REMEDIAL LAW

REMEDIAL LAW
REMEDIAL LAW
 REMEDIAL LAW
TABLE OF CONTENTS
CIVIL PROCEDURE .................................... 1
I. GENERAL PRINCIPLES IN REMEDIAL
LAW ......................................................................... 2
A. Nature, Basis and Source of Remedial Law 2
1. Nature ....................................................... 2
2. Supreme Court and Law as Specific
Source ....................................................... 2
B. Rule-Making Power of the Supreme Court 3
1. Nature and Scope .................................... 3
2. Methodology ............................................ 3
3. Limitations on the Rule-Making Power
of the Supreme Court ............................ 4
4. Power of SC to Amend and Suspend
Procedural Rules ..................................... 4
II. JURISDICTION OF COURTS.......................... 6
A. Nature of Philippine Courts ......................... 6
1. Meaning of a Court ................................. 6
B. Meaning of Jurisdiction in Various Contexts
7 8. Independent civil action ...................... 28
1. Subject Matter Jurisdiction of a Court . 7
2. Jurisdiction over the Person of a Party 7
3. Jurisdiction over the Issues.................... 8
4. Jurisdiction over the Res ......................... 8
C. General Principles on Subject Matter
Jurisdiction ....................................................... 9
1. Jurisdiction v. the Exercise of
Jurisdiction ............................................... 9
2. Error of Jurisdiction as Distinguished
from Error of Judgment ........................ 9
3. How Jurisdiction is Conferred and
Determined ............................................10
4. Doctrine of Adherence of Jurisdiction
.................................................................11
5. Objections to Jurisdiction over the
Subject Matter .......................................11
6. Effect of Estoppel on Objections to
Jurisdiction .............................................11
7. Other Principles.....................................12
D. Courts according to Subject Matter
Jurisdiction in General ................................. 12
1. According to Subject Matter per se......12
2. According to Creation ..........................13
3. According to Record-Keeping ............14
4. Principle of Judicial Hierarchy ............15
5. Doctrine of Non-Interference or
Doctrine of Judicial Stability ...............15
E. Jurisdiction of Specific Courts ................... 15
1. Supreme Court.......................................15
2. Court of Appeals ...................................17
3. Sandiganbayan .......................................17
4. Regional Trial Courts............................19
5. Family Courts.........................................21
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6. Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial
Courts, Municipal Circuit Trial Courts
................................................................. 21
7. Shari’a Courts ......................................... 22
F. Jurisdiction over Cases Covered by The
Revised Rules of Procedure for Small
Claims Cases, The Revised Rules on
Summary Procedure, and Barangay
Conciliation .................................................... 23
G. Totality Rule................................................... 24
III. CIVIL PROCEDURE ......................................... 25
A. Actions ............................................................ 25
1. Meaning of Ordinary Civil Actions ... 25
2. Meaning of Special Civil Actions ....... 25
3. Meaning of Criminal Actions ............. 25
4. Civil Action v. Special Proceedings ... 25
5. Personal Actions and Real Actions.... 26
6. Local and Transitory Actions ............. 26
7. Actions in rem, in personam, and quasi
in rem ..................................................... 27
B. Cause of Action ............................................. 28
1. Meaning of Cause of Action ............... 28
2. Right of Action v. Cause of Action ... 28
3. Failure of the Complaint to State a
Cause of Action .................................... 29
4. Test of Sufficiency of Cause of Action
................................................................. 29
5. Splitting a Single Cause of Action and
its Effects............................................... 30
6. Joinder and Misjoinder of Causes of
Action..................................................... 30
C. Parties to Civil Actions ................................ 31
1. Real Parties in Interest; Indispensable
Parties; Representatives as Parties;
Necessary Parties; Indigent Parties;
Alternative Defendants ....................... 32
2. Compulsory and Permissive Joinder of
Parties ..................................................... 34
3. Misjoinder and Non-Joinder of Parties
................................................................. 35
4. Class Suits .............................................. 35
5. Suits Against Entities Without Juridical
Personality ............................................. 36
6. Effect of Death of Party Litigant ....... 36
7. Distinction between Real Party in
Interest and locus standi......................... 38
D. Venue .............................................................. 38
1. Venue v. Jurisdiction ............................ 38
2. Venue of real actions............................ 39
3. Venue of Personal Actions ................. 39
4. Venue of Actions Against Non-
Residents................................................ 39
 REMEDIAL LAW
5. When the Rules on Venue Do Not
Apply ......................................................40
6. Effects of Stipulations on Venue .......40
E. Rules on Pleadings ....................................... 41
1. Kinds of Pleadings ................................41
2. Pleadings Allowed under The 2016
Revised Rules of Procedure for Small
Claims Cases and The 1991 Revised
Rule on Summary Procedure ..............46
3. Parts of a Pleading.................................47
4. Allegations in a Pleading ......................50
5. Effect of Failure to Plead.....................53
6. Default ....................................................53
F. Filing and Service of Pleadings, Judgments,
Final Orders and Resolutions ..................... 56
1. Payment of Docket Fees ......................56
2. Filing v. Service of Pleadings...............56
3. Periods of Filing of Pleadings .............57
4. Manner of Filing ....................................57
5. Modes of Service ...................................58
G. Amendment ................................................... 60
1. Amendments as a Matter of Right .....60
2. Amendments by Leave of Court ........60
3. Formal Amendments ............................61
4. Amendments to Conform to or
Authorize Presentation of Evidence .61
5. Supplemental Pleadings ........................61
6. Effect of Amended Pleading ...............62
H. Summons ....................................................... 62
1. Nature and Purpose of Summons in
Relation to Actions in personam, in rem,
and quasi in rem ......................................63
2. Voluntary Appearance ..........................63
3. Personal Service .....................................64
4. Substituted Service ................................64
5. Constructive Service (by Publication) 65
6. Extraterritorial Service of Summons,
When Allowed.......................................66
7. Service upon Prisoners and Minors ...66
8. Proof of Service .....................................67
I. Motions .......................................................... 68
1. Motions in general.................................68
2. Motion for Bill of Particulars ..............70
3. Motion to Dismiss ................................71
J. Dismissal of Actions .................................... 78
1. Dismissal upon Notice by the Plaintiff;
Two Dismissal Rule .............................78
2. Dismissal upon Motion of Plaintiff;
Effect on Existing Counterclaim .......79
3. Dismissal Due to Fault of the Plaintiff
.................................................................79
4. Dismissal of Counterclaim, Cross-
Claim, or Third-Party Complaint .......80
K. Pre-trial ........................................................... 80
1. Concept of Pre-Trial .............................80
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2. Nature and Purpose ............................. 80
3. Notice of Pre-Trial ............................... 81
4. Appearance of Parties; Effect of Failure
to Appear ............................................... 81
5. Pre-Trial Brief; Effect of Failure to File
................................................................. 82
6. Distinction between Pre-Trial in a Civil
Case and Pre-Trial in a Criminal Case82
L. Intervention ................................................... 85
1. Requisites for intervention .................. 85
2. Time to Intervene ................................. 85
3. Remedy for the Denial of the Motion
to Intervene ........................................... 85
M. Subpoena ........................................................ 86
1. Subpoena duces tecum ........................ 87
2. Subpoena ad testificandum ................. 87
3. Service of Subpoena ............................. 87
4. Compelling Attendance of Witnesses;
Contempt............................................... 87
5. Quashing of Subpoena ........................ 88
N. Modes of Discovery ..................................... 88
1. Deposition Pending Action; Deposition
before Action or Pending Appeal ..... 88
2. Written Interrogatories to Adverse
Parties ..................................................... 93
3. Request for Admission ........................ 94
4. Production or Inspection of
Documents or Things ......................... 95
5. Physical and Mental Examination of
Persons................................................... 96
O. Trial ................................................................. 98
1. Adjournment and Postponements ..... 98
2. Requisites of Motion to Postpone Trial
................................................................. 98
3. Agreed Statement of Facts .................. 99
4. Order of Trial; Reversal of Order ...... 99
5. Consolidation or Severance of Hearing
or Trial ................................................... 99
6. Delegation of Reception of Evidence
............................................................... 100
7. Trial by Commissioners ..................... 100
P. Demurrer to Evidence ............................... 102
1. Grounds ............................................... 102
2. Effect of Denial .................................. 102
3. Effect of Grant ................................... 102
4. Waiver of Right to Present Evidence
............................................................... 103
5. Demurrer to Evidence in a Civil Case v.
Demurrer to Evidence in a Criminal
Case ...................................................... 103
Q. Judgments and Final Orders ..................... 104
1. Judgment Without Trial..................... 104
2. Contents of a Judgment..................... 105
3. Memorandum Decision ..................... 105
4. Judgment on the Pleadings ............... 106
 REMEDIAL LAW
5. Summary Judgments .......................... 107
6. Judgment on the Pleadings v. Summary
Judgment ............................................. 108
7. Rendition of Judgments and Final
Orders .................................................. 108
8. Entry of Judgment and Final Order 109
R. Post-Judgment Remedies .......................... 109
1. Motion for New Trial or
Reconsideration ................................. 109
2. Appeals................................................. 112
3. Annulment of Judgments or Final
Orders and Resolutions .................... 134
4. Collateral Attack of Judgments ........ 136
S. Execution, Satisfaction and Effect of
Judgments .................................................... 137
1. Difference between Finality of
Judgment for Purposes of Appeal; for
Purposes of Execution ..................... 137
2. When Execution Shall Issue ............. 138
3. How a Judgment is Executed ........... 141
4. Properties Exempt from Execution147
5. Proceedings Where Property Claimed
by Third Persons................................ 148
6. Rules on Redemption ........................ 150
7. Examination of Judgment Obligor
When Judgment is Unsatisfied ........ 152
8. Examination of Obligor of Judgment
Obligor ................................................ 153
9. Effect of Judgment or Final Orders 153
10. Enforcement and Effect of Foreign
Judgment or Final Orders ................ 155
IV. PROVISIONAL REMEDIES ........................ 157
A. General Matters .......................................... 157
1. Nature of Provisional Remedies ...... 157
2. Jurisdiction over Provisional Remedies
.............................................................. 157
B. Preliminary Attachment ............................ 158
1. Grounds for issuance ........................ 158
2. Requisites for Issuance ...................... 159
3. Issuance and Contents of Order of
Attachment; Affidavit and Bond .... 159
4. Rule on Prior or Contemporaneous
Service of Summons ......................... 160
5. Manner of Attaching Real and Personal
Property; When Property Attached is
Claimed by Third Persons ................ 160
6. Discharge of Attachment and Counter-
Bond .................................................... 162
7. Satisfaction of Judgment Out of
Property Attached ............................. 163
C. Preliminary Injunction ............................... 164
1. Definitions and Differences:
Preliminary Injunction and Temporary
Restraining Order (TRO) ................. 164
2. Requisites ............................................. 164
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3. Kinds of Injunction ............................ 165
4. When Writ May be Issued ................. 166
5. Grounds for Issuance of Preliminary
Injunction ............................................ 166
6. Grounds for Objection to, or for the
Dissolution of Injunction or
Restraining Order............................... 167
7. Duration of TRO................................ 167
8. In relation to R.A. 8975; Ban on
Issuance of TRO or Writ of Injunction
in Cases involving Government
Infrastructure Projects....................... 168
9. Rule on Prior or Contemporaneous
Service of Summons in Relation to
Attachment.......................................... 168
D. Receivership ................................................. 169
1. Cases When Receiver May be
Appointed/Requisites ....................... 169
2. Requirement before Issuance of an
Order .................................................... 170
3. General Powers of a Receiver .......... 171
4. Two Kinds of Bonds.......................... 171
5. Termination of Receivership ............ 172
E. Replevin ........................................................ 173
1. When Writ May be Issued ................. 173
2. Requisites ............................................. 174
3. Affidavit and Bond; Redelivery Bond
............................................................... 174
4. Sheriff’s Duty in the Implementation of
the Writ; When Property is Claimed by
Third Party .......................................... 174
V. SPECIAL CIVIL ACTIONS ........................... 177
A. General Matters ........................................... 177
1. Nature of Special Civil Actions ........ 177
2. Ordinary Civil Actions v. Special Civil
Actions ................................................. 177
3. Jurisdiction and Venue....................... 177
B. Interpleader .................................................. 179
1. Requisites for Interpleader ................ 179
2. When to File ........................................ 180
C. Declaratory Reliefs and Similar Remedies
181
1. Who May File the Action .................. 181
2. Requisites of an Action for Declaratory
Relief .................................................... 181
3. When Court May Refuse to Make
Judicial Declaration ............................ 182
4. Conversion to Ordinary Action ....... 182
5. Proceedings Considered as Similar
Remedies.............................................. 182
D. Review of Judgments and Final Orders or
Resolutions of the COMELEC and COA
184
1. Application of Rule 65 under Rule 64
............................................................... 184
 REMEDIAL LAW
2. Distinction in the Application of Rule
65 to Judgments of the COMELEC
and COA and the Application of Rule
65 to Other Tribunals, Persons and
Officers................................................ 185
E. Certiorari, Prohibition, Mandamus.......... 186
1. Definitions and Distinctions ............ 186
2. Requisites ............................................. 188
3. When petition for Certiorari,
Prohibition, and Mandamus is proper
.............................................................. 189
4. Injunctive Relief ................................. 189
5. Exceptions to Filing of Motion for
Reconsideration before Filing Petition
.............................................................. 190
6. Reliefs Petitioner is Entitled to ........ 190
7. Actions/Omissions of MTC/RTC in
Election Cases .................................... 191
8. When and Where to File Petition .... 191
9. Effects of Filing of an Unmeritorious
Petition ................................................ 192
F. Quo Warranto ............................................. 192
1. Distinguished from Quo Warranto in the
Omnibus Election Code................... 193
2. When Government May Commence an
Action against Individuals ................ 194
3. When an Individual May Commence an
Action .................................................. 195
4. Judgment in Quo Warranto Action ... 195
5. Rights of a Person Adjudged Entitled
to Public Office.................................. 195
G. Expropriation .............................................. 196
1. Matters to Allege in Complaint for
Expropriation ..................................... 196
2. Two Stages in Every Action for
Expropriation ..................................... 197
3. When Plaintiff can Immediately Enter
into Possession of Real Property, in
Relation to R.A. 8974........................ 197
4. New System of Immediate Payment of
Initial Just Compensation ................. 199
5. Defenses and Objections .................. 199
6. Order of Expropriation..................... 200
7. Ascertainment of Just Compensation
.............................................................. 200
8. Appointment of Commissioners;
Commissioner’s report; Court Action
upon Commissioner’s report ........... 201
9. Rights of Plaintiff upon Judgment and
Payment ............................................... 202
10. Effect of Entry of Judgment ............ 202
H. Foreclosure of Real Estate Mortgage ...... 203
1. Judgment on Foreclosure for Payment
or Sale .................................................. 203
2. Sale of Mortgaged Property; Effect 204
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3. Disposition of Proceeds of Sale ....... 204
4. Deficiency Judgment .......................... 204
5. Judicial Foreclosure v. Extrajudicial
Foreclosure.......................................... 205
6. Equity of Redemption v. Right of
Redemption ......................................... 205
I. Partition ........................................................ 206
1. Who May File Complaint; Who Should
be Made Defendants ......................... 207
2. Matters to Allege in the Complaint for
Partition ............................................... 207
3. Two Stages in Every Action for
Partition ............................................... 207
4. Order of Partition and Partition by
Agreement ........................................... 208
5. Partition by Commissioners;
Appointment of Commissioners,
Commissioner’s Report; Court Action
upon Commissioner’s Report .......... 208
6. Judgment and Its Effects................... 209
7. Partition of Personal Property .......... 209
8. Prescription of action ......................... 209
J. Forcible Entry and Unlawful Detainer.... 210
1. Definitions and Distinctions ............. 210
2. Distinguished from Accion Publiciana
and Accion Reivindicatoria .............. 210
3. How to Determine Jurisdiction in
Accion Publiciana, Accion
Reivindicatoria and Accion Interdictal
............................................................... 211
4. Who May Institute the Action and
When; Against Whom the Action May
be Maintained ..................................... 211
5. Pleadings Allowed .............................. 211
6. Action on the Complaint ................... 212
7. When Demand is Necessary ............. 213
8. Preliminary Injunction and Preliminary
Mandatory Injunction........................ 213
9. Resolving the Defense of Ownership
............................................................... 214
10. How to Stay Immediate Execution of
Judgment ............................................. 215
K. Contempt ..................................................... 216
1. Kinds of contempt ............................. 216
2. Purpose and Nature of Each ............ 217
3. Remedy against Direct Contempt;
Penalty .................................................. 217
4. Remedy against Indirect Contempt;
Penalty .................................................. 217
5. How Contempt Proceedings are
Commenced ........................................ 218
6. Acts Deemed Punishable as Indirect
Contempt............................................. 218
7. When Imprisonment Shall be Imposed
............................................................... 219
 REMEDIAL LAW
8. Contempt against Quasi-Judicial Bodies
.............................................................. 219
SPECIAL PROCEEDINGS ....................... 220
VI. SPECIAL PROCEEDINGS ........................... 221
A. Settlement of Estate of Deceased Persons
221
1. Jurisdiction .......................................... 221
2. Venue ................................................... 222
3. Extent of Jurisdiction of Probate Court
.............................................................. 222
4. Powers and Duties of a Probate Court
.............................................................. 223
B. Summary Settlement of Estates ............... 224
1. Extrajudicial Settlement of Estates . 224
2. Two-Year Prescriptive Period .......... 225
3. Summary Settlement of Estates of
Small Value ......................................... 225
4. Remedies of Aggrieved Parties after
Extrajudicial Settlement of Estate .. 226
C. Production and Probate of Will ............... 228
1. Nature of Probate Proceedings........ 228
D. Allowance or Disallowance of Will ......... 229
1. Who May Petition For Probate; Persons
Entitled To Notice ............................ 229
2. Grounds for Disallowing a Will....... 231
3. Effects of Probate .............................. 231
E. Reprobate..................................................... 232
1. Requisites before a Will Proved Abroad
Would be Allowed in Philippines ... 232
2. Effect of Reprobate ........................... 232
F. Letters Testamentary and of Administration
233
1. When and to Whom Letters of
Administration are Granted ............. 233
2. Order of Preference ........................... 234
3. Opposition to Issuance of Letters
Testamentary; Simultaneous Filing of
Petition for Administration.............. 235
4. Powers and Duties of Executors and
Administrators; Restrictions on the
Powers ................................................. 236
5. Appointment of Special Administrator
.............................................................. 239
6. Revocation, Death, Resignation and
Removal of Executors and
Administrators ................................... 240
G. Claims against the Estate........................... 242
1. Time within Which Claims shall be
Filed; Exceptions ............................... 242
2. Statute of Non-Claims ....................... 242
3. Claim of Executor or Administrator
against an Estate ................................ 244
4. How to File For a Claim ................... 244
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H. Actions by and against Executors and
Administrators ............................................. 245
1. Actions by and against Executors .... 245
2. Recovery of Property Concealed,
Embezzled or Fraudulently Conveyed
............................................................... 245
3. Sales, Mortgages, and Other
Encumbrances .................................... 246
I. Payment of Debts of Estate ...................... 248
J. Distribution and Partition ......................... 251
1. Liquidation ........................................... 251
2. Project of Partition ............................. 252
3. Remedy of an Heir Entitled to Residue
but Not Given His Share .................. 252
4. Instances When Probate Court May
Issue Writ of Execution .................... 253
K. Trustees ........................................................ 256
1. Distinguished From
Executor/Administrator ................... 256
2. Conditions of the Bond ..................... 257
3. Procedural Requisites for the Removal
and Resignation of a Trustee ........... 257
4. Grounds for Removal and Resignation
of a Trustee ......................................... 257
5. Extent of Authority of Trustee ........ 257
L. Escheat.......................................................... 258
1. When to File ........................................ 258
2. Requisites for Filing of Petition ....... 259
3. Remedy of Respondent against Petition;
Period for Filing a Claim .................. 259
M. Guardianship ............................................... 260
1. Guardianship of Incompetent Persons
Not Minors.......................................... 260
2. Conditions of the Bond of the
Guardian .............................................. 262
3. Rule on Guardianship of Minors [A.M.
NO. 03-02-05-SC] .............................. 262
N. Writ of Habeas Corpus .............................. 265
1. Contents of the Petition .................... 268
2. Contents of the Return ...................... 268
3. Distinguish Peremptory Writ from
Preliminary Citation ........................... 269
4. When Not Proper or Applicable...... 269
5. When Writ Disallowed or Discharged
............................................................... 269
6. Distinguished From Writ of Amparo
and Habeas Data .................................. 270
7. Rules on Custody of Minors and Writ
of Habeas Corpus In Relation To
Custody of Minors [A.M. No. 03-04-04-
SC] ........................................................ 271
O. Writ of Amparo [A.M. 07-9-12-SC] ........... 274
1. Coverage ............................................... 274
2. Distinguish From Habeas Corpus and
Habeas Data ........................................ 276
 REMEDIAL LAW
3. Amparo v. Search Warrant ................. 276
4. Who May File...................................... 276
5. Contents of Return ............................ 277
6. Effect of Failure to File Return ....... 278
7. Omnibus Waiver Rule ....................... 278
8. Procedure for Hearing....................... 278
9. Institution of Separate Action .......... 279
10. Effect of Filing a Criminal Action... 279
11. Consolidation ...................................... 279
12. Interim Reliefs Available To Petitioner
and Respondent ................................. 279
13. Quantum of Proof in Application for
Issuance of Writ of Amparo.............. 280
P. Writ of Habeas Data [A.M. No. 08-1-16-SC]
281
1. Scope of the Writ ............................... 281
2. Availability of Writ ............................. 282
3. Distinguish from Habeas Corpus and
Amparo ................................................. 282
4. Who May File the Petition ................ 282
5. Contents of the Petition .................... 282
6. Contents of the Return ..................... 283
7. Instances When Defenses May Be
Heard In Chambers ........................... 283
8. Consolidation ...................................... 284
9. Effect of Filing Criminal Action...... 284
10. Institution of Separate Action .......... 284
11. Quantum of Proof in Application for
Issuance of Writ of Habeas Data ..... 284
Q. Change of Name ......................................... 293
1. Distinctions between the Rules [103,
108, R.A. 9048]; Administrative
Corrections ......................................... 293
2. Grounds for Change of Name ......... 294
R. Absentees ..................................................... 296
1. Purpose of the Rule ........................... 296
2. Who May File; When to File ............ 296
S. Cancellation or Correction of Entries in the
Civil Registry ............................................... 297
1. Entries Subject To Cancellation or
Correction under Rule 108............... 297
2. R.A. 9048, as amended by R.A. 10172
.............................................................. 298
3. R.A. 9048 vis-à-vis Rule 103 and Rule
108 ........................................................ 300
T. Rule 109: Appeals in Special Proceedings
301
CRIMINAL PROCEDURE ....................... 302
VII. CRIMINAL PROCEDURE ............................ 303
A. General Matters .......................................... 303
1. Jurisdiction over Subject Matter and
Jurisdiction over Person of the
Accused Distinguished; Territorial
Jurisdiction .......................................... 303
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2. Requisites for Exercise of Criminal
Jurisdiction .......................................... 304
3. Jurisdiction of Criminal Courts ........ 305
4. When Injunction May Be Issued To
Restrain Criminal Prosecution ......... 307
B. Prosecution of Offenses ............................ 308
1. Criminal Actions; How Instituted.... 308
2. Who May File; Crimes That Cannot be
Prosecuted De Officio .......................... 308
3. Criminal Actions, When Enjoined... 311
4. Control of Prosecution ...................... 311
5. Sufficiency of Complaint or
Information ......................................... 313
6. Designation of Offense ..................... 315
7. Cause of the Accusation .................... 315
8. Duplicity of the Offense; Exception316
9. Amendment or Substitution of
Complaint or Information ................ 316
10. Venue of Criminal Actions ............... 319
11. Intervention of Offended Party ....... 320
C. Prosecution of Civil Action....................... 321
1. Rule on Implied Institution of Civil
Action with Criminal Action ............ 321
2. When Civil Action May Proceed
Independently ..................................... 321
3. When Separate Civil Action Is
Suspended ........................................... 321
4. Effect of Death of the Accused or
Convict On Civil Action ................... 322
5. Prejudicial Question ........................... 322
6. Rule on Filing Fees in Civil Action
Deemed Instituted With the Criminal
Action................................................... 324
D. Preliminary Investigation ........................... 324
1. Nature of Right ................................... 324
2. Purposes of Preliminary Investigation
............................................................... 325
3. Who May Conduct Determination of
Existence of Probable Cause ........... 325
4. Resolution of the Investigating
Prosecutor ........................................... 327
5. Review .................................................. 327
6. When Warrant of Arrest May Issue. 328
7. Cases Not Requiring Preliminary
Investigation nor Covered By the Rule
on Summary Procedure..................... 329
8. Remedies of Accused If There Was No
Preliminary Investigation .................. 330
E. Arrest ............................................................ 331
1. Arrest, How Made .............................. 331
2. Arrest without Warrant, When Lawful
............................................................... 331
3. Method of Arrest ................................ 334
4. Requisites of a Valid Warrant of Arrest
............................................................... 335
 REMEDIAL LAW
F. Bail 337
1. Nature .................................................. 337
2. When a Matter of Right; Exceptions337
3. When a Matter of Discretion ........... 338
4. Hearing of Application for Bail in
Capital Offenses................................. 339
5. Guidelines in Fixing Amount of Bail340
6. When Bail Not Required................... 340
7. Increase or Reduction of Bail........... 341
8. Forfeiture and Cancellation of Bail . 341
9. Application not a Bar to Objections on
Illegal Arrest, Lack of or Irregular
Preliminary Investigation.................. 342
10. Hold/Allow Departure Order and
Bureau of Immigration Watchlist ... 342
G. Arraignment and Plea ................................ 343
1. Arraignment and Plea; How Made .. 343
2. When a Plea of Not Guilty Should Be
Entered ................................................ 345
3. When Accused May Enter a Plea of
Guilty to a Lesser Offense ............... 345
4. Accused Pleads Guilty to Capital
Offense; What the Court Should Do
.............................................................. 345
5. Searching Inquiry................................ 346
6. Improvident Plea of Guilty to a Capital
Offense ................................................ 346
7. Grounds for Suspension of
Arraignment........................................ 347
H. Motion to Quash ........................................ 348
1. Grounds ............................................... 349
2. Distinguish Motion to Quash from
Demurrer to Evidence ...................... 351
3. Effects of Sustaining the Motion to
Quash................................................... 352
4. Exception to the Rule that Sustaining
the Motion is Not a Bar to another
Prosecution ......................................... 353
5. Double Jeopardy................................. 353
6. Provisional Dismissal......................... 354
I. Pre-Trial ....................................................... 356
1. Matters to Be Considered During Pre-
Trial ...................................................... 356
2. What the Court Should Do When
Prosecution and Offended Party Agree
to the Plea Offered by the Accused 357
3. Pre-Trial Agreement .......................... 357
4. Non-Appearance during Pre-Trial .. 357
5. Pre-Trial Order ................................... 357
6. Referral of Some Cases for Court-
Annexed Mediation and Judicial
Dispute Resolution ............................ 358
J. Trial ............................................................... 358
1. Instances When Presence of Accused is
Required by Law ................................ 358
vii
2. Requisites Before Trial Can be
Suspended on Account of Absence of
Witness................................................. 359
3. Trial in Absentia.................................. 359
4. Remedy When Accused is Not Brought
to Trial within the Prescribed Period
............................................................... 360
5. Requisites for Discharge of Accused to
Become a State Witness .................... 360
6. Effects of Discharge of Accused as
State Witness ....................................... 361
7. Demurrer to Evidence ....................... 361
K. Judgment ...................................................... 363
1. Requisites of a Judgment ................... 363
2. Contents of Judgment ........................ 364
3. Promulgation of Judgment; Instances of
Promulgation of Judgment in Absentia
............................................................... 365
4. When Does Judgment Become Final
............................................................... 366
L. New Trial or Reconsideration................... 367
1. Grounds for New Trial...................... 367
2. Grounds for Reconsideration ........... 367
3. Requisites Before a New Trial May be
Granted on Ground of Newly
Discovered Evidence......................... 367
4. Effects of Granting New Trial or
Reconsideration .................................. 368
5. Application of the Neypes Doctrine in
Criminal Cases .................................... 368
M. Appeal ........................................................... 369
1. Effect of an Appeal ............................ 369
2. Where to Appeal ................................. 369
3. How Appeal Taken ............................ 369
4. Effect of Appeal by Any of Several
Accused................................................ 375
5. Grounds for Dismissal of Appeal .... 375
N. Search and Seizure ...................................... 376
1. Nature of Search Warrant ................. 376
2. Distinguish From Warrant of Arrest377
3. Application for Search Warrant; Where
Filed ...................................................... 377
4. Probable Cause (in Search Warrants)
............................................................... 379
5. Personal Examination by Judge of the
Applicant and Witnesses ................... 379
6. Particularity of Place to Be Searched
and Things to Be Seized ................... 380
7. Personal Property to be Seized......... 381
8. Exceptions to the Search Warrant
Requirement ........................................ 381
9. Remedies From Unlawful Search And
Seizure .................................................. 385
O. Provisional Remedies ................................. 387
1. Nature ................................................... 387
 REMEDIAL LAW
2. Kinds of Provisional Remedies........ 387
P. Revised Guidelines for Continuous Trial of
Criminal Cases............................................. 388
Q. Rule on Cybercrime Warrants .................. 396
EVIDENCE................................................ 402
VIII. EVIDENCE ............................................... 403
A. General Principles ...................................... 403
1. Concept of Evidence ......................... 403
2. Scope and Applicability of the Rules of
Evidence.............................................. 403
3. Evidence in Civil Cases v. Evidence in
Criminal Cases.................................... 403
4. Proof v. Evidence .............................. 405
5. Factum Probans v. Factum Probandum
.............................................................. 405
6. Classes of Evidence According to Form
.............................................................. 405
7. Cumulative and Corroborative
Evidence.............................................. 405
8. Prima facie and Conclusive Evidence 406
9. Disputable and Conclusive
Presumption ....................................... 406
10. Primary and Secondary Evidence .... 406
B. Admissibility of Evidence ......................... 408
1. Requisites for Admissibility .............. 408
2. Relevance of Evidence and Collateral
Matters ................................................. 409
3. Multiple Admissibility ........................ 409
4. Conditional Admissibility.................. 409
5. Curative Admissibility ....................... 410
6. Direct and Circumstantial Evidence 410
7. Positive and Negative Evidence ...... 410
8. Competent and Credible Evidence . 410
C. Burden of Proof and Burden of Evidence
412
D. Presumptions .............................................. 413
1. Conclusive Presumptions ................. 413
2. Disputable Presumptions .................. 413
E. Liberal Construction of the Rules of
Evidence....................................................... 416
F. Quantum of Evidence (Weight and
Sufficiency of Evidence) ........................... 417
1. Proof beyond Reasonable Doubt .... 417
2. Preponderance of Evidence ............. 417
3. Substantial Evidence .......................... 417
4. Clear and Convincing Evidence ...... 417
G. Judicial Notice and Judicial Admissions . 418
1. What Need Not Be Proved .............. 418
2. Matters of Judicial Notice ................. 418
3. Judicial Admissions ............................ 420
4. Judicial Notice of Foreign Laws, Law of
Nations and Municipal Ordinance . 422
H. Object (Real) Evidence.............................. 423
1. Meaning of Object Evidence ........... 423
viii
2. Requisites for Admissibility .............. 423
3. Categories of Object Evidence......... 424
4. Demonstrative Evidence ................... 424
5. View of an Object or Scene .............. 424
I. Documentary Evidence ............................. 425
1. Meaning of Documentary Evidence 425
2. Requisites for Admissibility .............. 425
3. Best Evidence Rule............................. 425
4. Parol Evidence Rule ........................... 427
5. Authentication and Proof of
Documents .......................................... 429
J. Testimonial Evidence ................................. 432
1. Qualifications of a Witness ............... 432
2. Competency v. Credibility of a Witness
............................................................... 433
3. Disqualifications of Witnesses .......... 433
4. Examination of a Witness ................. 440
5. Rights and Obligations of a Witness443
6. Order of Examination of an Individual
Witness................................................. 444
7. Leading and Misleading Questions .. 444
8. Methods of Impeaching an Adverse
Party’s Witness.................................... 445
9. How the Witness is Impeached by
Evidence of Inconsistent Statements
(Laying the Predicate) ........................ 445
10. Evidence of the Good Character of a
Witness................................................. 445
11. Admissions and Confessions ............ 446
12. Hearsay Rule ........................................ 450
13. Opinion Rule ....................................... 457
14. Character Evidence ............................ 458
K. Offer and Objection ................................... 460
1. Offer of Evidence............................... 460
SPECIAL RULES ...................................... 465
IX. Revised Rules on Summary Procedure ........... 466
A. Cases Covered by the Rule ........................ 466
B. Prohibited Pleadings and Motions ........... 466
C. Effect of failure to answer ......................... 467
D. Preliminary Conference and Appearances
of Parties....................................................... 468
X. Rules of Procedure For Small Claims Cases .. 469
A. Scope and Applicability of the Rule......... 469
B. Commencement of Small Claims Action;
Response ...................................................... 470
C. Prohibited Pleadings and Motions ........... 471
D. Appearances ................................................. 472
E. Hearing; Duty of the Judge ....................... 472
F. Finality of Judgment ................................... 472
XI. Rules of Procedure For Environmental Cases
................................................................................ 473
A. Scope and Applicability of the Rule......... 473
B. Civil Procedure ............................................ 474
 REMEDIAL LAW

1. Prohibition against Temporary

Restraining Order and Preliminary
Injunction............................................ 474
2. Pre-Trial Conference; Consent Decree
.............................................................. 474
3. Prohibited Pleadings and Motions .. 475
4. Temporary Environmental Protection
Order (TEPO) ................................... 475
5. Judgment and Execution; Reliefs in a
Citizen Suit.......................................... 475
6. Permanent Environmental Protection
Order; Writ of Continuing Mandamus
.............................................................. 476
7. Strategic Lawsuit Against Public
Participation (SLAPP)....................... 476
C. Special Civil Actions .................................. 477
1. Writ of Kalikasan ............................... 477
2. Prohibited Pleadings and Motions .. 477
3. Discovery Measures ........................... 477
4. Writ of Continuing Mandamus .......... 478
D. Criminal Procedure .................................... 479
1. Who May File...................................... 479
2. Institution of Criminal and Civil Action
.............................................................. 479
3. Arrest Without Warrant, When Valid
.............................................................. 479
4. Strategic Lawsuit Against Public
Participation [SLAPP] ....................... 479
5. Procedure in the Custody and
Disposition of Seized Items............. 479
6. Bail ........................................................ 480
7. Arraignment and Plea ........................ 480
8. Pre-trial................................................. 480
9. Subsidiary Liabilities .......................... 480
E. Evidence....................................................... 481
1. Precautionary Principle ..................... 481
2. Documentary Evidence..................... 481

ix
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

CIVIL PROCEDURE
Remedial Law

Page 1 of 481
U.P. LAW BOC CIVIL PROCEDURE
I. GENERAL
PRINCIPLES IN
REMEDIAL LAW
A. Nature, Basis and Source
of Remedial Law
1. Nature
a. As Distinguished from
Substantive Law
Substantive law – Creates, defines, and regulates
rights and duties concerning life, liberty, or property
[Primicias v. Ocampo, G.R. No. L-6120 (1953)], the
violation of which gives rise to a cause of action
[Bustos v. Lucero, G.R. No. L-2068 (1948), cited in 1
Riano 25-26, 2014 Bantam Ed.]
Remedial law – Prescribes the methods of enforcing
those rights and obligations created by substantive
law [Bustos v. Lucero, G.R. No. L-2068 (1948)]
b. Judicial Power as Basis and
Source
In the first place, there would be no theory and
practice of “remedial law” in the Philippine legal
system if our constitutional order did not include the
concept of “judicial power” per se. This concept, of
course -- as vested in a basic branch of government
independent of the two other basic branches, arising
from the root democratic philosophy of separation of
the powers of governance in a democracy -- antedates
all Philippine Constitutions because it is of American
origin. But it has been defined for the Philippine legal
system, for the first time, in Sec. 1, Article VIII, 1987
Constitution [Prof. Avena]
Judicial Power includes the duty of the courts of
justice
1. To settle actual controversies involving rights,
which are legally demandable and enforceable;
and
2. To determine WON there has been grave
abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
Page 2 of 481
REMEDIAL LAW
instrumentality of Government
VIII, Constitution]
[Sec. 1, Art.
The second paragraph in the foregoing definition of
judicial power in Sec. 1, Art. VIII, 1987 Constitution
is an innovation that “expanded” the previous version
in the 1973 and 1935 Constitutions, which was
confined to its traditional ambit of settling actual
controversies involving rights that were legally
demandable and enforceable [Araullo v. Aquino, G.R.
No. 209287 (2014)]
Prospectivity/Retroactivity
General rule: Rules of procedure may be modified at
any time to become effective at once, so long as the
change does not affect vested rights. Moreover, there
are no vested rights to rules of procedure [Zulueta v.
Asia Brewery, G.R. No. 138137 (2001)]
Note: Procedural laws may be given retroactive effect
to actions pending and undetermined at the time of
their passage, there being no vested rights in the rules
of procedure. Amendments to procedural rules are
procedural or remedial in character as they do not
create new or remove vested rights, but only operate
in furtherance of the remedy or confirmation of rights
already existing [Fil-Estate Properties, Inc. v. Homena-
Valencia, G.R. No. 173942 (2008)]
Exceptions: Procedural rules do not apply to pending
actions
1. where the statute itself or by necessary
implication provides that pending actions are
excepted from its operation;
2. if applying the rule to pending actions would
impair vested rights;
3. when to do so would not be feasible or would
work injustice;
4. if doing so would involve intricate problems of
due process or impair the independence of the
courts.
[Tan, Jr. v. CA, G.R. No. 136368 (2002), citing Agpalo
269-272, 1986 Ed.]
2. Supreme Court and Law as
Specific Source
a. Supreme Court
The Supreme Court creates procedural law on
the basis of its rule-making power as embodied
in Sec. 5(5), Art. VIII of the Constitution, to
U.P. LAW BOC
promulgate rules on “…pleading, practice and
procedure in all courts…”
b. Congress
The Constitution took away the power of
Congress to repeal, alter or supplement rules
concerning pleading, practice and procedure.
The power to promulgate rules is no longer
shared by the Court with Congress, more so
with the executive [Echegaray v. Secretary of Justice,
G.R. No. 132601 (1999)]
CIVIL PROCEDURE REMEDIAL LAW
B. Rule-Making Power of
the Supreme Court
1. Nature and Scope
Sec. 5(5), Art. VIII, of the Constitution provides that:
a. The SC shall have the power to promulgate rules
concerning:
1. the protection and enforcement of
constitutional rights
2. pleading, practice, and procedure in all
courts
3. admission to the practice of law
4. the Integrated Bar, and
5. legal assistance to the underprivileged
b. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
The SC has the sole prerogative to amend, repeal, or
even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of
cases [Neypes v. CA, G.R. No. 141524 (2005)]
2. Methodology
a. Rules of Court
The Rules of Court (ROC) is the main set of rules of
general application [Sec. 2, Rule 1] to civil and
criminal actions and special proceedings [Sec. 3, Rule
1], administrative powers and duties of court
personnel, as well as the discipline of members of the
judiciary [Rule 140], the bar [Rule 139], and student
practice [Rule 138-A].
The ROC shall be liberally construed in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and
proceeding [Sec. 6, Rule 1]
SCOPE OF APPLICATION
The ROC shall apply in all the courts, except as
otherwise provided by the SC [Sec. 2, Rule 1].
It shall govern the procedure to be observed in
actions, civil or criminal, and special proceedings.
[Sec. 3, Rule 1]
Page 3 of 481
U.P. LAW BOC CIVIL PROCEDURE
It does not apply to:
1. Election cases
2. Land registration cases
3. Cadastral cases
4. Naturalization cases
5. Insolvency proceedings, and
6. Other cases not provided for in the ROC
Except by analogy or in a suppletory character and
whenever practicable and convenient
[Sec. 4, Rule 1]
It will apply to certain proceedings if so provided by
law, e.g., with respect to the power to issue writs of
injunction and to punish for contempt by the Land
Transportation and Franchising Board [Sec. 19(4) and
(5), Chapter 5, Title XV, Book IV, Administrative
Code]
The constitutional faculty of the Court to promulgate
rules necessarily carries with it the power to overturn
judicial precedents on points of remedial law through
the amendment of the ROC [Pinga v. Heirs of Santiago,
G.R. No. 170354 (2006)]
b. Other Issuances
Examples would include
1. Rules on specific details of procedure, such as
the rule on
• Service of summons on foreign private
juridical entities [A.M. No. 11-3-6-SC]
• Electronic filing [A.M. No. 10-3-7-SC]
• Guidelines on pre-trial, mediation and
discovery [A.M. No. 03-1-09-SC]
• Suspension of payment of docket fee [A.M.
No. 04-2-04-SC]
• Certificate of non-forum shopping [Revised
Circular No. 28-91, Administrative Circular
No. 04-94, A.M. No. 00-2-10-SC]
2. Entire bodies of procedural rules for the
enforcement and protection of specific
substantive rights
• Special Rules of Court on Alternative
Dispute Resolution [A.M. No. 07-11-08-SC]
• Rules on the Declaration of Absolute Nullity
of Void Marriages and Annulment of
Voidable Marriages [A.M. No. 02-11-10-SC]
• Rule on DNA Evidence (A.M. No. 06-11-5-
SC]
Page 4 of 481
REMEDIAL LAW
• Rule on the Writ of Amparo (A.M. 07-9-12-
SC)
• Rule on the Writ of Habeas Data [A.M. 08-
1-16-SC]
• Rules of Procedure for Environmental Cases
[A.M. No. 09-6-8-SC]
• Judicial Affidavit Rule [A.M. No. 12-8-8-SC]
• Rules of Procedure on Corporate
Rehabilitation [A.M. No. 00-08-10-SC]
c. Jurisprudence
The SC’s rule-making power includes the power to
create rules via jurisprudence. [see, e.g., Ching v. Subic
Bay, G.R. No. 174353 (2014); Vidal v. Escueta, G.R.
No. 156225 (2003)]
3. Limitations on the Rule-
Making Power of the
Supreme Court
The rules shall
a. Provide a simplified and inexpensive procedure
for speedy disposition of cases
b. Uniform for all courts of the same grade; and
c. Not diminish, increase or modify substantive
rights.
[Sec. 5(5), Art. VIII, Constitution]
4. Power of SC to Amend and
Suspend Procedural Rules
General rule
Compliance with procedural rules is the general rule,
and abandonment thereof should only be done in the
most exceptional circumstances [Pilapil v. Heirs of
Briones, G.R. No. 150175 (2007)]
Litigation is not a game of technicalities, but every
case must be prosecuted in accordance with the
prescribed rules of procedure to ensure an orderly and
speedy administration of justice. Only for the most
persuasive of reasons can such rules be relaxed to
relieve a litigant of an injustice not commensurate
with the degree of his thoughtlessness in not
complying with the procedure prescribed
[Novateknika v. PNB, G.R. No. 194104 (2013)].
Exception
Apart from the rule-making power explicitly vested in
it by the Constitution, the basis for the power of the
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Supreme Court to suspend its own rules is specifically
provided in Sec. 5(g) of Rule 135 (which provision
dates back to the 1964 and 1940 ROC). Said Section
states that every court shall have power to amend and
control its process and orders so as to make them
conformable to law and justice.
The power of the SC to suspend its own rules or to
except a particular case from its operations whenever
the purposes of justice require it, cannot be
questioned. Substantial rights must reign supreme
over technicalities. The over-arching aim of
procedure is to achieve substantial justice, hence, the
power to suspend if required in order to achieve the
latter [De Guzman v. Sandiganbayan, G.R. No. 103276
(1996)].
Note: In De Guzman, a criminal case, the SC
remanded the case for new trial even after entry of
judgment of conviction, because the accused was
deprived of the right to present evidences crucial to
and on their face proving his innocence when his
counsel adopted the wrong strategy of demurring to
evidence despite denial of leave therefor.
Court to suspend procedural rules [Cu-Unjieng v. CA,
G.R. No. 142022 (2005)]
What constitutes good and sufficient cause that would
merit suspension of the rules is discretionary upon the
courts [CIR v. Mirant Pagbilao Corp., G.R. No. 159593
(2006)]
The reasons which would warrant suspension of the
Rules include:
a. The existence of special and compelling
circumstances
b. The merits of the case
c. A cause not entirely attributable to the fault or
negligence of the party favored by the suspension
d. A lack of any showing that the review sought is
merely frivolous or dilatory, and
e. The rights of the other party will not be unjustly
prejudiced thereby [Sarmiento v. Zaratan, G.R. No.
167471 (2007)]
f. Transcendental matters of life, liberty or state
security [Mindanao Savings and Loan Association v.
Vda. De Flores, G.R. No. 142022 (2005)]

Where strong considerations of substantive justice are

manifest in the petition, the strict application of the
rules of procedure may be relaxed, in the exercise of
its equity jurisdiction. A rigid application of the rules
of procedure will not be entertained if it will obstruct
rather than serve the broader interests of justice in the
light of the prevailing circumstances in the case under
consideration [CMTC Int’l Marketing Corp. v. Bhagis
Int’l Trading Corp., G.R. No. 170488 (2012)]

Exception to exception
Parties praying for the liberal interpretation of the
rules must be able to hurdle that heavy burden of
proving that they deserve an exceptional treatment. It
was never the Court’s intent “to forge a bastion for
erring litigants to violate the rules with impunity.”
[Prieto v. Alpadi Development Corp., G.R. No. 191025
(2013)]

Concomitant to a procedure adopting a liberal

application of the rules should be an effort on the part
of the party invoking liberality to explain his failure to
abide by the rules [Duremdes v. Duremdes, G.R. No.
138256 (2003)].

To relieve a litigant of an injustice commensurate with

his failure to comply with the prescribed procedure
and the mere invocation of substantial justice is not a
magical incantation that will automatically compel the

Page 5 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

II. JURISDICTION OF It is not a juridical person

within the purview of Art.
COURTS 44(1) of the Civil Code, which
refers to “the State and its
political subdivisions” (See Sec.
A. Nature of Philippine 2(3), Introductory Provisions,
Administrative Code: “Local
Courts Government refers to the
political subdivisions
established by or in accordance
1. Meaning of a Court with the Constitution”)
Officer of such
A Philippine court forms part of the judicial Tribunal officially assembled
tribunal [1 Riano
department of the government of the Republic of the under authority of law [1 Riano
65-66, 2014
Philippines [Par. 1, Sec. 1, Art. VIII, Constitution]. 65-66, 2014 Bantam Ed.]
Bantam Ed.]
A court is an organ of government belonging to the A court is an entity possessing a personality separate
judicial department, the function of which is the and distinct from the men who compose or sit on it
application of the laws to controversies brought [People v. Carlos, G.R. No. L-239 (1947)].
before it as well as the public administration of justice.
It is also the place where justice is administered [1 In Carlos, the SC ruled that the disqualification under
Riano 65, 2014 Bantam Ed., citing Black’s Law the People's Court Act of some or a majority of the
Dictionary, Am. Jur. and C.J.S.] members of the SC and their substitution by justices
of the CA or judges of the CFI do not make the SC,
a. The Supreme Court and Other as thus constituted, a new court in the eyes of the law.
Courts This objection is no more valid than that of a party in
an ordinary action who protests that his case is heard
The judicial power shall be vested in one SC and in by a SC which, by reason of disability of a majority of
such lower courts as may be established by law [Par. its regular members, is made up mostly of judges from
1, Sec. 1, Art. VIII, Constitution]. outside.

The SC is the one and only court that is created and
vested with judicial power by the 1987 Constitution.
All other courts, which are therefore lower in the legal
and administrative hierarchy, are created and vested
with judicial power only by virtue of law.
Jurisdiction does not attach to the judge but to
the court. The continuity of a court and the efficacy
of its proceedings are not affected by the death,
resignation, or cessation from the service of the judge
presiding over it [ABC Davao Auto Supply v. CA, G.R.
No. 113296 (1998)].

The reason is the separate personality of the court

b. Court as Distinguished from the from the judge, as described in the table above.
Judge
Court Judge
A court is a juridical person,
within the purview of Art.
44(2) of the Civil Code, which A judge is a
refers to “other corporations, physical or
institutions and entities for natural person
public interest or purpose, [1 Riano 66,
created by law; their 2014 Bantam
personality begins as soon as Ed.]
they have been constituted
according to law.”

Page 6 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Three consequences automatically and inevitably

B. Meaning of Jurisdiction flow from the judicial power conferred by law on a
in Various Contexts court:
a. subject-matter jurisdiction exists only when and
because it is prescribed by law
1. Subject Matter Jurisdiction b. by the very essence of judicial power, subject-
of a Court matter jurisdiction can be vested by law only
upon a court
c. therefore, a body that purports to be a court is
Jurisdiction over the subject matter is the power of
not a court if there is no law that has vested it
a particular court to hear the type of case that is then
with judicial power [Prof. Avena]
before it [1 Riano 71, 2014 Bantam Ed., citing Black’s
Law Dictionary 767, 5th Ed.]
For example
The Maeng Tribal Court is not a court because there
It is the power to hear and determine cases of the
is no law that has vested it with judicial power [see
general class to which the proceedings in question
Badua v. Cordillera Bodong, G.R. No. 92649 (1991)].
belong [Reyes v. Diaz, G.R. No. L-48754 (1941)]
The Civil Service Commission may have been vested
Subject matter jurisdiction simply refers to the judicial
with the power to settle actual controversies under
power that has been vested in a specific type of court
E.O. 292, but it is not a court because it is not part of
by the legal system, in terms of what kinds of action
the judicial department of the government [Prof.
it can decide (e.g., Regional Trial Courts as compared
Avena]
to Shari’a courts) and what powers it can exercise in
relation thereto (e.g., issuance of provisional
remedies) [Prof. Avena]. Specifically: 2. Jurisdiction over the Person
With respect to the Supreme Court, it is the plenary
of a Party
judicial power vested in it by the Constitution [Sec. 5,
Article VIII, Constitution], of which it cannot be Subject matter Jurisdiction over the
deprived by Congress, pursuant to Sec. 2, Article jurisdiction person
VIII, Constitution [Prof. Avena]. Refers to jurisdiction
• It includes the power of judicial review, which
over the person of a
is the power of the courts to test the validity of party (in an action that
executive and legislative acts for their conformity Refers to the judicial has been filed with a
with the Constitution [Garcia v. Executive Secretary, power of a specific specific court that has
G.R. No. 157584 (2009)] type of court over subject matter
certain kinds of action jurisdiction over such
Jurisdiction as provided for and action) that must be
a. is the power and authority of the court to hear, defined by law [Prof. acquired by that
try, and decide a case [1 Riano 67, 2014 Bantam Avena] specific court through
Ed., citing Cuenca v. PCGG, G.R. Nos. 159104-05 modes provided in
(2007); Asia International Auctioneers, Inc. v. Parayno, procedural rules [Prof.
G.R. No. 163445 (2007)] Avena]
b. has also been referred to as the power or capacity None of the parties to
given by the law to a court or tribunal to the litigation can May be conferred by
entertain, hear, and determine certain enlarge or diminish it consent, expressly or
controversies [1 Riano 67, 2014 Bantam Ed., or dictate when it shall impliedly given, or it
citing De la Cruz v. CA, G.R. No. 139442 (2006)] attach or when it shall may, by an objection,
be removed. That is a be prevented from
With respect to any other court, it is the judicial matter of legislative attaching or removed
power vested in that particular kind of court by the enactment which none after it has attached
pertinent law. For example, the jurisdiction of the but the legislature may [Manila Railroad Co. v.
Shari’a Circuit Court is the judicial power that is change [Manila Railroad Attorney-General, G.R.
vested in it by Art. 155 of P.D. 1083 [Prof. Avena] Co. v. Attorney-General, No. 6287 (1911)]
G.R. No. 6287 (1911)]

Page 7 of 481
U.P. LAW BOC CIVIL PROCEDURE
Kinds
a. Over the plaintiff
b. Over the defendant
c. Over non-parties – It is a principle of equity that
jurisdiction over a person not formally or
originally a party to a litigation may nevertheless
be acquired, under proper conditions, thru the
voluntary appearance of that person before the
court. Thus, judgment may be directed against
one who, although not a formal party in the case,
has assumed or participated in the defense
[Rodriguez v. Alikpala, G.R. No. L-38314 (1974)]
a. How jurisdiction over the
plaintiff is acquired
Courts acquire jurisdiction over a party plaintiff upon
the filing of the complaint [Regner v. Logarta, G.R.
No. 168747 (2007)]
The plaintiff, having brought the action, of necessity
submitted itself to the jurisdiction of the court [Manila
Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)]
b. How jurisdiction over the
defendant is acquired
Jurisdiction over the person of the defendant is
acquired
1. By his voluntary appearance in court and his
submission to its authority; or
2. By service of summons
[Sec. 20, Rule 14; Macasaet v. Co, G.R. No. 156759
(2013)]
Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide a case
only in an action in personam. It is not a prerequisite in
an action in rem or quasi in rem, provided that the court
acquires jurisdiction over the res [Alba v. CA, G.R. No.
164041 (2005)]
An objection to jurisdiction over the person of the
defendant may be raised as a ground in a Motion to
Dismiss [Sec. 1(a), Rule 16] or as an affirmative
defense in an Answer [Sec. 6, Rule 16]
However, if not raised in such Motion or Answer, it
is deemed waived. It is not one of those defenses not
deemed waived under Sec. 1, Rule 9 [Boston Equity
Resources, Inc. v. CA, G.R. No. 173946 (2013)]
Page 8 of 481
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3. Jurisdiction over the Issues
An issue is a disputed point or question to which
parties to an action have narrowed down their several
allegations and upon which they are desirous of
obtaining a decision [1 Riano 100, 2014 Bantam Ed.,
citing Black’s Law Dictionary 745, 5th Ed.]
The SC had occasion to note that in some instances it
has been held that the court must also have
jurisdiction over the issues – that is, the issue being
tried and decided by the court be within the issues
raised in the pleadings [Reyes v. Diaz, G.R. No. L-
48754 (1941)]
Generally, jurisdiction over the issues is conferred and
determined by
a. The pleadings of the parties, which present the
issues to be tried and determine whether or not
the issues are of fact or law [Reyes v. Diaz, G.R.
No. L-48754 (1941)]
b. Stipulation of the parties as when, in the pre-trial,
the parties enter into stipulations of facts or enter
into agreement simplifying the issues of the case
[Sec. 2, Rule 18]
c. Waiver or failure to object to evidence on a
matter not raised in the pleadings. Here the
parties try with their express or implied consent
or issues not raised by the pleadings [Sec. 5, Rule
10]
[1 Riano 100-101, 2014 Bantam Ed.]
The rule is that a party is entitled only to such relief
consistent with and limited to that sought by the
pleadings or incidental thereto. A trial court would be
acting beyond its jurisdiction if it grants relief to a
party beyond the scope of the pleadings [Gonzaga v.
CA, G.R. No. 142037 (2004)]
4. Jurisdiction over the Res
“Res,” in civil law is a “thing” or “object.” It is
everything that may form an object of rights as
opposed to a “persona,” which is the subject of rights.
It includes object, subject matter or status [1 Riano
104, 2014 Bantam Ed., citing Black’s Law Dictionary
1172, 5th Ed.]
Jurisdiction over the res refers to the court’s
jurisdiction over the thing or the property which is the
subject of the action [1 Riano 104, 2014 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Jurisdiction over the res may be acquired

a. By seizure of the thing under legal process
C. General Principles on
whereby, it is brought into actual custody of the
law (custodia legis); or
Subject Matter
b. From the institution of legal proceedings Jurisdiction
wherein, under special provisions of law, the
power of the court over the property is Distinguished from venue
recognized and made effective (potential The question of venue does not relate to jurisdiction
jurisdiction of over the res) [Biaco v. Philippine of the court over the subject matter, it simply granting
Countryside Rural Bank, G.R. No. 161417 (2007); to the defendant certain rights and privileges as
El Banco Español-Filipino v. Palanca, G.R. No. against the plaintiff relative to the place of trial, which
11390 (1918)] rights and privileges he might waive expressly or by
implication [Manila Railroad Co. v. Attorney-General,
In order that the court may exercise power over the G.R. No. 6287 (1911)]
res, it is not necessary that the court should take actual
custody of the property, potential custody thereof
being sufficient. There is potential custody when,
1. Jurisdiction v. the Exercise
from the nature of the action brought, the power of of Jurisdiction
the court over the property is impliedly recognized by
law [Marcos, Jr. v. Republic, G.R. No. 189434 (2014); Jurisdiction refers to the power or authority of the
Perkins v. Dizon [G.R. No. 46631 (1939)] court to hear and decide a particular case or
controversy [Arranza v. BF Homes, G.R. No. 131683
In a quasi in rem action, jurisdiction over the person of (2000)] while the exercise of this power or authority
the nonresident defendant is not necessary and is the exercise of jurisdiction [1 Riano 72, 2014 Bantam
service of summons is required only for the purpose Ed.]
of complying with the requirement of due process. An
action quasi in rem is an action between parties where Jurisdiction is not the same as the exercise of
the direct object is to reach and dispose of property jurisdiction. As distinguished from the exercise of
owned by them, or of some interest therein [De jurisdiction, jurisdiction is the authority to decide a
Midgely v. Ferandos, G.R. No. L-34314 (1975)] cause, and not the decision rendered therein. Where
there is jurisdiction over the person and the subject
The CA, not the CTA, has jurisdiction over a case matter, the decision on all other questions arising in
alleging non-compliance with the pertinent provisions the case is but an exercise of the jurisdiction. And the
of the Local Government Code on tax delinquency errors which the court may commit in the exercise of
sale. A plain reading of Magpile's petition before the jurisdiction are merely errors of judgment which are
RTC would show that he did not assail the legality or the proper subject of an appeal [Tolentino v. Leviste,
validity and reasonableness or correctness of the real G.R. No. 156118 (2004)]
property tax assessment and collection. What he is
questioning is the alleged denial of due process in the
levying of his property [Salva v. Magpile, G.R. No. 2. Error of Jurisdiction as
220440 (2017)] Distinguished from Error of
Judgment
Error of jurisdiction Error of judgment
One which the court
One where the act
may commit in the
complained of was:
exercise of its
(1) without jurisdiction
jurisdiction
or in excess of
jurisdiction [Cabrera v.
It includes errors of
Lapid, G.R. No. 129098
procedure or mistakes
(2006)], or
in the court’s findings

Page 9 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Error of jurisdiction Error of judgment e. Conferred by a court’s unilateral assumption of

(2) with grave abuse of [Banco Filipino Savings jurisdiction [Tolentino v. Social Security Commission,
discretion amounting to and Mortgage Bank v. G.R. No. L-28870 (1985)]
lack of jurisdiction CA, G.R No. 132703 f. Conferred by consent or waiver [Cadimas v,
(2000)] Carrion, G.R. No. 180394 (2008)]
Correctible only by the [1 Riano 75-76, 2014 Bantam Ed.]
extraordinary writ of
certiorari [Cabrera v. Lapid, Generally, the jurisdiction of a court is determined by
G.R. No. 129098 the statute in force at the commencement of the
(2006)] action, unless such statute provides for its retroactive
application [Baritua v. Mercader, G.R. No. 136048
BUT NOTE: Sec. 8, Correctible by appeal (2001)]
Rule 40 allows an RTC [Cabrera v. Lapid, G.R.
with original jurisdiction No. 129098 (2006)] Once vested by the allegations in the complaint,
over a case brought on jurisdiction also remains vested irrespective of
appeal from a lower whether or not the plaintiff is entitled to recover upon
court without all or some of the claims asserted therein [City of
jurisdiction over subject Dumaguete v. PPA, G.R. No. 168973 (2011)]
matter to decide case on
the merits Jurisdiction is not affected by the pleas set up by the
Decision is a total nullity defendant in his answer or in a motion to dismiss,
and may be struck down otherwise, jurisdiction would be dependent on his
at any time, even on whims [Sindico v. Diaz, G.R. No. 147444 (2004)]
appeal; EXCEPT when Erroneous judgment is
party raising the issue is not a void judgment Note: The MTCC does not lose jurisdiction over
barred by estoppel ejectment cases by mere allegation of a tenancy
[Suntay v. Gocolay, G.R. relationship. However, if after hearing, tenancy is in
No. 144892 (2005)] fact shown to be the real issue, the court should
[1 Riano 73-74, 2014 Bantam Ed.] dismiss the case for lack of jurisdiction [Hilado v.
Chavez, G.R. No. 134742 (2004)]
3. How Jurisdiction is Doctrine of primary jurisdiction
Conferred and Determined The doctrine of primary jurisdiction holds that if a
case is such that its determination requires the
Jurisdiction over the subject matter of a case is expertise, specialized training and knowledge of the
conferred by law and determined by the allegations in proper administrative bodies, relief must first be
the complaint which comprise a concise statement of obtained in an administrative proceeding before a
the ultimate facts constituting the plaintiff's cause of remedy is supplied by the courts even if the matter
action [Medical Plaza Makati Condominium v. Cullen, may well be within their proper jurisdiction [Province of
G.R. No. 181416 (2013)] Aklan v. Jody King Construction and Dev’t Corp., G.R. No.
197592 (2013)]
Consequences of rule that jurisdiction is
conferred by law: It cannot be The objective of the doctrine of primary jurisdiction
a. Conferred by voluntary act or agreement of the is to guide the court in determining whether it should
parties refrain from exercising its jurisdiction until after an
b. Acquired, waived, enlarged, or diminished by any administrative agency has determined some question
act or omission of the parties; or or some aspect of some question arising in the
c. Conferred by the acquiescence of the courts proceeding before the court [Province of Aklan v. Jody
a. [De la Rosa v. Roldan, G.R. No. 133882 (2006)] King Construction and Dev’t Corp., G.R. No. 197592
d. Conferred by administrative policy of any court (2013)]
[Arranza v. B.F. Homes, Inc., G.R. No. 131683
(2000)] Exceptions
a. Where there is estoppel on the part of the party
invoking the doctrine

Page 10 of 481
U.P. LAW BOC CIVIL PROCEDURE
b. Where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction
c. Where there is unreasonable delay or official
inaction that will irretrievably prejudice the
complainant
d. Where the amount involved is relatively small
e. Where the question involved is purely legal and
will ultimately have to be decided by the courts
f. Where judicial intervention is urgent
g. When its application may cause great and
irreparable damage
h. Where the controverted acts violate due process
i. When the issue of non-exhaustion of
administrative remedies has been rendered moot
j. When there is no other plain, speedy, adequate
remedy
k. When strong public interest is involved, and
l. In quo warranto proceedings
[Province of Aklan v. Jody King Construction and Dev’t
Corp., G.R. No. 197592 (2013)]
4. Doctrine of Adherence of
Jurisdiction
Also known as doctrine of continuity of
jurisdiction [1 Riano 85-86, 2014 Bantam Ed.]
Once the jurisdiction of a court attaches, it continues
until the case is finally terminated. The trial court
cannot be ousted therefrom by subsequent
happenings or events, although of a character that
would have prevented jurisdiction from attaching in
the first instance [Baritua v. Mercader, G.R. No. 136048
(2001)]
Where a court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to
proceed to the final determination of the case is not
affected by new legislation placing jurisdiction over
such proceeding in another tribunal [Southern Food v.
Salas, G.R. No. 56428 (1992)]
As a consequence, jurisdiction is not affected by a new
law placing a proceeding under the jurisdiction of
another tribunal, except
a. Where there is an express provision in the statute;
and
b. The statute is clearly intended to apply to actions
pending before its enactment
[People v. Cawaling, G.R. No. 117970 (1998); Southern
Food v. Salas, G.R. No. 56428 (1992)]]
Page 11 of 481
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5. Objections to Jurisdiction
over the Subject Matter
When it appears from the pleadings or evidence on
record that the court has no jurisdiction over the
subject matter, the court shall dismiss the claim. [Sec.
1, Rule 9]
The Court ex mero motu may take cognizance of lack
of jurisdiction at any point in the case where the fact
is developed. The court has a clearly recognized right
to determine its own jurisdiction in any proceeding
[Fabian v. Desierto, G.R. No. 129742 (1998)]
The jurisdiction of a court over the subject matter of
the action is a matter of law and may not be conferred
by consent or agreement of the parties. The lack of
jurisdiction of a court may be raised at any stage of
the proceedings, even on appeal [SEAFDEC v.
NLRC, G.R. No. 86773 (1992)]
The earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed before
the filing or service of an answer because lack of
jurisdiction over subject matter is a ground for a
motion to dismiss under Sec. 1(b), Rule 16 [1 Riano
88, 2014 Bantam Ed.]
If no motion to dismiss is filed, the defense of lack of
jurisdiction may be raised as an affirmative defense in
the answer [Sec. 6, Rule 16]
When the court dismisses the complaint for lack of
jurisdiction over subject matter, it is submitted that
the court should not remand the case to another court
with the proper jurisdiction. Its only has authority to
dismiss and not to make any other order [1 Riano 89,
2014 Bantam Ed.]
6. Effect of Estoppel on
Objections to Jurisdiction
General rule: Jurisdiction over the subject matter may
be raised at any stage of the proceedings, even for the
first time on appeal. The reason for this is that
jurisdiction is conferred by law, and lack of it affects
the very authority of the court to take cognizance of
the action [Asiatrust Development Bank v. First Aikka
Development, Inc., G.R. No. 179558 (2011)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Exception: Tijam v. Sibonghanoy [G.R. No. L-21450

(1968)] espoused the doctrine of estoppel by
D. Classification of courts
laches, which held that a party may be barred from
questioning a court’s jurisdiction after invoking the
according to Subject
court’s authority in order to secure affirmative relief Matter Jurisdiction in
against its opponent, when laches would prevent the
issue of lack of jurisdiction from being raised for the General
first time on appeal by a litigant whose purpose is to
annul everything done in a trial in which it has actively 1. According to Subject Matter
participated [Francel Realty Corp. v. Sycip, G.R. No.
154684 (2005)] per se
Note: Tijam must be construed as an exception to the a. Courts of Original and Appellate
general rule and applied only in the most exceptional
cases where the factual milieu is similar to that in the
Jurisdiction
said case [Figueroa v. People, G.R. No. 147406 (2008)]
Original Appellate
Jurisdiction by estoppel Have the power to
Actions or proceedings
While it is true that jurisdiction may be raised at any review on appeal the
may be originally filed
time, this rule presupposes that estoppel has not decisions or orders of a
with it
supervened. In this case, respondent (defendant lower court
below) actively participated in all stages of the [1 Riano 62, 2014 Bantam Ed.]
proceedings before the trial court and invoked its
authority by asking for an affirmative relief. Clearly, Appellate jurisdiction refers to a process which is but
respondent is estopped from challenging the trial a continuation of the original suit, not a
court’s jurisdiction, especially when an adverse commencement of a new action [Morales v. CA, G.R.
judgment has been rendered [Soliven v. Fastform, G.R. No. 126623 (1997)]
No. 139031 (2004)]
b. Courts of Concurrent Original
7. Other Principles Jurisdiction
Cannot be the subject of compromise Refers to courts with the same kind of original
No compromise upon the jurisdiction of courts shall jurisdiction over certain actions [Prof. Avena]
be valid [Art. 2035, Civil Code]
Principle of judicial hierarchy
Retroactivity A common refrain in jurisprudence is that, where
The provisions of R.A. 7691 (An Act Expanding the court have concurrent jurisdiction over a subject
Jurisdiction of MeTCs, MTCs, and MCTCs) matter, the doctrine of hierarchy of courts, should be
amending B.P. 129 shall apply to all civil cases that observed. Under this doctrine, a case must be filed
have not yet reached the pre-trial stage [Sec. 7, R.A. before the lowest court possible having the
7691]. appropriate jurisdiction, except if one can advance a
special reason which would allow a party a direct
The resolution of the SC amending a provision of the resort to a higher court [1 Riano 57, 2014 Bantam Ed.]
ROC does not have to specify that it has retroactive
effect as it pertains to a procedural matter. Contrary The principle of hierarchy of courts requires that
to private respondent’s allegation that the matter was recourses should be made to the lower courts before
no longer pending and undetermined, the issue of they are made to the higher courts [Republic v. Caguioa,
whether the petition for certiorari was timely filed was G.R. No. 174385 (2013)]
still pending reconsideration when the amendment to
Sec. 4, Rule 65 took effect on September 1, 2000, Parties must observe the hierarchy of courts before
hence, covered by its retroactive application [Siena they can seek relief directly from the SC – the
Realty Corp. v. Gal-lang, G.R. No. 145169 (2004)] rationale is two-fold:
1. It would be an imposition upon the limited time
of the Court; and

Page 12 of 481
U.P. LAW BOC CIVIL PROCEDURE
2. It would inevitably result in a delay, in the
adjudication of cases, which are remanded or
referred to the lower court as the proper forum,
or a trier of facts
[People v. Azarraga, G.R. No. 187117 (2011)]
A disregard of the doctrine of hierarchy of courts
warrants, as a rule, the outright dismissal of a petition
[De Castro v. Carlos, G.R. No. 194994 (2013)]
The SC may disregard the doctrine if warranted by the
nature and importance of the issues raised in the
interest of speedy justice and to avoid future
litigations [1 Riano 58-59, 2014 Bantam Ed.]
The SC has allowed direct invocation of its original
jurisdiction to issue writs of certiorari when
1. There are special and important reasons clearly
stated in the petition
2. Dictated by public welfare and the advancement
of public policy
3. Demanded by the broader interest of justice
4. The challenged orders were patent nullities
5. Analogous exceptional and compelling
circumstances called for and justified the
immediate and direct handling of the case
[Republic v. Caguioa, G.R. No. 174385 (2013)]
The Supreme Court held that strict observance of the
doctrine of judicial hierarchy should not be a matter
of mere policy but is a constitutional imperative. It
ruled that when a question presented to the Court
involves the determination of a factual issue
indispensable to the resolution of the legal issue, the
Court will refuse to resolve the question regardless of
the allegation or invocation of compelling reasons,
such as the transcendental or paramount importance
of the case. Such question must first be brought
before the proper trial courts or the CA, both of
which are specially equipped to try and resolve factual
issues. [Gios-Samar, Inc. v. DoTC and CAAP, G.R. No.
217158 (2019)]
c. Courts of General and Special
Jurisdiction
General Special
Vested by law with the Only for a particular
jurisdiction to take purpose or are clothed
cognizance of all kinds with special powers
of cases, civil or for the performance of
criminal, of a particular specified duties
nature beyond which they
Page 13 of 481
REMEDIAL LAW
have no authority of
any kind
[1 Riano 62, 2014 Bantam Ed.]
Note: Courts do not and never have the “competence
to decide their own jurisdiction”. Jurisdiction over the
subject matter is a matter of legislative enactment that
only the legislature may change [Manila Railroad v.
Attorney General, G.R. No. 6287 (1911)]
Nature of classification
1. This classification is one that can only be created
by law because jurisdiction is a matter of
substantive, not procedural, law [See Sec. 1, Art.
VIII, Constitution]
2. Although the law may provide otherwise, it is a
classification that usually pertains to the original
jurisdiction of courts. [Prof. Avena]
An example of courts of special jurisdiction would be
the Shari’ah courts created under P.D. 1083 (Code of
Muslim Personal Laws). The jurisdiction of special
commercial courts created under A.M. No. 01-2-04-
SC (Interim Rules of Procedure Governing Intra-
Corporate Controversies under R.A. 8799) falls
within the general original jurisdiction of Regional
Trial Courts, because it consists of the jurisdiction of
the Securities and Exchange Commission which was
transferred under R.A. 8799 to Regional Trial Courts
per se; hence, the designation “Special Commercial
Courts’ simply refers to those specified branches of
Regional Trial Courts which the Supreme Court has
designated to exercise the said former jurisdiction of
the SEC. [Gonzales v. GJH Land, Inc. G.R. No. 202664
(2015)]
2. According to Creation
a. Constitutional and Statutory
Courts
Constitutional court – refers to a court directly
created by a constitutional provision [1 Riano 60, 2014
Bantam Ed.], of which there is only one example: the
Supreme Court [Sec. 1, Art. VIII, Constitution]
Constitutionally-mandated court – refers to a
court whose creation by Congress is mandated by a
constitutional provision, of which there is only one
example: the Sandiganbayan [Sec. 4, Art. XI,
Constitution]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Statutory court – refers to a court created by G.R. No. L-33245

statutory law [1 Riano 60, 2014 Bantam Ed.] (e.g., the (1971)]
first courts created after the birth of the Philippine Keep a written record
Republic were those created by virtue of R.A. 296 of its proceedings [1
(The Judiciary Act of 1948) Riano 61, 2014 Bantam
Ed.]
b. Courts of Law and Equity Not bound to keep
Strong presumption as
such records [1 Riano
Law Equity to the veracity of its
61, 2014 Bantam Ed.]
Resolve issues records that cannot be
presented in a case, in collaterally attacked
accordance with the except for fraud [1
Settle cases according natural rules of fairness Riano 61, 2014 Bantam
to law and justice, and in the Ed.]
absence of a clear,
positive law governing Prior to 1969, municipal and city courts (referred to
such issues as “inferior courts” in the 1964 ROC) were not
[1 Riano 55, 2014 Bantam Ed.] “courts of record” because they were not required to
keep records of their proceedings. Under Sec. 3 of
Philippine courts are both courts of lawbasically R.A. 6031, they were required to do so in the same
courts of law, not courts of equity. Equity, which has manner as the then-Courts of First Instance. Hence,
been aptly described as a “justice outside legality,” is all Philippine courts are now courts of record.
applied only in the absence of, and never against,
statutory law. Aequetas nunquam contravenit legis [GF OTHER CLASSIFICATIONS
Equity, Inc. v. Valenzona, G.R. No. 156841 (2005)]
Superior and inferior courts
Equity is available only in the absence of law and not Superior Inferior
as its replacement [PTA of ST. Matthew Christian Are lower in rank, in
Have the power of
Academy v. Metropolitan Bank and Trust Co., G.R. No. relation to another
review or supervision
(2010)] court and subject to
over another and lower
review and supervision
court [1 Regalado 6,
Note: In Carceller v. CA [G.R. No. 124791 (1999)], the by the latter [1 Regalado
2010 Ed.]
SC stated immediately preceding the dispositive 6, 2010 Ed.]
portion that: “Courts of law, being also courts of With controlling Subordinate to another
equity, may not countenance such grossly unfair authority over other court, the judgment of
results without doing violence to its solemn obligation courts, and with which may be reviewed
to administer fair and equal justice for all.” original jurisdiction of by a higher tribunal [1
its own [1 Riano 61, Riano 61, 2014 Bantam
2014 Bantam Ed.] Ed.]
3. According to Record-
Keeping Note: The term “inferior courts”, in use in the 1964
ROC, was obliterated in the 1997 Rules of Civil
Courts of record and not of record Procedure. The equivalent term is now “municipal
Of record Not of record trial court” [Sec. 2, Rule 5]. Accordingly, the term
Those whose “superior court” not only has lost meaning in the
proceedings are Courts which are not technical sense, but has also lost favor in terms of
enrolled and which are required to keep a usage, in conformity with the spirit behind the
bound to keep a written record or obsolescence of the term “inferior court,” which was
written record of all transcript of to do away with the pejorative connotation of it [Prof.
trials and proceedings proceedings held Avena]
handled by them [1 therein [1 Regalado 2,
Regalado 2, 2010 Ed., 2010 Ed.]
see Luzano v. Romero,

Page 14 of 481
U.P. LAW BOC CIVIL PROCEDURE
4. Principle of Judicial
Hierarchy
See Courts of Concurrent Original Jurisdiction
above.
5. Doctrine of Non-
Interference or Doctrine of
Judicial Stability
Courts of equal and coordinate jurisdiction cannot
interfere with each other’s orders [Lapu-Lapu Dev’t and
Housing Corp. v. Group Management Corp., G.R. No.
141407 (2002)]
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of
review [Villamor v. Salas, G.R. No. 101041 (1991)]
The doctrine applies with equal force to
administrative bodies. When the law provides for an
appeal from the decision of an administrative body to
the SC or CA, it means that such body is co-equal with
the RTC in terms of rank and stature, and logically
beyond the control of the latter [Phil. Sinter Corp. v.
Cagayan Electric Power, G.R. No. 127371 (2002)]
The rationale for the rule is founded on the concept
of jurisdiction: a court that acquires jurisdiction over
the case and renders judgment therein has jurisdiction
over its judgment, to the exclusion of all other
coordinate courts, for its execution and over all its
incidents, and to control, in furtherance of justice, the
conduct of ministerial officers acting in connection
with this judgment [Cabili v. Balindong, A.M. No. RTJ-
10-2225 (2011)]
When not applicable
The doctrine of judicial stability does not apply where
a third party claimant is involved – this is in
consonance with the well-established principle that
no man shall be affected by any proceeding to which
he is a stranger [Sps. Crisologo v. Omelio, A.M. No. RTJ-
12-2321 (2012), citing Sec. 16, Rule 39, and quoting
Naguit v. CA, G.R. No. 137675 (2000)]
Page 15 of 481
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E. Jurisdiction of Specific
Courts
1. Supreme Court
Original jurisdiction
a. Cases affecting
1. Ambassadors
2. Other public ministers, and
3. Consuls
b. Petitions for
1. Certiorari
2. Mandamus
3. Prohibition
4. Habeas corpus, and
5. Quo warranto
[Sec. 5(1), Art. VIII, Constitution]
Parties seeking to question the resolutions of the
Office of the Ombudsman in criminal cases or non-
administrative cases, may file an original action
for certiorari with the SC, not with the CA, when it
is believed that the Ombudsman acted with grave
abuse of discretion [Ombudsman v. Heirs of Margarita
Vda. De Ventura, G.R. No. 151800 (2009), citing
Estrada v. Desierto, G. R. No. 156160 (2004)]
Exclusive original jurisdiction
Petitions for certiorari, prohibition and mandamus
against
a. Court of Appeals [Sec. 17, R.A. 296]
b. Commission on Elections [Sec 7, Art. IX,
Constitution]
c. Commission on Audit [Sec. 7, Art. IX,
Constitution]
d. Sandiganbayan [P.D. 1606 as amended]
[1 Riano 106, 2014 Bantam Ed.]
e. Court of Tax Appeals (en banc) [1 Regalado 54,
2014 Bantam Ed.]
The certiorari jurisdiction of the SC has been rigorously
streamlined, such that Rule 65 only admits cases based
on the specific grounds provided therein. The Rule
applies if there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law.
The independent action for certiorari will lie only if
grave abuse of discretion is alleged and proven to exist
[Lagua v. CA, G.R. No. 173390 (2012)]
Note: In Araullo v. Aquino III [G.R. No. 209287
(2014)], the SC held that petitions for certiorari and
prohibition are appropriate remedies to raise
U.P. LAW BOC CIVIL PROCEDURE
constitutional issues and to review and/or prohibit or
nullify the acts of legislative and executive officials.
“With respect to the Court, however, the remedies of
certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial,
quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction
by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-
judicial or ministerial functions.”
CONCURRENT ORIGINAL JURISDICTION
a. With CA
1. Petitions for certiorari, prohibition, and
mandamus against
i. RTCs [Sec. 21(1), B.P. 129]
ii. Civil Service Commission [R.A. 7902]
iii. Central Board of Assessment Appeals
[P.D. 464; B.P. 129; R.A. 7902]
iv. NLRC [St. Martin Funeral Homes v.
NLRC , G.R. No. 130866 (1998); R.A.
7902]
v. Other Quasi-Judicial Agencies [B.P.
129; R.A. 7902; Heirs of Hinog v. Melicor,
G.R. No. 140954 (2005)
[1 Riano 106-107, 2014 Bantam Ed.]
Note: Although there is concurrent jurisdiction as
the Constitution grants this to the SC, SC A.M.
No. 07-7-12 issued on 4 December 2007
provides that if the petition involves an
act/omission of a Quasi-Judicial Agency, the
petition shall only be cognizable by the CA and
must be filed there
2. Petitions for writ of kalikasan [Sec. 3, Rules
of Procedure for Environmental Cases]
b. With CA and RTC
1. Petitions for certiorari, prohibition and
mandamus against lower courts and bodies
2. Petitions for quo warranto
3. Petitions for writs of habeas corpus
This jurisdiction is subject to the doctrine of
hierarchy of courts [Sec. 9(1), 21(1), B.P. 129; 1
Riano 107, 2014 Bantam Ed.]
Page 16 of 481
REMEDIAL LAW
c. With RTC in cases affecting ambassadors, public
ministers and consuls [Sec. 21(2), B.P. 129; 1
Riano 107, 2014 Bantam Ed.]
d. With CA, RTC and Sandiganbayan – Petitions
for writ of amparo [Sec. 3, Rule on the Writ of
Amparo] and habeas data [Sec. 3, Rule on the Writ
of Habeas Data]
Appellate jurisdiction
The SC shall have the power to review, revise, reverse,
modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity
of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto.
c. All cases in which the jurisdiction of any lower
court is in issue.
d. All criminal cases in which the penalty imposed
is reclusion perpetua or higher.
e. All cases in which only an error or question of
law is involved. [Sec. 5(2), Art. VIII,
Constitution]
By way of petition for review on certiorari (appeal by
certiorari under Rule 45) against
a. CA
b. Sandiganbayan
c. RTC
1. Pure questions of law [Sec. 1, Rule 45] and
2. Cases falling under Sec. 5, Art. VIII,
Constitution (see above)
d. CTA in its decisions rendered en banc
[1 Riano 107, 2014 Bantam Ed.]
e. MetC, MTC, MCTC in the exercise of their
delegated jurisdiction, where the decision, had it
been rendered by RTC, would be appealable
directly to the SC [Sec. 34, B.P. 129, as amended]
Only pure questions of law are involved when no
evidentiary matters are to be evaluated by the SC. If
the only issue is whether or not the conclusions of the
trial court are in consonance with law and
jurisprudence, then the issue is a pure question of law
[Urbano v. Chavez, G.R. No. 87977 (1990)]
Note that the SC has held that appeals from quasi-
judicial agencies – even only on a question of law
U.P. LAW BOC CIVIL PROCEDURE
alone – may be brought to the CA, via Rule 43 of the
ROC. This constitutes an exception to the general
rule that appeals on pure questions of law are brought
to the SC [Santos v. Committee on Claims Settlement, G.R.
No. 158071 (2009)]
The SC may resolve factual issues in certain
exceptional circumstances:
a. The conclusion is grounded on speculations,
surmises or conjectures
b. The inference is manifestly mistaken, absurd or
impossible
c. There is grave abuse of discretion
d. The judgment is based on a misapprehension of
facts
e. The findings of fact are conflicting
f. There is no citation of specific evidence on which
the factual findings are based
g. The finding of absence of facts is contradicted by
the presence of evidence on record
h. The findings of the CA are contrary to those of
the trial court
i. The CA manifestly overlooked certain relevant
and undisputed facts that, if properly considered,
would justify a different conclusion
j. The findings of the CA are beyond the issues of
the case
k. Such findings are contrary to the admissions of
both parties
[Josefa v. Zhandong, G.R. No. 150903 (2003)]
2. Court of Appeals
Exclusive original jurisdiction
Actions for annulment of judgments of the RTC [see:
Sec. 9(2), BP 129; Sec. 1, Rule 47]
CONCURRENT ORIGINAL JURISDICTION
a. With SC
1. Petitions for certiorari, prohibition, and
mandamus against
i. RTCs
ii. Civil Service Commission
iii. Central Board of Assessment Appeals
iv. Other quasi-judicial agencies
mentioned in Rule 43
v. NLRC [St. Martin Funeral Homes v.
NLRC , G.R. No. 130866 (1998)
Note: Although there is concurrent jurisdiction as
the 1987 Constitution grants this to the SC, SC
A.M. No. 07-7-12 issued on 4 December 2007
provides that if the petition involves an
act/omission of a Quasi-Judicial Agency, the
petition shall only be cognizable by the CA.
Page 17 of 481
REMEDIAL LAW
[1 Riano 113-114, 2014 Bantam Ed.]
2. Petitions for writ of kalikasan [Sec. 3, Rules
of Procedure for Environmental Cases]
b. With SC and RTC
1. Petitions for certiorari, prohibition and
mandamus against lower courts and bodies
2. Petitions for quo warranto
3. Petitions for writs of habeas corpus
c. With SC, RTC and Sandiganbayan
1. Petitions for writ of amparo [Sec. 3, Rule on
the Writ of Amparo] and habeas data [Sec. 3,
Rule on the Writ of Habeas Data]
EXCLUSIVE APPELLATE JURISDICTION
a. By ordinary appeal
1. From judgments of RTC and Family Courts
[Sec. 9(3), B.P. 129, as amended; Sec. 14,
R.A. 8369]
2. Over decisions of the MTCs in cadastral or
land registration cases pursuant to its
delegated jurisdiction [Sec. 34, B.P. 129, as
amended by R.A. 7691]
b. By petition for review
1. From judgments of the RTC rendered in its
appellate jurisdiction [Sec. 22, B.P. 129, as
amended; Rule 42; Sec. 9, B.P. 129]
2. From decisions, resolutions, orders or
awards of the Civil Service Commission and
other bodies mentioned in Rule 43 [Sec. 9(3),
B.P. 129]
Note: The enumeration of quasi-judicial agencies
under Sec. 1, Rule 43 is not exclusive [Wong v.
Wong, G.R. No. 180364 (2014), quoting Cayao-
Lasam v. Sps. Ramolete, G.R. No. 159132 (2008)]
3.From decisions of the Office of the
Ombudsman in administrative disciplinary
cases
[1 Riano 114-115, 2014 Bantam Ed.]
3. Sandiganbayan
Exclusive original jurisdiction
a. Violations of R.A. 3019 or the Anti-Graft and
Corrupt Practices Act
b. Violations of R.A. 1379 or An Act Declaring
Forfeiture in Favor of the State Any Property
Found to Have Been Unlawfully Acquired by
Any Public Officer or Employee and Providing
for the Proceedings Therefor
U.P. LAW BOC CIVIL PROCEDURE
c. Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC), where one or more of the principal
accused are occupying the following positions in
government, whether in a permanent, acting or
interim capacity, at the time of the commission
of the offense
1. 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 (R.A. 6758),
specifically including:
• Provincial governors, vice-governors,
members of the sangguniang panlalawigan,
and provincial treasurers, assessors,
engineers, and other provincial
department heads
• City mayors, vice-mayors, members of
the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city
department heads
• Officials of the diplomatic service
occupying the position of consul and
higher
• Philippine army and air force colonels,
naval captains, and all officers of higher
rank;
• Officers of the Philippine National
Police while occupying the position of
provincial director and those holding
the rank of senior superintendent and
higher
• City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor;
• Presidents, directors or trustees, or
managers of government-owned or
controlled corporations, state
universities or educational institutions
or foundations
2. Members of Congress and officials thereof
classified as Grade 27 and up under R.A.
6758
3. Members of the Judiciary without prejudice
to the provisions of the Constitution
4. Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution
5. All other national and local officials classified
as Grade 27 and higher under R.A. 6758
d. Other offenses or felonies whether simple or
complexed with other crimes committed by the
Page 18 of 481
REMEDIAL LAW
public officials and employees mentioned in
subsection a. of section 4 (as amended) in relation
to their office
e. Civil and criminal cases filed pursuant to and in
connection with E.O. Nos. 1, 2, 14-A
f. Petitions for mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other ancillary writs
and processes in aid of its appellate jurisdiction,
and petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or
which may be filed under Executive Order Nos.
1, 2, 14 and 14-A, issued in 1986
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
RTC shall have exclusive original jurisdiction
where the information
a. Does not allege any damage to the government
or any bribery; or
b. Alleges damage to the government or bribery
arising from the same or closely related
transactions or acts in an amount not exceeding
P1 million
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
Subject to rules promulgated by SC, the cases falling
under the jurisdiction of the RTC shall be tried in a
judicial region other than where the official holds
office [Sec. 4, P.D. 1606, as amended by R.A. 10660]
Exclusive original jurisdiction shall be vested in the
proper RTC, MeTC, MTC, and MCTC, as the case
may be, where none of the accused are occupying
positions corresponding to Salary Grade 27 or higher,
or military and PNP officers mentioned above [Sec.
4, P.D. 1606, as amended by R.A. 10660]
The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or
orders of regional trial courts whether in the exercise
of their own original jurisdiction or of their appellate
jurisdiction as herein provided [Sec. 4, P.D. 1606, as
amended by R.A. 10660]
The Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance of the
writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto,
arising or that may arise in cases filed or which may
be filed under E.O. 1, 2, 14 and 14-A, issued in 1986:
Provided, That the jurisdiction over these petitions
shall not be exclusive of the SC [Sec. 4, P.D. 1606, as
amended by R.A. 10660]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

In Olivarez Realty v. Castillo [G.R. No. 196251

Concurrent Original Jurisdiction with SC, CA, and (2014)], the action instituted in the trial court was
RTC for petitions for writs of amparo [Sec. 3, Rule on one for the cancellation of a contract to sell, and
the Writ of Amparo] and habeas data [Sec. 3, Rule on prior to the institution of the action the
the Writ of Habeas Data] defendant had already proceeded to occupy the
property involved. In this instance, the SC held
4. Regional Trial Courts that the action involved a subject matter that was
incapable of pecuniary estimation. The difference
in the ruling of the SC here and in Home Guaranty
Exclusive original jurisdiction
lies in that fact that in Olivarez Realty, what the
a. All civil actions in which the subject of the
plaintiff had principally sought was a
litigation is incapable of pecuniary estimation
determination that a suspensive condition for the
[Sec. 19(1), B.P. 129, as amended by R.A. 7691]
perfection of the contract had not been fulfilled:
“the trial court principally determined whether
Test (principal nature of an action): If it is
Olivarez Realty Corporation failed to pay
primarily for the recovery of a sum of money, the
installments of the property’s purchase price as
claim is considered capable of pecuniary
the parties agreed upon in the deed of conditional
estimation. On the other hand, where the basic
sale. The principal nature of Castillo’s action,
issue is something other than the right to recover
therefore, is incapable of pecuniary estimation.”
a sum of money, and the money claim is purely
incidental to, or a consequence of, the principal
See also: Heirs of Bautista v. Lindo [G.R. No. 208232
relief sought, such actions are cases where the
(2014)], where an action to redeem a land subject
subject of the litigation is incapable of pecuniary
of a free patent was characterized by the SC as
estimation [Heirs of Padilla v. Magdua, G.R. No.
one whose subject matter was incapable of
176858 (2010), quoting Singson v. Isabela Sawmill,
pecuniary estimation since the reacquisition of
G.R. No. L-27343 (1979)]
the land was merely incidental to and an offshoot
of the exercise of the right to redeem the land,
An action to nullify a Deed of Assignment
pursuant to Sec. 119 of CA 141.
and Conveyance is not one involving a
subject matter incapable of pecuniary
An expropriation suit is incapable of pecuniary
estimation if the plaintiff also seeks to the
estimation [Barangay San Roque v. Heirs of Francisco
transfer of possession and control of
Pastor, G.R. No. 138896 (2000)]
properties: In Home Guaranty v. R-II Builders
[G.R. No. 192649 (2011)], an action that sought
b. Civil actions involving title to, or possession of
the nullification of a Deed of Assignment and
real property, or any interest therein, where
Conveyance was characterized by the respondent
assessed value exceeds P20,000 outside Metro
on an MR before the SC as one involving a
Manila, or exceeds P50,000 in Metro Manila [Sec.
subject matter incapable of pecuniary estimation.
19(2), B.P. 129, as amended by R.A. 7691]
The SC disagreed and held that since the action
was not solely for the annulment of the Deed of
Exception: Forcible entry and unlawful detainer
Assignment and Conveyance – indeed, the
cases [Sec. 33(2), B.P. 129, as amended by R.A.
respondent consistently sought the transfer of
7691]
possession and control of properties – following
the its ruling in Ruby Shelter Builders and Realty
An action "involving title to real property" means
Development Corp. v. Formaran III, G.R. No. 175914
that the plaintiff's cause of action is based on a
(2009), the subject of the action was not
claim that he owns such property or that he has
incapable of pecuniary estimation.
the legal rights to have exclusive control,
possession, enjoyment, or disposition of the
However, if the principal nature of an action
same. Title is the "legal link between (1) a person
to cancel a contract to sell, where the
who owns property and (2) the property itself."
defendant has already taken possession of
[Heirs of Sebe v. Heirs of Sevilla, G.R. No. 174497
the property, involves a determination on
(2009)]
whether a suspensive condition has been
fulfilled – then the subject matter involved is
one that is incapable of pecuniary estimation:

Page 19 of 481
U.P. LAW BOC CIVIL PROCEDURE
c. If the amount involved exceeds P300,000 outside
Metro Manila or exceeds P400,000 in Metro
Manila in the following cases [B.P. 129, as
amended by R.A. 7691]:
1. Actions in admiralty and maritime
jurisdiction, where the amount refers to
demand or claim [Sec. 19(3)]
2. Matters of probate (testate or intestate),
where the amount refers to gross value of
estate [Sec. 19(4)]
3. In all other cases where the amount refers to
the demand, exclusive of interest, damages
of whatever kind, attorney’s fees, litigation
expenses, and costs [Sec. 19(8)]
d. All actions involving the contract of marriage and
family relations [Sec. 19(5), B.P. 129, as amended
by R.A. 7691], and all civil actions and special
proceedings falling within exclusive original
jurisdiction of Juvenile and Domestic Relations
Court [Sec. 19(7), B.P. 129, as amended by R.A.
7691]
Note: This jurisdiction is deemed modified by Sec.
5, R.A. 8369, the law establishing the Family
Courts. However, in areas where there are no
Family Courts, the cases within their jurisdiction
shall be adjudicated by the RTC [Sec. 17, R.A.
8369; 1 Riano 147, 2014 Bantam Ed.]
e. All civil actions and special proceedings falling
within exclusive original jurisdiction of the Court
of Agrarian Reform [Sec. 19(7), B.P. 129, as
amended by R.A. 7691]
f. All cases not within exclusive jurisdiction of any
court, tribunal, person, or body exercising judicial
or quasi-judicial functions [Sec. 19(6), B.P. 129,
as amended by R.A. 7691] This jurisdiction is
often described as the ‘general’ jurisdiction of the
RTC making it a court of ‘general jurisdiction.’ [1
Riano 146, 2014 Bantam Ed.]
g. Intra-corporate controversies
1. Cases involving devises or schemes
employed by or any acts, of board of
directors, business associates, its officers or
partnership, amounting to fraud and
misrepresentation which may be detrimental
to interest of public and/or of stockholders,
partners, members of associations or
organizations registered with SEC
2. Controversies arising out of intra-corporate
or partnership relations, between and among
Page 20 of 481
REMEDIAL LAW
stockholders, members or associates;
between any or all of them and corporation,
partnership or association of which they are
stockholders, members or associates,
respectively; and between such corporation,
partnership or association and the state
insofar as it concerns their individual
franchise or right to exist as such entity
3. Controversies in election or appointments of
directors, trustees, officers or managers of
such corporations, partnerships or
associations
4. Petitions of corporations, partnerships or
associations to be declared in state of
suspension of payments in cases where
corporation, partnership of association
possesses sufficient property to cover all its
debts but foresees impossibility of meeting
them when they respectively fall due or in
cases where corporation, partnership or
association has no sufficient assets to cover
its liabilities, but is under management of a
Rehabilitation Receiver or Management
Committee
[Sec. 52, Securities and Regulations Code]
h. Petitions for declaratory relief [Sec. 1, Rule 63]
Concurrent original jurisdiction
a. With SC in cases affecting ambassadors, public
ministers and consuls [Sec. 21(2), B.P. 129; Sec.
5(5), Art. VIII, Constitution]
b. With SC and CA
1. Petitions for certiorari, prohibition and
mandamus against lower courts and bodies
2. Petitions for quo warranto
3. Petitions for writs of habeas corpus
[Sec. 9(1), 21(2), B.P. 129; Sec. 5(5), Art. VIII,
Constitution]
c. With SC, CA and Sandiganbayan: petitions for writ
writs of amparo [Sec. 3, Rule on the Writ of
Amparo] and habeas data [Sec. 3, Rule on the Writ
of Habeas Data]
Appellate jurisdiction over cases decided by lower
courts in their respective territorial jurisdictions,
except those made in the exercise of delegated
jurisdiction, which are appealable in the same manner
as decisions of the RTC [Sec. 34, B.P. 129, as
amended]
Special jurisdiction - SC may designate certain
branches of RTC to try exclusively criminal cases,
juvenile and domestic relations cases, agrarian cases,
U.P. LAW BOC CIVIL PROCEDURE
urban land reform cases not falling within the
jurisdiction of any quasi-judicial body and other
special cases in the interest of justice [Sec. 23, B.P.
129]
5. Family Courts
a. Criminal cases where one or more accused is
below 18 but not less than 9 years old or where
one or more victims was a minor at time of
commission of offense
b. Petitions for guardianship, custody of children
and habeas corpus in relation to children
c. Petitions for adoption of children and revocation
thereof
d. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to status and property relations of
husband and wife or those living together under
different status and agreements, and petitions for
dissolution of conjugal partnership of gains
e. Petitions for support and/or acknowledgment
f. Summary judicial proceedings brought under the
provisions of Family Code
g. Petitions for
1. Declaration of status of children as
abandoned, dependent or neglected children
2. Voluntary or involuntary commitment of
children
3. Suspension, termination or restoration of
parental authority and
4. Other cases cognizable under P.D. 603, E.O.
56, s. 1986, and other related laws
h. Petitions for constitution of family home
i. Cases against minors cognizable under
Dangerous Drugs Act, as amended (now R.A.
9165)
j. Violations of R.A. 7610, or the “Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act” and
k. Cases of domestic violence against Women and
Children
[Sec. 5, R.A. 8369]
Page 21 of 481
REMEDIAL LAW
6. Metropolitan Trial Courts,
Municipal Trial Courts in
Cities, Municipal Trial
Courts, Municipal Circuit
Trial Courts
Exclusive original jurisdiction
a. Where the value of personal property, estate, or
amount of demand does not exceed P300,000
outside Metro Manila or does not exceed
P400,000 in Metro Manila, exclusive of interest,
damages of whatever kind, attorney’s fees,
litigation expenses, and costs, in the following
cases:
1. Civil actions
2. Probate proceedings (testate or intestate)
3. Provisional remedies in proper cases
[Sec. 33(1), B.P. 129, as amended by R.A. 7691]
b. Forcible entry and unlawful detainer (FEUD)
Note: When defendant raises questions of
ownership in his pleadings and the question of
possession cannot be resolved without deciding
issue of ownership, the latter issue shall be
resolved only to determine the former issue [Sec.
33(2), B.P. 129, as amended by R.A. 7691]
c. All civil actions involving title to, or possession
of, real property, or any interest therein where
assessed value of property or interest therein
does not exceed P20,000 outside Metro Manila,
or does not exceed P50,000 in Metro Manila [Sec.
33(3), B.P. 129, as amended by R.A. 7691]
d. Inclusion and exclusion of voters [Sec. 49,
Omnibus Election Code]
Special jurisdiction over petition for writ of habeas
corpus OR application for bail in criminal cases in the
absence of all RTC judges in the province or city
[Sec. 35, B.P. 129]
Delegated jurisdiction of 1st level courts assigned by
SC to hear and decide cadastral and land registration
cases covering
a. Lots where there is no controversy or opposition
b. Contested lots the value of which does not
exceed P100,000, the value is to be ascertained:
1. By the claimant’s affidavit
2. By agreement of the respective claimants, if
there are more than one; or
3. From corresponding tax declaration of the
real property
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

