditor in
Aid of Execution (Sections 36-43)
(Asked in the 2008 Bar Exam
particularly steps to be taken if writ of
execution is unsatisfied)
If the execution is returned unsatisfied,
he may cause the examination of the
judgment debtor as to his property and
income [section 36] (asked in the 2002
bar exam)
He may cause examination of the debtor
of the judgment debtor as to any debt
owed by him or to any property of the
judgment debtor in his possession
[section 37].
If after examination, the court finds the
property of the judgment debtor either
in his own hands or that of any person,
the court may order the property
applied to the satisfaction of the
judgment.
A party or other person may be
compelled by an order or subpoena to
attend before the court or commissioner
to testify as provided in sect 36-37.
if the court finds the earnings of the
judgment debtor are more than
sufficient for his familys needs, it
may order payment in installments
[section 40]
the court may appoint a receiver for
the property of the judgment debtor
not exempt from execution or forbid
a transfer or disposition or
Part 2: Ordinary Civil Action
interference with such property
[section 41]
if the court finds the judgment
CIVIL PROCEDURE
debtor had an ascertainable interest
in real property either as mortgagor,
mortgagee or otherwise, and his
interest can be ascertained without
controversy, the court may order a
sale of such interest [section 42].
if the person alleged to have the
property of the judgment debtor or
be indebted to him, claims an
adverse interest in the property or
denies the debt,
The court may authorize the judgment
creditor to institute an action to recover
the property, forbid its transfer and may
punish disobedience for contempt
[section 43]
H. Entry of Satisfaction
1. [SECTION 44, RULE 39]
Satisfaction of a judgment shall be
entered by the clerk of court in the
court docket, and in the execution book,
upon the return of a writ of
execution showing the full
satisfaction of the judgment, or
upon the filing of an admission to
the satisfaction of the judgment
executed and acknowledged in the
same manner as a conveyance of
real property by the judgment
obligee or by his counsel
unless a revocation of his authority
is filed, or upon the endorsement of
such admission by the judgment
obligee or his counsel, on the face of
the record of the judgment.
2. [SECTION 45, RULE 39]
Whenever a judgment is satisfied in
fact, or otherwise than upon an
execution on demand of the judgment
obligor,
the judgment obligee or his counsel
must execute and acknowledge, or
indorse an admission of the satisfaction
as provided in the last preceding
section,
and after notice and upon motion the
court may order either the judgment
obligee or his counsel to do so, or may
order the entry of satisfaction to be
made without such admission.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

I. Effects of Judgments or Final BAR BY FORMER CONCLUSIVENESS

Orders JUDGMENT (RES OF JUDGMENT
JUDICATA)
There is identity of Identity of parties

CIVIL PROCEDURE
1. RES JUDICATA IN JUDGMENTS IN parties, subject and subject matter.
REM matter and causes
of action
Judgments or final Conclusive as to
The first judgment The first judgment
order
constitutes an is conclusive only as
Against a specific Title of the thing
absolute bar to all to matters directly
thing
matters directly adjudged and
Probate of a will or The will or
adjudged and those actually litigated in
administration of the administration.
that might have the first action.
estate of a deceased However, the probate
been adjudged. Second action can
person of a will or granting of
be prosecuted.
letters of
administration shall Res Judicata vs. law of the case.
only be prima facie
Law of the case refers to legal
evidence of the death
of the testator or conclusions announced on a first
intestate; appeal, whether on the general law
IN RESPECT TO THE Condition, status or or the law as applied to the concrete
PERSONAL, political, relationship of the facts,
or legal condition or person, not only prescribes the duty and
status of a particular limit the power of the trial court to
person or his strict obedience and conformity
relationship to thereto,
another
but they become and remain the law
of the case in all other steps
2. RES JUDICATA IN JUDGMENTS IN
whether in the lower court or in the
PERSONAM
appellate court on a subsequent
In other cases, the judgment or final appeal [Zarate vs. Director of Lands].
order is, with respect to the matter
Law of the case designates the principle
directly adjudged or as to any other
that if an appellate court has passed on
matter that could have been missed in
a legal question and remanded the case
relation thereto,
to the court below for further
conclusive between the parties and their
proceedings, the legal question thus
successors in interest,
determined by the appellate court will
by title subsequent to the
not be differently determined on a
commencement of the action or special
subsequent appeal in the same case
proceeding, litigating for the same thing
where the facts remain the same.
and under the same title and in the
It is a doctrine which provides that an
same capacity.
appellate courts determination on a
legal issue is binding on both the trial
3. CONCLUSIVENESS OF JUDGMENT/
court on remand and an appellate court
PRECLUSION OF ISSUES (AUTER
on a subsequent appeal given the same
ACTION PENDANT)
case and substantially the same facts.
In any other litigation between the same The doctrine of "law of the case" is one
parties or their successors in interest, of policy only and will be disregarded
that only is deemed to have been when compelling circumstances call for
adjudged in a former judgment or final a redetermination of the determination
order which appears upon its face to of point of law on prior appeal, and this
have been so adjudged, or which was is particularly true where intervening or
actually and necessarily included contemporaneous change in law has
therein or necessary thereto. occurred by overruling former decisions
or establishment of new precedent by
controlling authority.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
4. EFFECT OF FOREIGN JUDGMENTS XII. SUMMARY PROCEDURE
(Asked in the 2005 Bar Exam)
A. SCOPE
In case of a judgment or final order

CIVIL PROCEDURE
B. DETERMINATION OF APPLICABILITY
upon a specific thing , the judgment or C. THE ONLY PLEADINGS ALLOWED
final order, is conclusive upon the title D. COURTY DUTY
to the thing (Rule 39, Sect. 48). E. ANSWER
F. EFFECT OF FAILURE TO ANSWER
In case of a judgment or final order G. PRELIMINARY CONFERENCE
against a person, the judgment or final H. RECORD OF PRELIMINARY CONFERENCE
order is presumptive evidence of a right I. SUBMISSION OF AFFIDAVITS AND
as between the parties and their POSITION PAPERS
successors in interest by a subsequent J. RENDITION OF JUDGMENT
K. REFERRAL TO LUPON
title (Rule 39 Sect. 48).
L. PROHIBITED PLEADINGS AND MOTIONS
In either case, the judgment or final M. AFFIDAVITS
N. APPEAL
order may be repelled by evidence of a
O. APPLICABILITY OF THE REGULAR RULES
want of jurisdiction, want of notice to
the party, collusion, fraud, or clear 1991 REVISED RULES ON SUMMARY
mistake of law or fact (Rule 39 Sect. 48). PROCEDURE
Such limitation on the review of foreign A. Scope [SEC. 1]
judgment is adopted in all legal systems This governs the summary procedure in
to avoid repetitive litigation on claims the MeTCs/MTCs/MCTCs in the
and issues, prevent harassment of the following cases falling within their
parties and avoid undue imposition on jurisdiction:
the courts. 1) All cases of forcible entry and
This policy of preclusion rests on unlawful detainer, irrespective of the
principles of comity, utility and amount of damages or unpaid
convenience of nations. rentals sought to be recovered.
As a generally accepted principle of Where attorney's fees are awarded,
international law, it is part of the law of the same shall not exceed P20K.
the Philippines by virtue of the 2) All other civil cases, except probate
Incorporation Clause (Section 2, Article proceedings, where the total amount
II) of the 1987 Constitution [Regalado]. of the plaintiff's claim does not
exceed P10K, exclusive of interest
and costs.

B. Determination of Applicability
[SEC. 2]
Upon the filing of a civil action, the
court shall issue an order declaring
WON the case shall be governed by this
Rule.
A patently erroneous determination to
avoid the application of the Rule is a
ground for disciplinary action.

C. The Only Pleadings Allowed

[SEC. 3]
1) Complaints;
2) Compulsory counterclaims and cross-
claims pleaded in the answer;
3) Answers thereto.
All pleadings shall be verified.

D. Court Duty [SEC. 4]

After the court determines that the case
falls under summary procedure, from
an examination of the allegations

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REVIEWER IN REMEDIAL LAW
therein and such evidence as may be
attached thereto, it may dismiss the
case outright on any of the grounds
apparent therefrom for the dismissal of
a civil action.
If no ground for dismissal is found it
shall forthwith issue summons which
shall state that the summary procedure
under this Rule shall apply.
E. Answer [SEC. 5]
Within 10 days from service of
summons, the defendant shall file his
answer to the complaint and serve a
copy thereof on the plaintiff.
Affirmative and negative defenses not
pleaded therein shall be deemed waived,
except for LOJ over the subject matter.
Cross-claims and compulsory
counterclaims not asserted in the
answer shall be considered barred. The
answer to counterclaims or cross-claims
shall be filed and served within ten 10
days from service of the answer in
which they are pleaded.
F. Effect of Failure to Answer [SEC. 6]
The court shall render judgment as may
be warranted by the facts alleged in the
complaint and limited to what is prayed
for therein.
However, the court may reduce the
amount of damages and attorney's fees
claimed for being excessive or otherwise
unconscionable.
This is without prejudice to the
applicability of Rule 15, Sec. 4, ROC if
there are 2 or more defendants.
G. Preliminary Conference [SEC. 7]
Not later than 30 days after the last
answer is filed, a preliminary conference
shall be held.
The rules on pre-trial in ordinary cases
shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in
the preliminary conference shall be a
cause for the dismissal of his complaint.
The defendant who appears in the
absence of the plaintiff shall be entitled
to judgment on his counterclaim in
accordance with Sec. 6.
All cross-claims shall be dismissed.
If a sole defendant shall fail to appear,
the plaintiff shall be entitled to
judgment in accordance with Sec. 6.
Exception: This Rule shall not apply
where one of 2 or more defendants sued
under a common cause of action who
Part 2: Ordinary Civil Action
had pleaded a common defense shall
appear at the preliminary conference.
CIVIL PROCEDURE
H. Record of Preliminary Conference
[SEC. 8]
Within 5 days after the termination of
the preliminary conference, the court
shall issue an order stating the matters
taken up therein, including but not
limited to:
1) WON the parties have arrived at an
amicable settlement and the terms
thereof;
2) Stipulations or admissions entered
into by the parties;
3) WON based on the pleadings and
stipulations and admissions made
by the parties, judgment may be
rendered without the need of further
proceedings, in which event the
judgment shall be rendered within
30 days from issuance of the order;
4) A clear specification of material facts
which remain controverted;
5) Other matters intended to expedite
the disposition of the case.
I. Submission of Affidavits and
Position Papers [SEC. 9]
Within 10 days from receipt of the
order, the parties shall submit the
affidavits of their witnesses and other
evidence on the factual issues defined
in the order, together with their position
papers setting forth the law and the
facts relied upon by them.
J. Rendition of Judgment [SEC. 10]
Within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the
same, the court shall render judgment.
However should the court find it
necessary to clarify certain material
facts, during the said period it may
issue an order specifying the matters to
be clarified, and require the parties to
submit affidavits or other evidence on
the said matters within 10 days from
receipt of said order.
Judgment shall be rendered within 15
days after the receipt of the last
clarificatory affidavits, or the expiration
of the period for filing the same.
The court shall not resort to the
clarificatory procedure to gain time for
the rendition of the judgment.
K. Referral to Lupon [SEC. 18]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Cases requiring referral to the Lupon for Rule 70, Sec. 10 shall be deemed
conciliation under PD 1508 where there repealed.
is no showing of compliance with such

requirement, shall be dismissed without
prejudice and may be revived only after
such requirement shall have been
complied with.
Exception: Criminal cases where the
accused was arrested without a
warrant.
CIVIL PROCEDURE
O. Applicability of the Regular Rules
[SEC. 22]
The regular procedure prescribed in the
ROC shall apply suppletorily.

L. Prohibited Pleadings and Motions

[SEC. 19]
MTD the complaint or to quash the
complaint/information except on the
ground of LOJ over the subject matter,
or failure to comply with the preceding
section;
1. Motion for a BOP;
2. MNT/MFR of a judgment, or motion
for opening of trial;
3. Petition for relief from judgment;
4. Motion for extension of time to file
pleadings/affidavits;
5. Memoranda;
6. Petition for
certiorari/mandamus/prohibition
against any interlocutory order;
7. Motion to declare the defendant in
default;
8. Dilatory motions for postponement;
9. Reply;
10. 3rd party complaints;
11. Interventions.

M. Affidavits [SEC. 20]

The affidavits required to be submitted
under this Rule shall state only facts of
direct personal knowledge of the affiants
which are admissible in evidence, and
shall show their competence to testify to
the matters stated therein.
A violation of this requirement may
subject the party or the counsel who
submits the same to disciplinary action,
and shall be cause to expunge the
inadmissible affidavit or portion thereof
from the record.

N. Appeal [SEC. 21]

The judgment or final order shall be
appealable to the RTC which shall
decide the same in accordance with Sec.
22, BP 129.
The RTC decision in civil cases governed
by this Rule, including forcible entry
and unlawful detainer, shall be
immediately executory, without
prejudice to a further appeal that may
be taken therefrom.

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REVIEWER IN REMEDIAL LAW
Part 3:
Provisional Remedies
(In the 1999 Bar Exam alone, three
questions were asked in this area)
I. PRELIMINARY ATTACHMENT
II. PRELIMINARY INJUNCTION
III. TEMPORARY RESTRAINING ORDER
(TRO)
IV. RECEIVERSHIP
V. REPLEVIN
VI. SUPPORT PENDE LITE
DEFINITION
Writs and processes available during
the pendency of the action which may
be resorted to by a litigant for the
preservation or protection of their rights
and interests therein pending rendition,
and for purposes of the ultimate effects,
of a final judgment in the case; also
known as ancillary or auxiliary
remedies.
They are applied to a pending litigation,
for the purpose of securing the
judgment or preserving the status quo,
and in some cases after judgment, for
the purpose of preserving or disposing
of the subject matter. [Calo vs. Roldan,
1946]
All inferior courts can grant appropriate
provisional remedies provided that the
main action is within their jurisdiction.
[B.P. 129]
Orders granting or denying provisional
remedies are merely interlocutory and
cannot be the subject of an appeal.
They may however be challenged before
a superior court through a petition for
certiorari under Rule 65.
I. PRELIMINARY ATTACHMENT
(Asked in the 2002 Bar Exam)
A. DEFINITION
B. PURPOSES
C. GROUNDS
D. STAGES IN THE GRANT OF PRELIMINARY
ATTACHMENT
E. ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT
F. CONTENTS OF AFFIDAVIT OF APPLICANT
G. CONDITION OF APPLICANTS BOND
H. MANNER OF ATTACHING PROPERTY
I. EFFECTS OF ATTACHMENT
J. SALE OF ATTACHED PROPERTY
K. DISHCARGE OF ATTACHMENT
L. PROCEEDINGS WHERE ATTACHED
PROPERTY CLAIMED BY THIRD PERSON
Part 3: Provisional Remedies
M. RECOVERY UPON THE COUNTER-BOND
DSIPOSITION OF DEPOSIT/ ATTACHED
PROPERTY AFTER JUDMENT
N. IMPROPER IRREGULAR OR EXCESSIVE
CIVIL PROCEDURE
ATTACHMENT
A. Definition
A provisional remedy issued upon order
of the court where an action is pending
to be levied upon the property or
properties of the defendant therein, the
same to be held thereafter by the sheriff
as security for the satisfaction of
whatever judgment might be secured in
said action by the attaching creditor
against the defendant. [Cuartero vs. CA,
1992]
B. Purposes
1. To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
2. To enable the court to acquire
jurisdiction over the action by the
actual or constructive seizure of the
property in those instances where
personal service of summons on the
creditor cannot be effected. [Quasha vs.
Juan, 1982]
C. Grounds [Rule 57.1]
(Asked in 2001 and 2005)
1. Action for recovery of a specified
amount of money or damages EXCEPT
moral and exemplary, on a cause of
action against a party who is about to
depart from the Philippines with intent
to defraud his creditors;
2. Action for money or property embezzled
or fraudulently misapplied or converted
to his own use by a public officer, or an
officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the
course of his employment as such, or by
any other person in a fiduciary capacity,
or for a willful violation of duty;
3. Action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
4. Action against a party who has been
guilty of a fraud in contracting the debt
or incurring the obligation upon which
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REVIEWER IN REMEDIAL LAW
the action is brought, or in the
performance thereof;
5. Action against a party who has removed
or disposed of his property, or is about
to do so, with intent to defraud his
creditors; or
6. Action against a party who does not
reside and is not found in the
Philippines, or on whom summons may
be served by publication.
D. Stages in the Grant of Preliminary
Attachment
1. The court issues the order granting the
application
2. The writ of attachment issues pursuant
to the order granting the writ
3. The writ is implemented
For the first two stages, jurisdiction over
the person of the defendant is NOT
necessary.
However, once the implementation of
the writ commences, the court must
have acquired jurisdiction over the
defendant. [Cuartero, supra]
E. Issuance and Contents of Order of
Attachment [Rule 57.2]
may be issued ex parte upon motion
with notice and hearing by the court in
which the action is pending, or by the
Court of Appeals or the Supreme Court.
must require the sheriff of the court to
attach so much of the property in the
Philippines of the party against whom it
is issued, not exempt from execution, as
may be sufficient to satisfy the
applicant's demand
EXCEPT if such party makes deposit
or gives bond in an amount equal to
that fixed in the order.
F. Contents of Affidavit of Applicant
[Rule 57.3]
1. a sufficient cause of action exists
2. the case is one of those mentioned in
sec. 1 (grounds)
3. there is no other sufficient security for
the claim sought to be enforced by the
action
4. the amount due to the applicant or the
value of the property the possession of
which he is entitled to recover, is as
much as the sum for which the order is
granted above all legal counterclaims.
Part 3: Provisional Remedies
The affidavit and the bond must be filed
with the court before the order issues.
CIVIL PROCEDURE
G. Condition of Applicant's Bond
[Rule 57.4]
Applicant must give a bond executed to
the adverse party in the amount fixed
by the court in its order granting the
issuance of the writ conditioned that
the applicant will pay:
1. all the costs which may be adjudged
to the adverse party and
2. all damages which the adverse party
may sustain by reason of the
attachment if the court shall finally
adjudge that the applicant was not
entitled thereto.
H. Manner of Attaching Property
[Rule 57.5]
The sheriff enforcing the writ shall
attach only so much of the property in
the Philippines of the adverse party not
exempt from execution as may be
sufficient to satisfy the applicants
demand.
The levy on attachment shall be
preceded or contemporaneously
accompanied by service on the
defendant within the Philippines of:
1. summons
2. copy of complaint
3. application for attachment
4. affidavit and bond of applicant
5. order and writ of attachment.
EXCEPT if:
1. Summons could not be served
personally or by substituted service
despite diligent efforts, or
2. Defendant is a resident of the
Philippines temporarily absent
therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
Manner of attachment of real and
personal property [Rule 57.7]:
1. Real property, or growing crops
thereon, or any interest therein
by filing with the registry of deeds a
copy of the order, together with a
description of the property attached,
and a notice that it is attached, or
that such real property and any
interest therein held by or standing
in the name of such other person
are attached,
and by leaving a copy of such order,
description, and notice with the
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REVIEWER IN REMEDIAL LAW
occupant of the property, if any, or
with such other person or his agent
if found within the province.
Where the property has been
brought under the operation of
either the Land Registration Act or
the Property Registration Decree,
the notice shall contain a reference
to the number of the certificate of
title, the volume and page in the
registration book where the
certificate is registered, and the
registered owner or owners thereof.
2. Personal property capable of
manual delivery - by taking and
safely keeping it in the sheriffs
custody, after issuing the
corresponding receipt therefor;
3. Stocks or shares, or an interest in
stocks or shares, of any
corporation or company - by
leaving with the president or
managing agent thereof, a copy of
the writ, and a notice stating that
the stock or interest of the party
against whom the attachment is
issued is attached in pursuance of
such writ;
4. Debts and credits, including bank
deposits, financial interest,
royalties, commissions, and other
personal property not capable of
manual delivery
by leaving with the person owing
such debts, or having in his
possession or under his control,
such credits or other personal
property, or with his agent, a copy of
the writ,
and notice that the debts owing by
him to the party against whom
attachment is issued, and the
credits and other personal property
in his possession, or under his
control, belonging to said party, are
attached in pursuance of such writ;
5. Interest of the party whom
attachment is issued in property
belonging to the estate of the
decedent
by serving the executor or
administrator or other personal
representative of the decedent with
a copy of the writ and notice that
said interest is attached.
A copy of said writ of attachment
and of said notice shall also be filed
in the office of the clerk of the court
in which said estate is being settled
Part 3: Provisional Remedies
and served upon the heir, legatee or
devisee concerned.
If the property sought to be attached is
CIVIL PROCEDURE
in custodia legis, a copy of the writ of
attachment shall be filed with the
proper court or quasi-judicial agency,
and notice of the attachment served
upon the custodian of such property.
After enforcing the writ, the sheriff must
make a return thereon to the court from
which the writ issued, with a full
statement of his proceedings under the
writ and a complete inventory of the
property attached, together with any
counter-bond given by the party against
whom attachment is issued, and serve
copies thereof on the applicant. [Rule
57.6]
I. Effects of Attachment
1. ATTACHMENT OF DEBTS, CREDITS
AND ALL OTHER SIMILAR PERSONAL
PROPERTY [RULE 57.8]
All persons having in their possession
or under their control any credits or
other similar personal property
belonging to the adverse party, or owing
any debts to him, at the time of service
upon them of the copy of the writ of
attachment and
notice shall be liable to the applicant for
the amount of such credits, debts or
other similar personal property, until
the attachment is discharged, or any
judgment recovered by him is satisfied,
unless such property is delivered or
transferred, or such debts are paid, to
the clerk, sheriff, or other proper officer
of the court issuing the attachment.
Garnishment - a species of attachment
for reaching the property or credits
pertaining or payable to a judgment
debtor (asked in the 1999 Bar Exams in
comparison with Attachment)
Service of summons upon the garnishee
is not necessary. All that is necessary is
the service upon him of the writ of
garnishment, as a consequence of
which he becomes a virtual party or a
forced intervenor in the case. [Perla
Compania v. Ramolete, 1991]
2. ATTACHMENT OF INTEREST IN
PROPERTY BELONGING TO THE
ESTATE OF A DECEDENT [RULE 57.9]
The attachment of the interest of an
heir, legatee, or devisee in the property
belonging to the estate of a decedent
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REVIEWER IN REMEDIAL LAW
shall not impair the power of the
executor, administrator, or other
personal representative of the decedent
over such property for the purpose of
administration.
Such personal representative, however,
shall report the attachment to the court
when any petition for distribution is
filed, and in the order made upon such
petition, distribution may be awarded to
such heir, legatee, or devisee, but the
property attached shall be ordered
delivered to the sheriff making the levy,
subject to the claim of such heir,
legatee, or devisee, or any person
claiming under him.
J. Sale of Attached Property
Whenever it shall be made to appear to
the court in which the action is
pending, upon hearing with notice to
both parties, that
(1) the party attached is perishable,
or that
(2) the interests of all the parties to
the action will be will be subserved
by the sale thereof, the court may
order such property to be sold at
public auction in such manner as it
may direct, and the proceeds of
such sale to be deposited in court to
abide the judgment in the action.
[Rule 57.11]
K. Discharge of Attachment
After a writ of attachment has been
enforced, the party whose property has
been attached, or the person appearing
on his behalf, may move for the
discharge of the attachment wholly or in
part on the security given.
Grounds for discharge:
1. Debtor has posted a counter-bond or
has made the requisite cash deposit
[Rule 57.12];
2. Attachment was improperly or
irregularly issued [Rule 57.13] as
where there is no ground for
attachment, or affidavit and/or
bond filed therefore are defective or
insufficient;
3. Attachment is excessive but the
discharge shall be limited to the
excess [Rule 57.13];
4. Property attached is exempt from
execution [Rules 57.2 and 57.5];
5. Judgment is rendered against the
attaching creditor [Rule 57.19].
Part 3: Provisional Remedies
L. Proceedings Where Attached
Property Claimed By Third Person
[Rule 57.14]
CIVIL PROCEDURE
The same procedure as Rule 39.16
(execution).
M. Recovery Upon the Counter-Bond;
Disposition of Deposit/ Attached
Property After Judgment
When the judgment has become
executory, the surety or sureties on any
counter-bond given to secure the
payment of the judgment shall become
charged on such counter-bond and
bound to pay the judgment obligee
upon demand the amount due under
the judgment, which amount may be
recovered from such surety or sureties
after notice and summary hearing in
the same action. [Rule 57.17]
Where the party against whom
attachment had been issued has
deposited money instead of giving
counter-bond, it shall be applied under
the direction of the court to the
satisfaction of any judgment rendered
in favor of the attaching party, and after
satisfying the judgment the balance
shall be refunded to the depositor or his
assignee.
If the judgment is in favor of the party
against whom attachment was issued,
the whole sum deposited must be
refunded to him or his assignee. [Rule
57.18]
If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sheriff, under the order of attachment,
and all property attached remaining in
any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged. [Rule 57.19]
N. Improper, Irregular or Excessive
Attachment
(Asked in the 2008 bar exam)
An application for damages must be
filed before the trial, or before appeal is
perfected, or before the judgment
becomes executory.
Such damages may be awarded only
after hearing and shall be included in
the judgment on the main case. [Rule
57.20]
Procedure for claiming damages is
EXCLUSIVE. Such claims for damages
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
cannot be the subject of an independent 5. Against consummated acts. (PNB vs
action. Adi; Rivera v. Florendo, 1986;
EXCEPTIONS: Ramos, Sr. v. CA, 1989; Zabal vs CA)

CIVIL PROCEDURE
1. Where the principal case was EXCEPTION: If the act is of
dismissed for lack of jurisdiction by continuing nature and in
the trial court without giving derogation of plaintiffs right at
opportunity to the party whose the outset.
property was attached to apply for 6. Against disposing of the case on the
and prove his claim; and merits (Ortigas and Company
2. Where the damages by reason of the Limited Partnership vs CA, 1988)
attachment was sustained by a third 7. To stop the execution of judgment
person who was not a party to the where the judgment was already
action wherein such writ was executed. (Meneses vs Dinglasan)
issued. [Santos v. CA, 95 Phil 360] 8. But where the lower court enforced
its judgment before a party against
whom the execution was enforced
II. PRELIMINARY INJUNCTION could elevate her appeal in an
injunction suit, which was
A. DEFINITION instituted to prevent said execution,
B. PURPOSE an independent petition for
C. GROUNDS injunction in the Court of Appeals is
D. REQUIREMENTS justified. (Manila Surety and Fidelity
E. RULE 58 PROVIDES FOR BOTH A MAIN vs Teodoro, 1967)
ACTION FOR INJUNCTION AND AN
9. The CFI has no power to issue a writ
ANCILLARY WRIT OF PRELIMINARY
INJUNCTION of injunction against the Register of
Deeds if its effect is to render
nugatory a writ of execution issued
A. Definition
by the National Labor Relations
Commission. (Ambrosio vs Salvador,
An order granted by the court where the
1978)
action/proceeding is pending at any
10. Transfer of possession of property to
stage of an action/proceeding prior to
party with disputed legal title via
the judgment requiring a party or a
preliminary injunction
court, agency or a person to refrain
from a particular act or acts
EXCEPTIONS:
(preliminary preventive injunction).
a) Forcible entry and unlawful detainer
[Rule 58.1 and 58.2](asked in the 2001,
cases in which the court may issue
2002, 2005 Bar Exams)
preliminary mandatory injunction
[Rule 70.15]
When preventive injunction does not lie:
b) Property covered by Torrens Title
1. To restrain collection of taxes (Valley
when there is a clear finding of
Trading vs CA), except where there
ownership and possession of the
are special circumstances that bear
land. (GSIS vs Florendo)
the existence of irreparable injury.
(Churchill & Tait vs Rafferty, 1915)
Preliminary mandatory injunction -
2. To restrain the sale of conjugal
requires the performance of a particular
properties where the claim can be
act or acts. [Rule 58.1]
annotated on the title as a lien, such
as the husbands obligation to give
Requisites of mandatory injunction:
support. (Saavedra vs Estrada,
1. Invasion of the right is material and
1931)
substantial
3. To restrain a mayor proclaimed as
2. Right of the complainant is clear
duly elected from assuming his
and unmistakable
office. (Cereno vs Dictado, 1988)
3. Urgent and paramount necessity for
4. To restrain registered owners of the
the writ to prevent serious damages
property from selling, disposing and
[Bautista v. Barcelona, 100 Phil
encumbering their property just
1078]
because the respondents had
4. The effect would not be to create a
executed Deeds of Assignment in
new relation between the parties
favor of petitioner. (Tayag vs.
[Alvaro v. Zapata, 1982]
Lacson, 2004)

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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
Mandatory injunction does not lie in the D. Requirements
following instances: (Asked in the 2006 Bar Exam)
1. to compel cohabitation [Arroyo v.

CIVIL PROCEDURE
Vasquez,1921] 1) The application for injunction must be
2. cancellation of attachment [Levy verified, and must show facts entitling
Hermanos v. Lacson, 1940] the applicant to the relief demanded;
3. release imported goods pending 2) Unless exempted by the court, the
hearing before the Commissioner of applicant must file with the court where
Customs. [Commissioner of Customs the action/proceeding is pending a
v. Cloribel, 1967] bond executed to the party or person
4. to take property out of the enjoined, in an amount to be fixed by
possession or control of one party the court. [Rule 58.4]
and place it into that of another (asked in the 2006 Bar exam)
whose title has not clearly been 3) Hearing and prior notice to the
established [Pio v. Marcos, 1974] party/person sought to be enjoined.
EXCEPTIONS:
INJUNCTION PROHIBITION a) Great or irreparable injury would
Generally directed Directed against a result to the applicant before the
against a party in the court/tribunal/person matter can be heard on notice.
action exercising judicial i) The court may issue a TRO
powers
effective for 20 days from service
Does not involve the may be on the ground
courts jurisdiction that the court against on the party sought to be
whom the writ is enjoined.
sought acted ii) Injury is irreparable if it is of
without/in excess of such constant and frequent
jurisdiction recurrence that no fair or
May be the main Always a main action reasonable redress can be had
action itself, or just a therefore in court of law or
provisional remedy in where there is no standard by
the main action
which their amount can be
measured with reasonable
B. Purpose accuracy.
b) Matter is of extreme urgency and
To prevent future injury and maintain the applicant will suffer grave
the status quo (i.e. the last actual, injustice and irreparable injury
peaceable, uncontested status which i) Judge may issue ex parte a TRO
preceded the pending controversy.) effective for 72 hours from
[Kencht vs CA, 1993] issuance.
ii) Within 72 hours, judge shall
C. Grounds conduct a summary hearing to
(Asked in the 2006 Bar Exam) determine whether the TRO shall
be extended until the application
1. Applicant is entitled to the relief for preliminary injunction can be
demanded, and the relief consists in heard.
restraining the commission or iii) Maximum period of effectivity of
continuance of the acts or acts TRO=20 days.
complained of, or in requiring If the application for preliminary
performance of an act or acts; injunction is denied or not resolved
2. Commission, continuance or non- within the said period, the TRO is
performance of the acts complained of deemed automatically vacated.
during the litigation would probably The effectivity of a TRO is not
work injustice to the applicant; or extendible and no court shall have
3. A party, court, agency or a person is authority to extend or renew the
doing, threatening, or is attempting to same on the same ground for which
do, or is procuring or suffering to be it was issued.
done, some act or acts probably in However, if issued by the Court of
violation of the rights of the applicant Appeals or a member thereof, the
respecting the subject of the action or TRO shall be effective for 60 days
proceeding, and tending to render the from service on the party or person
judgment ineffectual. [Rule 58.3] sought to be enjoined.

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REVIEWER IN REMEDIAL LAW
A TRO issued by the Supreme Court
or a member thereof shall be
effective until further orders. [Rule
58.5]
E. Rule 58 Provides for both a Main
Action for Injunction and an
Ancillary Writ of Preliminary
Injunction (Asked In The 2006 Bar
Exam)
By their very definitions, the action for
injunction is distinct from the ancillary
remedy of preliminary injunction which
cannot exist except only as part or an
incident of an independent action or
proceeding.
As a matter of course, in an action for
injunction, the auxiliary remedy of
preliminary injunction, whether
prohibitory or mandatory, may issue.
Under the present state of the law, the
main action of injunction seeks a
judgment embodying a final injunction
which is distinct from, and should not
be confused with the provisional remedy
of preliminary injunction, the sole
object of which is to preserve the status
quo until the merits can be heard
(Urbanes vs. CA, 2001).
A writ of preliminary injunction is
generally based solely on initial and
incomplete evidence.
The evidence submitted during the
hearing on an application for a writ of
preliminary injunction is not conclusive
or complete for only a sampling is
needed to give the trial court an idea of
the justification for the preliminary
injunction pending the decision of the
case on the merits.
There are vital facts that have yet to be
presented during the trial which may
not be obtained or presented during the
hearing on the application for the
injunctive writ. The trial court needs to
conduct substantial proceedings in
order to put the main controversy to
rest.
It does not necessarily proceed that
when a writ of preliminary injunction is
issued, a final injunction will follow
(Urbanes vs. CA, ibid)
Part 3: Provisional Remedies
III.TEMPORARY RESTRAINING
ORDER (TRO)
CIVIL PROCEDURE
A. STATUS QUO ORDER VS. INJUNCTION
B. OBJECTION TO/MOTION FOR
DISSOLUTION OF INJUNCTION/
RESTRAINING ORDER
C. GLOBAL INJUNCTION OF A FOREIGN
COURT
TRO vs. Injunction. A TRO is intended as
a restraint upon the defendant until the
propriety of granting an injunction
pendente lite can be determined, and it
goes no further than to preserve the
status quo until such determination.
[Anglo-Fil Trading v. Lazaro, 1983]
Same requirements for application as
preliminary injunction.
An application for a TRO shall be acted
upon only after all parties are heard in
a summary hearing, which shall be
conducted within 24 hours after the
sheriff's return of service and/or the
records are received by the branch
selected by raffle. [Rule 58.4]
A. Status Quo Order vs. Injunction
(Asked in the 2006 bar exams)
There have been instances when the
Supreme Court has issued a status quo
order which, as the very term connotes,
is merely intended to maintain the
last, actual, peaceable and
uncontested state of things which
preceded the controversy.
This was resorted to when the projected
proceedings in the case made the
conservation of the status quo desirable
or essential, but the affected party
neither sought such relief nor did the
allegations in his pleading sufficiently
make out a case for a temporary
restraining order.
The status quo order was thus issued
motu propio on equitable considerations.
Also, unlike a temporary restraining
order or a preliminary injunction, a
status quo order is more in the nature of
a cease and desist order, since it does
not direct the doing or undoing of acts
as in the case of prohibitory or
mandatory injunctive relief.
The further distinction is provided by
the present amendment in the sense
that, unlike the amended rule on
restraining orders, a status quo order
does not require the posting of a bond.
(AF Development Corp vs. Judge Cajigal,
CA decision citing Justice Regalado)
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REVIEWER IN REMEDIAL LAW
B. Objection to/Motion for
Dissolution of Injunction/
Restraining Order
Grounds:
1. Insufficiency of application
2. other grounds (e.g. applicants bond
is insufficient/defective), upon
affidavits of the party or person
enjoined
3. if it appears after hearing that
although the applicant is entitled to
the injunction or restraining order,
the issuance or continuance thereof
would cause irreparable damage to
the party/person enjoined, while the
applicant can be fully compensated
for such damages as he may suffer,
provided the former files a bond
If it appears that the extent of the
preliminary injunction or restraining
order granted is too great, it may be
modified. [Rule 58.6]
C. Global Injunction of a Foreign
Court (Asked in the 2007 Bar Exam)
A global injunction issued by a foreign
court to prevent dissipation of funds
against the defendant who has assets in
the Philippines may be enforced in our
jurisdiction, subject to our procedural
laws (Suggested Answers to the 2007
Bar Exam, UP Law Center)
As a general rule, no sovereign is bound
to give effect within its dominion to a
judgment or order of a tribunal of
another country.
However, under the rules of comity,
utility and convenience, nations have
established a usage among civilized
states by which final judgments of
foreign courts of competent jurisdiction
are reciprocally respected and rendered
efficacious under certain conditions
that may vary in different countries. (St.
Aviation Services vs. Grand International
Airways, 2006)
Note: In Pangalangan and Coquias book on
Conflict of Laws (2000),citing Cheshire, state
that an interlocutory or provisional judgment
of a foreign court, creates no obligation on
the forum court to enforce it (p. 545).
Part 3: Provisional Remedies
IV. RECEIVERSHIP
(Asked in the 2001 Bar Exam)
CIVIL PROCEDURE
A. NATURE
B. APPOINTMENT OF RECEIVER
A. Nature
A receiver is a person appointed by the
court in behalf of all the parties to the
action for the purpose of preserving and
conserving the property in litigation and
prevent its possible destruction or
dissipation, if it were left in the
possession of any of the parties.
The appointment of a receiver is not a
matter of absolute right. It depends
upon the sound discretion of the court
and is based on facts and
circumstances of each particular case.
The guiding principle is the prevention
of imminent danger to the property. If
an action by its nature, does not require
such protection or preservation, said
remedy cannot be applied for and
granted. (Commodities Storage v. CA,
1997)
Receivership is aimed at the
preservation of, and at making more
secure, existing rights; it cannot be
used as an instrument for the
destruction of those rights. (Arranza v.
B.F. Homes, 2000)
B. Appointment of Receiver
1. REQUIREMENTS:
a. verified application [Rule 59.1]
b. bond [Rule 59.2 and 59.5]
2. WHO APPOINTS:
a. court where the action is pending
b. CA
c. SC
d. During the pendency of an appeal,
the appellate court may allow an
application for the appointment of a
receiver to be filed in and decided by
the court of origin. [Rule 59.1]
3. WHEN RECEIVER CAN BE APPOINTED:
When it appears from the verified
application and other proof that the
applicant has an interest in the
property or fund which is the subject of
the action or proceeding, and that such
property or fund is in danger of being
lost, removed, or materially injured
unless a receiver be appointed to
administer and preserve it;
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REVIEWER IN REMEDIAL LAW
When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger
of being wasted or dissipated or
materially injured, and that its value is
probably insufficient to discharge the
mortgage debt, or that the parties have
so stipulated in the contract of
mortgage;
After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judgment,
or to aid execution when the execution
has been returned unsatisfied or the
judgment obligor refuses to apply his
property in satisfaction of the judgment,
or otherwise to carry the judgment into
effect;
Whenever in other cases it appears that
the appointment of a receiver is the
most convenient and feasible means of
preserving, administering, or disposing
of the property in litigation. [Rule 59.1]
4. SPECIFIC SITUATIONS WHEN A b. Take and keep possession of the
RECEIVER MAY BE APPOINTED
a. If a spouse without just cause
abandons the other or fails to
comply with his/her obligations to
the family, the aggrieved spouse
may petition the court for
receivership. [Family Code, Article
101]
b. The court may appoint a receiver of
the property of the judgment obligor;
and it may also forbid a transfer or
other disposition of, or any
interference with, the property of the
judgment obligor not exempt from
execution. [Rule 39.41]
c. After the perfection of an appeal, the
trial court retains jurisdiction to
appoint a receiver of the property
under litigation since this matter
does not touch upon the subject of
the appeal. [Rule 41.9; Acua v.
Caluag, 1957]
d. After final judgment, a receiver may
be appointed as an aid to the
execution of judgment. (Philippine
Trust Company v. Santamaria, 1929)
e. Appointment of a receiver over the
property in custodia legis may be
allowed when it is justified by
special circumstances, as when it is
reasonably necessary to secure and
protect the rights of the real owner.
(Dolar v. Sundiam, 1971)
Part 3: Provisional Remedies
The general rule is that neither party to
the litigation should be appointed as a
receiver without the consent of the
CIVIL PROCEDURE
other because a receiver is supposed to
be an impartial and disinterested
person. (Alcantara v. Abbas, 1963)
A clerk of court should not be appointed
as a receiver as he is already burdened
with his official duties. (Abrigo v.
Kayanan, 1983).
5. DENIAL OF APPLICATION OR
DISCHARGE OF RECEIVER
a. If the appointment sought or
granted is without sufficient cause
b. Adverse party files a sufficient bond
to answer for damages [Rule 59.3]
c. Bond posted by the applicant for
grant of receivership is insufficient
d. Bond of receiver is insufficient
6. GENERAL POWERS OF RECEIVER
a. Bring and defend in such capacity
actions in his own name with leave
of court
property in controversy
c. Receive rents
d. Collect debts due to himself as
receiver or to the fund, property,
estate, person, or corporation of
which he is the receiver
e. Compound for and compromise the
same
f. Make transfers
g. Pay outstanding debts
h. Divide the money and other property
that shall remain among the
persons legally entitled to receive
the same
i. Generally, to do such acts
respecting the property as the court
may authorize
j. Invest funds in his hands, ONLY by
order of the court upon the written
consent of all the parties. [Rule 59.6]
7. LIABILITY FOR REFUSAL OR NEGLECT
TO DELIVER PROPERTY TO RECEIVER
a. Contempt
b. Be liable to the receiver for the
money or the value of the property
and other things so refused or
neglected to be surrendered together
with all damages that may have
been sustained by the party or
parties entitled thereto as a
consequence of such refusal or
neglect. [Rule 59.7]
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
8. TERMINATION OF RECEIVERSHIP Fernandez, 1991)
motu proprio or on motion of either and
party b. where there is
reason to believe

CIVIL PROCEDURE
when court determines that the
that the seizure
necessity for a receiver no longer exists
will not anymore
requires notice to all interested parties be followed by the
and hearing [Rule 59.8] filing of the
criminal action in
V. REPLEVIN court or there are
(Asked in the 1999 Bar Exam) conflicting claims.
(Chua v. CA, 1993)
A. NATURE
B. REQUIREMENTS B. Requirements
C. ORDER OF REPLEVIN
D. DISPOSITION OF PROPERTY BY SHERIFF a. Application
E. WHERE PROPERTY CLAIMED BY THIRD
Who may apply: party praying for the
PERSON
recovery of possession of personal
property. [Rule 60.1]
A. Nature When:
(1) at the commencement of the
1. AVAILABLE WHERE THE PRINCIPAL
action or
ACTION IS TO RECOVER POSSESSION
(2) before the answer [unlike
OF PERSONAL PROPERTY.
attachment, injunction and support
pendent elite (anytime before final
REPLEVIN PRELIMINARY
ATTACHMENT judgment) and receivership (anytime
Available only where Available even if the even after final judgment)].
the principal relief recovery of personal The applicant must show by his own
sought in the action is property is only an affidavit or that of some other person
recovery of personal incidental relief who personally knows the facts:
property, the other sought in the action. That the applicant is the owner of
reliefs (e.g. damages) the property claimed, particularly
being merely describing it, or is entitled to the
incidental thereto.
possession thereof;
Can be sought only May be resorted to
where the defendant even if the personalty That the property is wrongfully
is in actual or is in the custody of a detained by the adverse party,
constructive third person. alleging the cause of detention
possession of the thereof according to the best of his
personalty involved. knowledge, information, and belief;
Extends only to Extends to all kinds of That the property has not been
personal property property, whether distrained or taken for a tax
capable of manual real, personal or
assessment or a fine pursuant to
delivery. incorporeal.
law, or seized under a writ of
Available to recover To recover the
personal property possession of personal execution or preliminary
even if the same is not property unjustly attachment, or otherwise placed
concealed, removed or detained (presupposed under custodia legis, or if so seized,
disposed of. that the same is being that it is exempt from such seizure
concealed, removed or or custody; and
disposed of to prevent The actual market value of the
its being found or property. [Rule 60.2]
taken by the
applicant.
b. Bond
Cannot be availed of if Can still be resorted
the property is in to even if the property The applicant must also give a bond,
custodia legis (e.g. is in custodia legis. executed to the adverse party in double
under attachment, the value of the property as stated in
seized under a search the affidavit. [Rule 60.2]
warrant).
EXCEPT: C. Order of Replevin
a. when the seizure
is illegal;
(Bagalihog v. Upon the filing of affidavit and approval
of the bond, the court shall issue an

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REVIEWER IN REMEDIAL LAW
order and the corresponding writ of
replevin describing the personal
property alleged to be wrongfully
detained and requiring the sheriff
forthwith to take such property into his
custody. [Rule 60.3]
A writ of replevin may be served
anywhere in the Philippines.
D. Disposition of Property by Sheriff
The sheriff shall retain the property for
5 days. The adverse party may object to
the sufficiency of the bond or surety or
he may file a redelivery bond.
After 5 days and the adverse party failed
to object or his redelivery bond is
insufficient, the sheriff shall deliver the
property to the applicant. [Rule 60.6]
The defendant is entitled to the return
of the property under a writ of replevin
if:
a. He seasonably posts a redelivery
bond [Rule 60.5]
b. Plaintiffs bond is found to be
insufficient or defective and is not
replaced with proper bond
c. Property is not delivered to the
plaintiff for any reason [Rule 60.6]
E. Where Property Claimed by Third
Person
The same procedure as Rules 39.16
(execution) and 57.14 (preliminary
attachment).
Part 3: Provisional Remedies
VI. SUPPORT PENDENTE LITE
A. NATURE
CIVIL PROCEDURE
B. REQUIREMENTS
C. VERIFIED COMMENT
D. HEARING
E. ORDER OF SUPPORT
F. REMEDIES OF A PARTY WHO WAS
ERRONEOUSLY COMPELLED TO GIVE
SUPPORT
A. Nature
(Asked in 1999 and 2001 bar exams)
1. SUPPORT PENDENTE LITE CAN BE
GRANTED BY THE COURT IN TWO (2)
INSTANCES:
Civil action for support; and
criminal action where civil liability
includes support for the offspring as a
consequence of the crime.
Where the right to support is put in
issue by the pleadings or the fact from
which the right to support arises is in
controversy or has not been established,
the court cannot grant support
pendente lite (Francisco v. Zandueta,
1929)
Judgment for support does not become
final.
The right to support is of such nature
that its allowance is essentially
provisional; for during the entire period
that a needy party is entitled to
support, his or her alimony may be
modified or altered, in accordance with
his increased or decreased needs, and
with the means of the giver. It cannot be
regarded as subject to final
determination. (Lam v. Chua, 2004)
B. Requirements
1. VERIFIED APPLICATION [RULE 61.1]
Who may apply: any party
When: (1) at the commencement of the
proper action or proceeding, or (2) at
any time prior to the judgment or final
order
Contents:
Grounds for the claim
Financial conditions of both parties
Affidavits, depositions or other
authentic documents in support
thereof.
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies

C. Verified Comment [RULE 61.2]

A copy of the application and all
supporting documents shall be served

CIVIL PROCEDURE
upon the adverse party, who shall have
5 days to comment thereon, unless a
different period is fixed by the court
upon his motion.

D. Hearing [RULE 61.3]

Within 3 days after the comment is filed
or after the expiration of the period for
its filing.

E. Order of Support
If the application is granted, the court
shall fix the amount of money to be
provisionally paid or such other forms
of support as should be provided, taking
into account the necessities of the
applicant and the resources or means of
the adverse party, and the terms of
payment or mode for providing the
support.
If the application is denied, the
principal case shall be tried and decided
as early as possible. [Rule 61.4]
If the adverse party fails to comply with
an order granting support pendente lite,
the court shall, motu proprio or upon
motion, issue an order of execution
against him, without prejudice to his
liability for contempt.
When the person ordered to give
support pendente lite refuses or fails to
do so, any third person who furnished
that support to the applicant may, after
due notice and hearing in the same
case, obtain a writ of execution to
enforce his right of reimbursement
against the person ordered to provide
such support. [Rule 61.5]

F. Remedies of a Party Who Was

Erroneously Compelled to Give
Support
Apply for an order for such
reimbursement by the recipient on
motion in the trial court in the same
case, unless such restitution is already
included in the judgment, or
Failing therein, file a separate action for
reimbursement against the person
legally obliged to give support. [Rule
61.7]

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

Part 4: 2. ejectment suits [Rule 70]

Special Civil Actions 3. contempt [Rule 71]

CIVIL PROCEDURE
I. INTERPLEADER
II. DECLARATORY RELIEF I. INTERPLEADER
III. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE A. DEFINITION
COMELEC AND COA B. PURPOSE
IV. CERTIORARI, PROHIBITION AND C. WHEN PROPER
MANDAMUS D. PROCEDURE
V. QUO WARRANTO
VI. EXPROPRIATION A. Definition
VII. FORECLOSURE OF REAL ESTATE
MORTGAGE
VIII. PARTITION
A remedy whereby a person who has
IX. FORCIBLE ENTRY AND UNLAWFUL property in his possession or has an
DETAINER obligation to render wholly or partially,
X. CONTEMPT without claiming any right in both,
comes to court and asks that the
Rules on ordinary civil actions shall defendants who have made conflicting
apply to special civil actions insofar as claims upon the same property or who
they are not inconsistent with or may consider themselves entitled to demand
supplement the rules governing the compliance with the obligation
latter. [Rule 1.3] be required to litigate among themselves
in order to determine who is entitled to
How commenced: the property or payment or the
1. COMPLAINT obligation [Beltran v. PHHC, 1969]
a. interpleader
b. expropriation B. Purpose
c. foreclosure of real estate
mortgage To compel conflicting claimants to
d. partition interplead and litigate their several
e. forcible entry and unlawful claims among themselves. [Rule 62.1]
detainer To protect a person against double
2. PETITION vexation in respect of one liability
a. declaratory relief [Beltran, supra]
b. review of adjudications of
Constitutional commissions C. When Proper
c. certiorari
d. prohibition Whenever conflicting claims upon the
e. mandamus same subject matter are or may be
f. quo warranto made against a person who claims no
g. contempt interest in the subject matter or an
interest which is not disputed by the
Venue is governed by the general rules claimants. [Rule 62.1]
on venue, except as otherwise indicated Cannot be availed of to resolve the issue
in the particular rules for special civil of breach of undertakings made by
actions. defendants, which should be resolved in
an ordinary action for specific
Writs of injunction, mandamus, performance or other relief [Beltran,
certiorari, prohibition, quo warranto supra].
and habeas corpus issued by RTCs are
enforceable within their respective
judicial regions. [B.P. 129]
D. Procedure

3 special civil actions within the
jurisdiction of inferior courts:
1. interpleader, provided the amount
involved is within its jurisdiction
[Makati Development Corp. v.
Tanjuatco, 1969]
Complaint filed by the person against
whom conflicting claims are or may be
made. [ibid]
The docket and other lawful fees
paid by the complainant, and costs
and litigation expenses shall
constitute a lien or charge upon the

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REVIEWER IN REMEDIAL LAW
subject matter of the action, unless
otherwise ordered by the court.
[R62.7]
Court order requiring the conflicting
claimants to interplead with one
another. If the interests of justice so
require, the court may direct that the
subject matter be paid or delivered to
the court. [Rule 62.2]
Summons, copy of complaint and order
served upon the conflicting claimants.
[Rule 62.3]
Each claimant shall file his answer
within 15 days from service of the
summons, serving a copy thereof upon
each of the other conflicting claimants,
who may file their reply thereto.
a) If claimant fails to plead within the
time herein fixed, the court may, on
motion, declare him in default and
render judgment barring him from
any claim in respect to the subject
matter.
b) Within the time for filing an answer,
each claimant may file a motion to
dismiss.
Grounds:
a. impropriety of the interpleader
action, or
b. other appropriate grounds
specified in Rule 16.
The period to file the answer shall
be tolled.
If the motion is denied, an answer
may be filed within the remaining
period, in no case less than 5 days
(reckoned from notice of denial)
[Rule 62.4].
The parties may file counterclaims,
cross-claims, third-party complaints
and responsive pleadings thereto. [Rule
62.5]
Pre-trial
Court shall determine conflicting
claimants respective rights and
adjudicate their several claims. [Rule
62.6]
Part 4: Special Civil Actions
II. DECLARATORY RELIEF
A. REQUISITES
CIVIL PROCEDURE
B. WHO MAY FILE
C. PARTIES
D. WHERE FILED
E. WHEN COURT MAY REFUSE TO
DECLARE RIGHTS/CONSTRUE
INSTRUMENTS
F. SIMILAR REMEDIES COVERED BY RULE
63
A. Requisites
a. subject matter of the controversy must
be a deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance [Rule 63.1];
b. the terms of said documents and the
validity thereof are doubtful and require
judicial construction [Santos v. Aquino,
94 Phil 65]
c. no breach of the documents in
question. [Reparations Commission v.
Northern Lines, 1970] Otherwise, an
ordinary civil action is the remedy.
Concept of a cause of action in
ordinary civil actions does not apply.
If before the final termination of the
case, a breach or violation of an
instrument or a statute, etc. should
take place, the action may be
converted into an ordinary action.
[Rule 63.6]
d. actual justiciable controversy [Edades v.
Edades, 99 Phil 675]
e. adverse interests between the parties
A declaratory relief is not available
for a declaration of citizenship (Villa-
Abrille vs. Republic, 1956) or
the validity of a registration
certificate (Obiles vs. Republic, 1953)
as they are unilateral in nature and
without conflicting adverse
interests.
f. issue must be ripe for judicial
determination [Tolentino v. Board of
Accountancy, 90 Phil 83]
g. adequate relief is not available through
other means or other forms of action or
proceedings. [Ollada v. Central Bank,
1962]
A court decision cannot be the
subject of a declaratory relief since
there exists other remedies, i.e.,
appeal or a motion for clarificatory
judgment (Tanda vs. Aldaya, 1956)
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

B. Who May File E. When Court May Refuse to

Declare Rights/Construe
a. a person interested under a deed, will, Instruments

contract or other written instrument
b. a person whose rights are affected by a
statute, executive order or regulation,
ordinance or any other governmental
regulation [Rule 63.1]
C. Parties
CIVIL PROCEDURE
1. where a decision would not terminate
the uncertainty or controversy which
gave rise to the action, or
2. where the declaration or construction is
not necessary and proper under the
circumstances. [Rule 63.5]

all persons who have or claim any F. Similar Remedies Covered by Rule
interest which would be affected by the 63
declaration [Rule 63.2]
If action involves the validity of a 1. Action to quiet title (Arts. 476-481 Civil
statute/executive Code)
order/regulation/other governmental 2. Action for reformation of instrument
regulation, the Solicitor General shall be (Arts. 1359-1369 Civil Code)
notified. [Rule 63.3] 3. Action to consolidate ownership (Art.
If action involves the validity of a local 1607 Civil Code) [Rule 63.1 par. 2]
government ordinance, the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63.4] III.REVIEW OF JUDGMENTS AND
FINAL ORDERS OR RESOLUTIONS
Subject Matter Notice Given To
Validity of a statute, EO Sol Gen OF THE COMELEC AND COA
or regulation, or any
governmental regulation A. SCOPE
Validity of a local Prosecutor or B. PROCEDURE
government ordinance attorney of the LGU
Constitutionality of a Sol Gen A. Scope
local government
ordinance Applicable only to judgments and final
orders of the COMELEC and COA [Rule
Non-joinder of interested persons is not 64.1]
a jurisdictional defect; but persons not Judgments/orders of the Civil Service
joined shall not be prejudiced in their Commission are now reviewable by the
interests unless otherwise provided by Court of Appeals under Rule 43,
the Rules (R63.2; Baguio Citizens Action eliminating recourse to the Supreme
vs. CityCouncil of Baguio, 1983) Court (SC). [RA 7902; SC Revised
third-party complaint not available in a Administrative Circular No. 1-95]
declaratory relief (Commission of An aggrieved party may bring the
Customs vs. Cloribel, 1977); but a questioned judgment, etc. directly to the
compulsory counterclaim may be set up SC on certiorari under Rule 65. [Rule
(Visayan Packing vs. Reparations 64.2]
Commission, 1987) o such petition for certiorari shall not
stay the execution of the judgment,
D. Where Filed etc. sought to be reviewed unless
otherwise directed by the Supreme
in the proper RTC [Rule 63.1] Court [Rule 64.8]
not within the original jurisdiction of
the Supreme Court, even if pure B. Procedure
questions of law are involved.
[Remotigue vs. Osmea, 1967] a. File petition for review.
When [Rule 64.3]:
Within 30 days from notice of
judgment/final order/resolution
sought to be reviewed
Filing of motion for
reconsideration/new trial with

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REVIEWER IN REMEDIAL LAW
Constitutional commission
interrupts the 30-day period. If
motion is denied, aggrieved party
may file petition within remaining
period, which shall not be less than
5 days from notice of denial.
Form [Rule 64.5]:
verified and accompanied by
(annexes):
1) a clearly legible duplicate
original or certified true copy of
the subject judgment, etc.
2) certified true copies of such
material portions of the record
referred to in the petition
3) other documents relevant and
pertinent to the petition
4) proof of service of a copy of the
petition on the Commission and
the adverse party
5) proof of the timely payment of
the docket and other lawful fees
18 legible copies (containing plain
copies of all documents attached to
the original copy of the petition)
Contents [Rule 64.5]:
1) name of aggrieved party (petitioner)
2) respondents: Commission
concerned and person(s) interested
in sustaining the judgment a quo
3) facts
4) issues involved
5) grounds and brief arguments relied
upon for review
6) prayer for judgment annulling or
modifying the question judgment,
etc.
7) material dates showing that it was
filed on time
8) certification against non-forum
shopping
Findings of fact of the Commission
supported by substantial evidence shall
be final and non-reviewable.
Failure to comply with foregoing
requirements shall be sufficient ground
for dismissal.
Part 4: Special Civil Actions
b. Order to Comment [Rule 64.6]
If the SC finds the petition sufficient in
CIVIL PROCEDURE
form and substance, it shall order the
respondents to file their comments on
the petition within 10 days from notice
thereof.
Grounds for dismissal:
1) Petition not sufficient in form and
substance
2) Petition was filed manifestly for
delay
3) the questions raised are too
unsubstantial to warrant further
proceedings.
c. Comments of Respondents [Rule 64.7]
Requirements:
original copy with
1) certified true copies of such
material portions of the record
as are referred to in the
comment
2) certified true copies of other
supporting papers
18 legible copies with plain copies of
all documents attached to the
original.
a copy of the comment shall be served
on the petitioner.
d. Decision [Rule 64.9]
Case is deemed submitted for decision
upon:
1) filing of the comments on the
petition, and such other pleadings
or papers as may be required or
allowed.
2) expiration of the period to file the
pleadings.
EXCEPTIONS: SC sets case for oral
argument or requires parties to
submit memoranda,
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

IV. CERTIORARI, PROHIBITION AND MANDAMUS

Certiorari Prohibition Mandamus

(Asked in the 2000 and 2006 Bar
Exams)
When any tribunal, board or
officer exercising judicial or
quasi-judicial functions has
acted:
without or in excess of its
jurisdiction; or
with grave abuse of
discretion amounting to
lack or excess of its or
his jurisdiction1
AND there is no appeal, or
any plain, speedy, and
adequate remedy2 in the
ordinary course of law
(R65.1)
To correct an act performed by
the respondent
Discretionary acts
Aggrieved person
Those exercising judicial
quasi-judicial functions
CIVIL PROCEDURE
(Asked in the 2006 Bar Exam)
GROUNDS
When the proceedings of any When any tribunal,
tribunal, corporation, board, corporation, board, officer or
officer or person, whether person
exercising judicial, quasi- unlawfully neglects the
judicial, or ministerial performance of an act
functions, are which the law specifically
without or in excess of enjoins as a duty
its or his jurisdiction; or resulting from an office,
with grave abuse of trust or station; or
discretion amounting to unlawfully excludes
lack or excess of its or another from the use and
his jurisdiction enjoyment of a right or
office to which such other
AND there is no appeal or is entitled
any other plain, speedy, and
adequate remedy in the AND there is no other plain,
ordinary course of law speedy and adequate remedy
(R65.2) in the ordinary course of law
(R65.3)
PURPOSE
To prevent the commission or To compel the performance of the
carrying out of an act act desired
ACT SOUGHT TO BE CONTROLLED
Discretionary and ministerial Ministerial acts
acts
PETITIONER
Aggrieved person Aggrieved person
RESPONDENT3
or Those exercising judicial and/or Those exercising judicial and/or
non-judicial functions non-judicial functions

Without jurisdiction
Excess of jurisdiction
Grave abuse of discretion
If respondent do not have the legal power to determine the case
If respondent has the legal power to determine the case but oversteps such
power
If respondent has the legal power to determine the case but acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of his
judgment

2 A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the
judgment and the acts of the lower court or agency. (Silvestre vs. Torres, 1946)

3 When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or
respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of
such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent
or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal
parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the
proceedings therein. [Rule 65.5]

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
FORM OF PETITION
verified verified verified
alleging the facts with alleging the facts with alleging the facts with
certainty certainty certainty

CIVIL PROCEDURE
PRAYER: that judgment be PRAYER: that judgment be PRAYER: that judgment be
rendered annulling / rendered commanding the rendered commanding the
modifying the proceedings of respondent to desist from respondent, immediately or
such tribunal, etc., and further proceedings in the some other time to be
granting such incidental action or matter specified specified by the court, to do
reliefs as law and justice therein, or otherwise the act required to be done to
may require. granting such incidental protect the rights of the
accompanied by a certified reliefs as law and justice petitioner, and to pay the
true copy of the subject may require. damages sustained by the
judgment, etc., copies of all accompanied by a certified petitioner by reason of the
relevant pleadings and true copy of the subject wrongful acts of the
documents, and a judgment, etc., copies of all respondent.
certification of non-forum relevant pleadings and contains a certificate of non-
shopping. documents, and a forum shopping.
certification of non-forum
shopping.

The original action of certiorari not a
substitute for appeal (Lobite vs.
Sundiam 1983).
Exceptions:
a. the appeal is not a speedy and
adequate remedy (Salvadores vs.
Pajarillo 1947)
b. the orders were issued either in
excess of or without jurisdiction
(Aguilar vs. Tan 1970)
c. special considerations, i.e., public
welfare or public policy (Jose vs.
Zulueta 1961)
d. the order is a patent nullity (Marcelo
vs. De Guzman 1982)
e. the decision in the certiorari case
will avoid future litigations (St. Peter
Memorial Park vs. Campos 1975)
NOTE: In the 2005 and 2008 Bar Exams,
bar examinees were asked to compare
Petition for review on Certiorari and
Certiorari.
A motion for reconsideration must first be
availed of before certiorari to enable
the lower court to correct its mistakes
without the intervention of the lower
courts (BA Finance vs. Pineda 1982)
Exceptions:
a. the order is a patent nullity (Vigan
Elec. Light vs. Public Service
Commission 1964)
b. the questions raised in the certiorari
have been duly raised and passed
upon by the lower court (Fortich-
Celdran vs. Celdran 1967) or are the
same as those raised and passed
upon in the lower court (Pajo vs. Ago
1960)
c. there is an urgent necessity for the
resolution of the question and delay
would prejudice the interests of the
government (Vivo vs.Cloribel 1966)
d. the MR would be useless (People vs.
Palacio 1960)
e. the petitioner was deprived of due
process and there is extreme
urgency for relief (Luzon Surety vs.
Marbella 1960)
f. the proceeding was ex parte in
which the petitioner had no
opportunity to object (Republic vs.
Maglanoc 1963)
g. the issue raised is purely a question
of law or where the public interest is
involved (PALEA vs. PAL 1982)
Questions of fact cannot be raised in an
original action for certiorari. Only
established or admitted facts may be
considered. [Suarez v. NLRC, 1998]
Findings of fact of CA are not binding
upon SC in an original action for
certiorari (Medran vs. CA, 1949)
Prohibition is a preventive remedy.
However, to prevent the respondent
from performing the act sought to be
prevented during the pendency of the
proceedings for the writ, the petitioner
should obtain a restraining order
and/or writ of preliminary injuction.
[Regalado]
Prohibition is the remedy where a
motion to dismiss is improperly denied.
[Enriquez v. Macadaeg, 84 Phil 674]
A writ of mandamus will not issue to
control the exercise of official discretion
or judgment, or to alter or review the
action taken in the proper exercise of
the discretion of judgment, for the writ

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REVIEWER IN REMEDIAL LAW
cannot be used as a writ of error or
other mode of direct review.
However, in extreme situations
generally in criminal cases, mandamus
lies to compel the performance of the
fiscal of discretionary functions where
his actuations are tantamount to a
wilful refusal to perform a required
duty. [Regalado]
General Rule: In the performance of an
official duty or act involving discretion,
such official can only be directed by
mandamus to act but not to act in one
way or the other.
EXCEPTION: gross abuse of discretion,
manifest injustice, palpable excess of
authority [Kant Wong v. PCGG, 1987]
Mandamus can be availed of only by the
party who has direct legal interest in
the right sought to be enforced.
HOWEVER, if the question is one of
public right, it is sufficient to show that
the petitioner is a citizen. [Tanada v.
Tuvera, 1985]
A. Procedure
1. FILE PETITION FOR CERTIORARI /
PROHIBITION / MANDAMUS.
When filed:
Not later than 60 days from notice of
judgment/order/resolution
If a motion for reconsideration/new
trial is filed, the 60-day period shall
be counted from notice of denial of
motion.
Extension may be granted for
compelling reasons, not exceeding
15 days. [Rule 65.4]
Where filed:
1) Supreme Court
2) Court of Appeals
If it involves the acts of a quasi-
judicial agency, the petition shall
be filed only in the CA, unless
otherwise provided by law or the
Rules.
3) Regional Trial Court, if it relates to
acts / omissions of a lower court /
corporation / board / officer /
person.
4) Sandiganbayan, if it is in aid of its
appellate jurisdiction. [Rule 65.4]
2. ORDER TO COMMENT
If the petition is sufficient in form and
substance to justify such process, the
court shall issue an order requiring the
respondent(s) to comment on the
Part 4: Special Civil Actions
petition within 10 days from receipt of a
copy thereof.
Such order shall be served on the
CIVIL PROCEDURE
respondents in such manner as the
court may direct, together with a copy of
the petition and any annexes thereto.
[Rule 65.6]
3. HEARING OR MEMORANDA
After the comment or other pleadings
required by the court are filed, or the
time for the filing thereof has expired,
the court may hear the case or require
the parties to submit memoranda. [Rule
65.8]
4. JUDGMENT
If after such hearing or submission of
memoranda or the expiration of the
period for the filing thereof, the court
finds that the allegations of the petition
are true, it shall render judgment for
the relief prayed for or to which the
petitioner is entitled.
The court, however, may dismiss the
petition if it finds the same to be (1)
patently without merit, (2) prosecuted
manifestly for delay, or that (3) the
questions raised therein are too
unsubstantial to require consideration.
[Rule 65.8]
5. SERVICE AND ENFORCEMENT OF
ORDER OR JUDGMENT
A certified copy of the judgment
rendered shall be served upon the
court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court
may direct, and disobedience thereto
shall be punished as contempt.
An execution may issue for any
damages or costs awarded in
accordance with section 1 of Rule 39.
[Rule 65.9]
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

V. QUO WARRANTO B. By Whom/Against Whom

By Government, brought in the name
A. HOW COMENCED of the Republic of the Philippines,

CIVIL PROCEDURE
B. BY WHOM/AGAINST WHOM against:
C. CONTENTS OF PETITION a. A person who usurps, intrudes into,
D. VENUE or unlawfully holds or exercises a
E. WHEN FILED
public office, position or franchise
F. JUDGMENT
b. A public officer who does not or
suffers an act which, by the
Quo warranto is the remedy to try
provision of law, constitutes a
disputes with respect to the title to a
ground for the forfeiture of his office
public office.
c. An association which acts as a
corporation within the Phils without
QUO WARRANTO ELECTION CONTEST
being legally incorporated or without
Basis: the occupant is Challenges the right of
disqualified from a person to hold office
lawfully authority so to act [Rule
holding the office by on the ground of 66.1]
reason of ineligibility irregularities in the When Solicitor General or public
or disloyalty conduct of the elections prosecutor MUST commence action:
If proceeding Successful protestant o when directed by the President
succeeds, respondent will assume the office if of the Phils.
will be ousted but he obtained a plurality o when upon complaint or
petitioner will not of the valid votes otherwise, he has good reason to
assume the office
believe that any case specified in
Sec. 1 can be established by
QUO WARRANTO ACTIONS
proof. [Rule 66.1]
ELECTIVE OFFICE APPOINTIVE OFFICE
o at the request and upon the
Issue: eligibility of the Issue: validity of the
respondent appointment relation if another person (ex
Occupant declared Court will oust the relatione), but leave of court
ineligible/disloyal will person illegally must first be obtained. [Rule
be unseated but appointed and will 66.3]
petitioner will not be order the seating of the When Solicitor General or public
declared the rightful person who was legally prosecutor MAY commence action:
occupant of the office appointed and entitled o with permission of the court
to the office. o at the request and upon the
relation of another person
DIFFERENCE BETWEEN MANDAMUS AND
o officer bringing such action may
QUO WARRANTO
(ASKED IN THE 2001 BAR EXAM) first require an indemnity for the
While quo warranto and mandamus are often expenses and costs of the action
concurrent remedies, however, there exists a in an amount approved by and
clear distinction between the two. (Lota vs. CA, deposited in court. [Rule 66.3]
1961) By a person claiming to be entitled to
The authorities are Mandamus only lies to a public office or position, brought in
agreed that quo enforce clear legal his own name, against another who
warranto is the remedy duties, not to try usurped or unlawfully held or exercised
to try the right to an disputed titles (to an
such public office or position [Rule 66.5]
office or franchise and office), 38 C.J. 546; 2
to oust the holder from Moran, Comments on
its enjoyment. Where the Rules of Court, C. Contents of Petition
there is usurpation or 1957 ed., 200; and Action against a person for usurping a
intrusion into an that where the public office, position or franchise
office, quo warranto is respondent, without (1) name of the person who claims to be
the proper remedy, claiming any right to entitled thereto
Lino Luna vs. an Office, excludes the (2) averment of his right to the same
Rodriguez, 36 Phil. petitioner therefrom,
and that the respondent is
491, he remedy is
mandamus, not quo
unlawfully in possession thereof.
warranto. Manalo vs. All persons who claim to be entitled to
Sevilla, 24 Phil. 609) the public office/position/franchise may
be made parties. [Rule 66.6]
A. How Commenced
By a verified petition [Rule 66.1] D. Venue
Supreme Court

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REVIEWER IN REMEDIAL LAW
Court of Appeals
RTC exercising jurisdiction over the
territorial area where the respondent or
any of the respondents resides
Where Sol Gen commences action RTC
in Manila, CA or SC [Rule 66.7]
E. When Filed
action against a public officer or
employee for his ouster from office
within one year after the cause of such
ouster, or the right of the petitioner to
hold office or position, arose
action for damages sustained by reason
of usurpation within one year after
the entry of the judgment establishing
the petitioners right to the office in
question [Rule 66.11]
The one-year period is not interrupted
by the prosecution of any administrative
remedy as, in quo warranto
proceedings, no one is compelled to
resort to administrative remedies since
public interest requires that the right to
public office should be determined as
speedily as possible. [Fernandez v. Dela
Paz, 1988]
F. Judgment
When the respondent is found guilty of
usurping, intruding into, or unlawfully
holding or exercising a public office,
position or franchise, judgment shall be
rendered that such respondent be
ousted and altogether excluded
therefrom, and that the petitioner or
relator recover his costs. [Rule 66.9]
If judgment be rendered in favor of the
person averred in the complaint to be
entitled to the public office he may, after
taking the oath of office and executing
any official bond required by law, take
upon himself the execution of the office,
and may immediately thereafter
demand of the respondent all the books
and papers in the respondent's custody
or control appertaining to the office to
which the judgment relates.
The person adjudged entitled to the
office may also bring action against the
respondent to recover the damages
sustained by such person by reason of
the usurpation. [Rule 66.10]
Part 4: Special Civil Actions
VI. EXPROPRIATION
A. CONCEPT AND BASIS OF EXPROPRIATION
CIVIL PROCEDURE
B. TWO STAGES IN EXPROPRIATION
PROCEEDINGS
C. PROCEDURE
A. Concept and Basis of
Expropriation
Eminent domain is defined as the power
of the nation or a sovereign state to
take, or to authorize the taking of,
private property for a public use without
the owners consent, conditioned upon
payment of just compensation.
The exercise of the power of eminent
domain is constrained by two
constitutional provisions:
(1) that private property shall not be
taken for public use without just
compensation under Article III (Bill
of Rights), Section 9; and
(2) that no person shall be deprived
of his/her life, liberty, or property
without due process of law under
Art. III, Sec. 1. (Barangay Sindalan
etc. et al. v. CA et al., 2007)
Rule 67 primarily governs the exercise
of the right of eminent by the State
acting through the national
government. (Regalado) Expropriation
by local government units is governed
by the Local Government Code of 1991
(R.A. 7160)
B. Two Stages in Expropriation
Proceedings:
a. Determination of the authority of the
plaintiff to exercise the power of
eminent domain and the propriety of its
exercise in the context of the facts.
This stage is terminated by either an
order of dismissal of the action or
order of the condemnation declaring
that expropriation is proper and
legal. These orders are final and
therefore appealable. (Municipality of
Bian v. Garcia, 1989)
b. Determination of just compensation.
This is done with the assistance of
not more than three (3)
commissioners.
The order fixing just compensation
is also final and appealable. (Ibid).
Just compensation is to be
determined as of the date of the
taking of the propriety or the filing
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REVIEWER IN REMEDIAL LAW
of the complaint, whichever comes
first.
There is taking when the owner is
actually deprived or dispossessed of his
property; when there is a practical
destruction or a material impairment of
the value of his property or when he is
deprived of the ordinary use thereof.
(Ansaldo v. Tantuico, 1990)
An expropriation suit is incapable of
pecuniary estimation. Accordingly, it
falls within the jurisdiction of RTCs,
regardless of the value of the subject
property. (Bardillon v. Bgy. Masili, 2003)
C. Procedure
(See APPENDIX 4.)
1. COMPLAINT FOR EXPROPRIATION
The complaint for expropriation must be
VERIFIED.
CONTENTS:
1) The right and purpose of
expropriation
2) Description of the real or personal
property sought to be expropriated;
3) The complaint shall join as
defendants all persons owning or
claiming to own, or occupying any
part thereof or any interest therein,
showing as far as practicable the
separate interest of each defendant.
4) The following must be clearly stated
in the complaint , if applicable:
a. If the title to any property sought
to be expropriated appears to be
in the Republic of the
Philippines, although occupied
by private individuals;
b. If the title is otherwise obscure
or doubtful so that the plaintiff
cannot with accuracy or
certainty specify who are the real
owners. [Rule 67.1]
2. ENTRY OF PLAINTIFF UPON PROPERTY
The plaintiff shall have the right to take
or enter upon the possession of the real
property involved upon:
1. filing of complaint for expropriation
2. service of notice to the defendant
3. Deposit with the authorized
government depositary an amount
equivalent to the assessed value of
the property for purposes of taxation
to be held by such bank subject to
the orders of the court.
4. Deposits shall be in money (legal
tender) or, if the court authorizes it,
certificate of deposit of a government
Part 4: Special Civil Actions
bank payable on demand to the
authorized government depositary.
If personal property is involved, its
CIVIL PROCEDURE
value shall be provisionally ascertained
and the amount to be deposited shall be
promptly fixed by the court.
After deposit, the court shall order the
sheriff or other proper officer to place
the plaintiff in possession of the
property and promptly submit a report
thereof to the court with service of
copies to the parties. [Rule 67.2]
If the ownership of the property taken is
uncertain, or there are conflicting
claims to any part thereof, the court
may order any sum(s) awarded as
compensation for the property to be
paid to the court for the benefit of the
person adjudged in the same proceeding
to be entitled thereto.
But the judgment shall require the
payment of the sum(s) awarded to either
the defendant or the court before the
plaintiff can enter upon the property, or
retain it for the public use or purpose if
entry has already been made. [Rule
67.9]
3. ANSWER
IF THE PLAINTIFF IF THE PLAINTIFF
HAS NO OBJECTION HAS OBJECTION OR
OR DEFENSE TO THE DEFENSE TO THE
EXPROPRIATION OR EXPROPRIATION OR
TAKING OF THE TAKING OF THE
PROPERTY PROPERTY
Defendant may file and Defendant shall serve
serve notice of his ANSWER within the
appearance and a time stated in the
manifestation that he summons.
has no objection or
defense, specifically
designating or
identifying the property
in which he claims to
be interested within the
time stated in the
summons. Thereafter,
the defendant shall be
entitled to notice of all
proceedings affecting
the same.
GENERAL RULE: All defenses or
objections not alleged in the answer are
deemed waived.
EXCEPTION: The court, in the interest
of justice, may allow the answer to be
amended not later than 10 days from
filing.
At the trial of the issue of
compensation, whether or not the
defendant has previously appeared or
answered, he may present evidence as
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REVIEWER IN REMEDIAL LAW
to the amount of the compensation to
be paid for his property, and he may
share in the distribution of the award.
The answer to the complaint for
expropriation shall:
1) Specifically designate or identify the
property in which he claims to have
an interest;
2) State the nature and extent of the
interest claimed; and
3) Adduce all of defendants objections
or defenses to the taking of his
property
No counterclaim, cross-claim or third-
party complaint shall be alleged or
allowed in the answer or any
subsequent pleading. [Rule 67.3]
4. ORDER OF EXPROPRIATION
It declares that the plaintiff has a lawful
right to take the property sought to be
expropriated for the public use or
purpose described in the complaint,
upon payment of just compensation to
be determined as of the date of the
taking of the property or the filing of the
complaint whichever is earlier.
It is issued by the court in which the
complaint for expropriation is filed
when:
objections or defenses of the
defendant have been overruled, or
the defendant raised no such
defense or objection, or
no party appears to defend. [Rule
67.4]
5. COMPENSATION
Just compensation is defined as the
full and fair equivalent of the property
taken from its owner by the
expropriator.
The measure is not the takers gain, but
the owners loss. To compensate is to
render something which is equal in
value to that taken or received.
The word just is used to intensify the
meaning of the word compensation; to
convey the idea that the equivalent to
be rendered for the property taken shall
be real, substantial, full, ample.
In eminent domain or expropriation
proceedings, the general rule is that the
just compensation which the owner of
condemned property is entitled to is the
market value.
Market value is that sum of money
which a person desirous but not
compelled to buy, and an owner willing
but not compelled to sell, would agree
Part 4: Special Civil Actions
on as a price to be given and received
therefor. (BPI v. CA, 2004)
Upon the rendition of the order of
CIVIL PROCEDURE
expropriation, the court shall appoint
not more than 3 competent and
disinterested persons as commissioners
to ascertain and report to the court the
just compensation for the property
sought to be taken. [Rule 67.5]
Powers and duties of commissioners:
Parties can present evidence before
the commissioners and the latter
have the power to administer oaths
or hearings before them;
They can, after due notice to the
parties to attend, view and examine
the property sought to be
expropriated and its surroundings
and may measure the same;
EXCEPTION: when the parties
agrees otherwise, the commissioners
cannot view and examine the
property
The commissioners shall assess the
consequential damages to the
property taken and deduct from
such consequential damages the
consequential benefits derived by
the owner from the public use or
purpose of the property taken, the
operation of its franchise by the
corporation or person taking the
property.
In no case shall the consequential
benefits assessed exceed the
consequential damages assessed, or
the owner be deprived of the actual
value of his property so taken. [Rule
67.6]
The commissioners shall make full and
accurate report to the court of all their
proceedings.
The report shall be filed within 60
days from the date the
commissioners were notified of their
appointment.
Upon filing of the report, the clerk of
court shall serve copies thereof on
all interested parties, with notice
that they are allowed ten (10) days
within which to file objections to the
findings of the report, if the parties
desire. [Rule 67.7]
After the 10-day period for objecting to
the commissioners report, the court,
after hearing, may:
ACCEPT the report and render
JUDGMENT in accordance
therewith;
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
RECOMMIT the report to the VII. FORECLOSURE OF REAL
commissioners for further report of ESTATE MORTGAGE
facts; (Asked in the 2003 Bar Exam)

CIVIL PROCEDURE
SET ASIDE the report and APPOINT
new commissioners; A. COMPLAINTS CONTENTS
ACCEPT the report IN PART and B. JUDGMENT
REJECT it IN PART; C. DISPOSITION OF THE PROCEEDS OF THE
Make such order or render SALE
D. DEFICIENCY JUDGMENT
judgment s shall secure to the
E. REGISTRATION
plaintiff the property essential to the
exercise of his right of expropriation
The cause of action in a foreclosure suit
and to the defendant just
is generally the non-payment of the
compensation for the property so
mortgage loan, but it may be on other
taken. [Rule 67.8]
grounds which under the contract
warrant the foreclosure, such as the
6. JUDGMENT
violation of the other conditions therein.
The judgment entered in expropriation
Foreclosure may be made:
proceedings shall state definitely, by an
1. judicially governed by Rule 68
adequate description, the particular
2. extrajudicially proper only when so
property or interest therein
provided in contracts in accordance
expropriated, and the nature of the
with Act. No. 3135; governed by
public use or purpose for which it is
A.M. No. 99-10-05-0.
expropriated.
A foreclosure action must be brought in
When real estate is expropriated, a
the RTC of the province where the land
certified copy of such judgment shall be
or any part thereof is situated.
recorded in the registry of deeds of the
If a mortgage contract covers several
place in which the property is situated,
distinct parcels of land situated in
and its effect shall be to vest in the
different provinces, the action may be
plaintiff the title to the real estate so
brought in the RTC of any of the
described for such public use or
provinces and the judgment will be
purpose. [Rule 67.13]
enforceable against any of the parcels of
Upon payment by the plaintiff to the
land involved. [Monte de Piedad v.
defendant of the compensation fixed by
Rodrigo, 56 Phil 301]
the judgment, with legal interest
thereon from the taking of the
possession of the property, or after
A. Complaints Contents
tender to him of the amount so fixed
a. Date and due execution of the
and payment of the costs,
mortgage;
the plaintiff shall have the right to enter
upon the property expropriated and to b. Date of assignment of mortgage, if any;
c. The names and residences of the
appropriate it for the public use or
purpose defined in the judgment, or to mortgagor and mortgagee;
d. Description of the mortgaged property;
retain it should he have taken
e. Statement of the date of the note or
immediate possession thereof under
Sec. 2. [Rule 67.10] other documentary evidence of the
obligation secured by the mortgage;
The right of the plaintiff to enter upon
f. Amount claimed to be unpaid;
the property of the defendant and
appropriate the same for public use or g. The names and residences of all
purpose shall not be delayed by an persons having or claiming an interest
appeal from the judgment. in the property subordinate in right to
that of the holder of the mortgage, all of
But if the appellate court determines
whom shall be made defendants in the
that plaintiff has no right of
action. [Rule 68.1]
expropriation, judgment shall be
rendered ordering the RTC to forthwith
enforce the restoration to the defendant B. Judgment
of the possession of the property, and to
determine the damages which the If upon the trial, the court shall find the
defendant sustained and may recover facts set forth in the complaint to be
by reason of the possession taken by true, it shall ascertain the amount due
the plaintiff. [Rule 67.11] to the plaintiff upon the mortgage debt

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REVIEWER IN REMEDIAL LAW
or obligation, including interest and
other charges as approved by the court,
and costs, and shall render judgment
for the sum so found due and order that
the same be paid to the court or to the
judgment obligee within a period of
not less than 90 days nor more than
120 days from the entry of judgment
(equity of redemption).
In default of such payment the property
shall be sold at public auction to satisfy
the judgment. [Rule 68.2]
When the defendant, after being
directed to do so, fails to pay the
amount of the judgment within the
period specified therein, the court, upon
motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other
regulations governing sales of real
estate under execution.
Such sale shall not affect the rights of
persons holding prior encumbrances
upon the property or a part thereof, and
when confirmed by an order of the
court, also upon motion,
it shall operate to divest the rights in
the property of all the parties to the
action and to vest their rights in the
purchaser, subject to such rights of
redemption as may be allowed by law.
Upon the finality of the order of
confirmation or upon the expiration of
the period of redemption when allowed
by law, the purchaser at the auction
sale or last redemptioner, if any, shall
be entitled to the possession of the
property, unless a third party is actually
holding the same adversely to the
judgment obligor.
The said purchaser or last redemptioner
may secure a writ of possession, upon
motion, from the court which ordered
the foreclosure. [Rule 68.3]
C. Disposition of the Proceeds of the
Sale
Claims to be satisfied by the proceeds of
the public sale of mortgaged property
(in order):
Costs incurred in the sale of
property
Claim of the person foreclosing the
property
Claims of junior encumbrancers in
the order of their priority
If proceeds of the sale exceeds the cost
of the sale as well as the claims of the
person foreclosing the property and
Part 4: Special Civil Actions
junior encumbrancers, if any the
residual amount shall be given to the
mortgagor or his agent, or to the person
CIVIL PROCEDURE
entitled to it. [Rule 68.4]
If the proceeds of the sale is less than
the amount of the claims to be satisfied
the person foreclosing the property
may move for a DEFICIENCY
JUDGMENT from the court
confirming the foreclosure sale, to
recover the amount of the deficiency
in his claim.
D. Deficiency Judgment
Definition. A judgment against a debtor
for the unpaid balance of the debt if a
foreclosure sale or a sale of repossessed
personal property fails to yield the full
amount of the debt due; also termed a
deficiency decree. (Blacks Law
Dictionary)
Sec. 6 provides for a deficiency
judgment which shall be rendered, on
motion, when the foreclosure sale did
not produce proceeds sufficient to
satisfy the judgment.
In extrajudicial foreclosure, the
mortgagee can also recover by action
any deficiency in the mortgage
account which was not realized in
the foreclosure sale. [PNB v. CA,
1999]
A motion for deficiency judgment may
be made only after the sale and after it
becomes known that a deficiency exists.
(Governor of the Philippine Islands v.
Torralba Vda. de Santos, 1935)
No deficiency judgment may be
rendered against the owner who is not a
mortgagor and has not assumed
personal liability for the debt. The
remedy is an ordinary action against
the debtor. (Philippine Trust Co. v.
Echaus Tan Siua, 1929)
If the debtor dies, the deficiency may be
filed as a claim against his estate. (Rule
86.7)
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

E. Registration [Rule 68.7] the mortgagee is the Philippine National

Bank or a bank or banking institution.
A CERTIFIED COPY of the final order (Huerta Alba Resort, Inc. v. CA, 2000)

confirming the sale shall be registered
in the Registry of Deeds.
IF NO RIGHT OF IF A RIGHT OF
REDEMPTION REDEMPTION
EXISTS EXISTS
The Certificate of Title The Certificate of
in the name of the Title in the name of
mortgagor shall be the mortgagor shall
cancelled, and a new NOT be cancelled,
one issued in the name but the Certificate of
of the purchaser. Sale and the order
confirming the sale
shall be registered
and a brief VIII.
memorandum thereof
shall be made by the A.
Registrar of Deeds B.
upon the certificate of C.
title D.
E.
IF THE PROPERTY IS IF THE PROPERTY F.
REDEEMED IS NOT REDEEMED G.
The Deed of The FINAL Deed of
Redemption shall be Sale executed by the
registered with the sheriff in favor of the
Registry of Deeds and purchaser at the
a brief memorandum foreclosure sale
thereof shall be made shall be registered
by the Registrar of with the Registry of
Deeds on said Deeds.
certificate of title.
The Certificate of
Title in the name of
the mortgagor shall
be cancelled and a
new one shall be
issued in the name
of the purchaser.
Right of redemption is the right granted
to the debtor-mortgagor, his successor-
in-interest or any judicial creditor of
said debtor-mortgagor or any person
having a lien in the property
subsequent to its mortgage or deed of
trust, under which the property is sold,
to redeem the property within one (1)
year from the registration of the sheriffs
certificate of foreclosure sale. (De Castro
v. Intermediate Appellate Court, 1988)
The right of redemption in relation to a
mortgage is understood in the sense of
a prerogative to re-acquire mortgaged
property after registration of the
foreclosure sale.
It exists only in the case of the
extrajudicial foreclosure of the
mortgage.
No such right is recognized in a
judicial foreclosure, except only where
CIVIL PROCEDURE
However, the mortgagor has the equity
of redemption.
Equity of Redemption is the right of the
defendant mortgagor to extinguish the
mortgage and retain ownership of the
property by paying the amount fixed in
the decision of the court within 90 to
120 days after entry of judgment or
even after the foreclosure sale but prior
to its confirmation. (Limpin v.
Intermediate Appellate Court, 1988)
PARTITION
COMPLAINT
VENUE
WHEN TO FILE
ORDER OF PARTITION
PARTITION BY AGREEMENT
PARTITION BY COMMISSIONERS
JUDGMENT
Partition of property may be:
Extrajudicial by agreement
Judicial compulsory; governed by
Rule 69
Even if the parties resorted to judicial
partition, they may still make an
amicable partition of the property.
[Secs. 2 and 12]
Rule 69 applicable to partitions of
estates composed of personal property,
or of both real and personal property.
[Sec. 13]
Stages in an Action for Partition:
1. Determination of the propriety of
partition.
This involves a determination of
whether the subject property is
owned in common and whether all
the co-owners are made parties in
the case.
The order may also require an
accounting of rents and profits
recovered by the defendant. This
order of partition is appealable.
(Miranda v. Court of Appeals, 1976)
If not appealed, then the parties
may partition the common property
in the way they want. If they cannot
agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be
executed. (De Mesa v. CA, 1994)
2. The actual partitioning of the
subject property.

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REVIEWER IN REMEDIAL LAW
This is also a complete proceeding
and the order or decision is
appealable.
When there was a prior partition,
the fact that the share of each co-
heir has not been technically
described and the title over the
whole lot remains uncancelled does
not negate such partition.
There can be no partition again
because there is no more common
property. (Noceda v. CA, 1999)
Oral partition of land when the same is
fully consummated is valid and binding
upon the parties thereto. (Crucillo v.
IAC, 1999)
All persons considered as co-owners
and interested in the property to be
partitioned are indispensable parties to
the action and must be impleaded.
(Sepulveda v. Pelaez, 2005)
Parties to a partition proceeding, who
elected to take under partition, and who
took possession of the portion allotted
to them, are estopped to question title
to portion allotted to another party.
A person cannot claim both under and
against the same instrument. In other
words, they accepted the lands awarded
them by its provisions, and they cannot
accept the decree in part, and repudiate
it in part.
They must accept all or none. Parties
who had received the property assigned
to them are precluded from
subsequently attacking its validity of
any part of it. (Maglucot-aw et al. v.
Maglucot et al., 2000)
Partition may be inferred from
circumstances sufficiently strong to
support the presumption. Thus, after a
long possession in severalty, a deed of
partition may be presumed.
It has been held that recitals in deeds,
possession and occupation of land,
improvements made thereon for a long
series of years, and acquiescence for 60
years, furnish sufficient evidence that
there was an actual partition of land
either by deed or by proceedings in the
probate court, which had been lost and
were not recorded.
And where a tract of land held in
common has been subdivided into lots,
and one of the lots has long been known
and called by the name of one of the
tenants in common, and there is no
evidence of any subsequent claim of a
tenancy in common, it may fairly be
Part 4: Special Civil Actions
inferred that there has been a partition
and that such lot was set off to him
whose name it bears. (Maglucot-aw et al.
CIVIL PROCEDURE
v. Maglucot et al., supra)
A. Complaint
Filed by person having the right to
compel the partition of real estate.
Contents:
a. Nature and extent of the
complainants title
b. Adequate description of the real
estate of which the partition is
demanded
c. All other persons interested in the
property must be impleaded. [Rule
69.1]
B. Venue
Actions for partition should be filed in
the RTC of the province where the
property or part thereof is situated.
If several dintinct parcels of land are
situated in different provinces, venue
may be laid in the RTC of any of said
provinces. [Pancho v. Villanueva, 99 Phil
611]
C. When to File
The right of action to demand partition
does not prescribe [De Castro v. Echarri,
20 Phil 23], EXCEPT where one of the
interested parties openly and adversely
occupies the property without
recognizing the co-ownership [Cordova
v. Cordova, 102 Phil 1182] in which
case, acquisitive prescription may set
in.
If a co-owner repudiates the co-
ownership and makes known such
repudiation to the other co-owners,
then partition is no longer a proper
remedy of the aggrieved co-owner. He
should file an accion reivindicatoria,
which is prescriptible. (Roque v. IAC,
1988)
D. Order of Partition
After trial, if the court finds that the
plaintiff has the right to the property
subject of partition, it shall issue an
order demanding the partition of the
real estate among all the parties in
interest.
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REVIEWER IN REMEDIAL LAW
E. Partition by Agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves.
If they agree, proper instruments of conveyance
will be executed to effect the partition.
After the execution of instruments of
conveyance, the court shall confirm the partition
through a final order.
The final order of partition and the instruments
of conveyance shall be registered with the
Registry of Deeds where the property is situated.
[Rule 69.2]
A party shall recover from another his
just share of rents and profits received
by such other party from the real estate
in question, and the judgment shall
include an allowance for such rents and
profits. [Rule 69.8]
A final order decreeing partition and
accounting may be appealed by any
party aggrieved thereby. [Rule 69.2]
F. Partition by Commissioners
If the parties are unable to agree upon
the partition, the court shall appoint
not more than 3 competent and
disinterested persons as commissioners
to make the partition, commanding
them to set off to the plaintiff and to
each party in interest such part and
proportion of the property as the court
shall direct. [Rule 69.3]
Duties of Commissioners [Rule 69.4]:
1. view and examine the real estate,
after due notice to the parties to
attend at such view and
examination
2. hear the parties as to their
preference in the portion of the
property to be set apart to them and
the comparative value thereof
3. set apart the same to the parties in
lots or parcels as will be most
advantageous and equitable, having
due regard to the improvements,
situation and quality of the different
parts thereof.
If the commissioners should determine
that the real estate cannot be divided
without prejudice to the interests of the
parties, the court may order that the
property be assigned to one of the
parties willing to take the same
PROVIDED he pays to the other parties
Part 4: Special Civil Actions
such amounts as the commissioners
deem equitable
EXCEPTION: if one of the parties asks
CIVIL PROCEDURE
that the property be sold instead of
being so assigned, then the court shall
ORDER the commissioners to sell the
real estate at pubic sale under such
conditions and within such time as the
court may determine. [Rule 69.5]
The commissioners shall make a full
and accurate report to the court of all
their proceedings as to the partition, or
the assignment of real estate to one of
the parties or the sale of the same.
Upon filing the report, the clerk of court
shall serve copies thereof on all
interested parties with notice that they
are allowed 10 days within which to file
objections to the findings of the report,
if they so desire.
No proceeding had before or conducted
by the commissioners shall pass the
title to the property or bind the parties
until the court accepts the
commissioners report and rendered
judgment thereon. [Rule 69.6]
Upon the expiration of the 10-day
period, or even before the expiration of
such period but after the interested
parties filed their objections to the
report/statement of agreement, the
court, upon hearing, may:
1. ACCEPT the commissioners report
and render JUDGMENT based upon
it.
2. RECOMMIT the report to the
commissioners for further report of
facts if there is cause to do the same
3. SET ASIDE the report and APPOINT
new commissioners
4. ACCEPT the report IN PART and
REJECT it IN PART
5. Make such order and render such
judgment as shall effectuate a fair
and just partition of the real estate
or of its value, if the property is
assigned or sold between the several
owners thereof. [Rule 69.7]
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

G. Judgment IX. FORCIBLE ENTRY AND

UNLAWFUL DETAINER
CONTENTS OF EFFECTS OF (Asked in the 2000 Bar Exam in

CIVIL PROCEDURE
JUDGMENT JUDGMENT Relation to a Pending Action for
IF ACTUAL Judgment shall Judgment shall Specific Performance)
PARTITION state definitely, vest in each
IS by metes and party to the
A. ACTIONS FOR THE RECOVERY OF
PROPERLY bounds and action in
POSSESSION OF REAL PROPERTY
MADE adequate severalty the
B. FORCIBLE ENTRY
description, the portion of the
C. UNLAWFUL DETAINER
particular real estate
D. PLEADINGS
portion of the assigned to
E. PROCEDURE
real estate him.
F. PRELIMINARY INJUNCTION
assigned to
G. MATTERS NOT CONSTITUTING
each party.
PREJUDICIAL QUESTION TO EJECTMENT
IF THE Judgment shall Judgment shall
WHOLE state the fact of vest in the
PROPERTY such payment party making A. Actions for the Recovery of
IS ASSIGNED and of the the payment Possession of Real Property
TO ONE OF assignment of the whole of the
THE the real estate real estate free 1. Accion Interdictal
PARTIES to the party from any the summary action for forcible
AFTER making the interest on the
PAYMENT payment. part of the
entry (detentacion)
other parties. where the defendants possession of
IF Judgment shall Judgment shall property is illegal ab initio, or
PROPERTY state the name vest the real the summary action for unlawful
IS SOLD AND of the estate in the detainer (desahucio) where the
SALE IS purchaser or purchaser(s), defendants possession was
CONFIRMED purchasers and making the originally lawful
BY THE a definite payment(s) free
but ceased to be so by the expiration
COURT description of from the
the parcels of claims of any
of his right to possess,
real estate sold parties to the both of which must be brought
to each action. within one year from the date of
purchaser actual entry to the land, in case of
forcible entry, and from the date of
A certified copy of the judgment shall in last demand, in case of unlawful
either case be recorded in the registry of detainer,
deeds of the place in which the real in the proper municipal trial court
estate is situated. [Rule 69.11] or metropolitan trial court.
Nature:
a. special civil action involving realty;
b. subject to the Rules on Summary
Procedure; [Rule 70.3]
c. under the original exclusive
jurisdiction of first level courts;
d. nature of the action is determined
by the allegation of the complaint
and the character of the relief
sought; (Abrin v. Campos, 1991)
e. one co-owner may institute the
action.

2. Accion Publiciana
is a plenary action for recovery of
the right to possess and which
should be brought in the proper
regional trial court when the
dispossession has lasted for more
than one year.

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REVIEWER IN REMEDIAL LAW
3. Accion Reivindicatoria
or accion de reivindicacion, seeks the
recovery of ownership and includes
the jus utendi and the jus fruendi,
which must be brought in the
proper regional trial court.
It is thus an action whereby plaintiff
alleges ownership over a parcel of
land and seeks recovery of its full
possession. [Javier v. Veridiano,
1994]
B. Forcible Entry
Resorted to when a person is deprived
of possession of any land or building by
(1) force, (2) intimidation, (3) strategy,
(4) threat, or (5) stealth. (fists)
Must be brought at any time within 1
year after such unlawful deprivation in
the proper municipal trial court against
the person unlawfully depriving him of
possession or against any person or
persons claiming under them.
Action must be for the restitution of
possession of property together with
damages and costs. [Rule 70.1]
The owners of a property have no
authority to use force and violence to
eject alleged usurpers who were in prior
physical possession of it.
They must file the appropriate action in
court and should not take the law into
their own hands. (Laurora v. Sterling
Technopark, 2003)
C. Unlawful Detainer
resorted to when a lessor, vendor,
vendee, or other person against whom
the possession of any land or building is
unlawfully withheld, after the expiration
or termination of the right to hold
possession by virtue of an express or
implied contract.
may also be brought by the legal
representative or assigns of any such
lessor, vendor, vendee, or other
persons.
must be brought at any time within 1
year after the unlawful withholding of
possession in the proper Municipal Trial
Court against the person unlawfully
withholding possession or persons
claiming under them.
action must be for the restitution of
possession of property together with
damages and costs. [Rule 70.1]
commenced by lessor only after:
Part 4: Special Civil Actions
(1) demand to pay or comply with
the conditions of the lease and to
vacate is made upon the lessee, or
CIVIL PROCEDURE
(2) by serving written notice of such
demand upon the person found on
the premises, or
(3) by posting such notice on the
premises if no person be found
thereon, and the lessee fails to
comply therewith after 15 days in
the case of land or 5 days in the
case of buildings. [Rule 70.2]
EXCEPTIONS (prior demand not
required):
a. Where purpose of the action is to
terminate the lease by reason of the
expiry of its term, and is not for
failure to pay rentals or comply with
the terms of the lease contract. [De
Santos v. Vivas, 96 Phil 538]
b. When the purpose of the suit is not
for ejectment but for the
enforcement of the terms of the
contract. [Guanson v. Ban, 77 Phil 7]
c. When the defendant is not a tenant
but a mere intruder. [id]
Demand upon a tenant may be oral.
(Jakihaca v. Aquino, 1990)
A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them is necessarily bound by
an implied promise that he will vacate
upon demand, failing which, an action
for unlawful detainer may be instituted
against him. (Dakudao v. Consolacion,
1983)
This rule as to tolerance does not hold
true in a case where there was forcible
entry at the start, but the lawful
possessor did not attempt to oust the
intruder for over 1 year, and only
thereafter filed forcible entry suit
following demand to vacate. (Muoz v.
CA, 1992)
Tolerance must be presented right from
the start of possession sought to be
recovered to categorize a cause of action
as one of unlawful detainer. (Refugia v.
CA, 1996)
When failure to pay rent or comply with
the condition of lease is the ground for
ejectment, plaintiff should give 2
demands (which may be embodied in 1
demand letter):
1. demand to pay rental or comply
with conditions of the lease, and if
this is not complied with,
2. demand to vacate (Zobel v. Abreu,
1956)
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
Notice and demand to vacate is required d. Answer
on a lease on a month-to-month period Prohibited pleadings and motions [Rule
to render effective the termination of the 70.13]:

CIVIL PROCEDURE
lease upon the expiration of the month, Motion to dismiss
and prevent an implied renewal of the EXCEPTIONS:
lease. (Rivera v. Florendo; Yap v. Cruz, a. Motion to dismiss based on lack
1992) of jurisdiction over the subject-
An alternative demand to either renew matter
the expired lease contract at a higher b. Motion to dismiss for failure to
rental rate or vacate is not a definite comply with section 12 (referral
demand to vacate and therefore, to conciliation)
insufficient basis for the filing of an Motion for a Bill of Particulars
action for unlawful detainer. (Penas, Jr. Motion for New Trial
v. CA, 1994) Motion for reconsideration of a
Refusal to collect or accept rentals is judgment
not a defense. There must be Motion for reopening of trial
consignation. (Uy v. CA, 1989) Petition for relief from judgment
Motion for extension to file
UNLAWFUL
FORCIBLE ENTRY pleadings, affidavits or other papers
DETAINER
Possession becomes Possession was lawful Memoranda
unlawful right from the at first but later Petition for Certiorari, Mandamus or
very start (i.e. from the becomes illegal, as Prohibition against any interlocutory
time of entry) as he when the lease order issued by the court
acquires possession by contract has expired Motion to declare defendant in
FISTS. and the lessee refuses default
to vacate the premises
Dilatory motion for postponement
despite demand.
The deprivation of The unlawful Reply
physical possession of withholding of Third-party complaints
land and building is possession is made Interventions
effected through force, after the expiration or
intimidation, strategy, termination of the E. Procedure
threat or stealth right to hold
(FISTS). possession under any
1. Filing of complaint.
contract, express or
implied.
The issue centers on The issue centers on 2. After the court has examined the
who was in prior whether the allegations in the complaint and
possession de facto. defendants right to supporting evidence attached to the
possess has expired or same, the court may:
not. a. DISMISS the case outright based on
Previous demand upon Previous demand to the grounds for dismissal for
defendant to vacate not vacate required ordinary civil actions apparent in
required. (jurisdictional). the complaint, or
The plaintiff must The plaintiff need not
b. ISSUE SUMMONS, if the no ground
allege and prove that be in prior physical
he was in prior possession.
for dismissal is found. [Rule 70.5]
physical possession of Cases requiring referral to
the premises until conciliation, where there is no
deprived thereof. showing of compliance with such
1-year period counted 1-year period counted requirement, shall be dismissed
from date of actual from date of last without prejudice, and may be
entry on the land. demand or last letter revived only after that requirement
of demand. have been complied with. [Rule
70.12]
D. Pleadings
3. The defendant shall file his ANSWER
Must be verified. [Rule 70.4] and serve a copy of it to the plaintiff
Allowed pleadings [Rule 70.4]: within 10 days from service of
a. Complaint summons. [Rule 70.6]
b. Compulsory Counterclaim pleaded Failure of the defendant to answer
in the answer within the period provided above
c. Cross-claim pleaded in the answer

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REVIEWER IN REMEDIAL LAW
shall give power to the court, motu
propio or on motion, to render
judgment as may be warranted by
the facts alleged in the complaint
and limited to what is prayed for
therein. [Rule 70.7]
Affirmative and negative defenses
not pleaded in the answer are
deemed waived.
o EXCEPTION: lack of jurisdiction
over the subject matter.
Cross-claims and compulsory
counterclaims not pleaded in the
answer shall be barred.
o Answers to the counterclaims or
cross-claims shall be served and
filed within 10 days from service
of the answer in which they are
pleaded.
When the defendant raises the
defense of ownership in his
pleadings, and the question of
possession cannot be resolved
without deciding the issue of
ownership, the issue of ownership
shall be resolved ONLY to determine
the issue of possession. [Rule 70.16]
Where there is a defense of tenancy,
there must be a preliminary hearing
on the question of tenancy relations.
(Bayog v. Natino, 1996) If there is a
prima facie showing of tenancy, the
court should dismiss the case for
lack of jurisdiction (jurisdiction
belongs to the DARAB). (Baranda v.
Padios, 1987)
4. Not later than 30 days after the last
answer is filed, a PRELIMINARY
CONFERENCE shall be held.
Rule 18 applicable.
Effects of failure to appear:
WHEN THE WHEN THE
PLAINTIFF DOES NOT DEFENDANT DOES
APPEAR NOT APPEAR
It shall be a cause for
the dismissal of his
complaint.
All cross-claims shall
be dismissed.
The defendant who The plaintiff shall be
appears in the absence entitled to judgment.
of the plaintiff shall be (This is true when there
entitled to the is only one defendant
judgment on his or when all of the
counterclaim. defendants did
appear.)
Part 4: Special Civil Actions
GENERAL RULE: No postponement
of the preliminary conference shall
be granted.
CIVIL PROCEDURE
EXCEPTION: Highly meritorious
grounds and without prejudice to
such sanctions as the court in the
exercise of sound discretion may
impose on the movant. [Rule 70.8]
5. The court shall issue an ORDER
stating matters taken up during the
preliminary conference within 5 days
after the termination of the same.
Contents of the Order:
a. Whether the parties have arrived
at an amicable settlement, and if
so, terms thereof;
b. The stipulations or admissions
entered into by the parties;
c. Whether, on the basis of the
pleadings and the stipulations
and admissions made by the
parties, judgment may be
rendered without the need of
further proceedings, in which
event the judgment shall b
rendered within 30 days from
issuance of the order;
d. A clear specification of material
facts which remain controverted;
e. Such other matters intended to
expedite the disposition of the
case. [Rule 70.9]
6. The parties shall submit affidavits of
their witnesses and other evidence on
the factual issues defined in the order,
together with their position papers
setting forth the law and the facts relied
upon by them within 10 days from
receipt of the order. [Rule 70.10]
Affidavits required to be submitted
shall state only facts of direct
personal knowledge of the affiants
which are admissible in evidence,
and shall show their competence to
testify to the matters stated therein.
Violation of this requirement may
subject the party or the counsel who
submits the same to disciplinary
action and shall be cause to
expunge the inadmissible affidavit
or portion thereof from the records.
[Rule 70.14]
not 7. Judgment
GENERAL RULE: The court shall
render judgment within 30 days
from the date of its receipt of the
affidavits and position papers OR
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REVIEWER IN REMEDIAL LAW
the expiration of the period for filing
the same. [Rule 70.11]
EXCEPTION: Should the court find
it necessary to clarify certain
material facts, it may during the 30-
day period issue an ORDER
specifying the matters to be clarified
and require the parties to submit
affidavits or other evidence on the
said matters within 10 days from
receipt of said order. Judgment shall
be rendered within 15 days after
receipt of the last affidavit or the
expiration of the period for filing the
same. [Ibid.]
The court shall not resort to the
foregoing procedure just to gain time
for the rendition of the judgment.
[Id.]
If the trial court finds that the
allegations of the complaint are
TRUE, it shall render judgment in
favor of the plaintiff for the:
a. restitution of the premises,
b. the just sum due as arrears of
rent or reasonable compensation
for the use and occupation of the
premises.
c. attorneys fees and costs. [Rule
70.17]
If the court finds that the allegations
of the plaintiffs are NOT TRUE, it
shall render judgment for the
defendant to recover his costs. [Ibid.]
The judgment rendered in an action
for forcible entry shall be
conclusive with respect to the
possession only, and it shall not in
any way affect the title or ownership
of the land or building. Hence, such
judgment shall not bar an action
between the same parties with
respect to the title of the land or
building.
The judgment or final order shall be
appealable to the appropriate RTC.
[Rule 70.18]
8. Execution of judgment
GENERAL RULE: If judgment is
rendered against a defendant,
execution shall issue immediately.
[Rule 70.19 and 70.21]
EXCEPTION: Appeal has been duly
perfected by the defendant and bond
has been posted.
Although immediately executory, the
judge should not order immediate
execution in his decision. (Lu v.
Siapno, 2000) There must be notice
Part 4: Special Civil Actions
of the judgment (Dy v. CA, 1991)
and a motion with notice to the
adverse party. (Kaw v. Anunciacion,
CIVIL PROCEDURE
1995)
Procedure for staying the execution
of judgment:
a. defendant perfects his appeal in
due time;
b. defendant files a sufficient
supersedeas bond approved by
the Municipal Trial Court; and
c. during the pendency of the
appeal, he deposits with the
appellate court the amount of
rent due from time to time under
the contract, if any, on or before
the 10th day of each succeeding
month. [Rule 70.19]
BUT upon motion of the plaintiff
within 10 days from the perfection
of the appeal to the RTC, the court
may still issue a preliminary
mandatory injunction to restore the
plaintiff in possession if the court is
satisfied that the defendants appeal
is frivolous or dilatory, or that the
appeal of the plaintiff is prima facie
meritorious. [Rule 70.20]
F. Preliminary Injunction
The court may grant preliminary
injunction in accordance with Rule 58
to prevent the defendant from
committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession
may moved for a preliminary
mandatory injunction within 5 days to
restore him in hi possession of the
property. The court then shall decide
the motion within 30 days from the
filing thereof. [Rule 70.15]
G. Matters Not Constituting
Prejudicial Question to
Ejectment
(Arcal vs. Court of Appeals, 1998)
Injunction suits instituted in the RTC by
defendants in ejectment actions in the
municipal trial courts or other courts of
the first level (Nacorda v. Yatco, 17
SCRA 920 [1996] do not abate the latter,
and neither do proceedings on
consignation of rentals (Lim Si v. Lim, 98
Phil. 868 [1956]
An accion publiciana does not suspend
an ejectment suit against the plaintiff in
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REVIEWER IN REMEDIAL LAW
the former (Ramirez v. Bleza, 106 SCRA
187 [1981].
A writ of possession case where
ownership is concededly the principal
issue before the Regional Trial Court
does not preclude nor bar the execution
of the judgment in an unlawful detainer
suit where the only issue involved is
the material possession or possession
de facto of the premises (heirs of F.
Guballa, Sr. v, C.A., 168 SCRA 139
[1988].
An action for quieting of title to the
property is not a bar to an ejectment
suit involving the same property
(Quimpo v. de la Victoria, 46 SCRA 139
[1972].
Suit for specific performance with
damages do not affect ejectment actions
(e.g., to compel renewal of lease
contract) (Desamito v. Cuyegkeng, 18
SCRA 1184 [1966]; (Asked in the 2000
Bar Exam)
An action for reformation of instrument
(e.g. from deed of absolute sale to one of
sale with pacto de retro ) does not
suspend an ejectment suit between the
same parties (Judith v. Abragan, 66
SCRA 600 [1975].
An action for reconveyance of property
or accion reivindicatoria also has no
effect on ejectment suits regarding the
same property (Del Rosario v. Jimenez,
8 SCRA 549 [1963
Neither do suits for annulment of sale,
or title, or document affecting property
operate to abate ejectment actions
respecting the same property (Salinas v.
Navarro [annulment of deed of sale with
assumption of mortgage and/or to
declare the same an equitable mortgage],
126 SCRA 167 [1983]; Ang ping v. RTC
[annulment of sale of title], 154 SCRA
153 [1987]; Caparros v. C.A. [annulment
of title], 170 SCRA 758 (1989]; Dante v.
Sison [annulment of sale with damages]
174 SCRA 517; Galgala v. Benguet
Consolidated, Inc. [annulment of
document], 177 SCRA 288 [1989]).
X. CONTEMPT
A. Definition
Contempt of court is a defiance of the
authority, justice or dignity of the court,
such conduct as tends to bring the
authority and administration of the law
into disrespect of, to interfere with, or
Part 4: Special Civil Actions
prejudice parties litigant or their
witnesses during litigation.
It is defined as a disobedience to the
CIVIL PROCEDURE
court by setting up an opposition to its
authority, justice and dignity.
It signifies not only a willful disregard or
disobedience to the courts order but
such conduct as tends to bring the
authority of the court and the
administration of law into disrepute or
in some manner to impede the due
administration of justice. (Heirs of
Trinidad de Leon Vda. de Ramos v. Court
of Appeals, 2004)
Direct Contempt (Contempt In Facie
Curiae) a misbehavior committed in
the presence of or so near a court or
judge so as to obstruct or interrupt the
proceedings before the same, including:
disrespect toward the court
offensive personalities toward others
refusal to be sworn or to answer as
a witness or to subscribe an
affidavit/deposition when lawfully
required to do so.
can be punished summarily without
hearing.
It is conduct directed against or
assailing the authority and dignity
of the court or a judge, or in the
doing of a forbidden act. [Encinas v.
National Bookstore, 2005; Rule 71.1]
Indirect Contempt (Constructive
Contempt)
a misbehavior perpetrated outside of
the sitting of the court [Patricio v.
Suplico, 1991];
Acts of indirect contempt:
a. Misbehavior of an officer of the court in
the performance of his official duties
or in his official transactions;
b. Disobedience of or resistance to a
lawful writ, process, order, or judgment
of a court, including the act of a
person who, after being dispossessed
or ejected from any real property by
the judgment or process of any court
of competent jurisdiction, enters or
attempts to or induces another to
enter into or upon such real property,
for the purpose of executing acts of
ownership or possession, or in any
manner disturbs the possession given
to the person adjudged to be entitled
thereto;
c. Any abuse of or any unlawful
interference with the processes or
proceedings of a court not constituting
direct contempt;
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
d. Any improper conduct tending, f. Failure to obey a subpoena duly
directly or indirectly, to impede, served;
obstruct or degrade the administration g. The rescue or attempted rescue, of a
of justice; person or property in the custody of an

CIVIL PROCEDURE
e. Assuming to be an attorney or an officer by virtue of an order or process
officer of the court, and acting as such of a court held by him. [Rule 71.3]
without authority;
DIRECT CONTEMPT INDIRECT CONTEMPT
How Can be committed only in the presence of Can be committed anywhere as long as the
Committed or so near a court or judge. acts mentioned in Sec. 3 are done.
Nature of The person guilty of misbehavior is The person guilty of misbehavior may be
Proceedings summarily adjudged by the court against punished only after charge in writing has
which the contempt was committed at the been filed, and an opportunity given to the
very moment of the perpetration. accused to be heard by himself or counsel
[Rule 71.1] [Rule 71.3]
Punishment If the contempt is directed against an RTC, If the contempt is directed against an RTC,
a court of equivalent or higher rank: a court of equivalent or higher rank:
FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or
IMPRISONMENT = not exceeding 10 days; IMPRISONMENT = not exceeding 6 months;
or both or both
If the contempt is directed against a lower If contempt is directed against a lower
court: court:
FINE = not exceeding P200; or FINE = not exceeding P5,000; or
IMPRISONMENT = not exceeding 1 day; or IMPRISONMENT = not exceeding 1 month;
both or both
[Rule 71.1] [Rule 71.7]
How Summarily adjudged by the court against By the court motu propio thru an ORDER or
proceedings which the contempt is directed and any FORMAL CHARGE
commenced punished there and then. In all other cases, by a VERIFIED
[Rule 71.1] PETITION.
(If the contempt charges arose out of or are
related to a principal action pending in the
court, the petition for contempt shall allege
that fact, but said petition shall be
docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and
the principal action for joint hearing and
decision.)
[Rule 71.4]
Remedy No appeal, but subject to certiorari or May be appealed to the proper court as in
prohibition. criminal cases, but execution shall not be
[Rule 71.2] suspended until BOND is filed.
[Rule 71.11]

Procedure for Indirect Contempt

[Secs. 4-6]
WHO COURT MOTU PROPIO PARTY
INITIATES
How it is By ORDER or any WRITTEN By a VERIFIED PETITION with supporting particulars
initiated CHARGE requiring respondent and certified true copy of documents or papers involved
to show cause why he should and full compliance with the requirements for filing
not be held in contempt. initiatory pleadings in ordinary civil actions.