MTC decisions in cadastral and land registration cases
are appealable in the same manner as RTC decisions
[Sec. 34, B.P. 129, as amended by R.A. 7691]
1st level courts
1. Metropolitan Trial Court – in each metropolitan
area established by law [Sec. 25, B.P. 129],
particularly Metro Manila [Sec. 27, B.P. 129]
2. Municipal Trial Courts in Cities – In every city
not part of a metropolitan area [Sec. 29, B.P. 129]
3. Municipal Circuit Trial Court – in each circuit
comprising such cities and municipalities
grouped together pursuant to law [Sec. 25, B.P.
129]
4. Municipal Trial Courts – in municipalities not
comprised within a metropolitan area and a
municipal circuit [Sec. 30, B.P. 129]
7. Shari’a Courts
Exclusive original jurisdiction of Shari’a District
Courts
a. All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
b. All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration of appointment administrators or
executors regardless of the nature or aggregate
value of the property;
c. Petitions for the declaration of absence and death
for the cancellation and correction of entries in
the Muslim Registries;
d. All actions arising from the customary contracts
in which the parties are Muslims, if they have not
specified which law shall govern their relations;
and
e. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all other
auxiliary writs and processes in aid of its appellate
jurisdiction
[Art. 143(1), P.D. 1083]
Except those for forcible entry and unlawful
detainer, which shall fall under the exclusive
jurisdiction of the Municipal Circuit Court (now
MTC under B.P. 129, as amended by R.A. 7691]
c. All special civil actions for interpleader or
declaratory relief wherein the parties are Muslims
or the property involved belongs exclusively to
Muslims
[Art. 143(2), P.D. 1083]
Appellate jurisdiction of Shari’a District Courts
Over all cases tried in Shari’a Circuit Courts within
their territorial jurisdiction [Art. 144, P.D. 1083]
Exclusive original jurisdiction of Shari’a Circuit
Courts
a. All cases involving offenses defined and
punished under P.D. 1083
b. All civil actions and proceedings between parties
who are Muslims or have been married in
accordance with Art. 13, P.D. 1083 involving
disputes relating to
1. Marriage
2. Divorce recognized under P.D. 1083
3. Betrothal or breach of contract to marry
4. Customary dowry (mahr)
5. Disposition and distribution of property
upon divorce
6. Maintenance and support, and consolatory
gifts (mut’a); and
7. Restitution of marital rights
c. All cases involving disputes relative to communal
properties
[Art. 155, P.D. 1083]
The Shari’a District Court or the Shari’a Circuit Court
shall constitute an Agama Arbitration Council [Art.
160, P.D. 1083] in cases of divorce by talaq and tafwid
[Art. 161, P.D. 1083] and subsequent marriages [Art.
162, P.D. 1083] The Shari’a Circuit Court may also
constitute a council to settle amicably cases involving
offenses against customary law which can be settled
without formal trial [Art. 163, P.D. 1083]

Concurrent jurisdiction of Shari’a District Courts

(concurrent with existing civil courts)
a. Petitions of Muslim for the constitution of the
family home, change of name and commitment
of an insane person to an asylum
b. All other personal and legal actions not
mentioned in par. (d) of the immediately
preceding topic, wherein the parties involved are
Muslims

Page 22 of 481
U.P. LAW BOC CIVIL PROCEDURE
F. Jurisdiction over Cases
Covered by The Revised
Rules of Procedure for
Small Claims Cases, The
Revised Rules on
Summary Procedure, and
Barangay Conciliation
Cases covered by Revised Rules of Procedure for
Small Claims Cases
The Revised Rules shall govern the procedure in
actions before the MeTCs, MTCCs, MTCs and
MCTCs for payment of money where the value of the
claim does not exceed PHP 200,000 exclusive of
interest and costs [Sec. 2, A.M. No. 08-8-7-SC,
February 1, 2016]
Note: The limit has been raised to PHP 300,000, to
take effect on August 1, 2018 [A.M. No. 08-8-7-SC,
July 10, 2018]. However, this was superseded in a later
resolution, amending the jurisdictional amount of
these courts under Republic Act No. 7691 to PHP
400,000 for the MeTCs and PHP 300,000 for the
MTCCs, MTCs, and MCTCs, exclusive of interest
and costs, to take effect on April 1, 2019. [SC
Resolution, February 26, 2019]
Applicability
All actions which are purely civil in nature, where the
claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money
The claim or demand may be:
1. For money owed under a contract of lease, loan,
services, sale, or mortgage
2. For liquidated damages arising from contracts
3. The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417 of the LGC
[Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016]
Cases covered by Rules on Summary Procedure
1. All cases of forcible entry and unlawful detainer
(FEUD), irrespective of the amount of damages
or unpaid rentals sought to be recovered
Attorney’s fees awarded shall not exceed PHP
20,000
Page 23 of 481
REMEDIAL LAW
All other cases, except probate proceedings
2.
where the total amount of the plaintiff‘s claim
does not exceed PHP 100,000 (outside Metro
Manila) or PHP 200,000 (in Metro Manila),
exclusive of interest and costs
[Sec. 1, Revised Rule on Summary Procedure, as
amended by A.M. No. 02-11-09-SC]
Cases covered by Barangay Conciliation
The Lupon of each barangay shall have the authority
to bring together the parties actually residing in the
same municipality or city for amicable settlement of
all disputes.
Except:
1. Where one party is the government or any
subdivision or instrumentality thereof
2. Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions
3. Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding P5,000
4. Offenses where there is no private offended party
5. Where the dispute involves real properties
located in different cities or municipalities unless
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
6. Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest of justice
or upon the recommendation of the Secretary of
Justice
[Sec. 408, Local Government Code]
8. Any complaint by or against corporations,
partnerships, or juridical entities, since only
individuals shall be parties to barangay
conciliation proceedings either as complainants
or respondents [Section 1, Rule VI, Katarungang
Pambarangay Rules; also see SC Administrative
Circular No. 14-93]
9. Disputes where urgent legal action is necessary to
prevent injustice from being committed or
further continued, specifically:
a. A criminal case where the accused is under
police custody or detention
b. A petition for habeas corpus by a person
illegally detained or deprived of his liberty or
one acting in his behalf
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c. Actions coupled with provisional remedies,

such as preliminary injunction, attachment,
G. Totality Rule
replevin and support pendente lite
d. Where the action may be barred by the For purposes of determining jurisdiction over the
Statute of Limitations case, where there are several claims or causes of
10. Labor disputes or controversies arising from actions between the same or different parties,
employer-employee relationship embodied in the same complaint, the amount of the
11. Where the dispute arises from the CARL demand shall be the totality of the claims in all
12. Actions to annul judgment upon a compromise the causes of action, irrespective of whether the
which may be directly filed in court causes of action arose out of the same or different
[Supreme Court Administrative Circular No. 14-93] transactions [Sec. 33[1], B.P. 129, as amended by R.A.
7691]
Note: Barangay conciliation is a condition precedent for
filing a case. The failure to comply with a condition
precedent is a ground for a motion to dismiss under
Sec. 1(j), Rule 16 but the dismissal is without prejudice
[Sec. 5, Rule 16]

Page 24 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

III. CIVIL • Procedure in the Court of Appeals - Rule 44 to

Rule 55
PROCEDURE •
•
Procedure in the SC - Rule 56
Provisional Remedies - Rule 57 to Rule 61

A. Actions 2. Meaning of Special Civil

An action is a formal demand of one's right in a court
of justice in the manner prescribed by the court or by
the law. It is the method of applying legal remedies
according to definite established rules [Natcher vs Court
of Appeals, G.R. No. 133000 (2001)]
Actions
One which is subject to the specific rules prescribed
for a special civil action but also governed by the rules
for ordinary civil actions [Sec. 3(a), par. 2, Rule 1]

A legal and formal demand of one’s right from Rule 62 to Rule 71 provide for special civil actions.
another person made and insisted upon in a court of However, despite having particular rules which
justice. The determinative operative act, which govern the special civil actions, the rules for ordinary
converts a claim into an action, is its filing with a court civil action still apply.
of justice [1 Riano 212, 2014 Bantam Ed.]
There are 10 special civil actions
In general: kinds of civil actions a. Interpleader - Rule 62
1. As to place b. Declaratory Relief and Similar Remedies - Rule
a. Transitory –One the venue of which is 63
dependent generally upon the residence of c. Review of Judgments and Final Orders or
the parties regardless of where the cause of Resolutions of COMELEC and COA - Rule 64
action arose. Example. Personal action. d. Certiorari, Prohibition and Mandamus - Rule 65
b. Local - One which is required by the Rules e. Quo warranto - Rule 66
to be instituted in a particular place in the f. Expropriation - Rule 67
absence of an agreement to the contrary. g. Foreclosure of Real Estate Mortgage - Rule 68
Example: Real action h. Partition - Rule 69
[1 Regalado 24, 2010 Ed.] i. Forcible Entry and Unlawful Detainer - Rule 70
2. As to object j. Contempt - Rule 71
a. Action in rem
b. Action quasi in rem 3. Meaning of Criminal
c. Action in personam
3. As to foundation Actions
a. Real
b. Personal One by which the State prosecutes a person for an act
or omission punishable by law [Sec. 3(b), Rule 1]
1. Meaning of Ordinary Civil
Actions 4. Civil Action v. Special
Proceedings
One which is governed by the rules for ordinary civil
actions [Sec. 3(a), par. 2, Rule 1] Civil Action Special Proceeding
One by which a party
Rules for Ordinary Civil Actions refer to Rule 2 sues another for the
Remedy by which a
(Cause of Action) until Rule 61 (Provisional enforcement or
party seeks to establish
Remedies). protection of a right, or
a status, a right, or a
• General Rules on Ordinary Civil Action - Rule the prevention or
particular fact [Sec. 3(c),
2 to Rule 5 redress of a wrong
Rule 1]
• Procedure in Regional Trial Courts - Rule 6 to [Sec. 3(a), par. 1, Rule
Rule 39 1]
• Appeals - Rule 40 to Rule 43

Page 25 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

5. Personal Actions and Real A personal action is ‘transitory,’ i.e. its venue
depends upon the residence of the plaintiff or of the
Actions defendant, at the option of the plaintiff [Sec. 2, Rule
4; BPI v. Hontanosas, G.R. No. 157163 (2014)]
Why distinction is important
The distinction is important for purposes of 6. Local and Transitory
determining venue: The question whether or not
venue has been properly laid depends to a great extent Actions
on the kind of action (real or personal) presented by
the Complaint [PICOP v. Samson, G.R. No. L-30175 Local Action Transitory Action
(1975)] Transitory action is one
Local action is one
which may be filed in
Real action which has to be filed in
the residence of the
It is an action affecting title to or possession of real the place where the
plaintiff or defendant,
property, or interest therein [See Sec. 1, Rule 4] property is located
at the option of the
[Sec.1, Rule 4]
plaintiff [Sec. 2, Rule 4]
Examples: partition or condemnation of, or One that could be One that could be
foreclosure of mortgage on, real property [Go v. United instituted in one prosecuted in any one
Coconut Planters Bank, G.R. No. 156187 (2004)] specific place [Manila of several places
Railroad v. Attorney- [Manila Railroad v.
A real action is ‘local,’ i.e. its venue depends upon the General, G.R. No. L- Attorney-General, G.R.
location of the property involved in the litigation [Sec. 6287 (1911)] No. L-6287 (1911)]
1, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)] Its venue depends
Venue depends upon
upon the residence of
Not every action involving real property is a real the location of the
the plaintiff or of the
action because the realty may only be incidental property involved in
defendant, at the
to the subject matter of the suit the litigation [BPI v.
option of the plaintiff
In the cases of Heirs of Bautista v. Lindo [G.R. No. Hontanosas, G.R. No.
[BPI v. Hontanosas, G.R.
208232 (2014)] and Olivarez Realty vs Castillo [G.R. No. 157163 (2014)]
No. 157163 (2014)]
196251 (2014)], the SC held that the conveyance of
real property was only incidental to the determination Why distinction is important
of matters incapable of pecuniary estimation. The The determination of whether an action is local or
cases were deemed personal actions because the transitory is necessary to determine the proper venue
principal action or remedy sought does not involve of the action [Sec.1, Rule 4 in relation to Sec. 2, Rule
title to or possession of real property. The case of 4]
Heirs of Bautista involved a complaint to redeem a
land subject of a free patent and the case of Olivarez Basis of distinction
involved an action for rescission of contract involving If action is founded on privity of contract between
real property. parties, then the action is transitory [De la Cruz v. El
Seminario de la Archidiocesis de Manila, G.R. No. L-5402
Personal action (1911)]
It refers to all other actions which does not affect title
to or possession of real property or interest therein But if there is no privity of contract and the action is
are personal action [Sec. 2, Rule 4] founded on privity of estate only, such as a covenant
that runs with the land in the hands of remote
Personal action is one brought for the recovery of grantees, then the action is local and must be brought
personal property, for the enforcement of some in the place where the land lies [De la Cruz v. El
contract or recovery of damages for its breach, or for Seminario de la Archidiocesis de Manila, G.R. No. L-5402
the recovery of damages for the commission of an (1911)]
injury to the person or property [Go v. United Coconut
Planters Bank, G.R. No. 156187 (2004)]

COMPARE the specific enumeration in the Go case

to Sec. 2, Rule 4.

Page 26 of 481
U.P. LAW BOC
7. Actions in rem, in personam,
and quasi in rem
Why distinction is important
• To determine the binding effect of a decision
the court may render over a party, whether
Actions in re, in personam, and quasi in rem
Action in rem
Action against the thing or res obligations brought against
itself, instead of against the
person [Hernandez v. Rural
Definition
Bank of Lucena, Inc. G.R. No.
L-29791, (1978)]
Not a prerequisite to confer
jurisdiction on the court,
Jurisdiction
provided that the latter has
over the
jurisdiction over the res [Lucas service of summons [Lucas vs
person
v. Lucas, G.R. No. 190710
(2011)]
Jurisdiction over the res is
acquired either (a) by the
seizure of the property under
legal process, whereby it is
brought into actual custody of
How
the law, or (b) as a result of
jurisdiction
the institution of legal
is acquired
proceedings, in which the
power of the court is
recognized and made effective
[Lucas v. Lucas, G.R. No.
190710 (2011)]
The decision is binding as
Binding
against the whole world
effect of
[Paderanga vs Buissan, G.R. No.
decisions
49475 (1993)]
Petition for adoption,
annulment of marriage, or
Examples correction of entries in the
birth certificate [Lucas v. Lucas, 221, 2014 Bantam Ed.]
G.R. No. 190710 (2011)]
CIVIL PROCEDURE
impleaded or not [Paderanga v. Buissan, GR. No.
49475 (1993)]
• To determine whether or not jurisdiction over
the person of the defendant is required, and the
type of summons to be employed [1 Riano 228,
2014 Bantam Ed.]
Action in personam
One which seeks to enforce
personal rights and
the person. Its purpose is to
impose, through the judgment
of the court, some liability
directly upon the person of
the defendant [Paderanga vs
Buissan, GR. No. 49475
(1993)]
Necessary for the court to
validly try and decide the case
which can be made through
Lucas, G.R. No. 190710
(2011)]
Jurisdiction is acquired
through service of summons
as provided in the Rule 14
Any judgment therein is
binding only upon the parties
properly impleaded [Paderanga
vs Buissan, GR. No. 49475
(1993)]
Action for a sum of money;
action for damages [1 Riano
Page 27 of 481
REMEDIAL LAW
Action quasi in rem
Names a person as defendant,
but its object is to subject that
person's interest in a property
to a corresponding lien or
obligation [Lucas vs Lucas,
G.R. No. 190710 (2011)]
Not a prerequisite to confer
jurisdiction on the court,
provided that the latter has
jurisdiction over the res [Lucas
vs Lucas, G.R. No. 190710
(2011)]
Jurisdiction over the res is
acquired either (a) by the
seizure of the property under
legal process, whereby it is
brought into actual custody of
the law, or (b) as a result of
the institution of legal
proceedings, in which the
power of the court is
recognized and made effective
[Lucas vs Lucas, G.R. No.
190710 (2011)]
Judgments therein are binding
only upon the parties who
joined in the action [Macasaet
v. Co, G.R. No. 156759
(2013)]
Attachment, foreclosure of
mortgage, action for partition
and action for accounting [1
Riano 227, 2014 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

B. Cause of Action
8. Independent civil action
An independent civil action may be brought in the 1. Meaning of Cause of Action
cases provided by the Civil Code
a. Art. 32 (violation of constitutional rights by a Act or omission by which a party violates a right of
public officer or employee, or a private another [Sec. 2, Rule 2]
individual)
b. Art. 33 (defamation, fraud, or physical injuries) Delict or wrongful act or omission committed by the
c. Art. 34 (refusal or failure to render aid or defendant in violation of the primary right of the
protection by a member of the police force); and plaintiff [Danfoss Inc. v. Continental Cement Corporation,
d. Art. 2176 (quasi-delict) G.R. No. 143788 (2005)]
[Sec. 3, Rule 111]
Every ordinary civil action must be based on a cause
The action may be brought by the offended party. It of action [Sec. 1, Rule 2]
shall proceed independently of the criminal action and
shall require only a preponderance of evidence. Bases of cause of action
However, the offended party cannot recover damages A cause of action stems from the sources of
twice for same act or omission charged in the criminal obligations under Art. 1156 of the CC
action [Sec. 3, Rule 111] a. Law,
b. Contract,
“Physical injuries” under Art. 33 is used in the c. Quasi-contract,
generic sense, and not in reference to the offenses d. Acts and omissions punishable by law and
defined in the Revised Penal Code. It also includes e. Quasi-delict
consummated, frustrated, and attempted homicide [Sagrada Orden etc v. NACOCO, G.R. No. L-3756
and death arising from delict [Madeja v. Hon. Caro, (1952)]
G.R. No. L-51183 (1983)]
Elements of a cause of action
a. Plaintiff’s legal right
b. Defendant’s correlative obligation to respect
plaintiff’s right
c. Defendant’s act/omission in violation of
plaintiff’s right
[Ma-ao Sugar Central v. Barrios, G.R. No. L-1539 (1947)]

When cause of action must exist

A cause of action must exist at the time of the filing
of the complaint – else, the case shall be dismissible
for being a groundless suit [Swagman Hotels and Travel
v. CA, G.R. No. 161135 (2005), reiterating Surigao
Mine Exploration v. Harris, G.R. No. L-45543 (1939)]

2. Right of Action v. Cause of

Action
Right of Action Cause of Action
The remedial right or
The delict or wrongful
right to relief granted
act or omission
by law to a party to
committed by the
institute an action
defendant in violation
against a person who
of the primary rights of
has committed a delict
the plaintiff [Racoma v.
or wrong against him

Page 28 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Right of Action Cause of Action Failure of the complaint to state a cause of action
Fortich, G.R. No. L- v. lack of cause of action
29380 (1971)] Failure to state a cause of action and lack of cause of
Right to sue as a action are really different from each other. On the one
consequence of the The delict or wrong hand, failure to state a cause of action refers to the
delict insufficiency of the pleading, and is a ground for
Whether the plaintiff dismissal under Rule 16 of the ROC. On the other
has a cause of action is hand, lack of cause [of] action refers to a situation
Whether such acts give where the evidence does not prove the cause of action
determined by the
the plaintiff a right of alleged in the pleading [Macaslang v. Zamora, G.R. No.
averments in the
action is determined by 156375 (2011)]
pleading regarding the
substantive law
acts committed by the
defendant 4. Test of Sufficiency of Cause
[1 Regalado 21, 2010 Ed.]
of Action
There can be no right of action without a cause of
action being first established [1 Regalado 21, 2010 Ed., The test of sufficiency of a cause of action rests on
see Español v. The Chairman and Members of the Board of whether, hypothetically admitting the facts alleged in
Administrators, Philippine Veterans Administration, G.R. the complaint to be true, the court can render a valid
No. L-44616 (1985)] judgment upon the same, in accordance with the
prayer in the complaint [Heirs of Maramag v. Maramag,
For an instance where the right of action of a plaintiff G.R. No. 181132 (2009)]
was suspended, see Ma-ao Sugar Central v. Barrios [G.R.
No. L-1539 (1947)] where the SC held that an E.O. However, there is no hypothetical admission of the
providing for a debt moratorium not only suspended veracity of the allegations if
the execution of the judgment that the court could a. The falsity of the allegations is subject to judicial
render so far as it ordered the payment of debts and notice;
other monetary obligations, but also suspended the b. The allegations are legally impossible;
filing of suit in the courts of justice for the c. The allegations refer to facts which are
enforcement of the payment of debts and other inadmissible in evidence;
monetary obligations, if timely objection is set up by d. By the record or document in the pleading, the
the defendant debtor. allegations appear unfounded; or
e. There is evidence which has been presented to
the court by stipulation of the parties or in the
3. Failure of the Complaint to course of hearings related to the case
State a Cause of Action [Heirs of Maramag v. Maramag, G.R. No. 181132 (2009)]

Ground for dismissal How to determine existence of cause of action

A motion to dismiss may be made on the ground that
the pleading asserting the claim states no cause of
action [Sec. 1(g), Rule 16]
The cause of action must unmistakably be stated or
alleged in the complaint or all the elements required
by substantive law must clearly appear from a mere
reading of the complaint [1 Riano 240, 2014 Bantam
Ed.]
The complaint must contain a concise statement of
the ultimate or essential facts constituting the
plaintiff’s cause of action. The focus is on sufficiency,
not veracity, of the material allegations [Anchor Savings
Bank v. Furigay, G.R. No. 191178 (2013)]
General rule: Determination shall be based only on
facts alleged in the complaint and from no other,
and the court cannot consider other matters aliunde
[Manaloto v. Veloso III, G.R. No. 171635 (2010)]
Exception: Instances when the SC considered matters
aside from the facts alleged in the complaint, such as:
a. Documents attached to the complaint [Agrarian
Reform Beneficiaries Association v. Nicolas, G.R. No.
168394 (2008)] – this case refers to actionable
documents which by express provision of the
ROC are deemed part of the pleading.
b. Appended annexes, other pleadings, and
admissions on record [Zepeda v. China Banking
Corp., G.R. No. 172175 (2006)] – the
jurisprudence establishing this supposed

Page 29 of 481
U.P. LAW BOC CIVIL PROCEDURE
exception ultimately points to dismissals based
on a lack of a cause of action, opposed to a
failure of the complaint to state a cause of action.
5. Splitting a Single Cause of
Action and its Effects
The act of instituting two or more suits on the basis
of the same cause of action [Sec. 4, Rule 2], or splitting
a single cause of action, is prohibited by the Rules.
A party may not institute more than one suit for a
single cause of action [Sec. 3, Rule 2]
Splitting a single cause of action is the act of dividing
a single or indivisible cause of action into several parts
or claims and instituting two or more actions upon
them. A single cause of action or entire claim or
demand cannot be split up or divided in order to be
made the subject of two or more different actions
[Chu v. Sps. Cunanan, G.R. No. 156185 (2011)]
Test to determine a “single” cause of action
The tests to ascertain whether two suits relate to a
single or common cause of action are:
a. Whether the same evidence would support and
sustain both causes of action (Same Evidence
Test)
b. Whether the defenses in one case may be used to
substantiate the complaint in the other
c. Whether the cause of action in the second case
existed at the time of filing of the first complaint
[Umale v. Canoga Park Development Corp., G.R. No.
167246 (2011)]
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 the rule against the splitting of
a cause of action [City of Bacolod v. SM Brewery, G.R.
No. L-25134 (1969)]
Amendment as remedy if other reliefs not
included in the complaint
In the event that a plaintiff has omitted to include in
the complaint one or several other reliefs to which he
may be entitled, the proper remedy of the plaintiff is
not to institute another or several other actions –
instead he should move to amend the complaint to
include the omitted relief or reliefs [Bayang v. CA, G.R.
No. L-53564 (1987)]
Page 30 of 481
REMEDIAL LAW
Dismissal as effect of splitting of cause of action
The filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of
the others [Sec. 4, Rule 2]
Defendant’s remedy
File a motion to dismiss under Rule 16 on the ground
that
a. There is another action pending between the
same parties for the same cause [Sec. 1(e), Rule
16]; or
b. The cause of action is barred by a prior judgment
[Sec. 1(f), Rule 16]
Rationale
a. Prevent repeated litigation between the same
parties in regard to the same subject or
controversy
b. 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)
c. Avoid the costs and expenses incident to
numerous suits
[City of Bacolod v. SM Brewery, G.R. No. L-25134
(1969)]
6. Joinder and Misjoinder of
Causes of Action
Joinder of causes of action
The assertion of as many causes of action as a party
may have against another in one pleading alone [Sec.
5, Rule 2]
It is the process of uniting two or more demands or
rights of action in one action [1 Riano 258-259, 2014
Bantam Ed.]
Ratio
To avoid a multiplicity of suits and to expedite
disposition of litigation at minimum cost [Ada v.
Baylon, G.R. No. 182435 (2012)]
Rule merely permissive
The rule however is purely permissive as there is no
positive provision of law or any rule of jurisprudence
which compels a party to join all his causes of action
and bring them at one and the same time [Nabus v.
CA, G.R. No. 91670 (1991)]
U.P. LAW BOC CIVIL PROCEDURE
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 [1 Regalado 83,
2010 Ed.]
Requisites
a. The party joining the causes of action shall
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 or
jurisdictions, the joinder may be allowed in the
RTC provided one of the causes of action are
within that court’s jurisdiction and venue lies
therein
d. 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
(“totality rule”)
[Sec. 5, Rule 2]
Misjoinder of causes of action
There is misjoinder of causes of action when
conditions for joinder under Section 5, Rule 2 are not
met [Perez v. Hermano, G.R. No. 147417 (2005)]
Misjoinder not ground for dismissal
Misjoinder is not a ground for dismissal of an action
[Sec. 6, Rule 2]
Effect of misjoinder
An erroneously joined cause of action may, on motion
of a party or on the initiative of the court, be severed
and proceeded with separately [Sec. 6, Rule 2]
If there is no objection to the improper joinder or the
court did not motu proprio direct a severance, then there
exists no bar in the simultaneous adjudication of all
the erroneously joined causes of action, as long as the
court trying the case has jurisdiction over all of the
causes of action therein notwithstanding the
misjoinder [Ada v. Baylon, G.R. No. 182435 (2012)]
If the court has no jurisdiction to try the misjoined
action, then it must be severed. Otherwise,
adjudication rendered by the court with respect to it
would be a nullity [Ada v. Baylon, G.R. No. 182435
(2012)]
Page 31 of 481
REMEDIAL LAW
C. Parties to Civil Actions
Plaintiff
May refer to the claiming party, counter-claimant,
cross-claimant, or third-party plaintiff [Sec. 1, Rule 3]
Defendant
May refer to the original defending party, the
defendant in a counterclaim, the cross-defendant, or
the third (fourth, etc.)-party defendant [Sec. 1, Rule 3]
Also includes an unwilling co-plaintiff, any party
who should be joined as plaintiff but whose consent
cannot be obtained [Sec. 10, Rule 3]
Who may be parties
1. Natural persons
2. Juridical persons
3. Entities authorized by law
[Sec. 1, Rule 3]
Judicial persons
1. The State and its political subdivisions
2. Other corporations, institutions and entities for
public interest or public purpose, created by law,
and
3. Corporations, partnerships, and associations for
private interest or purpose to which the law
grants a judicial personality, separate and distinct
from that of each shareholder, partner, or
member
[Art. 44, Civil Code]
Entities authorized by law
1. A corporation by estoppel is precluded from
denying its existence, and the members are liable
as general partners [Sec. 21, Corporation Code]
2. A partnership with capital of at least P3,000
which fails to comply with the registration
requirements is liable as a partnership to third
persons [Arts. 1768, 1772, Civil Code]
3. The estate of a deceased person is a juridical
entity that has a personality of its own [Nazareno
v. C.A., G.R. No. 138842 (2000), citing Limjoco v.
Intestate Estate of Fragrante, G.R. No. L-770 (1948)]
4. A legitimate labor union may sue and be sued in
its registered name [Art. 251(e), Labor Code]
5. The Roman Catholic Church may be a party; as
to its properties, the Archbishop or diocese to
which they belong may be a party [Barlin v.
Ramirez, G.R. No. 2832 (1906); Versoza v.
Fernandez, G.R. No. 32276 (1930)]
U.P. LAW BOC CIVIL PROCEDURE
6. A dissolved corporation may prosecute and
defend suits by or against it provided that the
suits (i) occur within three (3) years after its
dissolution, and (ii) the suits are in connection
with the settlement and closure of its affairs [Sec.
122, Corporation Code]
[1 Riano 264, 2014 Bantam Ed.]
Legal capacity to sue
Facts showing the capacity of a party to sue or be
sued, or the authority of a party to sue or be sued in a
representative capacity, or the legal existence of an
organized association of persons that is made a party,
must be averred [Sec. 4, Rule 8]
1. Real Parties in Interest;
Indispensable Parties;
Representatives as Parties;
Necessary Parties; Indigent
Parties; Alternative
Defendants
a. Real Parties in Interest
The party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the
avails of the suit [Sec. 2, Rule 3]
Definition of interest
Material interest or an interest in issue to be affected
by the decree or judgment of the case, as distinguished
from mere curiosity about the question involved [Ang
v. Sps. Ang, G.R. No. 186993 (2012)]
Nature of interest
The interest must be real, which a present and
substantial interest as distinguished from a mere
expectancy or a future, contingent, subordinate, or
consequential interest [Rayo v. Metrobank, G.R. No.
165142 (2007)]
It should be material and direct, as distinguished
from a mere incidental interest [Mayor Rhustam
Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)]
Why necessary to determine the real party in
interest
General rule: Every action must be prosecuted or
defended in the name of the real party in interest [Sec.
2, Rule 3]
Page 32 of 481
REMEDIAL LAW
Exception: Unless otherwise provided by law or the
Rules [Sec. 2, Rule 3]
Spouses as parties
General rule: Husband and wife shall sue and be sued
jointly
Exception: As provided by law
[Sec. 4, Rule 3]
This is an illustration of joinder of pro forma parties
required by the Rules. The propriety of suits by or
against the spouses should now take into account the
pertinent provisions of the Family Code [1 Regalado
90, 2010 Ed.]
Failure to name a real party in interest
If the suit is not brought in the name of or against the
real party-in-interest, a Motion to Dismiss may be
filed on the ground that the complaint “states no
cause of action.” [Balagtas v. CA, G.R. No. 109073
(1999)]
Remedies
1. Amendment of pleadings [Alonso v. Villamor,
G.R. No. L-2352 (1910)]; or
2. Complaint may be deemed amended to include
the real party-in-interest [Balquidra v. CFI Capiz,
G.R. No. L-40490 (1977)]
When real party-in-interest bound despite not
being formally impleaded
As an exception, the real litigant may be held bound
as a party even if not formally impleaded provided he
had his day in court [Albert v. University Publishing Co.,
G.R. No. L-9300 (1958)]
b. Indispensable Parties
A real party-in-interest without whom no final
determination can be had of an action [Sec. 7, Rule 3]
General rule: joinder of parties is permissive [Sec. 6,
Rule 3]
Exception: joinder of a party becomes compulsory
when the one involved is an indispensable party [Sec.
7, Rule 3]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Indispensable Parties Necessary Parties

c. Representatives as Parties avoid multiple
litigations [1 Riano 281,
A representative may be a trustee of an express trust, 2014 Bantam Ed.]
a guardian, an executor or administrator, or a party Final decree can be had
authorized by law or the ROC [Sec. 3, Rule 3] in a case even without a
necessary party because
Beneficiary to be included in the title of the case his interests are
Where the action is allowed to be prosecuted or separable from the
defended by a representative or someone acting in a interest litigated in the
fiduciary capacity, the beneficiary shall be included in case [Chua v. Torres,
the title of the case and shall be deemed to be the real G.R. No. 151900
party in interest [Sec. 3, Rule 3] (2005); Seno v. Mangubat,
G.R. No. L-44339
Agent acting on his own name and for benefit of (1987)]
undisclosed principal
e. Indigent Parties
General rule: An agent acting in his own name and for
the benefit of an undisclosed principal may sue or be Definition
sued without joining the principal One who has no money or property sufficient and
available for food, shelter, and basic necessities [Sec.
Exception: When the contract involves things 21, Rule 3]
belonging to the principal [Sec. 3, Rule 3]
Compare with:
Minor or incompetent person as party 1. Indigent litigants whose gross income and that
A minor or a person alleged to be incompetent may of their immediate family do not exceed an
sue or be sued, with the assistance of his father, amount double the monthly minimum wage of
mother, guardian, or if he has none, a guardian ad litem an employee, and who does not own real
[Sec. 5, Rule 3] property with a fair market value of more than
PHP300,000 shall be exempt from the payment
d. Necessary Parties of legal fees.
2. The legal fees shall be a lien on any judgment
Not an indispensable party but ought to be joined as rendered in the case favorably to the indigent
a party if complete relief is to be accorded as to those litigant, unless the court otherwise provides
already parties, or for a complete determination or 3. To be entitled to the exemption herein provided,
settlement of the claim subject of the action [Sec. 8, the litigant shall execute an affidavit that he and
Rule 3] his immediate family do not earn a gross income
abovementioned, nor they own any real property
Indispensable Parties Necessary Parties with the assessed value aforementioned,
Must be joined under Should be joined supported by an affidavit of a disinterested
any and all conditions whenever possible person attesting to the truth of the litigant’s
[Borlasa v. Polistico, G.R. [Borlasa v. Polistico, G.R. affidavit.
No. 22909 (1925)] No. 22909 (1925)] [Sec. 19, Rule 141]
Presence is not
mandatory because his Benefits to indigent parties
Presence is mandatory, interest is separable 1. Include an exemption from payment of docket
he must be joined from that of the and other lawful fees, and of transcripts of
because the court indispensable party. He stenographic notes which the court may order to
cannot proceed without has to be joined be furnished him
him [1 Riano 281, 2014 whenever possible to 2. Amount of the docket and other lawful fees
Bantam Ed.] afford complete relief which the indigent was exempted from paying
to those who are shall be a lien on any judgment rendered in the
already parties and to case favorable to the indigent, unless the court
otherwise provides

Page 33 of 481
U.P. LAW BOC CIVIL PROCEDURE
[Sec. 3, Rule 21]
Consequence if party not actually indigent
If the party is not actually indigent under this Rule,
the proper docket and other lawful fees shall be
assessed and collected by the clerk of court. If
payment is not made within the time fixed by the
court, execution shall issue or the payment thereof,
without prejudice to such other sanctions as the court
may impose [Sec. 3, Rule 21]
COMPARE WITH “indigent litigants”: Any
falsity in the affidavit of a litigant or a disinterested
party shall be sufficient cause to dismiss the complaint
or action or to strike out the pleading of that party,
without prejudice to whatever criminal liability may
have been incurred [Sec. 18, Rule 141]
When authority to litigate as indigent litigant a
matter of right
When an application to litigate as an indigent litigant
is filed, the court shall scrutinize the affidavits and
supporting documents to determine if the applicant
complies with the standards prescribed in Sec. 19,
Rule 141. If so, the authority to litigate as indigent
litigant is automatically granted and the grant is a
matter of right [Sps. Algura v. City of Naga, G.R. No.
150135 (2006)]
When requirement under Sec. 19, Rule 141 not
met
However, if the trial court finds that one or both
requirements have not been met, then it would set a
hearing to enable the applicant to prove that the
applicant complies with Sec. 21, par. 1, Rule 3. The
adverse party may adduce countervailing evidence.
The trial court will then rule on the application.
In addition, Sec. 21, Rule 3 also provides that the
adverse party may later still contest the grant of such
authority at any time before judgment is rendered by
the trial court. If the court determines after hearing,
that the party declared as an indigent is in fact not, the
proper docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment is not
made within the time fixed by the court, execution
shall issue or the payment of prescribed fees shall be
made, without prejudice to such other sanctions as
the court may impose [Sps. Algura v. City of Naga, G.R.
No. 150135 (2006)]
Page 34 of 481
REMEDIAL LAW
Summary of rules for indigent litigants
If the applicant for exemption meets the salary and
property requirements under Sec. 19 of Rule 141,
then the grant of the application is mandatory.
On the other hand, when the application does not
satisfy one or both requirements, then the application
should not be denied outright; instead, the court
should apply the "indigency test" under Sec. 21,
Rule 3 and use its sound discretion in determining the
merits of the prayer for exemption [Sps. Algura v. City
of Naga, G.R. No. 150135 (2006)]
f. Alternative Defendants
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 [Sec. 13, Rule 3]
2. Compulsory and Permissive
Joinder of Parties
a. Compulsory Joinder
Parties in interest without whom no final
determination can be had of an action (i.e.
indispensable parties) shall be joined either as
plaintiffs or defendants [Sec. 7, Rule 3]
Effect of non-joinder of indispensable parties
The absence of an indispensable party renders all
subsequent actions of the trial court null and void for
want of authority to act, not only as to the absent
parties but even as to those present [Moldes v.
Villanueva, G.R. No. 161955 (2012)]
Effect of non-joinder of necessary parties
Non-joinder of a necessary party does not prevent the
court from proceeding in the action. The judgment
rendered therein shall not prejudice the rights of such
necessary party [Sec. 9, par. 3, Rule 3]
Remedy in case of non-joinder of necessary
parties
When a pleading asserting a claim omits to join a
necessary party, the pleader must:
1. Set forth the name of the necessary party, if
known, and
2. State the reason why he is omitted
U.P. LAW BOC CIVIL PROCEDURE
[Sec. 9, par. 1, Rule 3]
b. Permissive Joinder
All persons in whom or against whom any right to
relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may
except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint,
where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may be
just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with any
proceedings in which he may have no interest [Sec. 6,
Rule 3]
Requisites
1. The right to relief arises out of the same
transaction or series of transactions
2. There is a question of law or fact common to all
the plaintiffs or defendants, and
3. Such joinder is not otherwise proscribed by the
provisions of the ROC on jurisdiction and venue
[1 Regalado 91, 2010 Ed.]
Notes:
1. Compare to joinder of causes of action where it
is enough if the causes of action arise out of the
same contract, as there is no need for a common
question of fact or law
2. A party may in one pleading assert, in the
alternative or otherwise, as many causes of action
as he may have against an opposing party. One of
the conditions for such joinder of causes of
action is that the party joining the causes of
action shall comply with the rules on joinder of
parties [Sec. 5, Rule 2]
3. Misjoinder and Non-Joinder
of Parties
Misjoinder
When one is made a party to the action although he
should not be impleaded [1 Riano 285, 2014 Bantam
Ed.]
Non-joinder
When one is supposed to be joined but is not
impleaded in the action [1 Riano 285, 2014 Bantam
Ed.]
Page 35 of 481
REMEDIAL LAW
Effect of misjoinder or non-joinder of parties
Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action [Sec. 11, Rule 3]
Effect of misjoinder or non-joinder of parties;
when ordered by the court
Non-joinder of an indispensable party is not a
ground for outright dismissal of the action. If the
plaintiff refused to implead an indispensable party
despite order of the court, that court may dismiss
the complaint for the plaintiff’s failure to comply
with the order. [Pamplona Plantation v. Tinghil, G.R.
No. 159121 (2005)]
Should the court find the reason for the non-joinder
of a necessary party unmeritorious, it may order the
inclusion of such necessary party, if jurisdiction over
his person may be obtained. Failure to comply with
such order without justifiable cause shall be deemed a
waiver of the claim against such party [Sec. 9, pars.
1-2, Rule 3]
Parties may be dropped or added by order of the court
on motion of any party or on its own initiative at any
stage of the action and on such terms as are just [Sec.
11, Rule 3]
Objections to defects in parties
Objections should be made at the earliest
opportunity. At the moment such defect becomes
apparent, a motion to strike the names of the parties
must be made. Thus, objections to misjoinder cannot
be raised for the first time on appeal [Lapanday
Agricultural & Development Corporation v. Estita, G.R.
No. 162109 (2005)]
4. Class Suits
Requisites
a. Subject matter of the controversy is one of
common or general interest to many persons
b. The persons are so numerous that it is
impracticable to join them all as parties
c. The court finds a number of them sufficiently
numerous and representative of the class as to
fully protect the interests of all concerned
d. The representative sues or defends for the benefit
of all.
[Sec. 12, Rule 3]
There is no class suit in an action filed by associations
of sugar planters to recover damages in behalf of
individual planters for an allegedly libelous article in
an international magazine. There is no common or
U.P. LAW BOC CIVIL PROCEDURE
general interest in the reputation of a specific
individual. Each of the sugar planters has a separate
and distinct reputation in the community not shared
by the others [Newsweek, Inc. v. Intermediate Appellate
Court, G.R. No. 63559 (1986)]
Right to intervene
In a class suit, any party in interest shall have the right
to intervene to protect his individual interest [Sec. 12,
Rule 3]
No dismissal upon the instance of plaintiff or due
to compromise
A class suit shall not be dismissed or compromised
without the approval of the court [Sec. 2, Rule 17]
Taxpayer’s suit or derivative suit is in the nature
of class suit
A taxpayer's suit or a stockholder's derivative suit is in
the nature of a class suit, although subject to the other
requisites of the corresponding governing law
especially on the issue of locus standi [1 Regalado 99,
2010 Ed.]
Derivative suit
A derivative suit is an action brought by a stockholder
on behalf of the corporation to enforce corporate
rights against the corporation’s directors, officers or
other insiders. Under Sections 23 and 36 of the
Corporation Code, the directors or officers, as
provided under the by-laws, have the right to decide
whether or not a corporation should sue. Since these
directors or officers will never be willing to sue
themselves, or impugn their wrongful or fraudulent
decisions, stockholders are permitted by law to bring
an action in the name of the corporation to hold these
directors and officers accountable. In derivative suits,
the real party in interest is the corporation, while the
stockholder is a mere nominal party [Ang v. Ang, G.R.
No. 201675 (2013)]
In a derivative action, the real party in interest is the
corporation itself, not the shareholders who actually
instituted it [Lim v. Lim Yu, G.R. No. 138343 (2001)]
Only general interest in the subject matter of
litigation required
A class suit does not require a commonality of interest
in the questions involved in the suit. What is required
by the Rules is a common or general interest in the
subject matter of the litigation [Mathay v. Consolidated
Bank & Trust Company, G.R. No. L-23136 (1974)]
Page 36 of 481
REMEDIAL LAW
5. Suits Against Entities
Without Juridical Personality
Requisites
a. There are 2 or more persons not organized as a
juridical entity
b. They enter into a transaction
[Sec. 15, Rule 3]
Persons associated in an entity without juridical
personality may be sued under the name by which
they are generally or commonly known [Sec. 15, Rule
3]
Note: The authority to be a party under Sec. 15, Rule
3 is confined only to being a defendant and not as a
plaintiff. This is evident from the words, “they may
be used” [1 Riano 265, 2014 Bantam Ed.]
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
person in charge of the office or place of business
maintained under such name [Sec. 8, Rule 14]
6. Effect of Death of Party
Litigant
Duty of counsel upon death of client
a. Inform court of such fact within 30 days after the
death;
b. Give the name and address of the legal
representative
[Sec. 16, Rule 3]
Effect of failure to comply
Failure to comply is a ground for disciplinary action
[Sec. 16, Rule 3]
Action of court upon notice of death
Upon receipt of notice, the court shall determine if
claim is extinguished by such death.
a. Claim does not survive: substitution would not
be ordered
b. Claim survives: the court shall order the legal
representative of the deceased to appear and be
substituted for him within 30 days [Sec. 16, Rule
3]
[1 Riano 286, 2014 Bantam Ed., suggesting Aguas v.
Llemos, G.R. No. L-18107 (1962)]
U.P. LAW BOC CIVIL PROCEDURE
Survival of action
Survival depends on the nature of the action and the
damage sought.
a. Causes of action that survive
1. The wrong complained of affects primarily
and principally property and property rights
2. Injuries to the person are merely incidental
[Cruz v. Cruz, G.R. No. 173292 (2010)]
3. E.g. Actions to recover real and personal
property from the estate; actions to enforce
a lien thereon; and actions to recover
damages for an injury to person or property
[Sec. 1, Rule 88; 1 Riano 289, 2014 Bantam
Ed., citing Aguas v. Llemos, G.R. No. L-18107
(1962)]
b. Causes of action that do not survive
1. The injury complained of is personal to the
person
2. Property and property rights affected are
incidental
[Cruz v. Cruz, G.R. No. 173292 (2010)]
3. E.g. Action for support, annulment of
marriage, legal separation [1 Riano 291, 2014
Bantam Ed.]
Court may order the opposing party, within a specific
time, to procure the appointment of an administrator
or executor of the estate in the ff. cases
a. No legal representative is named; or
b. The one so named fails to appear within the
specified period.
[Sec. 16, Rule 3]
Summons to the substitute not necessary
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 [Ferreria v Vda de Gonzales,
G.R. No. L-11567 (1986)]
Effect of failure to order substitution
Failure of the court to order substitution results in
failure to acquire jurisdiction over the representative
or heirs of the deceased party. Consequently, any
judgment rendered against such deceased party shall
be null and void for lack of jurisdiction over the
persons of the legal representative or of the heirs
upon whom the trial and the judgment would be
binding [The Heirs of Vda. De Haberer v. Court of Appeals,
et al., G.R. Nos. L-42699 to L-2709 (1981) citing
Ordoveza v. Raymundo, 63 Phil. 275 (1936); Obut v. Court
of Appeals, et al., 70 SCRA 546.]
Page 37 of 481
REMEDIAL LAW
Rule in case of death or separation of party who
is a public officer
The action may be continued or maintained by or
against his successor [Sec. 17, Rule 3]
Requisites:
a. A public officer is a party to an action in his
official capacity
b. During the pendency of the action, he dies,
resigns, or otherwise ceases to hold office
c. Within 30 days after the successor takes office or
such time as may be granted by the court, any
party shows to the satisfaction of the court, that
• there is a substantial need for continuing or
maintaining such action; and
• the successor adopts or continues his
predecessor’s action, or threatens to do so
d. Before a substitution is made, the party or officer
to be affected shall be given reasonable notice of
the application therefor and accorded an
opportunity to be heard UNLESS he expressly
assents thereto
[Sec. 17, Rule 3]
Action on contractual money claims
Shall not be dismissed but shall instead be allowed to
continue until entry of final judgment [Sec. 20, Rule
3]
Requisites
a. Action is for recovery of money
b. The claim arose from express or implied contract
c. Defendant dies before the entry of final judgment
in the court in which the action was pending
[Sec. 20, Rule 3]
Effect
Since the action survives the decedent’s death,
substitution of the defendant shall be done following
the procedure prescribed by Sec. 16, Rule 3. If the
plaintiff obtains a favorable judgment, said judgment
shall be enforced following the procedure provided
for in the ROC for prosecuting claims against the
estate of a deceased person [Sec. 20, Rule 3] Because
of the rule mandating compliance with rule for
prosecuting claims against the estate of a deceased
person [Sec. 20, Rule 3], the prevailing plaintiff is not
supposed to file a motion for the issuance of an order
and writ of execution of the judgment [1 Riano 201,
2014 Bantam Ed.]
Incompetency or incapacity
If a party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the action
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

to be continued by or against the incompetent or

incapacitated person assisted by his legal guardian or
D. Venue
guardian ad litem [Sec. 18, Rule 3]
Procedural matter; not jurisdictional
Note: The party becomes incapacitated or Venue is related only to the place of trial or the
incompetent during the pendency of the action [1 geographical location in which an action or
Riano 292, 2014 Bantam Ed., citing Sec. 18, Rule 3] proceeding should be brought and does not equate to
the jurisdiction of the court [Spouses Mendiola v. CA,
Transfer of interest G. R. No. 159746 (2012)]
The action may be continue by or against the original
party, unless the court upon motion directs the person It is a procedural, not a jurisdictional matter [Phil.
to whom the interest is transferred to be substituted Banking v. Tensuan, G.R. No. 104649 (1994)]
in the action or joined with the original party [Sec. 19,
Rule 3] Choosing the venue of an action is not left entirely to
a plaintiff’s caprice; the matter is regulated by the
ROC [Ang v. Sps. Ang, G.R. No. 186993 (2012)]
7. Distinction between Real
Party in Interest and locus On dismissal; motion to dismiss necessary;
exception
standi A motu propio dismissal based on improper venue is
patently incorrect [Sec. 1, Rule 9; Dolot v. Paje, G.R.
Locus standi is defined as "a right of appearance in a No. 199199 (2013)]
court of justice on a given question." In private suits,
standing is governed by the "real-parties-in interest" Unless and until the defendant objects to the venue in
rule as contained in Sec. 2, Rule 3, which provides that a motion to dismiss, the venue cannot truly be said to
"every action must be prosecuted or defended in the have been improperly laid because the venue,
name of the real party in interest." Accordingly, the although technically wrong, may be acceptable to the
"real-party-in interest" is "the party who stands to be parties for whose convenience the rules of venue had
benefited or injured by the judgment in the suit or the been laid [Dacuycoy v. IAC, G.R. No. 74854 (1991)].
party entitled to the avails of the suit.” [David v.
Macapagal-Arroyo, G.R. No. 171396 (2006)] However, the court may effect a motu propio dismissal
for improper venue, inter alia, in actions covered by
In public suits in this jurisdiction, the SC has the Rules on Summary Procedure [Sec. 4], Rule of
adopted the “direct injury test” to determine locus Procedure for Small Claims cases [Sec. 9], and in
standi [Planters Products v. Fertiphil, G.R. No. 166006 ejectment cases [Sec. 5, Rule 70]
(2008)]
1. Venue v. Jurisdiction
Venue Jurisdiction
Place where the case is Authority to hear and
to be heard or tried determine a case
[Nocum v. Tan, G.R. [Nocum v. Tan, G.R.
No. 145022 (2005)] No. 145022 (2005)]
Procedural [Nocum v. Substantive [Nocum v.
Tan, G.R. No. 145022 Tan, G.R. No. 145022
(2005)] (2005)]
Establishes a relation
Establishes a relation
between plaintiff and
between the court and
defendant, or petitioner
the subject matter
and respondent [Nocum
[Nocum v. Tan, G.R.
v. Tan, G.R. No.
No. 145022 (2005)]
145022 (2005)]
May be changed by the Fixed by law and
written agreement of cannot be conferred by

Page 38 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Venue Jurisdiction any of the provinces wherein a parcel of land is

the parties [Nocum v. the act or agreement of situated [1 Regalado 118, 2010 Ed., citing El Hogar
Tan, G.R. No. 145022 the parties [Nocum v. Filipino v. Seva, G.R. No. 36627 (1932)]
(2005)] or waived. Tan, G.R. No. 145022
(2005)] If the parcels of land are subject of separate and
The court may dismiss distinct transactions, there is no common venue and
The court may not an action motu proporio separate actions should be laid in the [court] of the
dismiss an action motu in case of lack of province wherein each parcel of land is situated [1
proporio for improper jurisdiction over the Regalado 118, 2010 Ed., citing Mijares v. Piccio, G.R. No.
venue [Rudolf Lietz subject matter [Rudolf L-10458 (1957)]
Holdings, Inc. v. Registry Lietz Holdings, Inc. v.
of Deeds of Parañaque Registry of Deeds of 3. Venue of Personal Actions
City, G.R. No. G.R. Parañaque City, G.R.
No. 133240 (2000)] No. G.R. No. 133240 All other actions may be commenced and tried, at the
(2000)] plaintiff’s election
Jurisdiction over the a. Where the plaintiff or any of the principal
The objection to an subject matter may be plaintiffs resides, or
improper venue must raised at any stage of b. Where the defendant or any of the principal
be raised either in a the proceedings since it defendants resides, or
motion to dismiss or in is conferred by law, c. In case of a non-resident defendant, where he
the answer because of although a party may may be found.
Sec. 1, Rule 9 (defenses be barred from raising [Sec. 2, Rule 4]
and objections not it on the ground of
pleaded are deemed estoppel [La’o v. The plaintiff or the defendant must be residents of the
waived) Republic, G.R. No. place where the action has been instituted at the time
160719 (2006)] the action is commenced [Ang v. Sps. Ang, G.R. No.
[1 Riano 196, 2014 Bantam Ed.] 186993 (2012)]
Venue is procedural, not jurisdictional, and hence may Definition of residence
be waived. It is meant to provide convenience to the The residence of a person is his personal, actual or
parties, rather than restrict their access to the courts physical habitation or his actual residence or place of
as it relates to the place of trial [Heirs of Lopez v. De abode, which may not necessarily be his legal
Castro, G.R. No. 112905 (2000), cited in 1 Riano 196, residence or domicile provided he resides therein with
2014 Bantam Ed.] continuity and consistency [Boleyley v. Villanueva, G.R.
No. 128734 (1999)]
2. Venue of real actions
A corporation cannot be allowed to file personal
a. Real actions shall be commenced and tried in the actions in a place other than its principal place of
proper court which has jurisdiction over the area business unless such place is also the residence of a
wherein the real property involved, or a portion co-plaintiff or defendant [Davao Light v. CA, G.R. No.
thereof is situated. 111685 (2001)]
b. Forcible entry and detainer actions shall be
commenced and tried in the municipal court of 4. Venue of Actions Against
the municipality or city wherein the real property
involved, or a portion thereof, is situated. Non-Residents
[Sec. 1, Rule 4]
Non-resident found in the Philippines
Where the subject-matter of the action involves a. Personal action: where the nonresident
various parcels of land situated in different provinces, defendant may be found, as authorized by Sec. 2,
the venue is determined by the singularity or plurality Rule 4, but with an additional alternative venue,
of the transactions involving said parcels of land. i.e., the residence of any of the principal plaintiffs,
Thus, where said parcels are the objects of one and pursuant to Secs. 2 and 3, Rule 4 [1 Regalado 121,
the same transaction, the venue was in the [court] of 2010 Ed.]

Page 39 of 481
U.P. LAW BOC CIVIL PROCEDURE
b. Real action: in the proper court which has
jurisdiction over the area wherein the real
property involved, or a portion thereof is situated
[Sec. 1, Rule 4]
Non-resident not found in the Philippines and the
action affects
a. Personal status of plaintiff – where plaintiff
resides, or
b. Property of defendant in the Philippines – where
the property, or any portion thereof, is situated
or found [Sec. 3, Rule 4]
The court of the place where any of the principal
plaintiffs resides, or where any of the principal
defendants resides, at the election of the plaintiff has
been added to prevent plaintiff from choosing
residence of minor plaintiff or defendant as venue [1
Herrera 614, 2007 Ed.]
5. When the Rules on Venue
Do Not Apply
a. Cases where a specific rule or law provides
otherwise, or
b. Parties have validly agreed in writing before the
filing of an action on the exclusive venue thereof
[Sec. 4, Rule 4]
Examples of item (a) are
1. Quo warranto proceeding commenced by the
Solicitor General [Sec. 7, Rule 66]
2. Petition for a continuing writ of mandamus [Sec.
2, Rule 8, Rules of Procedure for Environmental
Cases]
3. Civil and criminal action for damages in written
defamation [Art. 360, RPC]
[1 Riano 200, 2014 Bantam Ed.]
6. Effects of Stipulations on
Venue
Types of stipulations on venue
a. Restrictive: suit may be filed only in the place
agreed upon
b. Permissive: parties may file their suit not only in
the place agreed upon but also in the places fixed
by law
[Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]
Page 40 of 481
REMEDIAL LAW
Requirement to be binding
To be binding, the parties must have agreed on the
exclusive nature of the venue of any prospective
action between them. The agreement of parties must
be restrictive and not permissive [1 Regalado 124, 2010
Ed.]
In the absence of qualifying or restrictive words
(e.g. “only/solely/exclusively in such court”), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules [Polytrade Corp. v. Blanco, G.R. No. L-
27033 (1969)]
When stipulation may be disregarded
The court may declare agreements on venue as
contrary to public policy if such stipulation unjustly
denies a party a fair opportunity to file suit in the place
designated by the Rules. The court shall take into
consideration the economic conditions of the parties,
the practical need to avoid numerous suits filed
against the defendant in various parts of the country
and the peculiar circumstances of the case [1 Regalado
124-125, 2010 Ed., citing Hoechst Philippines v. Torres,
G.R. No. L-44351 (1978)]
A complaint directly assailing the validity of the
written instrument itself should not be bound by the
exclusive venue stipulation contained therein and
should be filed in accordance with the general rules
on venue. To be sure, it would be inherently
consistent for a complaint of this nature to recognize
the exclusive venue stipulation when it, in fact,
precisely assails the validity of the instrument in which
such stipulation is contained [Briones v. CA and Cash
Asia, G.R. No. 204444 (2015)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2. To inform the defendant of all material facts on

E. Rules on Pleadings which the plaintiff relies to support his demand.
3. To state the theory of a cause of action which
Pleadings are the written statements of the forms the bases of plaintiff’s claim of liability
respective claims and defenses of the parties, [Tantuico v. Republic, G.R. No. 89114 (1991)]
submitted to the court for appropriate judgment [Sec.
1, Rule 6] Ultimate facts are essential facts constituting the
plaintiff’s cause of action. A fact is essential if it
Every pleading shall contain in a methodical and cannot be stricken out without leaving the statement
logical form, a plain, concise and direct statement of of the cause of action insufficient [Remitere v.
the ultimate facts on which the party pleading relies Montinola, G.R. No. L-19751 (1966)]
for his claim or defense, as the case may be, omitting
the statement of mere evidentiary facts [Sec. 1, Rule Non-ultimate facts
8] A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action or defense
Pleadings v. motions insufficient [Toribio v. Bidin, G.R. No. 57821 (1985)].
Pleadings Motion Hence, conclusions, inferences, presumptions, and
Purpose is to details of probative matters should not be alleged [1
submit a claim or Application for Regalado 173, 2010 Ed.]
defense for relief other than
Purpose
appropriate by a pleading [Sec. "Evidentiary facts" are those which are necessary to
judgment [Sec. 1, 1, Rule 15] prove the ultimate fact or which furnish evidence of
Rule 6] the existence of some other facts. They are not proper
Judgment, which as allegations in the pleadings as they may only result
Other that is not
Relief by its character in confusing the statement of the cause of action or
included in a
Sought finally disposes of the defense. They are not necessary therefor, and their
judgment
the case exposition is actually premature as such facts must be
[1 Riano 339, 2005 Ed.] found and drawn from testimonial and other evidence
[1 Regalado 173-174, 2010 Ed.]
1. Kinds of Pleadings
Facts alleged in the complaint are judicial admissions
Pleadings Allowed that bind the plaintiff and may be the basis to dismiss
a. Complaint the complaint [Luzon Development Bank v. Conquilla,
b. Answer G.R. No. 163338 (2005)]
c. Counterclaim
d. Cross-claim b. Answer
e. Third (fourth, etc.)-party complaint
f. Complaint-in-intervention A pleading where the defendant sets forth his
g. Reply defenses [Sec. 4, Rule 6]
[Sec. 2, Rule 6]
h. Counter-counterclaims The defenses of a party are alleged in the answer to
i. Counter-crossclaims the pleading asserting a claim against him [Sec. 2, Rule
[Sec. 9, Rule 6] 6]

a. Complaint Negative Defenses

Specific denial of the material fact/s alleged in the
The pleading alleging the plaintiff’s cause/s of action pleading of the claimant essential to his cause/s of
[Sec. 3, Rule 6] action.

Function Negative Pregnant

1. To inform the defendant clearly and definitely of A denial, pregnant with the admission of the
the claims made against him so that he may be substantial facts in the pleading responded to which
prepared to meet the issues at trial. are not squarely denied. It is in effect an admission of

Page 41 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

the averment it is directed to [Philamgen v. Sweet Lines, file action issued by the
G.R. No. 87434 (1993)] Lupong Tagapamayapa
A negative pregnant does not qualify as a specific Must be answered by the
Failure to answer a
denial. It is conceded to be actually an admission. It party against whom it is
compulsory
refers to a denial which implies its affirmative interposed, otherwise he
counterclaim is not a
opposite by seeming to deny only a qualification or an may be declared in
cause for a default
incidental aspect of the allegation but not the main default as to the
declaration.
allegation itself [1 Riano 358, 2014 Bantam Ed.] counterclaim
[1 Riano 385-387, 2014 Bantam Ed.]
Affirmative Defenses
1. Allegations of new matters which, while COMPULSORY COUNTERCLAIM
hypothetically admitting the material allegations
in the claimant’s pleading would nevertheless Requisites
prevent or bar recovery by him 1. It arises out of, or is connected with the
2. Include fraud, statute of limitations, release transaction or occurrence constituting the subject
payment, illegality, statute of frauds, estoppel, matter of the opposing party's claim, and
former recovery, discharge in bankruptcy, and 2. It does not require for its adjudication the
any other matter by way of confession and presence of third parties of whom the court
avoidance cannot acquire jurisdiction
[Sec. 6, Rule 6] 3. It must be within the jurisdiction of the court
both as to the amount and the nature, except that
Raising affirmative defenses does not amount to in an original action before the RTC, the counter-
acceptance of the jurisdiction of the court, but praying claim may be considered compulsory regardless
for affirmative reliefs is considered voluntary of the amount
appearance and acquiescence to the court’s [Sec. 7, Rule 6]
jurisdiction [NM Rothschild & Sons Ltd. v. Lepanto
Consolidate Mining Co., G.R. No. 175799 (2011)] A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default, principally because the issues raised in the
c. Counterclaim counterclaim are deemed automatically joined by the
allegations in the complaint [Gojo v. Goyala, G.R. No.
Any claim which a defending party may have against L-26768 (1970)]
an opposing party [Sec. 6, Rule 6]
The filing of a motion to dismiss and the setting up
Kinds of counterclaims of a compulsory counterclaim are incompatible
Compulsory Permissive remedies. If he files a motion to dismiss, he will lose
Counterclaim Counterclaim his counterclaim. But if he opts to set up his
A compulsory counterclaim, he may still plead his ground for
counterclaim, which a Not subject to the rule dismissal as an affirmative defense in his answer
party has at the time the on compulsory
[Financial Building Corp. v. Forbes Park Association, G.R.
answer is filed, shall be counterclaims. Hence, it
No. 133119 (2000)]
contained in the answer may be set up as an
[Sec. 8, Rule 11] because independent action and
a compulsory will not be barred if not On amounts
counterclaim not set up contained in an answer 1. In an original action before the RTC, the
shall be barred [Sec. 2, to the complaint. counterclaim may be considered compulsory
Rule 9] regardless of the amount [Sec. 7, Rule 6]
Not an initiatory 2. If a counterclaim is filed in the MTC in excess of
Initiatory pleading its jurisdictional limits, the excess is considered
pleading
Should be accompanied waived [Agustin v. Bacalan, G.R. No. L-46000
by a certification against (1985)]
Said certifications are 3. However, in another case, the remedy where a
forum shopping and,
not required
whenever required by counterclaim is beyond the jurisdictional amount
law, also a certificate to of the MTC is to set off the claims and file a
separate action to collect the balance [Calo v.

Page 42 of 481
U.P. LAW BOC CIVIL PROCEDURE
Ajax, G.R. No. L-22485 (1968)] Note, however,
that the counterclaim in question in this case was
permissive.
Note: Under OCA Circular No. 96-2009, citing A.M.
No. 04-2-04 SC, the payment of filing fees for
compulsory counterclaims remains suspended
effective September 21, 2004, pursuant to A.M. No.
04-2-04-SC] It clarified that the portion of the
decision in Korea Technologies v. Lerma, G.R. No.
143581, which stated that docket fees are required to
be paid in compulsory counterclaims has been deleted
in a revised issuance.
PERMISSIVE COUNTERCLAIM
A counterclaim is permissive if it does not arise out
of, nor is necessarily connected with, the subject
matter of the opposing party’s claim. This is not
barred even if not set up in the action [1 Herrera 686,
2007 Ed.]
Permissive counterclaims must have an independent
jurisdictional ground [1 Herrera 695, 2007 Ed.]
The rule in a permissive counterclaim is that for the
trial court to acquire jurisdiction, the counterclaimant
is bound to pay the prescribed docket fees [1 Riano
387, 2014 Bantam Ed., citing GSIS v. Heirs of Caballero,
G.R. Nos. 158090 (2010)]
Note: Even if the counterclaim arises out of the
subject-matter of the opposing party's claim but it is
not within the jurisdiction of the regular courts of
justice, or it requires for its adjudication the presence
of third parties over whom the court cannot acquire
jurisdiction, it is considered as only a permissive
counter- claim and is not barred even if not set up in
the action (see also Sec. 2, Rule 9) [1 Regalado 143-144,
2010 Ed.]
Determining whether a counterclaim is
compulsory or permissive
e. A positive answer on all four the following tests
would indicate that the counterclaim is
compulsory
1. Are the issues of fact and law raised by the claim
and counterclaim largely the same?
2. Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
3. Will substantially the same evidence support or
refute plaintiff’s claim as well as the
counterclaim?
Page 43 of 481
REMEDIAL LAW
4. Is there any logical relation between the claim and
counterclaim?
[GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)]
There is a logical relationship where conducting
separate trials of the respective claims would entail
substantial duplication of effort and time and involves
many of the same factual and legal issues [Meliton v.
CA, G.R. No. 101883 (1992)]
EFFECT ON THE COUNTERCLAIM WHEN
THE COMPLAINT IS DISMISSED
The dismissal of the complaint shall be without
prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer in the
following cases
1. Dismissal under Sec. 6, Rule 16 – where the
defendant does not file motion to dismiss but
raises the ground as an affirmative defense
2. Dismissal under Sec. 2, Rule 17 – where the
plaintiff files a motion to dismiss the case, after
the defendant had filed a responsive pleading
3. Dismissal under Sec. 3, Rule 17 – where the
complaint is dismissed due to the fault of the
plaintiff
How raised
1. By including it in the Answer
a. A compulsory counterclaim or a cross-claim
that a defending party has at the time he
files his answer shall be contained therein
[Sec. 8, Rule 11]
2. By filing after the Answer
a. A counterclaim may, by leave of court, set up
the counterclaim by amendment before
judgment, when
• A pleader fails to set up a counterclaim
through oversight, inadvertence, or
excusable neglect, or
• Justice requires [Sec. 10, Rule 11]
b. A counterclaim, which either matured or was
acquired by a party after serving his pleading
may, with permission of the court, be
presented as a counterclaim by
supplemental pleading before judgment
[Sec. 9, Rule 11]
d. Cross-Claim
Any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject
matter either of the original action or of a
counterclaim therein. Such cross-claim may include a
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

claim that the party against whom it is asserted is or

may be liable to the cross-claimant for all or part of a 3rd party
Cross-claim Counterclaim
claim asserted in the action against the cross-claimant complaint
[Sec. 8, Rule 6] Against a
Against a co- Against an person not a
A cross-claim not set up shall be barred [Sec. 2, Rule party [Sec. 8, opposing party party to the
9] Rule 6] [Sec. 6, Rule 6] action [Sec.
11, Rule 6]
When a cross-claim is proper May arise out
1. It arises out of the subject matter of the of or is
complaint. connected with
2. It is filed against a co-party. Arising out of the transaction
3. The cross-claimant stands to be prejudiced by the the transaction or occurrence
filing of the action against him [Londres v. CA, that is the constituting In respect of
G.R. No. 136427 (2002)] subject matter the subject his
either of the matter of the opponent’s
Improper cross-claims original action opposing (plaintiff’s)
1. Where the cross-claim is improper, the remedy is or of a party’s claim claim [Sec. 11,
certiorari [Malinao v. Luzon Surety (1964)] counterclaim (compulsory Rule 6]
2. The dismissal of a cross-claim is unappealable therein [Sec. 8, counterclaim)
when the order dismissing the complaint Rule 6] [Sec. 7, Rule 6],
becomes final and executory [Ruiz, Jr. v. CA or it may not
(1993)] (permissive
3. A cross-claim is not allowed after declaration of counterclaim)
default of cross-claimant. To allow the cross- Third party is
claim to remain would be tantamount to setting Third party is not yet
aside the order of default the cross-claimant, who already No third party impleaded, so
had been previously declared default, would re- impleaded in involved (Sec. leave of court
obtain a standing in court as party litigant [Tan v. the action [1 6, Rule 6 refers required [Sec.
Dimayuga, G.R. No. L-15241 (1962)] Regalado 150, to “opposing 11, Rule 6; 1
2014 Bantam party”) Regalado 150,
e. Third (Fourth, etc.) Party Ed.] 2014 Bantam
Complaint Ed.]

A claim that a defending party may, with leave of Complaint in

court, file against a person not a party to the action,
for contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim [Sec. 11, Rule
6]
Requisites
1. The party to be impleaded must not yet be a party
to the action
2. The claim against the third-party defendant must
belong to the original defendant
3. The claim of the original defendant against the
third-party defendant must be based upon the
plaintiffs claim against the original defendant,
and
4. The defendant is attempting to transfer to the
third-party defendant the liability asserted against
him by the original plaintiff [Philtranco Service
Enterprises, Inc. v. Paras, G.R. No. 161909 (2012)]
3rd party complaint
intervention
Brings into the action a 3rd person who was not
originally a party
Initiative is with the Initiative is with a non-
person already a party party who seeks to join
to the action the action
[1 Regalado 150-151, 2010 Ed.]
Under this Rule, a person not party to an action may
be impleaded by the defendant either
1. On allegation of liability to the latter, covered by
the phrase “contribution, indemnity, or
subrogation”
2. On the ground of direct liability to the plaintiff;
or both, as covered by the phrase “any other
relief” [Samala v. Victor, G.R. No. L-53969 (1989)]

Page 44 of 481
U.P. LAW BOC CIVIL PROCEDURE
Tests to determine whether the 3rd-party
complaint is in respect of plaintiff’s claim
1. WON it arises out of the same transaction on
which the plaintiff's claim is based, or although
arising out of another/different transaction, is
connected with the plaintiff’s claim;
2. WON the 3rd-party defendant would be liable to
the plaintiff or to the defendant for all/part of the
plaintiff’s claim against the original defendant;
3. WON the 3rd-party defendant may assert any
defenses which the 3rd-party plaintiff has or may
have to the plaintiff’s claim
[Capayas v. CFI, G.R. No. L-475 (1946)]
Additional rules
Where the trial court has jurisdiction over the main
case, it also has jurisdiction over the third-party
complaint, regardless of the amount involved as a 3rd-
party complaint is merely auxiliary to and is a
continuation of the main action [Republic v. Central
Surety, G.R. No. L-27802 (1968)]
A third-party complaint is not proper in an action for
declaratory relief [Commissioner of Customs v. Cloribel,
G.R. No. L-21036 (1977)]
f. Complaint-in-Intervention
Intervention is a remedy by which a third party, not
originally impleaded in a proceeding, becomes a
litigant therein to enable him to protect or preserve a
right or interest which may be affected by such
proceeding [Restaurante Las Conchas v. Llego, G.R. No.
119085 (1999), citing First Philippine Holdings
Corporation v. Sandiganbayan, G.R. No. 88345 (1996)]
Pleadings-in-intervention
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
[Sec. 3, Rule 19]
Intervention is never an independent action, but is
ancillary and supplemental to an existing litigation,
and in subordination to the main proceeding [Saw v.
CA, G.R. No. 90580 (1991)]
Its purpose is "to settle in one action and by a single
judgment the whole controversy (among) the persons
involved." [First Philippine Holdings v. Sandiganbayan,
G.R. No. 88345 (1996)]
Page 45 of 481
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When allowed; requisites for intervention
1. A person who
a. Has a legal interest in the
1. Matter in litigation, or
2. Success of either of the parties, or
3. Against both, or
b. Is so situated as to be adversely affected by a
distribution or other disposition of property
in the custody of the court or of an officer
thereof,
2. With leave of court
3. The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be
fully protected in a separate proceeding
[Sec. 1, Rule 19]
No independent controversy allowed to be
injected
In general, an independent controversy cannot be
injected into a suit by intervention, hence, such
intervention will not be allowed where it would
enlarge the issues in the action and expand the scope
of the remedies. It is not proper where there are
certain facts giving the intervenor’s case an aspect
peculiar to himself and differentiating it clearly from
that of the original parties; the proper course is for the
would-be intervenor to litigate his claim in a separate
suit. Intervention is not intended to change the nature
and character of the action itself, or to stop or delay
the placid operation of the machinery of the trial. The
remedy of intervention is not proper where it will
have the effect of retarding the principal suit or
delaying the trial of the action [Mactan-Cebu
International Airport Authority v. Heirs of Minoza, G.R.
No. 186045 (2011)]
Allowance discretionary
The Court has full discretion in permitting or
disallowing intervention, which must be exercised
judiciously and only after consideration of all the
circumstances obtaining in the case [Mago v. CA, G.R.
No. 115624 (1999)]
It is not an absolute right as it can be secured only in
accordance with the terms of applicable statute or rule
[Office of Ombudsman v. Samaniego, G.R. No. 175573
(2010)]
Legal interest
Interest must be of a direct and immediate character
so that the intervenor will either gain or lose by the
U.P. LAW BOC CIVIL PROCEDURE
direct legal operation of the judgment. The interest
must be actual and material, a concern which is more
than mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent, indirect
and remote, conjectural, consequential or collateral
[Virra Mall Tenants v. Virra Mall, G.R. No. 182902
(2011)]
How to intervene
1. With leave of court, the court shall consider the
requisites above
2. Motion to intervene may be filed at any time
before rendition of judgment by the trial court
[Sec. 2, Rule 19]
3. Copy of the pleadings-in-intervention shall be
attached to the motion and served on the original
parties [Sec.2, Rule 19]
Time to intervene
General rule: The motion to intervene must be filed at
any time before rendition of judgment by the trial
court [Sec.2, Rule 19]
Exceptions:
1. With respect to indispensable parties,
intervention may be allowed even on appeal
[Falcasantos v. Falcasantos, G.R. No. L-4627 (1952)]
2. When the intervenor is the Republic [Lim v.
Pacquing, G.R. No. 115044 (1995)]
3. Intervention may be allowed after judgment
where necessary to protect some interest which
cannot otherwise be protected, and for the
purpose of preserving the intervenor’s right to
appeal [Pinlac v. CA, G.R. No. 91486 (2003)]
Remedies for denial of motion for intervention
1. True, the SC has on occasion held that an order
denying a motion for intervention is appealable.
Where the lower court’s denial of a motion for
intervention amounts to a final order, an appeal
is the proper remedy, as when the denial leaves
the intervenor without further remedy or resort
to judicial relief.
2. A prospective intervenor’s right to appeal applies
only to the denial of his intervention. Not being
a party to the case, a person whose intervention
the court denied has no standing to question the
decision of the court. Petitioner could question
only the trial courts orders denying his
intervention and striking off from the records his
answer-in-intervention, not the decision itself.
[Foster-Gallego v. Sps. Galang, G.R. No. 130228 (2004)]
Page 46 of 481
REMEDIAL LAW
g. Reply
A pleading, the office or function of which is to deny,
or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby
join or make issue as to such new matters [Sec. 10,
Rule 6]
Effect of failure to reply
General rule: If a party does not file such reply, all the
new matters alleged in the answer are deemed
controverted [Sec. 10, Rule 6]
Exception: When a reply is necessary
1. To set up affirmative defenses on the
counterclaim [Rosario v. Martinez, G.R. No. L-
4473 (1952)]
2. Where the answer alleges the defense of usury in
which case a reply under oath should be made;
otherwise, the allegation of usurious interest shall
be deemed admitted [Rule 8, Sec. 8; Sun Bros. v.
Caluntad, G.R. No. L-21440 (1966)]
3. Where the defense in the answer is based on an
actionable document, a reply under oath must be
made; otherwise, the genuineness and due
execution of the document shall be deemed
admitted [Sec. 11, Rule 8; Toribio v. Bidin, G.R.
No. L-57821 (1985)]
h. Counter-counterclaim
A claim asserted against an original counter-claimant
[Sec. 9, Rule 6]
i. Counter-cross-claim
A claim filed against an original cross-claimant [Sec.
9, Rule 6]
2. Pleadings Allowed under
The 2016 Revised Rules of
Procedure for Small Claims
Cases and The 1991 Revised
Rule on Summary Procedure
a. Rule on Summary Procedure
The only pleadings allowed to be filed are
1. Complaints
U.P. LAW BOC CIVIL PROCEDURE
2. Compulsory counterclaims pleaded in the
Answer
3. Cross-claims pleaded in the Answer; and
4. Answers thereto
[Sec. 3[A], II]
Prohibited pleadings, motions, or petitions
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings,
affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints, and
12. Interventions
[Sec. 19]
b. Revised Rules of Procedure for
Small Claims Cases
Forms
1. A small claims action is commenced by filing
with the court an accomplished and verified
Statement of Claim (Form 1-SCC) in duplicate,
accompanied by a Certification Against Forum
Shopping, Splitting a Single Cause of Action,
and Multiplicity of Suits (Form 1-A-SCC) [Sec.
6]
2. The Summons to be served on the defendant
shall be accompanied by a copy of the Statement
of Claim/s and documents submitted by plaintiff,
and a blank Response Form (Form 3-SCC) to
be accomplished by the defendant [Sec. 12]. The
defendant shall file with the court and serve on
the plaintiff a duly accomplished and verified
Response within a non-extendible period of 10
days from receipt of summons [Sec. 13].
a. If at the time the action is commenced, the
defendant possesses a claim against the
plaintiff that (a) is within the coverage of this
Rule, exclusive of interest and costs; (b)
Page 47 of 481
REMEDIAL LAW
arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim; (c) does not require for its
adjudication the joinder of third parties; and
(d) is not the subject of another pending
action, the claim shall be filed as a
counterclaim in the Response; otherwise,
the defendant shall be barred from suing on
the counterclaim [Sec. 15].
b. The defendant may also elect to file a
counterclaim against the plaintiff that does
not arise out of the same transaction or
occurrence, provided that the amount and
nature thereof are within the coverage of this
Rule and the prescribed docket and other
legal fees are paid [Sec. 15].
Prohibited pleadings and motions
1. Motion to dismiss the complaint except on the
ground of lack of jurisdiction
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings,
affidavits, or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints, and
12. Interventions
[Sec. 14]
3. Parts of a Pleading
a. Caption
Sets forth the
1. Name of the court
2. Title of the action (i.e. the names of the parties)
and
3. The docket number, if assigned
[Sec. 1, Rule 7]
Body – Sets forth its (the pleading’s) designation, the
allegations of party's claims or defenses, the relief
prayed for, and its date
1. Paragraphs – The allegations in the body of a
pleading shall be divided into paragraphs so
U.P. LAW BOC CIVIL PROCEDURE
numbered as to be readily identified, each of
which shall contain a statement of a single set of
circumstances so far as that can be done with
convenience. A paragraph may be referred to by
its number in all succeeding pleadings.
2. Headings
a. When two or more causes of action are
joined, the statement of the first shall be
prefaced by the words “first cause of action,"
of the second by "second cause of action,"
and so on for the others.
b. When one or more paragraphs in the answer
are addressed to one of several causes of
action in the complaint, they shall be
prefaced by the words "answer to the first
cause of action" or "answer to the second
cause of action" and so on; and when one or
more paragraphs of the answer are addressed
to several causes of action, they shall be
prefaced by words to that effect.
3. Relief – The pleading shall specify the relief
sought, but it may add a general prayer for such
further or other relief as may be deemed just or
equitable.
4. Date – Every pleading shall be dated.
[Sec. 2, Rule 7]
b. Signature and Address
Every pleading must be signed by the party or
counsel representing him, stating in either case his
address which should not be a post office box [Sec. 3,
Rule 7]
Effect of Unsigned Pleading
An unsigned pleading produces no legal effect.
However, the court may allow such deficiency to be
remedied if it appears that it was:
1. Due to mere inadvertence; and
2. Not intended for delay [Sec. 3, Rule 7]
c. Verification and Certification
against Forum Shopping
Verification as a rule not required
Pleadings need not be under oath, verified or
accompanied by affidavit except when otherwise
specifically required by law or rule [Sec. 4, Rule 7]
Verification is required in the following instances
1. Pleadings filed in the inferior courts in cases
covered by the Rules on Summary Procedure
[Sec. 3, B]
Page 48 of 481
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2. Petition for relief from judgment or order [Sec. 3,
Rule 38]
3. Petition for review from RTC to the CA [Sec. 1,
Rule 42]
4. Petition for review from quasi-judicial agencies to
the CA [Sec. 5, Rule 43]
5. Appeal by certiorari from the CTA to the SC [Sec.
12, RA 9282 amending Sec. 19, R.A. 1125]
6. Appeal by certiorari from CA to the SC [Sec. 1,
Rule 45]
7. Petition for annulment of judgments or final
orders and resolutions [Sec. 1, Rule 47]
8. Complaint for injunction [Sec. 4, Rule 58]
9. Application for appointment of receiver [Sec. 1,
Rule 59]
10. Application for support pendente lite [Sec. 1,
Rule 69]
11. Petition for certiorari against judgments, final
orders, or resolutions of constitutional
commissions [Sec. 2, Rule 64]
12. Petition for certiorari [Sec. 1, Rule 65]
13. Petition for prohibition [Sec. 2, Rule 65]
14. Petition for mandamus [Sec. 3, Rule 65]
15. Petition for quo warranto [Sec. 1, Rule 66]
16. Complaint for expropriation [Sec. 1, Rule 67]
17. Complaint for forcible entry or unlawful detainer
[Sec. 4, Rule 70]
18. Petition for indirect contempt [Sec. 4, Rule 71]
19. Petition for appointment of a general guardian
[Sec. 2, Rule 93]
20. Petition for leave to sell or encumber property of
the ward by a guardian [Sec. 1, Rule 95]
21. Petition for declaration of competency of a ward
[Sec. 1, Rule 97]
22. Petition for habeas corpus [Sec. 3, Rule 102]
23. Petition for change of name [Sec. 2, Rule 103]
24. Petition for voluntary judicial dissolution of a
corporation [Sec. 1, Rule 104]
25. Petition for cancellation or correction of entries
in the civil registry [Sec. 1, Rule 108]
How verified
By an affidavit declaring that
1. The affiant has read the pleading; and
2. The allegations therein are true and correct of his
personal knowledge or based on authentic
documents
f. [Sec. 4, Rule 7]
Who executes verification
Verification is deemed substantially complied with
when one who has ample knowledge to swear to the
truth of the allegations in the complaint or petition
signs the verification, and when matters alleged in the
U.P. LAW BOC CIVIL PROCEDURE
petition have been made in good faith or are true and
correct [Altres v. Empleo, G.R. No. 180986 (2008)]
Effect of noncompliant or defective verification
Noncompliance therewith or a defect therein does
not necessarily render the pleading fatally defective.
The court may order its submission or correction or
act on the pleading if the attending circumstances are
such that strict compliance with the Rule may be
dispensed with in order that the ends of justice may
be served thereby [Altres v. Empleo, G.R. No. 180986
(2008)]
Forum shopping
The repeated availment of several judicial remedies in
different courts, simultaneously or successively, all
substantially founded on the same transactions and
the same essential facts and circumstances, and all
raising substantially the same issues, either pending in
or already resolved adversely by some other court
[Asia United Bank v. Goodland Company, Inc., G.R. No.
191388 (2011)]
Test to determine existence of forum shopping
Whether in the two or more cases pending, there is
identity of
1. Parties
2. Rights or causes of action, and
3. Relief sought
[Huibonhoa v. Concepcion, G.R. No. 153785 (2005)]
Certificate of Non-Forum Shopping (CNFS)
The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading
asserting a claim for relief or in a sworn certification
annexed thereto and simultaneously filed therewith
1. That he has not commenced any action or filed
any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best
of his knowledge, no such other action is pending
2. If there is such other pending action or claim, a
complete statement of the present status thereof,
and
3. If he should learn that the same or a similar action
or claim has been filed or is pending, he shall
report that fact within 5 days to the court wherein
his aforesaid complaint or initiatory pleading has
been filed
[Sec. 5, Rule 7]
CNFS is not required in a compulsory counterclaim,
as this is not an initiatory pleading [UST Hospital v.
Surla, G.R. No. 129718 (1998)] However, a
certification is needed in permissive counterclaims
Page 49 of 481
REMEDIAL LAW
[Korea Exchange Bank v. Gonzales, G.R. No. 142286
(2005)]
Who executes the CNFS
It is the plaintiff or principal party who executes the
certification under oath [Sec. 5, Rule 7]
Rationale
The plaintiff, not the counsel, is in the best position
to know whether he or it has actually filed or caused
the filing of a petition. Certification signed by counsel
without proper authorization is defective, and a valid
cause for dismissal [Anderson v. Ho, G.R. No. 172590
(2013)]
If, for justifiable reasons, the party-pleader is unable
to sign, he must execute a Special Power of Attorney
designating his counsel of record to sign on his behalf
[Vda. de Formoso v. PNB, G.R. No. 154704 (2011)]
Requirements of a Corporation Executing the
Verification/Certification of Non-Forum
Shopping
The certification must be executed by an officer, or
member of the board of directors, or by one who is
duly authorized by a board resolution; otherwise, the
complaint will have to be dismissed [Cosco Philippines
Shipping, Inc. v. Kemper Insurance, Co., G.R. No. 179488
(2012)]
However, the Court has ruled that a President of a
corporation can sign the verification and CNFS,
without the benefit of a board resolution. It also
allowed the following persons to sign:
1. The Chairperson of the Board
2. The General Manager or acting GM
3. A personnel officer, and
4. An employment specialist in a labor case
However, the better procedure would be to append a
board resolution to obviate questions regarding the
authority of the signatory [South Cotabato
Communications Corp. v. Sto. Tomas, G.R. No. 173326
(2010), citing Cagayan Valley Drug Corporation v.
Commissioner of Internal Revenue, G.R. No. 173326
(2010)]
Belated submission of written authority has been
found to be substantial compliance with the rule,
especially when the acts were also ratified by the
Board [Swedish Match Philippines v. Treasurer of the City of
Manila, G.R. No. 181277 (2013)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. If a defense relied on is based on law, the

Effect of noncompliant CNFS
Defect Effect
Not curable by mere
amendment of the
complaint or other
initiatory pleading
Failure to comply with
Cause for dismissal of
the requirements
the case, without
prejudice, unless
otherwise provided,
upon motion and after
hearing
False certification Constitutes indirect
contempt of court,
Non-compliance with
without prejudice to
any of the undertakings
administrative and
therein
criminal actions
Ground for summary
dismissal, with
prejudice
Willful and deliberate Direct contempt of
forum shopping court
Cause for
administrative
sanctions
[Sec. 5, Rule 7]
pertinent provisions thereof and their
applicability to him shall be clearly and concisely
stated
[Sec. 1, Rule 8]
a. Manner of Making Allegations
Facts that must be averred with particularity –
Circumstances showing fraud or mistake [Sec. 5, Rule
8]
Facts that may be averred generally
1. Performance or occurrence of all conditions
precedent [Sec. 3, Rule 8]
2. Capacity to sue or be sued [Sec. 4, Rule 8]
3. Capacity to sue or be sued in a representative
capacity [Sec. 4, Rule 8]
4. Legal existence of an organized association of
persons that is made a party [Sec. 4, Rule 8]
5. Malice, intent, knowledge or other condition of
the mind of a person [Sec. 5, Rule 8]
6. Judgment or decision of a domestic and foreign
court, judicial or quasi-judicial tribunal, or of a
board or officer without setting forth matter
showing jurisdiction to render it [Sec. 6, Rule 8]
7. Official documents/acts [Sec. 9, Rule 8]
1. Condition Precedent

d. Effect of the Signature of In any pleading a general averment of the

Counsel in a Pleading
This constitutes a certificate by him that
1. He has read the pleading
2. To the best of his knowledge, information, and
belief there is good ground to support it, and
3. It is not interposed for delay
[Sec. 3, Rule 7]
4. Allegations in a Pleading
a. Every pleading shall contain
1. In a methodical and logical form,
2. A plain, concise and direct statement
3. Of the ultimate facts on which the party
pleading relies for his claim or defense, as the
case may be,
4. Omitting the statement of mere evidentiary
facts
performance or occurrence of all conditions
precedent shall be sufficient [Sec. 3, Rule 8]
If the cause of action depends upon a condition
precedent, its fulfillment or legal excuse for non-
fulfillment must be averred.
All valid conditions precedent to the institution of the
particular action, whether prescribed by statute, fixed
by agreement of the parties or implied by law must be
performed or complied with before commencing the
action, unless the conduct of the adverse party has
been such as to prevent or waive performance or
excuse non-performance of the condition [Anchor
Savings Bank v. Furigay, G.R. No. 191178 (2013)]
A motion to dismiss may be made on the ground that
a condition precedent for filing the claim has not been
complied with [Sec. 1(j), Rule 16]

Page 50 of 481
U.P. LAW BOC CIVIL PROCEDURE
Examples of conditions precedent:
a. A tender of payment is required before making a
consignation [Art. 1256, CC]
b. Exhaustion of administrative remedies is
required in certain cases before resorting to
judicial action [Lopez v. City of Manila, G.R. No.
127139 (1999); Dy v. CA, G.R. No. 121587
(1999)]
c. Prior resort to barangay conciliation proceedings
is necessary in certain cases [Book III, Title I,
Chapter 7, LGC]
d. Earnest efforts toward a compromise must be
undertaken when the suit is between members of
the same family and if no efforts were in fact
made, the case must be dismissed, [Art. 151, FC]
e. Arbitration may be a condition precedent when
the contract between the parties provides for
arbitration first before recourse to judicial
remedies
[1 Riano 333-334, 2014 Bantam Ed.]
Capacity
The following must be averred
1. Facts showing the capacity of a party to sue or be
sued; or
2. The authority to sue or be sued in a
representative capacity; or
3. The legal existence of an organized association of
persons that is made a party
[Sec. 4, Rule 8]
Note: A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be sued in
a representative capacity, shall do so by specific
denial, which shall include supporting particulars
within the pleader's knowledge [Sec. 4, Rule 8]
2. Fraud, Mistake, Malice, Intent,
Knowledge, and Other Condition of
the Mind, Judgments, Official
Documents or Acts
Fraud, mistake, malice, intent, knowledge, and
other condition of the mind
In all averments of fraud or mistake, the
circumstances constituting fraud or mistake mist be
stated with particularity. Malice, intent, knowledge or
other condition of the mind of a person may be
averred generally [Sec. 5, Rule 8]
These particulars would necessarily include the time,
place and specific acts of fraud committed. The
reason for this rule is that an allegation of fraud
Page 51 of 481
REMEDIAL LAW
concerns the morality of the defendant’s conduct and
he is entitled to know fully the ground on which the
allegations are made, so he may have every
opportunity to prepare his case to clear himself at the
trial [Guy v. Guy, G.R. No. 189486 (2012)]
Judgment
In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of
a board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing
jurisdiction to render it [Sec. 6, Rule 8]
Official documents or acts
Sufficient to aver that the document was issued, or the
act done, in compliance with law [Sec. 9, Rule 8]
b. Pleading an Actionable
Document
Actionable document
Whenever an action or defense is based or founded
upon a written instrument or document, said
instrument or document is deemed an actionable
document [1 Riano 359, 2014 Bantam Ed.]
A receipt is not an actionable document upon which
an action or defense may be founded. It is a mere
written and signed acknowledgment that money was
received. There are no terms and conditions found
therein from which a right or obligation may be
established [Ogawa v. Menigishi, G.R. No. 193089
(2012)]
Pleading the document
1. The substance of such document shall be set
forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an
exhibit, or
2. Said copy may with like effect be set forth in the
pleading
[Sec. 7, Rule 8]
A variance in the substance of the document set forth
in the pleading and the document annexed thereto
does not warrant dismissal of the action [Convets Inc. v.
National Dev. Co., G.R. No. L-10232 (1958)]
How to contest an actionable document
General rule: The adverse party, under oath, specifically
denies them, and sets forth what he claims to be the
facts
U.P. LAW BOC CIVIL PROCEDURE
Exceptions: The requirement of an oath does not apply
when
1. the adverse party does not appear to be a party to
the instrument, or
2. compliance with an order for an inspection of the
original instrument is refused
[Sec. 8, Rule 8]
Effect of failure to deny under oath
The genuineness and due execution is deemed
admitted [Sec. 8, Rule 8]
Due execution and genuineness
That the party whose signature it bears admits that he
signed it or that it was signed by another for him with
his authority; that it was in words and figures exactly
as set out in the pleading of the party relying upon it;
that the document was delivered and that any formal
requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks,
are waived by him [Hibberd v. Rohde and Mcmillian, G.R.
No. 8418 (1915)]
c. Specific Denials
The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends
to disprove at the trial, together with matters which
he relied upon to support the denial. The parties are
compelled to lay their cards on the table [Philippine
Bank of Communications v. Go, G.R. No. 175514 (2011)]
A denial does not become specific merely because it
is qualified by that word [Agton v. CA, G.R. No. L-
37309 (1982)]
1. Material averment in the complaint, other than
those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically
denied.
2. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not
denied under oath.
[Sec. 11, Rule 8]
MODES OF SPECIFIC DENIAL
1. Absolute denial – A defendant must specify
each material allegation of fact the truth of which
he does not admit and, whenever practicable, set
forth the substance of matters upon which he
relies to support his denial
2. Partial specific denial – Where a defendant
desires to deny only a part of an averment, he
shall
(a) Specify so much of it as is true and material
Page 52 of 481
REMEDIAL LAW
(b) Deny only the remainder
3. Denial by disavowal of knowledge – Where a
defendant is without knowledge or information
sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall
so state, and this shall have the effect of a denial
[Sec. 10, Rule 8; the terms are from 1 Riano 355-
356, 2014 Bantam Ed.]
Note: Denial by disavowal of knowledge must be
availed of with sincerity and in good faith – certainly
neither for the purpose of confusing the adverse party
as to what allegations of the complaint are really put
in issue nor for the purpose of delay [Barnes v. Reyes,
G.R. No. L-9531 (1958)]
1. Effect of Failure to make Specific
Denials
General rule: Material averment in the complaint shall
be deemed admitted when not specifically denied
[Sec. 11, Rule 8]
Exceptions:
The following averments in the complaint are not
deemed admitted even if not specifically denied
1. Allegations as to the amount of unliquidated
damages [Sec. 11, Rule 8]
2. Allegations immaterial to the cause of action [1
Regalado 183, citing Worcester v. Lorenzana, G.R.
No. L-9435 (1958)], and
3. All allegations in the complaint where no answer
has been filed by the defendant [1 Regalado 183,
citing Lopez v. Mendezona, G.R. No. 3945 (1908)
and Worcester v. Lorenzana, G.R. No. L-9435
(1958)]
2. When a Specific Denial Requires an
Oath
Specific denial under oath is required for the
following
a. Denial of the genuineness and due execution of
an actionable document [Sec. 8, Rule 8] and
b. Denial of allegations of usury [Sec. 11, Rule 8]
Note: Under CB Circular No. 905 (1982), the Usury
Law is legally inexistent [Medel v. CA, G.R. No.
131622 (1998)]
U.P. LAW BOC CIVIL PROCEDURE
5. Effect of Failure to Plead
a. Effect of Failure to Plead
Defenses and Objections
General rule: Defenses and objections not pleaded
either a motion to dismiss or in the answer are
deemed waived [Sec. 1, Rule 9]
Exceptions:
When it appears from the pleadings or the evidence
on record that
1. the court has no jurisdiction over the subject
matter
2. there is another action pending between the same
parties for the same cause, or
3. the action is barred by a prior judgment or by
statute of limitations,
g. the court shall dismiss the claim
[Sec. 1, Rule 9]
b. Failure to Plead a Compulsory
Counterclaim and Cross-Claim
General rule: A compulsory counterclaim, or a cross-
claim, not set up shall be barred [Sec. 2, Rule 9]
Exception: When a pleader fails to set up a
counterclaim or cross-claim through oversight,
inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the
counterclaim or cross-claim by amendment before
judgment [Sec. 10, Rule 11]
6. Default
Failure of the defending party to answer within the
time allowed therefor [Sec. 3, Rule 9]
Dual stages of default
a. Declaration of order of default – If the
defending party fails to answer within the time
allowed therefor, the court shall, upon motion of
the claiming party with notice to the defending
party, and proof of such failure, declare the
defending party in default.
b. Rendition of judgment by default –
Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his
pleading may warrant, unless the court in its
discretion requires the claimant to submit
Page 53 of 481
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evidence. Such reception of evidence may be
delegated to the clerk of court.
[Sec. 3, Rule 9]
Order of default Judgment by default
Issued by the court on
plaintiff’s motion and at Rendered by the court
the start of the following a default
proceedings, for failure order, when it received
of the defendant to ex parte plaintiff’s
seasonably file his evidence
responsive pleading
[1 Regalado 191, 2010 Ed.]
a. When Declaration of Default is
Proper
The rule on default clearly establishes the “failure to
answer within the time allowed therefor” as the
ground for a declaration of default [Sec. 3, Rule 9].
From the tenor of the Rules, default does not
technically occur from the failure of the defendant to
attend either the pre-trial or the trial [1 Riano 363,
2014 Bantam Ed.]
Requisites before a declaration of default
1. The court must have validly acquired jurisdiction
over the person of the defending party, either by
service of summons or voluntary appearance
2. The defending party must have failed to file his
answer within the time allowed therefor
3. The claiming party must file a motion to declare
the defending party in default
4. The claiming party must prove that the defending
party has failed to answer within the period
provided by the ROC
[Sablas v. Sablas, G.R. No. 144568 (2007)]
5. The defending party must be notified of the
motion to declare him in default [Sec. 3, Rule 9]
6. There must be a hearing set on the motion to
declare the defending party in default [Spouses de
los Santos v. Carpio, G.R. No. 153696 (2006)]
[1 Riano 364, 2014]
b. Effect of an Order of Default
1. The party declared in default cannot take part in
the trial. However, he may still participate as a
witness [Cavili v. Florendo, G.R. No. 73039 (1987)]
and is entitled to notices of subsequent
proceedings [Sec. 3, Rule 9].
2. The court may either
U.P. LAW BOC CIVIL PROCEDURE
a. Proceed to render judgment granting the
claimant such relief as his pleading may
warrant, or
b. Require the claimant to submit evidence;
such reception of evidence may be delegated
to the clerk of court
[Sec. 3, Rule 9]
A declaration of default is not tantamount to an
admission of the truth or validity of the plaintiff’s
claims [Monarch Insurance v. CA, G.R. No. 92735
(2000)]
3. A defending party declared in default retains the
right to appeal from the judgment by default.
However, the grounds that may be raised in such
an appeal are restricted to any of the following:
a. The failure of the plaintiff to prove the
material allegations of the complaint;
b. The decision is contrary to law; and
c. The amount of judgment is excessive or
different in kind from that prayed for
[Otero v. Tan, G.R. No. 200134 (2012)]
c. Relief from an Order of Default
1. A party declared in default may at any time after
notice thereof and before judgment file a
motion under oath to set aside the order of
default upon proper showing that
a. His failure to answer was due to fraud,
accident, mistake or excusable negligence,
and
b. He has a meritorious defense
[Sec. 3(b), Rule 9]
“Meritorious defense” means that the motion
must be accompanied by a statement of the
evidence which he intends to present if the
motion is granted and which is such as to warrant
a reasonable belief that the result of the case
would probably be otherwise if a new trial is
granted [Kilosbayan v. Janolo, G.R. No. 180543
(2010)]
In such case, the order of default may be set aside
in such terms and conditions as the judge may
impose in the interest of justice [Sec. 3(b), Rule 9]
2. If the judgment has already been rendered
when the defendant discovered the default, but
before the same has become final and
executory, he may file
a. a motion for new trial under Sec. 1(a), Rule
37 [Lina v. CA, G.R. No. L-63397 (1985)], or
Page 54 of 481
REMEDIAL LAW
b. an appeal from the judgment as being
contrary to the evidence or the law [Republic
v. Sandiganbayan, G.R. No. 148154 (2007),
cited in 1 Riano 373, 2014 Bantam Ed.]
3. If the defendant discovered the default after the
judgment has become final and executory, he
may file a petition for relief under Rule 38 [Lina
v. CA, G.R. No. L-63397 (1985)]
These remedies presuppose that defending party
was properly declared in default, but it is
submitted, however, that certiorari will lie when
said parry was improperly declared in default [1
Riano 374, 2014 Bantam Ed.]
d. Effect of Partial Default
Partial default takes place when the complaint states a
common cause of action against several defendants,
and only some of whom answer.
Effects
1. The court should declare defaulting defendants in
default, and proceed to trial on answers of others
2. If the defense is personal to the one who
answered, it will not benefit those who did not
answer.
e. Extent of Relief to be Awarded
A judgment rendered against a party in default shall
not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages [Sec.
3(d), Rule 9]
The fact that the defendant was declared in default is
of no moment when the plaintiff would not have been
entitled to relief since his complaint did not state a ca
use of action, hence the same should be dismissed [1
Regalado 193, 2010 Ed., citing Reyes v. Tolentino, G.R.
No. L-29142 (1971)].
On the other hand, in a judgment where an answer
was filed but defendant did not appear at the hearing,
the award may exceed the amount or be different in
kind from that prayed for [Datu Samad Mangelen v. CA,
G.R. No. 88954 (1992)] Note that the defendant,
having filed an answer, was not in default in this
situation.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Default in ordinary procedure flowchart

f. Actions Where Default is Not After the lapse of time to
Allowed file an answer, the If motion denied,
plaintiff may move to defendant allowed
1. Action for annulment or declaration of nullity of declare the defendant in to file an answer
marriage [Sec. 3(e), Rule 9] default
2. Action for legal separation [Sec. 3(e), Rule 9]
3. Special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer is If motion granted, the
required to be filed [Sec. 6, Rule 65] court issues order of default
4. Cases covered by the Rule on Summary and renders judgment or
Procedure [See Sec. 6, Rule on Summary require plaintiff to submit
Procedure, which requires the court to render evidence ex parte
judgment if the defendant fails to answer]
5. In expropriation proceedings, whether or not a
defendant has previously appeared or answered,
he may present evidence as to the amount of After notice of order and
compensation to be paid for his property in the before judgment, a party
trial of the issue of just compensation [Sec. 3, par. declared in default may
3, Rule 67]
file a motion under oath
to set aside the order of
default and properly show
that (a) the failure to
answer was due to FAME,
and (b) he has a Court maintains
meritorious defense, i.e., order of default
there must be an affidavit
of merit [Sec. 3(b), Rule 9,
cited in 1 Riano 373, 2014
Bantam Ed.]

Court sets aside order of

default and defendant is
allowed to file an answer
Presentation of
plaintiff’s evidence
Case set for pre-trial ex-parte

If plaintiff proves his If plaintiff fails

allegations, judgment proves his
by default will be allegations, case is
rendered dismissed

Page 55 of 481
U.P. LAW BOC CIVIL PROCEDURE
F. Filing and Service of
Pleadings, Judgments,
Final Orders and
Resolutions
1. Payment of Docket Fees
General rule:
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payment of the
prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the
action [Proton Pilipinas v. Banque National de Paris, G.R.
No. 151242 (2005)]
Payment of docket fees is mandatory and
jurisdictional [National Transmission Corporation v.
Heirs of Teodulo Ebesa, G.R. No. 186102 (2016)].
EFFECT OF FAILURE TO PAY DOCKET
FEES AT FILING
a. The Manchester Rule
• Automatic Dismissal
• Any defect in the original pleading resulting
in underpayment of the docket fees cannot
be cured by amendment, such as by the
reduction of the claim as, for all legal
purposes, there is no original complaint over
which the court has acquired jurisdiction
[Manchester v. CA, G.R. No. 75919 (1987)]
b. Relaxation of the Manchester Rule (Sun
Insurance Doctrine)
• NOT automatic dismissal
• Court may allow payment of fees within a
reasonable time, but in no case beyond the
expiration of the applicable prescriptive
period of the action filed
[Sun Insurance v. Asuncion, G.R. No. 79937 (1989)]
c. Exception to the Sun Insurance doctrine –
The Sun Insurance rule allowing payment of
deficiency does not apply where plaintiff never
demonstrated any willingness to abide by the
Rules to pay the docket fee but stubbornly
insisted that the case filed was one for specific
performance and damages [Gochan v. Gochan, G.R.
No. 146089 (2001)]
Page 56 of 481
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d. Further modification
• Docket fees as lien
• Where the trial court acquires jurisdiction
over a claim by the filing of the pleading and
the payment of the prescribed filing fee, but
subsequently, the judgment awards a claim
not specified in the pleading, or cannot then
be estimated, or a claim left for
determination by the court, then the
additional filing fee shall constitute a lien on
the judgment
[Heirs of Hinog v. Melicor, G.R. No. 140954 (2005)]
e. Limitation on the claims covered by fees as
lien
Claims not specified or claims although specified
are left for determination of the court are limited
only to any damages that may arise after the filing
of the complaint or similar pleading for then it
will not be possible for the claimant to specify
nor speculate as to the amount thereof [Metrobank
v. Perez, G.R. No. 181842 (2010)]
2. Filing v. Service of Pleadings
Filing is the act of presenting the pleading or other
paper to the clerk of court [Sec. 2, Rule 13]
Service is the act of providing a party or, if any party
has appeared by counsel, his counsel, with a copy of
the pleading or paper concerned [Sec. 2, Rule 13]
Papers required to be filed and served
a. Judgment
b. Resolution
c. Order
d. Pleading subsequent to the complaint
e. Written motion
f. Notice
g. Appearance
h. Demand
i. Offer of judgment; or
j. Similar papers
[Sec. 4, Rule 13]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Responsive Reckoning
Period
3. Periods of Filing of Pleadings Point
complaint
Pleadings [Sec. 5, Rule
11]
Responsive Reckoning Service of the
Period Reply [Sec. 6, Within 10
Pleadings Point pleading
Rule 11] days
Within 15 responded to
Answer to the days Within 10
Answer to
complaint (unless a Service of days Notice of the
supplemental
[Sec. 1, Rule different summons (unless a order
complaint
11] period is fixed different admitting the
[Sec. 7, Rule
by the court) period is fixed same
11]
Answer of a by the court)
defendant
Receipt of
foreign private Within 30 Extension of time to plead
summons by
juridical entity days a. Upon motion and on such terms as may be just,
such entity
[Sec. 2, Rule the court may extend the time to plead provided
11] in these Rules.
Answer to b. The court may also, upon like terms, allow an
amended Service of a answer or other pleading to be filed after the time
complaint as a Within 15 copy of the fixed by these Rules.
matter of right days amended [Sec. 11, Rule 11]
[Sec. 3, Rule complaint 4. Manner of Filing
11]
Answer to
How pleadings, appearances, motions, notices,
amended Notice of the
orders, judgments and all other papers are filed:
complaint order
Within 10 By presenting the original copies thereof, plainly
NOT as a admitting the
days indicated as such
matter of right amended
a. Personally to the clerk of court or
[Sec. 3, Rule complaint
b. By sending them by registered mail
11]
[Sec. 3, Rule 13]
Answer to an
amended Personal filing
counterclaim The clerk of court shall endorse on the pleading the
amended date and hour of filing [Sec. 3, Rule 13]
cross-claim,
amended third Same as Same as Filing by registered mail
(fourth, etc.) - answer to answer to a. The date of the mailing of motions, pleadings, or
party amended amended any other papers or payments or deposits, as
complaint, and complaint complaint shown by the post office stamp on the envelope
amended or the registry receipt, shall be considered as the
complaint-in- date of their filing, payment, or deposit in court.
intervention b. The envelope shall be attached to the record of
[Sec. 3, Rule the case.
11] [Sec. 3, Rule 13]
Answer to
counterclaim Filing by mail should be through the registry service
Within 10
or cross-claim Service which is made by deposit of the pleading in the post
days
[Sec. 4, Rule office, and not through other means of transmission
11] [1 Regalado 228, 2010 Ed.]
Answer to Same as Same as
third (fourth, answer to the answer to the
etc.) -party complaint complaint

Page 57 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: Filing a pleading by facsimile is not sanctioned.

But fax was allowed in an extradition case, where a c. Substituted Service
request for provisional arrest, not a pleading, was in
issue [Cuevas v. Muñoz, G.R. No. 140520 (2000)] When proper
1. Service cannot be made personally or by mail
Filing by private carrier 2. Office and place of residence of the party or
If a party avails of a private carrier, the date of the his counsel being unknown
court’s actual receipt of the pleading (not the date of [Sec. 8, Rule 13]
delivery to the private carrier) is deemed to be the date
of the filing of that pleading [Benguet Electric Cooperative Papers that may be served through substituted
v. NLRC, G.R. No. 89070 (1992)] service
1. Pleadings
5. Modes of Service 2. Motions
3. Notices
Service may be made 4. Resolutions, and
a. Personally or 5. Other papers
b. By mail [Sec. 5, Rule 13] [Sec. 8, Rule 13]
c. By substituted service [Sec. 8, Rule 13]
d. By publication [Sec. 9, Rule 13] Judgments, final orders or final resolutions cannot be
served by substituted service [1 Regalado 233, 2010
Ed.]
a. Personal service
How made
1. By delivering personally a copy to the party or
1. Delivering the copy to the clerk of court
his counsel, or
2. With proof of failure of both personal
2. By leaving a copy in the counsel’s office with his
service and service by mail
clerk or with a person having charge thereof
[Sec. 8, Rule 13]
3. If no person is found in his office, or his office is
not known or he has no office, then by leaving
When complete
the copy between 8 a.m. and 6 p.m., at the party’s
At the time of such delivery [Sec. 8, Rule 13]
or counsel’s residence, if known, with a person
of sufficient age and discretion then residing
therein d. Service of Judgments, Final
[Sec. 6, Rule 13] Orders, or Resolutions
b. Service by Mail General rule: Judgments, final orders or resolutions
shall be served either
Service by registered mail shall be made by 1. Personally, or
a. Depositing the copy in the post office 2. By registered mail
b. In a sealed envelope
c. Plainly addressed to the party or his counsel Exception: When a party summoned by publication has
d. At his office, if known, otherwise at his residence, failed to appear in the action, judgments, final orders
if known or resolutions against him shall be served upon him
e. With postage fully prepaid, and also by publication at the expense of the prevailing
f. With instructions to the postmaster to return the party.
mail to the sender after 10 days if undelivered [Sec. 9, Rule 13]

Ordinary mail – If no registry service is available in e. Priorities in Modes of Service

the locality of either the sender or addressee. and Filing
[Sec. 7, Rule 13]
Whenever practicable, service and filing of
pleadings and other papers shall be done personally
[Sec. 11, Rule 13]

Page 58 of 481
U.P. LAW BOC CIVIL PROCEDURE
General Rule: Resort to other modes must be
accompanied by a written explanation why the
service/filing was not done personally. A violation of
this Rule may be cause to consider the paper as not
filed.
Exception: Papers emanating from the court
[Sec. 11, Rule 13]
f. When Service is Deemed
Complete
1. Personal service – upon actual delivery
2. Service by ordinary mail – upon the expiration
of 10 days after mailing, unless the court
otherwise provides
3. Service by registered mail – upon actual receipt
by the addressee, or after 5 days from the date he
received the first notice of the postmaster,
whichever date is earlier
[Sec. 10, Rule 13]
4. Substituted service – At the time of delivery of
the copy to the clerk of court, with proof of
failure of both personal service and service by
mail [Sec. 8, Rule 13]
g. Proof of Filing and Service
Proof of filing
General rule: The filing of a pleading or paper shall be
proved by its existence in the record of the case
Exception: If it is not in the record, but
1. is claimed to have been filed personally, the filing
shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court
on a copy of the same
2. if filed by registered mail, by the registry receipt
and by the affidavit of the person who did the
mailing, containing a full statement of the date
and place of depositing the mail in the post office
in a sealed envelope addressed to the court, with
postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after
10 days if not delivered
[Sec. 12, Rule 13]
Proof of service
1. Personal service
a. Written admission of the party served, or
b. Official return of the server, or
Page 59 of 481
REMEDIAL LAW
c. Affidavit of the party serving, containing a
full statement of the date, place and manner
of service
2. Service by ordinary mail – Affidavit of the
person mailing of facts showing compliance with
Sec. 7, Rule 13
3. Service by registered mail
a. Affidavit of the person mailing of facts
showing compliance with Sec. 7, Rule 13
b. Registry receipt issued by the mailing office
The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof of the
unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the
addressee [Sec. 13, Rule 13]
Service to the lawyer binds the party. But service to
the party does not bind the lawyer, unless ordered by
the court in the following circumstances
1. When it is doubtful who the attorney for
such party is; or
2. When the lawyer cannot be located; or
3. When the party is directed to do something
personally, as when he is ordered to show
cause
[Retoni, Jr. v. CA, G.R. No. 96776 (1993)]
It is a general rule that notice to counsel is notice to
parties. This Rule’s application to a given case,
however, should be looked into and adopted,
according to the surrounding circumstances;
otherwise, in the court's desire to make a short cut of
the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of
justice. It would then be easy for one lawyer to sell
one's rights down the river, by just alleging that he just
forgot every process of the court affecting his clients,
because he was so busy. Under this circumstance, one
should not insist that a notice to such irresponsible
lawyer is also a notice to his clients [Bayog v. Natino,
G.R. No. 118691 (1996)]
U.P. LAW BOC CIVIL PROCEDURE
G. Amendment
How to amend pleadings
1. Adding an allegation
2. Adding the name of any party
3. Striking out an allegation
4. Striking out the name of any party;
5. Correcting a mistake in the name of a party, or
6. Correcting a mistaken or inadequate allegation or
description in any other respect
[Sec. 1, Rule 10]
Purpose
So that the actual merits of the controversy may
speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner [Sec. 1, Rule 10]
The courts should be liberal in allowing amendments
to pleadings to avoid a multiplicity of suits and in
order that the real controversies between the parties
are presented, their rights determined, and the case
decided on the merits without unnecessary delay [Tiu
v. Phil. Bank of Communication, G.R. No. 151932 (2009)]
As a general policy, liberality in allowing amendments
is greatest in the early stages of a law suit, decreases as
it progresses and changes at times to a strictness
amounting to a prohibition. This is further restricted
by the condition that the amendment should not
prejudice the adverse party or place him at a
disadvantage [Barfel Development v. CA, G.R. No.
98177 (1993)]
How to file amended pleadings
When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments, which
shall be indicated by appropriate marks, shall be filed
[Sec.7., Rule 10]
1. Amendments as a Matter of
Right
A party may amend his pleading once as a matter of
right
a. At any time before a responsive pleading is
served, or
b. In the case of a reply, at any time within 10 days
after it is served
[Sec. 2, Rule 10]
Page 60 of 481
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A motion to dismiss is not a responsive pleading and
does not preclude the exercise of the plaintiff’s right
to amend his complaint [Remington Industrial Sales v.
CA, G.R. No. 133657 (2002)]
2. Amendments by Leave of
Court
Substantial amendments may be made only upon
leave of court [Sec. 3, Rule 10]
Requisites
a. Motion for leave of court, accompanied by the
amended pleading sought to be admitted [Sec. 9,
Rule 15]
b. Notice is given to the adverse party
c. Parties are given opportunity to be heard
[Sec. 3, Rule 10]
When amendment may not be allowed
a. If it appears to the court that the motion for leave
of court was made with intent to delay [Sec. 3,
Rule 10]
b. 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, G.R. No. L-62082 (1992)]
c. If amendment is for curing a premature or
inexistent cause of action. The cause of action
must exist at the time the action was begun, and
the plaintiff will not be allowed by an amendment
to introduce a cause of action which had no
existence when the action was commenced
[Surigao Mine Exploration v. Harris et al, G.R. No.
L-45543 (1939)]
Interestingly, Section 3, Rule 10 of the 1997 Rules of
Civil Procedure amended the former Rule in such
manner that the phrase "or that the cause of action or
defense is substantially altered" was stricken-off and
not retained in the new Rules. The clear import of
such amendment in Section 3, Rule 10 is that under
the new Rules, "the amendment may (now)
substantially alter the cause of action or defense." This
should only be true, however, when despite a
substantial change or alteration in the cause of action
or defense, the amendments sought to be made shall
serve the higher interests of substantial justice, and
prevent delay and equally promote the laudable
objective of the Rules which is to secure a "just,
speedy and inexpensive disposition of every action
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

and proceeding [Valenzuela v. CA, G.R. No. 131175 b. The adverse party may plead thereto within ten
(2012)] (10) days from notice of the order admitting the
supplemental pleading [Sec. 6, Rule 10]
3. Formal Amendments
The admission or non-admission of a supplemental
pleading is not a matter of right but is discretionary
When proper
on the court. Note the language of Sec. 6, Rule 10:
a. Defect in the designation of the parties
“may”.
b. Other clearly clerical or typographical errors
[Sec. 4, Rule 10]
Purpose
To bring into the records new facts which will enlarge
How made
or change the kind of relief to which the plaintiff is
a. Summarily corrected by the court
entitled [Ada v. Baylon, G.R. No. 182435 (2012)]
b. At any stage of the action
c. At its initiative or on motion
Amended v. Supplemental Pleadings
d. No prejudice is caused thereby to the adverse
Supplemental
party Amended Pleadings
Pleadings
[Sec. 4, Rule 10]
Refer to transactions,
occurrences or events
4. Amendments to Conform to Refer to facts existing
which have happened
at the time of the
or Authorize Presentation of commencement of the
since the date of the
pleading sought to be
Evidence action
supplemented [Sec. 6,
Rule 10]
a. When issues not raised by the pleadings are tried Either as a matter of
with the express or implied consent of the parties, Always by leave of
right or by leave of
they shall be treated in all respects as if they had court [1 Regalado 211,
court [See Sec. 2 and 3,
been raised in the pleadings. 2010 Ed.]
Rule 10]
b. Such amendment of the pleadings as may be
necessary to cause them to conform to the Merely supplements,
evidence and to raise these issues may be made Supersedes the
and exists side-by-side
upon motion of any party at any time, even after pleading that it amends
with the original [1
judgment; but failure to amend does not affect [Sec. 7, Rule 10]
Riano 366, 2011 Ed.]
the result of the trial of these issues.
c. If evidence is objected to at the trial on the A new copy of the
ground that it is not within the issues made by the entire pleading,
pleadings, the court may allow the pleadings to incorporating the
be amended and shall do so with liberality if the amendments, which No such requirement
presentation of the merits of the action and the shall be indicated by exists [Sec. 6, Rule 10]
ends of substantial justice will be subserved appropriate marks,
thereby. shall be filed [Sec. 7,
d. The court may grant a continuance to enable the Rule 10]
amendment to be made
[Sec. 5, Rule 10] Supplemental pleadings are not allowed on separate
and distinct causes of action but a supplemental
pleading may raise a new cause of action as long as it
5. Supplemental Pleadings has some relation to the original cause of action set
forth in the original complaint [Ada v. Baylon, G.R.
a. Upon motion of a party the court may, upon No. 182435 (2012)]
reasonable notice and upon such terms as are
just, permit him to serve a supplemental pleading
setting forth transactions, occurrences or events
which have happened since the date of the
pleading sought to be supplemented.

Page 61 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

H. Summons
6. Effect of Amended Pleading
Definition
a. An amended pleading supersedes the pleading The writ by which the defendant is notified of the
that it amends action brought against him [Licaros v. Licaros, G.R. No.
b. Admissions in the superseded pleadings may be 150656 (2003)]
received in evidence against the pleader (as
extrajudicial admissions) By whom issued
c. Claims or defenses alleged in the superseded Clerk of court [Sec. 1, Rule 14]
pleading but not incorporated or reiterated in the
amended pleading are deemed waived [Sec. 8, When issued
Rule 10] 1. Upon the filing of the complaint and
2. Upon the payment of the requisite legal fees
[Sec. 1, Rule 14]

Contents
1. Summons shall be
a. Directed to the defendant
b. Signed by the clerk of court under seal
2. Summons shall contain
a. The name of the court, and the names of the
parties to the action
b. A direction that the defendant answer within
the time fixed by the ROC, and
c. A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief applied
for
3. The following shall be attached to the original
and each copy of the summons
a. A copy of the complaint, and
b. An order for appointment of guardian ad
litem, if any
[Sec. 2, Rule 14]

Who may serve summons

1. The sheriff
2. His deputy
3. Other proper court officer, or
4. For justifiable reasons, any suitable person
authorized by the court
[Sec. 3, Rule 14]

The enumeration of persons who may validly serve

summons is exclusive [1 Regalado 245, 2010 Ed.]

Page 62 of 481
U.P. LAW BOC CIVIL PROCEDURE
1. Nature and Purpose of
Summons in Relation to
Actions in personam, in rem,
and quasi in rem
Action in personam
a. A proceeding to enforce personal rights and
obligations brought against the person and is
based on the jurisdiction of the person, although
it may involve his right to, or the exercise of
ownership of, specific property, or seek to
compel him to control or dispose of it in
accordance with the mandate of the court.
b. The purpose of a proceeding in personam is to
impose, through the judgment of a court, some
responsibility or liability directly upon the person
of the defendant
[Domagas v. Jensen, G.R. No. 158407 (2005)]
Purpose of summons in an action in personam
a. To acquire jurisdiction over the person of the
defendant in a civil case
b. To give notice to the defendant that an action has
been commenced against him.
[1 Riano 376, 2011 Ed.]
Where the action is in personam, that is, one brought
against a person on the basis of his personal liability,
jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the
case [Velayo-Fong v. Velayo, G.R. No. 155488 (2006)]
Action in rem
Actions against the thing itself. They are binding upon
the whole world. "Against the thing" means that
resolution of the case affects interests of others
whether direct or indirect. It also assumes that the
interests — in the form of rights or duties — attach
to the thing which is the subject matter of litigation
[De Pedro v. Romasan Development Corp., G.R. No.
194751 (2014)]
Actions quasi in rem
A proceeding brought against persons seeking to
subject the property of such persons to the discharge
of the claims assailed. In an action quasi in rem, an
individual is named as defendant and the purpose of
the proceeding is to subject his interests therein to the
obligation or loan burdening the property. Actions
quasi in rem deal with the status, ownership or liability
of a particular property but which are intended to
Page 63 of 481
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operate on these questions only as between the
particular parties to the proceedings and not to
ascertain or cut off the rights or interests of all
possible claimants. The judgments therein are binding
only upon the parties who joined in the action
[Domagas v. Jensen, G.R. No. 158407 (2005)]
Purpose of summons in actions in rem and quasi
in rem
a. Not to acquire jurisdiction over the defendant
but mainly to satisfy the constitutional
requirement of due process
b. Jurisdiction over the defendant is not required
c. The court acquires jurisdiction over an action as
long as it acquires jurisdiction over the res that is
the subject matter of the action
[Macasaet v. Co, Jr., G.R. No. 156759 (2013)]
2. Voluntary Appearance
Any form of appearance in court, by the defendant,
by his agent authorized to do so, or by attorney, is
equivalent to service except where such appearance is
precisely to object the jurisdiction of the court over
the person of the defendant [Carballo v. Encarnacion,
G.R. No. L- 5675 (1953)]
General rule: Defendant's voluntary appearance in the
action shall be equivalent to service of summons [Sec.
20, Rule 14]
Exceptions: Conditional appearance to file a motion to
dismiss challenging the court’s jurisdiction shall not
be deemed a voluntary appearance.
a. Special appearance operates as an exception to
the general rule on voluntary appearance;
b. Objections to the jurisdiction of the court over
the person of the defendant must be explicitly
made, i.e., set forth in an unequivocal manner;
and

c. Failure to do so constitutes voluntary submission
to the jurisdiction of the court, especially in
instances where a pleading or motion seeking
affirmative relief is filed and submitted to the
court for resolution
[Philippine Commercial International Bank v. Spouses Dy,
G.R. No. 171137 (2009)]
Inclusion in the motion to dismiss of grounds aside
from lack of jurisdiction over the defendant’s person,
shall not be deemed a voluntary appearance [Sec. 20,
Rule 14]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

However, seeking affirmative relief other than Personal Service of Personal Service of
dismissal of the case is a manifestation of voluntary Pleadings Summons
submission to the court’s jurisdiction. The active leaving the copy
participation of a party in the proceedings is between 8 a.m. and
tantamount to an invocation of the court’s 6 p.m., at the
jurisdiction and a willingness to abide by the party’s or counsel’s
resolution of the case, and will bar said party from residence, if
later on impugning the court’s jurisdiction [Republic v. known, with a
Sereno, G.R. No. 237428 (2018), citing Philippine person of
Commercial International Bank v. Spouses Dy, G.R. No. sufficient age and
171137 (2009)] discretion then
residing therein
Modes of service of summons
a. Service in person on defendant [Sec. 6, Rule 14]
b. Substituted service [Sec. 7, Rule 14]
4. Substituted Service
c. Service by publication [Sec. 14, Rule 14]
d. Extraterritorial service [Sec. 15-16, Rule 14] When allowed
If, for justifiable causes, the defendant cannot be
Note: There is no service of summons solely by served within a reasonable time as provided in Sec. 6,
registered mail except as an additional Rule 14 (service in person on defendant) [Sec. 7, Rule
requirement to service by publication. Where 14]
service is made by publication, a copy of the
summons and order of the court shall be sent by How done
registered mail to last known address of defendant a. By leaving copies of the summons at the
[Sec. 15, Rule 14] defendant’s residence with some person of
suitable age and discretion then residing therein;
or
3. Personal Service b. By leaving the copies at defendant’s office or
regular place of business with some competent
How done [Sec. 6, Rule 14] person in charge thereof
a. By handing a copy of the summons to the
defendant in person, or Requisites
b. If he refuses to receive and sign for it, by It is necessary to establish the following
tendering it to him a. Indicate the impossibility of service of summons
within a reasonable time
Personal Service of Personal Service of b. Specify the efforts exerted to locate the
Pleadings Summons defendant, and
[Sec. 6, Rule 13] [Sec. 6, Rule 14] c. State that the summons was served upon:
Papers may be served 1. a person of sufficient age and discretion who
a. By delivering is residing in the address, or
personally a copy 2. a person in charge of the office or regular
to the party or his place of business, of the defendant
counsel, or d. It is likewise required that the pertinent facts
b. By leaving a copy proving these circumstances be stated in the
in the counsel’s proof of service or in the officer’s return
office with his Summons is served to [Sps. Tiu v. Villar, A.M. No. P-11-2986 (2012)]
clerk or with a the defendant in person
person having Residence, defined
charge thereof The place where the person named in the summons
c. If no person is is living at the time of when the service is made, even
found in his office, though he may be temporarily out of the country at
or his office is not that time [Venturanza v. CA, G.R. No. 77760 (1987)]
known or he has
no office, then by

Page 64 of 481
U.P. LAW BOC CIVIL PROCEDURE
The residence of a person is his personal, actual or
physical habitation or his actual residence or place of
abode, which may not necessarily be his legal
residence or domicile provided he resides therein with
continuity and consistency [Boleyley v. Villanueva, G.R.
No. 128734 (1999)]
Person of sufficient age and discretion
a. A person of suitable age and discretion is one
who has attained the age of full legal capacity (18
years old) and is considered to have enough
discernment to understand the importance of a
summons.
b. "Discretion" is defined as "the ability to make
decisions which represent a responsible choice
and for which an understanding of what is lawful,
right or wise may be presupposed".
c. Thus, to be of sufficient discretion, such person
must know how to read and understand English
to comprehend the import of the summons, and
fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible
time for the person to take appropriate action.
Thus, the person must have the "relation of
a. Service upon Defendant Whose
Identity or Whereabouts is
Unknown
1. Defendant is designated as an unknown owner,
or the like, or
2. His whereabouts are unknown and cannot be
ascertained with diligent inquiry
[Sec. 14, Rule 14]
How service is effected
1. By publication,
2. In a newspaper of general circulation, and
3. In such places, and
4. For such time as the court may order
[Sec. 14, Rule 14]
Sec. 14 applies to “any action,” making no distinction
between actions in rem, in personam and quasi in rem.
b. Service upon Residents
Temporarily Outside the
Philippines
When any action is commenced against a defendant
who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of
Page 65 of 481
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confidence" to the defendant, ensuring that the
latter would receive or at least be notified of the
receipt of the summons
[Prudential Bank v. Magdamit, G.R. No. 183795 (2014)]
Person in charge
Must be the one managing the office or business of
defendant, such as the president or manager; and such
individual must have sufficient knowledge to
understand the obligation of the defendant in the
summons, its importance, and the prejudicial effects
arising from inaction on the summons [Prudential
Bank v. Magdamit, G.R. No. 183795 (2014)]
5. Constructive Service (by
Publication)
a. Service upon defendant whose identity or
whereabouts are unknown [Sec. 14, Rule 14]
b. Service upon a resident temporarily out of the
Philippines [Sec. 16, Rule 14]
c. Extraterritorial service [Sec. 15, Rule 14]
court, be also effected out of the Philippines, as under
Sec 15, Rule 14 (extraterritorial service) [Sec. 16, Rule
14]
How summons served
1. Service in person on defendant under Sec. 6,
Rule 14, or
2. Publication in a newspaper of general
circulation in such places and for such time
as the court may order, in which case a copy
of the summons and order of the court shall
be sent by registered mail to the last known
address of the defendant, or
3. In any other manner the court may deem
sufficient
[Sec. 15, Rule 14]
Unlike in Sec. 15, Rule 14, service may be effected in
this manner for “any action,” not distinguishing
between actions in rem, in personam, and quasi in rem.
Even without Sec. 15, Rule 14, as the defendant has
a residence in the Philippines, summons may also be
served through substituted service under Sec. 7, Rule
14. [1 Riano 391, 2011 Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2. His legal guardian or if he has none, upon

6. Extraterritorial Service of his guardian ad litem whose appointment
shall be applied for by the plaintiff
Summons, When Allowed b. Service may also be made on his father or
mother
a. When the defendant does not reside and is not [Sec. 10, Rule 14]
found in the Philippines, and
b. The action OTHER DEFENDANTS
1. Affects the personal status of the plaintiff or
2. Relates to, or the subject of which is, Upon an entity without juridical personality
property within the Philippines, in which the a. When applicable
defendant has or claims a lien or interest, 1. Persons are associated in an entity without
actual or contingent, or juridical personality, and
3. In which the relief demanded consists, 2. They are sued under the name by which they
wholly or in part, in excluding the defendant are generally or commonly known
from any interest therein, or b. Service may be effected upon all the defendants
4. The property of the defendant has been by serving upon
attached within the Philippines [Sec. 15, 1. Any one of them, or
Rule 14] 2. The person in charge of the office or place
of business maintained in such name. [Sec.
Service may, by leave of court, be effected out of the 8, Rule 14]
Philippines
a. By personal service as under Sec. 6, Rule 14, Upon incompetents
or Service is effected upon
b. By publication in a newspaper of general a. The defendant personally, and
circulation in such places and for such time b. His legal guardian or if he has none, upon
as court may order, in which case, a copy of his guardian ad litem whose appointment
the summons and order of the court shall be shall be applied for by the plaintiff. [Sec. 10,
sent by registered mail to the last known Rule 14]
address of the defendant, or
c. In any other manner the court may deem Upon a domestic private juridical entity
sufficient. Service is effected upon:
Any order granting such leave shall specify a a. The president,
reasonable time within which defendant must b. Managing partner,
answer, which shall not be less than 60 days after c. General manager,
notice. d. Corporate secretary,
[Sec. 15, Rule 14] e. Treasurer, or
f. In- house counsel.
[Sec. 11, Rule 14]
7. Service upon Prisoners and
Minors Upon a foreign private juridical entity
Service may be made on
Upon prisoners a. When the defendant is transacting business in
Where the defendant is a prisoner confined in a jail the Philippines:
or institution, service shall be effected upon him by 1. Upon the resident agent; or
the officer having the management of such jail or 2. If there be no such agent, on the
institution who is deemed deputized as a special government official designated by law to
sheriff for said purpose [Sec. 9, Rule 14] that effect, or
3. On any of its officers or agents within the
Upon minors [Sec. 9, Rule 14] Philippines
When the defendant is a minor b. When the defendant is not registered in the
a. Service shall be made upon Philippines or has no resident agent, with leave
1. The minor defendant personally; and of court

Page 66 of 481
U.P. LAW BOC CIVIL PROCEDURE
1. By personal service coursed through the
appropriate court in the foreign country
with the assistance of the DFA
2. By publication once in a newspaper of
general circulation in the country where the
defendant may be found and by serving a
copy of the summons and the court order by
registered mail at the defendant’s last known
address;
3. By facsimile or any recognized electronic
means that can generate proof of service, or
4. By such other means as the court may in its
discretion direct. [Sec. 12, Rule 14, as
amended by A.M. No. 11-3-6-SC]
Upon public corporations
Service may be effected
a. When the defendant is the Republic of the
Philippines, on the Solicitor General;
b. In case of a province, city, municipality, or
like public corporations
1. Its executive head, or
2. Such officer/s as the law or the court may
direct. [Sec. 13, Rule 14]
8. Proof of Service
Return
When the service has been completed, the server shall
a. Within 5 days therefrom, serve a copy of the
return, personally or by registered mail, to
the plaintiff’s counsel, and
b. Return the summons to the clerk who issued
it, accompanied by proof of service
[Sec. 4, Rule 14]
It is required to be given to the plaintiff’s counsel in
order to enable him
a. To move for a default order should the
defendant fail to answer on time [Sec.3, Rule
9], or
b. In case of non-service, so that alias
summons may be sought [Sec. 5, Rule 14]
[1 Regalado 245, 2010 Ed.]
Alias summons
a. If a summons is returned without being
served on any or all of the defendants, the
server shall also serve a copy of the return
on the plaintiff’s counsel, stating the reasons
for the failure of service, within five (5) days
therefrom.
Page 67 of 481
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b. In such a case, or if the summons has been
lost, the clerk, on demand of the plaintiff,
may issue an alias summons.
[Sec. 5, Rule 14]
Proof of service shall
a. Be made in writing by the server and
b. Set forth
1. the manner, place, and date of service;
2. any papers which have been served with the
process, and
3. the name of the person who received the
papers served
c. Be sworn to when made by a person, other than
the sheriff or his deputy
[Sec. 18, Rule 14]
If service has been made by publication, service may
be proved by
a. The affidavit of the printer, his foreman or
principal clerk; or of the editor, business or
advertising manager
b. A copy of the publication attached to the
affidavit, and
c. An affidavit showing the deposit of a copy
of the summons and order for publication in
the post office, with postage prepaid,
directed to the defendant by registered mail
to the last known address
[Sec. 18, Rule 14]
Effect of defect of proof of service
a. Where sheriff’s return is defective, presumption
of regularity in the performance of official
functions will not lie [Sps. Venturanza v. CA, G.R.
No. 77760 (1987)].
b. Defective return is insufficient and incompetent
to prove that summons was indeed served
[Santiago Syjuco, Inc. v. Castro, G.R. No. 70403
(1989)].
c. Party alleging valid summons will now prove that
summons was indeed served [Heirs of Manguiat v.
CA, G.R. No. 150768 (2008)].
d. If there is no valid summons, court did not
acquire jurisdiction which renders null and void
all subsequent proceedings and issuances
[Santiago Syjuco, Inc. v. Castro, G.R. No. 70403
(1989)].
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

I. Motions d. Notice of Hearing and Hearing

1. Motions in general of Motions
Except for motions which the court may act upon
a. Definition of a Motion without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the
A motion is any application for relief other than by applicant [Sec. 4, Rule 15]
a pleading [Sec. 1, Rule 15]
General rule: Motions shall be scheduled for hearing
b. Motions v. Pleadings 1. On Friday afternoons; or
2. if Friday is a non-working day, in the afternoon
Motion Pleading of the next working day
Contains allegations of
Contains allegations of Exception: Motions which require immediate action
the ultimate facts [Sec.
facts [Sec. 3, Rule 15] [Sec. 7, Rule 15]
1, Rule 8]
Prays for a relief [Sec. 1, Rule 15]
Generally in writing Notice of hearing
Always in writing [Sec. Notice shall be addressed to all parties concerned,
(with some exceptions)
1, Rule 6] and shall specify the time and date of the hearing
[Sec. 2, Rule 15]
which must not be later than 10 days after the filing
of the motion [Sec. 5, Rule 15]
General Rule: A motion does not pray for judgment [1
Riano 339, 2005 Ed.]
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such
Exceptions:
a manner as to ensure its receipt by the other party at
1. Motion for judgment on the pleadings [Sec.
least 3 days before the date of hearing, unless the
1, Rule 34]
court for good cause sets the hearing on shorter
2. Motion for summary judgment [Sec. 1, Rule
notice [Sec. 4, Rule 15]
35]
3. Motion for dismissal on demurrer to
Purpose
evidence [Sec. 1, Rule 33]
To prevent surprise upon the adverse party and to
enable the latter to study and meet the arguments of
c. Contents and Form of Motions the motion [J.M.Tuason & Co., Inc. v. Magdangal, G.R.
No. L-51458 (1962)]
Contents
1. Relief sought to be obtained, and Notice must be addressed to the counsels. A notice
2. Grounds upon which it is based, and of hearing addressed to the clerk of court, and not to
3. With supporting affidavits and other papers if the parties, is no notice at all. Accordingly, a motion
a. Required by the ROC, or that does not contain a notice of hearing to the
b. Necessary to prove facts alleged therein adverse party is nothing but a mere scrap of paper, as
[Sec. 3, Rule 15] if it were not filed [Provident International Resources v.
CA, G.R. No. 119328 (1996)]
Form
General rule: In writing Exceptions to the three-day notice Rule:
Exceptions: Motions made in 1. Ex parte motions
1. Open court or 2. Urgent motions
2. The course of a hearing or trial 3. Motions agreed upon by the parties to be heard
[Sec. 2, Rule 15] on shorter notice, or jointly submitted by the
parties
4. Motions for summary judgment which must be
served at least 10 days before its hearing [Sec. 3,
Rule 35] [1 Regalado 264, 2010 Ed.]

Page 68 of 481
U.P. LAW BOC CIVIL PROCEDURE
Proof of service
No written motion set for hearing shall be acted upon
by the court without proof of service thereof [Sec. 6,
Rule 15]
Exceptions:
1. If the motion is one which the court can hear ex
parte; and
2. If it would not cause prejudice to the adverse
party
[Anama v. Philippine Savings Bank, G.R. No. 187021
(2012)]
e. Omnibus Motion Rule
General rule: A motion attacking a pleading, order,
judgment, or proceeding shall include all objections
then available. All objections not included in the
motion are deemed waived [Sec. 8, Rule 15]
Purpose: To require the movant to raise all available
exceptions for relief during a single opportunity so
that multiple and piece-meal objections may be
avoided [Manacop v. Court o fAppeals, G.R. No. 104875
(1992)]
Exceptions:
1. Lack of jurisdiction over subject matter
2. Litis pendentia
3. Res judicata
4. Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9]
f. Litigated and Ex Parte motions
Litigated motions
One which requires the parties to be heard before a
ruling on the motion is made by the court; written
motions are generally litigated motions [1 Riano 368,
2011 Ed.]
Ex parte motions
One which does not require such ruling, and upon
which the court may act without prejudicing the
rights of the other party [1 Riano 368, 2011 Ed.]
Section 4 lays the general rule that all written motions
shall be set for hearing by the movant, except the
non-litigated motions or those which may be acted
upon by the court without prejudicing the rights of
the adverse party. These ex parte motions include a
motion for extension of time to file pleadings, motion
for extension of time to file an answer, and a motion
Page 69 of 481
REMEDIAL LAW
for extension of time to file a record on appeal.
Nonetheless, a notice of time and place of hearing is
mandatory for motions for new trial or motion for
reconsideration [Spouses Rustia v. Rivera, G.R. No.
156903 (2006)]
g. Pro-forma Motions
A pro forma motion is one which does not satisfy the
requirements of the Rules and one which will be
treated as a motion intended to delay the proceedings
[Marikina Development Corporation v. Flojo, G.R. No.
110801 (1995)]
Examples of pro forma motions:
1. A motion without a notice of hearing [1 Riano
426, 2011 Ed.]
2. A motion which was not set for hearing [1 Riano
369, 2011 Ed.]
3. A motion which was not served in the manner
provided in Sec 4, Rule 15 [1 Riano 369, 2011
Ed.]
4. A motion for reconsideration that does not
specify the findings or conclusions in the
judgment which are not supported by the
evidence or contrary to law, making express
reference to the pertinent evidence or legal
provisions [1 Riano 560, 2011 Ed.]
5. A second motion for reconsideration [1 Riano
560, 2011 Ed.]
6. A motion for reconsideration which failed to
substantiate the alleged errors or which merely
alleged that the decision in question was contrary
to law [1 Riano 560, 2011 Ed.]
7. A motion for new trial which is preceding
motion for new trial or motion for
reconsideration which has already been denied [1
Regalado 427, 2010 Ed.]
8. A second motion for new trial which alleges a
ground which already existed, was available and
could have been alleged in the first motion for
new trial which was denied [1 Regalado 427, 2010
Ed.]
9. A motion for new trial It is based on the ground
of fraud, accident, mistake, or excusable
negligence but does not specify the facts
constituting such grounds and/or is not
accompanied by an affidavit of merits [1 Regalado
428, 2010 Ed.]
However, where the circumstances of a case do not
show an intent on the part of the pleader to merely
delay the proceedings, and his motion reveals a bona
fide effort to present additional matters or to reiterate
U.P. LAW BOC CIVIL PROCEDURE
his arguments in a different light, the courts should
be slow to declare the same outright as pro forma
[Guerra Enterprises Co. v. CFI, L-28310 (1970)]
2. Motion for Bill of Particulars
Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of
any matter which is not averred with sufficient
definiteness or particularity to enable him properly to
prepare his responsive pleading [Sec. 1, Rule 12]
An action cannot be dismissed on the ground that the
complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars, or avail
of the proper mode of discovery [Galeon v. Galeon,
G.R. No. L-30380 (1973)]
a. Purpose and When Applied For
Purpose: To enable the movant to prepare his
responsive pleading [Sec. 1, Rule 12].
It is not to enable the movant to prepare for trial.
When this is the purpose, the appropriate remedy is
to avail of Discovery Procedures under Rules 23 to
29 [1 Riano 419, 2011 Ed.]
When applied for
1. Before responding to a pleading
2. If the pleading is a reply, within 10 days from
service thereof
[Sec. 1, Rule 12]
Contents
The motion shall point out
1. The defects complained of
2. The paragraph wherein they are contained, and
3. The details desired
[Sec. 1, Rule 12]
The only question to be resolved in such motion is
whether the allegations in the complaint are averred
with sufficient definiteness or particularity to enable
the movant to properly prepare his responsive
pleading and to prepare for trial [Tantuico, Jr. v.
Republic, G.R. No. 89114 (1991)]
What cannot be done in a bill of particulars
1. To supply material allegations necessary to the
validity of a pleading
2. To change a cause of action or defense stated in
the pleading
Page 70 of 481
REMEDIAL LAW
3. To state a cause of action or defense other than
the one stated
4. To set forth the pleader’s theory of his cause of
action or a Rule of evidence on which he intends
to reply
5. To furnish evidentiary information
[Virata v. Sandiganbayan, G.R. No. 103527 (1993)]
b. Action of the Court
Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court,
which may either
1. Deny, or
2. Grant the motion outright, or
3. Allow the parties the opportunity to be heard
[Sec. 2, Rule 12]
c. Compliance with the Order and
Effect of Non-Compliance
If motion is granted, either in whole or in part, the
pleader must file a bill of particulars or a more
definite statement, within 10 days from notice of
order, unless the court fixes a different period.
The bill of particulars or a more definite statement
ordered by the court may be filed either in a separate
pleading or in an amended pleading, serving a copy
thereof on the adverse party [Sec. 3, Rule 12]
A bill of particulars becomes part of the pleading for
which it was intended [Sec. 6, Rule 12]
Effect of non-compliance
1. If the order is not obeyed, or in case of
insufficient compliance therewith, the court may
a. Order the striking out of the pleading or the
portions thereof to which the order is
directed, or
b. Make such order as it may deem just
[Sec. 4, Rule 12]
2. If the plaintiff fails to obey, his complaint may
be dismissed by the court. This dismissal shall
have the effect of an adjudication upon the
merits, unless otherwise declared by the court
[Sec. 3, Rule 17]
3. If defendant fails to obey, his answer will be
stricken off and his counterclaim dismissed, and
he will be declared in default upon motion of the
plaintiff [Sec. 3, Rule 9; Sec. 4, Rule 12; Sec. 4,
Rule 17]
[1 Riano 422, 2011 Ed.]
U.P. LAW BOC CIVIL PROCEDURE
d. Effect on the Period to File
Responsive Pleading
Provided that the Motion for Bill of Particulars is
sufficient in form and substance, it stays the period
for the movant to file his responsive pleading [1 Riano
422, 2011 Ed.]
When to file responsive pleading
1. After
a. Service of the bill of particulars or of a more
definite pleading, or
b. Notice of denial of his motion
2. The moving party may file his responsive
pleading
a. Within the period to which he was entitled
at the time of filing his motion,
b. Which shall not be less than 5 days in any
event
[Sec. 5, Rule 12]
3. Motion to Dismiss
A motion to dismiss under Rule 16 is a motion filed
by the defending party against the complaint or
against any pleading asserting a claim. Thus, the
original defendant may file a motion to dismiss the
complaint of the original plaintiff. A plaintiff may
also file a motion to dismiss the defendant’s
counterclaim and a defendant may file a motion to
dismiss a co-defendant’s cross-claim. A third-party
defendant may also file a motion to dismiss a third-
party complaint filed by the original defendant
against him [1 Riano 465-466, 2005 Ed.]
The motion hypothetically admits the truth of the
factual allegations stated in the complaint [1 Riano
424, 2011 Ed.].
It is not a responsive pleading. It is not a pleading at
all. It is merely a motion [1 Riano 423, 2011 Ed.].
It is subject to the omnibus motion rule since it is a
motion that attacks a pleading. Hence, it must raise
all objections then available [Sec. 8, Rule 15].
Types of dismissal of action
a. Upon Motion to Dismiss under Rule 16
b. Dismissal of the action either upon notice by the
plaintiff or upon his own motion under Secs. 1
and 2, Rule 17
Page 71 of 481
REMEDIAL LAW
c. Dismissal of the action under Sec. 3, Rule 17 for
causes attributable to the plaintiff
d. Upon demurrer to evidence after plaintiff has
presented his evidence under Rule 33
e. Dismissal of an appeal under Rule 50
[1 Riano 465-466, 2005 Ed.]
Period to File
General rule: Within the time for but before filing of
the answer to the complaint or pleading asserting a
claim [Sec. 1, Rule 16]
Exceptions:
a. For special reasons which may be allowed even
after trial has begun, a motion to dismiss may be
filed
b. The court has allowed the filing of a motion to
dismiss where the evidence that would constitute
a ground for dismissal was discovered during
trial
General rule: A court may not dismiss a case motu propio,
unless a motion to dismiss is filed by a party.
Exceptions:
a. Upon the grounds stated in Sec. 1, Rule 9:
1. lack of subject matter jurisdiction
2. res judicata
3. litis pendentia
4. prescription
b. Due to fault of the plaintiff, under Sec. 3, Rule
17;
c. Pursuant to Sec. 4, Revised Rule on Summary
Procedure: dismiss the case outright on any of
the grounds apparent therefrom for the dismissal
of a civil action
a. Grounds
1. Lack of jurisdiction over the person of the
defendant
2. Lack of jurisdiction over the subject matter of
the claim
3. Improper venue
4. Plaintiff’s lack of legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Prescription
8. Failure to state a cause of action
9. Extinguished claim
10. Unenforceable claim under the Statute of Frauds
11. Non-compliance with a condition precedent for
filing claim
[Sec. 1, Rule 16]
U.P. LAW BOC CIVIL PROCEDURE
Except in those cases where the court may dismiss a
case motu proprio, an action cannot be dismissed on a
ground not alleged in the motion therefor even if said
ground, e.g., prescription, is provided for in Rule 16
[1 Regalado 272, 2010 Ed,, citing Malig v. Bush, G.R.
No. L-22761 (1969)], unless such fact of prescription
appears in the allegations of the complaint or in
plaintiffs' evidence [1 Regalado 272, 2010 Ed,, citing
Garcia v. Mathis, G.R. No. L-48557 (1980)].
With much more reason should an order of dismissal
be nullified if it is based on a ground not authorized
by Rule 16, i.e., for supposedly being moot and
academic [1 Regalado 272, 2010 Ed,, citing Borje v. CFI
of Misamis Occidental, G.R. No. L-49315 (1979)].
Lack of jurisdiction over the person of the
defendant
In La Naval Drug Corp. v. CA [G.R. No. 103200
(1994)], the Court held that while lack of jurisdiction
over the person of defendant may be duly and
seasonably raised, his voluntary appearance in court
without qualification is a waiver of such defense.
Sec. 20, Rule 14 makes a categorical statement that
the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall not be deemed voluntary appearance
on his part.
Lack of jurisdiction over the subject matter
General rule: Lack of jurisdiction over the subject
matter may be raised at any stage of the proceedings
[North Greenhills Association, Inc. v. Morales, G.R. No.
222821 (2017)]
When it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the
subject matter, the court shall dismiss the claim even
without a motion to dismiss [Sec. 1, Rule 9; 1 Regalado
185, 2010 Ed.]
A motion to dismiss on this ground may also be
raised
a. Before answer
b. After answer is filed
c. After hearing had commenced
d. At any stage of the proceeding, even for the first
time on appeal and even if no such defense is
raised in the answer
[1 Riano 81, 2011 Ed.]
Page 72 of 481
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Note: The Rule refers to the subject matter of each
particular claim and not only to that of the suit.
Hence, other initiatory pleadings included [1 Regalado
275, 2010 Ed.]
Exceptions:
a. Estoppel
Where a party invokes the jurisdiction of a court to
obtain affirmative relief and fails, he cannot
thereafter repudiate such jurisdiction. While the issue
of jurisdiction may be raised at any time, he is
estopped as it is tantamount to speculating on the
fortunes of litigation [Crisostomo, et al. v. CA, G.R. No.
27166 (1970)]
b. Estoppel by laches
Laches is failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a
right within a reasonable time, warranting a
presumption that the party entitled to assert it either
has abandoned it or declined to assert it [Tijam v.
Sibonghanoy, G.R. No. L-21450 (1968)]
i. Lack of jurisdiction must have been raised so
belatedly as to warrant the presumption that the
party entitled to assert it had abandoned or
declined to assert it.
ii. Estoppel by laches may be invoked to bar the
issue of lack of jurisdiction only in cases in which
the factual milieu is analogous to that in Tijam v.
Sibonghanoy
[Figueroa v. People, G.R. No. 147406 (2008), citing
Francel Realty Corporation v. Sycip, G.R. No. 154684
(2005)]
Improper venue
Unless and until the defendant objects to the venue
in a MTD prior to a responsive pleading, the venue
cannot truly be said to have been improperly laid
[Diaz v. Adiong, G.R. No. 106847 (1993)]
Where a motion to dismiss for improper venue is
erroneously denied, the remedy is prohibition
[Enriquez v. Macadaeg, G.R. No. L-2422 (1949)]
Plaintiff has no legal capacity to sue
The plaintiff lacks legal capacity to sue:
a. 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);
b. When he does not have the character which he
claims, which is a matter of evidence (e.g. when
U.P. LAW BOC CIVIL PROCEDURE
he is not really a duly appointed administrator of
an estate)
[Recreation and Amusement Association of the Philippines v.
City of Manila, G.R. No. L-7922 (1957)]
Lack of legal capacity to sue refers to plaintiff’s
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
[Columbia Pictures, Inc. v. CA, G.R. No. 110318 (1996)]
The issue of plaintiff’s lack of legal capacity to sue
cannot be raised for the first time on appeal where
the defendant dealt with the former as a party in the
proceedings below [Univ. of Pangasinan Faculty Union v.
Univ. of Pangasinan, G.R. No. 64821-23 (1993)]
Litis pendentia
Requisites
a. Identity of parties, or at least such as
representing the same interest in both actions;
b. Identity of rights asserted and relief prayed for,
the relief being founded on the same facts; and
c. Identity of the two cases such that judgment in
one would amount to Res judicata on the action
under consideration
[Film Development Council of the Philippines v. SM Prime
Holdings, Inc., G.R. No. 197937 (2013)]
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, G.R.
No. 104019 (1993)]
Res judicata
Two concepts of res judicata
a. Bar by prior judgment [Sec. 47(b), Rule 39]
Judgment on the merits in the first 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 or 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.
b. Conclusiveness of judgment [Sec. 47(c), Rule 39]
The second action is upon a different claim or
demand, the judgment in the first case operates
as an estoppel only with regard to those issues
directly controverted, upon the determination of
which the judgment was rendered.
Page 73 of 481
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[Topacio v. Banco Savings and Mortgage Bank, G.R. No.
157644 (2010)]
Requisites for “bar by prior judgment”
a. Former judgment or order must be final
b. The judgment or order must be on the merits
c. The decision must have been rendered by a court
having jurisdiction over the subject matter and
the parties
d. There must be, between the two actions, identity
of
1. of parties
2. of subject matter, and
3. of causes of action
[Topacio v. Banco Savings and Mortgage Bank, G.R. No.
157644 (2010)]
The test of identity of cause of action lies not in the
form of the action but on whether or not the same
evidence would support and establish the former and
the present causes of action [DBP v. Pundogar, G.R.
No. 96921 (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided is
finally decided because of
a. Public policy and necessity makes it the interest
of the State that there should be an end to
litigation
b. The hardship on the individual that he should be
vexed twice for the same cause
[Nabus v. CA, G.R. No. 91670 (1991)]
Statute of limitations/prescription
Prescription applies only when the complaint on its
face shows that indeed the action has already
prescribed [1 Regalado 280, 2010 Ed.]
If the fact of prescription is not indicated on the face
of the complaint and the same may be brought out
later, the court must defer decision on the motion
until such time as proof may be presented on such
fact of prescription [1 Regalado 280, 2010 Ed.]
Prescription Laches
Concerned with the Concerned with the
fact of delay effect of delay
A question of inequity
of permitting a claim to
be enforced, this
A matter of time
inequity being founded
on some change in the
condition of the
U.P. LAW BOC CIVIL PROCEDURE
Prescription Laches
property or the relation
of the parties
Statutory Not statutory
Applies at law Applies in equity
Not based on fixed
Based on fixed time
time
[Agra v. Philippine National Bank, G.R. No. 133317
(1999)]
Defense of prescription is waived and cannot be
considered on appeal if not raised in the trial court
[Ramos v. Osorio, G.R. No. L-27306 (1971)]
However, if the allegations of the complaint, or
evidence presented, clearly indicate that the action
has prescribed, or where there is no issue in fact as to
prescription, defense of prescription is not deemed
waived by failure to allege the same [Chua Lamko v.
Dioso, G.R. No. L-6293 (1955)]
Estoppel and prescription cannot be invoked against
the State [Republic v. CA, G.R. No. 116111 (1999)]
A motion to dismiss on the ground of prescription
will be given due course only if the complaint shows
on its face that the action has already prescribed [Sison
v. McQuaid, G.R. No. L-6304 (1953)]
The court shall not defer the resolution of the motion
for the reason that the ground relied upon is not
indubitable [Sec. 3, Rule 16]. Thus:
a. Evidence may be received in support of the
motion under Sec. 2, Rule 16; or
b. The motion to dismiss should be denied without
prejudice to the complaint’s dismissal if evidence
disclose that the action had already prescribed
[Sec. 1, Rule 9]
Complaint states no cause of action
Failure to state a cause of action and lack of cause of
action are distinct grounds to dismiss a particular
action. The former refers to the insufficiency of the
allegations in the pleading, while the latter to the
insufficiency of the factual basis for the action.
Dismissal for failure to state a cause of action may be
raised at the earliest stages of the proceedings
through a motion to dismiss under Rule 16, while
dismissal for lack of cause of action may be raised any
time after the questions of fact have been resolved on
the basis of stipulations, admissions or evidence
presented by the plaintiff.
Page 74 of 481
REMEDIAL LAW
A complaint states a cause of action if it sufficiently
avers the existence of the three (3) essential elements
of a cause of action, namely: (a) a right in favor of the
plaintiff by whatever means and under whatever law
it arises or is created; (b) an obligation on the part of
the named defendant to respect or not to violate such
right; and (c) an act or omission on the part of the
named defendant violative of the right of the plaintiff
or constituting a breach of the obligation of
defendant to the plaintiff for which the latter may
maintain an action for recovery of damages. If the
allegations of the complaint do not state the
concurrence of these elements, the complaint
becomes vulnerable to a motion to dismiss on the
ground of failure to state a cause of action.
It is well to point out that the plaintiff’s cause of
action should not merely be "stated" but,
importantly, the statement thereof should be
"sufficient." This is why the elementary test in a
motion to dismiss on such ground is whether or
not the complaint alleges facts which if true
would justify the relief demanded. As a corollary,
it has been held that only ultimate facts and not legal
conclusions or evidentiary facts are considered for
purposes of applying the test. This is consistent with
Sec. 1, Rule 8 which states that the complaint need
only allege the ultimate facts or the essential facts
constituting the plaintiff’s cause of action. A fact is
essential if they cannot be stricken out without
leaving the statement of the cause of action
inadequate. Since the inquiry is into the sufficiency,
not the veracity, of the material allegations, it follows
that the analysis should be confined to the four
corners of the complaint, and no other.
[Zuniga-Santos v. Santos-Gran, G.R. No. 197380 (2014)]
General rule: In a motion to dismiss, a defendant
hypothetically admits the truth of the material
allegations of the ultimate facts contained in the
plaintiff's complaint.
Exceptions: A motion to dismiss
a. does not admit the truth of mere epithets of
fraud
b. nor allegations of legal conclusions
c. nor an erroneous statement of law
d. nor mere inferences or conclusions from facts
not stated
e. nor mere conclusions of law
f. nor allegations of fact the falsity of which is
subject to judicial notice
g. nor matters of evidence
h. nor surplusage and irrelevant matter
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

i. nor scandalous matter inserted merely to insult c. An agreement made in consideration of

the opposing party marriage, other than a mutual promise to marry
j. nor to legally impossible facts d. An agreement for the sale of goods, chattels or
k. nor to facts which appear unfounded by a record things in action, at a price not less than PHP 500,
incorporated in the pleading, or by a document unless the buyer accept and receive part of such
referred to, and goods and chattels, or the evidences, or some of
l. nor to general averments contradicted by more them, of such things in action, or pay at the time
specific averments some part of the purchase money; but when a
[NM Rothschild & Sons (Australia) Limited v. Lepanto sale is made by auction and entry is made by the
Consolidated Mining Company, G.R. No. 175799 (2011)] auctioneer in his sales book, at the time of the
sale, of the amount and kind of property sold,
If the court finds the allegations of the complaint to terms of sale, price, names of the purchasers and
be sufficient but doubts their veracity, it must deny person on whose account the sale is made, it is a
the MTD and require the defendant to answer and sufficient memorandum
then proceed to try the case on its merits [The World e. An agreement for the leasing for a longer period
Wide Insurance & Surety Co., Inc. v. Manuel, G.R. No. L- than one year, or for the sale of real property or
8042 (1955)] of an interest therein
f. A representation as to the credit of a third person
If the suit is not brought against the real party-in-
interest, a motion to dismiss may be filed on the Unlike a motion to dismiss on the ground that the
ground that the complaint states no cause of action complaint states no cause of action, a motion
[Tanpinco v. IAC, G.R. No. 76225 (1992)] invoking the Statute of Frauds may be filed even if
the absence of a cause of action does not appear on
Complaint states no Lack of cause of the face of the complaint. Such absence may be
cause of action action proved during the hearing of the motion to dismiss
Insufficiency of on said ground [Yuviengco et al. v. Dacuycuy, etc., et al.,
Insufficiency of factual G.R. No. L-55048 (1981)]
allegations in the
basis for the action
pleading
May be raised in a Non-compliance with a condition precedent
May be raised at any
motion to dismiss
time Conditions precedent
under Rule 16
Dismissal due to lack Common usage refers to conditions precedent as
Dismissal due to failure of cause of action is matters which must be complied with before a cause
to state a cause of made after questions of of action arises. When a claim is subject to a
action can be made at fact have been resolved condition precedent, the compliance of the same
the earliest stages of an on the basis of must be alleged in the pleading [1 Riano 333, 2014
action stipulations, admissions Bantam Ed.]
or evidence presented
[Aquino v. Quiazon, G.R. No. 201248 (2015) Examples of conditions precedent:
a. A tender of payment is required before making a
Claim extinguished consignation [Art. 1256, CC]
That the claim/demand set forth in the plaintiff's b. Exhaustion of administrative remedies is
pleading has been paid, waived, abandoned or required in certain cases before resorting to
otherwise extinguished [Sec. 1(h), Rule 16] judicial action [Lopez v. City of Manila, G.R. No.
127139 (1999); Dy v. CA, G.R. No. 121587
Unenforceable claim under the statute of frauds (1999)]
Art. 1403(2) of the Civil Code requires certain c. Prior resort to barangay conciliation proceedings
contracts to be evidenced by some note or is necessary in certain cases [Book III, Title I,
memorandum in order to be enforceable, to wit Chapter 7, LGC]
a. An agreement that by its terms is not to be d. Earnest efforts toward a compromise must be
performed within a year from the making thereof undertaken when the suit is between members of
b. A special promise to answer for the debt, default, the same family and if no efforts were in fact
or miscarriage of another made, the case must be dismissed, [Art. 151, FC]

Page 75 of 481
U.P. LAW BOC CIVIL PROCEDURE
e. Arbitration may be a condition precedent when
the contract between the parties provides for
arbitration first before recourse to judicial
remedies
[1 Riano 333-334, 2014 Bantam Ed.]
Where the plaintiff has not exhausted all
administrative remedies, the complaint not having
alleged the fact of such exhaustion, the same may be
dismissed for lack of cause of action [Pineda v. CFI
Davao, et al., G.R. No. L-12602 (1961)]
A complaint may be dismissed by the court, motu
proprio, for non-exhaustion of administrative
remedies since it affects the cause of action
[Municipality of Hinabañgan v. Municipality of Wright,
G.R. No. L-12603 (1960)]
Where the complaint does not state that it is one of
the excepted cases, or it does not allege prior
availment of conciliation process, or it does not have
a certification that no conciliation or settlement had
been reached under P.D. 1508, case should be
dismissed on motion [Morata v. Go, et al., G.R. No. L-
62339 (1983)]
Where the defendant had participated in the trial
court without any invocation of PD 1508, and the
judgment therein had become final and executory,
but said defendant thereafter sought the annulment
of the decision for alleged lack of jurisdiction, the
same was denied under the doctrine of estoppel and
laches [Royales, et al., v. IAC, G.R. No. L-65072
(1984)]
b. Resolution of Motion
A motion to dismiss is a litigated motion and should
be heard [1 Riano 487, 2014 Bantam Ed.]
1. In the hearing, the parties shall submit their
arguments on the questions of law and their
evidence on the questions of fact involved if
such evidence is available at the time of the
hearing
2. Should the case go to trial, the evidence
presented during the hearing shall automatically
be part of the evidence of the party presenting
the same
[Sec. 2, Rule 16]
Lack of formal hearing is not fatal when the issues
raised were fully discussed in the motion and
opposition [Castillo v. CA, G.R. No. L-52008 (1988)]
Page 76 of 481
REMEDIAL LAW
After the hearing, the court may:
1. Dismiss the action/claim
2. Deny the motion, or
3. Order the amendment of the pleading
[Sec. 3, Rule 16]
The court cannot defer the resolution of the motion
for the reason that the ground relied upon is not
indubitable. In every case, the resolution shall state
clearly and distinctly state the reasons therefor [Sec.
3, Rule 16]
c. Remedies of Plaintiff When the
Complaint is Dismissed
If the motion is granted, the complaint is dismissed.
The plaintiff has several options:
1. Depending upon the ground for the dismissal of
the action, the plaintiff may simply refile the
complaint (e.g. if the ground for dismissal was
anchored on improper venue)
2. He may appeal from the order of dismissal
where the ground relied upon is one which bars
the refiling of the complaint like res judicata,
prescription, extinguishment of the obligation or
violation of the statute of frauds [Sec. 5, Rule 16].
Since the complaint cannot be refiled, the
dismissal is with prejudice.
3. The plaintiff may also avail of a petition for
certiorari. This remedy is available if the court
gravely abuses its discretion in a manner
amounting to lack of jurisdiction and is the
appropriate remedy in those instances when the
dismissal is without prejudice
[1 Riano 485-486, 2014 Bantam Ed.]
Note: Following the tenor of Sec. 1(g) of Rule 41, an
order dismissing a complaint for lack of jurisdiction
over the subject matter is a dismissal without
prejudice and, hence, no appeal may be had from the
order of dismissal. Despite Sec. 1, Rule 41, appeal
may, nevertheless, be taken from the order dismissing
an action for lack of jurisdiction over the subject
matter in a situation contemplated under Sec. 8, Rule
40 [1 Riano 485, 2014 Ed.]
d. Remedies of Defendant When
the Motion is Denied
If the motion is denied, the movant shall file his
answer
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

1. Within the balance of the period prescribed

under Rule 11 to which he was entitled at the f. When grounds pleaded as
time of serving his motion,
2. But not less than 5 days in any event, affirmative defenses
Computed from his receipt of the notice of the denial
[Sec. 4, Rule 16] 1. If no motion to dismiss had been filed, any of
the grounds for dismissal may be pleaded as an
If the pleading is ordered to be amended, the affirmative defense and, in the discretion of the
movant shall file his answer court, a preliminary hearing may be had thereon
1. Within the period prescribed by Rule 11, as if a motion to dismiss had been filed.
counted from service of amended pleading, 2. The dismissal of the complaint under this section
2. Unless a longer period is prescribed by the court shall be without prejudice to the prosecution in
[Sec. 4, Rule 16] the same or separate action of a counterclaim
pleaded in the answer.
As a rule, the filing of an answer and going through [Sec. 6, Rule 16]
the usual trial process, and later, the filing of an
answer and going through the usual trial process, and g. Bar by Dismissal
later, the filing of a timely appeal form an adverse
judgment are the proper remedies against a denial of General rule: The action/claim may be refiled.
a motion to dismiss
Exception: An order granting a motion to dismiss
The filing of an appeal from an order denying a based on
motion to dismiss is not the remedy prescribed by 1. Res judicata
existing rules. The order of denial, being 2. Prescription
interlocutory, is not appealable by express provision 3. Extinguishment of the claim/demand, and
of Sec. 1(b), Rule 41. 4. Unenforceability under the Statute of
[1 Riano 483, 2014 Bantam Ed.] Frauds, shall bar the refiling of the same
action or claim [Sec. 5, 1(f), (h), (i), Rule 16]
e. Effect of Dismissal of Complaint
Distinguished from Demurrer to Evidence under
on Certain Grounds Rule 33
An order granting a motion to dismiss shall bar the Demurrer to
refiling of the same action or claim if the dismissal is Motion to Dismiss
Evidence
based on the following grounds Grounded on Based on insufficiency
1. The cause of action is barred by a prior judgment preliminary objections of evidence
[Sec. 1(f), Rule 16]
May be filed by any May be filed only by
2. The cause of action is barred by the statute of
defending party against the defendant against
limitations [Sec. 1(f), Rule 16]
whom a claim is the complaint of the
3. The claim or demand has been paid, waived,
asserted in the action plaintiff
abandoned, or otherwise extinguished [Sec. 1(h),
Should be filed within May be filed for the
Rule 16]
the time for but prior dismissal of the case
4. The claim on which the action is founded is
to the filing of the only after the plaintiff
unenforceable under the Statute of Frauds [Sec.
answer of the has completed the
1(i), Rule 16]
defending party to the presentation of his
[Sec. 5, Rule 16, cited in 1 Riano 486, 2014 Bantam
pleading asserting the evidence [Sec. 1, Rule
Ed.]
claim against him 33]
If denied, defendant
The remedy is to file an appeal because, by the clear If denied, defendant
must file an answer, or
language of Sec. 5, Rule 16, the dismissal is subject to may present evidence
else he may be declared
the right of appeal [1 Riano 486, 2014 Bantam Ed.] [Sec. 1, Rule 33]
in default
If granted, plaintiff If granted, but on
may appeal or if appeal the order of
subsequent case is not dismissal is reversed he

Page 77 of 481
U.P. LAW BOC CIVIL PROCEDURE
barred, he may re-file
the case
shall be deemed to
have waived the right
to present evidence
[Sec. 1, Rule 33]
[1 Regalado 270-271, 2010 Ed.]
Page 78 of 481
REMEDIAL LAW
J. Dismissal of Actions
1. Dismissal upon Notice by
the Plaintiff; Two Dismissal
Rule
Dismissal by plaintiff as a matter of right
a. A complaint may be dismissed by the plaintiff by
filing a notice of dismissal at any time before
service of
1. The answer, or
2. A motion for summary judgment
b. Upon such notice being filed, the court shall
issue an order confirming the dismissal.
[Sec. 1, Rule 17]
Note: Sec. 1, Rule 17 refers to “before service”, not
“before filing.”
Withdrawal is not automatic but requires an order
by the court confirming the dismissal. Until thus
confirmed, the withdrawal does not take effect [1
Herrera 1055, 2007 Ed.]
The requirement requiring an order confirming the
dismissal is in keeping with the respect due the court
[1 Herrera 1056, 2007 Ed.]
It is not the order confirming the dismissal which
operates to dismiss the complaint. As the name of the
order implies, it merely confirms the dismissal
already effected by the filing of the notice [1 Riano
489, 2014 Bantam Ed.]
General rule: Dismissal is without prejudice
Exceptions:
a. Unless otherwise stated in the notice
b. A notice operates as an adjudication upon the
merits when filed by a plaintiff who has once
dismissed in a competent court an action based
on or including the same claim
[Sec. 1, Rule 17]
Two-dismissal Rule
Applies when the plaintiff has
a. Twice dismissed actions
b. Based on or including the same claim
c. In a court of competent jurisdiction
[1 Riano 490, 2014 Bantam Ed.]
U.P. LAW BOC CIVIL PROCEDURE
The notice of dismissal operates as an adjudication
upon the merits [Sec. 1, Rule 17]
2. Dismissal upon Motion of
Plaintiff; Effect on Existing
Counterclaim
A complaint shall not be dismissed at the plaintiff’s
instance save upon approval of the court and upon
such terms and conditions as the court deems proper
[Sec. 2, Rule 17]
General rule: Dismissal is without prejudice
Exception: Otherwise specified in the order
[Sec. 2, Rule 17]
Effect on counterclaim
The dismissal shall be without prejudice to the right
of the defendant to prosecute his counter-claim in a
separate action unless within 15 days from notice of
the motion he manifests his preference to have his
counterclaim resolved in the same action [Sec. 2, Rule
17]
Note: Sec. 2, Rule 17 is clear: the counterclaim is not
dismissed, whether it is a compulsory or a permissive
counterclaim because the rule makes no distinction [1
Riano 491, 2014 Bantam Ed.]
3. Dismissal Due to Fault of
the Plaintiff
The complaint may be dismissed upon motion of the
defendant or upon the court’s own motion if, for no
justifiable cause, the plaintiff
a. Fails to appear on the date of the presentation of
his evidence in chief on the complaint
1. The plaintiff’s 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,
G.R. No. L-35989 (1977)]
2. Since plaintiff’s presence is now required
only during the presentation of his evidence
in chief, his absence during the presentation
of defendant or other parties’ evidence, or
even at rebuttal or subsequent stages, is not
a ground for dismissal.
Page 79 of 481
REMEDIAL LAW
b. Fails to prosecute his action for an unreasonable
length of time)
1. 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 promptitude
[Calalang v. CA, G.R. No. 103185 (1993)]
2. The dismissal of an action pursuant to this
Rule rests upon the sound discretion of the
court [Smith Bell and Co. v. American President
Lines Ltd. (1954)]
3. The action should never be dismissed on a
non-suit for want of prosecution when the
delay was caused by the parties looking
towards a settlement [Goldloop Properties Inc.
v. CA, G.R. No. 99431 (1992)]
c. Fails to comply with the ROC or any court order.
1. Failure to comply with a court order is
ground for dismissal of the case [1 Regalado
307, 2010 Ed., citing Aranico-Robino v.
Aquino, G.R. No. L-46641 (1977)]
2. Dismissal for failure to comply with order to
amend complaint to make claims asserted
more definite is ground for dismissal [Santos
v. General Wood Craft, G.R. No. L-28996
(1982)]
3. Failure to comply with an order to include
indispensable parties is ground for dismissal
[Aranico-Rubino v. Aquino, G.R. No. L-46641
(1977)]
4. The failure to comply with order of new
judge to recall witness so he may observe
demeanor is sufficient ground for dismissal
[Castillo v. Torres, G.R. No. 9181 (1915)]
5. The failure of the parties to submit a
compromise agreement within period
granted to them by court is not a ground for
dismissal [Goldloop Properties Inc. v. CA, G.R.
No. 99431 (1992)]
6. Dismissal is improper where a 3rd party
complaint has been admitted and the 3rd
party defendant had not yet been
summoned [Sotto v. Valenzuela, G.R. No. L-
12732 (1959)]
7. A case may be dismissed for failure to
answer written interrogatories under Rule 25
even without an order from the court to
answer [Arellano v. CFI Sorsogon, G.R. No. L-
34897 (1975)]
[Sec. 3, Rule 17]
General rule: This dismissal shall have the effect of an
adjudication upon the merits
U.P. LAW BOC CIVIL PROCEDURE
Exception: Otherwise declared by the court
[Sec. 3, Rule 17]
Effect on counterclaim
Dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the same
or in a separate action [Sec. 3, Rule 17]
Sec. 3, as well as Sec. 6, Rule 16, does not require the
defendant to manifest his preference within a 15-day
period, as in Sec. 2, Rule 17. The reason is that the
motions to dismiss contemplated in Sec. 6, Rule 16
and in Sec. 3, Rule 17 are filed by the defendant who
perforce has already deliberated upon the course of
action he intends to take on his counterclaim and
which he may even manifest right in his motion to
dismiss the complaint [1 Regalado 304-305, 2010 Ed.]
4. Dismissal of Counterclaim,
Cross- Claim, or Third-Party
Complaint
a. Provisions of Rule 17 shall apply to the dismissal
of any counterclaim, cross-claim, or third-party
complaint
b. Voluntary dismissal by the claimant by notice as
in Sec. 1, Rule 17 shall be made:
1. Before a responsive pleading or a motion for
summary judgment is served; or
2. If there is none, before the introduction of
evidence at trial or hearing
[Sec. 4, Rule 17]
Page 80 of 481
REMEDIAL LAW
K. Pre-trial
1. Concept of Pre-Trial
Pre-trial is a procedural device by which the court is
called upon, after the filing of the last pleading, to
compel the parties and their lawyers to appear before
it, and negotiate an amicable settlement or otherwise
make a formal settlement and embody in a single
document the issues of fact and law involved in the
action, and such other matters as may aid in the
prompt disposition in the action, such as the
a. Number of witnesses the parties intend to
present
b. Tenor or character of their testimonies
c. Documentary evidence
d. Nature and purpose of each of them
e. Number of trial dates that each will need to put
on his case
[1 Herrera 1074, 2007 Ed.]
2. Nature and Purpose
Purpose of pre-trial is to consider
a. Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution
b. Simplification of the issues
c. Necessity/desirability of amendments to the
pleadings
d. Possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof
e. Limitation of the number of witnesses
f. Advisability of a preliminary reference of issues
to a commissioner
g. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist
h. Advisability/necessity of suspending the
proceedings, and
i. Such other matters as may aid in the prompt
disposition of the action
[Sec. 2, Rule 18]
Pre-trial is mandatory
Pre-trial and its governing Rules are not technicalities
which the parties may ignore or trifle with. Pre-trial is
essential in the simplification and the speedy
disposition of disputes [Tiu v. Middleton, G.R. No.
134998 (1999)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. A representative appears in his behalf, fully

Primary objective authorized in writing:
Pre-trial is primarily intended to make certain that all 1. To enter into an amicable settlement
issues necessary to the disposition of a case are 2. To submit to alternative modes of dispute
properly raised [Permanent Concrete Products, Inc. v. resolution, and
Teodoro, G.R. No. L-29766 (1968)] 3. To enter into stipulations/admissions of
facts and of documents
Thus, to obviate the element of surprise, parties are [Sec. 4, Rule 18]
expected to disclose at a pre-trial conference all issues
of law and fact which they intend to raise at the trial, The written special authority must be in the form of
except such as may involve privileged or impeaching a special power of attorney as authority to enter into
matters. The determination of issues at a pre-trial amicable settlement must be in such form [Sec. 23,
conference bars the consideration of other questions Rule 138; Art. 1878(3), Civil Code]
on appeal [Caltex v. CA, G.R. No. 97753 (1992)]
Effect of failure to appear
3. Notice of Pre-Trial a. Of the plaintiff – the action shall be dismissed
with prejudice, unless otherwise ordered by the
court [Sec. 5, Rule 18]
After the last pleading has been served and filed, it
shall be the duty of the plaintiff to promptly move ex
Remedy: Appeal [1 Riano 501, 2014 Bantam Ed.]
parte that the case be set for pre-trial [Sec. 1, Rule 18]
b. Of the defendant – the plaintiff shall be allowed
a. Within 5 days from date of filing of the reply,
to present evidence ex parte, and judgment shall
plaintiff must promptly move ex parte that the
be rendered based thereon [Sec. 5, Rule 18]
case be set for pre-trial conference.
b. If the plaintiff fails to file said motion within the
Remedy: Motion for reconsideration, and if the
given period, the branch clerk of court shall
denial is tainted with grave abuse of discretion, a
issue a notice of pre-trial
petition for certiorari [1 Riano 501, 2014 Bantam
[Item I-A-1, A.M. No. 03-1-09-SC]
Ed.]
The “last pleading” need not be literally construed as
The non-appearance of defendant in pre-trial is not a
the actual filing of the last pleading. For purpose of
ground to declare him in default. Thus, we distinguish
pre-trial, the expiration of the period for filing the last
Failure to appear by
pleading is sufficient [Sarmiento v. Juan, G.R. No. L- Default by defendant
defendant [Sec. 5,
56605 (1983)] [Sec. 3, Rule 9]
Rule 18]
The notice of pre-trial shall be served on counsel, or Upon motion of the
on the party who has no counsel [Sec. 3, Rule 18] claiming party with
Not required
notice to the defending
The sufficiency of the written notice of pre-trial is party
irrelevant where evidence shows that counsel and the Requires proof of
Not required
parties actually knew of the pre-trial [Bembo v. CA, failure to answer
G.R. No. 116845 (1995)] Court renders
Court may render
judgment based on the
judgment without
evidence presented ex
4. Appearance of Parties; receiving evidence
parte
Effect of Failure to Appear Judgment by default Judgment ex parte
Relief awarded must be
It is the duty of the parties and their counsel to appear the same in nature and
No such limitation
at the pre-trial [Sec. 4, Rule 18] amount as prayed for
in the complaint
When non-appearance is excused
Non-appearance of a party may be excused only if The rule on default clearly establishes the “failure to
either: answer within the time allowed therefor” as the
a. Valid cause is shown for it ground for a declaration of default [Sec. 3, Rule 9].
From the tenor of the Rules, default does not

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

technically occur from the failure of the defendant to
attend either the pre-trial or the trial [1 Riano 363,
2014 Bantam Ed.]
5. Pre-Trial Brief; Effect of
Failure to File
The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their
receipt thereof at least 3 days before the date of the
pre-trial, their respective pre-trial briefs. Failure to file
the pre-trial brief shall have the same effect as failure
to appear at the pre-trial [Sec. 6, Rule 18]
Contents
a. A statement of their willingness to enter into
an amicable settlement indicating the
desired terms thereof or to submit the case
to any of the alternative modes of dispute
resolution
b. A summary of admitted facts and proposed
stipulation of facts
c. The issues to be tried or resolved
d. The documents or exhibits to be presented,
stating the purpose thereof
e. A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners, and
f. The number and names of the witnesses, the
substance of their testimonies, and the
approximate number of hours that will be
required by the parties for the presentation
of their respective witnesses
[Item I-A-2, A.M. No. 03-1-09-SC]
Remedy of defendant is to file a motion for
reconsideration, showing that his failure to file a trial
brief was due to fraud, accident, mistake, or excusable
negligence. The filing of pre-trial brief is mandatory,
and is not excused simply because the defendant was
not represented by counsel [Saguid v. CA, G.R. No.
150611 (2003)]
No evidence shall be allowed to be presented and
offered during the trial in support of a party's
evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial,
except if allowed by the court for good cause shown
[Item I-A-2, A.M. No. 03-1-09-SC]

6. Distinction between Pre-Trial in a Civil Case and Pre-Trial in a

Criminal Case
Pre-trial in a Civil Case [Rule 18] Pre-trial in a Criminal Case [Rule 118]
After arraignment and within 30 days from
the date the court acquires jurisdiction over
the person of the accused
As to when After the last pleading has been served and
conducted filed [Sec. 1] Exception: If special laws and circulars
provide for a shorter period

[Sec 1]
As to need of Duty of the plaintiff to promptly move ex Ordered by the court and no motion is
motion parte that the case be set for pre-trial [Sec. 1] required from either party [Sec. 1]
As to whether or
Mandatory [Sec. 2] Mandatory [Sec. 1]
not mandatory
a. Of the plaintiff – the case shall be
If the counsel for the accused or the
dismissed with prejudice, unless the
prosecutor does not appear at the pre-trial
court orders
As to effect of conference and does not offer an acceptable
b. Of the defendant – the plaintiff shall
failure to appear excuse for his lack of cooperation, the court
be allowed to present evidence ex
may impose proper sanctions or penalties
parte, and judgment shall be rendered
[Sec. 3, Rule 118]
based thereon [Sec. 5, Rule 18]
As to possibility
Not in the enumeration to be considered
of an amicable The court shall consider this matter [Sec. 2(a)]
[Sec. 1]
settlement

Page 82 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

As to
A pre-trial brief is specifically required to be
requirement of A pre-trial brief is not required in Rule 118.
submitted [Sec. 6]
Pre-Trial Brief
Shall be recited in the order issued by the
court upon the termination of pre-trial [Sec. 7]
As to
Shall be reduced in writing and signed by the
agreements of NOTE: The proceedings during the
accused and counsel, otherwise, they cannot
admissions preliminary conference shall be recorded in the
be used against the accused [Sec. 2]
made "Minutes of Preliminary Conference" to be
signed by both parties and/or counsel [Item I-
A-3, A.M. No. 03-1-09-SC]

witnesses (Most Important Witness Rule) [Item I-A-

Record of pre-trial 5-j, AM No. 03-1-09-SC]
The proceedings in the pre-trial shall be recorded.
Upon the termination thereof, the court shall issue an The court shall require the parties and/or counsel to
order [Sec. 7, Rule 18] submit to the Branch COC the names, addresses and
contact numbers of the witnesses to be summoned
Contents of pre-trial order by subpoena [Item I-A-5-l, AM No. 03-1-09-SC]
a. Matters taken up in the conference
b. Action taken thereon
c. Amendments allowed on the pleadings
d. Agreements/admissions made by the parties as
to any of the matters considered
e. Should the action proceed to trial, the order shall
explicitly define and limit the issues to be tried.