Where it is When the contempt is directed against an RTC or equivalent or higher rank:
initiated Same court

When the contempt is directed against a lower court:

(1) RTC of the place where the lower court is sitting; or
(2) in same lower court subject to appeal to higher court

Hearing and If hearing is not immediately conducted, respondent may be released upon filing of BOND in the
Bail amount fixed by the court.
Appeal Appeal may be taken in proper courts as in criminal cases.
Execution of Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned
Judgment upon the performance by the respondent of that judgment should it be decided against him on
appeal.

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
TWO ASPECTS OF CONTEMPT OF authorized to punish a contempt
COURT: against another. [Igot v. Meralco, 200)]
a. Civil Contempt is the failure to do

CIVIL PROCEDURE
something ordered to be done by a Quasi-judicial agencies that have the
court or a judge for the benefit of power to cite persons for indirect
the opposing party therein. [People contempt pursuant to Rule 71 can only
v. Godoy, 1995]; do so by initiating them in the proper
b. remedial or compensatory in RTC. It is not within their jurisdiction
nature; instituted for the benefit of and competence to decide the indirect
private party. contempt cases. These matters are still
c. Criminal Contempt is conduct within the province of the RTCs.
directed against the authority and [LandBank v. Listana, 2003]
dignity of a court or of a judge, as in
unlawfully assailing or discrediting
the authority and dignity of a court
or a judge or in doing a forbidden
act [People v. Godoy, 1995];
punitive in nature, thus, the
proceedings are to be conducted in
accordance with the principles and
rules applicable to criminal cases
[SEC v. Recto, 1999].
The violation of a TRO issued by the
SEC or any quasi-judicial tribunal is
criminal contempt so that acquittal of
the respondents is unappealable. [SEC
v. Recto, 1999]

A writ of execution issued by a court

after 5 years from entry of final
judgment is void, and disobedience
thereto does not constitute indirect
contempt. [Crucillo v. IAC, 1999]

The power to declare a person in

contempt of court serves to protect and
preserve the dignity of the court, the
solemnity of the proceedings therein
and the administration of justice.
But this must be wielded sparingly. For
this power should be exercised on the
preservative and not on the vindictive
principle.
Only occasionally should the court
invoke its inherent power in order to
retain that respect without which the
administration of justice must falter or
fail. [Panado v. CA, 1998]

Only the court which rendered the order

commanding the doing of a certain act
is vested with the right to determine
whether or not the order has been
complied with, or whether a sufficient
reason has been given for non-
compliance, and, therefore, whether a
contempt has been committed.
The power to determine the existence of
contempt of court rests exclusively with
the court contemned. No court is

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REVIEWER IN REMEDIAL LAW
Part 5:
Remedies and Appeals
I. KINDS
A. Before Finality
B. After Finality
II. RECONSIDERATION AND NEW TRIAL
A. Rules
B. Motion for Reconsideration
C. Motion for New Trial
III. APPEAL
IV. MODES OF APPEAL
A. MTC to RTC
B. MTC to RTC to CA
C. MTC to RTC to CA to SC
D. MTC to SC
E. RTC to CA
F. RTC to CA to SC
G. RTC to SC
H. CA to SC
I. QJA to CA
J. QJA to CA to SC
K. QJA to SC
V. RULES
A. General Rule
1. Procedure in the CA
2. Procedure in the SC
B. Questions of Fact vs. Questions of
Law
C. Notice of Appeal
D. Record on Appeal
E. Perfection of Appeal
F. Period to Appeal
VI. SPECIAL TOPIC: REMEDIES FROM A
VOID JUDGMENT
I. KINDS
A. Before Finality
The following are the remedies
finality of judgment:
1. Motion for Reconsideration
2. Motion for New Trial
3. Appeal
B. After Finality
Petition for Relief from Judgment
Q: Define relief from judgment.
A: It is a legal remedy whereby a party
seeks to set aside a judgment rendered
against him by a court whenever he is
unjustly deprived of a hearing or was
prevented from taking an appeal because of
fraud, accident, mistake or excusable
negligence.
Francisco vs. Puno: A party who has filed a
timely motion for new trial or motion for
reconsideration can no longer file a petition
for relief from judgment after his motion
has been denied. These remedies are
Part 4: Special Civil Actions
mutually exclusive. It is only in appropriate
cases where a party aggrieved by the
judgment has not been able to file a motion
CIVIL PROCEDURE
for new trial or motion for reconsideration
that a petition for relief can be filed.
Grounds:
Rule 38, Sec.1. Petition for relief from judgment,
order, or other proceedings.When a judgment
or final order is entered, or any other proceeding
is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court
and in the same case praying that the judgment,
order or proceeding be set aside.
Rule 38, Sec.2. Petition for relief from denial of
appeal.When a judgment of final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from
taking an appeal, he may file a petition in such
court and in the same case praying that the
appeal be given due course.
Under both grounds, the petition shall be
filed in the same court which rendered
the judgment and in the very same case.
Prayer in petition for relief from judgment:
1. That the judgment/order/proceeding be
set aside;
2. That the appeal be given due course.
When to file:
Rule 38, Sec.3. Time for filing petition; contents
and verification.A petition provided for in
either of the preceding sections of this Rules
must be verified, filed within 60 days after the
before petitioner learns of the judgment, final order, or
other proceeding to b set aside, and not more
than 6 months after such judgment or final
order was entered, or such proceeding was
taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioners good and
substantial cause of action or defense, as the
case may be.
Within 60 days from knowledge of
judgment or order or proceedings to be
set aside.
Not more than 6 months from the entry
of such judgment or order or
proceeding.
Both periods must concur. They are
also non-extendible and never
interrupted.
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REVIEWER IN REMEDIAL LAW
Form and content of petition:
1. Must be verified;
2. Must be accompanied by an affidavit
showing the fraud, accident, mistake or
excusable negligence relied upon;
3. The affidavit of merit accompanying the
petition must also show the facts
constituting the petitioners good and
substantial cause of action or defense.
An affidavit of merit serves as the
jurisdictional basis for the court to
entertain a petition for relief. However,
it is not a fatal defect to warrant
denial of the petition so long as the
facts required to be set out also appear
in the verified petition.
When an affidavit of merit is not
necessary:
1. When there is lack of jurisdiction
over the defendant;
2. When there is lack of jurisdiction
over the subject matter;
3. When judgment was taken by
default;
4. When judgment was entered by
mistake or was obtained by fraud;
or
5. Other similar cases.
Two hearings in a petition for relief from
judgment:
1. Hearing to determine whether or not the
judgment should be set aside;
2. If #1 is in the affirmative, hearing upon
the merits of the case.
Other remedies after finality of judgment:
1. Action to Annul a Judgment
2. Certiorari
3. Collateral Attack of a Judgment that is
Void on its Face
II. RECONSIDERATION AND NEW
TRIAL
A. Rules
Provisions common to motion for new trial
and motion for reconsideration.:
When to file:
Rule 37, Sec.1. Grounds of and period for filing
motion for new trial or reconsideration.Within
the period for taking an appeal, the aggrieved
party may move the trial court to set aside the
judgment or final order and grant a new trial for
one or more of the following causes materially
affecting the substantial rights of said party:
Part 4: Special Civil Actions
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
CIVIL PROCEDURE
which such aggrieved party has probably
been impaired in his rights; or
(b) Newly discovered evidence, which could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds
that the damages awarded are excessive, that
the evidence is insufficient to justify the decision
or final order, or that the decision or final order
is contrary law.
Motion must be filed within the period
for appeal.
The period for appeal is within 15 days
after notice to the appellant of the
judgment or final order appealed from.
The 15-day period is deemed to
commence upon receipt by the counsel
of record, which is considered notice to
the parties. Service upon the parties
themselves is prohibited and is not
considered as official receipt of
judgment.
No motion for extension of time shall be
allowed.
Where a ROA is required, the appellant
shall file:
1. a notice of appeal, and
2. record on appeal within 30 days
from notice of the judgment or final
order.
A record on appeal is required only in:
1. Special proceedings;
2. Other cases of multiple or separate
appeals.
Effect of filing:
The filing of a timely motion interrupts the
period to appeal.
Fresh period rule:
Neypes vs. CA (2005): If the motion is
denied, the movant has a fresh period of
15 days from receipt or notice of the order
denying the motion for new trial or motion
for reconsideration within which to file an
appeal. This applies to Rules 40, 41, 42, 43
and 45.
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Resolution of the motion:
Rule 37, Sec.4. Resolution of motion.A motion
for new trial or reconsideration shall be resolved
within 30 days fromteh time it is submitted for
resolution.
Rule 37, Sec.9. Remedy against order denying a
motion for new trial or reconsideration.An order
denying a motion for new trial or reconsideration
is now appealable. (As modified by AM 07-7-12)
The motion shall be resolved within 30
days from the time it is submitted for
resolution.
No appeal may be taken from an order
denying a motion for reconsideration or
new trial.
Remedy if motion is denied:
1. To appeal from the judgment or final
order itself.
2. The order denying the motion for
new trial or reconsideration may
itself be assailed by a petition for
certiorari under Rule 65.
Habaluyas vs. Japson (1986): A motion
for new trial or reconsideration is not a
prerequisite to an appeal, a petition for
review or a petition for review on
certiorari. And since the purpose is to
expedite the final disposition of cases, a
strict but prospective application of said
ruling is in order.
Rule 37, Sec.2. Contents of motion for new trial
or reconsideration.The motion shall be made in
writing stating the ground or grounds therefor, a
written notice of which shall be served by the
movant on the adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motions. A motion
for the cause mentioned in paragraph (a) of the
preceding section shall be supported by
affidavits of merits which may be rebutted by
affidavits. A motion for the cause mentioned in
paragraph (b) shall be supported by affidavits of
the witnesses by whom such evidence is
expected to be given, or by duly authenticated
documents which are proposed to be introduced
in evidence.
A motion for reconsideration shall point out
specifically the findings or conclusions of te
judgment or final order which are not supported
by the evidence or which are contrary to law,
making express reference to the testimonial or
documentary evidence or to the provisions of law
alleged to be contrary to such findings or
conclusions.
Part 4: Special Civil Actions
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal.
CIVIL PROCEDURE
B. Motion for Reconsideration
A motion for reconsideration under Rule
37 is directed against a judgment or
final order.
It is not the motion for reconsideration
of interlocutory order, which often
precedes a petition for certiorari under
Rule 65.
It does not apply to cases that fall under
Summary Procedure.
Grounds for a motion for reconsideration:
1. The evidence is insufficient to justify the
decision;
2. The damages awarded are excessive;
3. The decision or final order is contrary to
law.
Form and content of a motion for
reconsideration:
Motion for reconsideration must be in
writing, a written notice of which
must be served on the adverse party.
It is not sufficient to mention the
ground relied upon. It is necessary for
the motion for reconsideration to point
out specifically the findings or
conclusions of the judgment or final
order which are not supported by the
evidence or which are contrary to
law, making express reference to the
testimonial or documentary evidence or
to the provisions of law alleged to be
contrary to such findings or
conclusions.
Non-compliance with this requirement
would reduce the motion to a mere pro
forma motion, which shall not toll the
period for appeal.
Effects:
Rule 37, Sec.3. Action upon motion for new trial
or reconsideration.The trial court may set aside
the judgment or final order and grant a new
trial, upon such terms as may be just, or may
deny the motion. If the court finds that excessive
damages have been awarded or that the
judgment or final order is contrary to the
evidence or law, it may amend such judgment or
final order accordingly.
Grant of motion for reconsideration: the
court may amend the judgment or final
order accordingly.
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The amended judgment is in the nature
of a new judgment, which supersedes
the original judgment.
Denial of motion for reconsideration:
the judgment or final order shall stand
as is.
Rule 37, Sec.7. Partial new trial or
reconsideration.If the grounds for a motion
under this Rule appear to the court to affect the
issues as to only a part, or less than all of the
matter in controversy, or only one, or less than
all, of the parties to it, the court may order a
new trail or grant reconsideration as to such
issues if severable without interfering with the
judgment or final order upon the rest.
If the court finds that a motion affects less
than all of the matters in controversy or
less than all of the parties to it, the order
may grant a motion for reconsideration as
to such issues if severable without
interfering with the judgment or final order
upon the rest.
XXX
Single motion rule:
Rule 37, Sec.5. Second motion for new trial.A
motion for new trial shall include all grounds
then available and those not so included shall be
deemed waived. A second motion for new trial
based on a ground not existing or available
when the first motion was made, may be filed
within the time herein provided excluding the
time during which the first motion had been
pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
A party shall not be allowed to file a
second motion for reconsideration of a
judgment or final order.
The prohibition on a second motion
does not apply to a motion for
reconsideration of an interlocutory
order.
C. Motion for New Trial
The aggrieved party may move the trial
court to set aside the judgment or final
order and grant a new trial for one or more
of the following causes materially affecting
the substantial rights of the said party:
1. FAME (Extrinsic Fraud, Accident,
Mistake or Excusable Negligence) which
ordinary prudence could not have
guarded against and by reason of which
the aggrieved party has probably been
impaired in his rights.
Part 4: Special Civil Actions
i. The motion shall be supported by
affidavits of merit. Non-compliance
with this requirement would reduce
CIVIL PROCEDURE
the motion to a mere pro forma
motion.
ii. The affidavits of merit must show
the facts (not mere conclusions or
opinions) constituting the valid
cause of action or defense which the
movant may prove in case a new
trial is granted. Otherwise, if the
complaint is after all groundless or
the defense is ineffective, a new trial
would serve no purpose.
2. Newly discovered evidence, which he
could not, with reasonable diligence,
have discovered and produced at the
trial, and which if presented would
probably alter the result.
i. The motion shall be supported by:
affidavits of the witnesses by whom
such evidence is expected to be
given; and/or duly authenticated
documents which are proposed to be
introduced in evidence.
ii. Non-compliance with this
requirement would reduce the
motion to a mere pro forma motion.
Tumang vs. CA: Newly discovered evidence
may and does commonly refer to evidence
already in existence prior to or during trial
but which could not have been secured and
presented during the trial despite
reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme
executed by the prevailing party outside of
the trial against the losing party who,
because of such fraud, was prevented from
presenting his side of the case.
Intrinsic fraud: acts of a party during the
trial which does not affect the presentation
of the case.
Accident: an event that occurs without
ones foresight or expectation.
Mistake: generally, mistakes of facts or law
where, in good faith, the defendant was
misled in a case.
Effects:
a. Grant of motion for new trial: the
original judgment shall be vacated, and
the action shall stand for trial de novo.
The recorded evidence upon the former
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trial shall be used at the new trial
without retaking them (if they are
material and competent).
b. Denial of motion for new trial: the
judgment or final order shall stand as is
if the court finds that a motion affects
the issues of the case as to only a part
or less than all of the matters in
controversy, or only one or less than all
of the parties to it, the order may grant
a reconsideration as to such issues if
severable without interfering with the
judgment or final order upon the rest.
Rule 37, Sec.8. Effect of order for partial new
trial.When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the
enforcement of such judgment or final order
until after the new trial.
The effect of this order is a partial new
trial.
When there is an order for partial new
trial, the court may either enter a
judgment or final order as to the rest, or
stay the enforcement of such judgment
or final order until after the new trial.
X
When a second motion for new trial is
permissible: a motion for new trial shall
include all grounds then available. Those
not so included are deemed waived.
However, when a ground for new trial was
not existing or available when the first
motion was made, a second motion for new
trial may be filed.
III.APPEAL
RULE 41 (as amended by A.M. 07-07-12,
2007)
SECTION 1. Subject of appeal. An appeal may
be taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by these
Rules to be appealable.
No appeal may be taken from:
a. An order denying a petition for relief or any
similar motion seeking relief from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an
appeal;
d. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
or duress, or any other ground vitiating
consent;
e. An order of execution;
f. A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
Part 4: Special Civil Actions
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom; and
g. An order dismissing an action without
CIVIL PROCEDURE
prejudice.
In any of the foregoing circumstances, the
aggrieved party may file an appropriate special
civil action as provided in Rule 65.
SIGNIFICANCE OF THE AMENDMENT:
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Perfection of appeal:
Balgami vs. CA (2004): Perfection of an
appeal in the manner and within the period
laid down by law is mandatory and
jurisdictional.
Rationale:
Appeal is merely a statutory privilege,
and may be exercised only in the
manner and in accordance with the
provisions of the law. It is neither a
natural right nor a part of due process.
Cognizable judgments/issues
Appellate court has no jurisdiction to
review a judgment which is immediately
final and executory by express provision
of law. [Republic v. Bermudez-Lorino
(2005)]
Rationale: Appeal is merely a privilege
conferred by law upon the litigants.
A party cannot change the theory on
appeal. Only issues pleaded in the lower
court and properly raised may be
resolved by the appellate court. [Medina
v. CA (1992)]
However, issues which are inferred from
or necessarily connected with the issue
properly raised and pleaded may be
resolved by the appellate court. [Espina
v. CA (1992)]
Effect of failure to perfect appeal:
1. Defeats a partys right to appeal.
2. Precludes appellate court from
acquiring jurisdiction.
Camposagrado vs. Camposagrado (2005):
Failure to pay the appellate court docket fee
within the reglementary period confers only
a discretionary (not mandatory) power to
dismiss the proposed appeal. Such
discretion should consider all attendant
circumstances and must be exercised with
a view to substantial justice.
Republic v. Bermudez-Lorino (2005):
Appellate court has no jurisdiction to review
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REVIEWER IN REMEDIAL LAW
a judgment which is immediately final and
executory by express provision of law.
Rationale: Appeal is merely a privilege
conferred by law upon the litigants.
Medina vs. CA (1992): A party cannot
change the theory on appeal. Only issues
pleaded in the lower court and properly
raised may be resolved by the appellate
court.
Espina vs. CA (1992): However, issues
which are inferred from or necessarily
connected with the issue properly raised
and pleaded may be resolved by the
appellate court.
IV. MODES OF APPEAL
A. MTC to RTC
Rule 40, Sec.1. Where to appeal.An appeal
from a judgment or final order of a MTC may be
taken to the RTC exercising jurisdiction over the
area to which the former pertains. The title of
the case shall remain as it was in the court of
origin, but the party appealing the case shall be
further referred to as the appellant and the
adverse party the appellee.
Appeal from a judgment or final order of
a MTC may be taken to the RTC
exercising jurisdiction over the area
which the former pertains through
notice of appeal or in special
proceedings and in other cases of
multiple or separate appeals by record
on appeal.
The other provisions governing appeal
from RTC to CA so long as they are not
inconsistent are applicable to appeal
from MTC to RTC.
B. MTC to RTC to CA
Rule 42. Sec.1. How appeal taken; time for
filing.A party desiring to appeal from a
decision of the RTC rendered in the exercise of
its appellate jurisdiction may file a verified
petition for review with the CA, paying at the
same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs and
furnishing the RTC and the adverse party with a
copy of the petition. The petition shall be filed
and served within 15 days from notice of the
decision sought to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full
amount of the docket and other lawful fees and
Part 4: Special Civil Actions
the deposit for costs before the expiration of the
reglementary period, the CA may grant an
additional period of 15 days only within which to
file the petition for review. No further extension
CIVIL PROCEDURE
shall be granted except for the most compelling
reason and in no case to exceed 15 days.
(Asked in the 1999 and 2002 Bar Exam)
PETITION FOR REVIEW FROM RTC TO
CA [Rule 42]
APPLICABILITY - Appeal of RTC decision
rendered in exercise of appellate
jurisdiction [Rule 42, Sec. 1]
CERTIFICATE OF NON-FORUM
SHOPPING (CNFS)- Petitioner in a petition
for review in CA/SC must submit a CNFS
with the petition. However, this rule is
relaxed where there is need to conduct a
review. In those instances, petitioner may
comply with the requirement after he has
filed the petitions. [Rule 42, Sec.1]
C. MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all
cases where only questions of law are raised or
involved, the appeal shall be to the SC by
petition for review on certiorari in accordance
with rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari
from a judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or other
courts whenever authorized by law, may file with
the SC a verified petition for review on certiorari.
The petition shall raise only questions of law
which must be distinctly set forth.
(Asked in the 2002 Bar Exams)
Where only questions of law are
raised/involved.
Appeal by certiorari from a judgment or
final order or resolution of CA or
Sandiganbayan or RTC or other courts
whenever authorized by law.
No appeal may be taken from:
1. An order denying a petition for relief
or any similar motion seeking relief
from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing
an appeal;
4. An order denying a motion to set
aside a judgment by consent,
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REVIEWER IN REMEDIAL LAW
confession or compromise on the
ground of fraud, mistake or duress,
or any other ground vitiating
consent;
5. An order of execution;
6. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and
7. An order dismissing an action
without prejudice.
In any of the foregoing circumstances,
the aggrieved party may file an
appropriate special civil action as
provided in Rule 65.
A party desiring to appeal by certiorari
from a judgment, final order or
resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or
other courts, whenever authorized by
law, may file with the Supreme Court a
verified petition for review on certiorari.
The petition may include an application
for a writ of preliminary injunction or
other provisional remedies and shall
raise only questions of law, which must
be distinctly set forth. The petitioner
may seek the same provisional remedies
by verified motion filed in the same
action or proceeding at any time during
its pendency.
Applicability of Rule 45:
Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.The mode of appeal prescribed
in this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where
the penalty imposed is death, reclusion perpetua
or life imprisonment.
Filing of petition:
File with the SC a verified petition for
review on certiorari.
In 18 copies, with the original copy
intended for the court being indicated
as such by the petitioner.
Petition shall raise only questions of law
which must be distinctly set forth.
Contents of petition:
1. Full name of the appealing party
(petitioner) and the adverse party
(respondent).
Part 4: Special Civil Actions
2. Without impleading the lower court or
judges as petitioners/respondents.
3. Material dates:
CIVIL PROCEDURE
i. When notice of the judgment or final
order or resolution subject thereof
was received;
ii. When a motion for new trial or
reconsideration (if any) was filed and
when notice of the denial thereof
was received.
4. Concise statement of the matters
involved, and the reasons/arguments
relied on for the allowance of the
petition;
5. A clearly legible duplicate original, or a
certified true copy of the judgment or
final order or resolution certified by the
clerk of court of the court a quo and the
requisite number of plain copies thereof,
and such material portions of the record
as would support the petition;
6. Certificate of non-forum shoping.
File petition within 15 days from notice
of the judgment or final order or
resolution appealed from, or of the
denial of the petitioner's motion for new
trial or reconsideration filed in due time
after notice of the judgment.
On motion duly filed and served, with
full payment of the docket and other
lawful fees and the deposit for costs
before the expiration of the
reglementary period, the SC may for
justifiable reasons grant an extension of
30 days only within which to file the
petition.
Rule 45, Sec.3. Docket and other lawful fees;
proof of service of petition.Unless he has
theretofore done so, the petitioner shall pay the
corresponding docket and other lawful fees to
the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the
time of the filing of the petition. Proof of service
of a copy thereof on the lower court concerned
and on the adverse party shall be submitted
together with the petition.
Payment of docket and other lawful fees:
Unless he has theretofore done so, the
petitioner shall pay the docket and other
lawful fees to the SC clerk of court and
deposit P500 for costs at the time of the
filing of the petition.
Proof of service of petition:
Proof of service of a copy on the lower court
and on the adverse party shall be
submitted together with the petition.
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Dismissal or denial of petition:
Rule 45, Sec.5. Dismissal or denial of petition.
The failure of the petitioner to comply with any
of the foregoing requirements regarding the
payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition,
and the contents of and the documents which
should accompany the petition shall be
sufficient ground for the dismissal thereof.
The SC may on its own initiative deny the
petition on the ground that the appeal is without
merits, or is prosecuted manifestly for delay, or
that the questions raised therein are too
unsubstantial to require consideration.
Failure of the petitioner to comply with
any of the requirements regarding the
payment of the docket and other lawful
fees, deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany
the petition, shall be sufficient ground
for the dismissal thereof.
SC may on its own initiative deny the
petition on the ground that:
1. The appeal is without merit;
2. The appeal is prosecuted manifestly
for delay;
3. The questions raised therein are too
unsubstantial to require
consideration.
Review is discretionary:
A review is not a matter of right, but of
sound judicial discretion, and will be
granted only when there are special and
important reasons therefore.
The following, while neither controlling
nor fully measuring the court's
discretion, indicate the character of
reasons which will be considered:
1. When the court a quo has decided a
question of substance, not
theretofore determined by the SC, or
has decided it in a way probably not
in accord with law or with the
applicable decisions of the SC; or
2. When the court a quo has so far
departed from the accepted and
usual course of judicial proceedings,
or so far sanctioned such departure
by a lower court, as to call for an
exercise of the power of supervision.
May require pleadings and documents:
Rule 45, Sec.7. Pleadings and documents that
may be required; sanctions.For purposes of
determining whether the petition should be
dismissed or denied pursuant to sec.5 of this
Rule, or where the petition is given due course
Part 4: Special Civil Actions
under sec.8 hereof, the SC may require or allow
the filing of such pleadings, briefs, memoranda
or documents as it may deem necessary within
such periods and under such conditions as it
CIVIL PROCEDURE
may consider appropriate, and impose the
corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and
documents or non-compliance with the
conditions therefor.
For purposes of determining whether or not
the petition should be dismissed or denied
pursuant to Rule 45, Sec.5, or where the
petition is given due course under Sec. 8
hereof, the SC may require/allow the filing
of pleadings or briefs or memoranda or
documents as it may deem necessary, and
impose the sanctions in case of non-filing
or unauthorized filing of such pleadings
and documents or noncompliance with the
conditions therefore.
Due course and elevation of records:
Rule 45, Sec.8. Due course; elevation of
records.If the petition is given due course, the
SC may require the elevation of the complete
record of the case or specified parts thereof
within 15 days from notice.
D. MTC to SC
The remedy is a petition for certiorari
under Rule 65.
This is not an appeal.
E. RTC to CA
Under Rule 41, an appeal of judgment or
final order under that completely disposes
of either:
1. The case;
2. A particular matter in the case, when
declared by ROC to be appealable.
Not appealable under Rule 41:
1. Order denying motion for new trial or
reconsideration;
2. Order denying petition for review or any
similar motion seeking relief from
judgment;
3. Interlocutory order;
4. Order disallowing/dismissing appeal;
5. Order denying motion to set aside
judgment by consent or confession or
compromise on ground of fraud or
mistake or duress or any other vitiation
of consent;
6. Order of execution;
7. While the case is pending, judgment or
final order:
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i. For/against one or more of several
parties;
ii. In separate claims, counterclaims,
cross-claims, third-party
complaints.
Exception: If court allows appeal.
8. Order dismissing an action without
prejudice.
In the 8 cases not appealable under Rule
41, the aggrieved party may file a special
civil action under Rule 65.
Interlocutory order:
Definition: Investments, Inc. vs. CA
(1987): If it does not dispose of the case
but leaves something else to be done by
the trial court on the merits of the case.
For purposes of appeal, an order is final
if it disposes of the entire case.
GSIS vs. Phil. Village Hotel (2004): An
order for partial summary judgment is
an interlocutory order which cannot be
appealed from. The trial court had not
yet rendered a complete final judgment.
Multiple appeals:
Civil cases which admit of multiple
appeals:
1. Judgment in an action for recovery
or for partition of property is
separately appealable from the
proceedings on that part of the
judgment wherein accounting for
receipts from the property is ordered
as a primary or incidental relief.
When such accounting is submitted
and either approved or rejected by
the trial court, another appeal lies
therefrom.
2. Special civil actions:
i. Expropriation; (Rule 67)
ii. Judicial partition; (Rule 69)
iii. Judicial foreclosure of mortgage;
(Rule 68)
Special proceedings also admit of
multiple appeals.
Ko vs. PNB (2006): The order of
dismissal due to failure to prosecute is
appealable by notice of appeal under
Rule 41.
Philexport vs. PI (2004): But an order of
dismissal without prejudice is not
appealable under Rule 41.
Lanaria v. Planta (2007): Submission of
a document together with the motion for
reconsideration constitutes substantial
compliance with compliance with
Section 2, Rule 42 or the requirement
that relevant or pertinent documents be
Part 4: Special Civil Actions
submitted along with the petition, and
calls for the relaxation of procedural
rules
CIVIL PROCEDURE
F. RTC to CA to SC
The remedy is a petition for review on
certiorari under Rule 45.
G. RTC to SC
The remedy is a petition for certiorari
under Rule 65.
This is not an appeal.
H. CA to SC
The remedy is a petition for review on
certiorari under Rule 65.
I. QJA to CA
Applicability:
Appeals from judgments or final orders of
the CTA and from awards, judgments, final
orders or resolutions of or authorized by
any quasi-judicial agency (QJA) in the
exercise of its quasi-judicial functions:
(arranged alphabetically)
1. Agricultural Inventions Board (AIB);
2. Board of Investments (BOI);
3. Bureau of Patents, Trademarks and
Technology Transfer (BPTTT);
4. Central Board of Assessment Appeals
(CBAA);
5. Civil Aeronautics Board (CAB);
6. Civil Service Commission (CSC);
7. Construction Industry Arbitration
Commission;
8. Department of Agrarian Reform (DAR
under RA 6657)
9. Employees Compensation Commission
(ECC);
10. Energy Regulatory Board (ERB);
11. Government Service Insurance System
(GSIS);
12. Insurance Commission;
13. Land Registration Authority (LRA);
14. National Electrification Administration
(NEA);
15. National Telecommunications
Commission (NTC);
16. Office of the President (OP);
17. Philippine Atomic Energy Commission
(PAEC);
18. Securities and Exchange Commission
(SEC);
19. Social Security Commission (SSC);
20. Voluntary arbitrators authorized by law.
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REVIEWER IN REMEDIAL LAW
Rule 43, Sec.2. Cases not covered.This Rule
shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.
Fabian vs. Desierto (1998): NLRC
judgments and final orders or
resolutions are now reviewable, in the
first instance, by the Court of Appeals
on certiorari under Rule 65, but those
of the Employees Compensation
Commission should be brought to the
Court of Appeals through a petition for
review under this Rule. Also, appeals
from the Office of the Ombudsman in
administrative disciplinary cases are
now covered by this Rule.
RA 9282: Decisions of the CTA are now
appealable to the SC by petition for
review on certiorari under Rule 45.
Orosa vs. Roa (2006): Resolution of DOJ
Secretary is not appealable under Rule
43. Recourse should be to the
President, instead of the CA, under the
established principle of exhaustion of
administrative remedies.
Exhaustion of administrative
remedies: If an appeal/remedy obtains
or is available within the administrative
machinery, this should be resorted to
before resort can be made to the courts.
Villorente vs. Laiya (2005): Under Rule
43, Sec. 4 the petition should be filed
within 15 days from:
1. Notice of the final order;
2. The date of its last publication, if
publication is required by law for its
effectivity;
3. The denial of the petitioners MFR
duly filed according to the governing
law of the court or agency a quo.
Basmayor v. Atencio (2005): Under Rule
43, there is no need to implead the
lower court or agency which rendered
the assailed decision.
Coca-cola v. Cabalo (2006): Submission
of the duplicate original or certified true
copy of judgment, order, resolution or
ruling subject of a petition for certiorari
is essential to determine whether or not
the court, body or tribunal which
rendered the same indeed committed
grave abuse of discretion. Either a
legible duplicate original or certified
true copy thereof shall be submitted. If
Part 4: Special Civil Actions
what is submitted is a copy, then it is
required that the same is certified by
the proper officer of the court, tribunal,
CIVIL PROCEDURE
agency or office involved. This is to
assure that such copy is a faithful
reproduction of the judgment, order,
resolution or ruling subject of the
petition.
The remedy of an aggrieved party from a
resolution issued by the CSC is to file a
petition for review thereof
under Rule43 of the Rules of Court
within fifteen days from notice of the
resolution. [DECS v. Cuanan (2008)]
Recourse to a petition
for certiorari under Rule 65 renders the
petition dismissible for being the wrong
remedy. Nonetheless, there are
exceptions to this rule, to wit: (a) when
public welfare and the advancement of
public policy dictates; (b) when the
broader interest of justice so
requires; (c) when the writs issued are
null and void; or (d) when the
questioned order amounts to an
oppressive exercise of judicial authority.
[DECS v. Cuanan (2008)]
J. QJA to CA to SC
Remedy is a petition for review on
certiorari under Rule 45.
K. QJA to SC
Remedy is a petition for certiorari under
Rule 65, which is not an appeal.
V. RULES
A. General Rule
1. Procedure in the Court of Appeals
Ordinary appealed cases:
Rule 44, Sec.1. Title of cases.In all cases
appealed to the Court of Appeals under Rule 41,
the title of the case shall remain as it was in the
court of origin, but the party appealing shall be
further referred to as the appellant and the
adverse party as the appellee.
Counsels and guardians:
Rule 44, Sec.2. Counsel and guardians.The
counsel and guardians ad litem of the parties in
the court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall be
served immediately on the adverse party and
filed with the court.
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REVIEWER IN REMEDIAL LAW
The counsel and guardians ad litem of
the parties in the court of origin shall be
respectively considered as their counsel
and guardians ad litem in the CA.
When others appear or are appointed,
notice thereof shall be served
immediately on the adverse party and
filed with the court.
Order of transmittal of record:
Rule 44, Sec.3. Order of transmittal of record.If
the original record or the record on appeal is not
transmitted to the Court of Appeals within 30
days after the perfection of appeal, either party
may file a motion with the trial court, with notice
to the other, for the transmittal of such record or
record on appeal.
Case docketing:
Rule 44, Sec.4. Docketing of case.Upon
receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as well
as the proof of payment of the docket and other
lawful fees, the clerk of court of the Court of
Appeals shall docket the case and notify the
parties thereof..
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall
file with the clerk of court 7 clearly legible copies
of the approved record on appeal, together wit ht
the proof of service of 2 copies thereof upon the
appellee.
Any unauthorized alteration, omission or
addition in the approved record in appeal shall
be a ground for dismissal of the appeal.
Upon receiving the original record or
record on appeal, the accompanying
documents and exhibits transmitted by
the lower court, as well as the proof of
payment of the docket and other lawful
fees, the clerk of the Court of Appeals
shall docket the case and notify the
parties thereof.
Within 10 days from receipt of said
notice, the appellant, in appeals by
record on appeal, shall file with the
clerk of court 7 clearly legible copies of
the approved record on appeal, together
with the proof of service of 2 copies
thereof upon the appellee.
Any unauthorized alteration, omission
or addition in the approved record on
appeal shall be a ground for dismissal
of the appeal.
Part 4: Special Civil Actions
Record completion:
Rule 44, Sec.5. Completion of record.Where the
record of the docketed case is incomplete, the
CIVIL PROCEDURE
clerk of court of the Court of Appeals shall so
inform the court and recommend to it measures
necessary to complete the record. It shall be the
duty of said court to take appropriate action
towards the completion of the record within the
shortest possible time.
Rule 44, Sec.6. Dispensing with complete
record.Where the completion of the record
could not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult cases, the
court, on its own motion or on motion of an of
the parties, may declare that the record and its
accompanying transcripts and exhibits so far
available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
Where the record of the docketed case is
incomplete, the clerk of the Court of
Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty
of said court to take appropriate action
towards the completion of the record
within the shortest possible time.
Where the completion of the record
could not be accomplished within a
sufficient period allotted for said
purpose due to insuperable or extremely
difficult causes, the court may declare
that the record and its accompanying
transcripts and exhibits so far available
are sufficient to decide the issues raised
in the appeal, and shall issue an order
explaining the reasons for such
declaration.
Appellants brief:
Rule 44, Sec.7. Appellants brief.It shall be the
duty of the appellant to file with the court,
within 45 days from receipt of the notice of the
clerk that all the evidence, oral and
documentary, are attached to the record, 7
copies of his legibly written, mimeographed or
printed brief, with proof of service of 2 copies
thereof upon the appellee.
Important numbers to remember:
File brief within 45 days from receipt
of notice,
File seven copies of the brief,
Serve two copies to appellee and file
proof of service.
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REVIEWER IN REMEDIAL LAW
Contents of appellants brief:
Rule 44, Sec.13. Contents of appellants brief.
The appellants brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading Statement of the Case,
a clear and concise statement of the nature
of the action, a summary of the proceedings,
the appealed rulings and orders of the court,
the nature of the judgment and any other
matters necessary to an understanding of
the nature of the controversy, with page
references to the record;
(d) Under the heading Statement of Facts, a
clear and concise statement in a narrative
form of facts admitted by both parties and of
those in controversy, together with the
substance of proof relating thereto in
sufficient detail to make it clearly intelligible,
with page references to the record;
(e) A clear and concise statement of the issues
of fact or law to be submitted to the court for
its judgment;
(f) Under the heading Argument, the
appellants arguments on each assignment
of error with page references to the record.
The authorities relied upon shall be cited by
the page of the report at which the case
begins and the page of the report on which
the citation is found.
(g) Under the heading Relief, a specification of
the order of judgment which the appellant
seeks; and
(h) In cases not brought up by record on
appeal, the appellants brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from.
Rule 44, Sec.15. Questions that may be raised on
appeal.Whether or not the appellant has filed
a motion for new trial in the court below, he may
include in his assignment of errors any question
of law or fact that has been raised in the court
below and which is within the issues framed by
the parties.
Rule 124, Sec.7. Contents of brief.The briefs n
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A
certified true copy of the decision or final order
appealed from shall be appended to the brief of
the appellant.
Part 4: Special Civil Actions
1. Subject index: Digest of the arguments
and page references, and a tables of:
i. cases alphabetically arranged and
CIVIL PROCEDURE
ii. books and statutes cited,
with references to the pages where they
are cited.
2. Assignment of errors: Errors urged
separately, distinctly and concisely;
stated without repetition and numbered
consecutively.
Whether or not the appellant has filed a
motion for new trial in the court below,
he may include in his assignment of
errors any question of law or fact that
has been raised in the court below and
which is within the issues framed by
the parties.
3. Statement of the case: Clear and
concise statement of the nature of the
action, a summary of the proceedings,
the appealed court rulings and orders,
the nature of the judgment and any
other matters necessary to an
understanding of the nature of the
controversy, with page references to the
record.
4. Statement of facts: Clear and concise
narrative statement of the facts
admitted by both parties and of those in
controversy, together with the
substance of the related proof, in
sufficient detail to make it clearly
intelligible and with page references to
the record.
5. Issues: Clear and concise statement of
issues of fact or law submitted to the
court for its judgment.
6. Argument: Appellants arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and
the page of the report on which the
citation is found.
7. Relief: Specification of the order or
judgment which the appellant seeks. In
cases not brought up by record on
appeal, the appellants brief shall
contain (as an appendix) a copy of the
judgment or final order appealed from.
8. Attachment: Certified true copy of the
decision or final order appealed from.
Appellees brief:
Rule 44, Sec.8. Appellees brief.Within 45 days
from receipt of the appellants brief, the appellee
shall file with the court 7 copies of his legibly
type-written, mimeographed or printed brief,
with proof of service of 2 copies thereof upon the
appellant.
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REVIEWER IN REMEDIAL LAW
Contents of appellees brief:
Rule 44, Sec.14. Contents of appellees brief.
The appellees brief shall, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) Under the heading Statement of Facts, the
appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of
Facts, he shall point out such
insufficiencies or inaccuracies as he believes
exist in the appellants statement of facts
with references to the pages of the record in
support thereof, but without repetition of
matters in the appellants statement of facts;
and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on
each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
1. Subject index
2. Statement of facts: Statement that
appellee accepts the statement of facts
in the appellants brief; or
3. Counter-statement of facts: Points out
the insufficiencies or inaccuracies
appellee believes to exist in the
appellants statement of facts, with
references to the supporting pages of
the record. Matters in the appellants
statement of facts should not be
repeated.
4. Argument: Appellees arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and
the page of the report on which the
citation is found.
Reply brief:
Rule 44, Sec.9. Appellants reply brief.Within
20 days from receipt of the appellants brief, the
appellee shall file with the court 7 copies of his
legibly typewritten, mimeographed or printed
brief, with proof of service of 2 copies thereof
upon the appellant.
Memoranda in special cases:
Rule 44, Sec.10. Time for memoranda in special
cases.In certiorari, prohibiton, mandamus, quo
warranto and habeas corpus cases, the parties
Part 4: Special Civil Actions
shall file, in lieu of briefs, their respective
memoranda within a non-extendible period of 30
days from receipt of the notice issued by the
clerk that all the evidence, oral or documentary,
CIVIL PROCEDURE
is already attached to the record.
The failure of the appellant to file his
memorandum within the period therefore may
be a ground for dismissal of the appeal..
In certiorari, prohibition,
mandamus, quo warranto and
habeas corpus cases, the parties
shall be file (in lieu of briefs) their
respective memoranda within a non-
extendible period of 30 days from
receipt of the notice issued by the clerk
that all the evidence is already attached
to the record.
The failure of the appellant to file his
memorandum within the period therefor
may be a ground for dismissal of the
appeal.
Several or plurality of appellants, appellees
and/or counsel:
Rule 44, Sec.11. Several appellants or appellees
or several counsel for each party.Where there
are several appellants or appellees, each counsel
representing one or more but not all of them
shall be served with only one copy of the briefs.
When several counsel represent one appellant or
appellee, copies of the brief may be served upon
any of them.
Where there are several appellants or
appellees, each counsel representing
one or more but not all of them shall be
served with only one copy of the briefs.
When several counsel represent one
appellant or appellee, copies of the brief
may be served upon any of them.
Extension of time for filing briefs:
Rule 44, Sec.12. Extension of time for filing
briefs.Extension of time for the filing of briefs
will not be allowed, except for good and
sufficient cause, and only if the motion for
extension is filed before the expiration of the
time sought to be extended.
Extension will not be allowed, except
for good and sufficient cause.
Motion for extension should be filed
before the expiration of the time
sought to be extended.
The brief:
In the case of De Liano vs. CA (2001), the
Supreme Court discussed the following:
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REVIEWER IN REMEDIAL LAW
Purpose of the brief is to present to the
court in concise form the points and
questions in controversy, and by fair
argument on the facts and law of the
case to assist the court in arriving at a
just and proper conclusion.
The brief should be so prepared as to
minimize the labor of the court in the
examination of the record upon which
the appeal is heard and determined.
Failure to comply with required
contents of appellants brief is cause for
dismissal of the petition.
Dismissal of appeal:
Rule 50, Sec.1. Grounds for dismissal of
appeal.An appeal may be dismissed Court of
Appeals, on its own motion or on that of
appellee, on the following grounds:
(a) Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal of the
record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the docket
and other lawful fees as provide in section 5
of Rule 40 and Section4 of Rule 41;
(d) Unauthorized alterations, omission or
additions in the approved record on appeal
as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in
the appellants brief, or of page references to
the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives
of the court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
Grounds:
1. Failure of the record on appeal to show
on its face that the appeal was
taken within the period fixed by the
Rules of Court.;
Part 4: Special Civil Actions
2. Failure to file the notice of appeal or
record on appeal within the period
prescribed by Rules of Court;
CIVIL PROCEDURE
3. Failure of the appellant to pay the
docket and other lawful fees;
4. Unauthorized alterations, omissions or
additions in the approved record on
appeal;
5. Failure of the appellant to serve and file
the required number of copies of his
brief or memorandum within the time
provided by the Rules of Court;
6. Absence of specific assignment of errors
in the appellant's brief, or of page
references to the record as required;
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48
or to comply with court orders, circulars
or directives without justifiable cause;
9. The fact that the order/judgment
appealed from is not appealable.
PNB vs. Philippine Milling (1969): CA has
discretion to dismiss or not to dismiss
appeal. Although said discretion must be a
sound one, to be exercised in accordance
with the tenets of justice and fair play,
having in mind the circumstances obtaining
in each case, the presumption is that it has
been so exercised.
Padasdas vs. CA (1974): Failure to file
appellants brief within the reglementary
period need not necessarily cause dismissal
of appeal where the same was due to force
majeure.
Dismissal of improper appeal:
Rule 50, Sec. 2. Dismissal of improper appeal to
the Court of Appeals.An appeal under Rule 41
taken from the Regional Trial Court to the Court
of Appeals raising only questions of law shall be
dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review
from the appellate judgment of a Regional Trial
Court shall be dismissed.
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright.
An appeal under Rule 41 taken from the
RTC to the CA raising only questions of
law shall be dismissed; issues purely of
law not being reviewable by said court.
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REVIEWER IN REMEDIAL LAW
Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a RTC shall be
dismissed.
An appeal erroneously taken to the CA
shall not be transferred to the
appropriate court but shall be
dismissed outright.
Atlas Consolidated vs. CA (1991): It is
true that Circular No.2-90 now
prohibits the transfer of appeals
erroneously taken to the SC or CA to
whichever of these tribunals has
appropriate appellate jurisdiction. But
where SC believes that there are factual
issues which must be resolved, it may,
in the exercise of its sound discretion
and considering the attendant
circumstances, either itself take
cognizance of and decide such issues or
refer them to CA for determination.
Cu-unjieng vs. CA (2006): Nonpayment
of the appellate court docket and other
lawful fees within the reglementary
period as provided under Rule 41, Sec.4
is a ground for the dismissal of an
appeal under Rule 50, Sec.1(c). The
Supreme Court has invariably
sustained the Court of Appeals
dismissal on technical grounds under
the aforequoted provision unless
considerations of equity and substantial
justice present cogent reasons to hold
otherwise. True, the rules may be
relaxed but only for persuasive and
weighty reasons, to relieve a litigant of
an injustice commensurate with his
failure to comply with the prescribed
procedure.
Withdrawal of appeal:
Rule 50, Sec.3. Withdrawal of appeal.An
appeal may be withdrawn as of right at any time
before the filing of the appellees brief.
Thereafter, the withdrawal may be allowed in the
discretion of the court.
An appeal may be withdrawn as of right
at any time before the filing of the
appellee's brief. Thereafter, the
withdrawal may be allowed in the
discretion of the court.
Stay of execution:
Rule 70, Sec.19. Immediate execution of
judgment; how to stay same.If judgment is
rendered against the defendant, execution shall
issue immediately upon motion, unless an
appeal has been perfected and the defendant to
stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and
Part 4: Special Civil Actions
executed in favor of the plaintiff to pay the rents,
damages and accosts accruing down to the time
of the judgment appealed from, and unless,
during the pendency of the appeal, he deposits
CIVIL PROCEDURE
with the appellate court the amount of rent due
from time to time under the contract, if any, as
determined by the judgment of the Municipal
Trial Court. In the absence of a contact, he shall
deposit with the Regional Trial Court the
reasonable value of the use and occupation of
the premises for the preceding month or period
at the rate determined by the judgment of the
lower court on or before the tenth day of each
succeeding month or period. The supersedeas
bond shall be transmitted by the Municipal Trial
Court, with the other papers, to the clerk of the
Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court shall
be deposited with said court or authorized
government depositary band, and shall be held
there until the final disposition of the appeal,
unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds
of opposition to a motion to withdraw, or for
justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments
above prescribed from time to time during the
pendency of the appeal, the appellate court,
upon motion of the plaintiff, and upon proof of
such failure, shall order the execution of the
judgment appealed from with respect to the
restoration of possession, but such execution
shall not be a bar to the appeal taking its course
until the final disposition thereof on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the
defendant for purposes of the stay of execution
shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the
defendant has been deprived of the lawful
possession of land or building pending the
appeal by virtue of the execution of the judgment
of the Municipal Trial Court, damages for such
deprivation of possession and restoration of
possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing
of the appeal.
Rule 39, Sec.2. Discretionary execution.
(a) Execution of a judgment or a final order
pending appeal.On motion of the
prevailing party with notice to the adverse
party filed in the trial court while it has
jurisdiction over the case and is in
possession of either the original record or
the record on appeal, as the case may be, at
the time of the filing of such motion, said
court may, in its discretion, order execution
of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the
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REVIEWER IN REMEDIAL LAW
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.
(b) Execution of several, separate or partial
judgments.A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
Sec.21, Revised Rules on Summary Procedure.
Appeal. The judgment or final order shall be
appealable to the appropriate regional trial court
which shall decide the same in accordance with
Section 22 of Batas Pambansa Blg. 129. The
decision of the regional trial court in civil cases
governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal
that may be taken therefrom. Section 10 of Rule
70 shall be deemed repealed.
Rule 43, Sec.12. Effect of appeal.The appeal
shall not stay the award, judgment, final order
or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just.
Rule 39, Sec.4. Judgments not stayed by
appeal.Judgments in actions for injunction,
receivership, accounting and support, and such
other judgments as are not or may hereafter be
declared to be immediately executory shall be
enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion
may make an order suspending, modifying,
restoring or granting the injunction,
receivership, accounting, or award of support.
General rule: In ordinary appeals,
execution is stayed.
Exceptions:
1. Decision in forcible entry and
unlawful detainer.
Exception to exception: If appellant
stays immediate execution by filing
a notice of appeal, supersedeas
bond and depositing in court a
monthly rental or compensation for
the occupation as fixed by the court
which rendered the decision.
2. Decision of the MeTC, MTC or MCTC
or the RTC where execution pending
appeal has been granted by the
court of origin or in a proper case by
the appellate court upon good
reasons to be stated in the order.
3. Decision of the RTC rendered in the
exercise of its appellate jurisdiction
Part 4: Special Civil Actions
on cases tried and decided by the
court of origin under Summary
Procedure.
CIVIL PROCEDURE
4. Decision of a quasi-judicial agency
under the Rule 43, Sec.12, unless
otherwise provided by the Court of
Appeals;
5. Decision in cases of injunction,
receivership, support and
accounting.
When case is submitted for judgment:
Rule 51, Sec. 1. When case deemed submitted for
judgment.A case shall be deemed submitted
for judgment:
A. In ordinary appeals.
1) Where no hearing on the merits of the main
case is held, upon the filing of the last
pleading, brief, or memorandum required by
the Rules or by the court itself, or the
expiration of the period for its filing.
2) When such hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be
required or permitted to be filed by the
court, or the expiration of the period for its
filing.
B. In original actions and petitions for review.
1) Where not comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the filing of
the last pleading required or permitted to be
filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the amin
case is held, upon its termination or upon
the filing of the last pleading or
memorandum as may be required or
permitted to be filed by the court, or the
expiration of the period for its filing.
1. Where no hearing on the merits of the
main case is held, upon the filing of the
last pleading, brief or memorandum
required by the Rules of Court or by the
court itself, or the expiration of the
period for its filing.
2. Where such a hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum required or
permitted to be filed by the court, or the
expiration of the period for its filing.
Judgment:
Rule 51, Sec.2. By whom rendered.The
judgment shall be rendered by the members of
the court who participated in the deliberation on
the merits of the case before its assignment to a
member for the writing of the decision.
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REVIEWER IN REMEDIAL LAW
Rule 51, Sec.3. Quorum and voting in the court.
The participation of all three Justices of a
division shall be necessary at the deliberation
and the unanimous vote of the three Justices
shall be required for the pronouncement of a
judgment or final resolution. If the three
Justices do not reach a unanimous vote, the
clerk shall enter the votes of the dissenting
Justices in the record. Thereafter, the Chairman
of the division shall refer the case, together with
the minutes of the deliberation, to the Presiding
Justice who shall designate two Justices chosen
by raffle from among the other members of the
court to sit temporarily with them, forming a
special division of five Justices. The participation
of all the five members of the special division
shall be necessary for the deliberation required
in section 2 of this Rules and the concurrence of
a majority of such division shall be required for
the pronouncement of a judgment or final
resolution.
Rule 51, Sec. 4. Disposition of a case.The
Court of Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may
direct a new trial or further proceedings to be
had.
Sec.40, BP 129. Form of decision in appealed
cases.Every decision or final resolution of a
court in appealed cases shall clearly and
distinctly state the findings of fact and the
conclusion of law on which it is based, which
may be contained in the decision or final
resolution itself, or adopted by reference from
those set forth in the decision, order, or
resolution appealed from.
Rule 51, Sec. 5. Form of decision.Every
decision or final resolution of the court in
appealed cases shall clearly and distinctly state
the finding of fact and the conclusions of law on
which it is based, which may be contained in the
decision or final resolution itself, or adopted
from those set forth in the decision, order, or
resolution appealed from.
Rule 51, Sec.6. Harmless error.No error in
either the admission or the exclusion of evidence
and no error or defect in any ruling or order or
in anything done or omitted by the trial court or
by any of the parties is ground for granting a
new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court
at every stage of the proceedings must disregard
any error or defect which does not affect the
substantial rights of the parties.
Rule 51, Sec.7. Judgment where there are
several parties.In all actions or proceedings,
an appealed judgment may be affirmed as to
some of the appellants, and revered as to others,
Part 4: Special Civil Actions
and the case shall thereafter be proceeded with,
so far as necessary, as of separate actions had
been begun and prosecuted; and execution of
the judgment of affirmance may be had
CIVIL PROCEDURE
accordingly, and costs may be adjudged in such
cases, as the court shall deem proper.
Rule 51, Sec. 8. Questions that may be
decided.No error which does not affect the
jurisdiction over the subject matter or the
validity of the judgment appealed from or the
proceedings therein will be considered unless
stated in the assignment of errors, or closely
related to or dependent on an assigned error
Rule 51, Sec. 9. Promulgation and notice of
judgment.After the or final resolution and
dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copes thereof to be served upon the parties or
their counsel.
It is rendered by the members of the
court who participated in the
deliberation on the merits of the case
before its assignment to a member for
the writing of the decision.
The participation of all 3 Justices of a
division shall be necessary at the
deliberation.
The unanimous vote of the 3 Justices
shall be required for the pronouncement
of a judgment or final resolution.
If the 3 Justices do not reach a
unanimous vote, the clerk shall enter
the votes of the dissenting Justices in
the record.
The Chairman of the division shall refer
the case (together with the minutes of
the deliberation) to the Presiding Justice
who shall designate 2 Justices chosen
by raffle from among all the other
members of the court to sit temporarily
with them, forming a special division of
5 Justices.
The participation of all the 5 members
of the special division shall be
necessary for the deliberation and the
concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution.
The CA, in the exercise of its appellate
jurisdiction, may affirm, reverse or
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REVIEWER IN REMEDIAL LAW
modify the judgment or final order
appealed from, and may direct a new
trial or further proceedings to be had.
Every decision or final resolution of the
CA in appealed cases shall clearly and
distinctly state the findings of fact and
the conclusions of law on which it is
based, which may be contained in the
decision or final resolution itself, or
adopted from those set forth in the
decision, order or resolution appealed
from.
Harmless error rule: No error in the
admission or exclusion of evidence and
no error or defect in any ruling or order
or in anything done or omitted by the
trial court or of any of the parties is
ground for granting a new trial or for
setting aside, modifying or otherwise
disturbing a judgment or order, unless
refusal to take such action appears
to the court inconsistent with
substantial justice. The court at
every stage of the proceeding must
disregard any error or defect which
does not affect the substantial
rights of the parties.
In all actions or proceedings, an
appealed judgment may be affirmed as
to some of the appellants and reversed
as to others, and the case shall
thereafter be proceeded with as if
separate actions had been begun and
prosecuted.
No error which does not affect the
jurisdiction over the subject matter
or the validity of the judgment
appealed from or the proceedings
therein will be considered unless
stated in the assignment of errors,
or closely related to or dependent on
an assigned error and properly
argued in the brief.
Exception: The court may pass upon
plain errors and clerical errors.
After the judgment or final resolution
and dissenting or separate opinions are
signed by the Justices taking part, they
shall be delivered for filing to the clerk.
The clerk shall indicate thereon the date
of promulgation and cause true copies
thereof to be served upon the parties or
their counsel.
Part 4: Special Civil Actions
2. Procedure in the Supreme Court
(Appealed Cases)
CIVIL PROCEDURE
Mode of appeal:
Rule 56, Sec. 3. Mode of appeal.An appeal to
the Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
Only by a petition for review on
certiorari.
Exception: Criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment.
Procedure:
Rule 56, Sec. 4. Procedure.The appeal shall be
governed by and disposed of in accordance with
the applicable provisions of the Constitution,
laws, Rules 45, 48, sections 1, 2 and 5 to 11 of
Rules 51, 52 and this Rule.
Governed by and disposed of in
accordance with the applicable
provisions of the Constitution, laws,
Rules 45, 48, Sec. 1, 2 and 5 to 11 of
Rule 51, 52 and this Rule.
Grounds for dismissal of appeal:
Rule 56, Sec. 5. Grounds for dismissal of
appeal.The appeal may be dismissed motu
proprio or on motion of the respondent on the
following grounds:
(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition;
(e) Failure to comply with any circular, directive
or order of the Supreme Court without
justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to
the Supreme Court.
1. Failure to take the appeal within the
reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the docket and other
lawful fees or to make a deposit for
costs;
4. Failure to comply with the requirements
regarding proof of service and contents
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REVIEWER IN REMEDIAL LAW
of and the documents which should
accompany the petition;
5. Failure to comply with any SC
circular/directive/order without
justifiable cause;
6. Error in the choice/mode of appeal;
7. The fact that the case is not appealable
to SC.
Improper appeal:
Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be
dismissed.
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submitting
issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
determination of the Supreme Court on whether
or not issues of facts are involved shall be final.
Rule 122, Sec.3. How appeal taken.
(a) The appeal to the Regional Trial Court, or to
the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of
appeal filed with the court which rendered
the judgment or final order appealed from
and by serving a copy thereof upon the
adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be
by petition for review under Rule 42.
(c) The appeal in cases where the penalty
imposed by the Regional Trial Court is
reclusion perpetua or life imprisonment, or
where a lesser penalty is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for
which the penalty of death, reclusion
perpetua, or life imprisonment is imposed,
shall be by notice of appeal to the Court of
Appeals in accordance with paragraph (a) of
this Rule.
(d) No notice of appeal is necessary in cases
where the Regional Trial Court imposed the
death penalty. The Court of Apppeals shall
automatically review the judgment as
provided in Section 10 of this Rule.
(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for
review on certiorari under Rule 45.
An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Part 4: Special Civil Actions
Exception: Appeals in criminal cases
where the penalty imposed is death,
reclusion perpetua or life imprisonment.
CIVIL PROCEDURE
An appeal by certiorari taken to the SC
from the RTC submitting issues of fact
may be referred to the CA for decision
or appropriate action. The
determination of the SC on whether or
not issues of fact are involved shall be
final.
CIVIL PROCEDURE REMEDIAL LAW
Equally divided:
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally
divided in opinion, or the necessary majority
cannot be had, the case shall again be
deliberated on, and if after such deliberation no
decision is reached, the original action
commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied.
Where the court en banc is equally
divided in opinion, or the necessary
majority cannot be had, the case shall
again be deliberated on.
If after such deliberation no decision is
reached:
1. The original action commenced in
the court shall be dismissed.
2. In appealed cases, the judgment or
order appealed from shall stand
affirmed.
B. Questions of Fact vs. Questions of
Law
In the case of Agote vs. Lorenzo (2005), the
Supreme Court laid down the following
principles:
A question of law does not involve an
examination of the probative value of
the evidence presented by any of the
litigants.
There is a question of law in a given
case when the doubt or difference arises
as to what the law is on a certain state
of facts; there is a question of fact when
the doubt or difference arises as to the
truth or the falsehood of the facts
alleged.
Alsua-Betts vs. CA (1979):
General rule: CAs findings of fact are final
and conclusive and cannot be reviewed on
appeal to the SC, provided they are borne
out by the record or are based on
substantial evidence.
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
Exception: CAs findings of fact may be 3. Reglementary Not later than sixty
reviewed by the SC on appeal by certiorari Period (60) days from notice
when: of the judgment, order
Must be filed within the or resolution sought

CIVIL PROCEDURE
1. Joaquin vs. Navarro: Conclusion is a
reglementary period for to be assailed.
finding grounded entirely on
appeal.
speculations, surmises or conjectures. 4. Effect on the No effect (i.e.,
2. Luna vs. Linatok: Inference made is Proceedings Below proceedings below
manifestly mistaken, absurd or continue) unless a
impossible. Judgment, award or writ of preliminary
3. Buyco vs. Pp: There is grave abuse of order appealed from is injunction or a
discretion in the appreciation of facts. stayed by the Appeal temporary restraining
4. De la Cruz vs. Sosing: Judgment is order has been issued
based on a misapprehension of facts. 5. Parties Involved The parties are the
5. Casica vs. Villaseca: The Court of aggrieved party
Original Parties to the against the lower
Appeals findings of fact are conflicting.
action remain the same court/Quasi-judicial
6. Nakpil & Sons vs. CA (1986): The Court during appeal (albeit agency and the
of Appeals, in making its findings, went with the corresponding prevailing parties,
beyond the issues of the case and the appellation of appellant who thereby
same is contrary to the admissions of and appellee), the lower respectively become
both appellant and appellee. court or quasi-judicial the petitioner and the
7. Abellana vs. Dosdos (1965): The Court agency is not to be respondents.
of Appeals manifestly overlooked certain impleaded.
relevant facts not disputed by the 6. Requirement of A motion for
Motion for reconsideration is a
parties and which, if properly
Reconsideration CONDITION
considered, would justify a different PRECEDENT subject
conclusion. For purposes of appeal, only to certain
8. Manlapaz vs. CA (1987): The Court of MR is not required exceptions.
Appeals findings of fact are contrary to 7. Exercise of Higher Court
those of the trial court, or are mere Jurisdiction exercises original
conclusions without citation of specific jurisdiction under its
evidence, or where the facts set forth by The Appellate Court power of control and
the petitioner are not disputed by the exercises its appellate supervision over the
respondent, or where the findings of jurisdiction and power proceedings of lower
of review courts.
fact of the Court of Appeals are
premised on absence of evidence but
are contradicted by the evidence of C. Notice of Appeal
record. The notice of appeal shall indicate the
9. Joaquin v. Navarro: Conclusion is a parties to the appeal, the judgment or final
finding grounded entirely on order or part thereof appealed from, the
speculations/surmises/conjectures. state the material dates showing the
Perez-Rosario vs. CA (2005): Rule 65 timeliness of the appeal.
cannot cure the failure to appeal thru
Rule 45. D. Record on Appeal
Distinctions Between Rule 45 and Required only in:
Rule 65 Based on J. Regalados Commentary 1. Special proceedings;
(Asked in the 1999 and 2008 Bar Exams ) 2. Multiple or separate appeals where the
Rule 45 Appeal by Rule 65 Original law or the Rules of Court so requires.
Certiorari Action for Certiorari
1. Issues Raised Grave Abuse of Rule 40, Sec.2. When to appeal.The appeal is
Discretion Amounting taken by filing a notice of appeal with the court
Questions of Law to Lack or Excess of that rendered the judgment or final order
Jurisdiction appealed from. Where a record on appeal is
2. Against What Directed Against an required, the appellant shall file a notice of
Court Action Directed Interlocutory Order of appeal and a record on appeal within 30 days
the court prior to after notice of the judgment or final order.
Review of the judgment, appeal from the
The period of appeal shall be interrupted by a
award or final order on judgment, or where
timely motion for new trial or reconsideration.
the merits there is no appeal or
No motion for extension of time to file a motion
any other plain
for new trial or reconsideration shall be allowed.
speedy and adequate
remedy

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
Neypes vs. CA (2005) on the fresh period F. Period to Appeal
rule:
Definition: Period of appeal is From MTC to RTC and from RTC (original) to
CA:

CIVIL PROCEDURE
interrupted by a timely motion for new
trial or reconsideration. Motion for 1. By notice of appeal: 15 days from notice
extension of time to file motion for new of the judgment or final order
trial or reconsideration is not allowed. 2. By record of appeal: 30 days from notice
Applicability: of the judgment or final order
1. Rule 40 on appeals from MTC to 3. From MTC to RTC (appellate) to CA: 15
RTC. days from notice of the judgment or
2. Rule 42 on petitions for review from final order but the Court of Appeals may
RTC to CA. grant a 15 day extension. No further
3. Rule 43 on appeals from QJA to CA. extension shall be granted except for
4. Rule 45 on appeals by certiorari to the most compelling reasons and in no
SC. case longer then 15 days.
Rationale: To standardize the appeal From RTC (original) to CA to SC and from
periods provided in the Rules of Court MTC to RTC (appellate) to CA to SC and from
and to afford litigants fair opportunity CA to SC and from QJA to CA to SC:
to appeal their cases, the court deems it 15 days from notice of judgment or final
practical to allow a fresh period of 15 order or from denial of petitioners motion
days within which to file the notice of for reconsideration or new trial. The SC
appeal in the Regional Trial Court, may grant a 30 day extension for justifiable
counted from receipt of the order reasons.
dismissing a motion for new trial or
reconsideration. From QJA to CA:
15 days from notice of the award,
judgment, final order or resolution or from
E. Perfection of Appeal
date of last publication if required by law.
Appeal from MTC to RTC: the rules on The CA may grant a 15 day extension. No
perfection of appeal from RTC to CA further extension shall be granted except
applies. for the most compelling reasons and in no
From the Regional Trial Court to CA: case longer then 15 days.
By notice of appeal: perfected as to
party who filed notice upon filing of
the same in due time
o The court loses jurisdiction over
the case upon perfection of
appeal AND expiration of time to
appeal of the other parties.
By record on appeal: perfected as to
the party who filed appeal and with
respect to the subject matter thereof
upon approval of the record filed in
due time
o The court loses jurisdiction upon
approval of the records on
appeal AND expiration of the
time to appeal of the other
parties
From MTC to RTC (appellate
jurisdiction) to CA: upon timely filing of
a petition for review and the payment of
the corresponding docket and other
lawful fees.
The RTC loses jurisdiction upon
perfection of appeals filed in due
time AND the expiration of time to
appeal of other parties.

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REVIEWER IN REMEDIAL LAW
Matrix of Periods
Period to Appeal
By notice of appeal - 15 days
MTC to
from notice of the judgment or
RTC
final order
By record of appeal 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days
RTC to CA from notice of the judgment or
final order
By record of appeal 30 days
from notice of the judgment or
final order
15 days from notice of the
judgment or final order OR from
MTC to
denial of MR or MNT
RTC to CA
15 days from notice of the
award, judgment, final order or
QJA to CA resolution or from date of last
publication if required by law OR
from denial of MR or MNT
RTC to SC
15 days from notice of judgment
RTC to CA
or final order OR from denial of
to SC
petitioners MR or MNT. reasons.
CA to SC
This fresh period rule shall also apply to
Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from
the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals
and Rule 45 governing appeals
by certiorari to the Supreme Court. The new
rule aims to regiment or make the appeal
period uniform, to be counted from receipt
of the order denying the motion for new
trial, motion for reconsideration (whether
full or partial) or any final order or
resolution. [Neypes vs. CA, (2005)]
A party litigant may now file his notice of
appeal either within fifteen days from
receipt of the original decision or within
fifteen days from the receipt of the order
denying the motion for
reconsideration. Being procedural in
nature, Neypes is deemed to be applicable
to actions pending and undetermined at the
time of its effectivity and is thus retroactive
in that sense and to that extent. [First Aqua
Sugar v. BPI (2007)]
Part 5: Remedies and Appeals
Extensions Effect of MR or MNT
CIVIL PROCEDURE
Interrupts the period
No extensions allowed
to appeal
Interrupts the period
No extensions allowed
to appeal
The CA may grant a 15 day
extension. No further
Fresh period to
extension shall be granted
appeal from denial
except for the most compelling
MR or MNT
reasons and in no case longer
then 15 days.
The CA may grant a 15 day
extension. No further
Fresh period to
extension shall be granted
appeal from denial
except for the most compelling
MR or MNT
reasons and in no case longer
then 15 days.
The SC may grant a 30 day Fresh period to
extension for justifiable appeal from denial
MR or MNT
VI. SPECIAL TOPIC: REMEDIES
FROM A VOID JUDGMENT
(Asked in the 2004 BAR EXAMS)
1. What is a void judgment?
A void judgment is no judgment at all. It
cannot be the source of any right nor of any
obligation. All acts performed pursuant to it
and all claims emanating from it have no
legal effect. Hence, it can never become
final and any writ of execution based on it
is void: "x x x it may be said to be a lawless
thing which can be treated as an outlaw
and slain at sight, or ignored wherever and
whenever it exhibits its head.
A void judgment never acquires finality.
A void judgment is not entitled to the
respect accorded to a valid judgment, but
may be entirely disregarded or declared
inoperative by any tribunal in which effect
is sought to be given to it. It is attended by
none of the consequences of a valid
adjudication. It has no legal or binding
effect or efficacy for any purpose or at any
place. It cannot affect, impair or create
rights. It is not entitled to enforcement and
is, ordinarily, no protection to those who
seek to enforce. All proceedings founded on
the void judgment are themselves regarded
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REVIEWER IN REMEDIAL LAW
as invalid. In other words, a void judgment
is regarded as a nullity, and the situation is
the same as it would be if there were no
judgment. It, accordingly, leaves the parties
litigants in the same position they were in
before the trial.
A judgment may be void for lack of due
process of law. (Spouses Benatiro vs. Heirs
of Cuyos, G.R. No. 161220, July 30, 2008)
2. How do you attack a void judgment?
It may be assailed anytime, collaterally or
in a direct action or by resisting such
judgment or final order in any action or
proceeding whenever it is invoked,
unless barred by laches. (Spouses Benatiro
vs. Heirs of Cuyos, G.R. No. 161220, July
30, 2008)
3. What are your remedies?
If the reglementary period for appeal has
not yet lapsed, some remedies are New
Trial and Reconsideration. Appeal,
Petition for Relief, and Other
Appropriate Remedies such as
Certiorari may also be used. If the
appropriate remedies are no longer
available without the fault of the petitioner,
the equitable and extraordinary remedy
of Petition for Annulment of Judgment
may be resorted to. When all else fails,
there is a jurisprudence to the effect that a
patently void judgment may be dealt with
by a Main Action for Injunction.
Part 5: Remedies and Appeals
Some Jurisprudential Basis
Remedial Law Jurisprudence such as
CIVIL PROCEDURE
Spouses Benatiro vs. Heirs of Cuyos, (G.R.
No. 161220, July 30, 2008) and Agustin vs.
Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment. This
remedy however should be availed of only
when the appropriate remedies are no
longer available without fault on the part of
the petitioner.
Although Section 2 of Rule 47 of the Rules
of Court provides that annulment of a final
judgment or order of an RTC may be based
"only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence
recognizes denial of due process as
additional ground therefore (Spouses
Benatiro Case).
In Montinola vs. Judge Gonzales (1989), the
Supreme Court held: Petitioners' contention
that the decision of April 28, 1971, in Civil
Case No. 6793, may not be annulled after it
had become final is not well-taken, FOR A
VOID JUDGMENT IS LIKE AN OUTLAW
WHICH MAY BE SLAIN AT SIGHT
WHEREVER OR WHENEVER IT EXHIBITS
ITS HEAD. ". . . the proper remedy in such
case, after the time for appeal or review
has passed, is for the aggrieved party to
bring an action to enjoin the judgment ...
In every situation of this character an
appropriate remedy is at hand ... We
accordingly held that, assuming the
judgment to have been void as alleged by
the proponent of this motion, the proper
remedy was by an original proceeding and
not by motion in the cause" (Banco Espanol
vs. Palanca, 37 Phil. 921; p. 5). "A final
judgment may be annulled on the ground of
lack of jurisdiction, fraud, or that it is
contrary to law" (Panlilio vs. Garcia, 119
SCRA 307)
Page 131 of 370
REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 1: Service of Summons upon Different Entities

1. Service on person associated If sued under the name by which they are commonly known Serve
upon either:

CIVIL PROCEDURE
in an
entity without juridical personality 1) Any/all the defendants;
[Rule 14, Sec. 8] 2) Person in charge of the office
The service does not bind individually any person whose connection
with the entity was already severed before the service
2. Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec. If there is no guardian, plaintiff may apply for the appointment of a
10] guardian ad litem.
If minor, may serve on his parents.
3. Service upon prisoner [Rule Serve upon the officer having management of the jail/prison
14, Sec. 9]
4. Service upon domestic Serve upon either the:
private juridical entity [Rule 1) President
14, Sec. 11] 2) Managing partner
3) General manager
4) Corporate secretary
5) Treasurer
6) In-house counsel
5. Service upon foreign private Serve upon the resident agent;
juridical entity Otherwise, upon either:
[Rule 14, Sec. 12] 1) Government official designated by law;
2) Any officer or agent of the corporation within the Philippines
6. Service upon public If the defendant is the Republic of the Philippines Serve upon the
corporations OSG
[Rule 14, Sec. 13] If the defendant is a province/city/municipality or like public
corporations Serve upon the executive head or other officers as
the law/court may direct
7. Extraterritorial service Requisites: (Asked in the 1997 and 2008 Bar Exam)
[Rule 14, Sec. 15] 1) Defendant does not reside or is not found in the Philippines;
2) Action either:
a) Affects the plaintiffs personal status;
b) Relates to or the subject matter of which is property within
the Philippines in which defendant has a lien/interest;
c) Demands a relief which consists wholly/partially in
excluding the defendant from any interest in any property
within the Philippines;
d) Has defendants property in the Philippines, attached.
Modes of service:
1) With leave of court, serve outside the Philippines by personal
service; or
2) With leave of court, serve by publication in a newspaper of
general circulation, in which case copy of the summons and
order of the court must also be sent by registered mail to the
defendants last known address;
3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period
of at least 60 days within which the defendant must answer.
8. Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines
[Rule 14, Sec. 16]
9. Service upon a defendant With leave of court, by publication in a newspaper of general
whose identity or circulation
whereabouts are unknown
[Rule 14, Sec. 14]

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 2: Subpoena Duces Tecum and Order for the Production or Inspection

SUBPOENA DUCES TECUM ORDER FOR THE PRODUCTION OR

NATURE Process requiring a person to bring
with him any books, documents,
documents, or other things under
his control or possession.
CIVIL PROCEDURE
INSPECTION
order any party to produce and permit
the inspection and copying or
photographing, by or on behalf of
the moving party,
of any designated documents, papers,
books, accounts, letters,
photographs, objects or tangible
things, not privileged,
which constitute or contain evidence
material to any matter involved in
the action and which are in his
possession, custody or control, or

order any party to permit entry upon

designated land or other property
in his possession or control for
the purpose of inspecting,
measuring, surveying, or
photographing the property or
any designated relevant object or
operation thereon.
TO WHOM DIRECTED To any person Only to a party
WHEN IT MAY BE Only during trial Before and/or during trial
ASKED
Issued by a court before whom the Issued by the court where the action
ISSUED BY WHOM witness is required to attend, or is pending
court where the deposition is to be
taken or clerk or body authorized
by law or any justice of the
Supreme Court or CA in any case
or investigation pending within the
Philippines
WHEN ISSUED Issued upon request Issued upon motion
(Request to the clerk, no notice) (application with notice to the other
party)
WHETHER IT IS NO YES
NECESSARY TO
SHOW GOOD CAUSE
GROUNDS FOR Unreasonable, oppressive, irrelevant, No good cause shown
QUASHAL or

The person in whose behalf the

subpoena is issued fails to advance
the reasonable costs of the
production thereof
CONSEQUENCE OF Constitutes contempt of the court from See Section 3, Rule 29
DISOBEDIENCE which the subpoena is issued.

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 3: Consequences of Refusal under Rule 29

PROVISION HIGHLIGHTS APPLICABILITY

CIVIL PROCEDURE
Section 1. REFUSAL TO ANSWER. If a party or other deponent PARTY OR DEPONENT /WITNESS IN
refuses to answer any question upon oral examination, RULE 23 (depositions de bene
a. the examination may be completed on other matters or esse),
b. adjourned as the proponent of the question may prefer. RULE 24 (depositions in
c. The proponent may thereafter apply (i.e., by MOTION FOR perpetuam rei memoriam)
THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) RULE 25. INTERROGATORIES
to the proper court of the place where the deposition is TO PARTIES
being taken, for an order to compel an answer.

IF THE APPLICATION IS GRANTED, the court shall require the

refusing party or deponent to answer the question or
interrogatory and if it also finds that the refusal to answer
was without substantial justification,
it may require the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining
the order, including attorney's fees.

IF THE APPLICATION IS DENIED and the court finds that it was

filed without substantial justification, the court may require
the proponent or the counsel advising the filing of the
application, or both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses incurred in
opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
RULE 23 (depositions de bene esse),
refuses to BE SWORN OR RULE 24 (depositions in perpetuam
refuses to answer any question after being directed to do rei memoriam)
so

by the court of the place in which the deposition is being taken,

the refusal may be considered a contempt of that court.
Section 3. Other consequences PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY IN
AGGRIEVED PARTY MAY APPLY FOR: 23, 24, 25 IN RELATION TO RULE
An order that the matters regarding which the 29.1 ON ORDER TO COMPEL AN
questions were asked, or the character or ANSWER
description of the thing or land, or the contents of PARTY IN 27, 28
the paper, or the physical or mental condition of RULE 23 (depositions de bene esse),
the party, RULE 24 (depositions in perpetuam
or any other designated facts shall be taken to be rei memoriam)
established for the purposes of the action in RULE 25 (Interrogatories to parties)
accordance with the claim of the party obtaining RULE 27 (Motion for production or
the order; inspection of documents or
An order things)
a. refusing to allow the disobedient party to support or RULE 28 (Physical and mental
oppose designated claims or defenses or examination of persons)
b. prohibiting him from introducing in evidence (APPLIES TO all modes of discovery
designated documents or things or items of except RULE 26 ON REQUEST
testimony, or FOR ADMISSION BY AN ADVERSE
c. from introducing evidence of physical or mental PARTY)
condition;
An order
a. striking out pleadings or parts thereof, or
b. staying further proceedings until the order is obeyed,
or
c. dismissing the action or proceeding or any part
thereof,
d. or rendering a judgment by default against the
disobedient party; and

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REVIEWER IN REMEDIAL LAW Appendices
PROVISION HIGHLIGHTS APPLICABILITY
IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN
ADDITION THERETO,
an order directing the arrest of any party or agent of a

CIVIL PROCEDURE
party for disobeying any of such orders except an
order to submit to a physical or mental examination.
Section 4. Expenses on refusal to admit. PARTY SERVED WITH A REQUEST
RULE 26 ADMISSION BY AN
If a party after being served with a request under Rule 26 to ADVERSE PARTY
admit the genuineness of any document or the truth of any
matter of fact

Serves a sworn denial thereof and

If the party requesting the admissions thereafter proves
the genuineness of such document or the truth of
any such matter of fact,

he may apply to the court for an order requiring the other party
to pay him the reasonable expenses incurred in making such
proof, including attorney's fees.
Unless the court finds THAT THERE WERE GOOD REASONS
FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE
OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL
BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE PARTY OR AN OFFICER OR
ANSWERS. MANAGING AGENT OF A PARTY
RULE 23 (depositions de bene esse),
If a party or an officer or managing agent of a party RULE 24 (depositions in perpetuam
a. wilfully fails to appear before the officer who is to take rei memoriam)
his deposition, after being served with a proper notice, or RULE 25. INTERROGATORIES TO
b. fails to serve answers to interrogatories submitted under PARTIES
Rule 25 after proper service of such interrogatories,

The court on motion and notice, may

a. strike out all or any part of any pleading of that party, or

b. dismiss the action or proceeding or any part thereof, or
c. enter a judgment by default against that party,
d. and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE Applies to all provisions in Rule 29
PHILIPPINES. requiring a noncompliant party or
witness (who represents the
Expenses and attorney's fees are not to be imposed upon the Republic in an official capacity) to
Republic of the Philippines under this Rule pay.

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 4: Procedure for Expropriation

CIVIL PROCEDURE
All sales of property under execution must be made at public auction, to
the highest bidder, to start at the exact time fixed in the notice. The
judgment obligor, if present at the sale, may direct the order in whic h
property, real or personal shall be sold, when such property consists of
several known lots or parcels which can be sold to advantage
.separately.

When the sale is of real When the sale is of

property, consis ting of several personal property capable of
know n lots, they must be sold manual delivery, it must be
separately ; or,when a portion sold w ithin view of those
of such real property is claimed attending the same and in
by a third person, he may such parcels as are likely to
require it to be sold separately bring the highest price

After suffic ient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authoriz ed
representative, unless otherw is e directed by the judgment or order of
the court.

Section 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by
him for property struck off to him at a sale under execution , the officer may again sell the
property to the highest bidder and shall not be responsible for any loss occasioned
thereby; but the court may (1) order the refusing purchaser to pay into the court the
amount of such loss1, w ith costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which event
such proceeds shall be for the benefit of the judgment obligor. (2) The officer may

Section 24. CONVEYANCE TO PURCHASER OF Section 23. CONVEYANCE TO PURCHASER

PERSONAL PROPERTY NOT CAPABLE OF
MANUAL DELIVERY. When the purchaser of any
personal property, not capable of manual delivery,
pays the purchase pric e, the officer making the sale
must execute and deliver to the purchaser a
certif icate of sale. Such certif icate conveys to the
purchaser all the rights whic h the judgment obligor
had in such property as of the date of the levy on
execution or preliminary attachment
OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY. When the purchaser of
any personal property, capable of manual
delivery, pays the purchase price, the offic er
making the sale must deliver the property to the
purchaser and, if desired, execute and deliver to
him a certificate of sale. The sale conveys to the
purchaser all the rights whic h the judgment
obligor had in such property as of the date of the
levy on execution or preliminary attachment .

- end of Civil Procedure -

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REVIEWER IN REMEDIAL LAW Table of Contents

SPECIAL PROCEEDINGS
PRELIMINARY MATTERS 142 L. Proof where testator petitions for 152
A. Special Proceedings 142 allowance of holographic will
B. Applicable Rules 142 M. Certificate of allowance attached 152
C. Venues and Jurisdictions of Special 143 to prove will. To be recorded in
Proceedings the Office of Register of Deeds
V. Rule 77 Allowance of Will Proved 153
CHAPTER 1: General Provisions 144 Outside of Philippines and
I. Subject matter and applicability of 144 Administration of Estate
general rules Thereunder
II. Difference between action and 144 A. Will proved outside the 153
special proceeding Philippines
CHAPTER 2: Settlement of Estate of 145 B. Requisites for allowance: 153
Deceased Persons C. When will allowed, and effect 153
I. Venue and Process 145 thereof

SPECIAL PROCEEDINGS
A. Where estate of deceased persons 145 D. Estate, how administered 153
settled VI. Letters Testamentary and of 153
B. Where estate settled upon 146 Administration, When and to Whom
dissolution of marriage Issued
C. Process 146 A. Who cannot serve as executors or 153
D. Presumption of death 146 administrators:
II. Summary Settlement of Estate 146 B. The executor of an executor shall 153
A. Extrajudicial settlement by 146 not, as such, administer the
agreement between heirs estate of the first testator.
B. Summary settlement of small 147 C. Married woman may serve 153
value D. Letters testamentary issued when 154
C. Bond to be filed by distributees 148 will allowed
D. Liability of distributees and estate 148 E. Where some co-executors 154
E. Period for claim of minor or 149 disqualified others may act
incapacitated person F. When and to whom letters of 154
III. Production of Will. Allowance of 149 administration granted
Will Necessary VII. Rule 79 Opposing Issuance of 154
A. Allowance necessary. Conclusive 149 Letters Testamentary. Petition and
as to execution Contest For Letters Of
B. Custodian of will to deliver 150 Administration
C. Executor to present will and 150 A. Opposition to issuance of letters 154
accept or refuse trust testamentary
D. Custodian and executor subject 150 B. Contents of petition for letters of 155
to fine for neglect administration
E. Person retaining will may be 150 C. Court to set time for hearing. 155
committed Notice thereof
IV. Allowance or Disallowance of Will 150 D. Opposition to petition for 155
A. Who may petition for the 150 administration
allowance of will E. Hearing and order for letters to 155
B. Contents of the petition 151 issue
C. Court to appoint time for proving 151 F. When letters of administration 155
will. Notice thereof to be granted to any applicant
published VIII. Rule 80 Special Administrator 155
D. Heirs, devisees, legatees, and 151 A. Appointment of special 155
executors to be notified by mail or administrator
personally B. Powers and duties of special 156
E. Proof at hearing. What sufficient 151 administrator
in absence of contest C. When special administrator cease; 156
F. Proof of lost or destroyed will. 151 duties
Certificate thereupon IX. Rule 81 Bond of Executors and 156
G. Proof when witnesses do not 151 Administrators
reside in province A. Bond to be given issuance of 156
H. Proof when witnesses dead or 152 letters. Amount. Conditions.
insane or do not reside in the B. Bond of executor where directed 156
Philippines in will. When further bond
I. Grounds for disallowance of will 152 required
J. Contestant to file grounds for 152 C. Bonds of joint executors and 157
contest administrators
K. Subscribing witnesses produced 152 D. Bond for special administrator 157
or accounted for where will
contested

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REVIEWER IN REMEDIAL LAW Table of Contents
X. Revocation of Administration, 157 G. Mortgage debt due from estate 163
Death, Resignation, and Removal of H. Claim of executor or 163
Executors or Administrators administrator against an estate
A. Administration revoked if will 157 I. How to file a claim. Contents 163
discover. Proceedings thereupon thereof. Notice to executor or
B. Court may remove or accept 157 administrator
resignation of executor or J. Answer to the claim by executor 164
administrator. Proceedings upon or administrator. Offsets 164
death, resignation or removal K. Disposition of admitted claim 164
C. Acts before revocation, 158 L. Trial of contested claim 164
resignation, or removal to be valid M. Judgment appealable 164
D. Powers of new executor or 158 N. Costs 164
administrator XV. Actions By and Against Executors 165
XI. Inventory and Appraisal. Provision 158 and Administrators
for Support of Family A. Actions which may and which 165
A. Inventory and appraisal to be 158 may not be brought against

SPECIAL PROCEEDINGS
returned within 3 months executor or administrator
B. Articles not to be inventoried: 158 B. executor or administrator may 165
C. Allowance to widow and family 158 bring or defend actions which
D. Provision for support 158 survive
XII.General Powers and Duties of 158 C. Heir may not sue until share 166
Executors and Administrators assigned
A. Executor or administrator to have 158 D. Executor or administrator may 166
access to partnership books and compound with debtor
property. How right enforced E. Mortgage due estate may be 166
B. Keep buildings in tenantable 159 foreclosed
repair F. Proceedings when property 166
C. Right to possession and 159 concealed, embezzled or
management of the real and fraudulently conveyed
personal properties G. Powers entrusted with estate 166
XIII. Accountability and 159 compelled to render account
Compensation of Executors and H. Embezzlement before letters 167
Administrators issued
A. Executor or administrator 159 I. Property fraudulently conveyed by 167
chargeable with all estate and deceased may be recovered. When
income executor or administrator must
B. Not to profit by increase or lose by 159 bring action
decrease in value J. When creditor may bring action. 167
C. When not accountable 159 Lien for costs
D. Accountable for income from 159 XVI. Payment of the Debts of the 167
realty used by him Estate
E. Accountable if he neglects or 159 A. Debts paid in full if estate 168
delays to raise or pay money sufficient
F. When allowed money paid as 160 B. Part of estate from which debt 168
costs paid when provision made by will
G. What expenses and fees allowed 160 C. Personally first chargeable for 168
executor or administrator. Not to debts, then realty
charge for services as attorney. D. Estate to be retained to meet 168
Compensation provided by will contingent claims
controls unless renounced. E. Contingent claim; when allowed 168
H. When executor or administrator 160 F. Court to fix contributive shares 169
to render account where devisees, legates, or heirs
I. Examination on oath by court 161 have been in possession
J. Account to be settled on notice 161 G. Order of payment if estate is 169
K. Surety on bond may be party to 161 insolvent
accounting H. Dividends to be paid in proportion 169
XIV. Claims Against Estate 161 to claims
A. Notice to creditors to be issued by 161 I. Insolvent non-resident 169
court J. Insolvent resident; foreign 169
B. Time within which claims shall be 162 creditors
filed K. Order of payment of debts 169
C. Publication of notice to creditors 162 L. Appeal taken from a decision of 169
D. Filing copy of printed notice 162 the court concerning the claim
E. Claims which must be filed under 162 M. Time to time further orders of 169
the notice. If not filed, barred; distribution
exceptions N. Creditors to be paid in accordance 170
F. Solidary obligation of decedent 162 with terms of order

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REVIEWER IN REMEDIAL LAW Table of Contents
O. Court shall allow executor or 170 IV. Period to appeal and claim the 179
administrator a time for disposing estate
the estate any paying debts and V. Other actions for escheat 179
legacies
P. Ground for extension 170 CHAPTER 4: Special Rules 180
XVII. Sales, Mortgages, and Other 170 Implementing the Family Courts
Encumbrances of Property of I. Guardianship 180
Decedent A. Guardianship In General 180
A. Sale of personal estate; 170 B. Guardianship of Minors 180
requirements 1. Parents as Legal Guardians 180
B. Sale, mortgage, or encumbrance 170 (Art. 225, FC)
(s/m/e) of real property 2. Rule on Guardianship of 181
C. Requisites for disallowing s/m/e 171 Minors (A.M. No. 03-02-05-
real or personal SC)
D. Sale of whole or part of personal 171 a. Scope and Applicability 181
or real estate b. Petition for Appointment 181

SPECIAL PROCEEDINGS
E. Personal/real s/m/e is NOT 171 of Guardian
necessary to pay debts, expenses c. The Guardian 182
of administration or legacies in d. Selling and Encumbering 184
the PHILIPPINES the Property of the Ward
F. Court authorize s/m/e of realty 171 e. Removal, Resignation, 184
acquired on execution or and Termination of
foreclosure Guardianship
G. Regulations for authorizing 171 C. Guardianship of Incompetents 185
s/m/e: (Rules 92-98)
H. When court may authorize 172 a. Scope and Applicability 185
conveyance of realty which b. Petition for Appointment of 185
deceased contracted to convey Guardian
I. Where the deceased in his lifetime 173 c. The Guardian 186
held real property in trust for d. Selling and Encumbering the 188
another person Property of the Ward (Rule
XVIII. Distribution and Partition of 173 95)
the estate e. Termination of Guardianship 189
A. When order for distribution of 173 (Rule 97)
residue made II. Adoption 190
B. Questions as to advancement 174 A. Domestic Adoption 190
made, or alleged to have been a. Scope and Applicability 190
made, by the deceased to any heir b. The Adopter and the Adoptee 190
C. Expenses of partition 174 c. Petition for Adoption 192
D. Recording of the order of partition 174 d. Rescission of Adoption of the 196
of estate Adoptee
E. Effect of Final Decree of 174 B. Inter-Country Adoption (RA 8043) 197
Distribution 1. Scope and Applicability 197
XIX. Trustees 175 2. Inter-country Adoption as the 197
A. Where trustee appointed 175 Last Resort
B. Appointment and powers of 175 3. Petition for Adoption 197
trustee under will. Executor of III. Rules on Custody of Children (Rule 198
former trustee need not 99, Secs. 6 and 7)
administer trust A. Proceedings as to the child whose 198
C. New Trustee 175 parents are separated (Rule 99, 199
D. Trustee appointed abroad 176 Sec. 6)
E. Trustee must file bond before 176 B. Proceedings as to vagrant or 199
performing duties abused child (Rule 99, Sec. 7)
F. Conditions of the Bond 176 IV. Custody of Minors and Writ of 199
G. Appraisal and compensation of 177 Habeas Corpus in Relation to
trustee Custody of Minors (A.M. No. 03-04-
H. Removal or resignation of trustee 177 04-SC)
I. If sale or encumbrance of trust 177 V. Commitment of Children (A.M. No. 203
estate necessary or expedient 02-1-19-SC)
A. Involuntary Commitment of a 204
CHAPTER 3: Escheats 178 Dependent, Abandoned, or
I. When Allowed 178 Neglected Child
II. Duty of court; when petition 179 B. Voluntary Commitment of a 206
sufficient Dependent, Abandoned, or
III. Court shall adjudge that the estate 179 Neglected Child
shall escheat C. Commitment of a Disabled Child 207

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REVIEWER IN REMEDIAL LAW Table of Contents
CHAPTER 5: Other Special Proceedings 209 F. Penalties 232
I. Hospitalization of Insane Persons 209 G. Judgment and Appeal 232
(Rule 101) H. Return of Judgment, Hearing 232
A. Petition for Commitment 209 thereon
B. Petition for Discharge of Insane 209 I. Effects of Other Actions 232
II. Declaration of Absence (Rule 107) 209 J. Other Matters 232
and of Presumptive Death (Arts. IV. Writ Matrix 233
390-392, CC)
A. Absence 210 CHAPTER 8: Corporate Rehabilitation 240
B. Presumption of Death 210 I. Petition for Rehabilitation 240
III. Change of Name and Cancellation 210 II. Stay Order 241
or Correction of Entries in the Civil III. Hearing 242
Registry IV. Corporation plan of rehabilitation 242
A. Change of Name (Rule 103) 210 V. Final Orders and Appeals Therefom 243
B. Change of First name or 211
Nickname and Correction of

SPECIAL PROCEEDINGS
Clerical or Typographical Errors
in Entries in the Civil Registry (RA
9048)
1. Scope and Application 211
2. RA 9048 and Rule 103 211
Compared
3. The Petition 212
C. Cancellation or Correction of 215
Entries in the Civil Registry (Rule
108)
IV. Voluntary Dissolution of 215
Corporations
V. Naturalization 215
CHAPTER 6: Appeals in Special 219
Proceedings

CHAPTER 7: The Writs 220

I. Writ of Habeas Corpus 220
A. To What Habeas Corpus Extends 220
B. Who May Grant the Writ 222
C. Requisites of Application 222
D. When Writ not Allowed or 222
Discharge Authorized
E. When Writ Must be Granted and 223
Issued
F. Aspects of the Return 223
G. When person Lawfully Imprisoned 224
Recommitted, and When let to
Bail
H. When Prisoner Discharged if no 224
Appeal
I. Penalties 225
J. Record of Writ, Fees and Costs 225
II. Writ of Amparo 225
A. General principles 225
B. Aspects of Filing 226
C. Issuance and Service of the Writ 227
D. Aspects of the Return 227
E. Hearing on the Writ 227
F. Allowable Reliefs 228
G. Penalties 229
H. Burden of Proof 229
I. Judgment and Appeal 229
J. Effect of Other Actions 230
K. Other Matters 230
III. Writ of Habeas Data 230
A. General Principles 230
B. Aspects of Filing 230
C. Issuance and Service 231
D. Aspects of Return 231
E. Hearing on the Writ 231

Page 141 of 370

REVIEWER IN REMEDIAL LAW Preliminary Matters

Special Proceedings
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. Te REMEDIAL LAW LECTURES

FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
SPECIAL PROCEEDINGS --------
Samantha Poblacion
DIRECTOR FOR ACADEMICS Choi Ocampo Kae Guerrero
EDITOR-IN-CHIEF LEAD WRITER PRINTING AND DISTRIBUTION
--------
Rania Joya Robin Concepcion Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS Shamby Yambot LOGO, COVER AND TEMPLATE DESIGN
LAYOUT HEAD WRITERS

SPECIAL PROCEEDINGS
Preliminary Matters
A. SPECIAL PROCEEDINGS
B. APPLICABLE RULES
C. VENUES AND JURISDICTIONS FOR
SPECIAL PROCEEDINGS

A. SPECIAL PROCEEDINGS
A remedy by which a party seeks to
establish a status, right or a particular
fact (Rule 1, Sec. 3(c)).

B. APPLICABLE RULES
If special rules are provided, they shall
apply. But in the absence of such
special provisions, the rules applicable
in special proceedings shall be applied
(Rule 72, Sec. 2).
There are special proceedings which are
not part of the ROC (e.g. Writs of
amparo and habeas data), as special
proceedings are in general cases
wherein one seeks to establish the
status/right of a party or a particular
fact.
The State has an overriding interest in
each special proceeding, and the matter
is not a controversy between private
parties purely (Bautista).
The distinction between final and
interlocutory orders in civil actions for
purposes of determining the issue of
applicability, is not strictly applicable to
orders in special proceedings, Rule 109
specifies the orders from which appeals
may be taken (Regalado).
Rule 33 regarding judgment on
demurrer to evidence is applicable to
special proceedings (Matute v. CA
(1969)).

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REVIEWER IN REMEDIAL LAW Preliminary Matters

C. VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

(Asked in the 1997 bar examinations)

Special Proceeding Venue Jurisdiction

Settlement of the Residence of the decedent MTC if gross value of the
Estate of a Deceased If non-resident, place where he had an estate estate does not exceed P
Person 300,000, or does not exceed
P400,000 in Metro Manila
- Else, RTC
Escheat Person dies intestate leaving no heir RTC
Residence of the decedent or if non-resident,
place where he had estate
Reversion where land lies in whole or in RTC
part
Unclaimed Balances Act where deposits are RTC

SPECIAL PROCEEDINGS
located
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Where will was allowed or RTC
Trustees Where the property or portion thereof
affected by the trust is situated
Adoption Domestic where adopter resides Family Court
ICAB where adoptee resides if filed with the Family Court or ICAB
family court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case there is
no RTC judge
Sandiganbayan only in aid of
its appellate jurisdiction
For the custody of minors, where petitioner Family Court, CA, SC
resides or where minor may be found
Habeas Data Where the petitioner or respondent resides, RTC generally
or that which has jurisdiction over the place If concerning public data files
where the data or information is gathered, or government offices, SC, CA
collected, or stored, at the option of the or Sandigabayan
petitioner
Amparo Where the threat, act or omission was RTC, Sandiganbayan, CA, SC
committed or any of its elements occurred or any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/ Philippine
Local civil registry where the record consulate
sought to be changed is kept
Local civil registry of the place of
residence of the interested party (only if
petitioner migrated to another place in the
Philippines and it is impractical to file
where records sought to be changed are
kept)
Philippine consulates only for non-
resident citizen
Appoinment of Where Absentee resides before his RTC
Representative of disappearance
Absentee/ Declaration
of Absence
Cancellation / Judicial - Where corresponding civil registry RTC
Correction of Entries is located
in Civil Registries Administrative - Same as change of name Local Civil Registry/ Philippine
consulate
Petition for declaration Where petitioner or respondent has been Family Court
of nullity, annulment, residing for at least 6 months prior to the
legal separation date of filing
If non-resident petitioner, where he may be
found at the election of the petitioner

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REVIEWER IN REMEDIAL LAW Chapter 1: General Provisions

Chapter 1: General Provisions II. Difference Between Action and

I. SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
II. DIFFERENCE BETWEEN ACTION AND
SPECIAL PROCEEDING
I. Subject Matter and Applicability
of General Rules
Rules of special proceedings are
provided for in the following cases:
1. Settlement of estate of deceased
persons;
Special Proceeding
Action - formal demand of ones right in
a court of justice in the manner
prescribed by the court or by the law
(Herrera).
Special proceeding - application or
proceeding to establish the status or
right of a party, or particular fact. No
formal pleadings are required, unless
the statute expressly so provides
(Herrera).

SPECIAL PROCEEDINGS
2. Escheat; Ordinary Action Special Proceeding
3. Guardianship and custody of To protect/enforce a To establish a
children; right or prevent/ right/status/fact
4. Trustees; redress a wrong
5. Adoption; Involves 2 or more May involve only 1
parties party
6. Rescission and revocation of
Governed by ordinary Governed by special
adoption; rules supplemented rules, supplemented by
7. Hospitalization of insane persons; by special rules ordinary rules
8. Habeas corpus; Initiated by pleading, Initiated by petition,
9. Change of name; and parties respond parties respond through
10. Voluntary dissolution of through an answer an opposition
corporations;
11. Judicial approval of voluntary
recognition of minor natural
children;
12. Constitution of family home;
13. Declaration of absence and death;
14. Cancellation of correction of entries
in the civil registry.
In the absence of special provisions, the
rules provided for in ordinary ctions
shall be, as far as practicable,
applicable in special proceedings.

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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons

Chapter 2: Settlement of Estate of Jurisdiction: court first taking

Deceased Persons cognizance shall exercise jurisdiction to
the exclusion of all other courts.
The jurisdiction assumed by a court, so
I. VENUE AND PROCESS
II. SUMMARY SETTLEMENT OF ESTATE far as it depends on the place of
III. PRODUCTION OF WILL. ALLOWANCE OF residence of the decedent, or of the
WILL NECESSARY location of his estate, shall not be
IV. ALLOWANCE OR DISALLOWANCE OF contested in a suit or proceeding,
WILL except:
V. RULE 77 ALLOWANCE OF WILL PROVED In an appeal from that court, in the
OUTSIDE OF PHILIPPINES AND original case, OR
ADMINISTRATION OF ESTATE When the want of jurisdiction appears
THEREUNDER
on the record.
VI. LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO WHOM

SPECIAL PROCEEDINGS
ISSUED Conversion of an intestate into
VII. RULE 79 OPPOSING ISSUANCE OF testate proceeding
LETTERS TESTAMENTARY. PETITION A matter of form and lies within the
AND CONTEST FOR LETTERS OF sound discretion of the court.
ADMINISTRATION
VIII. RULE 80 SPECIAL ADMINISTRATOR 1. Jurisdiction of MTCs
IX. RULE 81 BOND OF EXECUTORS AND When the value of the estate does not
ADMINISTRATORS
exceed P300,000 or P400,000 in Metro
X. REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION, AND REMOVAL Manila.
OF EXECUTORS OR ADMINISTRATORS
XI. INVENTORY AND APPRAISAL. PROVISION 2. Rule 73 relates to venue and not to
FOR SUPPORT OF FAMILY jurisdiction
XII.GENERAL POWERS AND DUTIES OF The place of residence of the deceased
EXECUTORS AND ADMINISTRATORS in settlement of estates, probate of will,
XIII. ACCOUNTABILITY AND and issuance of letters of administration
COMPENSATION OF EXECUTORS AND does not constitute an element of
ADMINISTRATORS
jurisdiction over the subject matter. It is
XIV. CLAIMS AGAINST ESTATE
XV. ACTIONS BY AND AGAINST EXECUTORS only constitutive of venue.
AND ADMINISTRATORS 3. Meaning of term resides
XVI. PAYMENT OF THE DEBTS OF THE Resides - in the section is viewed in its
ESTATE popular sense, meaning, the personal,
XVII. SALES, MORTGAGES, AND OTHER actual or physical habitation of a
ENCUMBRANCES OF PROPERTY OF person, actual residence of place of
DECEDENT abode.
XVIII. DISTRIBUTION AND PARTITION OF 4. Probate court is of limited
THE ESTATE
jurisdiction
XIX. TRUSTEES
General rule: When questions arise as
to ownership of property alleged to be
I. VENUE and PROCESS part of the estate of the deceased but
claimed by some other person to be his
A. WHERE ESTATE OF DECEASED PERSONS
property, not by virtue of any right of
SETTLED
B. WHERE ESTATE SETTLED UPON inheritance from the deceased but by
DISSOLUTION OF MARRIAGE title adverse to that of the deceased and
C. PROCESS his estate, such questions cannot be
D. PRESUMPTION OF DEATH determined in the courts of
administration proceedings. It must be
A. Where Estate of Deceased Persons settled in a separate action.
Settled For the purpose of determining whether
a certain property should or should not
If decedent is: be included in the inventory of the
Inhabitant of the Philippines at time of estate proceeding, the probate court
death (citizen/alien) RTC of the may pass upon the title thereto, but
province in which he resides such determination is provisional, not
Inhabitant of foreign country RTC of conclusive, and is subject to final
any province in which he had estate decision.

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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
Exception: Questions to title to any II. SUMMARY SETTLEMENT OF
property apparently still belonging to ESTATE
the estate of the deceased may be
passed upon in the probate court, with A. EXTRAJUDICIAL SETTLEMENT BY
consent of all the parties, without AGREEMENT BETWEEN HEIRS
prejudice to third persons (Trinidad v. B. SUMMARY SETTLEMENT OF SMALL VALUE
CA). C. BOND TO BE FILED BY DISTRIBUTEES
5. Nature of proceedings: In rem. D. LIABILITY OF DISTRIBUTEES AND ESTATE
E. PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
B. Where Estate Settled upon
Dissolution of Marriage
A. Extrajudicial Settlement by
a. If one spouse died: the community
Agreement between Heirs
property shall be inventoried, (Asked in the 2005 Bar Examinations)

administered, and liquidated, and the
debts thereof paid, in the testate or
intestate proceedings of the deceased
spouse.
b. If both spouses have died: the
conjugal partnership shall be liquidated
in the testate or intestate proceedings of
either.
C. Process
RTC may issue:
a. Warrants and process necessary:
i. To compel attendance of
witnesses
ii. To carry into effect their orders
and judgments
b. All other powers granted by law
c. Warrant for the apprehension and
imprisonment if a person does not
perform an order or judgment
rendered by the court until he
performs or is released.
D. Presumption of Death
Presumption of death - if absent or
unheard of for the periods fixed in CC
If proven to be alive:
a. He shall be entitled to the balance of
estate.
b. Recovered by motion in the same
proceeding.
For purposes of settlement of his estate
only
No independent action for declaration of
presumption of death.
SPECIAL PROCEEDINGS
1. Procedure:
a. Death of the decedent
b. Division of estate in public
instrument or affidavit of
adjudication
c. The public instrument or affidavit of
adjudication must be filed with the
proper Registry of Deeds
d. Publication of notice of the fact of
extrajudicial settlement once a week
for 3 consecutive weeks in a
newspaper of general circulation
e. Filing of bond equivalent to the
value of personal property
2. Requisites:
a. No will
b. No debts
o However, it is enough to meet
the requirement of no debts if
the heirs have already paid such
at the time of partition
c. Heirs are all of age or the minors are
represented by their judicial or legal
representatives
3. If there is no disagreement between
the heirs
The parties may divide the estate among
themselves by means of a public
instrument filed in the office of register
of deeds
4. If there is disagreement
They may divide the estate in an
ordinary action of partition.
5. If only 1 heir
He may adjudicate to himself the entire
estate by means of affidavit filed in the
office of register of deeds
6. Requirement common to all
instances
File a bond equal to the value of the
personal property involved as certified
to under oath by the parties,

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REVIEWER IN REMEDIAL LAW
conditioned upon the payment of any
just claim that may be filed
It shall be presumed that the decedent
left no debts if no creditor files a
petition for letters of administration
within 2 years after the death of the
decedent.
7. Publication
Fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation 3
times a week, once each week;
8. Not binding on any person who:
a. Has not participated in the
extrajudicial settlement.
b. Had no notice thereof.
9. Judicial Administration
General Rule: when a person dies
leaving property, the same should be
judicially administered and the
competent court should appoint a
qualified administrator, in the order
established in Sec 6. of Rule 78, in case
the deceased left no will, or in case he
had left one, should he fail to name an
executor therein.
Exception: Summary settlement of
estate.
10. Different modes of settlement of
estate of deceased:
a. Extrajudicial settlement of estate
b. Partition
c. Summary settlement of estates of
small value
d. Probate of will
e. Petition for letters of administration
in intestacy.
11. Judicial administration not favored
When a person dies without leaving
pending obligations to be paid, his
heirs, whether of age of not, are not
bound to submit the property to a
judicial administration, which is always
long and costly, or to apply for the
appointment of an administrator by the
court.
In such case the judicial administration
and the appointment of an
administrator are superfluous and
unnecessary proceedings.
There must be good reason to warrant
judicial administration. Among those
NOT good reasons:
Dispute among heirs;
Multiplicity of suits;
To have legal capacity to appear.
Chapter 2: Settlement of Estate of Deceased Persons
12. Validity of oral partition
VALID, because there is no law that
requires partition among heirs to be in
writing to be valid
13. Validity of Compromise agreement
VALID, binding upon the parties as
individuals, upon the perfection of the
contract, even without previous
authority of the court to enter into such
agreement.
B. Summary Settlement of Small
Value
SPECIAL PROCEEDINGS
This shall be applicable to testate or
intestate proceedings
1. Procedure:
a. Death of the decedent
b. An application for summary
settlement with an allegation that
the gross value of the estate does
not exceed P10K
c. Publication of notice of the fact of
extrajudicial settlement once a week
for 3 consecutive weeks in a
newspaper of general circulation
(the court may also order notice to
be given to other persons as such
court may direct)
d. Hearing to be held not less than 1
month nor more than 3 months
from the date of the last publication
of notice
e. Court to proceed summarily,
without appointing an
executor/administrator (e/a), and to
make orders as may be necessary
f. Grant allowance of the will, if any
g. Determine persons entitled to estate
h. Pay debts of estate which are due
i. Filling of bond fixed by the court
j. Partition of estate.
2. Requisites:
a. Gross value of estate: x < P10,000
(now x < P300,000 outside Metro
Manila and x < 400,000 in Metro
Manila)
b. Fact is made to appear to the RTC
c. Through petition of an interested
person
d. Upon hearing
i. Held not less than 1 month nor
more than 3 months
ii. Counted from the date of the
last publication of a notice
e. Notice
i. Which shall be published once a
week for 3 consecutive weeks
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
ii. In a newspaper of general satisfying such lawful
circulation in the province participation
iii. Note that it is not required that There are debts outstanding which have
publication be for a complete 21 not been paid.
days. What is required is that it An heir or other person has been
be published for once a week for unduly deprived of his lawful
3 consecutive weeks. participation payable in money
f. Notice to interested persons as the The court having jurisdiction of the
court may direct. estate may,
Upon fulfillment of the requisites, the by order for that purpose,
court may proceed summarily after hearing,
Without the appointment of an e/a settle the amount of such debts or
Without delay, lawful participation, and
To grant, if proper, allowance of the order how much and in what manner

SPECIAL PROCEEDINGS
will, if any there be, each distributee shall contribute in
the payment thereof, and
3. Court will: may issue execution, if circumstances
Determine who are the persons require, against the bond provided
legally entitled to participate in the in the preceding section or against
estate, the real estate belonging to the
Apportion and divide it among them deceased, or both.
after the payment of such debts of Such bond and real estate shall remain
the estate as the court shall then charged with a liability to creditor, heirs
find to be due or other persons for the full period of 2
Afterwards, the heirs shall be entitled to years after such distribution,
receive and enter into the possession of notwithstanding any transfers of real
the portions of the estate so awarded to estate that may have been made.
them respectively.
There is no requirement regarding the 1. Duty of the court:
lack of debts (unlike extrajudicial Hear the case
partition) in summary settlement of Settle the amount
estates of small value since the court Order how much and in what manner
will make provisions for such in its each distribute shall contribute in the
resolution of the proceedings payment thereof
If circumstances require, issue
4. Recording: execution against the bond, or the real
Orders and judgments clerk of court estate belonging to the deceased, or
Order of partition or award of real estate both
registrars office
2. Bond and real estate remain
C. Bond to Be Filed by Distributees charged
with a liability to creditors, heirs, or
1. Optional bond by distributees other persons for the full period of 2
Before allowing partition years after such distribution,
For those movables/ personal notwithstanding any transfers of real
properties forming the estate estate that may have been made
Conditioned for the payment of any just
claim which may be filed. 3. Rule not applicable:
a. To persons who have participated or
taken part or had notice of the
D. Liability of Distributees and
extrajudicial partition
Estate
b. When the provisions of Sec. 1 of
If it shall appear within 2 years after the Rule 74 have been strictly complied
settlement and distribution (summary with (all persons or heirs of the
settlement): decedent have taken part in the
An heir or other person extrajudicial settlement or are
Has been unduly deprived of his lawful represented by themselves or
participation in the estate through guardians)
o He shall have a right to compel This is only a bar against the parties
the settlement of the estate in who had taken part in the
the courts for the purpose of extrajudicial proceedings, but

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REVIEWER IN REMEDIAL LAW
not against third persons not
parties thereto
4. Prescriptive period
Action to annul a deed of extrajudicial
settlement upon the ground of fraud
may be filed within 4 years from the
discovery of the fraud (deemed to have
taken place when said instrument was
filed with the Register of Deeds and new
certificates of title were issued in the
name of respondents respectively).
However in Amerol v. Bagumbaran (154
SCRA 396), the Court applied the New
Civil Code. Under Article 1144 (NCC),
the following actions must be brought
within 10 years from the time the right
of action accrues: (1) upon a written
contract; (2) upon an obligation created
by law; (3) upon a judgment.
Since implied or constructive trusts are
obligations created by law, then the
prescriptive period to enforce the same
prescribes in 10 years. Thus, an action
for reconveyance based on an implied or
constructive trust must perforce
prescribe in 10 years and not otherwise.
5. Exception:
Prescriptive period for the filling of the
action for reconveyance based on
implied trust should be reckoned from
the actual discovery of the fraud where
the registration where there was bad
faith in securing the certificates of titles
and, is therefore a holder of the said
certificate in bad faith. The Torrens title
does not furnish a shield for fraud.
6. Rescission
is the proper remedy for preterition.
E. Period for Claim of Minor or
Incapacitated Person
If on the date of the expiration of the
period of 2 years prescribed in the
preceding section the person authorized
to file a claim is:
a minor or mentally incapacitated, or is
in prison or
outside the Philippines,
he may present his claim within 1 year
after such disability is removed.
Chapter 2: Settlement of Estate of Deceased Persons
III.PRODUCTION OF WILL.
ALLOWANCE OF WILL
NECESSARY
(Asked in the 2002 Bar Examinations)
A. ALLOWANCE NECESSARY. CONCLUSIVE
AS TO EXECUTION
B. CUSTODIAN OF WILL TO DELIVER
C. EXECUTOR TO PRESENT WILL AND
ACCEPT OR REFUSE TRUST
D. CUSTODIAN AND EXECUTOR SUBJECT TO
FINE FOR NEGLECT
E. PERSON RETAINING WILL MAY BE
COMMITTED
SPECIAL PROCEEDINGS
A. Allowance Necessary. Conclusive
as to Execution
No will shall pass either real or personal
estate unless it is proved and allowed in
the proper court.
Subject to the right of appeal, such
allowance of the will shall be conclusive
as to its due execution.
Probate of will is mandatory.
1. Procedure:
a. Death of the decedent;
b. Petition for probate of the will, if
any;
c. Court order fixing the time and
place for probate;
d. The court shall cause notice of such
time and place to be published 3
weeks successively in a newspaper
of general circulation. Notice shall
also be given to the
designated/known heirs, legatees
and devisees, and the executor if the
one petitioning for allowance of the
will is not the testator;
e. Issuance of letters testamentary/
administration;
f. Filling of claims;
g. Payment of claims; sale/mortgage/
encumbrance of estate properties;
h. Distribution of remainder, if any
(but can be made before payment if
bond is filled by the heirs).
2. Probate does not look into intrinsic
validity
Probate is merely the determination of
whether or not the testator, being of
sound mind, freely executed the will in
accordance with the formalities
prescribed by law
Exception: Under exceptional
circumstances, the probate court is not
powerless to do what the situation
constrains it to do and pass upon
certain provisions of the will. It may
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
pass upon the intrinsic validity of the IV. ALLOWANCE OR DISALLOWANCE
will because there is apparent defect in OF WILL
its face this is also known as the (Asked in the 2003, 2005, and 2006
principle of practical consideration Bar Examinations)
(Nepomuceno v. CA).
Example: on the face of the will the A. WHO MAY PETITION FOR THE
petitioner appears to be preterited ALLOWANCE OF WILL
But remedy of certiorari is available, B. CONTENTS OF THE PETITION
where the grounds for dismissal are C. COURT TO APPOINT TIME FOR PROVING
indubitable (e.g. grave abuse of WILL. NOTICE THEREOF TO BE
discretion of the judge when there is PUBLISHED
D. HEIRS, DEVISEES, LEGATEES, AND
clearly preterition and the said judge
EXECUTORS TO BE NOTIFIED BY MAIL OR
still continues the probate proceedings) PERSONALLY
Decree of probate is conclusive as to its E. PROOF AT HEARING. WHAT SUFFICIENT IN

due execution
Suit for forgery of a will, which has been
duly probated and such order
becoming final, bars such suit
because the will is conclusively
deemed as duly executed.
B. Custodian of Will to Deliver
1. Custodian of will
Within 20 days after knowledge of
death.
Deliver the will to the court or the
executor named in the will.
Failure to attach original of will to
petition not critical where will itself was
adduced in evidence. It is not necessary
to attach original will to petition for
probate.
C. Executor to Present Will and
Accept or Refuse Trust
The Executor named in will:
Within 20 days of
o Knowledge of death
o Or knowledge that he is named
as executor
Present such will to the court
o Unless the will is already with
the court
Signify in writing WON he accept the
trust or refuse it
D. Custodian and Executor Subject
to Fine for Neglect
Fine for negligence of duties (S2 and
S3) without excuse x < P1,000
E. Person Retaining Will May Be
Committed
Imprisonment for custodian - when he
neglects to deliver when ordered to do
so
SPECIAL PROCEEDINGS
ABSENCE OF CONTEST
F. PROOF OF LOST OR DESTROYED WILL.
CERTIFICATE THEREUPON
G. PROOF WHEN WITNESSES DO NOT
RESIDE IN PROVINCE
H. PROOF WHEN WITNESSES DEAD OR
INSANE OR DO NOT RESIDE IN THE
PHILIPPINES
I. GROUNDS FOR DISALLOWANCE OF WILL
J. CONTESTANT TO FILE GROUNDS FOR
CONTEST
K. SUBSCRIBING WITNESSES PRODUCED OR
ACCOUNTED FOR WHERE WILL
CONTESTED
L. PROOF WHERE TESTATOR PETITIONS FOR
ALLOWANCE OF HOLOGRAPHIC WILL
M. CERTIFICATE OF ALLOWANCE ATTACHED
TO PROVE WILL. TO BE RECORDED IN
THE OFFICE OF REGISTER OF DEEDS
A. Who May Petition for the
Allowance Of Will
Petitioner for the allowance of the will
a. Executor
b. Devisee
c. legatee
d. other person interested in the estate
e. testator himself, during his lifetime
1. Meaning of interest in estate
In order that a person may be allowed
to intervene in a probate proceeding he
must have an interest in the estate, or
in the will, or in the property to be
affected by it either as executor or as a
claimant of the estate and an interested
party is one who would be benefited by
the estate such as an heir or one who
has claim against the estate like a
creditor.
2. Jurisdiction, how acquired:
Attaching a mere copy of will; or
Delivery of will, even if no petition is
filed; or
Filing of the original petition and
compliance with Sec 3-4 Rule 76.

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B. Contents of the Petition
a. Jurisdictional facts
b. Names, ages, and residences of the
heirs, legatees, and devisees of the
testator or decedent
c. Probable value and character of the
property of the estate
d. Name of the person for whom letters are
prayed
e. If the will has not been delivered to the
court, the name of the person having
custody of it.
1. Defect in petition
will not void the allowance of the will, or
the issuance of letters testamentary or
of administration with the will annexed.
2. Jurisdictional facts:
Death of the decedent
Residence at the time of death in the
province where the probate court is
sitting
Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
C. Court to Appoint Time for Proving
Will. Notice Thereof to Be
Published
1. Duty of court having jurisdiction
Fix a time and place for proving the will
Cause notice of such time and place
Which notice to be published 3 weeks
successively previous to the time
appointed in newspaper of general
circulation in the province
o No publication needed - petition
for probate has been filed by the
testator himself
2. Notice requirement
The requirement of law for allowance of
will was not satisfied by mere
publication of notice of hearing. Notice
of hearing to the designated heirs,
legatees and devisees is required.
D. Heirs, Devisees, Legatees, and
Executors to Be Notified by Mail
or Personally
It is the duty of the court to cause
copies of the notice to be addressed to
the:
Designated or other known heirs,
legatees and devisees of the testator
resident in the Philippines
Chapter 2: Settlement of Estate of Deceased Persons
Notice to be deposited in the post
office postage prepaid
At least 20 days before hearing
If such residence is known
Executor, if he be not the petitioner
Co-executor not petitioning
If residence known
Personal service - equal to mailing,
provided done 10 days before hearing.
Testator as petitioner - notice shall be
sent only to his compulsory heirs.
E. Proof at Hearing. What Sufficient
in Absence of Contest
SPECIAL PROCEEDINGS
During hearing:
Before introduction of will
o Compliance with notice
requirement must be shown
before introduction of will
o Testimony taken under oath and
reduced to writing.
No contest - Court will allow:
o On the testimony of 1 witness
o In absence of such, expert
testimony may be resorted to.
F. Proof of Lost or Destroyed Will.
Certificate Thereupon
1. Proof of lost or destroyed will (Asked
in the 1999 Bar Examinations)-
2. Establish the
Execution and validity of the will
Have been existence the time of death
or shown to be fraudulently or
accidently destroyed in the lifetime of
testator without his knowledge
Provisions are clearly and distinctly
proved by a least 2 credible witnesses
When a lost will is proved, the
provisions thereof must be distinctly
stated and certified by the judge, under
the seal of the court, and the certificate
must be filed and recorded as other
wills are filed and recorded
G. Proof When Witnesses Do Not
Reside in Province
1. Depositions, when made:
None of the subscribing witnesses
resides in the province
But the deposition of one or more of
them can be taken elsewhere
Court may direct deposition to be taken
and authorize:
Photocopy of the will made and
presented to the witness on his
examination
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REVIEWER IN REMEDIAL LAW
H. Proof When Witnesses Dead or
Insane or Do Not Reside in the
Philippines
1. Subscribing witnesses dead, insane or
outside the Philippines:
Court may admit the testimony of other
witnesses to prove the
sanity of testator,
due execution of the will,
proof of handwriting of testator and of
subscribing witnesses
I. Grounds for Disallowance of Will
1. If not executed and attested as required
by law;
2. If the testator was insane, or otherwise
mentally incapable to make a will, at
the time of its execution;
3. If executed under duress, or the
influence of fear, or threats;
4. If procured by undue and improper
pressure and influence, on the part of
the beneficiary, or of some other person
for his benefit;
5. If the signature of the testator was
procured by fraud or trick, and he did
not intend that the instrument should
be his will at the time of fixing his
signature thereto
The grounds for disallowance of will are
exclusive.
Separate wills may be probated jointly.
J. Contestant to File Grounds for
Contest
1. Duty of contestant:
State in writing the grounds for
opposition
Serve a copy thereof on the petitioner
and other parties interested in the
estate
K. Subscribing Witnesses Produced
or Accounted for Where Will
Contested
1. With contest
Witnesses present and not insane
All the subscribing witnesses and the
notary must be produced and
examined
Death, absence, or insanity of any of
them must be satisfactorily shown
to the court
Chapter 2: Settlement of Estate of Deceased Persons
All or some of such witnesses present in
the Philippines but outside the province
- deposition must be taken.
Any or all of them testify against due
execution or do not remember having
attested to it, or are otherwise of
doubtful credibility - allowed, provided
court is satisfied from the testimony of
other witnesses and from all evidence
presented that the will was executed
and attested in accordance with law
2. Holographic will
Allowed if 3 witnesses who know the
handwriting of the testator testify to
SPECIAL PROCEEDINGS
such; expert testimony may also be
resorted to, nut both still needs be to
the satisfaction of the courts.
L. Proof Where Testator Petitions for
Allowance of Holographic Will
Petition by testator himself of
holographic will
1. If there are no contests in
holographic wills
The fact that the affirms that the
holographic will and the signature are
in his own handwriting, shall be
sufficient evidence of the genuineness
and due execution thereof
2. If with contest
the burden of disproving the
genuineness and due execution thereof
shall be on the contestant
M. Certificate of Allowance Attached
to Prove Will. To Be Recorded in
the Office of Register of Deeds
1. When will allowed
Court will issue certificate of allowance
Signed by judge
Attested by the seal of the court
Attached to the will
Will and certificate filed and
recorded by the clerk
If real estate is involved, both
will and certificate shall be
recorder in the register of deeds
in the province where the real
estate is
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REVIEWER IN REMEDIAL LAW
V. ALLOWANCE OF WILL PROVED
OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE
THEREUNDER
A. WILL PROVED OUTSIDE THE PHILIPPINES
B. REQUISITES FOR ALLOWANCE:
C. WHEN WILL ALLOWED, AND EFFECT
THEREOF
D. ESTATE, HOW ADMINISTERED
A. Will Proved Outside The
Philippines
Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and
recorded by the proper Court of First
Instance in the Philippines.
B. Requisites for Allowance
1. Copy of the will
2. Order or decree of the allowance in
foreign country
3. Filed with a petition for allowance in the
Philippines by executor or other person
interested
4. Court shall fix a time and place for the
hearing
5. Cause notice thereof to be given as in
case of an original will presented for
allowance.
C. When Will Allowed, and Effect
Thereof
1. Such will allowed:
Certificate of allowance:
Signed by judge
Attested by the seal of the court
Attached to the copy of the will
Filed and recorded by the clerk
The will shall have the same effect as
originally proven and allowed by such
court
D. Estate, How Administered
Court shall grant letters testamentary
or letters of administration
Which shall extend to all the estate of
the testator in the Philippines
Such estate shall be disposed of
according to such will (after payment of
debts and expenses of administration)
The residue shall be disposed of as is
provided by law in cases of estates in
the Philippines belonging to persons
who are inhabitants of another state or
country.
Chapter 2: Settlement of Estate of Deceased Persons
1. Territorial limits of administration
Administration extends only to the
assets of the decedent found within the
state or country where it was granted,
so that an administrator appointed in
one state or country has no power over
property in another state or country.
2. Need for ancillary administration
When a person dies owning property in
the country of his domicile as well as in
foreign country, administration shall be
had in both countries.
That which is granted in the jurisdiction
SPECIAL PROCEEDINGS
of the decedents domicile is termed the
principal administration, while any
other administration is termed ancillary
administration.
VI. LETTERS TESTAMENTARY AND
OF ADMINISTRATION, WHEN AND
TO WHOM ISSUED
(Asked in the 1998, 2002, and 2005
Bar Examinations)
A. WHO CANNOT SERVE AS EXECUTORS OR
ADMINISTRATORS
B. THE EXECUTOR OF AN EXECUTOR SHALL
NOT, AS SUCH, ADMINISTER THE ESTATE
OF THE FIRST TESTATOR.
C. MARRIED WOMAN MAY SERVE
D. LETTERS TESTAMENTARY ISSUED WHEN
WILL ALLOWED
E. WHERE SOME CO-EXECUTORS
DISQUALIFIED OTHERS MAY ACT
F. WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED
A. Who Cannot Serve as E/A:
1. Minor;
2. Not a resident of the Philippines; and
3. In the opinion of the court unfit to
execute the duties of the trust by reason
of drunkenness, improvidence, or want
of understanding or integrity, or by
reason of conviction of an offense
involving moral turpitude.
B. The executor of an executor shall
not, as such, administer the
estate of the first testator.
C. Married Woman May Serve
A married woman may serve as e/a,
and the marriage of a single woman
shall not affect her authority so to serve
under a previous appointment.
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REVIEWER IN REMEDIAL LAW
D. Letters Testamentary Issued
When Will Allowed
1. Letters testamentary, when issued:
Will has been proved and allowed
The court shall issue letters
testamentary thereon to the person
named as executor therein,
if he is competent, accepts the trust,
and gives bond as required by these
rules
E. Where Some Co-Executors
Disqualified, Others May Act
When all of the executors named
cannot act because of
a. incompetency,
b. refusal to accept the trust, or
c. failure to give a bond, on the part of
one or more of them,
letters testamentary may issue to such
of them as are competent, accept and
give bond, and they may perform the
duties and discharge the trust required
by the will
F. When and to Whom Letters of
Administration Granted
1. Requisites:
No executor named; or
Executor or executors are incompetent,
refuse the trust, or fail to give bond; or
Or person dies intestate.
2. Administration shall be granted to:
a. Surviving spouse or next of kin,
or both, or to such person as the
surviving spouse, or next of kin
requests to have appointed, if
competent and willing to serve.
b. If those in (a) be incompetent or
unwilling, or if the husband or
widow, or next of kin, neglects for
30 days after the death of the
person to apply for administration
or to request that administration be
granted to some other person, it
may be granted to one or more of
the principal creditors, if
competent and willing to serve.
c. If no (b), it may be granted to such
other person as the court may
select.
3. Reason for order of preference
Those who would reap the benefit of a
wise, speedy and economical
administration of the estate, or, on the
other hand, suffer the consequences of
Chapter 2: Settlement of Estate of Deceased Persons
waste, improvidence or
mismanagement, have the highest
interest and most influential motive to
administer the estate correctly.
Mere failure to apply for letters of
administration does not remove
preference.
4. 30-day period may be waived
Just as the order of preference is not
absolute and may be disregarded for
valid cause, so may the 30-day period
be likewise waived under the permissive
tone in paragraph (b) of said rule which
merely provides that said letters as an
SPECIAL PROCEEDINGS
alternative, may be granted to one or
more of the principal creditors.
Co-administrators may be appointed.
Court may reject order of preference
when circumstances warrant.
VII. OPPOSING ISSUANCE OF
LETTERS TESTAMENTARY,
PETITION AND CONTEST FOR
LETTERS OF ADMINISTRATION
A. OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY
B. CONTENTS OF PETITION FOR LETTERS OF
ADMINISTRATION
C. COURT TO SET TIME FOR HEARING.
NOTICE THEREOF
D. OPPOSITION TO PETITION FOR
ADMINISTRATION
E. HEARING AND ORDER FOR LETTERS TO
ISSUE
F. WHEN LETTERS OF ADMINISTRATION
GRANTED TO ANY APPLICANT
A. Opposition to Issuance of Letters
Testamentary
Any person interested in will;
State in writing the grounds;
Then the court shall hear.
A petition may, at the time, be filed for
letters of administration with the will
annexed.
Lack of interest in the proceedings is
equal to lack of legal capacity to
institute proceedings.
1. But issue of lack of interest may be
barred by estoppel under the Omibus
Motion rule.
Example: When respondent did not file
a Motion to Dismiss on the ground of
lack of capacity to sue, but instead filed
an Opposition.
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REVIEWER IN REMEDIAL LAW
B. Contents of Petition for Letters of
Administration
1. Jurisdictional facts;
2. Names, ages, and residences of the
heirs, and the names and residences of
the creditors, of the decedent;
3. Probable value and character of the
property of the estate;
4. Name of the person for whom letters of
administration are prayed.
But no defect in the petition shall
render void the issuance of letters of
administration.
C. Court to Set Time for Hearing.
Notice Thereof
1. Duty of court
a. To fix a time and place for hearing
such petition
b. Cause notice thereof to be given to
known heirs and creditors and to
any other persons believed to have
an interest
2. Notice requirement is jurisdictional
The probate court must cause notice
through publication of the petition after
it receives the same
Where no notice has been given to
persons believed to have an interest
in the estate, the proceedings for the
settlement of the estate is void and
should be annulled.
D. Opposition to Petition for
Administration
1. Contest to such petition
Any interested person may file a written
opposition to contest the petition
2. Grounds:
a. Incompetency of the person for
whom letters are prayed, or
b. contestants own right to the
administration
He may pray that letters issue to
himself, or to any competent person or
person named in the opposition.
E. Hearing and Order for Letters to
Issue
1. Hearing of the petition
Show that notice has been given as
hereinabove required, and thereafter the
court shall hear the proofs of the parties
Chapter 2: Settlement of Estate of Deceased Persons
in support of their respective
allegations, and if
a. Satisfied that the decedent left no
will, or
b. That there is no competent and
willing executor,
It shall order the issuance of letters of
administration to the party best entitled
F. When Letters of Administration
Granted to Any Applicant
Letters of administration may be
granted to any qualified applicant,
though it appears that there are other
SPECIAL PROCEEDINGS
competent persons having better right
to the administration, if such persons
fail to appear when notified and claim
the issuance of letters to themselves
VIII. RULE 80 SPECIAL
ADMINISTRATOR (SA)
A. APPOINTMENT OF SPECIAL
ADMINISTRATOR
B. POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR
C. WHEN SPECIAL ADMINISTRATOR CEASE;
DUTIES
A. Appointment of SA
1. SA will be appointed:
When there is delay in granting letters
testamentary or administration; or
By any cause, including an appeal from
allowance or disallowance of a will.
2. Special administrator:
Will take possession and charge of the
estate
Until:
the questions causing the delay are
decided and
e/a appointed
3. There must first be notice and
publication
Notice through publication of the
petition is a jurisdictional requirement
even in the appointment of a SA.
Appointment of special administrator
lies entirely in the sound discretion of
the court.
4. Order of appointment is
discretionary
The basis for appointing a special
administrator is broad enough to
include any cause or reason for delay in
granting letters testamentary or of
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REVIEWER IN REMEDIAL LAW
administration as where a contest as to
the will is being carried on in the same
or in another court, or where there is an
appeal pending as to the proceeding on
the removal of an e/a, or in cases where
the parties cannot agree among
themselves.
The phrase by any cause includes
those incidents clearly showing that
there is a delay in the probate of the will
and that the granting of letters
testamentary will consequently be
prolonged necessitating the immediate
appointment of a special administrator
5. Duty to submit an inventory
SA is also duty bound to submit an
inventory of the estate
6. Nature of appointment of SA
An order appointing a special
administrator is interlocutory in nature,
a mere incident to the judicial
proceedings. No appeal lies herein
B. Powers and Duties of SA
Take possession and charge of the
goods, chattels, rights, credits, and
estate of the deceased and
Preserve the same for the e/a
afterwards appointed,
and for that purpose may commence
and maintain suits as administrator.
May sell only such perishable and other
property as the court orders sold.
Not liable - to pay any debts of the
deceased unless so ordered by the
court.
C. When Special Administrator
Cease; Duties
When letters testamentary/
administration are granted on the estate
of the deceased
He shall deliver to the e/a the goods,
chattels, money, and estate of the
deceased in his hands.
The e/a may prosecute to final
judgment suits commenced by such
SA.
Chapter 2: Settlement of Estate of Deceased Persons
IX. BOND OF EXECUTORS AND
ADMINISTRATORS
A. BOND TO BE GIVEN ISSUANCE OF
LETTERS. AMOUNT. CONDITIONS.
B. BOND OF EXECUTOR WHERE DIRECTED
IN WILL. WHEN FURTHER BOND
REQUIRED
C. BONDS OF JOINT EXECUTORS &
ADMINISTRATORS
D. BOND FOR SPECIAL ADMINISTRATOR
A. Bond to Be Given Issuance of
Letters. Amount. Conditions.
SPECIAL PROCEEDINGS
Before an e/a enters upon the execution
of his trust, and letters testamentary or
administration issue, he shall give a
bond, in such sum as the court directs
conditioned as follows:
1. Inventory - To make and return to
the court, within 3 months, a true
and complete inventory of all goods,
chattels, rights, credits, and estate
(GCRCE) of the deceased which
shall come to his possession,
knowledge, or to the possession of
any other person for him;
2. Administer - To administer
according to these rules, and, if an
executor, according to the will of the
testator, all GCRCE which shall at
any time come to his possession or
to the possession of any other
person for him, and from the
proceeds to pay and discharge all
debts, legacies, and charges on the
same, or such dividends thereon as
shall be decreed by the court;
3. Accounting - To render a true and
just account of his administration to
the court within 1 year, and at any
other time when required by the
court;
4. Perform court orders
Administrators bond
Terms and effectivity of bond does not
depend on payment of premium and
does not expire until the
administration is closed.
As long as the probate court retains
jurisdiction of the estate, the bond
contemplates a continuing
liability.
B. Bond of Executor Where Directed
in Will. When Further Bond
Required
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REVIEWER IN REMEDIAL LAW
Testator directs that executor served
without bond or only his individual
bond executor may be allowed by the
court to give bond in such sum and
with such surety as the court approves
Condition - only to pay the debts of the
testator
Court may require of the executor a
further bond
In case of a change in his circumstance,
or
For other sufficient case,
With the 4 conditions named in the last
preceding section.
Chapter 2: Settlement of Estate of Deceased Persons
When testators will is discovered and
proved and allowed
Administration shall be revoked and all
powers cease
The administrator shall surrender the
letters of administration to the court
Render his account
B. Court May Remove or Accept
Resignation of E/A. Proceedings
upon Death, resignation or
Removal
1. Removal or resignation of executor or

SPECIAL PROCEEDINGS
administrator
C. Bonds of Joint Executors and Neglects to:
Administrators Render his account
Settle the estate according to law
When two or more persons are Perform an order or judgment of the
appointed e/a the court may take a court, or a duty expressly provided
separate bond from each, or a joint by these rules; or
bond from all Absconds; or
Becomes insane; or
D. Bond for Special Administrator Becomes incapable or unsuitable to
discharge the trust.
Before entering upon his duties
In such sum as the court directs 2. Effect
Conditions The remaining e/a may administer the
Make and return a true inventory of the trust alone
goods, chattels, rights, credits, and Unless the court grants letters to
estate of the deceased which come someone to act with him.
to his possession or knowledge If there is no remaining e/a,
Truly account for such as are received administration may be to any suitable
by him when required by the court person.
Deliver the same to the person
appointed e/a, or to such other 3. Purpose of administration
person as may be authorized to Liquidation of the estate and
receive them distribution of the residue among the
heirs and legatees.
X. REVOCATION OF 4. Liquidation
ADMINISTRATION, DEATH, means the determination of all the
RESIGNATION, AND REMOVAL OF assets of the estate and payment of all
EXECUTORS OR debts and expenses. Approval of the
ADMINISTRATORS project of partition does not necessarily
terminate administration.
A. ADMINISTRATION REVOKED IF WILL
DISCOVER. PROCEEDINGS THEREUPON 5. Degree of care expected of
B. COURT MAY REMOVE OR ACCEPT administrator
RESIGNATION OF EXECUTOR OR The administrator is required to
ADMINISTRATOR. PROCEEDINGS UPON exercise reasonable diligence and act in
DEATH, RESIGNATION OR REMOVAL entire good faith in the performance of
C. ACTS BEFORE REVOCATION, that trust.
RESIGNATION, OR REMOVAL TO BE VALID
Although not a guarantor or insurer of
D. POWERS OF NEW EXECUTOR OR
ADMINISTRATOR the safety of the estate nor expected to
be infallible, yet the same degree of
prudence, care and judgment which a
A. Administration Revoked if Will
person of a fair average capacity and
Discovered. Proceedings ability exercises in similar transactions
Thereupon of his own, serves as the standard by
1. Administration revoked which his conduct is to be judged.

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REVIEWER IN REMEDIAL LAW
Discretion to remove administrator lies
with the courts discretion.
Grounds enumerated are not exclusive
C. Acts Before Revocation,
Resignation, or Removal to Be
Valid
The lawful acts of an e/a before the
revocation of his letters testamentary or
of administration, or before his
resignation or removal remains valid
D. Powers of New (The Replacement
for the Removed) Executor or
Administrator
Like powers to collect and settle the
estate not administered that the former
e/a had; and
May prosecute or defend actions
commenced by or against the former
e/a; and
Have execution on judgments recovered
in the name of such former e/a.
An authority granted by the court to the
former e/a for the sale or mortgage of
real estate may be renewed in favor of
such person without further notice or
hearing.
XI. INVENTORY AND APPRAISAL.
PROVISION FOR SUPPORT OF
FAMILY
A. INVENTORY AND APPRAISAL TO BE
RETURNED WITHIN 3 MONTHS
B. ARTICLES NOT TO BE INVENTORIED
C. ALLOWANCE TO WIDOW & FAMILY
D. PROVISION FOR SUPPORT
A. Inventory and Appraisal to Be
Returned Within 3 Months
1. Inventory and appraisal
Within 3 months after his appointment
every e/a shall return to the court a
true inventory and appraisal of all real
and personal estate of the deceased
which has come into his possession or
knowledge.
In the appraisement, the court may
order one or more of the inheritance tax
appraisers to give his or their assistance
2. Period not mandatory
3-month period is not mandatory. The
fact that an inventory was filed after the
3-month period would not deprive the
probate court of jurisdiction to approve
it.
Chapter 2: Settlement of Estate of Deceased Persons
B. Articles Not to Be Inventoried:
Wearing apparel of the surviving
husband or wife and minor children
The marriage bed and bedding,
Such provisions and other articles as
will necessarily be consumed in the
subsistence of the family of the
deceased
C. Allowance to Widow and Family
SPECIAL PROCEEDINGS
The widow and minor or incapacitated
children of a deceased person, during
the settlement of the estate, shall
receive, under the direction of the court,
such allowance as are provided by law
D. Provision for Support
This includes support even for children
who are of age (Family Code Art 133),
but does not include grandchildren.
XII. GENERAL POWERS AND
DUTIES OF EXECUTORS AND
ADMINISTRATORS
A. EXECUTOR OR ADMINISTRATOR TO HAVE
ACCESS TO PARTNERSHIP BOOKS &
PROPERTY. HOW RIGHT ENFORCED
B. KEEP BUILDINGS IN TENANTABLE REPAIR
C. RIGHT TO POSSESSION & MANAGEMENT
OF THE REAL & PERSONAL PROPERTIES
A. Executor or Administrator to
Have Access to Partnership Books
and Property. How Right Enforced
1. Access to partnership books and
property
At all times:
have access to, and may examine and
take copies of, books and papers
relating to the partnership business,
Make examine and make invoices of the
property belonging to such
partnership;
The surviving partner or partners, on
request, shall exhibit to him all such
books, papers, and property in their
hands or control.
2. Court duty
Order any such surviving partner or
partners to freely permit the exercise of
the rights, and to exhibit the books,
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REVIEWER IN REMEDIAL LAW
papers, and property, as in this section
provided, and may punish any partner
failing to do so for contempt.
B. Keep Buildings in Tenantable
Repair
Houses and other structures and fences
belonging to the estate, and
Deliver the same in such repair to the
heirs or devisees when directed so to do
by the court.
C. Right to Possession and
Management of the Real and
Personal Properties
So long as it is necessary for the
payment of the debts and the expenses
of administration
Administrator cannot exercise the right
of legal redemption over a portion of the
property owned in common sold by one
of the other co-owners since this is not
within the powers of administrator.
When the estate of a deceased is already
subject of a testate or intestate
proceeding, the administrator cannot
enter into any transaction involving it
without any prior approval of the Court.
The right of an e/a to the possession
and management of the real and
personal properties of the deceased is
not absolute and can only be exercised
so long as it is necessary for the
payment of the debts and expenses of
administration
XIII. ACCOUNTABILITY AND
COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
A. EXECUTOR OR ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE &
INCOME
B. NOT TO PROFIT BY INCREASE OR LOSE BY
DECREASE IN VALUE
C. WHEN NOT ACCOUNTABLE
D. ACCOUNTABLE FOR INCOME FROM
REALTY USED BY HIM
E. ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
F. WHEN ALLOWED MONEY PAID AS COSTS
G. WHAT EXPENSES & FEES ALLOWED
EXECUTOR OR ADMINISTRATOR. NOT TO
CHARGE FOR SERVICES AS ATTORNEY.
COMPENSATION PROVIDED BY WILL
CONTROLS UNLESS RENOUNCED.
H. WHEN EXECUTOR OR ADMINISTRATOR TO
RENDER ACCOUNT
Chapter 2: Settlement of Estate of Deceased Persons
I. EXAMINATION ON OATH BY COURT
J. ACCOUNT TO BE SETTLED ON NOTICE
K. SURETY ON BOND MAY BE PARTY TO
ACCOUNTING
A. Executor or Administrator
Chargeable with all Estate and
Income
Chargeable in his account with the
whole of the estate which has come into
his possession, at the value of the
appraisement contained in the
inventory:
With all the interest,
SPECIAL PROCEEDINGS
Profit, and
Income of such estate; and
With the proceeds of as much of the
estate as is sold by him, at the price
at which it was sold.
B. Not to Profit by Increase or Lose
by Decrease in Value
No e/a shall profit by the increase, or
suffer loss by the decrease or
destruction, without his fault, of any
part of the estate
Account for the excess (when sold for
more)
If sold for less, not responsible for loss,
if in good faith
If settled claim for less - He is entitled
to charge in his account only the
amount he actually paid on the
settlement
C. When Not Accountable
For debts due the deceased which
remain uncollected without his fault
D. Accountable for Income from
Realty Used by Him
1. Accountable
If the e/a uses or occupies any part of
the real estate himself, he shall account
for it as may be agreed upon between
him and the parties interested, or
adjusted by the court with their assent;
and if the parties do not agree upon the
sum to be allowed, the same may be
ascertained by the court, whose
determination in this respect shall be
final
E. Accountable if He Neglects or
Delays to Raise or Pay Money
1. Accountable if:
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REVIEWER IN REMEDIAL LAW
Neglects or unreasonably delays to raise
money, by collecting the debts or selling
the real or personal estate of the
deceased, or
Neglects to pay over the money he has
in his hands, and the value of the estate
is thereby lessened or unnecessary cost
or interest accrues, or the persons
interested suffer loss.
A/Es responsibility for damages
incurred cannot be shifted to the
intestate estate.
F. When Allowed Money Paid as
Costs
The amount paid by an e/a for costs
awarded against him shall be allowed in
his administration account
Unless it appears that the action or
proceeding in which the costs are
taxed was prosecuted or resisted
without just cause, and not in good
faith.
1. Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the
estate and for its management for
purpose of liquidation, payment of
debts, and distribution of the residue
among persons entitled thereto
2. Not necessary expenses
a. Expenses for death anniversary;
b. Expenses incurred by a presumptive
heir for her appearance and that of
her witnesses at the trial to oppose
the probate of an alleged will;
c. Expenses for the settlement of the
question as who are entitled to the
estate left by the deceased;
d. Expenses incurred by the e/a to
procure a bond
e. Personal expenses of the occupant
of the heir of the family residence;
f. Expenses for stenographic notes,
unexplained representation
expenses.
3. Attorneys fees
Administrator may not recover
attorneys fees from estate
4. Procedure for collection of attorneys
fees:
Counsel must request the administrator
to make payment and file an action
against him in his personal capacity
and not as an administrator, should he
fail.
Chapter 2: Settlement of Estate of Deceased Persons
If judgment is rendered against the
administrator and he pays, he may
include the fees so paid in his account
to the court.
Attorney may also file a petition in the
testate or intestate proceeding and ask
the court, after notice to all persons
interested, to allow his claim and direct
the administrator to pay it as an
expense of administration.
The award of the court is appealable by
Record on Appeal.
G. What Expenses and Fees Allowed
SPECIAL PROCEEDINGS
E/A; Not to Charge for Services as
Attorney; Compensation Provided
by Will Controls Unless
Renounced.
1. Compensation
P4/per day
Or a commission upon the value of so
much of the estate as comes into his
possession and is finally disposed by
him in the payment of debts, expenses,
legacies, or distributive shares
Or 2% of the first P5,000 of such value
1% as exceeds P5,000 P30,000
% P31,000 P100,000
Special case - When estate is large,
and the settlement has been attended
with great difficulty, and has required a
high degree of capacity on the part of
the e/a, a greater sum may be allowed.
If objection to the fees allowed be taken,
the allowance may be re-examined on
appeal.
2. 2 or more executors
The compensation shall be apportioned
among them by the court according to
the services actually rendered by them
respectively.
3. Executor/administrator also an
attorney
He shall not charge against the estate
any professional fees for legal services
rendered by him.
4. Compensation provided in will
That provision shall be a full
satisfaction for his services unless by a
written instrument filed in the court he
renounces all claims to the
compensation provided by the will.
H. When Executor or Administrator
to Render Account
1. Accounting
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REVIEWER IN REMEDIAL LAW
Within 1 year from the time of receiving
letters testamentary or of
administration
Unless the court otherwise directs
because of extensions of time for
presenting claims against, or paying the
debts of, the estate, or for disposing of
the estate;
2. Further accounts - If court requires
The rendering of an accounting by an
administrator of his administration
within 1 year from his appointment is
mandatory. The only exception is
when the court otherwise directs
because of extensions of time for
presenting claims against the estate or
for paying the debts or disposing the
assets of the estate
The fact that the heirs of the estate have
entered into an extrajudicial settlement
and partition in order to put an end to
their differences cannot in any way be
interpreted as a waiver of the objections
of the heirs to the accounts submitted
by the administrator not only because
to so hold would be a derogation of the
pertinent rules but also because there is
nothing provided in said partition that
the aforesaid accounts shall be deemed
waived or condoned.
I. Examination on Oath by Court
As to the correctness of his account
before the same is allowed, except when
no objection is made to the allowance of
the account and its correctness is
satisfactorily established by competent
proof
The heirs, legatees, distributees, and
creditors of the estate shall have the
same privilege as the e/a of being
examined on oath on any matter
relating to an administration account
J. Account to Be Settled on Notice
Notice requirement - Before the
account of an e/a is allowed, notice
shall be given to persons interested of
the time and place of examining and
allowing the same;
Such notice may be given personally to
such persons interested or by
advertisement in a newspaper or
newspapers, or both, as the court
directs.
K. Surety on Bond May Be Party to
Accounting
Chapter 2: Settlement of Estate of Deceased Persons
Upon the settlement of the account of
an e/a, a person liable as surety in
respect to such account may, upon
application, be admitted as party to
such accounting.
XIV. CLAIMS AGAINST ESTATE
A. NOTICE TO CREDITORS TO BE ISSUED BY
COURT
B. TIME WITHIN WHICH CLAIMS SHALL BE
FILED
C. PUBLICATION OF NOTICE TO CREDITORS
D. FILING COPY OF PRINTED NOTICE
E. CLAIMS WHICH MUST BE FILED UNDER
SPECIAL PROCEEDINGS
THE NOTICE. IF NOT FILED, BARRED;
EXCEPTIONS
F. SOLIDARY OBLIGATION OF DECEDENT
G. MORTGAGE DEBT DUE FROM ESTATE
H. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST AN ESTATE
I. HOW TO FILE A CLAIM. CONTENTS
THEREOF. NOTICE TO EXECUTOR OR
ADMINISTRATOR
J. ANSWER TO THE CLAIM BY EXECUTOR OR
ADMINISTRATOR. OFFSETS
K. DISPOSITION OF ADMITTED CLAIM
L. TRIAL OF CONTESTED CLAIM
M. JUDGMENT APPEALABLE
N. COSTS
A. Notice to Creditors to Be Issued
by Court
1. Duty of court after granting letters
testamentary
Issue a notice requiring all persons
having money claims against the
decedent to file them in the office of the
clerk of said court.
2. Estate burdened with lien of
creditors
Upon the death of the person, all his
property is burdened with all his debts,
his debts creating an equitable lien
thereon for the benefit of the creditors.
And such lien continues until the debts
are extinguished either by the payment,
prescription, or satisfaction in one of
the modes recognized by law
3. Purpose of presentation of claims
against estate
To protect the estate of the deceased.
That way, the e/a will be able to
examine each claim, determine whether
it is a proper one which should be
allowed.
Further the primary object of the
provisions requiring presentation is to
appraise the administrator and the
probate court of the existence of the
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REVIEWER IN REMEDIAL LAW
claim so that a proper and timely
arrangement may be made for its
payment in full or by pro-rata portion in
the due course of the administration,
inasmuch as upon the death of a
person, his entire estate is burdened
with the payment of his debts and no
creditor shall enjoy any preference or
priority; all of them shall share pro-rata
in the liquidation of the estate of the
deceased
B. Time Within Which Claims Shall
Be Filed
State the time for the filing of claims,
which shall not be more than 12 not
less than 6 months after the date of the
first publication of the notice
Failure to meet period, court may allow;
requisites
Before order of distribution is entered
Within a time not exceeding 1 month
This exception is called the rule on
belated claims.
1. Statute of non-claims
Purpose: to settle the estate with
dispatch, so that the residue may be
delivered to the persons entitled thereto
without their being afterwards called
upon to respond in actions for claims,
which, under the ordinary statute of
limitations have not yet prescribed.
The period, once fixed by the courts, is
mandatory
2. Discretion to allow contingent claims
The law gives the probate court
discretion to allow claims presented
beyond the period previously fixed
provided they are filed within 1 month
from the expiration of such period but
in no case beyond the date of entry of
the order of distribution.
The presentation of money claim may
be waived.
C. Publication of Notice to Creditors
1. Duty of executor or administrator
after notice is issued
Cause the notice to be published 3
weeks successively in a newspaper of
general circulation in the province, and
to be posted for the same period in four
public places in the province and in two
public places in the municipality where
the decedent last resided.
Chapter 2: Settlement of Estate of Deceased Persons
If there is no notice, creditors will not be
barred from filing beyond the period
stated in the statue of non-claims
D. Filing Copy of Printed Notice
Filed or cause to be filed in the court a
printed copy of the notice
together with affidavit setting forth:
o dates of the first and last
publication and
o name of newspaper
within 10 days after notice has been
published
SPECIAL PROCEEDINGS
E. Claims Which Must Be Filed
Under the Notice. If Not Filed,
Barred; Exceptions
1. Statute of non-claims
Must be filed within the time limited in
the notice, covering:
Claims for money against the decedent
arising from contract
Express or implied
Due or not
Contingent or not;
Claims for funeral expenses;
Expenses for the last sickness;
Judgment for money against the
decedent.
2. Effect of non-claim - forever barred;
Exception: When set forth as
counterclaims in any action that the
e/a may bring against the claimants
3. If the decedent is creditor and
executor or administrator
commences an action or continues
the action:
The debtor may set forth by answer the
claims he has against the decedent,
instead of presenting them
independently to the court.
Mutual claims may be set off against
each other in such action.
4. Favorable judgment for debtor
Amount shall be considered the true
balance against the estate, as though
the claim had been presented directly
before the court in the administration
proceedings
Claims not yet due, or contingent, may
be approved at their present value
F. Solidary Obligation of Decedent
1. Solidary obligation
The claim shall be filed against the
decedent as if he were the only debtor,
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REVIEWER IN REMEDIAL LAW
without prejudice to the right of the
estate to recover contribution from
other debtors.
2. Joint obligation
The claim shall be confined to the
portion belonging to him.
3. Claims required to be filed
Money claims (including debts or
interest thereon) only those which
are proper against the decedent claims
upon a liability contracted before death.
Period runs against all claimants -
residents, non-residents, infant, insane.
4. Support claims
Claim for support should not be
granted, but must wait until all claims
against the estate have been settled
(Gutiererez Jr. v. Macandog (1087))
5. Execution of final judgment not
proper remedy but filing of claim
While the judgment in a civil case may
have become final and executory,
execution is not the proper remedy to
enforce payment thereof.
The ordinary procedure by which to
settle claims of indebtedness against
the estate is for the claimant to present
a claim before the probate court.
6. Mandamus not available
In absence of any showing that judge
had already allowed the administrator
to dispose the estate and pay the debts
and legacies of the deceased, a writ of
mandamus will not issue to compel him
to order payment of petitioners claim
7. This rule is mandatory
The requirement is for the purpose of
protecting the estate of deceased. The
e/a is informed of claims against it,
thus enabling him to examine each
claim and to determine whether it is a
proper one which should be allowed.
The above rule strictly requires the
prompt presentation and disposition of
claims against the decedents estate in
order to settle the affairs of the estate as
soon as possible, pay off its debts and
distribute the residue.
8. Charges against conjugal property
Same rules apply for debts contracted
chargeable against the conjugal
property.
9. Meaning of contingent claim
Chapter 2: Settlement of Estate of Deceased Persons
One by which, by its nature is
necessarily dependent upon an
uncertain event for its existence and
claim, and its validity and enforceability
depending upon an uncertain event.
Contingency refers to uncertainty of
liability, not collection.
G. Mortgage Debt Due From Estate
1. Options of creditor holding a credit
secured by mortgage or other
collateral security (Which are
alternative, not successive):
SPECIAL PROCEEDINGS
a. Waive the mortgage and claim the
entire debt from the estate of
mortgagor as an ordinary claim; or
b. Foreclose the mortgage judicially
and prove the deficiency as an
ordinary claim; or
c. Rely on the mortgage exclusively, or
other security and foreclose the
same at anytime, before it is barred
by prescription, without the right to
file claim for deficiency.
2. Right of executor or administrator
Redeem the property, by paying the
debt, under the direction of the court, if
the court shall adjudge it to be for the
best interest of the estate that such
redemption shall be made
H. Claim of Executor or
Administrator against an Estate
1. If executor or administrator has
claim against the estate
He shall give notice thereof to the court
Court shall appoint a special
administrator
Who will have the same power and
liability, in the adjustment claims
Court may order e/a to pay the special
administrator necessary funds to defend
such claim (one of the 2 instances of
appointment of special administrators
in the Rules, the other regarding delay
in proceedings, supra)
I. How to File a Claim. Contents
Thereof. Notice to E/A
Deliver the claim
With the necessary vouchers to the
clerk of court
Serving a copy on the e/a
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REVIEWER IN REMEDIAL LAW
1. If founded on a bond, bill, note, or
other instrument - Original need not
be filed
Only a copy with all endorsements shall
be attached with the claim
Subject to exhibition of original on
demand .
If original lost or destroyed -
Claimant must accompany his claim
with affidavit containing a copy OR
description and stating its loss or
destruction
2. When the claim is due, it must be
supported by affidavit stating:
The amount justly due
That no payments have been made
thereon which are not credited
There are no offsets to the same, to the
knowledge of the affiant.
3. If the claim is not due, or is
contingent, when filed, it must also
be supported by affidavits stating the
particulars thereof.
When the affidavit is made by a person
other than the claimant, he must set
forth therein the reason why it is not
made by the claimant.
The claim once filed shall be attached to
the record of the case in which the
letters testamentary or of
administration were issued, although
the court in its discretion and as a
matter of convenience, may order all the
claims to be collected in a separate
folder.
4. Attorneys fees as expenses of
administration
Fees of the lawyer representing the e/a
are directly chargeable against the
client for whom the services have been
rendered and not against the estate of
the decedent.
J. Answer to the Claim by E/A.
Offsets
Filed within 15 days after receipt of
copy
He must admit or deny the claim and
set forth the substance of the matters
which are relied upon in admission or
denial
1. If he has no knowledge sufficient to
admit or deny
state such want of knowledge
Allege also any offset claims which the
decedent before death had against the
Chapter 2: Settlement of Estate of Deceased Persons
claimant, and his failure to do so shall
bar the claim forever.
A copy of the answer shall be served by
the e/a on the claimant.
2. Extension of time - court discretion.
K. Disposition of Admitted Claim
1. Admitted claim - Court has option to:
Approve the same without hearing
Order that known heirs, legatees or
devisees be notified and heard, BEFORE
approving
2. If opposed
SPECIAL PROCEEDINGS
Allow opposition 15 days to file an
answer to the claim in the manner
prescribed.
L. Trial of Contested Claim
1. After answer or period for answer
expired
Court shall set the claim for trial with
notice to both parties
Refer the claim to a commissioner
M. Judgment Appealable
1. Court will rule on the claim
Approve
Pay, in due course of administration the
amount due
Such shall not create any lien on the
property of the estate or give
judgment creditor payment priority.
Disapprove
2. Judgment
Filed, together with record of the
administration proceedings
With notice to parties
Appealable as in ordinary cases
N. Costs
1. Judgment creditor cannot recover
cost:
When the e/a, in his answer, admits
and offers to pay part of a claim,
And the claimant refuses to accept the
amount offered in satisfaction of his
claim,
If he fails to obtain a more favorable
judgment,
He must pay to the e/a costs from the
time of the offer
Where an action commenced against
the deceased for money has been
discontinued and the claim embraced
therein presented as in this rule
provided, the prevailing party shall be
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons
allowed the costs of his action up to the XV. ACTIONS BY AND AGAINST
time of its discontinuance. EXECUTORS AND
ADMINISTRATORS

A. ACTIONS WHICH MAY & WHICH MAY NOT

BE BROUGHT AGAINST EXECUTOR OR
ADMINISTRATOR
B. EXECUTOR OR ADMINISTRATOR MAY
BRING OR DEFEND ACTIONS WHICH
SURVIVE
C. HEIR MAY NOT SUE UNTIL SHARE
ASSIGNED
D. EXECUTOR OR ADMINISTRATOR MAY
COMPOUND WITH DEBTOR
E. MORTGAGE DUE ESTATE MAY BE

SPECIAL PROCEEDINGS
FORECLOSED
F. PROCEEDINGS WHEN PROPERTY
CONCEALED, EMBEZZLED OR
FRAUDULENTLY CONVEYED
G. POWERS ENTRUSTED WITH ESTATE
COMPELLED TO RENDER ACCOUNT
H. EMBEZZLEMENT BEFORE LETTERS
ISSUED
I. PROPERTY FRAUDULENTLY CONVEYED BY
DECEASED MAY BE RECOVERED. WHEN
EXECUTOR OR ADMINISTRATOR MUST
BRING ACTION
J. WHEN CREDITOR MAY BRING ACTION.
LIEN FOR COSTS

A. Actions Which May and Which

May Not Be Brought against
Executor or Administrator
Actions not to be brought against e/a-
Claim for the recovery of money or debt
or interest
Actions to be brought
Recover real or personal property or
interest therein;
Or to enforce a lien thereon; and
Actions to recover damages for an injury
to a person or property
1. Claims against the administrator may
be presented in the administration
proceedings but not against third
persons
Administrator may not pull a third
person against his will into the
administration proceedings by mere
motion for a demand of rentals, but
must do so in a separate action

B. Executor or Administrator May

Bring or Defend Actions Which
Survive
1. Actions to be defended or may be
brought against
For the recovery or protection of the
property or rights of the deceased
actions for causes which survive

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REVIEWER IN REMEDIAL LAW
2. Injury
Injury to property is not limited to
injuries to specific property, but extends
to other wrongs by which personal
estate is injured or diminished.
Maliciously causing a party to
unnecessary expenses is certainly
injury to the partys property.
C. Heir May Not Sue Until Share
Assigned
1. Not to sue on actions to recover title
or possession to lands or damages to
lands
Until there is an order of the court
assigning such lands to such heir or
devisee; or
Until the time allowed for paying debts
has expired
2. Previous declaration of heirship not
necessary
In order that an heir may assert his
right to the property of a deceased, no
previous judicial declaration of heirship
is necessary.
3. Heirs may not sue administrator
until their shares are assigned.
Before distribution or before any
residue is known, the heirs have no
cause of action against the e/a.
This does not apply to a donation inter
vivos
4. When heirs may act in place of
administration
Upon the commencement of the testate
or intestate proceedings, the heirs have
no standing in court actions for
recovery or protection of the property
rights of deceased, except when the e/a
is unwilling or fails or refuses to act, in
which event the heirs may act in his
place.
D. Executor or Administrator May
Compound with Debtor
Compound with the debtor of deceased
for a debt due
May give a discharge of such debt on
receiving a just dividend of the estate of
debtor
E. Mortgage Due Estate May Be
Foreclosed
He may foreclose the mortgage
belonging to the estate.
Chapter 2: Settlement of Estate of Deceased Persons
There is no need of special authority
from the court for the e/a to bring an
action for foreclosure on behalf of the
estate.
F. Proceedings When Property
Concealed, Embezzled or
Fraudulently Conveyed
1. Complainant
Executor, administrator, heir, legatee,
creditor, or other individual interested
in the estate of the deceased.
2. What:
SPECIAL PROCEEDINGS
A person is suspected of having
concealed, embezzled, or conveyed away
any of the money, goods, or chattels of
the deceased; or
That such person has in his possession
or has knowledge of any deed,
conveyance, bond, contract, or other
writing which contains evidence of or
tends or discloses the right, title,
interest, or claim of the deceased.
3. Duty of the court
May cite such suspected person to
appear before it any may examine him
on oath on the matter of such
complaint;
If refuses to appear or answer -
Punish for contempt and commit to
prison until he submits to the order
The interrogatories put any such
person, and his answers thereto, shall
be in writing and shall be filed in the
clerk's office.
4. Purpose of the rule
To elicit information or secure evidence,
not to decide WON the property belongs
to the deceased or persons examined
(no power to adjudicate titles or
determine controverted rights).
G. Powers Entrusted with Estate
Compelled to Render Account
1. Complainant - Executor or
administrator
2. Duty of court
May cite to appear before it a person
entrusted by an e/a with any part of the
estate of the deceased,
May require such person to render a full
account
On oath, of the money, goods, chattels,
bonds, account, or other papers
belonging to such estate as came to his
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REVIEWER IN REMEDIAL LAW
possession in trust for such e/a, and of
his proceedings thereon;
3. Refusal
May punish him for contempt as having
disobeyed a lawful order of the court.
H. Embezzlement Before Letters
Issued
If a person before granting letters
testamentary or administration
Embezzles or alienates
Any of the money, goods, chattels, or
effects of such deceased
1. Consequence
Such person shall be liable to an action
in favor of the e/a of the estate for
double the value of the property sold,
embezzled, or alienated, to be recovered
for the benefit of such estate.
2. Double value rule does not apply
The liability for double the value of the
property does not apply to the manager
of the company who carries on the
business after the death of the principal
and applies the proceeds of sale to the
payment of debts contracted in running
the business.
I. Property Fraudulently Conveyed
by Deceased May Be Recovered.
When Executor or Administrator
Must Bring Action
1. Instances:
a. There is deficiency of assets
b. Deceased in his lifetime had
conveyed real or personal property,
right or interest therein, or debt or
credit
c. With intent to defraud his creditors
or avoid any right, debt or duty
d. Or had so conveyed such property,
right, interest, debt or credit
e. That by law the conveyance would
be void as against the creditors
f. And the subject of the attempted
conveyance would be liable to
attachment by any of them in his
lifetime.
2. Duty of executor/administrator
May commence and prosecute to final
judgment an action for the recovery of
such property, right, interest, debt or
credit for benefit of the creditors
Chapter 2: Settlement of Estate of Deceased Persons
Provided, creditors making the
application pay such part of the costs
and expenses or give security therefor.
J. When Creditor May Bring Action.
Lien for Costs
1. If executor/administrator failed to
commence such action
With court permission
Any creditor may commence and
prosecute to final judgment a like action
for the recovery of the subject of the
conveyance or attempted conveyance
In the name of the e/a
Provided, he files a bond, conditioned
SPECIAL PROCEEDINGS
to indemnify the e/a against the cost
and expenses incurred by such action
Such creditor shall have a lien upon
any judgment recovered by him in the
action for such costs and other
expenses incurred therein as the court
deems equitable.
2. If conveyance or attempt in favor of
executor/administrator
The action which a creditor may bring
shall be in the name of all the creditors,
No need for: (1) permission and (2) bond
3. Administrator creditor cannot ask for
preliminary attachment
The administrator of the estate, who is
also an alleged creditor of the estate
cannot ask for the issuance of a writ of
attachment.
Money claim should be ventilated in the
estate case
XVI. PAYMENT OF THE DEBTS OF
THE ESTATE
(Asked in the 2002 Bar Examinations)
A. DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
B. PART OF ESTATE FROM WHICH DEBT
PAID WHEN PROVISION MADE BY WILL
C. PERSONALLY FIRST CHARGEABLE FOR
DEBTS, THEN REALTY
D. ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS
E. CONTINGENT CLAIM; WHEN ALLOWED
F. COURT TO FIX CONTRIBUTIVE SHARES
WHERE DEVISEES, LEGATES, OR HEIRS
HAVE BEEN IN POSSESSION
G. ORDER OF PAYMENT IF ESTATE IS
INSOLVENT
H. DIVIDENDS TO BE PAID IN PROPORTION
TO CLAIMS
I. INSOLVENT NON-RESIDENT
J. INSOLVENT RESIDENT; FOREIGN
CREDITORS
K. ORDER OF PAYMENT OF DEBTS
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REVIEWER IN REMEDIAL LAW
L. APPEAL TAKEN FROM A DECISION OF THE
COURT CONCERNING THE CLAIM
M. TIME TO TIME FURTHER ORDERS OF
DISTRIBUTION
N. CREDITORS TO BE PAID IN ACCORDANCE
WITH TERMS OF ORDER
O. COURT SHALL ALLOW EXECUTOR OR
ADMINISTRATOR A TIME FOR DISPOSING
THE ESTATE ANY PAYING DEBTS &
LEGACIES
P. GROUND FOR EXTENSION
A. Debts Paid in Full If Estate
Sufficient
After all money claims heard and
ascertained
It appears that there are sufficient
assets to pay the debts
E/A shall pay the same within the time
limited for that purpose.
The probate court may hold in abeyance
intestate proceedings
pending determination of a civil case
against the administratrix. The heirs
of the estate may not demand the
closing of an intestate proceeding at
anytime where there is a pending
case against the administrator of the
estate. The court can rightfully hold
in abeyance until the civil case is
settled.
B. Part of Estate from Which Debt
Paid When Provision Made by Will
1. Testator provided for payment of
debt
Expenses of administration, or family
expenses shall be paid according to
such provisions
2. If not sufficient
The part of the estate not disposed of by
will shall be appropriated for the
purpose
C. Personally First Chargeable for
Debts, Then Realty
1. General Rule:
Personal estate not disposed of by will
shall be FIRST chargeable
2. Exception:
Not sufficient for the purpose
Its sale will redound to the detriment of
the participants for the estate
3. in which case
The whole of the real estate not dispose
of by will, or so much thereof as is
necessary, may be sold, mortgaged, or
Chapter 2: Settlement of Estate of Deceased Persons
otherwise encumbered for that purpose
by the e/a,
Court approval obtained first
Any deficiency shall be met by
contributions in accordance with the
provisions of S6 of this rule.
D. Estate to Be Retained to Meet
Contingent Claims
If court is satisfied that such claim is
valid:
It may order the e/a to retain in his
hands sufficient estate
For the purpose of paying the
SPECIAL PROCEEDINGS
contingent claim when such
becomes absolute.
If estate insolvent - Retain a portion
equal to the dividend of the other
creditors.
E. Contingent Claim; When Allowed
When it becomes absolute
Presented to the court or e/a within 2
years from the time limited for other
creditors to present their claims
Not disputed by e/a
1. If disputed
it may be proved and allowed or
disallowed by the court as the facts may
warrant
2. Court ruling:
Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive
payment to the same extent as the
other creditors if the estate retained
by the e/a is sufficient.
Claim not presented after becoming
absolute and allowed within 2 year
period
The assets retained in the hands of
the e/a, not exhausted in the
payment of claims, shall be
distributed by the order of the court
to the persons entitled;
But the assets so distributed may
still be applied to the payment of the
claim when established, and the
creditor may maintain an action
against the distributees to recover
the debt, and such distributees and
their estates shall be liable for the
debt in proportion to the estate they
have respectively received.
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REVIEWER IN REMEDIAL LAW
F. Court to Fix Contributive Shares
Where Devisees, Legates, or Heirs
Have Been in Possession
1. Possession before debts and expenses
paid:
Court shall hear
and settle the amount of their several
liabilities
Order how much and in what manner
each shall contribute
May issue execution as circumstances
require.
2. Liability of heirs and distributes
Heirs are not required to respond with
their own property for the debts of their
deceased ancestors.
But after partition of an estate, the
heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively received
from the estate
G. Order of Payment if Estate Is
Insolvent
E/A pays the debts against the estate,
observing the provisions of Articles
1059 and 2239 to 2251 of the Civil
Code. (Preference of credits)
H. Dividends to Be Paid in
Proportion to Claims
Each creditor within such class shall be
paid dividend in proportion to his claim.
No creditor of any one class shall
receive any payment until those of the
preceding class are paid.
I. Insolvent Non-Resident
His estate found in the Philippines shall
be so disposed of that his creditors here
and elsewhere may receive each an
equal share, in proportion to their
respective credits.
J. Insolvent Resident; Foreign
Creditors
1. Foreign claims proven in another
country
2. E/A in the Philippines had knowledge
of the presentation of such claims in
such country
3. E/A had opportunity to contest such
allowance
Chapter 2: Settlement of Estate of Deceased Persons
The court shall:
Receive a certified list of such claims,
when perfected in such country,
And add the same to the list of claims
proved against the deceased person
in the Philippines
So that a just distribution of the whole
estate may be made equally among
all its creditors;
But the benefit of this and the
preceding sections shall not be
extended to the creditors in another
country if the property of such
deceased person there found is not
SPECIAL PROCEEDINGS
equally apportioned to the creditors
residing in the Philippines and the
other creditor, according to their
respective claims.
K. Order of Payment of Debts
Before the expiration of the time limited
for the payment of the debts
The court shall order the payment
thereof, and the distribution of the
assets received by the e/a for that
purpose among the creditors,
As the circumstances of the estate
require and in accordance with the
provisions of this rule
L. Appeal Taken From a Decision of
the Court Concerning the Claim
Court may suspend the order for the
payment
And may order the distribution among
creditors whose claims are definitely
allowed
Leaving in the hands of e/a sufficient
assets to pay the claim disputed and
appealed .
When a disputed claim is finally settled
court shall order the claim to be paid
out of the assets retained to the same
extent and in the same proportion with
the claims of other creditors.
M. Time to Time Further Orders of
Distribution
Whole of the debts not paid on first
distribution
And if the whole assets not distributed
Or other assets afterwards come to the
hands of e/a.
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REVIEWER IN REMEDIAL LAW Chapter 2: Settlement of Estate of Deceased Persons

N. Creditors to Be Paid in XVII. SALES, MORTGAGES, AND

Accordance With Terms of Order OTHER ENCUMBRANCES OF
PROPERTY OF DECEDENT
Creditors to be paid in accordance with
terms of order, as soon as the time of A. SALE OF PERSONAL ESTATE;
payment arrives, pay the creditors the REQUIREMENTS
amounts of their claims, or the dividend B. SALE, MORTGAGE, OR ENCUMBRANCE
thereon, in accordance with the terms (S/M/E) OF REAL PROPERTY
of such order. C. REQUISITES FOR DISALLOWING S/M/E
REAL OR PERSONAL
O. Court Shall Allow Executor or D. SALE OF WHOLE OR PART OF PERSONAL
OR REAL ESTATE
Administrator a Time for E. PERSONAL/REAL S/M/E IS NOT
Disposing the Estate Any Paying NECESSARY TO PAY DEBTS, EXPENSES
Debts and Legacies OF ADMINISTRATION OR LEGACIES IN

SPECIAL PROCEEDINGS
THE PHILIPPINES
1. Period: F. COURT AUTHORIZE S/M/E OF REALTY
x < 1 year ACQUIRED ON EXECUTION OR
Court may extend the time to x < 6 FORECLOSURE
months per extension G. REGULATIONS FOR AUTHORIZING S/M/E:
Whole period to the original e/a MUST H. WHEN COURT MAY AUTHORIZE
CONVEYANCE OF REALTY WHICH
be only x < 2 years
DECEASED CONTRACTED TO CONVEY
2. Requisites I. WHERE THE DECEASED IN HIS LIFETIME
HELD REAL PROPERTY IN TRUST FOR
E/A must apply
ANOTHER PERSON
Notice must be given as to time and
place of hearing
Court must hear it
A. Sale of Personal Estate;
Requirements
P. Ground for Extension Application of e/a
Original e/a dies Written notice to heirs and other
New administrator appointed persons interested
The court may extend the time allowed Court may order the sale of the
for the payment of the debts or whole or part of personal estate.
legacies beyond the time allowed to 1. When:
the original e/a If necessary for the purpose of paying
x < 6 months debts, expenses of administration or
Not exceeding 6 months at a time and legacies or
not exceeding 6 months beyond the Preservation of property
time which the court might have
allowed to such original e/a B. Sale, Mortgage, or Encumbrance
Notice shall be given of the time and
(S/M/E) of Real Property Proper
place for hearing such application, as
required in the last preceding section.
When:
When personal estate not sufficient to
pay debts, expenses of administration
and legacies
When sale of personal property may
injure the estate
Where the testator has not made
sufficient provision for payment
1. Requisites
E/A to apply with court
Written notice to the heirs, devisees
and legatees residing in the
Philippines
Authorize so much as may be
necessary of the real estate, in lieu
of personal estate
For the purpose of paying such

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REVIEWER IN REMEDIAL LAW
Provided, if it clearly appears
that such sale, mortgage or
encumbrance is beneficial to the
persons interested
2. If part cannot be s/m/e, without
injury to those interested in the
remainder
3. Authority for s/m/e of the whole, or
so much necessary or beneficial
under the circumstances
C. Requisites for Disallowing S/M/E
Real or Personal
Any person interested in the estate gives
a bond in fixed by the court
Conditioned to pay the debts, expenses
of administration and legacies
Within such time the court directs
Bond shall be for the security of the
creditors and e/a, which may be
prosecuted for the benefit of either.
D. Sale of Whole or Part of Personal
or Real Estate
When sale will be beneficial to heirs,
devisees, legatees and other interested
persons
E/A application
Notice to heirs, devisees, legatees,
interested persons
Court may authorize e/a to sell the
whole or part of estate
Although not necessary to pay debts,
expenses of administration, legacies
1. Will not be granted - If inconsistent
with the provisions of a will.
In case of such sale, the proceeds shall
be assigned to the persons entitled to
the estate in the proper proportions.
2. Requisites are mandatory
The requirements of written notice of
the application as well as the time and
place of hearing to be served upon the
heirs, devisees and legatees residing in
the Philippines is mandatory. Without
such notice, the sale, mortgage or
encumbrance made is void.
Notice to parents of minor is not
sufficient.
Notice to counsel or guardian ad litem is
sufficient.
3. Reason for mandatory requirements
The heirs are the presumptive owners.
Since they succeed to all the rights and
obligations of the deceased from the
moment of the latters death, they are
Chapter 2: Settlement of Estate of Deceased Persons
the persons directly affected by the sale
or mortgage and therefore cannot be
deprived of the property except in the
manner provided by law
E. Personal/Real S/M/E Is Not
Necessary to Pay Debts, Expenses
of Administration or Legacies in
the Philippines
But if it appears from records and
proceedings of a probate court in
foreign country
The estate of deceased in foreign
SPECIAL PROCEEDINGS
country is not sufficient
Court here may authorize the e/a to
s/m/e
In same manner as for payment of debts
or legacies in the Philippines
F. Court Authorize S/M/E of Realty
Acquired on Execution or
Foreclosure
Same circumstances and under the
same regulations as prescribed in this
rule for the sale, mortgage, or other
encumbrance of other real estate
G. Regulations for Authorizing
S/M/E:
1. Executor/administrator file a written
petition setting forth:
a. Debts due from deceased, expenses
of administration, legacies;
b. Value of personal estate;
c. Situation of the estate to be s/m/e;
d. Such other facts that show s/m/e is
necessary or beneficial.
2. Court to
Fix a time and place for hearing such
petition, and
Cause notice stating the nature of the
petition, the reasons for the same, and
the time and place of hearing, to be
given personally or by mail to the
persons interested, and may cause such
further notice to be given, by
publication or otherwise, as it shall
deem proper.
3. E/A gives additional bond,
conditioned that such e/a will
account for the proceeds of the
s/m/e.
4. Court
a. If 1 3 complied with
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REVIEWER IN REMEDIAL LAW
b. Authorize s/m/e such part of estate
as is deemed necessary
c. Sale - either public or private
whichever most beneficial
d. E/A shall be furnished with a
certified copy of such order
5. Sale through public auction
The mode of giving notice of the time
and place of the sale shall be governed
by the provisions concerning notice of
execution sale
6. Recording
In the registry of deeds of the province
in which the real estate s/m/e together
with a certified copy of the order of the
court, together with the deed of the e/a
for such real estate, which shall be as
valid as if the deed had been executed
by the deceased in his lifetime
7. Regulations are mandatory
The regulations provided in this section
apply to both testate and intestate
proceeding and are mandatory. An
order of sale not issued in accordance
with such regulations is void and the
sale made is also void
8. Estoppel to question regularity of
sale
But where a party did not object to the
order of the court decreeing the sale of
property belonging to the estate by
sealed bids and even participated
therein by submitting his own bid, party
is estopped from subsequently
questioning the regularity of the sale to
highest bidder.
9. Need for approval of sale by court
A sale of land under judicial
administration is not effective until
approved by the court, and although
leave of court to sell the property has
been obtained, a purported sale which
has not been approved and which varies
materially from the authority granted
cannot be made on the basis of an
action by the purchaser for specific
performance.
10. Power of probate court to nullify
unauthorized sale
The probate court can declare null and
void the disposition of property under
administration, made by administrator,
the same having been effected without
authority from said court.
Chapter 2: Settlement of Estate of Deceased Persons
11. Authority of court to approve sale of
property by prospective heir
The intestate court has the power to
execute its order with regard to the
nullity of an unauthorized sale of estate
property, otherwise its power to annul
the unauthorized or fraudulent
disposition of estate property would be
meaningless
The sale of an immovable property
belonging to an estate of a decedent in a
special proceeding needs court
approval.
But the court has no jurisdiction to
SPECIAL PROCEEDINGS
make pronouncement regarding the
existence or non-existence of
encumbrances or to cancel a mortgage
on real property in its order approving
the sale of the estate under
administration
12. Right of heirs to dispose of ideal
share
The sale made by an heir of his share in
an inheritance, subject to the result of
the pending administration is valid and
in no way stands in the way of such
administration.
There is no provision of law which
prohibits a co-heir from selling to a
stranger his share of an estate held in
common before the partition of the
property is approved by the court.
H. When Court May Authorize
Conveyance of Realty Which
Deceased Contracted to Convey
Deceased in his lifetime under valid
contract to deed real property, or an
interest therein,
On application
The court will authorize the e/a to
convey such property according to such
contract, or with such modifications as
are agreed upon by the parties and
approved by the court;
If the contract is to convey real property
to the e/a, the clerk of court shall
execute the deed.
The deed executed by such executor,
administrator, or clerk of court shall be
as effectual to convey the property as if
executed by the deceased in his lifetime;
1. Not authorized
But no such conveyance shall be
authorized until notice of the
application for that purpose has been
given personally or by mail to all
persons interested, and such further
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REVIEWER IN REMEDIAL LAW
notice has been given, by publication or
otherwise, as the court deems proper;
Nor if the assets in the hands of the e/a
will thereby be reduced so as to prevent
a creditor from receiving his full debt or
diminish his dividend.
I. Where the Deceased in His
Lifetime Held Real Property in
Trust for Another Person
Same notice requirement
Court may authorize the e/a to deed
such property to the person or HIS e/a
Court may order the execution of such
trust, whether created by deed or law
1. Effect of sales executed by heirs
A contract of sale is not invalidated by
the fact that it is subject to probate
court approval.
2. Legal personality of special
administrator to seek review
Not being a party in the proceedings
below, the special administratrix does
not have any legal personality to seek a
review by the Supreme Court of the
decisions of the SEC and the CA.
XVIII. DISTRIBUTION AND
PARTITION OF THE ESTATE
A. WHEN ORDER FOR DISTRIBUTION OF
RESIDUE MADE
B. QUESTIONS AS TO ADVANCEMENT MADE,
OR ALLEGED TO HAVE BEEN MADE, BY
THE DECEASED TO ANY HEIR
C. EXPENSES OF PARTITION
D. RECORDING OF THE ORDER OF
PARTITION OF ESTATE
E. EFFECT OF FINAL DECREE OF
DISTRIBUTION
A. When Order for Distribution of
Residue Made
General Rule: The following must be
paid before distribution:
Debts;
Funeral charges;
Expenses of administration;
Allowance to the widow;
Inheritance tax.
Exception: The distributees give a bond
conditioned on the payment of above
obligations
1. Duty of the court
On application of e/a or person
interested in the estate
Notice
Chapter 2: Settlement of Estate of Deceased Persons
Hearing
Court shall assign the residue of the
estate to the persons entitled to the
same,
Naming them and the proportions, or
parts, to which each is entitled,
Such persons may demand and recover
their respective shares from the e/a, or
any other person having the same in his
possession.
If there is a controversy as to who are
heirs or shares heard and decided as
in ordinary cases.
2. The approval of a project of partition
SPECIAL PROCEEDINGS
does not necessarily terminate
administration.
Before a court can make a partition and
distribution of the estate of a deceased,
it must first settle the estate in a special
proceeding instituted for the purpose.
Trial courts trying an ordinary action
cannot resolve to perform acts
pertaining to a special proceeding
because it is subject to specific
prescribed rules.
3. Proceedings for the settlement of
estate is deemed ready for final
closure when:
a. There should have been issued
already an order of distribution or
assignment of the estate of the
decedent among or to those entitled
thereto by will or by law, but
b. Such order shall not be issued until
it is shown that the debts, funeral
expenses and expenses of
administration, allowances, taxes,
etc., chargeable to the estate have
been paid, which is but logical and
proper,
c. Besides, such an order is usually
proper and specific application for
the purpose of the interested party
or parties, and not of the court.
4. Before there could be a distribution
of estate, the following stages must
be followed:
a. Payment of obligations (liquidation
of estate)
b. Declaration of heirs to determine
to whom the residue of the estate
should be distributed. Afterwards,
the residue may be distributed and
delivered to the heirs.
o Determination the right of a
natural child
o Determination of proportionate
shares of distributes.
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REVIEWER IN REMEDIAL LAW
5. Project of partition
the e/a has no duty to prepare and
present the same under the Rules.
The court may, however, require him to
present such project to better inform
itself of the condition of the estate.
A project of partition is merely a
proposal for the distribution of the
hereditary estate which the court may
accept or reject.
It is the court that makes that
distribution of the estate and determine
the persons entitled thereto
6. When may proceedings be closed
It is the order of distribution directing
the delivery of the residue of the estate
to the persons entitled thereto that
brings to a close the intestate
proceedings, puts an end to the
administration and thus far relieves the
administrator from his duties
B. Questions as to Advancement
Made, or Alleged to Have Been
Made, by the Deceased to Any
Heir
There must be a hearing and final order
of the court thereon shall be binding on
the person raising the questions and on
the heir.
C. Expenses of Partition
Paid by e/a when he has retained
sufficient effects in his hands
Will be paid when it appears equitable
to the court
And not inconsistent with the intention
of the testator
Otherwise, paid by the parties in
proportion to their respective shares or
interest
The apportionment shall be settled and
allowed by the court, and, if any
person interested in the partition
does not pay his proportion or
share, the court may issue an
execution in the name of the e/a
against the party not paying the
sum assessed.
D. Recording of the Order of
Partition of Estate
Certified copies of final orders and
judgments of the court relating to the
real estate or the partition thereof shall
be recorded in the registry of deeds of
the province where the property is
situated.
Chapter 2: Settlement of Estate of Deceased Persons
E. Effect of Final Decree of
Distribution:
1. Nature of proceedings
In rem, which is binding against the
whole world.
All persons having interest in the
subject matter involved, whether they
are notified or not, are equally bound.
The court acquires jurisdiction over all
persons interested, through the
publication of the notice prescribed and
any order that may be entered therein is
binding against all of them.
The only instance where a party
SPECIAL PROCEEDINGS
interested in a probate proceeding may
have a final liquidation set aside is
when he is left out by reason of
circumstances beyond his control or
through mistake or inadvertence not
imputable to negligence.
Even then, the better practice to secure
relief is reopening of the same case by
proper motion within reglamentary
period, instead of an independent
action, the effect of which, if successful,
would be for another court or judge to
throw out a decision or order already
final and executed and reshuffle
properties long ago distributed and
disposed of.
2. Prohibition against interference by
other courts
General Rule: a court should not
interfere with probate proceedings
pending in a co-equal court.
A separate action (example: to allow a
spurious child to present evidence on
his filiation and to claim his share in
the decedents estate) is not allowed. It
is the probate court that has exclusive
jurisdiction to make a just and legal
distribution of the estate.
3. Order is appealable
An order which determines the
distributive shares of the heirs of a
deceased person is appealable. If not
appealed within the reglamentary
period, it becomes final.
4. Writ of execution
The probate court generally cannot
issue a writ of execution because its
orders usually refer to the adjudication
of claims against the estate which the
e/a may satisfy without the necessity of
resorting to a writ of execution.
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REVIEWER IN REMEDIAL LAW
5. Instances when probate court may
issue writ of execution:
a. To satisfy the contributive shares of
devisees, legatees and heirs in
possession of the decedents assets
b. To enforce payment of expenses of
partition
c. To satisfy the costs when a person is
cited for examination in probate
proceedings
XIX. TRUSTEES
A. WHERE TRUSTEE APPOINTED
B. APPOINTMENT AND POWERS OF TRUSTEE
UNDER WILL. EXECUTOR OF FORMER
TRUSTEE NEED NOT ADMINISTER TRUST
C. NEW TRUSTEE
D. TRUSTEE APPOINTED ABROAD
E. TRUSTEE MUST FILE BOND BEFORE
PERFORMING DUTIES
F. CONDITIONS OF THE BOND
G. APPRAISAL AND COMPENSATION OF
TRUSTEE
H. REMOVAL OR RESIGNATION OF TRUSTEE
I. IF SALE OR ENCUMBRANCE OF TRUST
ESTATE NECESSARY OR EXPEDIENT
A. Where Trustee Appointed
A trustee necessary to carry into effect
the provisions of a will on written
instrument shall be appointed by the
RTC in which the will was allowed, if it
be a will allowed in the Philippines,
otherwise by the RTC of the province in
which the property, or some portion
thereof, affected by the trust is situated.
1. Procedure
a. Allowance of the instrument
creating the trust
b. Petition by the e/a or the person
appointed as trustee in the
instrument
c. Appointment of trustee by the court
d. Notice to all interested parties
e. Filling of bond by the trustee
2. Discretion of the Court in the
appointment of a trustee
The power to appoint a trustee is
discretionary with the court before
whom application is made, and the
appellate court will decline to interfere
except in cases of clear abuse.
Chapter 2: Settlement of Estate of Deceased Persons
B. Appointment and Powers of
Trustee Under Will. Executor of
Former Trustee Need Not
Administer Trust
Testator has omitted in his will to
appoint a trustee
A trustee is necessary to carry into
effect the provisions of the will
1. Duty of court
Notice to persons interested
Appoint a trustee
No person succeeding to a trust as e/a
of a former trustee shall be required to
SPECIAL PROCEEDINGS
accept such trust.
2. Notice and consent of beneficiary are
not essential for the creation of trust
This is because the acceptance by the
beneficiary is presumed
3. Creation of trust through an
inoperative will
A written instrument though inoperative
as a will from want of compliance with
statutory requisitions, may yet operate
as a declaration of trust.
But such writing must state the
fiduciary relation and the terms and
conditions of the trust with sufficient
certainty and it must be of such nature
that the party must have intended it as
a declaration of a trust
C. New Trustee
Original trustee under a written
instrument declines, resigns, dies or
removed
Before the objects of the trust are
accomplish
And no adequate provision is made in
the instrument for supplying vacancy
Court - notice to all persons interested,
appoint a new one to act alone or jointly
1. Power of new trustee
Have and exercise the same powers,
right, and duties as if he had been
originally appointed, and the trust
estate shall vest in him in like manner
as it had vested or would have vested,
in the trustee in whose place he is
substituted and the court may order
such conveyance to be made by the
former trustee or his representatives, or
by the other remaining trustees, as may
be necessary or proper to vest the trust
estate in the new trustee, either or
jointly with the others
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REVIEWER IN REMEDIAL LAW
2. Non-acceptance by trustee not
sufficient for failure of trust
A trust will never fail for want of a
trustee and a court will always appoint
a trustee where necessary to the
administration of a trust or to prevent
failure of the trust, where the necessity
arises from failure of appointment, from
non-acceptance or disqualification of a
trustee or from other cause; or the court
will execute the trust by its officers or
otherwise effect its accomplishment.
D. Trustee Appointed Abroad
Chapter 2: Settlement of Estate of Deceased Persons
1. Failure to give bond - Considered to
have declined or resigned the trust.
2. Exemption by court from filing of
bond
When testator has directed such
exemption
All persons beneficially interested in the
trust, request also such exemption
Exemption may be cancelled at any time
3. Effect of failure to file a bond
If the trustee fails to furnish a bond as
required by the court, he fails to qualify
as such. Nonetheless the trust is not

1. Requisites
Land in the Philippines held in trust
In favor of persons resident
Philippines
A trustee appointed abroad
2. Procedure:
a. Philippine land is held in trust for
Philippine residents, by a trustee
who derives authority from outside
the Philippines
b. Petition filed in the RTC of the
province where the land is situated
c. Notice to all interested parties
d. Trustee is ordered by the court to
apply for appointment.
3. Duty of such trustee
Petition the CFI of province where land
is situated
Notify all persons interested
Apply to the court for appointment as
such
4. Failure to do these
Court will declare such trust vacant and
shall appoint new trustee.
5. Territoriality of authority of trustee
The powers of a trustee appointed by a
Philippine court cannot extend beyond
the confines of the territory of the
Republic.
This is based on the principle that his
authority cannot extend beyond the
jurisdiction of the Republic, under
whose courts he was appointed.
E. Trustee Must File Bond Before
Performing Duties
Filed in the clerk of court
Amount fixed by the judge
Payable to the government
Philippines
Sufficient and available for
protection of any party in interest
SPECIAL PROCEEDINGS
defeated by such a failure to give bond
of F. Conditions of the Bond
1. Inventory
That the trustee will make and return to
the court, at such time as it may order,
a true inventory of all the real and
personal estate belonging to him as
trustee, which at the time of the making
of such inventory shall have come to his
possession or knowledge;
2. Faithful management
That he will manage and dispose of all
such estate, and faithfully discharge his
trust in relation thereto, according to
law and the will of the testator or the
provisions of the instrument or order
under which he is appointed;
3. Accounting
That he will render upon oath at least
once a year until his trust is fulfilled,
unless he is excused in any year by the
court, a true account of the property in
his hands and the management and
disposition thereof, and will render such
other accounts as the court may order;
4. Settlement of account and deliver
estate
That at the expiration of his trust he
will settle his account in court and pay
over and deliver all the estate remaining
in his hands, or due from him on such
settlement, to the person or persons
entitled to thereto.
5. Exemption of inventory
When trustee is not the original trustee
appointed
Courts discretion
If an inventory has already been filed
of
the

Page 176 of 370

REVIEWER IN REMEDIAL LAW
6. Duties of trustee vis--vis executor or
administrator
A trustee, like an e/a, holds an office of
trust, particularly when the trustee acts
as such under judicial authority.
The duties of e/a rare however, fixed
and/or limited by law whereas those of
the trustee of an express trust are,
usually governed by the intention of the
trustor or the parties, if established by
contract.
Besides, the duties of trustees may
cover a wider range than those of e/a of
the estate of deceased persons (Araneta
v. Perez (1962))
7. Nature of possession by trustee
The possession of the property by the
trustee is not an adverse possession,
but only a possession in the name and
in behalf of the owner of the same.
A trustee may acquire the trust estate
by prescription provided there is a
repudiation of the trust, such
repudiation being open, clear and
unequivocal, known to the cestui que
trust (Salinas v. Tuazon).
G. Appraisal and Compensation of
Trustee
1. Appraisal
When inventory is necessary and court
may require inheritance tax appraisers
to assist.
2. Compensation of trustee
According to the trust instrument; if
none it shall be fixed by the court
3. Factors affecting trustees
compensation
a. The character and powers of the
trusteeship
b. The risk and responsibility
c. Time
d. Labor and skill required in the
administrator of the trust, as well as
the care and management of the
estate.
Chapter 2: Settlement of Estate of Deceased Persons
H. Removal or Resignation of
Trustee
Petition by parties beneficially
interested
Due notice to the trustee
Hearing
1. Grounds for removal
Removal appears essential in the
interest of petitioner
Trustee is insane or
otherwise incapable of discharging his
trust or
evidently unsuitable
SPECIAL PROCEEDINGS
2. Resignation
He may resign; court will determine if
proper
I. If Sale or Encumbrance of Trust
Estate Necessary or Expedient
Petition
Notice
Hearing
Court may order such to be made
And the re-investment and application
of the proceeds thereof in such manner
as will best effect the objects of the trust
The petition, notice, hearing, order of
sale or encumbrance, and record of
proceedings, shall conform as nearly as
may be to the provisions concerning the
sale or encumbrance by guardians of
the property of minors or other wards
1. Requirement of judicial order for sale
or encumbrance of trust estate
it is of a perishable or transitory nature
and then only to convert it into
substantial, enduring and revenue-
producing investment.
If a change be deemed necessary, or for
the interest of the beneficiary, the
permission or sanction of the court
should be obtained
Page 177 of 370
REVIEWER IN REMEDIAL LAW
Chapter 3: Escheats
(Asked in the 2002 Bar Examinations)
I. WHEN ALLOWED
II. DUTY OF COURT; WHEN PETITION
SUFFICIENT
III. COURT SHALL ADJUDGE THAT THE
ESTATE SHALL ESCHEAT
IV. PERIOD TO APPEAL AND CLAIM THE
ESTATE
V. OTHER ACTIONS FOR ESCHEAT
I. WHEN ALLOWED
Person dies intestate
Seized of real property in the Philippines
Leaves no heir or person by law entitled
to the same
1. Procedure
a. Solicitor General or his
representative in behalf of the
Republic of the Philippines to file the
petition
b. In the RTC of the province where the
deceased last resided or in which he
had estate, if he resided out of the
Philippines
c. If petition is sufficient in form and
substance, the court shall fix a date
and place for the hearing
o Which date shall not be more
than 6 months after the entry of
the order
d. The court shall direct a copy of the
order to be published before the
hearing at least once a week for 6
consecutive weeks in some
newspaper of general circulation
published in the province, as the
court shall deem best
e. The court shall hear the case and
judge whether or not the estate shall
escheat
f. If the court rules in favor of the
Republic,
o It shall assign the personal
estate to the municipality or city
where the deceased last resided,
and the real estate to the
municipalities or cities,
respectively, in which the same
is situated.
o If the deceased never resided in
the Philippines, the whole estate
may be assigned to the
respective municipalities or
cities where the same is located.
o Such estate shall be for the
benefit of public schools, and
public charitable institutions
Chapter 3: Escheats
and centers in said
municipalities or cities.
o It may also order the
establishment of a permanent
trust, so that only the income
from the property shall be used.
2. Who may file:
Solicitor General or his representative
3. Where to file:
CFI of the province where deceased last
resided OR which he had estate
SPECIAL PROCEEDINGS
4. Nature of escheat
Is not an ordinary civil action but a
special proceeding that should be
commenced not by complaint but by
petition.
It is an incident or attribute of
sovereignty and rests on the principle of
ultimate ownership by the state of all
property within its jurisdiction.
It is a substantial right of the state and
is not a claim based on charity, gratuity
or unearned benefit.
5. Parties
It must be initiated by the Government
through the Solicitor General.
All interested parties, especially the
actual occupants and adjacent lot
owners shall be personally notified of
the proceeding and given the
opportunity to present their valid claims
Any person alleging to have a direct
right or interest in the property sought
to be escheated, likewise an interested
and necessary party, may properly
oppose the petition for escheat or file
claim thereto with the court within the
period provided in the Rule.
6. Requisites for filing:
a. A person died intestate
b. He left no heirs or persons by law
entitled to the same
c. Deceased left properties
7. Proceedings in escheat cannot be
converted into settlement of the
estate.
Proceedings in escheat cannot be
converted into settlement of the estate.
The escheat court does not have the
power to order or proceed with, the
distribution of the estate of a decedent
in escheat proceedings and adjudicate
the properties to the oppositors
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REVIEWER IN REMEDIAL LAW Chapter 3: Escheats

II. DUTY OF COURT; WHEN Thus where the right to escheat claimed
PETITION SUFFICIENT by municipality has existed long prior to
the registration proceedings instituted
Fix a date and place for hearing by the Roman Catholic Archbishop of
Date - x < 6 months after the entry of Manila and the same has not been
the order asserted in said proceedings, it is
Direct a copy of the order be published deemed to have been completely waived.
before the hearing
At least once a week for 6 successive
weeks IV. PERIOD TO APPEAL AND CLAIM
Newspaper of general circulation in the THE ESTATE
province
Within 5 years from date of judgment;
otherwise, barred forever

III.COURT SHALL ADJUDGE THAT
THE ESTATE SHALL ESCHEAT
Date and time published
Right of government proven in court
Payment of just debts and charges
1. Personal estate goes to the
municipality or city of last residence
2. Real estate goes to the
municipality or city where same is
situated
If the deceased never resided in the
Philippines, the whole estate may be
assigned to the respective
municipalities or cities where the same
is located.
Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers in said
municipalities or cities.
The court, at the instance of an
interested party, or on its own motion,
may order the establishment of a
permanent trust, so that the only
income from the property shall be used
SPECIAL PROCEEDINGS
1. By whom:
Devisee, legatee, heir, widow, widower,
or other person entitled to such estate
appears
Such person shall have possession of
and title to the same, or if sold, the
municipality or city shall be
accountable to him for the proceeds
after deducting reasonable charges for
the care of the estate
2. Period for filing claim
5 years from date the property was
delivered to the state.
V. OTHER ACTIONS FOR ESCHEAT
Until otherwise provided by law, actions
reversion or escheat of properties
alienated in violation of the Constitution
or of any statute shall be governed by
this rule, except that the action shall be
instituted in the province where the
land lies in whole or in part.

3. Conclusiveness of judgment of
escheat
Conclusive upon persons notified by
advertisement to all persons interested.

4. Evidence required
Escheats and forfeitures are not favored
by law, and the modern rule under
statutes regulating escheat proceedings
is that the burden of proof rests on the
state to prove that the property in
question is in all respects liable to
escheat.

5. Waiver
The right to escheat may be waived,
either expressly or impliedly.

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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts

CHAPTER 4: Special Rules 3. Nature

Implementing the Family Courts A trust relation of the most sacred
character (Herrera).
I. GUARDIANSHIP
II. ADOPTION 4. Purpose
III. RULES ON CUSTODY OF CHILDREN To safeguard the right and interests of
(RULE 99, SECS. 6 AND 7) minors and incompetent persons.
IV. CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO 5. Basis: Parens Patriae
CUSTODY OF MINORS (A.M. NO. 03-04- It is the States duty to protect the
04-SC) rights of persons/individuals who
V. COMMITMENT OF CHILDREN (A.M. NO.
02-1-19-SC)
because of age/incapacity are in an
unfavourable position vis--vis other
parties (Nery v. Lorenzo, 1972).
I. GUARDIANSHIP

SPECIAL PROCEEDINGS
Kinds of Guardians (Regalado)
A. GUARDIANSHIP IN GENERAL 1. Legal Guardian deemed as guardian by
B. GUARDIANSHIP OF MINORS provision of law, without need of court
1. PARENTS AS LEGAL GUARDIANS (ART. appointment (Art. 320, CC; Art. 225, FC)
225, FC) 2. Guardian ad Litem appointed by the
2. RULE ON GUARDIANSHIP OF MINORS court to prosecute or defend a minor, insane
(A.M. NO. 03-02-05-SC) or person declared to be incompetent, in a
a. SCOPE & APPLICABILITY court action.
b. PETITION FOR APPOINTMENT OF 3. Judicial Guardian appointed by the
GUARDIAN court in pursuance to law, as guardians for
c. THE GUARDIAN insane persons, prodigals, minor heirs of
d. SELLING & ENCUMBERING THE deceased war veterans and other
PROPERTY OF THE WARD incompetent persons.
e. REMOVAL, RESIGNATION, & a. Guardian over the person.
TERMINATION OF GUARDIANSHIP b. Guardian of the property.
C. GUARDIANSHIP OF INCOMPETENTS c. General Guardian has custody and
(RULES 92-98) care of the wards person and property.
a. SCOPE & APPLICABILITY
b. PETITION FOR APPOINTMENT OF
GUARDIAN
6. Ancillary Guardianship
c. THE GUARDIAN guardianship in a state other than that
d. SELLING & ENCUMBERING THE in which guardianship is originally
PROPERTY OF THE WARD (RULE 95) granted and which is subservient and
e. TERMINATION OF GUARDIANSHIP subsidiary to the latter.
(RULE 97)
B. Guardianship of Minors
A. Guardianship In General
1. Parents as Legal Guardians (Art.
1. Guardianship 225, FC)
the power of protective authority given
by law and imposed on an individual The father and the mother shall jointly
who is free and in the enjoyment of his exercise legal guardianship over the
rights, over one whose weakness on property of their unemancipated
account of his age or other infirmity common child without the necessity of a
renders him unable to protect himself court appointment.
(Herrera). Where the market value of the property
or the annual income of the child
2. Guardian exceeds P50,000:
a person lawfully invested with power The parent concerned shall be required
and charged with the duty of taking to furnish a bond in such amount
care of a person who for some as the court may determine, but not
peculiarity or status or defect of age, less than 10% of the value of the
understanding or self-control is property or annual income.
considered incapable of administering A verified petition for approval of the
his own affairs (Herrera). bond shall be filed in the Family
Court of the place where the child
resides, or if the child resides in a

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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
foreign country, in the proper court Family Court of the province or city
of the place where the property or where his property or any part
any part thereof is situated. thereof is situated.
In case of disagreement, the fathers
decision shall prevail, unless there is a Grounds for filing:
judicial order to the contrary. 1. Death, continued absence, or
incapacity of his parents;
Bautista vs. Bautista: A father or mother, as the 2. Suspension, deprivation or
natural guardian of the minor under parental termination of parental authority;
authority, does not have the power to dispose or 3. Remarriage of his surviving parent,
encumber the property of the latter. Such power if the latter is found unsuitable to
is granted by law only to a judicial guardian of
exercise parental authority;
the wards property and only with courts
approval. 4. When the best interests of the minor
so require.

SPECIAL PROCEEDINGS
Valencia vs. Lagdameo: The remedy of vendees
prejudiced by the illegal transactions of a Contents of petition:
natural guardian involving the property of the 1. Jurisdictional facts;
minor child lies only against the natural 2. Name, age and residence of the
guardian, not however to recover ownership and prospective ward;
possession of the properties sold but only to 3. Ground rendering the appointment
recover damages.
necessary or convenient;
4. Death of the parents of the minor or
2. Rule on Guardianship of Minors the termination, deprivation or
(A.M. No. 03-02-05-SC) suspension of their parental
authority;
a. Scope and Applicability 5. Remarriage of the minors surviving
The Rule on Guardianship of Minors parent;
applies to petitions for guardianship 6. Names, ages, and residences of
over the person or property, or both, relatives within the 4th civil degree
of a minor. of the minor, and of persons having
The Rules on Guardianship (Rules him in their care and custody;
92-98, RoC) apply only to 7. Probable value, character and
guardianship of incompetents other location of the property of the minor;
than a minor. 8. Name, age and residence of the
person for whom letters of
b. Petition for Appointment of guardianship are prayed.
Guardian
Who may file: The petition shall be verified and
Resident minor accompanied by a certification
1. Any relative or other person on against forum shopping.
behalf of a minor; No defect in the petition or
2. The minor himself, if 14 years of verification shall render void the
age or over; issuance of letters of guardianship.
3. The Secretary of DSWD or the
Secretary of DOH, in the case of Opposition
an insane minor who needs to Who may file:
be hospitalized. 1. Any interested person;
Non-resident minor 2. The social worker ordered to
1. Any relative or friend of such make the case study report, if he
minor; finds that the petition for
2. Anyone interested in his guardianship should be denied
property, in expectancy or (Sec. 9).
otherwise. How: By filing a written opposition.
Grounds for filing:
Where to file: 1. Majority of the minor;
Resident minor 2. Unsuitability of the person for
Family Court of the province or city whom letters are prayed.
where the minor actually
resides.
Non-resident minor

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REVIEWER IN REMEDIAL LAW
Procedure
1. Filing of petition.
2. Court shall fix a time and place for
hearing.
3. Notice Requirement
Court shall cause reasonable notice
to be given to:
a. The persons mentioned in
the petition;
b. The minor if he is fourteen
years of age or over.
For non-resident minors, notice
shall be given to the minor by
publication or any other means
as the court may deem proper.
Court may also direct other general
or special notice to be given.
4. Case Study Report Court shall
order a social worker to conduct a
case study of the minor and all the
prospective guardians and submit
his report and recommendation to
the court for its guidance before the
scheduled hearing.
5. Hearing
Compliance with notice requirement
must be shown.
The prospective ward shall be
presented to the court. If the minor
is non-resident, the court may
dispense with his presence.
At the discretion of the court, the
hearing on guardianship may be
closed to the public.
The records of the case shall not be
released without court approval.
6. Issuance or denial of letters of
guardianship.
7. Service of final and executory
judgment or order upon the Local
Civil Registrar of the municipality or
city where the minor resides and the
Register of Deeds of the place where
his property or part thereof is
situated, who shall annotate the
same in the corresponding title, and
report to the court their compliance
within fifteen days from receipt of
the order.
c. The Guardian
Order of Preference of Appointment
(in default of parents or a court-
approved guardian)
1. The surviving grandparent. In case
several grandparents survive, the
court shall select any of them taking
into account all relevant
considerations.
Chapter 4: Special Rules Implementing the Family Courts
2. The oldest brother or sister of the
minor over 21 years of age, unless
unfit or disqualified.
3. The actual custodian of the minor
over 21 years of age, unless unfit or
disqualified.
4. Any other person, who in the sound
discretion of the court, would serve
the best interests of the minor.
Qualifications
The court shall consider the
guardians:
1. Moral character;
SPECIAL PROCEEDINGS
2. Physical, mental and
psychological condition;
3. Financial status;
4. Relationship of trust with the
minor;
5. Availability to exercise the
powers and duties of a guardian
for the full period of the
guardianship;
6. Lack of conflict of interest with
the minor;
7. Ability to manage the property of
the minor.
Powers and Duties
In general
Guardian of resident minor: Care
and custody of the person of his
ward and the management of his
property, or only the
management of his property.
Guardian of non-resident minor:
Management of all his property
within the Philippines.
Specific duties
1. To pay the just debts of the ward
out of:
a. Personal property and the
income of the real property of
the ward, if the same is
sufficient;
b. Real property of the ward
upon obtaining an order for
its sale or encumbrance.
2. To settle all accounts of his
ward;
3. To demand, sue for, receive all
debts due him, or, with the
approval of the court, compound
for the same and give discharges
to the debtor on receiving a fair
and just dividend of the property
and effects;
4. To appear for and represent the
ward in all actions and special
proceedings, unless another
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REVIEWER IN REMEDIAL LAW
person is appointed for that
purpose;
5. To manage the property of the
ward frugally and without waste,
and apply the income and profits
thereon, insofar as may be
necessary, to the comfortable
and suitable maintenance of the
ward. If such income and profits
be insufficient for that purpose,
to sell or encumber the real or
personal property, upon being
authorized by the court to do so;
6. To consent to a partition of real
or personal property owned by
the ward jointly or in common
with others, upon:
a. Authority granted by the
court after hearing;
b. Notice to relatives of the
ward, and;
c. A careful investigation as to
the necessity and propriety
of the proposed action.
7. To submit to the court a verified
inventory of the property of the
ward:
Within three months after
his appointment;
Annually, and;
Whenever required upon the
application of an interested
person.
8. To report to the court any
property of the ward not
included in the inventory which
is discovered, or succeeded to, or
acquired by the ward within 3
months after such discovery,
succession, or acquisition;
9. To render to the court for its
approval an accounting of the
property:
One year from his
appointment;
Every year thereafter, and;
As often as may be required.
Bonds of Guardians
When filed: Before a guardian
enters upon the execution of his
trust, or letters of guardianship
issue.
Amount: As determined by the
Court.
Conditions: The guardian is:
1. To make and return to the court,
within three months after the
issuance of his letters of
guardianship, a true and
Chapter 4: Special Rules Implementing the Family Courts
complete inventory of all the real
and personal property of his
ward which shall come to his
possession or knowledge or to
the possession or knowledge of
any other person in his behalf;
2. To faithfully execute the duties
of his trust, to manage and
dispose the property according
to this rule for the best interests
of the ward, and to provide for
his proper care, custody and
education;
3. To render a true and just
SPECIAL PROCEEDINGS
account of all the property of the
ward in his hands, and of all
proceeds or interest derived from
them, and of the management
and disposition of the same, at
the time designated by this rule
and such other times as the
court directs; and at the
expiration of his trust, to settle
his accounts with the court and
deliver and pay over all the
property, effects, and monies
remaining in his hands, or due
from him on such settlement, to
the person lawfully entitled
thereto;
4. To perform all orders of the
court and such other duties as
may be required by law.
Posting of new bond
Whenever necessary, the court may
require the guardian to post a
new bond and may discharge
from further liability the sureties
on the old bond.
Requirements:
1. Due notice to interested persons;
2. No injury must result to those
interested in the property.
Liability: In case of breach of any of
its conditions, the guardian may be
prosecuted in the same proceeding
for the benefit of the ward or of any
other person legally interested in the
property.
Reimbursement of Reasonable
Expenses and Payment of
Compensation
The court may authorize
reimbursement to the guardian,
other than a parent, of reasonable
expenses incurred in the execution
of his trust.
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REVIEWER IN REMEDIAL LAW
The court may allow payment of
compensation for his services as the
court may deem just, not exceeding
10% of the net income of the ward, if
any; otherwise, in such amount the
court determines to be a reasonable
compensation for his services.
Embezzlement, Concealment, or
Conveyance of Wards Properties
The court may require any person
suspected of having embezzled,
concealed, or disposed of any
money, goods or interest, or a
written instrument belonging to the
ward or his property to appear for
examination concerning any thereof
and issue such orders as would
secure the property against such
embezzlement, concealment or
conveyance, upon complaint of:
The guardian or ward, or;
Any person having actual or
prospective interest in the property
of the ward.
d. Selling and Encumbering the
Property of the Ward
Grounds
When the income of a property
under guardianship
insufficient to maintain and
educate the ward
When it is for the benefit of the ward
that his personal or real
property or any part thereof be
sold, mortgaged or otherwise
encumbered, and the proceeds
invested in safe and productive
security, or in the improvement
or security of other real
property.
How: Verified petition filed by the
guardian.
Order to Show Cause
a. The court shall order the wards
next of kin and all persons
interested in the property to
appear at a reasonable time and
place and show cause why the
petition should not be granted.
b. At the time and place designated
in the order to show cause, the
court shall hear the allegations
and evidence of the petitioner
and next of kin, and other
persons interested, together with
Chapter 4: Special Rules Implementing the Family Courts
their witnesses, and grant or
deny the petition as the best
interests of the ward may
require.
Order for Sale or Encumbrance
Contents:
a. Grounds for the sale or
encumbrance;
b. Manner of sale (public or
private);
c. Time and manner of
payment;
d. Security, if payment
SPECIAL PROCEEDINGS
deferred;
e. Additional bond from
guardian, if required.
Duration: Not more than 1 year,
unless renewed.
Investment of Proceeds and
Management of Property
The court may authorize and require
the guardian to invest the
proceeds of sales or
encumbrances, and any other
money of his ward in his hands,
in real or personal property, for
the best interests of the ward.
The court may make such other
orders for the management,
is investment, and disposition of
the property and effects, as
circumstances may warrant.
e. Removal, Resignation, and
Termination of Guardianship
Removal
How: Upon reasonable notice to the
guardian.
Grounds: The guardian:
1. Becomes insane or otherwise
incapable of discharging his
trust;
2. Is found to be unsuitable;
3. Wasted or mismanaged the
property of the ward;
4. Failed to render an account or
make a return for thirty days
after it is due.
Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of
the guardian, the court shall
appoint a new one.
No motion for removal or resignation
shall be granted unless the
guardian has submitted the
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
proper accounting of the becoming thereby an easy prey for
property of the ward and the deceit and exploitation.
court has approved the same.
2. Petition for Appointment of
Termination Guardian
Grounds:
1. The ward has come of age; Who may file:
2. The ward has died. For resident incompetents
How: 1. Any relative, friend, or other
1. Court motu propio terminates person on behalf of the
guardianship; incompetent who has no parent
2. Upon verified motion of any or lawful guardian;
person allowed to file a petition 2. Health secretary, in favor of:
for guardianship. a. An insane person who

SPECIAL PROCEEDINGS
The guardian shall notify the court should be hospitalized;
of the fact of coming of age or b. An isolated leper.
death of the ward within 10 days For non-resident incompetents
of its occurrence. 1. Any relative or friend;
The final and executory judgment or 2. Anyone interested in the
order removing a guardian or incompetents estate.
terminating the guardianship
shall be served upon the Local Where to file:
Civil Registrar of the For resident incompetents: RTC of the
municipality or city where the province or MTC of the municipality
minor resides and the Register of or chartered city where the
Deeds of the province or city incompetent resides.
where his property or any part For non-resident incompetents: RTC of
thereof is situated, who shall the province where the property of
enter the final and executory the incompetent or part thereof is
judgment or order in the situated.
appropriate books in their Transfer of Venue - The court taking
offices. cognizance of a guardianship
proceeding may transfer the same to
C. Guardianship of Incompetents the court of another province or
(RULES 92-98) municipality wherein the ward has
acquired real property, if he has
1. Scope and Applicability transferred thereto his bona-fide
residence.
The Rules on Guardianship (Rules 92-
98, RoC) apply to guardianship over the Contents
person or property, or both, of 1. Jurisdictional facts;
incompetents other than a minor. 2. Incompetency rendering the
The Rule on Guardianship of Minors appointment necessary or
(A.M. No. 03-02-05-SC) governs convenient;
guardianship of minors. 3. Names, ages, and residence of the
relatives of the incompetent, and of
Incompetents the person having him in their care;
a. Persons suffering the penalty of civil 4. Probable value and character of his
interdiction; estate;
b. Hospitalized lepers; 5. Name of the person for whom letters
c. Prodigals; of guardianship are prayed.
d. Deaf and dumb who are unable to read
and write; The petition shall be verified.
e. Those who are of unsound mind, even No defect in the petition or verification
though they have lucid intervals; shall render void the issuance of
f. Persons not being of unsound mind, but letters of guardianship.
by reason of age, disease, weak mind,
and other similar causes, cannot, Opposition
without outside aid, take care of Who may file: Any interested person.
themselves and manage their property, How: By filing a written opposition.