Effect of pre-trial order

The contents of the order shall control the
subsequent course of the action, unless
a. Modified before trial to prevent manifest
injustice [Sec. 7, Rule 18]
b. Issues impliedly included therein or may be
inferable therefrom by necessary implication
[Philippine Export and Foreign Loan Guarantee Corp.
v. Amalgamated Management and Development Corp.,
G.R. No. 177729 (2011)]
c. Amendment to conform to evidence [Sec. 5,
Rule 10]

One day examination of witness rule

The One-Day Examination of Witness Rule, that is,
a witness has to be fully examined in one (1) day only,
shall be strictly adhered to subject to the courts'
discretion during trial on whether or not to extend
the direct and/or cross-examination for justifiable
reasons [Item I-A-5-i, A.M. No. 03-1-09-SC]

Most important witness rule

The court shall determine the most important
witnesses to be heard and limit the number of

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

PRE-TRIAL

NO
SETTLEMENT AMICABLE
FAILURE TO SETTLEMENT
APPEAR

Agreements made
by parties;
Amendments to If defendant is
pleading; Schedule If plaintiff is absent absent, court may
of Trial when so required to hear evidence of
attend, court may plaintiff ex parte
dismiss the case

TRIAL

If evidence is
insufficient to prove
plaintiff’s cause of
action or
defendant’s
counterclaim, court
rules in favor of
either one or
dismisses the case

COURT
RENDERS
DECISION

Page 84 of 481
U.P. LAW BOC CIVIL PROCEDURE
L. Intervention
A proceeding in a suit or an action by which a third
person is permitted by the court to make himself a
party, either:
1. Joining plaintiff in claiming what is sought by the
complaint
2. Uniting with defendant in resisting the claims of
the plaintiff or
3. Demanding something adverse to both of them
[1 Herrera 1117, 2007 Ed., citing Gutierrez v.
Villegas, G.R. No. L-11848 (1962)]
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation.
Its purpose is to afford one not an original party, yet
having a certain right/interest in the pending case, the
opportunity to appear and be joined so he could
assert or protect such right/interest [Cariño v. Ofilada,
G.R. No. 102836 (1993)]
1. Requisites for intervention
a. The legal interest:
1. In the matter in litigation, or
2. In the success of either of the parties, or
3. An interest against both; or
4. So situated as to be adversely affected by a
distribution or other disposition of property
in the custody of the court or of an officer
thereof
b. Intervention will not unduly delay or prejudice
the adjudication of rights of the original parties
c. Intervenor’s rights may not be fully protected in
a separate proceeding
[Sec. 1, Rule 19; Lorenza Ortega v. CA, G.R. No.
125302 (1998)]
Meaning of legal interest
The interest which entitles a person to intervene in a
suit must be on 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 the judgment [1 Regalado 324-325, citing
6318 v. Nocom, G.R. No. 175989 (2008)]
The interest must be actual and material, a concern
which is more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral [Virra Mall Tenants v. Virra
Mall, G.R. No. 182902 (2011)]
Page 85 of 481
REMEDIAL LAW
Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and
whether or not the intervenor’s rights may be fully
protected in a separate proceeding [Virra Mall Tenants
v. Virra Mall, G.R. No. 182902 (2011)]
2. Time to Intervene
The motion to intervene may be filed at any time
before rendition of judgment by the trial court [Sec.
2, Rule 19]
How effected
a. Motion to intervene
b. Attaching a copy of the pleading-in-intervention;
and
c. Serving the motion and pleading-in-intervention
on the original parties [Sec. 2, Rule 19]
General rule: Allowance of intervention is discretionary
with the court.
Exception: When the intervenor is an indispensable
party.
Pleadings-in-intervention
a. Complaint-in-intervention – If intervenor
asserts a claim against either or all of the original
parties
b. Answer-in-intervention – If intervenor unites
with the defending party in resisting a claim
against the latter
[Sec. 3, Rule 19]
c. Answer to complaint-in-intervention - It shall
be filed within 15 days from notice of the order
admitting the complaint-in-intervention, unless a
different period is fixed by the court [Sec. 4, Rule
19]
3. Remedy for the Denial of
the Motion to Intervene
An improper denial of a motion for intervention is
correctible by appeal [1 Regalado 324, 2010 Ed., citing
Ortiz v. Trent, G.R. No. 5099 (1909) and Hospicio de
San Jose v. Piccio, G.R. No. L-8540 (1956)] but if there
is grave abuse of discretion, mandamus will lie, where
there is no other plain, speedy and adequate remedy
[1 Regalado 324, 2010 Ed., citing Dizon v. Romero, G.R.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

No. L-26252 (1968) and Macias v. Cruz, G.R. No. L-

28947 (1973)]
Remedy for granting of the motion to intervene
On the other hand, an improper granting of a motion
for intervention may be controlled by certiorari and
prohibition. When the rights of the party seeking to
intervene will not be prejudiced by the judgment in
the main case and can be fully protected in a separate
proceeding, the court may deny the intervention
sought [1 Regalado 324, 2010 Ed., citing Pflieder v. De
Britanica, G.R. No. L-19077 (1964)]
M. Subpoena
Definition
A process directed to a person requiring him:
1. To attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by
competent authority, or for the taking of his
deposition
2. Also to bring with him any books, documents, or
other things under his control
[Sec. 1, Rule 21]

Subpoena Summons
A process directed to a
person requiring him
to attend and to testify. A direction that the
It may also require him defendant answer
to bring with him any within the time fixed
books, documents, or by the ROC [Sec. 2,
other things under his Rule 14]
control [Sec. 1, Rule
21]
Directed to the
Directed to a person
defendant [Sec. 2, Rule
[Sec. 1, Rule 21]
14]
Tender of kilometrage,
attendance fee and, if
Tender of kilometrage
subpoena duces tecum, of
and other fees not
reasonable cost of
required by Rule 14
production required
[Sec. 6, Rule 21]

Who may issue

1. Court before whom the witness is required to
attend
2. Court of the place where the deposition is to be
taken
3. Officer or body authorized by law to do so in
connection with investigations conducted by
said officer or body, or
4. Any justice of the SC or of the CA, in any case
or investigation pending within the Philippines
[Sec. 2, Rule 21]

All processes issued by the MTC and MCTC in cases

falling within their jurisdiction may be served
anywhere in the Philippines without the necessity of
certification by the judge of the RTC [Sec. 38(2), B.P.
129]

Form and contents

1. Shall state the name of the court and the title of
the action or investigation

Page 86 of 481
U.P. LAW BOC CIVIL PROCEDURE
2. Shall be directed to the person whose attendance
is required
3. For subpoena duces tecum, shall also contain a
reasonable description of the books, documents
or things demanded which must appear to the
court prima facie relevant
[Sec. 3, Rule 21]
1. Subpoena duces tecum
A process directed to a person requiring him to bring
with him books, documents, or other things under
his control [Sec. 1, Rule 21]
The subpoena duces tecum is, in all respects, like the
ordinary subpoena ad testificandum, with the exception
that it concludes with an injunction that the witness
shall bring with him and produce at the examination
the books, documents, or things described in the
subpoena [see Sec. 1, Rule 21]
Note the requirements for a subpoena duces tecum, see
item (3) of “Form and contents” above
2. Subpoena ad testificandum
A process directed to a person requiring him to
attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by
competent authority or for the taking of his
deposition [Sec. 1, Rule 21]
The subpoena referred to in the first sentence of this
section is distinctively called a subpoena ad
testificandum. This is the technical and descriptive term
for the ordinary subpoena [1 Regalado 330, 2010 Ed.]
3. Service of Subpoena
Service of a subpoena shall be made in the same
manner as personal or substituted service of
summons [Sec. 6, Rule 21]
Formalities
a. The original is exhibited to the person served;
b. A copy is delivered to him; and
c. Tender is made to him of the following:
1. Fees for one day’s attendance;
2. Kilometrage allowed by the ROC; and
3. In the case of subpoena duces tecum, the
reasonable cost of producing the books,
documents and things demanded.
Page 87 of 481
REMEDIAL LAW
Tender of these amounts need not be made if
subpoena is issued by or on behalf of the Republic of
the Philippines or an officer or agency thereof
[Sec. 6, Rule 21]
When made: must be made so as to allow the witness
a reasonable time for preparation and travel to the
place of attendance [Sec. 6, Rule 21]
4. Compelling Attendance of
Witnesses; Contempt
The court which issued the subpoena, upon proof of
service and failure of witness to attend, may issue a
warrant to the sheriff of the province, or his deputy
to arrest the witness and bring him before the court
or officer where his attendance is required, and the
cost of such warrant and seizure of such witness shall
be paid by the witness if the court issuing it shall
determine that his failure to answer the subpoena was
willful and without just excuse [Sec. 8, Rule 21]
Failure by any person without adequate cause to obey
a subpoena served upon him shall deemed a
contempt of the court from which the subpoena is
issued. If the subpoena was not issued by a court, the
disobedience thereto shall be punished in accordance
with the applicable law or Rule [Sec. 9, Rule 21]
Note: Provisions regarding the compelling of
attendance [Sec. 8] and contempt [Sec. 9] shall not
apply to a
a. Witness who resides more than 100 km from his
residence to the place where he is to testify by
the ordinary course of travel; or
b. Detention prisoner if no permission of the court
in which his case is pending was obtained
[Sec. 10, Rule 21]
The right not to be compelled to attend upon a
subpoena by reason of the distance from the
residence of the witness to the place where he is to
testify is sometimes called the viatory right of a
witness [1 Regalado 334-335, 2010 Ed.]
Note: “Viatory right” applies only in civil cases, not
criminal cases [Genorga v. Quitain, A.M. No. 981-CFI
(1977)]
U.P. LAW BOC
5. Quashing of Subpoena
For quashing subpoena duces tecum
a. A motion is promptly made and, in any event, at
or before the time specified therein
b. Grounds
1. Subpoena is unreasonable and oppressive,
or
2. Relevancy of the books, documents or
things does not appear, or
3. Person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
the production thereof
4. Witness fees and kilometrage allowed by
these Rules were not tendered when the
subpoena was served
[Sec. 4, Rule 21]
For quashing subpoena ad testificandum
a. Witness is not bound thereby, or
b. Witness fees and kilometrage allowed by the
ROC were not tendered when the subpoena was
served
[Sec. 4, Rule 21]
CIVIL PROCEDURE REMEDIAL LAW
N. Modes of Discovery
Discovery
A device employed by a party to obtain information
about relevant matters on the case from the adverse
party in the preparation for trial [1 Riano 510, 2014
Bantam Ed.]
Purpose: To permit mutual knowledge before trial of
all relevant facts gathered by both parties so that
either party may compel the other to disgorge facts
whatever he has in his possession [1 Riano 510, 2014
Bantam Ed., citing C.J.S.]
Modes of Discovery
1. Depositions pending actions [Rule 23]
2. Depositions before action or pending appeal
[Rule 24]
3. Interrogatories to parties [Rule 25]
4. Admission by adverse party [Rule 26]
5. Production or inspection of documents or things
[Rule 27]
6. Physical and mental examination of persons
[Rule 28]
1. Deposition Pending Action;
Deposition before Action or
Pending Appeal
a. Meaning of deposition
Deposition – taking of testimony out of court of any
person, whether party to the action or not but at the
instance of a party to the action [1 Riano 511, 2014
Bantam Ed.]
Kinds of depositions
1. Depositions pending action [Rule 23] – called
deposition de bene esse [1 Regalado 344, 2010
Ed.]
2. Depositions before action or pending appeal
[Rule 24] – called depositions in perpetuam rei
memoriam [1 Regalado 344, 2010 Ed.]
When depositions pending action taken
1. By leave of court, after jurisdiction has been
obtained over any defendant or over the
property which is the subject of the action
2. Without leave of court after an answer has been
served
[Sec. 1, Rule 23]
Page 88 of 481
U.P. LAW BOC CIVIL PROCEDURE
Note: The deposition of a person confined in prison
may be taken only by leave of court on such terms as
the court prescribes [Sec. 1, Rule 23]
Before whom depositions are taken
1. Within the Philippines
a. Judge
b. Notary public, or
c. Any person authorized to administer oaths,
as stipulated by the parties in writing [Sec.
14, Rule 23]
[Sec. 10, Rule 23]
2. Foreign state or country
a. On notice before a secretary of embassy or
legation, consul general, consul, vice-
consul, or consular agent of the Philippines
b. Before such person or officer as may be
appointed by commission or under letters
rogatory, or
c. Any person authorized to administer oaths
as stipulated by parties in writing [Sec. 14,
Rule 23]
[Sec. 11, Rule 23]
Disqualification by interest
No deposition shall be taken before a person who is
1. A relative within the 6th degree of consanguinity
or affinity, or
2. An employee or counsel of any of the parties, or
3. A relative within the same degree, or employee
of such counsel, or
4. Any person financially interested in the action
[Sec. 13, Rule 23]
Taking depositions upon oral examination
1. A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every other
party to the action. The notice shall state the
time and place for taking the deposition and the
name and address of each person to be
examined, if known, and if the name is at known,
a general description sufficient to identify him or
the particular class or group to which he belongs.
On motion of any party upon whom the notice
is served, the court may for cause shown enlarge
or shorten the time [Sec. 15, Rule 23]
2. After notice is served for taking a deposition by
oral examination, upon motion seasonably made
by any party or by the person to be examined and
for good cause shown, the court in which the
action is pending may make any order for
protection of the parties and the deponent [Sec.
16, Rule 23]
Page 89 of 481
REMEDIAL LAW
3. The attendance of the witnesses may be
compelled by the use of a subpoena [Sec. 1]
4. Examination and cross-examination of
deponents may proceed as permitted at the trial
under Secs. 3 to 18 of Rule 132 [Sec. 3, Rule 23].
5. All objections made at the time of the
examination to the qualifications of the officer
taking the deposition, or to the manner of taking
it, or to the evidence presented, or to the conduct
of any party, and any other objection to the
proceedings, shall be noted by the officer upon
the deposition. Evidence objected to shall be
taken subject to the objections [Sec. 17]
Effect of taking depositions
A party shall not be deemed to make a person his
own witness for any purpose by taking his deposition
[Sec. 7, Rule 23]
Depositions before actions or pending appeal
Referred to as perpetuation of testimony
(“depositions in perpetuam rei memoriam”) because their
objective is to perpetuate the testimony of a witness
for future use, in the event of further proceedings [1
Regalado 363, 2010 Ed.]
Requisites
1. Any person who desires to perpetuate
a. his own testimony; or
b. the testimony of another person
2. Regarding any matter that may be cognizable in
any court of the Philippines
[Sec. 1, Rule 24]
Procedure for deposition before action
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. 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
U.P. LAW BOC CIVIL PROCEDURE
f. Asking for an order authorizing the
petitioner to take the depositions of the
persons sought to be examined named in the
petition for the purpose of perpetuating
their testimony
[Sec. 2, Rule 24]
2. The petitioner shall serve a notice upon each
person named in the petition as an expected
adverse party, together with a copy of the
petition, stating that the petitioner will apply to
the court, at a time and place named therein, for
the order described in the petition. At least 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 [Sec. 3, Rule
24]
3. If the court is satisfied that the perpetuation of
the testimony may prevent a failure or delay of
justice, it shall make an order designating or
describing the persons whose deposition may be
taken and specifying the subject matter of the
examination and whether the depositions shall
be taken upon oral examination or written
interrogatories. The depositions may then be
taken in accordance with Rule 23 before the
hearing [Sec. 4, Rule 24]
Use of deposition
If a deposition to perpetuate testimony is taken under
this Rule, or if, although not so taken, it would be
admissible in evidence, it may be used in any action
involving the same subject matter subsequently
brought in accordance with Secs. 4 and 5 of Rule 23
[Sec. 6, Rule 24]
Procedure for deposition pending appeal:
1. If an appeal has been taken from a judgment of
a court, including the CA in proper cases, or
before the taking of an appeal if the time therefor
has not expired, the court in which the judgment
was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use
in the event of further proceedings in the said
court.
2. In such case the party who desires to perpetuate
the testimony may make a motion in the said
court for leave to take the depositions, upon the
same notice and service thereof as if the action
was pending therein.
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REMEDIAL LAW
3. The motion shall state the
a. Names and addresses of the persons to be
examined and the substance of the
testimony which he expects to elicit from
each, and
b. Reason for perpetuating their testimony.
4. 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
depositions to be taken, and thereupon the
depositions may be taken and used in the same
manner and under the same conditions as are
prescribed in these Rules for depositions taken
in pending actions [Sec. 7, Rule 24]
b. Uses; Scope of Examination
General uses of deposition
Intended as a means to compel disclosure of facts
resting in the knowledge of a party or other person,
which are relevant in a suit or proceeding [1 Regalado
349, 2010 Ed.]
Scope of examination
Unless otherwise ordered by the court as provided by
Secs. 16 and 18, Rule 23, the deponent may be
examined regarding any matter
1. Not privileged
2. Relevant to the subject of the pending action,
a. Whether relating to the claim or defense of
any other party;
b. Including the existence, description, nature,
custody, condition, and location of any
books, documents, or other tangible things
and
c. Including the identity and location of
persons having knowledge of relevant facts
General rule: A deposition is not a substitute for the
actual testimony in open court of a party or witness.
If the witness is available to testify, he should be
presented in court to testify. If available to testify, a
party’s or witness’ deposition is inadmissible in
evidence for being hearsay [Dasmarinas Garments Inc.
v. Reyes, G.R. No. 108229 (1993)]
Exception: Depositions may be used as evidence under
the circumstances in Sec. 4, Rule 23.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Specific uses of depositions

Deposition
Any deposition
Deposition of a party or of any
one who at the time of taking
the deposition was an officer,
director, or managing agent of a
public or private corporation,
partnership, or association
which is a party
Deposition of a witness,
whether or not a party
[Sec. 4, Rule 23]
By whom used Purpose
Contradicting or impeaching the
Any party
testimony of deponent as a witness
An adverse party Any purpose
Any purpose if the court finds that
1. Witness is dead, or
2. Witness resides more than 100 km
from the place of trial or hearing, or
is out of the Philippines, unless it
appears that his absence was
procured by the party offering the
deposition, or
3. Witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment, or
Any party 4. Party offering the deposition has
been unable to procure the
attendance of the witness by
subpoena; or
5. Upon application and notice, that
such exceptional circumstances exist
as to make it desirable, in the interest
of justice and with due regard to the
importance of presenting the
testimony of witnesses orally in open
court, to allow the deposition to be
used;

Effect of using deposition c. When May Objections to

General rule: The introduction in evidence of the
deposition or any part thereof for any purpose makes Admissibility be Made
the deponent the witness of the party introducing the
deposition Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing to
Exceptions: receiving in evidence any deposition or part thereof
1. The deposition is used to contradict or impeach for any reason which would require the exclusion of
the deponent the evidence if the witness were then present and
2. The deposition of a party or of any one who at testifying [Sec. 6, Rule 23]
the time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is
a party may be used by an adverse party for any
purpose [Sec. 4(b), Rule 23]
[Sec. 8, Rule 23]

Page 91 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Error and
Effect
d. When May Taking of Irregularities
relevancy, or materiality Unless the ground of
Deposition be Terminated or its of testimony the objection is one
Scope Limited which might have
been obviated or
1. At any time during the taking of the deposition, removed if presented
on motion or petition of any party or of the at that time
deponent and upon a showing that the Occurring at oral Waived
examination is being conducted in bad faith or in examination and other
such manner, as unreasonably to annoy, particulars
embarrass, or oppress the deponent or party, the
court in which the action is pending or the RTC In the manner of taking
of the place where the deposition is being taken the deposition, in the
may order the officer conducting the Unless reasonable
form of questions or
examination to cease forthwith from taking the objection thereto is
answers, in the oath or
deposition, or may limit the scope and manner made at the time of
affirmation, or in
of the taking of the deposition, as provided in taking the deposition
conduct of parties and
Sec. 16, Rule 23. errors of any kind which
2. If the order made terminates the examination, it might be obviated or
shall be resumed thereafter only upon the order removed if promptly
of the court in which the action is pending. prosecuted
3. Upon demand of the objecting party or Waived
deponent, the taking of the deposition shall be Unless served in
suspended for the time necessary to make a writing upon the
notice for an order. party propounding
4. In granting or refusing such order, the court may Objections to the form them within the time
impose upon either party or upon the witness the of written allowed for serving
requirement to pay such costs or expenses as the interrogatories under succeeding cross or
court may deem reasonable. Sec. 25 and 26 other interrogatories
[Sec. 18, Rule 23] and within 3 days
after service of last
Effect of errors and irregularities in depositions interrogatories
Error and authorized
Effect
Irregularities Waived
Waived Unless a motion to
Unless written suppress the
As to notice for taking a
objection is promptly deposition or some
deposition In the manner in which
served upon party part thereof is made
giving notice testimony is transcribed
with reasonable
Waived or the deposition is dealt
promptness after
Unless made with by the officer under
such defect is
(1) Before taking of Sec. 17, 19, 20, and 26
Objection to taking a ascertained, or with
deposition begins or due diligence might
deposition because of
(2) As soon thereafter have been,
disqualification of
as the disqualification ascertained
officer before whom it is
becomes known or [Sec. 29, Rule 23]
to be taken
could be discovered
with reasonable Orders of the court for the protection of parties
diligence and deponents:
Not waived by failure 1. The deposition shall not be taken
Objection to the
to make them before 2. It may be taken only at some designated place
competency of a witness
or during the taking other than that stated in the notice
or competency,
of the deposition 3. It may be taken only on written interrogatories

Page 92 of 481
U.P. LAW BOC CIVIL PROCEDURE
4. Certain matters shall not be inquired into
5. The scope of the examination shall be held with
no one present except the parties to the action
and their officers or counsel
6. After being sealed the deposition shall be opened
only by order of the court
7. Secret processes developments, or research need
not be disclosed
8. The parties shall simultaneously filed specified
documents or information enclosed in sealed
envelope to be opened as directed by the court
9. The court may make any other order which
justice requires to protect the party or witness
from annoyance, embarrassment, or oppression
[Sec. 16, Rule 23]
2. Written Interrogatories to
Adverse Parties
Purpose: To elicit material and relevant facts from
any adverse parties [Sec. 1, Rule 25]
Scope and use: Interrogatories may relate to any
matters that can be inquired into under Sec. 2 of Rule
23, and the answers may be used for the same
purposes provided in Sec. 4 of the same Rule [Sec. 1,
Rule 25]
Written interrogatories v. interrogatories to
parties
Written Interrogatories to
Interrogatories Parties
Not served upon the
adverse party directly.
They are instead Served upon the
delivered to the officer adverse party directly
designated in the [Sec. 1, Rule 25]
notice [Sec. 26, Rule
23]
[1 Riano 520, 2014 Bantam Ed.]
Service of interrogatories to parties
Under the same conditions specified in Sec. 1 of Rule
23, 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 [Sec. 1, Rule 25]
Page 93 of 481
REMEDIAL LAW
Number of interrogatories
No party may, without leave of court, serve more
than one set of interrogatories to be answered by the
same party [Sec. 4, Rule 25]
Answers as judicial admissions
Written interrogatories and the answers thereto must
both be filed and served [Sec. 2, Rule 25] Hence, the
answers may constitute as judicial admissions [Sec. 4,
Rule 129]
Form
The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person
making them [Sec. 2, Rule 25]
Service and filing
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 15
days after service thereof, unless the court, on motion
and for good cause shown, extends or shortens the
time [Sec. 2, Rule 25]
Objections to interrogatories; answers deferred
Objections to any interrogatories may be presented
to the court within ten (10) days after service thereof,
with notice as in case of a motion; and answers shall
be deferred until the objections are resolved, which
shall be at as early a time as is practicable [Sec. 3, Rule
25]
Grounds
a. They require the statements of conclusions of
law or answers to hypothetical questions or
opinion, or mere hearsay, or matters not within
the personal knowledge of the interrogated
party.
b. Frivolous interrogatories need be answered
[2 Herrera 50, 2007 Ed.]
a. Consequences of Refusal to
Answer
1. If a party or an officer or managing agent of a
party
a. Willfully fails to appear before the officer
who is to take his deposition, after being
served with a proper notice, or
b. Fails to serve answers to interrogatories
submitted under Rule 25 after proper service
of such interrogatories,
2. The court on motion and notice, may
U.P. LAW BOC CIVIL PROCEDURE
a. Strike out all or any part of any pleading of
the party, or
b. Dismiss the action or proceeding or any part
thereof, or
c. Enter a judgment by default against the
party, and in its discretion, order him to pay
reasonable expenses incurred by the other,
including attorney’s fees
[Sec. 5, Rule 29]
b. Effect of Failure to Serve
Written Interrogatories
A party not served with written interrogatories may
not be compelled by adverse party to:
1. Give testimony in open court; or
2. Give a deposition pending appeal
Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice
[Sec. 6, Rule 25]
3. Request for Admission
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegations in a pleading [1
Regalado 370, 2010 Ed.]
Purpose
For the admission by the adverse party of the
genuineness of any material and relevant document
described in and exhibited with the request or of the
truth of any material and relevant matter of fact set
forth in the request [Sec. 1, Rule 26]
How made
A party may file and serve upon any other party a
written request for the purpose mentioned above
[Sec. 1, Rule 26]
The request for admission must be served on the
party, not 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, G.R. 125383
(2002)]
When made
At any time after issues have been joined [Sec. 1, Rule
26]
Page 94 of 481
REMEDIAL LAW
Issues are joined when all the parties have pleaded
their respective theories and the terms of the dispute
are plain before the court [Rosete v. Sps. Lim, G.R. No.
136051 (2006)]
a. Implied Admission by Adverse
Party
Each of the matters which an admission is requested
shall be deemed admitted unless the party to whom
request is directed files and serves upon the party
requesting admission a sworn statement [Sec. 2, Rule
26]
Contents
1. Denying specifically the matters of which an
admission is requested, or
2. Setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters
[Sec. 2, Rule 26]
Period: Such party must file and serve such
statement:
1. Within a period not less than 15 days after
service thereof, or
2. Within such further time as the court may allow
on motion
[Sec. 2, Rule 26]
Objections
Objections to any request for admission shall be
submitted to the court by the party requested within
the period for and prior to the filing of his sworn
statement as contemplated in the preceding
paragraph and his compliance therewith shall be
deferred until such obligations are resolved, which
resolution shall be made as early as practicable [Sec.
2, Rule 26]
b. Consequences of Failure to
Answer Request for Admission
The proponent may apply to the proper court for an
order to compel an answer [Sec. 1, Rule 29]
If application is granted, the court
1. Shall require the refusing party to answer; and
2. May require the refusing party or counsel to pay
reasonable expenses for obtaining the order, if
the court finds that the refusal to answer was
without substantial justification.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Refusal to answer after being directed by the court 1. Produce and permit the inspection and
would constitute contempt of that court [Sec. 2, Rule copying or photographing, by or on behalf
29] of the moving party, of any designated
documents, papers, books, accounts, letters,
Refusal to obey to an order to answer would also photographs, objects or tangible things not
allow the court to make such orders regarding the privileged, which constitute or contain
refusal as are just, and among others the following evidence material to any matter involved in
1. An order that the matters regarding which the action and which are in his possession
questions were asked shall be taken as custody or control; or
established for the purposes of the action in 2. Permit entry upon designated land or other
accordance with the claim of the party obtaining property in his possession or control for the
the order purpose of inspecting, measuring, surveying,
2. An order refusing to allow the disobedient party or photographing the property or any
to support or oppose designated claims or designated relevant object or operation
defenses thereon
3. An order striking out pleadings or parts thereof, b. The order shall specify the time, place and
or staying further proceedings until the order is manner of making the inspection and taking
obeyed, or dismissing the action or proceeding copies and photographs, and may prescribe such
or any part thereof or rendering a judgment by terms and conditions as are just
default against the disobedient party, and [Sec. 1, Rule 27]
4. In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of Production of documents v. subpoena duces
any party or agent of party for disobeying any of tecum
such orders Production or
Subpoena duces
[Sec. 3, Rule 29] inspection of
tecum
documents
c. Effect of Admission Limited to the parties May be directed to non-
of the action [Sec. 1, party [Sec, 1, Rule 21
Any admission made by a party pursuant to such Rule 27] refers to “a person”]
request is for the purpose of the pending action only Issued upon motion of
May be issued upon ex
and shall not constitute an admission by him for any any party [Sec. 1, Rule
parte application
other purpose nor may the same be used against him 27]
in any other proceeding [Sec. 3, Rule 26] Need not show good
Must show good cause
cause [see Secs. 3 and 4,
[Sec. 1, Rule 27]
d. Effect of Failure to File and Rule 21]
Grounds for quashal
Serve Request for Admission (1) Unreasonable,
oppressive, irrelevant
A party who fails to file and serve a request for May be quashed for
admission on the adverse party of material and lack of good cause
(2) Failure to advance
relevant facts at issue which are, or ought to be, shown
reasonable costs of
within the personal knowledge of the latter, shall not production
be permitted to present evidence on such facts [Sec. 4, Rule 21]
unless otherwise allowed by the court for good cause Disobedience would
shown and to prevent a failure of justice [Sec. 5, Rule allow court to make
29] such orders in regard
to the refusal as are
4. Production or Inspection of just, and among Disobedience
others, an order constitutes contempt of
Documents or Things refusing to allow the court [Sec. 9, Rule 21]
disobedient party to
a. Upon motion of any party showing good cause support or oppose
therefor, the court in which an action is pending designated claims or
may order any party to defenses or

Page 95 of 481
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Production or
Subpoena duces
inspection of Report of findings
tecum
documents a. If requested by the party examined, the party
prohibiting him from causing the examination to be made shall deliver
introducing in to him a copy of a detailed written report of the
evidence designated examining physician setting out his findings and
documents or things conclusions.
or items of testimony b. After such request and delivery, the party causing
[Sec. 3(b), Rule 29] the examination to be made shall be entitled
upon request to receive from the party examined
The production of documents affords more a like report of any examination, previously or
opportunity for discovery than a subpoena duces tecum thereafter made, of the same mental or physical
as, in the latter, the documents are brought to the condition.
court for the first time on the date of the scheduled c. If the party examined refuses to deliver such
trial wherein such documents are required to be report, the court on motion and notice may make
produced. The inspection of land and other real an order requiring delivery on such terms as are
property for the purposes authorized by Rule 27 also just, and if a physician fails or refuses to make
avoids the need for ocular inspection thereof by the such a report the court may exclude his
court [1 Regalado 373, 2010 Ed.] testimony if offered at the trial.
[Sec. 3, Rule 28]
5. Physical and Mental Waiver of privilege
Examination of Persons By requesting and obtaining a report of the
examination so ordered or by taking the deposition
Applicable in an action in which the mental or of the examiner, the party examined waives any
physical condition of a party is in controversy [Sec. 1, privilege he may have in that action or any other
Rule 28] involving the same controversy, regarding the
testimony of every other person who has examined
Procedure or may thereafter examine him in respect of the same
A motion for the examination is filed in the court mental or physical examination [Sec. 4, Rule 28].
where the action is pending
a. Showing good cause for the examination, Since the results of the examination are intended to
b. With notice to the party to be examined, and to be made public, the same are not covered by
all other parties, and physician-patient privilege under Sec. 24(b), Rule 130
c. Specifying the time, place, manner, conditions, [1 Regalado 376, 2010 Ed.]
scope, and person conducting the examination
[Sec. 2, Rule 28]

Consequences of Refusal to Comply with Modes of Discovery

Form of refusal Sanctions
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.
Refusal to answer any
question
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.

Page 96 of 481
U.P. LAW BOC
[Sec. 1, Rule 29]
Refusal to be sworn
Refusal to answer designated
questions or refusal to produce
documents or to submit to
physical or mental
examination
Refusal to admit under Rule 26 truth UNLESS court finds:
Failure of party to attend or
serve answers to written
interrogatories [Sec. 5]
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule (Rule
29) [Sec. 6, Rule 29]
CIVIL PROCEDURE REMEDIAL LAW
The refusal may be considered a contempt of that court [Sec. 2, Rule 29]
The refusal may be considered a contempt of that court [Sec. 2, Rule 29]
The court may make such orders in regard to the refusal as are just, and
among others the following
a. An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or the
contents of the paper, or the physical or mental condition of the
party or any other designated facts shall be taken to be established
for the purposes of the action in accordance with the claim of the
party obtaining the order;
b. An order refusing to allow the disobedient party to support or
oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items of
testimony, or from introducing evidence of physical or mental
condition;
c. An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof or rendering a judgment by default
against the disobedient party; and
d. In lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of party for
disobeying any of such orders except an order to submit to a
physical or mental examination.
[Sec. 3, Rule 29]
The court, upon proper application, issue an order requiring the other party
to pay him reasonable expenses incurred, including attorney’s fees
PROVIDED that party requesting proves genuineness of such document or
a. There were good reasons for denial, or
b. Admissions sought were of no importance
[Sec. 4, Rule 29]
The court on motion and notice may
a. (1) Strike out all or any part of any pleading of disobedient party, or
(2) Dismiss the action or proceeding or any part thereof, or
b. Enter a judgment by default against disobedient party, and
c. In its discretion, order payment of reasonable expenses incurred by
the other including attorney’s fees
Page 97 of 481
U.P. LAW BOC CIVIL PROCEDURE
O. Trial
Definition
Trial is the judicial examination and determination of
the issues between the parties to the action [Black’s
Law Dictionary 1348, 5th Ed.]
The judicial process of investigating and determining
the legal controversies, starting with the production
of evidence by the plaintiff and ending with his
closing arguments [Acosta v. People, G.R. No. L-17427
(1962)]
A hearing is a broader term. It is not confined to the
trial and presentation of the evidence because it
actually embraces several stages in the litigation. It
includes the pre-trial and the determination of
granting or denying a motion [Trocio v. Labayo, G.R.
No. L-35701 (1973)]
When trial unnecessary
A civil case may be adjudicated upon without the need
for trial in any of the following cases
1. Where the pleadings tender no issue at all,
judgment on the pleadings may be directed by
the court [Rule 34]
2. Where from the pleadings, affidavits, depositions
and other papers, there is actually no genuine
issue, the court may render a summary
judgment [Rule 35]
3. Where the parties have entered into a
compromise or an amicable settlement either
during the pre-trial or while the trial is in progress
[Rule 18; Art. 2028, Civil Code]
4. Where the complaint has been dismissed with
prejudice, or when the dismissal has the effect
of an adjudication on the merits [Sec. 5, Rule 16;
Sec. 3, Rule 17; Sec. 5, last par., Rule 7]
5. Where the case falls under the Rules on
Summary Procedure, and
6. Where the parties agree, in writing, upon the
facts involved in the litigation and submit the
case for judgment on the facts agreed upon,
without the introduction of evidence [Sec. 6, Rule
30]
[1 Riano 563, 2014 Bantam Ed.]
Notice of trial
Upon entry of a case in the trial calendar, the clerk
shall notify parties the date of its trial in such manner
as shall ensure his receipt of that notice at least 5 days
before such date [Sec. 1, Rule 30]
Page 98 of 481
REMEDIAL LAW
1. Adjournment and
Postponements
A court may adjourn a trial from day to day, and to
any stated time, as the expeditious and convenient
transaction of business may require [Sec. 2, Rule 30]
Limitations on the authority to adjourn
General rule: The court has no power to adjourn a trial
for A period longer than one month for each
adjournment; or More than 3 months in all [Sec. 2,
Rule 30]
Exception: When authorized in writing by the Court
Administrator.
Postponement
A motion for postponement should not be filed on
the last hour especially when there is no reason why it
could not have been presented earlier [Cañete v. Judge,
CFI Zamboanga del Sur, G.R. No. L-21743 (1968)]
Postponements lie in the court’s discretion [Hap Hong
Hardware Co., Inc. v. Philippine Milling Company, G.R.
No. L-16778 (1961)]
2. Requisites of Motion to
Postpone Trial
a. For Absence of Evidence
Motion accompanied by affidavit showing
1. The materiality or relevancy of such evidence;
and
2. Due diligence has been used to procure it
[Sec. 3, Rule 30]
b. For Illness of Party or Counsel
Motion accompanied by affidavit or sworn
certification showing
1. The presence of such party or counsel at the trial
is indispensable; and
2. That the character of his illness is such as to
render his non-attendance excusable
[Sec. 4, Rule 30]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

support of their defense, in the order to be

3. Agreed Statement of Facts prescribed by court
f. Parties may then respectively adduce rebutting
evidence only, unless the court permits them to
a. The parties may agree, in writing, upon the facts
adduce evidence upon their original case
involved in the litigation, and submit the case for
g. Upon admission of the evidence, the case shall be
judgment on the facts agreed upon, without the
submitted for decision, unless the court directs
introduction of evidence
parties to argue or to submit respective
b. If the parties agree only on some of the facts in
memoranda or any further pleading [Sec. 5, Rule
issue, trial shall be held as to the disputed facts in
30]
such order as the court shall prescribe
[Sec. 6, Rule 30]
Reverse order
Where the answer of the defendant admitted the
Stipulation in Civil Stipulation in obligation stated in the complaint, although special
Cases Criminal Cases defenses were pleaded, the plaintiff has every right to
The minutes of each All agreements or insist that it was for the defendant to come forward
pre-trial conference admissions made or with evidence to support his special defenses [Yu v.
shall contain matters entered during the pre- Mapayo, G.R. No. L- 29742 (1972)]
taken up therein more trial conference shall be
particularly admissions reduced in writing and The reasoning behind this is that the plaintiff need not
of facts and exhibits signed by the accused present evidence since judicial admissions do not
and shall be signed by and counsel, otherwise, require proof [Sec. 2, Rule 129]
the parties and their they cannot be used
counsel [Item I-A-7, against the accused [Sec.
A.M. No. 03-1-09-SC] 2, Rule 118] 5. Consolidation or Severance
of Hearing or Trial
An agreed statement of facts is conclusive on the
parties, as well as on the court. Neither of the parties Consolidation – a procedural device, granted to the
may withdraw from the agreement, nor may the court court as an aid in deciding how case in its docket are
ignore the same [McGuire v. Manufactures Life, G.R. L- to be tried, so that the business of the court may be
3581 (1950)] dispatched expeditiously while providing justice to
the parties [Republic v. Heirs of Oribello, G.R. No.
4. Order of Trial; Reversal of 199501 (2013)]
Order When proper: When actions involving a common
question of fact or law are pending before the court
Subject to the provisions of Sec. 2 of Rule 31, and [Sec. 1, Rule 31]
unless the court for special reasons otherwise directs,
the trial shall be limited to the issues stated in the pre- Court action
trial order [Sec. 5, Rule 30] The court may
a. Order a joint hearing or trial of any or all matters
General order of trial in issue in the actions
a. Plaintiff’s evidence in chief b. Order all actions consolidated; and
b. Defendant’s evidence in chief and evidence in c. Make such orders concerning proceedings
support of his counterclaim, cross-claim and 3rd- therein as may tend to avoid unnecessary costs or
party complaint delay
c. 3rd-party defendant shall adduce evidence of his [Sec. 1, Rule 31]
defense, counterclaim, cross-claim, and 4th party
complaint Purpose: To avoid multiplicity of suits, guard against
d. 4th-party defendant shall adduce evidence, and oppression or abuse, prevent delay, clear congested
so forth dockets, simplify the work of the trial court and save
e. Parties against whom any counterclaim or cross- unnecessary costs and expenses [1 Regalado 392, 2010
claim has been pleaded shall adduce evidence in Ed.]

Page 99 of 481
U.P. LAW BOC CIVIL PROCEDURE
Where a case has been partially tried before one judge,
the consolidation of the same with another related
case pending before another judge who had no
opportunity to observe the demeanor of the witness
during trial makes the consolidation not mandatory
[PCGG v. Sandiganbayan, G.R. No. 102370-71 (1992)]
The Rules do not distinguish between cases filed
before the same branch or judge and those that are
pending in different branches or before different
judges of the same court, in order that consolidation
may be proper, as long as the cases involve the
resolution of questions of law or facts in common
with each other [Active Woods Products Co. Inc. v. CA,
G.R. No. 86602 (1990)]
Kinds of consolidation
a. Quasi-consolidation – where all, except one, of
several actions are stayed until one is tried, in
which case, the judgment in the one trial is
conclusive as to others; not actually consolidation
but referred to as such
b. Actual consolidation – where several actions
are combined into one, lose their separate
identity, and become one single action in which
judgment is rendered
c. Consolidation for Trial – where several actions
are ordered to be tried together, but each retains
its separate character, and requires the entry of
separate judgment
[Republic v. Sandiganbayan, G.R. No. 152375 (2011)]
Severance
When proper: In furtherance of convenience or to
avoid prejudice [Sec. 2, Rule 31]
When separate trial of claims is conducted by the
court under this section, it may render separate
judgments on each claim [see Sec. 5, Rule 36]
This provision permitting separate trials presupposes
that the claims involved are within the jurisdiction of
the court. When one of the claims is not within its
jurisdiction, the same should be dismissed, so that it
may be filed in the proper court [1 Regalado 394, 2010
Ed.]
Page 100 of 481
REMEDIAL LAW
6. Delegation of Reception of
Evidence
The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the
parties [Sec. 9, Rule 30]
Exception: The court may delegate the reception of
evidence to its COC who is a member of the bar in
a. Default hearings
b. Ex parte hearings, or
c. Cases where parties agree in writing.
The COC has no power to rule on objections to any
question or to the admission of exhibits. Objections
shall be resolved by the court upon submission of the
clerk’s report and the TSN within 10 days from
termination of the hearing [Sec. 9, Rule 30]
The Rule requires that, where the reception of
evidence is delegated to the clerk of court, he must
also be a member of the bar. Neither agreement by
parties nor their acquiescence can justify its violation
[Umali-Paco v. Quilala, AM RTJ-02-1699 (2003)]
7. Trial by Commissioners
Commissioner - A person to whom a case pending
in court is referred, for him to take testimony, hear
the parties and report thereon to the court, and upon
whose report, if confirmed, judgment is rendered
[Secs.1, 3, 9, 11, Rule 32]
General rule: Trial by commissioner depends largely
upon the discretion of the court [Sec. 1-2, Rule 32]
Exceptions: In the following instances, appointment of
a commissioner is necessary:
a. Expropriation [Rule 67]
b. Partition [Rule 69]
Kinds of trial by commissioners
a. Reference by consent of both parties
b. Reference ordered on motion
[Sec. 1-2, Rule 32]
U.P. LAW BOC CIVIL PROCEDURE
a. Reference by Consent or
Ordered on Motion
Reference by consent
The court may order any or all of the issues in a case
to be referred to a commissioner by written consent
of both parties [Sec. 1, Rule 32]
Commissioners are to be:
1. Agreed upon by the parties; or
2. Appointed by the court
Reference ordered on motion
When the parties do not consent, the court may, upon
the application of either or of its own motion) direct
a reference to a commissioner in the following cases
1. When the trial of an issue of fact requires the
examina-tion of a long account on either side, in
which case the commissioner may be directed to
hear and report upon the whole issue or any
specific question involved therein
2. When the taking of an account is necessary for
the information of the court before judgment, or
for carrying a judgment or order into effect
3. When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in
any stage of a case, or for carrying a judgment or
order into effect
[Sec. 2, Rule 32]
Order of reference
When a reference is made, the clerk shall furnish the
commissioner with a copy of the order of reference,
which may contain the following:
1. Specifications or limitations of the powers of the
commissioner;
2. A direction to report only upon particular issues,
to do or perform particular acts, or to receive and
report evidence only
3. The date for beginning and closing the hearings,
and that for the filing of his report
[Sec. 3, Rule 32]
b. Powers of the Commissioner
1. Regulate the proceedings in every hearing before
him
2. Do all acts and take all measures necessary or
proper for the efficient performance of his duties
under the order
3. Issue subpoenas and subpoenas duces tecum
4. Swear witnesses, and
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5. Unless otherwise provided in the order of
reference, he may rule upon the admissibility of
evidence
[Sec. 3, Rule 32]
Note: Refusal of a witness to obey such subpoena or
to give evidence before him is deemed contempt of
the court which appointed the commissioner [Sec. 7,
Rule 32]
Proceedings before the commissioner
1. Upon receipt of the order of reference, the
commissioner shall set a time and place for the
first meeting of parties or their counsel
2. Notices shall be sent to parties or counsel
3. Hearing is to be held within 10 days after the date
of order of reference [Sec. 5, Rule 32]
4. If a party fails to appear, the commissioner may
a. Proceed ex parte; or
b. Adjourn the proceedings to a future date
giving notice to the absent party or his
counsel
[Sec. 6, Rule 32]
c. Report of the Commissioner;
Notice to Parties and Hearing
on the Report
Report of the commissioner
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file with
the court his report in writing upon the matters
submitted to him by the order of reference. When his
powers are not specified or limited, he shall set forth
his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcripts, if any, of the
testimonial evidence presented before him [Sec. 9,
Rule 32]
Notice and hearing on the report
Upon the filing of the report, the parties shall be
1. Notified by the clerk; and
2. Allowed 10 days within which to object to the
findings of the report, if they so desire
[Sec. 10, Rule 32]
Note: Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner, other than
objections to the findings and conclusions therein set
forth, shall not be considered by the court unless
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

they were made before the commissioner [Sec. 10,

Rule 32]
P. Demurrer to Evidence
Upon the expiration of the 10-day period to file After the plaintiff has completed the presentation of
objections, the report shall be set for hearing. After his evidence, the defendant may move for dismissal
such hearing, the court shall issue an order on the ground that upon the facts and the law the
1. Adopting, modifying, or rejecting the report, in plaintiff has shown no right to relief [Sec. 1, Rule 33]
whole or in part, or
2. Recommitting it with instructions, or Demurrer of evidence v. motion to dismiss
3. Requiring the parties to present further evidence Demurrer to
Motion to Dismiss
before the commissioner or the court Evidence
[Sec. 11, Rule 32] Made after the plaintiff Made before the filing
rests his case of an answer
Based on only one Based on those grounds
ground under Rule 33 enumerated in Rule 16
If denied, the If denied, the defendant
defendant may present may file his responsive
his evidence pleading
If granted, the
complaint may not be If granted, the
refiled and the complaint may be
plaintiff’s remedy is to refiled, depending on
appeal from the order the ground for dismissal
of dismissal
[1 Riano 572, 2014 Bantam Ed.]

1. Grounds
Insufficiency of evidence, that upon the facts and the
law the plaintiff has shown no right to relief [Sec. 1,
Rule 33]

2. Effect of Denial
If the demurrer is denied, the defendant shall have the
right to present his evidence [Sec. 1, Rule 33]

The court should not proceed to grant the relief

demanded by the plaintiff but should set the date for
reception of the defendant’s evidence [Northwest
Airlines v. CA, G.R. No. 120334 (1998)]

An order denying the demurrer is interlocutory, and

not subject to appeal. It can be subject to a petition
for certiorari, in case of grave abuse of discretion or
oppressive exercise of judicial authority [Katigbak v.
Sandiganbayan, G.R. No. 140183 (2003)]

3. Effect of Grant
If the demurrer is granted, the case shall be dismissed
[Sec. 1, Rule 33]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

If the appeal is granted, the defendant- movant loses appeal and if the granted because the
the right to present evidence [Sec. 1, Rule 33] dismissal is reversed, dismissal is deemed an
the defendant is acquittal [People v. Tan,
The appellate court should not remand the case for deemed to have waived G.R. No. 167526
further proceedings but should render judgment on his right to present his (2010)]
the basis of the evidence submitted by the plaintiff evidence
[Consolidated Bank and Trust Corp. v. Del Monte Motor It is the defendant who
Works, Inc., G.R. No. 143338 (2005)] The court may, on its
invokes demurrer by
own initiative, may
moving for the
dismiss the action after
4. Waiver of Right to Present dismissal of the case.
giving the prosecution
Evidence The court does not so
an opportunity to be
heard.
on its own inititiative
If the order granting the demurrer is reversed on [Riano 498, Criminal Procedure, 2016 Ed.]
appeal, the defendant loses his right to present
evidence [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No.
148246 (2007)]

5. Demurrer to Evidence in a
Civil Case v. Demurrer to
Evidence in a Criminal Case
Demurrer in CIVIL Demurrer in
CASE CRIMINAL CASE
Anchored upon the
Predicated upon
failure of the plaintiff
prosecution’s
to show that upon the
insufficiency of
facts and the law, he is
evidence [Sec. 23, Rule
entitled to relief [Sec. 1
119]
Rule 33]
Requires prior leave of May be filed with or
court relief [Sec. 1, without leave of court
Rule 33] [Sec. 23, Rule 119]
Defense may present
evidence upon denial
of demurrer if the
Defense filed the
demurrer with leave of
court.
When demurrer is
When without leave of
denied, defendant does
court, demurrer was
not lose his right to
denied,
present his evidence
defense/accused
waives his right to
present evidence and
submits the case for
judgment on the basis
of evidence offered by
the prosecution.
If the demurrer is No appeal is allowed
granted, plaintiff may when a demurrer is

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U.P. LAW BOC CIVIL PROCEDURE
Q. Judgments and Final
Orders
Judgments in general
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 or
proceeding [Macahilig v. Heirs of Magalit (2000)]
Requisites of a valid judgment
1. Court or tribunal must be clothed with authority
to hear and determine the matter before it [Acosta
v. COMELEC, G.R. No. 131488 (1998)]
2. Court must have jurisdiction over the parties and
the subject matter
3. Parties must have been given an opportunity to
adduce evidence in their behalf [Acosta v.
COMELEC, G.R. No. 131488 (1998)]
4. Evidence must have been considered by the
tribunal in deciding the case [Acosta v.
COMELEC, G.R. No. 131488 (1998)]
5. Judgment must be in writing, personally and
directly prepared by the judge [Corpus v.
Sandiganbayan, G.R. No. 162214 (2004)]
6. 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 [Sec. 1,
Rule 36; Sec. 14, Art. VIII, 1987 Constitution]
[Riano]
KINDS OF JUDGMENT
1. Judgment by compromise – Rendered on the
basis of a compromise agreement entered into
between the parties to the action [1 Riano 606,
2014 Bantam Ed., Diamond Builders Conglomeration
v. Country Bankers Corp., G.R. No. 171820 (2007)].
Once approved by the court, a judicial
compromise is not appealable and it thereby
becomes immediately executory [1 Riano 607,
2014 Bantam Ed.]
2. Judgment by confession (cognovit actionem)
– one rendered by the court when a party
expressly agrees to the other party’s claim or
acknowledges the validity of the claim against
him [1 Riano 609, 2014 Bantam Ed., see also PNB
v. Manila Oil, G.R. No. 18103 (1922)]
3. Judgment upon the merits – one rendered after
consideration of the evidence submitted by the
parties during the trial of the case. A judgment is
“on the merits” when it amounts to a legal
declaration of the respective rights and duties of
the parties, based upon the disclosed facts.
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Clarificatory judgment – one rendered where
4.
the judgment is ambiguous and difficult to
comply with [1 Regalado 417, 2010 Ed., citing
Almendras v. Del Rosario, G.R. No. L-20158
(1968)]
5. Judgment nunc 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 [Lichauco v.
Tan Pho, G.R. No. 19512 (1923)]. It can only be
issued when the thing ordered has previously
been made, but by inadvertence has not been
entered [Vasquez v. CA, G.R. No. 144882 (2005)]
6. Judgment sin perjuicio – traditionally
understood to be a brief judgment containing
only the dispositive portion [Director of Lands v.
Sanz, G.R. No. 21183 (1923)]
7. Conditional Judgment – one whose effectivity
depends upon the occurrence or non- occurrence
of an event; generally void because of the absence
of a disposition [Cu- Unjieng v. Mabalacat Sugar Co.
(1940)]
8. Several Judgment – one rendered by a court
against one or more defendants and not against
all of them, leaving the action to proceed against
the others [Sec. 4, Rule 36]. A several judgment is
proper where the liability of each party is clearly
separable and distinct from that of his co-parties
such that the claims against each of them could
have been the subject of separate suits, and
judgment for or against one of them will not
necessarily affect the others. In actions against
solidary debtors, a several judgment is not proper
[1 Regalado 424, 2010 Ed.].
9. Separate Judgment – 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 [Sec. 5, Rule 36]
10. Memorandum Decision – rendered by an
appellate court, and incorporates by reference the
findings of fact or the conclusions of law
contained in the decision, order or ruling under
review [1 Riano 581, 2014 Bantam Ed.]
11. Declaratory Judgment – one rendered in a
special civil action for declaratory relief [Rule 63]
12. Foreign Judgment – one rendered by a tribunal
of a foreign country [Sec 48, Rule 39]
1. Judgment Without Trial
Trial is not necessary in the following instances:
a. Judgment on the Pleadings [Rule 34]
U.P. LAW BOC CIVIL PROCEDURE
b. Summary Judgment [Rule 35]
c. Upon compromise or amicable settlement, either
during pre-trial or during trial [Rule 18; Art. 2028,
Civil Code]
d. Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3,
Rule 17; Sec. 5, last par., Rule 7]
e. Under the Rules on Summary Procedure
f. Agreed statement of facts [Sec. 6, Rule 30]
2. Contents of a Judgment
Form of judgment
a. In writing
b. Personally and directly prepared by the judge
c. Stating clearly & distinctly the facts and the law
on which it is based
d. Signed by the judge
e. Filed with the clerk of court.
[Sec. 1, Rule 36]
Parts of a judgment
a. The opinion of the court – contains the findings
of fact and conclusions of law
b. The disposition of the case – the final and actual
disposition of the rights litigated (the dispositive
part)
c. Signature of the judge
[2 Herrera 155, 2007 Ed.]
Parts of a decision
In general, the essential parts of a good decision
consist of the following
a. Statement of the case
b. Statement of facts
c. Issues or assignment of errors
d. Court ruling, in which each issue is, as a rule,
separately considered and resolved; and, finally,
e. Dispositive portion
The ponente may also opt to include an introduction or
a prologue as well as an epilogue, especially in cases in
which controversial or novel issues are involved.
[Velarde v. Social Justice Society, G.R. No. 159357 (2004)]
Distinction between judgment and the opinion of
the court
In the case of a trial court a judgment 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
Page 105 of 481
REMEDIAL LAW
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
[Casilan v. Salcedo, G.R. No. L-23247 (1969), citing 1
Freeman on Judgments 6, 5th Ed.]
Conflict between disposition and opinion of the
court
General rule: The general rule is that where there is
conflict between the dispositive portion or the fallo
and the body of the decision, the fallo controls.
Basis: The fallo is the final order. The opinion in the
body is merely a statement ordering nothing.
[Poland Industrial Limited v. National Development
Company, G.R. No. 143866 (2005)]
Exception: This Rule applies only when the dispositive
part is definite, clear, and unequivocal [Union Bank v.
Pacific Equipment Corporation, G.R. No. 172053 (2008)]
Where the inevitable conclusion from the body of the
decision is that there was a mistake in the dispositive
portion, the body of the decision will prevail [Rosales
v. CA, G.R. No. 137566 (2001)]
See again “sin perjuicio” judgments above
3. Memorandum Decision
Form of decision in appealed cases
Every decision of final resolution of a court 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 by reference from
those set forth in the decision, order, or resolution
appealed from [Sec. 40. B.P. 129]
a. No decision shall be rendered by any court
without expressing therein clearly and distinctly
the facts and the law on which it is based.
b. No petition for review or motion for
reconsideration of a decision of the court shall be
refused due course or denied without stating the
legal basis therefor
[Sec. 14, Art. VIII, Constitution]
Purpose of law on authorizing memorandum
decision
There is no question that the purpose of the law
(referring to Sec. 40, B.P. 129 cited above) in
authorizing the memorandum decision is to expedite
the termination of litigations for the benefit of the
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

parties as well as the courts themselves [Francisco v. obviously groundless and deserves no more than
Permskul, G.R. No. 81006 (1989)] the time needed to dismiss it.
b. The memorandum decision may be employed in
Features of memorandum decision simple litigations only, such as ordinary collection
The distinctive features of the memorandum decision cases, where the appeal is obviously groundless
are: and deserves no more than the time needed to
a. it is rendered by an appellate court, and dismiss it.
b. it incorporates by reference the findings of fact c. Henceforth, all memorandum decisions shall
or the conclusions of law contained in the comply with the requirements herein set forth
decision, order or ruling under review. both as to the form prescribed and the occasions
[1 Riano 581, 2014 Bantam Ed.] when they may be rendered. Any deviation will
summon the strict enforcement of Article VIII,
Requirement for its validity Section 14 of the Constitution and strike down
a. The memorandum decision, to be valid, cannot the flawed judgment as a lawless disobedience
incorporate the findings of fact and the [Francisco v. Permskul, G.R. No. 81006 (1989)]
conclusions of law of the lower court only by
remote reference, which is to say that the 4. Judgment on the Pleadings
challenged decision is not easily and immediately
available to the person reading the memorandum
Where an answer fails to tender an issue, or otherwise
decision.
admits the material allegations of the adverse party’s
b. For the incorporation by reference to be allowed,
pleading, the court may, on motion of that party,
it must provide for direct access to the facts and
direct judgment on such pleading [Sec. 1, Rule 34]
the law being adopted, which must be contained
in a statement attached to the said decision. In
A motion for a Judgment on the Pleadings, where the
other words, the memorandum decision
answer admits the material averments of the
authorized under Sec. 40 of B.P. 129 should
complaint, is one that may be considered ex parte
actually embody the findings of fact and
because upon the particular facts thus presented and
conclusions of law of the lower court in an annex
laid down before the court, the plaintiff is entitled to
attached to and made an indispensable part of the
a judgment [Dino v. Valencia, G.R. No. L-43886
decision.
(1989)]
c. It is expected that this requirement will allay the
suspicion that no study was made of the decision
A Judgment on the Pleadings cannot be rendered by
of the lower court and that its decision was
the court motu propio. It can only be done where there
merely affirmed without a proper examination of
is a prior motion to that effect by the appropriate
the facts and the law on which it is based. The
party [Sec. 1, Rule 34, cited by 1 Riano 610, 2014
proximity at least of the annexed statement should
Bantam Ed. But see Luzon Development Bank v.
suggest that such an examination has been
Conquilla, G.R. No. 163338 (2005)]
undertaken. It is, of course, also understood that
the decision being adopted should, to begin with,
Grounds for judgment on the pleadings
comply with Article VIII, Section 14 [1987
a. The answer fails to tender an issue, or
Constitution] as no amount of incorporation or
b. The answer otherwise admits material allegations
adoption will rectify its violation.
of the adverse party’s pleading
[Francisco v. Permskul, G.R. No. 81006 (1989)]
[Sec. 1, Rule 34]
When rendered
Judgment on the pleadings is not proper in the ff.
a. It is an additional condition for its validity that
cases:
this kind of decision may be resorted to only in
a. Declaration of Nullity of Marriage
cases where the facts are in the main accepted by
b. Annulment of marriage; and
both parties or easily determinable by the judge
c. Legal Separation
and there are no doctrinal complications involved
[Sec. 1, Rule 34]
that will require an extended discussion of the
laws involved. The memorandum decision may
Note: The concept will not apply when no answer is
be employed in simple litigations only, such as
filed. It will come into operation when an answer is
ordinary collection cases, where the appeal is
served and filed but the same fails to tender an issue,

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U.P. LAW BOC CIVIL PROCEDURE
or admits the material allegations of the adverse
party’s pleading [1 Riano 609, 2014 Bantam Ed.]
When no answer is filed, the remedy is to move that
the defendant be declared in default [Sec. 3, Rule 9]
5. Summary Judgments
Definition
A judgment which a court may render before trial,
but after both parties have pleaded upon
application by one party supported by affidavits,
depositions, or other documents, with notice upon
the adverse party who may file an opposition
supported also by affidavits, depositions or other
documents, should the court find after summarily
hearing both parties with their respective proofs that
there exists no genuine issue between them [2
Herrera 118, 2007 Ed., citing Evangelista v. Mercator
Financing Corporation, G.R. No. 148864 (2003)]
The trial court cannot motu propio decide that summary
judgment on an action is in order. The defending
party or claimant, as the case may be, must invoke the
Rule by filing a motion. The adverse party must then
be notified of the motion and furnished with
supporting documents before hearing is conducted
[Pineda v. Heirs of Eliseo Guevara, G.R. No. 143188
(2007)]
Summary Judgment is proper when it appears to
the court that
a. There exists no genuine issue as to any material
fact, except as to the amount of damages, and
b. The moving party is entitled to judgment as a
matter of law
Genuine issue - an issue of fact which calls for the
presentation of evidence as distinguished from a
sham, fictitious, contrived, or false claim [Philippine
Bank of Communications v. Go, G.R. No. 175514 (2011)]
Test: Whether or not the pleadings, affidavits and
exhibits in support of the motion are sufficient to
overcome the opposing papers and to justify the
finding that, as a matter of law, that there is no
defense to the action, or the claim is clearly
meritorious [Estrada v. Consolacion, G.R. No. L- 40948
(1976)]
Page 107 of 481
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a. For the Claimant; For the
Defendant
When filed
1. If sought by the claimant – only after the answer
is served; [Sec. 1, Rule 35]
2. If sought by the defendant – at any time [Sec. 2,
Rule 35]
Procedure
1. Movant files a motion for summary judgment
with supporting affidavits, depositions or
admission
2. Service to the adverse party at least 10 days the
hearing
3. Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days before
the hearing
4. Hearing – Court shall determine if a genuine issue
as to any material fact exists, and if the movant is
entitled to a summary judgment as a matter of law
5. Court renders summary judgment
[Sec. 3, Rule 35]
Note: Damages must still be proven even if not denied.
Note language of Sec. 3, Rule 35, “except as to the
amount of damages.”
Bases for summary judgment
1. Affidavits
2. Depositions
3. Admissions
[Sec. 1-2, Rule 35]
b. When the Case is Not Fully
Adjudicated
Partial summary judgment – applies when for
some reason there can be no full summary judgment.
Trial should deal only with the facts not yet specified
or established.
Duty of the court [Sec. 4, Rule 35]
1. Ascertain which material facts exist without
substantial controversy and which are actually
and in good faith controverted, by
a. Examining the pleadings and evidence
before it; and
b. Interrogating counsel
2. Make an order which:
a. Specifies the facts without substantial
controversy and deemed established,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

including the extent to which the amount of Judgment on the

Summary judgment
damages or other relief is not in controversy pleadings
b. Directs further proceedings as are just Based on the
3. Conduct trial on the controverted facts pleadings, affidavits,
Based on the pleadings
depositions and
Effect: A partial summary judgment is not a final alone [Sec. 1, Rule 34]
admissions [Sec. 3,
judgment, but merely a pre-trial adjudication that said Rule 35]
issues in the case shall be deemed established for the 10-day notice to the
trial of the case [Guevarra v. CA, G.R. No. L-49017 adverse party is
(1983)] required. The adverse
Only a 3-day notice to
party in turn may serve
the adverse party is
c. Affidavits and Attachments opposing affidavits,
required prior to the
depositions or
date of hearing [Sec. 4,
Form admissions at least 3
Rule 15]]
1. Made on personal knowledge days before the
2. Setting forth such facts as would be admissible in hearing [Sec. 3, Rule
evidence 35]
3. Showing affirmatively that the affiant is [1 Riano 614-615, 2014 Bantam Ed.]
competent to testify to the matters stated therein.
4. Certified true copies of all papers or parts thereof 7. Rendition of Judgments and
referenced in the affidavit shall be attached or
served with the affidavit Final Orders
[Sec. 5, Rule 35]
Rendition of judgment
Affidavits in bad faith [Sec. 6, Rule 35] – those Pronouncement of the judgment in open court does
presented under this Rule which appear to the court not constitute rendition of judgment. It is the filing of
at any time as presented in bad faith or solely for the the signed decision with the COC that constitutes
purpose of delay rendition. Even if the judgment has already been put
in writing and signed, it is still subject to amendment
Effect of affidavits in bad faith if it has not yet been filed with the COC [Ago v. CA,
The court: G.R. No. L-17898 (1962)]
1. shall order the offending party or counsel to pay
the other party the amount of reasonable The filing of the signed decision constitutes the
expenses which the filing of the affidavits caused rendition of a judgment. This includes an amended
him to incur; and decision because an amended decision is a distinct and
2. may, after hearing, adjudge the offending party separate judgment and must follow the established
or counsel guilty of contempt procedural rule embodied in Sec. 1, Rule 36 [2 Herrera
151, 2007 Ed.]
6. Judgment on the Pleadings Promulgation is the process by which a decision is
v. Summary Judgment published, officially announced, made known to the
public or delivered to the COC for filing, coupled
Judgment on the with notice to the parties or their counsel [2 Herrera
Summary judgment 151, 2007 Ed., Neria v. Commissioner of Immigration, G.R.
pleadings
Absence of a factual No. L-24800 (1968)]
Involves an issue, but
issue in the case because
the issue is not Period for rendition
the answer tenders no
genuine a. All cases filed must be decided or resolved by the
issue at all
Motion for judgment on Supreme Court within 24 months from the date
Motion for summary of their submission for decision.
the pleadings is filed by
judgment may be filed b. Unless reduced by the SC, within 12 months for
a claiming party like a
by either the claiming lower collegiate courts and within 3 months for
plaintiff or a
or the defending party all other lower courts.
counterclaimant [Sec. 1,
[Secs. 1-2, Rule 35] [Sec. 15, Art. VIII, Constitution]
Rule 34]

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U.P. LAW BOC CIVIL PROCEDURE
A case is deemed submitted for resolution upon the
filing of the last pleading, brief or memorandum
required by the Rules of Court or by the court [Sec.
15, Art. VIII, Constitution]
An extension of the period may be set by the SC upon
request by the judge concerned on account of heavy
caseload or by other reasonable excuse. Without an
extension, a delay in the disposition of cases is
tantamount to gross inefficiency on the part of the
judge [Arap v Mustafa, SCC-01-7 (2002)]
8. Entry of Judgment and Final
Order
The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final
and executory [1 Riano 615, 2014 Bantam Ed.]
When entered: If no appeal, or motion for new trial
or reconsideration is filed within the time provided in
the Rules, the judgment or final order shall forthwith
be entered by the clerk in the book of entries of
judgments [Sec. 2, Rule 36]
Contents of record in the book of entries:
a. Dispositive part of the judgment or final order
b. Signature of the clerk; and
c. Certification that such judgment or final order
has become final and executory [Sec. 2, Rule 36]
Note: The date of finality of the judgment or final
order shall be deemed to be the date of its entry [Sec.
2, Rule 36]
Under Sec. 2, Rule 36, the date of the entry of
judgment is the date when the judgment becomes
final and executory regardless of the date when the
physical act of entry was done [1 Riano 615, 2014
Bantam Ed.]
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REMEDIAL LAW
R. Post-Judgment Remedies
Remedies before finality of judgment
1. Motion for new trial [Rule 37]
2. Motion for reconsideration [Rule 37]
3. Appeal [Rules 40-45]
[1 Riano 60, 2011 Ed.]
1. Motion for New Trial or
Reconsideration
Note: The motion for reconsideration (MR) under
Rule 37 is directed against a judgment or final order
[Sec. 1, Rule 37]. It does not refer to one for
interlocutory orders, which often precedes a petition
for certiorari under Rule 65. [1 Riano 558, 2011 Ed.]
These motions are prohibited in cases covered by the
Rule on Summary Procedure [Sec. 19] and those
falling under the Rules of Procedure on Small Claims
Cases [Sec. 16].
a. Grounds
Grounds for Motion For New Trial (MNT)
One or more of the following causes materially
affecting the substantial rights of said party:
1. Fraud, accident, mistake or excusable negligence
(FAME) which ordinary prudence could not
have guarded against and by reason of which
such aggrieved party has probably been impaired
in his rights, or
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
[Sec. 1, Rule 37]
FAME
Fraud must be extrinsic. Meaning, it is any fraudulent
scheme executed outside of the trial by the prevailing
party against the losing party, who, because of such
fraud, is prevented from presenting his side of the
case, or judgment was procured without fair
submission of the controversy [1 Regalado 455, 2010
Ed.]
For mistake, it generally refers to mistake of fact but
may also be mistakes of law made in good faith by the
defendant who was misled in the case [1 Regalado 431,
2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE
For negligence, it must be generally imputable to the
party. The negligence of the counsel is binding on the
client except if it was so great as to prejudice the client
and prevent fair presentation of the case [1 Regalado
432, 2010 Ed.]
Note: A motion for reopening the trial is different
from a motion for new trial—the latter can only be
done after promulgation of judgment whereas the
former may properly be presented after either or both
parties have formally offered and closed their
evidence before judgment. [1 Regalado 432, 2010 Ed.]
Grounds for Motion for Reconsideration
1. Damages awarded are excessive
2. Evidence is insufficient to justify the decision or
final order
3. Decision or final order is contrary to law
[Sec. 1, Rule 37]
Note: If the MR is based on the same grounds as that
for a MNT, it is considered a MNT [Rodriguez v. Rovira,
G.R. No. 45252 (1936)]
b. When to File
Within the period for taking an appeal [Sec. 1, Rule 37]
See Period of appeal below.
Contents
1. 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.
2. A MNT shall be proved in the manner provided
for proof of motions.
a. A motion based on FAME shall be
supported by affidavits of merits which may
be rebutted by affidavits.
b. A motion based on newly-discovered
evidence 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.
3. A MR shall 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.
4. A pro forma MNT/MR shall not toll the
reglementary period of appeal.
Page 110 of 481
REMEDIAL LAW
[Sec. 2, Rule 37]
MNT based on FAME not accompanied by
affidavit of merits
General rule: Denied
Exceptions:
1. The court has no jurisdiction over the defendant/
subject matter so the judgment is null and void
2. The judgment is defective as where a judgment
by default was rendered even before the
reglementary period to answer had expired.
3. The defendant was deprived of his day in court
as when no notice of hearing was furnished him
[1 Regalado 435, 2010 Ed.]
When MNT considered pro forma
1. Based on the same ground raised in preceding
MNT/MR already denied
2. Contains the same arguments and manner of
discussion in the prior opposition to a motion to
dismiss which was granted
3. The new ground alleged in the 2nd MNT was
available and could have been alleged in the first
MNT which was denied
4. Based on the ground of insufficiency of
evidence/that the judgment is contrary to law,
but does not specify the supposed defects in
judgment
5. Based on FAME but does not specify the facts
constituting these grounds and/or is not
accompanied by an affidavit of merits.
[1 Regalado 193, 2010 Ed.]
Single-motion rule [Sec. 5, Rule 37]
1. 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 nor 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.
2. No party shall be allowed a second motion for
reconsideration of a judgment or final order.
Court action
The trial court may
1. Set aside the judgment or final order and grant a
new trial, upon such terms as may be just
2. Deny the motion
3. Amend such judgment or final order accordingly
if the court finds that
U.P. LAW BOC CIVIL PROCEDURE
a. Excessive damages have been awarded or
that, or
b. Judgment or final order is contrary to the
evidence or law
[Sec. 3, Rule 37]
Resolution: The motion shall be resolved within 30
days from the time it is submitted for resolution [Sec.
4, Rule 37]
The 30-day period to resolve the motion is held to be
mandatory [Gonzales v. Bantolo, A.M. No. RTJ-06-1993
(2006)]
c. Denial of the Motion; Effect
Not appealable, the remedy is an appeal from the
judgment or final order [Sec.9, Rule 37]
The order denying the motion may itself be assailed
by a petition for certiorari under Rule 65 [1 Regalado
437, 2010 Ed.]
d. Grant of the Motion; Effect
Grant of MNT
If a new trial is granted in accordance with Rule 37,
the original judgment or final order shall be vacated,
and the action shall stand for trial de novo; but the
recorded evidence taken upon the former trial, insofar
as the same is material and competent to establish the
issues, shall be used at the new trial without retaking
the same [Sec. 6, Rule 37].
Grant of MR
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 [Sec. 3, Rule 37].
Partial grant of new trial or reconsideration
If the grounds for a motion under this Rule appear to
the court to affect
Page 111 of 481
REMEDIAL LAW
1. The issues as to only a part, or
2. Less than all of the matter in controversy, or
3. Only one, or less than all, of the parties to it,
the court may order a new trial or grant
reconsideration as to such issues if severable without
interfering with the judgment or final order upon the
rest [Sec. 7, Rule 37]
Partial new trial; effect
When less than all of the issues are ordered retried,
the court may either
1. Enter a judgment or final order as to the rest,
or
2. Stay the enforcement of such judgment or
final order until after the new trial.
[Sec.8, Rule 37]
e. Remedy When Motion is
Denied; Fresh 15-Day Period
Rule
1. The SC has allowed a fresh period of 15 days
within which to file the notice of appeal in the
RTC, counted from receipt of the order
dismissing a MNT/MR.
2. The fresh period of 15 days becomes significant
only when a party opts to file a motion for new
trial or motion for reconsideration.
[Neypes v. CA, G.R. No. 141524 (2005)]
Notes
What is appealed is the judgment itself, not the order
denying the MNT/MR [Sec. 9, Rule 37].
A.M. No. 07-7-12, effective December 27, 2007,
amended Sec. 1, Rule 41 by deleting “An order
denying a motion for new trial or reconsideration”
from the non-appealable orders. Nevertheless, Sec. 9,
Rule 37 still states that an order denying a MNT or
reconsideration is not appealable.
U.P. LAW BOC CIVIL PROCEDURE
Motion for New Trial v. Motion for Reconsideration
Motion for New Trial
Grounds 1. Fraud, accident, mistake, or excusable
[Sec. 1, negligence
Rule 37] 2. Newly discovered evidence
A MNT shall include all grounds then available
and those not so included shall be deemed
waived.
Second A second MNT based on a ground not existing
MNT/MR nor 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.
[Sec. 5, Rule 37]
The original judgment or final order shall be
vacated, and the action shall stand for trial de
novo; but the recorded evidence taken upon
Effect if
the former trial, insofar as the same is material
granted
and competent to establish the issues, shall be
used at the new trial without retaking the same
[Sec. 6, Rule 37]
2. Appeals
Nature
a. Not a natural right nor a part of due process
b. It is merely a statutory privilege, and may be
exercised only in the manner and in accordance
with the provisions of the law
[Ong v. Philippine Insurance Corp., G.R. No. 175116
(2010)]
c. Once granted, appeals become part of due
process and should be liberally applied in favor
of the right to appeal [Sec. 1, Rule 122; NOTE:
This provision is from the Rules on Criminal
Procedure.]
An appeal is different from an action to review. In an
appeal, the court by which the first determination was
made is not a party to the proceeding for review
whereas in an action for review, the court which made
the determination is a party to the proceeding for
review [1 Regalado 556, 2010 Ed.]
a. Judgments and Final Orders
Subject to Appeal
An appeal may be taken from a judgment or final
order that completely disposes of the case, or of a
Page 112 of 481
REMEDIAL LAW
Motion for Reconsideration
1. Damages awarded are excessive
2. That the evidence is insufficient to justify
the decision or final order
3. That the decision or final order is contrary
to law
No party shall be allowed a second MR of a
judgment or final order [Sec. 5, Rule 37].
Note: This prohibition does not cover
interlocutory orders.
The court may amend the judgment or final
order accordingly, if it finds:
1. that excessive damages have been awarded,
or
2. that the judgment or final order is contrary
to the evidence or law
[Sec. 3, Rule 37]
particular matter therein when declared by the ROC
to be appealable [Sec. 1, Rule 41].
b. Matters Not Appealable
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, 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
[Sec. 1, Rule 41, as amended by A.M. No. 07-7-12-SC]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Final order v. interlocutory order d. Final Judgment Rule;

Final Order Interlocutory Order
One that finally Determine incidental
Exceptions
disposes of a case, matters that do not
leaving nothing more touch the merits of the General rule: Once a decision or order becomes final
to be done by the case or put an end to and executory, it is removed from the power or
Court in respect thereto the proceedings [Silverio jurisdiction of the court which rendered it to further
[Investments, Inc. v. CA, Jr. v. Filipino Business alter or amend it [Siliman University v. Fontelo-Paalan,
G.R. No. L-60036 Consultants, Inc., G.R. G.R. No. 170948 (2007)]
(1987)] No. 143312 (2005)]
Under the doctrine of immutability of judgments,
Proper remedy to
a judgment that has attained finality can no longer be
question an
disturbed. The reason is two-fold:
improvident
Subject to appeal a. To avoid delay in the administration of justice,
interlocutor order is a
[Investments, Inc. v. CA, and to make orderly the discharge of judicial
petition for certiorari
G.R. No. L-60036 business; and
under Rule 65 [Silverio
(1987)] b. To put an end to judicial controversies at the
Jr. v. Filipino Business
expense of occasional errors
Consultants, Inc., G.R.
[1 Riano 538-539, 2011 Ed.]
No. 143312 (2005)]
Not decisions or
Exceptions:
Must express clearly judgments within the
a. Correction of clerical errors [Filipinas Palmoil
and distinctly the facts constitutional
Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)]
and the law on which it definition [1 Riano 581,
b. Nunc pro tunc entries [Filipinas Palmoil
is based [Sec. 14, Art. 2014 Bantam Ed.,
Processing, Inc. v. Dejapa, G.R. No. 167332
VIII, Constitution] citing Amargo v. CA,
(2011)]
G.R. No.
c. Whenever circumstances transpire after finality
[Pahila-Garrido v Tortogo, G.R. No. 156358 (2011)]
of the decision, rendering its execution unjust
and inequitable [Apo Fruits Corp. v. Land Bank of
An interlocutory order is one that does not finally
the Phils., G.R. No. 164195 (2010)]
dispose of the case, and does not end the court's task
d. In cases of special and exceptional nature, when
of adjudicating the parties’ contentions and
it is necessary in the interest of justice to direct
determining their rights and liabilities as regards each
modification in order to harmonize the
other, but obviously indicates that other things remain
disposition with the prevailing circumstances
to be done [BPI v. Lee, G.R. No. 190144 (2012)]
[Industrial Timber Corp. v. Ababon, G.R. No.164518
(2006)]
If an order appealed from is interlocutory, the
e. In case of void judgments [FGU Insurance v. RTC
appellate court can dismiss the appeal even if the
Makati, G.R. No. 161282 (2011)]
appellee did not file any objection [1 Regalado 552,
f. Where there is a strong showing that a grave
2010 Ed.]
injustice would result from an application of the
Rules [Almuete v. People, G.R. No. 179611 (2013)]
c. Remedy against Judgments and g. When there are grounds for annulment of
Orders Which are Not judgment or petition for relief [Gochan v. Mancao,
G.R. No. 182314 (2013)]
Appealable
Amended/clarified Supplemental
In those instances where the judgment or final order
judgment decision
is not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65 [Sec. 1, An entirely new
Does not take the place
Rule 41] decision and
of or extinguish the
supersedes the original
original judgment
judgment

Page 113 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Amended/clarified Supplemental
judgment decision f. Issues to be Raised on Appeal
Court makes a
thorough study of the Limited to cognizable judgments/issues (errors stated
original judgment and in the assignment of errors) unless it affects the
renders the amended Serves to add to the court’s jurisdiction over the subject matter or it is a
and clarified judgment original judgment plain/clerical error [Enriquez v. CA, G.R. No. 140473
only after considering (2003)]
all the factual and legal
issues The appellate court has no jurisdiction to review a
[1 Regalado 418, 2010 Ed.] judgment which is immediately final and executory by
express provision of law [Republic v. Bermudez-Lorino,
e. Modes of Appeal G.R. No. 160258 (2005)]

1. Ordinary appeal – Rule 40 and 41 A party cannot change the theory on appeal. Only
a. Notice of appeal issues pleaded in the lower court and properly raised
b. Record on appeal may be resolved by the appellate court [Sps. Topacio v
2. Petition for review – Rule 42 Banco Filipino Savings and Mortgage Bank, G.R. No.
3. Appeal from quasi-judicial agencies (QJAs) to the 157644 (2010)]
CA – Rule 43
4. Petition for review on certiorari – Rule 45 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, G.R. No. 102128 (1992)]

Modes of Appeal
Appeals from QJAs to the Petition for Review by
Ordinary Appeal Petition for Review
CA Certiorari
Rule 41 Rule 42 Rule 43 Rule 45
Case where only question of
Awards, judgments, final
law are raised or involved
orders or resolutions of or
[Sec. 2(c), Rule 41]
authorized by any QJA in
the exercise of its quasi-
Case decided by Case decided by RTC in Appeal by certiorari from a
judicial functions [Sec. 1,
RTC in exercise of exercise of appellate judgment or final order or
Rule 43]
original jurisdiction jurisdiction [Sec. 2(b), Rule resolution of the CA, the
[Sec. 2(a), Rule 41] 41] Sandiganbayan, the RTC or
EXCEPT: Judgments or
other courts whenever
final orders issued under
authorized by law [Sec. 1,
the Labor Code [Sec. 2,
Rule 45]
Rule 43]
Notice of
Verified petition for review Petition for review on
appeal/Record on Petition for review with
with the CA [Sec. 5, Rule certiorari with the SC [Sec.
appeal with the CA the CA [Sec. 2(b), Rule 41]
43] 2(c), Rule 41]
[Sec. 2(a), Rule 41]
File a verified petition for File a verified petition for File verified petition for
Filing a notice of
review with the CA, review in 7 legible copies review on certiorari with the
appeal with the
paying at the same time to with the CA, with proof of SC [Sec. 1, Rule 45]
court which
the clerk of said court the service of a copy thereof on
rendered the
corresponding docket and the adverse party and on Petitioner shall pay the
judgment or final
other lawful fees, the court or agency a quo. corresponding docket and
order appealed from
depositing the amount of The original copy of the other lawful fees to the
and serving a copy
PHP 500.00 for costs, and petition intended for the COC of the SC and deposit

Page 114 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Appeals from QJAs to the Petition for Review by

Ordinary Appeal Petition for Review
CA Certiorari
thereof upon the furnishing the RTC and CA shall be indicated as the amount of PHP 500.00
adverse party the adverse party with a such by the petitioner. for costs at the time of the
copy of the petition [Sec. filing of the petition. Proof
If required, the 1, Rule 42] Upon the filing of the of service of a copy thereof
record-on appeal petition, the petitioner shall on the lower court
shall be filed and pay to the COC of the CA concerned and on the
served in like the docketing and other adverse party shall be
manner [Sec. 2, lawful fees and deposit the submitted together with the
Rule 41] sum of PHP 500.00 for petition [Sec. 3, Rule 45]
costs
[Sec.5, Rule 43]
Within 15 days from:
Within 15 days 1. notice of the award,
from notice of the judgment, final order or
Within 15 days from notice
judgment or final resolution, or
Within 15 days from of
order appealed from 2. the date of
notice of 1. the judgment or final
i. its last publication, if
1. the decision sought to order or resolution
Where a record of publication is
be reviewed or appealed from, or
appeal is required, required by law for
2. the denial of 2. the denial of the
file a notice of its effectivity, or
petitioner’s MNT or petitioner’s MNT or
appeal and a record ii. the denial of
MR filed in due time MR filed in due time
on appeal within 30 petitioner’s MNT or
after judgment after notice of the
days from notice of MR duly filed in
[Sec. 1, Rule 42] judgment
the judgment or accordance with the
[Sec. 2, Rule 45]
final order governing law of the
[Sec. 3, Rule 41] court or agency a quo
[Sec. 4, Rule 43]

g. Period of Appeal
The fresh period rule shall apply to:
1. Rule 40 governing appeals from the MTCs to the
RTCs
2. Rule 41 governing appeals from the RTCs to CA
3. Rule 42 on petitions for review from the RTCs to
the CA
4. Rule 43 on appeals from quasi-judicial agencies
to the CA, and
5. Rule 45 governing appeals by certiorari to the SC
The new rule aims to regiment or make the appeal
period uniform, to be counted from receipt of the
order denying the MNT, MR (whether full or partial)
or any final order or resolution [Neypes v. CA, G.R.
No. 141524 (2005)]
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, G.R.
No. 154034 (2007)]
h. Perfection of Appeal
Perfection of an appeal in the manner and within the
period laid down by law is mandatory and
jurisdictional [Balgami v. CA, G.R. No. 131287 (2004)]
Effect of failure to perfect appeal
1. Defeats a party’s right to appeal.
2. Precludes appellate court from acquiring
jurisdiction.
[1 Riano 20, 2011 Ed.]
i. Participation of the Solicitor
General During Appeal
In criminal proceedings on appeal in the Court of
Appeals or in the SC, the authority to represent the
People is vested solely in the Solicitor General. Under
P.D. 478, among the specific powers and functions of
the OSG was to represent the government in the SC
and the Court of Appeals in all criminal proceedings.

Page 115 of 481

U.P. LAW BOC CIVIL PROCEDURE
This provision has been carried over to the
Administrative Code particularly in Book IV, Title III,
Chapter 12 thereof [Cario v. De Castro, G.R. No.
176084 (2008)]
The respondent’s failure to have a copy of his petition
[for review under Rule 42] served on the People of
the Philippines, through the OSG, is a sufficient
ground for the dismissal of the petition as provided in
Sec. 3, Rule 42 of the Rules of Court [People v. Duca,
G.R. 171175 (2009)]
j. Appeal from Judgments or Final
Orders of the Municipal Trial
Court
Procedure
File a notice of appeal with the court that rendered
the judgment or final order appealed from [Sec. 3,
Rule 40]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed
from the full amount of the appellate court docket
and other lawful fees [Sec. 5, Rule 40]
 is addressed to the sound discretion of the court [Socco
Within 15 days from the perfection of the appeal,
the COC or the branch COC of the lower court
shall transmit the original record or the record on
appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper
RTC. A copy of his letter of transmittal of the
records to the appellate court shall be furnished the
parties [Sec. 6, Rule 40]
 2. The notice of appeal shall indicate the parties to
Upon receipt of the complete record or the record
on appeal, the COC of the RTC shall notify the
parties of such fact [Sec. 7(a), Rule 40]

Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to
the lower court, a copy of which shall be furnished
by him to the adverse party. Failure of the appellant
to file a memorandum shall be a ground for
dismissal of the appeal [Sec. 7(b), Rule 40]
 By record on appeal
Within 15 days from receipt of the appellant’s
memorandum, the appellee may file his
memorandum [Sec. 7(c), Rule 40]
 shall be as provided in Sec. 6, Rule 41.
Page 116 of 481
REMEDIAL LAW
Upon the filing of the memorandum of the
appellee, or the expiration of the period to do so,
the case shall be considered submitted for decision.
The RTC shall decide the case on the basis of the
entire record of the proceedings had in the court
of origin and such memoranda as are filed [Sec.
7(d), Rule 40]
Where taken
To the RTC exercising jurisdiction over the area to
which the former pertains [Sec. 1, Rule 40]
When taken
1. Within 15 days after notice to the appellant of the
judgment or final order appealed from.
2. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record
on appeal within thirty (30) days after notice of
the judgment or final order.
3. The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a motion
for new trial or reconsideration shall be allowed.
[Sec. 2, Rule 40]
Extension of period to appeal
Period to appeal may be extended but such extension
v. Garcia, G.R. No. L-18231 (1962)]
HOW TAKEN
By notice of appeal
1. File a notice of appeal with the trial court that
rendered the judgment or final order appealed
from
the appeal, the judgment or final order or part
thereof appealed from, and state the material
dates showing the timeliness of the appeal.
3. Copies of the notice of appeal shall be served on
the adverse party.
[Sec. 3, Rule 40]
4. Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed
from the full amount of the appellate court
docket and other lawful fees [Sec. 5, Rule 40]
1. File a notice of appeal [Sec. 2, Rule 41] following
the steps above
2. The form and contents of the record on appeal
U.P. LAW BOC CIVIL PROCEDURE
3. Copies of the notice of appeal, and the record on
appeal where required, shall be served on the
adverse party.
[Sec. 3, Rule 40]
4. Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed
from the full amount of the appellate court
docket and other lawful fees [Sec. 5, Rule 40]
Note: Record on appeal shall be required only in
1. Special proceedings
2. In such other cases of multiple or separate
appeals
[Sec. 2, Rule 41]
Perfection of appeal
The perfection of the appeal and the effect thereof
shall be governed by the provisions of Sec. 9, Rule 41
[Sec. 4, Rule 40]
Appeal from order dismissing a case without
trial; lack of jurisdiction
Two Scenarios
1. If an appeal is taken from an order of the lower
court dismissing the case without a trial on the
merits
a. The RTC may affirm or reverse it, as the case
may be
b. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the RTC, if it has jurisdiction
thereover, shall try the case on the merits as
if the case was originally filed with it
c. In case of reversal, the case shall be
remanded for further proceedings
2. If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC on appeal shall not dismiss the
case if it has original jurisdiction thereof, but shall
decide the case in accordance with Sec. 7, Rule
40, without prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice
[Sec. 8, Rule 40]
Applicability of Rule 41
The other provisions of Rule 41 shall apply to appeals
provided for herein insofar as they are not
inconsistent with or may serve to supplement the
provisions of Rule 41 [Sec. 9, Rule 41]
Page 117 of 481
REMEDIAL LAW
k. Appeal from Judgments or Final
Orders of the Regional Trial
Court
Modes of appeal
1. Ordinary appeal — The appeal to the CA in
cases decided by the RTC in the exercise of its
original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered
the judgment or final order appealed from and
serving a copy thereof upon the adverse party.
No record on appeal shall be required except in
special proceedings and other cases of multiple
or separate appeals where the law or the ROC so
require. In such cases, the record -on appeal shall
be filed and served in like manner.
2. Petition for review — The appeal to the CA in
cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for
review in accordance with Rule 42.
3. 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.
[Sec. 2, Rule 41]
Appeal from the RTC to the CA via Rule 41
presupposes that
1. The RTC rendered the judgment or final order in
the civil action or special proceeding in the
exercise of its original jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
[1 Regalado 555, 2010 Ed.]
NOTICE OF APPEAL
Contents of the notice of appeal
1. Parties to the appeal
2. Judgment or final order or part thereof appealed
from
3. Court to which the appeal is being taken, and
4. Material dates showing the timeliness of the
appeal
[Sec. 5, Rule 41]
RECORD ON APPEAL
1. No record on appeal shall be required except in
special proceedings and other cases of multiple
or separate appeals where the law or the ROC so
require.
2. In such cases, the record -on appeal shall be filed
and served in like manner. [Sec. 2(a), Rule 41]
U.P. LAW BOC CIVIL PROCEDURE
Contents of the record on appeal
1. Full names of all the parties to the proceedings
shall be stated in the caption of the record on
appeal
2. The judgment or final order from which the
appeal is taken and,
3. In chronological order, copies of only such
pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment or
final order for the proper understanding of the
issue involved,
4. Together with such data as will show that the
appeal was perfected on time.
[Sec. 6, Rule 41]
Note: The requirement that the record on appeal must
show on its face that the appeal was perfected on time
is mandatory and jurisdictional that if not complied
with, the appeal must be dismissed [1 Regalado 563,
2010 Ed.]
If an issue of fact is to be raised on appeal, the record
on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue
involved.
1. The reference shall specify the
a. Documentary evidence by the exhibit
numbers or letters by which it was identified
when admitted or offered at the hearing, and
b. Testimonial evidence by the names of the
corresponding witnesses
2. If the whole testimonial and documentary
evidence in the case is to be included, a statement
to that effect will be sufficient without
mentioning the names of the witnesses or the
numbers or letters of exhibits.
3. Every record on appeal exceeding 20 pages must
contain a subject index.
[Sec. 6, Rule 41]
Note: Material date rule [Sec. 6, Rule 41]; exception—
If the trial court issued an order to the effect that the
appeal was seasonably perfected with the filing of the
notice of appeal and the record on appeal within the
reglementary period [Pimentel v. CA, G.R. No. L-
39684 (1975)]
Approval of the record on appeal
1. Upon the filing of the record on appeal for
approval and if no objection is filed by the
appellee within 5 days from receipt of a copy
thereof, the trial court may approve it as
presented or upon its own motion or at the
Page 118 of 481
REMEDIAL LAW
instance of the appellee, may direct its
amendment by the inclusion of any omitted
matters which are deemed essential to the
determination of the issue of law or fact involved
in the appeal.
2. If the trial court orders the amendment of the
record, the appellant, within the time limited in
the order, or such extension thereof as may be
granted, or if no time is fixed by the order within
10 days from receipt thereof, shall redraft the
record by including therein, in their proper
chronological sequence, such additional matters
as the court may have directed him to
incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to the
appellee, in like manner as the original draft.
[Sec. 7, Rule 41]
Joint record on appeal
Where both parties are appellants, they may file a joint
record on appeal within the time fixed by Sec. 3 of
Rule 41, or that fixed by the court [Sec. 8, Rule 41]
Period to appeal
1. Within 15 days from notice of judgment or final
order appealed from
2. Within 30 days from notice of judgment or final
order where a record on appeal is required
3. Within 48 hours from notice of judgment or final
order appealed from in habeas corpus cases
[Sec. 3, Rule 41]
Note: If the trial court approves the record on appeal
even if the period for the appeal has expired, this is
tantamount to a valid order granting the extension
prayed for by the appellant if any such motion has
been filed [Berkenkotter v. CA, G.R. No. L-36629
(1973)] Conversely, dismissal constitutes a denial of
the extension prayed for, in which case the only
question that can arise is whether the trial court had
gravely abused its discretion in denying such
extension [PVTA v. Delos Angeles, G.R. No. L-29736,
(1974)]
Reckoning point of reglementary period
Period for filing the appeal should be counted from
the date when the party’s counsel received a copy of
the judgment or final order because that is the
effective service of the decision. When a party is
represented by counsel, service of process must be
made on counsel, not on the party [Fajardo v. CA,
G.R. No. 140356 (2001); Sec. 2, Rule 13]
U.P. LAW BOC CIVIL PROCEDURE
When a party is represented by a counsel, service of
process must be made on counsel, not on party
[Fajardo v. CA, G.R. No. 140356 (2001)]
Effect of motions for new trial and reconsideration
Fresh period of 15 days within which to file the notice
of appeal in the RTC, counted from receipt of the
order dismissing a motion for a new trial or motion
for reconsideration [Neypes v. CA, G.R. No. 141524
(2005)]
Extension of period to appeal
The period to appeal may be extended but such
extension is addressed to the sound discretion of the
court [Gregorio v. CA, G.R. No. L-43511 (1976)]
The mere filing and pendency of motion for
extension to perfect appeal does not suspend the
running of the reglementary period [King v. Corro, G.R.
No. L-23617 (1967)]
PLEADINGS FILED
Appellant’s brief
1. 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 typewritten, mimeographed or
printed brief, with proof of service of 2 copies
thereof upon the appellee [Sec. 7, Rule 44].
2. Under Sec. 5(b) of the Efficient Use of Paper Rule
[A.M. 11-9-4-SC], file one original (properly
marked) and 2 copies with their annexes with the
CA
Grounds for dismissal with respect to appellant’s
brief:
1. Failure of the appellant to serve and file the
required number of copies of his brief within the
time provided by the ROC
2. Absence of specific assignment of errors in the
appellant’s brief
[Sec. 1(e)-(f), Rule 50]
Contents
1. Subject index
2. Assignment of errors
3. Statement of the Case
4. Statement of Facts
5. Statement of issues
6. Arguments
7. Relief
Page 119 of 481
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8. Copy of judgment or final order appealed from
[Sec. 13, Rule 44]
Appellee’s brief
1. Within 45 days from receipt of the appellant’s
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 [Sec. 8, Rule 44]
2. Under Sec. 5(b) of the Efficient Use of Paper Rule
[A.M. 11-9-4-SC], file one original (properly
marked) and 2 copies with their annexes with the
CA
Contents
1. Subject index
2. Statement of Facts or Counter-Statement of
Facts
3. Argument
[Sec. 14, Rule 44]
Appellant’s reply brief
Within 20 days from receipt of the appellee’s brief, the
appellant may file a reply brief answering points in the
appellee’s brief not covered in his main brief [Sec. 9,
Rule 44]
Extension of time for filing briefs:
General rule: Not allowed
Exception: Good and sufficient cause, and only if the
motion for extension is filed before the expiration of
the time sought to be extended
[Sec. 12, Rule 44]
Payment of docket fees
1. Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed
from, the full amount of the appellate court
docket and other lawful fees.
2. Proof of payment of said fees shall be transmitted
to the appellate court together with the original
record or the record on appeal.
[Sec. 4, Rule 41]
Payment of docket fees in full is mandatory and is a
condition sine qua non for the perfection of an appeal.
Subsequent payment of appellate docket fees did not
cure the defect of the appeal because payment is a
jurisdictional requirement [Santander v Villanueva, G.R.
No. L-6184 (1958)]
U.P. LAW BOC CIVIL PROCEDURE
Perfection of appeal
1. A party’s appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice
of appeal in due time.
2. A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject
matter thereof upon the approval of the record
on appeal filed in due time.
[Sec. 9, Rule 41]
Note: An appellant who fails to perfect his appeal on
time due to FAME may file for a petition for relief
under Sec. 2, Rule 38. If his petition for relief is
denied, he can file a petition under Rule 65, since the
denial of a petition for relief is no longer appealable
under Sec. 1 of Rule 41 [De Luna v. Palacio, G.R. No.
L-26927 (1969)]
Effect of perfected appeal
1. In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection
of the appeals filed in due time and the expiration
of the time to appeal of the other parties.
2. In appeals by record on appeal, the court loses
jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of the
time to appeal of the other parties.
[Sec. 9, Rule 41]
Residual powers/jurisdiction of the RTC
In either case, prior to the transmittal of the original
record or the record on appeal, the court may
1. Issue orders for the protection and preservation
of the rights of the parties which do not involve
any matter litigated by the appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution pending appeal in accordance
with Sec. 2 of Rule 39, and
5. Allow withdrawal of the appeal
[Sec. 9, Rule 41]
The concept of residual jurisdiction of the trial court
is available at a stage in which the court is normally
deemed to have lost jurisdiction over the case or the
subject matter involved in the appeal. There is no
residual jurisdiction to speak of where no appeal or
petition has even been filed [Fernandez v. CA, G.R.
No. 131094 (2005)]
Page 120 of 481
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Duty of clerk upon perfection of appeal
1. Within 30 days after perfection of all the appeals
in accordance with the preceding section, it shall
be the duty of the COC of the lower court
a. To verify the correctness of the original
record or the record on appeal, as the case
may be, and to make a certification of its
correctness
b. To verify the completeness of the records
that will be transmitted to the appellate court
c. If found to be incomplete, to take such
measures as may be required to complete the
records, availing of the authority that he or
the court may exercise for this purpose; and
d. To transmit the records to the appellate
court
2. If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that
could be taken to have them available.
3. The COC shall furnish the parties with copies of
his letter of transmittal of the records to the
appellate court.
[Sec. 10, Rule 41]
Note: Even if the appeal has already been perfected
but the records have not yet been transmitted to the
appellate court, the trial court still has jurisdiction to
set aside its order approving the record on appeal
[Cabungcal v. Fernandez, G.R. No. L-16520 (1964)]
Dismissal of appeal
Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the appeal for
1. having been taken out of time, or
2. non-payment of the docket and other lawful fees
within the reglementary period
[Sec. 13, Rule 41]
Note: The dismissal of the appeal in the RTC is limited
only to these two grounds. Failure of the appellee to
move for dismissal of an appeal perfected out of time
does not prevent the filing of such a motion in the
appellate court for it involves the appellate
jurisdiction of the latter court [Garganta v. CA, G.R.
No. L-12104 (1959)]
Petition for review from the RTC to the CA [Rule 42]
Appeal via Rule 42 is proper when one appeals from
a decision of the RTC in the exercise of its appellate
U.P. LAW BOC CIVIL PROCEDURE
jurisdiction. It may be taken on either questions of
fact, questions of law, or on mixed questions of fact
and law. [Macawiwili Gold Mining and Development Co.,
Inc. v. CA, G.R. No. 115104 (1998)]
This mode of appeal is not a matter of right but is a
matter of discretion on the part of the CA, on whether
or not to entertain the appeal [1 Regalado 581, 2010
Ed.]
Note: Since Rule 42 is a petition for the purpose of
appeal and not petitions in original actions, lower
courts/judges that rendered the judgment
complained of are not impleaded as parties in the
appeal [1 Regalado 579, 2010 Ed.]
How taken
If a party desires to appeal from a decision of the RTC
in its appellate jurisdiction:
1. File a verified petition for review with the CA
a. Within 15 days from notice of judgment or
final order, or
b. Within 15 days from notice of denial of
petitioner’s MNT or MR
2. Pay at the same time to the clerk of the CA the
corresponding docket and other lawful fees,
3. Deposit PHP 500.00 for costs, and
4. Furnish the RTC and the adverse party with a
copy of the petition
[Sec. 1, Rule 42]
Period to appeal
The petition shall be filed and served within 15 days
from notice of the decision sought to be reviewed or
of the denial of petitioner’s MNT or MR filed in due
time after judgment [Sec. 1, Rule 42].
Extension of period
Upon proper motion and the payment of the full
amount of the docket and other lawful fees and 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 shall be
granted except for the most compelling reason and in
no case to exceed 15 days [Sec. 1, Rule 42].
Form and contents
1. In 7 legible copies, with the original copy
intended for the court being indicated as such by
the petitioner
a. Under Sec. 5(b) of the Efficient Use of Paper
Rule [A.M. 11-9-4-SC], file one original
Page 121 of 481
REMEDIAL LAW
(properly marked) and 2 copies with their
annexes with the CA
2. Full names of the parties to the case, without
impleading the lower courts or judges thereof
either as petitioners or respondents
3. Specific material dates showing that it was filed
on time
4. A concise statement of the
a. Maters involved
b. Issues raised
c. Specification of errors of fact or law, or both,
allegedly committed by the RTC, and
d. Reasons or arguments relied upon for the
allowance of the appeal
5. Clearly legible duplicate originals or true copies
of the judgments or final orders of both lower
courts, certified correct by the COC of the RTC,
6. The requisite number of plain copies thereof and
of the pleadings and
7. Other material portions of the record as would
support the allegations of the petition
8. Certification of non-forum shopping
[Sec. 2, Rule 42]
Effect of failure to comply
Failure to comply with any of the following
requirements shall be sufficient ground for dismissal:
1. Payment of docket and other lawful fees
Note: In petitions for review under Rules 42, 43,
and 45, the docket fee is paid in the appellate
courts
2. Deposit for costs
3. Proof of service of petition
4. Contents of the documents which should
accompany the petition
[Sec. 3, Rule 42]
Note: Failure to append the pleadings and material
portions of the record does not justify the outright
dismissal of the petition. There is substantial
compliance when the pleadings were attached to the
MR [Mendoza v. David, G.R. No. 147575 (2004)]
Perfection of appeal
Appeal is deemed perfected as to petitioner upon the
1. Timely filing of the petition
2. Payment of the corresponding docket and lawful
fees
[Sec. 8(a), Rule 42]
Jurisdiction of the RTC
1. The RTC loses jurisdiction over the case upon
the perfection of the appeals filed in due time and
U.P. LAW BOC CIVIL PROCEDURE
the expiration of the time to appeal of the other
parties.
2. However, before the CA gives due course to the
petition, the RTC may
a. Issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated by
the appeal, approve corn-promises
b. Permit appeals of indigent litigants
c. Order execution pending appeal in
accordance with Sec, 2 of Rule 39, and
d. Allow withdrawal of the appeal
[Sec. 8(a), Rule 42]
Note: The Doctrine of Residual Jurisdiction of the
RTC, at item (2) above, applies as in cases under Rule
42, except that the RTC must exercise this jurisdiction
before the CA gives due course to the petition [Sec.
8(a), Rule 42] In contrast, the RTC must exercise
residual jurisdiction in Rule 41 prior to transmittal of
the original record or the record on appeal [Sec. 9,
Rule 41]
Effect of appeal
General rule: The appeal shall stay the judgment or final
order.
Exceptions:
1. Civil cases decided under the Rule on
Summary Procedure, or
2. The CA, the law, or ROC provide otherwise
[Sec. 8(b), Rule 42]
Action on petition
The CA may:
1. Require the respondent to file a comment on
the petition, not a motion to dismiss, within
10 days from notice; or
2. Dismiss the petition if it finds
a. The same to be patently without merit or
prosecuted manifestly for delay, or
b. That the questions raised therein are too
unsubstantial to require consideration
[Sec. 4, Rule 42]
Under this Rule, appeal is discretionary on the CA
which may give its due course only when the petition
shows prima facie that the lower court has committed
error [1 Riano 600, 2011 Ed. citing Sec.6, Rule 42]
Contents of comment
1. In 7 legible copies
a. Under Sec. 5(b) of the Efficient Use of Paper
Rule [A.M. 11-9-4-SC], file one original
Page 122 of 481
REMEDIAL LAW
(properly marked) and 2 copies with their
annexes with the CA
2. Certified true copies of such material
portions of the record referred to therein
3. Together with other supporting papers
4. Whether or not he accepts the statement of
matters involved in the petition
5. Such insufficiencies or inaccuracies as he
believes exist in petitioner’s statement of
matters involved but without repetition, and
6. The reasons why the petition should not be
given due course.
A copy thereof shall be served on the petitioner.
[Sec. 5, Rule 42]
Due course
1. If upon the filing of the comment or such other
pleadings as the court may allow or require, or
2. After the expiration of the period for the filing
thereof without such comment or pleading
having been submitted,
the CA finds prima facie that the lower court has
committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it
may accordingly give due course to the petition
[Sec. 6, Rule 42] =
Whenever the CA deems it necessary, it may order the
COC of the RTC to elevate the original record of the
case including the oral and documentary evidence
within 15 days from notice [Sec. 7, Rule 42]
Submission for decision
1. If the petition is given due course, the CA may
a. set the case for oral argument or
b. require the parties to submit memoranda
within a period of 15 days from notice.
2. The case shall be deemed submitted for decision
upon the filing of the last pleading or
memorandum required by these Rules or by the
court itself
[Sec. 9, Rule 42].
Appeal by certiorari from the RTC to the SC via
Rule 45
RTC must have rendered judgment in the exercise of
its original jurisdiction [1 Regalado 609, 2010 Ed.]
If the RTC is in exercise of its appellate jurisdiction,
proper remedy is to appeal to the CA via Rule 42 even
if only questions of law are raised [1 Regalado 609, 2010
Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: A question of law exists when there is a Appeal by certiorari Certiorari as SCA
doubt/controversy as to what the law is on a certain [Rule 45] [Rule 65]
state of facts. There is a question of fact when the more than an error of CA, G.R.No. L-39861
doubt/ difference arises as to the truth/ falsehood of judgment (1986)]
facts [Ramos v. Pepsi, G.R. No. L-22533 (1967)] Petition raises the issue
Based on questions of
as to whether the lower
TEST: Whether the appellate court can determine law which the
court acted without or in
the issue raised without reviewing or evaluating the appellant desires the
excess of jurisdiction or
evidence, it is a question of law. The question must appellant court to
with grave abuse of
not involve the examination of the probative value of resolve
discretion
the evidence presented [Vda. De Arroyo v. El Beaterio,
May be directed against
G.R. No. L-22005 (1968)]
an interlocutory order of
Involves the review of the court prior to appeal
How determined
the judgment, award from the judgment or
The appellate court determines, not the court which
or final order on the where there is no appeal
rendered the decision appealed from [PNB v. Romillo,
merits or any other plain,
G.R. No. 70681 (1985)]
speedy or adequate
remedy
Grave abuse of discretion is not an allowable ground
under Rule 45 [Martires v. CA, G.R. No. 78036-37
(1990)] May be filed not later
Must be made within than 60 days from notice
l. Appeal from Judgments or Final the reglementary of the judgment, order
period for appeal or resolution sought to
Orders of the Court of Appeals be assailed

Any alleged errors committed in the exercise of its

Unless a writ of
jurisdiction will amount to nothing more than errors
Stays the judgment, preliminary injunction or
of judgment which are reviewable by timely appeal
award or order a TRO shall have been
and not by special civil action of certiorari [Chuidian v.
appealed from issued, does not stay the
Sandiganbayan (Fifth Division), G.R. No. 139941
challenged proceeding
(2001)]]
The parties are the
Petitioner and
As provided in Rule 45, decisions, final orders or aggrieved party against
respondent are the
resolutions of the CA in any case, i.e., regardless of the lower court or quasi-
original parties to the
the nature of the action or proceedings involved, may judicial agency and the
action, and the lower
be appealed to the SC by filing a petition for review, prevailing parties, who
court or quasi-judicial
which would be but a continuation of the appellate thereby respectively
agency is not too be
process over the original case [Fortune Guarantee and become the petitioner
impleaded
Insurance Corporation v. CA, G.R. No. 110701 (2002)] and respondents
Note: the use of the term “any case”. This includes MR is a condition
special civil actions. Prior filing of a MR is precedent [Villa Rey
not required [Sec. 1, Transit v. Bello, G.R. No.
Certiorari as mode of appeal and as special civil Rule 45] L-18957 (1963)], subject
action to certain exceptions
Appeal by certiorari Certiorari as SCA Higher court exercises
Appellate court is in
[Rule 45] [Rule 65] original jurisdiction
the exercise of its
Writ of certiorari issues under its power of
Brings up for review appellate jurisdiction
for the correction of control and supervision
errors of judgment and power of review
errors of jurisdiction over the proceedings of
committed by the [Regalado 543-544,
only or grave abuse of lower courts [Regalado
court in the exercise 1977 Ed.]
discretion amounting to 543-544, 1977 Ed.]
of its jurisdiction [2 Herrera 643-645, 2000 Ed.]
lack or excess of
amounting to nothing
jurisdiction [Silverio v.