Page 185 of 370

REVIEWER IN REMEDIAL LAW
Grounds:
1. Competency of the alleged
incompetent;
2. Unsuitability of the person for whom
letters are prayed.
Procedure
1. Filing of petition for appointment of
guardian for an incompetent.
2. Court shall fix a time and place for
hearing the petition.
3. Court shall cause reasonable notice
of hearing to be given to the persons
mentioned in the petition residing in
the province, including the
incompetent himself, and may direct
other general or special notice to be
given.
o If incompetent is a non-resident,
notice shall be given to him in
such manner as the court deems
proper, by publication or
otherwise (Rule 93, Sec. 6).
4. Hearing
o The incompetent must be
present, if able to attend.
o Fulfilment of notice requirement
must be shown.
5. Issuance of letters of appointment of
a guardian.
6. The final order or judgment shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part thereof is
situated (Rule 93, Sec. 8).
Yangco vs. CFI: Notice to the wards relatives
is a jurisdictional requirement.
3. The Guardian
Considerations in the Choice of the
Guardian
Francisco vs. CA (1984): The court may consider
the financial situation, the physical condition
and sound judgment, prudence and
trustworthiness, the morals, character and
conduct, and the present and past history of a
prospective appointee, as well as the probability
of his being able to exercise the powers and
duties of a guardian for the full period during
which guardianship will be necessary.
Guerrero vs. Tan: The courts should not appoint
as a guardian any person who is not personally
subject to their jurisdiction.
Garchitorena vs. Sotelo: If the interested person
is a creditor and mortgagee of the wards estate,
he cannot be appointed guardian of the wards
person and property.
Chapter 4: Special Rules Implementing the Family Courts
Powers and Duties (Rule 96)
In general
1. Guardian of resident incompetent:
Care and custody of the person of
his ward, and the management of
his estate, or the management of
the estate only
2. Guardian of non-resident
incompetent: Management of all the
estate of the ward within the
Philippines.
Specific duties
1. To pay the just debts of the ward
out of:
SPECIAL PROCEEDINGS
a. Personal property and the
income of the real property of
the ward, if the same is
sufficient.
b. Real property of the ward upon
obtaining an order for its sale or
encumbrance.
2. To settle all accounts of his ward;
3. To demand, sue for, receive all debts
due him, or, with the approval of the
court, compound for the same and
give discharges to the debtor on
receiving a fair and just dividend of
the property and effects;
4. To appear for and represent the
ward in all actions and special
proceedings, unless another person
is appointed for that purpose;
5. To manage the property of the ward
frugally and without waste, and
apply the income and profits
thereon, insofar as may be
necessary, to the comfortable and
suitable maintenance of the ward. If
such income and profits be
insufficient for that purpose, to sell
or encumber the real or personal
property, upon being authorized by
the court;
6. To consent to a partition of real or
personal property owned by the
ward jointly or in common with
others, upon:
a. Authority granted by the court
after hearing;
b. Notice to relatives of the ward,
and;
c. A careful investigation as to the
necessity and propriety of the
proposed action.
7. To submit to the court:
a. An inventory of the estate of the
ward, sworn to by the guardian;
i. Within three months after
his appointment;
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REVIEWER IN REMEDIAL LAW
1. The estate of the ward
described in the first
inventory shall be
appraised. In the
appraisement the court
may request the
assistance of one or more
of the inheritance tax
appraisers.
ii. Annually after his
appointment. and;
iii. Whenever required upon the
application of an interested
person.
a. An account of the estate of the
ward, sworn to by the guardian:
i. Annually after his
appointment, and;
ii. Whenever required upon the
application of an interested
person.
8. To report to the court any property
of the ward not included in the
inventory which is discovered, or
succeeded to, or acquired by the
ward within 3 months after such
discovery, succession, or
acquisition.
Gorostiaga vs. Sarte: Jurisdiction over an
incompetents person cannot be had unless a
guardian was appointed upon whom summons
and notice of the proceedings may be served.
Zafra-Sarte vs. CA (1970): The guardians
appointment is good until set aside. Despite an
appeal, the guardian can do what is necessary
(under courts direction) for the protection of the
ward and his estate.
Bonds of Guardians (Rule 94)
When filed: Before a guardian enters
upon the execution of his trust, or
letters of guardianship issue.
Where filed: In the office of the Clerk of
Court.
Amount: As determined by the Court.
Conditions - The guardian is:
1. To make and return to the court,
within 3 months, a true and
complete inventory of all the real
and personal estate of his ward
which shall come to his possession
or knowledge of any other person for
him;
2. To faithfully execute the duties of
his trust, to manage and dispose of
the estate for the best interests of
the ward, and to provide for the
proper care, custody, and education
of the ward;
Chapter 4: Special Rules Implementing the Family Courts
3. To render a true and just account of
all the estate of the ward in his
hands, and of all proceeds or
interest derived from them, and of
the management and disposition of
the same, at the time designated
and such other times as the courts
directs, and at the expiration of his
trust to settle his accounts with the
court and deliver and pay over all
the estate, effects, and moneys
remaining in his hands, or due from
him on such settlement, to the
person lawfully entitled thereto;
SPECIAL PROCEEDINGS
4. To perform all orders of the court by
him to be performed.
Posting of new bond
o Whenever it is deemed necessary,
the court may require a new bond to
be given by the guardian, and may
discharge the sureties on the old
bond from further liability.
Requirements:
1. Due notice to interested persons;
2. No injury must result to those
interested in the property.
Liability for breach: In case of the
breach of a condition of the bond,
the guardian may be prosecuted in
the same proceeding or in a
separate action for the use and
benefit of the ward or of any other
person legally interested in the
estate.
Guerrero vs. Teran: The bond of the guardian is a
continuing one against the obligors and their
estates until all of its conditions are fulfilled. The
mere fact that the guardian was removed does
not relieve her or her bondsmen from liability
during the time she was duly acting as such
guardian.
Zubaldia vs. Hermanos: If the guardian delegates
his duties to another, he shall be responsible for
the others actions in the premises and for any
resulting loss. Exception: If the guardian shows
that he used reasonable care and discretion in
the manner of selecting those whom he employs.
Doronilla vs. Lopez: A guardian may be
imprisoned for failure to render his account and
to deliver the estate upon order to his successor
Reimbursement of Reasonable
Expenses and Payment of
Consideration (Rule 96, Sec. 8)
The guardian, other than a parent, shall
be allowed the amount of his reasonable
Page 187 of 370
REVIEWER IN REMEDIAL LAW
expenses incurred in the execution of
his trust.
The guardian, other than a parent, shall
also be allowed such compensation for
his services as the court deems just, not
exceeding 15% of the net income of the
ward.
Ramos vs. PNB (1957): Extra allowance may be
made in each case as the importance and
difficulty of the management of the estate may
require.
Embezzlement, Concealment or
Conveyance of Wards Properties
(Rule 96, Sec. 6)
The court may require any person
suspected of having embezzled,
concealed, or conveyed away any
money, goods or interest, or a
written instrument belonging to the
ward or his estate to appear for
examination touching such money,
goods, interest, or instrument, and
make such orders as will secure the
estate against such embezzlement,
concealment or conveyance, upon
complaint of:
a. The guardian or ward, or;
b. Any person having actual or
prospective interest in the
property of the ward as creditor,
heir, or otherwise.
4. Selling and Encumbering the
Property of the Ward (Rule 95)
Grounds
a. When the income of a property
under guardianship is insufficient to
maintain the ward and his family;
b. When it is for the benefit of the ward
that his real estate or some part
thereof be sold, mortgaged or
otherwise encumbered, and the
proceeds thereof put out at an
interest, or invested in some
productive security, or in the
improvement or security of other
real estate.
How: Verified petition filed by the
guardian to the Court which appointed
him.
Order to Show Cause
The court shall order the wards next of
kin and all persons interested in the
estate to appear at a reasonable
time and place and show cause why
the petition should not be granted.
Chapter 4: Special Rules Implementing the Family Courts
At the time and place designated in the
order to show cause, the court shall
hear the proofs and allegations of
the petitioner and next of kin, and
other persons interested, together
with their witnesses, and grant or
deny the petition as the best
interests of the ward may require.
Order for Sale or Encumbrance
Contents
f. Grounds for the sale or
encumbrance;
g. Manner of sale (public or
private);
SPECIAL PROCEEDINGS
h. Time and manner of payment;
i. Security, if payment deferred;
j. Additional bond from guardian,
if required.
Duration of Effect: Not more than 1
year, unless renewed.
The guardian cannot acquire by
purchase, even at a public or
judicial auction, the property of his
ward (Art. 1491, CC).
Investment of proceeds and
Management of Property
The court may authorize and require
the guardian to invest the proceeds
of sales or encumbrances, and any
other money of his ward in his
hands, in real estate or otherwise,
for the best interests of the ward.
The court may make such other orders
for the management, investment,
and disposition of the estate and
effects, as circumstances may
warrant.
Inton vs. Quintana: The grounds for the sale and
encumbrance of wards property are exclusive.
No order will be issued for another purpose not
found in the Rules. Sale of the wards realty
without court order is void.
Singco vs. Longa: Notice to the next of kin is a
jurisdictional requirement which may not be
dispensed with.
Lopez vs. Teodoro (1950): The next of kin are
those relatives whose relationships are such as
to entitle them to shares in the estate as
distributes.
Appeal is the proper remedy against a court
authorizing the sale of the wards property.
Margate vs. Rabacal (1963): Generally, in order
that the sale of the wards property be valid, it is
essential that the sale first be confirmed by the
Court. However, where the authority to sell did
not impose the condition that the deed of sale
executed by the guardian should be approved by
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
the court, the approval of the sale by the court Petition for Adjudgment of
would be merely pro forma, where the sale was Competency (Rule 97, Sec. 1)
already fait accompli and within the authority
given by the court. Who may file:
o The person declared
The cancellation of the authority of the guardian
to sell the property of the ward did not and could incompetent;
not affect the rights of the buyer, where at the o His guardian;
time that the order cancelling the authority to o His relative;
sell was entered, the guardian had already acted o His friend;
in accordance with the authority and sold the How: Petition verified by oath and
property. The authority has already been stating that the person is
exhausted and there was nothing to cancel. competent.
Procedure:
There being a presumption that the sale of the
o Filing of petition.
wards estate is valid, the same cannot be

attacked collaterally in the registration
proceedings. A separate action to avoid or
rescind the sale should be filed
Soriano vs. Latono: Confirmation may not be
necessary where the courts order expressly
authorized the guardian to execute and deliver
to the purchaser definitely named a deed of
conveyance to a parcel of land specifically
described at a price already fixed, and it was
intended to be the approval itself of the sale that
was already perfected or agreed upon by the
seller and the buyer, and the sale had been
made without departure from the terms of the
order.
Mendoza vs. Labrador: If the authority to sell
was obtained under suspicious circumstances
indicative of fraud or collusion, the guardians
sale may subsequently be annulled by the court.
Newly-acquired or Discovered
Properties (Rule 96, Sec. 7)
Whenever any property of the ward not
included in an inventory already
rendered is discovered, or succeeded
to, or acquired by the ward, like
proceedings shall be had for
securing an inventory and
appraisement thereof within 3
months after such discovery,
succession, or acquisition
5. Termination of Guardianship (Rule
97)
Grounds for Termination of
Guardianship
a. Death of the guardian or the ward;
b. Marriage or voluntary emancipation;
o Note: Voluntary emancipation is
rendered obsolete by RA 6809,
making emancipation attainable
only by reaching the age of
majority.
c. Adjudgment of competency.
SPECIAL PROCEEDINGS
o Court shall fix a time for
hearing.
o Court shall cause reasonable
notice of hearing to be given to
the guardian of the person
declared incompetent, and to the
ward.
o Trial. The guardian or relatives
of the ward, and, in the
discretion of the court, any other
person, may contest the right to
the relief demanded, and
witnesses may be called and
examined by the parties or by
the court on its own motion.
o Adjudgment of competency.
Crisostomo vs. Endencia: The court which
appointed the guardian is also the court
competent to decide the petition for restoration
of capacity.
In Re Guardianship of the Incompetent Jose De
Encaustic: The required notice of hearing upon
the ward and guardian is not intended as a
personal service. The manner in which the court
procured service of the notice is of no
importance. It is sufficient that the notice was
given.
Grounds for Removal of Guardian
a. When the guardian becomes insane;
b. When the guardian becomes
incapable of discharging his trust or
unsuitable;
c. When the guardian has wasted or
mismanaged the estate;
d. When the guardian failed for 30
days after it is due to render an
account or make a return.
Ground for Resignation of Guardian:
When it appears proper to allow it.
Upon the guardians resignation or
removal the court may appoint
another in his place.

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REVIEWER IN REMEDIAL LAW
Service of Judgment
Final orders or judgments terminating
or replacing a guardian shall be
served upon the civil registrar of the
municipality or city where the minor
or incompetent person resides or
where his property or part of it is
situated.
Olarte vs. Enriquez (1960): An order removing a
guardian is an order constituting a final
determination of his rights. Hence, the guardian
may appeal.
II. ADOPTION
A. DOMESTIC ADOPTION
1. SCOPE & APPLICABILITY
2. THE ADOPTER & THE ADOPTEE
3. PETITION FOR ADOPTION
4. RESCISSION OF ADOPTION OF THE
ADOPTEE
B. INTER-COUNTRY ADOPTION (RA 8043)
1. SCOPE & APPLICABILITY
2. INTER-COUNTRY ADOPTION AS THE
LAST RESORT
3. PETITION FOR ADOPTION
Adoption
A juridical act which creates between two
persons a relation similar to that which results
from filiation (Prasnick vs. Republic).
Lahum vs. Sibulo (2003): Adoption is a privilege
governed by the states determination of what
is for the best welfare of the child.
A. Domestic Adoption
1. Scope and Applicability
RA 8552 (Domestic Adoption Act) and
the Rule on Adoption govern the
domestic adoption of Filipino children.
2. The Adopter and the Adoptee
Qualified Adopters
a. Any Filipino citizen;
Of legal age;
In possession of full civil
capacity and legal rights;
Of good moral character;
Has not been convicted of any
crime involving moral turpitude;
At least 16 years older than the
adoptee;
This requirement may be
waived when the adopter is
the biological parent of the
Chapter 4: Special Rules Implementing the Family Courts
adoptee or is the spouse of
the adoptees parent.
Emotionally and psychologically
capable of caring for children,
and;
Is in a position to support and
care for his children in keeping
with the means of the family.
b. Any alien;
Possessing the same
qualifications as above-stated for
Filipino nationals;
His country has diplomatic
relations with the Republic of
SPECIAL PROCEEDINGS
the Philippines;
Has been living in the
Philippines for at least 3
continuous years prior to the
filing of the petition for adoption
and maintains such residence
until the adoption decree is
entered;
Has been certified by his
diplomatic or consular office or
any appropriate government
agency to have the legal capacity
to adopt in his country, and;
His government allows the
adoptee to enter his country as
his adopted child.
The requirements on residency and
certification of the aliens qualification
to adopt in his country may be waived
for the following:
a. A former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity;
b. One who seeks to adopt the
legitimate child of his Filipino
spouse;
c. One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within the
4th degree of consanguinity or
affinity of the Filipino spouse.
The guardian with respect to the ward
after the termination of the
guardianship and clearance of his
financial accountabilities
Joint Adoption of Spouses
General Rule: Husband and wife shall
jointly adopt.
Exceptions:
a. If one spouse seeks to adopt the
legitimate child of one spouse by the
other spouse;
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REVIEWER IN REMEDIAL LAW
b. If one spouse seeks to adopt his own
illegitimate child, provided that the
other spouse has signified his
consent;
c. If the spouses are legally separated
from each other.
In case husband and wife jointly adopt
or one spouse adopts the illegitimate
child of the other, joint parental
authority shall be exercised by the
spouses.
Qualified Adoptees
a. Any person below 18 years of age
who has been voluntarily committed
to the DSWD under Articles 154,
155 and 156 of PD No. 603 or
judicially declared available for
adoption;
b. The legitimate child of one spouse,
by the other spouse;
c. An illegitimate child, by a qualified
adopter to raise the status of the
former to that of legitimacy;
d. A person of legal age regardless of
civil status, if, prior to the adoption,
said person has been consistently
considered and treated by the
adopters as their own child since
minority;
e. A child whose adoption has been
previously rescinded;
f. A child whose biological or adoptive
parents have died, provided that no
proceedings shall be initiated within
6 months from the time of death of
said parents;.
g. A child not otherwise disqualified by
law or these rules.
Child
one who is not more than 18 years old
at the time of the filing of the
petition for adoption.
Child legally available for adoption
voluntarily or involuntarily committed
to DSWD or to a duly licensed and
accredited child-placing or child-
caring agency, freed of the parental
authority of his biological parents,
or in case of rescission of adoption,
his guardian or adopter/s.
[Note (though might not be a part of
the Bar): RA 9523, signed into law
as of March 2009, amended the
Domestic and Inter-country
Adoption act to the effect that the
authority to declare a child
abandoned and free for adoption
has been transferred to the DSWD
Chapter 4: Special Rules Implementing the Family Courts
from the courts. Only a DSWD
certification is required to declare
the child legally available for
adoption.]
Voluntarily committed child
one whose parents knowingly and
willingly relinquish parental
authority over him in favor of the
DWSD.
Involuntarily committed child
one whose parents, known or unknown,
have been permanently and
judicially deprived of parental
SPECIAL PROCEEDINGS
authority over him due to:
o Abandonment;
o Substantial, continuous or
repeated neglect and abuse;
o Incompetence to discharge
parental responsibilities.
Foundling
Deserted or abandoned infant or child
whose parents, guardian or relatives
are unknown.
A child committed to an orphanage or
charitable or similar institution with
unknown facts of birth and
parentage and registered in the Civil
Register as a foundling.
Abandoned child
One who has no proper parental care or
guardianship.
One whose parents have deserted him
for a period of at least 6 continuous
months and has been judicially
declared as such.
Dependent child
One who is without a parent, guardian
or custodian.
One whose parents, guardian or other
custodian for good cause desires to
be relieved of his care and custody
and is dependent upon the public
for support.
Neglected child
one whose basic needs have been
deliberately not attended to or
inadequately attended to, physically
or emotionally, by his parents or
guardian.
Physical neglect - when the child is
malnourished, ill-clad and without
proper shelter.
Emotional neglect - when a child is
raped, seduced, maltreated,
exploited, overworked or made to
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
work under conditions not guardianship had been
conducive to good health or made to terminated and the guardian
beg in the streets or public places, had cleared his financial
or placed in moral danger, or accountabilities.
exposed to drugs, alcohol, gambling, d. If the adoptee is a foundling:
prostitution and other vices. The entries which should
appear in his birth
3. Petition for Adoption certificate, such as name of
child, date of birth, place of
Where to file: Family Court of the birth, if known;
province or city where the prospective Sex, name and citizenship of
adoptive parents reside. adoptive mother and father,
and the date and place of
Contents their marriage.

SPECIAL PROCEEDINGS
Allegations common to all petitions e. If the petition prays for a change
a. First name, surname or names, of name:
age and residence of the The cause or reason for the
adoptee, as shown by his record change of name;
of birth, baptismal or foundling The registered name of the
certificate and school records; child;
b. That the adoptee is not Aliases or other names by
disqualified by law to be which the child has been
adopted; known;
c. Probable value and character of Full name by which the child
the estate of the adoptee; is to be known.
d. First name, surname or names f. If petition seeks rectification of
by which the adoptee is to be simulated birth:
known and registered in the That petitioner is applying
Civil Registry; for rectification of a
e. Certification of non-forum simulated birth;
shopping. That the simulation of birth
o The petition shall be verified. was made prior to the date of
effectivity of RA 8552
At the heading of the initiatory pleading, (August 22, 2002) and the
whether the petition contains: application for rectification of
a. Application for change of name; the birth registration and the
b. Rectification of simulated birth; petition for adoption were
c. Voluntary or involuntary filed within 5 years from said
commitment of children; date;
d. Declaration of child as That the petitioner made the
abandoned, dependent or simulation of birth for the
neglected. best interests of the adoptee;
That the adoptee has been
Additional allegations consistently considered and
a. If the adopter is a Filipino treated by petitioner as his
citizen: own child.
Jurisdictional facts; g. If the adoptee is a foundling, an
Adopters qualifications; abandoned, dependent or
That the adopter has neglected child:
undergone pre-adoption Facts showing that the child
services. is a foundling, abandoned,
b. If the adopter is an alien: dependent or neglected;
Jurisdictional facts; Names of the parents, if
Alien adopters known, and their residence.
qualifications; If the child has no known or
That the adopter has living parents, then the
undergone pre-adoption name and residence of the
services. guardian, if any;
c. If the adopter is the legal Name of the duly licensed
guardian of the adoptee, that the child-placement agency or

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REVIEWER IN REMEDIAL LAW
individual under whose care
the child is in custody;
That the DSWD, child-
placement or child-caring
agency is authorized to give
its consent.
Pre-adoption Services - Psycho-social
services provided by professionally-
trained social workers of DSWD, the
social services units of local
governments, private and government
health facilities, Family Courts, licensed
and accredited child-caring and child-
placement agencies and other
individuals or entities involved in
adoption as authorized by the DSWD.
Annexes to the Petition
1. Birth, baptismal or foundling
certificate, as the case may be, and
school records showing the name,
age and residence of the adoptee;
2. Affidavit of consent of:
a. The adoptee, if 10 years of age or
over;
b. The biological parents of the
child, if known, or the legal
guardian, or the child-placement
agency, child-caring agency, or
the proper government
instrumentality which has legal
custody of the child;
c. The legitimate and adopted
children of the adopter and of
the adoptee, if any, who are 10
years of age or over;
d. The illegitimate children of the
adopter living with him who are
10 years of age or over;
e. The spouse, if any, of the
adopter or adoptee.
3. Child study report on the adoptee
and his biological parents;
4. If the petitioner is an alien,
certification by his diplomatic or
consular office or any appropriate
government agency that he has the
legal capacity to adopt in his
country and that his government
allows the adoptee to enter his
country as his own adopted child,
unless exempted;
5. Home study report on the adopters;
If the adopter is an alien or
residing abroad but qualified to
adopt, the home study report by
a foreign adoption agency duly
accredited by the Inter-Country
Adoption Board (ICAB).
Chapter 4: Special Rules Implementing the Family Courts
6. Decree of annulment, nullity or legal
separation of the adopter as well as
that of the biological parents of the
adoptee, if any.
Consent Requirement
Cang vs. CA (1998):
General Rule: The written consent of the
natural parent is indispensable for the validity
of the decree of adoption.
Exception: The requirement can be dispensed
with if the parent:
Has abandoned the child;
Is insane or hopelessly intemperate.
SPECIAL PROCEEDINGS
Abandonment means neglect or refusal to
perform the natural and legal obligations of
care and support which parents owe their
children. Physical estrangement alone, without
financial and moral desertion, is not
tantamount to abandonment.
Procedure
1. Filing of petition for adoption.
2. Order of Hearing by the Court
Issued if the petition and
attachments are sufficient in
form and substance
Contents:
a. Registered name of the adoptee
in the birth certificate and the
names by which the adoptee has
been known which shall be
stated in the caption;
b. Purpose of the petition;
c. Complete name which the
adoptee will use if the petition is
granted;
d. Date and place of hearing which
shall be set within 6 months
from the date of the issuance of
the order;
e. A directive for the publication of
a copy of the order before the
date of hearing at least once a
week for 3 successive weeks in a
newspaper of general circulation
in the province or city where the
court is situated;
o In case of application for
change of name, the date set
for hearing shall not be
within 4 months after the
last publication of the notice
or within 30 days prior to an
election.
o The newspaper shall be
selected by raffle under the
supervision of the Executive
Judge.
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REVIEWER IN REMEDIAL LAW
f. A directive to the social worker
of the court, the social service
office of the local government
unit or any child-placing or
child-caring agency, or the
DSWD to prepare and submit
child and home study reports
before the hearing if such
reports had not been attached to
the petition due to unavailability
at the time of filing;
g. A directive to the social worker
of the court to conduct
counseling sessions with the
biological parents on the matter
of adoption of the adoptee and
submit her report before the
date of hearing;
h. At the discretion of the court,
copies of the order of hearing
shall be furnished the OSG
through the provincial or city
prosecutor, the DSWD and the
biological parents of the adoptee,
if known.
o If a change in the name of
the adoptee is prayed for in
the petition, notice to the
Solicitor General shall be
mandatory.
3. Child and home study reports by
the social worker
The social worker shall:
a. Verify with the Civil Registry the
real identity and registered name
of the adoptee;
b. If the birth of the adoptee was
not registered with the Civil
Registry, register the adoptee
and secure a certificate of
foundling or late registration, as
the case may be;
c. Establish that the child is legally
available for adoption and the
supporting documents are valid
and authentic;
d. Establish that the adopter has
sincere intentions and that the
adoption shall inure to the best
interests of the child;
e. If there are grounds to deny the
petition, make the proper
recommendation to the court,
furnishing a copy thereof to the
petitioner.
o If the adopter is an alien, the
home study report must
show:
Chapter 4: Special Rules Implementing the Family Courts
His legal capacity to
adopt;
That his government
allows the adoptee to
enter his country as his
adopted child.
4. Hearing
Upon satisfactory proof that the
order of hearing has been
published and jurisdictional
requirements have been
complied with.
The petitioner and the adoptee must
SPECIAL PROCEEDINGS
personally appear and the
former must testify before the
court on the date set for hearing.
The court shall:
a. Verify from the social worker
and determine whether the
biological parent has been
properly counseled against
making hasty decisions
caused by strain or anxiety
to give up the child;
b. Ensure that all measures to
strengthen the family have
been exhausted;
c. Ascertain if any prolonged
stay of the child in his own
home will be inimical to his
welfare and interest.
5. Supervised trial custody
Trial custody given the adopter
before issuance of the decree of
adoption for a period of at least
6 months within which the
parties are expected to adjust
psychologically and emotionally
to each other and establish a
bonding relationship.
Monitored by the social worker of
the court, the DSWD, or the
social service of the local
government unit, or the child-
placement or child-caring agency
which submitted and prepared
the case studies.
Temporary parental authority is
vested in the adopter.
o The court may, motu proprio
or upon motion of any party,
reduce the period or exempt
the parties if it finds that the
same shall be for the best
interests of the adoptee.
o General Rule: An alien
adopter must complete the
6-month trial custody.
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REVIEWER IN REMEDIAL LAW
o Exceptions:
a. A former Filipino citizen
who seeks to adopt a
relative within the 4th
degree of consanguinity
or affinity;
b. One who seeks to adopt
the legitimate child of his
Filipino spouse;
c. One who is married to a
Filipino citizen and seeks
to adopt jointly with his
or her spouse the latters
relative within the 4th
degree of consanguinity
or affinity.
If the child is below 7 years of age
and is placed with the
prospective adopter through a
pre-adoption placement
authority issued by the DSWD,
the court shall order that the
prospective adopter shall enjoy
all the benefits to which the
biological parent is entitled from
the date the adoptee is placed
with him.
The social worker shall submit to
the court a report on the result
of the trial custody within 2
weeks after its termination.
6. Issuance of decree of adoption
If the supervised trial custody is
satisfactory to the parties and
the court is convinced from the
trial custody report and the
evidence adduced that the
adoption shall redound to the
best interests of the adoptee.
Effectivity: As of the date the
original petition was filed even if
the petitioners die before its
issuance
Contents:
a. Name by which the child is to be
known and registered;
b. An order to the Clerk of Court to
issue to the adopter a certificate
of finality upon expiration of the
15-day reglementary period
within which to appeal;
c. An order to the adopter to
submit a certified true copy of
the decree of adoption and the
certificate of finality to the Civil
Registrar where the child was
originally registered within 30
days from receipt of the
certificate of finality;
Chapter 4: Special Rules Implementing the Family Courts
o In case of change of name,
the decree shall be
submitted to the Civil
Registrar where the court
issuing the same is situated.
d. An order to the Civil Registrar of
the place where the adoptee was
registered to:
o Annotate on the adoptees
original certificate of birth
the decree of adoption within
30 days from receipt of the
certificate of finality;
o Issue a certificate of birth
SPECIAL PROCEEDINGS
which shall not bear any
notation that it is a new or
amended certificate and
which shall show, among
others, the following:
a. Registry number;
b. Date of registration;
c. Name of child;
d. Sex;
e. Date of birth;
f. Place of birth;
g. Name;
h. Citizenship of adoptive
mother and father;
i. Date and place of their
marriage.
o Seal the original certificate of
birth in the civil registry
records which can be opened
only upon order of the court
which issued the decree of
adoption;
o Submit to the court issuing
the decree of adoption proof
of compliance within 30 days
from receipt of the decree;
o If the adoptee is a foundling,
annotate the decree of
adoption on the foundling
certificate and prepare a new
birth certificate.
Book of Adoptions
The Clerk of Court shall keep a book of
adoptions showing the date of
issuance of the decree in each case,
compliance by the Civil Registrar
with the courts order, and all
incidents arising after the issuance
of the decree.
Confidentiality of Adoption
Proceedings
All hearings in adoption cases, after
compliance with the jurisdictional
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REVIEWER IN REMEDIAL LAW
requirements shall be confidential and
shall not be open to the public.
If the court finds that the disclosure of
the information to a third person is
necessary for security reasons or for
purposes connected with or arising out
of the adoption and will be for the best
interests of the adoptee, the court may,
upon proper motion, order the
necessary information to be released,
restricting the purposes for which it
may be used.
4. Rescission of Adoption of the
Adoptee
Who may file:
Adoptee who is over 18 years of age;
If the adoptee is a minor, with the
assistance of the DSWD;
If the adoptee is over 18 years of age but
incapacitated, by his guardian or
counsel.
Grounds: Committed by the adopter
1. Repeated physical and verbal
maltreatment despite having
undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence;
4. Abandonment or failure to comply
with parental obligations.
Adoption, being in the best interests of
the child, shall not be subject to
rescission by the adopter.
However, the adopter may disinherit the
adoptee for causes provided in
Article 919 of the Civil Code.
Where to file: Family Court of the city
or province where the adoptee resides.
When to file:
1. Within 5 years after reaching age of
majority;
2. If he was incompetent at the time of
the adoption, within 5 years after
recovery from such incompetency.
Procedure:
1. Filing of petition to rescind the
adoption.
2. Court shall issue an order requiring
the adverse party to answer the
petition within 15 days from receipt
of a copy thereof.
3. The order and copy of the petition
shall be served on the adverse party
in such manner as the court may
direct.
Chapter 4: Special Rules Implementing the Family Courts
4. Judgment.
o If the court finds that the
allegations of the petition are
true, it shall render judgment
ordering the rescission of
adoption, with or without costs,
as justice requires.
o The court shall:
a. Order that the parental
authority of the biological
parent of the adoptee, if
known, or the legal custody
of DSWD be restored if the
adoptee is still a minor or
SPECIAL PROCEEDINGS
incapacitated and declare
that the reciprocal rights and
obligations of the adopter
and the adoptee to each
other be extinguished;
b. Declare that successional
rights revert to its status
prior to adoption, as of the
date of judgment of judicial
rescission. Vested rights
acquired prior to judicial
rescission shall be respected;
c. Order the adoptee to use the
name stated in his original
birth or foundling certificate;
d. Order the Civil Registrar
where the adoption decree
was registered to cancel the
new birth certificate of the
adoptee and reinstate his
original birth or foundling
certificate.
5. Service of judgment
o A certified true copy of the
judgment together with a
certificate of finality issued by
the Branch Clerk of the Court
which rendered the decision
shall be served by the petitioner
upon the Civil Registrar
concerned within 30 days from
receipt of the certificate of
finality.
o The Civil Registrar shall
forthwith enter the rescission
decree in the register and
submit proof of compliance to
the court issuing the decree and
the Clerk of Court within 30
days from receipt of the decree.
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REVIEWER IN REMEDIAL LAW
B. Inter-Country Adoption (RA 8043)
1. Scope and Applicability
RA 8043 (Inter-country Adoption Act)
governs the adoption of Filipino children
by:
1. Foreign nationals, and;
2. Filipino citizens permanently
residing abroad.
2. Inter-country Adoption as the Last
Resort
Objectives of Inter-country Adoption
1. To consider inter-country adoption
as an alternative means of child
care, if the child cannot be placed in
a foster or an adoptive family or
cannot, in any suitable manner, be
cared for in the Philippines;
2. Ensure that the child subject of
inter-country adoption enjoys the
same protection accorded to
children in domestic adoption;
3. Take all measures to ensure that the
placement arising from it does not
result in improper financial gain for
those involved.
The Inter-country Adoption Board
(ICAB) shall ensure that all
possibilities for adoption of the child
under the Family Code (domestic
adoption) have been exhausted and
that inter-country adoption is in the
best interest of the child (Sec. 7, RA
8043).
3. Petition for Adoption
Who may be adopted: Only a child
legally available for domestic adoption.
Child - A person below 15 years of age
unless sooner emancipated by law.
Legally-free child - A child who has
been voluntarily or involuntarily
committed to the DSWD.
Who may adopt: An alien or a Filipino
citizen permanently residing abroad if
he:
a. Is at least 27 years of age and at
least 16 years older than the child to
be adopted, at the time of
application unless the adopter is
the parent by nature of the child to
be adopted or the spouse of such
parent;
b. If married, his spouse must jointly
file for the adoption;
Chapter 4: Special Rules Implementing the Family Courts
c. Has the capacity to act and assume
all rights and responsibilities of
parental authority under his
national laws, and has undergone
the appropriate counselling from an
accredited counselor in his country;
d. Has not been convicted of a crime
involving moral turpitude;
e. Is eligible to adopt under his
national law;
f. Is in a position to provide the proper
care and support and to give the
necessary moral values and example
to all his children, including the
SPECIAL PROCEEDINGS
child to be adopted;
g. Agrees to uphold the basic rights of
the child as embodied under
Philippine laws, the UN Convention
on the Rights of the Child, and to
abide by the rules and regulations;
h. Comes from a country with whom
the Philippines has diplomatic
relations and whose government
maintains a similarly authorized
and accredited agency and that
adoption is allowed under his
national laws;
i. Possesses all the qualifications and
none of the disqualifications
provided in the applicable Philippine
laws.
Where to file:
a. Family Court having jurisdiction
over the place where the child
resides or may be found;
b. Directly with the ICAB;
c. To the ICAB, through an
intermediate agency, whether
governmental or an accredited
agency, in the country of the
prospective adopters.
Contents of petition
a. The adopters age and the age of the
child to be adopted, showing that he
is at least 27 years of age and at
least 16 years older than the child to
be adopted at the time of
application, unless the petitioner is
the parent by nature of the child to
be adopted or the spouse of such
parent;
b. If married, the name of the spouse
who must be joined as co-petitioner
except when the adoptee is a
legitimate child of his spouse;
c. That he has the capacity to act and
assume all rights and
responsibilities of parental authority
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REVIEWER IN REMEDIAL LAW
under his national laws, and has
undergone the appropriate
counseling from an accredited
counselor in his country;
d. That he has not been convicted of a
crime involving moral turpitude;
e. That he is eligible to adopt under his
national law;
f. That he can provide the proper care
and support and instill the
necessary moral values and example
to all his children, including the
child to be adopted;
g. That he agrees to uphold the basic
rights of the child, as embodied
under Philippine laws and the U N
Convention on the Rights of the
Child, and to abide by the rules and
regulations
h. That he comes from a country with
which the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited agency
and that adoption of a Filipino child
is allowed under his national laws;
i. That he possesses all the
qualifications and none of the
disqualifications provided in the
applicable Philippine laws.
Annexes to the petition (written and
officially translated in English)
a. Birth certificate of petitioner;
b. Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c. Sworn statement of consent of
petitioners biological or adopted
children above 10 years of age;
d. Physical, medical and psychological
evaluation of the petitioner certified
by a duly licensed physician and
psychologist;
e. Income tax returns or any authentic
document showing the current
financial capability of the petitioner;
f. Police clearance of petitioner issued
within 6 months before the filing of
the petition;
g. Character reference from the local
church/minister, the petitioners
employer and a member of the
immediate community who have
known the petitioner for at least 5
years;
h. Full body postcard-size pictures of
the petitioner and his immediate
family taken at least 6 months
before the filing of the petition.
Chapter 4: Special Rules Implementing the Family Courts
Procedure (when petition filed before
the Family Court)
a. Filing of petition.
b. Court shall determine whether or
not petition is sufficient in form and
substance and a proper case for
inter-country adoption.
c. Transmit the petition to the ICAB for
appropriate action.
III. RULES ON CUSTODY OF
CHILDREN (RULE 99, SECS. 6
AND 7)
SPECIAL PROCEEDINGS
A. PROCEEDINGS AS TO THE CHILD WHOSE
PARENTS ARE SEPARATED
(RULE 99, SEC. 6)
B. PROCEEDINGS AS TO VAGRANT OR
ABUSED CHILD (RULE 99, SEC. 7)
A. Proceedings as to the Child Whose
Parents Are Separated (RULE 99,
SEC. 6)
When applicable: When husband and
wife are divorced or living separately
and apart from each other, and the
question as to the care, custody, and
control of a child or children of their
marriage is brought before a RTC by
petition or as an incident to any other
proceeding.
The court, upon hearing the pertinent
testimony, shall award the care,
custody, and control of each such child
as will be for its best interest.
If the child is over 10 years of age,
the court shall permit him to choose
which parent it prefers to live,
unless the parent so chosen be
unfit to take charge of the child by
the reason of:
1. Moral depravity;
2. Habitual drunkenness;
3. Incapacity;
4. Poverty.
No child under seven years of age shall
be separated from its mother,
unless the court finds there are
compelling reasons to do otherwise.
If both parents are improper persons
to have the care, custody, and
control of the child, the court may
either:
1. Designate to take charge of the
child:
a. The paternal or maternal
grandparent of the child;
b. His oldest brother or sister;
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REVIEWER IN REMEDIAL LAW
c. Some reputable and discreet
person.
2. Commit the child to any suitable
asylum, children's home, or
benevolent society.
The court may order either or both
parents to support or help support the
child, irrespective of who may be its
custodian.
The court may make any order that is
just and reasonable permitting the
parent who is deprived of its care and
custody to visit the child or have
temporary custody over him.
Either parent may appeal from the
order of the court.
B. Proceedings as to Vagrant or
Abused Child (RULE 99, SEC. 7)
When applicable: When the parents of
any minor child:
a. Are dead;
b. Have abandoned the child by reason
of long absence or legal or physical
disability;
c. Cannot support the child through
vagrancy, negligence, or
misconduct, or neglect;
d. Refuse to support it;
e. Treat it with excessive harshness or
give it corrupting orders, counsels,
or examples, or;
f. Cause or allow it to engage in
begging or to commit offenses
against the law.
How: Upon petition filed by some
reputable resident of the province.
RTC may issue an order requiring such
parents to show cause at a time and
place fixed in the order why the
child should not be taken from its
parents.
o If the parents are dead or cannot
be found, the RTC shall require
the fiscal of the province to show
cause.
If upon the hearing it appears that the
allegations of the petition are true,
and it is for the best interest of the
child, the court may make an order
taking the child from its parents, if
living, and committing it to any
suitable orphan asylum, children's
home, or benevolent society or
person to be ultimately placed, by
adoption or otherwise, in a home
found for it by such asylum,
children's home, society, or person.
Chapter 4: Special Rules Implementing the Family Courts
IV. CUSTODY OF MINORS AND WRIT
OF HABEAS CORPUS IN
RELATION TO CUSTODY OF
MINORS (A.M. NO. 03-04-04-SC)
Applicability
Applies to petitions for custody of
minors and writs of habeas corpus
in relation thereto.
Rules of Court shall apply suppletorily.
Petition for Rightful Custody
Verified petition for the rightful custody
of a minor may be filed by any
SPECIAL PROCEEDINGS
person claiming such right.
Party against whom it may be filed shall
be designated as the respondent.
Filed with the Family Court of the
province or city where the petitioner
resides or where the minor may be
found.
Contents:
a. The personal circumstances of the
petitioner and of the respondent;
b. The name, age and present
whereabouts of the minor and his or
her relationship to the petitioner
and the respondent;
c. The material operative facts
constituting deprivation of custody;
d. Such other matters which are
relevant to the custody of the minor
Verified and accompanied with a
certificate against forum shopping
signed by the petitioner personally.
If court is satisfied that the petition is
sufficient in form and substance, it
shall direct the clerk of court to
issue summons, which shall be
served together with a copy of the
petition personally on the
respondent.
Answer to the Petition
Motion to dismiss the petition is not
allowed. Any other ground that
might warrant the dismissal of the
petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of
jurisdiction over the subject matter
or over the parties.
Personally verified by him filed within 5
days after service of summons.
Upon the filing of the verified answer or
the expiration of the period to file it,
the court may order a social worker
to make a case study of the minor
and the parties and to submit to the
court at least 3 days before pre-trial.
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REVIEWER IN REMEDIAL LAW
Mandatory pre-trial
Notice - 15 days after the filing of the
answer or the expiration of the
period to file answer, the court shall
issue an order:
a. Fixing a date for the pre-trial
conference;
b. Directing the parties to file and
serve their respective pre-trial
briefs;
c. Requiring the respondent to
present the minor before the
court.
o The notice of its order shall be
served separately on both the
parties and their respective
counsels.
Pre-trial brief contains the following:
a. A statement of the willingness of
the parties to enter indicating its
terms;
b. A concise statement of their
respective claims;
c. Admitted facts and proposed
stipulations of facts;
d. The disputed factual and legal
issues;
e. All the evidence to be presented;
f. The number and names of the
witnesses and their respective
affidavits;
g. Such other matters as the court
may require to be included.
o Failure to file the pre-trial brief
or to comply with its required
contents has same effect as
failure to appear at the pre-trial.
o If the petitioner fails to appear
personally at the pre-trial, the
case shall be dismissed.
o Unless his counsel or a duly
authorized representative
appears in court and proves a
valid excuse for the non-
appearance of the petitioner.
If the respondent has filed his answer
but fails to appear at the pre-trial,
the petitioner shall be allowed to
present his evidence ex parte.
o Court shall then render
judgment on the basis of the
pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree
on the custody of the minor.
o If the parties fail to agree, the
court may refer the matter to a
mediator who shall have 5 days
to effect an agreement between
the parties.
Chapter 4: Special Rules Implementing the Family Courts
o If the issue is not settled
through mediation, the court
shall proceed with the pre-trial.
After an answer has been filed or after
expiration of the period to file it, the
court may issue a provisional order
awarding custody of the minor to:
a. Both parents jointly;
b. Either parent;
c. The grandparent, or if there are
several grandparents, the
grandparent chosen by the
minor over 7 years of age and of
sufficient discernment;
SPECIAL PROCEEDINGS
d. The eldest brother or sister over
21 years of age;
e. The actual custodian of the
minor over 21 years of age;
f. Any other person or institution
the court may deem suitable.
Interim Reliefs
1. Temporary visitation rights -
court shall provide in its order
awarding provisional custody
appropriate visitation rights to the
non-custodial parent or parents.
Unless the court finds said parent
or parents unfit or disqualified.
The temporary custodian shall give
the court and non custodial
parent or parents at least 5 days'
notice of any plan to change the
residence of the minor or take
him out of his residence for more
than 3 days
2. Hold Departure Order the minor
child shall not be brought out of the
country without prior order from the
court while the petition is pending.
Court, motu proprio or upon
application under oath, may
issue ex parte a hold departure
order, addressed to the Bureau
of Immigration and Deportation
(BID), directing it not to allow
the departure of the minor from
the Philippines without court
permission.
The Family Court issuing the hold
departure order shall furnish the
DFA and the BID of the DOJ a
copy of the hold departure order
within 24 hours from its
issuance.
The court may recall the hold
departure order motu proprio or
upon verified motion of any of
the parties after summary
hearing.
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REVIEWER IN REMEDIAL LAW
3. Protection Order (PO)- court may
issue a PO requiring any person:
a. To stay away from the home,
school, business, or place of
employment of the minor, other
parent or any other party, or
from any other specific place;
b. To cease and desist from
harassing, intimidating, or
threatening such minor or the
other parent or any person to
whom custody of the minor is
awarded;
c. To refrain from acts or omission
that create an unreasonable risk
to minor;
d. To permit a parent, or a party
entitled to visitation by a court
order or a separation agreement,
to visit the minor at stated
periods;
e. To permit a designated party to
enter the residence during a
specified period of time in order
to take personal belongings not
contested in a proceeding
pending with the Family Court;
f. To comply with such other
orders as are necessary for the
protection of the minor.
Judgment
Court shall render judgment awarding
the custody of the minor to the
proper party considering the best
interests of the minor.
If both parties are unfit to have the care
and custody of the minor, the court
may designate either the paternal or
maternal grandparent of the minor,
or his oldest brother or sister, or
any reputable person to take charge
of such minor, or commit him to any
suitable home.
Court may order either or both parents
to give an amount necessary for the
support, maintenance and
education of the minor, irrespective
of custodianship.
Chapter 4: Special Rules Implementing the Family Courts
The court may also issue any order that
is just and reasonable permitting
the parent who is deprived of the
care and custody of the minor to
visit or have temporary custody.
Appeal
Appeal from the decision shall be
allowed.
o Unless the appellant has filed a
motion for reconsideration or
new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
SPECIAL PROCEEDINGS
decision by filing a Notice of Appeal
within 15 days from notice of the
denial of the motion for
reconsideration or new trial and
serving a copy on the adverse
parties.
Petition for Writ of Habeas Corpus
A verified petition for a writ of habeas
corpus involving custody of minors filed
with the Family Court.
The writ shall be enforceable within
the judicial region the Family Court
belongs.
However, the petition may be filed with
a regular court in the absence of the
presiding judge of the Family Court
provided that the regular court shall
refer the case to the Family Court as
soon as its presiding judge returns to
duty.
Petition may also be filed with the
appropriate regular courts in places
where there are no Family Courts.
The petition may be filed with the SC,
CA, or with any of its members and
shall be enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to any
regular court within the region where
the petitioner resides or where the
minor may be found for hearing and
decision on the merits.
Upon return of the writ, the court shall
decide the issue on custody of minors.
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts
COMPARATIVE TABLE ON HABEAS CORPUS
HABEAS CORPUS (RULE 102)
HABEAS CORPUS FOR MINORS
Rights involved Right to liberty Petition for the rightful custody of
Rightful custody of the aggrieved a minor
party
Situations applicable Actual violation of the aggrieved Deprivation of rightful custody
partys right
Party authorized to file Party for whose relief it is intended or
by some person in his behalf
Respondents May or may not be an officer
Before which court or 1. RTC or any judge thereof
judicial authority filed 2. CA or any member thereof in
instances authorized by law
3. SC or any member thereof
4. Special jurisdiction given to
first level courts in the absence
of RTC judges in a province or
city (SECTION 35, BP 129)
5. In aid of appellate jurisdiction
of the Sandiganbayan ( RA 8249
further expanding its
jurisdiction)
Contents of the petition Signed, verified either by the party
for whose relief it is intended, or by
some person in his behalf and shall
set forth: (PDIC)
(a) That the person in whose
behalf the application is made is
imprisoned or restrained on his
liberty;
(b) The officer or name of the
person by whom he is so
imprisoned or restrained; or, if both
are unknown or uncertain, such
officer or person may be described by
an assumed appellation, and the
person who is served with the writ
shall be deemed the person intended;
(c) The place where he is so
imprisoned or restrained, if known;
(d) A copy of the commitment or
cause of detention of such person,
if it can be procured without impairing
the efficiency of the remedy; or, if the
imprisonment or restraint is without
any legal authority, such fact shall
appear.
RULE ON CUSTODY AND
(A.M. 03-04-04)
A verified petition for a writ of
habeas corpus involving custody of
SPECIAL PROCEEDINGS
minors shall be filed with the
Family Court. The writ shall be
enforceable within its judicial
region to which the Family Court
belongs.
However, the petition may be filed
with the regular court in the
absence of the presiding judge of
the Family Court, provided,
however, that the regular court
shall refer the case to the Family
Court as soon as its presiding judge
returns to duty.
The petition may also be filed with
the appropriate regular courts in
places where there are no Family
Courts.
The verified petition shall allege the
following: (PRMO)
(a) The personal circumstances of
the petitioner and of the
respondent;
(b) The name, age and present
whereabouts of the minor and his
or her relationship to the
petitioner and the respondent;
(c) The material operative facts
constituting deprivation of custody;
and
(d) Such other matters which are
relevant to the custody of the
minor.
The verified petition shall be
accompanied by a certificate
against forum shopping, which the
petitioner must sign personally.
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REVIEWER IN REMEDIAL LAW Chapter 4: Special Rules Implementing the Family Courts

V. COMMITMENT OF CHILDREN 4. The name, address and written consent

(A.M. NO. 02-1-19-SC) of DSWD or duly licensed child-
placement or child-caring agency or
A. INVOLUNTARY COMMITMENT OF A individual to whose care the
DEPENDENT, ABANDONED, OR commitment of the child is sought to be
NEGLECTED CHILD entrusted.
B. VOLUNTARY COMMITMENT OF A
DEPENDENT, ABANDONED, OR Summons
NEGLECTED CHILD If the court is satisfied that the petition
C. COMMITMENT OF A DISABLED CHILD
is sufficient in form and substance,
it shall direct the clerk of court to
A. Involuntary Commitment of a immediately issue summons which
Dependent, Abandoned, or shall be served together with a copy
Neglected Child of the petition and a notice of

Child - a person below 18 years of age.
Dependent child - one who is without
a parent, guardian or custodian, or one
whose parents, guardian or other
custodian for good cause desires to be
relieved of his care and custody, and is
dependent upon the public for support.
Abandoned child - one who has no
proper parental care or guardianship, or
whose parents or guardian has deserted
him for a period of at least 6 continuous
months.
Neglected child - one whose basic
needs have been deliberately
unattended to or inadequately attended
to, physically or emotionally, by his
parents or guardian.
Who may file:
1. The Secretary of DSWD;
2. His authorized representative;
3. Any duly licensed child-placement
or child-caring agency having
knowledge of a child who appears to
be dependent, abandoned or
neglected.
Where to file: Family Court of the
province or city in which the parent or
guardian resides or where the child is
found.
Contents of Verified Petition
1. The names of the parents or guardian
and their place of residence;
If the child's parents are unknown,
petitioner must allege that diligent
efforts have been exerted to locate
them.
If said parents are deceased, petitioner
shall attach a certified true copy of
their death certificate
2. The facts showing that the child is
dependent, abandoned, or neglected;
3. The facts showing who has custody of
the child at the time of the filing of the
petition;
SPECIAL PROCEEDINGS
hearing, not less than 5 days before
the date of the hearing, upon:
1. The parents or guardian of the
child;
2. Office of the public prosecutor.
The office of the public
prosecutor shall be directed to
immediately transmit the
summons to the prosecutor
assigned to the Family Court
concerned.
If it appears from the petition that both
parents of the child are dead or that
neither parent can be found in the
province or city where the court is
located and the child has no guardian
residing therein, summons may not be
issued and the court shall thereupon
appoint a guardian ad litem and
proceed with the hearing of the case
with due notice to the provincial or city
prosecutor.
Guardian Ad Litem of Child
When appointed
1. If neither of the parents nor the
guardian of the child can be located or
does not appear in court despite due
notice;
2. If the court finds the parents or the
guardian of the child incompetent to
protect the best interests of the child.
In making the appointment, the court
shall consider:
1. The background of the guardian ad
litem, and;
2. His familiarity with the judicial process,
social service programs and child
development.
o A member of the Philippine Bar
may be appointed guardian ad
litem.

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REVIEWER IN REMEDIAL LAW
Case Study Report
The Court shall direct the social worker
to submit, before the hearing, a case
study report of the child to aid it in
evaluating whether said child
should be committed to the care of
DSWD or any duly licensed child-
placement or child-caring agency or
individual.
The report shall bear the signature of
the social worker on every page.
Appointment of Counsel
The court, upon request of the child
capable of forming his own views or
upon request of his guardian ad litem,
shall appoint a lawyer to represent him
in the proceedings.
Hearing
The provincial or city prosecutor shall:
o Appear for the State;
o Ascertain if there has been due
notice to all parties concerned
and that there is justification for
the declaration of dependency,
abandonment or neglect.
The court shall:
o Direct the person or agency
which has custody of the child to
bring the latter to the court on
the date of the hearing of the
petition;
o Ascertain the facts and
determine whether the child is
dependent, abandoned, or
neglected, and if so, the-cause
and circumstances of such
condition.
Judgment.
If, after the hearing, the court shall find
the child to be dependent,
abandoned, or neglected, it shall
render judgment committing him to
the care and custody of DSWD or
any duly licensed child-placement or
child-caring agency or individual
until he reaches the age of 18.
If the child is committed to DSWD, it
shall notify the court within 30 days
from the order of commitment, the
name and address of the duly
licensed and accredited child-
placement or child-caring agency or
individual where the child shall be
placed.
The judgment shall likewise make
proper provisions for the custody of
Chapter 4: Special Rules Implementing the Family Courts
the property or money belonging to
the committed child.
If the court finds that the abandonment
or neglect of the child may be
remedied, the child may be allowed
to stay in his own home under the
care and control of his parents or
guardian, subject to supervision and
direction of DSWD.
Visitation or Inspection
Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed by
SPECIAL PROCEEDINGS
the court shall be subject to visitation
or inspection by a representative of the
court or of the DSWD, as the case may
be or of both, to determine whether the
welfare and interests of the child are
being served.
Report of Person or Institution.
Any duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
by judicial order may at any time be
required by the court to submit a
report, containing all necessary
information for determining whether
the welfare of the child is being
served.
Temporary Custody of Child.
The duly licensed child-placement or
child-caring agency or individual to
whom a child has been committed
may file a verified motion with the
court which granted the petition for
involuntary commitment of a child
to place him in the care of any
suitable person, upon the latter's
request, for a period not exceeding 1
month at a time.
The court may order the social worker
to submit a case study report to aid
it in evaluating whether such
temporary custody shall be for the
best interests of the child.
The period of temporary custody of the
child may be extended by the court
for a period not exceeding 1 month
at a time upon motion of the duly
licensed child-placement or child-
caring agency or individual to which
the child has been committed.
The court, mote propriety, or upon
request of the child assisted by his
guardian ad litem, or at the instance
of the agency or person to whom the
child was committed, after due
notice and hearing, shall
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REVIEWER IN REMEDIAL LAW
discontinue the temporary custody
of the child if it appears that he is
not being given proper care.
After 1 month from the date temporary
custody of the child was given to
another suitable person, the agency
or individual shall submit to the
court a verified report on whether
the temporary custody of the child
has promoted his best interests.
Change of Custody
If the child is committed to the DSWD,
it shall have the authority to change
the custody of a child it had placed
with any duly licensed child-
placement or child-caring agency or
individual if it appears that such
change is for the best interests of
the child.
The DSWD shall notify the court of any
change in custody of the child.
When conflicting interests arise among
child-placement or child-caring
agencies, the court which granted
the involuntary commitment of the
child, upon motion of the DSWD or
any of the agencies concerned, shall
order the change of commitment of
the child.
Removal of Custody
A motion to remove custody of a child
may be filed by an authorized
representative of the DSWD with
knowledge of the facts against a
child-placement or child-caring
agency or individual to whose
custody a child has been committed
by the court on the ground of
neglect of such child.
Neglect
Physical neglect occurs when the child
is malnourished, ill-clad and
without proper shelter.
Emotional neglect occurs when a child
is raped, seduced, mal-treated,
exploited, overworked or made to
work under conditions not
conducive to good health; made to
beg in the streets or public places,
or when placed in moral danger, or
exposed to drugs, alcohol, gambling,
prostitution and other vices.
The court shall set the motion for
hearing with notice to the public
prosecutor and the court-designated
social worker.
Chapter 4: Special Rules Implementing the Family Courts
If the court finds after hearing that the
allegations of the motion have been
established and that it is for the
best interests and welfare of the
child:
The court shall issue an order removing
him from the custody of the person
or agency and committing him to
the custody of another duly licensed
child-placement or child-caring
agency or individual.
The court may suspend or revoke the
license of the agency or individual
found guilty of such neglect
SPECIAL PROCEEDINGS
depending upon the gravity or
frequency of the offense.
Restoration of Parental Authority After
Involuntary Commitment
Who may file petition; The parents or
guardian of a child committed to the
care of a person, agency or institution
by judicial order.
Where and how filed: By a verified
motion for the restoration of his rights
over the child with the court which
granted the involuntary commitment.
Ground: The parent or guardian is now
able to take proper care and custody of
said child, provided that the child has
not yet been adopted.
Notice of Hearing.
The court shall:
o Fix the time and date for the hearing
of the motion, which shall not be
earlier than 30 days nor later than
60 days from the date of the filing of
said motion;
o Cause notice of the hearing to be
sent at least 5 days before the date
of hearing to:
1. The person, agency or institution
to which the child has been
committed;
2. The public prosecutor;
3. The court-designated social
worker.
Hearing
Any person may be allowed to intervene
at the discretion of the court to
contest the right to the relief
demanded.
Witnesses may be called and examined
by the parties or by the court motu
proprio.
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REVIEWER IN REMEDIAL LAW
Resolution
If it is found that the cause for the
commitment of the child no longer
exists and that the movant is
already able to take proper care and
custody of the child.
Effects:
Terminates the parental authority of the
person, agency or institution to
whom the child was committed by
judicial order;
Restores parental authority to the
movant.
B. Voluntary Commitment of a
Dependent, Abandoned, or
Neglected Child
The parent or guardian of a dependent,
abandoned or neglected child may
voluntarily commit him to the DSWD or
any duly licensed child-placement or
child-caring agency or individual.
No child shall be committed unless he is
surrendered in writing by his parents or
guardian stating such voluntary
commitment and specifically naming
the office, agency, or individual to
whose custody the child is to be
committed.
Such written instrument should be
notarized and signed in the presence
of an authorized representative of
the DSWD after counselling and
other services have been made
available to encourage the child's
parents to keep the child.
Verified Petition for Removal of Custody
Who may file
1. The parents or guardian who voluntarily
committed the child;
2. In the absence or failure of the parents
or guardian, any person with knowledge
of the facts.
Grounds
1. Neglect of the child;
2. Voluntary commitment of the child was
unjustified.
Venue: Family Court of the province or city
where:
1. The child-placement or child-caring
agency to which the child has been
voluntarily committed is located ;
2. The child may be found.
Contents of Verified Petition
Chapter 4: Special Rules Implementing the Family Courts
1. Name and address of the child-
placement or child-caring agency or
individual to whose custody the child
has been voluntarily committed;
2. Facts showing that the child has been
neglected by the agency or in cases
where the voluntary commitment was
unjustified, that the parents of the child
are actually capable of taking care and
custody of the child;
3. Name, address and written consent of
the duly licensed child-placement or
child-caring agency or individual to
whose care the child may be
SPECIAL PROCEEDINGS
transferred;
4. Facts showing that petitioner has
exhausted the administrative remedies
available to him.
Notice of Hearing
If the petition is sufficient in form and
substance, the court shall set the same
for hearing with notice to:
1. DSWD;
2. The public prosecutor;
3. The court-designated social worker;
4. The agency or individual to whom
the child has been committed;
5. In appropriate cases, the parents of
the child.
Judgment
If after hearing the court finds that the
allegations of the petition have been
established and that it is for the best
interests and welfare of the child, it
shall issue an order:
Removing the child from the custody of
the person or agency concerned;
Committing him to the custody of
another duly licensed child-
placement or child-caring agency or
individual;
If proper, suspending or revoking the
license of the agency or individual
found guilty of such neglect
depending upon the gravity or
frequency of the offense.
Restoration of Parental Authority After
Voluntary Commitment
The restoration of rights of the parent or
guardian over the child who has been
voluntarily committed shall be governed
by the rules of the DSWD,
Provided that the petition for
restoration is filed within 6 months
from the date of voluntary
commitment.
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REVIEWER IN REMEDIAL LAW
In case the DSWD refuses to grant legal
custody and parental authority to the
parent or guardian over the child who
has been voluntarily committed to an
agency or individual, the parent or
guardian may file a petition in court for
restoration of parental authority (as in
involuntary commitment).
C. Commitment of a Disabled Child
Disabled child
includes mentally retarded, physically
handicapped, emotionally disturbed and
mentally ill children, children with
cerebral palsy and those with similar
afflictions.
Mentally retarded child - one who is:
1. Socially incompetent, that is, socially
inadequate, occupationally incompetent
and unable to manage his own affairs;
2. Mentally subnormal;
3. Intellectually retarded from birth or
early age;
4. Retarded at maturity;
5. Mentally deficient as a result of
constitutional origin through heredity or
diseases;
6. Essentially incurable.
Physically handicapped child one who
is crippled, deaf-mute, blind, or otherwise
suffers from a defect which restricts his
means of action or communication with
others.
Emotionally disturbed child - one who,
although not afflicted with insanity or
mental defect, is unable to maintain normal
social relations with others and the
community in general due to emotional
problems or complexes.
Mentally ill child - one with any
behavioral disorder, whether functional or
organic, which is of such a degree of
severity as to require professional help or
hospitalization.
Who may file and when:
Where a child appears to be mentally
retarded physically handicapped,
emotionally disturbed, mentally ill, with
cerebral palsy or with similar afflictions
and needs institutional care but his
parents or guardians are opposed
thereto, by:
1. The DSWD;
Chapter 4: Special Rules Implementing the Family Courts
2. Any duly licensed child-placement
or child-caring agency or individual.
In case no immediate placement can be
arranged for the disabled child when his
welfare and interests are at stake, by
the parents or guardian of the child.
Venue:
Family Court of the place where:
1. The parent or guardian resides, or;
2. The child is found.
Contents of Verified Petition
1. The facts showing that the child
SPECIAL PROCEEDINGS
appears to be mentally retarded,
physically handicapped, emotionally
disturbed, mentally ill, with cerebral
palsy or with similar afflictions and
needs institutional care;
2. The name of the parents and their
residence, if known, or if the child has
no living parent, the name and
residence of the guardian;
3. The fact that the parents or guardian or
any duly licensed disabled child-
placement or child-caring agency has
opposed the commitment of such child;
4. The name and written conformity of the
institution where the child is to be
committed;
5. An estimate of the costs and other
expenses of maintaining the child in the
institution.
The verified petition shall be sufficient if
based upon the personal knowledge
of the petitioner.
Order of Hearing
If the petition filed is sufficient in form
and substance, the court, by an order
reciting the purpose of the petition,
shall fix the date of the hearing
A copy of such order shall be served on:
1. The child alleged to be mentally
retarded, physically handicapped,
emotionally disturbed, mentally ill,
with cerebral palsy or with similar
afflictions;
2. The person having charge of him or
any of his relatives residing in the
province or city as the court may
deem proper.
The order shall also direct the sheriff or
any other officer of the court to produce,
if necessary, the alleged disabled child
on the date of the hearing.
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REVIEWER IN REMEDIAL LAW
Hearing and Judgment
The court shall:
1. Order his commitment to the proper
institution for disabled children;
The expense of maintaining a disabled
child in the institution to which he
has been committed shall be borne
primarily by the parents or guardian
and secondarily, by such disabled
child, if he has property of his own.
In all cases where the expenses for the
maintenance of the disabled child
cannot be paid in accordance with
above, the DSWD shall bear the
expenses, or such part thereof as
may remain unpaid.
2. Make proper provisions for the custody
of the property or money belonging to
the committed child;
3. Furnish the institution to which the
child has been committed with a copy of
its judgment, together with all the
reports and other data pertinent to the
case.
Chapter 4: Special Rules Implementing the Family Courts
Discharge of Judicially Committed
Disabled Child
Upon motion of the parent, guardian or
institution to which the child has been
judicially committed.
If it is established and certified by the
DSWD that:
1. He is no longer a danger to himself
and the community;
2. He has been sufficiently
rehabilitated from his physical
handicap or if of working age, is
already fit to engage in gainful
occupation;
SPECIAL PROCEEDINGS
3. He has been sufficiently relieved of
his psychological, mental and
emotional problems and is ready to
assume normal social relations.
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REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings

CHAPTER 5: Other Special Procedure

Proceedings 1. Filing of petition.
2. If the petition is sufficient in form and
substance, the court, by an order
I. HOSPITALIZATION OF INSANE PERSONS
(RULE 101) reciting the purpose of the petition,
A. PETITION FOR COMMITMENT shall fix a date for the hearing.
B. PETITION FOR DISCHARGE OF INSANE 3. A copy of such order shall be served on
II. DECLARATION OF ABSENCE (RULE 107) the person alleged to be insane, and to
AND OF PRESUMPTIVE DEATH (ARTS. the one having charge of him, or on
390-392, CC) such of his relatives residing in the
A. ABSENCE province or city as the judge may deem
B. PRESUMPTION OF DEATH proper.
III. CHANGE OF NAME AND CANCELLATION
4. The court shall order the sheriff to
OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY produce the alleged insane person, if

SPECIAL PROCEEDINGS
A. CHANGE OF NAME (RULE 103) possible, on the date of the hearing.
B. CHANGE OF FIRST NAME OR 5. Hearing.
NICKNAME AND CORRECTION OF The provincial or city fiscal shall
CLERICAL OR TYPOGRAPHICAL prepare the petition for the Director
ERRORS IN ENTRIES IN THE CIVIL of Health and represent him in court
REGISTRY (RA 9048) in the proceedings.
4. SCOPE AND APPLICATION The burden of proving insanity is on the
5. RA 9048 AND RULE 103
person who alleges it (Director of
COMPARED
6. THE PETITION Health).
C. CANCELLATION OR CORRECTION OF 6. Order of commitment. The court shall
ENTRIES IN THE CIVIL REGISTRY make proper provisions for the custody
(RULE 108) of property or money belonging to the
IV. VOLUNTARY DISSOLUTION OF insane until a guardian be properly
CORPORATIONS appointed.
A. WHEN NO CREDITORS AFFECTED
(SEC. 118, CORPORATION CODE)
B. Petition for Discharge of Insane
B. WHEN CREDITORS ARE AFFECTED
(SEC. 119, CORPORATION CODE)
V. NATURALIZATION Who may file: Director of Health.
When filed: When, in the opinion of the
Director of Health, the person ordered
I. HOSPITALIZATION OF INSANE
to be committed to a hospital or other
PERSONS (Rule 101) place for the insane:
1. Is temporarily or permanently
Insanity Condition of the mind where it is
cured;
so impaired in function or so deranged as 2. May be released without danger.
to induce deviation from normal conduct in
the person so afflicted. Chin Ah Foo vs. Concepcion: The Health
Secretary cannot order release without the
A. Petition for Commitment approval of the RTC.

When filed: When the hospitalization of

the person, who in the judgment of the II. DECLARATION OF ABSENCE (Rule
Director of Health is insane, is for the 107) AND OF PRESUMPTIVE
public welfare or for the welfare of said DEATH (Arts. 390-392, CC)
person.
Requisite: The person allegedly insane Scope and Applicability
or the one having charge of him is Rule 107 is applicable only when the
opposed to his being taken to a hospital absentee has properties to be
or other place for the insane. administered.
Who may file: Director of Health
Where to file: RTC of the province
where the person alleged to be insane is
found.

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REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings

A. Absence 1. State in writing his grounds

therefor;
Petition for Appointment of a 2. Serve a copy thereof on the
Representative petitioner and other interested
When filed: When a person: parties on or before the date
1. Disappears from his domicile, designated for the hearing.
his whereabouts being
unknown; Procedure
2. Has not left an agent to 1. Filing of petition for appointment of
administer his property or the representative or petition for
power conferred upon the agent declaration of absence.
has expired. 2. Court shall fix a date and place for
Who may file: the hearing of the petition where all
1. Any interested party; concerned may appear to contest

SPECIAL PROCEEDINGS
2. Relative; the petition.
3. Friend; 3. Copies of the notice of the time and
Where to file: RTC of the place where place fixed for the hearing shall be:
the absentee resided before his a. Served upon the known heirs,
disappearance. legatees, devisees, creditors and
other interested persons, at least
Petition for Declaration of Absence 10 days before the day of the
and Appointment of Trustee or hearing;
Administrator b. Published once a week for 3
When filed: consecutive weeks prior to the
1. After 2 years: time designated for the hearing,
a. From the disappearance of in a newspaper of general
and without any news from circulation in the province or
the absentee, or; city where the absentee resides,
b. Since the receipt of the last as the court shall deem best.
news about him. 4. Hearing.
2. After 5 years, if the absentee left Compliance with the notice and
an administrator of his property. publication requirements must
Who may file: be shown.
1. Spouse present; 5. Issuance of order granting or
2. Heirs instituted in a will; denying the petition.
3. Relatives who will succeed by The judge shall :
intestacy; Take the necessary
4. Those who have over the measures to safeguard the
property of the absentee some rights and interests of the
right subordinated to the absentee;
condition of his death. Specify the powers,
obligations and
Contents of Petitions remuneration of his
1. Jurisdictional facts; representative, trustee or
2. Names, ages, and residences of the administrator, regulating
heirs instituted in the will, copy of them by the rules concerning
which shall be presented, and of the guardians.
relatives who would succeed by the 6. In case of declaration of absence,
law of intestacy; the same shall not take effect until 6
3. Names and residences of creditors months after its publication in a
and others who may have any newspaper of general circulation
adverse interest over the property of designated by the court and in the
the absentee; Official Gazette.
4. Probable value, location and
character of the property belonging Reyes vs. Alejandro: It is not necessary that a
to the absentee. declaration of absence be made in a proceeding
separate from and prior to a petition for
Opposition administration.
Anyone appearing to contest the
petition shall:

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REVIEWER IN REMEDIAL LAW
Who may be appointed
Representative, Administrator, or
Trustee
1. The spouse present, who shall be
preferred when there is no legal
separation;
2. Any competent person:
a. If the absentee left no spouse;
b. If the spouse present is a minor
or otherwise incompetent.
Termination of Administration
1. When the absentee appears
personally or by means of an agent;
2. When the death of the absentee is
proved and his testate or intestate
heirs appear;
3. When a third person appears,
showing by a proper document that
he has acquired the absentee's
property by purchase or other title.
B. Presumption of Death
Periods
For all purposes, except for succession
7 years.
For the purpose of opening of
succession 10 years.
o If disappeared after the age of 75
years 5 years.
Cases where there is danger of death,
for all purposes, including
succession:
o A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing - 4
years since the loss of the vessel
or aeroplane.
o A person in the armed forces
who has taken part in war - 4
years.
o A person who has been in
danger of death under other
circumstances - 4 years.
For the purpose of remarriage 4 years.
In cases where there is danger of death
2 years.
Petition for Declaration of
Presumptive Death
No independent action is necessary for
the declaration of presumption of
death, except for purposes of
remarriage, where the present
spouse must first file a summary
proceeding for the declaration of
presumptive death of the absent
spouse before contracting a second
marriage (Art. 41, FC).
Chapter 5: Other Special Proceedings
III.CHANGE OF NAME AND
CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
(Asked in the 2005 and 2007 Bar
Examinations)
Applicable Rules
Substantial changes in name: Rule 103
Substantial changes in entries in the
civil registry (other than name): Rule
108
Non-substantial changes in entries in
the civil registry (i.e., changes in
SPECIAL PROCEEDINGS
first name or nickname and
correction of clerical or
typographical errors) : RA 9048
A. Change of Name (RULE 103)
Who may file:
1. The person desiring to change his
name;
2. Some other person on his behalf.
Where to file: RTC of the province in
which he resides.
Ong Huan Tin vs. Republic (1967): An alien may
petition for a change of name but he must be
domiciled in the Philippines.
No Yao Siong vs. Republic (1966): The name that
can be changed is the name that appears in the
civil register, and not in the baptismal certificate
or that by which the person is known in the
community.
Contents of Petition
1. That the petitioner has been a bona
fide resident of the province where
the petition is filed for at least 3
years prior to the date of such filing;
2. The cause for which the change of
the petitioner's name is sought;
3. The name asked for;
4. All names by which the petitioner is
known (Secan Kok vs. Republic
(1973); Go Chiu Beng vs. Republic
(1972)).
The petition shall be signed and
verified.
Go Chiung Beng vs. Republic (1972): All aliases of
the applicant must be set forth in the petitions
title. Such defect is fatal, even if said aliases are
contained in the body of the petition.
Oshito vs. Republic (1967): Verification is a
formal, not a jurisdictional, requirement. The
lack of verification is not a ground for dismissing
the petition. However, before setting the petition
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REVIEWER IN REMEDIAL LAW
for hearing, the court should have required the
petitioner to have the petition verified.
Valid grounds for filing
1. When the name is ridiculous,
dishonourable, or extremely difficult
to write or pronounce;
2. Consequence of a change in status;
3. To avoid confusion (Alfon vs.
Republic, 1980);
4. Having continuously used and been
known since childhood by a Filipino
name, unaware of his alien
parentage (Ang Chay vs. Republic,
1970);
Chapter 5: Other Special Proceedings
Publication requirement
A change in name is a proceeding in
rem. As such, strict compliance with
all jurisdictional requirements,
particularly on publication, is
essential in order to vest the court
with jurisdiction (Regalado).
Jacobo vs. Republic: A discrepancy in the name
sought to be adopted as stated in the petition
and in the published order constitutes a
substantial defect because it did not correctly
identify the parties to the proceedings. It renders
the entire proceedings null and void since the
court has not acquired jurisdiction

SPECIAL PROCEEDINGS
.
5. A sincere desire to adopt a Filipino
name to erase signs of former
B. Change of First Name or
alienage, all in good faith and Nickname and Correction of
without prejudice to anyone (Uy vs. Clerical Or Typographical Errors
Republic, 1965). In Entries In The Civil Registry
(RA 9048)
Laperal vs. Republic (1962): Legal separation is
not a ground for the female spouse to apply for a 1. Scope and Application
change of name under Rule 103...
RA 9048 governs non-substantial
Opposition changes in entries in the civil registry,
Who may file: Any interested person. such as:
Procedure 1. Clerical or typographical errors,
1. Filing of petition for change of name. and;
2. Court shall promulgate an order 2. Changes of first name or nickname.
fixing a date and place for hearing
the petition. The date set for the 2. RA 9048 AND Rule 103 Compared
hearing shall not be:
Within 30 days prior to an RA 9048 RULE 103
election, and; Nature of Administrative: Judicial
Within 4 months after the last Proceeding Petition is filed
publication of the notice. before the local
3. Court shall direct a copy of the civil registrar or,
order to be published before the for non-resident
hearing at least once a week for 3 citizens, the
successive weeks in some consul general
Scope Correction of Substantial
newspaper of general circulation
clerical or changes in
published in the province. typographical name,
4. Hearing. errors and including
o The Solicitor General or the changes in first surname
proper provincial or city fiscal name or
shall appear on behalf of the nickname
Government of the Republic.
5. Judgment granting or denying the General Rule: No person can change
change of name. his name or surname without judicial
6. Copy of judgments shall be authority (Art. 376, CC).
furnished the civil registrar of the Exception: Changes of first name or
municipality or city where the court nickname under RA 9048.
issuing the same is situated, who
shall forthwith enter the same in the Clerical or Typographical Error A
civil register. mistake committed in the performance
of clerical work in writing, copying,
Secan Kok vs. Republic (1973): A change of name transcribing or typing an entry in the
granted by the court affects only a petitioner. A civil register that:
separate petition for change of name must be 1. Is harmless and innocuous;
filed for his/her spouse and children.

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REVIEWER IN REMEDIAL LAW
2. Is visible to the eyes or obvious to
the understanding;
3. Can be corrected or changed only by
reference to other existing record or
records;
4. Does not involve the change of
nationality, age, status or sex of the
petitioner.
3. The Petition
Who may file: A natural person having
direct and personal interest in the
correction of a clerical or typographical
error in an entry or change of first name
or nickname in the civil register.
Where to file:
General Rule: The local civil registry
office of the city or municipality
where the record being sought to be
corrected or changed is kept.
If the petitioner has already migrated to
another place in the country and it
would not be practical for him, in
terms of transportation expenses,
time and effort, to appear in person
before the local civil registrar
keeping the documents to be
corrected or changed: The local civil
registrar of the place where the
interested party is presently residing
or domiciled.
o The two local civil registrars
concerned will communicate to
facilitate the processing of the
petition.
If the petitioner is a Filipino citizen
presently residing or domiciled in
foreign countries: The nearest
Philippine Consulate.
Grounds
1. Petitioner finds the first name or
nickname to be ridiculous, tainted
with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has
been habitually and continuously
used by the petitioner and he has
been publicly known by the first
name or nickname in the
community;
3. The change will avoid confusion.
Number of changes of name of
allowed
Petition for change of name or
correction of clerical or
Chapter 5: Other Special Proceedings
typographical error can only be
availed once.
Silverio vs. Republic (2007): A persons first
name cannot be changed on the ground of
sex reassignment. RA 9048 does not sanction
a change of first name on the ground of sex
reassignment. Before a person can legally
change his given name, he must present
proper or reasonable cause or any compelling
reason justifying such change. In addition, he
must show that he will be prejudiced by the
use of his true and official name. Silverio failed
to show, or even allege, any prejudice that he
might suffer as a result of using his true and
official name. Rather than avoiding confusion,
SPECIAL PROCEEDINGS
changing petitioners first name may only
create grave complications in the civil registry
and the public interest.
No law allows the change of entry in the
birth certificate as to sex on the ground of
sex reassignment. RA 9048 only allows
correction of clerical or typographical errors. A
correction in the civil registry involving the
change of sex is not a mere clerical or
typographical error. The birth certificate of
petitioner contained no error. All entries
therein, including those corresponding to his
first name and sex, were all correct. No
correction is necessary.
People vs. Cagandahan (2008): Intersexuality
is a valid ground for change of name and
change of entry of sex in the civil registry.
Where the person is biologically or naturally
intersex the determining factor in his gender
classification would be what the individual,
having reached the age of majority, with good
reason, thinks of his sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at
maturity that the gender of such persons is
fixed.
Failure to implead the local civil registrar as
well as all persons who have or claim any
interest did not render the petition fatally
defective. Cagandahan furnished the local civil
registrar a copy of the petition, the order to
publish, and all pleadings, orders or processes
in the course of the proceedings. There was
therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules
of Court.
Form of petition
1. In the form of an affidavit;
2. Verified, and;
3. Subscribed and sworn to before any
person authorized by law to
administer oaths.
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REVIEWER IN REMEDIAL LAW
Contents of petition
1. Facts necessary to establish the
merits of the petition;
2. A showing that the petitioner is
competent to testify to the matters
stated;
3. Particular erroneous entry or entries
which are sought to be corrected
and/or the change sought to be
made.
Supporting documents
In correction of clerical or typographical
errors:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other documents which the
petitioner or the city or municipal
civil registrar, or the consul general
may consider relevant and
necessary for the approval of the
petition.
In changes of first name or nickname:
1. A certified true machine copy of the
certificate or of the page or of the
registry book containing the entry or
entries sought to be corrected or
changed;
2. At least 2 public or private
documents showing the correct
entry or entries upon which the
correction or change shall be based;
3. Other documents which the
petitioner or the city or municipal
civil registrar, or the consul general
may consider relevant and
necessary for the approval of the
petition;
4. Certification from the appropriate
law enforcement agencies that the
petitioner has no pending case or no
criminal record.
Procedure
1. Filing of petition. The petition and
its supporting papers shall be filed
in 3 copies to be distributed to:
a. The concerned city or municipal
civil registrar or the consul
general;
b. The Office of the Civil Registrar
General;
Chapter 5: Other Special Proceedings
c. The petitioner;
2. The City or Municipal Registrar or
the Consul General shall post the
petition in a conspicuous place for
ten 10 consecutive days after he
finds the petition and its supporting
documents sufficient in form and
substance.
3. In case of change of first name or
nickname, the petition shall be
published at least once a week for 2
consecutive weeks in a newspaper of
general circulation.
4. The City or Municipal Registrar or
SPECIAL PROCEEDINGS
the Consul General shall render a
decision not later than 5 working
days after the completion of the
posting and/or publication
requirement. He shall transmit a
copy of his decision together with
the records of the proceedings to the
Office of the Civil Registrar General
within 5 working days from the date
of the decision.
Where the petition is denied by
the city or municipal civil
registrar or the consul general,
the petitioner may either appeal
the decision to the civil registrar
general or file the appropriate
petition with the proper court.
5. The Civil Registrar General shall,
within 10 working days from receipt
of the decision granting a petition,
exercise the power to impugn such
decision by way of an objection.
Grounds for objection:
a. The error is not clerical or
typographical;
b. The correction of an entry or entries
in the civil register is substantial or
controversial as it affects the civil
status of a person;
c. The basis used in changing the first
name or nickname of a person does
not fall under one of the valid
grounds.
If the civil registrar general fails
to exercise his power to impugn
the decision of the city or
municipal registrar or of the
consul general within the period,
such decision shall become final
and executory.
6. The civil registrar general shall
immediately notify the city or
municipal civil registrar or the
Page 214 of 370
REVIEWER IN REMEDIAL LAW Chapter 5: Other Special Proceedings
consul general of the action taken Rule 108 Compared with Rule 103 and
on the decision. RA 9048
7. Upon receipt of the notice thereof,
the city or municipal civil registrar Rule 108 RA 9048
or the consul general shall notify the Nature of Judicial Administrative:
petitioner of such action. Proceeding Petition is filed
8. Appeal. The petitioner may seek with the local
reconsideration with the civil civil registrar
registrar general or file the or, for non-
appropriate petition with the proper resident
court. citizens, the
consul general
C. Cancellation or Correction of Scope Substantial Correction of
Entries in the Civil Registry changes in clerical or

SPECIAL PROCEEDINGS
(RULE 108) entries in typographical
the civil errors and
Scope registry, changes in first
other than name or
Rule 108 governs substantial changes in name nickname
entries in the civil registry, excluding name
which is governed by Rule 103. Rule 108 RULE 103
Nature of Judicial Judicial
Substantial Change change that affects Proceeding
the civil status, citizenship, or nationality of Scope Substantial Substantial
a party. changes in changes in
entries in the name,
Entries Subject to Cancellation or civil registry, including
Correction other than surname
1. Births; name
2. Marriage; Who may Any person Person
3. Deaths; File interested in desiring to
4. Legal separations; any act, change his
5. Judgments of annulments of event, order, name or
marriage; or decree some other
6. Judgments declaring marriages void concerning person on
from the beginning; the civil his behalf
7. Legitimations; status of
8. Adoptions; persons.
9. Acknowledgments of natural Where and Verified Petition
children; How Filed petition filed filed in the
10. Naturalization; in the RTC RTC where
11. Election, loss or recovery of where the the
citizenship; corresponding petitioner
12. Civil interdiction; civil registry is resides
13. Judicial determination of filiation; located
14. Voluntary emancipation of a minor; Standing of Civil register Civil
15. Changes of name; Local Civil concerned is register is
Register made party to not a party
the to the
proceeding as proceeding.
a respondent.
Notice The court No mention
requirement shall cause of cause of
reasonable notice to be
notice to be sent.
given to
persons
named in the
petition.

Page 215 of 370

REVIEWER IN REMEDIAL LAW
Republic vs. Valencia: The procedure recited in
Rule 103 regarding change of name and in Rule
108 concerning the cancellation or correction of
entries in civil registry are separate and distinct.
They may not be substituted one for the other. If
both reliefs are to be sought in the same
proceedings all the requirements of Rule 103
and 108 must be complied with.
Who may file:
Any person interested in any act, event,
order, or decree concerning the civil status
of persons which has been recorded in the
civil registry.
How:
Verified petition.
Where to file:
RTC of the province where the
corresponding civil registry is located.
Who are made parties:
1. The civil registrar;
2. All persons who have or claim any
interest which could be affected.
Opposition
Who may file:
1. The civil registrar;
2. Any person having or claiming any
interest under the entry whose
cancellation or correction is sought
When filed: within 15 days from notice
of the petition or from the last date of
publication of the notice.
Procedure
1. Filing of the petition.
2. The court shall, by an order, fix the time
and place for the hearing of the petition.
3. The court shall cause reasonable notice
of the hearing to be given to the persons
named in the petition.
4. The court shall cause the order to be
published once a week for 3 consecutive
weeks in a newspaper of general
circulation in the province.
5. Hearing.
The court may make orders
expediting the proceedings.
The court may grant preliminary
injunction for the preservation of the
rights of the parties pending such
proceedings.
6. Judgment.
A certified copy of the judgment
shall be served upon the civil
registrar concerned who shall
annotate the same in his record.
Chapter 5: Other Special Proceedings
IV. VOLUNTARY DISSOLUTION OF
CORPORATIONS (please refer
to the COMMERCIAL LAW
REVIEWER, p.116)
V. NATURALIZATION
Naturalization process that confers
to an alien a nationality after birth by
any of the means provided by law.
Governing law- Commonwealth Act No.
473, as amended by Republic Act No.
530.
SPECIAL PROCEEDINGS
Qualifications
1. The petitioner must not be less than
21 years of age on the date of
hearing the petition;
2. He must have resided in the
Philippines for a continuous period
of not less than 10 years;
Period may be reduced to 5 years if
the applicant:
a. Honorably held office under
the Government of the
Philippines or under any of
its provinces, cities,
municipalities, or political
subdivisions;
b. Established a new industry
or introduced a useful
invention in the Philippines;
c. Is married to a Filipino
woman;
d. Had been engaged as a
teacher in a public or
recognized private school not
established for the exclusive
instruction of children of
persons of a particular
nationality or race in any of
the branches of education or
industry for a period of 2
years;
e. Was born in the Philippines.
3. He must be of good moral character,
and believe in the principles
underlying the Philippine
Constitution, and must have
conducted himself in a proper and
irreproachable manner during the
entire period of his residence in the
Philippines in his relations with the
constituted government as well as
the community in which he is living;
Dy Lam Go v. Republic (5 SCRA 915
(1962)): Proper and irreproachable
conduct imposes a higher standard of
Page 216 of 370
REVIEWER IN REMEDIAL LAW
morality than the term good moral
character. It requires moral character of
the highest degree. Merely being a law-
abiding citizen is inadequate.
Proper and irreproachable conduct must
be proven by competent evidence such
as testimony of 2 character witnesses
who must be well known in the
community and enjoy a high reputation
for probity.
4. He must own real estate in the
Philippines worth not less than
P5,000, Philippine currency, or have
some lucrative trade, profession, or
lawful occupation;
Lucrative trade, profession, or lawful
occupation means substantial
gainful employment or the
obtaining of tangible receipts; an
appreciable margin of income
over expenses in order to provide
for adequate support for himself
and his family in case of
sickness, unemployment, or
disability to work.
5. He must be able to speak and write
English or Spanish, and any one of
the principal Philippine languages;
6. He must have enrolled his minor
children of school age in any of the
public schools or private schools
recognized by the Bureau of Private
Schools where Philippine history,
government, and civics are taught or
prescribed as part of the school
curriculum during the entire period
of the residence required of him,
prior to the hearing of his petition.
Disqualifications
1. Persons opposed to organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines
opposing all organized governments;
2. Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination
for the success and predominance of
their ideas;
3. Polygamists or believers in the
practice of polygamy;
4. Persons convicted of crimes
involving moral turpitude;
5. Persons suffering from mental
alienation or incurable contagious
diseases;
6. Persons who, during the period of
their residence in the Philippines,
have not mingled socially with the
Chapter 5: Other Special Proceedings
Filipinos, or who have not evinced a
sincere desire to learn and embrace
the customs, traditions, and ideals
of the Filipinos;
7. Citizens or subjects of nations with
whom the United States and the
Philippines are at war, during the
period of such war;
8. Citizens or subjects of a foreign
country other than the United
States whose laws do not grant
Filipinos the right to become
naturalized citizens or subjects
thereof.
SPECIAL PROCEEDINGS
General Rule: Burden of proving
disqualification is upon the
state.
Caveat: SC has held that applicant
must prove he has none of
disqualifications. The law must
be strictly construed against the
applicant because naturalization
is a privilege and not a right.
Procedure
1. Filing of declaration of intention to
become a citizen;
When: 1 year before petition is filed.
Where: Office of the Solicitor
General.
How: Declaration under oath.
Exemptions:
a. Persons born in the
Philippines and who have
received their primary and
secondary education in
public or private schools
recognized by the
Government, and not limited
to any race or nationality;
b. Those who have resided
continuously in the
Philippines for a period of
thirty years or more before
filing their application;
c. The widow and minor
children of an alien who
declared his intention to
become a citizen of the
Philippines and dies before
he is actually naturalized.
2. Filing of petition for naturalization;
Where: RTC of the province in
which the petitioner has resided
at least one year immediately
preceding the filing of the
petition
How: Petition in triplicate, signed
by the applicant in his own
handwriting
Page 217 of 370
REVIEWER IN REMEDIAL LAW
Contents:
a. Petitioners name and
surname;
b. His present and former
places of residence;
c. His occupation;
d. Place and date of his birth;
e. His civil status;
f. Names, ages, birthplaces and
residence of his wife and
children;
g. Approximate date of his
arrival in the Philippines, the
name of the port of
debarkation, and, the name
of the ship on which he
came;
h. Declaration that he has the
qualifications and none of
the disqualifications for
naturalization;
i. Declaration of compliance
with the declaration of
intention requirement;
j. Declaration that he will
reside continuously in the
Philippines from the date of
the filing of the petition up to
the time of his admission to
Philippine citizenship;
k. Affidavit of at least two
credible persons, stating that
they are citizens of the
Philippines and personally
know the petitioner to be a
resident of the Philippines
for the required period of
time and a person of good
repute and morally
irreproachable, and that said
petitioner has in their
opinion all the qualifications
necessary and is not in any
way disqualified to become a
citizen of the Philippines;
l. Names and post-office
addresses of witnesses the
petitioner may desire to
introduce at the hearing of
the case;
m. Certificate of arrival and the
declaration of intention;
n. 2 photographs of the
petitioner.
Chapter 5: Other Special Proceedings
3. Publication at the petitioners
expense once a week for three
consecutive weeks in the Official
Gazette or newspaper of general
publication in the province where
the petitioner resides of the petition;
4. Posting of copies of the petition and
a general notice of the hearing in a
public and conspicuous place;
5. Forwarding of copies of the petition,
the sentence, the naturalization
certificate, and other pertinent data
to the DILG, DOJ, the Provincial
Inspector of the Philippine
SPECIAL PROCEEDINGS
Constabulary of the province and
the MTC judge of the municipality
wherein the petitioner resides;
6. Hearing of petition;
No petition shall be heard within the
thirty days preceding any
election until after six months
from the publication of the
application.
The hearing shall be public. The
Solicitor-General shall appear on
behalf of the Republic.
7. Approval or denial of petition and
issuance of the Certificate of
Naturalization;
8. Rehearing of petition 2 years after
the promulgation of the judgment ;
The decision shall not become
executory until the court finds
that during the intervening time
the applicant has:
a. Not left the Philippines;
b. Dedicated himself
continuously to a lawful
calling or profession;
c. Not been convicted of any
offense or violation of
Government promulgated
rules;
d. Not committed any act
prejudicial to the interest of
the nation or contrary to any
Government announced
policies.
9. Taking of the oath of allegiance to
support and defend the Constitution
and the laws of the Philippines.
Appeal
Final decision appealable to SC, at the
instance of either of the parties.
Page 218 of 370
REVIEWER IN REMEDIAL LAW Chapter 6: Appeals in Special Proceedings

CHAPTER 6: Appeals in Special Advance Distributions

Proceedings Notwithstanding a pending
controversy/appeal in estate
Appealable Orders and Judgments settlement proceedings, the court
1. If it dis/allows a will may permit that the estates parts
2. If it wholly determines who are the which are not affected by the
lawful heirs or the distributive controversy/appeal be distributed,
shares upon compliance with Rule 90
3. If it wholly or partially dis/allows a
claim against a decedents estate, or
any claim presented on the
decedents estate, or any claim
presented on the estates behalf on
offset to claim against it

SPECIAL PROCEEDINGS
4. If it settles the account of an
executor/administrator/trustee/gua
rdian
5. If it constitutes a final determination
in the lower court of the rights of the
party appealing in proceedings
relating to estate settlement or
administration of a
trustee/guardian
Exception: Appointment of a special
administrator is not appealable
Remedy: Petition for certiorari under
Rule 65, if there is grave abuse of
discretion.
If it is the final order/judgment
rendered in the case, and affects the
substantial rights of the person
appealing
Exception: Orders granting/ denying a
MFR/MNT

While some of the items in Rule 109.

Sec. 1 may be considered as
interlocutory under ordinary special
actions, the nature of special
proceedings declares them as
appealable as exceptions to Rule 41,
Sec. 2
Since multiple appeals are
contemplated under this provision,
appeals in special proceedings
necessitate a record on appeal as the
original record should remain in the
trial court
In a special proceeding, the period of
appeal is 30 days a notice of appeal and
a record on appeal being required. The
appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal
period expires without an
appeal/MF/MNT, the order becomes
final

Page 219 of 370

REVIEWER IN REMEDIAL LAW
CHAPTER 7: The Writs
I. WRIT OF HABEAS CORPUS
A. To What Habeas Corpus Extends
B. Who May Grant the Writ
C. Requisites of Application
D. When Writ not Allowed or Discharge
Authorized
E. When Writ Must be Granted and Issued
F. Aspects of the Return
G. When person Lawfully Imprisoned
Recommitted, and When let to Bail
H. When Prisoner Discharged if no Appeal
I. Penalties
J. Record of Writ, Fees and Costs
II. WRIT OF AMPARO
A. General principles
B. Aspects of Filing
C. Issuance and Service of the Writ
D. Aspects of the Return
E. Hearing on the Writ
F. Allowable Reliefs
G. Penalties
H. Burden of Proof
I. Judgment and Appeal
J. Effect of Other Actions
K. Other Matters
III. WRIT OF HABEAS DATA
A. General Principles
B. Aspects of Filing
C. Issuance and Service
D. Aspects of Return
E. Hearing on the Writ
F. Penalties
G. Judgment and Appeal
H. Return of Judgment, Hearing thereon
I. Effects of Other Actions
J. Other Matters
IV. WRIT MATRIX
I. WRIT OF HABEAS CORPUS
(Asked in the 1993, 1998, and 2003 Bar
Examinations)
A. To What Habeas Corpus Extends
Sec. 1 Except as otherwise expressly provided
by law, the writ of habeas corpus shall extend to
all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by
which the rightful custody of any person is
withheld from the person entitled thereto.
Vital purposes:
To obtain relief from illegal confinement
To liberate those who may be
imprisoned without sufficient cause
To deliver them from unlawful custody
Essentially a writ of inquiry, granted to
test the right under which a person is
detained, and to relieve a person if such
restrain is illegal
Can only be suspended in cases if in
cases or rebellion or invasion and when
Chapter 7: The Writs
public interest requires it (Art. III Sec.
15)
Extends to all cases of illegal
confinement or detention by which any
person any person is deprived of his
liberty, or by which the rightful custody
of any person is withheld from the
person entitled thereto
Prime specification of the application for
a writ of habeas corpus is restraint of
liberty
Not an inquisition between private
parties, but an inquisition by the
government proceedings in habeas
SPECIAL PROCEEDINGS
corpus are separate and distinct from
the main case from which the
proceedings spring
Ex parte Bollman: the question whether
one shall be imprisoned is always
distinct from the question of
whether the individual shall be
convicted or acquitted of the charge
on which he is tried, and therefore
these questions are separate, and
may be decided in different courts
In the case if People v. Valte (1922), it
was stated that the writ of habeas
corpus is not designed to interrupt the
orderly administration of the laws by a
competent court acting within the limits
of its jurisdiction, but is available only
for the purpose relieving from illegal
restraint
Proceedings on habeas corpus to obtain
release from custody under final
judgment being in the nature of
collateral attack, the writ deals only
with such radical defects as render
the proceeding or judgment
absolutely void, and cannot have the
effect of appeal, writ of error or
certiorari, for the purpose of
reviewing mere error and
irregularities in the proceedings
A release that renders a petition for a
writ of habeas corpus moot and
academic must be one which is free
from involuntary restraint
In Moncupa v. Enrile (1986), it was held that
(a) where a person continues to be unlawfully
denied one or more of his constitutional
freedoms,
(b) where there is present denial of due process,
(c) where the restraints not merely involuntary
but appear to be unnecessary, and
(d) where a deprivation of freedom originally
valid has, in light of subsequent
developments, become arbitrary,
the person concerned or those applying in his
behalf may still avail themselves of the privileges
of the writ
Page 220 of 370
REVIEWER IN REMEDIAL LAW
General Rule: the release, whether
permanent or temporary, of a detained
person renders the petition for HC moot
and academic
Exceptions: Unless there are restraints
attached to his release which precludes
freedom of action in which case the
Court can still inquire into the nature of
his involuntary restraints
E.g. In the aforementioned Moncupa
case, the restrictions imposed by the
military on the temporary release of
the petitioner constitute restraints
which limit the freedom of
movement on said petitioner (not
travel outside Manila, regular
reporting to the military, no press
interviews). It is not physical
restraint alone which is inquired
into by the WHC
In contrast, Villavicencio v. Lukban
(1919), the women who had been
illegally seized and transported
against their will were no longer in
any restraint because, unlike in
Moncupa, they were free to change
their domicile without asking for
official permission
For denial of a constitutional right to
the accused, the hearing tribunal may
lose its jurisdiction to conduct further
proceedings, and HC may lie to obtain
release of the accused
Void judgment of conviction due to
disregard of constitutional rights
may be challenged by collateral
attack, which is the precise function
of WHC
Failure by the accused to perfect his
appeal before the Court of Appeals
does not preclude recourse to the
writ
However, it is only where:
1. there is no proof whatever to
sustain the order, or
2. where no fair hearing was
granted, or
3. where there was an arbitrary
disregard of the conceded or
undisputed facts,
that a WHC will issue
While an excessive sentence or penalty
imposed by final judgment may be
corrected by HC, the cases where such
ruling was applied involved penalties
that could not be imposed under any
circumstances for the crime for which
the prisoner was convicted
Correlatively, WHC may be applied to
persons sentenced to life imprisonment
Chapter 7: The Writs
for violations of Dangerous Drugs Law
the penalty for which was later on
reduced after the maximum of the
applicable penalties newly prescribed by
the Indeterminate Sentence Law.
All courts of competent jurisdiction may
entertain petitions for HC for this
purpose, and although deficient in
form, may be entertained so long as
they are sufficient in substance (de
Guzman v. Vinario, 1994)
The WHC is the proper legal remedy :
To enable parents to regain custody of a
SPECIAL PROCEEDINGS
minor daughter, even though the
latter be in the custody of a third
person of her own free will
To resolve questions of custody of a
minor
o The underlying rationale is not
the illegality if the restraint but
the right of custody
Requisites:
1. Petitioner has the right to the
custody of the minor
2. The rightful custody of the minor is
being withheld by the respondent
3. That it is the best interest of the
minor concerned to be in the
custody of petitioner and not that of
respondent
While a writ of right, WHC it will not
issue as a matter of course or as a mere
perfunctory operation on the filing of
the petition
Judicial discretion is exercised, and
whether or not the petition is
sufficient in form and substance,
writ should issue if the petition
complies with the legal requirements
and its averments make a prima
facie case for relief
WHC may be used with writ of certiorari
for purposes of review
The two writs may be ancillary to each
other where necessary to give effect
to the supervisory powers of higher
courts
WHC reaches the body of the
jurisdictional matters, but not the
record. Writ of certiorari reaches
the record but not the body
While generally, the WHC will not be
granted when there is and adequate
remedy like writ of error, appeal, or
certiorari, it may still be available in
exceptional cases
Page 221 of 370
REVIEWER IN REMEDIAL LAW
Generally, WHC is not the proper
remedy for the correction of errors of
fact or law
o Exception: Error affects courts
jurisdiction (making the
judgment void)
WHC does not lie where the petitioner
has the remedy of appeal or
certiorari
WHC is not proper:
o To assert or vindicate denial of
right to bail
o For correcting errors in
appreciation of fact or law
HC and not prohibition is the proper
remedy for reviewing proceedings for
deportation of aliens
B. Who May Grant the Writ
Sec. 2 The WHC may be granted by the SC, or
any member thereof, on any day at any time, or
by the CA or any member thereof in the
instances authorized by law, and if so granted it
shall be enforceable anywhere in the Philippines,
and may be made returnable before the court or
any member thereof, or before a RTC, or any
judge thereof for hearing and decision on the
merits. It may also be granted by a RTC, or a
judge thereof, on any day and at any time, and
returnable before himself enforceable only within
his judicial district.
The SC,CA, and RTC have concurrent
jurisdiction to issue WHC
In the absence of all RTC judges in a
province or city, municipal trial court
judges may hear and decide petitions
for a WHC (BP 129 Sec.9)
It is only when the writ is issued by the
SC or CA that it is enforceable
anywhere in the Philippines
Under the Family Courts Act, family
courts have jurisdiction to hear
petitions for custody of minors and the
issuance of the WHC in relation to
custody of minors
Petitions may still be filed with regular
courts in the absence of the
presiding judge of the family court,
provided that regular courts shall
refer the case to the family court a
soon as its presiding judge returns
to duty
Petition may also be filed with
appropriate regular courts in place
where there are no family courts
Matters pertaining to the guardianship
of an infant must be determined in
courts established for such matters;
however, this does not preclude the
Chapter 7: The Writs
rendition of an order awarding
temporary custody of a child in habeas
corpus proceedings. Such continues in
force until a court with jurisdiction over
the guardianship appoints a guardian of
his person
C. Requisites of Application
Sec. 3 Application for the writ shall be by
petition signed and verified by the party for
whose relief it is intended, or by some person on
his behalf, and shall set forth:
(a) That the person in whose behalf the
application is made is imprisoned or
SPECIAL PROCEEDINGS
restrained of his liberty;
(b) The officer or name of the person by whom
he is so imprisoned or retrained; or if both
are unknown or uncertain, such officer or
person may be described by an assumed
appellation, and the person who is served
with the writ shall be deemed the person
intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be
procured without any legal authority, such
fact shall appear.
A common law spouse has the
personality to institute on behalf of her
common law husband the HC aspect of
the petition, as she falls under the
purview of the term some person
Some person any person who has a
legally justified interest in the
freedom of the person whose liberty
is restrained or who shoes some
authorization to make the
application
Where an application is made in a
persons behalf, and the person for
whose behalf it is taken repudiates,
the writ will be denied
D. To When Writ Not Allowed or
Discharge Authorized
Sec. 4 If it appears that the person alleged to be
restrained of his liberty is in the custody of an
officer under process issued by a court or judge
or by virtue of a judgment or order of a court of
record, and that the court or judge had
jurisdiction to issue the process, render the
judgment; or make the order, the writ shall not
be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be
discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the
discharge of a person charged with or convicted
of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
Page 222 of 370
REVIEWER IN REMEDIAL LAW
General Rule: WHC will not issue
where the person alleged to be
restrained of his liberty is in custody of
an officer under a process issued by the
court which has jurisdiction to do so
Even if the arrest of a person is illegal,
supervening events may bar his
release or discharge form custody
The legality of the detention is inquired
into at the earliest, the application
for a WHC
Among the supervening events is the
issuance of a judicial process
(defined as a writ, warrant,
subpoena, or other formal writing
issued by authority of law)
Another supervening event is the filing
before a trial court a complaint
which issued a hold departure order
and denied motion to dismiss and to
grant bail (Velasco v. CA,1995)
Filing of an information for the offense
for which the accused is detained
bars the availability of WHC
Improper arrest or lack of preliminary
investigation is not a valid ground for
the issuance of WHC
Proper remedy is a motion to quash
warrant of arrest and/or
information before the trial court
Posting of a bail is not a waiver of the
right to challenge the validity of the
arrest, and therefore the right to resort
to WHC (Revised Rules of Crim Pro Sec.
26)
A person discharged on bail is not
entitled to WHC, because such person
is not imprisoned or restrained of his
liberty in such a way as to entitle him to
the WHC
E. When Writ Must Be Granted and
Issued
Sec. 5. A court or judge authorized to grant the
writ must, when a petition therefor is presented
and it appears that the writ ought to issue, grant
the same forthwith, and immediately thereupon
the clerk of the court shall issue the writ under
the seal of the court; or in the case of
emergency, the judge may issue the writ under
his own hand, and may depute any officer or
person to serve it.
The operative act is detention or
restraint (whether or not physical). If
there is none, no WHC will issue despite
the possibility of respondent being liable
to civil, criminal, or administrative
action
Chapter 7: The Writs
Judicial discretion is exercised in
issuance of the writ, and will not issue
as a matter of course
F. Aspects of the Return
Sec. 6. To whom writ directed, and what to
require. - In case of imprisonment or restraint
by an officer, the writ shall be directed to him,
and shall command him to have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified. In case of imprisonment
or restraint by a person not an officer, the writ
shall be directed to an officer, and shall
SPECIAL PROCEEDINGS
command him to take and have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified, and to summon the
person by whom he is restrained then and there
to appear before said court or judge to show the
cause of the imprisonment or restraint.
Sec. 7. How prisoner designated and writ
served. - The person to be produced should be
designated in the writ by his name, if known,
but if his name is not known he may be
otherwise described or identified. The writ may
be served in any province by the sheriff or other
proper officer, or by a person deputed by the
court or judge. Service of the writ shall be made
by leaving the original with the person to whom
it is directed and preserving a copy on which to
make return or service. If that person cannot be
found, or has not the prisoner in his custody,
then the service shall be made on any other
person having or exercising such custody.
Sec. 8. How writ executed and returned. -
The officer to whom the writ is directed shall
convey the person so imprisoned or restrained,
and named in the writ, before the judge allowing
the writ, or in case of his absence or disability,
before some other judge of the same court, on
the day specified in the writ, unless, from
sickness or infirmity of the person directed to be
produced, such person cannot, without danger,
be bought before the court or judge; and the
officer shall make due return of the writ,
together with the day and the cause of the
caption and restraint of such person according
to the command thereof.
Sec. 9. Defect of form. - No writ of habeas
corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody
or under whose restraint the party imprisoned
or restrained is held and the court or judge
before whom he is to be bought.
Preliminary citation requires the
respondent to appear and show cause
why the peremptory writ should not be
granted
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REVIEWER IN REMEDIAL LAW
Peremptory writ unconditionally
commands the respondent to gave the
body of the detained person before the
court at a time and place therein
specified
Sec. 10. Contents of return. - When the
person to be produced is imprisoned or
restrained by an officer, the person who makes
the return shall state therein, and in other cases
the person in whose custody the prisoner is
found shall state, in writing to the court or judge
before whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party in
his custody or power, or under restraint;
(b) If he has the party in his custody or
power, or under restraint, the authority and
the true and whole cause thereof, set forth
at large, with a copy of the writ, order
execution, or other process, if any, upon
which the party is held;
(c) If the party is in his custody or power or
is restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
of which he cannot, without danger, be
bought before the court or judge;
(d) If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what time,
for what cause, and by what authority such
transfer was made.
Sec. 11. Return to be signed and sworn
to. - The return or statement shall be
signed by the person who makes it; and
shall also be sworn by him if the prisoner is
not produced, and in all other cases unless
the return is made and signed by a sworn
public officer in his official capacity.
Sec. 12. Hearing on return. Adjournments. -
When the writ is returned before one judge, at a
time when the court is in session, he may
forthwith adjourn the case into the court, there
to be heard and determined. The court or judge
before whom the writ is returned or adjourned
must immediately proceed to hear and examine
the return, and such other matters as are
properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in
which event the court or judge shall make such
order for the safekeeping of the person
imprisoned or restrained as the nature of the
case requires. If the person imprisoned or
restrained is not produced because of his alleged
sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person
cannot be produced without danger, before
proceeding to hear and dispose of the matter. On
the hearing the court or judge shall disregard
matters of form and technicalities in respect to
any warrant or order of commitment of a court
or officer authorized to commit by law.
Chapter 7: The Writs
Sec. 13. When the return evidence, and when
only a plea. - If it appears that the prisoner is
in custody under a warrant of commitment in
pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any
alleged private authority, the return shall be
considered only as a plea of the facts therein set
forth, and the party claiming the custody must
prove such facts.
Failure of petitioners to file a reply to
the return of the writ warrants
dismissal of the petition
In consonance with the rule that unless
SPECIAL PROCEEDINGS
the allegations in the return are
controverted, they are deemed true
or admitted
G. When Person Lawfully Imprisoned
Recommitted, and When Let to
Bail
Sec. 14. If it appears that the prisoner was
lawfully committed, and is plainly and
specifically charged in the warrant of
commitment with an offense punishable by
death, he shall not be released, discharged, or
bailed. If he is lawfully imprisoned or restrained
on a charge of having committed an offense not
so punishable, he may be recommitted to
imprisonment or admitted to bail in the
discretion of the court or judge. If he be
admitted to bail, he shall forthwith file a bond in
such sum as the court or judge deems
reasonable, considering the circumstances of the
prisoner and the nature of the offense charged,
conditioned for his appearance before the court
where the offense is properly cognizable to abide
its order of judgment; and the court or judge
shall certify the proceedings, together with the
bond, forthwith to the proper court. If such bond
is not so filed, the prisoner shall be recommitted
to confinement.
WHC would not lie after the Warrant of
Commitment was issued by the court
on the basis of the Information filed
against the accused
H. When Prisoner Discharged If No
Appeal
Sec. 15. When the court or judge has examined
into the cause of caption and restraint of the
prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith
order his discharge from confinement, but such
discharge shall not be effective until a copy of
the order has been served on the officer or
person detaining the prisoner. If the officer or
person detaining the prisoner does not desire to
appeal, the prisoner shall be forthwith released.
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REVIEWER IN REMEDIAL LAW
BP 129 Sec. 39 states that appeals in
habeas corpus cases shall be 48 hours
from notice of the judgment appealed
from
Sec. 15 of Rule 102 provides the order
for the discharge of a prisoner shall be
effective only if the office detaining the
prisoner does not appeal
in the case of Saulo v. Brig Gen Cruz
(2001), it was held that the 48 hours for
appeal is not only mandatory but also
jurisdictional therefore the court has
no alternative but to dismiss appeal
filed out of time
appeal to the SC if pure questions of
law while to the CA if it involves factual
questions (Medina v. Yan, 1974)
I. Penalties
Sec. 16. A clerk of a court who refuses to issue
the writ after allowance thereof and demand
therefor, or a person to whom a writ is directed,
who neglects or refuses to obey or make return
of the same according to the command thereof,
or makes false return thereof, or who, upon
demand made by or on behalf of the prisoner,
refuses to deliver to the person demanding,
within six (6) hours after the demand therefor, a
true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recorded
in a proper action, and may also be punished by
the court or judge as for contempt.
Sec. 17. Person discharged not to be again
imprisoned. - A person who is set at liberty
upon a writ of habeas corpus shall not be again
imprisoned for the same offense unless by the
lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of this
rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense,
or pretended offense, any person so set at
liberty, or knowingly aids or assists therein,
shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper
action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and
may also be punished by the court or judge
granting the writ as for contempt.
The state cannot reserve the power to
re-arrest a person for an offense after a
court of competent jurisdiction has
absolved him of the offense.
Sec. 18. When prisoner may be removed from
one custody to another. - A person committed
to prison, or in custody of an officer, for any
criminal matter, shall not be removed therefrom
into the custody of another unless by legal
process, or the prisoner be delivered to an
inferior officer to carry to jail, or, by order of the
Chapter 7: The Writs
proper court or judge, be removed from one
place to another within the Philippines for trial,
or in case of fire epidemic, insurrection, or other
necessity or public calamity; and a person who,
after such commitment, makes signs, or
counter-signs any order for such removal
contrary to this section, shall forfeit to the party
aggrieved the sum of one thousand pesos, to be
recovered in a proper action.
J. Record of Writ, Fees and Costs
Sec. 19. The proceedings upon a writ of habeas
corpus shall be recorded by the clerk of the
court, and upon the final disposition of such
proceedings the court or judge shall make such
SPECIAL PROCEEDINGS
order as to costs as the case requires. The fees of
officers and witnesses shall be included in the
costs taxed, but no officer or person shall have
the right to demand payment in advance of any
fees to which he is entitled by virtue of the
proceedings. When a person confined under
color of proceedings in a criminal case is
discharged, the costs shall be taxed against the
Republic of the Philippines, and paid out of its
Treasury; when a person in custody by virtue or
under color of proceedings in a civil case is
discharged, the costs shall be taxed against him,
or against the person who signed the application
for the writ, or both, as the court shall direct.
II. WRIT OF AMPARO
A. General Principles
Literally means to protect
Came originally from Mexico and
evolved into may forms
Amparo libertad for protection of
personal freedom
Amparo contra leyes for judicial review
of the constitutionality of statutes
Amaparo casacion judicial review of
constitutionality and legality of
judicial decisions
Amparo agrario for protection of
peasants rights
In the Philippines, the Constitution does
not explicitly provide for the writ of
amparo but some protection are
available therein (e.g. grave abuse
clause, judicial review)
AM No 7-9-12-SC (Rules on the Writ of
Amparo) was promulgated by the
Supreme Court by virtue of the 1987
Constitution stating that the SC has the
power to [p]romulgate rules concerning
the protection and enforcement of
constitutional rights (Art VIII Sec. 5).
Interpreted as the additional power to
promulgate rules to protect and
enforce rights guaranteed by the
fundamental law of the land.
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REVIEWER IN REMEDIAL LAW
Sec. 1 The petition for a writ of amparo is a
remedy available to any person whose right to
life, liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Enumerates the constitutional rights
protected by the writ, which is only
the right to life, liberty and security
of persons
Limits the coverage because other
constitutional rights are already
protected through different remedies
However, the coverage is still broader
compared to other jurisdictions
Philippine writ covers both actual and
threatened violations of
constitutional rights
Covers not only the public but also
private individual and entities
Covers
extralegal killings (killings committed
without due process of law) and
enforced disappearances (Sec. of
National Defense v. Manalo 2008), the
elements of which are:
An arrest, detention or abduction of a
person by a government official or
organized groups or private
individuals acting with the direct or
indirect acquiescence of the
government
The refusal of the State to disclose the
fate or whereabouts of the person
concerned or a refusal to
acknowledge the deprivation of
liberty which places such persons
outside the protection of law
right to security as a guarantee of
protection by the government, is
violated by the apparent threat to the
life, liberty and security of their person.
In Sec. of Justice v. Manalo (supra), it was held
that even if the respondents have escaped from
captivity and are physically free, there is a
continuing violation of their right to security
because there is a violation of freedom from
threat by the apparent threat to life, liberty and
security of their person from the following facts:
Threat of killing their families if they tried to
escape
Failure of the military to protect them from
abduction
Failure of the military to conduct effective
investigation
Chapter 7: The Writs
B. Aspects of Filing
Sec. 2 Who may File. The petition may be filed
by the aggrieved party or by any qualified person
or entity in the following order:
(a) Any member of the immediate family
namely: the spouse, children and parents of
the aggrieved party;
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family or
SPECIAL PROCEEDINGS
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein.
This provides for the order which must
be followed by those who can sue for
the writ
Necessary for the prevention of
indiscriminate and groundless filing
of petitions for amparo which may
even prejudice the right to life,
liberty or security of the aggrieved
party
Untimely resort to the writ by a
nonmember of the family may
endanger the life of the aggrieved
party
If authorized by (a) or (b), (c) may file
Sec. 3 Where to File. The petition may be
filed on any day and at any time with the
Regional Trial Court of the place where the
threat act or omission was committed or any of
its element s occurred, or with the
Sandiganbayan, the CA, the SC, or any justice of
such courts. The writ shall be enforceable
anywhere in the Philippines.
When issued by a RTC or any judge thereof the
writ shall be returnable before such court or
judge.
When issued by the Sandiganbayan or the CA or
any of their justices, it may be returnable before
such court or any justice thereof, or to any
Regional Trial Court of the place where the
threat, act or omission was committed or any of
its elements occurred.
When issued by the SC or any of its justices, it
may be returnable before such Court or a justice
thereof, or before the Sandiganbayan or the C or
any of their justices, or to any RTC of the place
where the threat, act or omission was committed
or any of its elements occurred.
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REVIEWER IN REMEDIAL LAW
May be filed o any day, including
Saturdays, Sundays, and holidays; from
morning until evening
Includes Sandiganbayan, unlike the
writ of habeas corpus, because public
officials and employees will be
respondents in amparo petitions
Section 4 No Docket Fees. The petitioner shall
be exempted from the payment of the docket and
other lawful fees when filing the petition. The
court, justice, or judge shall docket the petition
and act upon it immediately.
Section 5 Contents of the Petition. The
petition shall be signed and verified and shall
allege the following:
(a) The personal circumstances of the
petitioner;
(b) The name and personal circumstances of
the respondent responsible for the threat,
actor omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if any,
specifying the names, the personal
circumstances and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for
other just and equitable reliefs.
C. Issuance and Service
Sec. 6. Issuance of the Writ. Upon the filing
of the petition, the court justice or judge shall
immediately order the issuance of the writ if on
its face it ought to issue. The clerk of court shall
issue the writ under the seal of the court; or in
case of urgent necessity, the justice or the judge
may issue the writ in his or her own hand, and
may deputize any officer or person to serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not
be later than seven (7) days from the date of its
issuance.
Writ is issued as a matter of course
when on the face of the petition it ought
to issue
Chapter 7: The Writs
Sec. 8 How the Writ is Served. The writ shall
be served upon the respondent by a judicial
officer or by a person deputized by the court,
justice or judge who shall retain a copy on which
to make a return of service. In case the writ
cannot be served personally on the respondent,
the rules in substituted service shall apply.
D. Aspects of Return
Sec. 9 Return; Contents. Within seventy-two
(72) hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain the following:
SPECIAL PROCEEDINGS
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
(b) The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission;
(c) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party; and
(d) If the respondent is a public official or
employee the return shall further state the
actions that have been or will still be
taken[...].
The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed.
No general denials are allowed, unlike
the writ of habeas corpus
Sec.3 points out the institutions where
the writ are returnable
Section 10 Defenses not pleaded deemed
waived. All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
Section 12 Effect of failure to file return. In
case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
E. Hearing on the Writ
Section 11 Prohibited pleadings and motions.
The following pleadings and motions are
prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
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REVIEWER IN REMEDIAL LAW
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum
k. Motion for reconsideration of interlocutory
orders or interim relief orders; and
l. Petition for certiorari, mandamus or
prohibition against any interlocutory order.
Allows motion for new trial and petition
for relief from judgment
Section 13 Summary Hearing. The heating
on the petition shall be summary. However, the
court, justice, or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
F. Allowable Reliefs
Section 14 Interim Reliefs. Upon filing of the
petition or at any time before final judgment, the
court, justice, or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. The court,
justice or judge, upon motion or motu propio,
may order that the petitioner or the
aggrieved party and any member of the
immediate family be protected in a
government agency or by an accredited
person or private institution capable of
keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may ne extended to the
officers concerned.
The SC shall accredit the persons and
private institutions that shall extend
temporary protection to the petitioner or
aggrieved party and any member of the
immediate family, in accordance to the
guidelines which it shall issue.
The accredited persons and private
persons and private institutions shall
comply with the rules and conditions that
may be imposed by the court, justice or
judge.
Different from the inspection and
production order in that the temporary
protection order and the witness
protection order do not need a
verification and may be issued motu
proprio or ex parte
(b) Inspection Order. The court, justice or
judge upon verified motion and after due
hearing may order any person in possession
or control of a designated land or other
property, to permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any relevant
object or operation thereon.
The motion shall state in detail the place
Chapter 7: The Writs
or places to be inspected. It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of the
enforced disappearances or whereabouts of
the aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged
nature of the information, the court, justice
or judge may conduct a hearing in chambers
to determine the merit of the opposition.
The movant must show that the
inspection order is necessary to establish
the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the
person or persons authorized to make the
SPECIAL PROCEEDINGS
inspection and the date, time, place and
manner of making the inspection and may
prescribe other conditions to protect the
constitutional rights of all parties. The order
shall expire five (5) days after the day of its
issuance, unless extended for justifiable
reasons.
Requires hearing, may be availed of
both the petitioner and the respondent
If the court, justice or judge gravely
abuses his or her discretion in issuing
the inspection order, the aggrieved party
is not precluded from filing a petition for
certiorari with the Supreme Court
(c) Production Order. The court, justice or
judge, upon verified motion and after due
hearing may order any person in possession,
custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or
objects in digitized or electronic form which
constitute or contain evidence relevant to
the petition or the return, to produce and
permit their inspection, copying or
photographing by or on behalf of the
movant.
The motion may be opposed on the
ground of national security or of the
privileged nature of the information, in
which case the court, justice or judge may
conduct a hearing in chambers to determine
the merit of the opposition.
The court, justice or judge shall
prescribe other conditions to protect the
constitutional rights of all the parties.
Only granted upon motion and hearing
Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a
protection of the people from
unreasonable intrusion of the
government, not a protection of the
government from the demand of the
people such as respondents
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REVIEWER IN REMEDIAL LAW
More similar to production of
documents or things under Sec. 1 Rule
27 of Rules of Civil Procedure
(d) Witness Protection Order. The court,
justice or judge, upon motion or motu
propio, may refer the witnesses to the
Department of Justice for admission to the
Witness Protection, Security and Benefit
Program, pursuant to Republic Act No.
6981.
The court, justice or judge may also
refer the witnesses to other government
agencies, or to accredited persons or private
institutions capable of keeping and securing
their safety.
Section 15 Availability of Interim Reliefs to
Respondent. Upon verified motion of the
respondent and after due heating, the court,
justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of
the preceding section.
A motion for inspection order under this section
shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent.
G. Penalties
Sec. 7 Panalty for Refusing to Issue or Serve
the Writ. A clerk of court who refuses to issue
the writ after its allowance or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
Amparo proceedings enjoy priority and
cannot be delayed
Sec. 16 Contempt. The court, justice or judge
may order the respondent who refuses to make a
return, or who makes a false return, or any
person who otherwise disobeys or resists a
lawful process or order of the court, to be
punished for contempt. The contemnor may be
imprisoned or imposed a fine.
H. Burden of Proof
Sec. 17 Burden of and Standard of Diligence
Required. The parties shall establish their
claims by substantial evidence.
The respondent who is a private individual or
entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
duty.
The respondent who is a public official or
employee must prove that extraordinary
diligence as required as required by the
applicable laws, rules and regulations was
Chapter 7: The Writs
observed in the performance of duty.
The respondent public official or employee
cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability.
Sec. of Justice v. Manalo (supra) states
that with the secret nature of an
enforced disappearance and the torture
perpetrated on the victim during
detention, it logically holds that much of
the information and evidence of the
ordeal will come from the victims
themselves
SPECIAL PROCEEDINGS
Their statements can be corroborated
by other evidence such as physical
evidence left by the torture or
landmarks where detained.
I. Judgment and Appeal
Sec. 18 Judgment. The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence the court shall grant the
privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege
shall be denied.
Short period is demanded by the
extraordinary nature of the writ.
Sec. 19 Appeal. Any party may appeal from
the final judgment or order to the SC under Rule
45. The appeal may raise questions of fact or
law or both.
The period of appeal shall be five (5) working
days from the date of notice of the adverse
judgment.
The appeal shall be given the same priority as
habeas corpus cases.
Rule 45 appeal herein is different
because it allows questions not only of
law but also of fact to be raised
Amparo proceedings essentially involves
a determination of facts considering
that its subject is extralegal killings or
enforced disappearances, therefore a
review of errors of fact should be
allowed
Disposition of appeals shall be
prioritized like habeas corpus cases
Section 20 Archiving and Revival of Cases.
The court shall not dismiss the petition, but
shall archive it, if upon its determination it
cannot proceed for a valid cause such as the
failure of petitioner or witnesses to appear due
to threats on their lives.
A periodic review of the archived cases shall
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REVIEWER IN REMEDIAL LAW
be made by the amparo court that shall, motu
propio or upon motion by any party, order their
revival when ready for further proceedings. The
petition shall be dismissed with prejudice, upon
failure to prosecute the case after the lapse of
two (2) years from notice to the petitioner of the
order archiving the case.
The clerks of court shall submit to the Office
of the Court Administrator a consolidated list of
archived cases under this Rule, not later than
the first week of January every year.
This is a liberalized rule on dismissal
due to failure to prosecute
If the petitioner cannot proceed to prove
their allegations for justifiable reason,
the court will not dismiss the petition
but will archive it
Parties will be notified before the
archiving, as the reason has to be
justified by a good reason, to be
determined after hearing
Two years is reckoned from the date of
notice
J. Effects of Other Actions
Section 21 Institution of Separate Actions.
This Rule shall not preclude the filing of
separate criminal, civil or administrative actions.
The writ of amparo does not suspend
the filing of criminal, civil or
administrative actions
Claim for damages should instead file in
a claim in a proper civil action
If evidence so warrants, the amparo
court may refer the case to the
Department of Justice for criminal
prosecution,
because amparo proceeding is not
criminal in nature and will not
determine the criminal guilt of the
respondent.
Section 22. Effect of Filing of a Criminal
Action. When a criminal action has been
commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be
available by motion in a criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of amparo.
Section 23 Consolidation. When a criminal
action is filed subsequent to the filing of a
petition for the writ, the latter shall be
consolidated with the criminal action. After
consolidation, the procedure under this Rule
shall continue to apply to the disposition of the
reliefs on the petition.
Chapter 7: The Writs
This Rule shall continue to govern the
disposition of the reliefs for amparo
after consolidation.
K. Other Matters
Section 24 Substantive Rights. This Rule
shall not diminish, increase or modify
substantive rights recognized and protected by
the Constitution.
Section 25 Suppletory Application of the
Rules of Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
SPECIAL PROCEEDINGS
Section 26 Applicability to Pending Cases.
This Rule shall govern cases involving extralegal
killings enforced disappearances or threats
thereof pending in the trial and appellate courts.
III.WRIT OF HABEAS DATA
A. General Principles
Sec. 1 Habeas Data. The writ of habeas data
is a remedy available to any person whose right
to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity or information regarding the
person, family, home and correspondence of the
aggrieved party.
B. Aspects of Filing
Sec. 2 Who May File. Any aggrieved party
may file a petition for the writ of habeas data.
However, in cases of extralegal killings and
enforced disappearance, the petition may be
filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse,
children and patents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
(c) Any concerned citizen, organization,
association or institution if there is no
known member of the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein
Sec. 3 Where to File. The petition may be
filed with the RTC where the petitioner or
respondent resides, or that which has
jurisdiction over the place where the data or
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REVIEWER IN REMEDIAL LAW
information is gathered, collected or stored, at
the option of the petitioner.
The petition may also be filed with the SC or CA
or the Sandiganbayan when the action concerns
public data files of the government offices.
Sec. 5 Docket Fees. No docket and other
lawful fees shall be required from an indigent
petitioner. The petition of the indigent shall be
docked and acted upon immediately without
prejudice to subsequent submission of proof of
indigency not later than fifteen (15) days from
the filing of the petition.
Sec. 6 Petition. A certified written petition for
a writ of habeas data should contain:
(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated
or threatened and how it affects the right to
life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, register or
databases, the government office, and the
person in charge, in possession or in control
of the data or information, if known;
(e) The reliefs prayed form which may include
the updating, rectification, suppression or
destruction of the database or information
or files kept by the respondent. In case of
threats, the relief may include a prayer for
an order enjoining the act complained of;
and
(f) Such other relevant reliefs as are just and
equitable.
C. Issuance and Service
Sec. 7 Issuance of the Writ. - Upon the filing
of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on
its face it ought to issue. The clerk of court shall
issue the writ under the seal of the court and
cause it to be served within three (3) days from
the issuance; or, in case of urgent necessity, the
justice or judge may issue the writ under his or
her own hand and may deputize any officer or
person serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not
be later than ten (10) work days from the date of
its issuance.
Sec. 9 How the Writ is Served. The writ shall
be served upon the respondent by a judicial
officer or by a person deputized by the court,
justice or judge who shall retain a copy on which
to make a return of service. In case the writ
cannot be served personally on the respondent,
the rules substituted service shall apply.
D. Aspects of Return
Sec. 4 Where Returnable; Enforceable.
When the writ is issued by a RTC or any judge
Chapter 7: The Writs
thereof, it shall be returnable before such court
or judge.
When issued by the CA or the SB or any of its
justices, it may be returnable before such court
or any justice thereof, or to any RTC of the place
where the petitioner or respondent resides, or
that which has jurisdiction over the place where
the data or information is gathered, collected or
stored.
When issued by the SC or any of its justices, it
may be returnable before such Court or any
justice thereof, or before the CA or the SB or any
of its justices, or to any RTC of the place where
the petitioner or respondent resides, or that
which has jurisdiction over the place where the
data or information is gathered, collected or
SPECIAL PROCEEDINGS
stored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.
Sec. 10 Return; Contents. The respondent
shall file a verified written return together with
supporting affidavits within five (5) working days
from service of the writ, which period may be
reasonably extended by the Court for justifiable
reasons. The return shall, among other things,
contain the following:
(a) The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the
source of information of media and others;
(b) In case if respondent in charge, in
possession or in control of the data or
information sunject of the petition;
(i) A disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose for
its collection;
(ii) The steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or
information; and
(iii) The currency and accuracy of the data
or information held; and,
(c) Other allegations relevant to the resolution
of the proceedings. A general denial of the
allegations in the petition shall not be
allowed.
E. Hearing on the Writ
Sec. 12 When Defenses May be Heard in
Chambers. A hearing in chambers may be
conducted where the respondent invokes the
defense that the release of the data or
information in question shall compromise
national security or state secrets, or when the
data or information cannot be divulged to the
public due to its nature or privileged character.
Sec. 13 Prohibited Pleadings and Motions.
The following pleadings and motions are
prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition affidavit, position paper and
other pleadings;
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REVIEWER IN REMEDIAL LAW
(c) Dilatory motion for a bill of particulars;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
Sec. 14 Summary Hearing. The hearing on
the petition shall be summary. However, the
court, justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
F. Penalties
Sec. 8 Penalty for Refusing to Issue or Serve
the Writ. A clerk of court who refuses to the
writ after its allowance , or a deputized person
who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
Sec. 11 Contempt. The court, justice or judge
may punish with imprisonment or fine a
respondent who commits contempt by making a
false return, or refusing to make a return; or any
person who otherwise disobeys or resist a lawful
process or order of the court.
Sec. 14 Return; Filing. In case the
respondent fails to file a return, the court,
justice or judge shall proceed to hear the
petition ex parte, granting the petitioner such
relief as the petition may warrant unless the
court in its discretion requires the petitioner to
submit evidence.
G. Judgment and Appeal
Sec, 16 Judgment. The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence, the court shall enjoin the
act complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information and grant other relevant
reliefs as may be just and equitable; otherwise,
the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officers as may be
designated by the court, justice or judge within
five (5) working days.
Sec. 19 Appeal. Any party may appeal from
the final judgment or order to the Supreme
Court under Rule 45. The appeal may raise
questions of fact or law or both.
The period of appeal shall be five (5) working
Chapter 7: The Writs
days from the date of notice of the judgment or
final order.
The appeal shall be given the same priority as in
habeas corpus and amparo cases.
Sec. 15 Return of Service. The officer who
executed the final judgment shall, within three
(3) days from its enforcement, make a verified
return to the court. The return shall contain a
fill statement of the proceedings under the writ
and a complete inventory of the database or
information, or documents and articles
inspected, updated, rectified, or deleted with
copies served on the petitioner and the
respondent.
The officer shall state in the return how the
SPECIAL PROCEEDINGS
judgment was enforced and complied with by the
respondent, as well as all objections of the
parties regarding the manner and regularity of
the service of the writ.
H. Return of Judgment, Hearing
Thereon
Sec. 18 Hearing on Officers Return. - The
court shall set the return for hearing with due
notice to the parties and act accordingly.
I. Effects of Other Actions
Sec. 20 Institution of Separate Actions. The
filing of a petition for the writ of habeas data
shall not preclude the filing of separate criminal,
civil or administrative actions.
Sec. 21 Consolidation. When a criminal
action is filed subsequent to the filing of a
petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of habeas data, the petition shall be
consolidated with the criminal action.
After consolidation, the procedure under
this Rule shall continue to govern the
disposition of the reliefs in the petition.
Sec. 22 Effect of Filing of a Criminal Action.
When a criminal action has been commenced,
no separate petition for the writ shall be filed.
The relief under the writ shall be available to an
aggrieved party by motion in a criminal case.
The procedure under this Rule shall govern
the disposition of the reliefs available under the
writ of habeas data.
J. Other Matters
Sec. 24 Suppletory Application of the Rules of
Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs

IV. WRIT MATRIX

WHC Writ of Habeas Corpus WA Writ of Amparo
WD Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD Rules on Habeas Data SC Supreme Court
CA - Court of Appeals SB Sandiganbayan
RTC Regional Trial Court CoC Clerk of Court

Habeas Corpus Amparo Habeas Data

Nature, All cases of illegal Involves right to life, liberty Involves the right to privacy
scope, confinement and detention and security violated or in life, liberty or security of
function which any person is threatened with violation the aggrieved party and
deprived of his liberty; or by an unlawful act or covers extralegal killings
rightful custody of any omission of a public official and enforced
person is withheld from the or employee or a private disappearances

SPECIAL PROCEEDINGS
person entitled (102.1) individual or entity
Actual violation before It covers extralegal killings
writ issues. Note and enforced
Villavicencio v. Lukban disappearances or threats
on applicability of the thereof.
writ in case of
constructive restraint
Limitations May be suspended in cases Shall not diminish, Shall not diminish,
of invasion or rebellion increase or modify increase or modify
when public safety requires substantive rights (RWA substantive rights (RWD
it (Consti. Art. III Sec. 15) Sec. 23) Sec. 23)
Who may file By a petition signed and Petition filed by the Any aggrieved party may
verified by the party for aggrieved party or by any file a petition for the WHD
whose relief it is intended, qualified person or entity in - However, in cases of
or by some person on his the following order: extralegal killings and
behalf (102.3) a) Any member of the enforced
immediate family disappearances, the
b) Any ascendant, petition may be filed by
descendant or collateral (also successive):
relative of the aggrieved a) Any member of the
within the 4th civil degree immediate family of
of consanguinity or the aggrieved
affinity b) Any ascendant,
c) Any concerned citizen, descendant or
organization, association collateral relative of
or institution the aggrieved party
Filing by the aggrieved within the fourth
suspends the right of all civil degree of
others (RWA Sec. 2 ) consanguinity or
affinity, (RWD Sec.
2)
Where filed Granted by: Filed on any day and at any Petition may be filed with
SC or any member time: RTC where the petitioner or
thereof, on any day and SB, CA, SC, or any respondent resides or that
at any time justice of such courts which has jurisdiction over
CA or any member RTC of place where the the place where the data or
thereof in instances threat, act, or omission information is gathered,
authorized by law was committed or any collected or stored, at the
RTC or a judge thereof, element occurred (RWA option of petitioner
on any day and at any Sec. 4) If public data files of
time, enforceable only government offices, petition
within his judicial district shall be filed with the SC,
(102.2) CA, or SB (RWD Sec. 3)
MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section 35
BP 129)

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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Where If SC or CA issued, Writ shall be enforceable Writ shall be enforceable
enforceable anywhere in the Philippines anywhere in the Philippines anywhere in the Philippines
(RWA Sec. 4) (RWD Sec. 3)
If granted by the RTC or
judge thereof, it is
enforceable in any part of
the judicial region (Section
21, BP 129 which modified
the term judicial district in
Section 2, Rule 102 into
judicial region) where the
judge sits
Where If the one that granted the If the one that granted the If issued by:
returnable writ: writ: - The SC or any of its
- Is the SC or CA, or a - Is the SC or any of its justices, before such

SPECIAL PROCEEDINGS
member thereof, justices, before such Court or any justice
returnable before such court or any justice thereof, or CA or SB or
court or any member thereof, or before the SB any of its justices, or the
thereof or an RTC or CA or any of their RTC of the place where
- An RTC, or a judge justices, or to any RTC of the petitioner or
thereof, returnable the place where the respondent resides / has
before himself (102.2) threat, act or omission jurisdiction over the
was committed or any of place where the data or
its elements occurred information is gathered,
- The SB or CA or any of stored or collected
their justices, before - The CA or SB or any of
such court or any justice its justices, before such
thereof, or to any RTC of court or any justice
the place where the thereof, or the RTC
threat, act, or omission (same with scenario: SC
was committed or any of issued and then
its elements occurred returned in RTC)
(RWA Sec. 3) - RTC, returnable before
such court or judge
(RWD Sec. 4)
Docket Fees upon the final disposition Petitioner shall be None for indigent petitioner
of such proceedings the exempted from the Petition shall be docketed
court or judge shall make payment of the docket and and acted upon
such order as to costs as other lawful fees immediately, w/o
the case requires (102.19) - Court, justice or judge prejudice to subsequent
shall docket the petition submission of proof of
and act upon it indigency not later than 15
immediately (RWA Sec 4) days from filing (RWD Sec.
5)

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REVIEWER IN REMEDIAL LAW
Habeas Corpus
Essential Signed and verified either
allegations/ by the party for whose relief
Contents of it is intended or by some
petition person on his behalf,
setting forth:
a) The person in whose
behalf whose the
application is made is
imprisoned or restrained
of his liberty
b) Name of the person
detaining another or
assumed appellation
c) Place where he is
imprisoned or restrained
of his liberty
d) Cause of detention
(102.3)
When proper Court or judge must, when
a petition is presented and
it appears that it ought to
issue, grant the same and
then:
the clerk of court (CoC)
shall issue the writ under
the seal of the court; or
in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it (102.5)
Also proper to be issued
when the court or judge
has examined into the
cause of restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned (102.5)
How and who Writ may be served in any
serves province by the (a) sheriff,
(b) other proper officer, or
(c) or person deputed by
the court or judge
Service is made by leaving
the original with the person
to whom it is directed and
preserving a copy on which
to make return of service
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having
or exercising such
custody (102.7)
Amparo
Signed and verified and
shall allege:
a) The personal
circumstances of the
petitioner
b) Name or appellation and
circumstances of the
respondent
c) The right to life, liberty,
and security violated or
threatened with
violation,
d) The investigation
conducted, if any, plus
circumstances of each
e) The actions and
recourses taken by the
petitioner
f) Relief prayed for
May include a general
prayer for other just and
equitable reliefs (RWA Sec.
5)
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the
writ if on its face it ought to
issue
CoC shall issue the writ
under the seal of the
court; or
In case of urgent
necessity, the justice or
the judge may issue the
writ under his or her
own hand, and may
deputize any officer or
person to serve it
The writ shall be served
upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on
which to make a return of
service
In case the writ cannot
be served personally
on the respondent, the
rules on substituted
service shall apply
(RWA Sec. 8)
Chapter 7: The Writs
Habeas Data
Verified and written
petition shall contain:
a) Personal circumstances
of petitioner and
respondent
b) Manner the right to
privacy is violated or
threatened and its
effects
c) Actions and recourses
taken by the petitioner
to secure the data or
information
d) The location of the files,
registers, or databases,
SPECIAL PROCEEDINGS
the government office,
and the person in charge
or control
e) The reliefs prayed for
Such other relevant reliefs
as are just and equitable
(RWD Sec. 6)
Upon filing of the petition,
the court, justice, or judge
shall immediately order the
issuance of the writ if on its
face it ought to issue.
CIC shall issue the writ
under the seal of the
court and cause it to be
served within 3 days from
issuance; or
In case of urgent
necessity, the justice or
judge may issue the writ
under his or her own
hand, and may deputize
any officer or person to
serve it (RWD Sec. 7)
The writ shall be served
upon the respondent by a
judicial officer or by a
person deputized by the
court, justice or judge who
shall retain a copy on
which to make a return of
service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall
apply (RWD Sec. 9)
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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Respondent May or may not be an Respondent is a public A public official or
officer official or employee or employee or a private
private individual or entity individual or entity engaged
in gathering, collecting or
storing data
How The officer to whom the Respondent files the return Respondent files the return
executed and writ is directed shall convey
returned the person so imprisoned
or restrained before:
- the judge allowing the
writ,
- or, in his absence or
disability, before some
other judge of the same
court

SPECIAL PROCEEDINGS
on the day specified in the
writ,
unless person directed to
be produced is sick or
infirm, and cannot,
without danger, be
brought therein

officer shall then make

due return of the writ, with
the day and cause of the
caption and restraint
according to the command
thereof (102.8)
When to file On the day specified on the Within 5 working days after Same with WA
return writ service of the writ

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REVIEWER IN REMEDIAL LAW
Habeas Corpus
Contents of When the person to be
return produced is imprisoned or
restrained by an officer the
person who makes the
return shall state, and in
other cases the person in
whose custody the prisoner
is found shall state in
writing to the court or
judge before whom the writ
is returnable:
a) Truth of custody/power
over the aggrieved
b) If has custody or power,
or under restraint, the
authority and the cause
thereof, with a copy of
the writ, order,
execution or other
process, if any upon
which the party is held;
c) If the party is in his
custody or power, and is
not produced,
particularly the nature
and gravity of the
sickness or infirmity
d) If he has had the party
in his custody or power,
and has transferred
such custody or
restraint to another,
particularly to whom, at
what time, for what
cause, and by what
authority such transfer
was made. (102.10)
Formalities Return or statement shall
of return be signed and sworn to by
the person who makes it if
the prisoner is not
produced,
Unless the return is
made and signed by a
sworn public officer in
his official capacity
(102.11)
Chapter 7: The Writs
Amparo Habeas Data
Within 5 working days after a) Lawful defenses such as
service of the writ, the national security, state
respondent shall file a secrets, privileged
verified written return communications,
together with supporting confidentiality of the
affidavits which shall, , source of information of
contain: media etc.
a) Lawful defenses b) In case of respondent in
b) The steps or actions charge, in possession or
taken to determine the in control of the data or
fate or whereabouts of information subject of
the aggrieved party the petition:
c) All relevant information i. A disclosure of the
in the possession of the data or information
respondent pertaining to about the petitioner,
SPECIAL PROCEEDINGS
the threat, act or the nature of such
omission against the data or information,
aggrieved party and the purpose for
d) If the respondent is a its collection
public official or ii. The steps or actions
employee, the return taken by the
shall further state acts: respondent to ensure
i. To verify identity of the security and
aggrieved party confidentiality of the
ii. To recover and data or information
preserve evidence iii. The currency and
iii. To identify and collect accuracy of the data
witness statements or information held
iv. To determine cause, Other allegations relevant
manner, location, and to the resolution of the
time of death or proceeding (RWD Sec.10)
disappearance
v. To identify and
apprehend persons
involved
vi. Bring suspected
offenders before a
competent court (RWA
Sec.9)
the respondent shall file Respondent shall file a
a verified written return verified written return
together with supporting together with supporting
affidavits (RWA Sec. 9) (RWD Sec. 10)
Page 237 of 370
REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Penalties CoC who refuses to issue CoC who refuses to issue COC who refuses to issue
the writ after allowance the writ after its the writ after its
For refusing and demand, allowance, or allowance, or
to issue or Or a person to whom a a deputized person who a deputized person who
serve writ is directed, who: refuses to serve the refuses to serve the same,
neglects/refuses to same,
obey or make return of shall be punished by the
the same according to shall be punished by the court, justice, or judge for
the command thereof, court, justice or judge for contempt without prejudice
or makes false return, contempt without prejudice to other disciplinary
or upon demand made to other disciplinary actions (RWD Sec. 8)
For faulty by or on behalf of the actions (RWA Sec. 7)
return prisoner, refuses to The court, justice, or judge
deliver to the person The court, justice, or may punish with
demanding, within 6 judge may order the imprisonment or fine a

SPECIAL PROCEEDINGS
hours a true copy of respondent who refuses respondent who commits
the warrant or order of to make a return, or who contempt by:
commitment, makes a false return, or Making a false return or
any person who Refusing to make a
shall forfeit to the party otherwise disobeys or return; or
aggrieved the sum of resist a lawful process or Any person who
P1000, recoverable in a order of the court to be otherwise disobeys or
proper action, and may punished for contempt resists a lawful process
also be punished for Contemnor may be or order of the court
contempt (102.16) imprisoned or imposed (RWD Sec. 11)
a fine (RWA Sec. 16)
Is period of No, not even on highly Yes, by the court, for
return meritorious grounds. justifiable reasons (RWD
extendable? Sec. 10)
Is a general Yes. No prohibition in No, by virtue if A.M. No. No, by virtue of RWD Sec.
denial Rule. 07-9-12-SC 10, last sentence.
allowed?
Defenses not If not raised in return
pleaded deemed waived (RWA Sec
10)
Effect of Court or justice shall Court, judge, or justice
failure to file proceed to hear the petition shall hear the motion ex
return ex parte (RWA Sec. 12) parte, granting the
petitioner such reliefs as
the petition may warrant
Unless the court in its
discretion requires the
petitioner to submit
evidence (RWD Sec. 14)
Nature of Summary. However, the Summary. With possibility
Hearing court, justice, or judge may of preliminary conference
call for a preliminary similar to the writ of
conference to simplify the amparo (RWD Sec. 14)
issues and look at Hearing on chambers may
possibility of obtaining be conducted where
stipulations and respondent invokes the
admissions from the defense of national security
parties. or state secrets, or the data
Hearing shall be from is of public or privileged
day to day until character (RWD Sec. 12)
completed; same
priority as petitions for
WHC
Date and As specified in the writ Not later than 7 days from Not later than 10 working
time of the issuance of the writ days from the date of
hearing issuance writ

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REVIEWER IN REMEDIAL LAW Chapter 7: The Writs
Habeas Corpus Amparo Habeas Data
Prohibited Motion to dismiss, Motion Same as writ of amparo
pleadings for extension of time to file (RWD Sec. 13)
opposition, affidavit,
position paper and other
pleadings, Dilatory motion
for postponement, Motion
for bill of particulars,
Counterclaims or cross-
claims, Third-party
complaint, Reply, Motion to
declare respondent in
default, Intervention,
Memorandum, Motion for
reconsideration of
interlocutory orders or

SPECIAL PROCEEDINGS
interim relief orders,
petition for certiorari,
mandamus, or prohibition
(RWA Sec.11)
Burden of Preponderance of evidence Establish claims by Substantial evidence
Proof substantial evidence required to prove the
if respondent is a private allegations in the petition
individual or entity, (RWD Sec. 16)
ordinary diligence
if public official or
employee, extraordinary
diligence
Presumption Yes. Consonant wit Public official or employee
of Official 102.13, stating that if cannot invoke the
duty warrant of commitment is presumption that official
in pursuance with law, duty has been regularly
serves as prima facie cause performed (RWA Sec. 17)
of restraint
Judgment The court shall render Within 10 days from the
judgment within 10 days time the petition is
from the time the petition submitted for decision
is submitted for (RWD Sec. 16)
decision (RWA Sec. 18)
Appeals Within 48 hours from 5 working days from the 5 working days from the
notice of the judgment of date of notice of adverse date of notice of adverse
final order appealed judgment; Rule 45 filed judgment; Rule 45 filed
with the SC with the SC
Consolidation May be consolidated with a May be consolidated with a
of actions criminal action filed criminal action filed
subsequent to the petition subsequent to the petition
(RWA Sec. 23) (RWD Sec. 21)
Effect of No more separate petition Same as WA
filing shall be filed. Reliefs
criminal available by motion in the
action criminal case (RWA Sec.
22)

Page 239 of 370

REVIEWER IN REMEDIAL LAW Chapter 8: Corporate Rehabilitation

CHAPTER 8: Corporate Effect on pending rehabilitation

Rehabilitation proceedings
General Rule: any pending petition for
I. PETITION FOR REHABILITATION rehabilitation that has not
II.STAY ORDER undergone the initial hearing
III.
HEARING prescribed under the Interim Rules
IV.CORPORATION PLAN OF of Procedure for Corporate
REHABILITATION Rehabilitation (which are the rules
V. FINAL ORDERS AND APPEALS superseded by the current AM) at
THEREFOM the time of the effectivity (16
January 2009) of this Rule shall be
*this part covers only the general rules of corpo rehab governed by these Rules (Rule 9,
under AM No. 00-8-10 SC. There are more specific
requirements for each of the three types based on the Sec. 2)
party filing it, covered by Rules 4-6 of the said AM. Exception: Unless the court orders

SPECIAL PROCEEDINGS
otherwise to prevent manifest
Corporate rehabilitation is distinct injustice.
and separate from insolvency
Rehabilitation shall mean the Procedure
restoration of the debtor to a position of 1. Petition for rehabilitation with
successful operation and solvency, if it rehabilitation plan and pertinent
is shown that its continuance of annexes included therein
operation is economically feasible and 2. Court issues Stay Order and
its creditors can recover by way of the appoints receiver (within 5 working
present value of payments projected in days from filing)
the plan, more if the corporation 3. Publication (once a week for 2
continues as a going concern than if it weeks) and service of copy to
is immediately liquidated. creditors
It is intended to enable a distressed 4. Creditors pass opposition (15 days
corporation to gain a new lease on before the date of initial hearing)
life and to continue its businesses 5. Initial Hearing (within 45-60 days
as a going concern from the filing of the petition)
Thrust the continuance of corporate life 6. Approval of Rehabilitation plan
and activities in an effort to restore (within 120 days of passing) and
and reinstate the corporation to its termination of stay order
former position of successful 7. Appeals / Termination of
operation and solvency rehabilitation proceedings
Insolvency, on the other hand, is intended
to close and liquidate an insolvent I. PETITION FOR REHABILITATION
corporation
Venue
Corpo Rehab Insolvency New Rules now explicitly provides (Rule
To enable a distressed To close and liquidate 3, Sec. 2):
corporation to gain a insolvent corporation
1. It should be the office specified in its
new lease on life and
continue business
articles of incorporation or partnership.
Only available to Intended to close 2. Where the principal office of the
corporations, corporations but also corporation, partnership or association
partnerships or available to individuals is registered in the SEC as Metro
associations and natural persons Manila, the action must be filed in the
RTC of the city or municipality where
Jurisdiction over corporate the head office is located.
rehabilitation was vested in the SEC 3. A joint petition by a group of companies
under PD 902-A, as amended shall be filed in the RTC which has
RA 8799 transferred this to regular jurisdiction over the principal office of
courts, and new Rules direct filing the parent company, as specified in its
in the RTCs, depending on the Articles of Incorporation.
operative venue The Interim Rules only cover
Proceedings under this Rule shall be in rehabilitations that are:
rem and summary and non- (1) Debtor-Rehabilitation (Rule 4)
adversarial. (2) Creditor-Initiated (Rule 5)

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REVIEWER IN REMEDIAL LAW
(3) Pre-Negotiated Rehabilitation
(Rule 6)
The General Provisions (Rule 3, and
what is covered by this part) applies to
all types. Also, certain provisions on
Debtor-Initiated Rehabilitation (Sections
5-12 of Rule 4) are expressly made
applicable to Creditor-Initiated
Rehabilitation (Rule 5).
Recognition of foreign proceedings:
The provisions on Recognition of
Foreign Proceedings (Rule 7) are not
expressly provided in the Interim
Rules.
Such recognition in new Rules is a new.
Previously, the absence of express
provisions gave rise to many issues
that only delayed the speedy
resolution of the proceedings
New rules on the recognition of
foreign rehabilitation
proceedings covers cases where
assistance is sought in Philippine
court by a foreign court in
connection with a foreign state
rehabilitation proceeding, or
assistance in both foreign and
domestic proceedings taking place
at the same time
II. STAY ORDER
If the petition is sufficient in form and
substance, it will issue a Stay Order,
which shall include, among other
things, the appointment of a Receiver
and the suspension of all pending
claims against the corporation under
rehabilitation
Issued 5 days from petition, generally
containing:
(a) appointing a rehabilitation receiver
and fixing his bond
(b) staying enforcement of all claims
The new Rules (Rule 3, Sec. 7) expressly
provide that the issuance of a stay
order does not affect the right to
commence actions or proceedings
insofar as it is necessary to preserve a
claim against the debtor.
Management will keep control of the
insolvent company but the receiver will
closely monitor its operations
Consideration of moral character,
knowledge, expertise, lack of conflict
of interest, ability to file bond,
independence, and integrity in the
appointment of a receiver
Upon receipt of stay order, receiver
accepts/declines within 10 days
Chapter 8: Corporate Rehabilitation
Receiver must post bond before entering
his duties, and shall be entitled to
reasonable professional fees and
reimbursement of expenses for such
performance of duty
Submits reports every 3 months or as
often as the court requires
Rehabilitation receiver shall be
considered as an officer of the court.
He shall be primarily tasked to
study the best way to rehabilitate
the debtor and to ensure that the
value of the debtor's property is
reasonably maintained pending the
SPECIAL PROCEEDINGS
determination of whether or not the
debtor should be rehabilitated, as
well as implement the rehabilitation
plan after its approval
Receiver may be removed upon motion
if he (a) fails to perform any of his
functions or on (b) any grounds for
removing a trustee
The additions to the required contents
of the Stay Order:
New Rules have a proviso that states
that the stay order shall not cover
claims against letters of credit and
similar security arrangements
issued by a third party to secure the
payment of the debtors obligations;
provided, further, that the stay
order shall not cover foreclosure by
a creditor of property not belonging
to a debtor under corporate
rehabilitation; provided, however,
that where the owner of such
property sought to be foreclosed is
also a guarantor or one who is not
solidarily liable, said owner shall be
entitled to the benefit of excussion
as such guarantor.
Rules simply provide that the order
shall prohibit the debtor from
making any payment of its liabilities
except as provided in items (e), (f)
and (g) of this Section or when
ordered by the court pursuant to
Section 10 of Rule 3.
directing the payment of new loans or
other forms of credit
accommodations obtained for the
rehabilitation of the debtor with
prior court approval
Stay order also directs the petitioner to
publish the Order in a newspaper of
general circulation in the Philippines
once a week for two (2) consecutive
weeks.
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REVIEWER IN REMEDIAL LAW
Petitioner (also directed in stay order)
shall the furnish a copy of the petition
and its annexes, as well as the stay
order, to the creditors named in the
petition and the appropriate regulatory
agencies such as the Securities and
Exchange Commission, the Bangko
Sentral ng Pilipinas, the Insurance
Commission, the National
Telecommunications Commission, the
Housing and Land Use Regulatory
Board and the Energy Regulatory
Commission
The time to file a verified comment by
the creditors was increased to 15
days before the date of the first
initial hearing, from 10 days under
the Interim Rules.
Stay order does not affect the right to
commence actions or proceedings
insofar as it is necessary to preserve a
claim against a debtor
Relief from, modification, or termination
of Stay Order.
1. any of the allegations in the petition,
or any of the contents of any
attachment, or the verification
thereof has ceased to be true;
2. a creditor does not have adequate
protection over property securing its
claim;
3. the debtor's secured obligation is
more than the fair market value of
the property subject of the stay and
such property is not necessary for
the rehabilitation of the debtor; or
4. the property covered by the stay
order is not essential or necessary to
the rehabilitation and the creditors
failure to enforce its claim will cause
more damage to the creditor than to
the debtor.
5. The stay order shall be effective
from the date of its issuance until
the approval of the rehabilitation
plan or the dismissal of the petition
(Rule 3, Sec. 9)
III. HEARING
Hearing (initial) shall then be conducted
not earlier than 45 days but not later
than 60 days from filing thereof
Prohibited pleadings.
a. Motion to dismiss;
b. Motion for a bill of particulars;
c. Petition for relief;
d. Motion for extension;
e. Motion for postponement;
f. Third-party complaint;
Chapter 8: Corporate Rehabilitation
g. Intervention;
h. Motion to hear affirmative defenses;
and
i. Any pleading or motion which is
similar to or of like effect as any of
the foregoing.
The following prohibited pleadings are
added under Rule 3, Sec. 1 of the new
Rules:
1. Motion to hear affirmative defenses;
and
2. Any pleading or motion which is
similar to or of like effect as any of
SPECIAL PROCEEDINGS
the foregoing.
On the other hand, the following
grounds were removed from the list of
prohibited pleadings:
1. Petition for Relief
2. Memorandum
3. Reply or Rejoinder
4. Motion for New Trial or
Reconsideration. A party may file a
motion for reconsideration of any
order issued by the court prior to
the approval of the rehabilitation
plan. (Rule 8, Sec. 1)
IV. CORPORATION PLAN OF
REHABILITATION
Rehab plan must include the desired
business targets and the duration and
coverage of its proposed implementation
Must also lay down material financial
commitments to support the
rehabilitation and the means for their
execution
The court may revoke such plan within
90 days from approval if it was procured
through fraud
Court is given 120 days from the filing
of the petition to approve or reject the
rehabilitation plan
An approved rehab plan may, upon
motion, be altered or modified if such is
necessary to achieve the desired targets
set forth therein
Effects of rehab plan:
a. The plan and its provisions shall be
binding upon the debtor and all
persons who may be affected
thereby, including the creditors,
whether or not such persons have
participated in the proceedings or
opposed the plan or whether or not
their claims have been scheduled;
b. The debtor shall comply with the
provisions of the plan and shall take
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REVIEWER IN REMEDIAL LAW
all actions necessary to carry out
the plan;
c. Payments shall be made to the
creditors in accordance with the
provisions of the plan;
d. Contracts and other arrangements
between the debtor and its creditors
shall be interpreted as continuing to
apply to the extent that they do not
conflict with the provisions of the
plan; and
e. Any compromises on amounts or
rescheduling of timing of payments
by the debtor shall be binding on
creditors regardless of whether or
not the plan is successfully
implemented.
Rehabilitation plan itself may be
extended, provided the period should
not extend beyond 15 years from the
expiration of the stipulated term
existing at the time of filing the petition,
as expressly stated in the Rules (Rule 3,
Sec. 19)
The court shall, upon motion or upon
recommendation of the rehabilitation
receiver, terminate the proceeding in
any of the following cases:
a. Dismissal of the petition;
b. Failure of the debtor to submit the
rehabilitation plan;
c. Disapproval of the rehabilitation
plan by the court;
d. Failure to achieve the desired
targets or goals as set forth in the
rehabilitation plan;
e. Failure of the debtor to perform its
obligations under the plan;
f. Determination that the
rehabilitation plan may no longer be
implemented in accordance with its
terms, conditions, restrictions or
assumptions; or
g. Successful implementation of the
rehabilitation plan.
Under the Interim Rules, the court may,
motu propio or on its own initiative,
terminate the proceedings.
New rules now requires
motion/recommendation of receiver.
Deleted under the new Rules. (Rule 3,
Sec. 23) Also, the same provision
expressly adds the dismissal of the
petition in the enumeration of
grounds for termination of the
proceedings.
- end of Special Proceedings -
Chapter 8: Corporate Rehabilitation
V. FINAL ORDERS AND APPEALS
THEREFROM
Orders issued by the court under Rule
shall be immediately executory
Petition for review of the order shall not
stay the execution of such unless
restrained or enjoined by the
appellate court
Appeals shall be in accordance with the
Rules of Court
No relief can be extended to the party
aggrieved by the courts order on the
motion through a special civil action for
SPECIAL PROCEEDINGS
certiorari under Rule 65 of the Rules of
Court. Such order can only be elevated
to the Court of Appeals (CA) as an
assigned error in the petition for review
of the decision or order approving or
disapproving the rehabilitation plan.
An order issued after the approval of
the rehabilitation plan can be reviewed
only through a special civil action for
certiorari under Rule 65 of the Rules of
Court. (Rule 8, Sec. 1)
Review of decision on Rehabilitation
Plan.
The new Rules now expressly provide
that an order approving or
disapproving a rehabilitation plan
can only be reviewed through a
petition for review to the CA under
Rule 43 of the Rules of Court within
15 days from notice of the decision
or order. (Rule 8, Sec. 2)
Receiver then submits his final report
after termination of the rehabilitation
proceedings
Reports - The new Rules now indicate
that the report shall include, at the
minimum, interim financial statements
of the debtor. (Rule 3, Sec. 16)
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REVIEWER IN REMEDIAL LAW Table of Contents

CRIMINAL PROCEDURE

Chapter 1: CRIMINAL 248 4. Substance of application 255

JURISDICTION 5. Generally 255
A. DEFINITION 248 6. Issuance and form of search 255
B. HOW DETERMINED 248 warrant 255
C. ESTOPPEL AND LACHES TO 248 7. Personal Property to be Seized 255
DENY JURISDICTION 8. Validity of search warrant 255
D. JURISDICTION OF COURTS 249 9. Service of search warrant 255
1. Municipal Trial Courts 249 10. Search of house, room, or 255
2. Regional Trial Courts 249 premise, to be made, in
3. Sandiganbayan 250 presence of two witnesses
4. Military Courts 250 11. Time of making search 255
12. Post-service 255
Chapter 2: RIGHTS OF THE 251 13. Delivery of property and 259
ACCUSED inventory thereof to court
A. TO BE PRESUMED INNOCENT 251 C. WARRANTLESS SEARCHES 260
B. TO BE INFORMED OF THE 251 1. When allowed 260
NATURE AND CAUSE OF 2. Probable cause justifying 262
ACCUSATION AGAINST HIM warrantless arrest and
C. TO BE PRESENT AND DEFEND 251 warrantless search
IN PERSON AND BY COUNSEL AT D. REMEDIES OF PARTY SUBJECT 262
EVERY STAGE OF THE OF SEARCH WARRANT
PROCEEDINGS 1. Who may avail of remedies 262
D. TO TESTIFY IN HIS OWN 251 2. Remedies 262
BEHALF 3. Effect of failure to quash 263

CRIMINAL PROCEDURE
E. TO BE EXEMPT FROM BEING 251 warrant
COMPELLED TO BE A WITNESS 4. Effects of illegal search 263
AGAINST HIMSELF 5. Waiver of immunity against 263
F. TO CONFRONT AND CROSS- 251 unreasonable searches and
EXAMINE WITNESSES AGAINST seizure [Pasion v. Locsin
HIM AT THE TRIAL (1938)]
G. TO HAVE COMPULSORY 251 6. Liability for illegal search 263
PROCESS ISSUED TO SECURE warrant
ATTENDANCE OF WITNESSES E. CIVIL LIABILITY 263
AND PRODUCTION OF OTHER
EVIDENCE IN HIS BEHALF Chapter 4: ARREST 264
H. TO HAVE A SPEEDY, IMPARTIAL 252 A. CONCEPT 264
AND PUBLIC TRIAL B. PROCEDURE 264
I. TO HAVE THE RIGHT OF 252 1. Constitutional requirements on 264
APPEAL IN ALL CASES ALLOWED arrest
AND IN THE MANNER 2. Arrest with warrant 264
PRESCRIBED BY LAW 3. Arrest without warrant 266
4. Illegal arrest 267
Chapter 3: SEARCH AND SEIZURE 253 5. Right of attorney or relative to 267
A. CONCEPT 253 visit arrested person
1. Definition 253 C. OTHER FORMS OF ARREST 267
2. Nature of a Search Warrant 253 WARRANTS
3. Constitutional safeguard 253 1. Human Security Act, RA No. 267
against unreasonable search 9372
and seizures 2. BID arrest by virtue of an order 267
4. Constitutional protection is 254 of deportation
against public officers acts, not D. CUSTODIAL INVESTIGATION 267
private persons 1. What is embraced in custodial 267
B. PROCEDURE 254 investigations; what is not
1. Application 254 2. Custodial rights of the accused 267
2. Exception: Malaloan v. CA 254 3. Consequences of violation of 267
(1994) - subject to R126, Sec. 1 custodial rights
3. Search guidelines under 254
Circular No. 19, s. 1987

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REVIEWER IN REMEDIAL LAW Table of Contents
Chapter 5: PROSECUTION OF 269 I. RECORD OF PI 282
OFFENSES J. CASES NOT REQUIRING 282
A. INSTITUTION OF CRIMINAL 269 PRELIMINARY INVESTIGATION
ACTIONS NOR COVERED BY RULE ON
1. In general 269 SUMMARY PROCEDURE
2. Prosecution 269
3. Effects 270 Chapter 7: PRELIMINARY 283
4. Complaint or information 271 REMEDIES
5. Place where action is to be 274 A. BAIL 283
instituted 1. Definition 283
6. Intervention of offended party 275 2. Purpose 283
B. PROSECUTION OF CIVIL ACTION 275 3. Conditions of bail 283
1. In general 275 4. Availability of bail 284
2. Civil liability 275 5. Amount of bail 285
3. Suspension of civil action 277 6. Kinds of bail 285
4. Effect of death of accused on 277 7. Procedural matters in bail 287
civil action 8. Arrest of accused out on bail 288
5. Effect of judgment in civil case 277 9. Bail required of witnesses 288
on criminal action B. MOTION TO QUASH 288
1. Defnition 288
Chapter 6: PRELIMINARY 278 2. Time to file MTQ 288
INVESTIGATION 3. Form and contents 289
A. GENERAL PRINCIPLES 278 4. Grounds 289
1. Definition 278 5. Procedure upon filing 296
2. When required 278 6. Effect of order granting MTQ 296
3. Nature 278 7. Failure to assert grounds 297

CRIMINAL PROCEDURE
4. Purpose 279 8. Provisional dismissal 297
B. RIGHT TO PRELIMINARY 279 C. PROVISIONAL REMEDIES IN 298
INVESTIGATION CRIMINAL CASES
C. WHO MAY CONDUCT PI 279 1. Availability 298
1. Generally 279 2. Attachment 298
2. COMELEC, when vested 279
3. Ombudsman 279 Chapter 8: PRE-TRIAL 299
D. PROCEDURE to be observed by 280 A. PRE-TRIAL CONFERENCE 299
prosecutors in PI 1. Coverage 299
1. Filing of the complaint 280 2. Period 299
2. Action of the investigating 280 3. Purposes 299
officer B. PRE-TRAIL AGREEMENTS AND 299
3. Defendants counter-affidavit 280 SUBMISSIONS
4. Hearing 280 1. Form 299
5. Resolution 280 2. Effect 300
6. Review 280 C. PRE-TRIAL ORDER 300
7. Filing of information/complaint 281 1. When issued 300
in court 2. Contents 300
E. RIGHTS OF RESPONDENT IN A 281 3. Effects 300
PI D. NON-APPEARANCE 300
F. DUTIES OF INVESTIGATING 281
FISCAL OR PROSECUTOR Chapter 9: ARRAIGNMENT 301
1. Determine WON there is 281 A. IN GENERAL 301
probable cause 1. Definition 301
2. Must include all persons guilty 281 2. Purpose: Procedural due 301
of offense process
3. Prosecutor cannot file 281 3. Four-fold duty of the TC before 301
information without prior arraignment
approval of superior 4. Issues that may be raised 301
4. Appeal to Secretary of Justice 281 before arraignment 301
G. WHEN WARRANT OF ARREST 282 B. PROCEDURE 301
MAY ISSUE 1. Where 301
H. WHEN ACCUSED LAWFULLY 282 2. Manner 302
ARRESTED WITHOUT WARRANT 3. Types of plea 303

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REVIEWER IN REMEDIAL LAW Table of Contents
4. Withdrawal of plea 303 Chapter 12: POST-JUDGMENT 323
5. Suspension of arraignment 303 REMEDIES
A. MOTION FOR 323
Chapter 10: TRIAL 305 RECONSIDERATION OR NEW
A. GENERAL PROCEDURE FOR 305 TRIAL (MFR/MNT)
TRIAL 1. Definition 323
1. Notice and commencement 305 2. Grounds for MNT 323
2. Time to prepare for trial 305 3. Ground for MFR 323
3. Trial Proper 305 4. Procedure 324
4. Order of trial 305 5. Effect of granting MNT/MFR 324
B. SPECIAL PROCEDURES 307 B. ORDINARY APPEAL 325
1. Trial of several accused jointly 310 1. Definition 325
charged 2. Final judgment or order 325
2. Consolidation of trials of 310 3. Appellate jurisdiction of the CA 325
related offenses 4. Modes of Review 325
3. Discharge of an accused to be a 311 5. Procedure 326
state witness 6. Jurisdiction of the TC prior to 329
4. Other modes of discharge of the 312 expiration of period to appeal
accused to be a state witness C. PROCEDURE IN THE DIFFERENT 330
5. The Ombudsmans power to 313 COURTS
grant immunity. [Sec. 17, RA 1. Procedure in the MTC (incl. 330
6770] Rule on Summary Procedure)
6. Effect of discharge 314 2. Procedure in the CA 332
7. Re-opening of trial 314 3. Procedure in the SC 335
C. OTHER PROCEDURAL RULES 315
1. When proper offense is not 315 APPENDICES

CRIMINAL PROCEDURE
charged Appendix 1: AVAILABILITY OF BAIL 337
2. Duties of counsels and 316 Appendix 2: MODES OF REVIEW 339
prosecutors
3. Appointment of acting 316
prosecutor
4. Exclusion of the public from 316
the courtroom
5. Archiving of criminal cases 316
6. Inhibition of judges 316
7. Desistance by the offended 317
party

Chapter 11: JUDGMENT 318

A. IN GENERAL 318
1. Requisites 318
2. Conviction 319
3. Acquittal 320
B. PROMULGATION OF JUDGMENT 321
1. Promulgation where judge is 321
absent
2. Presence of accused required; 321
exception
C. MODIFICATION OF JUDGMENT 322
1. When judgment on conviction 322
becomes final
2. When judgment of acquittal 322
becomes final
D. ENTRY OF JUDGMENT 322
1. Manner 322
2. Formalities required 322
3. Existing provisions governing 322
suspension of sentence

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REVIEWER IN REMEDIAL LAW Chapter 1: Criminal Jurisdiction

Criminal Procedure
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. Te REMEDIAL LAW LECTURES

FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
CRIMINAL PROCEDURE --------
Samantha Poblacion Kae Guerrero
DIRECTOR FOR ACADEMICS Bernice Mendoza
LEAD WRITER PRINTING AND DISTRIBUTION
EDITOR-IN-CHIEF
--------
Kat Fabellon
Rania Joya Dianne Patawaran Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS LOGO, COVER AND TEMPLATE DESIGN
Ria Cruz
LAYOUT HEAD
Raissa Villanueva
Zann Pacificador
WRITERS

Chapter 1: Criminal Jurisdiction General rule: The courts jurisdiction to

A. DEFINITION
B. HOW DETERMINED
C. ESTOPPEL AND LACHES TO
JURISDICTION
D. JURISDICTION OF COURTS
1. Municipal Trial Courts
try a criminal action is to be determined
by the law at the time of the institution
of the action. Succeeding legislation
DENY placing jurisdiction in another tribunal
will not affect jurisdiction obtained by a
court.
Exception: Where the succeeding

2. Regional Trial Courts
a. Regular courts
b. Family courts
c. Katarungang Pambarangay
3. Sandiganbayan
4. Military Courts
A. DEFINITION
Authority of the court to hear and try a
particular offense and to impose the
punishment provided by law.
Jurisdiction is vested in the court, not
in the judges. [People v. Gorospe (1984)]
Inquiries into a courts jurisdiction:
WON the court has jurisdiction over the
offense by virtue of the imposable
penalty and its nature;
It is defined by law; determined by the
extent of the penalty which law
imposes based on the facts as
recited in the complaint/information
constitutive of the offense charged.
WON the action has been filed within
the territorial jurisdiction of the
court.
o Refers to venue or the place
where the case is to be tried. The
action should be instituted and
tried in the municipality or
territory where offense has been
committed or where any one of
the essential ingredients thereof
took place.
CRIMINAL PROCEDURE
statute expressly provides, or is
construed that it is intended to
operate to actions pending before its
enactment,
in which case the court where the
criminal action is pending is ousted
of jurisdiction and the pending
action will have to be transferred to
the other tribunal, which will
continue the proceeding.
B. HOW DETERMINED
Determined by the allegations of the
complaint or information.
By examination of the
complaint/information to ascertain that
the facts set out and punishment fall
under jurisdiction of court. [People v.
Ocaya (1978)]
Jurisdiction over Complex Crimes (2003
Bar): lodged with the court having
jurisdiction to impose the maximum
and most serious penalty imposable on
an offense forming part of the complex
crime. [Cuyos v. Hon. Garcia (1988)]
C. ESTOPPEL AND LACHES TO DENY
JURISDICTION
General rule: The issue of jurisdiction
may be raised at any stage of the
proceedings, even on appeal, and is not

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REVIEWER IN REMEDIAL LAW
lost by waiver or by estoppel (J. Nachura
in Figueroa vs. People, July 14, 2008)
Exception: Estoppel by laches, to bar a
litigant from asserting the courts
absence or lack of jurisdiction, only
supervenes in exceptional cases
similar to the factual milieu of Tijam
v. Sibonghanoy. Estoppel being in
the nature of forefeiture is not
favored by law. (Figueroa vs.
People)s
D. JURISDICTION OF COURTS
1. MTC
Exclusive original jurisdiction over all
violations of city/municipal ordinances
committed within their respective
territorial jurisdiction. [Sec. 32 BP 129]
Exclusive original jurisdiction over all
offenses punishable with imprisonment
not exceeding 6 years irrespective of the
amount of fine, and regardless of other
imposable accessory or other penalties,
including the civil liability arising from
such offenses or predicated thereon,
irrespective of kind, nature, value, or
amount thereof.
Provided, however, that in offenses
involving damage to property through
criminal negligence they shall have
exclusive original jurisdiction thereof.
[Sec. 32, BP 129]
Exception: Cases falling within the
exclusive original jurisdiction of
RTCs and of the Sandiganbayan.
[Sec. 32, BP 129]
Cases classified under the Revised
Rules on Summary Proceedings: [SC
Resolution, October 15, 1991]
Violations of traffic laws/rules/
regulations;
Violations of rental law;
Cases where the penalty prescribed by
law for the offense charged is
imprisonment not exceeding 6
months, or a fine not exceeding
P1,000, or both, irrespective of other
imposable penalties, accessory or
otherwise, or of the civil liability
arising therefrom:
Provided, however, that in offenses
involving damage to property
through criminal negligence, this
Rule shall govern where the
imposable fine does not exceed
P10,000.
Exception: a criminal case falling under
the aforementioned list where the
offense charged is necessarily
Chapter 1: Criminal Jurisdiction
related to another criminal case
subject to the ordinary procedure.
2. RTC
a. Regular courts
RTCs shall exercise exclusive original
jurisdiction in all criminal cases not
within the exclusive jurisdiction of
any court/tribunal/body. [Sec. 20,
BP 129]
Exception: Those now falling
under the exclusive and
concurrent jurisdiction of the
Sandiganbayan, which shall
hereafter be exclusively taken
cognizance of by the latter. [Sec.
20, BP 129]
SC may designate certain RTC branches
to handle exclusively criminal cases,
juvenile and domestic relations cases,
agrarian cases, urban land reform cases
which do not fall under the jurisdiction
of quasi-judicial bodies and agencies,
and/or such other special cases as the
SC may determine. [Sec. 23, BP 129]
Criminal cases where 1 or more of the
CRIMINAL PROCEDURE
accused is below 18 y/o but not less
than 9 y/o, or where 1 or more of the
victims is a minor at the time of the
commission of the offense. [Sec. 5, RA
8369]
b. Family courts
Criminal cases where one or more of the
accused is below eighteen (18) years of
age but not less than fifteen (15) years
(amended by implication of the Juvenile
Justice Law), or where one or more of
the victims is a minor at the time of the
commission of the offense: provided,
that if the minor is found guilty, the
court shall promulgate sentence and
ascertain any civil liability which the
accused may have incurred.
The sentence, however, shall be
suspended without need of application
pursuant to presidential Decree No.
603, the Child and Youth Welfare Code.
Cases against minors cognizable under
the Dangerous Drugs Act, as
amended.
Violations of Republic Act No. 7610, the
Child Abuse Act.
Cases of domestic violence against
women and children. If an act
committed against women and
children likewise constitute a
criminal offense, the accused or
batterer shall be subject to criminal
proceedings and the corresponding
Page 249 of 370
REVIEWER IN REMEDIAL LAW
penalties. (Rep. Act No. 8369,
Family Courts Act of 1997)
c. Katarungang Pambarangay
General Rule: The lupon of each
barangay shall have authority to bring
together the parties actually residing in
the same city or municipality for
amicable settlement of all disputes.
Exceptions
Offenses punishable by imprisonment
exceeding one (1) year or a fine
exceeding Five thousand pesos
(P5,000.00);
Offenses where there is no private
offended party;
3. SANDIGANBAYAN
General rule: The offense must be
intimately connected with the office of
the offender and perpetuated while he
was in the performance of official
functions. It has also been held to be
the case if it cannot exist without the
office, or if the office is a constituent
element of the crime as defined in the
statute
Exception: Election offenses, even if
committed by public officers with grade
27 or higher in relation to their office,
shall fall under the RTCs exclusive
original jurisdiction. [Sec. 268, Omnibus
Election Code]
Exclusive jurisdiction of Sandiganbayan
Those expressly enumerated in PD
1606, as amended by RA 8249 -
Violations of RA 3019 Anti-Graft
and Corrupt Practices Act, RA 1379,
Chapter II, Section 2, Title VII, Book
II of the RPC
Officials enumerated are the following:
o Officials of the executive branch
occupying the positions of
regional director and higher,
otherwise classified as Grade '27'
and higher, of the Compensation
and Position Classification Act of
1989 (RA 6758)
o Members of Congress and
officials thereof classified as
Grade'27'and up under the
Compensation and Position
Classification Act of 1989
o Members of the judiciary
without prejudice to the
provisions of the Constitution
o Chairmen and members of
Constitutional Commissions,
without prejudice to the
provisions of the Constitution
Chapter 1: Criminal Jurisdiction
Offenses committed in relation to public
office
Sandiganbayan has exclusive original
jurisdiction over Other offenses or
felonies whether simple or
complexed with other crimes
committed by public officials and
employees in relation to their office
Requisites that must concur if the
offense is not 3019, 1379, or articles
210-212 RPC:
o accused is any one of the public
officials enumerated in subsec.
(a) of Sec. 4 of Ra 8249, grade 27
or higher
o accused commits any other
offense or felony, than those
specified in subsec. (a) whether
simple or complexed with other
crimes; and
o offender commits such other
offense or felony in relation to
his office.
Last element must be alleged
in information. If not, it will
fall under jurisdiction of
CRIMINAL PROCEDURE
ordinary courts and not
Sandiganbayan
4. MILITARY COURTS
General rule: Ordinary courts will have
jurisdiction over cases involving
members of the armed forces, and other
persons subject to military law,
including members of the Citizens
Armed Forces Geographical Units who
commits crimes under the RPC or
special laws, regardless of who the co-
accused or victims are.
Exception: When, as determined by the
ordinary court during arraignment, the
offense is service-oriented, then it will
be tried by the court martial. Provided:
the President may, in the interest of
justice, order/direct at any time before
arraignment that any such
crimes/offenses be tried by the proper
civil courts.
Page 250 of 370
REVIEWER IN REMEDIAL LAW
Chapter 2: Rights of the Accused
[RULE 115; SEE COMPARATIVE TABLE
FOR RELEVANT PROVISIONS FROM THE
1987 CONSTITUTION, RA 7438, AND
THE ROC]
A. TO BE PRESUMED INNOCENT
B. TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION AGAINST HIM
C. TO BE PRESENT AND DEFEND IN
PERSON AND BY COUNSEL AT EVERY
STAGE OF THE PROCEEDINGS
D. TO TESTIFY IN HIS OWN BEHALF;
E. TO BE EXEMPT FROM BEING
COMPELLED TO BE A WITNESS AGAINST
HIMSELF (2005 BAR);
F. TO CONFRONT AND CROSS-EXAMINE
WITNESSES AGAINST HIM AT THE
TRIAL;
G. TO HAVE COMPULSORY PROCESS
ISSUED TO SECURE ATTENDANCE OF
WITNESSES AND PRODUCTION OF
OTHER EVIDENCE IN HIS BEHALF.
H. TO HAVE A SPEEDY, IMPARTIAL AND
PUBLIC TRIAL;
I. TO HAVE THE RIGHT OF APPEAL IN ALL
CASES ALLOWED AND IN THE MANNER
PRESCRIBED BY LAW.
A. TO BE PRESUMED INNOCENT;
Until contrary is proved beyond
reasonable doubt
Accusation is not synonymous with
guilt. [People v. Dramayo (1971)]
B. TO BE INFORMED OF THE
NATURE AND CAUSE OF
ACCUSATION AGAINST HIM;
Offense must be clearly charged in the
information. [People v. Ortega (1997)]
Charge must be set forth with sufficient
particularity which will enable him to
intelligently prepare his defense.
[Balitaan v. CFI of Batangas (1982)]
The pPurpose is served by arraignment.
[Borja v. Mendoza (1977)]
C. TO BE PRESENT AND DEFEND IN
PERSON AND BY COUNSEL AT
EVERY STAGE OF THE
PROCEEDINGS;
RIGHT TO BE PRESENT;
This right may be waived. However,
presence is required:
a. For purposes of identification;
b. At arraignment; [Rule 116, Sec. 1(b)]
c. At the promulgation of judgment;
Chapter 2: Rights of the Accused
Exception: If the conviction is for a
light offense. [Rule 120, Sec. 6]
Trial in absentia (1998 Bar):
Requisites: [Parada v. Veneracion
(1997)]
a. Prior arraignment;
b. Proper notice of the trial;
c. Failure to appear is unjustifiable.
Effects: Waiver of right to be present,
right to present evidence and right
to cross-examine witnesses.
[Gimenez v. Nazareno (1988)]
Note: This doctrine should be re-
examined because the rights waived are
distinct rights guaranteed by the
Constitution. [Pamaran]
RIGHT TO COUNSEL;
It means reasonably effective legal
assistance. [Gideon v. Wainright
(1963)]
It is absolute and may be invoked at all
times, even on appeal. [Telan v. CA
(1991)]
Duty to appoint counsel de oficio is
CRIMINAL PROCEDURE
mandatory only at the time of
arraignment. [Sayson v. People
(1988)]
Violation of this right entitles the
accused to new trial. [People v.
Serzo (1997)]
It may be waived, so long as not
contrary to law, public order, public
policy, morals or good customs.
The waiver must be unequivocally,
knowingly and intelligently made
[People v. Nicandro (1968)]
RIGHT TO DEFEND IN PERSON.
Only when it sufficiently appears that
he can protect his rights without the
assistance of counsel
D. TO TESTIFY IN HIS OWN BEHALF;
But subject to cross-examination on
any matter cited in his direct
examination.
E. TO BE EXEMPT FROM BEING
COMPELLED TO BE A WITNESS
AGAINST HIMSELF (2005 BAR);
Compulsion includes not only violence
but also moral coercion. [Chavez v. CA
(1968)]
Covers only testimonial compulsion and
production of incriminating documents.
Page 251 of 370
REVIEWER IN REMEDIAL LAW
It does not include examination of his
body as evidence when it may be
material. [US v. Tan Teng (1912)]
If he testified as a witness in his own
behalf, he cannot refuse to answer
questions on cross-examination on the
ground that the answer would
incriminate himself.
The questions should be on matters
related to his direct examination.
[People v. Judge Ayson (1989)]
F. TO CONFRONT AND CROSS-
EXAMINE WITNESSES AGAINST
HIM AT THE TRIAL;
This right is waived by non-appearance.
[Carredo v. People (1990)]
Identification by a witness of the
accused is inadmissible if the accused
had no opportunity to confront witness.
[People v. Lavarias (1968)]
Chapter 2: Rights of the Accused
simply that they might be, by the
barrage of publicity. [People v.
Teehankee (1995)]
I. TO HAVE THE RIGHT OF APPEAL
IN ALL CASES ALLOWED AND IN
THE MANNER PRESCRIBED BY
LAW.
a. Right to appeal is a statutory right and
the requirements must be complied
with; otherwise, the right is lost. [People
v. Sabellano (1991)]
b. If accused escapes from confinement,
appeal is not allowed unless he
voluntarily surrenders within period for
appeal. [People v. Omar (1991)]

G. TO HAVE COMPULSORY PROCESS

ISSUED TO SECURE
ATTENDANCE OF WITNESSES

CRIMINAL PROCEDURE
AND PRODUCTION OF OTHER
EVIDENCE IN HIS BEHALF.

Trial court should not delegate to the

accused the responsibility of getting his
witnesses.
If a subpoena is issued and the witness
failed to appear, the court should order
the arrest of the witness if necessary.
[People v. Montejo (1967)]

H. TO HAVE A SPEEDY, IMPARTIAL

AND PUBLIC TRIAL;

Remedy against denial of right:

a) MTD;
b) Dismissal subject to rules on double
jeopardy. [SC Circular 38-98]
c) Mandamus. [Vide Abadia v. CA
(1994)]
This right may be waived.
Right to public trial not is violated
where trial was held in chambers
[Garcia v. Domingo (1973)] or in the
Bilibid prison [US v. Mercado (1905)], if
accused failed to object and as long as
he could have his friends, relatives and
counsel present.
Trial by publicity is not per se as
prejudicial to the right of an accused to
fair trial. It is prejudicial only if there
are allegations and proof that the judges
have been unduly influenced, not

Page 252 of 370

REVIEWER IN REMEDIAL LAW Chapter 3: Search and Seizure

Chapter 3: Search and Seizure 2. Nature of a Search Warrant

A. CONCEPT A search warrant is in the nature of a

1. DEFINITION
2. NATURE OF A SEARCH WARRANT
3. CONSTITUTIONAL SAFEGUARD
AGAINST UNREASONABLE SEARCH
AND SEIZURES
4. CONSTITUTIONAL PROTECTION
AGAINST PUBLIC OFFICERS ACTS,
NOT PRIVATE PERSONS
B. PROCEDURE
1. APPLICATION
2. EXCEPTION: MALALOAN V. CA (1994)
SUBJECT TO R126, SEC. 1
3. SEARCH GUIDELINES UNDER
CIRCULAR NO. 19, S. 1987
4. SUBSTANCE OF APPLICATION
5. GENERALLY
6. ISSUANCE AND FORM OF SEARCH
WARRANT
7. PERSONAL PROPERTY TO BE SEIZED
8. VALIDITY OF SEARCH WARRANT
9. SERVICE OF SEARCH WARRANT
10. SEARCH OF HOUSE, ROOM, OR
PREMISE, TO BE MADE, IN PRESENCE
OF TWO WITNESSES
11. TIME OF MAKING SEARCH
12. POST-SERVICE
criminal process akin to a writ of
discovery
It is a special and peculiar remedy,
drastic in its name, and made necessary
because of a public necessity
IS
3. Constitutional safeguard
against unreasonable
search and seizures
Rule 126 is an implementation of Art. 3,
Sec. 2 of the Constitution.
The right of the people to be secure in
their
persons/houses/papers/effects
against unreasonable searches and
seizures of whatever nature or for
any purpose shall not be violated.
No SW or warrant of arrest shall issue
except upon PC to be determined
personally by the judge after the
examination under oath/affirmation
of the complaint and the witness he

CRIMINAL PROCEDURE
13. DELIVERY OF PROPERTY AND may produce, and particularly
INVENTORY THEREOF TO COURT describing the place to be searched,
C. WARRANTLESS SEARCHES and the things/persons to be seized.
1. WHEN ALLOWED [Art. 3, Sec. 2, Consti]
2. PROBABLE CAUSE JUSTIFYING The privacy of communication and
WARRANTLESS ARREST AND
correspondence shall be inviolable
WARRANTLESS SEARCH
D. REMEDIES OF PARTY SUBJECT OF except upon lawful order of the
SEARCH WARRANT court, or when public safety/order
1. WHO MAY AVAIL OF REMEDIES requires otherwise, as prescribed by
2. REMEDIES law. [Art. 3, Sec. 3, Consti]
3. EFFECT OF FAILURE TO QUASH Rationale:
WARRANT What is sought to be guarded is mans
4. EFFECTS OF ILLEGAL SEARCH prerogative to choose who is allowed
5. WAIVER OF IMMUNITY AGAINST entry to his residence. His privacy
UNREASONABLE SEARCHES AND
must not be disturbed by the
SEIZURE [PASION V. LOCSIN (1938)]
6. LIABILITY FOR ILLEGAL SEARCH government except in cases of
WARRANT overriding social need, and then
E. CIVIL LIABILITY only under the stringent procedural
safeguards. [Villanueva v. Querubin
A. CONCEPT (1972)]
A mans house is his castle. However,
1. Definition he may not use his castle as a
citadel for aggression against his
It is an order in writing; issued in the neighbors, nor can he within its
name of the People of the Philippines; walls create such disorders as to
signed by a judge; and directed to a affect their peace. [US v. Vallejo
peace officer, commanding him to (1908)]
search for personal property described Thus, the government has right to
in the warrant and bring it before the search and seize despite the individuals
court. [Rule 126, Sec. 1] right to privacy. The constitutional
if it is not written: it is void. guarantee is not a blanket prohibition
If it is without the judges signature: it against all searches and seizures. It
is fatally defective. operates only against unreasonable
searches and seizures.