Page 123 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Procedure Questions of law Questions of fact

File a verified petition for review on certiorari, which with respect to certain considering mainly the
may include an application for a writ of preliminary set of facts credibility of witnesses,
injunction or other provisional remedies [Sec. 1, existence, and
Rule 45] relevancy of specific
Proof of service of a copy thereof on the lower surrounding
court concerned and on the adverse party shall be circumstances and
submitted together with the petition [Sec.3, Rule relation to each other
45] and the whole
 probabilities of the
Pay the corresponding docket and other lawful fees situation
to the COC of the SC and deposit the amount of [1 Regalado 609, 2010 Ed. citing Bernardo v. CA, G.R.
₱500.00 for costs at the time of the filing of the No. 101680 (1992), Pilar Develpment Corp. v. IAC, G.R.
petition [Sec. 3, Rule 45] No. 72283 (1986); Vda. de Arroyo v. El Beaterio del
 Santissimo Rosario de Molo, G.R. No. L-22005 (1968)]
SC may dismiss or deny the petition [Sec. 5, Rule
45], or give due course to it [Sec. 8, Rule 45] Conclusiveness of findings of fact
General rule: The SC is not a trier of facts, and is not

to review or calibrate the evidence on record.
If the petition is given due course, the SC may
Moreover, findings of facts of trial court, as affirmed
require the elevation of the complete record of the
on appeal by the CA, are conclusive on the court
case or specified parts thereof within 15 days from
[Boston Bank of the Philippines v. Manalo, G.R. No.
notice [Sec. 8, Rule 45].
158149 (2006)]
Propriety as a mode of appeal
Exceptions:
A party desiring to appeal by certiorari from a judgment
CA’s findings of fact may be reviewed by the SC on
or final order or resolution of the CA, the
appeal by certiorari when:
Sandiganbayan, the RTC or other courts whenever
1. Conclusion is a finding grounded entirely on
authorized by law, may file with the SC a verified
speculations, surmises or conjectures [Joaquin v.
petition for review on certiorari [Sec. 1, Rule 45].
Navarro, G.R. No. L-5426 (1953)]
2. Inference made is manifestly mistaken, absurd or
Only questions of law are allowed.
impossible [Luna v. Linatok, G.R. No. 48403
The petition shall raise only questions of law [Sec. 1,
(1942)]
Rule 45]
3. There is grave abuse of discretion in the
appreciation of facts [Buyco v. People, G.R. No. L-
Whether an appeal involves only questions of law or
6327 (1954)]
both questions of law and fact is best left to the
4. Judgment is based on a misapprehension of facts
determination of an appellate court and not by the
[De la Cruz v. Sosing, G.R. No. L-4875 (1953)]
court which rendered the decision appealed from
5. The CA’s findings of fact are conflicting [Casica
[PNB v. Romillo, etc., et al., G.R. No. L-70681 (1985)]
v. Villaseca, G.R. No. L-9590 (1957)]
6. The CA, in making its findings, went beyond the
Questions of law Questions of fact issues of the case and the same is contrary to the
Doubt as to the truth admissions of both appellant and appellee
or falsehood of facts, [Nakpil & Sons v. CA, G.R. No. L-47851 (1986)]
Doubt as to what the
or as to probative 7. The CA manifestly overlooked certain relevant
law is on certain facts
value of the evidence facts not disputed by the parties and which, if
presented properly considered, would justify a different
If the appellate court conclusion [Abellana v. Dosdos, G.R. No. L-19498
The determination
can determine the issue (1965)]
involves evaluation or
without reviewing or 8. The CA’s findings of fact are contrary to those of
review of evidence
evaluating the evidence the trial court, or are mere conclusions without
Query involves the citation of specific evidence, or where the facts
Can involve questions
calibration of the set forth by the petitioner are not disputed by the
of interpretation of law
whole evidence respondent, or where the findings of fact of the

Page 124 of 481

U.P. LAW BOC CIVIL PROCEDURE
CA are premised on absence of evidence but are
contradicted by the evidence of record [Manlapaz
v. CA, G.R. No. L-56589 (1987)]
Period of appeal
Within 15 days from notice of the
1. judgment or final order or resolution appealed
from, or
2. denial of the petitioner’s MNT or MR filed in due
time after notice of the judgment
[Sec. 2, Rule 45]
Note: The Neypes doctrine is also applicable to Rule 45
petitions [Neypes v. CA, G.R. No. 141524 (2005)
Extension of period
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 [Sec. 2, Rule 45]
Form and contents of petition
1. In 7 legible copies, with the original copy
intended for the court being indicated as such by
the petitioner
a. Under Sec. 5(a) of the Efficient Use of Paper
Rule [A.M. 11-9-4-SC], file one original
(properly marked) and four copies, unless
the case is referred to the SC en banc, in which
event, the parties shall file ten additional
copies and simultaneously soft copies of the
same and their annexes (the latter in PDF
format) either by email to the SC’s e-mail
address or by compact disc (CD)
2. Full names of the parties to the case, without
impleading the lower courts or judges thereof
either as petitioners or respondents;
3. Specific material dates showing that it was filed
on time;
4. A concise statement of the
a. Maters involved
b. Issues raised
c. Specification of errors of fact or law, or both,
allegedly committed by the rtc, and
d. Reasons or arguments relied upon for the
allowance of the appeal
5. Clearly legible duplicate originals or true copies
of the judgments or final orders of both lower
courts, certified correct by the COC of the RTC,
6. Requisite number of plain copies thereof and of
the pleadings and other material portions of the
Page 125 of 481
REMEDIAL LAW
record as would support the allegations of the
petition
7. Certificate of non-forum shopping
[Sec. 2, Rule 45]
Grounds for denial of petition
1. Failure of petitioner to comply with
a. Payment of docket or other lawful fees
b. Deposit for costs
c. Proof of Service; and
d. Contents of and documents which would
accompany the petition
2. Appeal is without merit
3. Is prosecuted manifestly for delay
4. That the questions raised are so unsubstantial as
to require consideration [Sec. 5, Rule 45]
Notes:
1. Although the lower court is not a party to the
case, failure to present proof of service of copies
to the lower court and on the adverse party shall
result to the outright dismissal of the appeal. This
is because the service is for the purpose of giving
the lower court notice that its judgment should
not be entered since it is not yet executory due to
the pending petition [1 Regalado 615-616, 2010
Ed.]
2. SC may dismiss the petition on its own initiative
or motu proprio [Sec. 5, Rule 45]
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 therefor. The
following, while neither controlling nor fully
measuring the court’s discretion, indicate the
character of the 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
[Sec. 6, Rule 45]
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
[Sec. 8, Rule 45]
U.P. LAW BOC CIVIL PROCEDURE
m. Review of Final Judgments or
Final Orders of the Commission
on Audit
Mode of review
A judgment or final order or resolution of the
Commission on Elections (COMELEC) and the
Commission on Audit (COA) may be brought by the
aggrieved party to the SC on certiorari under Rule 65,
except as hereinafter provided [Sec. 2, Rule 64]
Time to file petition
1. The petition shall be filed within 30 days from
notice of the judgment or final order or
resolution sought to be reviewed.
2. The filing of a MNT or MR of said judgment or
final order or resolution, if allowed under the
procedural rules of the Commission concerned,
shall interrupt the period herein fixed.
3. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but
which shall not be less than 5 days in any event,
reckoned from notice of denial.
[Sec. 3, Rule 45]
Effect of filing
The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution
sought to be reviewed, unless the SC shall direct
otherwise upon such terms as it may deem just [Sec.
8, Rule 64]
When the decision, order or resolution adversely
affects the interest of any government agency, the
appeal may be taken by the proper head of that agency
[Sec. 1, Rule XII, 2009 Revised Rules of Procedure of
the Commission on Audit]
n. Review of Final Judgments or
Final Orders of the Commission
on Elections
Mode of Review & Effect of Filing
Same as COA
Unless otherwise provided by law, or by any specific
provisions in the COMELEC Rules of Procedure, any
decision, order or ruling of the Commission may be
brought to the SC on certiorari by the aggrieved party
within 30 days from its promulgation [Sec. 1, Rule 37,
COMELEC Rules of Procedure]
Page 126 of 481
REMEDIAL LAW
Decisions in appeals from courts of general or limited
jurisdiction in election cases relating to the elections,
returns, and qualifications of municipal and barangay
officials are not appealable [Sec. 2, Rule 37,
COMELEC Rules of Procedure]
Decisions in pre-proclamation cases and petitions to
deny due course to or cancel certificates of candidacy,
to declare a candidate as nuisance candidate or to
disqualify a candidate, and to postpone or suspend
elections shall become final and executory after the
lapse of 5 days from their promulgation, unless
restrained by the SC [Sec. 3, Rule 37, COMELEC
Rules of Procedure]
o. Review of Final Judgments or
Final Orders of the Civil Service
Commission
See Rule 43 on Review of QJAs below.
p. Review of Final Judgments or
Final Orders of the Ombudsman
The following decisions are unappealable
1. In administrative cases where respondent is
absolved of the charge
2. In case of conviction, where penalty imposed is
public censure or reprimand, or suspension of
not more than one month or a fine equivalent to
one month salary
[Sec. 7, Rule III, Admin Order No. 7]
Jurisdiction of the CA
1. Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases
should be taken to the CA under the provisions
of Rule 43 [Fabian v. Desierto, G.R. No. 129742
(1998)]
2. The CA has jurisdiction over orders, directives
and decisions of the Office of the Ombudsman
in administrative disciplinary cases only. It
cannot, therefore, review the orders, directives or
decisions of the Office of the Ombudsman in
criminal or non-administrative cases [Duyon v. The
Former Special Fourth Division of the Court Of Appeals,
G.R. No. 172218 (2014)]
Jurisdiction of the SC
Decisions of the Ombudsman in criminal cases are
unappealable. However, where the findings of the
U.P. LAW BOC CIVIL PROCEDURE
Ombudsman on the existence of probable cause (in
criminal cases) are tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction,
the aggrieved party may file before the SC a petition
for certiorari under Rule 65 [Duyon v. The Former Special
Fourth Division of the Court Of Appeals, G.R. No. 172218
(2014)]
q. Review of Final Judgments or
Final Orders of Quasi-Judicial
Agencies
Scope: Appeals from awards, judgments, final orders
or resolution of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions [Sec. 1, Rule 43]
A quasi-judicial agency or body is an organ of
government other than a court and other than a
legislature, which affects the rights of private parties
though either adjudication or rule-making [United
Coconut Planters Bank v. E. Ganzon, Inc., G.R. No.
168859 (2009)]
Quasi-judicial agencies covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents, Trademarks and Technology
Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA 6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration Commission,
and
19. Voluntary arbitrators authorized by law
Note: The CTA is no longer a quasi-judicial agency
under R.A. 9282, as of April 7, 2004. A party adversely
affected by a decision or ruling of the CTA en banc
may file with the SC a verified petition for review on
certiorari under Rule 45 [Sec. 11, R.A. 9282 and A.M.
No. 07-7-12-SC]
Page 127 of 481
REMEDIAL LAW
Where to appeal
Appeal may taken to the CA on questions of fact, of
law, or mixed questions of fact and law [Sec. 3, Rule
43]
Period to appeal
Within 15 days from
1. Notice of award, judgment, final order, or
resolution, or
2. Date of its last publication, if publication is
required by law for its effectivity; or
3. Denial of petitioner’s MNT or MR duly filed in
accordance with the governing law of the court
or agency a quo
[Sec. 4, Rule 43]
Extension of period
Upon proper motion and the payment of the full
amount of the docket fee 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 shall be granted
except for the most compelling reason and in no case
to exceed 15 days [Sec. 4, Rule 43]
How taken
1. File a verified petition for review in 7 legible
copies with the CA
a. The original copy of the petition intended
for the CA shall be indicated as such by the
petitioner.
b. Under Sec. 5(b) of the Efficient Use of Paper
Rule [A.M. 11-9-4-SC], file one original
(properly marked) and 2 copies with their
annexes with the CA
2. Proof of service of a copy thereof on the adverse
party and on the court or agency a quo.
3. Upon the filing of the petition, pay to the COC
of the CA the docketing and other lawful fees and
deposit PHP 500.00 for costs.
a. Exemption from payment of docketing and
other lawful fees and the deposit for costs
may be granted by the CA upon a verified
motion setting forth valid grounds therefor.
b. If the CA denies the motion, the petitioner
shall pay the docketing and other lawful fees
and deposit for costs within 15 days from
notice of the denial.
[Sec. 5, Rule 43]
Contents of petition
1. Full names of parties to the case, without
impleading the court or agencies
U.P. LAW BOC CIVIL PROCEDURE
2. Concise statement of facts and issues involved
and grounds relied upon for review
3. Clearly legible duplicate original or a certified true
copy of award, judgment, final order, or
resolution appealed from
4. Certified true copies of such material portions of
record referred to in the petition and other
supporting papers
5. Certificate of non-forum shopping
6. Statement of specific material dates showing
timeliness of appeal
[Sec. 6, Rule 43]
Effect of failure to comply
Failure to comply with the following is sufficient
ground for the CA to dismiss the appeal
1. Payment of docket and lawful fees
2. Deposit for costs
3. Proof of service of petition
4. Contents of petition
5. Documents which should accompany the
petition
[Sec. 7, Rule 43]
Action on the petition
The CA may
1. Require the respondent to file a Comment within
10 days from notice, or
2. Dismiss the petition if CA finds the same to be
a. Patently without merit
b. Prosecuted manifestly for delay, or
c. Questions raised are too unsubstantial to
require consideration
[Sec. 8, Rule 43]
Contents of comment
1. Filed within 10 days from notice in 7 legible
copies
a. Under Sec. 5(b) of the Efficient Use of Paper
Rule [A.M. 11-9-4-SC], file one original
(properly marked) and 2 copies with their
annexes with the CA
2. Accompanied by clearly legible certified true
copies of such material portions of the record
referred to therein together with other
supporting papers
3. Point out insufficiencies or inaccuracies in
petitioner’s statement of facts and issues; and
4. State the reasons why the petition should be
denied or dismissed.
5. A copy thereof shall be served on the petitioner,
and proof of such service shall be filed with the
CA.
[Sec. 9, Rule 43]
Page 128 of 481
REMEDIAL LAW
Due course
1. If upon
a. the filing of the comment or such other
pleadings or documents as may be required
or allowed by the CA or
b. the expiration of the period for the filing
thereof, and
2. On the basis of the petition or the records, the
CA finds prima facie that the court or agency
concerned has committed errors of fact or law
that would warrant reversal or modification of
the award, judgment, final order or resolution
sought to be reviewed, it may give due course to
the petition
[Sec. 10, Rule 43]
Otherwise, it shall dismiss the same [Sec. 10, Rule 43]
The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be
binding on the CA [Sec. 10, Rule 43]
Transmittal of records
1. Within 15 days from notice that the petition has
been given due course, the CA may require the
court or agency concerned to transmit the
original or a legible certified true copy of the
entire record of the proceeding under review.
2. The record to be transmitted may be abridged by
agreement of all parties to the proceeding.
3. The CA may require or permit subsequent
correction of or addition to the record.
[Sec. 11, Rule 43]
Effect of appeal
General rule: Appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed
Exception: The CA shall direct otherwise upon such
terms as it may deem just
[Sec. 12, Rule 43]
Submission for decision
1. If petition is given due course, the CA may
a. set the case for oral argument or
b. require parties to submit memoranda within
15 days from notice
2. Upon filing of last pleading or memorandum
required by the ROC or the CA, case is deemed
submitted for decision
[Sec. 13, Rule 43]
U.P. LAW BOC CIVIL PROCEDURE
Appeal from the NLRC
Appeal from quasi-judicial agencies does not apply to
judgments or final orders issued under the Labor
Code. [Sec. 2, Rule 43]
The remedy of a party aggrieved by the decision of
the NLRC is to file a MR and, if denied, file a special
civil action for certiorari under Rule 65 within 60 days
from notice of the decision. In observance of the
doctrine of hierarchy of courts, this should be filed
with the CA [St. Martin Funeral Homes v. NLRC, G.R.
No. 130866 (1998)]
From the CA, the remedy of the aggrieved party is a
petition for review by certiorari to the SC [Dongon v.
Rapid Movers and Forwarders, G.R. No. 163431 (2013)]
r. Dismissal, Reinstatement, and
Withdrawal of Appeals
Grounds for dismissal of appeal
1. Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by the ROC
2. Failure to file the notice of appeal or the record
on appeal within the period prescribed by the
ROC
3. Failure of the appellant to pay the docket and
other lawful fees as provided in Sec. 4, Rule 41
4. Unauthorized alterations, omissions or additions
in the approved record on appeal as provided in
Sec. 4 of Rule 44
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
ROC
6. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
record as required in Sec. 13(a), (c), (d) and (f) of
Rule 44
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 orders, circulars, or directives of the
court without justifiable cause, and
9. The fact that order or judgment appealed from is
not appealable
[Sec. 1, Rule 50]
10. Appeal under Rule 41 taken from the RTC to the
CA raising only questions of law
Page 129 of 481
REMEDIAL LAW
11. Appeal by notice of appeal instead of by petition
for review from the appellate judgment of a RTC
[Sec. 2, Rule 50]
Other grounds
1. By agreement of the parties (i.e. amicable
settlement)
2. Where appealed case has become moot or
academic
3. Where appeal is frivolous or dilatory
[1 Regalado 644-645, 2010 Ed.]
Withdrawal of appeal
1. An appeal may be with-drawn as of right at any
time before the filing of the appellee’s brief.
2. Thereafter, the withdrawal may be allowed in the
discretion of the court.
[Sec. 3, Rule 50]
Dismissal by the SC
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
1. Failure to take the appeal within the reglementary
period
2. Lack of merit in the petition
3. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs
4. Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition
5. Failure to comply with any circular, directive or
order of the SC without justifiable cause
6. Error in the choice or mode of appeal, and
7. The fact that the case is not appealable to the SC
[Sec. 5, Rule 56]
s. Dual function of Appellate
Courts
1. An appellate court serves a dual function. The
first is the review for correctness function,
whereby the case is reviewed on appeal to assure
that substantial justice has been done. The
second is the institutional function, which refers
to the progressive development of the law for
general application in the judicial system.
2. Differently stated, the review for correctness
function is concerned with the justice of the
particular case while the institutional function is
concerned with the articulation and application
of constitutional principles, the authoritative
interpretation of statutes, and the formulation of
U.P. LAW BOC CIVIL PROCEDURE
policy within the proper sphere of the judicial
function.
3. The duality also relates to the dual function of all
adjudication in the common law system. The first
pertains to the doctrine of res judicata, which
decides the case and settles the controversy; the
second is the doctrine of stare decisis, which
pertains to the precedential value of the case
which assists in deciding future similar cases by
the application of the rule or principle derived
from the earlier case.
4. With each level of the appellate structure, the
review for correctness function diminishes and
the institutional function, which concerns itself
with uniformity of judicial administration and the
progressive development of the law, increases [In
Re: Letter complaint of Merlita B. Fabiana against
presiding justice Andres B. Reyes, Jr. et al, A.M. No.
CA-13-51-J (2013)]
Page 130 of 481
REMEDIAL LAW
t. The “Harmless Error Rule” in
Appellate Decisions
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 proceeding
must disregard any error or defect which does not
affect the substantial rights of the parties [Sec. 6, Rule
51]
We have likewise followed the harmless error rule in
our jurisdiction. In dealing with evidence improperly
admitted in trial, we examine its damaging quality and its
impact to the substantive rights of the litigant. If the impact
is slight and insignificant, we disregard the error as it
will not overcome the weight of the properly admitted
evidence against the prejudiced party [People v.
Teehankee, G.R. Nos. 111206-08 (1995)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Comparative table on the modes of appeal

When Proper
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL
Matter of Right; Filed with the court of PETITIONS FOR REVIEW
origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of Filed with the appellate court
origin
Appeal from
Appeals to the SC from a
Appeal from a a decision of
judgment or final order
judgment or final the RTC in
or resolution of the CA,
order of a the exercise Appeals from
Sandiganbayan, RTC or
MTC/MeTC/MCTC of its original awards, judgments,
Appeal from a such other courts as may
jurisdiction final orders or
decision of the be authorized by law
resolution of or
RTC rendered in
authorized by any Decisions, final orders, or
the exercise of its
quasi-judicial agency resolutions of the CA in
appellate
Rule 41 provisions shall apply to Rule in the exercise of its any case, regardless of
jurisdiction
40 if not consistent with Rule 40 quasi-judicial the nature of the action
provisions functions or proceedings involved,
may be appealed to the
SC by filing a petition for
review
Where To File
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with
Filed with the MTC the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to Appeal to the CA Appeal to the CA Appeal to the SC
the CA
Questions of Questions of fact, Questions of fact,
Questions of fact or
fact or mixed questions of law, questions of law, or
mixed questions of Only questions of law
questions of or mixed mixed questions of
fact and law
fact and law questions of both fact and law
Time For Filing
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days
from:
1. Notice of
award, Within 15 days from:
BY NOTICE OF APPEAL Within 15 days
judgment, final 1. Notice of judgment,
Within 15 days after notice of from notice of
order, or final order, or
judgment or final order decision, or
resolution; resolution appealed
Within 15 days
2. Date of from; or
BY RECORD ON APPEAL from notice of
publication, if 2. Notice of denial of
Within 30 days from notice of denial of
publication is MNT or
judgment or final order by filing a petitioner’s MNT
required by law reconsideration filed
notice of appeal and a record on or
for its in due time after
appeal reconsideration
effectivity; or notice of judgment
3. Denial of
petitioner’s
MNT or MR

Page 131 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

u. Relief from Judgments or Final

Motion for new trial and petition for relief
Orders and Resolutions Motion for New
Petition for Relief
Trial
Remedies after finality of judgment [Rule 38]
[Rule 37]
1. Petition for Relief [Rule 38]
Available before Available after
2. Action to Annul Judgment [Rule 47]
judgment becomes judgment has become
3. Certiorari
final and executory final and executory
4. Collateral Attack of a Judgment that is Void on
its Face Applies to judgments,
Applies to judgments
[1 Riano 60, 2011 Ed.] final orders and other
or final orders only
proceedings
Nature Grounds:
A legal remedy whereby a party seeks to set aside a 1. FAME; or
Ground: FAME
judgment rendered against him by a court whenever 2. Newly discovered
he was unjustly deprived of a hearing or was evidence
prevented from taking an appeal because of fraud, Filed:
accident, mistake, or excusable negligence (FAME) 1. within 60 days
[Quelnan v. VHF Phils, G.R. No. 138500 (2005)] from knowledge of
Filed within the time
judgment; and
to appeal
A petition for relief from judgment is an equitable 2. within 6 months
remedy allowed only in exceptional cases when there from entry of
is no other available or adequate remedy. When a judgment
party has another remedy available, either MNT or If denied, order of If denied, order denying
appeal, and he was not prevented by FAME from denial is not a petition for relief is
filing such motion or taking such appeal, he cannot appealable; hence, not appealable; remedy
avail himself of this petition [Trust International Paper remedy is appeal from is appropriates civil
Corp. v. Pelaez, G.R. No. 164871 (2006)] judgment action under Rule 65
Legal remedy Equitable remedy
In addition, petition for review is available only when Motion need not be Petition must be
the loss of the remedy was due to the petitioner’s own verified verified
fault [Tuason v CA, G.R. No. 116607 (1996)] (1 Regalado 426-437, 441-442, 2010 Ed.)

Such party is not entitled to relief under Sec. 2, Rule
38 of the ROC if he was not prevented from filing his
notice of appeal by fraud, accident, mistake or
excusable negligence. Such relief will not be granted
to a party who seeks to be relieved from the effects of
the judgment when the loss of the remedy of law was
due to his own negligence, or a mistaken mode of
procedure for that matter; otherwise, the petition for
relief will be tantamount to reviving the right of
appeal which has already been lost either because of
inexcusable negligence or due to a mistake of
procedure by counsel [Fukuzumi v. Sanritsu Great
International Corporation, G.R. No. 140630 (2004)]
A petition for relief is not regarded with favor and
judgment will not be disturbed where the party
complaining has or by his exercising proper diligence
would have had an adequate remedy at law, as where
petitioner could have proceeded by appeal to vacate
or modify the default judgment [Manila Electric v. CA,
G.R. No. 88396 (1990)]
A party who has filed a timely MNT or MR can no
longer file a petition for relief from judgment after his
motion has been denied. These remedies are mutually
exclusive. It is only in appropriate cases where a party
aggrieved by the judgment has not been able to file a
MNT or MR that a petition for relief can be filed
[Francisco v. Puno, G.R. No. L-55694 (1981)]
When proper
When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in
any court through FAME [Sec. 1, Rule 38]
Thus, it was held that a petition for relief is also
applicable to a proceeding taken after entry of
judgment or final order such as an order of execution
[Cayetano v. Ceguerra, G.R. No. L-18831 (1965)] or an
order dismissing an appeal [Medran v. CA, G.R. No.
L-1350 (1949)]

Page 132 of 481

U.P. LAW BOC CIVIL PROCEDURE
Where filed
When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in
any court through FAME, he may file a petition in
such court and in the same case praying that the
judgment, order or proceeding be set aside [Sec. 1,
Rule 38].
Rule 38 is not an independent action but a
continuation of the old case. Hence, it is filed with the
same court in the same case [1 Regalado 441, 2010 Ed.]
If it is filed in a different court and docketed as a new
case therein, it should be dismissed by the court in
which it was filed for lack of jurisdiction [Servicewide
Specialists, Inc. v. Sheriff of Manila, GR No. 74586,
(19860]
Grounds for availing the remedy
1. When judgment or final order is entered, or any
other proceeding is thereafter taken against
petitioner through FAME
2. When petitioner has been prevented from taking
an appeal by FAME
[Secs. 1-2, Rule 38]
Note: “Extrinsic fraud” is that fraud which the
prevailing party caused to prevent the losing party
from being heard on his action or defense. Such fraud
concerns not the judgment itself but the manner in
which it was obtained [AFP Mutual Benefit Association,
Inc. v. RTC-Marikina City, G.R. No. 183906 (2011)]
Time to file action
1. Within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be
set aside, and
2. Not more than 6 months after such judgment or
final order was entered, or such proceeding was
taken
[Sec. 3, Rule 38]
Regarding (1) above, the period is not reckoned from
the date he actually read the same [Perez v. Araneta,
G.R. No. L-11788 (1958)]
These two periods must concur, are not extendible
and are never interrupted. Strict compliance with
these periods stems from the equitable character and
nature of the petition for relief. Such petition is
actually the “last chance” given by law to litigants to
question a final judgment or order. Failure to avail of
such chance, within the grace period fixed by the
Page 133 of 481
REMEDIAL LAW
Rules, is fatal [Quelnan v. VHF Phils, G.R. No. 138500
(2005)]
Contents of petition
The petition must be:
1. Verified;
2. Accompanied by an affidavit showing the FAME
relied upon; and
3. The facts constituting the petitioner’s good and
substantial cause of action or defense, as the case
may be
[Sec. 3, Rule 38].
The absence of an affidavit of merits is a fatal defect
and warrant denial of the petition [Fernandez v. Tan
Tiong Tick, G.R. No. 15877 (1961)]
However, it is not a fatal defect so long as the facts
required to be set out also appear in the verified
petition [Fabar Inc. v. Rodelas, G.R. No. L-46394
(1977)]
When 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.
(1 Regalado 434-435, 2010 Ed.]
Order to file answer
1. If the petition is sufficient in form and substance
to justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to
answer the same within 15 days from the receipt
thereof.
2. The order shall be served in such manner as the
court may direct, together with copies of the
petition and the accompanying affidavits.
[Sec. 4, Rule 38]
Note: Failure to answer the petition for relief does not
constitute default. Even without it, the court will still
have to hear the petition on the merits [1 Regalado 447.
2010 Ed.]
Proceedings after answer is filed
1. After the filing of the answer or the expiration of
the period therefor, the court shall hear the
petition and
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2. If after such hearing, it finds that the allegations executed or implemented [Islamic Da’wah Council of the
thereof are not true, the petition shall be Philippines. v. CA, G.R. No. 80892 (1989)]
dismissed
3. But if it finds said allegations to be true, it shall When proper
set aside the judgment or final order or other The remedy may not be invoked where the party has
proceeding complained of upon such terms as availed himself of the remedy of new trial, appeal,
may be just. petition for review, or other appropriate remedy and
a. Thereafter the case shall stand as if such lost, or where he has failed to avail himself of those
judgment, final order or other proceeding remedies through his own fault or negligence [Republic
had never been rendered, issued or taken. v. ‘G’ Holdings, Inc., G.R. No. 141241 (2005)]
b. The court shall then proceed to hear and
determine the case as if a timely motion for It is a condition sine qua non that one must have failed
a new trial or reconsideration had been to avail of those remedies, through no fault
granted by it. attributable to him. Otherwise, he would benefit from
[Sec. 6, Rule 38] his own inaction or negligence [Republic v. De Castro,
G.R. No. 189724 (2011)]
Note: Where the denial of an appeal is set aside, the
lower court shall be required to give due course to the Where filed
appeal and to elevate the record of the appealed case Judgment, Final Judgment, Final
as if a timely and proper appeal had been made [Sec. Order or Resolution Order or Resolution
7, Rule 38] of the RTC of the MTC, etc.
Filed with the CA [Sec. Filed with the RTC
Remedy for denial of petition for relief 1, Rule 47] [Sec. 19(6) BP 129]
Appeal from an order denying a petition for relief is CA has exclusive and RTC as a court of
no longer available under the present rules [1 Regalado original jurisdiction general jurisdiction
437, 2010 Ed. citing Sec. 1, Rule 41] over said action under under Sec. 19(6) BP
Sec. 9(2) of BP 129 129
The remedy against a denial of a petition for relief is The CA may dismiss
certiorari under Rule 65, when proper [1 Regalado 437, the case outright; it has The RTC has no such
2010 Ed.] the discretion on discretion, it is required
whether or not to to consider it as an
Note: An order granting a petition for relief is entertain the petition ordinary civil action
interlocutory and non-appealable [1 Regalado 447, [Sec.5, Rule 47]
2010 Ed.]
Who can file
3. Annulment of Judgments or Petitioner need not be a party to the judgment sought
to be annulled [Republic v. CA, G.R. No. 122269
Final Orders and (1999)]
Resolutions
A person who is not a party to the judgment may sue
Nature for its annulment provided that he can prove the same
An action for annulment of judgment is a remedy in was obtained through fraud or collusion, and that he
law independent of the case where the judgment would be adversely affected thereby. [Alaban v. CA,
sought to be annulled was rendered. The purpose is G.R. No. 156021 (2005)]
to have the final and executory judgment set aside so
that there will be a renewal of litigation [Alaban v. CA, a. Grounds for Annulment
G.R. No. 156021 (2005)]
1. The annulment may be based only on the
A person who is not a party to the judgment may sue grounds of extrinsic fraud and lack of
for its annulment provided he can prove that it was jurisdiction.
obtained through fraud or collusion and that he 2. Extrinsic fraud shall not be a valid ground if it
would be adversely affected thereby. An action for was availed of, or could have been availed of, in
annulment of judgment may be availed of even if the a MNT or petition for relief.
judgment to be annulled has already been fully

Page 134 of 481

U.P. LAW BOC CIVIL PROCEDURE
[Sec. 2, Rule 47]
3. Denial of due process - recognized as an
additional ground based on jurisprudence [See
Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220
(2008)]. BUT see Lasala v. National Food Authority
[G.R. No. 171582 (2015)], where the SC ruled
that only two grounds may be recognized in a
petition for annulment: extrinsic fraud and lack
of jurisdiction.
Extrinsic fraud
A fraudulent act committed by the prevailing party
outside of the trial of the case, whereby the defeated
party was prevented from exhibiting fully his side of
the case by deception practiced on him by the
prevailing party [Alba v. CA, G.R. No. 164041 (2005)]
It is such that was revealed to/was even deliberately
suppressed from the opposing party and the court [1
Regalado 629-630, 2010 Ed.]
Lack of jurisdiction
Either lack of jurisdiction over the person of the
defending party, or over the subject matter of the
claim [1 Regalado 630, 2010 Ed.]
Petitioner must show absolute lack of jurisdiction
and not mere abuse of judicial discretion; a claim of
grave abuse of discretion will support a petition for
certiorari but not an action for annulment of judgment
[1 Riano 633, 2011 Ed.]
Only evidence found in the record can justify nullity
[Arcelona v CA, G.R. No. 102900 (1997)]
b. Period to File Action
Lack of
Extrinsic fraud
jurisdiction
Before it is
Period for 4 years from barred by
filing discovery laches or
estoppel
[Sec. 3, Rule 47]
There must be a manifest showing with petition that
it was filed within the 4-yr period [1 Regalado 532, 2010
Ed.]
The rule does not fix the period to annul judgment
based on lack of jurisdiction but recognizes the
principle of estoppel as first laid down by Tijam v.
Sibanghanoy [G.R. No. L-21450 (1968)]
Page 135 of 481
REMEDIAL LAW
Form and contents of petition
1. Verified petition, alleging therein:
a. With particularity the facts and the law relied
upon
b. Petitioner’s good and substantial cause of
action or defense
2. In 7 clearly legible copies, together with sufficient
copies corresponding to the number of
respondents
3. Certified true copy of the judgment or final order
or resolution shall be attached to the original
copy of the petition intended for the court and
indicated as such by the petitioner
4. Affidavits of witnesses or documents supporting
the cause of action or defense; and
5. Certificate of non-forum shopping
[Sec. 3, Rule 47]
Note: Generally, the lack of a certificate of non-forum
shopping is not curable by the submission thereof
after the filing of a petition. In exceptional
circumstances, however, such as the filing of the
certification a day after but within the reglementary
period for filing such petition, the belated filing was
allowed as a substantial compliance. While the filing
of the certification is mandatory, still the requirement
must not be interpreted literally [Shipside, Inc. v. CA,
GR No. 143377 (2001)]
Action of the court
1. Should the court find no substantial merit in the
petition, the same may be dismissed outright with
specific reasons for such dismissal.
2. Should prima facie merit be found in the petition,
the same shall be given due course and summons
shall be served on the respondent.
[Sec. 5, Rule 47]
Procedure
The procedure in ordinary civil cases shall be
observed. Should a trial be necessary, the reception of
the evidence may be referred to a member of the
court or a judge of a RTC [Sec. 6, Rule 47]
Note: Prima facie determination is not available in
annulment of judgments or final orders of MTCs
before the RTC [Sec. 10, Rule 47]
U.P. LAW BOC CIVIL PROCEDURE
c. Effect of Judgment of
Annulment
Based on lack of jurisdiction
A judgment of annulment shall set aside the
questioned judgment or final order or resolution and
render the same null and void, without prejudice to
the original action being refiled in the proper court
[Sec. 7, Rule 47]
Based on extrinsic fraud
The court may on motion order the trial court to try
the case as if a timely motion for new trial had been
granted therein [Sec. 7, Rule 47]
Difference: When it is based on extrinsic fraud, the
original judgment was not tainted by jurisdictional
defects but by the deception which then resulted in
the prejudicial error [1 Regalado 635-636, 2010 Ed.]
Effect on prescriptive period
1. The prescriptive period for the refiling of the
aforesaid original action shall be deemed
suspended from the filing of said original action
until the finality of the judgment of annulment.
2. However, the prescriptive period shall not be
suspended where the extrinsic fraud is
attributable to the plaintiff in the original action.
[Sec. 8, Rule 47]
4. Collateral Attack of
Judgments
Direct attack v. collateral attack
a. When the Court says direct attack, it means that
the object of an action is to annul or set aside
such judgment, or enjoin its enforcement.
b. On the other hand, the attack is indirect or
collateral when, in an action to obtain a different
relief, an attack on the judgment or proceeding is
nevertheless made as an incident thereof.
[Hortizuela v. Tagufa, G.R. No. 205867 (2015)]
The validity of a judgment or order of the court,
which has become final and executory, may be
attacked in three ways:
a. By a direct action or proceeding to annul the
same
1. A direct attack against the order or
judgment, is one that it is not incidental to,
but is the main object of, the proceeding
Page 136 of 481
REMEDIAL LAW
2. To annul and enjoin enforcement of the
judgment, where the alleged defect is not
apparent on its face or from the recitals
contained in the judgment
3. See Rule 47
b. By direct action, as certiorari, or by collateral attack
in case of apparent nullity
1. The collateral attack must be against a
challenged judgment which is void upon its
face as where it is patent that the court which
rendered said judgment has no jurisdiction
or that the nullity of the judgment is apparent
from its own recitals
c. By a Petition for Relief under Rule 38
1. This third manner of attacking must be taken
in the same action or proceeding in which
the judgment or order was entered
[1 Regalado 454-456, 2010 Ed.]
Void judgment
A void judgment is no judgment at all. It cannot be
the source of any right nor the creator 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 [Polystyrene Manufacturing v.
Privatization Management, G.R. No. 171336 (2007)]
A judgment may be void for lack of due process of
law [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220
(2008)]
Attacking 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 v. Heirs of
Cuyos, G.R. No. 161220 (2008)]
Remedies
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration [Rule 37], Appeal [Rules 40-45],
Petition for Relief [Rule 48], and other appropriate
remedies such as certiorari may also be used. [1 Riano
60, 2011 Ed.]
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 [Rule 47] may be resorted to. [Mandy
Commodities Co. Inc.v ICBC, G.R. No. 166734 (2009)]
When all else fails, there is jurisprudence to the effect
that a patently void judgment may be dealt with by a
U.P. LAW BOC CIVIL PROCEDURE
Main Action for Injunction [Barrameda v. Moir, G.R.
No. L-7927 (1913)]
Jurisprudential basis
Spouses Benatiro v. Heirs of Cuyos [G.R. No. 161220
(2008)] and Agustin v. Bacalan [G.R. No. L-46000
(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 through no fault on the part of the petitioner
[Sec. 1, Rule 47].
Although Sec. 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 v. Heirs
of Cuyos, G.R. No. 161220 (2008)]. BUT see Lasala v.
National Food Authority [G.R. No. 171582 (2015)],
where the SC ruled that only two grounds may be
recognized in a petition for annulment: extrinsic fraud
and lack of jurisdiction.
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 [Montinola v.
Judge Gonzales, G.R. No. L-36155 (1989)]
A final judgment may be annulled on the ground of
lack of jurisdiction, fraud, or that it is contrary to law
[Panlilio v. Garcia, G.R. No. L-29038 (1982)]
Page 137 of 481
REMEDIAL LAW
S. Execution, Satisfaction
and Effect of Judgments
Execution is a remedy afforded by law for the
enforcement of a judgment. It is a judicial writ issued
to an officer authorizing and requiting him to execute
the judgment of the court [Pamantasan ng Lungsod ng
Maynila v. IAC, G.R. No. L-65439 (1986), citing 2
Francisco, 592-593, 1966 Ed.].
Note: The prevailing party can secure certified true
copies of the judgment or final order of the appellate
court, the entry thereof, and submit it to the court of
origin justify a motion for a writ of execution even
without waiting for receipt of the records from the
appellate court. [Circular No. 24-94]
The appellate court can also direct the issuance of the
writ of execution upon motion in the same while the
records are still with the appellate court, or even after
remand to the lower court [1 Regalado 452, 2010 Ed.]
1. Difference between Finality
of Judgment for Purposes of
Appeal; for Purposes of
Execution
A judgment is final if it disposes of the action as
distinguished from an interlocutory order which
leaves something to be done with respect to the
merits of the case, and it is executory if the period to
appeal has expired and no appeal is taken [2 Herrera
281, 2007 Ed.; 1 Regalado 450, 2010 Ed.]
Finality for purposes of appeal refers to the
distinction between “final judgments or orders” and
“interlocutory orders,” which cannot be appealed
according to Sec. 1(b), Rule 41 [1 Regalado 450, 2010
Ed.]
The word interlocutory refers to something
intervening between the commencement and the end
of a suit, which decides some point or matter but is
not a final decision of the whole controversy
[Ramiscal, Jr. v. Sandiganbayan, G.R. No. 140756-90
(2004)]
A final judgment or order is one that finally disposes
of a case, leaving nothing more to be done by the
court in respect thereto. Examples include:
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

a. an adjudication on the merits which, on the basis

of the evidence presented at the trial, declares 2. When Execution Shall Issue
categorically what the rights and obligations of
the parties are and which party is in the right; or
General rule: Execution shall issue as a matter of right,
b. a judgment or order that dismisses an action on
on motion, upon a judgment or order that disposes of
the ground, for instance, of res judicata or
the action or proceeding upon the expiration of the
prescription
period to appeal therefrom if no appeal has been duly
[Heirs of Dimaampao v. Alug, G.R. No. 198223 (2015)]
perfected [Sec. 1, Rule 39]
Once rendered, the task of the court is ended, as far
Exceptions:
as deciding the controversy or determining the rights
a. Judgments in actions for injunction, receivership,
and liabilities of the litigants is concerned. Nothing
accounting and support, and such other
more remains to be done by the court except to await
judgments as are now or may hereafter be
the parties' next move (such as filing of a MNT or
declared to be immediately executory, shall be
MR, or the taking of an appeal) and ultimately, to
enforceable after their rendition and shall not be
cause the execution of the judgment once it becomes
stayed by an appeal taken therefrom, unless
'final and executory [Heirs of Dimaampao v. Alug, G.R.
otherwise ordered by the trial court [Sec. 1, Rule
No. 198223 (2015)]
39]
b. If judgment in an action for forcible entry or
Finality for purposes of execution refers to the
unlawful detainer is rendered against the
judgment being “final and executory” upon the lapse
defendant, execution shall issue immediately
of the appeal period if no appeal is taken, upon which
upon motion [Sec. 19, Rule 39]
execution shall issue as a matter of right according to
c. The decision of the Regional Trial Court in civil
Sec. 1, Rule 39 [1 Regalado 449-450, 2010 Ed., see Perez
cases governed by the Rules on Summary
v. Zulueta, G.R. No. L-10374 (1959)]
Procedure shall be immediately executory,
without prejudice to a further appeal that may be
A judgment becomes “final and executory” by
taken therefrom [Sec. 21, Rules on Summary
operation of law. Finality becomes a fact upon the
Procedure]
lapse of the reglementary period to appeal if no appeal
d. The decision of the Labor Arbiter reinstating a
is perfected. [Prieto v. Alpadi Development Corporation,
dismissed or separated employee, insofar as the
G.R. No. 191025 (2013)]
reinstatement aspect is concerned, shall
immediately be executory, even pending appeal
Final AND Executory
Final Judgments [Art. 229, Labor Code]
Judgments
They finally dispose of, Exception to the exception: On appeal therefrom, the
adjudicate, or Judgments become final appellate court in its discretion may make an order
determine the rights of and executory by suspending, modifying, restoring or granting the
the parties, operation of law. injunction, receivership, accounting, or award of
HOWEVER, they are [Cadena v. Civil Service support. The stay of execution shall be upon such
not yet “final and Commission, G.R. No. terms as to bond or otherwise as may be considered
executory” pending 191412 (2012)] proper for the security or protection of the rights of
the expiration of the the adverse party [Sec. 1, Rule 39]
reglementary period After the lapse of the
for appeal. [1 Regalado reglementary period to
450, 2010 Ed.] appeal, the prevailing a. Execution as a Matter of Right
party is entitled to a writ
During that period, the of execution, and A judgment becomes final and executory by operation
winning party cannot issuance thereof is a of law, not by judicial declaration. The prevailing party
demand the execution ministerial duty of the is entitled as a matter of right to a writ of execution,
of the judgment yet as court. [City of Manila v. and the issuance thereof is a ministerial duty and
a right. [City of Manila CA, G.R. No. 100626 compellable by mandamus [2 Herrera 285, 2007 Ed.;
v. CA, G.R. No. (1991)] CIR v. Visayan Electric Company, G.R. No. L-24921
100626 (1991)] (1967)]

Page 138 of 481

U.P. LAW BOC CIVIL PROCEDURE
Execution as a matter of right is available in two
instances
1. Upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected
2. Appeal has been duly perfected and finally
resolved
[Sec. 1, Rule 39]
How done
1. If no appeal is perfected upon the expiration of
the period to appeal therefrom, on motion
2. If the appeal has been duly perfected and finally
resolved, the execution may
a. forthwith be applied for in the court of
origin,
b. on motion of the judgment obligee,
c. submitting therewith certified true copies of
the judgment or judgments or final order or
orders sought to be enforced and of the
entry thereof, with notice to the adverse
party
[Sec. 1, Rule 39]
Note: Execution may only issue upon motion with
notice of hearing. However, the judgment debtor
need not be given advance notice or prior hearing of
such motion for execution [Pamintuan, et al v. Muhoz,
G.R. No. L-26331 (1968)] An ex parte motion for the
issuance of the writ would suffice since the trial court
may take judicial notice of the record of the case to
determine the propriety of the issuance thereof.
However, where the losing party shows that
subsequent facts had taken place which would render
execution unjust, a hearing on the motion should be
held [Luzon Surety Co. v. Beson, G.R. No. L-26865-66
(1976)]
General rule: Issuance of the writ of execution is a
matter of right on the part of the prevailing party
when the judgment or order becomes executory. The
court cannot refuse execution. [1 Regalado 453, 2010
Ed.]
Exceptions:
The issuance of a writ of execution which issues as a
matter of right can be countered in any of the
following cases:
1. When the judgment has already been executed by
the voluntary compliance thereof by the parties;
2. When a judgment has been novated by the
parties;
Page 139 of 481
REMEDIAL LAW
3. When a petition for review is filed and
preliminary injunction is granted; Also, when
execution of the judgment has been enjoined by
a higher court;
4. When the judgment sought to be executed is
conditional or incomplete;
5. When facts and circumstances transpire which
would render execution inequitable or unjust;
6. When execution is sought more than five (5)
years from its entry without it having been
revived;
7. When execution is sought against property
exempt from execution;
8. When refusal to execute the judgment has
become imperative in the higher interest of
justice
[1 Riano 647-648, 2014 Bantam Ed.]
Supervening event doctrine
A supervening event can be invoked for the
modification or alteration of a final judgment. This
refers to:
1. Facts which transpire after judgment has become
final and executory;
2. New circumstances which developed after the
judgment has acquired finality;
3. Matters which the parties were not aware of prior
to or during the trial as they were not yet in
existence at that time.
The supervening facts or circumstances must either
bear a direct effect upon the matters already litigated
and settled or create a substantial change in the rights
or relations of the parties therein which render
execution of the final judgment unjust, impossible, or
inequitable [Abrigo, et al. v. Flores, et al., G.R. No.
160786 (2013)]
Quashal of a writ of execution-proper when:
1. Improvidently issued
2. Defective in substance
3. Issued against wrong party
4. Issued without authority
5. Inequitable due to change in situation of parties
6. Controversy was never validly submitted to court
[Sandico v. Piguing, G.R. No. L-26115 (1971)]
7. The writ varies the terms of the judgment, there
is ambiguity in the terms of the judgment or
when it is sought to be enforced against property
exempt from execution [Limpin v. IAC, G.R. No
70987 (1987)]
8. There is substantial variance between the
judgment and the writ of execution issued to
enforce the same [Malacora v. CA, G.R. No.
51042 (1982)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[1 Regalado 453, 2010 Ed.] appeal is improper and premature [JP Latex Technology,
Inc. v. Ballons Granger Balloons, Inc., et al., G.R. No.
Note: These defects may be challenged on appeal or in 177121 (2009)]
certiorari, prohibition or mandamus actions [Limpin v.
IAC, G.R. No 70987 (1987)] Mere issuance of a bond to answer for damages is no
longer considered a good reason for execution
b. Discretionary Execution pending appeal [Planters Products v. CA, G.R. No.
106052 (1999)]
Execution upon
Discretionary “Good reasons”
judgments or final
execution [Sec. 2, Compelling circumstances justifying the immediate
orders [Sec. 1, Rule
Rule 39] execution lest judgment becomes illusory, or the
39]
1. On motion of the prevailing party may after the lapse of time become
prevailing party unable to enjoy it [Far East Bank v. Toh, G.R. No.
with notice to the 144018 (2003)]
adverse party filed
1. Upon the Examples of good reasons:
in the trial court
expiration of the 1. Where the goods subject of the judgment stand
while it has
period to appeal to perish or deteriorate during the pendency of
jurisdiction over the
therefrom if no the appeal [Yasuda v. CA, G.R. No. 112569
case and is in
appeal has been (2000)]
possession of either
duly perfected 2. The award of actual damages is for an amount
the original record
2. If the appeal has fixed and certain, but not an award for moral and
or the record on
been duly exemplary damages [Radio Communications Inc. v.
appeal, as the case
perfected and Lantin, G.R. No. L-59311 (1985)]
may be, at the time
finally resolved 3. Insolvency of a defeated party [Hacienda Navarro
of the filing of such
motion v. Labrador, G.R. No. L-45912 (1938)]
2. Several, separate or 4. The prevailing party is of advanced age and in a
partial judgment precarious state of health and the obligation in
the judgment is non-transmissible, being for
May only issue upon
Matter of right support [De Leon v. Soriano, G.R. No. L-7648
good reasons
(1954)]
5. Where defendants were exhausting their income
Execution of a judgment or final order pending
and have no other property aside from proceeds
appeal
of the property subject in litigation [Lao v.
1. On motion of the prevailing party with notice to
Mencias, G.R. No. L-23554 (1967)]
the adverse party filed in the trial court while it
has jurisdiction over the case and is in possession
Note: The remedy against an order granting execution
of either the original record or the record on
pending appeal where the order is not founded upon
appeal, as the case may be, at the time of the filing
good reasons is Certiorari. The fact that the losing
of such motion, said court may, in its discretion,
party had also appealed from the judgment does not
order execution of a judgment or final order even
bar the certiorari proceedings as the appeal could not
before the expiration of the period to appeal.
be an adequate remedy from such premature
2. After the trial court has lost jurisdiction, the
execution [1 Regalado 465, 2010 Ed.]
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution is not applicable in the
3. Discretionary execution may only issue upon
case of the CA
good reasons to be stated in a special order after
A judgment of the CA cannot be executed pending
due hearing.
appeal [Heirs of Justice JBL Reyes v. CA, G.R. No.
135180-81 (2000)]
The period to appeal where a MR has been filed
commences only upon the receipt of a copy of the
Requisites for discretionary execution:
order disposing of the MR. The pendency of the MR
1. On motion of the prevailing party with notice to
prevents the running of the period to appeal. When
the adverse party
there is a pending MR, an order of execution pending

Page 140 of 481

U.P. LAW BOC CIVIL PROCEDURE
2. Filed in the
a. 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, or
b. Appellate court after the trial court has lost
jurisdiction
3. Good reasons to be stated in a special order after
due hearing
[Sec. 2, Rule 39]
After the trial court has lost jurisdiction, the motion
may be filed in the appellate court [Bangkok Bank
Public Company, Ltd. v. Lee, G.R. No.159806 (2006)]
Stay of discretionary execution
Discretionary execution issued under the preceding
section may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the
performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole
or in part. The bond thus given may be proceeded
against on motion with notice to the surety [Sec. 3,
Rule 39]
A supersedeas is an auxiliary process designed to
supersede enforcement of a trial court's judgment
brought up for review. Its application is limited to the
judgment from which an appeal is taken. It is used
synonymously with a "stay of proceedings," and
designates the effect of an act or proceeding which in
itself suspended the enforcement of a judgment [1
Regalado 459, 2010 Ed.]
General rule: The filing of a supersedeas bond is sufficient
to stay the enforcement of a discretionary execution
[Sec. 3, Rule 39].
Exception: However, the filing of the supersedeas bond
does not entitle the judgment debtor to the
suspension of execution as a matter of right. Where
the needs of the prevailing party are urgent, the Court
can order immediate execution despite such supersedeas
bond [1 Regalado 466, 2010 Ed.]
If judgment is reversed totally or partially, or
annulled, on appeal or otherwise
The trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
justice may warrant under the circumstances [Sec.5,
Rule 39]
Page 141 of 481
REMEDIAL LAW
Restitution: the property itself must be returned to
the judgment debtor, if the same is still in the
possession of the judgment creditor, plus
compensation to the former for the deprivation and
use of the property [1 Regalado 467, 2010 Ed.]
Reparation of damages:
1. If the purchaser at the public auction was the
judgment creditor, pay the full value of the
property at the time of its seizure plus interest
2. If the purchaser at public auction was a third
person, judgment creditor must pay the judgment
debtor the amount realized from the sale with
interest thereon; and
3. If the judgment award was reduced on appeal, the
judgment creditor must return to the judgment
debtor only the excess which he received over
and above that to which he is entitled under the
final judgment, with interest on such excess
[Po Pauco v.. Tan Juco, G.R. No. L-63188 (1990)]
Remedy against discretionary execution
The remedy is certiorari by Rule 65. The fact that the
losing party has also appealed from the judgment does
not bar certiorari proceedings as the appeal could not
be an adequate remedy from such premature
execution [Jaca v. Davao Lumber Co., G.R. No. L-25771
(1982)]
3. How a Judgment is
Executed
a. Execution by Motion or
Independent Action
Modes of enforcement of execution
Mode When enforced
Within 5 years from the
By motion
date of entry of judgment
After the lapse of 5 years
By independent from date of entry and
action before it is barred by the
statute of limitations
[Sec. 6, Rule 39]
The Statute of Limitations is 10 years from date of
entry [Art. 1144(3), CC].
Note: The revived judgment may also be enforced by
motion within 5 years from date of its entry and
thereafter by action before it is barred by statute of
limitations [Sec. 6, Rule 39].
U.P. LAW BOC CIVIL PROCEDURE
Hence, there are 4 chances for the enforcement of
execution: (1) by motion, (2) by independent action,
(3) by motion for revived judgment within 5 years
from date of entry and thereafter, (4) by action before
it is barred by statute of limitations. After these, it
becomes dormant [Prof. Avena]
Once the judgment is revived, the 10-year prescriptive
period commences to run from the date of finality of
the revived judgment and not the original judgment
[PNB v. Bondoc, G.R. No. L-20236 (1965)]
b. Issuance and Contents of a Writ
of Execution
Contents of the writ of execution
1. In the name of the Republic of the Philippines
from the court which granted the motion
2. The name of the court, the case number and title,
the dispositive part of the subject judgment or
order
3. Requires the sheriff or other proper officer to
whom it is directed to enforce the writ according
to its terms
4. In all cases, the writ of execution shall
specifically state the amount of the interest, costs,
damages, rents, or profits due as of the date of
the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose,
the motion for execution shall specify the
amounts of the foregoing reliefs sought by the
movant.
[Sec. 8, Rule 39]
Dispositive portion as subject of execution
General rule: The dispositive portion of the decision is
that part that becomes the subject of execution [1
Regalado 412, 2010 Ed.]
Exceptions:
1. Where there is ambiguity, the body of the opinion
may be referred to for purposes of construing the
judgment because the dispositive part of a
decision must find support from decision’s ratio
decidendi [1 Regalado 479, 2010 Ed.]
2. Where extensive and explicit discussion and
settlement of the issue is found in the body of the
decision [1 Regalado 479, 2010 Ed.]
3. Where one can clearly and unquestionably
conclude from the body that there was a mistake
in the dispositive portion, the body of the
Page 142 of 481
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decision will prevail [Metropolitan Cebu Water
District v. Mactan Rock Industries, Inc., G.R. No.
172438 (2012)]
To whom issued
General rule: Only real parties in interest in an action
are bound by judgment rendered therein and by the
writs of execution
Exceptions:
There are certain cases where the writ may be issued
against non-parties
1. One who is privy to judgment debtor can be
reached by an order of execution and writ of
demolition [Vda. De Medina v. Cruz, G.R. No. L-
39272 (1988)]
2. Issued against one who not being originally a
party to the case submits his interest to the court
for consideration in the same case and invites
adjudication regarding said interest [Jose v. Blue,
G.R. No. L-28646 (1971)]
3. Where non-parties voluntarily signed the
compromise agreement or voluntarily appeared
before court [Rodriguez v. Alikpala, G.R. No. L-
38314 (1974)]
4. Where the remedy of a person not a party to the
case which he did not avail of, was to intervene
in the case in question involving rights over the
same parcel of land and said person in another
case was adjudged buyer in bad faith thereof
[Lising v. Plan, G.R. No. 50107 (1984)]
5. In an ejectment case, where 3rd party derived his
right of possession from defendant particularly
when such right was acquired only after filing of
ejectment suit [Cordova v. Tornilla, A.M. No. MTJ-
94-997 (1995)]
Remedies against a writ of execution
General rule: The execution of final and executory
judgments may no longer be contested and prevented,
and no appeal should lie therefrom. [1 Riano 648, 2014
Bantam Ed.]
Exceptions:
Instances where errors may be committed prejudicial
to the rights of a party, calling for correction by a
higher court. Examples of these instances are:
1. When the writ varies the judgment;
2. When there has been a change in the situation of
the parties rendering execution inequitable;
3. When execution is sought to be enforced against
property exempt from execution;
4. When it appears that the controversy has never
been submitted to the judgment of the court;
U.P. LAW BOC CIVIL PROCEDURE
5. When the terms of the judgment are not clear
enough and there remains room for
interpretation;
6. When it appears that the judgment has already
been satisfied;
7. When it appears the writ has been improvidently
issued;
8. When it appears that the writ is defective in
substance;
9. When the writ is issued against the wrong party;
10. When the writ was issued without authority.
[1 Riano 649, 2014 Bantam Ed.]
An order granting the issuance of the writ is not
appealable, except where:
1. The order varies the terms of the judgment, or
[J.M. Tuazon & Co. v. Estabillo, G.R. No. L-20610
(1975)],
2. Where, being vague, the court renders what is
believed to be a wrong interpretation [1 Regalado
481, 2010 Ed.]
RETURN OF WRIT OF EXECUTION
Effectivity
Such writ shall continue in effect during the period
within which the judgment may be enforced by
motion [Sec. 14, Rule 39]
Judgment satisfied within 30 days
The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full [Sec. 14, Rule 39]
Judgment not satisfied within 30 days
1. The officer shall report to the court and state the
reason therefor.
2. The officer shall make a report to the court every
30 days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity
expires.
3. 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
[Sec. 14, Rule 39]
Entry of satisfaction of judgment
1. Satisfaction of a judgment shall be entered by the
COC in the court docket, and in the execution
book, upon the
a. Return of a writ of execution showing the
full satisfaction of the judgment, or
Page 143 of 481
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b. 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
c. Endorsement of such admission by the
judgment obligee or his counsel on the face
of the record of the judgment
[Sec. 44, Rule 39]
2. 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, and
3. 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.
[Sec. 45, Rule 39]
c. Execution of Judgments for
Money
If the award is for payment of money, execution is
enforced by
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits [Sec. 9, Rule
39]
[Prof. Avena]
Note: Levy can only be made under Sec. 9 of Rule 39
(not Secs. 10 or 11)
IMMEDIATE PAYMENT ON DEMAND
Procedure
1. The officer shall enforce an execution of a
judgment for money by demanding from the
judgment obligor the immediate payment of the
full amount stated in the writ of execution and all
lawful fees.
2. 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, 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.
3. The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn
U.P. LAW BOC CIVIL PROCEDURE
over the said amount within the same day to the
COC of the court that issued the writ.
[Sec. 9(a), Rule 39]
Procedure if the judgment oblige or his
authorized representative is not present to
receive payment
1. The judgment obligor shall deliver the aforesaid
payment to the executing sheriff.
2. The latter shall turn over all the amounts coming
into his possession within the same day to the
COC 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. RTC of the locality.
3. 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 COC shall
then deliver said payment to the judgment
obligee in satisfaction of the judgment.
4. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be
retained by the COC for disposition as provided
by law.
5. In no case shall the executing sheriff demand that
any payment by check be made payable to him.
[Sec. 9(a), Rule 39]
SATISFACTION BY LEVY
Levy is the act whereby a sheriff sets apart or
appropriates for the purpose of satisfying the
command of the writ, a part or the whole of the
judgment debtor’s property. [Fiestan v. CA, G.R. No.
81552 (1990)]
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, G.R.
No. 21572 (1966)]
If susceptible of appropriation, the officer removes
and takes the property for safekeeping; otherwise the
same is placed under sheriff’s guards. Without valid
levy having been made, any sale of the property
thereafter is void. [1 Regalado 487, 2010 Ed.]
Condition before resort to satisfaction by levy
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 [Sec.
9(b), Rule 39]
Page 144 of 481
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Procedure
1. 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
2. The officer shall give the judgment obligor the
option to immediately choose which property or
part thereof may be levied upon, sufficient to
satisfy the judgment.
3. 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.
4. The sheriff shall sell only a sufficient portion of
the personal or real property of the judgment
obligor which has been levied upon.
5. 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.
Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or
personal property, may be levied upon in like manner
and with like effect as under a writ of attachment.
[Sec. 9(b), Rule 39]
Note: If the judgment is for a sum of money
1. The judgment obligor dies before the levy has
been made on the property: judgment cannot be
enforced by writ of execution. Instead, it should
be filed as a claim against the estate.
2. If the judgment obligor dies after the entry of
judgment but before levy on his property,
execution will issue if it is for the recovery of
real/personal property
[1 Regalado 475, 2010 Ed.]
Note: Prof. Avena argued that the determination of
whether or not execution may issue before the levy is
not whether the action is a personal (sum of money)
or a real action (real or personal property), but is more
of whether the action is that of an in rem/quasi-in-
rem action, or an in personam action. If it is in
rem/quasi-in-rem, when the judgment obligor dies
after entry of judgment, the execution may issue
before levy. If it is an in personam action, execution
cannot be enforced.
A special “break-open” order is an order from the
court authorizing the sheriff to destroy, demolish or
U.P. LAW BOC CIVIL PROCEDURE
remove improvements on property subject of
execution [See Sec. 10(d), Rule 39].
A writ of execution directing the sheriff to cause the
defendant to vacate is in the nature of a habere facias
possessionem and authorizes the sheriff, without need of
securing a “break-open” order, to break open the
premises where there is no occupant therein. (Arcadio
v. Ylagan, A.M. No. 2734 (1986)]
Note: The rationalization behind this is that the writ of
exeution itself is essentially an order to place the
prevailing party in possession of the property. If the
defendant refuses to surrender possession of the
property to the prevailing party, the sheriff or other
proper officer should oust him. No express order to
this effect needs to be stated in the decision. [Guario
v. Ragsac, A.M. No. P-08-2571 (2009)]
A special order of demolition, on the other hand, is
an order from the court authorizing the sheriff to
destroy, demolish or remove improvements on
property subject of execution. It is issued upon
hearing and reasonable notice. Without one, the
sheriff cannot destroy, demolish, or remove any
improvements on the property. [Guario v. Ragsac,
A.M. No. P-08-2571 (2009); see Sec. 10(d), Rule 39].
GARNISHMENT OF DEBTS AND CREDITS
Garnishment is considered as a species of attachment
for reaching credits belonging to the judgment debtor
and owing to him from a stranger to the litigation
[Bautista v. Barredo, G.R. No. L-20653 (1965)]
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 does
not constitute the creditor as owner of the garnished
property. [De la Rama v. Villarosa, G.R. No. L-19727
(1963)]
The ROC themselves do not require that the
garnishee be served with summons or impleaded in
the case in order to make him liable. All that is
necessary for the trial court lawfully to bind the
person of the garnishee or any person who has in his
possession credits belonging to the judgment debtor
is service upon him of the writ of garnishment [Perla
v. Ramolete, G.R. No. L-60887 (1991)]
Garnishment is not a violation of R.A. 1405 on the
secrecy of bank deposits, as it does not involve an
Page 145 of 481
REMEDIAL LAW
inquiry or examination of such deposit [China Banking
Corp. v. Ortega, G.R. No. L-34964 (1973)]
Notes: Upon service of the writ of garnishment, the
garnishee becomes a “virtual party” or “forced
intervenor” to the case and the trial court thereby
acquires jurisdiction to bind the garnishee to comply
with its orders and processes [BPI v. Lee, G.R. No.
190144 (2012)]
UP’s funds, being government funds, are not subject
to garnishment. Moreover, the execution of the
monetary judgment against the UP was within the
primary jurisdiction of the COA [UP v. Dizon, G.R.
No. 171182 (2012)]
What may be garnished
The officer may levy on
1. Debts due the judgment obligor and
2. Other credits, including
a. Bank deposits
b. Financial interests,
c. Royalties
d. Commissions and
e. Other personal property not capable of
manual delivery in the possession or control
of third parties [Sec. 9(c), Rule 39]
Procedure
1. 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.
2. The garnishee shall make a written report to the
court within 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.
3. 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 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.
4. 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
U.P. LAW BOC CIVIL PROCEDURE
amount due; otherwise, the choice shall be made
by the judgment obligee.
5. The executing sheriff shall observe the same
procedure under Sec. 9(a), Rule 39 with respect
to delivery of payment to the judgment obligee.
[Sec. 9(c), Rule 39]
d. Execution of Judgments for
Specific Acts
Note: This is different from a special judgment under
Section 12 which requires the performance of any act,
other than the payment of money or the sale or
delivery or real or personal property, which a party
must personally do because his personal qualifications
and circumstances have been taken in to
consideration. [1 Regalado 486, 2010 Ed.]
Under Section 10, a party is directed to execute
conveyance of land or to deliver deeds or other
documents, or to perform any other specific acts in
connection therewith but which acts can be
performed by persons other than said party [1 Regalado
486, 2010 Ed.]
For conveyance of real of land or personal property
Conditions
1. If a judgment directs a party to
a. Execute a conveyance of land or personal
property, or
b. Deliver deeds or other documents, or
c. Perform any other specific act in connection
therewith, and
2. The party fails to comply within the time
specified
[Sec. 10(a), Rule 39]
Procedure
1. 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.
2. 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.
[Sec. 10(a), Rule 39]
Page 146 of 481
REMEDIAL LAW
It is only when reconveyance is no longer feasible (e.g.
passed on to a buyer for value in good faith,
dissipated, etc.) that the judgment obligor should pay
the judgment obligee the fair market value of the
property [Raymundo v. Galen Realty and Mining Corp.,
G.R. No. 191594 (2013)]
For sale of real or personal property
If the judgment be for the sale of real or personal
property, [an order for execution shall be issued] to
sell such property, describing it, and apply the
proceeds in conformity with the judgment [Sec. 10(b),
Rule 39]
For delivery or restitution of real property
1. 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 3 working days, and restore
possession thereof to the judgment oblige.
2. 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.
3. Any costs, damages, rents or profits awarded by
the judgment shall be satisfied in the same
manner as a judgment for money.
[Sec. 10(c), Rule 39]
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
1. Upon special order of the court, issued upon
motion of the judgment obligee after due hearing
and
2. After the former has failed to remove the same
within a reasonable time fixed by the court
[Sec. 10(d), Rule 39]
Delivery of personal property
In judgments 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
[Sec. 10(e), Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
e. Execution of Special Judgments
When proper
A judgment requires performance of any other act
than those mentioned in Secs. 9 and 10 (payment of
money or sale or delivery of property) [Sec. 11, Rule
39]
Procedure
A certified copy of the judgment shall be
1. Attached to the writ of execution and
2. Served by the officer upon
a. The party against whom the same is
rendered, or
b. Any other person required thereby, or by
law, to obey the same, and
3. Such party or person may be punished for
contempt if he disobeys such judgment
[Sec. 11, Rule 39]
Examples
A judgment in mandamus to reinstate petitioner as
chief clinic of the hospital [Vital-Gozon v. CA, G.R.
No. 101428 (1992)]
A judgment directing defendant to remove a fence
from a certain place is a special judgment [Marquez v.
Marquez, G.R. No. 47792 (1941)]
f. Effect of Levy on Third Persons
The levy on execution shall create a lien in favor of
the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time
of the levy, subject to liens and encumbrances then
existing [Sec. 12, Rule 39]
Note: The power of the court in executing judgments
extends only over properties unquestionably
belonging to the judgment debtor [Corpuz v. Pascua,
A.M. No. P-11-2972 (2011)]
A duly registered levy on attachment or execution is
preferred over a prior unregistered sale. Under the
Torrens system, the auction sale of property retroacts
to the date the levy was registered; now, under Secs.
51 and 2 of P.D. 1529, the act of registration is the
operative act to convey or affect the land insofar as
third persons are concerned [Du v. Stronghold Insurance
Co. Inc., G.R. No. 156580 (2004)]
Page 147 of 481
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4. Properties Exempt from
Execution
General rule: Except as otherwise expressly provided
by law, the following property, and no other, shall be
exempt from execution
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
house-keeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding PHP 100,000
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 PHP 300,000
in value
h. One fishing boat and accessories not exceeding
the total value of PHP 100,000 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
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
[Sec. 13, Rule 39]
Examples of item (m) above
1. property mortgaged to the DBP [Sec. 26, CA
458]
2. savings of national prisoners deposited with the
postal savings bank [Act. 2489]
U.P. LAW BOC CIVIL PROCEDURE
3. benefits from private retirement systems of
companies and establishments with limitations
[R.A. 4917]
4. laborer’s wages except for debts incurred for
food, shelter, clothing and medical attendance
[Art. 1708, CC]
5. benefit payments from SSS [Sec. 16, R.A. 1161,
as amended]
Exception: No article or species of property mentioned
in Sec. 13, Rule 39 (enumerated above) shall be
exempt from execution issued upon a
a. judgment recovered for its price or
b. judgment of foreclosure of a mortgage thereon
[Sec. 13, Rule 39]
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, G.R. No. L-5329 (1909)]
5. Proceedings Where Property
Claimed by Third Persons
Sec. 16, Rule 39 and other provisions providing a
mode for recovering property alleged to have been
wrongfully taken by sheriff pursuant to a writ of
execution or other process, refer to a stranger to an
action [Tillson v. CA, G.R. No. 89870 (1991)]
Remedies of third-party claimant
a. Summary hearing before the court which
authorized the execution
b. “Terceria” or third-party claim filed with the
sheriff [Sec. 16, Rule 39]
c. Action for damages on the bond posted by the
judgment creditor
d. Independent Reivindicatory action
The aforementioned are cumulative remedies and
may be resorted to by a third-party claimant
independently of or separately from and without need
of availing of the others [Sy v. Discaya, G.R. No. 86301
(1990)]
For a third-party claim to be sufficient
a. Must be filed by a person other than the
defendant or his agent, at any time before sale
b. Must be under oath or supported by affidavit
stating the claimant’s title to, or right of
possession of, the property, and grounds therefor
c. Must be served upon the officer making levy and
a copy thereof upon the judgment creditor
Page 148 of 481
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[Sec 16, Rule 39]
On spouses
A spouse who was not a party to the suit but whose
conjugal property is being executed because the other
spouse is the judgment obligor is not considered a
stranger to the suit and cannot file a separate action
to question the execution since they could have easily
questioned the execution in the main case itself [1
Regalado 501, 2010 Ed.]
The institution of a separate action was allowed when
the property was the exclusive or paraphernal
property of a spouse who was not a party to the case
the judgment wherein was sought to be executed. In
such a situation, the aggrieved spouse was deemed to
be a stranger to that main action [Ching v. CA, G.R.
No. 118830 (2003)]
When to file
Any time, as long as the sheriff has the possession of
the property levied upon, or before the property shall
have been sold under execution.
Note: This applies only with terceria. For independent
reinvidicatory actions, the third-party may make the
claim before the action prescribes [Prof. Avena]
Effect of third-party claim
The officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the
officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less
than the value of the property levied on [Sec. 16, Rule
39]
SUMMARY HEARING BEFORE COURT
AUTHORIZING EXECUTION
A third-person whose property was seized by a sheriff
to answer for an obligation of a judgment debtor may
invoke the supervisory power of the court which
authorized such execution [Sy v. Discaya, G.R. No.
86301 (1990)]
Procedure
a. Claimant files application
b. Court conducts summary hearing
c. The court may command that the property be
released from the mistaken levy and restored to
rightful owner or possessor
d. If claimant’s proofs do not persuade, the claim
will be denied by the court
U.P. LAW BOC CIVIL PROCEDURE
The court determination is limited only to a
determination of whether the sheriff has acted rightly
or wrongly in performance of his duties. The court
does not and cannot pass upon the question of title.
[Sy v. Discaya, G.R. No. 86301 (1990)]
TERCERIA
Independent of the foregoing, a third-party claimant
may also avail of the remedy of terceria provided in
now Sec. 16, Rule 39 [Sy v. Discaya, G.R. No. 86301
(1990)]
Procedure and bond
a. Claimant serves on the officer making levy an
affidavit of his title and a copy thereof to
judgment creditor
b. Officer shall not be bound to keep property
unless such judgment obligee, on demand of the
officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property levied on. In
case of disagreement as to such value, the same
shall be determined by the court issuing the writ
of execution.
c. No claim for damages for the taking or keeping
of the property may be enforced against the bond
unless the action therefor is filed within 120 days
from the date of the filing of the bond.
d. The officer shall not be liable for damages for the
taking or keeping of the property, to any third-
party claimant if such bond is filed.
e. When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall
not be required, and in case the sheriff or levying
officer is sued for damages as a result of the levy,
he shall be represented by the Solicitor General
and if held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may be
appropriated for the purpose.
[Sec. 16, Rule 39]
The right of a third-party claimant to file a terceria is
founded on his title or right of possession. Corollary
thereto, before the court can exercise its supervisory
power to direct the release of the property mistakenly
levied and the restoration thereof to its rightful
owner, the claimant must first unmistakably establish
his ownership or right of possession thereon [Villasi
v. Garcia, G.R. No. 190106 (2014)]
Page 149 of 481
REMEDIAL LAW
REIVINDICATORY ACTION
Nothing contained in Sec. 16, Rule 39 shall prevent
such claimant or any third person from vindicating his
claim to the property in a separate action, or prevent
the judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim [Sec. 16, Rule 39].
The aforesaid remedies are nevertheless without
prejudice to any proper action that third-party
claimant may file to vindicate his claim over the
property. This action is separate and independent [Sy
v. Discaya, G.R. No. 86301 (1990)]
Procedure
a. He must institute an action, distinct and separate
from that which the judgment is being enforced,
with the court of competent jurisdiction
b. No need to file a claim in the court which issued
a writ. The latter is not a condition sine qua non for
the former.
c. In such proper action, validity and sufficiency of
title of claimant will be resolved.
d. A writ of preliminary injunction against sheriff
may be issued
[Sy v. Discaya, G.R. No. 86301 (1990)]
a. In Relation to Third Party Claim
in Attachment and Replevin
If the claim is filed under Sec. 16, Rule 39, it must be
filed in a separate action instituted for the purpose.
Intervention is no longer allowed since judgment has
already been rendered. [1 Regalado 500-501, 2010 Ed.]
If it is filed under Sec. 14, Rule 57 (Attachment) or
under Sec. 7, Rule 60 (Replevin), the claim may be
litigated in the same action involved or in a separate
suit. Intervention is allowed. [1 Regalado 501, 2010
Ed.]
The reason for the difference is that the judgment in
the case subject of Sec. 16, Rule 39 is already final and
executory, while Rules 57 and 60 involve actions still
pending in the trial court [1 Regalado 501, 2010 Ed.]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b. He cannot redeem since his interests in his lien

6. Rules on Redemption are fully protected. Any purchaser at a public
auction takes the same subject to such prior lien
which he has to satisfy
When available
[1 Regalado 512, 2010 Ed.]
Only for real property, since nothing in the ROC
provides for redemption of personal property [Sec.
When redemption can be made
27, Rule 39]
Who When
The purchaser and judgment debtor may agree that Within 1 year from the
By the JUDGMENT
the period of redemption be shortened from the date of registration of
OBLIGOR
registration of the certificate of sale. In which case, the certificate of sale
the the statutory period for legal redemption was Within 1 year from the
By FIRST
converted into one of conventional redemption and date of registration of
REDEMPTIONER
the period binding on them is that agreed upon [Lazo the certificate of sale
v. Republic Surety & Insurance Co. (1970)] BY ALL
Within 60 days from
SUBSEQUENT
last redemption
Who may redeem REDEMPTIONERS
a. Judgment obligor, or his successor in interest in [Sec. 28, Rule 39]
the whole or any part of the property
b. A creditor having a lien by virtue of an Judgment obligor shall have the entire period of one
attachment, judgment or mortgage on the year from date of registration of sale to redeem the
property sold, or on some part thereof, property [Sec. 33, Rule 39]
subsequent to the lien under which the property
was sold. Such redeeming creditor is termed a If the judgment obligor redeems, no further
redemptioner. redemption shall, be allowed and he is restored to his
[Sec. 27, Rule 39] estate [Sec. 29, Rule 39]

Note: If the lien of the creditor is prior to the judgment
under which the property was sold, he is not a
redemptioner and therefore cannot redeem property
[1 Regalado 512, 2010 Ed.]
Proof required of redemptioner
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve
with his notice to the officer
a. 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,
b. if he redeems upon a mortgage or other lien,
1. 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
2. an affidavit executed by him or his agent,
showing the amount then actually due on the
lien
[Sec. 30, Rule 39]
If the lien of the creditor is prior to the judgment
under which the property was sold:
a. He is not a redemptioner;
Note: There is no extension or interruption of
redemption period [See Sec. 28, Rule 39]
Redemption price
a. By the Judgment Debtor or First Redemptioner:
1. Purchase PRICE
2. 1% INTEREST thereon up to time of
redemption
3. Any amount of ASSESSMENTS OR
TAXES which purchaser may have paid
after purchase and interest on such last
named amount at the same rate
4. If purchaser is also a creditor having a
PRIOR LIEN to that of redemptioner, other
than the judgment under which such
purchase was made, the AMOUNT of such
OTHER LIEN, also with interest
b. By all Subsequent Redemptioners
1. AMOUNT paid on last redemption
2. 2% INTEREST thereon
3. Any amount of ASSESSMENTS OR
TAXES which purchaser may have paid
after purchase as well as interest on such last
named amount at the same rate
4. Amount of any LIENS held by said last
redemptioner prior to his own, also with
interest

Page 150 of 481

U.P. LAW BOC CIVIL PROCEDURE
[Sec. 28, Rule 39]
If redemption is made by the judgment obligor
a. No further redemption is allowed
b. He is restored to his estate
[Sec. 29, Rule 39]
When a judgment debtor redeems the property, what
is effected is the elimination of the lien created by the
levy on attachment or judgment on the registration of
mortgage thereon. From that moment, there shall be
no further redemption. Note that he never lost
ownership so there is no recovery of ownership [1
Regalado 513, 2010 Ed.]
Payment of redemption price may be made to
the:
a. Purchaser or redemptioner, or
b. For him to the officer who made the sale
[Sec. 29, Rule 39]
Duties upon redemption
a. 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.
b. 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.
[Sec. 29, Rule 39]
RIGHTS PENDING REDEMPTION
Right of judgment obligee pending redemption
Apply for injunction to restrain the commission of
waste on the property [Sec. 31, Rule 39]
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
a. continue to use it in the same manner in which it
was previously used
b. use it in the ordinary course of husbandry, or
c. make the necessary repairs to buildings thereon
while he occupies the property
[Sec. 31, Rule 39]
Page 151 of 481
REMEDIAL LAW
Expiration of period to redeem
a. If no redemption be made within 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,
b. If so redeemed whenever 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
Under 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.
[Sec. 33, Rule 39]
Two documents which the sheriff executes in
case of real property
a. Certificate of sale
1. Upon a sale of real property, the officer must
give to the purchaser a certificate of sale
containing:
• A particular description of the real
property sold;
• The price paid for each distinct lot or
parcel;
• The whole price paid by him;
• A statement that the right of redemption
expires one year from the date of the
registration of the certificate of sale
2. Such certificate must be registered in the
registry of deeds of the place where the
property is situated [Sec. 25, Rule 39]
3. From registration of said certificate, the one
year redemption period starts [Sec. 28, Rule
39]
4. Certificate of sale after execution sale is
merely a memorial of the fact of sale and
does not operate as conveyance [1 Regalado
508, 2010 Ed.]
b. Deed of Conveyance
1. If no redemption be made within one year
from the date of the registration of the
certificate of sale; or, if so redeemed
whenever 60 days have elapsed and no other
redemption has been made, and notice
thereof given, and the time for redemption
has expired
U.P. LAW BOC CIVIL PROCEDURE
2. 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.
3. Under 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.
[Sec. 33, Rule 39]
Note: Hence, the certificate of sale of real property
does not confer any right to the possession, much less
the ownership, of the real property purchased. It is
the deed of sale executed by the sheriff at the
expiration of the period of redemption which entitles
the purchaser to possession of the property sold [1
Regalado 508, 2010 Ed.]
Recovery of purchase price if sale not effective
a. If the purchaser of real property sold on
execution, or his successor in interest,
1. fails to recover the possession thereof, or
2. is evicted therefrom, in consequence of
irregularities in the proceedings concerning
the sale, or
b. because the judgment has been reserved or set
aside, or
c. because the property sold was exempt from
execution, or
d. because a third person has vindicated his claim,
to the property, he may on motion
1. in the same action or in a separate action
recover from the judgment obligee the price
paid, with interest, or so much thereof as has
not been delivered to the judgment obligor;
or
2. have the original judgment revived in his
name for the whole price with interest, or so
much thereof as has been delivered to the
judgment obligor.
The judgment so revived shall have the same force
and effect as an original judgment would have as of
the date of the revival and no more.
[Sec. 34, Rule 39]
Note: A purchaser’s right of possession is recognized
only as against the judgment debtor and his successor-
in-interest. It is not so against persons whose right of
possession is adverse. When a third party is in
possession of the property purchased, the
possession is presumed to be based on just title , “a
Page 152 of 481
REMEDIAL LAW
presumption which may be overcome by the
purchaser in a judicial proceeding for recovery of
the property [Villanueva v. Cherdan Lending Investors
Corp., G.R. No. 177881 (2010)]
7. Examination of Judgment
Obligor When Judgment is
Unsatisfied
When applicable: When the return of a writ of
execution issued against property of a judgment
obligor, or any one of several obligors in the same
judgment, shows that the judgment remains
unsatisfied, in whole or in part,
a. Procedure: The judgment obligee, at any time
after such return is made, shall be entitled to an
order from the court which rendered the said
judgment, requiring such judgment obligor to
appear and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a specified time
and place; and proceedings may thereupon be
had for the application of the property and
income of the judgment obligor towards the
satisfactions of the judgment.
b. Limitations: No judgment obligor shall be
required to appear before a court or
commissioner outside the province or city in
which such obligor resides or is found
[Sec. 36, Rule 39]
A judgment obligor may no longer be examined after
the lapse of the five years within which a judgment
may be enforced by motion [Umali v. Coquia, G.R. No.
L-46303 (1988)]
Order for payment in fixed monthly installments
a. If, upon investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are
more than necessary for the support of his family,
the court may order that he pay the judgment in
fixed monthly installments, and
b. Upon his failure to pay any such installment
when due without good excuse, may punish him
for indirect contempt.
[Sec. 40, Rule 39]
U.P. LAW BOC CIVIL PROCEDURE
8. Examination of Obligor of
Judgment Obligor
When applicable
a. When the return of a writ of execution against the
property of a judgment obligor shows that the
judgment remains unsatisfied, in whole or in part,
and
b. Upon proof to the satisfaction of the court which
issued the writ, that a person, corporation, or
other juridical entity has property of such
judgment obligor or is indebted to him
[Sec. 37, Rule 39]
Procedure; effect
a. The court may, by an order, require such person,
corporation, or other juridical entity, or any
officer or member thereof, to appear before the
court or a commissioner appointed by it, at a time
and place within the province or city where such
debtor resides or is found, and be examined
concerning the same.
b. The service of the order shall bind all credits due
the judgment obligor and all money and property
of the judgment obligor in the possession or in
the control of such person, corporation, or
juridical entity from the time of service, and
c. The court may also require notice of such
proceedings to be given to any party to the action
in such manner as it may deem proper. [Sec. 37,
Rule 39]
Note: This is not applicable if there is no issue
concerning the indebtedness of the bank and there is
no denial by the depositor of the existence of the
deposit with the bank which is considered a credit in
favor of the depositor against the bank [PCIB v. CA,
G.R. No. 84526 (1991)]
When alleged obligor denies debt or claims property
The court may
a. authorize, by an order made to that effect, the
judgment obligee to institute an action against
such person or corporation for the recovery of
such interest or debt,
b. forbid a transfer or other disposition of such
interest or debt within 120 days from notice of
the order, and
c. may punish disobedience of such order as for
contempt. [Sec. 43, Rule 39]
Page 153 of 481
REMEDIAL LAW
Where the writ of execution is unsatisfied, the remedy
to enforce it is Secs. 38-39, and not a complaint for
damages [Phil. Transmarine Carriers v. CA, G.R. No.
122346 (2000)]
OTHER REMEDIES
Order for application of property or income
The court may order any property of the judgment
obligor, or money due him, not exempt from
execution, in the hands of either himself or another
person, or of a corporation or other juridical entity, to
be applied to the satisfaction of the judgment, subject
to any prior rights over such property [Sec. 40, Rule
39]
After a writ of execution against property has been
issued, a person indebted to the judgment obligor may
pay to the sheriff holding the writ of execution the
amount of his debt or so much thereof as may be
necessary to satisfy the judgment, in the manner
prescribed in Sec. 9, Rule 39 and the sheriffs receipt
shall be a sufficient discharge for the amount so paid
or directed to be credited by the judgment obligee on
the execution [Sec. 39, Rule 39]
Appointment of receiver
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 [Sec. 41, Rule 39]
If it appears that the judgment obligor has an interest
in real estate in the place in which proceedings are
had, as mortgagor or mortgagee or otherwise, and his
interest therein can be ascertained without
controversy, the receiver may be ordered to sell and
convey such real estate or the interest of the obligor
therein; and such sale shall be conducted in all
respects in the same manner as is provided for the sale
of real estate upon execution, and the proceedings
thereon shall be approved by the court before the
execution of the deed [Sec. 42, Rule 39]
9. Effect of Judgment or Final
Orders
Immutability of judgments
A judgment that has acquired finality becomes
immutable and unalterable, and may no longer be
modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

law, and whether it be made by the court that

rendered it or by the Highest Court of the land [PNB In a land registration proceeding filed by the plaintiff
v. Spouses Maranon, G.R. No. 189316 (2013)] after he had been declared the owner of the land
involved in a civil case, the opposition thereto filed by
Rationale the defendant who lost in said civil case is barred in
a. to avoid delay in the administration of justice, and the land registration proceeding under the doctrine of
procedurally to make orderly the discharge of res judicata. All the elements are present and it is of no
judicial business moment that the court in the civil case was in the
b. to put an end to judicial controversies at the risk exercise of general jurisdiction and in the land
of occasional errors registration case, in the exercise of special or limited
[PCI Leasing and Finance, Inc. v. Milan, G.R. No. jurisdiction [Valiso v. Plan, G.R. No. 55152 (1986)]
151215 (2010)]
BAR BY FORMER JUDGMENT
Dual aspect of res judicata The judgment or decree of a court of competent
a. Bar by former judgment jurisdiction on the merits concludes the parties and
1. The judgment or final order is a bar to the their privies to the litigation and constitutes a bar to a
prosecution of a subsequent action based on new action or suit involving the same cause of action
the same claim or cause of action either before the same or any other tribunal [Machoca
2. Described by Sec. 47, pars. (a) and (b), Rule v. Cariaga, G.R. No. 75109-10 (1989)]
39
3. Also known as “Estoppel by Verdict” Requisites
b. Conclusiveness of judgment a. A FINAL judgment or order
1. The judgment or final order precludes the b. JURISDICTION over the subject matter and the
relitigation of particular issues or facts on a parties by the court rendering it
different demand or cause of action c. Judgment UPON MERITS
2. Described by Sec. 47, par. (c), Rule 39 d. Between the TWO CASES, there is:
3. Also known as the Rule of Auter Action 1. IDENTITY OF PARTIES
Pendant 2. IDENTITY OF SUBJECT MATTER
[1 Riano 541, 2011 Ed.; 1 Regalado 529, 2010 Ed.] 3. IDENTITY OF CAUSE OF ACTION
[1 Riano 430, 2011 Ed.]
Bar by former Conclusiveness of
judgment judgment General rule: For res judicata to apply, trial must be made
There is only identity of on the merits of the case [1 Regalado 530, 2010 Ed.]
parties and subject
Requires identity of Exception: Sec. 3, Rule 17 of ROC: If plaintiff fails to
matter
parties, subject matter, appear at the time of the trial, or to prosecute his
and causes of action action for an unreasonable length of time, or to
Cause of action are
different comply with these rules or any order of the court, the
Absolute Bar to: action may be dismissed upon motion of the
Conclusive as to defendant or upon the court's own motion. This
(a) all matters directly
matters directly dismissal shall have the effect of an adjudication upon
adjudged; and
adjudged and actually the merits, unless otherwise provided by court
(b) those that might
litigated [Development Bank v. CA, G.R. No. 110203 (2001)]
have been adjudged
Claim Preclusion Issue Preclusion
[1 Riano 683-684, 2011 Ed.] Res judicata in judgments in rem
Judgments or final
Conclusive as to
The dismissal by the SC of a petition for review on order
certiorari through a minute resolution is an adjudication Against a specific thing Title of the thing
on the merits and constitutes a bar to relitigation The will or
under res judicata [Sy v. Tuvera, G.R. No. 76639 (1987)] Probate of a will or administration.
administration of the However, the probate
The rule of res judicata applies to final decisions of estate of a deceased of a will or granting of
quasi-judicial agencies and to judgments rendered in person letters of
probate proceedings [1 Regalado 534, 2010 Ed.] administration shall

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Judgments or final b. Law of the case - Whatever is once irrevocably

Conclusive as to
order established as the controlling legal rule or
only be prima facie decision between the same parties in the case
evidence of the death continues to be the law of the case whether
of the testator or correct on general principles or not, so long as
intestate; the facts on which such decision was predicated
in respect to the continue to be the facts of the case before the
personal, political, or court [1 Riano 544, 2011 Ed.]
Condition, status or
legal condition or status
relationship of the Law of the
of a particular person or Res judicata Stare decisis
person, case
his relationship to
another Operates
[1 Riano 542, 2011 Ed.] only in the
particular
Res judicata in judgments in personam and single Once a point
In other cases, the judgment or final order is, with case where of law has been
The parties and
respect to the matter directly adjudged or as to any the ruling established by
the causes of
other matter that could have been missed in relation arises and is the court, that
action in both
thereto, conclusive between not carried point of law
actions are
a. The parties and into other will, generally,
identical or
b. Their successors in interest, by title subsequent to cases as a be followed by
substantially
the commencement of the action or special precedent the same court
the same [1
proceeding, litigating for the same thing and and by all
Regalado 530,
under the same title and in the same capacity The ruling courts of lower
2010 Ed., citing
[Sec. 47(b), Rule 39] adhered to in rank in
Yusingco v.Ong
the particular subsequent
Hing Lian, G.R.
CONCLUSIVENESS OF JUDGMENT case need not cases where
No. L-26523
Any right, fact or matter in issue directly adjudicated be followed the same legal
(1971); Vergara
or necessarily involved in the determination of an as a issue is raised
v. Roque, G.R.
action before a competent court in which a judgment precedent in [CDCP Mining
No. L-32984
or decree is rendered on the merits is conclusively subsequent Corp. v. CIR,
(1977)]
settled by the judgment therein and cannot again be litigation G.R. No.
litigated between the parties and their privies whether between 122213 (2005)]
or not the claim or demand, purpose or subject matter other parties
of the two suits is the same [Machoca v. Cariaga, G.R. [1 Riano 544,
No. 75109-10 (1989)] 2011 Ed]

Requisites 10. Enforcement and Effect of

a. A FINAL judgment or order
b. JURISDICTION over the subject matter and the Foreign Judgment or Final
parties by the court rendering it Orders
c. Judgment UPON MERITS
d. Between the TWO CASES, there is:
A valid judgment rendered by a foreign tribunal may
1. IDENTITY OF PARTIES
be recognized insofar as the immediate parties the
2. IDENTITY OF ISSUES
underlying cause of action are concerned so long as it
[1 Regalado 529-531, 2010 Ed.]
is convincingly shown that:
a. There has been an opportunity for a fair hearing
Res judicata, law of the case, and stare decisis
before a court of competent jurisdiction
a. Stare decisis - When the SC has laid down a
b. Trial upon registered proceedings has been
principle of law applicable to a certain state of
conducted
facts, it will adhere to that principle and apply to
c. There is nothing to indicate either a prejudice in
it all future cases where the facts are substantially
court and in the system of laws under which it is
the same [1 Riano 533, 2011 Ed.]
sitting or fraud in procuring the judgment

Page 155 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Philippine Aluminum v. Fasgi Enterprises, G.R. No.
137378 (2000)]
Such limitation on the review of foreign judgment is
adopted in all legal systems to avoid repetitive
litigation on claims and issues, prevent harassment of
the parties and avoid undue imposition on the courts.
[1 Regalado 536, 2010 Ed.]
This policy of preclusion rests on principles of
comity, utility and convenience of nations [1 Regalado
536, 2010 Ed., see also Raytheon International, Inc. v.
Rouzie, Jr., G.R. No. 162894 (2008)]
contrary showing, on the basis of a presumption of
regularity of proceedings and the giving of due notice
in the foreign forum [Asiavest Merchant Bankers v CA,
G.R. No 110263 (2001)]
Before our courts can give the effect of res judicata to
a foreign judgment, it must be shown that the parties
opposed to the judgment had been given ample
opportunity to do so on grounds under Section 48 of
Rule 39 of the Rules of Court [Roehr v. Rodriguez, G.R.
No. 142480 (2003)]

As a generally accepted principle of international law,

it is part of the law of the Philippines by virtue of the
Incorporation Clause [Sec. 2, Art. II, 1987
Constitution, 1 Regalado 536, 2010 Ed. citing Raytheon
v Rouzie, G.R. No. 162894 (2008)]

The civil action for enforcement of a foreign

judgment is one incapable of pecuniary estimation.
Although the foreign judgment may result in recovery
of money or property, the cause of action and subject
matter of the civil action is the foreign judgment itself
(and not, as in an ordinary action for monetary relief,
the violation of a right through an act or omission).
The matter left for proof is the foreign judgment
itself, not the facts from which it prescinds [1 Regalado
536, 2010 Ed.]

Effect of foreign judgments [Sec. 48, Rule 39]

Nature Effect
Judgment is
In judgments against a
CONCLUSIVE upon
specific thing (in rem)
the title to the thing
Judgment is
PRESUMPTIVE
evidence of a right as
In judgments against a
between parties and
person (in personam)
their successors-in-
interest by a subsequent
title

In both cases, judgment may be repelled by evidence

of
a. Want of jurisdiction
b. Want of notice
c. Collusion
d. Fraud, or
e. Clear mistake of law or fact [Sec. 48, Rule 39]

A foreign judgment is presumed to be valid and

binding in the country from which it comes, until a

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

IV. PROVISIONAL b.
c.
Preliminary injunction [Rule 58]
Receivership [Rule 59]
REMEDIES d.
e.
Replevin [Rule 60]
Support pendente lite [Rule 61]

A. General Matters Notes:

a. The enumeration above is not exclusive. The
court may invoke its equity jurisdiction and order
1. Nature of Provisional the appropriate reliefs during the pendency of an
action [Reyes v. Lim, G.R. No. 134241 (2003)]
Remedies b. Support pendente lite is not part of the 2018 Bar
syllabus.
Nature of provisional remedies
Provisional remedies are writs and processes available
during the pendency of the action which may be 2. Jurisdiction over Provisional
resorted to by a litigant for the preservation or
protection of their rights and interests therein
Remedies
pending rendition, and for purposes of the ultimate
The court which grants or issues a provisional remedy
effects, of a final judgment in the case; also known as
is the court which has jurisdiction over the main
ancillary or auxiliary remedies.[1 Regalado 684, 2010
action [1 Regalado 685, 2010 Ed.]
Ed.]
Inferior courts may also grant all appropriate
They are temporary, auxiliary, and ancillary remedies
provisional remedies in an action pending with it and
available to a litigant for the protection and
is within its jurisdiction [Sec. 33 (1), BP 129]
preservation of his rights while the main action is
pending. They are writs and processes which are not
Enforcement of writs
main actions and are dependent for their application
General rule: The enforcement of said writs outside the
on the existence of a principal action [1 Regalado 684,
territorial jurisdiction of the inferior court is allowable
2010 Ed.]
[1 Regalado 685, 2010 Ed.]
They are applied to a pending litigation, for the
What is required is merely that the sheriff or deputy
purpose of securing the judgment or preserving the
sheriff must seek the assistance of the sheriff of the
status quo, and in some cases after judgment, for the
place where the writ is to be executed [Administrative
purpose of preserving or disposing of the subject
Circular No. 12]
matter [Calo v. Roldan, G.R. No. L-252 (1946)]
Exceptions: In cases of preliminary injunction and
Orders granting or denying provisional remedies are
injunction, the rule is that the injunction can only be
merely interlocutory and cannot be the subject of an
enforced within the territorial jurisdiction of that
appeal. They may however be challenged before a
particular court [Sec. 21, B.P. 129]
superior court through a petition for certiorari under
Rule 65 [Pahila-Garrido v. Tortogo, et. al., G.R. No.
156358 (2002)]

Purpose of provisional remedies

a. To preserve or protect litigants’ rights or interests
during the pendency of the principal action;
b. To secure the judgment;
c. To preserve the status quo of the the things
subject to the action or the relation between the
parties; and
d. To preserve the subject matter of the action.
[1 Regalado 684, 2010 Ed.]

Kinds of provisional remedies

a. Preliminary attachment [Rule 57]

Page 157 of 481

U.P. LAW BOC CIVIL PROCEDURE
B. Preliminary Attachment
The provisional remedy in virtue of which a plaintiff
or other party may, at the commencement of the
action or at any time thereafter, have the property of
the adverse party taken into the custody of the court
as security for the satisfaction of any judgment that
may be recovered [Davao Light v. CA, G.R. No. 93262
(1991)]
Purposes
1. To seize the property of the debtor in advance of
final judgment and to hold it for purposes of
satisfying said judgment, as in the grounds stated
in Sec. 1(a) to (e), Rule 57, or
2. To acquire jurisdiction over the action by actual
or constructive seizure of the property in those
instances where personal or substituted service of
summons on the defendant cannot be effected,
as in Sec. 1(f), Rule 57
[PCIB v. Alejandro, G.R. No. 175587 (2007)]
Kinds of attachment as to availability and effects
1. Preliminary attachment - one issued at the
commencement of the action or at any time
before entry of the judgment as security for the
satisfaction of any judgment that may be
recovered in the cases provided for by the
rules;[Sec 1, Rule 57]
2. Final or levy on execution - writ issued by the
court after judgment by which the property of the
judgment obligor is taken into custody of the
court before the sale of the property on execution
before the satisfaction of a final judgment [Sec. 8,
Rule 39]
[1 Regalado 691, 2010 Ed.]
Kinds of attachment as to form and procedure of
attachment:
1. Regular form of attachment – attachment which
refers to attachment of corporeal property in
possession of the party involved [1 Regalado 691,
2010 Ed.]
2. Garnishment - a kind of attachment in which the
plaintiff seeks to subject either the property of
the defendant in the hands of a third person
called garnishee, to his claim or the money which
said third person owes the defendant; [Virata v.
Aquino, G.R. L-35027 (1973)].
Page 158 of 481
REMEDIAL LAW
1. Grounds for issuance
In an action
a. For the recovery of a specified amount of money
or damages, other than moral and exemplary, on
a cause of action arising from law, contract,
quasi-contract, delict or quasi-delict against a
party who is about to depart from the Philippines
with intent to defraud his creditors
b. 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
c. 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
d. Against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation
upon which the action is brought, or in the
performance thereof
e. Against a party who has removed or disposed of
his property, or is about to do so, with intent to
defraud his creditors
f. Against a party who does not reside and is not
found in the Philippines, or on whom summons
may be served by publication.
[Sec. 1, Rule 57]
Notes:
a. These grounds are exclusive [PCIB v. Alejandro,
G.R. 175587 (2007); Aboitiz v. Cotabato Bus Line
Co. G.R. No. L-35990 (1981)]
b. Item (c) above makes no distinction between real
and personal property [Riano]
c. Item (d) above
1. A debt is fraudulently contracted if at the
time of contracting it the debtor has a
preconceived plan or intention not to pay.
Fraudulent intent cannot be inferred from
the debtor’s inability to pay [PCL Industries
Manufacturing v. CA, G.R. No. 147970 (2006)]
2. The delivery of counterfeit money or
knowingly issuing a bounced are considered
as grounds under this rule [Riano]
d. Item (f) above: The persons on whom summons
may be served by publication
U.P. LAW BOC CIVIL PROCEDURE
1. Residents defendants whose identity or
whose whereabouts are unknown [Sec. 14,
Rule 14]
2. Resident defendants who are temporarily out
of the country [Sec. 16, Rule 14]
2. Requisites for Issuance
a. The case must be any of those where preliminary
attachment is proper [Sec. 1, Rule 57]
b. Applicant must file a motion with notice and
hearing by the court in which the action is
pending, or by the CA or the SC (but an order of
attachment may be issued ex parte [Sec. 2, Rule 57]
c. Applicant, or some other who personally knows
the facts, must file an affidavit showing required
facts (stated below) [Sec. 3, Rule 57]
d. Applicant must post a bond executed to adverse
party in the amount fixed by the court in its order
granting the issuance of the writ [Sec. 3-4, Rule
57]
3. Issuance and Contents of
Order of Attachment;
Affidavit and Bond
When applied for
a. At the commencement of the action; or
b. At any time before the entry of judgment
[Sec. 1, Rule 57]
Who may apply
It may be applied for by the plaintiff or any proper
party [Sec. 1, Rule 57] Any proper party includes a
defendant who filed a counterclaim, cross-claim, or a
third party complaint [Sec. 1, Rule 3]
Methods to procure preliminary attachment
a. Writ may be prayed for in the complaint itself
providing the allegations warranting its issuance
[1 Regalado 690, 2010 Ed.]
b. May be issued pursuant to a separate motion for
attachment whenever the writ is not prayed for in
the original complaint [Sec. 2, Rule 57]
Note: Where the judgment is already final and
executory, a motion for execution is the remedy, and
not an application for preliminary attachment [1
Regalado 690, 2010 Ed.]
Page 159 of 481
REMEDIAL LAW
Three stages in the grant of preliminary
attachment
a. Court issues the order granting the application
1. The order granting the writ is based on the
motion filed by the party applying
2. It can only be signed by the judge himself
b. Writ of attachment issues pursuant to the order
granting the writ
1. It is based on the order and shall contain the
details on the implementation of the order
2. May only be signed and issued either by the
clerk of court or the presiding judge
c. The writ is implemented
[1 Regalado 692, 2010 Ed.]
Note: For the initial two stages, it is not necessary that
jurisdiction over person of defendant be first
obtained. However, once implementation of writ
commences, court must have acquired jurisdiction
over the defendant for without such jurisdiction, the
court has no power or authority to act. Therefore it is
required that when the proper officer commences
implementation of the writ of attachment, service of
summons should be simultaneously made [Cuartero v.
CA, G.R. No. 102448 (1992)]
Issuance of the order
a. The order may be issued either
1. Ex parte, or
2. Upon motion with notice and hearing
b. The order is issued by the court in which the
action is pending, or the CA, or the SC
[Sec. 2, Rule 57]
Contents of the order
It must
a. 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
b. Fix the amount of deposit or bond, which may
be the
1. Amount sufficient to satisfy the applicant’s
demand or
2. Value of the property to be attached as stated
by the applicant, exclusive of costs
[Sec. 2, Rule 57]
Affidavit and bond
An order of attachment shall be granted only when it
appears by the affidavit of the applicant, or of some
other person who personally knows the facts, that
U.P. LAW BOC CIVIL PROCEDURE
a. a sufficient cause of action exists,
b. the case is one of those mentioned in Sec. 1, Rule
57
c. there is no other sufficient security for the claim
sought to be enforced by the action, and
d. 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.
The affidavit, and the bond required by Sec. 4, must
be duly filed with the court before the order issues.
[Sec. 3, Rule 57]
Construction of rules for issuance of writ
These are strictly construed against the applicant,
such that if the requisites for its grant are not shown
to be all present, the court shall refrain from issuing
it, otherwise, the court which issues it acts in excess
of its jurisdiction [Wee v. Tankiansee, G.R. No. 171124,
(2008)]
A general averment in the affidavit is insufficient to
support the issuance of the writ. In averring fraud
under Sec. 1, Rule 57, the affidavit must contain
a. such particulars as to how the fraud was
committed
b. statements of factual circumstances to show that
respondent, at the time of contracting the
obligation, had a preconceived plan or intention
not to pay.
[Wee v. Tankiansee, G.R. No. 171124, (2008)]
Conditions of applicant’s bond
The party applying for the order will pay all the costs
which may be adjudged to the adverse party and all
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto [Sec. 4, Rule 57]
Moral and exemplary damages may only be recovered
where the attachment was alleged and proved to be
malicious [Calderon v. IAC, et. al. G.R. No. 74696
(1987)]
The bond shall only be applied to all damages and
costs sustained due to the attachment. It cannot
answer for those that do not arise by reason of the
attachment [Excellent Quality Apparel v. Visayan Surety
& Insurance Corp., G.R. 21205 (2015)]
Liability on the bond exists even if the attachment has
been dissolved, whether by the filing of a counter-
Page 160 of 481
REMEDIAL LAW
bond or by proof that the attachment was irregularly
issued, as long as the court shall finally adjudge that
the attaching party was not entitled thereto [Calderon
v. IAC, et. al. G.R. No. 74696 (1987)]
4. Rule on Prior or
Contemporaneous Service of
Summons
General rule: Prior or contemporaneous service of
summons [Sec. 5, Rule 57]
A writ of attachment may be issued ex parte even
before the summons is served upon the defendant but
a writ may not be implemented until jurisdiction over
the person is acquired by service of summons.
Otherwise, the implementation is null and void
[Riano]
Exceptions:
a. Summons could not be served personally or by
substituted service despite diligent efforts, or
b. Defendant is a resident of the Philippines
temporarily absent therefrom, or
c. Defendant is a non-resident of the Philippines, or
d. The action is in rem or quasi in rem.
[Sec. 5, Rule 57]
Attachment of the property of a non-resident in the
Philippines allows an in personam action against a non-
resident to proceed even if jurisdiction over their
person was not acquired, and it will be treated as
though the proceeding was in the nature of an in rem
action [Mabanag v. Gallemore, G.R. No. L-825 (1948)]
5. Manner of Attaching Real
and Personal Property;
When Property Attached is
Claimed by Third Persons
General rule: The sheriff enforcing the writ shall
without delay and with all reasonable diligence attach,
to await judgment and execution in the action, only so
much of the property in the Philippines of the party
against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant’s demand,
Exception: The adverse party makes a deposit with the
court from which the writ is issued, or gives a counter-
U.P. LAW BOC CIVIL PROCEDURE
bond executed to the applicant, in an amount equal to
the bond fixed by the court in the order of attachment
or to the value of the property to be attached,
exclusive of costs
[Sec. 5, Rule 57]
ATTACHMENT OF SPECIFIC KINDS OF
PROPERTY
a. Real property, or growing crops thereon, or
any interest therein, standing upon the record
of the registry of deeds of the province in the
name of the party against whom attachment is
issued, or not appearing at all upon such records,
or belonging to the party against whom
attachment is issued and held by any other
person, or standing on the records of the registry
of deeds in the name of any other person,
1. 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 occupant of the
property, if any, or with such other person or
his agent if found within the province
2. 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
3. The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse party, or
the person by whom the property is held or
in whose name it stands in the records. If the
attachment is not claimed on the entire area
of the land covered by the certificate of title,
a description sufficiently accurate for the
identification of the land or interest to be
affected shall be included in the registration
of such attachment
b. Personal property capable of manual
delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt
therefor
c. 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
Page 161 of 481
REMEDIAL LAW
that the stock or interest of the party against
whom the attachment is issued is attached in
pursuance of such writ
d. 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
e. The interest of the party against whom
attachment is issued in property belonging to
the estate of the decedent, whether as heir,
legatee, or devisee, 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.
1. 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 and served upon the heir, legatee or
devisee concerned.
[Sec. 7, Rule 57]
Attachment of property in custodia legis
a. A copy of the writ of attachment shall be filed
with the proper court or quasi-judicial agency,
and
b. Notice of the attachment served upon the
custodian of such property.
[Sec. 7, Rule 57]
A previously attached property may also be
subsequently attached. But the first attachment shall
have priority over subsequent attachments [Riano]
Remedies against third-person claimants
A third person who has a claim to the property
attached may avail of the following remedies:
a. File terceria or third-party claim
1. A third person makes an affidavit of his title
thereto, or right to the possession thereof,
stating the grounds of such right or title, and
2. Such person serves such affidavit upon the
sheriff while the latter has possession of the
attached property, and a copy thereof upon
the attaching party
[Sec. 14, Rule 57]
U.P. LAW BOC CIVIL PROCEDURE
3. Substantially identical procedure as in terceria
in Sec. 16, Rule 39 [1 Regalado 712, 2010 Ed.]
b. File an independent action to recover property
[Imani v. Metropolitan Bank & Trust Company, G.R.
No.187023 (2010)]; or
c. File motion for intervention (available only
before judgment is rendered) [Sec 1, Rule 19]
Note: The last method was allowed in the case of
Gopiao v. Metropolitan Bank & Trust Co. [G.R. No.
188931 (2014)]
6. Discharge of Attachment
and Counter-Bond
Discharge of attachment and Counter-bond
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 [Sec. 12, Rule 57]
Ways of discharging attachment
a. Counter-bond [Sec. 12, Rule 57]
b. Motion for discharge [Sec. 13, Rule 57]
Grounds for discharge
a. Debtor has posted a counter-bond or has made
the requisite cash deposit [Sec. 12, Rule 57]
b. Attachment was improperly or irregularly issued
[Sec. 13, Rule 57]
1. As where there was no ground for
attachment, or
2. The affidavit and/or bond filed are defective
or insufficient [Sec .3, Rule 57]
c. Judgment is rendered against attaching creditor
[Sec. 19, Rule 57]
d. Attachment is excessive; but the discharge shall
be limited to the excess [Sec. 13, Rule 57]
e. Property attached is exempt from execution
[1 Regalado 709, 2010 Ed.]
Note: There is a difference between the bond for
issuance of writ and bond for lifting the writ.
a. Bond for issuance of writ [Sec. 4, Rule 57] – This
is for damages by reason of the issuance of the
writ
b. Bond for lifting of writ [Sec. 5 and 12, Rule 57] –
This is to secure the payment of the judgment to
be recovered
[1 Regalado 709, 2010 Ed.]
Page 162 of 481
REMEDIAL LAW
Only the defendant or party whose property is
attached may move for its lifting. If the attachment is
proper, the discharge should be by counter-bond
under Sec. 12 [KO Glass v. Valenzuela, G.R. No. L-
48756 (1982)]
Effect of dissolution on plaintiff’s attachment
bond
a. Dissolution of preliminary attachment upon
security given, or a showing if its irregular
issuance, does not operate to discharge the
sureties on the attachment bond [Davao Light and
Power Co. v. CA, G.R. No. 93262 (1991)]
b. That bond is executed to adverse party
conditioned that the applicant will pay all the
costs which may be adjudged to adverse party
and all damages which he may sustain by reason
of the attachment, if the court shall finally
adjudge that applicant was not entitled thereto
[Sec. 4, Rule 57]
c. Until that determination is made, as to applicant’s
entitlement to attachment, his bond must stand
and cannot be withdrawn [Mindanao Savings &
Loan Association Inc v. CA, G.R. No. 84481 (1989)]
After procuring the dissolution of the attachment by
filing a counterbond, the attachment debtor is not
precluded from moving for the discharge of the
attachment on the ground of improper issuance
[Mindanao Savings & Loan Assoc. v. CA, G.R. No.
84481 (1989)]
Filing a counter-bond is the only remedy to dissolve
an attachment issued on the same ground as the main
cause of action [Metro, Inc. v. Laras Gift and Décor, Inc.
G.R. No. 171741 (2009)] But where there are
irregularities in the issuance and service of the writ,
the attachment may still be quashed on the ground of
such irregularities [Torres v. Satsatin, G.R. No. 166759
(2009)]
Claim for damages on account of improper,
irregular, or excessive attachment
a. When to be filed
1. Before trial, or
2. Before appeal is perfected, or
3. Before the judgment becomes executory
b. Requirements
1. Due notice to the attaching party and his
surety or sureties
2. Notice must set forth the facts showing the
right of the party to damages and the amount
thereof.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

3. Damages may be awarded only after the [Sec. 11, Rule 57]
proper hearing, and shall be included in the
judgment on the main case.
[Sec. 20, Rule 57]

7. Satisfaction of Judgment
Out of Property Attached
General rule: If judgment be recovered by the attaching
party and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the
property attached, if it be sufficient for that purpose
in the following manner:
a. By paying to the judgment obligee the proceeds
of all sales of perishable or other property sold in
pursuance of the order of the court, or so much
as shall be necessary to satisfy the judgment
b. If any balance remains due, by selling so much of
the property, real or personal, as may be
necessary to satisfy the balance, if enough for that
purpose remain in the sheriff’s hands, or in those
of the clerk of the court
c. By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the
amount of such credits and debts as determined
by the court in the action, and stated in the
judgment, and paying the proceeds of such
collection over to the judgment obligee.
[Sec. 15, Rule 57]

Duration of an attachment lien

While the provisions of Rule 57 are silent on the
length of time within which an attachment lien shall
continue to subsist after the rendition of a final
judgment, the said lien continues until the debt is paid,
or the sale is had under execution issued on the
judgment or until the judgment is satisfied, or the
attachment discharged or vacated in the same manner
provided by law [Lim v. Sps. Lazaro, G.R. No. 185734
(2013)]

Exception: Whenever it shall be made to appear to the

court in which the action is pending, upon hearing
with notice to both parties, that the
a. Property attached is perishable, or
b. Interests of all the parties to the action 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.

Page 163 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

between them [Power Sites and Signs Inc v. United Neon,

C. Preliminary Injunction G.R. No. 163406 (2009)]

1. Definitions and Differences: May a preliminary injunction issue against acts

already consummated?
Preliminary Injunction and General rule: Injunction could not lie when the acts
Temporary Restraining sought to be enjoined have already become a fait
accompli or an accomplished or consummated act
Order (TRO) [Aznar Bros. v. CA, G.R. No. 128102 (2000)]

Injunction Exception: If the acts complained of are continuing in

Injunction is a judicial writ, process, or proceeding nature and were derogation of plaintiff’s rights at the
whereby a party is ordered to do or refrain from doing outset [Zomer Development Company Inc. v. International
a particular act [1 Regalado 719, 2010 Ed.] Exchange Bank, G.R. No. 150694 (2009)]

In its customary usage, injunction is a judicial process Temporary restraining order (TRO)
operating in personam [1 Regalado 719, 2010 Ed.] A TRO is issued in order to preserve the status quo
until the hearing of the application for preliminary
Preliminary injunction injunction [Bacolod City Water v. Labayen, G.R. No.
An order granted at any stage of an action or 157494 (2004)]
proceeding prior to the judgment or final order,
requiring a party or a court, agency or a person to The application for a TRO shall thereafter be acted
refrain from a particular act or acts. It may also require upon only after all parties are heard in a summary
the performance of a particular act or acts, in which hearing which shall be conducted within twenty-four
case it shall be known as a preliminary mandatory (24) hours after the sheriff’s return of service and/or
injunction [Sec. 1, Rule 58] the records are received by the branch selected by
raffle and to which the records shall be transmitted
Injunction as main Preliminary immediately [Sec. 4(d), Rule 58]
action injunction
Ancillary; exists only as Status quo order
part or incident of an A status quo order is in the nature of a cease and desist
Independent action
independent action or order. It is resorted to when the projected
[Urbanes v. CA, G.R.
proceeding [Urbanes v. proceedings in the case made the conservation of the
No. 117964 (2001)
CA, G.R. No. 117964 status quo desirable or essential, but the affected party
(2001) neither sought such relief nor did the allegations in his
Seeks a judgment Seeks to preserve the pleading sufficiently make out a case for a temporary
embodying a final status quo until merits restraining order [1 Regalado 719, 2010 Ed.]
injunction [Urbanes v. can be heard [Urbanes v.
CA, G.R. No. 117964 CA, G.R. No. 117964 It does NOT direct the doing or undoing of acts but
(2001) (2001) is an order to maintain the last, actual, peaceable and
Assailed by petition for uncontested state of things which preceded the
Assailed by timely
certiorari (since it’s an controversy [1 Regalado 719, 2010 Ed.]
appeal (since it is a final
interlocutory order)
order) [Sec. 1, Rule 41]
[Sec. 1, Rule 41] 2. Requisites
Purpose: To prevent future injury and maintain the
A preliminary injunction or temporary restraining
status quo (i.e. the last actual, peaceable, uncontested
order may be granted only when
status which preceded the pending controversy)
a. The application in the action or proceeding is
[Knecht v. CA, G.R. No. 56122 (1993)]
verified, and shows facts entitling the applicant to
the relief demanded
In cases of a mandatory injunction, the injunction
b. Unless exempted by the court, the applicant files
should not establish new relations between the parties
with the court where the action or proceeding is
but merely re-establish the pre-existing relationship
pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court,

Page 164 of 481

U.P. LAW BOC CIVIL PROCEDURE
to the effect that the applicant will pay to such
party or person all damages which he may sustain
by reason of the injunction or temporary
restraining order if the court should finally decide
that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of
preliminary injunction shall be issued.
c. When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of
the adverse party or the person to be enjoined. In
any event, such notice shall be preceded, or
contemporaneously accompanied by service of
summons, together with a copy of the complaint
or initiatory pleading and the applicant’s affidavit
and bond, upon the adverse party in the
Philippines. However, where the summons could
not be served personally or by substituted service
despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contem-poraneous
service of summons shall not apply.
d. The application for a temporary restraining order
shall thereafter be acted upon only after all parties
are heard in a summary hearing which shall be
conducted within twenty-four (24) hours after
the sheriff’s return of service and/or the records
are received by the branch selected by raffle and
to which the records shall be transmitted
immediately.
[Sec. 4, Rule 58]
The applicant must establish:
a. The existence of a clear and unmistakable right
that must be protected; that is, right in esse
b. A material and substantial invasion of such right;
and
c. An urgent and paramount necessity for the writ
to prevent serious damage
d. No other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable
injury
[Marquez v. Sanchez, G.R. No. 141849, (2007)]
Right in esse
The applicant's right must be clear or unmistakable,
that is, that the right is actual, clear and positive
especially calling for judicial protection. An injunction
will not issue to protect a right not in esse and which
may never arise or to restrain an act which does not
Page 165 of 481
REMEDIAL LAW
give rise to a cause of action [Marquez v. Sanchez, G.R.
No. 141849 (2007)]
Irreparable injury
Does not have reference to the amount of damages
that may be caused but rather to the difficulty of
measuring the damages inflicted. This includes:
a. that degree of wrong of a repeated and
continuing kind which produce hurt,
inconvenience, or damage that can be estimated
only by conjecture, and not by any accurate
standard of measurement.
b. damage where there is no standard by which their
amount can be measured with reasonable
accuracy
c. a serious charge of, or is destructive to, the
property it affects, either physically or in the
character in which it has been held and enjoined,
or when the property has some peculiar quality
or use, so that its pecuniary value will not fairly
recompense the owner of the loss thereof.
If full compensation can be obtained, by way of
damages, equity will not apply the remedy of
injunction [Social Security Commission v. Bayona, G.R.
No. L-13555 (1962)]
3. Kinds of Injunction
a. Preliminary injunction – an order granted at
any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a
court, agency or a person to refrain from a
particular act or acts.
b. Preliminary mandatory injunction – requires
the performance of a particular act or acts, in
which case it shall be known as a
[Sec. 1, Rule 58]
[Preliminary mandatory injunction] may also issue in
cases where the relative inconvenience bears strongly
in the requesting party’s favor, and where the effect
of the mandatory injunction is to re-establish and
maintain a pre-existing continuing relation between
the parties, which was recently and arbitrarily
interrupted by another party, rather than to establish
a new relationship between and among the parties
[WT Construction, Inc. v. DPWH, G.R. No. 163352
(2007)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Preliminary When mandatory injunction does not lie;

Preliminary
prohibitory examples
mandatory injunction
injunction a. To compel cohabitation [Arroyo v. Vasquez, G.R.
Purpose is to prevent a No. 17014 (1921)]
Purpose is to require a b. Cancellation of attachment [Levy Hermanos v.
person from the
person to perform a Lacson, G.R. No. L-47285 (1940)]
performance of a
particular act [Sec 1, c. Release imported goods pending hearing before
particular act [1
Rule 58] the Commissioner of Customs [Commissioner of
Regalado 720, 2010 Ed.]
There was an act that Customs v. Cloribel, G.R. No. L-20266 (1967)]
The act has not yet d. To take property out of the possession or control
has already been
been performed and is of one party and place it into that of another
performed resulting in
thus subject of the whose title has not clearly been established [Pio v.
violation of the rights
prohibitory injunction Marcos, G.R. No. L-27849 (1974)]
of another [Felipe v.
[BPI v. Hontanosas, G.R.
Rodolfo, G.R. 19300
157163 (2014)]
(2013)] 4. When Writ May be Issued
Status quo is preserved Status quo is restored
[1 Regalado 721, 2010 [1 Regalado 731, 2010 When: At any stage of an action or proceeding prior
Ed., citing Rivera v. Ed., citing Dayrit v. to the judgment or final order [Sec. 1, Rule 58]
Florendo, G.R. No. Delos Santos, G.R. No.
57586 (1986)] 5005 (1911)] By whom: By the court where the action or
proceeding is pending. If the action or proceeding is
When preventive injunction does not lie; pending in the CA or in the SC, it may be issued by
examples said court or any member thereof [Sec. 2, Rule 58]
a. To restrain collection of taxes [Sec. 218, NIRC],
except that when in the opinion of the Court of Being preliminary, an order granting a preliminary
Tax Appeals (CTA) the collection by the injunction need not clearly and distinctly state the
aforementioned government agencies may findings of fact and conclusions of law on which it is
jeopardize the interest of the Government based [UCPB v. United Alloy Phils. Corp., G.R. No.
and/or the taxpayer, the CTA any stage of the 152238 (2005)]
proceeding may suspend the said collection and
require the taxpayer either to deposit the amount
claimed or to file a surety bond for not more than 5. Grounds for Issuance of
double the amount with the CTA [Sec. 11, R.A. Preliminary Injunction
1125, as amended by R.A. 9282]
b. To restrain the sale of conjugal properties where A preliminary injunction may be granted when it is
the claim can be annotated on the title as a lien, established that:
such as the husband’s obligation to give support a. The applicant is entitled to the relief demanded,
[Saavedra v. Estrada, G.R. No. 33795 (1931)] and the whole or part of such relief consists in
c. To restrain a mayor proclaimed as duly elected restraining the commission or continuance of the
from assuming his office [Cereno v. Dictado, G.R. act or acts complained of, or in requiring the
No. L-81550 (1988)] performance of an act or acts, either for a limited
d. To restrain registered owners of the property period or perpetually
from selling, disposing and encumbering their b. The commission, continuance or non-
property just because the respondents had performance of the act or acts complained of
executed Deeds of Assignment in favor of during the litigation would probably work
petitioner [Tayag v. Lacson, G.R. No. 134971 injustice to the applicant, or
(2004)] c. A party, court, agency or a person is doing,
e. Against consummated acts [PNB v. Adi, G.R. No. threatening, or is attempting to do, or is
L-52823 (1982); Rivera v. Florendo, G.R. No. L- procuring or suffering to be done, some act or
57586 (1986); Ramos, Sr. v. CA, G.R. No. 124354 acts probably in violation of the rights of the
(1989)] applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual

Page 166 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Sec. 3, Rule 58] 20-day TRO 72-hour TRO

heard on
Note: The effect of the injunction would not be to notice
create a new relation between the parties which was The court to
arbitrarily interrupted by the defendant [1 Regalado The executive
which the
720, 2010 Ed.] judge of a
application
multiple-sala
for
court or the
6. Grounds for Objection to, or preliminary
presiding judge
injunction
for the Dissolution of was made,
of a single-sala
court may issue
Injunction or Restraining may issue ex
ex parte a TRO
parte a TRO
Order to be effective
effective for only
72 hours from
Issuance only for a
issuance but he
a. Upon a showing of its insufficiency period of 20
shall immediately
b. Other grounds upon affidavits of the party or days from
comply with the
person enjoined, which may be opposed by the service on the
provisions of
applicant also by affidavits party or
Sec. 5, Rule 58
c. If it appears after hearing that although the person sought
as to service of
applicant is entitled to the injunction or to be
summons and
restraining order, the issuance or continuance enjoined,
the documents
thereof, as the case may be, would cause except as
to be served
irreparable damage to the party or person herein
therewith
enjoined while the applicant can be fully provided
compensated for such damages as he may suffer, Thereafter,
and the former files a bond in an amount fixed Within the
within the
by the court conditioned that he will pay all 20-day period,
aforesaid 72
damages which the applicant may suffer by the the court
hours, the judge
denial or the dissolution of the injunction or must order
before whom
restraining order. said party or
the case is
If it appears that the extent of the preliminary person to
pending shall
injunction or restraining order granted is too great, it show cause, at
conduct a
may be modified. a specified
summary hearing
[Sec. 6, Rule 58] time and
to determine
place, why the
whether the
injunction
7. Duration of TRO should not be
temporary
restraining order
granted.
shall be
20-day TRO 72-hour TRO
Subsequent extended until
If it shall The court
proceedings the application
appear from shall also
for preliminary
facts shown determine,
injunction can
by affidavits within the
If the matter is be heard.
or by the same period,
of extreme
verified whether or
urgency and the In no case shall
application not the
Grounds applicant will the total period
that great or preliminary
suffer grave of effectivity of
irreparable injunction
injustice and the TRO exceed
injury would shall be
irreparable injury 20 days,
result to the granted, and
including the
applicant accordingly
original seventy-
before the issue the
two hours
matter can be corresponding
provided herein.
order.

Page 167 of 481

U.P. LAW BOC CIVIL PROCEDURE
[Sec. 5, Rule 58, as amended by A.M. No. 07-7-12-SC]
Notes:
a. No preliminary injunction shall be granted
without hearing and prior notice to the party or
person sought to be enjoined.
b. In the event that the application for preliminary
injunction is denied or not resolved within the
said period, the temporary restraining order is
deemed automatically vacated. The effectivity of
a temporary restraining order is not extendible
without need of any judicial declaration to that
effect, and no court shall have authority to extend
or renew the same on the same ground for which
it was issued.
c. However, if issued by the CA or a member
thereof, the TRO shall be effective for 60 days
from service on the party or person sought to be
enjoined. A restraining order issued by the SC or
a member thereof shall be effective until further
orders.
d. The trial court, the CA, the Sandiganbayan or the
CTA that issued a writ of preliminary injunction
against a lower court, board, officer, or quasi-
judicial agency shall decide the main case or
petition within 6 months from the issuance of the
writ.
[Sec. 5, Rule 58, as amended by A.M. No. 07-7-12-SC]
Upon the expiration of the non-extendible period, the
TRO is automatically terminated. No judicial
declaration necessary [Golden Gate Realty Corporation v.
Intermediate Appellate Court, et al., 152 SCRA 684
(1987)]
8. In relation to R.A. 8975; Ban
on Issuance of TRO or Writ
of Injunction in Cases
involving Government
Infrastructure Projects
a. No court, except the SC, shall issue any TRO,
preliminary injunction or preliminary mandatory
injunction against the government, or any of its
subdivisions, officials or any person or entity,
whether public or private acting under the
government direction, to restrain, prohibit or
compel the following acts:
1. Acquisition, clearance and development of
the right-of-way and/or site or location of
any national government project
Page 168 of 481
REMEDIAL LAW
2. Bidding or awarding of contract/ project of
the national government as defined under
Section 2 hereof;
3. Commencement prosecution, execution,
implementation, operation of any such
contract or project;
4. Termination or rescission of any such
contract/project; and
5. The undertaking or authorization of any
other lawful activity necessary for such
contract/project.
b. This prohibition shall apply in all cases, disputes
or controversies instituted by a private party,
including but not limited to cases filed by bidders
or those claiming to have rights through such
bidders involving such contract/project.
c. This prohibition shall not apply when the matter
is of extreme urgency involving a constitutional
issue, such that unless a temporary restraining
order is issued, grave injustice and irreparable
injury will arise. The applicant shall file a bond, in
an amount to be fixed by the court, which bond
shall accrue in favor of the government if the
court should finally decide that the applicant was
not entitled to the relief sought.
d. If after due hearing the court finds that the award
of the contract is null and void, the court may, if
appropriate under the circumstances, award the
contract to the qualified and winning bidder or
order a rebidding of the same, without prejudice
to any liability that the guilty party may incur
under existing laws
[Sec. 3, R.A. 8975]
Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec. 3 is
void and of no force and effect [Sec. 4, R.A. 8795]
In addition to any civil and criminal liabilities, any
judge who shall issue a TRO, preliminary injunction,
or preliminary mandatory injunction in violation of
Sec. 3, R.A. 8795, shall suffer the penalty of
suspension of at least 60 days without pay [Sec. 6, R.A.
8795]
9. Rule on Prior or
Contemporaneous Service of
Summons in Relation to
Attachment
General rule: When an application for a writ of
preliminary injunction or a temporary restraining
U.P. LAW BOC CIVIL PROCEDURE
order is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala court, shall
be raffled only after notice to and in the presence of
the adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant’s affidavit and
bond, upon the adverse party in the Philippines
Exceptions: The requirement of prior or
contemporaneous service of summons shall not
apply:
a. The summons could not be served personally or
by substituted service despite diligent efforts, or
b. The adverse party is a resident of the Philippines
temporarily absent therefrom or is a nonresident
thereof
[Sec. 4, Rule 58]
Grant of final injunction
If after the trial of the action it appears that the
applicant is entitled to have the act or acts complained
of permanently enjoined, the court shall grant a final
injunction perpetually restraining the party or person
enjoined from the commission or continuance of the
act or acts or confirming the preliminary mandatory
injunction [Sec. 9, Rule 58]
Page 169 of 481
REMEDIAL LAW
D. Receivership
Receiver
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 [Normandy v. Duque,
G.R. No. L-25407 (1969)]
Purpose
Receivership, like injunction, may be the principal
action itself or just an ancillary remedy [1 Regalado 745,
2010 Ed.]
The purpose of a receivership as a provisional remedy
is to protect and preserve the rights of the parties
during the pendency of the main action, during the
pendency of an appeal, or as an aid in the execution
of a judgment when the writ of execution has been
returned unsatisfied [Ysasi v. Fernandez, G.R. L-28593
(1968); 2 Riano 129, 2012 Ed.]
Unlike the other provisional remedies which can be
availed of only before final judgment, receivership
may be resorted to even after the judgment has
become final and executory, under Sec. 1(d), Rule 59
in relation to Sec. 41, Rule 39 [1 Regalado 747, 2010
Ed.]
The receivership under Rule 59 is directed to the
property which is the subject of the action and does
not refer to the receivership authorized under banking
laws and other rules or laws. Rule 59 presupposes that
there is an action and that the property subject of the
action requires its preservation. Receivership under
Rule 59 is ancillary to the main action [2 Riano 128,
2012 Ed.]
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, G.R. No. 125008 (1997)]
1. Cases When Receiver May
be Appointed/Requisites
a. When it appears from the verified application,
and such other proof as the court may require,
that the party applying for the appointment of a
receiver has an interest in the property or fund
U.P. LAW BOC CIVIL PROCEDURE
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;
b. 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;
c. After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judg-ment, 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;
d. 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.
[Sec. 1, Rule 59]
Formerly included in this provision are situations
such as when a corporation has been dissolved, is
insolvent, etc. which are now governed by the
Corporation Code [1 Regalado 745, 2010 Ed.]
Specific cases
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 [Art. 101, FC]
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 [Sec. 41, Rule
39]
c. After the trial court loses jurisdiction over the
case (in appeals by notice of appeal) or only over
the subject matter (in appeals by record on
appeal), and prior to the transmittal of the
original record or the record on appeal, the court
may issue orders for the protection and
preservation of the rights of the parties [Sec. 9,
Rule 41], including necessarily the authority to
appoint a receiver who has the power to take and
keep possession of the property in controversy
[Acuña v. Calauag, G.R. No. L-10736 (1957)]
Page 170 of 481
REMEDIAL LAW
d. After final judgment, a receiver may be appointed
as an aid to the execution of judgment [Philippine
Trust Company v. Santamaria, G.R. 31951 (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, G.R. No. 27361
(1971)]
2. Requirement before
Issuance of an Order
Procedure
a. Verified application filed by the party requesting
for the appointment of the receiver [Sec. 1, Rule
59]
b. The grounds stated in Sec. 1, Rule 59 enumerated
in Part D.1 of this (Provisional Remedies)
reviewer.
c. Application must be with notice and must be set
for hearing;
d. Before appointing a receiver, the court shall
require applicant to post a bond executed to the
party against whom the application is presented,
in an amount to be fixed by the court [Sec. 2, Rule
59]
e. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully
and shall file a bond, executed to such person and
in such sum as the court may direct [Sec. 4, Rule
59]
Application is made by motion when the receivership
sought is only an incident to the main action [Regalado]
[1 Regalado 747, 2010 Ed.]
Who appoints a receiver
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
[Sec. 1, Rule 59]
Application may be denied or reviewer
discharged
a. When the applicant, in an amount to be fixed by
the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of
U.P. LAW BOC CIVIL PROCEDURE
the acts, omissions, or other matters specified in
the application as ground for such appointment.
b. It is shown that his appointment was obtained
without sufficient cause
[Sec. 3, Rule 59]
c. If either the applicant’s or the receiver’s bond is
found to be insufficient in amount, or if the
surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith
[Sec. 5, Rule 59
Appointment of a receiver is not proper where the
rights of the parties, one of whom is in possession of
the property, are still to be determined by the trial
court [Vivares v. Reyes, G.R. No. 155408 (2008)]
3. General Powers of a
Receiver
Who is a receiver
A person appointed by the court in behalf of all the
parties to an action for the purpose of preserving the
property involved in the suit and to protect the rights
of all the parties under the direction of the court. [1
Regalado 745, 2010 Ed.] This is an instance where a
person who is not the real party in interest is
authorized to sue as a representative party under Sec.
3, Rule 3 [Sec 6, Rule 59]
Powers of a receiver
Subject to the control of the court in which the action
or proceeding is pending, a receiver shall have the
power to
a. Bring and defend, in such capacity, actions in his
own name
b. Take and keep possession of the 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
[Sec. 6, Rule 59]
Page 171 of 481
REMEDIAL LAW
Who may be appointed
The general rule is that neither party to the litigation
should be appointed as a receiver without the consent
of the other because a receiver is supposed to be an
impartial and disinterested person [Alcantara v. Abbas,
G.R. No. L-14890 (1963)]
A clerk of court should not be appointed as a receiver
as he is already burdened with his official duties
[Abrigo v. Kayanan, G.R. No. L-28601 (1983)]
Liability for refusal or neglect to deliver property
to receiver
a. May be punished for contempt, and
b. Shall 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
[Sec. 7, Rule 59]
Remedies against the receiver
a. No action may be filed by or against a receiver
without leave of the court which appointed him
[Sec. 6, Rule 59]
b. An aggrieved party may:
1. Take the matter into the court which
appointed the receiver and ask either for an
accounting or take some other proceeding,
and ask for consequent judgment on the acts
complained of; OR
2. Ask for leave of court to bring him an action
directly
[De la Riva v. Molina Salvador, G.R. L-10106 (1915)]
4. Two Kinds of Bonds
a. Applicant’s bond
1. Executed to the party against whom the
application is presented
2. In an amount to be fixed by the court
3. To the effect that the applicant will pay such
party all damages he may sustain by reason
of the appointment in case the applicant
shall have procured such without sufficient
cause the court may, in its discretion, at any
time after the appointment, require an
additional bond as further security for such
damages [Sec. 2, Rule 59]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

defeated party, or apportioned, as justice

b. Receiver’s bond requires
The receiver shall file a bond, [Sec. 8, Rule 59]
1. Before entering upon his duties
2. Executed to such person and
3. In such sum as the court may direct
4. To the effect that he will faithfully discharge
his duties in the action or proceeding and
obey the orders of the court
[Sec. 4, Rule 59]

Damages resulting Damages arising

from appointment after appointment
Damages which arise
Damages resulting due to receiver’s
from appointment negligence or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may be
caused before the Liability rests on the
receiver qualifies or mismanagement or
takes possession of the negligence of receiver
property
The applicant’s bond is The receiver’s bond is
responsible responsible
[Molina v. Somes, G.R. L-7308 (1913)]

5. Termination of Receivership
Ground
The necessity for a receiver no longer exists [Sec. 8,
Rule 59]

Procedure
1. The court shall determine that the necessity for a
receiver no longer exists
a. Motu proprio or
b. On motion of either party
2. Due notice to all interested parties
3. Hearing
4. After due notice and hearing, the court shall
a. Settle the accounts of the receiver
b. Direct the delivery of the funds and other
property in his possession to the person
adjudged to be entitled to receive them, and
c. Order the discharge of the receiver from
further duty as such
d. Allow the receiver such reasonable
compensation as the circumstances of the
case warrant, to be taxed as costs against the

Page 172 of 481

U.P. LAW BOC
E. Replevin
Replevin is the provisional remedy seeking for the
possession of the property prior to the determination
of the main action for replevin [BA Finance Corp. v.
CA, G.R. No. 102998 (1996)]
Replevin may also be a main action with the ultimate
goal of recovering personal property capable of
manual delivery wrongfully detained by a person. In
this sense, it is a suit in itself. [BA Finance Corp. v. CA,
G.R. No. 102998 (1996)]
Replevin
The purpose is to
recover personal
property capable of
manual delivery from
the defendant [1
Regalado 753, 2010 Ed.]
The property either
belongs to the plaintiff
or one over which the
plaintiff has a right of
possession [Sec 2, Rule
60]
May be sought only
when the principal
action is for the
recovery of personal
property [1 Regalado
753, 2010 Ed.]
Can be sought only
when defendant is in
actual or constructive
possession of the
property [1 Regalado
753, 2010 Ed.]
Cannot be availed of
when property is in
custodia legis [Montesa v.
Manila Cordage. G.R. L-
44537 (1978)]
Available before
defendant answers [Sec
1, Rule 60]
Bond is double the
value of the
CIVIL PROCEDURE
Preliminary
attachment
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff
[Sec 1, Rule 57]
The property does not
belong to the plaintiff
but to the defendant [1
Regalado 753, 2010 Ed.]
Available even if
recovery of property is
only incidental to the
relief sought [1 Regalado
753, 2010 Ed.]
May be resorted to
even if property is in
possession of a third
person [1 Regalado 753,
2010 Ed.]
Can be availed of when
property is in custodia
legis [Sec 7, Rule 57]
Available from
commencement but
before entry of
judgment [Sec 1, Rule
57]
Bond is fixed by the
court [Sec 4, Rule 57]
Page 173 of 481
REMEDIAL LAW
Replevin
Preliminary
attachment
property[Sec 2(d), Rule
60]
Extends only to Extends to all kinds of
personal property property whether real,
capable of manual personal, or
delivery [Machinery & incorporeal [Machinery
Engineering Supplier Inc., & Engineering Supplier
v. CA. G.R. L-7056 Inc., v. CA. G.R. L-7056
(1964)] (1964)]
Attachment to recover
possession of personal
Available to recover
property unjustly
personal property even
detained presupposes
if the same is not being
that the same is being
concealed, removed, or
concealed, removed or
disposed of [Machinery
disposed of to prevent
& Engineering Supplier
its being found or
Inc., v. CA. G.R. L-7056
taken by the applicant
(1964)]
[1 Regalado 754, 2010
Ed.]
1. When Writ May be Issued
A party praying for the recovery of possession of
personal property may, at the commencement of the
action or at any time before answer, apply for an order
for the delivery of such property to him [Sec. 1, Rule
60]
Who may avail
While Sec. 1 of Rule 60 formerly provided for the writ
of replevin at the instance of the plaintiff, the same
provisional remedy was held to be available to the
defendant on his counterclaim [Pongos v. Hidalgo
Enterprises, Inc., G.R. No. L-3226 (1949)] and to any
other party asserting affirmative allegations
praying for the recovery of personal property
unjustly detained. Sec. 1 has been accordingly
amended [1 Regalado 754, 2010 Ed.]
Does the applicant have to be the holder of the
legal title to the property?
General rule: No. It is in the nature of a possessory
action. It is sufficient that at the time he applied for a
writ of replevin he is found to be entitled to a
possession thereof [Chiao Liong v. CA, G.R. No.
106251 (1993)]
Primarily, the action of replevin is possessory in
character and determines nothing more than the right
of possession. However, when the title to the
U.P. LAW BOC CIVIL PROCEDURE
property is distinctly put in issue by the defendant's
plea, the question of ownership may be resolved in
the same proceeding because a replevin action is
sufficiently flexible to authorize a settlement of all
equities between the parties, arising from or growing
out of the main controversy [Chiao Liong v. CA, G.R.
No. 106251 (1993)]
2. Requisites
a. The applicant must show by his own affidavit or
that of some other person who personally knows
the facts the items stated in Part E.3 (Affidavit and
bond; redelivery bond of this (Provisional Remedies)
reviewer
b. The applicant must also give a bond
[Sec. 2, Rule 60]
Upon the filing of such affidavit and approval of the
bond, the court shall issue an 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 {Sec. 3, Rule 60]
3. Affidavit and Bond;
Redelivery Bond
Contents of the affidavit
The affidavit shall
a. That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to
the possession thereof;
b. That the property is wrongfully detained by the
adverse party, alleging the cause of detention
thereof according to the best of his knowledge,
information, and belief;
c. That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt
from such seizure or custody; and
d. The actual market value of the property.
[Sec. 2, Rule 60]
Applicant’s bond
a. Executed to the adverse party
b. Double the value of the property as stated in the
affidavit
c. Conditions
1. The return to of property to adverse party if
such return be adjudged, and
Page 174 of 481
REMEDIAL LAW
2. The payment to adverse party of such sum
as he may recover from the applicant in the
action
[Sec. 2, Rule 60]
Return of property
If the adverse party objects to the sufficiency of the
a. applicant’s bond, or
b. surety or sureties thereon,
he cannot immediately require the return of the
property, but if he does not so object, he may, at
any time before the delivery of the property to the
applicant, require the return thereof
How return of property may be required
File with the court where the action is pending a bond
a. Executed to the applicant,
b. In double the value of the property as stated in
the applicant’s affidavit
c. Conditions
1. The delivery thereof to the applicant, if such
delivery be adjudged, and
2. The payment of such sum to him as may be
recovered against the adverse party, and by
serving a copy of such bond on the applicant.
[Sec. 5, Rule 60]
4. Sheriff’s Duty in the
Implementation of the Writ;
When Property is Claimed
by Third Party
a. Sheriff’s Duty in Implementation
1. Upon receiving the order, the sheriff must
a. Serve a copy thereof on the adverse party,
together with a copy of the application,
affidavit and bond, and
b. Forthwith take the property, if it be in the
possession of the adverse party, or his agent,
and retain it in his custody.
2. If the property or any part thereof be concealed
in a building or enclosure, the sheriff must
a. Demand its delivery, and
b. If it be not delivered, he must cause the
building or enclosure to be broken open and
take the property into his possession.
3. After the sheriff has taken possession of the
property as herein provided, he must keep it in a
secure place and shall be responsible for its
delivery to the party entitled thereto upon
U.P. LAW BOC CIVIL PROCEDURE
receiving his fees and necessary expenses for
taking and keeping the same.
[Sec. 4, Rule 60]
Where replevin writ was improperly implemented
The proper remedy to an improperly implemented
writ of replevin is to file a motion to quash [Siy v.
Tomlin, G.R. No. 205998 (2017)]
But failure of a party to file a motion to quash does
not prevent a party from assailing the improper
service via a petition for certiorari. The trial court is
deemed to have acted without or in excess of its
jurisdiction if improperly served. It must restore the
parties to their former positions by returning the
seized property and by discharging the replevin bond
[Rivera v. Vargas, G.R. No. 165895 (2009)]
Disposition of property by sheriff
1. If within 5 days after the taking of the property
by the sheriff, the adverse party does not object
to the sufficiency of
a. the bond, or
b. of the surety or sureties thereon; or
2. If the adverse party so objects and the court
affirms its approval of the applicant’s bond or
approves a new bond, or
3. If the adverse party requires the return of the
property but his bond is objected to and found
insufficient and he does not forthwith file an
approved bond,
the property shall be delivered to the applicant. If for
any reason the property is not delivered to the
applicant, the sheriff must return it to the adverse
party
[Sec. 6, Rule 60]
b. When Property Claimed by
Third Party
1. If the property taken is claimed by any person
other than the party against whom the writ of
replevin had been issued or his agent, and
2. Such person makes an affidavit of his title
thereto, or right to the possession thereof, stating
the grounds therefor, and serves such affidavit
upon the sheriff while the latter has possession of
the property and a copy thereof upon the
applicant
3. The sheriff shall not be bound to keep the
property under replevin or deliver it to the
applicant
Page 175 of 481
REMEDIAL LAW
4. Unless the applicant or his agent, on demand of
said sheriff, shall file a bond approved by the
court to indemnify the third-party claimant in a
sum not less than the value of the property under
replevin as provided in Sec. 2, Rule 60.
5. In case of disagreement as to such value, the
court shall determine the same.
6. No claim for damages for the taking or keeping
of the property may be enforced against the bond
unless the action therefor is filed within 120 days
from the date of the filing of the bond.
[Sec. 4, Rule 60]
Note: The procedure in Sec. 7, Rule 60 is similar to
that in third-party claims in execution [Sec. 16, Rule
39] and in attachment [Sec. 14, Rule 57]
Difference in service of affidavits
1. Sec. 14, Rule 57 – affidavit is served upon the
sheriff while he has possession of the attached
property
2. Sec. 7, Rule 60 – affidavit is served within 5 days
in which sheriff has possession (in connection
with Sec. 6, Rule 60)
Judgment
After trial of the issues, the court shall determine who
has the right of possession to and the value of the
property and shall render judgment in the alternative
for the delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be made,
and also for such damages as either party may prove,
with costs [Sec 9, Rule 60]
Recovering damages on an applicant’s bond
Requirements
a. That the defendant- claimant has secured a
favorable judgment the main action, meaning
that the plaintiff has no cause of action and was
not, therefore, entitled to the replevin;
b. That the application for damages, showing
claimant’s right thereto and the amount thereof,
be filed in the same action before trial or before
appeal is perfected or before the judgment
becomes executory;
c. That due notice be given to the other party and
his surety or sureties, notice to the principal not
being sufficient;
d. That there should be a proper hearing and the
award for damages should be included in the final
judgment
[DBP v. Carpio, G.R. No. 195450 (2017)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: DBP v. Carpio states that the same requirements

apply when recovering damages under other
provisional remedies, as provided in Sec. 20, Rule 57;
Sec. 8, Rule 58 and Sec. 9, Rule 59.

Even where the judgment is that the defendant is

entitled to the property, but no order was made
requiring the plaintiff to return it or assessing damages
in default of return, there could be no liability on the
part of the sureties until judgment was entered that
the property should be restored [Sapugay et. al. v. CA,
G.R. No. 86792 (1990)]

The surety cannot be liable for payment of the

judgment for damages rendered against the plaintiff
for fraudulent or wrongful acts unconnected with the
defendant’s deprivation of possession via replevin by
the plaintiff [1 Regalado 761-762, 2010 Ed.]

Page 176 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

V. SPECIAL CIVIL Ordinary civil action

action is real [Secs. 1-
Special civil action

ACTIONS 2, Rule 4]

A. General Matters
1. Nature of Special Civil
Actions Some are initiated by
Initiated by complaint complaint, some by
Special civil actions are generally brought or filed for [Sec. 5, Rule 1] petition [1 Regalado 770,
the same purpose as a civil action, that is, for a party 2010 Ed.]
to sue another for the enforcement of a right, or the
prevention or redress of a wrong [1 Riano 495, 2007
Ed.] Some special civil
actions can only be filed
A special civil action is governed by the rules for in the MTC (e.g. forcible
ordinary civil actions, subject to the special rules It may be filed initially entry and unlawful
prescribed for a special civil action [Sec. 3(a), Rule 1] either in the MTC or detainer) while there are
the RTC some which can NOT
be commenced in the
2. Ordinary Civil Actions v. MTC (e.g. certiorari) [1
Special Civil Actions Regalado 771, 2010 Ed.]

Ordinary civil action Special civil action How initiated

A party also files the Special civil actions
A party sues another Special civil actions
action for the initiated by
for the enforcement initiated by petition
enforcement or complaint
or protection of a a. Interpleader
protection of a right or a. Declaratory relief
right or prevention or [Rule 62]
prevention or redress of [Rule 63]
redress of a wrong b. Expropriation
a wrong [1 Riano 495, b. Review of the
[Sec. 3(a), Rule 1] [Rule 67]
2007 Ed.] adjudication of
c. Foreclosure of
Also governed by COMELEC/COA
real estate
ordinary rules but [Rule 64]
Governed by ordinary mortgage [Rule
subject to specific rules c. Certiorari
rules [Sec. 3, Rule 1] 68]
prescribed [Sec. 3, Rule [Rule 65]
d. Partition [Rule
1] d. Prohibition [Rule 65]
69]
e. Mandamus [Rule 65]
e. Forcible entry
Must be based on a Some special civil f. Quo warranto [Rule
and unlawful
cause of action which actions do not have to 66]
detainer [Rule
means that there must be based on a cause of g. Contempt [Rule 71]
70]
have been a violation action (e.g. interpleader)
of plaintiff’s rights [1 Regalado 771, 2010
[Sec. 1, Rule 2] Ed.]
3. Jurisdiction and Venue
Venue is determined Jurisdiction over special civil actions is determined
Venue is generally
by either the by the Constitution [Sec. 5, Art. VIII, for the Supreme
governed by the general
residence of the Court] and statutes (e.g. B.P. 129)
rules on venue, except as
parties when action is
otherwise indicated by
personal or by the Venue is a procedural matter and generally set by the
special rules [1 Regalado
location of the Rules of Court. Hence, the venue of civil actions is
771, 2016 Ed.]
property when the determined by the general rules on venue, unless

Page 177 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

otherwise subject to special rules for special civil

actions (e.g. quo warranto) [1 Regalado 771, 2010 Ed.]

Special civil action Jurisdiction Venue

Personal Property:
MTC: If value not more than
P300,000 outside Metro Manila, or
not more than P400,000 in Metro Apply Rule 4:
Manila (B.P. Blg. 129, Sec. 33)
Real action: If the action affects title to
RTC: If value exceeds P300,000 or possession of real property, venue is
outside Metro Manila, or P400,000 in where the real property involved or a
Metro Manila, or if incapable of portion thereof is situated [Sec. 1, Rule
pecuniary estimation [Sec. 19, B.P. 4]
129]
INTERPLEADER Personal action: All other actions - At
Real Property: the election of the plaintiff
MTC: assessed value not more than Where plaintiff or any of the principal
P20,000 outside Metro Manila or not plaintiffs reside; or
more than P50,000 in Metro Manila Where the defendant or any of the
[Sec. 33, B.P. 129] principal defendants reside/s; or
In case of a non-resident, where he may
RTC: If value exceeds P20,000 if be found
outside Metro Manila, or P50,000 if in [Sec. 2, Rule 4]
Metro Manila, or incapable of
pecuniary estimation [Sec. 19, B.P.
129]
General rule: In the appropriate RTC,
since the subject in declaratory relief
is incapable of pecuniary estimation.

DECLARATORY Exception: Where the action is a

Apply Rule 4 (supra)
RELIEF proceeding similar to declaratory
relief (e.g. quieting of title to real
property), jurisdiction will depend on
the assessed value of the property,
supra.
REVIEW OF
JUDGMENTS AND
SC SC
FINAL ORDERS OF
COMELEC/COA
RTC, CA, SC;
Sandiganbayan, in aid of its appellate
RTC where the respondent is situated,
CERTIORARI/ jurisdiction;
where petition relates to an act or
PROHIBITION/ COMELEC, in election cases
omission of a corporation, board, an
MANDAMUS involving an act or omission by MTC
officer, or person [Rule 65, Sec. 4]
or RTC, in aid of its appellate
jurisdiction.
Generally, action can be brought in SC,
RTC, CA, SC;
CA, or RTC exercising jurisdiction over
Sandiganbayan, which has exclusive
5. QUO WARRANTO the territorial area where respondent
original jurisdiction over quo
resides or any of the respondent resides
warranto cases filed by the PCGG

Page 178 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

COMELEC, exclusive jurisdiction If commenced by the Solicitor General,

over cases falling under Omnibus it may be filed with RTC Manila, CA, or
Election Code SC
Special Commercial Courts, for quo Sandiganbayan has exclusive original
warranto against duly licensed jurisdiction on quo warranto arising or
associations. (Corporation Code rules that may arise in cases filed under EO
apply, not the Rules of Court.) 1,2,14, 14-A but this must be in aid of
its appellate jurisdiction and not
exclusive of the SC.
6. EXPROPRIATION RTC Apply Rule 4 (Supra)
7. JUDICIAL
RTC Apply Rule 4 (Supra)
FORECLOSURE
8. PARTITION RTC Apply Rule 4 (Supra)
FORCIBLE ENTRY AND
MTC Apply Rule 4 (Supra)
UNLAWFUL DETAINER
If committed against RTC or a court of
equivalent or higher rank, or officer
appointed by it: File with such court
If committed against a first-level court:
CONTEMPT MTC, RTC, CA, SC File with RTC of the place in which
lower court is sitting
If act was committed against persons or
entities exercising quasi- judicial
functions: File with RTC

Interpleader v. intervention
B. Interpleader Interpleader Intervention
Ancillary action, i.e.
Nature of interpleader Original action there is a pending
An Interpleader is a remedy whereby a person who action
has property in his possession or has an obligation to Intervenor claims an
render wholly or partially, without claiming any right Plaintiff either has interest that is adverse
in both, comes to court and asks that the defendants 1. No interest or; to at least one of the
who have made conflicting claims upon the same 2. An interest in the existing parties, or will
property or who consider themselves entitled to subject matter be adversely affected
demand compliance with the obligation be required undisputed by the by judgment in favor of
to litigate among themselves in order to determine other parties either of the existing
who is entitled to the property or payment of the parties
obligation [Beltran v. PHHC, G.R. No. L-25138
Defendants to a
(1969)]
Defendants are sued to complaint-in-
be impleaded intervention are parties
Purpose of the remedy
to a pending suit
1. To compel the conflicting claimants to interplead
[1 Regalado 321, 2010 Ed.]
and litigate their several claims among themselves
[Sec. 1, Rule 62]
2. Not to protect a person against double liability 1. Requisites for Interpleader
but to protect him from double vexation in
respect of one liability [Beltran v. PHHC, G.R. No. a. The plaintiff clams no interest in the subject
L-25138 (1969)] matter or his claim thereto is not disputed
b. The parties to be interpleaded must make
effective claims

Page 179 of 481

U.P. LAW BOC CIVIL PROCEDURE
c. There must be at least two (2) conflicting
claimants with adverse or conflicting interests to
a property in custody or possession of the
plaintiff; and
d. The subject matter must be one and the same.
[Lim v. Continental Dev’t Corp., G.R. No. L- 41818
(1976)]
Notes:
a. Interpleader applies regardless of the nature of
the subject matter [Wack Wack Golf & Country
Club v. Lee Won, G.R. No. L-23851 (1976),
interpreting Sec. 1, Rule 63 of the 1964 ROC,
which was virtually unchanged by now Sec. 1,
Rule 62]
b. An interpleader cannot be availed of to resolve
the issue of breach of undertakings made by
defendants, which should be resolved in an
ordinary action for specific performance or other
reliefs [Beltran v. PHHC, G.R. No. L-25138
(1969)]
2. When to File
General rule: Within a reasonable time [Wack Wack Golf
& Country Club v. Lee Won, G.R. No. L-23851 (1976)]
An action for Interpleader should be filed within a
reasonable time after a dispute has arisen without
waiting to be sued by either of the contending parties.
Otherwise, it may be barred by laches [Wack Wack
Golf & Country Club v. Lee Won, G.R. No. L-23851
(1976)]
Exception: Where the stakeholder acts with reasonable
diligence in view of environmental circumstances, the
remedy is not barred [Wack Wack Golf & Country Club
v. Lee Won, G.R. No. L-23851 (1976)]
Who files: The person against whom the conflicting
claims are made and claims no interest in the subject
matter [Sec. 1, Rule 62]
Jurisdiction: General rules on jurisdiction apply as in
ordinary civil actions [see Makati Development
Corporation v. Tanjuatco, G.R. No. L-26443 (1969)]
Procedure
Filing of an action against the conflicting
claimants to compel them to interplead and litigate
their several claims among themselves [Sec. 1, Rule
62]

Page 180 of 481
REMEDIAL LAW
Court order upon the filing of the complaint
requiring the conflicting claimants to interplead
with one another. If the interests of justice so
require, the court may direct in such order that the
subject matter be paid or delivered to the court
[Sec. 2, Rule 62]

Summons served upon the conflicting claimants,
together with a copy of the complaint and order
[Sec. 3, Rule 62]

Answer of each claimant setting forth his claim
within 15 days from service of the summons upon
him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply
thereto as provided by the ROC.
Counterclaims, cross-claims, third-party
complaints and responsive pleadings thereto, as
provided by the ROC, may be filed by the parties
in an interpleader action.
[Sec. 5, Rule 62]
OR
Motion to dismiss filed by each claimant within
the time for filing an answer on the ground of
impropriety of the interpleader action or on other
appropriate grounds specified in Rule 16. The
period to file the answer shall be tolled and if the
motion is denied, the movant may file his answer
within the remaining period, but which shall not be
less than 5 days in any event, reckoned from notice
of denial [Sec. 4, Rule 62]

Pre-trial [Sec. 6, Rule 62]

Determination of the claimants’ respective rights
and adjudicate their several claims [Sec. 6, Rule 62]
Effect of failure to answer
If any claimant fails to plead within the time herein
fixed, the court may, on motion,
a. declare him in default and
b. thereafter render judgment barring him from
any claim in respect to the subject matter
[Sec. 5, Rule 62]
U.P. LAW BOC CIVIL PROCEDURE
C. Declaratory Reliefs and
Similar Remedies
Two types of actions under Rule 63
1. Petition for declaratory relief, and
2. Similar remedies
a. Action for reformation of an instrument;
b. Action to quiet title or remove clouds
therefrom, and
c. Action to consolidate ownership under Art.
1607, CC
[Sec. 1, Rule 63]
Declaratory relief is defined as an action by any
person interested in a deed, will, contract or other
written instrument, executive order or resolution, to
determine any question of construction or validity
arising from the instrument, executive order or
regulation, or statute, and for a declaration of his
rights and duties thereunder [Sec. 1, Rule 63; Jumamil
v. Cafe, G.R. No. 144570 (2005)]
Note: The enumeration of the subject matter is
exclusive. Hence, an action not based on any of those
enumerated cannot be the proper subject of
declaratory relief [Mangahas v. Paredes, G.R. No.
157866 (2007)]
The only issue that may be raised in such petition is
the question of construction or validity of provisions
in an instrument or statute [Atlas Consolidated Mining
& Development. Corp. v. CA, G.R. No. L-54305 (1990)]
Purpose
To secure an authoritative statement of the rights and
obligations of the parties under a statute, deed,
contract, etc. for their guidance in its enforcement or
compliance and not to settle issues arising from its
alleged breach [Tambunting v. Sumabat and Baello, G.R.
No. 144101 (2005)]
Characteristics
The concept of a cause of action does not strictly
apply to a declaratory relief petition since it
presupposes that there has been no breach or
violation of the instruments involved. However, a
breach or violation must be impending imminent, or
at least threatened [Velarde v. Social Justice Society, G.R.
No. 159357 (2004)]
Thus, unlike other judgments, a judgment in an action
for declaratory relief does not essentially entail any
execution process [1 Regalado 789, 2010 Ed.]
Page 181 of 481
REMEDIAL LAW
1. Who May File the Action
Any person interested under a deed, will, contract or
other written instrument, whose rights are affected by
a statute, executive order or regulation, ordinance, or
any other governmental regulation may, before
breach or violation thereof
[Sec. 1, Rule 63]
Parties
a. All persons who have or claim any interest which
would be affected by the declaration [Sec. 2, Rule
63]
b. In any action which involves the validity of a
statute, executive order or regulation, or any
other governmental regulation, the Solicitor
General shall be notified by the party assailing the
same and shall be entitled to be heard upon such
question [Sec. 3, Rule 63]
c. In any action involving the validity of a local
government ordinance, the corresponding
prosecutor or attorney of the local governmental
unit involved shall be similarly notified and
entitled to be heard. If such ordinance is alleged
to be unconstitutional, the Solicitor General shall
also be notified and entitled to be heard [Sec. 4,
Rule 63]
Note: Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall not
be prejudiced in their interests unless otherwise
provided by the Rules [Baguio Citizens Action v. City
Council of Baguio, G.R. No. L-27247 (1983)]
2. Requisites of an Action for
Declaratory Relief
a. The subject matter of the controversy must be a
deed, will, contract or other written instrument,
statute, executive order or regulation, or
ordinance
b. The terms of said documents and the validity
thereof are doubtful and require judicial
construction;
c. There must have been no breach of the
documents in question
d. There must be an actual justiciable controversy
or the "ripening seeds" of one between persons
whose interests are adverse
e. The issue must be ripe for judicial determination;
and
U.P. LAW BOC CIVIL PROCEDURE
f. Adequate relief is not available through other
means or other forms of action or proceeding
[Republic v. Roque, G.R. No. 204603 (2013)]
A justiciable controversy refers to an existing case
or controversy appropriate or ripe for judicial
determination, not one that is conjectural or merely
anticipatory [Velarde v. Social Justice Society, G.R. No.
159357 (2004)]
WHERE TO FILE
Jurisdiction
General Rule: Exclusive and original jurisdiction is with
the RTC since the subject in a petition for declaratory
relief is incapable of pecuniary estimation [Sec. 19,
B.P.129, as amended by R.A. 7691]. The SC has no
original jurisdiction over these petitions, only
appellate jurisdiction [Liga ng mga Barangay National v.
City Mayor of Manila, G.R. No. 154599 (2004)]
Exception: Where the action is a proceeding similar to
declaratory relief (e.g. quieting of title to real
property), jurisdiction will depend on the assessed
value of the property [Malana v. Tappa, G.R. No.
181303 (2009)]
Venue: General rule on venue applies, see Rule 4
3. When Court May Refuse to
Make Judicial Declaration
Except in actions falling under the 2nd paragraph of
Sec. 1, Rule 63, the court, motu proprio or upon motion,
may refuse to exercise the power to declare rights and
to construe instruments in any case where a decision
would not terminate the uncertainty or controversy
which gave rise to the action, or in any case where the
declaration or construction is not necessary and
proper under the circumstances.
[Sec. 5, Rule 63]
4. Conversion to Ordinary
Action
If before the final termination of the case, a breach or
violation of an instrument or a statute, executive order
or regulation, ordinance, or any other governmental
regulation should take place,
a. the action may thereupon be converted into an
ordinary action, and
Page 182 of 481
REMEDIAL LAW
b. the parties shall be allowed to file such pleadings
as may be necessary or proper.
[Sec. 6, Rule 63]
Note: A petition for declaratory relief is filed before
the occurrence of any breach or violation of the deed,
contract, statute, ordinance or executive order or
regulation. It will not prosper when brought after a
contract or a statute has already been breached or
violated. If there has already been a breach, the
appropriate ordinary civil action and not declaratory
relief should be filed [City of Lapu-Lapu v. PEZA, G.R.
No. 184203 (2014)]
5. Proceedings Considered as
Similar Remedies
a. Action for reformation of an instrument;
b. Action to quiet title or remove clouds therefrom,
and
c. Action to consolidate ownership under Art.
1607, CC
[Sec. 1, Rule 63]
These remedies are considered similar to declaratory
relief because they also result in the adjudication of
legal rights of the litigants, often without the need of
execution to carry the judgment into effect [Malana v.
Tappa, G.R. No. 181303 (2009)]
However, a distinction must be made between these
proceedings and an action for declaratory relief
because of Sec. 5, Rule 63. See Part C.3 of this (Special
Civil Actions) reviewer above.
a. Reformation of an Instrument
Reformation is a remedy in equity, whereby a written
instrument is made or construed so as to express or
conform to the real intention of the parties, where
some error or mistake has been committed [Multi-
Ventures Capital v. Stalwart Management Services Corp.,
G.R. No. 157439 (2007)]
What are the requisites for reformation?
1. There must have been a meeting of the minds of
the parties to the contract;
2. The instrument does not express the true
intention of the parties; and
3. Failure of the instrument to express the true
intention of the parties is due to mistake, fraud,
inequitable conduct or accident
U.P. LAW BOC CIVIL PROCEDURE
[Multi-Ventures Capital v. Stalwart Management Services
Corp., G.R. No. 157439 (2007)]
Burden of proof
The onus probandi is upon the party who insists that the
contract should be reformed [Multi-Ventures Capital v.
Stalwart Management Services Corp, G.R. No. 157439
(2007)]
Prescriptive period
As an action for reformation, plaintiff had 10 years
within which to bring it from the time the right of
action accrued [Veluz v. Veluz, G.R. No. L-23261
(1968)]
CIVIL CODE PROVISIONS ON THE
REFORMATION OF AN INSTRUMENT
1. When, there having been a meeting of the minds
of the parties to a contract, their true intention is
not expressed in the instrument purporting to
embody the agreement, by reason of mistake,
fraud, inequitable conduct or accident, one of the
parties may ask for the reformation of the
instrument to the end that such true intention
may be expressed.
2. If mistake, fraud, inequitable conduct, or accident
has prevented a meeting of the minds of the
parties, the proper remedy is not reformation of
the instrument but annulment of the contract
[Art. 1359, CC]
The principles of general law on reformation of
instruments are adopted insofar as they are not in
conflict with the provisions of the Civil Code [Art.
1360, CC]
When a mutual mistake of the parties causes the
failure of the instrument to disclose their real
agreement, the said instrument may be reformed [Art.
1361, CC]
If one party was mistaken and the other acted
fraudulently or inequitably in such a way that the
instrument does not show their true intention, the
former may ask for the reformation of the instrument
[Art. 1362, CC]
When one party was mistaken and the other knew or
believed that the instrument did not state their real
agreement, but concealed that fact from the former,
the instrument may be reformed [Art. 1363, CC]
Page 183 of 481
REMEDIAL LAW
When through the ignorance, lack of skill, negligence
or bad faith on the part of the person drafting the
instrument or of the clerk or typist, the instrument
does not express the true intention of the parties, the
courts may order that the instrument be reformed
[Art. 1364, CC]
If two parties agree upon the mortgage or pledge of
real or personal property, but the instrument states
that the property is sold absolutely or with a right of
repurchase, reformation of the instrument is proper
[Art. 1365, CC]
There shall be no reformation in the following cases:
1. Simple donations inter vivos wherein no
condition is imposed
2. Wills
3. When the real agreement is void
[Art. 1366, CC]
When one of the parties has brought an action to
enforce the instrument, he cannot subsequently ask
for its reformation [Art. 1367, CC]
Reformation may be ordered at the instance of either
party or his successors in interest, if the mistake was
mutual; otherwise, upon petition of the injured party,
or his heirs and assigns [Art. 1368, CC]
b. Consolidation of Ownership
In case of real property, the consolidation of
ownership in the vendee by virtue of the failure of the
vendor to comply with the provisions of Art. 1616
shall not be recorded in the Registry of Property
without a judicial order, after the vendor has been
duly heard [Art. 1607, CC]
The vendor cannot avail himself of the right of
repurchase without returning to the vendee the price
of the sale, and in addition:
1. The expenses of the contract, and any other
legitimate payments made by reason of the sale;
2. The necessary and useful expenses made on the
thing sold
[Art. 1616, CC]
The action brought to consolidate ownership is not
for the purpose of consolidating the ownership of the
property in the person of the vendee or buyer but for
the registration of the property. The lapse of the
redemption period without the seller a retro
exercising his right of redemption consolidates
ownership or title upon the person of the vendee by
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

operation of law. Art. 1607 requires the filing of the

petition to consolidate ownership because the law
D. Review of Judgments and
precludes the registration of the consolidated title
without judicial order [Rosario v. Rosario, G.R. No. L-
Final Orders or
13018 (1960)] Resolutions of the
c. Quieting of Title to Property COMELEC and COA
Scope
1. Whenever there is a cloud on title to real property
Review of judgments and final orders or resolutions
or any interest therein, by reason of any
of the COMELEC and the COA [Sec. 1, Rule 64]
instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective
This new rule is based on the provisions of Sec. 7, Art.
but is in truth and in fact invalid, ineffective,
IX-A, Constitution, which states that unless
voidable, or unenforceable, and may be
otherwise provided by this Constitution or by law, any
prejudicial to said title, an action may be brought
decision, order, or ruling of each Commission may be
to remove such cloud or to quiet the title.
brought to the SC on certiorari within 30 days from
2. An action may also be brought to prevent a cloud
receipt of a copy thereof.
from being cast upon title to real property or any
interest therein.
Hence, judgments/orders of the Civil Service
[Art. 476, CC]
Commission are now reviewable by CA under Rule
43, eliminating recourse to the SC [R.A. 7902; SC
The plaintiff must have legal or equitable title to, or
Revised Administrative Circular No. 1-95]
interest in the real property which is the subject-
matter of the action. He need not be in possession of
said property [Art. 477, CC] 1. Application of Rule 65 under
Requisites
Rule 64
1. The plaintiff or complainant has a legal or an
equitable title to or interest in the real property A judgment or final order or resolution of the
subject of the action, and COMELEC and the COA may be brought by the
2. The deed, claim, encumbrance, or proceeding aggrieved party to the SC on certiorari under Rule
claimed to be casting cloud on his title must be 65, except as hereinafter provided [Sec. 2, Rule 64],
shown to be in fact invalid or inoperative despite not on appeal by certiorari under Rule 45.
its prima facie appearance of validity or legal
efficacy Reglementary period
[Mananquil v. Moico, G.R. No. 180076 (2012)] The petition shall be filed within 30 days from notice
of the judgment or final order or resolution sought to
be reviewed [Sec. 3, Rule 64]

This follows the express provision of Sec. 7, Art. IX-

A, Constitution, and is different from Rule 65 which
provides for 60 days (see Sec. 4, Rule 65).

Interruption of the 30-day period

a. The filing of a motion for new trial or
reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules
of the Commission concerned, shall interrupt the
period herein fixed.
b. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but
which shall not be less than 5 days in any event,
reckoned from notice of denial [Sec. 3, Rule 64]

Page 184 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: The period is 30 days from notice of the decision

or ruling (instead of the 60 days that Rule 65 2. Distinction in the
provides), with the intervening period used for the
filing of any motion for reconsideration deductible Application of Rule 65 to
from the originally-granted 30 days (instead of the
fresh period of 60 days that Rule 65 provides) [Pates v.
Judgments of the
COMELEC, G.R. No. 184915 (2009)] COMELEC and COA and
General rule: Failure to exhaust available remedies file
the Application of Rule 65 to
a motion for reconsideration before the issuing forum Other Tribunals, Persons
results in the dismissal of the petition.
and Officers
Exceptions:
a. To prevent a miscarriage of justice Rule 64 Rule 65
b. The issue involves the principle of social justice Directed to judgments, Directed to any
or the protection of labor final orders or tribunal, board, or
c. The decision or resolution is a nullity resolutions of officer exercising
d. Need for relief is extremely urgent and certiorari is COMELEC and COA judicial or quasi-judicial
the only adequate remedy [Sec. 1] functions [Sec. 1]
[ABS-CBN v. COMELEC, G.R. No. 133486 (2000)] Filed within 30 days Filed within 60 days
from notice of the from notice of the
Procedure judgment [Sec 3] judgment [Sec. 4]
Filing of a verified petition [Sec. 5, Rule 64] with
payment of docket and lawful fees and deposit
P500.00 for costs [Sec. 4, Rule 64]

Action on the petition

The SC may dismiss the petition on the following

grounds:
(a) Failure to comply with the form and content
requirements in Sec. 5 [Sec. 5, Rule 64]
(b) Insufficiency in form and substance
(c) Filed manifestly for delay, or
(d) Questions raised are too unsubstantial to
warrant proceedings
[Sec. 6, Rule 64]

If SC finds the petition sufficient in form and

substance, it shall order respondents to file their
comments on the petition within 10 days from
notice [Sec. 6, Rule 64]

Filing of comments [Sec. 7, Rule 64]

Submission for decision upon the filing of the
comments on the petition, or of such other
pleadings or papers as may be required or allowed,
or the expiration of the period to do so, unless the
Court sets the case for oral argument, or requires
the parties to submit memoranda [Sec. 9, Rule 64]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

E. Certiorari, Prohibition,
Mandamus
1. Definitions and Distinctions
Certiorari is a writ
a. emanating from the proper court directed against
any tribunal, board or officer exercising judicial
or quasi-judicial functions, the purpose of which
is to correct errors of jurisdiction - i.e. without or
in excess of jurisdiction, or with grave abuse of
discretion amounting to the same [Sec. 1, Rule
65]
b. issued by a superior court to an inferior court of
record, or other tribunal or officer, exercising a
judicial function, requiring the certification and
return to the former of some proceeding then
pending, or the record and proceedings in some
cause already terminated, in cases where the
procedure is not according to the course of the
common law [Pahilia-Garrido v. Tortogo, G.R. No.
156358 (2011)]
Prohibition is a writ issued by the proper court and
directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, commanding the
respondent to desist from further proceedings in the
action or matter specified therein [Sec. 2, Rule 65]
Mandamus is a writ to compel a tribunal,
corporation, board, officer or person to do the act
required to be done to protect the rights of the
petitioner
a. When the respondent unlawfully
1. Neglects the performance of an act which
the law specifically enjoins as a duty resulting
from an office, trust, or station, or
2. Excludes another from the use and
enjoyment of a right or office to which such
other is entitled, and
b. There is no other plain, speedy and adequate
remedy in the ordinary course of law
[Sec. 3, Rule 65]

Prohibition [Sec. 2, Rule

Certiorari [Sec. 1, Rule 65] Mandamus [Sec. 3, Rule 65]
65]
Any tribunal, corporation,
Any tribunal, board or officer board, officer or person,
Any tribunal, corporation, board, officer or
exercising judicial or quasi- whether exercising judicial,
person
judicial functions quasi-judicial or ministerial
functions
a. Unlawfully (1) Neglects the
performance of an act which the law
specifically enjoins as a duty resulting
a. Without or in excess of its or his jurisdiction, or with
from an office, trust, or station, or
grave abuse of discretion amounting to lack or excess
(2) Excludes another from the use
of jurisdiction, and
and enjoyment of a right or office to
b. There is no appeal or any other plain, speedy, and
which such other is entitled, and
adequate remedy in the ordinary course of law
b. There is no other plain, speedy and
adequate remedy in the ordinary
course of law
Praying that judgment be
Praying that judgment be rendered Praying that judgment be rendered
rendered (a) commanding the commanding the respondent, immediately or
(a) annulling or modifying the respondent to desist from at some other time to be specified by the
proceedings of such tribunal, further proceedings in the court, (a) to do the act required to be done to
board or officer, and action or matter specified protect the rights of the petitioner, and (b) to
(b) granting such incidental therein, or pay the damages sustained by the petitioner
reliefs as law and justice may (b) otherwise granting such by reason of the wrongful acts of the
require incidental reliefs as law and respondent.
justice may require.

Page 186 of 481

U.P. LAW BOC CIVIL PROCEDURE
a. Certiorari Distinguished from
Appeal by Certiorari
Certiorari as a mode Certiorari as a special
of appeal [Rule 45] civil action [Rule 65]
A continuation of the
An original action and
appellate process over
not a mode of appeal
the original case
May be directed against
an interlocutory order
Seeks to review final of the court or where
judgment or final no appeal or plain or
orders speedy remedy is
available in the
ordinary course of law
Raises questions of
jurisdiction, i.e.
whether a tribunal,
board or officer
exercising judicial or
Raises only questions quasi-judicial functions
of law has acted without
jurisdiction or in excess
of jurisdiction or with
grave abuse of
discretion amounting
to lack of jurisdiction
Filed not later than 60
days from notice of
Filed within 15 days
judgment, order, or
from notice of
resolution sought to be
judgment or final order
assailed. In case a
appealed from, or of
motion for
the denial of
reconsideration or new
petitioner’s motion for
trial is timely filed, the
reconsideration or new
60-day period is
trial.
counted from notice of
said denial.
Extension of 30 days Extension granted only
may be granted for under exceptional cases
justifiable reasons. (infra).
Motion for
Does not require a
reconsideration is a
prior motion for
condition precedent,
reconsideration
subject to exceptions
Does not stay the
judgment or order
Stays the judgment
subject of the petition,
appealed from
unless enjoined or
restrained
Parties are the original The tribunal, board, or
parties with the officer, exercising
Page 187 of 481
REMEDIAL LAW
Certiorari as a mode Certiorari as a special
of appeal [Rule 45] civil action [Rule 65]
appealing party as the judicial or quasi-judicial
petitioner and the functions is impleaded
adverse party as the as respondent
respondent, without
impleading the lower
court or its judge
If the order is sufficient
in form and substance,
the RTC shall:
1. order respondents to
Review by the SC is
comment, then
discretionary and will
2. (a) hear the case or
be granted only when
(b) require the parties
there are special or
to file memoranda.
important reasons
[Rule 45, Sec. 6]
But the SC/CA may
require a comment
before giving the
petition due course.
[1 Regalado 612, 2010 Ed.]
Note: The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive. The
antithetic character of appeal and certiorari has been
generally recognized and observed save only on those
rare instances when appeal is satisfactorily shown to
be an inadequate remedy. Thus, a petitioner must
show valid reasons why the issues raised in his
petition for certiorari could not have been raised on
appeal [Villamar-Sandoval v. Cailipan, G.R. No. 200727
(2013)]
b. Prohibition and Mandamus
Distinguished from Injunction
Injunction Prohibition
Ordinary civil action Special civil action
Directed to the court
Directed only to the
itself, commanding it to
party litigants, without
cease from the exercise
in any manner
of a jurisdiction to
interfering with the
which it has no legal
court
claim
It is based on the
ground that the court
Does not involve the against whom the writ
jurisdiction of the court is sought had acted
without or in excess of
jurisdiction
Main action or
Main action
provisional remedy
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

The duty must be enjoined by law; hence, a

Injunction Mandamus contractual duty cannot be enforced by mandamus
Ordinary civil action Special civil action [Province of Pangasinan v. Reparations Commission,
Directed against a G.R. No. L-27448 (1977)]
Directed against a b. Respondent must be exercising ministerial duty
tribunal, corporation,
litigant [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509
board, or officer
Purpose is to either (2006)]
Purpose is for the However, mandamus “will lie to compel discharge
refrain the defendant
tribunal, corporation, of the discretionary duty itself but not to control
from performing an act
board, or officer, to the discretion to be exercised. In other words, a
or to perform not
perform a ministerial mandamus can issue to require action, but not
necessarily a legal and
and legal duty specific action.” [Association of Small Landowners in
ministerial duty
the Philippines, Inc. v. Sec. of Agrarian Reform, G.R.
No. 78742 (1989)]
2. Requisites c. There is no other plain, speedy, and adequate
remedy in the ordinary course of law [Sec. 3, Rule
Certiorari 65].
a. Respondent is exercising judicial or quasi- judicial
function; Discretionary v. ministerial act
b. Respondent acted without or in excess of its Discretionary act Ministerial act
jurisdiction or acted with grave abuse of One which an officer or
discretion amounting to lack of jurisdiction; and tribunal performs in a
c. There must be no appeal or no other plain, The law imposes a given state of facts, in a
speedy, and adequate remedy duty upon a public prescribed manner, in
[Sec. 1, Rule 65; Barbers v. COMELEC, G.R. No. officer and gives obedience to the mandate
165691 (2005)] him the right to of a legal authority,
decide how or when without regard to or the
Prohibition the duty shall be exercise of his own
a. Respondent is exercising judicial or quasi- judicial performed judgment upon the
function; propriety or impropriety of
b. Respondent acted without or in excess of its the act done
jurisdiction or acted with grave abuse of [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509
discretion amounting to lack of jurisdiction; and (2006)]
c. There must be no appeal or no other plain,
speedy, and adequate remedy Note: The common requisite among certiorari,
[Sec. 2, Rule 65; Barbers v. COMELEC, G.R. No. prohibition, and mandamus is that there is no other
165691 (2005)] plain, speedy, or adequate remedy in the ordinary
course of law [Secs. 1, 2, 3, Rule 65]
Mandamus
a. Respondent unlawfully Independent action
1. neglects the performance of an act which the An original action for Certiorari, Prohibition, or
law specifically enjoins as a duty resulting Mandamus is an independent action, and as such, it:
from an office, trust, or station, or a. does not interrupt the course of the principal
2. excludes another from the use and action
enjoyment of a right or office to which such b. does not affect the running of reglementary
other is entitled, and periods involved in the proceedings
b. There is no other plain, speedy and adequate c. does not stay the execution of the judgment
remedy in the ordinary course of law unless a TRO or a writ of preliminary injunction
[Sec. 3, Rule 65] has been issued
[Sec. 7, Rule 65]
Notes on mandamus
a. There must be a well-defined, clear legal right or
duty [Valmonte v. Belmonte, G.R. No. 74930
(1989)]

Page 188 of 481

U.P. LAW BOC CIVIL PROCEDURE
3. When petition for Certiorari,
Prohibition, and Mandamus
is proper
Certiorari
Certiorari is a corrective remedy used to correct errors
of jurisdiction, not errors of judgment [Republic v.
Sandiganbayan (Second Division) and Benedicto, G.R. No.
129406 (2006)]
Questions of fact cannot be raised in an original
action for certiorari. Only established or admitted facts
may be considered [Suarez v. NLRC, G.R. No. 124723
(1998)]
General rule: Where an appeal is available, certiorari will
not lie [Jose v. Zulueta, G.R. No. L-16598 (1961)]
Exceptions:
a. Where appeal does not constitute a speedy and
adequate remedy
b. Where orders were also issued either in excess of
or without jurisdiction
c. For certain special considerations, as public
welfare or public policy
d. Where, in criminal actions, the court rejects the
rebuttal evidence for the prosecution as, in the
case of acquittal, there could be no remedy
e. Where the order is a patent nullity; and
f. Where the decision in the certiorari case will avoid
future litigations
[Villarica Pawnshop v. Gernale, G.R. No. 163344 (2009)]
Prohibition
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 a writ of preliminary
injuction [1 Regalado 801, 2010 Ed.]
The office of prohibition is not to correct errors of
judgment but to prevent or restrain usurpation by
inferior tribunals and to compel them to observe the
limitation of their jurisdictions [3 Herrera 321, 2006
Ed.]
General rule: Prohibition, as a rule, does NOT lie to
restrain an act which is already fait accompli (one that
has already been done) [Cabañero and Mangornong v.
Torres, G.R. No. L-43352 (1935)]
Page 189 of 481
REMEDIAL LAW
Exception: A writ of prohibition will lie to prevent the
unlawful creation of a new province by those in the
corridors of power who could avoid judicial
intervention and review by merely speedily and
stealthily completing the commission of such
illegality.[Tan v. COMELEC, G.R. No. 73155 (1986)]
Mandamus
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 cannot be
used as a writ of error or other mode of direct review.
[Lamb v. Phipps, G.R. No. L-7806 (1912)]
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 willful refusal to perform a
required duty [1 Regalado 804, 2010 Ed.]
Grounds:
When any tribunal, corporation, board, officer or
person unlawfully
a. NEGLECTS the performance of an act which
the law specifically enjoins as a duty resulting
from an office, trust, or station, or
b. EXCLUDES another from the use and
enjoyment of a right or office to which such other
is entitled
[Sec. 3, Rule 65]
Mandamus is the proper remedy when the respondent
unlawfully excludes the petitioner from a public
office, position or franchise to which the latter is
entitled without usurping, intruding into or unlawfully
holding the office. However, if the respondent claims
any right to the office and usurps, intrudes into or
unlawfully holds it against the petitioner, quo warranto
is the proper remedy [Sec. 1, Rule 66]
4. Injunctive Relief
General rule
a. The petition shall not interrupt the course of the
principal case, unless a TRO or a writ of
preliminary injunction has been issued, enjoining
the public respondent from further proceeding
with the case
b. The public respondent shall proceed with the
principal case WITHIN 10 DAYS from filing of
the petition for certiorari with the higher court,
absent a TRO or preliminary injunction, or upon
its expiration.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c. Failure of the public respondent to proceed with i. Where the proceeding was ex-parte or in which
the principal case may be a ground for an the petitioner had no opportunity to object;
administrative charge. j. Where the issue raised is one purely of law or
[Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-SC] where public interest is involved
k. Where the subject matter of the action is
Exceptions: perishable
a. When a TRO or a writ of preliminary [Ombudsman v. Laja, G.R. No. 169241 (2006)]
injunction has been is issued, enjoining the
public respondent from further proceeding with 6. Reliefs Petitioner is Entitled
the case [Sec. 7, Rule 65, as amended by A.M. No.
07-7-12-SC] to
b. Judicial courtesy: Even if there is no injunction
issued, the lower court should defer to the higher Reliefs
court where there is a strong probability that the a. Court may issue orders expediting the
issues before the higher court would be rendered proceedings, and it may also grant a temporary
moot and moribund as a result of the restraining order or a writ of preliminary
continuation of proceedings in the court of origin injunction for the preservation of the rights of
[Republic v. Sandiganbayan, G.R. No. 166859 the parties [Sec. 7, Rule 65]
(2006)] b. Incidental reliefs as law and justice may require
[Secs. 1-2, Rule 65]
5. Exceptions to Filing of c. Other reliefs prayed to which the petitioner is
entitled [Sec. 8, Rule 65]
Motion for Reconsideration
before Filing Petition Prayers
a. Certiorari
1. That the judgment be rendered annulling or
General rule: An MR is an essential precondition for the
modifying the proceedings of such tribunal,
filing of a petition for certiorari, prohibition, or
board or officer; and
mandamus. It is a plain, speedy, and adequate remedy.
2. Granting such incidental reliefs as law and
This is to enable the lower court, in the first instance,
justice may require [Sec. 1, Rule 65]
to pass upon and correct its mistakes without the
b. Prohibition
intervention of the higher court [Teng v. Pahagac, G.R.
1. That the judgment be rendered commanding
No. 169704 (2010)]
the respondent to desist from further
proceedings in the action or matter specified;
Exceptions:
or
a. An MR may be dispensed with in some cases
2. Otherwise granting such incidental reliefs as
b. Where the order is a patent nullity
law and justice may require [Sec. 2, Rule 65,
c. Where questions raised in the certiorari proceeding
Sec. 2]
have been duly raised and passed upon by the
c. Mandamus
lower court, or are the same as those raised and
1. That the judgment be rendered commanding
passed upon in the lower court
the respondent, immediately or at some
d. Where there is urgent necessity for the resolution
other time to be specified by the court, to do
of the question and any further delay would
the act required to be done to protect the
prejudice the interests of the Government
rights of the petitioner; and
e. Where under the circumstances, an MR would be
2. To pay the damages sustained by the
useless, as where the court had already indicated
petitioner by reason of the wrongful acts of
that it would deny any MR of its questioned order
the respondent [Sec. 3, Rule 65]
f. Where the petitioner was deprived of due process
and there is extreme urgency for relief
g. Where, in a criminal case, relief from an order of
arrest is urgent and granting such relief by trial
court is improbable;
h. Where the proceedings in the lower court are a
nullity for lack of due process;

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

7. Actions/Omissions of Where to file

Subject to the doctrine
MTC/RTC in Election of hierarchy of courts
Cases and only when
compelling reasons
Supreme Court exist for not filing the
In election cases involving an act or omission of a
same with the lower
municipal or RTC, the petition [for certiorari,
courts [Uy v. Contreras,
prohibition, or mandamus] shall be filed
G.R. No. 111416-17
EXCLUSIVELY with the COMELEC, in aid of its
(1994)]
appellate jurisdiction [Sec. 4, par. 3, Rule 65 as
If the petition relates to
amended by A.M. No. 07-7-12- SC (2007)]
an act or an omission
of an MTC,
8. When and Where to File corporation, board,
RTC
Petition officer or person [Sec.
4, Rule 65, as amended
by A.M. No. 07-7-12-
Petition and contents
SC]
A verified petition is
If the petition involves
a. Filed in the proper court
an act or an omission
1. Alleging the facts with certainty
of a quasi-judicial
2. Praying for the proper judgment; and
agency, unless
b. Accompanied by: Court of Appeals only
otherwise provided by
1. A certified true copy of the judgment, order,
law or rules [Sec. 4,
resolution subject thereof
Rule 65, as amended by
2. Copies of all pleadings and relevant and
A.M. No. 07-7-12-SC]
pertinent documents
Whether or not in aid
3. A sworn certification of non-forum
Court of Appeals or of appellate jurisdiction
shopping
the Sandiganbayan [Sec. 4, A.M. No. 07-7-
[Secs. 1-3, Rule 65]
12-SC]
Acquisition of jurisdiction In election cases
a. If action is filed with the RTC: Follow the rules involving an act or an
Commission on
on ordinary civil actions. omission of an MTC or
Elections
Jurisdiction is acquired by: RTC [Sec. 4, A.M. No.
1. Service of summons to respondent or 07-7-12-SC]
2. By his voluntary appearance in court
b. If action is filed with the SC/CA: Court Rule on extension of time for filing
acquires jurisdiction over respondents by: service
of its orders upon respondents indicating its: General rule: The 60-day period within which to file a
1. Initial action on the petition; or petition for certiorari under Rule 65 is non-extendible.
2. By their voluntary submission to such Exception: Under the following exceptional
jurisdiction circumstances, the Court may extend the period
[Sec. 4, Rule 65] according to its sound discretion:
a. Most persuasive and weighty reasons;
PROCEDURE b. To relieve a litigant from an injustice not
commensurate with his failure to comply with the
When to file prescribed procedure;
Not later than 60 days from notice of judgment/ c. Good faith of the defaulting party by immediately
order/ resolution paying within a reasonable time from the time of
the default;
If a motion for reconsideration/ new trial is filed, the d. The existence of special or compelling
60-day period shall be counted from notice of denial circumstances;
of motion [Sec. 4, Rule 65] e. The merits of the case;

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U.P. LAW BOC CIVIL PROCEDURE
A cause not entirely attributable to the fault or
f.
negligence of the party favored by the suspension
of the rules;
g. A lack of any showing that the review sought is
merely frivolous and dilatory;
h. The other party will not be unjustly prejudiced
thereby;
i. Fraud, accident, mistake or excusable negligence
without appellant’s fault;
j. Peculiar legal and equitable circumstances
attendant to each case;
k. In the name of substantial justice and fair play;
l. Importance of the issues involved; and
m. Exercise of sound discretion by the judge guided
by all the attendant circumstances
[Thenamaris Philippines, Inc. v. CA, G.R. No. 191215
(2014)]
9. Effects of Filing of an
Unmeritorious Petition
a. The court may dismiss the petition if it finds the
same patently without merit or prosecuted
manifestly for delay, or if the questions raised
therein are too unsubstantial to require
consideration.
b. In such event, the court may award in favor of
the respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules
139 and 139-B.
c. The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary measures on erring
lawyers for patently dilatory and unmeritorious
petitioner for certiorari.
[Sec. 8, Rule 65]
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REMEDIAL LAW
F. Quo Warranto
A quo warranto proceeding is the proper legal
remedy to determine the right or title to the contested
public office and to oust the holder from its
enjoyment [Defensor-Santiago v. Guingona, Jr., G.R. No.
134577 (1998)]
Literally means “by what authority”, it is a prerogative
writ by which the court can call upon any person to
show by what warrant he holds a public office or
exercises a public franchise [Tecson v. COMELEC,
G.R. No. 161434 (2004)]
Subject matter
An action for the usurpation of a public office,
position or franchise [Sec. 1, Rule 66]
An act or omission committed prior to or at the time
of appointment or election relating to an officials
qualifications to hold office as to render such
appointment or election invalid is properly the subject
of a quo warranto petition, provided that the requisites
for the commencement thereof are present [Republic v.
Sereno, G.R. No. 237428 (2018)]
Against whom may the action be brought
1. A PERSON who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position, or franchise
2. A PUBLIC OFFICER who does or suffers an
act, which, by the provision of law, constitutes a
ground for forfeiture of office; or
3. An ASSOCIATION which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to act
[Sec. 1, Rule 66]
Note: Quo warranto against corporations now fall under
the jurisdiction of the RTC acting as special
commercial courts [Sec. 5.2, R.A. 8799]. Quo warranto
petitions will only lie against de facto corporations.
Sec. 2, Article XI of the Constitution allows the
institution of a quo warranto action against an
impeachable officer. After all, a quo warranto petition
is predicated on grounds distinct from those of
impeachment. The former questions the validity of a
public officer’s appointment while the latter indicts
him for so-called impeachable offenses without
questioning his title to the office he holds [Republic v.
Sereno, G.R. No. 237428 (2018)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

When not proper

1. Against persons who usurp an office in a
private corporation [Calleja v. Panday, G.R.
No. 168696 (2006)]
2. If the dispute is as to the counting of votes
or on matters connected with the conduct of
the election, a quo warranto is not the proper
remedy but an election protest [Cesar v.
Garrido, G.R. No. 30705 (1929)]
3. Acts or omissions, even if it relates to the
qualification of integrity, being a continuing
requirement but nonetheless committed
during the incumbency of a validly appointed
and/or validly elected official, cannot be the
subject of a quo warranto proceeding, but of
something else, which may either be
impeachment if the public official concerned
is impeachable and the act or omission
constitutes an impeachable offense, or
disciplinary, administrative or criminal
action, if otherwise [Republic v. Sereno, G.R.
No. 237428 (2018)]
Jurisdiction
1. Original jurisdiction to issue the writ of quo
warranto is vested in the SC, CA, and RTC
[Sec. 5(1), Art. VIII, Constitution; Secs. 9
and 21, B.P. 129]
2. Quo warranto actions against corporations (as
opposed to associations without authority)
with regard to franchises and rights granted
to them, as well as the dissolution of
corporations now fall under the jurisdiction
of the RTC [Sec. 5.2, RA No. 8799 in relation
to P.D. 902-A; Unilongo v. CA, G.R. No.
123910 (1999)]
3. The usurpation of an office in a private
corporation falls under the jurisdiction of the
RTC under Sec. 5.2, R.A. 8799 in relation to
P.D. 902-A; Calleja v. Panday, G.R. No.
168696 (2006)]

1. Distinguished from Quo Warranto in the Omnibus Election Code

Quo warranto in electoral proceedings [Sec. 253,
Quo warranto under Rule 66
Omnibus Election Code]
Filed by whom
a. Solicitor General or public prosecutor
1. when directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe that
any case specified in Sec. 1, Rule 66 can be
established by proof, must commence such
Any voter
action [Sec. 2, Rule 66]; or
2. at the request and upon the relation of another
person [Sec. 3, Rule 66]; or
b. Person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another in his own name [Sec. 5, Rule 66]
Where filed
Venue
a. Commenced by Solicitor General:
1. RTC Manila,
2. CA, or Jurisdiction
3. SC a. If against the election of a Member of
b. Otherwise: Congress, regional, provincial or city officer:
1. RTC with jurisdiction over the territorial area COMELEC
where respondent or any of the respondents b. If against a municipal or barangay officer:
resides, appropriate RTC or MTC, respectively.
2. CA or
3. SC
[Sec. 7, Rule 66]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Quo warranto in electoral proceedings [Sec. 253,

Quo warranto under Rule 66
Omnibus Election Code]

Period for filing

Within one year after the cause of such ouster, or the
right of the petitioner to hold such office or position, Within 10 days after proclamation of results
arose [Sec. 11, Rule 66]
Issue
Issue is legality of the occupancy of the office by virtue
of a legal appointment Issue is eligibility of the person elected [Riano 672]
[Riano 672]
Grounds (against occupants of public offices)
a. A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise; or
a. Ineligibility, or
b. A public officer who does or suffers an act
b. Disloyalty to the Republic of the Philippines
which, by the provision of law, constitutes a
ground for the forfeiture of his office
[Sec. 1, Rule 66]
Effect
When the respondent is found guilty of usurping,
The occupant who was declared ineligible or disloyal
intruding into, or unlawfully holding or exercising a
will be unseated but the petitioner may be declared the
public office, position or franchise, judgment shall be
rightful occupant of the office if the respondent is
rendered that such respondent be ousted and altogether
disqualified and the petitioner received the second
excluded therefrom, and that the petitioner or relator,
number of votes [Maquiling v. COMELEC, G.R. No.
as the case may be, recover his costs
195649 (2013)]
[Sec. 9, Rule 66]

Note: Thus, Rule 66 applies to quo warranto IN

GENERAL, while election law governs quo warranto
against SPECIFIED elective officials.
Who may commence the action
a. Solicitor General;
b. Public prosecutor
c. Individual claiming to be entitled to the office or
position usurped or unlawfully held or exercised
by another
[Sec. 5, Rule 66]
Note: By analogy with provisions of Sec. 5, it has been
held that a public utility may bring a quo warranto
action against another public utility which has
usurped the rights of the former granted under
franchise [Regalado 821, citing Cui v. Cui, G.R. No.
39773 (1934)]
2. When Government May
Commence an Action
against Individuals
The Solicitor General or a public prosecutor,
a. when directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe that any
case specified in Sec. 1, Rule 66 can be established
by proof, must commence such action [Sec. 2,
Rule 66]; or
b. with the permission of the court in which the
action is to be commenced, at the request and
upon the relation of another person; but in such
case the officer bringing it may first require an
indemnity for the expenses and costs of the
action in an amount approved by and to be
deposited in the court by the person at whose
request and upon whose relation the same is
brought [Sec. 3, Rule 66]

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U.P. LAW BOC CIVIL PROCEDURE
3. When an Individual May
Commence an Action
a. If he claims to be entitled to the office or position
usurped or unlawfully held or exercised by
another, he may bring the action in his own name
[Sec. 5, Rule 66]
b. He must aver and be able to show that he is
entitled to the office in dispute, otherwise the
action may be dismissed at any stage [General v.
Urro, G.R. No. 191560 (2011)]
c. A public utility may bring a quo warranto action
against another public utility which has usurped
the rights of the former granted under a franchise
[Cui v. Cui, G.R. No. 39773 (1934)]
Contents of quo warranto petition
The petition shall set forth
a. The name of the person who claims to be entitled
thereto, if any,
b. With an averment of his right to the same and
that the respondent is unlawfully in possession
thereof
[Sec. 6, Rule 66]
Where to file
a. It may be brought only in the SC, CA, or RTC
exercising jurisdiction over the territorial area
where respondent or any or the respondents
resides.
Note: The petition may be brought in the SB in
certain cases when in aid of its appellate
jurisdiction [Sec. 4, P.D. 1606, as amended by
R.A. 10660; Riano 670]
b. When the Solicitor General commences the
action, it may be brought in the RTC in the City
of Manila, CA, or SC [Sec. 7, Rule 66]
Period to file
General rule:An action for quo warranto must be
commenced within 1 year after the cause of such
ouster, or the right of the petitioner to hold such
office or position, arose [Sec. 11, Rule 66]
The failure to institute the action within the
reglementary period constitutes more than a sufficient
basis for its dismissal [Alejo v. Marquez, G.R. No. L-
29053 (1971)], since it is not proper that the title to a
public office be subjected to continued uncertainty
[Villegas v. De la Cruz, G.R. No. L-23752 (1965)]
Page 195 of 481
REMEDIAL LAW
Exception: The prescriptive period does not apply if
the failure to file the action can be attributed to acts
of a responsible government officer and not of the
dismissed employee [Romualdez-Yap v. CSC, et. al., GR
No. 104226 (1993)]
The pendency of administrative remedies does not
operate to suspend the period of 1 year within which
a petition for quo warranto should be filed [Torres v.
Quintos, G.R. No. L-3304 (1951)]
Reduction of period
The court may reduce the period provided by the
ROC for filing pleadings and for all other proceedings
in the action in order to secure the most expeditious
determination of the matters involved therein
consistent with the rights of the parties. Such action
may be given precedence over any other civil matter
pending in the court [Sec. 8, Rule 66]
4. Judgment in Quo Warranto
Action
When respondent is found guilty, judgment shall
be rendered that
a. Such respondent is ousted and altogether
excluded therefrom; and
b. Petitioner or relator, as the case may be, recover
his costs; and
Such further judgment may be rendered determining
the respective rights in and to the public office,
position, or franchise of all parties to the action as
justice requires
[Sec. 9, Rule 66]
5. Rights of a Person Adjudged
Entitled to Public Office
a. Execution of the office after taking the oath of
office and executing any official bond required by
the law
b. Immediately thereafter demand of the
respondent all the books and papers in the
respondent’s custody or control appertaining to
the office to which judgment relates
If the respondent refuses or neglects to deliver
any book or paper pursuant to such demand, he
may be punished for contempt as having
disobeyed a lawful order of the court.
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Bring action against the respondent to recover

c.
the damages sustained by him by reason of the
G. Expropriation
usurpation
The power of eminent domain is an inherent and
Must be commenced within one year after entry indispensable power of the State. Also called the
of judgment establishing petitioner’s right to the power of expropriation, it is described as the highest
office in question and most exact idea of property remaining in the
[Sec. 11, Rule 66] government that may be acquired for some public
purpose through a method in the nature of a
compulsory sale to the State [Manapat v. CA, G.R. No.
110478 (2007)]

Requisites
1. The property taken must be private property
2. There must be genuine necessity to take the
private property
3. The taking must be for public use
4. There must be payment of just compensation,
and
5. The taking must comply with due process of law
[Manapat v. CA, G.R. No. 110478 (2007)]

There is taking when the expropriator enters private

property not only for a momentary period but for a
more permanent duration for the purpose of devoting
the property to a public use in such a manner as to
oust the owner and deprive him of all the beneficial
enjoyment thereof [Republic v. Sarabia, G.R. No.
157847 (2005)]

Public use means public usefulness, utility, or

advantage, or what is productive of the general
benefit, so that any appropriation of private property
by the State under its right of eminent domain, for
purposes of great advantage to the community, is a
taking for public use [Reyes v. National Housing
Authority, G.R. No.147511 (2003)]

1. Matters to Allege in
Complaint for Expropriation
Verified complaint shall
a. State with certainty the right and purpose of
expropriation,
b. Describe the real or personal property sought to
be expropriated, and
c. Join as defendants all persons owning or claiming
to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the
separate interest of each defendant.