Page 253 of 370

REVIEWER IN REMEDIAL LAW
This constitutional guarantee is NOT a
blanket prohibition against ALL
searches and seizures. It operates only
against unreasonable searches and
seizures.
Art. 3 Sec. 2 protects not only those
who are innocent but also those who
appear to be guilty but are nevertheless
to be presumed innocent until the
contrary is proved.
4. Constitutional protection is
against public officers acts, not
private persons
People v. Marti (1991); also People v.
Bangcarawan (2002): Search and
seizure clauses are restraints upon the
government and its agents, not upon
private individuals.
The Fourth amendment and the case
law applying it do not require exclusion
of evidence obtained through a search
by a private person. Rather, the
amendment only proscribes government
actions. In the case at bar, the evidence
was primarily discovered by a private
person, acting in a private capacity and
without the intervention and
participation of state authorities.
The private person made an inspection
as part of a reasonable standard
operating procedure/a precautionary
measure before delivery of packages to
the Bureau of Customs. The mere
presence of the NBI agents did not
convert the reasonable search into a
warrantless search and seizure
proscribed by the constitution.
General rule: Search of property is
unreasonable unless it has been
authorized by a valid search warrant.
Exceptions: Warrantless searches.
B. PROCEDURE
1. Application
Where filed
Any court within whose territorial
jurisdiction a crime was committed.
For compelling reasons stated in the
application:
If the place of the commission of
the crime is known, any court
within the judicial region where
the crime was committed.
Chapter 3: Search and Seizure
Any court within the judicial
region where the warrant shall
be enforced.
However, if the criminal action has
already been filed, the application
shall only be made in the court
where the criminal action is pending
2. Exception: Malaloan v. CA (1994)
subject to R126, Sec. 1
Malaloan Ruling: if a case has not yet
been filed, it may be filed in a court with
a territorial jurisdiction other than that
where the illegal articles sought to be
seized are located.
This is aside from the consideration
that a criminal action may be filed in
different venues under the rules for
continuing crimes, or where different
trial courts have concurrent original
jurisdiction over the same criminal
offense.
Malaloan ruling may be applicable:
when the crime is found to have been
committed in a particular place
CRIMINAL PROCEDURE
WITHIN the judicial region
where a particular court, by reason of
its territorial area, has jurisdiction
and where prosecutor, who filed the
complaint or information in said
court, has territorial jurisdiction
different from the court within the
same judicial region which actually
issued the warrant
3. Search guidelines under Circular
No. 19, s. 1987
All applications for search warrants
relating to violations of the Anti-
Subversion Act, crimes against public
order as defined in the Revised Penal
Code, as amended, illegal possession of
firearms and/or ammunition and
violations of the Dangerous Drugs Act of
1972, as amended, shall no longer be
raffled and shall immediately be taken
cognizance of and acted upon by the
Executive Judge of the Regional Trial
Court, Metropolitan Trial Court, and
Municipal Trial Court under whose
jurisdiction the place to be searched is
located.
In the absence of the Executive Judge,
the Vice-Executive Judge shall take
cognizance of and personally act on the
same. In the absence of the Executive
Judge or Vice-Executive Judge, the
application may be taken cognizance of
Page 254 of 370
REVIEWER IN REMEDIAL LAW
and acted upon by any judge of the
Court where the application is filed.
Applications filed after office hours,
during Saturdays, Sundays and
holidays, shall likewise be taken
cognizance of and acted upon by any
judge of the court having jurisdiction of
the place to be searched, but in such
cases the applicant shall certify and
state the facts under oath, to the
satisfaction of the judge, and its
issuance is urgent.
Any judge acting on such application
shall immediately and without delay
personally conduct the examination of
the applicant and his witnesses to
prevent the possible leakage of
information. He shall observe the
procedures, safeguards, and guidelines
for the issuance of search warrants
provided for in this Court's
Administrative Circular No. 13, dated
October 1, 1985.
4. Substance of application
Requisites for issuing search warrant
A SW shall not issue except
a. Upon probable cause in
connection with one specific
offense
b. To be determined personally by
the judge
c. after examination under oath or
affirmation of the complainant
and the witness he may produce
d. particularly describing the place
to be searched and the things to
be seized which may be
anywhere in the Philippines.
[Rule 126, Sec. 4]
Absence of requisites will cause
nullification of SW
If the judge is satisfied of the existence
of facts upon which the application is
based or that there is probable cause
(PC) to believe that they exist, he shall
issue the SW. [Rule 126, Sec. 6]
In issuing or not issuing SWs, judges
act according to the evidence presented
to them, and orders of the judge on the
matter are not final and do not
constitute res judicata.
Denial of SW on ground of insufficiency
of deposition is not a bar to further
proceedings.
Issuance of SW is not res judicata as to
the right to the SW. [Cruz v. Dinglasan
(1949)]
Chapter 3: Search and Seizure
Courts have declared invalid SW that
did not comply with these requisites.
[Lim v. de Leon (1975)]
A courts disregard for the requirements
constitutes GAD which may be
remedied by certiorari under Rule 65.
5. Generally
Issued upon probable cause
Probable cause such facts and
circumstances which would lead a
reasonably discreet and prudent
man to believe that an offense has
been committed, and that objects
sought in connection with the
offense are in the place sought to be
searched.
This probable cause must be shown to
be within the personal knowledge of
the complainant or the witnesses he
may produce and not based on mere
hearsay.
Determined by judge himself
in the form of searching questions and
CRIMINAL PROCEDURE
answers, in writing and under oath,
the complainant and the witnesses
he may produce on facts personally
known to them and attach to the
record their sworn statements,
together with the affidavits
submitted. [Rule 126, Sec. 5]
SEARCHING QUESTIONS AND
ANSWERS:
o Such questions as have the
tendency to show the
commission of a crime and
perpetrator thereof. [Luna v.
Plaza (1968)]
o In search cases, the application
must be supported by
substantial evidence: that the
items sought are in fact seizable
by virtue of being connected with
criminal activity and the items
will be found in the place to be
searched.
o A search warrant issued by a
judge who did not ask searching
questions but only leading ones
and in a general manner is
invalid.
Judge must examine under oath or
affirmation of the complainant and
the witness he may produce
in the form of searching questions and
answers, in writing and under oath,
Page 255 of 370
REVIEWER IN REMEDIAL LAW
the complainant and the witnesses
he may produce on facts personally
known to them and attach to the
record their sworn statements,
together with the affidavits
submitted. [Rule 126, Sec. 5]
A warrant issued to an applicant
without personal knowledge is void.
Examination under oath:
o OATH Includes any form of
attestation by which a party
signifies that he is bound in
conscience to perform an act
faithfully and truthfully.
o The oath required must refer to
the truth of facts within the
personal knowledge of the
petitioner/witness, because the
purpose thereof is to convince
the committing magistrate of the
existence of PC. [Alvarez v. CFI
(1937)]
o Mere affidavits of the
complainant/witnesses are not
sufficient. The law requires
depositions. [Prudente v. Judge
Dayrit (1989)]
INSTANCES OF INVALID EXAMINATION
The complainants application for SW
and the witness printed-form
deposition were subscribed and
sworn to before the judge, but the
latter did not ask either of the two
any questions, the answer to which
could possibly be the basis for
determining WON there was PC. It
cannot be said that the judge
personally conducted the personal
examination required. [Bache v. Ruiz
(1971)]
o In reading of the TSN of the
deposition of the applicant and
his witnesses taken by the clerk
of court, the judge was not able
to observe the deponents
demeanor nor to propound
initial and follow-up questions.
[Bache v. Ruiz (1971)]
o Where judge issuing the SW
acted solely on the basis of the
affidavits of the complainant and
his witnesses, which were sworn
to before another judge, without
personally asking the witnesses
questions. [Doce v. CFI (1968)]
INSTANCES OF VALID EXAMINATION
The validity of the SW and the affidavits
is not impaired by the fact that they
Chapter 3: Search and Seizure
are pre-typewritten by law
enforcement agents, as long as they
are sworn and subscribed to before
the judge.
In Luna v. Plaza (1974) (regarding
warrants of arrests, but applicable
by analogy), the SC said that the law
is complied with where the judge
adopts as his own personal
examination the questions asked by
the police investigator, as appearing
in the written sworn statements,
which the judge read again to the
witnesses, whether said answers
were his, and whether said answers
were true, to which the witnesses
replied in the affirmative, there
being no prohibition to the contrary.
Warrant issued must particularly
describe the place to be searched
and the persons to be seized
DESCRIPTION OF PLACE
Description of place to be searched is
sufficient if the officer with the SW
can, with reasonable efforts,
CRIMINAL PROCEDURE
ascertain and identify the place
intended. [People v. Veloso (1925)]
An apparent typographical error will not
necessarily invalidate the SW.
[Burgos v. Chief of Staff (1984)]
TEST OF PARTICULARITY
That the executing officers prior
knowledge as to the place intended
in the SW is relevant.
This would seem especially true where
the executing officer is the affiant on
whose affidavit the SW had issued,
and when he knows that the judge
who issued the SW intended the
building described in the affidavit.
And it has also been said that the
executing officer may look to the
affidavit in the official court file to
resolve an ambiguity in the SW as to
the place to be searched. [Burgos v.
Chief of Staff (1984)]
Particularly
Search warrant must be for only one
specific offense
o General rule: The offense alleged
must be specific as to enable the
judge to find the existence of a
PC.
o Definite provisions of the
allegedly violated laws must be
referred to.
Page 256 of 370
REVIEWER IN REMEDIAL LAW
o No SW shall issue for more than
one specific offense. [RPC]
Otherwise, warrant is void.
o The fact that the SW does not
specify the specific offense does
not render it a general warrant.
What is important is the
application for SW states the
specific offense deemed to have
been violated by the person
against whom the search
warrant is addressed.
o Scatter-shot warrant one
which allows search for more
than one specific offense and is
null and void, violative of the
Constitution.
o A SW issued for an illegal traffic
of narcotics and contraband is
fatally defective. The latter is a
generic term covering all goods
exported from or imported in the
country contrary to applicable
statutes. Necessarily then, more
than one offense could arise
from the activity designated as
illegal traffic of narcotics and
contraband. [Castro v. Pabalan
(1976)]
o Exception: In [People v. Marcos
(1990)], the SW was declared
valid despite lack of mention of
specific offense because the
application stated that the
owner of the grocery store
against whom warrant was
directed, had in his possession
unadulterated stocks in violation
of the provisions Art. 188 and
199, RPC, which are closely
allied articles as the punishable
acts defined in one of them can
be considered as including or is
necessarily included in the
other.
Things to be seized must be
particularly described
The SW must not suffer from generality.
Otherwise, the search and seizure of
the items in the implementation of
such SW is illegal and the items
seized are inadmissible in evidence.
(Section 2 Article 3 sets the
constitutional requirement.)
Personal property only. SW does not
issue for seizure of immovable
properties.
Ownership of the property seized is
immaterial. It is sufficient that the
Chapter 3: Search and Seizure
person against whom SW is directed
has control/possession of the
property. [Burgos v. Chief of Staff
(1984)]
Purpose: To limit the things to be
seized to those (and only those)
particularly described in the SW,
leaving the officers no discretion
regarding what articles they shall
seize, to the end that unreasonable
searches and seizures may not be
made and that abuses may not be
committed. [Uy Kheytin v. Villareal
(1920)]
General rule: Things to be seized must
be described particularly. General
SWs are not allowed.
SWs authorizing the seizure of books of
accounts and records showing all
the business transactions of certain
persons, regardless of whether the
transactions were legal or illegal, are
general warrants prohibited by law.
[Stonehill v. Diokno (1967)]
Likewise, a description of things to be
seized as subversive documents,
CRIMINAL PROCEDURE
propaganda materials, FAs, printing
paraphernalia and all other
subversive materials hardly
provided a definite guideline to the
executing officers. [Dizon v. Hon.
Castro]
And where the language used is too all-
embracing as to include all the
paraphernalia of petitioner in the
operation of its business, the SW is
constitutionally objectionable
[Columbia Pictures v. Flores (1993)]
Exceptions:
o But where, by the nature of the
goods to be seized, their
description must be rather
general, it is not required that a
technical description be given,
for this would mean that no SW
could issue. [People v. Rubio
(1932)]
o The general description of the
documents listed in the SW does
not render the SW void if the SW
is severable, and those items not
particularly described may be
cut off without destroying the
whole SW. [Uy v. BIR (2001)]
6. Issuance and form of search
warrant
It is an order in writing; issued in the
name of the People of the Philippines;
Page 257 of 370
REVIEWER IN REMEDIAL LAW
signed by a judge; and directed to a
peace officer, commanding him to
search for personal property described
in the warrant and bring it before the
court. [Rule 126, Sec. 1]
A search warrant shall not issue except
upon probable cause in connection with
one specific offense to be determined
personally by the judge after
examination under oath or affirmation
of the complainant and the witness he
may produce, and particularly
describing the place to be searched and
the things to be seized which may be
anywhere in the Philippines. [Rule 126,
Sec. 4]
If the judge is satisfied of the existence
of facts upon which the application is
based or that there is probable cause to
believe that they exist, he shall issue
the warrant, which must be
substantially in the form prescribed by
these Rules.[Rule 126, Sec. 6]
SW must be in writing and contain:
Name of person against whom it is
directed;
Offense for which it was issued;
The place to be searched and the
specific things to be seized;
A directive to law enforcement officers to
search and seize;
And for them to bring in court the
things seized;
Signature of the judge issuing it.
7. Personal Property to be Seized
WHAT MAY BE SEIZED [Rule 126, Sec.
3]
Personal property subject of the offense.
Personal property stolen/embezzled and
other proceeds/fruits of the offense.
Personal property used or intended to
be used as the means of committing
an offense.
8. Validity of search warrant
Period of validity 10 days from its
date. Thereafter, it shall be void. [Rule
126, Sec. 10]
9. Service of search warrant
Right to break door or window to effect
search
The officer, if refused admittance to the
place of directed search after giving
notice of his purpose and authority,
may break open any outer or inner door
Chapter 3: Search and Seizure
or window of a house or any part of a
house or anything therein to execute
the warrant to liberate himself or any
person lawfully aiding him when
unlawfully detained therein. [Rule 126,
Sec. 7]
10. Search of house, room, or
premise, to be made, in presence
of two witnesses
Search of house, room, or premises to
be made in presence of two witnesses.
No search of a house, room, or any
other premises shall be made except in
the presence of the lawful occupant
thereof or any member of his family or
in the absence of the latter, two
witnesses of sufficient age and
discretion residing in the same locality.
[Rule 126, Sec. 8]
11. Time of making search
The warrant must direct that it be
served in the day time, unless the
CRIMINAL PROCEDURE
affidavit asserts that the property is on
the person or in the place ordered to be
searched, in which case a direction may
be inserted that it be served at any time
of the day or night. [Rule 126, Sec. 9]
A SW violates Rule 126, Sec. 9 if the
time for making the search is left blank,
thus enabling the officers to conduct
the search in the evening of the
appointed search. [Asian Surety v.
Herrera]
Where a search is to be made during
the night time, the authority for
executing the same at that time should
appear in the directive on the face of the
SW. [Asian Surety v. Herrera]
12. Post-service
Receipt of property seized
Receipt for the property seized. The
officer seizing the property under
the warrant must give a detailed
receipt for the same to the lawful
occupant of the premises in whose
presence the search and seizure
were made, or in the absence of
such occupant, must, in the
presence of at least two witnesses of
sufficient age and discretion
residing in the same locality, leave a
receipt in the place in which he
found the seized property. [Rule 126,
Sec. 11]
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REVIEWER IN REMEDIAL LAW
How receipt is given
If lawful The officer seizing the property
occupant under the SW must give a detailed
was receipt for the same to the lawful
present occupant of the premises in whose
presence the search and seizure
were made
If he was The officer seizing the property
not under the SW must, in the presence
present of at least 2 witnesses of sufficient
age and discretion residing in the
same locality, leave a receipt in the
place in which he found the seized
property
13. Delivery of property and
inventory thereof to court
The officer must forthwith deliver the
property seized to the judge who issued
the warrant, together with a true
inventory thereof duly verified under
oath [Rule 126, Sec. 12].
Ten (10) days after issuance of the
search warrant, the issuing judge shall
ascertain if the return has been made,
and if none, shall summon the person
to whom the warrant was issued and
require him to explain why no return
was made.
If the return has been made, the judge
shall ascertain whether section 11 of
this Rule has been complied with and
shall require that the property seized be
delivered to him. The judge shall see to
it that subsection (a) hereof has been
complied with.
The return on the search warrant shall
be filed and kept by the custodian of the
log book on search warrants who shall
enter therein the date of the return, the
result, and other actions of the judge.
A violation of this section shall
constitute contempt of court.
Goods seized remain under the courts
custody until institution of the
appropriate criminal action with the
proper court. [Tenorio v. CA]
RE: REQUEST OF POLICE DIRECTOR
GENERALAVELINO I. RAZON FOR
AUTHORITY TO DELEGATE THE
ENDORSEMENT OF APPLICATION FOR
SEARCH WARRANT.
A.M. No. 08-4-4-SC
The request of P/Dir. Gen. Jesus A. Verzosa for
leave to delegate to the Director of the
DIDM, PNP, the authority to endorse
applications for search warrants to be filed
before the RTCs of Manila and Quezon City,
is hereby GRANTED in accordance with Sec.
12, Chapter V of A.M. No. 03-8-02-SC, as it is
Chapter 3: Search and Seizure
hereinafter amended; and
(2) Sec. 12, Chapter V of the Guidelines on the
Selection and Appointment of Executive Judges
and Defining their Powers, Prerogatives and
Duties, as embodied in A.M. No. 03-8-02-SC, as
approved by the Court in its Resolution of 27
January 2004, is hereby AMENDED to read as
follows:
SEC. 12. Issuance of search warrants in special
criminal cases by the Regional Trial Courts
of Manila and Quezon City. The Executive
Judges and, whenever they are on official leave
of absence or are not physically present in the
station, the Vice-Executive Judges of the RTCs
of Manila and Quezon City shall have authority
to act on applications filed by the National
Bureau of Investigation (NBI), the Philippine
National Police (PNP) and the Anti-Crime Task
Force (ACTAF), for search warrants involving
heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions as
well as violations of the Comprehensive
Dangerous Drugs Act of 2002, the Intellectual
Property Code, the Anti-Money Laundering Act
of 2001, the Tariff and Customs Code, as
amended, and other relevant laws that may
hereafter be enacted by Congress, and included
CRIMINAL PROCEDURE
herein by the Supreme Court.
The applications shall be endorsed by the
heads of such agencies or their respective
duly authorized officials and shall
particularly describe therein the places to be
searched and/or the property or things to be
seized as prescribed in the Rules of Court. The
Executive Judges and Vice-Executive Judges
concerned shall issue the warrants, if justified,
which may be served outside the territorial
jurisdiction of the said courts.
The Executive Judges and the authorized
Judges shall keep a special docket book listing
names of Judges to whom the applications are
assigned, the details of the applications and the
results of the searches and seizures made
pursuant to the warrants issued.
This Section shall be an exception to Section 2
of Rule 126 of the Rules of Court. (Emphasis
supplied.)
This amendment shall apply to all current, as
well as succeeding heads of the PNP, NBI, and
ACTAF of the AFP. It shall take effect on 20
July 2009 and shall be published in a
newspaper of general circulation in
the Philippines not later than 5 July 2009.
Page 259 of 370
REVIEWER IN REMEDIAL LAW
C. WARRANTLESS SEARCHES
1. When allowed
Warrantless searches allowed as incident
of lawful arrest
Generally, Rule 126, Sec. 13, as
illustrated by jurisprudence
A person lawfully arrested may be
searched for dangerous weapons or
anything which may have been used
or constitute proof in the commission
of an offense without a search
warrant. [Rule 126, Sec. 13]
The rule assumes that the arrest is legal.
If the arrest is illegal, then the search
is illegal and as a result, the things
seized are inadmissible as evidence.
The search is confined to his person, but
as an incident of an arrest, the place
or premises where the arrest was
made can also be searched without a
search warrant. The extent and
reasonableness of the search must be
decided on its own facts and
circumstances. [Nolasco v. Pao
(1985); note: the MR was partially
granted in 1987 and held that the
arrest was unlawful, thus the search
was likewise unlawful.]
o An officer making an arrest may
take from the person arrested any
money or property found upon
his person which was used in the
commission of the crime or was
the fruit of the crime or which
might furnish the prisoner with
the means of committing violence
or of escaping or which may be
used as evidence in the trial of the
cause. [People v. Musa (1997)]
o In People v. Leangsiri (1996), the
accused were lawfully arrested in
Rm 504 of a hotel and a
warrantless search was conducted
in Rm 413. The search was held to
be illegal.
o In Chimel v. California (1969), the
US SC said that there is no
justification for searching through
all of the desks drawers or other
closed and concealed areas in the
room where arrest was made. SW
was needed.
o When one is legally arrested for an
offense, whatever is found in his
possession/control may be seized
and used in evidence against him.
[Alvero v. Dizon (1946)]
o Where the arrest was illegal, then
search and seizure incidental
thereto are also illegal. [People v.
Aruta (1998)]
Chapter 3: Search and Seizure
o Where a search is first
undertaken, and an arrest was
effected based on evidence
produced by such search, both
search and arrest are illegal. [Lui
v. Matillano (2004)]
Plain view doctrine (2008 Bar)
Rationale: Authorities do not consider a
mere observation of what is in plain
view, a search.
Thus, objects falling in the plain view of a
police officer who has a right to be in
the position to have that view are not
products of a search, may be seized
and may be introduced in evidence.
[Harris v. US (1968)]
Requisites: [People v. Valdez (1999)]
o A prior valid intrusion based on
the valid warrantless arrest in
which the police are legally
present in the pursuit of their
official duties;
o Evidence was inadvertently
discovered by the police who have
a right to be where they are;
o Evidence must be immediately
apparent;
CRIMINAL PROCEDURE
o Plain view justified mere seizure of
evidence without further search.
Limitations: [People v. Musa (1993)]
o It may not be used to launch
unbridled searches and
indiscriminate seizures.
o does not extend to a general
exploratory search made solely to
find evidence of defendants guilt.
o The doctrine is usually applied
where a police officer is not
searching for evidence against the
accused, but nonetheless
inadvertently comes across an
incriminating object.
o Even if an object is in plain view,
before it can be seized without a
SW, its incriminating nature must
first be apparent.
Where police officers are on the premises
pursuant to a valid consent to a
search, an item falling into their plain
view may properly be seized even if
the item is not connected with their
purpose in entering.
Search of moving vehicle
Rationale: Peace officers may lawfully
conduct searches of moving vehicles
without need of a warrant as it is
impracticable to secure a judicial
warrant before searching a vehicle
since it can be quickly moved out of
the locality or jurisdiction in which
the warrant may be sought.
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REVIEWER IN REMEDIAL LAW
However, these searches would be limited
to visual inspection and the vehicles
or their occupants cannot be
subjected to physical or body
searches, except where there is
probable cause to believe that the
occupant is a law offender or the
contents of the vehicles are
instruments or proceeds of some
criminal offense.
Search and seizure without warrant of
vessel and aircrafts for violation of
customs laws has been a traditional
exception to the requirement of SW.
[Roldan v. Hon. Arca (1975)]
Nonetheless, in all cases falling under this
category, there must be a showing of a
PC of a violation of the law. [Caroll v.
US (1924)]
Where a vehicle is stopped and subjected
to an extensive search, the
warrantless search is valid only as
long as the officers conducting the
search have reasonable or probable
cause to believe before the search that
they will find the
instrumentality/evidence pertaining to
a crime, in the vehicle to be searched.
[People v. CFI (1980)]
Searches conducted in checkpoints [People
v. Vinecario (2004)]
They are valid as long as they are
warranted by the exigencies of public
order and conducted in a way least
intrusive to motorists.
The vehicle is neither searched nor its
occupants subjected to a body search
(i.e. inspection of the vehicle is limited
to a visual search).
Consented warrantless search
Rationale: Right of privacy may be waived.
When one voluntarily submits to a search
or consents to have it made of his
person/premises, he is precluded
from later complaining thereof.[People
v. Kagui Malasugui (1936)]
When is consented search reasonable:
Only if kept within the bounds of the
actual consent.
o A persons consent may limit the
extent/scope of a warrantless
search in the same way that the
specifications of a warrant limit
the search pursuant thereto.
o Officers may not use a persons
limited consent to get inside his
home and conduct a general
search.
o The US SC said that a search for a
stolen TV set cannot extend to
Chapter 3: Search and Seizure
search of an individuals other
papers and documents.
On the other hand, where there is a nexus
between the crime for which the
evidence is sought and the item that
is seized, there is no abuse of the
consent to a search.
Customs search
For the enforcement of customs duties
and tariff laws, the Collector of
Customs is authorized to effect
searches and seizure. [General Travel
Services v. David (1966)]
The Tariff Code authorizes customs
officers to:
o Enter, pass through or search any
land, enclosure, warehouse;
o Inspect / search / examine any
vessel/aircraft and any trunk /
package / box / envelope or any
person on board, or stop and
examine any vehicle/beast/person
suspected of holding/conveying
any dutiable/prohibited article
introduced into the Philippines
contrary to law.
General rule: The Tariff and Customs
CRIMINAL PROCEDURE
Code does not require a warrant for
such searches.
Exception: In the search of a dwelling
house, SW is required.
Stop and frisk
STOP AND FRISK A limited protective
search of outer clothing for weapon.
[Malacat v. CA (1997)]
Where a police officer observes unusual
conduct which leads him reasonably
to conclude in the light of his
experience that criminal activity may
be afoot, and that a person with whom
he is dealing may be armed and
presently dangerous,
where in the course of investigating this
behavior he identifies himself as a
policeman and makes reasonable
inquiry, and where nothing in the
initial stage of the encounter serves to
dispel his reasonable fear for his own
or others safety, he is entitled for the
protection of himself and others in the
area to conduct a carefully limited
search of outer clothing of such
persons in an attempt to discover
weapons which might be used to
assault him. [Terry v. Ohio (1968)]
Under this theory, PC is not required to
conduct a stop and frisk but,
nevertheless, mere suspicion/hunch
will not validate a stop and frisk.
A genuine reason must exist, in light of
the police officers experience and
Page 261 of 370
REVIEWER IN REMEDIAL LAW
surrounding condition, to warrant the
belief that the person has weapons
concealed about him.
Exigent and emergency circumstances
There was a prevailing general chaos and
disorder because of an ongoing coup,
and the raid of the office/building was
precipitated by intelligence report that
said office was being used as HQ by
the RAM. Also, the surveillance team
before the raid was fired upon by the
people inside.
The raiding team had no opportunity to
apply for warrant as the court then
was closed. There was urgency and
exigency that warrant was lawfully
dispensed with. [People v. de Gracia
(1994)]
2. Probable cause justifying
warrantless arrest and warrantless
search
Probable cause justifying warrantless
arrest and warrantless search
Definition: Such facts and circumstances
which could lead a reasonable,
discreet and prudent man to believe
that an offense has been committed
and that the objects sought in
connection with the offense are in the
place sought to be searched.
This implies probability of guilt and
requires more than bare suspicion but
less than evidence which would justify
conviction. It is not determined by a
fixed formula but is resolved
according to the facts of each case.
D. REMEDIES OF PARTY SUBJECT
OF SEARCH WARRANT
1. Who may avail of remedies
SWs illegality may be contested only by
the party whose rights have been impaired
thereby. It cannot be availed by 3rd
parties. [Lim v. Ponce de Leon (1975)]
Hence, when a corporations documents
were seized, the corporate officers cannot
question the legality of the search as their
personalities are separate and distinct
from that of the corporation. [Stonehill v.
Diokno (1967)]
2. Remedies
a. Employ any means to prevent the search.
Without a SW, the officer cannot insist on
entering a citizens premises. If he does
so, he becomes an ordinary intruder.
Chapter 3: Search and Seizure
The person to be searched may resist the
search and employ any means necessary
to prevent it, without incurring any
criminal liability. [People v. Chan Fook
(1921)]
b. File criminal action against officer.
A public officer/EE who procures a SW
without just cause is criminally liable
under Art. 129, RPC.
c. File a MTQ the illegal SW.
This remedy is employed if search is not
yet conducted.
General rule: The motion must be filed
before the sala of the judge who issued it.
Only the court that issued the SW may
order revocation of SW or release of things
seized. [Pagkalinawan v. Gomez (1967)]
Exception: Where the SW is issued by one
court and the criminal action based on
the results of the search is afterwards
filed in another court, the motion may be
filed in either court. [People v. CA (1999)]
What may be raised in the MTQ: Only the
issues of existence or non-existence of PC
at the time of the SWs issuance;
compliance with requisites.
CRIMINAL PROCEDURE
Matters of defense are to be raised in the
criminal action. [DOH v. Sy Chi Siong
(1989)]
d. File a motion to return seized things.
This is the remedy used if the search was
already conducted and goods were seized
as a consequence thereof.
Where the motion will be filed follows the
same rules as 2(c) above.
e. Motion to quash a search warrant or to
suppress evidence (2005, 2007 Bar)
Rule 126, Sec. 14 Where to file
If criminal action has Court where the action
been filed has been instituted
If no criminal action Court that issued SW
has been instituted
If no criminal action is Court where the
filed and motion is subsequent criminal
first filed with the action has been
court that issued the instituted
SW, but it failed to
resolve the motion
and a criminal case is
subsequently filed in
another court
Grounds for a Motion to Quash [Bache &
Co. v. Ruiz (1971)]
o No personal examination by the
judge
o More than one specific offense
o No particular description
Who may file
Page 262 of 370
REVIEWER IN REMEDIAL LAW
o Person injured
o Person searched
o Owner of the property
An accused may file a Motion to Suppress
Evidence if he is not among the
persons who can file a Motion to
Quash.
3. Effect of failure to quash warrant
Where no MTQ the search warrant was
filed in or resolved by the issuing court,
the interested party may move in the
court where the criminal case is pending
for the suppression of the personal
property seized IF the same is offered
therein as evidence (REGALADO).
The MTQ a search warrant and Motion to
Suppress Evidence are alternative, not
cumulative remedies.
4. Effects of illegal search
Illegally seized evidence may not be
admitted in evidence in any proceeding.
[Art. 3, Sec. 2, 1987 Consti]
DISPOSITION OF ILLEGALLY SEIZED
PROPERTY
General rule: Goods seized by virtue of an
illegal warrant must be returned
[Castro v. Pabalan (1976)]
Exception: If possession of the things
seized is prohibited by law, they
shouldnt be returned.
However, where the accused obtained
goods from another through payment
of bouncing checks and thereafter
sold said goods to a buyer in good
faith, but said goods were taken from
the purchaser with the use of a SW
although the criminal case for estafa
against the accused was still pending,
the goods should be returned to the
buyer.
The buyer is entitled to possession of
goods until restitution is ordered by
the court in the criminal case. [Yu v.
Honrado (1980)]
5. Waiver of immunity against
unreasonable searches and
seizure [Pasion v. Locsin (1938)]
The constitutional immunity against
unreasonable searches and seizure is a
personal right that may be waived
expressly/impliedly.
Waiver cannot be made just by anyone,
except the person whose right is being
invaded or one who is expressly
authorized to do so in his behalf.
Requisites of a valid waiver:
Chapter 3: Search and Seizure
o It must appear that the right exists;
o That the person involved had
knowledge, (actual or constructive) of
the existence of such right;
o That the person had an actual
intention to relinquish the right.
6. Liability for illegal search warrant
Criminal Liability
Violation of the following:
Violation of domicile (RPC Art. 128)
SW maliciously obtained (Art. 129)
Searching domicile without witnesses (Art.
130)
Unjust interlocutory order (Art. 206)
Grounds:
Against public officer or employer:
o Entering without authority;
against the will; refuses to leave
o SW procured without just cause
or if with just cause, exceeds is
authority or use of unnecessary
severity
o Without required witnesses
Against judge
o For knowingly rendering an unjust
interlocutory order
CRIMINAL PROCEDURE
o Inexcusable negligence or
ignorance
E. CIVIL LIABILITY
Violation of the following
Violation of rights and liberties (Art. 32,
CC)
Malicious prosecution and acts referred
to Art. 32. (Art. 2218, CC)
Malice or bad faith is not required
Not only official actions, but makes all
persons who are responsible for the
violation liable for damages [MHP
Garments v. CA (1994)]
Page 263 of 370
REVIEWER IN REMEDIAL LAW
Chapter 4: Arrest
A. CONCEPT
B. PROCEDURE
1. CONSTITUTIONAL REQUIREMENTS ON
ARREST
2. ARREST WITH WARRANT
3. ARREST WITHOUT WARRANT
4. ILLEGAL ARREST
5. RIGHT OF ATTORNEY OR RELATIVE TO
VISIT ARRESTED PERSON
C. OTHER FORMS OF ARREST WARRANTS
1. HUMAN SECURITY ACT, RA NO. 9372
2. BID ARREST BY VIRTUE OF AN ORDER
OF DEPORTATION
D. CUSTODIAL INVESTIGATION
1. WHAT IS EMBRACED IN CUSTODIAL
INVESTIGATIONS; WHAT IS NOT
2. CUSTODIAL RIGHTS OF THE ACCUSED
3. CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS
A. CONCEPT
ARREST Taking of a person into
custody in order that he may be
bound to answer for the commission
of an offense. [Rule 113, Sec. 1]
Ordinarily, an invitation to attend a
hearing and answer some questions,
which the person invited may heed or
refuse at his pleasure, is not illegal or
constitutionally objectionable.
However, where the invitation comes
from a powerful group composed
predominantly of ranking military
officers issued at a time when the
country has just emerged from martial
rule and when the suspension of the
privilege of the writ of habeas corpus
has not entirely been lifted, and the
designated interrogation site is a
military camp, the same can be easily
taken, not as a strictly voluntary
invitation which it purports to be, but
as an authoritative command which one
can only defy at his peril. Although in
the guise of a request, it was obviously
a command or an order of arrest that a
person could hardly be expected to defy.
[(Sanchez v. Demetriou (1993)]
Immunity from arrest
Senators and Members of the House of
Representatives, while Congress is
in session and for offenses
punishable by not more than 6
years imprisonment. [Art. 6, Sec. 11,
Consti]
Ambassadors and ministers of foreign
countries. [RA 75]
Chapter 4: Arrest
B. PROCEDURE
1. Constitutional requirements on
arrest
The right of the people to be secure in
their persons, houses, papers, and
effects against unreasonable searches
and seizures of whatever nature and for
any purpose shall be inviolable, and no
search warrant or warrant of arrest
shall issue except upon probable cause
to be determined personally by the
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce, and
particularly describing the place to be
searched and the persons or things to
be seized. [Art. 3, Sec. 2, Consti]
2. Arrest with warrant (2008 Bar)
Issuance
Essential Requisites of a Valid Arrest
Warrant [Art. 3, Sec. 2, Consti]
o It must be issued upon PC
CRIMINAL PROCEDURE
which must be determined
personally by a judge after
examination under oath or
affirmation of the complainant
and the witnesses he may
produce.
o The warrant must particularly
describe the person to be seized.
Instances When Judge Issues Warrant of
Arrest
Upon the filing of the information by the
public prosecutor and after personal
evaluation by the judge of the
prosecutors resolution and
supporting evidence. [Rule 112, Sec.
6(a)]
o The judge does not have to
personally examine the
complainant and his witnesses.
The prosecutor can perform the
same functions. [Soliven v.
Makasiar (1988)]
o Bare certification by the fiscal is
not enough. It should be
supported by a report and
necessary documents. [Lim v.
Felix (1991)]
Upon application of a peace officer and
after personal examination by the
judge of the applicant and the
witnesses he may produce. [Rule
112, Sec. 6(b)]
Page 264 of 370
REVIEWER IN REMEDIAL LAW
o Rationale: There is yet no
evidence on record upon which
judge may determine the
existence of PC.
o Conditions:
The investigating judge must
have examined in writing
and under oath the
complainant and his
witnesses by searching
questions and answers.
He must be satisfied that PC
exists;
There is a need to place the
respondent under immediate
custody in order not to
frustrate the ends of justice.
[Samulde v. Salvani (1988)]
A warrant of arrest has no expiry date.
It is only subject to the
requirements found in Section 4,
Rule 113.
How arrest is made
No violence or unnecessary force shall
be used in making an arrest. Person
arrested shall not be subject to a
greater restraint than necessary.
[Rule 113, Sec. 2, par. 2]
Application of actual force, manual
touching of the body, physical
restraint or a formal declaration of
arrest is not required.
It is enough that there be an intent on
the part of one of the parties to
arrest the other and an intent on
the part of the other to submit,
under the belief and impression that
submission is necessary. [Sanchez v.
Demetriou (1993)]
Time to make arrest
Arrest may be made on any day and at
any time of the day or night [Rule
113, Sec. 6]
Duties of the arresting officer
Execution of warrant (section 4, Rule
113)
o The head of the office to whom
the warrant of arrest was
delivered shall cause the
warrant to be executed within
ten (10) days from its receipt
To make a report to the judge who
issued the warrant within 10 days
after expiration of the period to
execute.
Chapter 4: Arrest
o In case of his failure to execute,
he shall state the reasons
therefore
To arrest the accused and deliver him to
the nearest police station or jail
without unnecessary delay. [Rule
113, Sec. 3]
Rights of the arresting officer
To summon assistance. [Rule 113, Sec.
10]
o He may orally summon as many
persons as he deems necessary
to assist him in effecting the
arrest.
o Persons summoned shall assist
in effecting the arrest when he
can do so without detriment to
himself.
To break into any building/enclosure
where the person to be arrested is or
is reasonably believed to be. [Rule
113, Sec. 11]
o If he is refused admittance after
announcing his authority and
purpose.
CRIMINAL PROCEDURE
o Also applicable where there is a
valid arrest without a warrant.
o Rationale: Person to be arrested
cannot use his
house/building/enclosure as a
shelter for crime. The
inviolability of domicile cannot
be used to shield arrest.
To break out from the
building/enclosure when necessary
to liberate himself. [Rule 113, Sec.
12]
o Also applicable where there is a
valid arrest without a warrant.
To search the person arrested for
dangerous weapons or anything
which may have been used or
constitute proof in the commission
of an offense. [Rule 126, Sec. 13]
o Without need of a search
warrant.
3. Arrest without warrant (1997,
2000, 2003, 2004 Bar)
IN FLAGRANTE DELICTO Literally,
caught in the act of committing a crime.
When the person to be arrested has
committed, is actually committing or is
attempting to commit an offense in the
presence of the peace officer or private
person who arrested him. [Rule 113, Sec.
5(a)]
In his presence means: [People v.
Evaristo (1992)]
Page 265 of 370
REVIEWER IN REMEDIAL LAW
He sees the offense, even though
at a distance;
He hears the disturbances created
by the offense and proceeds at
once to the scene;
Offense is continuing or has been
consummated at the time arrest is
made.
Entrapment and instigation
An arrest made after an
entrapment does not require a
warrant inasmuch as it is
considered a valid warrantless
arrest pursuant to Rule 113, Sec.
5(a) of the Rules of Court.
[Teodicio v Court of Appeals (2004)]
Buy-bust operation
When the appellant is caught in
flagrante as a result of the buy-
bust operation, the policemen are
not only authorized but are also
under obligation to apprehend the
drug pusher even without a
warrant of arrest. [People v de
Lara (1994)]
HOT PURSUIT ARREST - When an offense
has just been committed and the officer or
private person has probably cause to
believe based on personal knowledge of
facts or circumstances that the person to
be arrested has committed it [Rule 113,
Sec. 5(b)]
Officer / private person must have
personal knowledge of offense just
committed
o Personal knowledge must be
based on probable cause which
means an actual belief or
reasonable grounds of suspicion.
o The grounds of suspicion are
reasonable when, in the absence
of actual belief of the arresting
officer, the suspicion that the
person to be arrested is probably
guilty of committing the offense is
based on actual facts, i.e.,
supported by circumstances
sufficiently strong in themselves to
create the probable cause of guilt
of the person to be arrested.
o A reasonable suspicion therefore
must be founded on probable
cause, coupled with good faith on
the part of the peace officers
making the arrest.. [Posadas v.
Ombudsman (2000)]
Meaning of offense has in fact just been
committed: implies immediacy in
point of time
Chapter 4: Arrest
Arrest of escaped prisoner
When the person to be arrested is a
prisoner who has escaped: [Rule 113,
Sec. 5(c)]
o From a penal establishment or
place where he is:
Serving final judgment;
Temporarily confined while his
case is pending.
o While being transferred from one
confinement to another.
Escapee may be immediately pursued or
re-arrested without a warrant at any
time and in any place within the
Philippines. [Rule 113, Sec. 13]
Rationale: At the time of arrest, the
escapee is in continuous commission
of a crime (i.e. evasion of service of
sentence).
Duties of arresting officer without warrant
The officer shall inform the person to be
arrested of his authority and the
cause of the arrest. [Rule 113, Sec. 8]
Exceptions:
o The person to be arrested is
engaged in the commission of the
offense;
CRIMINAL PROCEDURE
o He is pursued immediately after
its commission;
o He escapes, flees or forcibly resists
before the officer has the
opportunity to so inform him;
o Giving such information will
imperil the arrest.
Duties of private person effecting an arrest
The private person shall inform the
person to be arrested of the intention
to arrest him and the cause of the
arrest. [Rule 113, Sec. 9]
Exceptions (same as those for arrest by an
officer)
o The person to be arrested is
engaged in the commission of the
offense;
o He is pursued immediately after
its commission;
o He escapes, flees or forcibly resists
before the officer has the
opportunity to so inform him;
o Giving such information will
imperil the arrest.
The private person must deliver the
arrested person to the nearest police
station or jail, and he shall be
proceeded against in accordance with
Rule 112, Sec. 7.
Otherwise, the private person may be held
liable for illegal detention.
Page 266 of 370
REVIEWER IN REMEDIAL LAW
4. Illegal arrest
If the arrest of a person is not justified by
any of the instances of a warrantless
arrest under Rule 113, Sec. 5.
The fact that the person arrested did not
actually commit the crime does not render
the arrest illegal.
Consequences of illegal arrest
The documents/things/articles seized
following the illegal arrest are not
admissible in evidence. They are
considered fruits of the poisonous
tree.
The arresting person/officer may be held
criminally liable for illegal arrest.
o Unlawful arrest; [Art. 269, RPC]
o Arbitrary detention. [Art. 124, RPC]
The arresting officer may be held civilly
liable for damages. [Art. 32, CC]
It is not necessary that there should be
bad faith or malice. Such requisite
would defeat the main purpose of the
provision which is the effective
protection of individual rights.
The fact that the arrest was illegal does
not render the subsequent
proceedings void and deprive the State
of its right to convict when all the
facts point to the culpability of the
accused.
Waiver of illegal arrest
The accused may waive the illegality of his
arrest either expressly or impliedly.
The objection to illegality of arrest must
be made before arraignment in a
motion to quash; otherwise it is
deemed waived. [Rule 117, Sec. 9]
Application for or admission to bail does
not amount to waiver. [Rule 114, Sec.
26]
5. Right of attorney or relative to
visit arrested person [rule 113,
sec. 14]
At the request of the arrested person or of
another acting in his behalf, any
member of the Philippine Bar shall
have the right to visit and confer
privately with such person in the jail
or any other place of custody at any
hour of the day or night.
A relative of the person can also exercise
this right, subject to reasonable
regulations.
Chapter 4: Arrest
C. OTHER FORMS OF ARREST
WARRANTS
1. Human Security Act, RA No. 9372
Suspected terrorists may be detained
without judicial warrant or arrest for up
to 3 days, without the police or law
enforcement personnel incurring any
criminal liability [Sec 18, RA 9372]
2. BID arrest by virtue of an order of
deportation
Aliens shall be arrested upon the warrant
of the Commissioner of Immigration or of
any other officer designated by him for the
purpose and deported upon the warrant of
the Commissioner of Immigration after a
determination by the Board of
Commissioners of the existence of the
ground for deportation as charged against
the alien. [Sec. 37, CA No. 613 (The
Philippine Immigration Act of 1940)]
D. CUSTODIAL INVESTIGATION
CRIMINAL PROCEDURE
Involves the questioning initiated by law
enforcement officers after a person has
been taken into custody or otherwise
deprived of his freedom of action in any
significant way.
Custodial investigation begins where the
investigation is no longer a general inquiry
into an unsolved crime but has began to
focus on a particular suspect, the suspect
has been taken into police custody, and
the police carry out a process of
interrogation that lends itself to eliciting
incriminating statements. [People v.
Rodriguez]
1. What is embraced in custodial
investigations; what is not
Included in custodial investigation
The practice of issuing an "invitation" to a
person who is investigated in
connection with an offense he is
suspected to have committed. [Sec. 2,
last par., RA 7438]
RE-ENACTMENT A demonstration by
the accused of how he committed the
crime. It is a police contrivance
designed to test the truthfulness of
the statements of the witness who had
confessed to the commission of the
crime.
One-on-one confrontation. This method is
as tainted as confession without the
presence of counsel. [People v. Teves
(2001)]
Page 267 of 370
REVIEWER IN REMEDIAL LAW
Statements or admissions not covered by
custodial investigation
POLICE LINE-UP conducted before the
custodial investigation, the purpose of
which is to identify the suspect among
many persons lined up.
The stage of the investigation wherein a
person is asked to stand in a police
line-up is outside the mantle of
protection of the right to counsel
because it involves a general inquiry
into an unsolved crime and is purely
investigatory in nature. [People v.
Pavillare (2000)]
TOTALITY OF CIRCUMSTANCES TEST
test employed in resolving the
admissibility of out-of-court
identification of suspects; requires the
following factors to be considered:
[People v. Teehankee (1995)]
o The witness opportunity to view
the criminal at the time of the
crime;
o The witness degree of attention at
that time;
o The accuracy of any prior
description given by the witness;
o The level of certainty
demonstrated by the witness at
the time of identification;
o The length of time between the
crime and the identification;
o The suggestiveness of the
procedure.
ULTRAVIOLET RAY EXAMINATION its
purpose is to determine the presence
of ultraviolet powder and does not
require presence of counsel.
2. Custodial rights of the accused
[Sec. 2, RA 7438]
To be assisted by counsel at all times.
Waiver of the right to counsel must be
made with the assistance of counsel.
[Art. 3, Sec. 12(1), Consti]
Specifically in the following instances:
o Signing of the written custodial
report;
o Signing of the written extra-
judicial confession (2008 Bar)
o In the absence of counsel and
upon valid waiver, it may be made
in the presence of any his parents,
elder brothers and sisters, spouse,
the municipal mayor, the
municipal judge, district school
supervisor, or priest/minister of
the gospel as chosen by him.
Signing of the waiver to the provisions of
Art. 125, RPC.
Chapter 4: Arrest
To be informed, in a language known to
and understood by him, of his rights to
remain silent and to have competent and
independent counsel, preferably of his own
choice, who shall at all times be allowed to
confer privately with the person arrested,
detained or under CI.
If he cannot afford to have his own
counsel, he must be provided with a
competent and independent counsel
by the investigating officer.
Assisting counsel may be any lawyer,
except those:
o Directly affected by the case;
o Charged with conducting PI;
o Charged with the prosecution of
crimes; [Sec. 3, RA 7438]
To be allowed visits by or conferences
with:
any member of his immediate family, or
any medical doctor or
priest or
religious minister
chosen by him or by any member of his
immediate family or by his counsel, or
by any national NGO duly accredited
by the Commission on Human Rights
CRIMINAL PROCEDURE
or by any international NGO duly
accredited by the Office of the
President.
"Immediate family" includes his or her
spouse, fianc or fiance, parent or
child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew
or niece, and guardian or ward.
3. Consequences of violation of
custodial rights
Failure to inform.
o Any arresting public officer or
employee, or any investigating
officer, shall suffer a fine of
P6,000.00 or a penalty of
imprisonment of not less than 8
years but not more than 10 years,
or both.
o The investigating officer who has
been previously convicted of a
similar offense shall suffer the
penalty of perpetual absolute
disqualification.
Obstruction, prevention or prohibition of
right to visits or conferences
o Any person guilty thereof shall
suffer the penalty of imprisonment
of not less than 4 years nor more
than 6 years and a fine of
P4,000.00
Inadmissibility of evidence does not
preclude conviction on other evidence
Page 268 of 370
REVIEWER IN REMEDIAL LAW
Chapter 5: Prosecution of
Offenses
A. INSTITUTION OF CRIMINAL ACTIONS
1. IN GENERAL
2. PROSECUTION
3. COMPLAINT OR INFORMATION
4. EFFECTS
5. COMPLAINT OR INFORMATION
6. PLACE WHERE ACTION IS TO BE
INSTITUTED
7. INTERVENTION OF OFFENDED PARTY
B. PROSECUTION OF CIVIL ACTION
1. IN GENERAL
2. CIVIL LIABILITY
3. SUSPENSION OF CIVIL ACTION
4. EFFECT OF DEATH OF ACCUSED ON
CIVIL ACTION
5. EFFECT OF JUDGMENT IN CIVIL CASE
ON CRIMINAL ACTION
A. INSTITUTION OF CRIMINAL
ACTIONS
1. In general
Before preliminary investigation, there
must first be a determination of
whether or not there is a crime.
Otherwise, there is no need to proceed
to the preliminary investigation to
determine the culpability of a person so
he could be held for trial.
How actions are instituted
Criminal actions shall be instituted as
follows:
For offenses where preliminary
investigation is required pursuant to
section 1 of Rule 112 (where the
penalty prescribed by law is at least
four (4) years, two (2) months and
one (1) day without regard to the
fine) by filing the complaint with the
proper officer for the purpose of
conducting the requisite preliminary
investigation therein;
For all other offenses, by filing the
complaint or information directly
with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or
the complaint with the office of the
prosecutor. In Manila and other
chartered cities, the complaint shall
be filed with the office of the public
prosecutor unless otherwise
provided in their charters. [Rule
110, Sec. 1]
Chapter 5: Prosecution of Offenses
Institution of criminal action
interrupts prescriptive period
The institution of a criminal action shall
interrupt the running of the period of
prescription of the offense charged
unless otherwise provided in special
laws. [Rule 110, Sec. 1]
2. Prosecution
Criminal prosecution may not be
restrained; exceptions
General rule: Writs of injunction/
prohibition will not lie to restrain (either
through preliminary or final injunction
or writ of prohibition) a criminal
prosecution.
Rationale: Public interest requires that
criminal acts be immediately
investigated and prosecuted for the
protection of society.
Exceptions (1999 Bar):
When injunction is justified by
necessity to afford protection to the
constitutional rights of the accused;
When necessary for the orderly
CRIMINAL PROCEDURE
administration for justice or to avoid
multiplicity of actions;
When there is a prejudicial question
which is sub judice;
When the acts of the officer are without
or in excess of authority;
Where the prosecutions is under an
invalid law/ordinance/regulation;
When double jeopardy is clearly
apparent;
Where the court has no jurisdiction over
the offense;
Where it is a case of persecution rather
than prosecution;
Where the charges are manifestly false
and motivated by the lust for
vengeance;
Where there is clearly no prima facie
case against the accused and MTQ
on that ground has been denied;
Preliminary injunction has been issued
by the SC to prevent the threatened
unlawful arrest of petitioners.
Prosecutor has control of prosecution
(1999 Bar)
The public prosecutor is a quasi-judicial
officer and a representative of a
sovereignty whose obligation to govern
impartially is as compelling as its
obligation to govern at all
General rule: The action must be
prosecuted under the direction and
Page 269 of 370
REVIEWER IN REMEDIAL LAW
control of the prosecutor. [Rule 110,
Sec. 5]
Exception: When there is a lack of
public prosecutors or heavy workload.
Prosecutor has to see that justice is done
It is the duty of the prosecutor to take
an active and direct part in the trial of
the case.
The reason therefore rests upon the
idea that, since a criminal offense is an
outrage to the sovereignty of the State,
it is but natural that the representatives
of the State should direct and control
the prosecution [Tan Jr., v. Gallardo
(1976)]
Restriction of the function of public
prosecutor
When there is lack of public prosecutors
or heavy workload, the private
prosecutor may be authorized in writing
by the Chief of the Prosecution Office or
the Regional State Prosecution to
prosecute the case subject to the courts
approval. The authority will continue
until revoked or withdrawn.
In appeals, the SolGen has control
General rule: The OSG shall represent
the People of the Philippines in criminal
actions brought to the CA and the SC.
Exception: In all cases elevated to the
SB and from the SB to the SC, the
Office of the Ombudsman (through
its special prosecutor) shall
represent the People, except in cases
filed pursuant to EC Nos. 1,2,4, and
14-A issued in 1986.
Crimes which cannot be prosecuted de
oficio (2000 Bar)
Art 334, RPC states what crimes cannot
be prosecuted de officio
It includes defamation which consists in
the imputation of a crime which cannot
be prosecuted de oficio.
Note: Rape is no longer a private crime
and may thus be prosecuted even
without the consent/initiative of the
offended party.
Private Crimes
Those which cannot be prosecuted
except upon complaint filed by the
aggrieved/offended party.
They are also crimes against the State
and the law imposes the condition that
there be a complaint by an aggrieved
party out of consideration of the
Chapter 5: Prosecution of Offenses
aggrieved partys preferring to suffer the
outrage in silence rather than go
through the scandal of public trial.
Complaint in private crimes liberally
construed - A narration of facts and
circumstances constituting the crime
with corresponding charge against
respondent is sufficient compliance with
legal requirements. [People v. Ilarde
(1983)]
Complaint is condition precedent;
confers no jurisdiction.
The complaint starts the prosecutory
proceeding; but it does not vest
jurisdiction, as jurisdiction is vested
in the court by the law. Thus, the
failure to raise the issue as to WON
there has been a valid complaint
filed by the offended party at the
trial court is a waiver of the issue.
The complaint is only a condition
precedent for the exercise by proper
authorities of the power to
prosecute.
Offended parties who can file complaint
In adultery and concubinage The
CRIMINAL PROCEDURE
offended spouse. Both guilty parties
should be included if both are alive.
Offended party in oral defamation
can only be brought upon instance and
upon complaint of the offended party.
4. Effect of
a. Death of offended party
Once a complaint is filed, the will of the
offended party is ascertained and the
action proceeds. Death after filing the
complaint would not deprive the court
of the jurisdiction to try the case
The State shall initiate the action on
behalf of the offended party, in case of
his death/incapacity and he has no
known
parents/grandparents/guardians.
In adultery/concubinage, such death
does not extinguish the criminal liability
of accused.
b. Desistance by offended party
It does not bar the People of the
Philippines from prosecuting the
criminal action, but it operates as a
waiver of the right to pursue civil
indemnity.
An affidavit of desistance cannot justify
dismissal of the complaint if made after
(and not before) the institution of the
criminal action.
Page 270 of 370
REVIEWER IN REMEDIAL LAW
c. Pardon by offended party
In rape, seduction, abduction and acts
of lasciviousness of a minor The
pardon will be effective if given by both
parents and the offended party.
In seduction, abduction and acts of
lasciviousness - Express pardon by the
offended party, parents, grandparents
or guardian will prevent prosecution.
[Rule 110, Sec. 5]
The parents/grandparents/guardian of
the offended minor (in that order)
cannot extend a valid pardon without
conformity of the offended party, even if
the latter is a minor. [US v. Luna (1902)]
If the offended woman is of age and not
incapacitated, only she can extend a
valid pardon which would absolve the
offender.
General rule: Pardon must be made
before the filing of the criminal
complaint in court. (except in rape
where marriage between the offender
and the offended party would be
effective as pardon even when the
offender has already commenced
serving his sentence)
If there are more than one accused, the
pardon must be extended to all
offenders.
Marriage between offender and
offended party.
Pardon or desistance extinguished civil
liability
Pardon or express condonation has the
effect of waiving the civil liability
with regard to the interest of the
injured party. For liability arising
from an offense is extinguished in
the same manner as other
obligations.
5. Complaint or information (1999
bar)
a. Complaint defined
Definition: A sworn written statement
charging a person with an offense,
subscribed by the offended party, any
peace officer or other public officer
charged with the enforcement of the law
violated. [Rule 110, Sec. 3]
Persons authorized to file the complaint:
offended party
any peace officer
other public officer charged with the
enforcement of the law violated
Complaint refers to private crimes
Chapter 5: Prosecution of Offenses
Criminal cases under the Revised Rules
on Summary Procedure shall be either
by complaint or by information;
provided that in MM and in chartered
cities the criminal action may only be
commenced by the filing of information
(which means by the prosecutor), except
when the offense cannot be prosecuted
de oficio.
The complaint must be under oath. But
lack of oath is not a formal defect and
will not invalidate a judgment.
b. Information defined
Definition: An accusation in writing,
charging a person with an offense,
subscribed by the prosecutor and filed
with the court. [Rule 110, Sec. 4]
It is filed by the prosecutor and need
not be under oath. But it must be
signed and subscribed by the by the
fiscal/prosecutor.
What the prosecutor signs under oath is
certification that he has conducted
the required preliminary
investigation (PI). Lack of
CRIMINAL PROCEDURE
certification does not invalidate
judgment. [People v. Bulaong (1981)]
Information is valid when signed by
prosecutor who has authority to
conduct PI of the offense committed
within his jurisdiction.
Information refers to public crimes.
The "complaint" referred to in Rule 110
contemplates one filed in court, not with
the fiscal. In that case, the proceeding
must be started by the aggrieved party
himself.
For as a general rule, a criminal action
is commenced by complaint or
information, both of which are filed in
court. In case of a complaint, it must be
filed by the offended party; with respect
to an information, it is the fiscal who
files it.
But a "complaint" filed with the fiscal
prior to a judicial action may be filed by
any competent person. [Ebarle v.
Sucaldito (1987)]
c. Form & Substance
Sufficiency of complaint/information
A complaint or information is sufficient
if it states the name of the accused;
the designation of the offense given
by the statute, the acts or omissions
complained of as constituting the
offense; the name of the offended
party; the approximate date of the
commission of the offense; and the
Page 271 of 370
REVIEWER IN REMEDIAL LAW
place where the offense was
committed. [Rule 110, Sec. 6]
Name of the accused
It must include the name and surname
of the accused, as well as any
appellation or nickname by which
he has been or is known.
If the name cannot be ascertained, he
must be described under a fictitious
name with a statement that his true
name is unknown. His true name
will be inserted if eventually
disclosed or appears in some
manner to the court. [Rule 110, Sec.
7]
If there are more than 1 accused, name
all of them. [Rule 110, Sec. 6]
Designation of the offense
Aver the acts and omissions
constituting the offense. Specify the
qualifying and aggravating
circumstances. [Rule 110, Sec. 8]
This is a procedural requirement to
safeguard the right of the accused to
be informed of the nature and cause
of the accusation against him. An
information is legally viable as long
as it distinctly states the statutory
designation of the offense and the
acts or omissions thereof.
In case of conflict between the
designation of the crime and the
recital of facts constituting the
offense, the latter prevails over the
former.
Cause of accusation
Purpose
o To enable a person of common
understanding to know what
offense is intended to be
charged;
o To enable the court to
pronounce proper judgment.
Allegations required to safeguard right
to be informed
o Allegations must be in ordinary
or concise language, sufficient to
enable a person of common
understanding to know what
offense is being charged.
o This must be done both for the
offense charged and the
circumstances involved in its
commission. [Rule 110, Sec. 9]
Qualifying and aggravating
circumstances must be alleged
Under the 2000 Rules of Criminal
Procedure [Rule 110, Sec. 8],
aggravating circumstances must be
Chapter 5: Prosecution of Offenses
specified in the information,
otherwise they are not to be
considered even if proven during the
trial.
What to allege
Where law prescribes exceptions
o General rule: Where the law
alleged to have been violated
prohibits generally acts therein
defined and is intended to apply
to all persons indiscriminately,
but prescribes certain
limitations/exceptions from its
violation, the
indictment/information is
sufficient if it alleges facts which
the offender did as constituting
a violation of law, without
explicitly negating the exception,
as the exception is a matter of
defense which the accused has
to prove.
o Exception: Where the statute
alleged to have been violated
applies only to specific classes of
persons and special conditions
CRIMINAL PROCEDURE
and the exemptions from its
violation are so incorporated in
the language defining the crime
that the ingredients of the
offense cannot be accurately and
clearly set forth if the exemption
is omitted, then the indictment
must show that the accused
does not fall within the
exemptions.
Where exceptions form as ingredients of
offense
If the exception is needed for defining
the offense, then the information
should negate the exception. [US v.
Chan Toco (1908)]
Where complex crime is charged
o Where what is alleged in the
information is a complex crime
and the evidence fails to support
the charge as to one of the
component offenses, the
defendant can only be convicted
of the offense proven.
Place of commission of offense
o General rule: It is sufficient if it
can be understood that the
offense (or some of its essential
ingredients) was committed
within jurisdiction of the court.
o Exception: If the particular place
where it was committed:
Page 272 of 370
REVIEWER IN REMEDIAL LAW
Constitutes an essential
element of the offense
charged;
Is necessary for its
identification.
Time of commission of the offense
General rule: The precise date is not
necessary.
Exception: When the date is a material
ingredient of the offense.
The determinative factor in the
resolution of the question involving
a variance between allegation and
proof in respect of the date of the
crime is the element of surprise on
the part of the accused and his
inability to defend himself properly.
o Need not be exact
As long as the alleged date is not
so remote or far removed from
the actual date so as to surprise
and prejudice the accused, then
the information is valid.
o When date is so remote: defective
The allegation in the information
of on or about the year 1992
is defective as it violates Rule
110, Sec. 11 and the accuseds
right to be informed of the
nature and cause of the
accusation against him, because
the phrase not only includes 12
months of the year 1992 but
also years prior and subsequent
to 1992.
o Remedy in case of defect in
averment of time
The remedy against an
indictment that fails to allege the
time of commission of the
offense with sufficient
definiteness is a motion for a bill
of particulars under Rule 116,
Sec. 6.
The accused may also file a MTQ
on the ground that allegations
are so vague and the time of
commission of the offense so
remote that he is denied due
process and the right to be
informed of the accusation
against him. But defect in the
date is not a ground for MTQ
under Rule 116.
Name of the offended party [Rule 110,
Sec. 12]
If an offense against person: Name and
surname; nickname/appellation;
Chapter 5: Prosecution of Offenses
fictitious name, if real name is
unknown.
If an offense against property:
o If name is unknown, particularly
describe the property to identify
the offense;
o If the name is later known,
insert it;
o If a juridical person, name or
known name; without need to
aver that it is juridical.
Where the name of the injured party is
necessary as matter of essential
description of the crime charged, the
complaint must invest such person
with individuality by either naming
him or alleging that his name is
unknown.
It is elementary that in crimes against
property, ownership must be alleged
as matter essential to the proper
description of the offense. [US v.
Lahoylahoy (1918)]
Duplicity of offenses [Rule 110, Sec. 13]
General rule: The information must
CRIMINAL PROCEDURE
charge only one offense.
Exception: When the law prescribes a
single punishment for various
offenses.
Purpose:
o To give the accused the
necessary knowledge of the
charge to enable him to prepare
his defense. Hence, when an
information charges more than
one offense, the accused may file
a MTQ on the ground of
duplicity of offenses.
Several modes of committing offense not
duplicitous
In case of crimes susceptible of being
committed in various modes, the
allegations in the information of the
various ways of committing the
offense would be regarded as a
description of only one offense and
information is not rendered
defective.
Exception
Complex crimes
Special complex crimes
Continuous crimes
Crimes susceptible of being
committed in various modes
Crimes which another offense is
an ingredient [People v.
Camerino (1960)]
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REVIEWER IN REMEDIAL LAW
d. Amendment or substitution [Rule 110,
Sec. 14] (2001 Bar)
Amendments in form and substance
before plea
General rule: It must be made before
the accused enters his plea.
Exception: If the amendment
downgrades the nature of the
offense charged in, or excludes any
accused from, the
complaint/information, it can be
made only upon motion of the
prosecutor, with notice to the
offended party and with leave of
court.
Substantial amendments after plea
proscribed
Unlike formal amendments, substantial
amendments cannot be introduced
after plea. [People v. Zulueta (1951)]
Substantial matter in a complaint is the
recital of facts constituting the
offense charged and determinative of
the jurisdiction of the court. All
other matters are merely of form.
[Almeda v. Villaluz (1975)]
Chapter 5: Prosecution of Offenses
6. Place where action is to be
instituted (1997 bar)
a. Venue of criminal actions shall be:
in the court of the municipality or
territory;
where the offense was committed; or
where any of its essential ingredients
occurred. [Rule 110, Sec. 15(a)]
b. How venue or jurisdiction determined
Venue in criminal cases is
jurisdictional, being an essential
element of jurisdiction.
One cannot be held to answer for any
crime committed by him except in the
jurisdiction where it was committed or
where an essential ingredient thereof
took place. The place where the accused
was arrested is of no moment. [People v.
Enriquez]
c. Where crime is continuing
A person charged with a transitory
crime may be validly tried in any
municipality or province where the

CRIMINAL PROCEDURE
offense was in part committed. [People
Formal amendments after plea v. Gorospe (1984)]
It may be made after plea and during
trial; but it should not scause d. Libel cases
prejudice to the rights of the Action to be instituted and filed in the
accused. court of the province or city where the
The test as to WON a defendant is libelous article is printed and first
prejudiced by the amendment of an published.
information is If a private individual, action may also
o WON a defense under the be filed in the province where he
information as it originally stood actually resided at the time of the
would be available after the commission of the offense. If a public
amendment is made, and officer, action may be filed in the court
o WON any evidence defendant of the province or city where he held
might have would be equally office. [Art 360, RPC]
applicable to the information in
the one form as in the other. e. Offense committed on railroad
[People v. Casey (1981)] Action to be instituted and filed in the
court of any municipality or territory
AMENDMENT SUBSTITUTION
where said train, aircraft or vehicle
Formal or Substantial Substantial change
changes form original
passed thru, including place of
Can be effected Must be with leave of departure or arrival. [Rule 110, Sec.
without leave of court court 15(b)]
Only as to form, there Another PI is entailed Rule applies only when the crime was
is no need for another and accused has to committed in the COURSE of the trip
PI and retaking of plea plead anew
Amended information Involves a different f. Offense committed on a vessel
refers to the same offense which does not Action may be instituted and tried
offense charged in the include those provided in the court of the first port of entry
original information or in the original charge; or any municipality or territory
to an offense which is cannot invoke double
where the vessel passed during such
included in the jeopardy
original charge; can voyage, subject to generally
invoke double accepted principles of international
jeopardy (2002 Bar) law [Rule 110, Sec. 15(c)]

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REVIEWER IN REMEDIAL LAW
g. Offense committed outside the
Philippines
Cognizable by the court where the
criminal action is first filed [Rule 110,
Sec. 15(d)]
7. Intervention of the offended party
[Rule 110, Sec. 16]
General rule: An offended party has the
right to intervene in the prosecution of a
crime.
Exception:
1) Where, from the nature of the
crime and the law defining and
punishing it, no civil liability
arises in favor of a private
offended party.
2) Where, from the nature of the
offense, the private offended
party is entitled to civil
indemnity arising therefrom but
he has waived the same or has
expressly reserved his right to
institute a separate civil action
or he has already instituted
such action.
3) Offended party has already
instituted action
Any move on the part of the
complainant or offended party to
dismiss the criminal case, even if
without objection of the accused,
should first be referred to the
prosecuting fiscal for his own view on
the matter. He controls the prosecution
of the case and may have reasons why
the case should not be dismissed.
[Republic v. Sunga (1988)]
When private prosecutor is allowed to
intervene: [A.M. No. 02-2-07-SC]
All criminal actions either commenced
by complaint or by information shall
be prosecuted under the direction
and control of a public prosecutor.
In case of heavy work schedule of the
public prosecutor or in the event of
lack of public prosecutors, the
private prosecutor may be
authorized in writing by the Chief of
the Prosecution Office or the
Regional State Prosecutor to
prosecute the case subject to the
approval of the court.
Chapter 5: Prosecution of Offenses
B. PROSECUTION OF CIVIL ACTION
1. In general
a. How instituted
General rule: When a criminal action is
instituted, the civil action for the
recovery of damages is deemed
instituted with the criminal action. [Rule
111, Sec. 1]
Exception: If the offended party:
Waives the civil action;
Institutes the civil action prior to the
criminal action.
Reserves the right to institute it
separately;
o Exception to this exception:
Claims arising out of a
dishonored check under BP
22 where no reservation to
file such civil action
separately shall be allowed.
(2001 Bar)
Claims arising from an
offense which is cognizable
by the Sandiganbayan. [Sec.
CRIMINAL PROCEDURE
4, PD 1606, as amended by
RA 8249]
An offended party loses his right to
intervene in the prosecution of a
criminal case, not only when he has
waived the civil action or expressly
reserved his right to institute, but also
when he has actually instituted the civil
action. For by either of such actions his
interest in the criminal case has
disappeared. [Garcia v. Florido (1973)]
b. When to make a reservation to file civil
action; exception
The reservation of the right to institute
separately the civil action shall be made
before the prosecution starts presenting
its evidence and under circumstances
affording the offended party a
reasonable opportunity to make such
reservation.
Procedure for making the reservation:
Filing a manifestation in the criminal
case that the offended party is
reserving his right to file a separate
civil action;
Filing the separate civil action and
informing the court trying the
criminal case that the offended
party has filed a separate civil
action.
The rule requiring reservation does not
apply to Art. 32-34 and 2176, CC.
These civil actions can be filed and
Page 275 of 370
REVIEWER IN REMEDIAL LAW
prosecuted independently of the
criminal action.
No counterclaim, cross-claim or 3rd-
party complaint may be filed by the
accused in the criminal case, but any
cause of action which could have been
the subject thereof may be litigated in a
separate civil action. [Rule 111, Sec. 1]
2. Civil liability
a. Under the RPC [Art. 100-103]
Every person criminally liable for a felony
is also civilly liable. [Art. 100, RPC]
The exemption from criminal liability
under Article 12 and 11, RPC does not
include exemption from civil liability. [Art.
101, RPC]
In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly
liable for crimes committed in their
establishments, in all cases where a
violation of municipal ordinances or some
general or special police regulation shall
have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for:
the restitution of goods taken by robbery
or theft within their houses from
guests lodging therein, or
for the payment of the value thereof,
provided that such guests shall have
notified in advance the innkeeper
himself, or the person representing
him, of the deposit of such goods
within the inn; and
shall furthermore have followed the
directions which such innkeeper or
his representative may have given
them with respect to the care and
vigilance over such goods.
No liability shall attach in case of robbery
with violence against or intimidation
of persons unless committed by the
innkeeper's employees. [Art. 102, RPC]
The subsidiary liability established in the
next preceding article shall also apply to
employers, teachers, persons, and
corporations engaged in any kind of
industry for felonies committed by their
servants, pupils, workmen, apprentices,
or employees in the discharge of their
duties. [Art 103, RPC]
b. Under the Civil Code [Art. 32, 33, 34, 2176]
Civil liability arising from other sources of
obligations [Art. 32-34, 2176] are not
deemed instituted and may be prosecuted
even without reservation.
In the cases provided in Articles 32
(violation or obstruction of a persons
rights and liberties), 33 (defamation,
Chapter 5: Prosecution of Offenses
fraud, physical injuries), 34 (failure of
police to render aid or protection) and
2176 (quasi-delicts) of the Civil Code of
the Philippines, the independent civil
action may be brought by the offended
party.
It shall proceed independently of the
criminal action and shall require only a
preponderance of evidence. In no case,
however, may the offended party recover
damages twice for the same act or
omission charged in the criminal action.
[Rule 111, sec 3]
Damages must be specified in the
complaint or information, otherwise the
court will not acquire jurisdiction over
such other damages.
c. Civil action deemed instituted in criminal
action
Only civil liability arising from the crime
charged as a felony is deemed instituted
with the criminal action.
Does not include civil liability that the
offended party waives, reserves or those
instituted prior to the criminal action.
d. Filing fees of civil action deemed instituted
CRIMINAL PROCEDURE
in criminal action
General Rule: the actual damages claimed
or recovered by the offended party are not
included in the computation of the filing
fees. [Rule 111, Sec. 1]
When the amount of damages, other than
actual, is specified in the complaint or
information filed in court, then the
corresponding filing fees shall be paid by
the offended party upon the filing thereof
in court for trial; and
In any other casei.e., when the amount
of damages is not so alleged in the
complaint or information filed in court,
the corresponding filing fees need not be
paid and shall simply constitute a first
lien on the judgment, except on an award
for actual damages. [General v. Claravall
(1991)]
Except: in criminal actions for violation of
BP22, the amount of the check involved
shall be considered as the actual damages
for which no separate civil action is
allowed.
e. Civil liability determined in criminal action
Where the trial court awards indemnity in
the criminal case to an offended party
who has made a reservation to institute a
separate civil action to recover such
indemnity, such portion of the decision is
in excess of the TCs jurisdiction and
cannot constitute res judicata to a civil
action thereafter filed by the offended
Page 276 of 370
REVIEWER IN REMEDIAL LAW
party for civil damages arising from the
criminal act. [Tactaquin v. Palileo (1967)]
f. Accused cannot interpose counterclaims
Expressly prohibited is the filing of
counterclaims, cross-claims, or third-
party complaints by the accused even if
the civil action is included in the criminal
action since that does not detract from the
fact that the proceeding is criminal in
nature.
The said claims must be litigated in a
separate action. [Rule 111, Sec. 1;
Casupanan, et al. v. Laroya (2002)]
3. Suspension of civil action
a. Civil actions which are suspended or
joined in the criminal action
The civil action which should be
suspended after the institution of the
criminal action is that arising from delict
or crime.
Civil actions mentioned in Sec. 3 Rule 111
under Arts. 32-34 and 2176 of the Civil
Code are exempted from the rule that
after a criminal action has been
commenced, the civil action which has
been reserved cannot be instituted until
final judgment has been rendered in the
criminal action.
b. Effect of acquittal of accused (2002 Bar)
Law recognizes two kinds of acquittal:
Acquittal on the ground that the accused
is not the author of the act or
omission complained of.
o EFFECT: closes the door to civil
liability
Acquittal based on reasonable doubt on
the guilt of accused.
o EFFECT: Not exempt from liability
which may be proved by
preponderance of evidence
Civil action based on delict shall be
deemed extinguished if there is a finding
in a final judgment in the criminal action
that the act or omission from which the
civil liability may arise did not exist
c. Effect of affidavit of desistance
It does not bar the people from
prosecuting the criminal action but it
operates as a waiver of the right to pursue
civil indemnity
d. Suspension due to prejudicial question
(1999 Bar)
Elements of prejudicial question
General Rule: a prejudicial question is
that which arises in a case the
resolution of which is a logical
Chapter 5: Prosecution of Offenses
antecedent of the issue involved
therein, and the cognizance of which
pertains to another tribunal.
The prejudicial question must be
determinative of the case before the
court but the jurisdiction to try and
resolve the question must be lodged in
another court or tribunal.
It is a question based on a fact distinct
and separate from the crime but so
intimately connected with it that it
determines the guilt or innocence of
the accused. [Ras v. Rasul (1980)]
Effect
General rule: Where both a civil and a
criminal case arising from the same
facts are filed in court, the criminal
case takes precedence.
Exception: If there exists a prejudicial
question which should be resolved
first before an action could be taken
in the criminal case.
Requisites [Rule 111, Sec. 7]
Previously initiated civil action involves an
issue similar or intimately related to
the issue raised in the subsequent
criminal action;
CRIMINAL PROCEDURE
The resolution of such issue determines
WON the criminal action may proceed.
Where to file petition:
Office of the prosecutor;
Court conducting the PI.
4. Effect of death of accused on civil
action [Rule 111, Sec. 4]
If death is before arraignment Dismissal
of case without prejudice to filing of civil
action against estate of the deceased.
If death is after arraignment and during
pendency of criminal action
Extinguishes civil liability.
Exception: if civil liability is predicated on
other sources of obligations, as with
independent civil actions, recovery
may still be made against the estate of
the deceased or legal representative
after proper substitution.
If death is while appeal is pending
extinguishes criminal liability and civil
liability based thereon.
5. Effect of judgment in civil case on
criminal action [Rule 111, Sec. 5]
If the civil action judgment absolves the
defendant, it does not bar criminal action
against the defendant for the same act or
omission.
Page 277 of 370
REVIEWER IN REMEDIAL LAW Chapter 6: Preliminary Investigation

Chapter 6: Preliminary information is filed for an offense where

Investigation the penalty prescribed by law is at least
[Rule 112, as amended by AM 05-8-26-SC 4 years, 2 months and 1 day, without
(effective October 3, 2005)] regard to the fine. [Rule 112, Sec. 1]
Exception: When a person is lawfully
arrested without a warrant involving an
A. GENERAL PRINCIPLES
1. DEFINITION offense that requires a PI, a
2. WHEN REQUIRED complaint/information may be filed
3. NATURE without conducting the PI if the
4. PURPOSE necessary inquest is conducted. In the
B. RIGHT TO PRELIMINARY INVESTIGATION absence or unavailability of an inquest
C. WHO MAY CONDUCT PI prosecutor, the complaint may be filed
1. GENERALLY by the offended party or by a peace
2. COMELEC, WHEN VESTED officer directly with the proper court on
3. OMBUDSMAN
the basis of the affidavit of the offended
D. PROCEDURE TO BE OBSERVED BY
PROSECUTORS IN PI party or arresting officer or person.
1. FILING OF THE COMPLAINT However, before the complaint/
2. ACTION OF THE INVESTIGATING information is filed, the person
OFFICER arrested may ask for a PI, but he
3. DEFENDANTS COUNTER-AFFIDAVIT must sign a waiver of the provisions
4. HEARING of Art. 125, RPC in the presence of
5. RESOLUTION his counsel. Notwithstanding the
6. REVIEW waiver, he may apply for bail and
7. FILING OF INFORMATION/COMPLAINT
the investigation must be
IN COURT
E. RIGHTS OF RESPONDENT IN A PI terminated within 15 days from its
F. DUTIES OF INVESTIGATING FISCAL OR inception.

CRIMINAL PROCEDURE
PROSECUTOR After the filing of the complaint/
1. DETERMINE WON THERE IS information in court without a PI,
PROBABLE CAUSE the accused may within 5 days from
2. MUST INCLUDE ALL PERSONS GUILTY the time he learns of its filing, ask
OF OFFENSE for a PI with the same right to
3. PROSECUTOR CANNOT FILE adduce evidence in his defense as
INFORMATION WITHOUT PRIOR
provided in Rule 112. [Rule 112, Sec.
APPROVAL OF SUPERIOR
4. APPEAL TO SECRETARY OF JUSTICE 6]
G. WHEN WARRANT OF ARREST MAY ISSUE
H. WHEN ACCUSED LAWFULLY ARRESTED 3. Nature
WITHOUT WARRANT
I. RECORD OF PI It is a statutory right in those instances
J. CASES NOT REQUIRING PRELIMINARY where it is required, and to withhold it
INVESTIGATION NOR COVERED BY RULE would violate the constitutional right to
ON SUMMARY PROCEDURE
due process. [People v. Oandasa (1968)]
It is part of the guarantees of freedom
A. GENERAL PRINCIPLES and fairplay. [La Chemise Lacoste, S.A.
v. Fernandez (1984)]
1. Definition Preliminary A PI is merely inquisitorial, and it is
investigation is: often the only means of discovering the
persons who may reasonably be
an inquiry or proceeding to determine charged with a crime, to enable the
whether there is sufficient ground to prosecutor to prepare his complaint or
engender a well-founded belief information. It is not a trial of the case
that a crime has been committed and on the merits and does not place the
the respondent is persons against whom it is taken in
probably guilty thereof, and jeopardy.
should be held for trial. [Rule 112, Sec. It is not the occasion for the full
1] and exhaustive display of the parties
evidence, it is for the presentation of
2. When required such evidence as may engender a
well-grounded belief that an offense
General rule: PI is required to be has been committed and that the
conducted before a complaint/ accused is probably guilty thereof.

Page 278 of 370

REVIEWER IN REMEDIAL LAW
[Raro v. Sandiganbayan, et al.
(2000)]
A PI takes on an adversarial quality,
because a previous inquiry of some
kind, before an accused person is
placed on trial. [Raro v. SB, et al.
(2000)]
4. Purpose:
To inquire concerning the commission
of the crime and the connection of
accused with it, in order that he may be
informed of the nature and character of
the crime charged against him, and if
there is probable cause in believing him
guilty;
To preserve the evidence and keep the
witnesses within the control of the
state;
To determine the amount of bail, if the
offense is bailable;
Principally, to determine WON a crime
has been committed and WON there is
probable cause to believe that the
accused is guilty. [Raro v. SB (2000)]
To secure the innocent against hasty,
malicious and oppressive prosecution,
and to protect him from an open and
public accusation of a crime, from the
trouble, expense, anxiety of a public
trial, and also protect the state from
useless and expensive trials. [Tandoc v.
Resultan (1989)]
Absence of PI does not:
Impair validity of the information;
Render it defective;
Affect the courts jurisdiction;
Constitute ground for quashing the
information.
B. RIGHT TO PRELIMINARY
INVESTIGATION
The right to preliminary investigation is
a personal right which the accused may
waive either expressly or by implication.
When the accused waives his right to
preliminary investigation, the fiscal may
forthwith file the corresponding
information with the proper court.
[People v. Perez (1960)]
The right is deemed waived by:
the failure to claim it before the accused
pleaded [People v. Magpale (1940)]
silence of the accused [People v. Mijares
(1951)]
failure to request it within 5 days from
time he learns of the filing of the
complaint/information
Chapter 6: Preliminary Investigation
when accused already posted bond for
his release and subsequently went
to trial without claiming his right to
PI [People v. Selfaison (1961)]
a fortiori absence of the accused [Rule
112, Sec. 3(d); de Guzman v. People
and Sandiganbayan (1982)]
C. WHO MAY CONDUCT PI
1. Generally
Provincial/city prosecutors and their
assistants;
National and regional state prosecutors;
Other officers as may be authorized by
law.
The authority shall include crimes
cognizable by the proper courts in their
respective jurisdiction. [Rule 112, Sec. 2
as amended by A.M. No. 05-8-26-SC]
Note that RTC judges have NO power to
conduct PI; and MTC judges cannot
conduct PI anymore after A.M. No. 05-
8-26-SC eliminated judges of the MTC
and MCTC from those authorized to
CRIMINAL PROCEDURE
conduct a PI effective October 3, 2005.
2. COMELEC, when vested
COMELEC may conduct investigation
as regards election offenses. [Art. 9-C,
Sec. 2(6), Consti; Sec. 265, Omnibus
Election Code]
3. Ombudsman
The Ombudsman and his Deputies, as
protectors of the people, shall act
promptly on complaints filed in any
form or manner against public officials
or employees of the Government, or any
subdivision, agency or instrumentality
thereof, including GOCCs and shall, in
appropriate cases, notify the
complainants of the action taken and
the result thereof. [Art. 11, Sec. 12,
Consti]
This includes
unsigned or unverified complaint
testimony given at a fact-finding
investigation
charges made in a pleading in a case in
court
The Ombudsman is authorized to
conduct preliminary investigation and
to prosecute all criminal cases involving
public officers and employees, not only
those within the jurisdiction of the
Sandiganbayan, but also those within
Page 279 of 370
REVIEWER IN REMEDIAL LAW
the jurisdiction of regular courts as
well.
If the offense comes within the
jurisdiction of regular courts, the
Ombudsman may endorse the same to,
and deputize the provincial/ city
prosecutor who has jurisdiction over the
case for proper preliminary
investigation.
If the offense is cognizable by the
Sandiganbayan, the preliminary
investigation has to be conducted
pursuant to Rule 11 of the Rules of
Procedure of the Office of the
Ombudsman requiring that the
complaint must be under oath.
Otherwise, if the complaint is not under
oath or is based only on official reports,
the investigating officer shall require the
complainant or witness to execute
affidavits to substantiate the complaint.
If the complaint is not under oath, the
respondent must question the validity of
such complaint; otherwise, he will be
deemed to have waived the defect.
D. PROCEDURE TO BE OBSERVED
BY PROSECUTORS IN PI
1. Filing of the complaint [Rule 112,
Sec. 3(a)]
The complaint must state the
respondents address. It must include
the affidavits of complainant and the
witnesses, and other documents to
establish probable cause.
It must be in 2 copies, and subscribed
and sworn to before a prosecutor or
government official authorized to
administer oath or notary public.
2. Action of the investigating officer
[Rule 112, Sec. 3(b)]
Investigating officer must act within 10
days after the filing of the complaint. He
will either:
Dismiss - If he finds no ground to
continue investigation;
Issue a subpoena to the respondent,
attaching the complaint and other
documents.
o If subpoena is not possible, the
investigating officer shall decide
based on what complainant
presented.
Respondent has the right to examine
the evidence submitted by
Chapter 6: Preliminary Investigation
complainant, and copy evidence at
his expense.
3. Defendants counter-affidavit
Must be made within 10 days from
receipt of complaint, and must comply
with the same requirements as a
complaint. [Rule 112, Sec. 3(c)]
If not made within 10 days, the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant [Rule 112,
Sec. 3(d)]
4. Hearing [Rule 112, Sec. 3(e)]
The investigator must conduct a
hearing within 10 days from receipt of
the counter-affidavit. The hearing must
be finished in 5 days.
Hearing is conducted only if there are
such facts and issues to be clarified
from a party or a witness.
Parties may be present evidence, but
they have no right to examine or cross-
CRIMINAL PROCEDURE
examine. Questions of parties shall be
submitted to the investigating officer.
Within 10 days, the officer shall
determine WON there is sufficient
ground to hold respondent for trial.
5. Resolution [Rule 112, Sec. 4]
If the investigating officer finds no
probable cause, he will dismiss the case.
Otherwise, he will prepare an information
and resolution.
He certifies in the information that he is
an authorized officer; that he personally
examined the complainant and witnesses;
that there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
that the accused was informed of the
complaint and of the evidence submitted
against him; and that he was given an
opportunity to submit controverting
evidence.
6. Review [Rule 112, Sec. 4]
Within 5 days from resolution, the
investigating officer will forward the case
to the prosecutor or the ombudsman.
Within 10 days from receipt of the
resolution, the prosecutor/ombudsman
will act on the case.
The prosecutor/ombudsman has to
authorize/approve the filing of an
information by the investigating officer.
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REVIEWER IN REMEDIAL LAW
In case of dismissal by investigating
officer, the prosecutor/ombudsman, if he
disagrees, may file the information himself
or any deputy or order any prosecutor to
do so without conducting a new PI.
The DOJ Secretary may file the
information or dismiss the information
filed by the prosecutor.
7. Filing of information/complaint
in court [Rule 112, Sec. 5]
Within 10 days from the filing of
complaint/information, the judge may:
Dismiss the case, if he thinks there is no
PC.
Otherwise, issue a warrant of arrest (if
RTC).
o Warrant of arrest is not necessary
when respondent is already
detained or if the offense is
punishable by fine only.
Order presentation of additional evidence
within 5 days from notice and issue, if
he has doubt regarding the existence
of PC. He must resolve it within 30
days from filing of complaint/
information.
E. RIGHTS OF RESPONDENT IN A PI
To submit counter-affidavit
To examine the evidence submitted by the
complainant
To be present in the clarificatory hearing
The respondent need not be present in the
PI
F. DUTIES OF INVESTIGATING
FISCAL OR PROSECUTOR
1. Determine WON there is probable
cause
PROBABLE CAUSE For purposes of
filing an information by the prosecutor, it
is the existence of such facts and
circumstances as would excite the belief,
in a reasonable mind, that a crime has
been committed and the respondent is
probably guilty of the crime. [Raro vs SB
(2000); De Ocampo v. Sec. of Justice
(2006)]
Probable cause is based neither on clear
and convincing evidence of guilt nor
evidence establishing absolute certainty of
guilt. It is merely based on opinion and
reasonable belief, and so it is enough that
there exists such state of facts as would
lead a person of ordinary caution and
prudence to believe, or entertain an
honest or strong suspicion, that a thing is
Chapter 6: Preliminary Investigation
so. [Pimentel, Jr., v. Commission on
Elections (1988)]
Probable cause and prima facie evidence
are different. Prima facie evidence denotes
evidence which, if unexplained /
uncontradicted, is sufficient to sustain a
proposition that would counterbalance the
presumption of innocence and warrant
the conviction of the accused.
2. Must include all persons guilty of
offense
in case of grave abuse of discretion,
offended party may file an action for
mandamus to compel the prosecutor to
file information
offended party may lodge a new complaint
against the offenders and have a new
examination conducted as required by law
offended party may institute
administrative charges against the erring
prosecutor, or a criminal complaint under
Article 208 of the Revised Penal Code, or a
civil action for damages under Article 27
of the Civil Code
offended party may secure the
CRIMINAL PROCEDURE
appointment of another prosecutor
offended party may institute another
criminal action if no double jeopardy is
involved
offended party may appeal the ruling of
the prosecutor to the Secretary of Justice
3. Prosecutor cannot file
information without prior
approval of superior
GENERAL RULE: No complaint or
information may be filed or dismissed by
an investigating prosecutor without the
prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor.
Absent any convincing evidence to the
contrary, the certification that the filing of
the information is with prior authority
and approval of the city prosecutor is
presumed regular and should be upheld.
4. Appeal to Secretary of Justice
Applicable regulations are DOJ Order No.
70 (2000), otherwise known as the NPS
Rule on Appeal, Department Circular No.
70-A (2000; Delegation of Authority to
Regional State Prosecutors to Resolve
Appeals in Certain Cases) and DOJ Order
No. 223 (1993) insofar as it is not
inconsistent with the first.
Under DOJ Order No. 70, appeal must be
taken to the DOJ Secretary 15 days from
receipt of the resolution or the decision on
Page 281 of 370
REVIEWER IN REMEDIAL LAW
the motion for reconsideration. The filing
of an appeal will not stay the filing of an
information on the basis of the finding of
probable cause in the assailed decision,
but the appellant and prosecutor have the
duty to ensure that court proceedings are
held in abeyance during the pendency of
the appeal.
DOJ Circular No. 70-A now authorizes
Regional State Prosecutors to recognize
and resolve with finality all petitions for
review of resolutions of Provincial/City
Prosecutors in cases cognizable by the
MTC. The Regional State Prosecutor shall
also exercise immediate administrative
supervision and control over all
Provincial/City Prosecutors and their
respective staff within his Region.
G. WHEN WARRANT OF ARREST
MAY ISSUE
If the judge finds probable cause, he shall
issue a warrant of arrest, or a
commitment order if the accused has
already been arrested, and hold him for
trial.
Judges of RTC and inferior courts need
not personally examine the complainant
and his witnesses in the determination of
PC. But he must personally evaluate the
prosecutors report and other sufficient
supporting evidence, and on the basis
thereof either dismiss the case, issue a
warrant, or require further affidavits.
Warrant that is simply based on report
and recommendation of prosecution
invalid; judge must make an independent
judgment of whether or not there is
probable cause. This is because the
probable cause for the prosecutor and
judge are different:
PC for PROSECUTOR: whether or not
there is reasonable ground to believe
that the accused is guilty of the
offense charged and shoudle be held
for trial for which an information is to
be filed.
PC for JUDGE: whether or not a warrant
of arrest should be issued so that the
acused may be held in custody in
order not to frustrate the ends of
justice.
Judge may dismiss the case if the
evidence on record clearly fails to
establish a probable cause
Judge may order the prosecutor to
present evidence within 5 days from
notice and the issue may be resolved by
the court within 30 days from filing of
complaint/information.
Chapter 6: Preliminary Investigation
H. WHEN ACCUSED LAWFULLY
ARRESTED WITHOUT WARRANT
When a person is lawfully arrested w/o
warrant, a complaint/information may be
filed without need of PI, provided, that an
inquest has been conducted.
After the filing of a complaint /
information in court without a PI, the
accused may, within 5 days from the time
he learns of its filing, ask for a PI with the
same right to adduce evidence in his
defense. [Rule 112, Sec. 6; RA 7438 Sec. 2]
I. RECORD OF PI
General rule: PI record does not form part
of the case record.
Exception: The court may order the
production of the PI record (or part
thereof):
When necessary in the resolution of the
case or any incident therein;
When it is to be introduced as an evidence
in the case by the requesting party.
[Rule 112, Sec. 7]
CRIMINAL PROCEDURE
J. CASES NOT REQUIRING
PRELIMINARY INVESTIGATION
NOR COVERED BY RULE ON
SUMMARY PROCEDURE [RULE
112, SEC. 8]
For cases punishable by imprisonment of
less than 4 years, 2 months and 1 day,
filed with the prosecutor or MTC/MCTC,
Within 10 days after the filing of the
complaint/information, if the judge finds
no PC after personally evaluating the
evidence or after personally examining in
writing and under oath the complainant
and his witnesses in the form of searching
questions and answers, he shall dismiss
the same.
However, the judge may require the
submission of additional evidence within
10 days from notice, to determine further
the existence of PC.
If the judge still finds no PC despite the
additional evidence, he shall dismiss the
case within 10 days from its submission
or expiration of said period.
If the judge finds PC, he shall issue a
warrant of arrest or a commitment order
(if the accused had already been arrested)
and hold him for trial.
However, if the judge is satisfied that
there is no need to place the accused
under custody, he may issue summons
instead.
Page 282 of 370
REVIEWER IN REMEDIAL LAW
Chapter 7: Preliminary Remedies
A. BAIL
1. DEFINITION
2. PURPOSE
3. CONDITIONS OF BAIL
4. AVAILABILITY OF BAIL
5. AMOUNT OF BAIL
6. KINDS OF BAIL
7. PROCEDURAL MATTERS IN BAIL
8. ARREST OF ACCUSED OUT ON BAIL
9. BAIL REQUIRED OF WITNESSES
B. MOTION TO QUASH
1. DEFNITION
2. TIME TO FILE MTQ
3. FORM AND CONTENTS
4. GROUNDS
5. PROCEDURE UPON FILING
6. EFFECT OF ORDER GRANTING MTQ
7. FAILURE TO ASSERT GROUNDS
8. PROVISIONAL DISMISSAL
C. PROVISIONAL REMEDIES IN CRIMINAL
CASES
1. AVAILABILITY
2. ATTACHMENT
A. BAIL (2002 BAR)
1. Definition
Bail is the security given for the release
of a person in custody of the law,
furnished by him or a bondsman, to
guarantee his appearance before any
court as required under conditions
hereinafter specified. [Rule 114, Sec. 1]
Does not refer to the bondsman or
surety who furnishes the bail.
2. Purpose
Implementation of the right to bail
under the 1987 Constitution. [Art. III,
Sec. 13, Consti]
Flows from the presumption of
innocence. [Paderanga v. CA (1995)]
Delivery of the accused to others who
become entitled to his custody and
responsible for his appearance.
[Philippine Phoenix Surety
Sandiganbayan (1987)]
To secure the appearance of material
witnesses [Rule 110, Sec. 14; Rule 119;
Sec. 14]
Person under detention or legal process
may be released upon admittance to
bail. [Rule 114, Sec. 3]
It shall not constitute as a waiver of his
right to challenge the legality of his
arrest or the absence of PI. [Rule 114,
Sec. 26]
Chapter 7: Preliminary Remedies
3. Conditions of Bail
Undertaking is effective upon approval
and shall remain in force at all stages of
the case until promulgation of the RTC
judgment.
Undertaking is effective unless
cancelled
WON the case was originally filed in the
RTC
Accused shall appear before the proper
court.
Whenever required by the court or the
ROC.
This condition effectively prohibits the
right to travel of the accused.
[Silverio v. CA (1991)]
Failure of the accused to appear at the
trial shall be deemed waiver of his right
to be present.
If failure was without justification and
despite due notice.
Trial may proceed in absentia.
Bondsman shall surrender the accused
to the court for execution of final
judgment. [Rule 114, Sec. 2]
CRIMINAL PROCEDURE
The conditions must be stated in the
original papers, along with full name
and address of the accused, and the
amount of the undertaking.
The court may impose other conditions
where the likelihood of accused jumping
bail or of committing other harm to the
citizenry is feared. Examples:
Increase the amount of bail bond;
Require the accused to report
periodically and make an
accounting of his movements;
Accused might be warned that trial will
proceed in absentia [Almeda v.
Villaluz (1975)]
Arraignment of the accused is not
allowed as a condition for bail. [Lavides
v. CA (2000)]
The court cannot impose conditions
upon the bondsmen, in addition to the
obligation to deliver the accused before
v. the court. [Bandoy v. Judge of CFI
(1909)]
Bail no longer a waiver to objections
[Rule 114, Sec. 26; Yusop v.
Sandiganbayan (2001)]. Provided that
the proper objections are raised timely
(i.e., before the accused enters a plea),
applications for, or admissions to, bail
shall NOT bar the accused from:
Challenging the validity of his arrest
Challenging the legality of the warrant
for his arrest
Page 283 of 370
REVIEWER IN REMEDIAL LAW
Assailing the regularity of
preliminary investigation
Questioning the absence of
preliminary investigation
The court shall resolve the objections as
early as practicable but not later than
the start of the trial of the case.
4. Availability of bail (1999, 2006,
2008 Bar)
a. Admittance to Bail as a Matter of Right
All persons in custody shall be admitted
to bail as a matter of right:
Before or after conviction by the MTC;
Before conviction by RTC of an offense
not punishable by death, reclusion
perpetua or life imprisonment. [Rule
114, Sec. 4]
It is not necessary that there be a
formal complaint filed against him.
[Herras Teehankee v. Rovira (1945)]
Accused must be in custody
o The right to bail accrues when a
person is arrested or deprived of
his liberty. [Paderanga v. CA
(1995)]
o The Court should not even allow
a motion for bail to be set for
hearing unless it has acquired
jurisdiction over the person of
the accused and the case by its
filing in court. [Guillermo v.
Judge Reyes (1995)]
Custody, how acquired
o By virtue of a warrant or a
warrantless arrest;
o Voluntary submission to the
courts jurisdiction.
o General rule: The mere filing of
an application for bail is not
sufficient to submit to the
jurisdiction of the court.
[Santiago v. Vasquez, (1992)]
Exception: When there is an application
for bail without the personal
appearance of the accused (e.g.
when he is confined in the hospital).
[Santiago v. Vasquez (1992);
Paderanga v. CA (1995)]
b. Exceptions to the right to bail
Again, the general rule is that Bail is a
matter of right for all persons under
custody before or after conviction by the
lower courts and before conviction by
the RTC, except when:
the offense involved is a capital offense
where the evidence of guilt is strong
Chapter 7: Preliminary Remedies
the the offense involved is a capital offense
and the application for bail was
a made after the accused was
convicted by the RTC
c. Admittance to bail as discretionary
Upon conviction by the RTC of an
offense not punishable by death,
reclusion perpetua or life imprisonment:
It may be filed in and acted upon by the
RTC despite the filing of notice for
appeal, as long as original record
has not yet been transmitted to the
appellate court.
o If RTC conviction changed the
nature of the offense from non-
bailable to bailable, it can be
resolved only by the appellate
court.
If bail is granted, provisional liberty
continues under the same bail subject
to the consent of the bondsman. [Rule
114, Sec. 5]
If bail is denied by the RTC, the
accused-appellant may challenge it by
filing a motion (and not a a special civil
CRIMINAL PROCEDURE
action or a special proceeding) in the
appellate court after it has acquired
jurisdiction over the case. It shall be
treated as an incident in the appeal.
In deportation proceedings, it is the
CIDs discretion. [Harvey v. Defensor-
Santiago (1990)]
d. When right to bail not available
Capital offense or an offense punishable
by reclusion perpetua or life
imprisonment, when evidence of guilt is
strong. [Rule 114, Sec. 6]
CAPITAL OFFENSE - An offense which,
under the law existing at the time of
its commission and of the
application for admission to bail, is
punishable by death.
The capital nature of the offense is
determined by the penality prescribed
by law, not the one actually imposed
Exception: where it is established that
the accused in a murder case was
16 years old at the time the offense
was committed, the death penalty
cannot be imposed, so he may be
admitted to bail. [Bravo, Jr. v. Borja
(1985)]
Effect of abolition of death penalty:
When evidence of guilt is strong, right to
bail is still not available. [Carpio v.
Maglalang (1991)]
Page 284 of 370
REVIEWER IN REMEDIAL LAW
Prosecution has the burden of showing
that the evidence of guilt is strong. [Rule
114, Sec. 8]
Hearing on the application for bail is
mandatory. [Aurillo Jr. v. Francisco
(1994)]
Court must give reasonable notice of the
hearing to the prosecutor or require him
to submit his recommendation. [Rule
114, Sec. 18]
Despite the summary nature of the
proceeding, the prosecution must be
accorded an opportunity to
introduce ALL evidence for its
opposition to the grant of bail,
otherwise the order granting bail will
be null and void and can be set
aside by certiorari [People v. Sola, et
al. (1981)]
Furthermore, a judge who grants bail to
an accused charged with a capital
offense without the requisite notice
and hearing shall be
administratively liable. [Aguirre et
al., v. Belmonte (1994)]
If the penalty imposed by TC is
imprisonment exceeding 6 years, and
prosecution shows: [Rule 114, Sec. 5]
Recidivism, quasi-recidivism, habitual
delinquency, commission of crime
aggravated by circumstance of
reiteration;
Previously escaped from legal
confinement, evasion of sentence or
violation of conditions of bail
without valid justification;
Commission of offense while under
probation, parole or conditional
pardon;
Probability of flight;
Undue risk that he may commit another
crime during the pendency of
appeal.
e. Right to bail is not available in the
military. [Comendador v. de Villa (1991)]
f. After a judgment of conviction has
become final;
If applied for probation before finality,
he may be allowed temporary liberty
under his bail. [Rule 114, Sec. 24]
g. After the accused has commenced to
serve his sentence. [Rule 114, Sec. 24]
Note: See Appendix 1 for summary on
the Availability of Bail
Chapter 7: Preliminary Remedies
5. Amount of bail
a. Guidelines
Financial ability of the accused to give
bail;
Nature and circumstances of the
offense;
Penalty for the offense charged;
Character and reputation of the
accused;
Age and health of the accused;
Weight of evidence against the accused;
Probability of the accused appearing at
trial;
Forfeiture of other bail;
The fact that the accused was a fugitive
from justice when arrested;
Pendency of other cases where the
accused is on bail.
DOJ Department Circular No. 89 (2000
Bail Bond Guide) provides
standards and criteria for
recommendation of amount of bail
to be granted, if possible, and the
rules for the computation of bail.
CRIMINAL PROCEDURE
b. Increase or reduction of amount of bail
May be imposed by the court after the
accused is admitted to bail, and upon a
good cause.
INCREASED bail Accused may be
committed to custody if he does not
give bail in the increased amount
within a reasonable period of time.
[Rule 114, Sec. 20]
REDUCED bail Person in custody for
a period equal to or more than the
minimum of the principal penalty
prescribed for the offense charged
may be released on a reduced bond.
[Rule 114, Sec. 16]
6. Kinds of bail (1999 Bar)
a. Corporate Surety [Rule 114, Sec. 10]
By any domestic/foreign corporation
licensed as a surety and currently
authorized to act as such.
Court may not refuse corporate surety
bond and require cash bond. [Almeda v.
Villaluz (1975)]
However, the SC also held that the ROC
left to the trial judges discretion the
question of whether bail should be
posted in form of a corporate surety
bond or property bond or a cash
deposit or a personal recognizance
[Re: Judge Silverio Tayao, Makati
RTC Br.143 (1994)]
Page 285 of 370
REVIEWER IN REMEDIAL LAW
b. Property Bond [Rule 114, Sec. 11]
An undertaking constituted as a lien on
the real property given as security for
the amount of the bail.
Within 10 days after the approval of the
bond, the accused must cause the
annotation of the lien on the TCT (if
registered), or in the Registration
Books (If unregistered), and on the
corresponding real property tax
declaration. Non-compliance will
lead to the cancellation of the bond
and the re-arrest of the accused.
The surety shall be liable for estafa if
s/he sells, mortgages, or otherwise
encumbers the property bond
without express authority from the
court or before the cancellation of
the bond [Art. 316.6, Revised Penal
Code]
Qualifications of sureties: [Rule 114,
Sec. 12]
Each must be a resident owner of real
estate within the Philippines;
o Court may require that he is a
resident of the province.
[Villaseor v. Abao (1967)]
Where there is only one surety, his real
estate must be worth at least the
amount of undertaking;
If there are 2 or more sureties, each
may justify in an amount less than
that expressed in the undertaking
but the aggregate of the justified
sums must be equivalent to the
whole amount of the bail demanded.
Justification of sureties: [Rule 114, Sec.
13]
By affidavit taken before the judge that
he possesses the qualification
prescribed in the preceding section;
Describe the property given as security,
stating the nature of his title, its
encumbrances, the number and
amount of other bails entered into
by him and still undischarged, and
his other liabilities;
Court may examine the sureties upon
oath concerning their sufficiency in
such manner as it may deem
proper.
c. Cash Bond [Rule 114, Sec. 14]
Cash corresponding to the amount of
bail fixed by the court or recommended
by the prosecutor who investigated or
filed the case.
Deposited with the nearest internal
revenue collector or provincial/city/
municipal treasurer.
Chapter 7: Preliminary Remedies
The judge has no authority to receive a
deposit of cash bail.
The cash should not be kept in the
judges office, much less his own
residence. [Naui v. Mauricio]
Upon submission of a proper certificate
of deposit and a written undertaking
showing compliance with the
requirements, the accused shall be
discharged from custody.
The money deposited shall be applied to
the payment of fine and costs. Any
excess shall be returned to the accused
or to whoever made the deposit.
d. Recognizance [Rule 114, Sec. 15]
Obligation of record, entered into before
some court or magistrate duly
authorized to take it, with the condition
to do some particular act, the most
usual condition in criminal cases being
the appearance of the accused for trial.
[People v. Abner (1950)]
Effect: transfer custody of the accused
from public officials who have him in
their charge to keepers of his own
CRIMINAL PROCEDURE
selection.
Release on recognizance allowed by law
or by the ROC in the ff. cases:
In cases of violations of
municipality/city ordinances, or
light felonies, or criminal offenses
where the penalty is not higher than
arresto mayor and/or fine of P2,000
or both. [RA 6036]
Youthful offender held for physical or
mental examination, on trial or
appeal. If unable to furnish bail and
upon recommendation of DSWD or
other agencies authorized by court.
[PD 603]
Accused applying for probation before
finality of judgment, but no bail has
been filed or the accused is
incapable of filing one. [Rule 114,
Sec. 24; also PD 968]
Person in custody for a period equal to
or more than the minimum of the
principal penalty prescribed for the
offense charged, without application
of the Indeterminate Sentence Law
or any modifying circumstance.
[Rule 114, Sec. 16]
e. When bail not required
A person who has been in custody for a
period equal to or more than the
possible maximum imprisonment
prescribed for the offense charged shall
Page 286 of 370
REVIEWER IN REMEDIAL LAW
be released immediately without need
for bail
If the maximim penalty is destierro, he
shall be released after 30 days of
preventive imprisonment
The release of the accused is without
prejudice to the continuation of the
trial or of the proceedings on appeal
No bail shall be required in prosecution
of offenses covered by the Rule on
Summary Procedure, except:
When a warrant of arrest was issued for
failure of the accused to appear
whenever so required, or
When the accused:
o Is a recidivist
o Is a fugitive from justice
o Is charged with physical injuries
o does not reside in the place
where the violation of the law or
ordinance was committed
o has no no known residence
[RSP, Sec. 10, 12]
7. Procedural matters in bail (2002
Bar)
a. Where filed [Rule 114, Sec. 17]
With the court where the case is
pending;
If judge unavailable, with any
RTC/MTC judge in the
province/city/municipality.
With the RTC of the place where the
accused was arrested, if different from
the place where the case is pending.
If the judge unavailable, with any
MTC judge therein.
If the grant of bail is a matter of
discretion or bail is in the form of a
recognizance bail may be filed only in
the court where the case is pending.
But if there is no formal charge yet, it
may be filed in any court in the
province/city/municipality where he is
held. [Rule 114, Section 17, ROC]
b. Remedy when bail is denied (1998 Bar)
By special civil action in the CA.
Not in the SC. [Vide at Aleria Sr. v.
Velez (1998)]
Must be filed within 60 days from
denial. [Rule 65, Sec. 4]
BUT in cases where the bail was
filed in and denied by the RTC
acting with residual jurisdiction, the
accused-appellant may challenge it
by filing a motion (and not a a
special civil action or a special
proceeding) in the appellate court
Chapter 7: Preliminary Remedies
after the latter has acquired
jurisdiction over the case. The
motion shall then be treated as an
incident in the appeal.
c. Release on bail
Accused must be discharged upon
approval of the bail by the judge with
whom it was filed.
If bail is filed with a court other than
where the case is pending, the judge
who accepted the bail should forward it
to the court where the case is pending.
[Rule 114, Sec. 19]
If the accused attempts to depart from
the Philippines without permission of
the court, he may be re-arrested
without the need for a warrant. [Rule
114, Sec. 23]
d. Forfeiture of bail [Rule 114, Sec. 21]
If the accused failed to appear in person
as required by the court, bondsmen are
given 30 days within which to:
1) Produce the body of the principal or
give reason for the non-production.
CRIMINAL PROCEDURE
Bondsmen may:
Arrest the accused;
Cause him to be arrested by a police
officer or any other person of
suitable age or discretion upon
written authority endorsed on a
certified copy of the undertaking.
2) Explain why the accused failed to
appear.
If the bondsmen fail to do these,
judgment is rendered against them,
jointly and severally, for the amount
of the bail.
Bondsmens liability cannot be
mitigated or reduced, unless the
accused has been surrendered or is
acquitted.
e. Cancellation of bail
Upon application of the bondsmen, with
due notice to the prosecution, bail may
be cancelled upon:
Surrender of the accused;
Submission of proof of the death of
the accused.
Bail is automatically cancelled upon:
Acquittal of the accused;
Dismissal of the case;
Execution of the judgment of
conviction.
Page 287 of 370
REVIEWER IN REMEDIAL LAW Chapter 7: Preliminary Remedies

8. Arrest of accused out on bail the prosecution. [People v. Dela Rosa, et

al. (1980)]
Bondsmen can prevent accused from
leaving country by arresting him or Quashal of
Nolle prosequi
asking for him to be re-arrested by a Information
police officer upon written authority Initiated by prosecutor Initiated by accused
(Rule 114, Sec. 23) Dismissal of criminal
The accused may be prohibited from case by the Court has no authority
government before to initiate MTQ. Filing is
leaving the country during the accused is placed on made before accused
pendency of his case (PP v. Uy Tuising trial and before he is enters plea, subject to
(1935); Manotoc v. CA (1986)). If the called to plead, with exceptions
accused released on bail attempts to approval of court
depart from the Philippines without the Discontinuance in a
permission of the court where his case civil suit, leaves the
is pending, he may be re-arrested matter in the same
without warrant (Rule 113, Sec. 23). -
condition it was before
HOLD-DEPARTURE ORDERS - may be commencement of the
issued only by the RTCs in criminal prosecution
cases within their exclusive jurisdiction Acquittal is a ground
[SC Circular No. 39-97 (June 19, 1997)] Not an acquittal
for quashal
Not a final disposition
Rule 117, Sec. 6
9. Bail Required of Material of the case
Witnesses (1999 Bar) Does not bar
subsequent
Rule 117, Sec. 6
Material witnesses may also be required prosecution for the
same offense
to post bail to ensure their appearance

CRIMINAL PROCEDURE
at the trial of the case in the ff.
instances: 2. Time to file MTQ
Where there is substitution of
information [Rule 110, Sec. 14] General rule: At any time before
Where the court believes that a material entering his plea. [Rule 117, Sec. 1] It
witness may not appear at the trial can be filed even before jurisdiction over
This applies to both prosecution and his person has been acquired and
defense witnesses during PI, because the investigating
It is also now applicable to courts of the officer or judge has the power to bind
first level the accused over for trial [(Delos Reyes
v. Espiritu, et al. (1982)].
B. MOTION TO QUASH (2000, 2005 Exceptions: [Rule 117, Sec. 1; Marcos v.
Sandiganbayan (2000)]
Bar)
If the accusatory pleadings do not
charge an offense;
1. Definition If the court has no jurisdiction over the
case;
MOTION TO QUASH (MTQ) - Formerly If the offense or penalty has already
called a demurrer, it is a special been extinguished;
pleading, filed by the accused, which If further prosecution would put him in
hypothetically admits the truth of the double jeopardy.
facts spelled out in the
complaint/information and sets up a MTQ Demurrer to Evidence
matter, which, if duly proved, would Filed before entering Filed after the
preclude further proceedings. plea prosecution has rested
It cannot be initiated by the judge; its case
otherwise it would amount to pre- Does not go into the Based upon the
judging the case. [People v. Nitafan merits of the case inadequacy of the
(1999)] evidence adduced by
Since a MTQ is a hypothetical the prosecution
admission of the facts alleged in the
information, the court cannot consider Failure to file before entering plea will
facts contrary to those alleged, or which be deemed to be a waiver of all
do not appear on the face of the objections which are grounds for a
information, except those admitted by

Page 288 of 370

REVIEWER IN REMEDIAL LAW
MTQ. [Rule 117, Sec. 9; Gamboa v. Cruz
(1988)]
Deprives of the right to object to
evidence which could be lawfully
introduced and admitted under an
information of more or less general
terms but which sufficiently charges
a definite crime. [People v. Marquez
(2000)]
3. Form and contents [Rule 117,
Sec. 2]
In writing;
Signed by the accused or his counsel;
Distinctly specify factual and legal
grounds.
Facts outside the information are
allowed to be introduced to prove
any of the grounds.
Inquiry into outside facts may also be
allowed even when the ground
invoked is that the allegations in the
information do not constitute the
offense charged. [Garcia v. CA
(1997)]
General Rule: Court shall consider no
ground other than those stated in the
MTQ.
Exception: Lack of jurisdiction over the
offense charged.
4. Grounds [Rule 117, Sec. 3] (1998
Bar)
The ff. grounds for MTQ are exclusive:
a. That the facts charged do not
constitute an offense;
b. That the court trying the case has
no jurisdiction over the offense
charged;
c. That the court trying the case has
no jurisdiction over the person of
the accused;
d. That the officer who filed the
information had no authority to do
so;
e. That it does not conform
substantially to the prescribed form;
f. That more than one offense is
charged except when a single
punishment for various offenses is
prescribed by law;
g. That the criminal action or liability
has been extinguished;
i. Computation of period of
prescription
o Manner of computing time
o Prescription of computing time
Chapter 7: Preliminary Remedies
o Interruption of prescriptive
period
o Pardon in private crimes
o Amnesty
h. That it contains averments which, if
true, would constitute a legal excuse
or justification
i. That the accused has been
previously convicted or acquitted of
the offense charged, or the case
against him was dismissed or
otherwise terminated without his
express consent.
j. Other grounds
o Judicial determination of
probable cause [Allado v. Diokno
(1994)]
Not valid grounds:
Absence of PI;
Lack of PC;
Non-inclusion of an accused.
a. Facts charged do not constitute an
offense
In all criminal cases, the accused
CRIMINAL PROCEDURE
should be informed of the nature and
the cause of the accusation against
him.
An information which does not charge
an offense or does not allege all the
elements of a crime, is void.
Test: WON the facts alleged, if
hypothetically admitted, would meet the
essential elements of the offense, as
defined by law. [People v. Abad (1997)]
That the missing element may be
proved during the trial or that
prosecution has presented evidence
to establish the same cannot have
the effect of validating the void
information or proving an offense
which does not exist. [People v.
Asuncion (1988)]
Instead of dismissing, the court should
give prosecution an opportunity to
amend the information. [Rule 117, Sec.
4]
Should the prosecutor fail to make the
amendment, or should the
information suffer from the same
defect despite the amendment, the
MTQ shall be granted. [Rule 117,
Sec. 4]
When the court dismisses the case, the
prosecutor should file a valid
information, not a petition for review
for certiorari.
The defect is not cured by failure to
move to quash or by plea of guilty. The
Page 289 of 370
REVIEWER IN REMEDIAL LAW
failure does not imply a waiver of the
defects that go to the jurisdiction of the
offense or to lack in some of the
essential elements of the offense
charged. [Suy Sui v. People (1953)]
General rule: In the MTQ, facts other
than those alleged may not be
considered by the court.
Exceptions:
Where they are facts already admitted
by the prosecution. [People v.
Navarro]
Where they are undisputed facts
apparent from the records of the PI
and not denied or admitted by the
prosecutor [Salonga v. Pano (1985)]
Where they are undisputed or
undeniable facts that destroy the
prima facie truth accorded to
allegations of the information
[People v. de la Rosa (1988)]
ROC expressly permits the investigation
of facts alleged. [People v. Alagao
(1966)] [Rule 117, Sec. 2(f)(h), 4 & 5]
Rationale: It would be pure technicality
for the court to close its eyes to said
facts, refuse to quash the information,
and require trial.
b. Court has no jurisdiction over the offense
charged
JURISDICTION OVER THE SUBJECT
MATTER The power to adjudge
concerning the general question
involved.
Law defines the offenses and penalties
under the jurisdiction of a court.
If the case was tried and decided upon
the theory that it had jurisdiction, the
parties are not barred from assailing
such jurisdiction on appeal.
In criminal prosecution, venue or place
is jurisdictional. [Rule 110, Sec. 15;
Lopez v. City Judge (1966)]
The court had jurisdiction over the case
since, for as long as he continues to
evade the service of his sentence, he is
deemed to continue committing the
crime, and may be arrested without
warrant at any place where he may be
found. [Parulan v. Director of Prisons
(1968)]
In private crimes, complaint of the
offended party is necessary to confer
authority to the court.
Chapter 7: Preliminary Remedies
c. Court has no jurisdiction over the person
of the accused
It is waivable expressly or by
implication, unlike jurisdiction over the
territory and the subject matter.
When the accused files a MTQ based on
this ground, he must do so only on this
ground. If he raises other grounds, he
is deemed to have submitted his person
to the jurisdiction of the court. [Sanchez
v. Demetriou (1993)]
When the objection is raised, court
should resolve it before conducting trial
to avoid unnecessary expenditure of
time and money. [Mead v. Argel (1982)]
How the jurisdiction is acquired:
By arrest of the accused or his
voluntary appearance in court.
By allowing himself to be arraigned
without questioning the legality of
his arrest.
If the accused believes his arrest to be
illegal, he should move to quash the
information on such ground. But
illegality of arrest is waivable as it
affects only the jurisdiction of the court
CRIMINAL PROCEDURE
over the person of the accused. [People
v. Meris (2000)]
d. Officer who filed information had no
authority to do so
Authority to file and prosecute criminal
cases vested in:
Provincial fiscals and their assistants;
City fiscals and their assistants;
The chief state prosecutor and his
deputies.
A lawyer appointed by the DOJ
Secretary may also file an information.
The prosecutor who signed must have
territorial jurisdiction to conduct PI.
[Cudia v. CA (1998)]
Information filed in the Sandiganbayan:
Must be signed by a graft investigating
officer with prior approval of the
Ombudsman. Authority to sign may be
challenged if prosecutor files the
information without approval of
Ombudsman.
The Ombudsman cannot sign when
information is filed in the regular
courts. [Uy v. Sandiganbayan
(1999)]
Election offenses: Must be signed by
duly deputized prosecutors and the
legal officers of the COMELEC.
Page 290 of 370
REVIEWER IN REMEDIAL LAW
e. Complaint/information does not conform
substantially to the prescribed form
The formal and substantial
requirements are provided for in Rule
110, Sec. 6-12.
General rule: Lack of substantial
compliance renders the accusatory
pleading quashable.
Exception:
Mere defects in matters of form may be
cured by amendment.
o Objections not raised are
deemed waived, and the accused
cannot seek affirmative relief on
such ground nor raise it for the
first time on appeal. [People v.
Garcia (1997)]
Vague or broad allegations are generally
not grounds for a MTQ.
The correct remedy for this is a bill of
particulars. [Rule 116, Sec. 9]
Chapter 7: Preliminary Remedies
g. Criminal action or liability has been
extinguished
Enjoyment of an accrued right cannot
forever be left on a precarious balance.
[People v. Reyes (1989)]
Protection from prosecution under a
statute of limitation is a substantive
right. [People v. Sandiganbayan (1992)]
How criminal liability is totally
extinguished [Art. 89, RPC]
(1) Death of the accused;
Extinguished as to the personal
penalties and pecuniary
penalties only when death
occurs before final judgment.
(2) Service of sentence;
Execution must be by virtue of a
final judgment and in the form
prescribed by law.
(3) Amnesty;
(4) Absolute pardon;

f. More than one offense is charged Absolute pardon Conditional pardon

General rule: Complaint/information Only upon the acceptance
must charge but one offense. [Rule 110, Complete upon its since accused may view
Sec. 13] delivery liability less onerous than
the terms

CRIMINAL PROCEDURE
Exception: cases in which existing laws
prescribe a single punishment for
Pardon Amnesty
various offenses.
Complex and compound crimes, except Grant by the President with
where one offense was committed in Grant of the concurrence of majority of
order to conceal another. executive Congress
A specific crime set forth in various
counts, each of which may Private though
constitute a distinct offense. The Public act
official act
narration of the specific acts is Court must take judicial
Must be pleaded
considered a bill of particulars of notice [People v. Vera
and proved
facts upon which the inference of (1990)]
the guilt of the accused may be Usually for those subject to
based. [People v. Yap (1968)] trial but have not yet been
Granted after convicted, but can also be
An offense incidental to the gravamen of
conviction available even after
the offense charged. institution of the criminal
It is waivable. The accused may be action and sometimes after
convicted of all the offenses alleged and conviction
proved if accused goes to trial without Looks forward Looks backward abolishes
objecting to the inclusion of 2 or more releases from offense itself; completely
separate offenses in the same consequences of extinguishes the penalty
information. [People v. Villamor (1998)] conviction and all its effects [People v.
It is not tantamount to duplicity of Vera (1990)]
offenses. An offense is committed in Granted to all persons
guilty of a crime (generally,
different modes and is alleged to have Extended to
political cases like
been committed in the 2 or more modes pardoned
rebellion, sedition, treason),
specified. [Ku Bo Lin v. CA (1992)] defendant alone
and often conditioned upon
If criminal acts are committed on and to no other
their return to obedience
different occasions, each constitutes a and duty within a
separate offense. prescribed time

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REVIEWER IN REMEDIAL LAW
(5) Prescription of the crime;
Definition: Loss/waiver by the
state of its right to prosecute a
crime. [People v. Castor (1954)]
Computation of period: [Art. 91,
RPC]
Commencement: From the day
on which the crime is
discovered by the offended
party, the authorities, or
their agents.
Interruption: Upon the filing of
complaint/information
o General rule: Includes
complaint filed with the
proper officer for PI.
o Exception: Period for
offenses penalized by
special laws and
ordinances is interrupted
only by filing in court.
o Commences to run again:
When proceedings
terminate without the
accused being convicted
or acquitted, or are
unjustifiably stopped for
any reason not imputable
to him.
Prescription shall not run when
the offender is absent from the
Philippines.
Manner of computing time:
1 year = 365 days
1 month = 30 days, unless
specified
1 day = 24 hours
Nights = From sunrise to sunset
First day shall be excluded and
the last day included
The rule that if the last day falls
on a Sunday or a holiday,
the act can still be done the
following day, does not apply
to the computation of the
period of prescription of a
crime.
Prescription of continuing crime:
Counted from the latest/last act
constituting the series of acts
continuing the single crime.
[People v. Castaneda (1990)]
Prescription periods: [Art. 90,
RPC]
o 20 yrs. Death and
reclusion perpetua
o 15 yrs Other afflictive
penalties
o 10 yrs. Correctional
penalties; except arresto
Chapter 7: Preliminary Remedies
mayor, which prescribes
in 5 yrs.
o 1 yr. Libel and similar
offenses;
o 6 mos. Oral defamation
and slander by deed
o 2 mos. Light offenses
o When the penalty fixed is
a compound one, the
highest penalty shall be
made the basis of the
application of letters a-c
(6) Prescription of the penalty;
Definition: Loss/waiver by the
State of its right to demand
service of the penalty imposed.
When and how penalties
prescribe: [Art. 92, RPC]
20 yrs. Death and reclusion
perpetua;
15 yrs Other afflictive
penalties;
10 yrs. - Correctional penalties;
except arresto mayor, which
prescribes in 5 yrs.;
CRIMINAL PROCEDURE
1 yr. Light penalties.
Act No. 3326 governs period of
prescription for violation of
special laws.
Where the accused is found to
have committed a lesser offense
included in the offense charged,
he cannot be convicted of the
lesser offense if it has already
prescribed. [Magat v. People
(1991)]
Computation of period: [Art. 91,
RPC]
Commencement: From the date
when the culprit should
evade the service of his
sentence.
Interruption: If the defendant
should give himself up, be
captured, should go to some
foreign country with which
this Government has no
extradition treaty, or should
commit another crime before
the expiration of the period.
(7) Pardon in private offenses
(seduction, abduction, acts of
lasciviousness, rape).
It extinguishes the criminal
action or remits the penalty
already imposed.
Page 292 of 370
REVIEWER IN REMEDIAL LAW
General rule: Pardon should be
given before the filing of criminal
complaint.
Exception: Marriage between the
offended woman and the
offender. [Art. 344, RPC;
People v. Lualhati (1989)]
Applicable to co-principals,
accomplices and accessories.
If the victim is a minor:
Pardon of offended party
and of both parents is
required. [People v. de la
Cruz (1993)]
h. Contains averments which, if true, would
constitute legal excuse or justification
JUSTIFYING CIRCUMSTANCES [Art. 11,
RPC]
(1) Acts in defense of his person or
rights;
Requisites:
o Unlawful aggression;
o Reasonable necessity of
means employed;
o Lack of sufficient
provocation.
(2) Acts in defense of the person or
rights of his
Spouse;
Ascendants;
Descendants;
Legitimate/natural/adopted
brothers or sisters;
Relatives by affinity in the same
degrees;
Relatives by consanguinity
within the 4th civil degree.
o Provided: that the 1st and
2nd requisites in #1 are
present and, in case the
provocation was given by the
person attacked, that the
one making defense had no
part.
(3) Acts in defense of the person or
rights of a stranger;
Provided: that the 1st and 2nd
requisites in #1 are present and
that the person defending be not
induced by revenge, resentment
or other evil motive.
(4) Act which causes damage to avoid
evil/injury;
Requisites:
o Evil sought to be avoided
actually exists;
o Injury feared greater than
that done to avoid;
Chapter 7: Preliminary Remedies
o No other practical and less
harmful means.
(5) Fulfillment of duty or lawful exercise
of a right/office;
(6) Obedience to an order issued by a
superior for some lawful purpose.
EXEMPTING CIRCUMSTANCES [Art. 12,
RPC]
(1) Imbecile or insane person;
Exception: Insane person acted
during a lucid interval.
(2) Person under 9 y/o;
(3) Person over 9 y/o and under 15 y/o;
Exception: If acted with
discernment.
(4) Causes injury by mere accident,
without fault or intention, while
performing lawful act with due care;
(5) Under compulsion of irresistible
force;
(6) Under impulse of uncontrollable fear
of an equal or greater injury;
(7) Fails to perform an act required by
law when prevented by some lawful
insuperable cause.
CRIMINAL PROCEDURE
i. Double jeopardy (2002, 2004 Bar)
RULE OF DOUBLE JEOPARDY
When a person is charged with an
offense and the case is terminated
either by acquittal or conviction or
in any other manner without the
express consent of the accused, the
latter cannot again be charged with
the same or identical offense. [Rule
117, Sec. 3(i)]
Arises when:
The accused is charged with the same
offense in two separate pending cases
[Rule 117, Sec. 3(i)]
The accused is prosecuted anew for the
same offense after he had been
convicted or acquitted thereof [Rule 117,
Sec. 7]
The accused is charged for the same act
under a local ordinance and a national
law [People v. Relova (1987)]
The prosecution appeals from a
judgment in the same case [Rule 122,
Sec. 2]
Rationale: No person shall be twice put
in jeopardy of punishment for the same
offense; if an act is punished by a law
and an ordinance, conviction or
acquittal under either shall constitute a
bar to another prosecution. [Art. 3, Sec.
21, Consti]
Page 293 of 370
REVIEWER IN REMEDIAL LAW
It protects not against peril of 2nd
punishment but against being tried
again for the same offense.
SAME OFFENSE TEST Not only when
exactly the same offense, but also when
the 2nd offense is an attempt to commit
the 1st or is a frustration thereof, or
when it necessarily includes or is
necessarily included in the 1st offense
charged. [People v. Silva]
To constitute double jeopardy, the
offense charged must be the same in
law and in fact.
Requisites of double jeopardy:
o 1st jeopardy has attached;
o 1st jeopardy was validly
terminated;
o 2nd jeopardy:
For the same offense
charged;
For an attempt to commit
the same or frustration
thereof; or
For an offense which
necessarily includes or is
necessarily included in the
1st.
Requisites that must have been
obtained in the original prosecution (to
determine if 1st jeopardy attached):
Valid complaint/information;
grounds upon which dismissal was
anchored are clearly directed at the
sufficiency of said information to
sustain the conviction and hence,
indicate the absence of the 1st
requisite. [Caniza v. People (1988)]
Competent court;
Defendant pleaded to the charge;
Defendant was either:
o Acquitted;
Exception: A dictated,
coerced and scripted verdict
of acquittal is a void
judgment it neither binds
nor bars anyone. [Galman v.
Sandiganbayan (1986)]
o Convicted; or
o The case was dismissed, or
otherwise terminated without his
consent.
Without express consent
refers only to dismissal or
the case otherwise
terminated, and not to
conviction or acquittal.
[People v. Labatete (1960)]
If consent is not express,
dismissal will be regarded as
Chapter 7: Preliminary Remedies
final i.e. with prejudice to
refiling. [Caes v. IAC (1989)]
Exception: Dismissal has the
effect of acquittal even with
the consent of the accused
when predicated on (1)
insufficiency of the
prosecutions evidence or (2)
denial of the right to a
speedy trial. [Alamario v. CA
(2001)]
TWO CATEGORIES OF DOUBLE
JEOPARDY
(1) Same offense.
The offenses penalized either by
different sections of the same
statute or by different statutes.
Must examine the essential elements of
each.
Test: WON evidence that proves one
offense would also prove the other.
[People v. Ramos (1961)]
It is not necessary to have absolute
identity. [People v. Relova (1987)]
CRIMINAL PROCEDURE
(2) Same act.
An offense penalized by ordinance is, by
definition, different from an offense
under a statute; thus, they would
never constitute double jeopardy.
But the second sentence of the
constitutional protection was
precisely intended to extend to
situations not covered by the first
sentence. The constitutional
protection is available, although the
prior offense charged under an
ordinance be different from the
offense charged under a national
statue, provided that both spring
from the same act or set of acts.
[People v. Relova (1987)]
Consider the identity of the act in time
and space: committed on the same
occasion, by the same intent or
negligence. [People v. Relova (1987)]
Liability is generated both under an
ordinance and a national statute.
o NOTE though that where two
different laws or articles of the
same code define two crimes,
prior jeopardy as to one of them
is NO obstacle to a prosecution
of the other, although both
offenese arise from the same set
of facts, if each crime involves
some important act which is
NOT an essential element of the
other. [Loney v. People (2006)]
Page 294 of 370
REVIEWER IN REMEDIAL LAW
o Where 2 different laws (or
articles of the same law) define 2
crimes, prior jeopardy as to one
is not obstacle to a prosecution
of the other, although both arise
from the same facts, if each
involves some important act
which is not an essential
element of the other. [People v.
Doriquez (1968)]
WHEN THERE IS NO DOUBLE
JEOPARDY
Private offended party appeals the civil
aspect of the case. [Manantan v. CA
(2001)]
Conviction of a crime under a special
law (malum prohibitum) which also
constitutes an offense under the
RPC is not a bar to the prosecution
under the RPC (malum in se).
[People v. Sanchez (1998)]
Two informations are filed charging
the accused with two different
offenses having different elements
though arising from the act (e.g.
estafa and BP 22). [Ching v. CA
(1990)]
Prosecutor may revive and reinstate
case without the filing of a new
information when the information is
provisionally dismissed with the
conformity of the accused after
arraignment and initial presentation
prosecution evidence has started,
since the order of provisional
dismissal had not yet become final.
[Lauchengco v. CA (1979)]
Dismissal of the case was declared
null and void. [People v. Mogol
(1984)]
o Where an order dismissing a
case in not a decision on the
merits, it cannot bar as res
judicata a subsequent case
based on the same offense. The
dismissal being null and void,
the proceeding before the TC
may not be said to have been
lawfully terminated. [People v.
Gorospe (1988)]
Petition for certiorari filed by the
prosecutor to correct the penalty
which should be lower that that
imposed by the TC it is favorable
to the accused. [People v. Lee Jr.
(1984)]
Mere filing of two informations
charging the same offense the 1st
Chapter 7: Preliminary Remedies
jeopardy has not set in. [People v.
Pineda (1993)]
o Note: Dissent in People v.
Pineda It is sufficient that the
accused has pleaded in the 1st
case in order for 1st jeopardy to
set in.
Qualification: Prosecution
may be said to be forum
shopping which will warrant
the dismissal of the 2nd
case.
The accused should object to
any joint trial since he may
forfeit the right to raise
double jeopardy in the 2nd
case.
Filing of 2nd information where a
new fact supervened (e.g. the
injured party dies from injuries after
conviction). (1997, 2005 Bar)
o Where there is no supervening
event after arraignment and
conviction:
If the 1st charge was based
on findings of a physician,
CRIMINAL PROCEDURE
and a 2nd information was
filed charging a more serious
crime based on the findings
of another physician. [People
v. Buling (1960)]
If the victim died 2 days prior
to arraignment of the
accused who pleaded guilty
to an information for serious
physical injuries thru
reckless imprudence he
can no longer be charged
with homicide thru reckless
imprudence. [People v. City
Court of Manila (1983)]
In a continuing offense, only one
crime is committed. Where 2
informations arose from the same
transaction, the 2nd cannot
prosper. [Mallari v. People (1988)]
General rule: Prosecution cannot file
an appeal or a MFR after jeopardy
had attached for the purpose of
increasing the imposed penalty. [US
v. Kepner (1904)]
o Exception: If the purpose is to
decrease the penalty wrongfully
imposed, it is beneficial to the
accused and there is no reason
to complain.
Page 295 of 370
REVIEWER IN REMEDIAL LAW
5. Procedure upon filing
a. Hearing on the motion
No automatic conversion of a hearing on
a MTQ to a hearing on the merits
without clear waiver by the accused of
his right to a regular trial. [Dayawon v.
Garfin (2002)]
b. When motion is denied [Bulaong v. CA
(1990)]
Defendant should go to trial without
prejudice on his part to present special
defenses he had invoked in his motion.
He may appeal if an adverse decision is
rendered after trial on merits and then
assign as error the denial of MTQ.
General rule: Certiorari and prohibition
are not the correct remedies against an
order denying a MTQ.
Exceptions:
o If information is patently
defective. [People v. Ramos
(1989)]
o If offense charged already
prescribed. [People v. Ramos
(1989)]
o If lower court acted with GAD.
[Reyes v. Camilon (1990)]
o If any of the following instances
occur: [Paredes v.
Sandiganbayan (1996)]
a) To afford protection to
constitutional rights;
b) For orderly administration of
justice;
c) Prejudicial question which is
sub judice;
d) Prosecution under invalid
law/ ordinance/regulation;
e) Double jeopardy is clearly
apparent;
f) No jurisdiction over the
offense;
g) Persecution rather than
prosecution;
h) Charges manifestly false and
motivated by vengeance;
i) No prima facie case against
accused;
j) To avoid multiplicity of suits.
c. When amendment is available as a cure
The court shall order that an
amendment be made if the motion is
based on an alleged defect which can be
cured by amendment. [Rule 117, Sec. 4]
Court shall give an opportunity to the
prosecution to correct a defect if based
on the ground that the facts charged do
Chapter 7: Preliminary Remedies
not constitute an offense. MTQ shall be
granted if: [Rule 117, Sec. 4]
Prosecution fails to make the
amendment;
Complaint/information still suffers from
the same defect despite the
amendment.
In a dismissal for the purpose of
amendment, the defendant is not placed
in jeopardy and the dismissal is not a
bar to the filing of an amended
information.
Though a material amendment is based
on the ground that the facts charged do
not constitute an offense, the same
could be done because the accused has
not been arraigned nor can a dismissal
on such ground put the accused twice
in jeopardy
It is a good tactical move for the
accused to first plead to the information
and thereafter file a MTQ either before
or after the prosecution has presented
evidence. [Cruz v. CA (1991)]
6. Effect of order granting MTQ
CRIMINAL PROCEDURE
a. Court order sustaining motion
General rule: Court may order that
another complaint/information be filed.
[Rule 117, Sec. 5]
Exception: If MTQ was based on the
following grounds: [Rule 117, Sec. 6]
o Criminal action or liability has
been extinguished;
o Double jeopardy.
General rule: If in custody, the accused
shall not be discharged unless admitted
to bail. [Rule 117, Sec. 5]
The order must state either release of
the accused or the cancellation of
his bond.
Exception: No order sustaining the
motion is made or, if having been
made, no new information is filed
within the time specified in the
order or within such further time as
the court may allow for good cause.
o Exception to the exception: If he
is also in custody for another
charge.
Better approach if the ground was that
the court has no jurisdiction over the
subject matter: The court should not
quash the complaint/information;
instead, it should remand/forward the
case to the proper court.
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REVIEWER IN REMEDIAL LAW
b. Effect
General rule: It will not be a bar to
another prosecution for the same
offense. [Rule 117, Sec. 6]
Exception: If the ground for the quashal
is either:
o The criminal action or liability
has been extinguished;
o The accused has been previously
convicted, or in jeopardy of being
convicted, or acquitted of the
offense charged.
c. Remedies of the prosecution
General rule: To amend the information
to correct the defects if the TC makes
the order, and thereafter prosecute on
the basis of the amended information.
[Rule 117, Sec. 4]
Exception: Prosecution is precluded
where the ground for the quashal
would bar another prosecution for
the same offense.
Prosecution may appeal from the order
of quashal to the appellate court.
If the information was quashed because
it did not allege the elements of the
offense, but the facts so alleged
constitute another offense under a
specific statute, the prosecution may file
a complaint for such specific offense
where dismissal is made prior to
arraignment and on MTQ. [People v.
Purisima (1978)]
Order denying MTQ Order granting MTQ
Interlocutory Final order
Not appealable absent
a showing of GAD Immediately appealable
but subject to rules on
double jeopardy
Does not dispose of
Disposes of the case
the case upon its
upon its merits
merits
Proper remedy: appeal Proper remedy: appeal
after the trial the order
7. Failure to assert grounds [Rule
117, Sec. 9]
Assertion of MTQ grounds should be
made before pleading to the
complaint/information.
How failure to assert happens:
By not filing MTQ;
By failing to allege a ground in the MTQ
General rule as to effect: Such failure is
deemed a waiver of any objections.
Chapter 7: Preliminary Remedies
The waiver includes objection based on
ground that information is
duplicitous.
Exception: Objections based on the
following grounds: [Rule 117, Sec. 3]
(1) Information charges no offense;
o Hence, the entire proceeding
is an exercise in futility. [Cruz
v. CA (1991)]
(2) Lack of jurisdiction over the offense;
o General rule: Jurisdictional
defects cannot be waived.
Exception: Jurisdiction over
person of the defendant is
waivable expressly or
impliedly.
(3) Criminal action or liability has been
extinguished;
(4) Double jeopardy.
8. Provisional dismissal (2002, 2003
Bar)
Definition: A case is dismissed without
prejudice to its being refiled or revived.
General rule: Cases are provisionally
CRIMINAL PROCEDURE
dismissed where there has already been
arraignment and accused consented to
a provisional dismissal.
Exception: If dismissal was due to a
demurrer to evidence.
a. When dismissal becomes permanent
1 year after issuance of the order
without the case having been revived for
offenses punishable: [Rule 117, Sec. 8]
By imprisonment not exceeding 6 years;
By a fine of any amount;
By both.
2 years after issuance of the order
without the case having been revived for
offenses punishable by imprisonment of
more than six 6 years.
The State may revive beyond the periods
provided there is a justifiable necessity
for the delay.
The court is not mandated to apply
Section 8 retroactively simply because it
is favorable to the accused. The time-
bar under the new rule was fixed for the
benefit of the State and the accused;
not for the accused only. [People v.
Lacson (2003)]
b. Requisite procedure [Rule 117, Sec. 8]
Motion can be made:
a) By the prosecution, with express
conformity of accused;
It was respondent who moved to
dismiss for lack of probable cause;
Page 297 of 370
REVIEWER IN REMEDIAL LAW
hence, dismissal bears his express
consent. [People v. Lacson (2002)]
b) By the accused;
c) By both.
Offended party must be notified of the
motion.
Court then issues an order granting the
motion and dismissing the case
provisionally.
Public prosecutor is served with a copy
of the order of provisional dismissal
Time-bars will not apply absent any
requisite.
C. PROVISIONAL REMEDIES IN
CRIMINAL CASES
1. Availability
Provisional remedies in civil actions,
insofar as they are applicable, may be
availed of in connection with the civil
action deemed instituted with the
criminal action. [Rule 127, Sec. 1]
Conversely, where the civil action has
actually been instituted, or
Chapter 7: Preliminary Remedies
When the accused is about to abscond
from the Philippines.
When criminal action is based on a
claim for money/property embezzled
or fraudulently misapplied or
converted to the use of the accused
who is a public/corporate officer,
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
other person in a fiduciary capacity,
or for a willful violation of duty.
When the accused has
concealed/removed/disposed of his
property, or is about to do so.
When the accused resides outside the
Philippines.
b. Notice and hearing
Notice to adverse party and hearing are
not required because they would defeat
the purpose of a provisional remedy.
[Mindanao Savings v. CA (1989)]
c. Issuance and implementation of the writ
[Gonzalez v. State Properties (2001)]

CRIMINAL PROCEDURE
proceeded independently of the
criminal action, these provisional When
remedies cannot be availed of in the Issuance of writ May be done before
criminal action but may be applied acquisition of
for in the separate civil action jurisdiction over the
(REGALADO). accused; may be ex-
If the civil action is suspended on parte
account of filing of the criminal action:
Enforcement of Only after
The court with which the civil case is
writ acquisition of
filed is not thereby deprived of its
jurisdiction
authority to issue auxiliary writs that do
not go into the merits of the case.
[Ramcar Inc. v. de Leon]
Not available when:
Criminal action carries with it no civil
liability;
Offended party has reserved the civil
claim;
Offended party has waived the civil
claim;
Offended party has already instituted a
separate civil action.