If the title to any property sought to be expropriated

appears to be in the Republic of the Philippines,

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U.P. LAW BOC CIVIL PROCEDURE
although occupied by private individuals, or if the title
is otherwise obscure or doubtful so that the plaintiff
cannot with accuracy or certainty specify who are the
real owners, averment to that effect shall be made in
the complaint. [Sec. 1, Rule 67]
Note: Where the right of the plaintiff to expropriate is
conferred by law, the complaint does not have to state
with certainty the right of expropriation [Manila
Railroad Co. v. Mitchel, G.R. No. L-19280 (1923)]
Where to file
RTC where property is located. MTC has no
jurisdiction since an action for expropriation is
incapable of pecuniary estimation [Barangay San Roque
v. Heirs of Pastor, G.R. No. 138816 (2000)]
The commencement of the complaint for
expropriation is necessary only when the owner does
not agree to sell his property, or if he is willing to sell
but does not agree with the price offered [Riano]
2. Two Stages in Every Action
for Expropriation
Expropriation undergoes two (2) phases. The first
phase determines the propriety of the action. The
second phase determines the compensation to be paid
to the landowner [National Power Corporation v. Posada,
G.R. No. 191945 (2015)]
First stage: propriety of expropriation:
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
involved in the suit
b. Ends with an order, if not of dismissal of the
action, "of condemnation declaring that the
plaintiff has a lawful right to take the property
sought to be condemned, for the public use or
purpose described in the complaint, upon the
payment of just compensation to be determined
as of the date of the filing of the complaint."
1. An order of dismissal, would be a final one,
since it finally disposes of the action and
leaves nothing more to be done by the court
on the merits.
2. So, too, would an order of condemnation be
a final one, for thereafter, as the ROC
expressly state, in the proceedings before the
Trial Court, "no objection to the exercise of
the right of condemnation (or the propriety
thereof) shall be filed or heard.” [National
Page 197 of 481
REMEDIAL LAW
Power Corporation v. Posada, G.R. No. 191945
(2015)]
Second Stage: just compensation
a. Determination by the Court of "the just
compensation for the property sought to be
taken” with the assistance of not more than three
(3) commissioners.
b. The order fixing the just compensation on the
basis of the evidence before, and findings of, the
commissioners would be final, too. It would
finally dispose of the second stage of the suit, and
leave nothing more to be done by the Court
regarding the issue. [National Power Corporation v.
Posada, G.R. No. 191945 (2015)]
Note: A final order sustaining the right to expropriate
the property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the
court from determining the just compensation to be
paid [Sec. 4, Rule 67]
3. When Plaintiff can
Immediately Enter into
Possession of Real Property,
in Relation to R.A. 8974
The plaintiff shall have the right to take or enter upon
possession of the real property upon:
a. Filing of complaint or at any time thereafter, and
after due notice to defendant and
b. Making preliminary deposit [Sec. 2, Rule 67]
Preliminary deposit
If real property:
an amount equivalent to the
assessed value of the property for
purposes of taxation
Value
If personal property: its value shall
be provisionally ascertained and the
amount to be deposited shall be
promptly fixed by the court
With the authorized government
Where to
depositary to be held by such bank
deposit
subject to the orders of the court
General rule: In money.
Form of Exception: In lieu of money, the
deposit court authorizes the deposit of a
certificate of deposit of a
government bank of the Republic of
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

the Philippines payable on demand
to the authorized government
depositary
The court shall order the sheriff or
other proper officer to forthwith
After
place the plaintiff in possession of
deposit is
the property involved and promptly
made
submit a report thereof to the court
with service of copies to the parties.
[Sec. 2, Rule 67]
Note: The preliminary deposit is only necessary if the
plaintiff desires entry on the land upon its institution
of the action; otherwise, it could always wait until the
order of expropriation is issued before it enters upon
the land [1 Regalado 831, 2010 Ed.]
Once the preliminary deposit has been made, the
expropriator is entitled to a writ of possession as a
matter of right, and the issuance of said writ becomes
ministerial on the part of the trial court [Biglang-Awa
v. Bacalla, G.R. No. 139927 (2000)]
Republic Act No. 10752 (2016)
a. An Act Facilitating the Acquisition of Right-of-
Way Site or Location for National Government
Infrastructure Projects
b. Short title: “The Right-of-Way Act” [Sec. 1]
c. Repealed R.A. 8974 [Sec. 16]

Sec. 2, Rule 67 R.A. 10752

Expropriation in general, for both
Scope
real and personal properties
Government
For writ of possession to
is required to make a preliminary
issue
deposit
Amount of payment Equal to the assessed value of real
or deposit property for purposes of taxation
National government infrastructure
projects, as defined by Sec. 3 [Sec. 2]
Upon the filing of the complaint or at any
time thereafter, and after due notice to the
defendant, the implementing agency shall
immediately deposit to the court in favor
of the owner the amount equivalent to the
sum stated below [Sec. 6(a)]
a. 100% of the value of the land based
on the current relevant zonal
valuation of the BIR issued not more
than 3 years prior to the filing of the
expropriation complaint
b. The replacement cost at current
market value of the improvements
and structures as determined by:
1. The implementing agency
2. A government financial
institution with adequate
experience in property appraisal;
and
3. An independent property
appraiser accredited by the BSP.
c. The current market value of crops
and trees located within the property
as determined by a government
financial institution or an
independent property appraiser to be
selected as indicated in Sec. 5(a) [Sec.
6(a)]

In provinces, cities, municipalities, and

other areas where there is no zonal
valuation, or where the current zonal
valuation has been in force for more than
3 years, the BIR is mandated, within the
period of 60 days from the date of filing

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

of the expropriation case, to conduct a

zonal valuation of the area, based on the
land classification done by the city or
municipal assessor [Sec. 6(c)]

Applicable special laws: of 60 days from the date of filing of the expropriation
a. R.A. 10752 specifically governs expropriation for case, to conduct a zonal valuation of the area, based
national government infrastructure projects on the land classification done by the city or municipal
b. Sec. 19, LGC governs the exercise of the power assessor [Sec. 6(c)]
of eminent domain by LGUs through an enabling
ordinance 5. Defenses and Objections
4. New System of Immediate With objection to
No objection to or
Payment of Initial Just defense against taking
or defense against
taking
Compensation What to file and serve
Notice of appearance and a Answer
Upon the filing of the complaint or at any time manifestation
thereafter, and after due notice to the defendant, the Period to file
implementing agency shall immediately deposit to the Within the time stated in the summons
court in favor of the owner the amount equivalent to Contents
the sum of a. Specifically
a. 100% of the value of the land based on the designate or
current relevant zonal valuation of the BIR issued identify the
not more than 3 years prior to the filing of the property in
expropriation complaint a. Manifestation to the which he
b. The replacement cost at current market value of effect that he has no claims to have
the improvements and structures as determined objection or defense an interest,
by b. Specifically b. State the nature
1. The implementing agency designating/identifying and extent of
2. A government financial institution with the property in which the interest
adequate experience in property appraisal, he claims to be claimed, and
and interested c. Adduce all his
3. An independent property appraiser objections and
accredited by the BSP. defenses to the
c. The current market value of crops and trees taking of his
located within the property as determined by a property
government financial institution or an Prohibited
independent property appraiser to be selected as Counterclaim,
indicated in Sec. 5(a) cross- claim or
third party
Upon compliance with the guidelines complaint in the
abovementioned, the court shall immediately issue to answer or any
the implementing agency an order to take possession subsequent
of the property and start the implementation of the pleading
project. [Sec. 3, Rule 67]
[Sec. 6, R.A. 10752]
Omnibus motion rule
In provinces, cities, municipalities, and other areas A motion attacking a pleading, order, judgment or
where there is no zonal valuation, or where the proceeding shall include all objections then available,
current zonal valuation has been in force for more and all objections not so included shall be deemed
than 3 years, the BIR is mandated, within the period waived [Sec. 8, Rule 15]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

[Robern Development Corp. v. Quitain, G.R. No. 135042

A defendant waives all defenses and objections not so (1999)]
alleged, but the court, in the interest of justice, may
permit amendments to the answer not to be made Note: Multiple appeals are permitted in expropriation.
later than ten (10) days from filing thereof [Sec. 3, An appeal may be taken from the order authorizing
Rule 67] the expropriation and thereafter, another appeal on
the judgment on the just compensation. Thus, the
Effect of failure to file answer reglementary period to appeal shall be 30 days and a
The failure to file an answer does not produce all the record on appeal shall be required for each of the
disastrous consequences of default in ordinary civil permissible appeals [Regalado 837]
actions, because the defendant may still present
evidence as to just compensation [Robern Development 7. Ascertainment of Just
Corp. v. Quitain, G.R. No. 135042 (1999)]
Compensation
6. Order of Expropriation
a. Upon the rendition of the order of expropriation,
the court shall appoint not more than 3
When issued
competent and disinterested persons as
a. If the objections to and the defenses against the
commissioners to ascertain and report to the
right of the plaintiff to expropriate the property
court the just compensation for the property
are overruled, or
sought to be taken.
b. When no party appears to defend as required by
b. The order of appointment shall designate the
this Rule
time and place of the first session of the hearing
[Sec. 3, Rule 67]
to be held by the commissioners and specify the
time within which their report shall be submitted
Contents of order
to the court.
Declaration that the plaintiff has a lawful right to take
c. Copies of the order shall be served on the parties.
the property sought to be expropriated, for the public
d. Objections to the appointment of any of the
use or purpose described in the complaint, upon the
commissioners shall be filed with the court
payment of just compensation to be determined as of
within 10 days from service, and shall be resolved
the date of the taking of the property or the filing of
within 30 days after all the commissioners shall
the complaint, whichever came first [Sec. 3, Rule 67]
have received copies of the objections.
[Sec. 5, Rule 67]
Remedy of defendant
a. A final order sustaining the right to expropriate
Just Compensation
the property may be appealed by any party
Just compensation is the full and fair equivalent of the
aggrieved thereby.
property taken from its owner by the expropriator.
b. Such appeal, however, shall not prevent the court
Just compensation means not only (1) the correct
from determining the just compensation to be
determination of the amount to be paid but also (2)
paid
the payment of the land within a reasonable time from
[Sec. 3, Rule 67]
its taking [Land Bank v. Obias, G.R. No. 184406
(2012)]
The order of condemnation is final. Hence, it is
appealable [Heirs of Alberto Suguitan v. City of
Market Value
Mandaluyong, G.R. No. 135087 (2000)]
It is the sum of money which a person desirous but
not compelled to buy, and an owner willing but not
Effects of the order
compelled to sell, would agree on as a price to be
The plaintiff shall not be permitted to dismiss or
given and received therefore [BPI v. CA, G.R. No.
discontinue the proceeding except on such terms as
160890 (2004)]
the court deems just and equitable [Sec. 4, Rule 67]
When market value should be fixed:
The order forecloses any further objections to the
a. If plaintiff takes possession before the institution
right to expropriate and to the public purpose of the
of proceedings: value is fixed as of TIME OF
expropriation, leaving the matter of just
TAKING; or
compensation as the only remaining substantial issue

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U.P. LAW BOC CIVIL PROCEDURE
b. If taking coincides with or is subsequent to the
commencement of proceedings: value is fixed as
of DATE OF FILING of the complaint.
[Republic v. Philippine National Bank, G.R. No. L-14158
(1961)]
8. Appointment of
Commissioners;
Commissioner’s report;
Court Action upon
Commissioner’s report
Qualifications
a. Competent; and
b. Disinterested [Sec. 5, Rule 67]
Proceedings by commissioners
a. Oath: Before entering upon the performance of
their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform
their duties as commissioners, which oath shall
be filed in court with the other proceedings in the
case.
b. Introduction of evidence: Evidence may be
introduced by either party before the
commissioners who are authorized to administer
oaths on hearings before them
[Sec. 6, Rule 67]
Duties of commissioners
a. Unless the parties consent to the contrary, 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,
after which either party may, by himself or
counsel, argue the case.
b. Assess the consequential damages to the property
not taken and deduct from such consequential
damages the consequential benefits to be derived
by the owner from the public use or purpose of
the property taken, the operation of its franchise
by the corporation or the carrying on of the
business of 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
[Sec. 6, Rule 67]
Consequential benefits are those that proximately
result from the remaining portion of the land [1
Regalado 843, 2010 Ed.]
Page 201 of 481
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Report by commissioners
a. The court may
1. Order the commissioners to report when any
particular portion of the real estate shall have
been passed upon by them, and
2. Render judgment upon such partial report,
and
3. Direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and may
from time to time so deal with such property
b. The commissioners shall make a full and accurate
report to the court of all their proceedings, and
such proceedings shall not be effectual until the
court shall have accepted their report and
rendered judgment in accordance with their
recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed
within 60 days from the date the commissioners
were notified of their appointment, which time
may be extended in the discretion of the court.
Upon the filing of such report, the clerk of the
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.
[Sec. 7, Rule 67]
Action upon commissioner’s report
a. Upon the expiration of the period of 10 days
referred to in Sec. 7, or
b. Even before the expiration of such period but
after all the interested parties have filed their
objections to the report or their statement of
agreement therewith,
the court may
1. After hearing, accept the report and render
judgment in accordance therewith, or
2. For cause shown, recommit the same to the
commissioners for further report of facts, or
3. Set aside the report and appoint new
commissioners, or
4. Accept the report in part and reject it in part;
and
the court may make such order or render such
judgment as shall secure to the
1. Plaintiff the property essential to the exercise
of his right of expropriation, and
2. Defendant just compensation for the
property so taken
[Sec. 8, Rule 67]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

State definitely
The appointment of commissioners to ascertain just a. By an adequate description, the particular
compensation for the property sought to be taken is property or interest therein expropriated, and
a mandatory requirement in expropriation cases b. The nature of the public use or purpose for
[Riano] which it is expropriated
[Sec. 13, Rule 67]
The trial with the aid of the commissioners is a
substantial right that may not be done away with When title to property vests
capriciously or for no reason at all. The absence of a. If personal property, upon payment of just
such trial or hearing constitutes a violation of the right compensation [Sec. 10, Rule 67]
to due process [NPC v. de la Cruz, G.R. No. 156093 b. If real property, upon
(2007)] 1. payment of just compensation; and
2. registration of property (by recording of the
9. Rights of Plaintiff upon judgment in the registry of deeds where the
property is situated)
Judgment and Payment [Sec. 13, Rule 67]

a. Upon payment by the plaintiff to the defendant

of the compensation fixed by the judgment, with
legal interest thereon from the taking of the
possession of the property, or
b. After tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the
right to
1. enter upon the property expropriated and to
appropriate it for the public use or purpose
defined in the judgment, or
2. retain it should he have taken immediate
possession thereof under the provisions of
Sec. 2, Rule 67
[Sec. 10, Rule 67]

If the defendant and his counsel

a. absent themselves from the court, or
b. decline to receive the amount tendered,
the same shall be ordered to be deposited in court and
such deposit shall have the same effect as actual
payment thereof to the defendant or the person
ultimately adjudged entitled thereto
[Sec. 10, Rule 67]

Effect of non-payment of just compensation

Non-payment of just compensation does not entitle
the private landowner to recover possession of the
expropriated lots. However, in cases where the
government failed to pay just compensation within 5
years from the finality of judgment in the
expropriation proceedings, the owners concerned
shall have the right to recover possession of their
property [Yujuico v. Atienza, G.R. No. 164282 (2005)]

10. Effect of Entry of Judgment

Contents of the judgment

Page 202 of 481

U.P. LAW BOC CIVIL PROCEDURE
H. Foreclosure of Real
Estate Mortgage
Foreclosure of mortgage is the process by which a
mortgagee acquires an absolute title to the property of
which he had previously been only the conditional
owner, or upon which he had previously a mere lien
or encumbrance [Benedicto v. Yulo, G.R. No. L-8106
(1913)]
Foreclosure is the necessary consequence of non-
payment of mortgage indebtedness. The mortgage
can be foreclosed only when:
1. The debt remains unpaid at the time it is due
[Producers Bank v. CA, G.R. No. 111584 (2001)],
or
2. In case of default in the payment of obligation
[PNB v. CA, G.R. No. 126908 (2003)]
The cause of action in a foreclosure suit is generally
the non-payment of the mortgage loan, but it may be
on other grounds which under the contract warrant
the foreclosure, such as the violation of the other
conditions therein [1 Regalado 852, 2010 Ed.]
Foreclosure may be:
1. Judicial: governed by Rule 68
2. Extrajudicial: proper only when so provided in
contracts in accordance with Act 3135; governed
by A.M. No. 99-10-05
Venue
A foreclosure action must be brought in the RTC of
the province where the land or any part thereof is
situated. If a mortgage contract covers several distinct
parcels of land situated in different provinces, the
action may be brought in the Court of First Instance
of any of the provinces and the judgment will be
enforceable against any of the parcels of land involved
[Monte de Piedad v. Rodrigo, G.R. No. L-42928 (1936)]
Contents of the complaint
1. The date and due execution of the mortgage
2. Its assignments, if any
3. The names and residences of the mortgagor and
the mortgagee
4. A description of the mortgaged property
5. A statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage
6. The amount claimed to be unpaid thereon; and
7. The names and residences of all persons having
or claiming an interest in the property
Page 203 of 481
REMEDIAL LAW
subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants
in the action
[Sec. 1, Rule 68]
Defendants in a judicial foreclosure:
1. Persons obliged to pay the mortgage debt
2. Persons who own, occupy, or control the
mortgaged premises or any part thereof [Soriano
v. Enriquez, GR No. 7708 (1913)]
3. Transferee or grantee of the property [De Villa v.
Fabricante, G.R. No. L-13063 (1959)]
4. The second mortgagee or junior encumbrancer,
or any person claiming a right or interest in the
property subordinate to the mortgage sought to
be foreclosed; but if the action is by the junior
encumbrancer, the first mortgagee may also be
joined as defendant [De la Riva v. Reynoso, G.R.
No. 41701 (1935)] [1 Regalado 850-851]
1. Judgment on Foreclosure for
Payment or Sale
If upon the trial in such action the court shall
a. Find the facts set forth in the complaint to be
true, it shall ascertain the amount due to the
plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved
by the court, and costs, and
b. Render judgment for the sum so found due and
order that
1. 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, and
2. In default of such payment the property shall
be sold at public auction to satisfy the
judgment.
[Sec. 2, Rule 68]
The period of payment by the mortgagor is a
mandatory directive and constitutes a substantive
right of the mortgagor. It cannot be omitted in judicial
foreclosure nor can the parties by agreement change
the procedure outlined [1 Regalado 855, 2010 Ed.]
Multiple appeals
a. Multiple appeals are allowed under Rule 68.
b. Judgment of foreclosure is appealable.
c. Order confirming foreclosure sale is a final
disposition with respect to the issue of validity
and regularity of the sale.
U.P. LAW BOC CIVIL PROCEDURE
d. Deficiency judgment is a disposition on the
merits of the correctness of such award [1
Regalado 854, 2010 Ed.]
2. Sale of Mortgaged Property;
Effect
When the defendant, after being directed to do so as
provided in Sec. 2, Rule 68, 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 [Sec. 3, Rule 68]
A motion for such order of sale is non-litigable and
may be made ex parte [Gov’t of the Phil. Islands v. De las
Cajigas, G.R. No. 33913 (1931)]
Limitation: Such sale shall not affect the rights of
persons holding prior encumbrances upon the
property or a part thereof [Sec. 3, Rule 68]
If the order of foreclosure sale does not push through,
there is a need for re-publication and reposting of the
notice thereof [Metrobank v. Nikko Resources Int’l Corp.,
G.R. No. 178479 (2009)]
Order of confirmation
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 [Sec. 3, Rule 68]
Confirmation of the sale of mortgaged real property
vests title in the purchaser including the equity of
redemption. It retroacts to the date of the sale. It cuts
off all the rights or interests of the mortgagor and of
the mortgagee [Lonzame v. Amores, G.R. No. L-53620
(1985)]
The motion for the confirmation of the sale requires
a hearing to grant an opportunity to the mortgagor to
show cause why the sale should not be confirmed
[Tiglao v. Botones, G.R. No. L-3619 (1951)] (e.g. by
proof of irregularities therein, gross inadequacy of the
price, lack of notice vitiates the confirmation of the
sale) [1 Regalado 857, 2010 Ed.]
Writ of possession
General rule: Upon the finality of the order of
confirmation or upon the expiration of the period of
Page 204 of 481
REMEDIAL LAW
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. The said
purchaser or last redemptioner may secure a writ of
possession, upon motion, from the court which
ordered the foreclosure
Exception: Third party is actually holding the same
adversely to the judgment obligor
[Sec. 3, Rule 67]
3. Disposition of Proceeds of
Sale
a. The amount realized from the foreclosure sale of
the mortgaged property shall, after deducting the
costs of the sale, be paid to the person foreclosing
the mortgage, and
b. When there shall be any balance or residue, after
paying off the mortgage debt due,
1. The same shall be paid to junior
encumbrancers in the order of their priority,
to be ascertained by the court, or
2. If there be no such encumbrancers or there
be a balance or residue after payment to
them, then to the mortgagor or his duly
authorized agent, or to the person entitled to
it
[Sec. 4, Rule 68]
4. Deficiency Judgment
If upon the sale of any real property as provided in
Sec. 5 there be a balance due to the plaintiff after
applying the proceeds of the sale,
a. The court, upon motion, shall render judgment
against the defendant for any such balance for
which, by the record of the case, he may be
personally liable to the plaintiff, upon which
execution may issue immediately if the balance is
all due at the time of the rendition of the
judgment;
b. Otherwise, the plaintiff shall be entitled to
execution at such time as the balance remaining
becomes due under the terms of the original
contract, which time shall be stated in the
judgment
[Sec. 6, Rule 68]
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, G.R. No. 41573 (1935)]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Extrajudicial
Judicial foreclosure
Note: A deficiency judgment is an action in personam foreclosure
while a judgment of foreclosure is an action quasi in of the deed of sale
rem [Ocampo v. Domalanta, G.R. No. L-21011 (1967)] [Huerta Alba Resort, Inc.
v. CA, G.R. No.
If the debtor dies, the deficiency may be filed as a 128567 (2000), citing
claim against his estate [Sec. 7, Rule 86] Act 3135]
Governed by Rule 68 Governed by Act 3135
a. Instances when Court Cannot No deficiency
Render Deficiency Judgment judgment because there
There could be a is no judicial
deficiency judgment proceeding in the
1. Under the Recto Law [Art. 1484, par. 3, CC]
[Sec. 6, Rule 68] foreclosure of the
a. When the mortgagor is a non-resident and is
mortgage itself [1
not found in the Philippines. (Rationale:
Regalado 859, 2010 Ed.]
The proceeding would be procedurally
Deficiency judgment Recovery of deficiency
infeasible as a deficiency judgment is in
shall be rendered, on is through an
personam, and under this situation,
motion [1 Regalado 859, independent action [1
jurisdiction over the obligor cannot be had
2010 Ed.] Regalado 859, 2010 Ed.]
[Riano])
b. When mortgagor dies, mortgagee may file Exception: In case of
his claim with the probate court [Sec. 7, Rule extrajudicial
86] foreclosure, juridical
c. If mortgagor is a third party mortgagor but persons shall have the
Exception: Mortgagor
not solidarily liable with debtor [Phil. Trust right to redeem until,
may exercise right of
Co. v. Tan Siua, G.R. No. 29736 (1929)] but not after, the
redemption within one
2. In case of a mortgage debt due from the estate of registration of the
year after the sale,
a deceased mortgagor and the mortgage creditor certificate of
when the loan or credit
availed of the third remedy which is to rely upon foreclosure sale with
accommodation is
his mortgage alone and foreclosing the same the Register of Deeds
granted by a bank [Sec.
within the statute of limitations [Sec. 7, Rule 86] which in no case shall
47, R.A. 8791]
3. When the deficiency arises under an extrajudicial be more than 3 months
foreclosure. The mortgagee can recover by action after foreclosure,
(not by motion) any deficiency in the mortgage whichever is earlier
account which was not realized in the foreclosure [Sec. 47, R.A. 8791]
sale [PNB v. CA, G.R. No. 121739 (1999)]
6. Equity of Redemption v.
When there is a surplus instead of deficiency
It is the duty of the mortgagee to return to the
Right of Redemption
mortgagor any surplus in the selling price during the
foreclosure sale [Sulit v. CA, G.R. No. 119247 (1997)] Equity of redemption is the right of defendant
mortgagor to extinguish the mortgage and retain
ownership of the property by paying the secured debt
5. Judicial Foreclosure v. within the 90 to 120 day period after entry of
Extrajudicial Foreclosure judgment or even after the foreclosure sale but prior
Extrajudicial to its confirmation [Sps. Sibug v. Sps. Suba, G.R. No.
Judicial foreclosure 137792 (2003)]
foreclosure
Requires court No court intervention
intervention necessary Equity of redemption Right of redemption
There is only an equity Right of redemption Right of defendant Right of the debtor, his
of redemption [Huerta exists; mortgagor has a mortgagor to successor in interest, or
Alba Resort, Inc. v. CA, right to redeem the extinguish the any judicial creditor of
G.R. No. 128567 property within one mortgage and retain said debtor or any
(2000)] year from registration ownership of the person having a lien on
property by paying the the property

Page 205 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Equity of redemption
secured debt within the
Right of redemption
subsequent to the
I. Partition
90 to 120-day period mortgage.
after entry of judgment Partition is the separation, division and assignment of
or even after the a thing held in common among those to whom it may
foreclosure sale but belong. Every act which is intended to put an end to
prior to its indivision among co-heirs and legatees or devisees is
confirmation deemed to be a partition [Marcos v. Heirs of Isidro Bangi,
Period is 90-120 days G.R. No. 185745 (2014)]
after entry of judgment Period is 1 year from
or even after date of registration of Partition may be:
foreclosure sale but certificate of sale 1. Judicial – Procedure is Rule 69
prior to confirmation 2. Extrajudicial – No court intervention is
required
Governed by Sec. 29-
Governed by Rule 68
31, Rule 39
Nothing in Rule 69 contained shall be construed so as
to restrict or prevent persons holding real estate
Note: What Rule 68, Secs. 2-3 provide for is the
jointly or in common from making an amicable
mortgagor’s EQUITY of redemption. This may be
partition thereof by agreement and suitable
exercised by him even beyond the period to pay the
instruments of conveyance without recourse to an
judgment obligation (i.e. 90-120 days) and even after
action [Sec. 12, Rule 69]
the foreclosure sale itself, provided it be before the
order of the confirmation of sale [Rosales v. Alfonso,
An action for partition and accounting under Rule 69
G.R. No. 137792 (2003)]
is in the nature of an action quasi in rem. Such action is
essentially for the purpose of affecting the
defendant’s interest in a specific property and not to
render a judgment against him [Valmonte v. CA, G.R.
No. 108538 (1996)]

When partition can be done

General rule: Prescription does not run in favor of a co-
owner or co-heirs as long as there is a recognition of
the co-ownership, expressly or impliedly [2 Riano 416,
2012 Bantam Ed.]

Exception: If a co-owner asserts adverse title to the

property, in which case, the prescription period runs
from such time of assertion of the adverse title [De
Castro v. Echarri, G.R. No. 5609 (1911)]

When partition cannot be done

1. When there is a stipulation against it, but not
exceeding 10 years; [Art. 494, CC]
2. When partition is prohibited by the donor or
testator for a period not exceeding 20 years; [Arts.
494, 1083, CC]
3. When partition is prohibited by law (e.g. ACP,
party wall); [Art. 494, CC]
4. When the property is not subject to a physical
division and to do so would render it
unserviceable for the use for which is it intended;
[Art. 495, CC] or

Page 206 of 481

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

5. When the condition imposed upon voluntary c. Joining as defendants all other persons interested
heirs before they can demand partition has not in the property
yet been fulfilled [Art. 1084, CC] [Sec. 1, Rule 69]
d. Demand for accounting of the rents, profits, and
1. Who May File Complaint; other income from the property to which he may
be entitled to as his share [Sec. 8, Rule 69] Since
Who Should be Made these cannot be demanded in another action
(because they are part of the cause of action for
Defendants partition), they are barred if not set up [2 Riano
420, 2012 Bantam Ed.]
Who may file
A person having the right to compel the partition of
real estate [Sec. 1, Rule 69] 3. Two Stages in Every Action
Who should be made defendants
for Partition
All other persons interested in the property [Sec. 1,
First stage - Determination of the propriety of
Rule 69]
partition
Jurisdiction
This involves a determination of whether the subject
a. The primary issue to be determined in an action
property is owned in common and whether all the co-
for partition boils down to whether or not the
owners are made parties in the case [Lacbayan v. Samoy,
plaintiff has a right to partition, an issue incapable
G.R. No. 165427 (2011)]
of pecuniary estimation. Thus, from this
perspective, it may be argued that the action
The order may also require an accounting of rents and
would be cognizable by the RTC.
profits recovered by the defendant. This order of
b. However, an action for partition of real property
partition is appealable [Miranda v. CA, G.R. No. L-
also involves “interest in real property.” Sec.
33007 (1976)]
19(2) of B.P. 129, as amended by R.A. 7691,
requires that in all civil actions involving the title
If not appealed, then the parties may partition the
to, or possession of, real property, or any interest
common property in the way they want. If they
therein, the jurisdiction should be determined by
cannot agree, then the case goes into the second stage.
inquiring into the assessed value of the real
However, the order of accounting may in the
property. Under this provision, an action for
meantime be executed [De Mesa v. CA, G.R.
partition of real property may be filed in the MTC
No.109387 (1994)]
depending on the assessed value of the property.
c. Perhaps guidance may be obtained from Heirs of
A final order decreeing partition and accounting may
Concha, Sr. v. Lumocso [G.R. No. 158121 (2007):
be appealed by any party aggrieved thereby [Sec. 2,
1. Under the old law, there was no substantial
Rule 69]
effect on jurisdiction whether a case is one
incapable of pecuniary estimation.
Second stage - Actual partitioning of the subject
2. The distinction between the two classes
property
became crucial with the amendment
There can be no partition again because there is no
introduced by R.A. 7691 in 1994 which
more common property [Noceda v. CA, G.R. No.
expanded the exclusive original jurisdiction
119730 (1999)]
of the first level courts
[2 Riano 417, 2012 Bantam Ed.]
The action for partition is subject to multiple appeals
and would require a record on appeal [Roman Catholic
2. Matters to Allege in the Archbishop of Manila v. CA, G.R. No. 77425 (1991)]
Complaint for Partition
Contents
a. The nature and extent of his title and
b. Adequate description of the real estate of which
partition is demanded

Page 207 of 481

U.P. LAW BOC CIVIL PROCEDURE
4. Order of Partition and
Partition by Agreement
a. Order of partition: If after the trial the court
finds that the plaintiff has the right thereto, it
shall order the partition of the real estate among
all the parties in interest.
b. Partition by agreement: Thereupon the parties
may, if they are able to agree, make the partition
among themselves by proper instruments of
conveyance, and the court shall confirm the
partition so agreed upon by all the parties, and
such partition, together with the order of the
court confirming the same, shall be recorded in
the registry of deeds of the place in which the
property is situated.
5. Partition by Commissioners;
Appointment of
Commissioners,
Commissioner’s Report;
Court Action upon
Commissioner’s Report
When proper
If the parties are unable to agree upon the partition
[Sec. 3, Rule 69]
Procedure
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
[Sec. 3, Rule 69]
Oath of commissioners
Before making such partition, the commissioners
shall take and subscribe an oath that they will
faithfully perform their duties as commissioners,
which oath shall be filed in court with the other
proceedings in the case [Sec. 4, Rule 69]
Duties of commissioners
a. View and examine the real estate, after due notice
to the parties to attend at such view and
examination, and
Page 208 of 481
REMEDIAL LAW
b. Hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof, and
c. 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
[Sec. 4, Rule 69]
The provision authorizes the commissioners merely
to make or effect the partition. It does not grant them
the authority to adjudicate on questions of title or
ownership [1 Riano 424, 2012 Bantam Ed.]
Assignment of real estate to one party
General rule: When it is made to appear to the
commissioners that the real estate, or a portion
thereof, cannot be divided without prejudice to the
interests of the parties, the court may order it assigned
to one of the parties willing to take the same, provided
he pays to the other parties such amounts as the
commissioners deem equitable
Exception: If one of the interested parties asks that the
property be sold instead of being so assigned, in
which case the court shall order the commissioners to
sell the real estate at public sale under such conditions
and within such time as the court may determine
[Sec. 5, Rule 69]
Commissioner’s report
a. 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.
b. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the 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.
c. No proceeding had before or conducted by the
commissioners shall pass the title to the property
or bind the parties until the court shall have
accepted the report of the commissioners and
rendered judgment thereon
[Sec. 6, Rule 69]
Hearing on the report
a. Upon the expiration of the period of 10 days
referred to in Sec. 6, Rule 69, or
b. Even before the expiration of such period but
after the interested parties have filed their
objections to the report or their statement of
agreement therewith, the court may,
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

1. Upon hearing, accept the report and render 7. Partition of Personal

judgment in accordance therewith, or,
2. For cause shown, recommit the same to the Property
commissioners for further report of facts, or
3. Set aside the report and appoint new The provisions of Rule 69 shall apply to partitions of
commissioners, or estates composed of personal property, or of both
4. Accept the report in part and reject it in part; real and personal property, in so far as the same may
and be applicable [Sec. 13, Rule 69]
the court may make such order and render such
judgment as shall effectuate a fair and just partition of
the real estate, or of its value, if assigned or sold as
8. Prescription of action
above provided, between the several owners thereof.
[Sec. 7, Rule 69] The right of action to demand partition does not
prescribe [De Castro v. Echarri, G.R. No. 5609 (1911)],
except where one of the interested parties openly and
6. Judgment and Its Effects adversely occupies the property without recognizing
the co-ownership [Cordova v. Cordova, G.R. No. L-9936
Contents of judgment Effects of judgment (1958)] in which case, acquisitive prescription may set
If actual partition is properly made in.
Judgment shall state
definitely, by metes and Judgment shall vest in If a co-owner repudiates the co-ownership and makes
bounds and adequate each party to the action known such repudiation to the other co- owners, then
description, the in severalty the portion partition is no longer a proper remedy of the
particular portion of of the real estate aggrieved co-owner. He must file an accion
the real estate assigned assigned to him reivindicatoria, which is prescriptible [Roque v. IAC,
to each party G.R. No. 75886 (1988)]
If the whole property is assigned to one of the parties after
payment
Judgment shall vest in
Judgment shall state
the party making the
the fact of such
payment the whole of
payment and of the
the real estate free from
assignment of the real
any interest on the part
estate to the party
of the other parties to
making the payment
the action
If the property is sold and the sale confirmed by the court
Judgment shall state Judgment shall vest the
the name of the real estate in the
purchaser or purchaser or
purchasers and a purchasers making the
definite description of payment or payments,
the parcels of real free from the claims of
estate sold to each any of the parties to the
purchaser action
[Sec. 11, Rule 69]

A certified copy of the judgment shall in either case

be recorded in the registry of deeds of the place in
which the real estate is situated, and the expenses of
such recording shall be taxed as part of the costs of
the action [Sec. 11, Rule 69]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

J. Forcible Entry and Forcible entry

(detentacion)
Unlawful detainer
(desahucio)
Unlawful Detainer physical possession of possession [Pharma
the premises until he Industries, Inc. v.
Ejectment cases are summary proceedings intended was deprived thereof Pajarillaga, G.R. No.
to provide an expeditious means of protecting actual by defendant [Pharma 53788 (1980)]
possession of property [Tubiano v. Razo, G.R. No. Industries, Inc. v.
132598 (2000)] Pajarillaga, G.R. No.
53788 (1980)]
The actions for forcible entry and unlawful detainer Period is counted from
belong to the class of actions known by the generic The 1-year period is the date of last demand
name accion interdictal (ejectment) where the issue is the generally counted from [Sarona v. Villegas, G.R.
right of physical or material possession of the subject date of actual entry on No. L-22984 (1968)]]
real property independent of any claim of ownership land [1 Regalado 873, or last letter of demand
by the parties involved [A. Francisco Realty and 2010 Ed.] [DBP v. Canonoy, G.R.
Development Corp. v. CA, G.R. No. 125055 (1988)] No. L-29422, (1970)]

Accion interdictal comprises two distinct causes of
action:
1. Forcible entry (detentacion), where one is deprived
of physical possession of the real property by
means of force, intimidation, strategy, threats or
stealth;
2. Unlawful detainer (desahuico), where one illegally
withholds possession after the expiration or
termination of his right to hold possession under
any contract, express or implied
[Sps. Valdez v. CA, G.R. No. 132424 (2006)]
In ejectment cases, possession means nothing more
than actual physical possession, not legal possession
in the sense contemplated in civil law [Antazo v.
Doblada, G.R. No. 178908 (2010)]
In order to constitute force, the act of going to the
property and excluding the lawful possessor necessary
implies the exertion of force over the property which
is all that is necessary and sufficient to show that the
action is based on Sec. 1, Rule 70 [Bunyi v. Factor, G.R.
No. 172547 (2009)]

1. Definitions and Distinctions 2. Distinguished from Accion

Publiciana and Accion
Forcible entry Unlawful detainer
(detentacion) (desahucio) Reivindicatoria
Possession is
inceptively lawful but it Three (3) kinds of action for recovery of
Possession of land by possession
becomes illegal by
defendant is unlawful
reason of the Accion Accion Accion
from the beginning as
termination of his right interdictal publiciana reivindicatoria
he acquires possession
to possession of the
by force, intimidation, Summary
property under his
strategy, threat, or action for Plenary action
contract (express or
stealth (FISTS) [Dikit v. recovery of for recovery of
implied) with the An action for
Ycasiano, G.R. No. L- physical real right of
plaintiff [Dikit v. recovery of
3621 (1951)] possession possession
Ycasiano, G.R. No. L- possession
3621 (1951)] where the when
based on
No previous demand dispossession dispossession
Demand is ownership [1
for defendant to vacate has not lasted has lasted for
jurisdictional [Sec. 2, Regalado 872,
the premises is for more than more than one
Rule 70; Medel v. 2010 Ed.]
necessary [Sec. 2, Rule one year [1 year [1 Regalado
Militante, G.R. No. Regalado 871- 872, 2010 Ed.]
70; Medel v. Militante,
16096 (1921)]. 872, 2010 Ed.]
G.R. No. 16096 (1921)]
Plaintiff must prove Plaintiff need not have
that he was in prior been in prior physical

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Accion Accion Accion 1. Lessor, vendor, vendee, or other person

interdictal publiciana reivindicatoria against whom any land or building is
unlawfully withheld; or
RTC has jurisdiction if value of 2. His legal representatives or assigns
the property exceeds P20,000 [Sec. 1, Rule 70]
outside Metro Manila or P50,000
MTC has within Metro Manila. Period of filing
jurisdiction Within 1 year after the unlawful deprivation or
[Sec. 33(2), MTC has jurisdiction if value of withholding of possession [Sec. 1, Rule 70]
B.P. 129, as property does not exceed the
amended] above amounts
Reckoning points:
[Sec. 19 and 33, B.P. 129, as a. For forcible entry: it is counted from date of
amended] actual entry on the land [1 Regalado 873, 2010
Ed.]; EXCEPTION: In case of stealth or
strategy, from the time plaintiff learned of entry
3. How to Determine [Vda. de Prieto v. Reyes, G.R. No. L-21740 (1965)]
b. For unlawful detainer: it is counted from the
Jurisdiction in Accion date of
Publiciana, Accion 1. Last demand [Sarona v. Villegas, G.R. No. L-
22984 (1968)], or
Reivindicatoria and Accion 2. Last letter of demand [Racaza v. Susana Realty,
Interdictal Inc., G.R. No. L-20330 (1966); Calibayan v.
Pascual, G.R. No. L-22645 (1967); DBP v.
Accion publiciana and accion reivindicatoria Canonoy, G.R. No. L-29422, (1970)]
a. RTC has jurisdiction where the assessed value of
the property exceeds PHP 20,000 or, in Metro Against whom may the action be maintained
Manila, PHP 50,000; Person or persons unlawfully withholding or
b. MTC has jurisdiction if the assessed value does depriving of possession, or any person/s claiming
not exceed said amounts under them [Sec. 1, Rule 70]
[Secs. 19 and 33, B.P. 129, as amended by R.A. 7691]
Notes:
Where the basic issue is not possession but a. Action may be maintained only against one in
interpretation, enforcement and/or rescission of the possession at the commencement of the action.
contract, it is no longer an ejectment suit [Villena v. b. Tenant with right of [de facto] possession may
Chavez, G.R. No. 148126 (2003)] bring action against another tenant.
c. Vendor may bring action for ejectment against
Accion interdictal vendee upon failure to pay installments.
Exclusive original jurisdiction over forcible entry and d. Action may lie against the very owner of the
unlawful detainer suits is with the MTC [Sec. 33(2), property.
B.P. 129, as amended by R.A. 7691] e. Action may be maintained against government
officials or agents acting in behalf of the
government, even if government is not made a
4. Who May Institute the party to the action
Action and When; Against [1 Regalado 874, 2010 Ed.]
Whom the Action May be
5. Pleadings Allowed
Maintained
The only pleadings allowed to be filed are the
a. In forcible entry: A person deprived of a. Complaint
possession of any land or building by force, b. Compulsory counterclaim pleaded in the answer
intimidation, strategy, threat, or stealth c. Cross-claim pleaded in the answer, and
b. In unlawful detainer d. Answers thereto
[Sec. 4, Rule 70]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

of the grounds for the dismissal of a civil action which

Note: Pleadings must be VERIFIED [Sec. 4, Rule 70] are apparent therein [Sec. 5, Rule 70]

What must be alleged in the complaints Issuance of summons

Forcible entry Unlawful detainer
a. Initially, possession
of property by the
defendant was by
contract with or by
tolerance of the
a. Plaintiff had prior
plaintiff
physical possession
b. Eventually, such
of the property
possession became
b. The defendant
illegal upon notice
deprived him of
by plaintiff to
such possession by
defendant of the
means of FISTS
termination of the
[Abad v. Farrales,
latter's right of
G.R. No. 178635
possession
(2011), citing Sec.
c. Thereafter, the
1, Rule 70]
defendant
c. That the complaint
remained in
was filed within 1
possession of the
year from
property and
dispossession [Sec.
deprived the
1, Rule 70; 1
plaintiff of the
Regalado 533, 2010
enjoyment thereof,
Ed.]
and
d. Within one year
Note: First two
from the last
requirements are
demand on
jurisdictional [Abad v.
defendant to
Farrales, G.R. No.
vacate the
178635 (2011)]
property, the
plaintiff instituted
the complaint for
ejectment
[French v. CA, G.R. No.
220057 (2017)]
Mere failure to pay rent does not ipso facto make
unlawful the tenant’s possession. It is the demand to
vacate and refusal to vacate which makes unlawful the
withholding of possession [Canaynay v. Sarmiento, G.R.
No. L-1246 (1947)]
6. Action on the Complaint
Motu proprio dismissal
The court may, from an examination of the
allegations in the complaint and such evidence as may
be attached thereto, dismiss the case outright on any
If no ground for dismissal is found, it shall forthwith
issue summons [Sec. 5, Rule 70]
Answer
a. Within 10 days from service of summons, the
defendant shall file his answer to the complaint
and serve a copy thereof on the plaintiff.
b. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of
jurisdiction over the subject matter.
c. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
d. The answer to counterclaims or cross-claims shall
be served and filed within 10 days from service
of the answer in which they are pleaded.
[Sec. 6, Rule 70]
Effect of failure to answer
a. Should the defendant fail to answer the
complaint within the period above provided, the
court, motu proprio or on motion of the plaintiff,
shall render judgment as may be warranted by the
facts alleged in the complaint and limited to what
is prayed for therein.
b. The court may in its discretion reduce the
amount of damages and attorney’s fees claimed
for being excessive or otherwise unconscionable,
without prejudice to the applicability of Sec. 3(c),
Rule 9 if there are two or more defendants.
[Sec. 7, Rule 70]
Preliminary conference
a. Not later than 30 days after the last answer is
filed, a preliminary conference shall be held. The
provisions of Rule 18 on pre-trial shall be
applicable to the preliminary conference unless
inconsistent with the provisions of Rule 70
b. The failure of the plaintiff to appear in the
preliminary conference shall be cause for the
dismissal of his complaint.
c. The defendant who appears in the absence of the
plaintiff shall be entitled to judgment on his
counterclaim in accordance with the next
preceding section.
d. All cross-claims shall be dismissed.
e. If a sole defendant shall fail to appear, the
plaintiff shall likewise be entitled to judgment in
accordance with the next preceding section.
f. This procedure shall not apply where one of two
or more defendants sued under a common cause

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U.P. LAW BOC CIVIL PROCEDURE
of action who had pleaded a common defense
shall appear at the preliminary conference.
g. No postponement of the preliminary conference
shall be granted except for highly meritorious
grounds and without prejudice to such sanctions
as the court in the exercise of sound discretion
may impose on the movant.
[Sec. 8, Rule 70]
Submission of affidavits and position papers
Within 10 days from receipt of the order mentioned
in the next preceding section, 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 [Sec. 10, Rule 70]
Judgment
a. Within 30 days after receipt of the affidavits and
position papers, or the expiration of the period
for filing the same, the court shall render
judgment.
b. However, should the court find it necessary to
clarify certain material facts, it may, during the
said 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
the receipt of the last affidavit or the expiration
of the period for filing the same.
c. The court shall not resort to the foregoing
procedure just to gain time for the rendition of
the judgment.
[Sec. 11, Rule 70]
7. When Demand is Necessary
Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand [Sec. 2, Rule
70]
Contents
Demand made upon the lessee to
a. Pay or comply with the conditions of the lease
and
b. Vacate
[Sec. 2, Rule 70]
Form
a. By service of written notice of such demand
upon the person found on the premises, or
b. By posting of the written notice on the premises
if no person be found thereon
Page 213 of 481
REMEDIAL LAW
[Sec. 2, Rule 70]
c. Oral [Jakihaca v. Aquino, G.R. No. 83982 (1990)]
Period to comply with demand
After
a. 15 days in the case of lands, or
b. 5 days in the case of buildings
[Sec. 2, Rule 70]
When demand not required:
a. When parties stipulate that demand shall not be
necessary [Sec. 2, Rule 70]; or
b. When action is predicated on the expiration of
the lease [Labastida v. CA, G.R. No. 110174
(1998)] (Since it is not based on the failure to pay
or comply with the conditions.)
It is only when the defendant fails to comply with the
demand within the periods provided by Sec. 2 that his
possession becomes unlawful. (Quevada v. Garcia, G.R.
No. 140798 (2006)
A demand to pay or vacate does not give rise to a
cause of action for unlawful detainer [Peñas v. CA,
G.R. No. 112734 (1994)]
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, G.R.
No. L-54753 (1983)]
Note: Demand is not required in forcible entry suits
[Dela Cruz v. CA, G.R. No. 139442 (2006)]
8. Preliminary Injunction and
Preliminary Mandatory
Injunction
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to prevent
the defendant from committing further acts of
dispossession against the plaintiff [Sec. 15, Rule 70]
There is no distinction as to the type of ejectment case
involved. (1 Regalado 891, 2010 Ed.)
While a preventive injunction is governed by Rule 58,
mandatory injunction is governed by the rules in Rule
70. (1 Regalado 891, 2010 Ed.)
U.P. LAW BOC CIVIL PROCEDURE
Preliminary mandatory injunction
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within 5 days
from the filing of the complaint, present a motion in
the action for forcible entry or unlawful detainer for b.
the issuance of a writ of preliminary mandatory
injunction to restore him in his possession. The court
shall decide the motion within 30 days from the filing
thereof [Sec. 15, Rule 70]
When available
a. Within 5 days from the filing of the complaint
[Sec. 15, Rule 70]
b. On appeal to the RTC upon motion of the
plaintiff within 10 days from perfection of appeal
[Sec. 20, Rule 70]
Note: The injunction on appeal is to restore to plaintiff c.
in possession if the court is satisfied that
a. Defendant’s appeal is frivolous or dilatory, or
b. The appeal of plaintiff is prima facie meritorious
[Sec. 20, Rule 70]
MTC can also issue a preliminary mandatory
injunction in an unlawful detainer case [Day v. RTC of
Zamboanga, G.R. No. 71119 (1990)]
Preliminary preventive injunction
Preliminary preventive injunction is available in either d.
case. Note that Sec. 15 makes the provisions of Rule
58 applicable to Rule 70. (1 Regalado 891, 2010 Ed.)
9. Resolving the Defense of
Ownership
The MTC shall exercise exclusive original jurisdiction
over cases of forcible entry and unlawful detainer:
Provided, That when, in such cases, the defendant
raises the questions 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 [Sec. 33(2), B.P. 129, as amended e.
by R.A. 7691]
Refugia guidelines
a. The primal rule is that the principal issue must be
that of possession, and that ownership is merely
ancillary thereto, in which case the issue of
ownership may be resolved but only for the
purpose of determining the issue of possession.
Thus, as earlier stated, Sec. 33(2), B.P. 129,
quoted above applies only where the inferior
Page 214 of 481
REMEDIAL LAW
court believes and the preponderance of evidence
shows that a resolution of the issue of possession
is dependent upon the resolution of the question
of ownership.
It must sufficiently appear from the allegations in
the complaint that what the plaintiff really and
primarily seeks is the restoration of possession.
Consequently, where the allegations of the
complaint as well as the reliefs prayed for clearly
establish a case for the recovery of ownership,
and not merely one for the recovery of
possession de facto, or where the averments
plead the claim of material possession as a mere
elemental attribute of such claim for ownership,
or where the issue of ownership is the principal
question to be resolved, the action is not one for
forcible entry but one for title to real property.
The inferior court cannot adjudicate on the
nature of ownership where the relationship of
lessor and lessee has been sufficiently established
in the ejectment case, unless it is sufficiently
established that there has been a subsequent
change in or termination of that relationship
between the parties. This is because under Sec.
2(b), Rule 131, 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.
The rule in forcible entry cases, but not in those
for unlawful detainer, is that a party who can
prove prior possession can recover such
possession even against the owner himself.
Regardless of the actual condition of the title to
the property and whatever may be the character
of his prior possession, if he has in his favor
priority in time, he has the security that entitles
him to remain on the property until he is lawfully
ejected by a person having a better right through
an accion publiciana or accion reivindicatoria.
Corollarily, if prior possession may be ascertained
in some other way, then the inferior court cannot
dwell upon or intrude into the issue of
ownership.
Where the question of who has prior possession
hinges on the question of who the real owner of
the disputed portion is, the inferior court may
resolve the issue of ownership and make a
declaration as to who among the contending
parties is the real owner. In the same vein, where
the resolution of the issue of possession hinges
on a determination of the validity and
interpretation of the document of title or any
other contract on which the claim of possession
is premised, the inferior court may likewise pass
U.P. LAW BOC CIVIL PROCEDURE
upon these issues. This is because, and it must be
so understood, that any such pronouncement
made affecting ownership of the disputed
portion is to be regarded merely as provisional,
hence, does not bar nor prejudice an action
between the same parties involving title to the
land. Moreover, now-Sec. 18, Rule 70 expressly
provides that the judgment rendered in an action
for forcible entry or unlawful detainer shall be
effective with respect to the possession only and
in no wise bind the title or affect the ownership
of the land or building.
[Refugia v. CA, G.R. No. 118284 (1996)]
Judgment for ejectment cannot be enforced against a
co-owner who was not made a party to the action
[Cruzcosa v. Concepcion, G.R. No. L-11146 (1957)]
10. How to Stay Immediate
Execution of Judgment
[Sec. 19, Rule 70]
Judgment of MTC
General rule: Judgment of the MTC against defendant
in ejectment cases is immediately executory upon
motion.
Exceptions:
a. An appeal has been perfected and
b. The defendant to stay execution files a sufficient
supersedeas bond, approved by the MTC and
executed in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the time of
the judgment appealed from, 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, as
determined by the judgment of the MTC. In the
absence of a contract, he shall deposit with the
RTC 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 10th
day of each succeeding month or period.
[Sec. 19, Rule 70]
All these requisites must concur. The deposit is a
mandatory requirement; hence, if it is not complied
with, execution will issue as a matter of right [Antonio
v. Geronimo, G.R. No. 124779 (2005)]
Page 215 of 481
REMEDIAL LAW
Judgment of the RTC
The judgment of RTC against the defendant shall be
immediately executory, without prejudice to further
appeal that may be taken therefrom [Sec. 21, Rule 70]
Summary procedure
General rule: All actions for forcible entry and unlawful
detainer shall be governed by the summary procedure
of Rule 70, irrespective of the amount of damages or
unpaid rentals sought to be recovered
Exceptions:
a. In cases covered by agricultural tenancy laws; or
b. When the law otherwise expressly provides
[Sec. 3, Rule 70]
Prohibited pleadings and motions
a. Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject
matter, or failure to comply with Sec. 12, Rule 70
(referral for conciliation)
b. Motion for a bill of particulars
c. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial
d. Petition for relief from judgment
e. Motion for extension of time to file pleadings,
affidavits or any other paper
f. Memoranda
g. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court
h. Motion to declare the defendant in default
i. Dilatory motions for postponement
j. Reply
k. Third-party complaints
l. Interventions
[Sec. 13, Rule 70]
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

K. Contempt who has a pecuniary

interest in the right to
be protected
Contempt of court is disobedience to the court by Proof required is more
acting in opposition to its authority, justice, and Proof required is proof
than mere
dignity. It signifies not only a willful disregard or beyond reasonable
preponderance of
disobedience to the court’s orders but also conduct doubt
evidence
tending to bring the authority of the court and If judgment is for
administration of law into disrepute, or, in some If accused is acquitted,
respondent, there can
manner, to impede the due administration of justice there can be no appeal
be an appeal
[Siy v. NLRC, G.R. No. 158971 (2012)]
[1 Regalado 909, 2010 Ed.]
The power to declare a person in contempt of court
According to manner of commission
and in dealing with him accordingly is an inherent
a. Direct contempt: Act committed in the
power of the court. It is used as a means to protect
presence of or so near the court or judge as to
and preserve the dignity of the court, the solemnity of
obstruct or interrupt the proceedings before the
the proceedings, and administration of justice
same.
[Montenegro v. Montenegro, G.R. No. 156829 (2004)]
b. Indirect contempt: One not committed in the
presence of the court. It is an act done at a
Contempt proceedings have a dual function:
distance which tends to belittle, degrade,
1. Vindication of public interest by the punishment
obstruct, or embarrass the court and justice
of contemptuous conduct; and
[Lorenzo Shipping v. Distribution Management, G.R. No.
2. Coercion to compel the contemnor to do what
155849 (2011)]
the law requires him to uphold the power of the
court, and also to secure the rights of the parties
Direct contempt Indirect contempt
to a suit awarded by the court
Committed in the Not committed within
[Regalado v. Go, G.R. No. 167988 (2007)]
presence of or so near the presence of the
a court court
1. Kinds of contempt Summary in nature There is charge and
hearing
According to nature Punishment Punishment
a. Criminal contempt: Conduct directed against a. If committed a. If committed
the authority and dignity of the court or a judge against the RTC: against RTC: Fine
acting judicially. Fine of not not exceeding PHP
b. Civil contempt: Failure to do something exceeding PHP 30,000 and/or
ordered to be done by a court or by a judge for 2,000 and/or imprisonment not
the benefit of the opposing party imprisonment not exceeding 6
[Lorenzo Shipping v. Distribution Management, G.R. No. exceeding 10 days months or both
155849 (2011)] or both b. If committed
b. If committed against MTC: Fine
Criminal contempt Civil contempt against the MTC: not exceeding PHP
Punitive in nature Remedial in nature Fine not exceeding 5,000 and/or
Purpose is to provide a PHP 200 and or imprisonment not
remedy for an injured imprisonment not exceeding 1 month
Purpose is to preserve
suitor and to coerce exceeding 1 day or or both
the court’s authority
compliance with an both
and to punish for
order; for the Remedy is certiorari or Remedy is appeal
disobedience of its
preservation of the prohibition
orders
rights of private Otherwise known as Otherwise known as
persons Contempt in Facie Constructive Contempt
Intent is necessary Intent is not necessary Curiae
Instituted by the [1 Regalado 909, 2010 Ed.]
State is the real
aggrieved party, or his
prosecutor
successor, or someone

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Contempt, whether direct or indirect, may be civil or himself of the remedies of certiorari or
criminal depending on the nature and effect of prohibition.
contemptuous act [Montenegro v. Montenegro, G.R. No. b. The execution of the judgment shall be
156829 (2004)] suspended pending resolution of such petition,
provided such person file a bond fixed by the
The real character of the proceedings in contempt court which rendered the judgment and
cases is to be determined by the relief sought or by conditioned that he will abide by and perform the
the dominant purpose. The proceedings are to be judgment should the petition be decided against
regarded as criminal when the purpose is primarily him.
punishment, and civil when the purpose is primarily [Sec. 2, Rule 71]
compensatory or remedial [Montenegro v. Montenegro,
G.R. No. 156829 (2004)] Penalties
Offense Penalty
2. Purpose and Nature of Each Fine not exceeding
If RTC or a court of PHP 2,000 or
DIRECT CONTEMPT equivalent or higher imprisonment not
For a person to be adjudged guilty of direct contempt, rank exceeding 10 days or
he must commit a misbehavior in the presence of or both
so near a judge as to interrupt the administration of Fine not exceeding
justice [SBMA v. Rodriguez, G.R. No. 160270 (2010)] PHP 200 or
If lower court imprisonment not
Grounds exceeding 1 day or
Misbehavior in the presence of or so near a court as both
to obstruct or interrupt the proceedings before the [Sec. 1, Rule 71]
same, including
a. Disrespect toward the court 4. Remedy against Indirect
b. Offensive personalities toward others, or
c. Refusal to be sworn or to answer as a witness, or
Contempt; Penalty
to subscribe an affidavit or deposition when
lawfully required to do so a. The judgment or final order of a court in a case
[Sec. 1, Rule 71] of indirect contempt may be appealed to the
proper court as in criminal cases.
Other examples: b. But execution of the judgment or final order shall
a. Willful and deliberate forum shopping [Sec. 5, not be suspended until a bond is filed by the
Rule 7] person adjudged in contempt, in an amount fixed
b. Submission of pleadings containing derogatory, by the court front which the appeal is taken,
offensive, and malicious statements submitted to conditioned that if the appeal be decided against
the court [Re: Letter of Atty. Noel Sorreda, A.M. No. him he will abide by and perform the judgment
05-3-4-SC (2005)] or final order
[Sec. 11, Rule 71]
Procedure
Summarily adjudged in contempt by such court [Sec. Generally, a non-party may not be liable for contempt
1, Rule 71] unless he is guilty of conspiracy with any of the parties
in violating the court’s orders [Desa Enterprises Inc. v.
INDIRECT CONTEMPT SEC, G.R. No. L-45430 (1982)]
See Acts deemed punishable as indirect contempt
below. A contempt proceeding, whether civil or criminal, is
still a criminal proceeding, hence, acquittal is a bar to
a second prosecution. The distinction is only for the
3. Remedy against Direct purpose of determining the character of the
Contempt; Penalty punishment to be administered [Santiago v.
Anunciacion, G.R. No. 89318 (1990)]
a. The person adjudged in direct contempt by any
court may not appeal therefrom, but may avail

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Penalties INDIRECT CONTEMPT

Offense
If committed against
RTC, or a court of
equivalent or higher
rank
If committed against
lower court
If the contempt
consists in the
violation of a writ of
injunction, TRO, or
status quo order
If committed against a
person or entity exercising
quasi- judicial functions
Penalty
Fine not exceeding
PHP 30,000 or
imprisonment not
exceeding 6 months, or
both [Sec. 7, Rule 71]
Fine not exceeding
PHP 500, or
imprisonment not
exceeding 1 month, or
both [Sec. 7, Rule 71]
Offender may also be
ordered to make
complete restitution to
the party injured by
such violation of the
property involved or
such amount as may be
alleged and proved
[Sec. 7, Rule 71]
If there is nothing
more to return,
offender is personally
liable for the restitution
of the money
equivalent to the lost
thing [Rosario Textile
Mills v. CA, G.R. No.
137326 (2003)]
Penalty shall depend
upon the provisions of
the law which
authorizes penalty for
contempt against such
persons or entities [Sec.
12, Rule 71]
Two modes of commencing a proceeding
a. Proceedings for indirect contempt may be
initiated motu proprio by the court against which
the contempt was committed by an order or any
other formal charge requiring the respondent to
show cause why he should not be punished for
contempt.
b. In all other cases, charges for indirect contempt
shall be commenced by a verified petition with
supporting particulars and certified true copies of
documents or papers involved therein, and upon
full compliance with the requirements for filing
initiatory pleadings for civil actions in the court
concerned. 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.
[Sec. 4, Rule 70]
Where to file charge
a. Where the charge for indirect contempt has been
committed against a RTC or a court of equivalent
or higher rank, or against an officer appointed by
it, the charge may be filed with such court.
b. Where such contempt has been committed
against a lower court, the charge may be filed with
the RTC of the place in which the lower court is
sitting; but the proceedings may also be instituted
in such lower court subject to appeal to the RTC
of such place in the same manner as provided in
Sec. 2, Rule 71
[Sec. 5, Rule 71]

5. How Contempt Proceedings 6. Acts Deemed Punishable as

are Commenced
DIRECT CONTEMPT
By whom initiated:
a. Generally, civil contempt proceedings should be
instituted by an aggrieved party, or his successor,
or someone who has pecuniary interest in the
right to be protected
b. In criminal contempt proceedings, it is generally
held that the State is the real prosecutor
[People v. Godoy, G.R. Nos. 115908-09 (1995)]
Indirect Contempt
a. Misbehavior of an officer of a 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 or induces another to enter
into or upon such real property, for the purpose

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U.P. LAW BOC CIVIL PROCEDURE
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 under Sec. 1, Rule
71
d. Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice
e. Assuming to be an attorney or an officer of a
court, and acting as such without authority;
f. Failure to obey a subpoena duly served
g. The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him
[Sec. 3, Rule 71]
Other examples
a. Submission, of a false certification of non-forum
shopping or non-compliance with any of the
undertakings [Sec. 5, Rule 7]
b. Upon a judgment obligor’s failure to pay any such
installment when due without good excuse, if the
court orders him to pay the judgment in fixed
monthly installments [Sec. 40, Rule 39]
7. When Imprisonment Shall
be Imposed
a. When the contempt consists in the refusal or
omission to do an act which is yet in the power
of the respondent to perform, he may be
imprisoned by order of the court concerned until
he performs it [Sec. 8, Rule 71]
b. When the respondent “carried the keys to his
prison in his own pocket.” [Galvez v. Republic
Surety & Insurance Co., Inc., G.R. No. L-12581
(1959)]
Only the judge who ordered the confinement of the
person for contempt of court can issue the Order of
Release [Inoturan v. Limsiaco, Jr., AM No. MTJ-01-1362
(2005)]
Sec. 8, Rule 71 does not apply to tenants who refused
or failed to pay their rentals to the special
administratrix of the property. The non-payment of
rentals, which is a civil debt, is covered by the
constitutional guarantee against imprisonment [1
Regalado 920, 2010 Ed.]
Page 219 of 481
REMEDIAL LAW
8. Contempt against Quasi-
Judicial Bodies
a. Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-
judicial functions, or shall have suppletory effect
to such rules as they may have adopted pursuant
to authority granted to them by law to punish for
contempt.
b. The RTC of the place wherein the contempt has
been committed shall have jurisdiction over such
charges as may be filed therefor.
[Sec. 12, Rule 71].
It is not within the jurisdiction and competence of
quasi-judicial bodies to decide indirect contempt
cases. The requirement for a verified petition must
also be complied with (e.g. DARAB has no power to
decide the contempt charge filed before it) [Land Bank
v. Listana, G.R. No. 152611 (2003)]
Acts or violations against quasi-judicial bodies
punishable as contempt: Where a person, without
lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to do
so by the official or body exercising such powers.
Other acts or violations cannot be punished as
contempt unless specifically defined in the governing
law as contempt of court or if it authorizes the quasi-
judicial body to punish for contempt, and providing
the corresponding penalty [1 Regalado 921-922, 2010
Ed., citing People v. Mendoza, G.R. No. L-5059-60
(1953), see Sec. 13, Chapter 3, Book VII, Admin Code]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

SPECIAL
PROCEEDINGS
Remedial Law

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

VI. SPECIAL Cases governed; civil action v. special proceeding

a. A civil action is one by which a party sues
PROCEEDINGS another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special.
SUBJECT MATTER OF SPECIAL Both are governed by the rules for ordinary civil
PROCEEDINGS; APPLICABILITY OF actions, subject to specific rules prescribed for a
GENERAL RULES special civil action.
b. A special proceeding is a remedy by which a
In the absence of special provisions, the rules party seeks to establish a status, a right, or a
provided for in ordinary civil actions shall be, as far as particular fact.
practicable, applicable in special proceedings [Sec. 2, [Sec. 3(a), 3(b), Rule 1]
Rule 72]

Rules in ordinary actions may be applied in special A. Settlement of Estate of

proceedings as much as possible and where doing so
would not pose an obstacle to said proceedings.
Deceased Persons
Nowhere in the Rules of Court (ROC) does it
categorically say that rules in ordinary actions are MODES OF SETTLEMENT OF ESTATE
inapplicable or merely suppletory to special 1. Extrajudicial (no will, no debts)
proceedings. Provisions of the ROC requiring a a. If only one heir – Affidavit of Self-
certification of non-forum shopping for complaints adjudication
and initiatory pleadings, a written explanation for b. If heirs are all of age or the minors are
non-personal service and filing, and the payment of represented, and all agree –Deed of
filing fees for money claims against an estate would Extrajudicial Settlement [Sec. 1, Rule 74]
not in any way obstruct probate proceedings, thus, 2. Judicial
they are applicable to special proceedings such as the a. If no will, no debts, more than one heir, and
settlement of the estate of a deceased person in the should heirs disagree – Partition [Rule 69]
present case [Sheker v. Sheker, G.R. No. 157912 (2007)] b. Summary Settlement of Estate of Small
Value [Sec. 2, Rule 74]
Action v. special proceedings c. Petition for Letters of Administration
An action is a formal demand of one’s right in a court [Rule 79]
of justice in the manner prescribed by the court of by d. Probate of a Will [Rules 75-79]
the law. It is the method of applying legal remedies i. Petition for Letters Testamentary or
according to definite established rules. The term ii. Petition for Letters of Administration
“special proceedings” may be defined as an with the will annexed (if no named
application or proceeding to establish the status or executor)
right of a party, or a particular fact. Usually, in special
proceedings, no formal pleadings are required unless 1. Jurisdiction
the statute expressly so provides. In special
proceedings, the remedy is granted generally upon Exclusive original jurisdiction over all matters of
application or motion [Natcher v. CA, G.R. No. probate, both testate and intestate, shall lie with
133000 (2001)] MTC if gross value of the estate
Outside does not exceed P300,000
Rule 39 applies only to ordinary civil actions, not to Metro
other or extraordinary proceedings not expressly Manila If it exceeds such value, then
governed by the Rules of Civil Procedure but by some RTC
other specific law or legal modality [Republic v. Nillas, MTC if gross value of the estate
G.R. No. 159595 (2007)] In Metro does not exceed P400,000
Manila
Otherwise, RTC

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U.P. LAW BOC SPECIAL PROCEEDINGS
[Sec. 19 and 31, B.P. 129, as amended by R.A. 7691;
Maloles II v. Philips, G.R. Nos. 129505 and 133359
(2000); Lim v. CA, G.R. No. 124715 (2000)]
Exclusive jurisdiction
Sec. 1 of Rule 73 refers to courts in the Philippines
and simply means that once a special proceeding for
the settlement of the estate of a decedent is filed in
one of such courts, that court has exclusive
jurisdiction over said estate and no other special
proceedings involving the same subject matter may be
filed before any other court. Since foreign courts are
not contemplated in Sec. 1, in no way then can it be
validly maintained that the District Court of Hawaii
has encroached upon the jurisdiction of the probate
court by the issuance of the Reference Order [Republic
v. Villarama, Jr., G.R. No. 117733 (1997)]
The ROC likewise provides that the Court first taking
cognizance of the settlement of the estate of the
decedent, shall exercise jurisdiction to the exclusion
of all other Courts. There should be no impediment
to the application of said Rules as they apply
suppletorily to the Code of Muslim Personal Laws,
there being nothing inconsistent with the provisions
of the latter statute [Musa v. Moson, G.R. No. 95574
(1991)]
Testate proceedings take precedence over intestate
proceedings of the same estate [Sandoval v. Santiago,
G.R. No. L-1723 (1949)]
Thus, if in the course of intestate proceedings pending
before a court of first instance, it is found that the
decedent had left a last will and testament,
proceedings for the probate of the latter should
replace the intestate proceedings even if at that stage
an administrator had already been appointed, the
latter being required to render final account and turn
over the estate in his possession to the executor
subsequently appointed. This, however, is understood
to be without prejudice that should the alleged will be
rejected or is disapproved, the proceeding shall
continue as an intestacy [Uriarte v. CFI, G.R. No. L-
21938 (1970)]
2. Venue
Inhabitant of the Court of the province
Philippines at the time where decedent
of death (citizen or resided at time of
alien) death
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REMEDIAL LAW
Inhabitant of a foreign Court of any province
country at the time of where decedent had
death estate
[Sec. 1, Rule 73]
Residence
In the application of venue statutes and rules,
residence rather than domicile is the significant factor.
The word “resides” means personal, actual, or
physical habitation of a person, or his actual residence
or place of abode. It does not mean legal residence or
domicile [Fule v. CA, G.R. No. L-40502 (1976);
Garcia-Quiazon v. Belen, G.R. No. 189121 (2013); San
Luis v. San Luis, G.R. Nos. 133743 and 134029 (2007)]
Even where the statute uses the word ‘domicile’, it
must be construed as meaning residence [Festin 16,
2011 Ed.]
Note: “Jurisdiction” as used in Rule 73 means venue.
If venue is improperly laid
General rule: Ordinary appeal
Exception: Certiorari may be resorted to in case of
impropriety of venue (due to residence or location of
estate) appears on the record.
[Sec. 1, Rule 73]
3. Extent of Jurisdiction of
Probate Court
The probate jurisdiction relates only to matters having
to do with the settlement of the estate and probate of
wills of deceased persons, and the appointment and
removal of administrators, executors, guardians, and
trustees [Ramos v. CA, G.R. No. (1989)]
General rule: A probate court cannot adjudicate or
determine title to properties claimed to be a part of
the estate and which are claimed to belong to outside
parties [Ignacio v. Reyes, G.R. 213192 (2017)]
Exceptions:
a. In a provisional manner to determine whether
said property should be included or excluded in
the inventory, without prejudice to final
determination of title in a separate action [Cuizon
v. Ramolete, G.R. No. L-51291 (1984)]
b. With consent of all the parties, without prejudice
to the rights of third persons [Trinidad v. CA, G.R.
No. 75579 (1991)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

c. If the question is one of collation or advancement

[Coca v. Borromeo, G.R. No. L-27082 (1978)]
d. When the estate consists of only one property
[Portugal v. Portugal-Beltran, G.R. No. 155555
(2005)]
Not the court where petition is first filed but court
which first takes cognizance
The court first taking cognizance of the settlement of
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts [Sec. 1, Rule 73]
Jurisdictional facts
Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the
province where the court is sitting, or if he is an
inhabitant of a foreign country, the estate he left in
such province [Palaganas v. Palaganas, G.R. No. 169144
(2011)]
4. Powers and Duties of a
Probate Court
It is the duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by
intervening in the administration thereof in order to
remedy or repair any injury that may be done thereto
[Dariano v. Fernandez Fidalgo, G.R. No. L-4918 (1909)]
There seems, however, to be a general tendency, in
the absence of express and specific restrictions to the
contrary, to uphold the exercise by the probate court
of such incidental powers as are, within the purview
of their grant of authority, reasonably necessary to
enable them to accomplish the objects for which they
were invested with jurisdiction and to perfect the
same [In Re Baldomero Cosme, G.R. No. 43351 (1937)]

Where estate is settled upon dissolution of Ancillary powers of a probate court

marriage a. Issue warrants and processes to compel
Sec. 2, Rule 73 provides that when the marriage is attendance of a witness and to carry into effect
dissolved by the death of the husband or the wife, the their orders and judgments
community property shall be inventoried, b. Issue warrant for apprehension and
administered, and liquidated, and the debts thereof imprisonment of a person who refuses to
paid, in the testate or the intestate proceedings of the perform an order or judgment
deceased spouse, and if both spouses have died, the c. All other powers granted to them by law
conjugal partnership shall be liquidated in the testate [Sec. 3, Rule 73]
or intestate proceedings of either. In these settlement
proceedings, the probate court has the authority to
determine if the property is conjugal or community in
nature, for purposes of liquidation [Agtarap v. Agtarap,
G.R. Nos. 177099 and 177192 (2011)]

Presumption of death
Sec. 4, Rule 73 is merely one of evidence which
permits the court to presume that a person is dead
after the fact that such person had been unheard from
for the periods fixed in the Civil Code. This
presumption may arise and be invoked and made in a
case, either in an action or in a special proceeding,
which is tried or heard by, and submitted for decision
to, a competent court. Independently of such an
action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the
subject of an action or special proceeding [Valdez v.
People, G.R. No. 180863 (2009), citing In re: Szatraw,
G.R. No. L-1780 (1948)]

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U.P. LAW BOC SPECIAL PROCEEDINGS
B. Summary Settlement of
Estates
General rule: The estate of the decedent should be
judicially administered through an administrator or
executor.
Exceptions:
Law allows heirs to resort to
1. Extrajudicial settlement of estate (decedent died
intestate and left no debts) [Sec. 1, Rule 74]
2. Summary settlement of estate (for estates of small
value, when gross estate does not exceed
P10,000) [Sec. 2, Rule 74]
Recourse to an administration proceeding even if the
estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for
partition. Where partition is possible, either in or out
of court, the estate should not be burdened with an
administration proceeding without good and
compelling reasons [Sps. Villafria v. Plazo, G.R. No.
187524 (2015)]
1. Extrajudicial Settlement of
Estates
Requisites
a. Decedent died intestate
b. Left no debts
c. Heirs are all of age, or minors are represented by
their legal or judicial representatives, and
d. ALL heirs agree
[Sec. 1, Rule 74]
Modes
a. If sole heir – Affidavit of Self-adjudication (of
the whole estate)
b. If more than one heir –
1. Deed of Extrajudicial Settlement is resorted
to if there is no disagreement among the
heirs
2. If there is a disagreement, then they may
resort to an action for partition (judicial)
Note: Both the Affidavit and the Deed are public
instruments.
[Sec. 1, Rule 74]
Affidavit of self-adjudication
The general rule is that when a person dies intestate,
or, if testate, failed to name an executor in his will or
the executor so named is incompetent, or refuses the
Page 224 of 481
REMEDIAL LAW
trust, or fails to furnish the bond required by the
Rules, then the decedent’s estate shall be judicially
administered and the competent court shall appoint a
qualified administrator in the order established in Sec.
6, Rule 78. An exception to this rule is found in Sec.
1, Rule 74 wherein the heirs of a decedent, who left
no will and no debts due from his estate, may divide
the estate either extrajudicially or in an ordinary action
for partition without submitting the same for judicial
administration nor applying for the appointment of
an administrator by the court [Spouses Villafria v. Plazo,
G.R. No. 187524 (2015)]
Where, in the extrajudicial settlement of the estate,
heirs were excluded and minor heirs were not
properly represented, the settlement was not valid and
binding upon them [Neri v. Heirs of Spouses Yusop, G.R.
No. 194366 (2012)]
An Affidavit of Self-Adjudication is only proper when
the affiant is the sole heir of the decedent. This is clear
from the second sentence of Sec. 1, Rule 74
[Rebusquillo v. Spouses Galvez, G.R. No. 204029 (2014)]
Requirement of public instrument
No law requires partition among heirs to be in writing
and be registered in order to be valid. The
requirement in Sec. 1, Rule 74 that a partition be put
in a public document and registered, has for its
purpose the protection of creditors and the heirs
themselves against tardy claims. The requirement of
Art. 1358 of the Civil Code that acts which have for
their object the creation, transmission, modification
or extinguishment of real rights over immovable
property, must appear in a public instrument, is only
for convenience, non-compliance with which does
not affect the validity or enforceability of the acts of
the parties as among themselves [Kilario v. CA, G.R.
No. 134329 (2000)]
Note: The last sentence of the cited doctrine from
Kilario implies that non-compliance with Sec. 1, Rule
74 will be binding only as to the parties to the partition
but not to non-parties (e.g. creditors who did not
know of the partition).
Procedure
Division of estate in a public instrument or
affidavit of adjudication.