2. Attachment

a. When proper [Rule 127, Sec. 2]

When the civil action is properly
instituted in the criminal action, the
offended party may have the property of
the accused attached as security for the
satisfaction of any judgment that may
be recovered from the accused in the
following cases:

Page 298 of 370

REVIEWER IN REMEDIAL LAW
Chapter 8: Pre-Trial
A. PRE-TRIAL CONFERENCE
1. COVERAGE
2. PERIOD
3. PURPOSES
B. PRE-TRAIL AGREEMENTS AND
SUBMISSIONS
1. FORM
2. EFFECT
C. PRE-TRIAL ORDER
1. WHEN ISSUED
2. CONTENTS
3. EFFECTS
D. NON-APPEARANCE
A. PRE-TRIAL CONFERENCE
1. Coverage [Rule 118, Sec. 1]
The court shall order pre-trial in ALL
criminal cases cognizable by the
Sandiganbayan, RTC and
MTC/MTCC/MCTC/MeTC.
2. Period [Rule 118, Sec. 1]
General rule: After arraignment and
within 30 days from the time the court
acquires jurisdiction over the person of
the accused.
Exception: If a shorter period is
provided by special laws or SC
circulars.
3. Purposes [Rule 118, Sec. 1]
a. Plea bargaining
Definition: It is the process in criminal
cases whereby
the accused,
the offended party and
the prosecution
work out a mutually satisfactory
disposition of the case subject to court
approval. [See also DOJ Circular No. 35
(June 31, 1990), as amended by
Circular No. 55 for the guidelines on
plea bargaining as well as notes on
Rule116]
It usually involves the defendants
pleading guilty to a lesser offense or to
one or some of the counts of a matters referred to in Rule 118, Sec.
multicount indictment in return for a
lighter sentence than that for the graver
charge. [People v. Villarama (1989)]
The conviction of the accused of the
lesser offense precludes the filing and
prosecution of the offense originally
charged in the information, except when
the plea of guilty to a lesser offense is
Chapter 8: Pre-Trial
without the consent of the offended
party and the prosecutor. [People v. De
Luna (1989)]
When not allowed: Section 23 of
RA9165 (Comprehensive Dangerous
Drugs Act of 2002) says that any
person charged under any provision of
this Act regardless of imposable penalty
shall not be allowed to avail of the
provision on plea-bargaining.
b. Stipulation of facts
This is no longer prohibited in criminal
cases. [People v. Hernandez (1996)]
But in a case of rape with the allegation
that victim is below 12 yrs. Of age
which qualifies said crime and increases
its penalty to death, nothing short of
proof beyond reasonable doubt of every
fact necessary to constitute the
elements of the crime must be
established. Said facts and
circumstances cannot be subject of
stipulation. [People v. Sitao (2002)]
c. Marking for identification of the evidence
CRIMINAL PROCEDURE
of parties
Proffer of exhibits is not allowed. It
ought to be done at the time a party
closes the presentation of evidence.
d. Waiver of objections to admissibility of
evidence
e. Modification of the order of trial if the
accused admits the charge but
interposes a lawful defense
f. Other matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case
B. PRE-TRIAL AGREEMENTS AND
SUBMISSIONS [RULE 118, SEC. 2]
(2004 BAR)
1. Form
General rule: Court approval is
required.
Exception: Agreements not covering
1 [SC A.M. No. 03-1-09-SC 2004]
It must be reduced into writing and
signed by the accused and counsel.
Otherwise, it cannot be used against the
accused (i.e. inadmissible in evidence).
The constitutional right to present
evidence is waived expressly.
Page 299 of 370
REVIEWER IN REMEDIAL LAW
That the lawyer of the accused
confirmed the Stipulation of Facts does
not cure the defect because both the
accused and his counsel are required to
sign. [Fule v. CA (1998)]
Purpose for signature requirement
[People v. Uy (2000)] :
To safeguard the rights of the accused
against improvident or unauthorized
agreements or admissions which his
counsel may have entered into
without his knowledge.
To eliminate any doubt on the
conformity of the accused to the
facts agreed upon.
2. Effect
Once the stipulations are reduced into
writing and signed by the parties and
their counsels, they become binding on
the parties who made them. They
become judicial admissions of the fact
or facts stipulated (2008 Bar).
Even if placed at a disadvantageous
position, a party may not be allowed to
rescind them unilaterally; it must
assume the consequences of the
disadvantage. [Bayas v. Sandiganbayan
(2002)]
C. PRE-TRIAL ORDER [RULE 118,
SEC. 4]
1. When issued
Issued by the court after the pre-trial
conference.
Judgment of acquittal based on pre-trial
despite disputed documents and issues
of fact amounts to grave error and
renders the judgment void. [People v.
Santiago, (1989)]
2. Contents
Actions taken;
Facts stipulated;
Evidence marked
3. Effect
Binds the parties.
The accused must move to correct any
mistake or modify the pre-trial
order; otherwise, will be deemed to
have waived and be barred from
questioning.
Chapter 8: Pre-Trial
The procedure is substantially the same
in civil cases, except that any
modification of the pre-trial order in
civil cases must be made before the
trial. No such limitation is provided
for in criminal cases. (1997 Bar)
Limits the trial to matters not disposed
of.
Generally, controls the course of action
during trial.
Exception: If modified by the court to
prevent manifest injustice.
D. NON-APPEARANCE [RULE 118,
SEC. 3]
If counsel for the accused or the
prosecutor:
Does not appear at the pre-trial
conference; and
Does not offer an acceptable excuse
the court may impose proper
sanctions/penalties: reprimand, fine or
imprisonment.
Rationale: to enforce the mandatory
requirement of pre-trial in criminal
CRIMINAL PROCEDURE
cases. [Rule 118, Sec. 1]
Take note that the accused is not
included because his constitutional
right to remain silent may be violated.
The accused is not required to attend
(unless required by the court) and is
merely required to sign the written
agreement arrived at in the pre-trial
conference if he agrees to the contents
of such.
Page 300 of 370
REVIEWER IN REMEDIAL LAW
Chapter 9: Arraignment
A. IN GENERAL
1. DEFINITION
2. PURPOSE: PROCEDURAL DUE
PROCESS
3. FOUR-FOLD DUTY OF THE TC BEFORE
ARRAIGNMENT
4. ISSUES THAT MAY BE RAISED
BEFORE ARRAIGNMENT
B. PROCEDURE
1. WHERE
2. MANNER
3. TYPES OF PLEA
4. WITHDRAWAL OF PLEA
5. SUSPENSION OF ARRAIGNMENT
A. IN GENERAL
1. Definition
ARRAIGNMENT is the stage where the
accused is formally informed of the
charge against him by reading before
him the information/complaint and
asking him whether he pleads guilty or
not guilty. [Rule 116, Sec. 1(a)]
It is the stage where the issues are
joined and without which the
proceedings cannot advance further or,
if held, will otherwise be void. [Borja v.
Mendoza (1977)]
2. Purpose: Procedural due process
To fix the identity of the accused;
To inform him of the charge and the
penal offense he has to face;
To obtain from the accused his answer
or his plea to the information;
To be convicted only on a showing that
guilt is proved beyond reasonable doubt
with full opportunity to disprove the
evidence against him. [Borja v. Mendoza
(1977)]
3. Four-fold duty of the TC before
arraignment [Rule 116, Sec. 6]
a. Inform the accused that he has the right
to have his own counsel before being
arraigned;
b. Ask WON he desires the aid of counsel;
c. If he so desires to procure services of
counsel, must grant him reasonable time
to do so.
d. General rule: The court must assign a
counsel de oficio to defend him. [Rule
119, Sec. 7]
Chapter 9: Arraignment
Exception: The accused is allowed to
defend himself in person or has
employed a counsel of his choice.
Exception: The accused expressly and
formally renounced such right.
NO ARRAIGNMENT IN ABSENTIA
[Nolasco v. Enrile (1985)]
Presence of the accused is not only a
personal right but also a public
duty, irrespective of the gravity of
the offense and the rank of the
court.
No trial in absentia without first
arraigning the accused; otherwise,
judgment is null and void since (1)
the issues are not joined and (2) the
right to be informed of the nature
and cause of accusation is violated.
4. Issues that may be raised before
arraignment
WON arrest was legal, with or without
warrant: Can either move to quash or
recall warrant. Failure to question will
CRIMINAL PROCEDURE
amount to waiver.
WON accused was accorded the right to
a PI: If none or incomplete, ask court for
PI. [Romualdez v. Sandiganbayan
(1995)]
WON information or complaint vaguely
worded: File a BOP; otherwise, the
defects are deemed to have been waived.
[Rule 116, Sec. 10]
WON complaint/information is
quashable: File a MTQ; otherwise,
grounds are deemed waived. [Rule 117]
B. PROCEDURE [RULE 116, SEC. 1]
1. Where
In open court, by the judge or clerk.
The court where the
complaint/information was filed or
assigned for trial.
2. Manner
By furnishing the accused with a copy
of the complaint/information.
By reading the same in the
language/dialect known to him This is
a new requirement that implements the
constitutional right of an appellant to be
informed of the nature and cause of the
accusation against him [People v.
Alicando (1995)]
Page 301 of 370
REVIEWER IN REMEDIAL LAW
By asking him whether he pleads guilty
or not guilty.
The prosecution may call at the trial
witnesses other than those named in
the complaint/information.
3. Types of plea
a. ADMISSION GUILTY
Plea of guilty to a NON-CAPITAL
OFFENSE
The court may receive evidence from the
parties to determine the penalty to
be imposed. [Rule 116, Sec. 4]
It is sufficient to sustain a conviction
when formally and knowingly and
voluntarily entered into. [People v.
Acosta (1956)]
General rule: It is a judicial confession
of guilt so there is no need for
additional evidence. [People v. Flores
(2000)]
Exceptions:
o If the information did not allege
all the elements of the crime
charged. [People v. Digero (1966)]
o If the information charges a
capital offense. [Rule 116, Sec. 5]
o If the plea of guilt was
conditional. [Rule 116, Sec. 1(c)]
Accused must be acquitted when
evidence allowed to be presented to
determine penalty shows that he is
not guilty.
Plea of guilty to a CAPITAL OFFENSE
[Rule 116, Sec. 5]
In this case, the procedure is
mandatory. Failure to observe the
duties of the trial judge amounts to
GAD. [People v. Devico (1997)]
Rationale: To proceed with more care
where the possible punishment is in
its severest form; to avoid
improvident pleas of guilt. [People v.
Samontanez (2000)]
Duties of the trial judge:
1) To conduct a searching inquiry into
the voluntariness and full
comprehension of the consequences
of the plea.
o The plea must be clear, definite
and unconditional. There must
be well-informed understanding
and full realization of the
consequences.
o It must be based on a free and
informed judgment. Mere
warning of facing the supreme
penalty of death is insufficient.
Chapter 9: Arraignment
The judge must ask whether the
accused was assisted by counsel
during CI and PI; ask questions
on age, educational attainment
and socio-economic status; and
ask the defense counsel WON he
conferred with the accused.
[People v. Nadera (2000)]
2) To require prosecution to prove guilt
and the precise degree of culpability.
3) To inquire whether accused wishes
to present evidence on his behalf
and allow him to do so if he desires.
o Purpose: To preclude reasonable
doubt in the mind of the TC (or
the SC on review) as to any
misunderstanding of the charge,
and to ascertain attendant
circumstances which justify a
greater or lesser degree of
severity in the imposition of the
prescribed penalty.
Improvident plea of guilty to a capital
offense
IMPROVIDENT PLEA - Plea without
CRIMINAL PROCEDURE
proper information as to all the
circumstances affecting it; based
upon a mistaken assumption or
misleading information/advice.
[Blacks Law Dictionary]
It should not be accepted. If accepted, it
should not be held to be sufficient to
sustain a conviction. [People v. De
Ocampo Gonzaga (1984)]
General rule: Case is remanded to the
lower court for further proceedings.
Exception: If the accused appears
guilty beyond reasonable doubt from
evidence adduced by the
prosecution and defense.
It is a settled rule that where TC
receives evidence to determine
whether the accused has erred in
admitting his guilt, the manner in
which the plea is made loses legal
significance since the conviction is
based on the evidence proving the
commission by the accused of the
offense charged. [People v. Alborida
(2001)]
b. DENIAL NOT GUILTY
Plea of not guilty to be entered for the
accused when he either: [Rule 116, Sec.
1(c)]
Refuses to plead;
Makes a qualified plea of guilty.
Page 302 of 370
REVIEWER IN REMEDIAL LAW
Plea of guilty to a lesser offense
necessarily included in the offense
charged (2002 Bar)
PLEA BARGAINING [Rule 116, Sec. 2]
Definition: Process where the accused,
the offended party and the
prosecution work out a mutually
satisfactory disposition of the case,
subject to court approval.
Pleading guilty to a lesser offense or to
only one/some of the counts of a
multi-count indictment in return for
a lighter sentence.
May also include amending of
information to allege more
mitigating circumstances.
A question that may arise: WON an
accused may be allowed by the
court, with the consent of the
offended party and the prosecutor,
to plead guilty to a lesser offense
which is not included in the crime
charged.
Made during the pre-trial stage.
When plea is made without the consent
of the prosecutor and the offended
party, the conviction shall not be a
bar to another prosecution for an
offense which necessarily includes
the offense charged in the former
information.
WHEN PLEA IS MADE WITHOUT
CONSENT OF THE OFFENDED PARTY
[Rule 116, Sec. 10]
The offended party is required to appear
during the arraignment for purposes
of plea bargaining, determination of
civil liability and other matters
requiring his presence.
If he fails to appear notwithstanding
notice, the court may, with
conformity of the prosecutor, allow
the accused to plead guilty to a
lesser offense which is necessarily
included in the offense charged.
WHEN PLEA IS MADE AFTER THE
PROSECUTION HAS RESTED ITS CASE
The judge cannot on his own grant the
change. He may grant only with the
approval of the prosecutor and the
offended party and only when the
prosecution does not have sufficient
evidence to establish guilt.
c. Plea of guilt, but accused presents
exculpatory evidence
The plea shall be deemed withdrawn
and a plea of not guilty shall be entered
for him. [Rule 116, Sec. 1(d)]
Chapter 9: Arraignment
4. Withdrawal of plea
a. When allowed [Rule 116, Sec. 2 and 5]
Substitution by plea of not guilty may
be permitted anytime before the
judgment of conviction becomes final.
The substitution is not a matter of a
strict right. It is discretion justified by
some compelling reason such has error,
fraud, illegality or manifest injustice.
[People v. Mendoza (1982)]
b. Reasons to grant change
The accused is ignorant of the law and
has had no education and pleaded
guilty without full knowledge of its
consequences.
The accused did not thoroughly
understand the complaint.
The accused was not advised as to the
meaning and effect of the technical
language.
c. Procedural and substantial requirements
in the grant of a change of plea [People v.
Mendoza (1982)]
CRIMINAL PROCEDURE
Withdrawal need not be verified, but it
should have a rational basis.
Motion for change of plea should be set
for hearing.
Prosecution should be heard on the
motion.
The court should state the reasons for
setting aside (or not setting aside) the
judgment of conviction and for
permitting (or not permitting) the
accused to substitute a plea of not
guilty for his plea of guilty.
5. Suspension of arraignment upon
motion by the proper party
a. Grounds [Rule 116, Sec. 11]
i. Unsound mental condition of the
accused at the time of the
arraignment.
Degree of unsoundness of mind
required: The accused can neither
comprehend the full import of the
charge nor can he give an intelligent
plea.
The court shall order his mental
examination and, if necessary, his
confinement.
The need for suspension may be
determined from physical and
outward manifestations at the time of
arraignment indicative of a mental
disorder which the court had observed
Page 303 of 370
REVIEWER IN REMEDIAL LAW
and defense counsel had called
attention to. [People v. Alcalde (2002)]
An insane person within the meaning
of Art. 12, RPC must be deprived
completely of reason or discernment
and freedom of the will at the time of
committing the crime. Mere
abnormality of mental faculties does
not exclude imputability. [People v.
Catanyag (1933)]
3 major criteria to determine insanity:
[People v. Dungo (1991)]
DELUSION TEST Insanity is
manifested by a false belief for
which there is no reasonable basis
and which would be incredible
under the given circumstances.
IRRESISTIBLE IMPULSE TEST The
accused has lost the power to
choose between right and wrong,
to avoid the act in question, his
free agency being at that time
destroyed.
RIGHT AND WRONG TEST A
perverted condition of mental and
mortal faculties as to render him
incapable of distinguishing
between right and wrong.
Tests to determine insanity: [People v.
Pascual (1993)]
TEST OF COGNITION Complete
deprivation of intelligence in
committing the criminal act. It is
the test adopted in this
jurisdiction.
TEST OF VOLITION A total
deprivation of free will.
ii. Prejudicial question exists (1999,
2000 Bar)
Prescinds from the idea that it would
be determinative of guilt or innocence.
It may be raised during PI. If the
information is filed in court, it
may be raised as ground to
suspend the arraignment. [Rule
11, Sec. 5]
iii. Pending petition for review of the
resolution of the prosecutor with
the DOJ or Office of the
President.
The accused should file motion to
suspend and to secure a ruling on his
petition for review within 60 days from
the filing of the petition.
Rationale: Need to observe judicial
courtesy and to avoid legal
complications in case the resolution
would be different from the offense for
which the accused was arraigned,
especially if it would upgrade the
offense.
Chapter 9: Arraignment
b. Factors for granting continuance under
Rule 119, Sec. 3(f) [Rule 119, Sec. 4]
WON the failure to grant would likely:
make a continuation impossible; or
result in a miscarriage of justice.
WON the case taken as a whole is novel,
unusual and complex due to:
The number of accused;
The nature of the prosecution; or
It is unreasonable to expect adequate
preparation within the periods of
time established.
There should be no continuance
because of:
Congestion of the courts calendar;
Lack of diligent preparation;
Failure to obtain available witnesses on
the part of the prosecutor. [Sec. 10,
Circular No. 38-98]
c. Time limit following an order for new trial
[Rule 119, Sec. 5]
General rule: Trial shall commence
within 30 days from notice of the order.
Provided: The court may extend, but
extension shall not exceed 180 days, if
CRIMINAL PROCEDURE
the period becomes impractical due to
unavailability of witnesses and other
factors.
For the 2nd 12-month period, time limit
shall be 180 days from notice of the
order for new trial. [Sec. 11, Circular
No. 38-98]
d. Extended period for arraignment [Rule
119, Sec. 6]
General rule: Arraignment is to be held
within 30 days from the date court
acquires jurisdiction over the person of
the accused. [Rule 116, Sec. 1(g)]
Exception: If a shorter period is provided
by special law or SC circular.
The accused shall have at least 15 days to
prepare for trial, after a plea of not
guilty is entered. [Rule 119, Sec. 1;
Sec. 6, Circular No. 38-98]
Trial shall commence within 30 days
from receipt of pre-trial order. [Rule 119,
Sec. 1; Sec. 6, Circular No. 38-98]
For the 1st 12-calendar-month period
following the effectivity of SC Circular
No. 38-98 on September 15, 1998, the
time limit shall be 180 days. [Sec. 7,
Circular No. 38-98]
For the 2nd 12-mo nth period, 120 days.
For the 3rd 12-month period, 80 days.
The law did not give the time limit after 80
days arraignment can be thus be
made any time after 80 days.
See Rules 21, 23-25 and 27-29 vis--vis
Rule 1, Sec. 3.
Page 304 of 370
REVIEWER IN REMEDIAL LAW
Chapter 10: Trial
A. GENERAL PROCEDURE FOR TRIAL
1. NOTICE AND COMMENCEMENT
2. TIME TO PREPARE FOR TRIAL
3. TRIAL PROPER
4. ORDER OF TRIAL
B. SPECIAL PROCEDURES
1. TRIAL OF SEVERAL ACCUSED JOINTLY
CHARGED
2. CONSOLIDATION OF TRIALS OF
RELATED OFFENSES
3. DISCHARGE OF AN ACCUSED TO BE A
STATE WITNESS
4. OTHER MODES OF DISCHARGE OF
THE ACCUSED TO BE A STATE
WITNESS
5. THE OMBUDSMANS POWER TO
GRANT IMMUNITY. [SEC. 17, RA 6770]
6. EFFECT OF DISCHARGE
7. RE-OPENING OF TRIAL
C. OTHER PROCEDURAL RULES
1. WHEN PROPER OFFENSE IS NOT
CHARGED
2. DUTIES OF COUNSELS AND
PROSECUTORS
3. APPOINTMENT OF ACTING
PROSECUTOR
4. EXCLUSION OF THE PUBLIC FROM
THE COURTROOM
5. ARCHIVING OF CRIMINAL CASES
6. INHIBITION OF JUDGES
7. DESISTANCE BY THE OFFENDED
PARTY
A. GENERAL PROCEDURE FOR
TRIAL
1. Notice and commencement
TRIAL - Examination before a
competent tribunal of the facts put in
issue in a case, for the purpose of
determining such issue.
As used in Constitution, it includes
hearing, reception of evidence and other
processes (i.e. decision in the first
instance, appeal, and final and
executory decision in last instance).
In terms of procedure, it is limited to
the proceedings in the TC after
pleadings are finished and the case is
ready, until rendition of judgment.
2. Time to prepare for trial
Notice to the parties required - The
clerk notifies parties of the date of
arraignment, which should be 30 days
from the date the court acquires
jurisdiction over the person of the
accused. Within the same 30 day
Chapter 10: Trial
period, the court shall set the pre-trial
conference.
The accused shall have at least 15 days,
after a plea of not guilty is entered [Rule
119, Sec. 1] to prepare for trial
(including pre-trial).
Purpose: To insure speedy trial.
Note that the Constitutional provision
on speedy trial [Art. 3, Sec. 14(2),
1987 Consti] prevails in case of
conflict [Rule 119, Sec. 10]
Mandatory pre-trial is set, then the
judge issues a pre-trial order.
Trial shall commence within 30 days
from receipt of pre-trial order. [Rule
119, Sec. 1; Sec. 6, Circular No. 38-
98]
3. Trial proper
a. Continuous trial
General rule: Trial, once commenced,
shall continue from day to day as far as
practicable until terminated. [Rule 119,
Sec. 2]
Exception: It may be postponed for a
CRIMINAL PROCEDURE
reasonable period of time for good
cause (eg., if the court finds that the
ends of justice served by granting
continuance outweigh the best
interest of the public and the
accused in a speedy trial [Rule 119,
Sec. 3(f)])
Granting or refusal of an application for
continuance or postponement lies
within the sound discretion of the
court. This discretion will not be
interfered with by mandamus or by
appeal, unless GAD is shown.
It should not unduly force him to trial,
nor jeopardize the rights and interest of
the public.
The court shall set the case for
continuous trial on a weekly or other
short-term trial calendar at the earliest
possible time so as to ensure speedy
trial after consultation with the
prosecutor and defense counsel. [Rule
119, Sec. 2]
b. Time limitation
General rule: In no case shall the entire
trial period exceed 180 days from the
1st day of trial. [Rule 119, Sec. 2]
While failure of trial judge to observe
this does not result in loss of
jurisdiction, it may subject him to
disciplinary sanctions. Hence, he
should just request the SC for
Page 305 of 370
REVIEWER IN REMEDIAL LAW
additional trial dates to terminate the
hearing.
Exceptions:
When otherwise authorized by the SC;
[Sec. 8, Circular 38-98]
When special laws or circulars provide
for a shorter period of trial. [Rule
119, Sec. 2]
GUIDELINES IN THE CONDUCT OF
MANDATORY CONTINUOUS TRIAL [SC
Circular 1-89]
1) Not more than 3 cases scheduled for daily
trial.
2) Presiding judge shall make arrangements so
that a relief prosecutor and CLAO attorney
are always available in case the regular
prosecutor and CLAO attorney are absent.
3) Contingency measures must be taken for
any unexpected absence of the stenographer
and other support staff.
4) Strict policy on postponements shall be
observed.
5) The judge shall conduct the trial with
utmost dispatch, with judicious exercise of
the courts power to control the trial to avoid
delay.
6) Trial shall be terminated within 180 days
from initial hearing and appropriate
disciplinary sanctions may be imposed on
the judge and the lawyers for failure to
comply due to causes attributable to them.
7) Each party is bound to complete the
presentation of evidence within the trial
dates assigned. After the lapse of said dates,
party is deemed to have completed his
evidence presentation.
However, upon verified motion based on
serious reasons, the judge may allow
additional trial dates in the afternoon,
provided that said extension will not go
beyond the time limit computed from the 1st
trial date.
Copies of all judgments are furnished the
OCA within 5 days from rendition.
c. Excluded periods of delay
Periods of delay are excluded in
computing the time within which trial
must commence. [Rule 119, Sec. 3]
d. Other proceedings concerning the
accused, including but not limited to:
Examination of physical and mental
condition.
Other criminal charges.
Extraordinary remedies against
interlocutory orders.
Pre-trial proceedings delay must not
exceed 30 days.
Orders of inhibition, or proceedings
relating to change of venue of cases or
transfer from other courts. (Art. 8, Sec.
Chapter 10: Trial
5(4), Consti expressly empowers the SC
to order a change of venue.)
Existence of a prejudicial question.
Proceeding concerning the accused is
actually under advisement delay not
to exceed 30 days.
e. Absence or unavailability of an essential
witness.
Absent means that his whereabouts
are unknown or cannot be determined
by due diligence.
Unavailable means that his
whereabouts are known but presence
for trial cannot be obtained by due
diligence.
f. Mental incompetence or physical inability
to stand trial.
g. If information is dismissed upon motion
of the prosecution and thereafter a
charge is filed against the accused for
the same offense, the period of delay
from the date the charge was dismissed
to the date the time limitation would
CRIMINAL PROCEDURE
commence to run as to the subsequent
charge had there been no previous
charge.
h. Reasonable period of delay when
accused is joined for trial with a co-
accused:
Over whom the court has not acquired
jurisdiction;
As to whom the time for trial has not
run and no motion for separate trial has
been granted.
i. Continuance granted on the basis of
findings set forth in the order that the
ends of justice served by taking such
action outweigh the best interest of the
public and the accused in a speedy trial.
[Sec. 9, Circular 38-98]
By any court motu proprio, or on motion
of either the accused or his counsel, or
the prosecution. The motion should be
based on any of the grounds specified in
Rule 199, Sec. 3-4.
j. Effect of delay [Rule 119, Sec. 9]
On motion of the accused, information
may be dismissed on the ground of
denial of his right to speedy trial (2007
Bar).
Must be raised prior to trial otherwise
considered a waiver of the right to
dismiss under this section.
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REVIEWER IN REMEDIAL LAW Chapter 10: Trial
Subject to the rules on double jeopardy. 4. Order of trial
Hence, if with prejudice, the case
cannot be revived anymore. Otherwise, a. Importance of adhering to order
revival of the case is proper. Trial procedure as outlined ordinarily
Burden of Proof followed to ensure orderly conduct of
The accused has the burden of litigations to protect substantive rights.
proving the ground for the motion. Deviation from the regular course
The prosecution has the burden of should always take into consideration
going forward with the evidence to the rights of all parties.
establish the exclusion of time To safeguard the right of the accused to
under Rule 119, Sec. 3. be presumed innocent until the
contrary is proved.
Dismissal without Dismissal with Deviation by the judge which denies the
prejudice prejudice accused of his day in court or the
Adjudication on the prosecution of due process renders the
merits, and final judgment invalid. [Alonte v. Savellano
disposition, barring (1998)]
Allows new suit for the
the right to bring or The form of trial is a matter of public
same cause of action
maintain an action on
order and interest. [Alejandro v. Pepito
the same claim or
cause
(1980)]
Imports contemplation
of further proceedings, b. When court may modify the order (2007
and when they appear Bar)
in an order or decree, Is res judicata as to If the accused admits the act/omission
it shows that the every matter litigated charged in the complaint/information
judicial act is not but interposes a lawful defense, the

intended to be res
judicata of the merits
Terminates the case
reserving, however, to
the plaintiff the right
to file a new complaint
which, if filed, is
entirely new and
different from the case
which was dismissed
k. Trial in absentia (1998 Bar)
Requisites:
Accused has been arraigned;
He was duly notified of trial;
His failure to appear is unjustified.
Purpose: To speed up disposition of
cases.
General rule: The right to be present at
ones trial may be waived.
Exceptions: At certain stages: [Lavides
v. CA (2000)]
o Arraignment and plea
o Promulgation of sentence,
unless for light offense
o During trial whenever necessary
for ID purposes
Exception to the exception: If
the accused unqualifiedly
admits in open court after
arraignment that he is the
person named as
defendant in the case on
trial.
CRIMINAL PROCEDURE
order of trial may be modified. [Rule
119, Sec. 11(e)]
The court may allow the accused to
present his defense first, and after give
the prosecution the opportunity to
present its rebuttal evidence (reverse
trial).
Strict observance depends upon the
circumstances obtaining in each case at
the discretion of the trial judge.
The primary consideration is WON the
TC still has jurisdiction over the case,
as when such evidence is allowed before
the TC renders its decision. [People v.
Januario (1997)]
If the accused objects to reverse
procedure, court should follow the order
of trial as provided for in ROC.
c. Cold neutrality of the impartial judge
He must not only be impartial, but
must also appear to be so.
He must remain silent or passive. But
he may properly intervene in the
presentation of evidence to prevent
unnecessary waste of time. [Cosep v.
People (1998)]
General rule: It is within the courts
prerogative and duty to ask
clarificatory questions.
the o Exception: Questions to
witnesses which will have the
effect of building the case for one
of the parties amounts to undue

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REVIEWER IN REMEDIAL LAW
interference. [People v. Gallerno
(1998)]
d. Prosecution evidence
The prosecution shall present evidence
to prove: [Rule 119, Sec. 11(a)]
The charge;
In proper cases, also the civil liability.
PRESENTATION OF THE EVIDENCE-
IN-CHIEF
The matter of presenting witnesses for
the prosecution is not for the
accused or TC to control discretion
belongs to the prosecuting officer.
[People v. Jamero (1997)]
Prosecution may call witnesses other
than those named in the
complaint/information.
It is given the discretion as to WON to
use the offended party as a witness.
Their failure to present such number of
witnesses as stated in the
information cannot be assigned as
an error.
The accused has the right to demand
the list of prosecution witnesses.
Evidence presented by one party may be
utilized by the adverse party as
evidence for his own cause of action.
WHEN PROSECUTION IS DENIED DUE
PROCESS
Capricious dismissal of information is
void as it deprives the State of a fair
opportunity to prosecute and
convict.
It will not constitute proper basis for the
claim of double jeopardy. [Saldana
v. CA (1990)]
e. Demurrer to evidence (1998, 2001, 2004
Bar)
Definition: Objection by one of the
parties to the effect that the evidence
which his adversary produced is
insufficient in point of law, whether true
or not, to make out a case or sustain
the issue. [Gutib v. CA (1999)]
There is no material difference between
the Motion to Acquit of the accused
before the TC and the demurrer to
evidence. The only difference: If the
MTD is ordered, it is tantamount to an
acquittal, but the order of denial of the
demurrer to evidence is not reviewable
by appeal or certiorari before judgment.
Purpose: to prevent the filing of
demurrer based on frivolous and flimsy
grounds.
Chapter 10: Trial
The new rule recognizes criminal cases
in which presentation of defense
evidence will only entail a waste of time.
f. How initiated: [Rule 119, Sec. 23]
Court motu proprio, after giving the
prosecution the opportunity to be
heard;
Upon demurrer to evidence filed by the
accused:
With leave of court;
Without leave of court.
g. Motion for leave to file demurrer [Rule
119, Sec. 23]
It must specifically state its grounds.
It must be filed within a non-extendible
period of 5 days after the prosecution
rests. Prosecution may then oppose
within a non-extendible period of 5 days
from receipt.
If leave of court granted, demurrer must
be filed within a non-extendible period
of 10 days from notice. Prosecution may
oppose within a similar period from its
receipt.
CRIMINAL PROCEDURE
h. Effect of granting motion for leave to file
demurrer
The court may dismiss the action on the
ground of insufficiency of evidence.
[Rule 119, Sec. 23]
Sufficient evidence for frustrating a
demurrer is evidence that proves: [Gutib
v. CA (1999)]
Commission;
Precise degree of participation.
o E.g. Proof of the possession of
recently stolen goods taken
together with proof of the
commission of the theft, may be
and generally will be sufficient to
establish the guilt of the
accused, if there is nothing in
the record to raise a doubt as to
the guilty character of the
possession, though there is no
presumption to that effect. [U.S.
v. Catimbang (1916)]
i. Effect of denial of motion for leave to file
demurrer
Order denying the motion for leave or
order denying the demurrer itself, is not
reviewable by appeal or by certiorari
before judgment. [Rule 119, Sec. 23]
It is interlocutory, but it may be
assigned as error and reviewed in the
appeal that may be taken from the
Page 308 of 370
REVIEWER IN REMEDIAL LAW Chapter 10: Trial
decision on the merits [Cruz v. People Damages, if any, arising from the
(1999)] issuance of a provisional remedy in
the case.
j. Right of the accused to present evidence That it rests with the accused to rebut
after demurrer is denied [Rule 119, Sec. the inference of fact as to his guilt is not
23] to compel him to give evidence against
himself. It is merely to give him the
Filed w/ leave of Filed w/out opportunity to submit evidence after the
court leave of court prosecution has introduced evidence
May adduce sufficient to sustain a conviction, unless
Waives the right to present
evidence in his rebutted or satisfactorily explained. [US
evidence
defense
v. Catimbang (1916)]
Purpose of
obtaining leave of
Submits the case for m. Negligence of defense counsel
court: To
judgment on the basis of General rule: That the negligence of
determine WON
the evidence for the counsel binds the client is based on the
demurrer was
prosecution
filed merely to principle that any act performed by a
stall the lawyer within the scope of his authority
proceedings is regarded as an act of the client.
If there are 2 or more Exception: Where reckless or gross
accused and only one negligence deprives the client of due
presents a demurrer
process of law, or when the application
Implied leave of without leave of court.
court is no longer
of the rule results in the outright
sufficient and General rule: The court deprivation of ones property through a
prevents accused may defer resolution until technicality. [Salonga v. CA (1997)]
from presenting decision is rendered on the

CRIMINAL PROCEDURE
evidence [e.g. other accused n. When publicity is prejudicial to the rights
accused files of the accused [Larranaga v. CA (1998)]
motion with Exception: If it can be There must be allegation and proof that
reservation to shown from the decision the judge has been unduly influenced,
present evidence that the resolution on the
not simply that he might be.
in case motion is demurrer was rendered not
denied] only on the basis of the
The right to a fair trial is not
prosecutions evidence but incompatible with a free press.
also on the evidence The press guards against the
adduced by his co-accused miscarriage of justice by subjecting the
process to extensive public scrutiny and
k. Distinctions between Demurrers to criticism.
Evidence in Criminal and Civil Cases
(2003, 2007 Bar): o. Rebuttal evidence
General rule: Prosecution and defense
Demurrer to Demurrer to may, in that order, present rebuttal and
Evidence in Criminal Evidence in Civil sur-rebuttal evidence. [Rule 119, Sec.
Cases Cases 11(c)]
Filing of a demurrer to Defendant can always Exception: The court, in furtherance of
the evidence without present evidence in the justice, may permit them to present
leave of court is an event his demurrer is additional evidence bearing upon the
unqualified waiver of denied, even if no
the right to present reservation was made
main issue.
evidence for the therefor Definition: Any evidence to explain,
accused repeal, counteract or disprove the
If sustained, plaintiff If sustained, plaintiff adversarys proof.
cannot appeal can appeal from the Receivable only where new matters have
dismissal because it judgment of dismissal been developed by the evidence of
will place the accused one of the parties.
in double jeopardy Generally limited to a reply on new
points.
l. Defense evidence It is permissible as long as the accused
The accused may present evidence to was not taken by surprise and was not
prove: [Rule 119, Sec. 11(b)] prevented from introducing evidence in
His defense; sur-rebuttal.

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REVIEWER IN REMEDIAL LAW
p. Sur-rebuttal evidence
Definition: Proof to meet or refute those
new matters taken up by the adverse
party during the rebuttal stage, or to
clarify matters that were beclouded or
made ambiguous.
q. Submission of case
General rule: case deemed submitted
for decision upon admission of evidence
of the parties. [Rule 119, Sec. 11(d)]
Exception: If the court directs them to
argue orally or to submit written
memoranda.
Mere filing of motion to reopen must not
automatically vacate a joint agreement
and order submitting the case for
decision. [Cruz v. People (1999)]
The matter of reopening for reception of
further evidence after either the
prosecution or the defense has rested,
is within the discretion of the court.
[People v. Concepcion (1949)]
SUBMISSION OF ARGUMENTS ORAL
AND WRITTEN
It may not be claimed by the parties as
a matter of right.
As a matter of practice: Courts usually
allow parties to crystallize their
respective positions through the
submission of arguments or
memoranda.
B. SPECIAL PROCEDURES
1. Trial of several accused jointly
charged
General rule: They shall be tried jointly.
[Rule 119, Sec. 16]
Exception: If the court orders separate
trial for one or more accused, upon
motion of the prosecutor or any
accused.
The grant of a separate trial rests in the
sound discretion of the court and is
not a matter of right to the accused.
[Talino v. Sandiganbayan (1987)]
Purpose: To preclude wasteful
expenditure of judicial resources. It is
also in consonance with the right of the
accused to a speedy trial.
Accused are jointly charged if the
charges are founded on the same
facts or form part of a series of
offenses of the same character.
o E.g. Adulteress or her lover may
move for separate trials.
Although it is required that the
husband must include both in
Chapter 10: Trial
the complaint, the statute does
not so require that they be tried
together.
MOTION FOR SEPARATE TRIAL: must
be raised before trial has commenced,
before the prosecution commences
presenting its evidence. [Talino v.
Sandiganbayan (1987)]
Exceptions:
o In the interests of justice.
o If there appears to be an
antagonism in the respective
defenses of the accused. [Talino
v. Sandiganbayan (1987)]
Evidence in chief of the prosecution
shall remain on record against all the
accused, with right of rebuttal on the
part of the fiscal in the separate trial of
the other accused.
EFFECT OF SEPARATE TRIALS:
General rule: If separate trial is granted,
it is the duty of the prosecutor to repeat
and produce all its evidence at each and
every trial.
Exceptions:
o It had been agreed by the parties
CRIMINAL PROCEDURE
that it would not have to be
repeated at the 2nd/etc. trial;
o All the accused were present
during the presentation of
evidence by the prosecution;
o Their attorneys had the
opportunity to cross-examine
the witnesses.
It is permissible to render only one
decision on all cases despite their
separate trials.
2. Consolidation of trials of related
offenses
Charges for offenses founded on the
same facts or forming part of a series of
offenses of similar character, may be
tried jointly at the discretion of the
court. [Rule 119, Sec. 22]
Purpose: Attainment of justice with the
least expense and vexation to the party
litigants.
General rule: Consolidation is
addressed to the sound discretion of the
court.
Exceptions: Joint hearing is a
matter of duty:
o If 2 or more cases are tried
before the same judge;
o Even filed with the different
branches of the same court, if
one of such cases has not been
partially tried.
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REVIEWER IN REMEDIAL LAW
The several actions lose their separate
identities and become a single action in
which a single judgment is rendered.
Limitations on consolidation:
The court cannot convict an
accused of a complex crime
constitutive of the various crimes
alleged in the consolidated cases
It is reversible error where the court
convicted an accused for 2 offenses
in one of two cases in the absence of
a consolidation and on the basis of
evidence adduced in one case,
because the accused is entitled to a
trial in each case. [US v. Tanjuatco
(1993)]
3. Discharge of an accused to be a
state witness
a. Discharge of a co-accused
General rule: It is the duty of the
prosecutor to include all the accused in
the complaint/information.
Exception: Prosecutor may ask
the court to discharge one of
them after complying with the
conditions prescribed by law.
[Rule 119, Sec. 17]
This applies only when the
information has already been filed
in court.
b. Requisites [Rule 119, Sec. 17]
(1) Two or more persons are jointly
charged with the commission of any
offense.
(2) Petition for discharge is filed before
the defense has offered its evidence.
[People v. Anion (1988)]
(3) Hearing in support of the discharge.
o Prosecution to present evidence.
o Sworn statement of each
proposed state witness.
(4) The court is satisfied of the ff:
(a) Absolute necessity for the
testimony;
He alone has the knowledge
of the crime, and not when
his testimony would simply
corroborate or strengthen the
evidence in the hands of the
prosecution. [Flores v.
Sandiganbayan (1983)]
E.g. When there is a The need of the State to obtain the
conspiracy and the crime is
committed clandestinely, the
discharge of a conspirator is
necessary to testify against
Chapter 10: Trial
the other conspirator. [Chua
v. CA (1996)]
(b) There is no other direct
evidence available for the
proper prosecution of the
offense, except the testimony;
(c) The testimony can be
substantially corroborated in its
material points;
(d) Accused does not appear to be
the most guilty;
Gravity or nature of acts he
committed are compared to
those of his co-accused.
Not merely the fact that in law
the same penalty is imposable
on all.
(e) Accused has not, at any time,
been convicted of any offense
involving moral turpitude
c. Procedure [Rule 119, Sec. 17]
(1) Motion of the prosecution before
resting its case.
(2) Hearing in support of the discharge:
o Prosecution to present evidence.
CRIMINAL PROCEDURE
o Sworn statement of each
proposed state witness.
(3) Court may either:
o Direct one or more of the
accused to be discharged with
their consent so that they may
be witnesses for the State.
Evidence adduced in support
of the discharge shall
automatically form part of the
trial.
Question against the order to
discharge must be raised in
the TC; it cannot be raised on
appeal.
o Deny the motion for discharge;
The sworn statement of the
accused shall be inadmissible
in evidence.
d. Co-accused who cannot be discharged
under Rule 119, Sec. 17
If he was tried separately and has
already testified as witness without
having been previously discharged.
e. Witness immunity from suit
Justification for the grant of immunity:
conviction of the more guilty criminals
who will probably elude the long arm of
the law.
Page 311 of 370
REVIEWER IN REMEDIAL LAW
Transactional Use and derivative
immunity use immunity
Can no longer be
Only assured that
testimony and
prosecuted for any
evidence will not be
offense arising out of
used against him in a
the act
subsequent
prosecution
4. Other modes of discharge of the
accused to be a state witness
a. Witness Protection Program. [RA 6981]
RA 6981 vesting in the DOJ the power
to determine who can qualify as a
witness and who shall be granted
immunity from prosecution is not
unconstitutional.
The power to choose who shall be a
state witness is not an inherent judicial
prerogative. Under Rule 119, the court
is given the power to discharge a state
witness only because it has already
acquired jurisdiction over the crime and
the accused. [Webb v. De Leon (1995)]
Admission into the Program [Sec. 3, RA
6981] Any person who has witnessed
or has knowledge/information on the
commission of a crime and has testified
or is testifying or about to testify before
any judicial or quasi-judicial body or
any investigating authority, may be
admitted into the Program. Provided,
that:
(1) The offense in which his testimony
will be used is a grave felony as
defined under the RPC or its
equivalent under special laws;
(2) His testimony can be substantially
corroborated in its material points;
(3) He or any member of his family
within the 2nd civil degree of
consanguinity/affinity is subjected
to threats to his life or bodily injury
or there is a likelihood that he will
be
killed/forced/intimidated/harassed
/ corrupted to prevent him from
testifying, or to testify falsely or
evasively, because or on account of
his testimony; and
(4) He is not a law enforcement officer,
even if he would be testifying
against the other law enforcement
officers.
In such a case, only the immediate
members of his family may avail
themselves of the protection
provided for under this Act.
If the DOJ, after examination of said
applicant and other relevant facts, is
Chapter 10: Trial
convinced that the requirements of
this Act and its IRR have been
complied with, it shall admit said
applicant to the Program, require
said witness to execute a sworn
statement detailing his
knowledge/information on the
commission of the crime, and
thereafter issue the proper
certification.
Witness in legislative investigations
[Sec. 4, RA 6981] In case of legislative
investigations in aid of legislation, a
witness, with his express consent, may
be admitted into the Program upon the
recommendation of the legislative
committee where his testimony is
needed when in its judgment there is
pressing necessity therefor: Provided,
That such recommendation is approved
by the President of the Senate or the
Speaker of the House of
Representatives, as the case may be.
State witness [Sec. 10, RA 6981] Any
person who has participated in the
commission of a crime and desires to be
CRIMINAL PROCEDURE
a witness for the State, can apply and, if
qualified as determined in this Act and
by the DOJ, shall be admitted into the
Program whenever the following
circumstances are present:
(1) The offense in which his testimony
will be used is a grave felony as
defined under the RPC or its
equivalent under special laws;
(2) There is absolute necessity for his
testimony;
(3) There is no other direct evidence
available for the proper prosecution
of the offense committed;
(4) His testimony can be substantially
corroborated on its material points;
(5) He does not appear to be most
guilty; and
(6) He has not at any time been
convicted of any crime involving
moral turpitude.
(7) An accused discharged from an
information or criminal complaint
by the court in order that he may be
a State Witness pursuant to Rule
119, Sec. 9-10 may upon his
petition be admitted to the Program
if he complies with the other
requirements of this Act. Nothing in
this Act shall prevent the discharge
of an accused, so that he can be
used as a State Witness under Rule
119.
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REVIEWER IN REMEDIAL LAW
Effect of admission of a State Witness
into the Program [Sec. 12, RA 6981]
The certification of admission into the
Program by the DOJ shall be given
full faith and credit by the
provincial/city prosecutor who is
required not to include the Witness
in the criminal complaint or
information and if included therein,
to petition the court for his
discharge in order that he can
utilized as a State Witness. The
court shall order the discharge and
exclusion of the said accused from
the information.
Admission into the Program shall entitle
such State Witness to immunity
from criminal prosecution for the
offense/s in which his testimony will
be given or used and all the rights
and benefits provided under Section
8 hereof.
Compelled testimony [Sec. 14, RA
6981]
Any Witness admitted into the Program
pursuant to Sections 3 and 10 of
this Act cannot refuse to testify or
give evidence or produce
books/documents/records/writings
necessary for the prosecution of the
offense/s for which he has been
admitted into the Program on the
ground of the constitutional right
against self-incrimination,
but he shall enjoy immunity from
criminal prosecution and cannot be
subjected to any penalty or
forfeiture for any
transaction/matter/thing
concerning his compelled testimony
or books/documents/records/
writings produced.
o In case of refusal of said Witness
to testify or give evidence or
produce books/documents/
records/ writings, on the ground
of the right against self-
incrimination, and the state
prosecutor or investigator
believes that such evidence is
absolutely necessary for
successful prosecution of the
offense/s charged or under
investigation,
o he, with the prior approval of the
DOJ, shall file a petition with
the appropriate court for the
issuance of an order requiring
said Witness to testify, give
evidence or produce the
Chapter 10: Trial
books/documents/records/
writings described, and the court
shall issue the proper order.
The court, upon motion of the state
prosecutor or investigator, shall
order the arrest and detention of the
Witness in any jail contiguous to the
place of trial/investigation until
such time that the Witness is willing
to give such testimony or produce
such documentary evidence.
RA 6981 Rule 119, Sec. 17
Limited only to grave
felonies under the RPC
Applies to all felonies
or its equivalent under
a special law
It would suffice that
there is no other direct
evidence for the proper
Absolute necessity for
prosecution of the
testimony
offense committed
except the testimony of
the accused
Witness is Witness must still
automatically entitled apply for the
to certain rights and employment of said
CRIMINAL PROCEDURE
benefits rights
Any member of the
family of the person
applying for admission
within the 2nd civil
degree of
consanguinity or
The same is not
required
affinity is subjected to
threat to his life or
injury, as to prevent
him from testifying
falsely or evasively
Witness applying is
not a law enforcement No limitation
officer
Witness is charged in
Witness need not be
court as one of the
charged elsewhere
accused
Immunity is granted Immunity is granted
by the DOJ by the court
5. The Ombudsmans power to grant
immunity. [Sec. 17, RA 6770]
Ombudsman is given authority to grant
immunity to any person whose
a
testimony is necessary to determine the
truth.
In all hearings/inquiries/proceedings of
the Ombudsman, including PI, no
person subpoenaed to testify as a
witness shall be excused from attending
and testifying or from producing books/
papers/ correspondence/ memoranda/
records on the ground that the
testimony or evidence, documentary or
Page 313 of 370
REVIEWER IN REMEDIAL LAW
otherwise, required of him, may tend to
incriminate him or subject him to
prosecution:
Provided, That no person shall be
prosecuted criminally for or on account
of any matter concerning which he is
compelled, after having claimed the
privilege against self-incrimination, to
testify and produce evidence,
documentary or otherwise.
Under such terms and conditions as it
may determine taking into account
the pertinent ROC provisions, the
Ombudsman may grant immunity
from criminal prosecution to any
person
whose possession and production of
documents/evidence may be
necessary to determine the truth in
any hearing/inquiry/proceeding
being conducted by the
Ombudsman or under its authority,
in the performance or in the
furtherance of its constitutional
functions and statutory objectives.
The immunity granted under this and
the immediately preceding
paragraph shall not except the
witness from criminal prosecution
for perjury or false testimony nor
shall he be exempt from demotion or
removal from office.
Any refusal to appear or testify
pursuant to the aforecited
provisions shall be subject to
punishment for prompt contempt
and removal of the immunity from
criminal prosecution.
a. Immunity under PD 749
It grants immunity from prosecution to
givers of bribes and other gifts and to
their accomplices in bribing public
officials.
b. Immunity under Sec. 5, EO 14-A
PCGG is authorized to grant immunity
to any person who provides information
or testifies in any investigation
conducted by it to establish the
unlawful manner in which the
property/ies were acquired
accumulated where such
information/testimony is necessary to
ascertain/prove guilt or civil liability.
The immunity granted shall be
continued to protect the witness who
repeats such testimony before the
Sandiganbayan when required to do so.
Chapter 10: Trial
c. Immunity under Sec. 28, RA 6646
The COMELEC may grant immunity
from prosecution to any acceptor of
bribed money to vote for or against a
candidate to be used as witness in the
prosecution of election offense of vote-
buying.
6. Effect of discharge
General rule: The order of discharge
shall: [Rule 119, Sec. 18]
Amount to an acquittal of the
discharged accused;
Bar future prosecutions for the
same offense.
o Exception: If the accused
fails/refuses to testify against
his co-accused in accordance
with his sworn statement
constituting the basis for his
discharge.
Any error in asking for and in granting
the discharge cannot deprive the
discharged of the acquittal and the
constitutional guaranty against double
CRIMINAL PROCEDURE
jeopardy. [People v. Verceles (2002)]
Subsequent amendment of the
information does not affect discharge.
[People v. Taruc (1962)]
7. Re-opening of trial
At any time before finality of the
judgment of conviction, the judge may
reopen the proceedings motu proprio or
upon motion with hearing in either
case. [Rule119, Sec. 24]
Ground: To avoid a miscarriage of
justice.
An order re-opening the case to give the
prosecution opportunity to submit
additional evidence without giving the
accused the opportunity to rebut the
evidence, is invalid. [Santiago v.
Sandiganbayan (1999)]
The right of the prosecutor does not
extend to the filing of the MNT and
also in the modification of the
judgment - only the accused is
allowed to do so.
or Proceedings shall be terminated
within 30 days from the order
granting it.
Page 314 of 370
REVIEWER IN REMEDIAL LAW
C. OTHER PROCEDURAL RULES
1. When proper offense is not
charged
a. When applicable [Rule 119, Sec. 19]
If there is mistake in charging the
proper offense and the accused cannot
be convicted of the offense charged or
any other offense necessarily included
therein, and the mistake becomes
manifest at any time before judgment.
b. Procedure [Rule 119, Sec. 19]
The accused shall not be discharged if
there appears good cause to detain him.
The court shall:
Commit the accused to answer for the
proper offense; and
Dismiss the original case upon the filing
of the proper information.
Rationale: The accused has a right to be
informed of the nature and the
cause of the accusation against him.
Purpose: It is primarily directed to the
TC to invest it with authority to direct
by itself dismissal and refiling, provided
that the accused would not be placed in
double jeopardy.
2. Duties of counsels and
prosecutors
The DOJ Public Attorneys Office (PAO)
has the duty of assisting an accused
who is not financially capable to have
his own counsel.
Purpose: [Rule 119, Sec. 7]
To inform the detained accused of
his right to trial;
Right of the PAO to have access to
confer with him and prepare him for
trial.
a. Duty of PAO knowing that the accused
he is assigned to defend is detained
[Rule 119, Sec. 7; Sec. 12, Circular No.
38-98]
Reasons for preventive detention of the
accused:
1) Charge of a bailable offense but he
has no means to post bail;
2) Charged of a non-bailable offense;
3) Service of a term of imprisonment in
any penal institution.
PAOs duty to perform the following:
Promptly undertake:
o To obtain the presence of the
prisoner for trial;
Chapter 10: Trial
o To cause a notice to be served on
the person having custody of the
prisoner, requiring such person
to so advise the prisoner of his
right to demand trial.
Upon receipt, the custodian
shall promptly advise the
prisoner of the charge and of
his right to demand trial.
If at anytime the prisoner
informs his custodian that he
demands such trial, the latter
shall cause notice to be sent
promptly to the PAO.
Upon receipt of notice from the
custodian, the PAO shall promptly
seek to obtain the presence of the
prisoner for trial.
When the custodian receives from
the PAO a properly supported
request, the prisoner shall be made
available accordingly.
b. Sanctions on counsels [Rule 119, Sec. 8]
Sanctions may be imposed on the
private counsel for the accused, the
CRIMINAL PROCEDURE
PAO or the prosecutor
Kinds of sanctions:
Criminal;
Administrative;
Contempt of court.
Punishable acts/omissions:
Knowingly allowing the case to be
set for trial without disclosing that a
necessary witness would be
unavailable.
Filing a motion solely for delay
which he knows is totally frivolous
and without merit.
Making a statement for the purpose
of obtaining continuance which he
knows to be false and which is
material to the granting of a
continuance;
Willfully failing to proceed to trial
without justification.
Applicable sanctions: [Sec. 13, Circular
38-98]
On private defense counsel: Fine not
exceeding P20K;
On counsel de oficio, PAO or public
prosecutor: Fine not exceeding P5K;
Denial to any defense counsel or
prosecutor the right to practice
before the court trying the case for a
period not exceeding 30 days;
Any punishment is without
prejudice to any appropriate
criminal action or other sanctions
authorized under the ROC.
Page 315 of 370
REVIEWER IN REMEDIAL LAW
Purpose:
To speed up the trial and disposition
of the case;
To force counsels to go to court
ready for trial and not merely ready
for postponement.
Chapter 10: Trial
A party to the action cannot be
excluded though he himself is a
witness.
The public may be excluded when the
offended party in cases involving private
crimes testifies.

3. Appointment of acting prosecutor 5. Archiving criminal cases [SC

An acting prosecutor is appointed when
the prosecutor and his
assistant/deputy are disqualified to act.
[Rule 119, Sec. 20]
Grounds for disqualification of a
prosecutor: [Rule 137, Sec. 1]
He, or his wife/child, is pecuniarily
interested as heir/legatee/creditor
or otherwise;
He is related to either party within
the 6th degree of consanguinity or
to counsel within the 4th degree,
computed according to the rules of
civil law.
He has been
executor/administrator/guardian/
trustee or counsel;
Circular 7-A-82]
Done whenever an accused remains at
large for 6 months from delivery of the
warrant to the proper peace officer.
Judges who fail to comply may be held
administratively liable.
6. Inhibition of judges [Rule 137]
a. Kinds:
COMPULSORYthe law conclusively
presumes that judges cannot actively
and impartially sit in the following
instances:
where the judge or judicial officer, or his
wife or child, is pecuniarily
interested or

CRIMINAL PROCEDURE
He has presided in any inferior where the judge or judicial officer is
court when his ruling/decision is related to either party within the
the subject of review, without the sixth degree of consanguinity or
written consent of all the parties affinity
interest, signed by them and entered where the judge or judicial officer is
upon record. related to counsel within the fourth
For any other reason. [Rule 119, Sec. degree
20] VOLUNTARYbased on reasons that
PROCEDURE [Rule 119, Sec. 20] the judge, in his sound discretion,
(1) The judge or the prosecutor shall thinks are just or valid to disqualify
communicate with the DOJ himself.
Secretary. Rule 137 does not give judges the
(2) The DOJ Secretary appoints an unfettered discretion to decide whether
acting prosecutor. to desist from hearing a case. The
inhibition must be for just and valid
4. Exclusion of the public from the causes.
courtroom The mere imputation of bias or
General rule: The accused has the right partiality is not enough ground for them
to a public trial. to inhibit, especially when the charge is
without basis. This Court has to be
Exception: If the judge excludes
public from the trial. [Rule 119, Sec. shown acts or conduct clearly indicative
21] of arbitrariness or prejudice before it
can brand them with the stigma of bias
Motu proprio On motion of the
or partiality.
accused If those concerned are not
disqualified, it is their official duty
Evidence to be Court may also to proceed with the case or else risk
produced during the exclude the public being called upon to account for
trial is offensive to from the trial, except their dereliction.
decency or public court personnel and
morals counsels of parties To allow judges to inhibit for just
about any cause would open the
floodgates to a form of forum-
shopping, in which litigants would
be allowed to shop for a judge more

Page 316 of 370

REVIEWER IN REMEDIAL LAW Chapter 10: Trial
sympathetic to their cause. Such
action would be antithetical to the
speedy and fair administration of
justice. [Pagoda Phils. v. Universal
Canning (2005)]

7. Desistance by the offended party

Desistance is when the offended party

states that s/he is no longer interested
in testifying or prosecuting. By itself, it
is not a ground for the dismissal of an
action once it has been instituted in
court. [People v. Dimaano [2005])
General rule: Desistance is not one of
the accepted modes of extinguishing
criminal liability. If at all, such
desistance will have the effect of
voluntary releasing the accused from
the civil liability arising therefrom.
[Padua v. Molina (2000)]
It is a ground for dismissing the
case only if the prosecution can no
longer prove the guilt of the accused
beyond reasonable doubt
without the testimony of the

CRIMINAL PROCEDURE
offended party.
Once a complaint or information is filed
in Court any disposition of the case as
its dismissal or the conviction or
acquittal of the accused rests in the
sound discretion of the Court.
Any move on the part of the
complainant or offended party to
dismiss the criminal case, even if
without objection of the accused,
should first be referred to the
prosecuting fiscal for his own view
on the matter.
He is, after all, in control of the
prosecution of the case and he may
have his own reasons why the case
should not be dismissed. It is only
after hearing the prosecuting fiscal's
view that the Court should exercise
its exclusive authority to continue or
dismiss the case. (People v. Hon.
Sunga [1988])

Page 317 of 370

REVIEWER IN REMEDIAL LAW Chapter 11: Judgment

Chapter 11: Judgment signed by the judge. [People v.

Catolico (1972)]
A. IN GENERAL A verbal order dismissing the case
1. REQUISITES can be rescinded without prejudicing
2. CONVICTION the rights of the accused No double
3. ACQUITTAL jeopardy arises. [Abaya v. Garcia
B. PROMULGATION OF JUDGMENT (1988)]
1. PROMULGATION WHERE JUDGE IS
The remedy for a verbal judgment is
ABSENT
2. PRESENCE OF ACCUSED REQUIRED; to appeal or file a petition for
EXCEPTION mandamus to compel the court to
C. MODIFICATION OF JUDGMENT put the decision in writing.
1. WHEN JUDGMENT ON CONVICTION
BECOMES FINAL Personally and directly prepared by the
2. WHEN JUDGMENT OF ACQUITTAL judge.
BECOMES FINAL Every decision must state distinctly
D. ENTRY OF JUDGMENT
and clearly the factual and legal
1. MANNER
2. FORMALITIES REQUIRED
basis therefore. [Art. 8, Sec. 6, Consti]
3. EXISTING PROVISIONS GOVERNING Judges must nonetheless be allowed
SUSPENSION OF SENTENCE to synthesize and simplify their
decisions considering the heavy load
A. IN GENERAL of trial judges for as long as there is
compliance with minimum essence
JUDGMENT The adjudication by the of factual and legal bases.
court that the accused is guilty or not o He may quote from narration of
guilty of the offense charged and the facts by the OSG in his brief or
imposition on him of the proper penalty memoranda of both parties and

CRIMINAL PROCEDURE
and civil liability, if any. [Rule 120, Sec. adopt the same as his own.
1] [Hernandez v. CA (1993)]
ELEMENTS OF A JUDGMENT [Gonzalo o Common sense dictates that he
Puyat and Sons v. Auditor General be given complete liberty to
(1969)] express his opinion,
1) Controversy presented; unrestrained by any fear that a
2) Authority to decide; higher court might call down.
3) Decision. [People v. Meneses (1998)]

Judgment Opinion Ratio Signed by the judge.

decidendi The judge who presided over the
Pronounces Informal Provides for
entire trial would be in a better
the expression of the basic position to ascertain the truth or
disposition of the views of the reason for the falsity of the testimonies.
the case court judgment But the judge who only took over can
Cannot prevail render a valid decision by relying on
Filed with TSN. It does not violate due process.
against its final
clerk of court
order or [People v. Badon (1999)]
decision Contains clearly and distinctly a
Forms no part statement of facts proved and the law
of the upon which judgment is based.
judgment,
There is sufficient compliance if the
though they
may be
decision summarizes the evidence of
combined in both parties, synthesizes the findings
one instrument and concisely narrates how the
offense was committed.
1. Requisites Failure on the part of the TC to make
a finding of facts is a revocable error.
a. Form [Rule 120, Sec. 1] There is no law that requires a
Written in official language. specific finding of facts with respect to
If given verbally, it is incomplete. It the evidence for the defense. [Reyes v.
does not have an effect before it was People (2006)]
actually reduced to writing and

Page 318 of 370

REVIEWER IN REMEDIAL LAW
b. Judge who penned the decision need not
be the one who heard the case
The fact alone that the judge who heard
the evidence was not the one who
rendered the judgment but merely relied
on the record of the case does not
render his judgment erroneous or
irregular.
The Court generally will not find any
misapprehension of facts as it can be
fairly assumed under the principle of
regularity of performance of duties of
public officers that the transcript of
stenographic notes were thoroughly
scrutinized and evaluated by the judge
himself. [Concepcion v. Court of Appeals
(2000)]
2. Conviction
a. The judgment of conviction shall state:
The legal qualification of the offense
constituted by the acts committed by
the accused and the
aggravating/mitigating circumstances
which attended its commission.
If a decision does not contain a
dispositive portion but the last two
paragraphs embody the courts
conclusions, then the decision is
valid. [People v. Valeriano (1993)]
TC should express not only its
conclusion but also the provision of
the law violated for the purpose of
informing the accused of the nature
of the crime and the law penalizing
the same.
No need to state the particular
paragraph and article in the RPC, so
long as the offense is clearly
understood from the facts.
Mere failure to specify the particular
provision of law does not invalidate
the decision, if it did actually apply
the proper provision.
The participation of the accused in the
offense, whether as principal,
accomplice or accessory after the fact.
The penalty imposed upon the accused.
Penalty should not be imposed in the
alternative. There should be no
doubt as to the offense committed
and the penalty for it.
The civil liability or damages caused by
his wrongful act/omission to be
recovered from the accused by the
offended party, if there is any, unless
the enforcement of the civil liability by a
separate civil action has been
reserved/waived.
Chapter 11: Judgment
PROOF BEYOND REASONABLE DOUBT
Degree of proof which produces
conviction in an unprejudiced mind.
[People v. Bacalzo (1991)]
b. Judgment for two or more offenses
General rule: Complaint/information
must charge only one offense.
Exception: Cases in which existing laws
prescribe a single punishment for
various offenses.
General rule: Duplicitous information is
subject to a motion to quash.
Exception: Defect is waived when
accused fails to move for quashal.
THUS, where the accused fails to object
to 2 or more offenses charged in a single
information / complain before trial [Rule
120, Sec. 3], the court may:
convict him of as many offenses as
are charged and proved; and
o Exception: One of the offenses
has been a necessary means for
committing the other offense and
where both have been the result
of a single act.
CRIMINAL PROCEDURE
impose on him the penalty for each
offense, setting out separately the
findings of fact and law in each
offense.
o Exception: Maximum duration of
offense: Follow the three-fold
rule on the service of penalty.
c. Judgment in case of variance between
allegation and proof
General rule: The defendant can be
convicted only of the crime with which
he is charged.
Rationale: He has the right to be
informed of the nature of the offense
with which he is charged before he is
put on trial. [People v. Guevarra]
However, minor variance between
the information and the evidence:
o Does not alter the nature of the
offense;
o Does not determine or qualify
the crime or penalty;
o Cannot be ground for acquittal.
Exception: He can be convicted of
an offense proved provided it is
included in the charge, or of an
offense charged which is included in
that which is proved. [Rule 120, Sec.
4]
o The accused can be convicted of
an offense only when it is both
charged and proven.
Page 319 of 370
REVIEWER IN REMEDIAL LAW
o The mere fact that the evidence
presented would indicate that a
lesser offense outside the courts
jurisdiction was committed does
not deprive the court of its
jurisdiction, which had vested in
it under the allegations in the
information.
Exception to the exception:
Where there are facts that
supervened after the filing of
the information which
change the nature of the
offense.
d. When an offense includes or is included
in another [Rule 120, Sec. 5]
The offense charged necessarily
includes the offense proved when some
of the essential elements/ingredients of
the former, as alleged in the
complaint/information, constitute the
latter.
An offense charged is necessarily
included in the offense proved when the
essential ingredients of the former
constitute or form part of those
constituting the latter.
i. Effect
The accused shall be convicted of:
[Rule 120, Sec. 4]
1) The offense proved which is
included in the offense charged;
or
2) The offense charged which is
included in the offense proved
The right to be informed of the
charges has not been violated
because where an accused is
charged with a specific crime, he is
duly informed also of lesser
crimes/offenses included therein.
[People v. Villamar (1998)]
Where a complex crime is charged
and the evidence fails to support the
charge as to one of the component
offenses, the accused can be
convicted of the other.
The accused should move to
quash on the ground of duplicity
to prevent him from being
convicted of as many component
offenses as may be proved.
State liability for unjust conviction
The DOJ Board of Claims is authorized
to receive/evaluate/process/investigate
claims of victims of unjust
Chapter 11: Judgment
imprisonment/detention and victims of
violent crimes. [RA 7309]
Requirements for compensation:
1) Unjust accusation;
2) Unjust conviction; and
o It is the same as knowingly
rendering an unjust
judgment - It is contrary to
law or is not supported by the
evidence and the same is
made with conscious and
deliberate intent to do an
injustice. [Art. 204, RPC]
3) Unjust imprisonment.
3. Acquittal
Definition: A finding of not guilty based
on the merits, either:
The evidence does not show that his
guilt is beyond reasonable doubt; or
A dismissal of the case after the
prosecution has rested its case and
upon motion of the accused on the
ground that the evidence fails to
CRIMINAL PROCEDURE
show beyond doubt that accused is
guilty.
REASONABLE DOUBT Doubt
engendered by an investigation of the
whole proof and an inability, after such
investigation, to let the mind rest upon
the certainty of guilt.
Rationale: It is always better to err
in acquitting than in punishing.
[People v. Lizada (1993)]
Distinction between acquittal and
dismissal of case
Acquittal Dismissal
[Rule 120] [Rule 117]
Terminates the case
Decision on the merits
Not on the merits and
based on a finding that
no finding of guilt is
the accused is not
made
guilty
The judgment shall state whether:
1) The evidence of the prosecution
absolutely failed to prove the guilt of
the accused; or
2) It merely failed to prove his guilt
beyond reasonable doubt.
o #2 does not extinguish the civil
liability arising from his acts,
since the civil liability arose not
from a crime but from the
damage caused by such acts.
Page 320 of 370
REVIEWER IN REMEDIAL LAW
General rule: The court has authority to
express disapproval of certain acts even
if judgment is for acquittal.
Exception: The court is not permitted to
censure the accused in a judgment for
acquittal no matter how light, a
censure is still a punishment.
No court has the power to mete out
punishment. A finding of guilt must
precede the punishment.
This reprehension, however, must
be relevant to the issue in the case.
If irrelevant/impertinent, they
should be stricken out or expunged
from the record like any other
extraneous matters. [People v.
Meneses (1998)]
Acquittal based on reasonable ground
does not bar a separate civil action
based on quasi-delict. [Lontoc v. MD
Transit (1988)]
Court may hold accused civilly liable
even when it acquits him. Acquittal
extinguishes civil liability only when the
judgment includes a declaration that
the facts from which the civil liability
might arise did not exist.
The court may nonetheless hold the
accused civilly liable in favor of the
offended party, or it may deny the
award of civil damages expressly or
impliedly by being silent on the
matter.
The losing party may appeal the
ruling on the civil liability, as in any
other ordinary appeal, in his name
and not in the name of the People
Judge acquitting an accused cannot
punish him at the same time
B. PROMULGATION OF JUDGMENT
(1997 BAR)
PROMULGATION An official
proclamation/announcement of
judgment or order.
Judgment/sentence does not become a
judgment/sentence in law until:
1) Read and announced to the
defendant; or
2) Has become a part of the record of
the court. [US v. CFI of Manila, 24
Phil 321]
Where there is no promulgation of
judgment, no right to appeal accrues.
SIN PERJUICO JUDGMENT Judgment
without a statement of facts. [Dizon v.
Lopez (1997)]
Chapter 11: Judgment
Merely reading the dispositive
portion of the decision is not
sufficient.
Judgment must state the facts and
the law on which it is based.
While SC has expressed approval of
the practice of some judges
withholding the dispositive portion
from their opinions until the very
last moment of promulgation in
order to prevent leakage, such refers
to the preparation of the decision
and not to promulgation.
There is no more reason to keep it a
secret at the stage of promulgation.
1. Promulgation where judge is
absent [Rule 120, Sec. 6]
The judgment may be promulgated by
the clerk of court when the judge is
absent or outside the province or city.
2. Presence of accused required;
exception [Rule 120, Sec. 6]
CRIMINAL PROCEDURE
General rule: Presence of the accused is
mandatory.
Exception: convictions for light offenses
Conviction for He may appear through
light offense counsel/representative
To prevent subversion of
Promulgation judicial process and enable
in absentia enforcement of civil liability
No appeal necessary;
judgment is final and
executory
Verdict of - Note the old rule that
presence of the accused
acquittal
during promulgation of
judgment is required only in
case of conviction
If the judgment is for conviction and the
failure of the accused to appear was
without justifiable cause, he shall lose
the remedies available in the ROC
against the judgment and the court
shall order his arrest.
However, within 15 days from
promulgation of judgment, he can
surrender and file a motion for leave
of court to avail of these remedies.
He shall state the reasons for his
absence.
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REVIEWER IN REMEDIAL LAW
If he proves his absence was for a
justifiable cause, shall be allowed to
avail of the remedies within 15 days
from notice.
Promulgation date where judge no
longer a judge is void.
If at the time of the promulgation,
the judge penning the decision has
ceased being a judge of the court,
the decision would not be an act of
the court. [People v. Dimalanta]
Promulgation thereby a succeeding
judge produces no legal effect since
it cannot restore validity to a
document already void.
C. MODIFICATION OF JUDGMENT
Judgment of conviction may be modified
before it becomes final
Upon motion of the accused: [Rule
120, Sec. 7]
o Before it becomes final, or
o Before appeal is perfected.
The court motu propio and without
notice to either party, on the basis of
the evidence in the records, so long as
the judgment has not become final, as
it still has the jurisdiction over the
case.
Conversely, a judgment which has become
final and executory can no longer be
amended or corrected. [Icao v. Apalisok
(1989)]
Exception: Only as regards clerical
errors.
Even the subsequent discovery of an
erroneous imposition of a penalty will
not justify correction of the judgment
after it has become final.
1. When judgment on conviction
becomes final [Rule 120, Sec. 7]
Judgment becomes final:
1) After the lapse of the period for
perfecting an appeal;
2) When the sentence has been
partially/totally satisfied or served; or
3) The accused has expressly waived in
writing his right to appeal,
4) When the accused applies for
probation.
Exception: cases where death penalty
was imposedautomatic review;
judgment does not become final after
the promulgation and by the TCs
issuance of a commitment order.
Before the judgment becomes final, TC
has plenary power to make, either on
motion or motu proprio, such amendment
or alterations as it may deem best, within
Chapter 11: Judgment
the frame of law, to promote the ends of
justice.
After finality, TC is divested of authority to
amend/alter the judgment, except to
correct clerical errors.
2. When judgment of acquittal
becomes final
It is immediately final and executory.
The State may not seek its review without
placing the accused in double jeopardy.
D. ENTRY OF JUDGMENT
After judgment has become final, it
shall be entered in accordance with
Rule 36. [Rule 120, Sec. 8]
1. Manner
Made when there is no appeal or
MNT/MFR is filed within the time
provided in the ROC. [Rule 36, Sec. 2]
How made: [Rule 36, Sec. 2]
The judgment or final order shall be
entered by the clerk in the book of
CRIMINAL PROCEDURE
entries of judgments.
The date of finality of the judgment or
final order shall be deemed to be the
date of its entry.
2. Formalities required [Rule 36,
Sec. 2]
The record shall contain the dispositive
part of the judgment or final order.
It shall be signed by the clerk, with a
certificate that such judgment or final
order has become final and executory.
3. Existing provisions governing
suspension of sentence
a. Rules on probation
Matters relating to suspension of
sentence, parole and probation are not
affected by the Rule. [Rule 120, Sec. 9]
b. Suspension of sentence of youthful
offender
Suspension of sentence as respects
youthful offenders is provided for in The
Child and Youth Welfare Code (P.D. No.
603, as amended by P.D. No. 1179), which
repealed Article 80 of the Revised Penal
Code.
The Comprehensive Dangerous Drugs Act
of 2002 provides suspended sentence for
minors found liable for illegal possession
of dangerous drugs. [Sec.66]
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REVIEWER IN REMEDIAL LAW Chapter 12: Post-Judgment Remedies

Chapter 12: Post-Judgment General rule: Error of the defense

Remedies counsel in the conduct of the trial is
neither an error of law nor an
A. MOTION FOR RECONSIDERATION OR irregularity.
NEW TRIAL (MFR/MNT) o Exception: Acquittal would in all
1. DEFINITION probability have followed the
2. GROUNDS FOR MNT introduction of certain testimony
3. GROUND FOR MFR which was not submitted at the
4. PROCEDURE trial under improper or
5. EFFECT OF GRANTING MNT/MFR injudicious advice of
B. ORDINARY APPEAL
incompetent counsel.
1. DEFINITION
2. FINAL JUDGMENT OR ORDER Irregularities must be with such
3. APPELLATE JURISDICTION OF THE CA seriousness as to affect prejudicially
4. MODES OF REVIEW the substantial rights of the
5. PROCEDURE accused.
6. JURISDICTION OF THE TC PRIOR TO That new and material evidence has
EXPIRATION OF PERIOD TO APPEAL been discovered which the accused
C. PROCEDURE IN THE DIFFERENT could not with reasonable diligence
COURTS have discovered and produced at the
1. PROCEDURE IN THE MTC (INCL. RULE
trial and which if introduced and
ON SUMMARY PROCEDURE)
2. PROCEDURE IN THE CA admitted would probably change the
3. PROCEDURE IN THE SC judgment.
NEWLY DISCOVERED EVIDENCE
A. MOTION FOR RECONSIDERATION Evidence which could not, by the
exercise of due diligence, have been
OR NEW TRIAL (MFR/MNT)
discovered before the trial in the court

CRIMINAL PROCEDURE
below.
1. Definition
Requisites: That the evidence - [Jose
v. CA (1997)]
New trial and reconsideration are the
a) Was discovered after the trial;
same thing in criminal procedure
b) Could not have been discovered
whether it be a first, second, new or an
and produced at the trial even
old trial. New refers to time and not to
with the exercise of reasonable
substance. [US v. Dacir (1913)]
diligence. [US v. Pico (1982)]
NEW TRIAL A proceeding whereby
o Burden of proving this is on
errors of law or irregularities are
the accused. [US v. Torrente
expunged from the record, or new
(1922)]
evidence is introduced, or both steps
c) Is material, not merely
are taken. [People v. Tamayo (2002)]
cumulative/corroborative/impea
Purpose: A new invention to temper
ching; and
severity of a judgment or prevent the
d) Is of such weight that it would
failure of justice. [Jose v. CA (1997)]
probably change the judgment if
The word trial as used covers not only
admitted.
trial proper but also includes the
o It must be of weighty
rendition of judgment. [People v.
influence and will affect the
Enriquez (1951)]
result of the trial. [People v.
Alfaro (2003)]
New trial Reopening of the case
Award given after Is had prior to the
judgment on the case rendition of judgment 3. The only ground for MFR
was already rendered but after the parties
have submitted the Errors of law or fact in the judgment,
case for decision which requires no further proceedings.
[Rule 121, Sec. 3]
2. Grounds for MNT [Rule 121, Sec. Rationale: To afford the TC the
2] opportunity to correct its own mistakes
and to avoid unnecessary appeals.
That errors of law or irregularities
prejudicial to the substantial rights of
the accused have been committed
during the trial;

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REVIEWER IN REMEDIAL LAW Chapter 12: Post-Judgment Remedies

4. Procedure e. Form of motion [Rule 121, Sec. 4]

a. When to file MNT/MFR
At any time before a judgment of
conviction becomes final; [Rule 121, Sec.
1]
After sentence has become final, any
attempt to alter/amend/modify the
same, except to correct clerical
errors, is unwarranted in law. [US v.
CFI Manila]
Before an appeal is perfected.
After an appeal is perfected, the
accused may still file a MNT in the
appellate court on the ground of
newly discovered evidence [Rule 124,
Sec. 14]
b. Who may initiate MNT/MFR [Rule 121,
Sec. 1]
On motion of the accused;
By the court motu propio, BUT with the
consent of the accused.
The consent may be given tacitly
(e.g. he interposed no objection to
the new trial of the case).
(1) It must be in writing.
(2) It shall state the grounds on which
it is based.
If based on newly-discovered evidence
the motion must be supported by
o affidavits of witnesses by whom
such evidence is expected to be
given; or
o duly authenticated copies of
documents which are proposed
to be introduced in evidence.
(3) Notice of the motion shall be given
to the prosecutor.
Private prosecutor need not be served
with the motion.
(4) Filing of the motion must be made
within 15 days from date of
promulgation of judgment, the 15-
day period being non-extendable.
f. Hearing on motion
The court may hear evidence by
affidavits or otherwise when the motion
calls for resolution of any question of
fact. [Rule 121, Sec. 5]

CRIMINAL PROCEDURE
Purpose: merely to determine WON the
c. Granting of motion new trial requested should be granted.
Motion may be filed with the appellate
court when during the pendency of the 5. Effect of granting MNT/MFR [Rule
appeal new and material evidence have 121, Sec. 6]
been discovered.
Grant rests upon the discretion of the In all cases:
court. The original judgment set aside or
Unless there is a clear showing of vacated;
GAD, the judgment of the court on A new judgment is rendered
the matter shall not be disturbed. accordingly; and
[Republic v. Vda. De Castelvi (1974)] Parties are left in the same situation
The correctness/validity/legality of as if no trial had ever taken place.
a new trial in a criminal case do not
depend upon the consent of the Specific effects:
parties but upon the grant being
made conformably to the Ground Effect Court may
prescription of the ROC and the Errors of law All Allow
applicable jurisprudence. [Luciano v. or proceedings introduction of
Estrella (1970)] irregularities and evidence additional
committed affected shall evidence in the
If filed on the basis of minor/trivial
during the be set aside interest of
conflicts, motion will be denied. trial and taken justice
What would constitute meritorious anew
circumstances is left to the sound
discretion of the court on a case to If error or
case basis. [Jose v. CA (1997)] irregularity
goes into the
d. Effect on period to appeal jurisdiction,
entire
General rule: The period at the end of
proceeding is
which the judgment in a criminal case void and must
becomes final is not suspended. be set aside
Exception: by the filing of a
MNT/MFR.

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REVIEWER IN REMEDIAL LAW Chapter 12: Post-Judgment Remedies
Newly- Evidence Allow FINAL ORDER One which disposes of
discovered already introduction of the whole subject matter or terminates
evidence adduced shall other such a particular proceeding/action, leaving
stand and the evidence in the nothing to be done but to enforce by
newly- interest of
execution what has been determined.
discovered justice
and such General rule: An order overruling the
other evidence motion is interlocutory; hence, not
shall be taken appealable. [Fuster v. Johnson (1903)]
and Exception: When the motion is based
considered upon lack of jurisdiction or the ground
together with that the information fails to allege facts
the evidence constituting a public offense, it is not
already in the interlocutory. [Lopez v. Alikpala (1965)]
record
(2005 Bar)
An order sustaining a MTQ is a final
Remedy against GAD in granting order; hence, immediately appealable.
MNT/MFR: Certiorari or prohibition.
Otherwise, prosecution may no 3. Appellate Jurisdiction of the CA
longer have opportunity to question
the order if accused is acquitted The CA is vested with the power to try
after new trial is conducted (because cases and conduct hearings, receive
there will be double jeopardy). evidence, and perform any and all acts
[Luciano v. Estrella (1970)] necessary to resolve factual issues in
cases falling within its original and
B. ORDINARY APPEAL appellate jurisdiction. [BP 129]
The CA also has appellate jurisdiction

CRIMINAL PROCEDURE
1. Definition in cases where the RTC imposed penalty
of reclusion perpetua, life
APPEAL A proceeding for review by imprisonment, or where a lesser penalty
which the whole case is transferred to a is imposed for offenses committed in the
higher court for a final determination. same occasion or which arose of the
same occurrence that gave rise to the
An appeal in a criminal proceeding more serious offense for which the
throws the whole case open for review penalty for death, reclusion perpetua, or
and it becomes the duty of the appellate life imprisonment is imposed. [BP 129]
court to correct an error as may be
found in the appealed judgment, WON it Appeal Certiorari
is made the subject of assignment of Error of judgment Error of jurisdiction
errors. [People v. Calayca (1999)] Judgment is void or
Judgment is valid
The right to appeal is neither a natural voidable (2004 Bar)
right nor a part of due process. It is Reviewable on
Reviewable on appeal
merely a statutory privilege, and may be certiorari
exercised only in the manner provided
by law. [Bello v. Fernando (1962)] General rule: When appeal available for
Remedy if appeal is denied: Mandamus, errors of judgment, certiorari is not
but only when the party appealing is allowed.
entitled to it. [Trinidad v. Sweeney Exception: Cases where the SC allowed
(1904)] certiorari despite availability of appeal:
A writ of certiorari was granted against
2. Final Judgment or Order the TCs ruling rejecting rebuttal
evidence for the prosecution
An appeal may be taken only from a because appeal is no longer
final judgment or order, not from available when accused was
interlocutory orders. acquitted. [People v. Abalos (1969)]
FINAL JUDGMENT Judgment which
would become final if no appeal is 4. Modes of Review
taken. (See Appendix 2)
It does not mean a judgment which
has already become final, otherwise
no appeal is allowed anymore.

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REVIEWER IN REMEDIAL LAW
5. Procedure
a. When ordinary appeal should be taken
Within 15 days from promulgation of
judgment or from notice of the final
judgment appealed from. [Rule 122, Sec.
6]
General rule: If no appeal is taken
within the 15 days, judgment or order
becomes final. [US v. Samio (1904)]
Exception: The time for appeal may be
extended if it is satisfactorily shown
that there is justifiable reason for such
action. The extension is an exception
granted only in very meritorious cases
(e.g. fraud, accident, mistake or
excusable negligence or similar
supervening casualty without fault of
the appellant).
b. How period is counted
The 1st day is excluded and the last day
is included. [Admin Code; CC]
Should the last day fall on a Sunday or
a holiday, the period continues to run
until the next day which is neither a
Sunday nor a holiday. [Admin Code]
The period is not extended by the 20-
day requirement for the TC to elevate
the records of the case to the SC.
[People v. Tirol (1981)]
i. Suspension of period of appeal
Period is suspended by the filing of
MNT/MFR.
Suspension is until notice of the
order overruling the MNT/MFR.
[Hiquina v. Veloso]
But the filing of a motion to extend
time to appeal does not suspend the
period. [Reyes v. Santa Maria (1972)]
ii. Shortening of period of appeal
The court cannot shorten the period
to appeal.
Hence, the court cannot make the
decision final before the end of the
period by issuing a commitment
order immediately. [Del Rosario v.
Rosero (1983)]
When period does not apply
When judgment of conviction imposes
death penalty, the SC automatically
reviews it without need of the accuseds
intervention. Judgment becomes final
only after the SC has passed upon it.
Table of Contents
c. Who May Appeal [Rule 122, Sec. 1]
General rule: Any party may appeal
from a judgment or final order.
Exception: A party cannot appeal when
the accused will be placed in double
jeopardy.
Party includes not only the
government or the accused. It also
includes the private offended party.
[People v. Madali (2001)]
Usually, the participation of the private
offended party is a mere surplusage.
(e.g. when the State will simply seek the
affirmation of conviction).
However, where the State takes a
contrary position and recommends the
acquittal of the accused, then the
private offended party shall be allowed
to participate separately.
i. When appeal by the people will not
lie
The People/State cannot appeal
when it will put the accused in
double jeopardy.
The constitutional mandate against
CRIMINAL PROCEDURE
double jeopardy prohibits not only a
subsequent prosecution in a new
and independent cause but extends
also to appeal in the same case by
the prosecution after jeopardy had
attached. [Republic v. CA]
The prosecution cannot appeal from
a judgment of acquittal
Rationale: A verdict of that
nature is immediately final and
to try on the merits, even in an
appellate court, places the
accused in double jeopardy.
[Central Bank v. CA (1989)]
Dismissal of case upon filing of
demurrer by the accused was held
to be final even though based on
erroneous interpretation of the law.
Hence, an appeal therefrom by the
prosecution would constitute double
jeopardy. [US v. Kilayko (1916)]
Where the TC has jurisdiction but
mistakenly dismisses the
complaint/information on the
ground of lack of it, the order of
dismissal is unappealable. [People v.
Duran (1960)]
An appeal by the People will not lie if
the purpose is to correct the penalty
imposed by the trial court or to
include in a judgment a penalty
erroneously omitted. [People v. Paet
(1956)]
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REVIEWER IN REMEDIAL LAW
The preclusion against appeal by
the State from judgments or final
orders having the effect of acquittal,
applies even though accused did not
raise question of jeopardy. [People v.
Ferrer (1956)]
ii. When appeal by the People is
permissible
Generally, where the defendant
would not be placed in jeopardy a
2nd time for the same offense.
Where the information was quashed
prior to arraignment, the
prosecution may appeal the order
sustaining the MTQ because before
a plea is entered, no jeopardy
attaches. [People v Pascual (1957)]
Dismissal of case provisionally with
the consent of the accused is an
error on the part of the TC. Such
dismissal is appealable without
violating right of accused against
double jeopardy. [People v. Quimsing
(1964)]
The People may appeal when it has
been deprived of due process in the
lower court.
Rationale: A decision in a
proceeding that did not follow
due process is a patent nullity
and cannot be a basis for the
claim of former jeopardy. [People
v. Balisacan (1966)]
iii. Appeal with respect to civil liability
When such appeal is allowed
Where the TC found the accused
guilty but erroneously failed to enter
judgment as to the civil liability of
the accused, the fiscal may appeal
the judgment for that purpose.
[People v. Ursua (1934)]
When such appeal is not allowed:
If the offense carries no civil
liability, or if the offended party
has waived his right thereto or
has reserved the right to
institute a separate civil action,
the aggrieved party cannot
appeal from the judgment of the
TC. [People v. Olavides (1948)]
Where the criminal case was
dismissed at the instance of or
with the consent of the fiscal,
the offended party cannot appeal
from the order of dismissal,
since the dismissal of the
criminal action does not affect
the right of the offended party to
Table of Contents
institute or continue the civil
action already instituted arising
from the offense because such
dismissal or extinction of the
penal action does not carry with
it the extinction of the civil one.
[People v. Velez (1947)]
If the judgment of conviction was
appealed by the accused, the
appellate tribunal is competent to
assess damage/indemnity against
the defendant, although the decision
of the TC made no award of such
nature. This is because an appeal in
a criminal case opens the whole
case for review. [Quemel v. CA
(1946)]
The appellate court may increase
the penalty, the indemnity/damages
awarded by the TC, although the
offended party did not appeal and
only the accused did. [Quemel v. CA
(1946)]
Appeal by a person prejudiced by the
judgment
CRIMINAL PROCEDURE
General rule: Only the parties to a case
may appeal a judgment thereon. [Rule
122, Sec. 2]
Exception: A person, other than a
real party to a case, who stands to
be adversely affected by the
judgment in a direct or significant
way.
Appeal when promulgation of judgment was
made in absentia
General rule: Where the accused is tried
in absentia and the decision was also
promulgated in his absence, the
accused should not be afforded the
right to appeal [People v. Magpalao
(1991)]
Exception: When he voluntarily submits
to the jurisdiction of the court or is
otherwise arrested within 15 days from
the notice of the judgment against him.
Rationale: While at large, he cannot
seek relief from the judgment as he is
considered to have waived the same and
he has no standing in court.
Other instances when appeal will not be
entertained: If the accused, during the
pendency of his appeal, escapes from
prison or confinement, or jumps bail, or
flees to a foreign country, his appeal
shall be dismissed and his right to
appeal shall be considered abandoned.
[People v. Ramos (1993)]
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REVIEWER IN REMEDIAL LAW
d. Where to appeal [Rule 122, Sec. 2]
Appeal
For cases decided by
in
MTC/MeTC/MCTC
The RTC
RTC or MTC/MeTC/MCTC (if it is
Sandigan
government duty-related - i.e. filed
bayan
The
under EO 1, 2, 4 and 14-A)
RTC (if it involves questions of fact
and of law)
The CA
RTC
a) If it involves questions of law only
b) If it involves constitutionality or
validity of any
treaty/law/ordinance/EO/ regulation
or the jurisdiction of the inferior court
The SC
c) In criminal cases involving offenses
for which the penalty imposed is
death or life imprisonment
d) Other offenses, which, although
not so punished, arose out of the
same occurence or which may have
been committed by the accused on
the same occasion, as that giving rise
to the more serious offense
CA or Sandiganbayan
The SC
e. Service of notice of appeal [Rule 122,
Sec. 4]
Modes of service under Rule 13, Sec. 7
and 8:
Personal service upon adverse party
or his counsel;
By registered mail;
By substituted service.
Court may order publication in a
newspaper of general circulation at least
once a week for period not exceeding 30
days.
Mere failure of the accused to serve a
copy of notice of appeal is not a defect.
What is important is that the appellant
is able to exercise the right of appeal.
[US v. Sotavento (1919) ]
The appellee may waive his right to a
notice that an appeal has been taken.
[Rule 122, Sec. 5]
The appellate court may entertain an
appeal notwithstanding failure to give
Table of Contents
such notice if the interests of justice so
require. [Rule 122, Sec. 5]
f. Transcribing and filing of stenographic
notes [Rule 122, Sec. 7]
When The court shall direct the
appellant is - stenographic reporter to
The accused Transcribe his notes of the
proceeding
The People of Transcribe such portion of his
the Philippines notes of the proceedings as
the court, upon motion, shall
specify in writing
i. Stenographers certification [Rule
122, Sec. 7]
He certifies the correctness of the
notes and the transcript thereof,
which shall consist of the original
and 4 copies.
He shall file said original and 4
copies of the TSN with the clerk
without unnecessary delay.
ii. If death penalty is imposed [Rule
122, Sec. 7]
CRIMINAL PROCEDURE
Within 30 days from promulgation
of the sentence, the stenographer
shall file with the clerk the original
and 4 copies of the duly certified
TSN.
He shall do so WON the accused has
appealed.
General rule: No extension of time
for filing of said TSN shall be
granted.
Exceptions:
If extension is by the SC and only
upon justifiable grounds.
When period for appeal is
suspended, this period is also
extended.
If the defendant files a MNT within
15 days, the TC may entertain
said motion, and if this motion
takes weeks to consider up to
the rendition of the new
decision, then the 30 day period
given by law must be extended.
[People v. Bocar (1955)]
g. Transmission of papers to appellate
court [Rule 122, Sec. 8]
Within 5 days from filing of notice of
appeal, the clerk of the court with
whom the notice of appeal was filed
must transmit to the clerk of the
appellate court:
The complete record of the case;
The notice of appeal;
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REVIEWER IN REMEDIAL LAW
Original and 3 copies of the TSN (4th
copy of the TSN shall remain in the
lower court).
If any material part of the evidence is
not transmitted from the RTC to the SC,
the case will be remanded to the court
of origin for a new trial. [US v. Tan
(1905)]
It is the duty of the government (and
not of the defendant) to cause to be
kept and, in case of an appeal by
the defendant, to be sent to the
appellate court, a complete record of
the proceedings.
h. Procedure of appeal to the rtc [Rule 122,
Sec. 9]
Transmission of record to RTC
Within 5 days from perfection of the appeal,
the clerk of court shall transmit the original
record to the appropriate RTC.
Notification of parties
Upon receipt of the complete record, TSN and
evidence of the case, the RTC clerk of court
shall notify the parties of such fact.
Submission of memoranda/briefs
Within 15 days from receipt of said notice, the
parties may submit memoranda/briefs, or may
be required by the RTC to do so.
Decision
After submission of such memoranda/briefs or
upon the expiration of the period to file the
same, the RTC shall decide the case on the
basis of the entire record of the case and of
such memoranda/briefs as may have been
filed.
i. Transmission of records in case of death
penalty [Rule 122, Sec. 10] (1998 Bar)
The records shall be forwarded to the
CA for automatic review and judgment.
Transmission to be done within 20 days
but not earlier than 15 days (i.e. within
5 days from the expiration of the 15 day
period):
From the promulgation of the
judgment; or
From notice of the denial of
MNT/MFR.
TSN shall also be forwarded within 10
days after the filing thereof by the
stenographic reporter.
Although a judgment of conviction is
entered by the TC, such is not final and
conclusive until it has been reviewed by
Table of Contents
the SC. This automatic review is
something which neither the court nor
the accused can evade. It is intended for
the protection of the accused, ensuring
the correctness of the decision of the TC
sentencing him to death. [US v. Laguna
(1910); People v. Bocar (1955)]
Unlike any other direct appeal to the SC
where only questions of law are
reviewed, the SC in automatic review
may review the findings of fact of the
TC. [People v. Soriano (2002)]
6. Jurisdiction of the TC prior to
expiration of period to appeal
The prohibition of not sending up the
records before the 15 days is up is
because within those 15 days, the case
is still within the jurisdiction of the TC.
[Director of Prisons v. Teodoro, Sr. (1955)]
After the perfection of appeal or after
expiration of 15 days, however, the
appellate court acquires jurisdiction
over the case to the exclusion of the TC.
[Director of Prisons v. Teodoro]
CRIMINAL PROCEDURE
During this period, the TC can still
decrease (but not increase) the penalty,
acquit the accused, or grant a MNT filed
by the defendant.
MNT suspends the running of the 15-
day period. Hence, the transmission of
the records to the SC for automatic
review is necessarily suspended.
a. Effect of appeal by any of several
accused [Rule 122, Sec. 11]
General rule: An appeal taken by one or
more of several accused shall not affect
those who did not appeal.
As to the appealing party, the
execution of judgment appealed
from is stayed upon the perfection of
the appeal.
As to the co-accused who did not
appeal, the judgment of the TC
insofar as it relates to him becomes
final and the appellate court has no
power to interfere with it.
[Salvatierra v. CA (1996)]
Exception: Insofar as the judgment of
the appellate court is favorable and
applicable to those who did not appeal
or who withdrew his appeal. [People v.
Escano]
The appeal of the offended party from
the civil aspect shall not affect the
criminal aspect of the judgment or order
appealed from.
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REVIEWER IN REMEDIAL LAW
b. Withdrawal of appeal from MTC/RTC
judgment [Rule 122, Sec. 12]
Before record is forwarded to appellate
court:
Even if appeal was already
perfected, the MTC/RTC may allow
appellant to withdraw his appeal
before the record has been
forwarded by the clerk of court to
the proper appellate court.
The effect of such withdrawal is that
the judgment becomes final.
After record has been forwarded to RTC:
The RTC may also allow the
appellant of the MTC judgment to
withdraw his appeal.
The withdrawal must be by a motion
to that effect, filed before rendition
of the judgment in the case on
appeal.
The effect of such withdrawal is that
the judgment shall become final and
the case shall be remanded to the
MTC for execution of the judgment.
After the appeal has been heard on the
merits and submitted to the court for
decision, or after the briefs were
presented, the appellant has no
absolute right to withdraw the appeal.
The withdrawal is now a matter that
rests within the sound discretion of the
court. [People v. Rapirap (1958)]
Withdrawal of appeal by counsel de
oficio needs consent of the accused,
since the withdrawal of an appeal
affects his substantive rights.
c. Effect of escape by accused pending
appeal [Longao v. Fakat (1969)]
Situations contemplated: If the accused:
Escapes from confinement;
Jumps bail;
Flees to a foreign country.
The appellate court may dismiss the
appeal, motu propio or upon appellees
motion.
Rationale: It is in contempt of the
authority of the court and of the
law, and the accused places himself
in a position to speculate on the
chances for a reversal, meanwhile
keeping out of the reach of justice
and preparing to render the
judgment nugatory at his option.
d. Withdrawal of appeal in case of
automatic review [People v. Cornelio
(1971)]
Withdrawal is not allowed in case of
automatic review.
Table of Contents
It would not remove the case from the
jurisdiction of the SC. Even the escape
of the accused from detention during
the pendency of his appeal does not
relieve the court of the burden of
reviewing the case.
e. Appointment of counsel de oficio for
accused on appeal [Rule 122, Sec. 13]
Upon the filing of the notice of appeal, it
becomes the duty of the TC clerk of
court to:
Ascertain from the appellant, if
confined in prison, WON he desires
the RTC/CA/SC to appoint a
counsel de oficio to defend him; and
Transmit with the record (on a form
prepared be the clerk of the
appellate court) a certificate of
compliance with this duty and of the
response of the appellant to his
inquiry.
Rationale: The constitutional right of
the accused to defend by himself and by
counsel.
CRIMINAL PROCEDURE
C. PROCEDURE IN THE DIFFERENT
COURTS
1. Procedure in the MTC
a. Uniform procedure [Rule 123, Sec. 1]
General rule: The procedure to be
observed in the MeTC/MTC/MCTC shall
be the same as that in the RTC.
Exceptions:
1) Where a particular provision applies
only to either of said courts;
2) Criminal cases governed by the
Revised Rules on Summary
Procedure.
b. When procedures are different
Offenses falling under the MTC/MCTCs
Jurisdiction: [Salcedo v. Nobles-Bans
(1985)]
Notwithstanding the uniform
procedure rule, if the offense falls
under the jurisdiction of the
MTC/MCTC, complaint/information
may be filed directly with said
courts or with the City Prosecutors
Office.
Offenses falling under the MeTCs
Jurisdiction: [Salcedo v. Nobles-Bans
(1985)]
In Metro Manila and other chartered
cities, the complaint may be filed
only with the Office of the City
Prosecutor
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REVIEWER IN REMEDIAL LAW Table of Contents
If the case is directly filed with the REFERRAL TO LUPON [SEC. 18]
court, the case should not be If the case requires referral to the
dismissed. The court should just Lupong Tagapamayapa under PD
refer it to the City Prosecutor for the 1508 and this is not complied with,
filing of the corresponding it shall be dismissed without
information. prejudice. The case may be revived
Cases governed by the Revised Rules on only after compliance with the
Summary Procedure: requirement.
a) Violations of traffic Exception: Criminal cases of
laws/rules/regulations; warrantless arrest.
b) Violations of the rental law;
c) Violations of municipal/city COURTS DUTY [SEC. 12]
ordinances; If commenced by complaint:
d) Violations of BP 22; Based on the
e) All other criminal cases where the compliant/affidavits/evidence,
penalty is imprisonment not the court may dismiss the case
exceeding 6 months or a fine not outright for being patently
exceeding P1,000 or both, without basis/merit and order
irrespective of other imposable the release of the accused (if in
penalties (accessory or otherwise) or custody).
of the civil liability arising from it. If commenced by information or if
However, in offenses involving damage not dismissed according to #1:
to property through criminal The court shall order the
negligence where imposable fine accused to submit his counter-
does not exceed P 10,000, the affidavit and the affidavits of his
Uniform Procedure Rule shall witnesses as well as any

CRIMINAL PROCEDURE
govern (i.e. it is not governed by evidence in his behalf (with
Revised Rules on Summary copies served on the
Procedure). complainant/prosecutor) not
Revised Rules on Summary Procedure later than 10 days from receipt
also does not apply to criminal cases of order.
where the offense charged is The prosecution may file reply
necessarily related to another affidavits within 10 days after
criminal case subject to the ordinary receipt of the counter-affidavits.
procedure.
PROHIBITED PLEADINGS AND
c. The REVISED RULES ON SUMMARY MOTIONS [SEC. 19]
PROCEDURE (1) MTD;
o Exception: On grounds of
COMMENCEMENT OF ACTION either:
[SEC. 11] a) LOJ over subject
The filing of the criminal case shall matter;
be either by complaint or by b) Failure to refer to
information. Lupon.
However, in Metropolitan Manila (2) Motion for BOP;
and in chartered cities, (3) MNT/MFR or motion for re-
commencement shall be only by opening of trial;
information. (4) Petition for relief from
Exception: When the offense cannot judgment;
be prosecuted de oficio. (5) Motion for extension to file;
The complaint/information shall be (6) Memoranda;
accompanied by the affidavits of the (7) Petition for
complaint and of his witnesses. certiorari/mandamus/prohi
No. of copies = [ No. of accused + bition against any
2 copies for the courts files] interlocutory order;
If the required no. of copies ment (8) Motion to declare defendant
is not complied with within 5 in default;
days from date of filing, the case (9) Dilatory motions for
may be dismissed. postponement;
(10) Reply;

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REVIEWER IN REMEDIAL LAW
(11) 3rd-party complaints;
(12) Interventions.
ARRAIGNMENT [SEC. 13]
After consideration of the
complaint/information and the
affidavits, if the court finds no
cause/ground to hold the accused
for trial, it shall order the dismissal
of the case; otherwise, the court
shall set the case for arraignment
and trial.
If the accused is in custody for the
crime charged, he shall be
immediately arraigned. If he enters a
plea of guilty, he shall forthwith be
sentenced.
PRELiMINARY CONFERENCE
[SEC. 14]
Before conducting the trial, the
court shall call the parties to a
preliminary conference for:
(1) Stipulation of facts;
o Refusal/failure to
stipulate shall not
prejudice the accused.
(2) Plea bargaining;
o No admission by the
accused shall be used
against him unless
reduced to writing and
signed by the accused and
his counsel.
(3) Other matters to clarify the
issues and to ensure a speedy
disposition of the case.
VTRIAL [SEC. 15]
The submitted affidavits will be the
direct testimonies of the
witnesses/affiants. They shall be
subject to cross, re-direct and re-
cross examinations.
If the affiant fails to testify, his
affidavit will not be considered as
competent evidence for the party
presenting his affidavit. However,
the adverse party may utilize his
affidavit for any purpose.
A witness cannot testify unless his
affidavit was previously submitted to
the court according to Sec. 12.
Exception: On rebuttal or sur-
rebuttal.
If a party wishes to present
additional affidavits/counter-
affidavits, he should so manifest
Table of Contents
(and his purpose) during the
preliminary conference.
If the court allows the additional
affidavits/counter-affidavits, they
shall be submitted to the court and
served on the adverse party within 3
days from the termination of the
preliminary conference.
If it is the prosecution who submits
additional affidavits, the defense
may file counter-affidavits thereto
(copy furnished the prosecution)
within 3 days from service.
ARREST OF THE ACCUSED
[SEC. 16]
The court shall not order the arrest
of the accused.
Exception: For failure to appear
whenever required.
Release of the accused shall be by
bail or on recognizance.
JUDGMENT [SEC. 17]
If trial was conducted, the court
shall promulgate judgment within
CRIMINAL PROCEDURE
30 days from termination of trial.
APPEAL [SEC. 21]
Judgment may be appealed to RTC
per Sec. 22, BP 129.
2. Procedure in the CA
a. Parties and title [Rule 124, Sec. 1]
In all criminal cases appealed to the CA:
APPELLANT The party appealing;
APPELLEE The party adverse to
the appellant.
The title of the case shall remain as it
was in the court of origin (i.e. People v.
John Doe).
b. Appointment of counsel de oficio [Rule
124, Sec. 2]
The counsel de oficio cannot dismiss
the appeal without the consent of his
client [US v. Lafuente (1918)] or admit
findings of fact by the TC [People v.
Isaac (1952)].
c. Brief for appellant [Rule 124, Sec. 3]
Appellant shall file 7 copies of his brief
with the clerk of court, accompanied by
proof of service of 2 copies on the
appellee.
It shall be filed within 30 days from
receipt by the appellant (his counsel) of
the CA clerk of courts notice that the
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REVIEWER IN REMEDIAL LAW
evidence is already attached to the
record.
Purpose: To show grounds for reversal
of judgment and to point out the
errors/irregularities in the lower courts
proceedings.
d. Brief for appellee [Rule 124, Sec. 4]
Appellee shall file 7 copies of his brief
with the clerk of court, accompanied by
proof of service of 2 copies on the
appellant.
It shall be filed within 30 days from
receipt of the appellants brief.
Purpose: To meet/refute the appellants
submissions.
e. Reply to appelles brief [Rule 124, Sec. 4]
Appellant may (i.e. optional) file a reply
brief covering matters raised in the
appellees brief but not in the brief of
the appellant.
It must be filed within 20 days from
receipt of the appellees brief.
f. Extension of time for filing briefs [Rule
124, Sec. 5]
General rule: Extension of time for the
filing of briefs is not allowed
Exception: for good and sufficient
cause
It is sought through a motion for
extension, which must be filed before
the expiration of the time sought to be
extended.
Grant of extension rests on the courts
discretion. [Piedad v. Batuyong (1974)]
Court may grant as many extensions as
may be asked. [Gregorio v. CA (1976) ]
g. Form of briefs [Rule 124, Sec. 6]
Briefs shall printed/encoded/
typewritten, in double space, on legal
size good quality unglazed paper,
330mm in length by 216mm in width.
Mimeographed copies are not allowed.
h. Contents of brief
The briefs in criminal cases shall have
the same contents as provided in Rule
44, Sec. 13-14. [Rule 124, Sec. 7]
APPELLANTS BRIEF: [RULE 44,
SEC. 13]
a) SUBJECT INDEX Digest of the
arguments and page references, and
a table of: (1) cases alphabetically
arranged; and (2) books and
statutes cited, with references to the
pages where they are cited.
Table of Contents
b) ASSIGNMENT OF ERRORS Errors
urged separately, distinctly and
concisely; stated without repetition
and numbered consecutively.
c) STATEMENT OF THE CASE Clear
and concise statement of the nature
of the action, a summary of the
proceedings, the appealed court
rulings and orders, the nature of the
judgment and any other matters
necessary to an understanding of
the nature of the controversy, with
page references to the record.
d) STATEMENT OF FACTS Clear and
concise narrative statement of the
facts admitted by both parties and
of those in controversy, together
with the substance of the related
proof, in sufficient detail to make it
clearly intelligible and with page
references to the record.
e) ISSUES Clear and concise
statement of issues of fact/law
submitted to the court for its
judgment.
f) ARGUMENTS Appellants
CRIMINAL PROCEDURE
arguments on each assignment of
error, with page references to the
record. The authorities relied upon
shall be cited by the page of the
report at which the case begins and
the page of the report on which the
citation is found.
g) RELIEF Specification of the
order/judgment which the appellant
seeks. In cases not brought up by
record on appeal, the appellants
brief shall contain (as an appendix)
a copy of the judgment or final order
appealed from.
h) Attachment: Certified true copy of
the decision or final order appealed
from. [Rule 124, Sec. 7]
APPELLEES BRIEF: [RULE 44, SEC.
14]
a) Subject index.
b) STATEMENT OF FACTS Statement
that appellee accepts the statement
of facts in the appellants brief; or
COUNTER-STATEMENT OF FACTS
Points out the
insufficiencies/inaccuracies appellee
believes to exist in the appellants
statement of facts, with references
to the supporting pages of the
record. Matters in the appellants
statement of facts should not be
repeated.
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REVIEWER IN REMEDIAL LAW
c) ARGUMENTS Appellees
arguments on each assignment of
error, with page references to the
record. The authorities relied upon
shall be cited by the page of the
report at which the case begins and
the page of the report on which the
citation is found.
i. Dismissal of appeal for abandonment or
failure to prosecute [Rule 124, Sec. 8]
Grounds:
Appellant fails to file his brief within
the prescribed time;
Exception: Where the appellant is
represented by a counsel de oficio.
o If failure to file brief on time is
the ground, appellant must be
given notice to give him
opportunity to reason out why
his appeal should not be
dismissed.
o However, dismissal is proper
despite lack of notice:
a) If appellant has filed a MFR
or motion to set aside the
order dismissing the appeal,
in which he stated the
reason why he failed to file
his brief on time and the
appellate court denied the
motion after considering
reason. [Baradi v. People
(1948)]
b) If appeal was dismissed
without notice but appellant
took no steps to have the
appeal reinstated. Such
action amounts to
abandonment. [Salvador v.
Reyes (1949)]
If the appellant escapes from
prison/confinement, jumps bail or
flees to a foreign country during the
pendency of the appeal.
o Rationale: Escape of appellant
during the pendency of the
appeal implies a withdrawal of
the appeal. Hence, judgment of
the TC becomes final. [US v.
Ravidas (1905)]
o Likewise, when accused flees
after the case has been
submitted for decision, he is
deemed to have waived his right
to appeal. [People v. Ang Gioc
(1941)]
o Exception: Appeal will not be
dismissed despite escape:
Table of Contents
a) In one exceptional case, the
appellant took advantage of a
mass jailbreak (because,
according to his counsel de
oficio he was innocent and
wanted to elude an unjust
punishment) but was
recaptured 2 hours after, the
SC said circumstances were
not sufficient to justify
dismissal of the appeal.
[People v. Valencia (1949)]
b) If there was absolutely no
evidence against the accused
as found by the appellate
court, he should be acquitted
in order to prevent an
injustice by technicalities.
[People v. Buenaventura
(1994)]
c) In case of automatic review.
[People v. Cornelio (1971)]
CA may dismiss the appeal upon
appellees motion or motu proprio.
j. Prompt disposition of appeal [Rule 124,
CRIMINAL PROCEDURE
Sec. 9]
Appeals of accused who are under
detention are given precedence in their
disposition over other appeals.
The CA shall hear and decide the appeal
at the earliest practicable time with due
regard to the parties rights.
The accused need not be present in
court during the hearing of the appeal.
Proceedings on appeal will not be
stayed in a criminal case on account
of the absence of the accused as his
presence is not necessary at said
hearing. [US v. Lewis]
k. Reversal / modification of judgment on
appeal [Rule 124, Sec. 10]
General rule: No judgment shall be
reversed/modified.
Exception: When the CA, after an
examination of the record and of the
parties evidence, is of the opinion that
error was committed and such error
injuriously affected the appellants
substantial rights.
When it involves credibility of witnesses,
appellate courts will not generally
disturb the TCs findings.
Rationale: The TC is in a better position
to decide the question, having seen and
heard the witnesses themselves. [People
v. Cabiling (1976)]
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REVIEWER IN REMEDIAL LAW
l. Scope of CAs judgment [Rule 124, Sec.
11]
The CA may:
1) Reverse/affirm/modify the
judgment;
2) Increase/reduce the penalty
imposed by the TC;
3) Remand the case to the RTC for
new trial or retrial;
4) Dismiss the case.
When the accused appeals from the
sentence of the TC, he waives the
constitutional safeguard against double
jeopardy and throws the whole case
open to the review of the appellate
court, which is then called upon to
render such judgment as law and
justice dictate, WON favorable to the
accused and WON made the subject of
assignment of errors. [Ko Bu Lin v. CA
(1982)]
m. CAs power to receive evidence [Rule
124, Sec. 12]
The CA has power to try cases and
conduct hearings, receive evidence and
Table of Contents
Designation of the additional
Justices shall be made strictly by
raffle and rotation among all other
CA Justices.
o. Certification or appeal of cases to the SC
[Rule 124, Sec. 13]
1) If the CA finds that death penalty
should be imposed:
AUTOMATIC REVIEW CA shall
render judgment but refrain from
making an entry of judgment. It
shall then certify the case and
elevate its entire record to the SC for
review. The accused does not have
to do anything.
Note: Death penalty has been
abolished.
2) If the judgment also imposes a lesser
penalty for offenses committed on the
same occasion or which arose from the
same occurrence that gave rise to the
more severe offense for which death is
imposed, and the accused appeals:
The appeal shall be automatically
included in the case certified for

perform any and all acts necessary to
resolve factual issues in cases:
1) Falling within its original
jurisdiction;
2) Involving claims for damages arising
from provisional remedies;
3) Where the court grants a new trial
based only on the ground of newly-
discovered evidence.
CAs trials and hearings must be
continuous and completed within 3
months, unless extended by the Chief
Justice.
n. Quorum in the CA [Sec. 11, BP 129]
3 CA Justices constitute a quorum for
the sessions of a division.
The unanimous vote of the 3 Justices of
a division is necessary for the
pronouncement of a judgment or final
resolution
Decision is reached through
consultation before the writing of the
opinion by a member of the division.
If there is lack of unanimity, the
Presiding Justice shall direct the CA
raffle committee to designate
additional Justices to sit temporarily
with them. They shall then form a
special division of 5 members.
The concurrence of a majority of
that special division is necessary for
the pronouncement of a judgment or
final resolution.
CRIMINAL PROCEDURE
review in the SC
3) If the CA imposes reclusion perpetua,
life imprisonment or a lesser penalty:
It shall render and enter judgment
imposing such penalty.
Appeal here is not automatic. The
accused has to file a notice of appeal
with the CA.
p. Judgment transmitted and filed in TC
When the CAs entry of judgment is
issued, a certified true copy of the
judgment shall be attached to the
original record. These shall be
remanded to the clerk of the court from
which the appeal was taken. [Rule 124,
Sec. 17]
This copy of the entry serves as the
formal notice to the court from which
the appeal was taken of the disposition
of the case in the appellate court, so
a that the judgment may be executed
and/or placed or noted in the proper
file.
q. MNT during the pendency of appeal in
2 the CA [Rule 124, Sec. 14]
Appellant may file MNT on the ground
of newly discovered evidence material to
his defense any time:
After the appeal from the lower
court has been perfected, but
Before the CA judgment convicting
him becomes final.

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REVIEWER IN REMEDIAL LAW
The motion shall conform to Rule 121,
Sec. 4.
If the CA grants a MNT, it may either:
[Rule 124, Sec. 15]
1) Conduct the hearing and receive
evidence;
2) Refer the trial to the court of origin.
r. MFR of CA judgment [Rule 124, Sec. 16]
MFR may be filed within 15 days from
notice of the CA judgment or final order,
with copies served on the adverse party.
The mittimus shall be stayed during the
MFRs pendency.
General rule: No party shall be allowed
a 2nd MFR of a judgment or final order.
[Sec. 11, BP 129]
Exception: Where the 1st MFR resulted
in a reversal or substantial modification
of the original decision or final
resolution.
In this case, the party adversely affected
by the reversal/modification may
himself file a MFR of the latest
judgment of the court, because with
respect to him, said motion is a first
pleading of that nature.
s. Applicable civil procedure rules [Rule
124, Sec. 18]
Provisions of Rules 42, 44-46 and 48-56
relating to procedure in the CA and the
SC in original and appealed civil cases,
shall be applied to criminal cases
insofar as they are applicable and not
inconsistent with the provision of this
Rule.
3. Procedure In The SC
a. Uniform procedure [Rule 125, Sec. 1]
General rule: The procedure in the SC
in original and in appealed cases shall
be the same as in the CA.
Exception: If the Constitution or law
provides otherwise.
b. What the SC may do on review
In a criminal case, an appeal to the SC
throws open the whole case for review
and it becomes its duty to correct such
errors as may be found in the judgment
appealed from, WON they were assigned
as errors. [People v. Olfindo (1924)
]It may examine the judgment as to the
qualification of the crime and the degree
of the penalty imposed. [Macali v. Revilla
(1926)]
It may also assess and award civil
indemnity. [Quemel v. CA (1946)]
Table of Contents
c. Ways by which a case may reach the SC
AUTOMATIC REVIEW
It is not a matter of right on the part
of the accused, but a matter of law.
Hence, the escape of the accused does
not relieve the SC of the burden of
automatically reviewing the case. [US
v. Laguna (1910)]
When available:
When the RTC judgment upon the
accused imposes death penalty.
[Rule 122, Sec. 10]
When the RTC decision is
appealed to CA and the latter is of
the opinion that the penalty
imposed should be death or life
imprisonment. CA judgment is
imposed but no entry of judgment
is made; instead, the case is
certified and the entire record is
elevated to the SC for review. [Rule
124, Sec. 13]
ORDINARY APPEAL
When available:
When the penalty imposed by the
CRIMINAL PROCEDURE
RTC is life imprisonment, decision
is appealable directly to the SC by
filing a notice of appeal with the
RTC. [Rule 122, Sec. 3]
When an accused was charged
with 2 or more offenses committed
on the same occasion or arising
out of the same occurrence, and in
one of those 2 cases, he was
sentenced to life imprisonment or
death penalty, the appeal with
respect to the others, though
punished with a lesser penalty, is
to the SC. [Rule 122, Sec. 3]
When the penalty of reclusion
perpetua or death is imposed on
some of the defendants and a
lesser penalty on the other co-
defendants, on account of their
varying degree of participation in
the commission of the offense or
due to the presence of modifying
circumstances, in which case the
decision on the non-life convicts is
directly appealable to the SC.
[People v. Carino]
In these cases, the SC reviews not
only errors of law but also the findings
of fact by the TC.
PETITION FOR REVIEW ON
CERTIORARI
When available:
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REVIEWER IN REMEDIAL LAW
When constitutionality/validity of
any treaty, executive agreement,
law, ordinance or executive order
or regulation is in question.
o When validity of law is
questioned by an accused
convicted under it by the TC,
the SC cannot review the
evidence or pass upon any
other question of law which
may appear on the record, but
will only confine itself to the
question of the in/validity of
that law. [Trinidad v. Sweeney
(1904)]
When the jurisdiction of any
inferior court is in issue.
When only an error or question of
law is involved.
On decisions of the CA and the
Sandiganbayan.
o As a rule, review here is
limited to errors of law.
General rule: Certiorari is used to
correct only errors of jurisdiction and
not errors of judgment of an inferior
court. For errors of judgment,
ordinary appeal is available.
Exception: Cases where certiorari is
granted despite existence of the
remedy of appeal:
Where public welfare and
advancement of public policy so
dictate.
Where the broader interests of justice
so require.
Where the orders complained of were
found to be completely null and
void.
Where appeal was not considered as
the appropriate remedy.
d. Failure to specify appellate court
Failure of appellant to specify in his
notice of appeal the court to which the
appeal is being made is not fatal. [RA
296]
e. Erroneous choice / mode of appeal
In the case of People v. Resuello (1969),
the contention of the adverse party that
the ordinary appeal filed by appellant
shall be dismissed because the proper
remedy is petition for review on certiorari
(only questions of law were involved) was
rejected.
The SC said that in cases similarly
situated, and as long as the steps formally
required for the perfection of an appeal
were taken in due time, appeal may be
given due course, without prejudice to
Table of Contents
requiring the appellant to file the
necessary petition for review on certiorari
which is also a form of appeal.
f. Review of CA decisions
The procedure for the review by the SC of
CA decisions on criminal shall be the
same as in civil cases. [Rule 125, Sec. 2]
General rule: The SCs appellate
jurisdiction in cases brought to it from the
CA is limited to reviewing and revising the
errors of law incurred by the latter.
The CAs findings of fact are final.
If an appeal in the SC involves
questions of facts, the SC has no
jurisdiction and should dismiss
appeal. [Guico v. Mayuga (1963)]
Exception: [Vargas v. CA; Napolis v.
CA (1972)]
o When the conclusion is a finding
founded entirely on
speculations/surmises/conjecture
s;
o When the inference made is
manifestly
mistaken/absurd/impossible;
o When there is GAD;
CRIMINAL PROCEDURE
o When the judgment is based on a
misapprehension of facts;
o When the findings of facts are
conflicting;
o When the CA, in making its
findings, went beyond the issues
of the case and the same are
contrary to the admissions of both
appellant and appellee.
g. Decisions if opinion is equally divided
[Rule 125, Sec. 3]
When the SC en banc is equally divided in
opinion or the necessary majority cannot
be had on WON to acquit the appellant,
the case shall again be deliberated upon.
If no decision is reached after re-
deliberation, the lower courts
judgment of conviction shall be
reversed and the accused is acquitted.
If case is decided by a division of the SC
whose members are equally divided, the
case shall be heard and decided by the SC
en banc.
h. Constitutional provisions on SC
composition [Art. 8, Sec. 4, Consti]
SC Composition: 1 Chief Justice + 14
Associate Justices.
SC may sit en banc or (in its discretion)
in divisions of 3, 5 or 7 members.
No doctrine or principle of law laid down
by the SC in a decision rendered en
banc or in division may be
modified/reversed.
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REVIEWER IN REMEDIAL LAW
Appendix 1: Availability of Bail
AVAILABLE as a AVAILABLE as a MATTER
MATTER OF RIGHT OF DISCRETION
After conviction by the RTC
Before or after conviction
imposing a penalty of
by the MetTC, MTC, or
imprisonment which does
MCTC (114.4)
not exceed 6 years (114.5)
After conviction by the RTC
where a penalty of
Before conviction by the imprisonment exceeding 6
RTC wheter in the years but not more than 20
exercise of its original or years is imposed and not
appellate jurisdiction one of the circumstances in
(114.4) sec. 5 is present, or any
other similar circumstances
(114.5)
If, prior to the judgment
becoming final or before the
accused serves his
sentence, the accused
applies for probation as
allowed by law, he may be
admitted to bail or released
on recognizance (114.24)
Appendices
NOT AVAILABLE
If the accused is charged with a capital offense
or an offense punishable by reclusion perpetua
or life imprisonment, and the evidence of guilt
is strong (114.7)
After conviction by the RTC where a penalty of
imprisonment exceeding 6 years but not more
than 20 years is imposed and any of the ff.
circumstances in sec. 5 is present:
1) Recidivism, quasi-recidivism, habitual
delinquency, commission of crime
aggravated by circumstance of reiteration;
2) Previously escaped from legal confinement,
evasion of sentence or violation of
conditions of bail without valid
justification;
3) Commission of offense while under
probation, parole or conditional pardon;
4) Probability of flight;
5) Undue risk that he may commit another
crime during the pendency of appeal.
(114.5)
6) Any other circumstances as may be
present and proved
CRIMINAL PROCEDURE
After judgment has become final or the accused
has commenced to serve his sentence (114.24)
Page 338 of 370
REVIEWER IN REMEDIAL LAW
Appendix 2: Modes of Review
Ordinary appeal
Available after any judgment or
final order
Matter of right
By filing a notice of appeal with
the court that rendered the
judgment and serving a copy on
the adverse party.
NOTICE OF APPEAL Written
notice of intention to take
appeal. A mere verbal notice of
an intention to appeal expressed
by the accused, does not perfect
an appeal. [People v. Natividad
(1936)]
When no notice of appeal is given
in writing or no record that any
was given, the cause will be
stricken from the court calendar
since there was no appeal. [US v.
Tenorio (1917)]
But when the accused manifests
or gives notice of his intention to
appeal in open court and files a
bond for his provisional release
within 15 days from the
promulgation of the decision
against him, he may
considered as having perfected
his appeal. [People v. Agasang
(1956)]
Appendices
Petition for Review Petition for Review on Certiorari
Available only when the General Rule:
petition shows prima Available only when issues of
facie that the lower law are involved; findings of
court has committed an fact being deemed conceded
error of fact or law that by the appellant.
will warrant the
reversal/modification of Exception: SC reviews questions
the decision or final both of fact and of law in cases
order sought to be decided by the RTC: [RA 296]
reviewed.
i. Where the penalty imposed
is life imprisonment;
j. Which involve other
offenses committed on the
same occasion or arising out
of the same occurrence that
gave rise to the more serious
offense for which the penalty
of death or life imprisonment
is imposed.
Not a matter of right Not a matter of right
Appeal by PFRC from the
decision or final order of the
RTC/CA may be taken by filing
CRIMINAL PROCEDURE
the petition within 15 days from
notice of judgment or of the
denial of MFR filed in due time.
Copy must be served on the
court whose judgment or final
order is sought to be reviewed.
If no record of appeal has been
filed in the CA, the SC clerk of
court, upon admission of the
petition, shall demand from the
CA the elevation of the whole
record of the case. [Rule 45, Sec.
2]
Provision above governs
procedure of appeal from RTC
or Sandiganbayan to the SC.
be
- end of Criminal Procedure -
Page 339 of 370
REVIEWER IN REMEDIAL LAW Table of Contents

EVIDENCE
Chapter I: GENERAL PROVISIONS 343 e. Common reputation [rule 354
A. Definition 343 130, sec. 41]
B. Scope 343 f. Part of res gestae [rule 354
C. Admissibility V. Relevancy 343 130, sec. 42]
D. Competence 343 g. Entries in the course of 354
business [rule 130, sec.
Chapter II: WHICH OF THE FACTS 344 43; rule 8, rules on
DO NOT NEED PROOF electronic evidence (ree)]
A. Judicial Notice 344 h. Entries in official records 355
B. Judicial Admissions 344 i. Commercial list and the 355
like
Chapter III: WHO MUST PROVE 345 j. Learned treatises 355
THESE FACTS THAT NEED TO BE k. Testimony or deposition at 355
PROVEN? a former proceeding
A. Burden of Proof 345 5. What testimony involves 355
B. Presumptions 345 opinions and how can
objections thereto be met? )
Chapter IV: WHAT DEGREE OF 347 6. When is character evidence 356
PROOF IS NEEDED? admissible?
A. Weight and sufficiency of 347 7. Recalling a witness to the 356
evidence stand (recalling witnesses
1. Preponderance of Evidence 347 8. Adverse party as witness 356
(Civil Cases) (impeachment of adverse
2. Proof Beyond Reasonable 347 partys witness
Doubt (Criminal Cases) 9. Excluding witnesses from 357
3. Substantial Evidence 347 courtroom (exclusion and
(Administrative Cases) separation of witnesses
B. Quantum of Evidence 348 10. May parol evidence be given? 357
1. Confessions 348 B. Documentary 357
2. Circumstantial Evidence 348 1. What documents require 357
3. Interpretation of Documents 348 authentication and by whom?
4. Evidence on Motion a. Public documents [rule 357
132, sec. 19])
Chapter V: WHAT AVAILABLE 350 b. Private documents 359
EVIDENCE IS ADMISSIBLE TO c. Impeachment of judicial 359
PROVE THESE FACTS? record
A. Testimonial 350 d. Alterations [rule 132, sec. 359
1. Which witnesses are subject 350 31]
to objection for competence?

EVIDENCE
e. Seal [rule 132, sec. 32] 360
2. Which witnesses will testify 350 f. Documents written in an 360
on privileged matters and to unofficial language [rule
what extent does the privilege 132, sec. 33]
cover? 2. Do documents comply with 360
3. What testimony is subject to a 352 best evidence rule? [rule 130,
claim of privilege and by sec. 3]
whom? a. Best evidence 360
4. What evidence is hearsay and 352 b. Secondary evidence 360
upon what proposition, if it is C. Object 361
hearsay, can it be brought D. Circumstantial evidence 361
within any exception? E. Extrajudicial admissions 361
a. Dying declaration 353 1. Self-serving declarations 362
b. Declaration against 353 2. Admission by silence 362
interest 3. Compromise 362
c. Act or declaration about 353 4. Res inter alios acta 362
pedigree 5. Exceptions to res inter alios
d. Family reputation or 354 acta 363
tradition regarding a. Partners/agents
pedigree [rule 130, sec. admission; [rule 130,
40]

Page 341 of 370

REVIEWER IN REMEDIAL LAW Table of Contents
b. Co-conspirators 363
admission; [rule 130, sec.
30]

F. Electronic evidence 363

1. What evidence is covered by 363
the ree? (r2,s1; r11, ss1-2,
ree)
2. When and to what extent 364
admissible? (r3,s2, ree)
3. Evidentiary weight of 364
electronic evidence (r7, ss1-2)
4. The hearsay rule and the 365
business records exception
(r9, ss1-2)

Chapter VI: HOW DO I PRESENT 366

AND OFFER THE EVIDENCE AT
TRIAL?
A. Order of Proof 366
1. Manner of Examination 366
2. Mode of Answering 366
3. Exceptions in General 366
4. Record of Proceedings 366
5. Transcript 366
6. Rights and Obligations 366
7. Order of Examination 367
B. Form of Questions 367
1. Leading and Misleading 367
Questions 367
C. Offer of Evidence 367
1. Offer of Evidence 368
2. When to Make Offer 368
D. Objections 368
1. When Repetition of Objection 368
is Unnecessary
2. Ruling on the Objection 368
3. Motion to Strike
E. Tender of Excluded Evidence 368
F. Electronic Examination of 369

EVIDENCE
Witness
G. Examination of a Child Witness 369
1. Scope and Applicability 369
2. Child Witness 369
3. Exclusion of the Public 369
During the Child's
Examination
4. Alternative Modes of Giving 369
Testimony
5. When to Take the Child's 370
Testimony
6. Provisions for Ease of Child in 370
Testifying
7. Hearsay Exception in Child 370
Abuse Cases
8. Sexual Abuse Shield Rule 370
9. Other Protective Measures 370

Page 342 of 370

REVIEWER IN REMEDIAL LAW Chapter I: General Provisions

Evidence
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. Te REMEDIAL LAW LECTURES

FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
EVIDENCE --------
Samantha Poblacion Kae Guerrero
DIRECTOR FOR ACADEMICS Glaisa Po
LEAD WRITER PRINTING AND DISTRIBUTION
EDITOR-IN-CHIEF
--------
Rania Joya Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS LOGO, COVER AND TEMPLATE DESIGN
LAYOUT HEAD

Chapter I: D. Competence
General Provisions Evidence not excluded by law or ROC.
Exclusionary rules:
A. DEFINITION 1) Constitutional:
B. SCOPE a) Unreasonable searches and
C. CLASSIFICATION
seizures; privacy of
D. ADMISSIBILITY V. RELEVANCY
E. COMPETENCE communication and
correspondence. [Art. 3, Sec 2 &
A. Definition 3, Consti]
The means, sanctioned by these rules, b) Miranda Rights; right to
of ascertaining in a judicial proceeding, Counsel, prohibition on torture,
the truth respecting a matter of fact. force, violence, threat,
[Rule 128, Sec. 1] intimidation or other means
which vitiate the free will;
B. Scope prohibition of secret detention
General Rule: Rules of evidence shall be places, solitary, incommunicado.
the same in all courts and in all trials [Art. 3, Sec. 12, Consti]
and hearings c) No person shall be compelled to
Exception: If otherwise provided by: be a witness against himself.
1) Law; [Art. 3, Sec. 17, Consti]
2) ROC. 2) Statutory:
C. Admissibility v. Relevancy a) Lack of documentary stamp tax
(Asked 3x) to documents required to have
ADMISSIBILITY Evidence that is both one makes such document

EVIDENCE
relevant and competent. [Rule 128, Sec. inadmissible as evidence in
3] court until the requisite stamp/s
RELEVANCY Evidence has such a shall have been affixed thereto
relation to the fact in issue as to induce and cancelled. [Sec. 201, NIRC]
belief of its existence or non-existence. b) Any communication obtained by
[Rule 128, Sec. 4] a person, not being authorized
General rule: Evidence on collateral by all the parties to any private
matters (matters other than the fact communication, by tapping any
in issue and which are offered as a wire/cable or using any other
basis for inference as to the device/arrangement to secretly
existence or non-existence of the overhear/intercept/record such
facts in issue) is NOT allowed. information by using any device,
Exception: When it tends in any shall not be admissible in
reasonable degree to establish the evidence in any judicial/quasi-
im/probability of fact in issue. judicial/legislative/
MATERIALITY Evidence directed to administrative hearing or
prove a fact in issue as determined by investigation. [Sec. 1 & 4 RA
the rules of substantive law and 4200 (Wire-Tapping Act)]
pleading c) Rules on Electronic Evidence
[Rule 9, Sec. 1]

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REVIEWER IN REMEDIAL LAW
Chapter II:
Which of the Facts
Do Not Need Proof
A. JUDICIAL NOTICE
B. JUDICIAL ADMISSIONS
A. Judicial Notice
(Asked 2x)
WHEN MANDATORY [Rule 129, Sec. 1]
1) Existence and territorial extent of
states;
2) Their political history;
3) Their forms of government;
4) Their symbols of nationality;
5) The law of nations;
6) Admiralty and maritime courts of
the world and their seals;
7) Political constitution and history of
the Philippines;
8) Official acts of the legislative,
executive and judicial departments
of the Philippines
B. Judicial Admissions
Courts cannot take judicial notice of
foreign laws. [Yao-Kee v. Sy-Gonzales
(1988)
General rule: Courts are not mandated
to take judicial notice of municipal
ordinances. [City of Manila v. Garcia
(1967)]
Exception: If the charter of the
concerned city provides for such judicial
notice.
General rule: Courts cannot take
judicial notice of the contents/records
of other cases even if both cases may
have been tried or are pending before
the same judge. [Prieto v. Arroyo (1965)]
Exception: The case clearly referred to
or the original or part of the records of
the case are actually withdrawn from
the archives of that case and admitted
as part of the record of the case pending
when: [Tabuena v. CA (1991)]
a) There is no objection from adverse
party even with his knowledge
thereof;
b) It is at the request or with the
consent of the parties.
9) Laws of nature;
10) Measure of time;
11) Geographical divisions.
Chapter II: Which of the Facts Do Not Need Proof
WHEN DISCRETIONARY [Rule 129, Sec.
2]
1) Matters of public knowledge;
2) Matters capable of unquestionable
demonstration;
3) Matters which ought to be known to
judges because of their judicial
functions.
WHEN HEARING IS NECESSARY [Rule
129, Sec. 3]
1) During the trial: The court may
announce its intention to take
judicial notice of any matter and
allow the parties to be heard thereon
on its own initiative or on request of
a party.
2) After the trial and before judgment or
on appeal: The court may announce
its intention to take judicial notice of
any matter that is decisive of a
material issue in the case and allow
the parties to be heard thereon on
its own initiative or on request of a
party.
Admissions, verbal or written, made by
the party in the course of the
proceedings in the same case. It
requires no proof. [Rule 129, Sec. 4]
Judicial admission may be contradicted
only by showing that:
It was made through palpable mistake;
No such admission was made.
An original complaint, after being
amended, loses its character as a
judicial admission, which would have
required no proof. It becomes merely an
EVIDENCE
extra-judicial admission requiring a
formal offer in order to be admissible.
[Torres v. CA (1984)]
An admission which constitutes a
deliberate, clear and unequivocal
statement; made as it was in the course
of judicial proceedings, qualifies as a
judicial admission.
A party who judicially admits a fact
cannot later challenge that fact as
judicial admissions are a waiver of
proof; production of evidence is
dispensed with. [Alfelor v. Halasan
(2006]
Page 344 of 370
REVIEWER IN REMEDIAL LAW Chapter III: Who Must Prove These Facts That Need to Be Proven?
Chapter III:
Who Must Prove These Facts
That Need to Be Proven?
A. BURDEN OF PROOF
B. PRESUMPTIONS
A. Burden of Proof
Duty of a party to present evidence on
the facts in issue necessary to establish
his claim/defense by the amount
required by law. [Rule 131, Sec. 1]
The test for determining where the
burden of proof lies is to ask which
party to an action/suit will fail if he
offers no evidence competent to show
the facts averred as the basis for the
relief he seeks to obtain, and based
on the result of an inquiry, which party
would be successful if he offers no
evidence. [Republic v. Vda. De Neri
(2004)]
General rule: All facts in issue and
relevant facts must be proven by
evidence.
Exception: [Republic v. Vda. De Neri
(2004)]
1) Allegations contained in the
complaint/answer immaterial to the
issues;
2) Facts which are admitted or which
are not denied in the answer,
provided they have been sufficiently
alleged;
3) Those which are the subject of an
agreed statement of facts between
the parties, as well as those
admitted by the party in the course
of the proceedings in the same case;
4) Facts which are the subject of
judicial notice;
5) Facts which are legally presumed;
6) Facts peculiarly within the
knowledge of the opposite party.
B. Presumptions
CONCLUSIVE PRESUMPTIONS [Rule
131, Sec. 2]
1) Whenever a party by his own
declaration/act/omission, has led
another to believe a particular thing
to be true and act upon such belief,
he cannot in any litigation arising out of
such declaration/act/omission be
permitted to falsify it.
2) The tenant is not permitted to deny
the title of his landlord at the time of
the commencement of the relation of
landlord and tenant between them.
DISPUTABLE PRESUMPTIONS [Rule
131, Sec. 3]
1) Person is innocent of a crime or
wrong;
2) Unlawful act is done with an
unlawful intent;
3) Person intends the ordinary
consequences of his voluntary act;
4) Person takes ordinary care of his
concerns;
5) Evidence willfully suppressed would
be adverse if produced;
6) Money paid by one to another was
due to the latter;
7) Thing delivered by one to another
belonged to the latter;
8) Obligation delivered up to the debtor
has been paid;
9) Prior rents or installments had been
paid when a receipt for the later ones
is produced;
10) A person found in possession of a
thing taken in the doing of a recent
wrongful act is the taker and doer of
the whole act; otherwise, that things
which a person possesses or exercises
acts of ownership over, are owned by
him;
11) Person in possession of an order on
himself for the payment of the money
or the delivery of anything has paid
the money or delivered the thing
accordingly;
12) Person acting in public office was
regularly appointed or elected to it;
13) Official duty has been regularly
performed;
EVIDENCE
14) A court or judge acting as such,
whether in the Philippines or
elsewhere, was acting in the lawful
exercise of jurisdiction;
15) All the matters within an issue
raised in a case were laid before the
court and passed upon by it; all
matters within an issue raised in a
dispute submitted for arbitration
were laid before arbitrators and
passed upon by them;
16) Private transactions have been fair
and regular;
17) Ordinary course of business has
been followed;
18) There was a sufficient consideration
for a contract;
19) Negotiable instrument was given or
indorsed for a sufficient
consideration;
Page 345 of 370
REVIEWER IN REMEDIAL LAW Chapter III: Who Must Prove These Facts That Need to Be Proven?
20) An indorsement of negotiable the title of such person or his
instrument was made before the successor in interest;
instrument was overdue and at the 34) Presumptions regarding survivorship:
place where the instrument is dated; (Applicable for all purposes except
21) A writing is truly dated; succession)
22) Letter duly directed and mailed was
received in the regular course of the When 2 persons perish in the same calamity,
mail; and it is not shown who died first,
23) Presumptions concerning absence: and there are no particular circumstances
24) Acquiescence resulted from a belief from which it can be inferred,
the survivorship is determined from the
that the thing acquiesced in was
probabilities resulting from the strength and
conformable to the law/fact; the age of the sexes:
25) Things have happened according to Situation Person presumed
the ordinary course of nature and to have survived
ordinary nature habits of life; Both < 15 y/o The older
26) Persons acting as copartners have Both > 60 y/o The younger
entered into a contract of co- One < 15 y/o, The one <15
partnership; the other > 60 y/o
27) A man and woman deporting Both > 15 and < 60 y/o, The male
themselves as husband and wife of different sexes
have entered into a lawful contract of Both > 15 and <60 y/o, The older
marriage; of the same sex
One < 15 or > 60 y/o, and The one between
28) Presumptions governing children of
the other between those those ages
women who contracted another ages
marriage within 300 days after
termination of her former marriage (in 35) As between 2 or more persons called to
the absence of proof to the contrary): succeed each other: If there is a doubt
as to which of them died first,
When Child was Born Presumption
whoever alleges the death of one
Before 180 days after Considered to have
prior to the other, shall prove the
the solemnization of been conceived during
the subsequent the former marriage, same. In the absence of proof, they
marriage provided it be born shall be considered to have died at the
within 300 days after same time.
the termination of the
former marriage
After 180 days Considered to have
following the been conceived during
celebration of the the subsequent
subsequent marriage marriage, even though
it be born within the

EVIDENCE
300 days after the
termination of the
former marriage.

29) A thing once proved to exist

continues as long as is usual with
things of the nature;
30) The law has been obeyed;
31) A printed/published book, purporting
to be printed/published by public
authority, was so printed/published;
32) A printed/published book, purporting
to contain reports of cases adjudged
in tribunals of the country where the
book is published, contains correct
reports of such cases;
33) A trustee or other person whose duty
it was to convey real property to a
particular person has actually
conveyed it to him when such
presumption is necessary to perfect

Page 346 of 370

REVIEWER IN REMEDIAL LAW
Chapter IV:
What Degree of Proof Is Needed?
A. WEIGHT AND SUFFICIENCY OF
EVIDENCE
1. PREPONDERANCE OF EVIDENCE
(CIVIL CASES)
2. PROOF BEYOND REASONABLE DOUBT
(CRIMINAL CASES)
3. SUBSTANTIAL EVIDENCE
(ADMINISTRATIVE CASES)
B. QUANTUM OF EVIDENCE
1. CONFESSIONS
2. CIRCUMSTANTIAL EVIDENCE
3. INTERPRETATION OF DOCUMENTS
4. EVIDENCE ON MOTION
A. Weight and Sufficiency
Evidence
1. PREPONDERANCE OF EVIDENCE (CIVIL
CASES) [Rule 133, Sec. 1]
The evidence adduced by one side
is, as a whole, superior to or has
greater weight than that of the
other.
Where the evidence presented by
one side is insufficient to ascertain
the claim, there is no preponderance
of evidence. [Habagat Grill v. DMC
Urban (2005)]
In determining preponderance, the
court may consider:
1) All the facts and circumstances of
the case;
2) The witnesses manner of testifying;
3) Their intelligence;
4) Their means and opportunity of
knowing the facts to which they
testify;
5) The im/probability of their
testimony;
6) Their interest or want of interest;
7) Personal credibility so far as the
same may legitimately appear upon
the trial;
8) Number of witnesses (although
preponderance is not necessarily
equated with the number of
witnesses).
2. PROOF BEYOND REASONABLE DOUBT
(CRIMINAL CASES) [Rule 133, Sec. 2]
That degree of proof which produces
conviction in an unprejudiced mind.
It does not mean such a degree of proof
as, excluding the possibility of error,
produces absolute certainty.
Only moral certainty is required
that degree of proof which produces
conviction in an unprejudiced mind.
Chapter IV: What Degree of Proof Is Needed?
General rule: Findings of the judge who
tried the case and heard the witnesses
are not to be disturbed on appeal,
unless there are substantial facts and
circumstances which have been
overlooked and which, if properly
considered, might affect the result.
[People v. Cabrera (1990)]
Exception: The rule does not apply
when the issue revolved on the
identification of the accused or
credibility of witness and one judge
heard the testimony and a different
judge penned the decision. [People v.
Escalante (1984); People v. CA (2000)]
of
Rationale: The latter judge is not in a
better position than the appellate courts
to make the determination.
The number of witnesses should not in
and by itself determine the weight of
evidence. However, the numerical factor
may be considered in case of conflicting
testimonies. [Caluna v. Vicente (1951)]
Inconsistencies/contradictions on
details do not materially impair the
credibility of such witness, but on the
contrary are indications of veracity
rather than prevarication. [People v.
Vinas (1968)]
The doctrine of falsus in uno, falsus in
omnibus is not absolute. The court may
accept or reject portions of the witness
testimony depending on the inherent
credibility thereof or the corroborative
evidence in the case. [People v. Baao
(1986)]
Insofar as the civil aspect of the case is
EVIDENCE
concerned, the prosecution or the
private complainant is burdened to
adduce preponderance of evidence or
superior weight of evidence.
Although the evidence adduced by the
plaintiff is stronger than that presented
by the defendant, he is not entitled to a
judgment if his evidence is not sufficient
to sustain his cause of action.
The plaintiff must rely on the strength
of his own evidence and not upon the
weakness of that of the defendants.
[Quinto v. Andres (2005)]
3. SUBSTANTIAL EVIDENCE
(ADMINISTRATIVE CASES) [Rule 133,
Sec. 5]
The amount of relevant evidence which
a reasonable mind might accept as
adequate to support a conclusion.
Page 347 of 370
REVIEWER IN REMEDIAL LAW
B. Quantum of Evidence
1. CONFESSIONS [Rule 130, Sec. 33; Rule
115 (e); Art. 3, Sec. 17, Consti]
A categorical acknowledgment of guilt
made by an accused in a criminal case
without any exculpatory statement or
explanation.
If the accused admits having committed
the act in question but alleges a
justification therefore, the same is
merely an admission. [US v. Tolosa]
The operative act in determining
whether the right against self-
incrimination has been violated is when
the police investigation is:
no longer a general inquiry into
an unsolved crime
but has begun to focus on a
particular suspect who has been
taken into custody by the police
to carry out a process of
interrogation that lends itself to
eliciting incriminatory statements
and not the signing by the suspect
of his supposed extrajudicial
confession. [People v. Compil (1995)]
Any confession, including a re-
enactment without admonition of the
right to silence and to counsel, and
without counsel chosen by the accused
is inadmissible in evidence. [People v.
Yip Wai Ming (1996)]
EXTRAJUDICIAL CONFESSIONS [Rule 133,
Sec. 3]
General rule: An extra-judicial
confession made by an accused, is not a
sufficient ground for conviction.
Exception: When corroborated by
evidence of the actual commission of a
particular crime (corpus delicti).
2. CIRCUMSTANTIAL EVIDENCE [Rule 133,
Sec. 4]
Requisites for circumstantial evidence
to be sufficient for conviction:
1) There is more than 1 circumstance;
2) The facts from which the inferences
are derived are proven;
3) The combination of all the
circumstances is such as to produce
a conviction beyond reasonable
doubt.
Under the RPC, one cannot be convicted
of treason by means of circumstantial
evidence. [Art. 114, RPC]
Chapter IV: What Degree of Proof Is Needed?
3. INTERPRETATION OF DOCUMENTS
[Rule 130]
Interpretation of a writing according to
the legal meaning it bears in the
place of execution, unless parties
intended otherwise.
Instrument construed so as to give
effect to all provisions.
Parties intention is to be pursued in
construction of instrument.
In the inconsistency between
general and particular provision, the
latter prevails.
Particular intent controls general
one inconsistent with it.
The circumstances under which an
instrument was made, including the
situation of the subject thereof and of
the parties to it, may be shown, so that
the judge may be placed in the position
of those whose language he is to
interpret.
The terms of a writing are presumed to
have been used in their primary and
general acceptation, but evidence is
admissible to show that they have a
local/technical/peculiar signification
and were so used and understood in the
particular instance, in which case the
agreement must be construed
accordingly.
When there is inconsistency between
written words and printed words, the
former controls over the latter.
Experts and interpreters to be used in
explaining writings that are difficult to
be deciphered, or where the language is
not understood by the court.
When the terms of an agreement have
been intended in a different sense by
EVIDENCE
the different parties to it, that sense is
to prevail against either party in which
he supposed the other understood it.
And when different constructions of
a provision are otherwise equally
proper, that is to be taken which is
the most favorable to the party in
whose favor the provision is made.
Construction in favor of natural right.
Interpretation according to usage to
determine instruments true character.
4. EVIDENCE ON MOTION [Rule 133, Sec. 7]
The Court may hear the matter on
affidavits or depositions presented by
the respective parties
but the court may direct that the matter
be heard wholly or partly on oral
testimony or depositions.
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?

Chapter V: A. BEST EVIDENCE

What Available Evidence Is
Admissible to Prove These Facts?
A. TESTIMONIAL
1. WHICH WITNESSES ARE SUBJECT TO
OBJECTION FOR COMPETENCE?
2. WHICH WITNESSES WILL TESTIFY ON
PRIVILEGED MATTERS AND TO WHAT
EXTENT DOES THE PRIVILEGE
COVER?
3. WHAT TESTIMONY IS SUBJECT TO A
CLAIM OF PRIVILEGE AND BY WHOM?
4. WHAT EVIDENCE IS HEARSAY AND
UPON WHAT PROPOSITION, IF IT IS
HEARSAY, CAN IT BE BROUGHT
WITHIN ANY EXCEPTION?
5. WHAT TESTIMONY INVOLVES
OPINIONS AND HOW
OBJECTIONS THERETO BE MET? )
A. DYING DECLARATION
B. DECLARATION AGAINST INTEREST
C. ACT OR DECLARATION ABOUT
PEDIGREE
D. FAMILY REPUTATION
TRADITION REGARDING
PEDIGREE [RULE 130, SEC. 40]
E. COMMON REPUTATION [RULE 130,
SEC. 41]
F. PART OF RES GESTAE [RULE 130,
SEC. 42]
G. ENTRIES IN THE COURSE OF
BUSINESS [RULE 130, SEC. 43;
RULE 8, RULES ON ELECTRONIC
EVIDENCE (REE)]
H. ENTRIES IN OFFICIAL RECORDS
I. COMMERCIAL LIST AND THE LIKE
J. LEARNED TREATISES
K. TESTIMONY OR DEPOSITION AT A
FORMER PROCEEDING
6. WHEN IS CHARACTER EVIDENCE
ADMISSIBLE?
7. RECALLING A WITNESS TO THE STAND
B. SECONDARY EVIDENCE
C. OBJECT
D. CIRCUMSTANTIAL EVIDENCE
E. EXTRAJUDICIAL ADMISSIONS
1. ADMISSION BY SILENCE
2. COMPROMISE
3. RES INTER ALIOS ACTA
4. EXCEPTIONS TO RES INTER ALIOS
ACTA
A. PARTNERS/AGENTS ADMISSION;
[RULE 130,
B. CO-CONSPIRATORS ADMISSION;
[RULE 130, SEC. 30]
F. ELECTRONIC EVIDENCE
1. WHAT EVIDENCE IS COVERED BY THE
REE? (R2,S1; R11, SS1-2, REE)
2. WHEN AND TO WHAT EXTENT
ADMISSIBLE? (R3,S2, REE)
CAN 3. EVIDENTIARY WEIGHT OF
ELECTRONIC EVIDENCE (R7, SS1-2)
4. THE HEARSAY RULE AND THE
BUSINESS RECORDS EXCEPTION (R9,
SS1-2)
OR A. Testimonial
1. WHICH WITNESSES ARE SUBJECT TO
OBJECTION FOR COMPETENCE?
All persons who can perceive, and,
perceiving, can make their known
perception to others, may be witnesses.
Religious/political belief, interest in the
outcome of the case, or conviction of a
crime unless otherwise provided by law,
shall not be ground for disqualification.
[Rule 130, Sec. 20]
2. WHICH WITNESSES WILL TESTIFY ON
PRIVILEGED MATTERS AND TO WHAT
EXTENT DOES THE PRIVILEGE COVER?
(Asked 5x)

EVIDENCE
(RECALLING WITNESSES
8. ADVERSE PARTY AS WITNESS a. Disqualification by reason of mental
(IMPEACHMENT OF ADVERSE PARTYS incapacity or immaturity [Rule 130, Sec.
WITNESS
21]
9. EXCLUDING WITNESSES FROM
COURTROOM (EXCLUSION AND
A mental retardate is not for this reason
SEPARATION OF WITNESSES alone disqualified from being a witness.
10. MAY PAROL EVIDENCE BE GIVEN? [People v. Salomon (1993)]
B. DOCUMENTARY Every child is presumed qualified to be
1. WHAT DOCUMENTS REQUIRE a witness.
AUTHENTICATION AND BY WHOM? However, the court shall conduct a
A. PUBLIC DOCUMENTS [RULE 132, competency examination of a child,
SEC. 19]) motu propio or on motion of a party,
B. PRIVATE DOCUMENTS
when it finds that substantial doubt
C. IMPEACHMENT OF JUDICIAL
RECORD exists regarding the ability of the child
D. ALTERATIONS [RULE 132, SEC. 31] to perceive, remember, communicate,
E. SEAL [RULE 132, SEC. 32] distinguish truth from falsehood, or
F. DOCUMENTS WRITTEN IN AN appreciate the duty to tell the truth in
UNOFFICIAL LANGUAGE [RULE court. [Sec. 6, AM 00-4-07-SC (Child
132, SEC. 33] Witness Rule)]
2. DO DOCUMENTS COMPLY WITH BEST
EVIDENCE RULE? [RULE 130, SEC. 3]

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
Requisites of competency of a child as
witness: [People vs. Mendoza (1996)]
1) Capacity of observation;
2) Capacity of recollection;
3) Capacity of communication.
b. Disqualification by reason of marriage
[Rule 130, Sec. 22]
General rule: During their marriage,
neither the husband nor the wife may
testify for or against the other without
the consent of the affected spouse.
Exception:
a) In a civil case by one against the
other;
b) In a criminal case for a crime
committed by one against the other
or the latter's direct
descendants/ascendants.
Purpose: Privilege to prevent testimony
by other spouse based on an aversion to
use judicial compulsion in a litigation to
place spouses in an opposing posture
that may weaken or destroy their
marriage. [People v. Francisco]
This privilege is also given to a spouse
to prevent the other from testifying in
his favor. [People v. Franciso]
c. Disqualification by reason of death or
insanity of adverse party [Rule 130, Sec.
23]
Dead Mans Statute or Survivorship
Rule
General rule:
a. Parties or assignors of parties to a
case, or persons
b. in whose behalf a case is
prosecuted,
c. against an executor/administrator
He may also testify where he was
the one sued by the decedents
estate since the action then is not
against the estate. [Tongco v.
Vianzon]
He may likewise testify where the
estate had filed a counterclaim
against him or where the estate
cross-examined him as to matters
occurring during the lifetime of the
deceased. [Goi v. CA]
Purpose: To guard against the
temptation to give false testimony on
the part of the surviving party and to
put the parties to the suit upon terms of
equality in regard to opportunity to
produce evidence.
d. Disqualification by reason of privileged
communication
1) Marital privilege; [Rule 130, Sec.
24(a)]
Purpose: Privilege for confidential
communications justified on the
ground that it promotes marital
harmony.
General rule: Husband or the wife,
during or after the marriage, cannot
be examined without the consent of
the other as to any communication
received in confidence by one from
the other during the marriage
Exception:
a) In a civil case by one against the
other;
b) In a criminal case for a crime
committed by one against the
other or the latter's direct
descendants/ascendants.

EVIDENCE
or other representative of a deceased A widow of a victim allegedly
person, or against a person of murdered may testify as to her
unsound mind, husbands dying declaration as to
d. upon a claim/demand against the how he died the since the same was
estate of such deceased person or not intended to be confidential. [US
against such person of unsound v. Antipolo]
mind,
e. cannot testify as to any matter of Marital disqualification Marital privilege [Rule
fact [Rule 130, Sec. 22] 130, Sec. 24]
f. occurring before the death of such Broader since it prevents Limited to those made
deceased person or before such all adverse testimony during the course of
person became of unsound mind. between spouses and not the marriage
merely disclosure of
Exception:
confidential
The survivor may testify against the communications and may
estate of the deceased where the even cover matters
latter was guilty of fraud which occurring prior to the
fraud was established by evidence marriage
other than the testimony of the One spouse should be a Where neither spouse
survivor. [Ong Chua v. Carr] party to the case is a party, this is the
disqualifying rule

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
2) Attorney-client privilege; [Rule 130,
Sec. 24(b)]
General rule: The attorney-client
privilege may not be invoked to
refuse to divulge the identity of the
client.
Exception: [Regala v.
Sandiganbayan (1996)]
a) When a strong probability exists
that revealing the name would
implicate that person in the very
same activity for which he
sought the lawyers advice;
b) When disclosure would open the
client to liability;
c) When the name would furnish
the only link that would form the
chain of testimony necessary to
convict.
3) Physician-patient privilege; [Rule
130, Sec. 24(c)]
Covers any advice or treatment
given by a physician or any
information which he may have
acquired in attending such patient
in a professional capacity, which
information was necessary to enable
him to act in capacity, and which
would blacken the reputation of the
patient.
The privilege belongs to the patient,
not the physician so that the latter
cannot claim it if the patient
abandons it. [Bautista]
This does not apply when the doctor
is presented as an expert witness
and only hypothetical problems were
presented to him. [Lim v. CA (1992)]
4) Priest-penitent privilege; [Rule 130,
Sec. 24(d)]
Covers any confession made to or
any advice given by a priest or
minister
in his professional character
in the course of discipline enjoined
by the church to which he belongs.
5) Public officer privilege; [Rule 130,
Sec. 24(e)]
A public officer cannot be examined
during his term of office or
afterwards,
as to communications made to him
in official confidence,
when the court finds that the public
interest would suffer by the
disclosure.
3. WHAT TESTIMONY IS SUBJECT TO A
CLAIM OF PRIVILEGE AND BY WHOM?
(R130, s25)
Parental and filial privilege. [Rule 130,
Sec. 25]
A person cannot be compelled to
testify against his parents, other
direct ascendants, children or other
direct descendants.
4. WHAT EVIDENCE IS HEARSAY AND
UPON WHAT PROPOSITION, IF IT IS
HEARSAY, CAN IT BE BROUGHT
WITHIN ANY EXCEPTION? (R130,
SS36-47) (Asked 2x)
HEARSAY - Any evidence the probative
value of which is not based on the
personal knowledge of the witness but
on the knowledge of some other person
not on the witness stand.
Rationale: The party against whom
such hearsay evidence is presented is
deprived of his right and opportunity to
cross-examine the persons to whom the
statements or writings are attributed.
General rule: A witness can testify only
as to those facts which he knows of his
personal knowledge.
PERSONAL KNOWLEDGE Those
derived from his own perception.
Witnesses can testify only with regard
to facts of which they have personal
knowledge.
The testimony of a witness regarding a
statement made by another person, if
intended to establish the truth of the
facts asserted in the statement is
clearly hearsay evidence.
It is otherwise if the purpose is merely
EVIDENCE
to establish the fact that the
statement was made, or the tenor of
such statement. [People v. Cusi
(1965)]
The testimony of a witness on the
confession made to him by the
accused is not hearsay.
He is testifying to a fact which he
knows of his personal knowledge (was
testifying to the fact that the accused
told him that he stabbed the victim)
and not to the truth of the statement
of the accused. [People v. Gaddi
(1989)]
Newspaper clippings or facts
published in the newspapers are
hearsay and have no evidentiary value
unless substantiated by persons with
personal knowledge of said facts.
[People v. Aguel (1980)]
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
Doctrine of Independently Relevant
Statements
Statements or writings attributed to a
person who is not on the witness stand
are being offered NOT to prove the truth
of the facts stated therein but only to
prove that such were actually made.
It is not covered by the hearsay rule.
[People v. Cusi] (1965)
Independent of WON the facts stated
are true, they are relevant since they
are the facts in issue or are
circumstantial evidence of the facts in
issue.
WON the statement made is true is
immaterial. What is sought to be proved
is the fact that such statement was
made.
Exceptions: (Asked 7x)
a. Dying Declaration [Rule 130, Sec. 37]
Antemortem statement or
statement in articulo mortis.
Requisites: [People v. Macandog
(2001)]
1) Declaration was made under
the consciousness of an
impending death;
2) Declaration refers to cause
and surrounding
circumstances of such
death;
3) Declaration refers to facts
the person is competent to
testify to;
4) Declaration is offered in any
case wherein his death is
the subject of inquiry.
However, the law does not require
the declarant to state explicitly a
perception of the inevitability of
death.
The foreboding may be gleaned from
surrounding circumstances, such as
the nature of the declarants injury
and conduct that would justify a
conclusion that there was
consciousness of impending death.
[People v. Latayada (2004)]
The intervening time from the
making of the declaration up to the
actual death of the declarant is
immaterial as long as the
declaration was made under the
consciousness of an impending
death. [US v. Mallari]
b. Declaration against interest [Rule 130,
Sec. 38]
Made by a person deceased, or
unable to testify, against the
interest of the declarant.
INABILITY TO TESTIFY The
person is dead, mentally
incapacitated or physically
incompetent. Mere absence from
the jurisdiction does not make
him ipso facto unavailable.
[Fuentes vs. CA (1996)]
Subject of declaration/act: The
fact asserted was at the time it was
made so far contrary to
declarant's own interest that a
reasonable man in his position
would not have made the
declaration unless he believed it to
be true.
The declaration should be against
himself or his successors in interest
and against 3rd persons.
c. Act or declaration about pedigree [Rule
130, Sec. 39]
Relationship, family genealogy,
birth, marriage, death, the dates
when and the places where these
fast occurred, and the names of the
relatives.
It also embraces facts of family
history intimately connected with
pedigree.
The rules do not require any specific
degree of relationship but the weight
to which such act/declaration is
entitled may be affected by the
degree of relationship.
The requirement that there be other
EVIDENCE
proof than the declarations of the
declarant as to the relationship does
not apply where it is sought to reach
the estate of the declarant himself
and not merely to establish a right
through his declarations to the
property or some member of the
family. [Tison v. CA]
Requisites for admissibility:
[Mendoza v. CA (1991)]
1) The declarant is dead or unable
to testify.
2) The pedigree must be in issue.
3) The declarant must be a relative
of the person whose pedigree is
in issue.
4) The declaration must be made
before the controversy arose.
5) The relationship between the
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
declarant and the person whose
pedigree is in question must be
shown by evidence other than
such declaration.
d. Family reputation or tradition regarding
pedigree [Rule 130, Sec. 40]
The exception refers to
reputations/traditions existing in a
family previous to the controversy,
in respect to the pedigree of any one
of its members.
It may be received in evidence if the
witness testifying thereon be also a
member of the family, either by
consanguinity or affinity.
Documentary evidence allowed
under the exception: Entries in
family bibles or other family books,
charts, engravings on rings, family
portraits and the like.
This enumeration, by ejusdem
generis, is limited to objects which
are commonly known as "family
possessions," or those articles which
represent, in effect, a family's joint
statement of its belief as to the
pedigree of a person.
These have been described as
objects "openly exhibited and well
known to the family," or those
"which, if preserved in a family, may
be regarded as giving a family
tradition." [Jison v. CA (98)]
A persons statement as to his date
of birth and age, as he learned of
these from his parents or relatives,
is an ante litem motam declaration
of a family tradition. [Gravador v.
Mamigo (1967)]
Such statement (as to his age)
prevails over the mere opinion of
the trial judge. [US v. Agadas (36
PHIL 246)]
However, such statement (as to
age) cannot generally prevail
over the secondary statement of
his father. [US v. Evangelista]
e. Common reputation [Rule 130, Sec. 41]
Admissible evidences under this
exception:
1) Common reputation existing
previous to the controversy,
respecting facts of public or
general interest more than 30
years old, or respecting marriage
or moral character;
COMMON REPUTATION
The general or substantially
undivided reputation
although it need not be
unanimous. It is the definite
opinion of the community in
which the fact to be proved is
known or exists.
CHARACTER The inherent
qualities of a person.
REPUTATION - The opinion
of a person by others.
2) Monuments and inscriptions in
public places as evidence of
common reputation.
f. Part of res gestae [Rule 130, Sec. 42]
Statements admissible as part of the
res gestae:
1) Statements made by a person
while a starting occurrence is
taking place or immediately prior
or subsequent thereto, with
respect to the circumstances
thereof.
2) Statements accompanying an
equivocal act material to the
issue, and giving it a legal
significance.
A dying declaration can be made
only by the victim after the attack
while a statement as part of the res
gestae may be that of the killer
himself after or during the killing.
[People v. Reyes]
Where the elements of both are
present, the statement may be
admitted both as a dying declaration
and as part of the res gestae. [People
v. Balbas (1983)]
Notes taken regarding a transaction
by a person who is not a party
EVIDENCE
thereto and who has not been
requested to take down such notes
are not part of the res gestae.
[Borromeo v. CA (1976)]
g. Entries in the course of business [Rule
130, Sec. 43; Rule 8, Rules on Electronic
Evidence (REE)]
The entry must have been made at
or near the time of transactions to
which they refer.
The entry should have been made
by a person deceased, or unable to
testify, who was in a position to
know the facts therein stated.
Such entry is treated as prima facie
evidence, if the person who made
the entries did so in his professional
capacity or in the performance of
duty and in the ordinary or regular
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
course of business/duty.
If the entrant is available as a
witness, the entries will not be
admitted as an exception to the
hearsay rule but they may
nevertheless be availed of by said
entrant as a memorandum to
refresh his memory while testifying
on the transactions reflected
therein. [Cang Yui v. Gardner]
h. Entries in official records
The entries must be made at or near
the time of transactions to which
they refer, and by a person
deceased, or unable to testify, who
was in a position to know the facts
therein stated.
The entrant must have personal
knowledge of the facts stated by him
or such facts acquired by him from
reports made by persons under a
legal duty to submit the same.
[Salmon, Dexter & Co. v. Wijangco]
Such record is prima facie evidence,
if the person made the entries in his
professional capacity or in the
performance of duty and in the
ordinary or regular course of
business or duty
The report submitted by a police
officer in the performance of his
duties on the basis of his own
personal observation of the facts
reported, may properly be
constituted as an exception. [Caltex
v. Africa (1966)]
Entries in a police blotter are not
conclusive proof of the truth of such
entries. [People vs. Cabuang (1993)]
Baptismal certificates or parochial
records of baptism are not official
records. [Fortus v. Novero (1968)]
i. Commercial list and the like
Requisites:
b) Such statements are contained
in a list
c) The compilation is published for
use by persons engaged in that
occupation
d) It is generally used and relied
upon by them
j. Learned treatises
Requisites:
1) on a subject of
history/law/science/art
2) court takes judicial notice of it
or
3) a witness expert in the subject
testifies that the writer of the
statement in the
treatise/periodical/pamphlet is
recognized in his
profession/calling as expert in
the subject.
k. Testimony or deposition at a former
proceeding
The prior testimony must have been
made by a witness deceased or
unable to testify, in a former
case/proceeding (judicial or
administrative) involving the same
parties and subject matter.
UNABLE TO TESTIFY An
inability proceeding from a
grave cause almost amounting
to death as when the witness is
old and has lost the power of
speech. [Tan v. CA (1967)]
The prior testimony may be given in
evidence against the adverse party
who had the opportunity to cross-
examine the witness.
Child Rule as a Special Exception
[Sec. 28, AM 00-4-07-SC]
1) Hearsay testimony of a child
describing any act or attempted act
of sexual abuse may now be
admitted in any criminal proceeding
subject to certain prerequisites and
the adverse partys right to cross-
examine.
2) The admissibility of such hearsay
statements shall be determined by
the court in light of specified
subjective and objective
EVIDENCE
considerations which provide
sufficient indicia or reliability of the
child witness.
5. WHAT TESTIMONY INVOLVES
OPINIONS AND HOW CAN OBJECTIONS
THERETO BE MET? (OPINION RULE)
General rule: The opinion of a witness
is not admissible. [Rule 130, Sec. 48]
Exception:
a) Expert witness: On a matter
requiring special
knowledge/skill/experience/
training which he shown to possess.
[Rule 130, Sec. 49]
There is no precise requirement
as to the mode in which
skill/experience shall have been
acquired.
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
Scientific study and training are
not always essential to the
competency of a witness as an
expert.
Knowledge acquired by doing is
no less valuable than that
acquired by study. [Dilag Co. v.
Merced (1949)]
Polygraph test has not as yet
attained scientific acceptance as
a reliable and accurate means of
ascertaining truth or deception.
[People vs. Adoviso (1999)]
b) Ordinary witness: If proper basis is
given, and regarding: [Rule 130, Sec.
50]
Identity of a person about whom
he has adequate knowledge;
Handwriting with which he has
sufficient familiarity;
Mental sanity of a person with
whom he is sufficiently
acquainted;
Impressions of the
emotion/behavior/condition/ap
pearance of a person.
6. WHEN IS CHARACTER EVIDENCE
ADMISSIBLE? (CHARACTER [Rule 130,
Sec. 51; Rule 132, Sec. 14])
General rule: Character evidence is not
admissible.
Exception:
1) In criminal cases:
a) Accused May prove his good
moral character which is
pertinent to the moral trait
involved in the offense charged.
b) Prosecution May not prove the
bad moral character of the
accused, except in rebuttal.
c) Offended Party His/her good or
bad moral character may be
proved if it tends to establish in
any reasonable degree the
im/probability of the offense
charged.
2) In civil cases:
Moral character is admissible
only when pertinent to the issue
of character involved in the case.
[Rule 130, Sec. 51]
Evidence of the witness good
character is not admissible until
such character has been
impeached. [Rule 130, Sec. 14]
While evidence of another crime
is, as a rule, not admissible, it is
admissible when it is otherwise
relevant, as when it tends to
identify defendant as the
perpetrator and tends to show is
presence at the scene of the
crime or in the vicinity of the
crime at the time charged, or
when it is evidence of a
circumstance connected with the
crime. [People vs. Irang (1937)]
7. RECALLING A WITNESS TO THE STAND
(RECALLING WITNESSES [RULE 132,
SEC. 9])
After both sides have concluded the
examination of a witness, he cannot be
recalled without leave of court.
Examples of grounds for recalling a
witness: [People v. Rivera (1991)]
Particularly identified material points
were not covered in the cross-
examination;
Particularly described vital documents
were not presented to the witness;
The cross-examination was conducted
in so inept a manner as to result in a
virtual absence thereof.
8. ADVERSE PARTY AS WITNESS
(IMPEACHMENT OF ADVERSE PARTYS
WITNESS [RULE 132, SEC. 11])
How done:
1) By contradictory evidence;
2) By evidence that his general
reputation for truth, honesty or
integrity is bad;
3) By evidence that he has made at
other times statements inconsistent
with his present testimony.
EVIDENCE
Evidence of particular wrongful acts is
not allowed except that it may be shown
by the examination of the witness, or
the record of the judgment, that he has
been convicted of an offense.
IMPEACHMENT OF OWN WITNESS
[Rule 132, Sec. 12]
General rule: The party producing a
witness is not allowed to impeach the
latters credibility.
Exception:
1) Unwilling or hostile witness.
Impeachment may be made by
the party presenting the hostile
or unwilling witness in all
respects as if he had been called
by the adverse party, except by
evidence of bad character.
He may also be impeached and
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
cross-examined by the adverse imposed upon by unfair dealing
party, but such cross- of the other.
examination must only be on the Imperfection includes an
subject matter of his inaccurate statement in the
examination-in-chief. agreement or incompleteness in
2) Witness is an adverse party or an the writing or the presence of
officer/director or managing agent of inconsistent provisions therein.
a public/private corporation or of a b) The failure of the written agreement
partnership/association which is an to express the true intent and
adverse party. agreement of the parties thereto;
c) The validity of the written
9. EXCLUDING WITNESSES FROM agreement;
COURTROOM (EXCLUSION AND d) The existence of other terms agreed
SEPARATION OF WITNESSES [RULE to by the parties or their successors
132, SEC. 15]) in interest after the execution of the
written agreement.
The judge may exclude from the court It does not apply either when 3rd
any witness who is not under parties are involved. [Lechugas v. CA
examination at that time so that he may (1986)]
not hear the testimony of other
witnesses. Parol Evidence Rule Best Evidence Rule
The judge may also have the witnesses Presupposes that the Contemplates the
separated and prevented from original document is situation wherein the
conversing with each other until all available in court original writing is not
available and/or there
have been examined.
is a dispute as to
If a witness remains present in the whether said writing is
hearing despite the courts order that all the original
other witnesses leave the court room, Prohibits the varying of Prohibits the
the discretion to admit/reject the the terms of a written introduction of
testimony of such witness will lie within agreement substitutionary
the courts discretion. [People v. Sandal] evidence in lieu of the
original document
10. MAY PAROL EVIDENCE BE GIVEN? regardless of WON it
varies the contents of
the original
Any evidence aliunde, whether oral or
Applies only to Applies to all kinds of
written, which is intended or tends to documents contractual documents
vary or contradict a complete and in nature (Exception:
enforceable agreement embodied in a wills)
document. Can be invoked only Can be invoked by any
General rule: when the controversy party to an action

EVIDENCE
When the terms of an agreement is between the parties regardless of WON
(including wills) have been reduced to the written such party
to writing, agreement, their privies participated in the
or any party directly writing involved
it is considered as containing all the affected thereby
terms agreed upon and there can
be, between the parties and their
B. Documentary
successors in interest,
no evidence of such terms other
1. WHAT DOCUMENTS REQUIRE
than the contents of the written
AUTHENTICATION AND BY WHOM?
agreement.
Exception: A party may present
a. PUBLIC DOCUMENTS [Rule 132, Sec.
evidence to modify, explain or add to
19])
the terms of written agreement if he
Public documents generally include
puts in issue in his pleading:
notarial documents and
a) An intrinsic ambiguity, mistake or
are admissible in evidence without
imperfection in the written
the necessity of preliminary proof as
agreement;
to its authenticity and due
Mistake here refers to a mistake execution. [Antillon v. Barcellon]
of fact mutual to the parties or 1) Written official acts of the
where the innocent party was sovereign authority, official

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
bodies and tribunals, and public
officers, whether of the
Philippines or of a foreign
country.
2) Records of official acts of the
sovereign authority, official
bodies and tribunals, and public
officers, whether of the
Philippines or of a foreign
country.
How to prove public records [Rule
132, Sec. 24]
1) By an official publication thereof;
2) By a copy attested by the officer
having the legal custody of the
record, or by his deputy, and
accompanied:
If the record is not kept in the
Philippines, with a certificate
that such officer has the
custody.
If the record is in a foreign
country, the certificate may be
made by a secretary of the
embassy/legation, consul-
general, consul, vice-consul,
consular agent or any officer in
the foreign service of the
Philippines stationed in the
foreign country in which the
record is kept, and
authenticated by the seal of his
office.
Translations of foreign
judgments must be made by an
official court interpreter of the
Philippines or foreign
governments or by a competent
and accurate translator. [Pacific
Asia Shipping v. NLRC, (1988)]
How to prove notarial documents
(except last wills and testaments)
[RULE 132, SEC. 30]
The document may be presented
in evidence without further
proof, the certificate of
acknowledgment being prima
facie evidence of the execution of
the instrument or document
involved.
Such notarized documents are
evidence, even against 3rd
persons, of the facts which gave
rise to their execution and of the
date of execution. [Rule 132, Sec.
23]
How to prove Public Records (kept in
the Philippines) of Private
Documents required by law to be
entered therein [Rule 132, Sec. 27]
By the original record, or a copy
thereof, attested by the legal
custodian of the record, with an
appropriate certificate that such
officer has the custody.
Such records are evidence, even
against 3rd persons, of the facts
which gave rise to their
execution and of the date of
execution. [Rule 132, Sec. 23]
Only baptismal certificates
issued by the priests during the
Spanish regime are considered
public documents. [Adriano v. De
Jesus]
o While the birth certificate is
primary evidence of a
victims age in a case of
statutory rape, in the
absence of such evidence,
o the victims minority may be
proved by other
documentary evidence such
as her baptismal certificate
or other authentic records.
[People v. Llandelar (2001)]
Contents of attestation [Rule 132,
Sec. 25]
The attestation must state that
the copy is a correct copy of the
original or a specific part
thereof, as the case may be.
The attestation must be under
the official seal of the attesting
officer, if there be any, or if he be
EVIDENCE
the clerk of a court having a
seal, under the seal of such
court.
A mere copy of the foreign public
document, without the
attestation and the certificate, is
not admissible in evidence to
prove foreign law. [Wildvalley
Shipping v. CA (2000)]
Irremovability of record [Rule 132,
Sec. 26]
Any public record, an official copy of
which is admissible in evidence,
must not be removed from the office
in which it is kept,
except upon order of a court where
the inspection of the record is
essential to the just determination
of a pending case.
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
Probative value [Rule 132, Sec. 23]
Documents consisting of entries in
public records made in the
performance of duty by a public
officer are prima facie evidence of
the facts therein stated.
Proof of lack of record [Rule 132,
Sec. 28]
A written statement signed by
an officer having the custody of
an official record or by his
deputy
that after diligent search, no
record or entry of a specified
tenor is found to exist in the
records of his office,
accompanied by a certificate
that such officer has the
custody, is admissible to prove
that the records of his office
contain no such record or entry.
b. PRIVATE DOCUMENTS ;
How to prove if document is offered
as authentic [RULE 132, SEC. 20]
Its due execution and
authenticity must be proved
either:
o By anyone who saw the
document executed/written;
o By evidence of the
genuineness of the
signature/handwriting of the
maker.
Any other private document
need only be identified as that
which it is claimed to be.
AUTHENTIC DOCUMENT RULE
If all the following requisites
have been met, no other
evidence of its authenticity is
required: [Rule 132, Sec. 21]
o The private document is
more than 30 years old;
o It is produced from a custody
in which it would naturally
be found if genuine;
o It is unblemished by any
alterations or circumstances
of suspicion.
Proving genuineness of handwriting
[Rule 132, Sec. 22]
It may be proved by any witness
who believes it to be the
handwriting of such person
because:
a) He has seen the person write;
b) He has seen writing purporting
to be his upon which the witness
has acted or been charged, and
has thus acquired knowledge of
the handwriting of such person.
This constitutes an exception to
the opinion rule. [Rule 130, Sec.
48 and 50]
o Evidence respecting the
handwriting may also be
given by a comparison made
by the witness or the court,
o with writings admitted or
treated as genuine by the
party against whom the
evidence is offered, or proved
to be genuine to the
satisfaction of the judge.
Rule 132, Sec. 22 merely
enumerates the methods of
proving handwriting, but does
not give preference or priority to
a particular method. [Lopez v.
CA (1978)]
Expert evidence may also be
admitted to prove the
genuineness of the handwriting.
[Rule 130, Sec. 49]
How to prove if document is offered
as authentic [Rule 132, sec. 20]
The document need only be
identified as that which it is
claimed to be.
c. IMPEACHMENT OF JUDICIAL RECORD
[Rule 132, Sec. 29]
Impeachment is done using
evidence of:
1) Want of jurisdiction in the court
or judicial officer;
EVIDENCE
2) Collusion between the parties;
3) Fraud in the party offering the
record, in respect to the
proceedings.
d. ALTERATIONS [Rule 132, Sec. 31]
The party producing a document as
genuine, which has been altered
and appears to have been altered
after its execution, in a part material
to the question in dispute, must
account for the alteration.
Failure to do so would result in the
inadmissibility of evidence.
Such party may show that the
alteration was made:
1) By another;
2) Without his concurrence;
3) With the consent of the parties
affected by it;
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
4) Properly or innocently made;
5) Without changing the meaning
or language of the instrument.
e. SEAL [Rule 132, Sec. 32]
There shall be no difference between
sealed and unsealed private
documents insofar as their
admissibility as evidence is
concerned.
f. DOCUMENTS WRITTEN IN AN
UNOFFICIAL LANGUAGE [Rule 132,
Sec. 33]
These documents are not admissible
unless accompanied by a translation
into English or Filipino.
Parties or their attorneys are
directed to have the translation
prepared before trial.
2. DO DOCUMENTS COMPLY WITH BEST
EVIDENCE RULE? [Rule 130, Sec. 3]
a. Best Evidence (Asked 2x)
General rule: When the subject of
inquiry is the contents of a
document, no evidence shall be
admissible other than the original
document itself.
Exception:
a) When the original has been lost
or destroyed, or cannot be
produced in court, without bad
faith on the offerors part;
b) When the original is in custody
or under control of party against
whom evidence is offered, and
latter fails to produce it after
reasonable notice;
c) When the original consists of
numerous accounts or other
documents which cannot be
examined in court without great
loss of time, and the fact sought
to be established from them is
only the general result of the
whole;
d) When the original is a public
record in the custody of a public
officer or is recorded in a public
office.
Original of a document [Rule 130,
Sec. 4]
a) One the contents of which are
the subject of inquiry.
b) When a document is in 2 or
more copies executed at or about
the same time, with identical
contents, all such copies are
equally regarded as originals.
c) When an entry is repeated in the
regular course of business, one
being copied from another
at/near the time of the
transaction, all the entries are
likewise equally regarded as
originals.
Affidavits and depositions are
considered not the best evidence,
hence not admissible if the
affiants/deponents are available as
witnesses. [Regalado]
Carbon copies are deemed duplicate
originals. [People vs. Tan (1959)]
The BER does not apply when the
issue is only as to WON such
document was actually executed or
in the circumstances relevant to its
execution. [People v. Tandoy (1990)]
b. Secondary Evidence
Original document is unavailable
(lost, destroyed or cannot be
produced in court);
The offeror, upon proof of its
execution/existence and cause
of its unavailability, without bad
faith on his part, may prove its
contents by (in order): [Rule 130,
Sec. 5]
1) A copy;
2) A recital of its contents in
some authentic document;
3) The testimony of witnesses.
Original document is in adverse
partys custody/control. [Rule 130,
Sec. 6]
If after reasonable notice is given
to the adverse party
EVIDENCE
to produce the document and
after satisfactory proof of the
existence of the document is
made, he fails to produce the
document,
secondary evidence may be
presented.
Original document is a public
record. [Rule 130, Sec. 7]
Its contents may be proved by a
certified copy issued by the
public officer in custody thereof.
The offeror of secondary evidence is
burdened to prove: [Lee v. People
(2004)]
1) The loss or destruction of the
original without bad faith on the
part of the proponent/offeror
which can be shown by
circumstantial evidence of
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
routine practices of destruction
of documents;
2) The proponent must prove by a
fair preponderance of evidence
as to raise a reasonable
inference of the loss or
destruction of the original copy;
3) It must be shown that a diligent
and bona fide but unsuccessful
search has been made for the
document in the proper place or
places.
4) If the document is one in which
other persons are also
interested, and which has been
placed in the hands of a
custodian for safekeeping, the
custodian must be required to
make a search and the
fruitlessness of such search
must be shown, before
secondary evidence can be
admitted.
Where the original is in the custody
of the adverse party, it is not
necessary that it be in the actual
possession of the adverse party. It
is enough that the circumstances
show that the writing is in his
possession or under his control.
[Villa Rey Transit v. Ferrer (1968)]
The voluminous character of the
document must be established
before evidence other than the
original may be introduced.
[Maritima v. Allied Free Workers
(1977)]
When the original is outside the
jurisdiction of the court, as when it
is in a foreign country, secondary
1) Its exhibition is contrary to public
policy, morals or decency;
2) It would result in delays,
inconvenience, unnecessary
expenses, out of proportion to the
evidentiary value of such object;
[People v. Tavera]
3) The evidence would be confusing or
misleading. [People v. Saavedra]
D. Circumstantial Evidence [Rule 133,
Sec. 4]
Requisites for circumstantial evidence
to be sufficient for conviction:
1) There is more than 1 circumstance;
2) The facts from which the inferences
are derived are proven;
3) The combination of all the
circumstances is such as to produce
a conviction beyond reasonable
doubt.
Under the RPC, one cannot be convicted
of treason by means of circumstantial
evidence. [Art. 114, RPC]
E. Extrajudicial Admissions
Any statement of fact made by a party
against his interest or unfavorable to
the conclusion for which he contends or
is inconsistent with the facts alleged by
him.
Types:
1) Verbal or written;
2) Express or tacit;
3) JUDICIAL One made in connection
with a judicial proceeding in which
it is offered;

evidence is admissible. [PNB v. Olila]
A party who calls for the production
of a document and inspects it is not
obliged to offer it as evidence. [Rule
130, Sec. 8]
C. Object
EVIDENCE
EXTRAJUDICIAL Any admission
other than judicial (e.g. Rule 130,
Sec 26 and 32).
General rule: Any act/declaration/
omission of a party as to a relevant fact
may be given in evidence against him.
[Rule 130, Sec. 26]

Those addressed to the senses of the Admission Confession

court. [Rule 130, Sec. 1] Merely a statement of Involves an
Includes the anatomy of a person or of fact acknowledgement of
any substance taken therefrom. [US v. guilt/liability
Tan Teng] Maybe express or tacit Must be express
General rule: When object is relevant to
the fact in issue, it may be exhibited to, Flight from justice is The silence of an
examined or viewed by the court. [Rule an admission by accused under custody
conduct and or his failure to deny
130, Sec. 1]
circumstantial statements by another
Exception: Court may refuse exhibition evidence of implicating him in a
of object evidence and rely on consciousness of guilt. crime cannot be
testimonial alone if: [US v. Sarikala] considered as a tacit

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
confession of his In cases involving quasi-offenses
participation in the (criminal negligence);
commission of the Those allowed by law to be
crime. [People v. Alegre
compromised.
(1979)]
Maybe made by 3rd Can be made only by
An offer to pay or the payment of
parties, and in certain the party himself and medical, hospital or other expenses
cases, admissible are admissible against occasioned by an injury is not
against a party his co-accused in some admissible in evidence as proof of
instances civil/criminal liability for the injury.
A plea of guilty later withdrawn, or an
Admission Self-serving testimony unaccepted offer of a plea of guilty to
Made against the Made in favor of the lesser offense, is not admissible in
interest of the person interest of the person evidence against the accused who made
who admitted making the statement the plea/offer.
Made in anticipation of
In cases of public crimes,
future litigation
Admissible in evidence Not admissible in the accused is permitted to show
Admissible not only evidence that the offer was not made under a
against the party who consciousness of guilt
made it or his but merely to avoid the
successors-in- inconvenience of imprisonment of
interest, but also for some other reason
against 3rd persons. which would justify a claim by the
[Viacrucis v. CA (1986)]
accused that the offer was not in
truth an admission of his guilt or an
1. SELF-SERVING DECLARATIONS attempt to avoid the legal
Requisites consequences which would
1) The statement was made extra- ordinarily ensue therefrom. [People
judicially; vs. Godoy (1995)]
2) The statement is in favor of the A plea of forgiveness may be considered
declarants interest; as analogous to an attempt to
3) The statement was made in compromise. [People vs. De Guzman
anticipation of future litigation (1996)]
An offer to compromise does not require
2. ADMISSION BY SILENCE [Rule 130, Sec. that a criminal complaint be first filed
32] before the offer can be received as
An act/declaration made in the evidence against the offeror. [People vs.
presence and within the Yparriguirre (1997)]
hearing/observation of a party
who does/says nothing 4. RES INTER ALIOS ACTA [Rule 130, Sec.
when the act/declaration is such as 28]

naturally to call for action/comment if
not true,
and when proper and possible for him
to do so, may be given in evidence
against him.
The rule does not apply if the
statements adverse to the party were
made in the course of an official
investigation. [US v. De la Cruz]
3. COMPROMISE [Rule 130, Sec. 27
Civil cases An offer of compromise is
not an admission of any liability, and is
not admissible against the offeror.
Criminal cases An offer of compromise
by the accused may be received in
evidence as an implied admission of
guilt.
Exception:
EVIDENCE
The rights of a party cannot be
prejudiced by an
act/declaration/omission of another.
(1st branch of the res inter alios acta
rule)
Only the admissions of a party-litigant
are admissible as substantive evidence.
Those of non-party witnesses may be
admitted for impeachment purposes
only.
Extra-judicial statements of an accused
implicating a co-accused may not be
utilized against the latter.
Exception: [People v. Raquel (1996)]
a) The co-accused impliedly acquiesced
in or adopted the confession by not
questioning its truthfulness;
b) The accused persons voluntarily
and independently executed
identical confessions without

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
collusion and without contradiction the extra-judicial confession of an
by the others present; accused cannot be used against his
c) The accused admitted the facts after co-accused as the res inter alios rule
being apprised of the confession; applies both to extra-judicial
d) If they are charged as co- confessions and admissions. [People
conspirators of the crime which was v. Alegre (1976)]
confessed by 1 of the accused and This rule in Rule 130, Sec. 30
the confession is used only as a applies only to extra-judicial
corroborating evidence; statements, not to testimony given
e) The confession is used as on the stand. [People v. Serrano
circumstantial evidence to show the (1959)]
probability of participation by the
co-conspirator; c) Admission by privies. [Rule 130, Sec. 31]
f) The confessant testified for his co- Where one derives title to property
defendant; from another, the
g) The co-conspirators extra-judicial act/declaration/omission of the
confession is corroborated by other latter, while holding the title, in
evidence on record. relation to the property, is evidence
against the former.
5. EXCEPTIONS TO RES INTER ALIOS
ACTA Requisites: [People v. Du]
a) There exists a relation of privity
a) Partners/agents admission; [Rule 130, between the party and the
Sec. 29] declarant;
Privity in estate may have
Requisites: arisen by succession, acts
a) The act/declaration must be mortis causa or acts inter
within the scope of the authority vivos. [Alpuerto v. Perez
of the partner/agent. Pastor]
b) The act/declaration must have b) Admission was made by
been made during the existence declarant as predecessor-in-
of the partnership/agency. interest while holding title to
c) The partnership or agency must property;
be shown by evidence other than c) Admission is in relation to the
the act or declaration. property.

This rule applies to the F. Electronic Evidence

act/declaration of a joint owner,
joint debtor or other person jointly 1. WHAT EVIDENCE IS COVERED BY THE
interested with the party. REE? (R2,S1; R11, SS1-2, REE)
Statements made after a

EVIDENCE
partnership has been dissolved do a) Electronic document
not fall within this exception. information or the representation of
information, data, figures, symbols
b) Co-conspirators admission; [Rule 130, or other modes of written
Sec. 30] expression,
Requisites: described or however represented,
a) The act/declaration must relate by which a right is established or an
to the conspiracy; obligation extinguished, or by which
b) It must have been made during a fact may be proved and affirmed,
the existence of the conspiracy; which is received, recorded,
c) The conspiracy must be shown transmitted, stored processed,
by evidence other than such retrieved or produced electronically.
act/declaration. It includes digitally signed
documents and any print-out or
The existence of the conspiracy may output, readable by sight or other
be inferred from the acts of the means, which accurately reflects the
accused. [People v. Belen (1963)] electronic data message or
Where there is no independent electronic document.
evidence of the alleged conspiracy,

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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
For purposes of these Rules, the
term electronic document may be
used interchangeably with electronic
data message.
b) Electronic data message - information
generated, sent, received or stored by
electronic, optical or similar means.
c) Audio recording
d) Photograph Video recording
e) Ephemeral evidence - telephone
conversations, text messages, chatroom
sessions, streaming audio, streaming
video, and other electronic forms of
communication the evidence of which is
not recorded or retained.
2. WHEN AND TO WHAT EXTENT
ADMISSIBLE? (R3,S2, REE)
An electronic document is admissible in
evidence if it complies with the rules on
admissibility prescribed by the Rules of
Court and related laws and is
authenticated in the manner prescribed
by these Rules.
a) Privileged Communication (R3,s3, REE)
The confidential character of a
privileged communications is not
solely on the ground that it is in the
form of an electronic document.
b) Functional equivalence (R3, s1, REE)
Whenever a rule of evidence refers to
the term of writing, document,
record, instrument, memorandum
or any other form of writing, such
term shall be deemed to include an
electronic document as defined in
these Rules.
c) Authentication (R5, ss1-3; R11, ss1-2,
REE)
The person seeking to introduce an
electronic document in any legal
proceeding has the burden of
proving its authenticity in the
manner provided in this Rule.
Before any private electronic
document offered as authentic is
received in evidence, its authenticity
must be proved by any of the
following means:
a. by evidence that it had been
digitally signed by the person
purported to have signed the
same;
b. by evidence that other
appropriate security
procedures or devices as may
be authorized by the Supreme
Court or by law for
authentication of electronic
documents were applied to the
document; or
c. by other evidence showing its
integrity and reliability to the
satisfaction of the judge.
A document electronically notarized
in accordance with the rules
promulgated by the Supreme Court
shall be considered as a public
document and proved as a notarial
document under the Rules of
Court.
d) Best Evidence Rules (R4, ss1-2, REE)
An electronic document shall be
regarded as the equivalent of an
original document under the Best
Evidence Rule if it is a printout or
output readable by sight or other
means, shown to reflect the data
accurately.
When a document is in two or more
copies executed at or about the
same time with identical contents,
or is a counterpart produced by
the same impression as the
original, or from the same
matrix, or
by mechanical or electronic re-
recording, or by chemical
reproduction, or by other
equivalent techniques
which accurately reproduces the
original, such copies or
duplicates shall be regarded as
the equivalent of the original.
EVIDENCE
Notwithstanding the foregoing,
copies or duplicates shall not be
admissible to the same extent as the
original if:
a. a genuine question is raised as
to the authenticity of the
original; or
b. in the circumstances it would be
unjust or inequitable to admit a
copy in lieu of the original.
3. EVIDENTIARY WEIGHT OF ELECTRONIC
EVIDENCE (R7, SS1-2)
In assessing the evidentiary weight of
an electronic document, the following
factors may be considered:
a. The reliability of the manner or
method in which it was generated,
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REVIEWER IN REMEDIAL LAW Chapter V: What Available Evidence Is Admissible to Prove These Facts?
stored or communicated, including
but not limited to
input and output procedures,
controls, tests and checks for
accuracy and reliability of the
electronic data message or
document,
in the light of all the
circumstances as well as any
relevant agreement;
b. The reliability of the manner in
which its originator was identified;
c. The integrity of the information and
communication system in which it is
recorded or stored, including but
not limited to the hardware and
computer programs or software
used as well as programming
errors;
d. The familiarity of the witness or the
person who made the entry with the
communication and information
system;
e. The nature and quality of the
information which went into the
communication and information
system upon which the electronic
data message or electronic
document was based; or
f. Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document
or electronic data message.
In any dispute involving the integrity of
the information and communication
system in which an electronic document
or electronic data message is recorded
or stored, the court may consider,
among others, the following factors:
a. Whether the information and
Text messages have been classified as
ephemeral electronic
communication under Section 1(k),
Rule 2 of the Rules on Electronic
Evidence, and shall be proven by the
testimony of a person who was a party
to the same or has personal knowledge
thereof. [Vidallon-Magtolis v. Salud
(2005)]
4. THE HEARSAY RULE AND THE
BUSINESS RECORDS EXCEPTION (R9,
SS1-2)
All matters relating to the admissibility
and evidentiary weight of an electronic
document may be established by an
affidavit stating facts of direct personal
knowledge of the affiant or based on
authentic records.
The affidavit must affirmatively show
the competence of the affiant to testify
on the matters contained therein.
The affiant shall be made to affirm the
contents of the affidavit in open court
and may be cross-examined as a matter
of right by the adverse party.

EVIDENCE
communication system or other
similar device was operated in a
manner that did not affect the
integrity of the electronic document,
and there are no other reasonable
grounds to doubt the integrity of the
information and communication
system;
b. Whether the electronic document
was recorded or stored by a party to
the proceedings with interest
adverse to that of the party using it;
or
c. Whether the electronic document
was recorded or stored in the usual
and ordinary course of business by
a person who is not a party tot he
proceedings and who did not act
under the control of the party using
it.

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REVIEWER IN REMEDIAL LAW Chapter VI: How Do I Present and Offer the Evidence at Trial?

Chapter VI: 3. EXCEPTIONS IN GENERAL

How Do I Present and Offer the
Evidence at Trial? a) Testimony of witness in civil cases may
be given by depositions. [Rule 23 and
A. ORDER OF PROOF 24]
1. MANNER OF EXAMINATION b) Depositions or conditional examinations
2. MODE OF ANSWERING are allowed in criminal cases. [Rule 119
3. EXCEPTIONS IN GENERAL and 123]
4. RECORD OF PROCEEDINGS Mere presentation of the affidavits of
5. TRANSCRIPT prosecution witnesses subject to
6. RIGHTS AND OBLIGATIONS cross-examination is not allowed by
7. ORDER OF EXAMINATION
the ROC. [People v. Estenzo (1976)]
B. FORM OF QUESTIONS
1. LEADING AND MISLEADING c) Affidavits are allowed in cases covered
QUESTIONS by Rule on Summary Procedure
C. OFFER OF EVIDENCE Although affidavits of witnesses are
1. OFFER OF EVIDENCE allowed/admissible under the Rule on
2. WHEN TO MAKE OFFER Summary Procedure, these may not
D. OBJECTIONS have any probative value. [Heirs of
1. WHEN REPETITION OF OBJECTION IS Sabanpan v. Comorposa, (2003)]
UNNECESSARY
2. RULING ON THE OBJECTION
3. MOTION TO STRIKE
4. RECORD OF PROCEEDINGS [Rule 132,
E. TENDER OF EXCLUDED EVIDENCE Sec. 2]
F. ELECTRONIC EXAMINATION OF WITNESS
G. EXAMINATION OF A CHILD WITNESS The entire proceedings of a trial/hearing
1. SCOPE AND APPLICABILITY should be recorded, including:
2. CHILD WITNESS The questions propounded to a
3. EXCLUSION OF THE PUBLIC DURING witness and his answer thereto;
THE CHILD'S EXAMINATION
Statements made by the judge or
4. ALTERNATIVE MODES OF GIVING
TESTIMONY
any of the
5. WHEN TO TAKE THE CHILD'S parties/counsels/witnesses with
TESTIMONY reference to the case.
6. PROVISIONS FOR EASE OF CHILD IN
TESTIFYING 5. TRANSCRIPT
7. HEARSAY EXCEPTION IN CHILD
ABUSE CASES TSN shall be made by the official
8. SEXUAL ABUSE SHIELD RULE stenographer/ stenotypist/recorder. He
9. OTHER PROTECTIVE MEASURES
shall certify it as correct, and it shall be
deemed prima facie a correct statement
A. Order of Proof of the proceedings.
That a judge did not hear a case does

EVIDENCE
1. MANNER OF EXAMINATION [Rule 132, not necessarily render him less
Sec. 1] competent in assessing the credibility of
witnesses. He can rely on the TSN of
In open court; their testimony and calibrate them in
Under oath/affirmation. accordance with their conformity to
common experience, knowledge and
2. MODE OF ANSWERING observation of ordinary men. Such
reliance does not violate substantive
General rule: Oral answers. and procedural due process of law.
Exception: [People v. Cadley (2004)]
1. Witness is incapacitated to speak;
2. Question calls for a different mode 6. RIGHTS AND OBLIGATIONS [Rule 132,
of answer. Sec. 3]
The testimony of the witness should be
elicited by questions of counsel. But the Obligation of a witness: To answer
court may itself propound questions questions, although his answer may
either on the direct or cross tend to establish a claim against him.
examination of the witness. [People v. Rights of a witness:
Moreno (1988)] a) To be protected from irrelevant,
improper, or insulting questions,

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REVIEWER IN REMEDIAL LAW
and from harsh or insulting
demeanor;
b) Not to be detained longer than the
interests of justice require;
c) Not to be examined except only as to
matters pertinent to the issue;
d) Not to give an answer which will
tend to subject him to a penalty for
an offense, unless otherwise
provided by law;
Unless provided by law refers
to immunity statutes such as
those which the witness is
granted immunity from criminal
prosecution for offenses
admitted (e.g. Sec. 8, RA 1379).
e) Not to give an answer which will
tend to degrade his reputation,
unless it to be the very fact at issue
or to a fact from which the fact in
issue would be presumed. But a
witness must answer to the fact of
his previous final conviction for an
offense.
7. ORDER OF EXAMINATION [Rule 132,
Sec. 4]
DIRECT EXAMINATION
[Rule 132, Sec. 5]
Examination-in-chief of a witness by the
party presenting him, on the facts relevant
to the issue.
RE-DIRECT EXAMINATION
[Rule 132, Sec. 7]
When conducted: After the cross-
examination of the witness has been
concluded.
Why conducted: To explain or supplement
his answers given during the cross-
examination.
On re-direct-examination, the court in
its discretion may allow questions on
matters not dealt with during the cross-
examination.
RE-CROSS EXAMINATION
[Rule 132, Sec. 8]
When conducted: Upon the conclusion of the
re-direct examination.
Matters covered: The adverse party may re-
cross-examine the witness on matters stated
in his re-direct examination, and also on such
other matters as may be allowed by the court
in its discretion.
Chapter VI: How Do I Present and Offer the Evidence at Trial?
B. Form of Questions
1. LEADING AND MISLEADING QUESTIONS
[Rule 132, Sec. 10]
MISLEADING QUESTIONS Questions
that assume as true a fact not yet
testified to by the witness, or contrary
to that which he has previously stated.
They are not allowed.
LEADING QUESTIONS Questions that
suggest to the witness the answer which
the examining party desires.
General rule: Leading questions are not
allowed.
Exception:
a) On cross examination;
b) On preliminary matters;
c) When there is a difficulty is getting
direct and intelligible answers from
a witness who is ignorant, or a child
of tender years, or is of feeble mind,
or a deaf-mute;
d) On an unwilling or hostile witness;
A witness may be considered
hostile only when declared by
the court, upon adequate
showing of his: [Rule 132, Sec.
12]
o Adverse interest;
o Unjustified reluctance to
testify;
o His having misled the party
into calling him to the
witness stand.
e) On a witness who is an adverse party
or an officer/director or managing
agent of a public/private
corporation or of a
partnership/association which is an
EVIDENCE
adverse party.
C. Offer of Evidence
(Asked 3x)
1. OFFER OF EVIDENCE [Rule 132, Sec. 34]
Purpose: For evidence to be considered
by the court.
In making the offer, the purpose for
which the evidence is offered must be
specified, because such evidence may
be admissible for several purposes
under the doctrine of multiple
admissibility.
The rule may be relaxed, provided the
evidence must have duly identified by
testimony duly recorded and they must
have been incorporated in the records of
the case. [Vda. De Orate v. CA (1995)]
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REVIEWER IN REMEDIAL LAW Chapter VI: How Do I Present and Offer the Evidence at Trial?
2. WHEN TO MAKE OFFER [Rule 132, Sec. 2. RULING ON THE OBJECTION [Rule 132,
35] Sec. 38]

Kind of evidence When to offer It should be given immediately after the

Testimonial At the time the witness is objection is made, unless the court
called to testify desires to take a reasonable time to
Documentary After the presentation of a inform itself on the question presented.
and Object partys testimonial evidence But the ruling shall always be made
Offer shall be done orally unless allowed by the
during the trial and at such time as will
court to be done in writing.
give the party against whom it is made
an opportunity to meet the situation
Absence of an offer is a defect which is
presented by the ruling.
waived when a party fails to object when
The reason for sustaining or overruling
the ground became reasonably
an objection need not be stated.
apparent, as when the witness is called
However, if the objection is based on
to testify without any prior offer.
two or more grounds, a ruling
[Catuira v. CA (1994)]
sustaining the objection on one or some
The defect caused by the absence of
of them must specify the ground/s
formal offer of exhibits can be cured by
relied upon.
the identification of the exhibits by
Reservation of a ruling by the court on
testimony duly recorded and the
an objection to the admissibility of
incorporation of the said exhibits in the
evidence, without subsequently
records of the case. [People v. Mate
excluding the same, amounts to a
(1981)]
denial of an objection. [People v. Tavera]
D. Objections 3. MOTION TO STRIKE [Rule 132, Sec. 39]
What to object to When to object
The court may sustain an objection and
Testimonial evidence Immediately after offer
order the answer given to be stricken off
is made
Question propounded As soon as the the record
in the course of oral grounds become should a witness answer the question
examination reasonably apparent before the adverse party had the
Offer done in writing Within 3 days after opportunity to voice fully its objection
notice of the offer, and such objection is found to be
unless a different meritorious.
period is allowed by The court may also, upon motion, order
the court the striking out of answers, which are
The grounds for objection incompetent, irrelevant or otherwise
must be specified in any case.
improper.
1. WHEN REPETITION OF OBJECTION IS

EVIDENCE
E. Tender of Excluded Evidence
UNNECESSARY [Rule 132, Sec. 37]
(R132, s40)
When it becomes reasonably apparent
Kind of evidence How to tender the evidence
in the course of the examination of a
Documentary Offeror may have the same
witness that the questions being attached or made part of
propounded are of the same class as the record
those to which objection has been Testimonial Offeror may state for the
made, whether such objection was record the name and other
sustained or overruled. personal circumstances of
It shall be sufficient for the adverse the witness and the
party to record his continuing objection substance of the proposed
to such class of questions. testimony
A court may, motu proprio, treat the
objection as a continuing one. [Keller v. Documents marked as exhibits during
Ellerman & Bucknall Steamship] the hearing but which were not formally
offered in evidence cannot be
considered as evidence nor shall they
have evidentiary value. [Vda. De Flores
v. WCC (1977)]

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REVIEWER IN REMEDIAL LAW Chapter VI: How Do I Present and Offer the Evidence at Trial?
Identification of Formal offer of challenging his competence. [Sec. 6(b)]
documentary evidence exhibit When the court finds that substantial
Done in the course of Done only doubt exists regarding the ability of the
the trial and is when the child to perceive/remember/
accompanied by the party rests
communicate, distinguish truth from
marking of the his/her
evidence case
falsehood, or appreciate the duty to tell
That a document has the truth in court, a competency exam
been identified does shall be conducted.
not mean that it will The age of the child by itself is not a
be offered sufficient basis for a competency
[Interpacific Transit v. Aviles (1990)] examination. [Sec. 6(a)]
The court has the duty of
F. Electronic Examination of continuously assessing the
Witnesses competence of the child throughout
(R10, s1, REE) his testimony. [Sec. 6(f)]

After summarily hearing the parties 3. EXCLUSION OF THE PUBLIC DURING

pursuant to Rule 9 of these Rules, the
court may authorize the presentation of
testimonial evidence by electronic
means.
Before so authorizing, the court shall
determine the necessity for such
presentation and prescribe terms and
conditions as may be necessary under
the circumstance, including the
protection of the rights of the parties
and witnesses concerned.
THE CHILDS EXAMINATION
To protect the right to the childs
privacy;
If the court determines on the record
that requiring the child to testify in
open court would cause psychological
harm to him, hinder the ascertainment
of truth, or result in his inability to
effectively communicate due to
embarrassment/fear/timidity.

G. Examination of a Child Witness 4. ALTERNATIVE MODES OF GIVING

1. SCOPE AND APPLICABILITY
a) Live-link
It shall govern the examination of child
witnesses who are victims of crime,
accused of a crime, and witnesses to
crime. It shall apply in all criminal
proceedings and non-criminal
proceedings involving child witnesses.
[Sec. 1]
TESTIMONY
television testimony, in
criminal cases where the child is a
victim or a witness. [Sec. 25]
The court may order that the
testimony of the child be taken by
live-link television
if there is a substantial likelihood
that the child would suffer trauma

EVIDENCE
The ROC provisions on deposition, from testifying in the presence of the
conditional examination of witnesses accused, his counsel or the
and evidence shall be applied prosecutor.
suppletorily. [Sec. 32] The trauma must be of a kind which
would impair the
2. CHILD WITNESS completeness/truthfulness of the
childs testimony.
a) Any person who at the time of giving If it is necessary for the child to
testimony is < 18 years; identify the accused at trial,
b) In child abuse cases, a child includes the court may allow the child to
one over 18 years but is found by the enter the courtroom for the limited
court as unable to fully take care of purpose of identifying the accused,
himself or protect himself from or the court may allow the child to
abuse/neglect/cruelty/exploitation/ identify the accused by observing
discrimination because of a the image of the latter on a
physical/mental disability or condition. television monitor.
Every child is presumed qualified to be
a witness. To rebut the presumption of b) Screens, one-way mirrors and other
competence enjoyed by a child, the devices to shield child from accused.
burden of proof lies on the party [Sec. 26]

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REVIEWER IN REMEDIAL LAW
c) Videotaped deposition. [Sec. 27]
If the court finds that the child will
not be able to testify in open court
at trial, it shall issue an order that
the deposition of the child be taken
and preserved by videotape.
The rights of the accused during
trial, especially the right to counsel
and to confront and cross-examine
the child, shall not be violated
during the deposition.
5. WHEN TO TAKE THE CHILDS
TESTIMONY
The court may order that the testimony
of the child should be taken during a
time of day when the child is well-
rested. [Sec. 14]
6. PROVISIONS FOR EASE OF CHILD IN
TESTIFYING
a) Interpreter for child. [Sec. 9]
b) Facilitator to pose questions to child.
[Sec. 10]
c) Support persons. [Sec. 11]
A child testifying at a judicial
proceeding or making a deposition shall
have the right to be accompanied by 1
or 2 persons of his own choosing to
provide him emotional support.
d) Waiting area for child witnesses that is
separate from waiting areas used by
other persons. [Sec. 12]
e) Courtroom environment is made a more
comfortable environment for the child.
[Sec. 13]
f) Recess during testimony: The child may
be allowed reasonable periods of relief
while undergoing direct, cross, re-direct,
and re-cross examinations as often as
necessary depending on his
developmental level. [Sec. 15]
g) Testimonial aids: use of dolls,
anatomically-correct dolls, puppets,
drawings, mannequins, or any other
appropriate demonstrative device to
assist him in his testimony. [Sec. 16]
h) Emotional security item: While
testifying, a child shall be allowed to
have an item of his own choosing such
as a blanket/toy/doll. [Sec. 17]
i) Conduct in questioning the witness: The
court shall exercise control over the
questioning of children so as to: [Sec.
19]
Facilitate the ascertainment of the
truth;
Ensure that questions are stated in
Chapter VI: How Do I Present and Offer the Evidence at Trial?
a form appropriate to the childs
developmental level;
Protect children from harassment or
undue embarrassment;
Avoid waste of time.
The court may allow the child
witness to testify in a narrative
form.
j) Weight given to testimony of child
witness: His testimony, if credible by
itself, shall be sufficient to support a
finding of fact/conclusion/judgment
subject to the standard of proof
required in criminal and non-criminal
cases. [Sec. 22]
7. HEARSAY EXCEPTION IN CHILD ABUSE
CASES [Sec. 28]
Before the hearsay statement may be
admitted, its proponent shall make
known to the adverse party the
intention to offer such statement and its
particulars to provide him a fair
opportunity to object.
If the child is available, the court
shall require the child to be present
at the presentation of the hearsay
statement for cross-examination by
the adverse party.
If the child is unavailable, the fact of
unavailability must be proved by the
proponent and his hearsay
testimony shall be admitted only if
corroborated by other admissible
evidence.
8. SEXUAL ABUSE SHIELD RULE [Sec. 30]
General rule: The following evidence
EVIDENCE
are inadmissible in any criminal
proceeding involving alleged child
sexual abuse:
1) Evidence offered to prove that the
alleged victim engaged in other
sexual behavior;
2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception: Evidence of specific
instances of sexual behavior by the
alleged victim to prove that a person
other than the accused was the source
of semen, injury or other physical
evidence shall be admissible.
9. OTHER PROTECTIVE MEASURES
Video/audio tapes that are part of the
court record may be viewed only by
parties, their counsel, their expert
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REVIEWER IN REMEDIAL LAW
witness and the guardian ad litem.
But they cannot divulge the tape (or any
portion thereof) to any other person,
except as necessary for the trial.
The court may issue additional orders to
protect the childs privacy.
Publication (or causing it) in any format
any identifying information of a child
who is or is alleged to be a
victim/accused of a crime or a witness
thereof, or an immediate family of the
child, shall be liable for contempt of
court.
A child has a right at any court
proceeding not to testify regarding
personal identifying information that
could endanger his physical safety or
his family.
However, the court may require the
child to testify regarding personal
identifying information in the interest of
justice.
- end of Evidence -
- end of Remedial Law -
Chapter VI: How Do I Present and Offer the Evidence at Trial?
The records of a youthful offender shall
be considered as privileged and may not
be disclosed in/directly to anyone for
any purpose whatsoever.
Exception: If he has been charged
and the court acquits him, or
dismisses the case or commits him
to an institution and subsequently
releases him pursuant to Chap. 3,
PD 603:
1) To determine if he may have his
sentence suspended (under Art.
192, PD 603);
2) To determine if he may be
granted probation (under PD
968);
3) To enforce his civil liability, if
said liability has been imposed
in the criminal action.
EVIDENCE
Page 370 of 370