Filing of public instrument/affidavit with the
proper Registry of Deeds and posting of a bond if
the estate has personal property (bond equivalent
to amount of personal property).
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW


Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks in
a newspaper of general circulation in the province,
and after such other notice to interested persons as
the court may direct.
The procedure outlined in Sec. 1 of Rule 74 is an ex
parte proceeding. The rule plainly states, however, that
persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby.
The requirement of publication is geared for the
protection of creditors and was never intended to
deprive heirs of their lawful participation in the
decedent's estate [Benatiro v. Heirs of Cuyos, G.R. No.
161220 (2008), citing Cua v. Vargas, G.R. No. 156536
(2006)]
Validity of compromise agreement
Such is 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 [Borja v. Vda. De Borja, G.R. No. L-
28040 (1972)]
2. Two-Year Prescriptive
Period
Disputable presumption of no debt
It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration
within two (2) years after the death of the decedent
[Sec. 1, Rule 74]
Two-year prescriptive period
Heirs or other persons deprived of lawful
participation in the estate may compel judicial
settlement of estate within 2 years from settlement
and distribution [Sec. 1, Rule 74]
A lien shall be constituted on the real property of the
estate and together with the bond, it shall be liable to
creditors, heirs or other persons for a full period of 2
years after such distribution.
Such lien will not be cancelled before the lapse of two
years even if a distributee offers to post bond to
answer for contingent claims [Rebong v. Ibanez, G.R.
No. L-1578 (1947)]
3. Summary Settlement of
Estates of Small Value
When allowed
Whenever the gross value of estate of the decedent
does not exceed P10,000
Procedural requirements
a. Petition by an interested person alleging fact that
estate does exceed P10,000
b. Notice
1. Published once a week for 3 consecutive
weeks
2. In a newspaper of general circulation in the
province
c. Other notice to interested persons as the court
may direct
d. Hearing
1. Held not less than 1 month nor more than 3
months
2. Counted from the date of the last publication
of a notice [Sec. 2, Rule 74]
e. Bond in an amount to be fixed by court if
personal property is to be distributed [Sec. 3, Rule
74]
Upon fulfillment of the requisites, the court may
proceed summarily without the appointment of an
executor/administrator and without delay –
a. to grant, if proper, allowance of the will, if there
be any
b. to determine who are persons legally entitled to
participate in the estate, and
c. to apportion and divide the estate among them
after the payment of such debts of the estate
The persons legally entitled to participate in the estate,
a. in their own right, if of lawful age, or
b. if otherwise, by their guardians or trustees legally
appointed and qualified,
will be entitled to receive and enter into possession of
the portions of the estate so awarded to them
respectively [Sec. 2, Rule 74]
Procedure
Death of the decedent

Petition for summary settlement with allegation
that the gross value of the estate does not exceed
P10,000


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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Publication of notice once a week for 3 consecutive proceeding with the intestate proceedings [Intestate
weeks in a newspaper of general circulation in the Estate of Sebial v. Sebial, G.R. No. L-23419 (1975)]
province
 4. Remedies of Aggrieved
Giving of such other notice to interested persons
as the court may direct Parties after Extrajudicial
 Settlement of Estate
Hearing held not less than 1 month nor more than
3 months from the date of the last publication of Within reglementary period of TWO YEARS
notice a. Claim on the bond for personal properties [Sec.
 4, Rule 74]
Court to proceed summarily, without appointing b. Claim on lien on real property, notwithstanding
an executor/administrator, and to any transfers of real property that may have been
a. Grant allowance of will, if any made [Sec. 4, Rule 74]
(2) Determine persons entitled to estate c. Judicial settlement of estate [Sec. 4, Rule 74]
(3) Pay debts of estate which are due d. Action to annul settlement (fraud [4 years] or
 implied trust [10 years])
Filing of bond when required by the court [Sec. 3,
Rule 74] When applicable
 If it shall appear at any time within 2 years after the
Partition of estate settlement and distribution of an estate that an heir or
other person
COMPARISON a. has been unduly deprived of his lawful
Extrajudicial participation in the estate
Summary settlement 1. He shall have a right to compel the
settlement
settlement of the estate in the courts for the
Court intervention not Summary judicial
purpose of satisfying such lawful
required adjudication needed
participation.
Decedent left no will Decedent may or may
2. If annulment on the ground of fraud, an
(allowed only in not have left a will
action for reconveyance based on an implied
intestate succession) (died intestate/testate)
or constructive trust must be filed within 10
Decedent may have left
Decedent left no debts years from accrual of the cause of action
debts
[Amerol v. Bagumbaran, G.R. No. L-33261
Heirs are all of age or (1987); Zuniga-Santos v. Santos-Gran, G.R. No.
No such requirement
minors are represented 197380 (2014)]
May be instituted by b. has been unduly deprived of his lawful
Instituted only at the any interested party participation payable in money, the court having
instance and by even by a creditor jurisdiction of the estate may, by order for that
agreement of all heirs without consent of the purpose, after hearing
heirs 1. settle the amount of such debts or lawful
Gross value of the participation, and
Value of the estate is
estate must not exceed 2. may issue execution against the bond or
immaterial
P10,000 against the real estate belonging to the
Bond filed with the deceased, or both [Sec. 4, Rule 74]
Register of Deeds Bond filed with and
in an amount equal amount to be When not applicable
to the value of the determined by the a. To persons who have participated or taken part
personal property court or had notice of the extrajudicial partition
of the estate b. When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or heirs
Where the contention that the decedent’s estate is less of the decedent have taken part in the
than P5,000 rests on a controversial basis and no extrajudicial settlement or are represented by
evidence was adduced to ascertain the actual value of themselves or through guardians)
the estate, the probate court is not precluded from

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

The buyer of real property the title of which contains after petitioner learns of judgment or final order,
an annotation pursuant to Sec. 4, Rule 74 cannot be or other proceedings to be set aside, and not
considered innocent purchasers for value [David v. more than 6 months after such judgment or order
Malay, G.R. No. 132644 (1999)] The foregoing rule is entered or taken [Rule 38]
clearly covers transfers of real property to any person,
as long as the deprived heir or creditor vindicates his
rights within two years from the date of the settlement
and distribution of estate. The effects of this
provision are not limited to the heirs or original
distributees of the estate properties, but shall affect
any transferee of the properties [Spouses Domingo v.
Roces, G.R. No. 147468 (2003)]

Additional period for claim of minor or

incapacitated person
If on the date of the expiration of the period of 2 years
after the settlement or distribution of an estate, the
person authorized to file a claim is
a. a minor or mentally incapacitated
b. in prison, or
c. outside Philippines,
he may present his claim within 1 year after such
disability is removed [Sec. 5, Rule 74]

Within the reglementary period, the judge of a

probate court has the power to reopen estate
proceedings even after the issuance of an order
approving a project of partition and closing the
proceedings. Rather than requiring an allegedly
preterited party to air his grievances in a separate and
independent proceeding, he may, within the
reglementary period, claim his relief sought in the
same case by reopening the same even after a project
of partition and final accounting had been approved.
This is proper to avoid needless delay in the resolution
of cases [Jerez v. Nietes, G.R. No. L-26876 (1969)]

Even if the original motion did not afford legal

standing to the three legitimate minor children, under
Sec. 5, Rule 74, such motion may be lodged with the
court within one year after the minors have reached
majority [In Re: Francisco v. Carreon, G.R. No. L-5033
(1954)]

OTHER REMEDIES
a. Action for reconveyance of real property – based
on an implied trust, reckoned 10 years from
issuance of title [Marquez v. CA, G.R. No. 125715
(1998)]
b. Rescission – in case of preterition of compulsory
heir in partition tainted with bad faith [Art. 1104,
NCC]
c. Petition for relief – on ground of fraud, accident,
mistake, excusable negligence. Within 60 days

Page 227 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

b. within 20 days after he knows that he is named

C. Production and Probate executor if he obtained such knowledge after the
of Will testator’s death.
[Sec. 3, Rule 75]

1. Nature of Probate Penalty for neglect without excuse satisfactory to the

Proceedings court shall be a fine not exceeding P2,000 [Sec. 4, Rule
75]
a. In rem proceedings
Person retaining will may be committed to prison if
b. Mandatory – no will shall pass either real or
a. He has custody of the will
personal property unless it is proved and allowed
b. There is a court order directing him to deliver the
in the proper court [Sec. 1, Rule 75]
will, and
c. Right to ask for probate does not prescribe
c. He neglects without reasonable cause to deliver
[Guevara v. Guevara, G.R. No. L-5405 (1956)]
the same [Sec. 5, Rule 75]
d. Doctrine of estoppel does not apply [Fernandez v.
Dimagiba, G.R. No. L- 23638 (1967); Testate Estate
So much is the concern of the law for the
of Abada v. Abaja, G.R. No. 147145 (2005)]
indispensability of probating a will that Sec. 4, Rule 75
penalizes with a fine not exceeding P2,000 the failure
Before any will can have force or validity, it must be
of the custodian of a will to deliver the same to the
probated. Until admitted to probate, a will has no
court or to the executor named therein, as also the
effect whatsoever and no right can be claimed
failure of the executor to present the will to the proper
thereunder [Sps. Pascual v. CA, G.R. No. 115925
court for probate; and under Section of the same rule,
(2003)]
such custodian may be detained by order of the court
until he makes the required delivery of the will [Vda.
The presentation of the will for probate is mandatory
De Precilla v. Narciso, G.R. No. L-27200 (1972); Uy Kiao
and is a matter of public policy. Unless the will is
Eng, G.R. No.176831 (2010)]
probated, the right of a person to dispose of his
property may be rendered nugatory [Maninang v. CA,
G.R. No. L-57848 (1982); Dy Yieng Seangio, et al. v.
Reyes, G.R. Nos. 147371-72 (2006)]

Duty of custodian, executor

Within 20 days after he knows for the testator’s death,
the person who has custody of the will shall deliver
the will to the court having jurisdiction, or to the
executor named in the will [Sec. 2, Rule 75]

In seeking for the production of the original

holographic will, the remedy of mandamus cannot be
availed of because there lies another plain, speedy and
adequate remedy in the ordinary course of law. The
ROC provides for the institution of probate
proceedings for the allowance of the will, whether it
be in the possession of the petitioner or not (Sec. 1,
Rule 76). The petition for mandamus with damages
may therefore be dismissed for lack of cause of action
[Uy Kiao Eng v. Lee, G.R. No.176831 (2010)]

The person named executor shall present the will to

the court having jurisdiction, unless the will has
reached it in any manner, and signify
acceptance/refusal of the trust
a. within 20 days after he knows of the death of the
testator, or

Page 228 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
D. Allowance or
Disallowance of Will
Probate or allowance of wills is the act of proving in
court a document purporting to be the last will and
testament of the deceased for the purpose of its
official recognition, registration and carrying out its
provision in so far as they are in accordance with law
[Festin 40, 2011 Ed.]
General rule: A probate proceeding only looks at
extrinsic validity.
Exception: The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue
[Nepomuceno v. CA, G.R. No. L-62952 (1985)]
Extrinsic validity - due execution of the will
Due execution of the will means
a. That the will was executed strictly in accordance
with the formalities required by law
b. That the testator was of sound and disposing
mind when the will was executed
c. That there was no vitiation of consent through
duress, fear or threats
d. That it was not procured by undue and improper
pressure or influence on part of beneficiary or
other person for his benefit
e. That the testator’s signature is genuine (not
procured through fraud nor trick), and that the
testator intended that what he executed was his
last will and testament)
[Sec. 9, Rule 76]
The very existence of the will is in itself prima facie
proof that the supposed testatrix has willed that her
estate be distributed in the manner provided for in the
will and it is incumbent upon the state that, if legally
tenable, such desire be given full effect independent
of the attitude of the parties affected thereby. It is an
established rule that a testament may not be
disallowed just because the attesting witness declare
against its due execution; neither does it have to be
necessarily allowed just because all the attesting
witnesses declare in favor of its legalization; what is
decisive is that the court is convinced by evidence
before it, not necessarily from the attesting witnesses,
although they must testify, that that will was or was
not duly executed in the manner required by law
[Baltazar v. Laxa, G.R. No. 174489 (2012)]
Page 229 of 481
REMEDIAL LAW
1. Who May Petition For
Probate; Persons Entitled
To Notice
The executor, devisee, or legatee named in the will, or
any other person interested in the estate, may, at any
time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or
destroyed [Sections 1 and 2, Rule 76; Palaganas v.
Palaganas, G.R. No. 169144 (2011)]
A will may be probated
a. Before the testator’s death – By testator himself
(ante-mortem probate)
Rationale: Easier for courts to determine the
mental condition of the testator. Fraud,
intimidation, and undue influence are minimized.
If a will does not comply with requirements
prescribed by law, it may be corrected at once [3
Tolentino 149, 1992 Ed.]
b. After the testator’s death – By executor, devisee,
or legatee named in the will or any person
interested in the estate [Sec. 1, Rule 76]
Meaning of interest in estate
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 [Sumilang v. Ramagosa, G.R.
No. L-23135 (1967)]
Persons entitled to notice
a. Known heirs, legatees and devisees resident in
Philippines
b. Named executor if he is not petitioner, and
c. Named co-executors not petitioning if their place
of residence is known
[Sec. 4, Rule 76]
Note: If the testator himself asks for probate of his
own will, notice shall be sent only to compulsory heirs
[Sec. 4, Rule 76; Nittscher v. Nittscher, G.R. No. 160530
(2007)]
Notice is required to be given to known heirs,
legatees, and devisees of the testator. In the will, the
respondent was instituted as the sole heir of the
decedent. Petitioners, therefore, as nephews and
nieces of the decedent, are neither compulsory nor
testate heirs who are entitled to be notified of the
probate proceedings under the Rules. The respondent
U.P. LAW BOC SPECIAL PROCEEDINGS
had no legal obligation to mention the petitioners in
the petition for probate, or to personally notify them
of the same [Alaban v. CA, G.R. No. 156021 (2005)]
Periods to give notice
a. Personal service – At least 10 days before hearing
b. By mail – at least 20 days before hearing
[Sec. 4, Rule 76]
Contents of petition for allowance of will
a. Jurisdictional facts – refer to the fact of death of
the decedent, his residence at the time of his
death in the province where the court is sitting,
or if he is an inhabitant of a foreign country, the
estate he left in such province [Palaganas v.
Palaganas, G.R. No. 169144 (2011)]
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
[Sec. 2, Rule 76]
Effects of defect in petition
No defect in petition shall render void the allowance
of will, or the issuance of letters testamentary or of
administration with the will annexed [Sec. 2, Rule 76]
Jurisdiction, how acquired
Publication of the notice of hearing brings in the
whole world as a party in the case for probate and
vests the court with jurisdiction to hear and decide it.
Thus, parties not mentioned in the petition for
probate eventually became parties as a consequence
of publication [Alaban v. CA, G.R. No. 156021
(2005)]
The notice must be published 3 weeks successively,
previous to the time set for hearing, in a newspaper
of general circulation in the province [Sec. 3, Rule 76]
EVIDENCE REQUIRED IN SUPPORT OF A
WILL
Uncontested will
a. Notarial Will – Testimony of at least one
subscribing witness that the will was executed as
required by law [Sec. 5, Rule 76]
1. If all subscribing witnesses reside outside of
the province but their deposition can be
taken elsewhere, the court may on motion
order that it be taken and may authorize
Page 230 of 481
REMEDIAL LAW
making of photocopy of the will to be
presented to witness [Sec. 7, Rule 76]
2. If all subscribing witnesses are dead, insane
or do not reside in Philippines, other
witnesses not subscribing may be presented
[Sec. 8, Rule 76]
b. Holographic wills
1. At least one witness who knows the
handwriting and signature of the testator
who explicitly declares that the will and
signature are in the handwriting of the
testator, or
2. In the absence of such competent witness
and the court deems it necessary, expert
testimony may be resorted to
[Sec. 5, Rule 76]
If the testator himself petitions for probate of
holographic will and it is not contested. The fact that
he affirms that the holographic will and the signature
are in his own handwriting shall be sufficient evidence
of genuineness and due execution thereof [Sec. 12,
Rule 76]
It is not mandatory that witnesses be presented first
before expert testimony maybe resorted to unlike in
notarial wills wherein attesting witnesses must first be
presented [Azaola v. Singson, G.R. No. L-14003 (1960)]
CONTESTED WILL
Anyone appearing to contest the will must state in
writing his grounds for opposing its allowance and
serve a copy to petitioner and other interested parties
[Sec. 10, Rule 76]
a. Notarial Will
1. All subscribing witness and the notary if
present in Philippines and not insane must
be presented.
2. If dead, insane or absent – said fact must be
satisfactorily shown in court.
3. If present in Philippines but outside the
province – deposition must be taken.
[Sec. 11, Rule 76; Baltazar v. Laxa, G.R. No.
174489 (2012)]
Can testimony of the subscribing witnesses be
dispensed with in a contested will? YES. If any or
all of the subscribing witness
1. testify against the due execution of the
will, or
2. do not remember having attested to it,
or
U.P. LAW BOC SPECIAL PROCEEDINGS
3. are otherwise of doubtful credibility
The court may allow the will if it is satisfied
from testimony of other witnesses and all
evidence presented that the will was
executed and attested in the manner required
by law [Sec.11, Rule 76]
b. Holographic wills
1. At least three witness who knows the
handwriting and signature of the testator
who explicitly declares that the will and
signature are in the handwriting of the
testator
2. In the absence of such competent witness
and the court deems it necessary, expert
testimony may be resorted to
[Sec. 11, Rule 76]
If the testator himself petitions for probate
of holographic will and it is contested, the
contestant has the burden of disproving
genuineness. Testator may present additional
proof to rebut contestant’s evidence [Sec. 12,
Rule 76]
LOST WILL
a. Notarial Wills – even if lost may be proved
through the following facts
1. Execution and validity of the will
2. Its existence at the time of testator’s death or
that it has been fraudulently or accidentally
destroyed during testator’s lifetime without
his knowledge, and
3. Provisions of the will clearly and distinctly
proved by at least two credible witnesses
If lost will is proved, its provisions must be
distinctly stated and certified by the judge,
under seal of court, and the certificate must
be filed and recorded as other wills are filed
and recorded [Sec. 6, Rule 76]
b. Holographic Wills
General rule: If a holographic will has been lost or
destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.
Exception: A photostatic copy or xerox of the
holographic will may be allowed because
comparison can be made with the standard
Page 231 of 481
REMEDIAL LAW
writings of the testator. [Rodelas v. Aranza, G.R.
No. L-58509 (1982)]
2. Grounds for Disallowing a
Will
The will shall be disallowed if
a. Not executed and attested as required by law
b. Testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
c. Executed under duress, or the influence of fear,
or threats
d. Procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit, or
e. 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 [Sec. 9, Rule 76 cf. Art. 839, CC]
The list is exclusive. Thus, in a petition to admit a
holographic will to probate the only issue to be
resolved are: (1) whether the instrument submitted is,
indeed, the decedent’s last will and testament; (2)
whether said will was executed in accordance with the
formalities pescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time
the will was executed; and (4) whether the execution
of the will and its signing were the voluntary acts of
the decendents [Spouses Ajero v. CA, G.R. No. 106720
(1994)]
3. Effects of Probate
Effect of probate of will
Decree of probate is conclusive as to its due
execution, subject to the right of appeal [Sec. 1, Rule
75]
If a decision admitting a will to probate becomes final,
there can no longer be any challenge to its due
execution and authenticity. Thus, a criminal action
will not lie against an alleged forger of a will which
had been duly admitted to probate by a court of
competent jurisdiction [Mercado v. Santos, G.R. No.
45629 (1938)]
Order allowing or disallowing a will may be the
subject of an appeal [Sec. 1, Rule 109]
U.P. LAW BOC SPECIAL PROCEEDINGS
E. Reprobate
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 in
Philippines [Sec. 1, Rule 77]
1. Requisites before a Will
Proved Abroad Would be
Allowed in Philippines
a. Duly authenticated copy of will
b. Duly authenticated order or decree of its
allowance in foreign country, and
c. Petition for allowance in Philippines filed by the
executor or other person interested
[Sec. 2, Rule 77]
The court having jurisdiction shall fix a time and place
for the hearing and cause notice thereof to be given
as in case of an original will presented for allowance
[Sec. 2, Rule 77]
Evidence necessary for reprobate
a. due execution of the will in accordance with the
foreign laws
b. testator has his domicile in the foreign country
and not in Philippines
c. will has been admitted to probate in such country
d. fact that the foreign tribunal is a probate court,
and
e. laws of a foreign country on procedure and
allowance of wills
[Vda. De Perez v. Tolete, G.R. No. 76714 (1994)]
Our laws do not prohibit the probate of wills executed
by foreigners abroad although the same have not as
yet been probated and allowed in the countries of
their execution. A foreign will can be given legal effect
in our jurisdiction. The rules do not require proof that
the foreign will has already been allowed and probated
in the country of its execution [Palaganas v. Palaganas,
G.R. No. 169144 (2011)]
2. Effect of Reprobate
a. Will shall have the same effect as if originally
proved and allowed in Philippine court [Sec. 3,
Rule 77]
Page 232 of 481
REMEDIAL LAW
b. The grant of letters testamentary or of
administration shall extend to all estate of the
testator in Philippines
c. After payment of just debts and expenses of
administration, estate shall be disposed of
according to the will
d. Residue disposed of in accordance with law [Sec.
4, Rule 77]
Questions as to title to property
General rule: The probate court, whether in a testate or
intestate proceeding, can only pass upon questions of
title provisionally. The reason is that the probate
court’s limited jurisdiction and the principle that
questions of title or ownership, which result in
exclusion or inclusion from the inventory of the
property, can only be settled in a separate action
[Aranas v. Mercado, G.R. No. 156407 (2014), citing De
Leon v. CA, G.R. 128781 (2002); Jimenez v. CA, G.R.
No. 75773 (1990); Agtarap v. Agtarap, G.R. Nos.
177099 and 177192 (2011)]
Exception: If the interested parties are all heirs, or the
question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by
the probate court and the rights of third parties are
not impaired, the probate court is competent to
decide the question of ownership [Cora v. Vda. De
Pangilinan, G.R. Nos. L-27082 and L-29545 (1978);
Agtarap v. Agtarap, G.R. Nos. 177099 and 177192
(2011)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

F. Letters Testamentary and If no provision for

compensation, Sec. 7
of Administration of Rule 85 applies.

Any competent person may serve as an executor or

1. When and to Whom Letters administrator.
of Administration are
Executor of an executor shall not, as such, administer
Granted estate of first testator [Sec. 2, Rule 78]

Who may administer the estate of a deceased person? Married woman may serve as executor or
a. Executor administrator and a marriage of a single woman shall
b. Administrator not affect her authority so to serve under a previous
appointment [Sec. 3, Rule 78]
Executor Administrator
Appointed when Who are incompetent to serve as executor or
a. Testator did not administrator
appoint an a. Minor
Person named executor b. Non-resident
expressly by deceased b. The appointment c. One who, in the opinion of the court, is unfit to
person in his will to was refused exercise the duties of the trust by reason of
administer, settle, and c. The executor is 1. Drunkenness
liquidate estate, and incompetent to 2. Improvidence
subsequently appointed serve 3. Want of understanding
by court d. The will was 4. Want of integrity, or
disallowed 5. Conviction of an offense involving moral
e. No will (intestate turpitude
succession) [Sec. 1, Rule 78]
Has duty to present the
will to court within 20 To be disqualified to serve as executor or
days after (a) he learns administrator under Sec. 1(e), Rule 78, it must be
of the death of testator shown that the conviction must be for an offense
or (b) after he knew he involving moral turpitude. Thus, one’s failure to file a
was appointed as return as required by the NIRC cannot be a basis for
No such duty
executor (if he disqualification, it not being a crime involving moral
obtained such turpitude [Republic v. Marcos II, G.R. Nos. 130371 and
knowledge after death 130855 (2009)]
of testator), unless will
has reached the court The courts may delve into the question of the
in any manner suitableness and fitness of an administrator,
The testator may notwithstanding the fact that both are compulsory
provide that he may heirs, and may in fact appoint one over the other even
serve without a bond if both possess equal status in the order of preference
Required to file bond [Marcelo Investment and Management Corp. v. Marcelo, Jr.,
but the court shall
unless exempted by law G.R. No. 209651 (2014)]
direct him to post a
bond conditioned only
to pay debts. Other grounds in jurisprudence
Compensation a. In this jurisdiction, one is considered to be
provided in the will unsuitable for appointment as administrator
First part of Sec. 7, when he has adverse interest of some kind or
controls, unless
Rule 85 applies hostility to those immediately interested in the
renounced.
estate [Lim v. Diaz-Millarez, G.R. No. L-17633
(1966)]

Page 233 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
b. The administrator should be indifferent between
the estate and claimants of the property, except
to preserve it for due administration, and he
should be removed when his interests conflict
with such right and duty [Medina v. CA, G.R. No.
L-34760 (1973)]
The regular administrator is charged with the task of
accomplishing and terminating the administration of
the estate with the utmost reasonable dispatch, with a
view to an early distribution of the net estate among
the heirs and persons entitled thereto [Medina v. CA,
G.R. No. L-34760 (1973)]
When are letters testamentary or of
administration granted
Letters testamentary – an authority issued to an
executor named in the will to administer the estate. It
is issued once the will has been proved and allowed,
and if the executor named is competent, accepts the
trust and gives bond [Sec. 4, Rule 78]
Letters of administration – authority issued by
court to a competent person to administer the estate
if
a. No executor is named in will
b. Executor or executors named are incompetent,
refuse the trust, or fail to give bond, or
c. Person dies intestate
[Sec. 6, Rule 78]
2. Order of Preference
Order of preference in the grant of letters of
administration
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 enumerated above 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, one or more of the principal creditors, if
competent and willing to serve
c. If there is no such creditor, such other person as
the court may select
[Sec. 6, Rule 78]
Next of kin are those entitled by law to receive the
decedent’s properties [Ventura v. Ventura, G.R. No. L-
26306 (1988)]
Page 234 of 481
REMEDIAL LAW
The order of preference in the appointment of a
regular administrator as provided in the afore-quoted
provision does not apply to the selection of a special
administrator. The preference under Section 6, Rule
78 for the next of kin refers to the appointment of a
regular administrator, and not of a special
administrator, as the appointment of the latter lies
entirely in the discretion of the court, and is not
appealable [Tan v. Gedorio, G.R. No. 166520 (2008)]
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 waste,
improvidence or mismanagement, have the highest
interest and most influential motive to administer the
estate correctly [Gonzalez v. Aguinaldo, et al., G.R. No.
74769 (1990)]
The mere demonstration of interest in the estate to be
settled does not ipso facto entitle an interested person
to co-administration thereof. Neither does squabbling
among the heirs nor adverse interests necessitate the
discounting of the order of preference set forth in
Section 6, Rule 78. Indeed, in the appointment of the
administrator of the estate of the deceased person, the
principal consideration reckoned with is the interest
in said estate of the one to be appointed as
administrator [Suntay III v. Cojuangco-Suntay, G.R. No.
183053 (2012)]
Mere failure to apply for letters of administration does
not remove preference [1 ALR 1247]
Note: The order of preference is not absolute for it
depends on the attendant facts and circumstances of
each case. The selection of an administrator lies in the
sound discretion of the trial court [Aguinaldo-Suntay v.
Cojuangco-Suntay, G.R. No.183053 (2010)]
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 alternative, “may be granted to
one or more of the principal creditors” [3-A Herrera
68, 1996 Ed.]
Co-administrators may be appointed [Matute v. CA,
G.R. No. L-26751 (1969)]
In the appointment of a co-administrator, the size of,
and benefits to the estate may be considered by the
U.P. LAW BOC SPECIAL PROCEEDINGS
court. Thus, where the estate is large or, from any
cause, an intricate or perplexing one to settle, the
appointment of co-administrators may be sanctioned
by law [Uy v. CA, G.R. No. 167979 (2006)]
3. Opposition to Issuance of
Letters Testamentary;
Simultaneous Filing of
Petition for Administration
Who may oppose
Any person interested in a will [Sec. 1, Rule 79]
Meaning of interested person
One who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such
as a creditor; thus, interest must be material and
direct, not merely indirect or contingent [Maloles II v.
Philips, G.R Nos. 129505 and 133359 (2000); Saguinsin
v. Lindayag, G.R. No. L-17759 (1962)]
Respondent’s photograph with his mother near the
coffin of the decedent cannot and will not constitute
proof of filiation. Indeed, respondent is not an
interested person within the meaning of Section 2,
Rule 79 entitled to the issuance of letters of
administration [Solinap v. Locsin, Jr., G.R. No. 146737
(2001)]
Grounds
a. Incompetency of the person/s for whom letters
are prayed, or
b. Contestant’s own right to the administration (ex.
preferential right under Sec. 6, Rule 78)
[Sec. 4, Rule 79]
Form required
Grounds for opposition must be stated in writing;
court shall then hear and pass upon sufficiency of
such grounds [Sec. 1, Rule 79]
Contents of petition for letters of administration
a. Jurisdictional facts
1. Death of testator
2. Residence at time of death in the province
where probate court is sitting, or
3. If he is an inhabitant of foreign country, his
having left his estate in such province [Diez
v. Serra, G.R. No. L-27650 (1927)]
b. Names, ages and residences of heirs, and names
and residences of creditors
c. Probable value and character of the estate, and
Page 235 of 481
REMEDIAL LAW
d. Name of person for whom letters is prayed
[Sec. 2, Rule 79; Palaganas v. Palaganas, G.R. No.
169144 (2011)]
While recitals in the death certificate of the decedent
can be considered proof of a decedent’s residence at
the time of his death, the contents thereof, however,
are not binding on the courts [Garcia-Quiazon v. Belen,
G.R. No. 189121 (2013)]
Defect in petition would not render void issuance of
letters of administration [Sec. 2, Rule 79]
Publication and notice
Notice of hearing must be given in the manner
provided in Sec. 3 and 4, Rule 76, by
a. Publication, and
b. Personal service or by mail
to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in
the estate
[Sec. 3, Rule 79]
Under Sec. 3, Rule 79, the probate court must cause
notice through publication of the petition after it
receives the same. The purpose of this notice is to
bring all the interested persons within the court’s
jurisdiction so that judgment therein becomes binding
on all the world. Where no notice as required by Sec.
3, Rule 79 has been given to persons believed to have
an interest in the estate of the deceased person, the
proceedings for the settlement of the estate is void
and should be annulled. The requirement as to notice
is essential to the validity of the proceeding in order
that no person may be deprived of his right to
property without due process of law [De Guzman v.
Angeles, G.R. No. 78590 (1988)]
Simultaneous filing of opposition and petition
An interested person opposing the petition for
administration may pray in his opposition that letters
issue to himself, or to any competent person/s named
in it [Sec. 4, Rule 79]
Order appointing regular administrator is appealable
[Sec. 1, Rule 109]
When letters of administration are issued
If proven at a hearing that
a. Notice has been given as required, and
b. Decedent left no will, or there is no competent
and willing executor
[Sec. 5, Rule 79]
U.P. LAW BOC SPECIAL PROCEEDINGS
One who is named as executor in the will or one who
enjoys preference under the rules is not automatically
entitled to the issuance of letters testamentary/of
administration. A hearing has to be held in order to
ascertain her fitness to act as executor/administrator
[Baluyut v. Cruz Paño, G.R. No. L-42088 (1976)]
Letters of administration may be granted to any
qualified applicant, though it appears that there are
other competent persons having better right, if such
persons fail to appear when notified and claim the
issuance of letters to themselves [Sec. 6, Rule 79]
4. Powers and Duties of
Executors and
Administrators; Restrictions
on the Powers
Posting of bond
Before an executor or administrator enters upon the
execution of his trust, and letters testamentary or of
administration issue, he shall give a bond in such sum
as the court directs [Sec. 1, Rule 81]
Purpose
The bond posted by the administrators and executors
is intended as an indemnity to the creditors, the heirs
and the estate.
How is liability on the bond enforced?
By motion or in a separate action [Festin 56, 2011 Ed.]
Conditions on the bond
a. Make a return to the court, within 3 months, a
true and complete inventory of all goods, chattel,
rights, credits, and estate of the deceased which
shall come to his possession or knowledge or to
the possession of any other person for him
b. Administer according to these rules, and if an
executor, according to the will of the testator, all
goods, chattel, rights, credits, and estate of the
deceased which shall 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, charges on the same, or dividends
as decreed by court
c. Render a true and just account within 1 year and
when required by court, and
d. Perform all orders of the court [Sec. 1, Rule 81]
If the testator provides in his will that executor shall
serve without bond, or with only his individual bond,
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the court may still allow him to file a bond
conditioned only to pay debts of testator. But court
may require of the executor a further bond in case of
change in his circumstances or for other sufficient
cause [Sec. 2, Rule 81]
Bonds of joint executors and administrators
The court may take a separate bond from each
executor or administrator, or a joint bond from all
[Sec. 3, Rule 81]
SPECIAL ADMINISTRATOR
A special administrator is an officer of the court who
is subject to its supervision and control, expected to
work for the best interest of the entire estate, with a
view to its smooth administration and speedy
settlement [Ocampo v. Ocampo, G.R. No. 187879
(2010)]
The probate court is justified in appointing joint
special administrators pending determination of the
person or persons to whom letters of administration
may be issued, inasmuch as there was a disagreement
as to who should be appointed [Ocampo v. Ocampo,
G.R. No. 187879 (2010); Heirs of Castillo v. Lacuata-
Gabriel, G.R. No. 162934 (2005)]
To reiterate, the role of a special administrator is to
preserve the estate until a regular administrator is
appointed. Given this duty on the part of the special
administrator, it would be prudent and reasonable to
appoint someone interested in preserving the estate
for its eventual distribution to the heirs. While the
court may use its discretion, there is no logical reason
to appoint a person who is a debtor of the estate and
otherwise a stranger to the deceased. To do so would
be tantamount to grave abuse of discretion [Manungas
v. Loreto, G.R. No. 193161 (2011)]
The appointment of a special administrator lies
entirely in the discretion of the court, and is not
appealable. Not being appealable, the only remedy
against the appointment of a special administrator is
certiorari under Rule 65 [Tan v. Gedorio, G.R. No.
166520 (2008)]
Condition on the bond
More specifically, the bond is conditioned on the
faithful execution of the administration of the
decedent’s estate requiring the special administrator
to
a. Make and return true inventory in his possession
or knowledge
b. Render accounting when required by court
U.P. LAW BOC SPECIAL PROCEEDINGS
c. Deliver estate of the deceased to the regular
executor or administrator, or other authorized
person
[Sec. 4, Rule 81; Ocampo v. Ocampo, G.R. No. 187879
(2010)]
a. General Powers and Duties of
Executors and Administrators
Have access to partnership books and property at
all times
1. Have access to, and may examine and take copies
of, books and papers relating to the partnership
business
2. Examine and make invoices of the property
belonging to such partnership
3. Request the surviving partner/s to exhibit to him
all such books, papers, and property in their
hands or control
[Sec. 1, Rule 84]
Failure to freely permit the exercise of these rights,
and to exhibit the books, papers, and property may
subject any partner for contempt.
Keep buildings in tenantable repair
1. Maintain the houses and other structures and
fences belonging to the estate, and
2. Deliver the same in such repair to the heirs or
devisees when directed so to do by the court
[Sec. 2, Rule 84]
When a property is part of an estate and subject to
intestate proceedings before the courts, the
administrator may only deliver properties of the estate
to the heirs upon order of the court. Verily, once an
action for the settlement of an estate is filed with the
court, the properties included therein are under the
control of the intestate court. And not even the
administrator may take possession of any property
that is part of the estate without prior authority of the
court [Silverio, Jr. v. CA, G.R. No. 178933 (2009)]
Right to possession and management of the real
and personal properties
1. So long as necessary for the payment of the debts
and the expenses of administration [Sec. 3, Rule
84]
2. 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
Page 237 of 481
REMEDIAL LAW
administrator [Caro v. CA, G.R. No. L-46001
(1982)]
When the estate of a deceased is already the subject
of a testate or intestate proceeding, the administrator
cannot enter into any transaction involving it without
any prior approval of the probate court [Estate of Olave
v. Reyes, G.R. No. L-29407 (1983)]
b. Restrictions on Powers of
Executors and Administrators
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
1. Interest
2. Profit
3. Income of such estate and
4. Proceeds of as much of the estate as is sold by
him, at the price at which it was sold
[Sec. 1, Rule 85]
Prohibited from profiting by increase or suffering
loss by decrease in value
1. No executor/administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the
estate
2. He must account for the excess (when sold for
more than appraisement)
3. If sold for less, he is not responsible for loss, if
sale justly made
4. If settled claim for less than nominal value, he is
entitled to charge in his account only the amount
actually paid on the settlement
[Sec. 2, Rule 85]
5. Not accountable for debts due the deceased
which remain uncollected without his fault [Sec.
3, Rule 85]
Accountable for income from realty used by him
If executor/administrator uses/occupies any part of
real estate himself, he shall account for it
1. as may be agreed upon between him and the
parties interested, or
2. as may be adjusted by the court with the parties’
assent
If the parties do not agree upon the sum to be
allowed, the same may be ascertained by the court,
U.P. LAW BOC SPECIAL PROCEEDINGS
whose determination in this respect shall be final [Sec.
4, Rule 85]
Accountable if he neglects or delays to raise or
pay money
Damages sustained are considered waste, and may be
charged and allowed against him in his account, and
s/he is liable on his/her bond if s/he
1. Neglects
a. or unreasonably delays to raise money, by
collecting debts or selling real or personal
estate of the deceased, or
b. to pay over money in his hands, and
2. The value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the
persons interested suffer loss
[Sec. 5, Rule 85]
Only necessary expenses shall be allowed
1. Amount paid by executor/administrator 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 [Sec. 6, Rule 85]
2. When the executor is an attorney, he shall not
charge against estate any professional fees for
legal services rendered [Sec. 7, Rule 85]
Necessary expenses of administration
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 [Hermanos v. Abada, G.R. No. 13910 (1919)]
Not considered as necessary expenses
1. Expenses on death anniversary of deceased
because no connection with care, management
and settlement of estate
2. Expenses for stenographic notes and
unexplained representation expenses
3. Expenses incurred by heir as occupant of family
home without paying rent (ex. Salary of house
helper, light, water bills, gas, etc.
[De Guzman v. De Guzman-Carillo, G.R. No. L-29276
(1978)]
4. Expenses incurred by an executor or
administrator to produce a bond [Sison v. Teodoro,
G.R. No. L-9271 (1957)]
5. The administration bond should not be
considered as part of the necessary expenses, not
being included among the acts constituting the
Page 238 of 481
REMEDIAL LAW
care, management, and settlement of the estate
[Ocampo v. Ocampo, G.R. No. 187879 (2010)]
Attorney’s fees
When an attorney assists the administrator or
executor personally in the execution of his trust, the
liability for the payment of attorney’s fees rests on the
executor or administrator. However, if the fees paid
are beneficial to the estate and reasonable, he is
entitled to reimbursement from the estate [Uy Tioco v.
Imperial, G.R. No. L-29414 (1928); Quasha Ancheta
Peña and Nolasco Law Office v. LCN Construction Corp.,
G.R. No. 174873 (2008)]
Allowance to surviving spouse and children
The widow and minor or incapacitated children,
during the settlement of the estate, shall receive,
under the direction of the court, such allowance as are
provided by law [Sec. 3, Rule 83]
It is the court hearing the settlement of the estate, not
the guardianship court, that should execute the order
for the payment of the widow’s allowance considering
that the properties of the estate are within its
jurisdiction, to the exclusion of all the other courts
[Heirs of Sy Bang v. Sy, G.R. Nos. 114217 and 150797
(2009)]
Allowances for support under Section 3, rule 83
should not be limited to the “minor or incapacitated”
children of the deceased. Article 188 of the Civil Code
provides that during the liquidation of the conjugal
partnership, the deceased’s legitimate spouse and
children, regardless of their age, civil status or gainful
employment, are entitled to provisional support from
the funds of the estate. The right and duty to support
subsist even beyond the age of majority. Be that as it
may, grandchildren are not entitled to provisional
support from the decedent’s estate. The law clearly
limits the allowance to “widow and children” and
does not extend to grandchildren, regardless of their
minority or incapacity [Estate of Ruiz v. CA, G.R. No.
118671 (1996)]
In the same way that certain rights still attach by virtue
of the blood relation, so too should certain
obligations which include the exercise of parental
authority, in the event of the untimely passing of the
minor offspring’s adoptive parent. The death of an
adoptive parent at the time when the child was still a
minor resulted in the restoration of the natural
parent’s authority over the adopted child.
Consequently, since the parent by adoption already
died, then the adopted child’s death benefits shall
U.P. LAW BOC SPECIAL PROCEEDINGS
accrue solely to his sole remaining beneficiary, his
natural parent [Bartolome v. Social Security System, G.R.
No. 192531 (2014)]
Executor or administrator to make inventory and
render account
Inventory
Rendered within 3 months of appointment and
includes an appraisal of all real and personal estate of
the deceased which has come into his possession or
knowledge [Sec. 1, Rule 83]
The usage of the word “all” in Sec. 1, Rule 83
demands the inclusion of all the real and personal
properties of the decedent in the inventory. However,
the word “all” is qualified by the phrase “which has
come into his possession or knowledge,” which
signifies that the properties must be known to the
administrator to belong to the decedent or are in her
possession as the administrator. Sec. 1 allows no
exception, for the phrase “true inventory” implies
that no properties appearing to belong to the
decedent can be excluded from the inventory,
regardless of their being in the possession of another
person or entity [Aranas v. Mercado, G.R. No. 156407
(2014)]
Not included
a. Wearing apparel of surviving husband or wife
and minor children
b. Marriage bed and bedding, and
c. Such provisions and other articles as will
necessarily be consumed in the subsistence of the
family of the deceased
[Sec. 2, Rule 83]
Accounting mandatory
Within 1 year from time of receiving letters
testamentary or of administration unless court
otherwise directs [Sec. 8, Rule 85]
He shall render such further accounts as court may
require until the estate is wholly settled [Sec. 8, Rule
85]
Sec. 8, Rule 85 requires the administrator to render an
account of his administration within one year from
receipt of the letters testamentary or of administration
[Hilado v. CA, G.R. No. 164108 (2009)]
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
Page 239 of 481
REMEDIAL LAW
to the accounts submitted by the administrator [Joson
v. Joson, G.R. No. L-9686 (1961)]
Examination on oath by court
As to the correctness of his account before the same
is allowed
Except
a. when no objection is made to the allowance of
the account, and
b. its correctness is satisfactorily established by
competent proof
[Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors of the
estate shall have the same privilege as the
executor/administrator of being examined on oath on
any matter relating to an administration account [Sec.
9, Rule 85]
5. Appointment of Special
Administrator
When appointed
a. When there is delay in granting letters
testamentary or administration by any cause,
including an appeal from allowance or
disallowance of a will [Sec. 1, Rule 80], or
b. When the executor or regular administrator has a
claim against the estate, with respect to the
settlement or adjustment of that claim [Sec. 8,
Rule 86]
Procedure
There must first be notice and publication. Notice
through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator [De Guzman v. Angeles, G.R. No. 78590
(1988)]
Appointment of special administrator lies entirely in
the sound discretion of the court [De Gala v. Gonzales,
G.R. No. L-30289 (1929)]
The preference laid down under Sec. 6, Rule 78 refers
to the appointment of a regular administrator, not to
that of a special administrator [Pijuan v. De Gurrea,
G.R. No. L-21917 (1966)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Regular
Special administrator 6. Revocation, Death,
administrator
Appointed by the court Resignation and Removal of
in the following
instances
Appointed by the court
when
Executors and
a. Testator did not a. there is delay in Administrators
appoint an granting letters
executor testamentary or Revocation of administration
b. The appointment administration by When the decedent’s will is allowed and proved after
was refused any cause letters of administration have been granted as if he
c. The will was b. the executor is a had died intestate, the administration is deemed
disallowed claimant of the revoked [Sec. 1, Rule 82]
d. No will (intestate estate
succession) Duty of administrator upon revocation of letters
Cannot pay debts of a. Surrender letters to court
Should pay the debts of
the estate unless b. Render his account within such time as court
the estate
ordered by the court directs
Order of Appointment [Sec. 1, Rule 82]
Order of Appointment
is interlocutory and is
is final and appealable Removal of executor or administrator
not appealable
Grounds
Powers and duties a. Neglects to
a. Take possession and charge of goods, chattels, 1. Render his account and settle the estate
rights, credits, and estate of deceased, and according to law, or
b. Preserve the same for executor/administrator 2. Perform an order or judgment of the court,
afterwards appointed, and for that purpose may or a duty expressly provided by these rules
commence and maintain suits as administrator b. Absconds
c. May sell only such perishable and other property c. Becomes insane, or
as the court orders sold d. Becomes incapable or unsuitable to discharge the
d. Not liable to pay any debts of the deceased unless trust
so ordered by the court [Sec. 2, Rule 82]
[Sec. 2, Rule 80]
List enumerated is not exclusive. Court is vested with
When powers cease ample discretion in removal of administrator for as
When letters testamentary/administration are granted long as there is evidence of act or omission on the
on the estate of the deceased part of the administrator not conformable to or in
a. Special administrator shall deliver to disregard of rules or orders of the court which it
executor/administrator goods, chattels, money, deems as sufficient or substantial to warrant removal
and estate of deceased in his hands. of administrator [Festin 62, 2011 Ed.]
b. The executor/administrator may prosecute to
final judgment suits commenced by such special Examples of valid removal of an administrator by
administrator. probate court
[Sec. 3, Rule 80] a. Administrator who disbursed funds of estate
without judicial approval [Cotia v. Jimenez, G.R.
Appointment of special administrator is interlocutory No. L-12132 (1958)]
and is not appealable [Sec. 1(e), Rule 109] b. False representation by administrator in securing
his appointment [Cobarrubias v. Dizon, G.R. No.
L-225 (1946)]
c. Administrator who holds interest adverse to that
of the estate or his conduct shows unfitness to
discharge the trust [Garcia v. Vasquez, G.R. No.
L-26615 (1970)]

Page 240 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

d. Administrator who has physical and mental

inability and consequent unsuitability to manage
the estate [De Borja v. Tan, G.R. No. L-6476
(1955)]
Temporary absence in the state does not disqualify
one to be an administrator of the estate [Gonzales v.
Aguinaldo, G.R. No. 74769(1990)]
Removal of Special Administrators
The probate court may appoint or remove special
administrators based on grounds other than those
enumerated in the Rules at its discretion, such that the
need to first pass upon and resolve the issues of
fitness or unfitness and the application of the order of
preference under Section 6 of Rule 78, as would be
proper in the case of a regular administrator, do not
obtain. As long as the discretion is exercised without
grave abuse, and is based on reason, equity, justice,
and legal principles, interference by higher courts is
unwarranted [Ocampo v. Ocampo, G.R. No. 187879
(2010)]
Effect of removal, death, or resignation
a. The remaining executor/administrator may
administer the trust alone, unless the court grants
letters to someone to act with him.
b. If there is no remaining executor/administrator,
administration may be to any suitable person.
[Sec. 2, Rule 82]
The administrator’s lawful acts before the revocation
of the letters of administration or before her removal
shall have the same validity as if there was no such
revocation. It is elementary that the effect of
revocation of letters testamentary or of administration
is to terminate the authority of the executor or
administrator, but the acts of the executor or
administrator, done in good faith prior to the
revocation of the letters, will be protected and a
similar protection will be extended to rights acquired
under a previous grant of administration [Vda. De
Bacaling v. Laguna, G.R. No. L-26694 (1973)]
Powers of new executor or administrator
a. Collect and settle the estate not administered
b. Prosecute and defend actions commenced by or
against the former executor/administrator, and
c. Have execution on judgments recovered in the
name of the former executor/administrator
d. Authority to sell granted by court to former
executor or administrator may be renewed
without further notice or hearing
[Sec. 4, Rule 82]

Sec. 2, Rule 82 provides in clear and unequivocal

terms the modes for replacing an administrator upon
his death and absent a showing that the other
members of the law firm to which the originally
appointed administrator belonged were issued letters
of administration after his death, they can only, at
most, be deemed to have rendered legal services for
they may be paid their professional fees [Quasha
Ancheta Peña and Nolasco Law Office v. LCN Construction
Corp., G.R. No. 174873 (2008)]

Complaints against the general competence of the

administrator, the proper remedy is to seek the
removal of the administrator in accordance with Sec.
2, Rule 82. While the provision is silent as to who may
seek with the court the removal of the administrator,
a creditor, even a contingent one, would have the
personality to seek such relief [Hilado v. CA, G.R. No.
164108 (2009)]

Validity of acts
Lawful acts of the executor/administrator before
removal/resignation are valid [Sec. 3, Rule 82]

Page 241 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
G. Claims against the Estate
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
[Suiliong & Co. v. Chio-Taysan, G.R. No. L-4777 (1908)]
Purpose of presentation of claims against estate
1. To protect the estate of the deceased
2. Executor/administrator will be able to examine
each claim, determine whether it is a proper one
which should be allowed
3. To appraise the administrator and the probate
court of the existence of the 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 [Estate of Olave v.
Reyes, G.R. No. L-29407 (1983)]
1. Time within Which Claims
shall be Filed; Exceptions
General rule: Claims must be filed within the time
specified by the court in its notice which shall not be
less than 6 months nor more than 12 months from
the date of the first publication of the notice [Sec. 2,
Rule 86]
Exceptions: Belated claims
The Court has the discretion, for cause and upon such
terms as are equitable, to allow contingent 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 [Danan v.
Buencaminao, G.R. No. L-57205 (1981); Sec. 2, Rule
86]
Notice to creditors to be published; Affidavit of
publication
Executor/administrator shall, immediately after the
notice to creditors is issued, cause publication of
notice for 3 weeks successively in a newspaper of
general circulation in the province, and its posting in
4 public places in the province, and in 2 public places
in the municipality, where the decedent last resided
[Sec. 3, Rule 86]
Page 242 of 481
REMEDIAL LAW
Printed copy of the published notice shall be filed in
court within 10 days after its publication accompanied
with affidavit setting forth the dates of first and last
publication and name of newspaper where it was
printed [Sec. 4, Rule 86]
Significance of Notice
Publication of notice is constructive notice to
creditors and, thus, a creditor would not be permitted
to file a claim beyond the period fixed in the notice
on the bare ground that he had no knowledge of the
administration proceedings [Villanueva v. PNB, G.R.
No. L-18403 (1963)]
2. Statute of Non-Claims
General rule: Claim must be filed within the time
limited in the notice; otherwise they are barred forever
[Sec. 5, Rule 86]
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 [Rio y Compania v. Maslog,
G.R. No. L-12302 (1959), citing Tan Se Guan v. GaSiu
San, 47 Phil. 96]
The filing of a money claim against the decedent’s
estate is mandatory. The requirement is for the
purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims
against it, enabling him to examine each claim and to
determine whether it is a proper one which should be
allowed. The plain and obvious design of the rule is
the speedy settlement of the affaits of the deceased
and the early delivery of the property to the
distributees, legatees, or heirs [Union Bank of the
Philippines v. Santibañez, G.R. No. 149926 (2005), citing
Py Eng Chong v. Herrera, G.R. No. L-31229 (1976)]
Claims covered (exclusive)
a. Claims for money against the decedent arising
from contract
1. Express or implied
2. Due or not
3. Contingent or not
b. Claims for funeral expenses
c. Expenses for last sickness
d. Judgment for money against decedent
[Sec. 5, Rule 86]
The period, once fixed by the courts, is mandatory [In
Re the Administration of the Estate of Pascual de Villanueva,
G.R. No. L-18403 (1961)]
U.P. LAW BOC SPECIAL PROCEEDINGS
Statute of non-claims supersedes statute of limitations
when it comes to debts of deceased persons [Sikat v.
Vda. De Villanueva, G.R. No. L-35925 (1932)]
Exceptions:
a. When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants [Sec. 5, Rule 86]
b. Belated claims [Sec. 2, Rule 86]
Quasi-contracts and contingent claims are included in
claims that should be filed under Rule 86, Sec. 5
[Metropolitan Bank & Trust Co v. Absolute Management
Corp., G.R. No. 170498 (2013)]
Contingent claim
One which by its nature, is necessarily dependent
upon an uncertain event for existence or validity,
which may or may not develop into an enforceable
claim [Buan v. Laya, G.R. No. L-7593 (1957)]
When allowed
a. When it becomes absolute
b. Presented to the court or executor/administrator
within 2 years from the time limited for other
creditors to present their claims, and
c. Not disputed by executor/administrator
[Sec. 5, Rule 88]
If disputed, it may be proved and allowed or
disallowed by the court as the facts may warrant [Sec.
5, Rule 88]
Where executor/administrator commences action, or
prosecutes action already commenced by deceased in
his lifetime, debtor may set forth by answer the claims
he has against decedent, instead of presenting them
independently to the settlement court, and mutual
claims may be set off against each other in such
action. If debtor obtains a favorable judgment, the
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 [Sec. 5, Rule 86]
In a labor case where the deceased was found to have
illegally dismissed the plaintiff, the money claims of
the plaintiff who was adjudged entitled thereto must
be filed against the estate of the deceased [Gabriel v.
Bilon, G.R. No. 146989 (2007); Sec. 20, Rule 3 in
relation to Sec. 5, Rule 86]
Page 243 of 481
REMEDIAL LAW
The specific provisions of Sec. 5, Rule 86 prevails
over the general provisions of Section 11, Rule 6 of
the same. The settlement of the estate of the decedent
is governed by the rules on special proceedings, while
the rules provided for ordinary claims including
Section 11, Rule 6 merely apply suppletorily
[Metropolitan Bank & Trust Co. v. Absolute Management
Corporation, G.R. No. 170498 (2013)]
The presentation of a money claim may be waived
[Ignacio v. Pampanga Bus Co., Inc., G.R. No. L-18936
(1967)]
If obligation solidary - file claim against decedent as
if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Sec. 6, Rule 86]
Where the obligation assumed by the decedent with
his wife is a solidary one, a collection case can proceed
and the demands of the creditor may be satisfied by
the widow only, even without impleading the estate of
her deceased husband. Thus, under Article 1216 of
the Civil Code, the creditor has the right to proceed
against anyone of the solidary debtors or some or all
of them simultaneously. To require the creditor to
proceed only as against the estate would deprive him
of his substantive rights under the Civil Code.
Substantive law cannot be amended by a procedural
rule [Boston Equity Resources, Inc. v. CA, G.R. No.
173946 (2013)]
Alternative remedies of a mortgage creditor upon
death of debtor
a. Abandon the security and prosecute his claim from the
estate as an ordinary claim – creditor is deemed to
have abandoned the mortgage and he cannot
thereafter file a foreclosure suit if he fails to
recover his money claim against the estate
b. Foreclose mortgage judicially and prove any deficiency as
an ordinary claim – suit should be against the
executor or administrator as party defendant;
creditor may obtain deficiency judgment if he
fails to fully recover his claim
c. Rely solely on the mortgage and foreclose it before it is
barred by prescription without right to claim for deficiency
– includes extrajudicial foreclosure of sale and its
exercise precludes one from recovery of any
balance of debt against the estate and frees the
estate from further liability
[Sec. 7, Rule 86]
It must, however, be emphasized that these remedies
are distinct, independent, and mutually exclusive from
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

each other, thus, the election of one effectively bars d. When the affidavit is made by a person other than
the exercise of the others [Heirs of Maglasang v. Manila the claimant, he must set forth therein the reason
Banking Corporation, G.R. No. 171206 (2013); Philippine why it is not made by the claimant.
National Bank v. CA, G.R. No. 121597 (2001); Festin [Sec. 9, Rule 86]
79, 2011 Ed.]
Answer by executor/administrator
3. Claim of Executor or Shall be filed within 15 days after copy of claim has
been served upon him. Executor/administrator may
Administrator against an interpose any counterclaim. Said counterclaim is
regarded as compulsory, as the failure to file the same
Estate shall bar the claim forever [Sec. 10, Rule 86]
Procedure to follow if the executor/administrator has Judgment of court approving or disapproving a claim
a claim against the estate he represents shall be appealable as in ordinary cases [Sec. 13, Rule
a. Executor/Administrator shall give notice 86]
thereof, in writing, to the court
b. The court shall appoint a special administrator Executor/administrator entirely admits claim – claim
who shall have the same power and liability as the shall be submitted by the clerk to the court who may
general executor/administrator in the adjustment approve the same without hearing, but the court in its
of such claim discretion before approving the claim, may order that
c. The court may order the executor /administrator known heirs, legatees, or devisees be notified and
to pay to the special administrator necessary heard. If the latter oppose upon hearing, the court
funds to defend such claim may allow 15 days to file an answer [Sec. 11, Rule 86]
[Sec. 8, Rule 86]
Executor/administrator disputes claim OR fails to file
4. How to File For a Claim answer – clerk of court shall set the claim for trial with
notice to both parties [Sec. 12, Rule 86]
a. Deliver the claim with the necessary vouchers to
the clerk of court, and
b. Serve a copy thereof on the
executor/administrator
[Sec. 9, Rule 86]

Additional requirements
a. If the claim be founded on a bond, bill, note, or
any other instrument – the original need not be
filed, but a copy thereof with all indorsements
shall be attached to the claim. On demand,
however, of executor/administrator, or by order
of court or judge, the original shall be exhibited,
unless it be lost or destroyed, in which case the
claimant must accompany his claim with affidavit
or affidavits containing a copy or particular
description of the instrument and stating its loss
or destruction.
b. 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, and that there are no offsets to the
same, to the knowledge of the affiant.
c. If the claim is not due, or is contingent, when
filed – it must also be supported by affidavits
stating the particulars thereof.

Page 244 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
H. Actions by and against
Executors and
Administrators
1. Actions by and against
Executors
Actions that may be commenced directly against
executor or administrator
a. Recovery of real or personal property, or interest
therein, from estate
b. Enforcement of a lien thereon, and
c. Recovery of damages for an injury to a person or
property, real or personal
[Sec. 1, Rule 87; Sarsaba v. Vda. De Te, G.R. No.
175910 (2009)]
The aforementioned instances are deemed actions
that survive the death of the decedent [Aguas v. Llenos,
G.R. No. L-18107 (1962); Festin 81, 2011 Ed.]
When an accused, a doctor, died pending appeal of
his conviction in a case arising from the death of his
patient, his criminal liability is extinguished. However,
the recovery of the civil liability subsists as the same
is not based on delict but by contract and the reckless
imprudence he was guilty of under Art. 365 of the
Revised Penal Code. If the same act or omission
complained of arises from quasi-delict, as in this case,
a separate civil action must be filed against the
executor or administrator of the estate of the accused
pursuant to Sec. 1, Rule 87 [Cabugao v. People, G.R.
Nos. 163879 and 165805 (2014)]
NO action upon a claim for the recovery of money or
debt or interest shall be commenced against
executor/administrator [Sec. 1, Rule 87]
Executor or administrator may bring or defend
actions which survive death
For recovery or protection of property or rights of
deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished [Aguas v. Llenos, G.R. No. L-18107 (1962)]
A mortgage belonging to the estate of the deceased
person, as a mortgagee or assignee of the right of a
Page 245 of 481
REMEDIAL LAW
mortgagee, may be foreclosed by the
executor/administrator [Sec. 5, Rule 87]
General rule: Heirs may not sue for recovery of
property of the estate against executor/administrator
during pendency of administration proceedings [Sec.
3, Rule 87; Romero v. CA, G.R. No. 188921 (2012)]
Exceptions:
a. If executor or administrator is unwilling to bring
a suit
b. When the executor or administrator is made a
party defendant where he is alleged to have
participated in the act complained of
c. Where there is no appointed administrator
[Festin 81-82, 2011 Ed.]
2. Recovery of Property
Concealed, Embezzled or
Fraudulently Conveyed
Proceedings when property concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
a. Having concealed, embezzled, or conveyed away
any of the money, goods, or chattels of the
deceased, or
b. Having in his possession or having knowledge of
1. any deed, conveyance, bond, contract, or
other writing which contains evidence of or
tends or discloses the right, title, interest, or
claim of deceased to real or personal estate,
or
2. last will and testament of deceased,
to appear before it and be examined on oath on the
matter of complaint by executor or administrator,
heir, legatee, creditor or other individual interested in
the estate of the deceased to the court having
jurisdiction of the estate.
If the person so cited refuses to appear, or to answer
on such examination or such interrogatories as are put
to him, the court may punish him for contempt, and
may commit him to prison until he submits to the
order of the court [Sec. 6, Rule 87]
Purpose
The proceedings under Section 6, Rule 87 is only for
purposes of eliciting information or securing evidence
from persons suspected of concealing or conveying
some of the decedent’s properties to the prejudice of
creditors. A separate action is necessary for
determination of ownership and recovery of
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

possession [Chua v. Absolute Management Corporation, When recovery by creditor of property

G.R. No. 144881 (2003)] fraudulently conveyed may be done
Any creditor may commence and prosecute to final
Similar to Sec. 6, Rule 87, Sec. 7 of the same rule is judgment a like action for recovery of subject of
merely in the nature of fact-finding inquiries. It is conveyance or attempted conveyance if the following
intended to elicit evidence relative to estate requisites are satisfied
properties. The RTC which has jurisdiction over the a. If executor/administrator failed to commence
administration and settlement of the estate has limited such action
jurisdiction and is without authority to resolve issues 1. Action must be
of ownership with finality especially when third i. With court permission
persons are involved. Separate actions should be ii. In the name of
instituted by the administrator for the purpose executor/administrator
[Punongbayan v. Punongbayan, G.R. No. 156842 (2004)] 2. Creditor must file bond, conditioned to
indemnify the executor/administrator
Double Value Rule against the cost and expenses incurred by
A person who, before grant of letters testamentary or such action
of administration over an estate, embezzles or b. If conveyance or attempt is made in favor of
alienates any money, goods, chattels or effects of executor/administrator
deceased, shall be liable to an action in favor of 1. No need for court permission
executor/administrator for double the value of the 2. No need for bond
property sold, embezzled or alienated, to be 3. Action in the name of all creditors
recovered for benefit of estate [Sec. 8, Rule 87] Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and
When executor or administrator may bring action other expenses incurred therein as the court deems
for recovery of property fraudulently conveyed by equitable.
deceased [Sec. 10, Rule 87]
a. There is deficiency of assets for payment of debts
and expenses of administration and the deceased, 3. Sales, Mortgages, and Other
in his lifetime, had conveyed real or personal
property, right or interest therein, or debt or Encumbrances
credit with intent to defraud his creditors or
avoid any right, debt or duty, or Order of sale of personalty
b. Deceased had so conveyed such property, right, The court upon application of
interest, debt or credit that by law the conveyance executor/administrator, and on written notice to heirs
would be void as against the creditors and the and other persons interested, may order the whole or
subject of the attempted conveyance would be a part of personal estate to be sold, if it appears
liable to attachment by any of them in his lifetime necessary for
[Sec. 9, Rule 87] a. Paying debts, expenses of administration, or
legacies, or
Process of recovery by the executor or b. Preservation of the property
administrator of property fraudulently conveyed [Sec. 1, Rule 89]
a. Creditors apply for the commencement of the
action When court may authorize sale, mortgage or
b. Creditors making the application pay such part of encumbrance of realty
the costs and expenses, or give security therefor Situation Restriction
to the executor/administrator, as the court When personal estate is Authority to sell,
deems equitable insufficient to pay mortgage, or encumber
c. Executor/administrator commences and debts, or where (1) sale so much of real estate,
prosecutes to final judgment an action for the of personal estate may in lieu of personal
recovery of such property, right, interest, debt or injure business of estate, if it clearly
credit for benefit of the creditors persons interested in appears that such sale,
[Sec. 9, Rule 87] estate, and (2) Property etc. would be beneficial
appropriated by to persons interested
testator in will is

Page 246 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Situation Restriction The disposal of estate property requires judicial

insufficient to pay No authority if any approval before it could be executed. Implicit in the
debts person interested in the requirement for judicial approval was that the probate
[Sec. 2, Rule 89] estate gives a bond, in a court could rescind or nullify the disposition of a
sum to be fixed by the property under administration that was effected
court, conditioned to without its authority [Spouses Lebin v. Mirasol, G.R. No.
pay debts, expenses of 164255 (2011)]
administration and
legacies, for security of Conditions of bond
creditors, To pay debts, expenses of administration, and legacies
executor/administrator within such time as court directs [Sec. 3, Rule 89]
[Sec. 3, Rule 89]
Authorized if not Who may claim on the bond
If sale is beneficial to Such bond shall be for security of creditors, as well as
inconsistent with
interested persons, of executor/administrator, and may be prosecuted for
provisions of the will
although not necessary benefit of either [Sec. 3, Rule 89]
and proceeds shall be
to pay debts, expenses,
assigned to persons
or legacies [Sec. 4, Rule Regulations for granting authority to sell,
entitled to the estate in
89] mortgage or otherwise encumber estate
the proper proportions
To pay debts, expenses a. The executor/administrator shall file written
Authorized in the same petition setting forth
of administration, or
manner as for payment 1. Debts due from deceased, expenses for
legacies in foreign
of debts or legacies in administration, legacies
country [Sec. 5, Rule
Philippines 2. Value of personal estate
89]
Not authorized if assets 3. Situation of estate to be sold, mortgaged,
If deceased was in his in hands of encumbered, and
lifetime under contract, executor/administrator 4. Such other facts showing that sale etc., is
binding in law, to deed will be reduced as to necessary or beneficial
real property or interest prevent creditor from b. The court will fix time and place for hearing such
therein [Sec. 8, Rule 89] receiving debt or petition and cause notice to be given personally
diminish his dividend or by mail to persons interested, and by
Where deceased held publication if deem proper
real property in trust c. The court may require executor/administrator to
for another person give additional bond conditioned on accounting
[Sec. 9, Rule 89] for proceeds of sale, etc.
d. The court may authorize sale to be public or
Sec. 8 should be differentiated from Secs. 2 and 4 of private
Rule 89, specifically requiring only the executor or e. If estate is to be sold at auction, mode of giving
administrator to file the application for authority to notice shall be governed by provisions
sell, mortgage or otherwise encumber real estate for concerning notice of execution sale
the purpose of paying debts, expenses and legacies f. Certified copy of the order of the court, plus deed
(Sec. 2); or for authority to sell real or personal estate of executor/administrator for real estate sold,
beneficial to the heirs, devisees or legatees and other mortgaged, or encumbered shall be registered in
interested persons, although such authority is not registry of deeds where property is located
necessary to pay debts, legacies or expenses of [Sec. 7, Rule 89]
administration (Sec. 4). Sec. 8, Rule 89 mentions only
an application to authorize the conveyance of realty Under Sec. 7, Rule 89, only the executor or
under a contract that the deceased entered into while administrator of the estate may be authorized by the
still alive. The proper party is one who is to be intestate court to mortgage real estate belonging to
benefited or injured by the judgment, or one who is the estate. Thus, the order of the estate court
to be entitled to the avails of the suit [Heirs of Sandejas authorizing the heirs to mortgage the realty of the
v. Lina, G.R. No. 141634 (2001)] estate is a nullity [Orola, et al. v. The Rural Bank of
Pontevedra, G.R. No. 158566 (2005)]

Page 247 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
Settled is the rule that when an order authorizing the
sale or encumbrance of real property was issued by
the testate or intestate court without previous notice
to the heirs, devisees, and legatees as required by the
Rules, it is not only the contract itself which is null
and void but also the order of the court authorizing
the same [Pahamotang v. PNB, G.R. No. 156403
(2005)]
Deed of sale, mortgage or encumbrance
The deed executed by the executor or administrator
shall be valid as if executed by deceased in his lifetime
[Sec. 7-8, Rule 89]
For sales contracted by the decedent during his
lifetime, Sec. 8, Rule 89 applies. In such cases, the
court having jurisdiction of the estate may, on
application for that purpose, authorize the executor
or administrator to convey such property according
to such contract, or with such modifications as are
agreed upon by the parties and approved by the court
[Liu v. Loy, G.R. No. 145982 (2003)]
Court approval is required in any disposition if the
decedent’s estate per Rule 89. Reference to judicial
approval, however, cannot adversely affect the
substantive rights of heirs to dispose of their own pro
indiviso shares in the co-heirship or co-ownership. In
other words, they can sell their rights, interests or
participation in the property under administration
[Heirs of Spouses Sandejas v. Lina, G.R. No. 141634
(2001)]
Page 248 of 481
REMEDIAL LAW
I. Payment of Debts of
Estate
Debts paid in full if estate sufficient
1. After all money claims heard and their amount
ascertained, and
2. It appears there are sufficient assets to pay the
debts [Sec. 1, Rule 88]
Executor/administrator shall pay the same within the
time limited for that purpose [Sec. 1, Rule 88]
The heirs of the estate may not demand the closing of
an intestate proceeding at any time 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 [Dinglasan v. Chia, G.R. No. L-3342
(1951)]
Part of estate from which debt paid (in order of
preference)
1. Portion of property designated in the will
a. If testator makes provision by will, or
designates the estate for the payment of
debts, expenses of administration, or family
expenses, they shall be paid according to
such provisions.
b. If not sufficient – part of the estate not
disposed of by will shall be appropriated
[Sec. 2, Rule 88]
2. Personal property
3. Real property
[Sec. 3, Rule 88]
General rule: Personal estate not disposed of by will
shall be first chargeable
Exceptions:
1. Personal estate not sufficient for the purpose, or
2. Its sale will redound to the detriment of the
participants for the estate
[Sec. 3, Rule 88]
If the exceptions above are present
1. The whole of the real estate not disposed of by
will, or so much thereof as is necessary, may be
sold, mortgaged, or otherwise encumbered for
that purpose by the executor/administrator
2. Court approval must first be obtained, and
3. Any deficiency shall be met by contributions in
accordance with the provisions of Sec. 6 of Rule
88 (contributive shares of devisees, legatees, or
heirs in possession).
U.P. LAW BOC SPECIAL PROCEEDINGS
[Sec. 3, Rule 88]
Estate to be retained to meet contingent claims
If court is satisfied that a contingent claim is valid, it
may order executor/administrator to
1. Retain in his hands sufficient estate for the
purpose of paying such contingent claim when it
becomes absolute.
2. If estate insolvent - Retain a portion equal to the
dividend of the other creditors [Sec. 4, Rule 88]
Payment of contingent claim
1. If claim becomes absolute within 2 years limited
for creditors and allowed by the court - Creditor
shall receive payment to the same extent as the
other creditors if estate retained by
executor/administrator is sufficient.
2. Claim not presented after becoming absolute
within 2 year period and allowed by the court –
The assets retained in the hands of
executor/administrator, not exhausted in
payment of claims, shall be distributed by order
of the court to 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 from
property of deceased.
[Sec. 5, Rule 88]
Court to fix contributive shares where devisees,
legates, or heirs have been in possession before
debts have been settled
Where devisees, legatees, or heirs have entered into
possession of portions of the estate before debts have
been settled, the court may, by order, after hearing
1. Settle the amount of their several liabilities
2. Order how much and in what manner each shall
contribute, and
3. Issue execution as circumstances require.
[Sec. 6, Rule 88]
Liability of heirs and distributees
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 [Gov’t of P.I. v.
Pamintuan, G.R. No. L-33139 (1930)]
Page 249 of 481
REMEDIAL LAW
Order of payment if estate is insolvent
Executor/administrator shall pay the debts against
the estate, observing Articles 1059 and 2239 to 2251
of the Civil Code (Preference of credits) [Sec. 7, Rule
88]
Dividends to be paid in proportion to claims
If no assets sufficient to pay credits of any one class
of creditors after paying preferred credits, each
creditor within such class shall be paid a dividend in
proportion to his claim. No creditor of any one class
shall receive any payment until those of the preceding
class are paid [Sec. 8, Rule 88]
Insolvent non-resident
His estate found in Philippines shall be so disposed of
in a manner that will ensure that his creditors here and
elsewhere may receive each an equal share, in
proportion to their respective credits [Sec. 9, Rule 88]
Insolvent resident with foreign creditors and
foreign claims proven in another country
If executor/administrator in Philippines had
1. knowledge of presentation of such claims in such
country, and
2. opportunity to contest such allowance
The court shall
1. Receive a certified list of such claims, when
perfected in such country
2. Add the same to the list of claims proved against
deceased person in Philippines so that a just
distribution of the whole estate may be made
equally among all its creditors according to their
respective claims
[Sec. 10, Rule 88]
Principle of reciprocity
The benefit of this and preceding sections shall not be
extended to creditors in another country if property
of the deceased there found is not equally
apportioned to creditors residing in Philippines and
other creditors, according to their respective claims
[Sec. 10, Rule 88]
Order for payment of debts
Before expiration of time limited for payment of the
debts, court shall order
1. payment, and
2. distribution of assets received by the
executor/administrator for that purpose among
the creditors, as the circumstances of the estate
require and in accordance with the provisions of
this rule
U.P. LAW BOC SPECIAL PROCEEDINGS
[Sec. 11, Rule 88]
If appeal taken from a decision of the court
concerning a claim
The court may
1. Suspend order for payment, or
2. Order distribution among creditors whose claims
are definitely allowed, leaving in the hands of
executor/administrator sufficient assets to pay
the claim disputed and appealed.
When a disputed claim is finally settled, the court shall
order the claim to be paid out of assets retained to the
same extent and in the same proportion with the
claims of other creditors.
[Sec. 12, Rule 88]
Instances when court may make further orders
for distribution of assets
1. If whole of debts not paid on first distribution,
and
2. If
a. Whole assets not distributed, or
b. Other assets afterwards come to hands of
executor/administrator
[Sec. 13, Rule 88]
Creditors to be paid in accordance with terms of
order
When an order is made for distribution of assets
among creditors, executor/ administrator shall, as
soon as the time of payment arrives, pay creditors the
amounts of their claims, or the dividend thereon, in
accordance with the terms of such order [Sec. 14, Rule
88]
Time for paying debts and legacies
General rule: Not exceeding 1 year in the first instance
Exception: Court may extend the period, on
application of the executor/administrator after
hearing on notice to all interested persons, on the
following conditions
1. Extension must not exceed 6 months for a single
extension, and
2. The whole period allowed shall not exceed 2
years
[Sec. 15, Rule 88]
Extension of time for paying debts and legacies
When executor/administrator dies, and a new
administrator of same estate is appointed, court may
extend time
1. Not exceeding 6 months at a time, and
Page 250 of 481
REMEDIAL LAW
2. Not exceeding 6 months beyond the time which
court might have allowed to original
executor/administrator,
and notice shall be given of time and place for hearing
such application, as required in the last preceding
section
[Sec. 16, Rule 88]
Personal property may, upon order, be sold
1. To pay debts, expenses, or legacies, or
2. If it appears necessary for preservation of the
property [Sec. 1, Rule 89], or
3. If sale of whole or part will be beneficial to heirs,
devisees, legatees and other interested persons
and is not inconsistent with the provisions of the
will [Sec. 4, Rule 89]
Real property may, upon order, be sold,
mortgaged, encumbered to pay debts
1. When personal estate is insufficient to pay debts,
or
2. Where
a. Sale of personal estate may injure business of
persons interested in estate, and
b. Property appropriated by testator in will is
insufficient to pay debts
[Sec. 2, Rule 89]
Writ of execution
General rule: The probate court does not have the
power to issue writs of execution. A writ of execution
is not the proper procedure for the payment of debts
and expenses of administration. The proper
procedure is for the court to order the sale of personal
estate or the sale of mortgaged of real property of the
deceased and all debts or expenses of administration
should be paid out of the proceeds of the sale or
mortgage [Aldamiz v. Judge of CFI-Mindoro, G.R. No. L-
2360 (1949)]
Exceptions:
1. To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the decedent’s
assets, or
2. To enforce payment of expenses of the partition,
or
3. To satisfy the costs when a person is cited for
examination in probate proceedings
[Festin 86, 2011 Ed.]
Proper procedure for granting authority to sell,
mortgage, or encumber estate
1. Written petition of executor/administrator
2. Written notice to all heirs, legatees, devisees
residing in Philippines
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Hearing
3.
4. Court order for sale of personal property or sale,
J. Distribution and
mortgage, or encumbrance of real property
5. Recording in registry of deeds of province where
Partition
the real estate concerned is situated of certified Before there could be a distribution of estate, the
copy of court order and deed of following stages must be followed
executor/administrator 1. Liquidation of estate i.e. payment of
[Sec. 7, Rule 89] obligations of deceased
2. Declaration of heirs - to determine to whom the
residue of the estate should be distributed
a. Determination the right of a natural child
b. Determination of proportionate shares of
distributes
Afterwards, the residue may be distributed and
delivered to the heirs [3-A Herrera 173, 1996 Ed.]

Payment of the inheritance tax, per se, does not settle

the estate of a deceased person. An estate is settled
and distributed among the heirs only after the
payment of the debts of the estate, funeral charges,
expenses of administration, allowance to the widow,
and inheritance tax [Agtarap v. Agtarap, G.R. Nos.
177099 and 177192 (2011)]

Court may determine questions as to

advancement made by decedent
Advancements made or alleged to have been made to
heirs by decedent may be determined by court having
jurisdiction of estate proceedings; and final order of
the court shall be binding on person raising the
questions and on the heir [Sec. 2, Rule 90]

Although it is within the jurisdiction of the court

whether or not to permit the advance distribution of
the estate, its exercise should be qualified by the
following: (1) only part of the estate that is not
affected by any pending controversy or appeal may be
subject of advance distribution (Sec. 2, Rule 109); and
(2) the distributees must post a bond, fixed by the
court, conditioned for the payment of outstanding
obligations of the estate (par. 2, Sec. 1, Rule 90)
[Quasha Ancheta Peña and Nolasco Law Office v. LCN
Construction Corporation, G.R. No. 174873 (2008)]

1. Liquidation
General rule: Before an order of distribution or
assignment, it must be shown that the debts, funeral
expenses, and expenses of administration, allowance
to widow, and inheritance tax chargeable to the estate
have been paid

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U.P. LAW BOC SPECIAL PROCEEDINGS
Exception: If the distributees give a bond conditioned
for the payment of said obligations [Sec. 1, Rule 90;
Estate of Ruiz v. CA, G.R. No. 118671 (1996)]
The part distributed must not be subject to any
controversy or appeal [Sec. 2, Rule 109]
2. Project of Partition
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject [Reyes v. Barretto-Datu, G.R. No.
L-17818 (1967); Vda. De Kilayko v. Tengco, G.R. Nos.
L-45425 and L-45965 (1992)]
The executor/administrator 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 [3 Moran
541, 1980 Ed.]
When order for distribution of residue made
Court makes that distribution of the estate and
determines the persons entitled thereto
a. On application of executor/administrator or of
person interested in estate
b. Hearing upon notice
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 executor/administrator, or
any other person having the same in his possession.
If there is a controversy as to who are lawful heirs or
shares such shall be heard and decided as in ordinary
cases [Sec. 1, Rule 90]
The order of a probate court approving the
compromise had the effect of directing the delivery of
the residue of the estate to the persons entitled
thereto under the compromise agreement. As such, it
brought to a close the intestate proceedings and the
probate court lost jurisdiction over the case, except
only as regards the compliance and the fulfillment of
the parties of their respective obligations under the
compromise agreement [Reyes-Masugas v. Reyes, G.R.
No. 174835 (2010)]
Effect of final decree of distribution
a. In rem; binding against the whole world
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REMEDIAL LAW
b. Settlement of a decedent’s estate is a proceeding
in rem which is binding on the whole world. All
persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound. Consequently, a liquidation of
similar import or other equivalent general
liquidation must also necessarily be a proceeding
in rem so that all interested persons whether
known to the parties or not may be bound by
such proceeding [Philippine Savings Bank v. Lantin,
G.R. L-33929 (1983)]
c. 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 [Ramon v.
Ortuzar, G.R. No. L-3299 (1951)]
The only instance where a party 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 [Vda. De
Alberto v. CA, G.R. No. L-29759 (1989)]
3. Remedy of an Heir Entitled
to Residue but Not Given
His Share
The better practice for the heir who has not received
his share is to
a. Demand his share through a proper motion in
the same probate or administrative proceedings,
or
b. Motion for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action
[Guilas v. Judge of the CFI of Pampanga, G.R. No. L-
26695 (1972)]
BUT where special proceedings had been instituted
but had been finally closed and terminated, however,
or if a putative heir has lost the right to have himself
declared in the special proceeding as a co-heir and he
can no longer ask for its re-opening, then an ordinary
civil action can be filed for his declaration as heir in
order to bring about the annulment of the partition or
distribution or adjudication of a property or
properties belonging to the estate of the deceased
[Portugal v. Portugal-Beltran, G.R. No. 155555 (2005)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

4. Instances When Probate

Court May Issue Writ of
Execution
General rule: Writ of Execution is not allowed in
probate proceedings [Vda de. Valera v. Ofilada, G.R.
No. L-27526 (1974)]
Exceptions:
a. To satisfy the contributive shares of devisees,
legatees and heirs in possession of the decedent’s
assets [Sec. 6, Rule 88]
b. To enforce payment of expenses of partition
[Sec. 3, Rule 90]
c. To satisfy the costs when a person is cited for
examination in probate proceedings [Sec. 13,
Rule 142]

When does a probate court lose jurisdiction of an

estate under administration?
The probate court loses jurisdiction of an estate under
administration only after payment of all debts, and the
remaining estate delivered to the heirs entitled to
receive the same [Guilas v. Judge of the CFI of Pampanga,
G.R. No. L-26695 (1972)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Page 254 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

K. Trustees Trustee Executor/Administrator

provisions of the will
[Sec. 4, Rule 89]
Note: This rule only applies to express trusts and not
implied trusts which arise by operation of law [2 Real property may, upon
Regalado 148, 2004 Ed.] order, be sold, mortgaged,
encumbered to pay debts
1. Distinguished From a. When personal estate
is insufficient to pay
Executor/Administrator debts, or
b. Where
Trustee Executor/Administrator 1. Sale of personal
Accounts are not under estate may injure
oath and shall be filed business of
within one (1) year from persons
Accounts must be
the time of receiving interested in
under oath and
letters testamentary or of estate; and
annually filed [Sec.
administration, and as the 2. Property
6(c), Rule 98]
court may require until the appropriated by
estate is wholly settled testator in will is
[Sec.8, Rule 86] insufficient to
Court which has pay debts
jurisdiction: [Sec. 2, Rule 89]
a. RTC or MTC Appointed to carry
in which will into effect the
was allowed if Appointed by court to
provisions of a will
appointed to settle estate of a decedent
or written
carry into effect Court which has instrument
the provisions jurisdiction may be the May be exempted
of a will RTC or MTC [Sec. 19 from filing of bond
b. RTC of and 31, B.P. 129] Not exempted from filing
if requested by
province in of bond even if such
a. testator, and
which property exemption is provided in
b. all persons
or portion the will; However, bond is
beneficially
affected by the only conditioned upon
interested in the
trust is situated payment of debts
trust, being of
[Sec. 1, Rule 98] [Sec. 2, Rule 81]
full age
Personal property may, [Sec. 5, Rule 98]
upon order, be sold
a. To pay debts, A trustee, like an executor/administrator, holds an
May sell or
expenses, or legacies, office of trust, particularly when the trustee acts as
encumber real or
or such under judicial authority [Trusteeship of the Minors
personal property of
b. If it appears necessary Benigno, Angela and Antonio Perez y Tuazon, G.R. Nos.
estate held in trust if
for preservation of L16185-86 (1962)]
necessary or
the property [Sec. 1,
expedient upon
Rule 89], or The duties of executor/administrator are however,
order of the court
c. If sale of whole or fixed and/or limited by law whereas those of the
on petition and after
part will be beneficial trustee of an express trust are, usually governed by
due notice and
to heirs, devisees, the intention of the trustor or the parties, if
hearing
legatees and other established by contract. Besides, the duties of trustees
[Sec. 9, Rule 98]
interested persons may cover a wider range than those of
and is not executor/administrator of the estate of deceased
inconsistent with the persons [Araneta v. Perez, G.R. No. L-16962 (1962)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

A trustee does not acquire ownership of the assets 3. Procedural Requisites for
entrusted to him but merely manages it for the
benefit of the beneficiary [Home Guaranty Corp. v. R-II the Removal and
Builders, Inc., G.R. No. 192649 (2011)]
Resignation of a Trustee
a. Petition by parties beneficially interested
2. Conditions of the Bond b. Due notice to the trustee
c. Hearing
General rule: Before entering on the duties of his trust, [Sec. 8, Rule 98]
a trustee shall file with clerk of court having
jurisdiction of the trust a bond in amount fixed by
court, payable to Government of Philippines and
4. Grounds for Removal and
sufficient and available for protection of any party in Resignation of a Trustee
interest
Grounds for removal
Exceptions: Trustee may be exempted from filing of a. Removal appears essential in the interests of
bond if requested by petitioners
a. testator, and b. Trustee is
b. all persons beneficially interested in the trust, 1. Insane
being of full age 2. Otherwise incapable of discharging his trust,
[Sec. 5, Rule 98] or
3. Evidently unsuitable
Effect of neglect to file bond [Sec. 8, Rule 98]
A trustee who neglects to file a bond shall be
considered to have declined or resigned the trust [Sec. Resignation
5, Rule 98] He may resign his trust if it appears to the court
proper to allow such resignation [Sec. 8, Rule 98]
Conditions
a. Inventory: The trustee will make and return to
court, at such time as it may order, a true
5. Extent of Authority of
inventory of all real and personal estate Trustee
belonging to him as trustee, which at time of the
making of such inventory shall have come to his Nature of Possession
possession or knowledge. The possession of the property by the trustee is not
b. Faithful management: He will manage and an adverse possession, but only a possession in the
dispose of all such estate, and faithfully discharge name and in behalf of the owner of the same.
his trust in relation thereto, according to law and
the will of the testator or the provisions of A trustee may acquire the trust estate by prescription
instrument or order under which he is appointed. provided there is a repudiation of the trust, such
c. Accounting: He will render upon oath at least repudiation being open, clear and unequivocal,
once a year until his trust is fulfilled, unless he is known to the cestui que trust. In that case, prescription
excused in any year by court, a true account of will commence to run from and after said repudiation
the property in his hands and of the management and the knowledge thereof by the cestui [Salinas v.
and disposition thereof, and will render such Tuazon, G.R. No. L-33626 (1931)]
other accounts as the court may order.
d. Settlement of account and delivery of estate: At Territoriality of authority of trustee
expiration of his trust, he will settle his account The powers of a trustee appointed by a Philippine
in court and pay over and deliver all the estate court cannot extend beyond the confines of the
remaining in his hands, or due from him on such territory of the Republic.
settlement, to the person or persons entitled
thereto. This is based on the principle that his authority
[Sec. 6, Rule 98] cannot extend beyond the jurisdiction of the

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Republic, under whose courts he was appointed [3-A

Herrera 250, 1996 Ed.]
L. Escheat
Escheat is a proceeding where the real and personal
property of a person deceased in Philippines, who
dies without leaving any will and without any legal
heirs, becomes the property of the State [Municipal
Council of San Pedro v. Colegio de San Jose, G.R. No. L-
45460 (1938)]

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 [Rellosa v. Gaw Chee
Hun, G.R. No. L-1411 (1953)]

Escheat proceedings are actions in rem, whereby an

action is brought against the thing itself instead of the
person. Thus, an action may be instituted and carried
to judgment without personal service upon the
depositors or other claimants. Jursidiction is secured
by the power of the court over the res. Consequently,
a judgment of escheat is conclusive upon persons
notified by advertisement, as pubication is considered
a general and constructive notice to all persons
interested [RCBC v. Hi-Tri Development Corp., G.R.
No. 192413 (2012)]

1. When to File
Three instances of Escheats
a. When a person dies intestate leaving property in
Philippines leaving no heir [Sec. 1, Rule 91]
b. Reversion proceedings in alienations in violation
of Constitution or other statute [Sec. 5, Rule 91]
c. Unclaimed Balances Act (Act No. 3936, as
amended by PD 679) – dormant accounts for 10
years shall be escheated

An action for reversion or escheat of lands sold to

aliens disqualified from acquiring lands under the
Constitution may be initiated by the Office of the
Solicitor General. However, where the transferees are
Filipino citizens, escheat proceedings can no longer
prosper [Republic v. Register of Deeds of Roxas City, G.R.
No. 158230 (2008)]

Where to file
a. If Resident – RTC of the province where the
deceased last resided
b. If Non-resident – RTC of the place where his
estate is located [Sec. 1, Rule 91]
c. Actions for reversion or escheat of properties
alienated in violation of the Constitution or of

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

any statute — in province where land lies in Court may order, upon motion or motu propio, that
whole or in part [Sec. 5, Rule 91] a permanent trust be established so that only the
income from the property shall be used [Sec. 3,
2. Requisites for Filing of Rule 91]

Petition The right of escheat may be waived, either expressly

or impliedly [Roman Catholic Archbishop of Manila v.
a. A person died intestate Monte de Piedad, et al., G.R. No. L-45496 (1939)]
b. He left no heirs or persons by law entitled to the
same 3. Remedy of Respondent
c. Deceased left properties
[City of Manila v. Archbishop of Manila, G.R. No. L- against Petition; Period for
10033 (1917); Sec. 1, Rule 91]
Filing a Claim
Escheat proceedings may be initiated by the
Government through the Solicitor General or his Period to file a claim to the estate
representative [Sec. 1, Rule 91] Within 5 years from date of judgment; otherwise,
barred forever [Sec. 4, Rule 91]
Procedure
Solicitor General or his representative in behalf of A claimant to an escheated property must file his
the Republic of Philippines files the petition [Sec. claim “within 5 years from the date of such judgment,
1, Rule 91] such person shall have possession of and title to the
same, or if sold, the municipality or city shall be
 accountable for him for the proceeds, after deducting
If petition is sufficient in form and substance, the estate, but a claim not made shall be barred
court shall make an order fixing date and place for forever. The supposed “discovery of the deeds of
hearing, which shall not be more than 6 months donation” is not enough justification to nullify the
after entry of order [Sec. 2, Rule 91] escheat judgment which has long attained finality
 [Republic v. CA, G.R. No. 143483 (2002)]
Court shall direct a copy of order to be published
before the hearing at least once a week for 6 By whom
consecutive weeks in some newspaper of general Devisee, legatee, heir, surviving spouse, or other
circulation published in the province, as the court person entitled to such estate [Sec. 4, Rule 91]
shall deem best [Sec. 2, Rule 91]
 Effect of claim by one who is entitled to the
Court shall hear the case and judge whether or not estate
the estate shall be escheated [Sec. 3, Rule 91] Possession of and title to the estate shall be given. If
 estate has already been sold, then the
Property escheated will be assigned city/municipality shall be accountable for the
a. If personal property – to the municipality proceeds, less reasonable charges for care of estate;
or city where the deceased last resided but a claim not made within 5 years shall be forever
b. If real property – to the municipalities or barred [Sec. 4, Rule 91]
cities, respectively, in which the same is
situated
c. If the deceased never resided in
Philippines – 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.

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U.P. LAW BOC SPECIAL PROCEEDINGS
M. Guardianship
Note: Rules 92-97 are now only applicable to
guardianship over incompetent persons who are not
minors.
Guardianship over minors is governed by A.M. No.
03-02-05 SC or Rule on Guardianship of Minors.
Who are incompetent persons
1. Those suffering from the penalty of civil
interdiction
2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb people who are unable to read
and write
5. Those of unsound mind even though they have
lucid intervals
6. Persons by reason of age, disease, weak mind,
and other similar causes, cannot, without outside
aid, take care of themselves and manage their
property, thereby becoming an easy prey for
deceit and exploitation
[Sec. 2, Rule 92]
A finding that a person is incompetent should be
anchored on clear, positive and definitive evidence.
Where the sanity of a person is at issue, expert
opinion is not necessary and that the observations of
the trial judge coupled with evidence establishing the
person’s state of mental sanity will suffice [Oropesa v.
Oropesa, G.R. No. 184528 (2012)]
Guardianship
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [3-A Herrera 193, 1996 Ed.]
Guardian
A person lawfully invested with power and charged
with the duty of taking care of a person who for some
peculiarity or status or defect of age, understanding
or self-control is considered incapable of
administering his own affairs [3-A Herrera 194, 1996
Ed.]
Basis: parens patriae
It is the State’s duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis-à-vis other parties.
Unable as they are to take due care of what concerns
Page 260 of 481
REMEDIAL LAW
them, they have the political community to look after
their welfare [Nery v. Lorenzo, G.R. No. L-23096
(1972)]
Kinds of guardians
1. Legal Guardian – deemed as guardian by
provision of law, without need of court
appointment [Art. 225, FC]
2. Guardian ad Litem – appointed by court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action
3. Judicial Guardian – appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased war
veterans and other incompetent persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property)
[2 Regalado 118, 2004 Ed.]
1. Guardianship of
Incompetent Persons Not
Minors
Procedure
Filing of petition [Sec. 1, Rule 93]

Court issues order setting time for hearing [Sec. 3,
Rule 93]

Reasonable notice to the incompetent and persons
mentioned in the petition
Notice by publication or otherwise if incompetent
is a nonresident [Sec. 3, Rule 93]

Filing of written opposition [Sec. 4, Rule 93]

Hearing where the alleged incompetent must be
present if able to attend [Sec. 5, Rule 93]

If person in question is incompetent, court
appoints a suitable guardian of his person or
estate, or both [Sec. 6, Rule 93]
The objectives of a hearing on a petition for
appointment of a guardian under Rule 93 is for the
court to determine: (a) whether a person is indeed a
minor or an incompetent who has no capacity to care
for himself and/or his properties; and (b) who is
most qualified to be appointed as his guardian. Thus,
U.P. LAW BOC SPECIAL PROCEEDINGS
creditors of the minor or the incompetent need not
be identified or notified. This is because their
presence is not essential to the proceedings for
appointment of a guardian [Alamayri v. Pabale, G.R.
No. 151243 (2008)]
a. General Powers and Duties of
Guardians
1. Care and custody of person of his ward and
management of his estate, or
2. Management of estate only
3. Management of property within Philippines (in
case of non-resident ward)
[Sec. 1, Rule 96]
By the appointment, it became the guardian’s duty to
care for her aunt’s person, to attend to her physical
and spiritual needs, to assure her well-being, with
right to custody of her person in preference to
relatives and friends. It also became the guardian’s
right and duty to get possession of, and exercise
control over her ward’s property, both real and
personal, it being recognized that the ward has no
right to possession or control of her property during
her incompetency [Cañiza v. CA, G.R. No. 110427
(1997)]
Specific duties
1. To pay just debts of ward out of
a. Personal estate and income of his real estate
of the ward;
b. If (a) is not sufficient, real property of ward
upon obtaining an order for its sale or
encumbrance [Sec. 2, Rule 96]
2. To settle all accounts of his ward [Sec. 3, Rule 96]
3. To demand, sue for, and receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges to
debtor, on receiving a fair and just dividend of
estate and effects [Sec. 3, Rule 96]
4. To appear for and represent ward in all actions
and special proceedings, unless another person is
appointed for that purpose [Sec. 3, Rule 96]
5. To manage property of ward frugally and
without waste, and apply income and profits
thereon, insofar as may be necessary, to
comfortable and suitable maintenance of ward
and his family. If such income and profits be
insufficient for that purpose, to sell or encumber
the real estate, upon being authorized by the
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REMEDIAL LAW
court to do so, and apply proceeds to such
maintenance [Sec. 4, Rule 96]
6. To assent to partition of real or personal
property owned by the ward jointly or in
common with others, upon authority granted by
the court,
a. After hearing
b. Notice to relatives of ward, and
c. Careful investigation as to the necessity and
propriety of proposed action [Sec. 5, Rule
96]
7. To submit to court a verified sworn inventory of
the property of the ward
a. Within three months
1. after appointment, and
2. after the discovery, succession or
acquisition of property of the ward not
included in the inventory, and
b. Annually [Sec. 7, Rule 96]
8. To render sworn account to court for settlement
and allowance
a. Annually after appointment, which may be
compelled upon application of an interested
person [Sec. 7-8, Rule 96]
b. As often as may be required after one year
from appointment [Sec. 8, Rule 96]
Expenses and compensation allowed
Guardian, other than a parent, shall be allowed
1. his reasonable expenses incurred in execution of
his trust, and
2. compensation for his services as court deems
just, not exceeding 15 per centum of net income of
ward [Sec. 8, Rule 96]
Embezzlement, concealment, or conveyance of
ward’s properties
Upon complaint of
1. Guardian or ward, or
2. Any person having actual or prospective interest
in property of ward as creditor, heir, or otherwise
Court may cite anyone suspected of having
embezzled, concealed, or conveyed away any
1. Money, goods, or interest, or
2. Written instrument,
to appear for examination touching such money,
goods, interest, or instrument and make such orders
to secure estate [Sec. 6, Rule 96]
General rule: Purpose of the proceeding is to secure
evidence from persons suspected of embezzling,
concealing or conveying any property of the ward so
as to enable the guardian to institute the appropriate
U.P. LAW BOC SPECIAL PROCEEDINGS
action to obtain the possession of and secure title to
said property. The court can neither determine
ownership of the property claimed to belong to the
ward nor order its delivery
Exception: Court may direct delivery of property to the
guardian only in extreme cases, where the right or title
of the ward is clear and indisputable or where his title
thereto has already been judicially decided [Cui v.
Piccio, G.R. L-5131 (1952)]
Selling and encumbering the property of the
ward
Guardian may present verified petition to court by
which he was appointed for an order authorizing sale
or encumbrance of estate
Grounds
1. When income of estate under guardianship is
insufficient to maintain ward and his family, or
2. When it appears that it is for the benefit of the
ward
[Sec. 1, Rule 95]
Sale must first be confirmed by court and until such
confirmation, not even equitable title passes [3-A
Herrera 222, 1996 Ed.]
Properties of a ward can only be sold under authority
of the guardianship court. Without such authority,
any sale would necessarily be illegal. The probate
court had no jurisdiction to authorize the sale of any
property belonging to an heir who is under
guardianship without first requiring the guardian to
secure the corresponding authority from the
guardianship court [De Pua v. San Agustin, G.R. No.
L-27402 (1981)]
Contents of order for sale or encumbrance
1. Causes why sale or encumbrance is necessary or
beneficial
2. Manner of sale (public or private)
3. Time and manner of payment
4. Security, if payment deferred
5. Additional bond from guardian, if required
[Sec. 4, Rule 95]
Duration of order of sale or encumbrance
No order of sale shall continue in force for more than
1 year after granting of the same, without a sale being
had [Sec. 4, Rule 95]
Investment of proceeds and management of
property
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The court may
1. authorize and require guardian to invest
proceeds of sales or encumbrances, and any
other money of his ward in his hands, in real or
personal estate, for best interest of all concerned
2. make such other orders for management,
investment, and disposition of estate and effects,
as circumstances may warrant
[Sec. 5, Rule 95]
2. Conditions of the Bond of
the Guardian
Note: Applicable for both Guardianship of Minors
and incompetents
a. To make and return to court, within 3 months
after issuance of letters of guardianship, true and
complete inventory of all real and personal estate
of his ward which shall come to his possession
or knowledge, or to possession or knowledge of
any other person from him
b. To faithfully execute duties of his trust, to
manage and dispose of estate according to the
Rules for best interests of ward, and to provide
for his proper care, custody, and education
c. To render a true and just account of all property
of the ward in his hands, and of all proceeds or
interest derived from them, and of management
and disposition of the same, at time designated
by this rule and such other times as court directs
and at the expiration of his trust, to settle his
accounts with the court and deliver and pay over
all estate, effects, and moneys remaining in his
hands, or due from him on such settlement, to
person lawfully entitled thereto
d. To perform all orders of court and such other
duties as may be required by law
[Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05-SC]
3. Rule on Guardianship of
Minors [A.M. NO. 03-02-05-
SC]
General rule: Father and mother shall jointly exercise
legal guardianship over person and property of their
unemancipated common child without necessity of
court appointment [Sec. 1; also Art. 225, FC]
In case of disagreement, father’s decision shall
prevail, unless there is a judicial order to the contrary
[Art. 225, FC]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

However, if market value of property or annual

Income of child exceeds P50,000.00, parent Who may file
concerned shall furnish a bond in such amount as a. Resident minor
court may determine, but in no case less than 10 per 1. Any relative, or
centum of the of such property or annual income, to 2. Other person on behalf of a minor, or
guarantee performance of obligations prescribed for 3. Minor himself, if 14 years of age or over, or
general guardians [Sec. 16] 4. Secretary of DSWD and Secretary of DOH,
in case of an insane minor who needs to be
Procedure hospitalized [Sec. 2]
Filing of petition [Sec. 2] b. Non-resident minor who has property in
 Philippines
Court shall fix time and place for hearing [Sec. 3] 1. Any relative or friend of such minor, or
 2. Anyone interested in his property, in
Reasonable notice to the persons mentioned in the expectancy or otherwise [Sec. 12]
petition and the minor, if 14 years old or over
Where to file
Other general or special notice [Sec. 8] Family Court of
Resident minor province or city where
Notice to the non-resident minor by publication minor actually resides
or any other means as court may deem proper [Sec. Family Court of
12] province or city where
Non-resident minor
his property or any part

thereof is situated
Social worker must conduct case study of minor
and all prospective guardians and submit his report [Sec. 3]
and recommendation to court for its guidance
before scheduled hearing [Sec. 9] Grounds for filing
a. Death, continued absence, or incapacity of
 parents
Hearing b. Suspension, deprivation or termination of
a. Compliance with notice requirement parental authority
must be shown c. Remarriage of surviving parent, if latter is found
b. Prospective ward shall be presented to unsuitable to exercise parental authority
court d. When best interests of the minor so require
[Sec. 4]
At discretion of court, hearing on guardianship
may be closed to public. Records of case shall not Qualifications of guardians
be released without court approval [Sec. 9] Court shall consider the guardian’s
a. Moral character
If the minor is non-resident, the court may b. Physical, mental and psychological condition
dispense with his presence [Sec. 12] c. Financial status
 d. Relationship of trust with minor
Issuance or denial of letters of guardianship e. Availability to exercise powers and duties of a
 guardian for full period of the guardianship
Service of final and executory judgment or order f. Lack of conflict of interest with minor, and
upon the Local Civil Registrar of municipality or g. Ability to manage property of minor
city where minor resides and Register of Deeds of [Sec. 5]
the place where his property or part thereof is
situated, who shall annotate the same in the Order of preference in appointment (in default of
corresponding title, and report to court their parents or a court-approved guardian)
compliance within 15 days from receipt of the a. Surviving grandparent and in case several
order [Sec. 13] grandparents survive, court shall select any of
them taking into account all relevant
PETITION FOR APPOINTMENT OF considerations
GUARDIAN

Page 263 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
b. Oldest brother or sister of minor over 21 years
of age, unless unfit or disqualified
c. Actual custodian of minor over 21 years of age,
unless unfit or disqualified
d. Any other person, who in sound discretion of
court, would serve best interests of minor
[Sec. 6]
Contents of petition
a. Jurisdictional facts
b. Name, age and residence of prospective ward
c. Ground rendering appointment necessary or
convenient
d. Death of parents of minor, or termination,
deprivation or suspension of their parental
authority
e. Remarriage of minor’s surviving parent
f. Names, ages, and residences of relatives within
4th civil degree of the minor, and of persons
having him in their care and custody
g. Probable value, character and location of
property of minor
h. Name, age and residence of person for whom
letters of guardianship are prayed
[Sec. 7]
Petition shall be verified and accompanied by
certification against forum shopping. No defect in
petition or verification shall render void issuance of
letters of guardianship [Sec. 7]
Who may file opposition
a. Any interested person by written opposition
[Sec. 10]
b. Social worker ordered to make case study report,
may intervene on behalf of minor if he finds that
petition for guardianship should be denied [Sec.
9]
Grounds for opposition
a. Majority of minor, or
b. Unsuitability of person for whom letters are
prayed
[Sec. 10]
POWERS AND DUTIES
In general
a. Guardian of resident minor – Care and
custody of person of his ward and management
of his property, or only management of his
property
Page 264 of 481
REMEDIAL LAW
b. Guardian of non-resident minor –
Management of all his property within
Philippines
[Sec. 17]
Bonds of guardians
Before a guardian enters upon execution of his trust,
or letters of guardianship issue, he may be required to
post bond in such sum as determined by court and
conditioned on similar grounds as for guardians of
incompetent persons [Sec. 14]
Whenever necessary, court may require guardian to
post new bond and may discharge from further
liability sureties on the old bond after due notice to
interested persons, if no injury may result to those
interested in the property [Sec. 15]
Liability
In case of breach of any of its conditions, guardian
may be prosecuted in same proceeding for benefit of
ward or of any other person legally interested in the
property [Sec. 15]
REMOVAL, RESIGNATION AND
TERMINATION OF GUARDIANSHIP
Removal
How: Upon reasonable notice to the guardian
Grounds: The guardian
a. Becomes insane or otherwise incapable of
discharging his trust
b. Is found to be unsuitable
c. Wasted or mismanaged property of ward or
d. Failed to render account or make return for
thirty days after it is due
[Sec. 24]
RESIGNATION
Ground: Justifiable causes
Upon removal or resignation of guardian, the court
shall appoint new one.
No motion for removal or resignation shall be
granted unless guardian has submitted the proper
accounting of property of ward and court has
approved the same.
[Sec. 24]
TERMINATION
Grounds: Ward has come of age or has died
U.P. LAW BOC SPECIAL PROCEEDINGS
How Terminated
a. Court motu proprio, or
b. Upon verified motion of any person allowed to
file petition for guardianship
Duty to notify: Guardian shall notify court of fact of
coming of age or death of ward within 10 days of its
occurrence [Sec. 25]
Final and executory judgment or order shall be served
upon Local Civil Registrar of municipality or city
where minor resides and Register of Deeds of
province or city where his property or any part
thereof is situated, who shall enter the final and
executory judgment or order in the appropriate
books in their offices [Sec. 26]
Page 265 of 481
REMEDIAL LAW
N. Writ of Habeas Corpus
In general
Essentially a writ of inquiry, granted to test the right
under which a person is detained, and to relieve a
person if such restraint is illegal [Velasco v. CA, G.R.
No. 118644 (1995)]
The underlying rationale is not the illegality of the
restraint but the right of custody [Tijing v. CA, G.R.
No. 125901 (2001)]
Purpose
The purpose of the writ is to inquire into all manner
of involuntary restraint, and to relieve a person
therefrom if such restraint is illegal
1. To obtain immediate relief from illegal
confinement
2. To liberate those who may be imprisoned
without sufficient cause
3. To deliver them from unlawful custody [Velasco
v. CA, G.R. No. 118644 (1995)]
Coverage
Extends 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 [Sec. 1,
Rule 102]
Note: The privilege of the writ of habeas corpus can only
be suspended in cases of rebellion or invasion and
when public interest requires it [Sec. 15, Art. III,
Constitution]
Concept of restraint
Actual and effective and not merely nominal or moral
restraint is required [Zagala v. Illustre, G.R. No. L-
23999 (1926)]
Restrictive custody is, at best, nominal restraint which
is beyond the ambit of habeas corpus. It is neither
actual nor effective restraint that would call for the
grant of the remedy prayed for. It is a permissible
precautionary measure to assure the PNP authorities
that the police officers concerned are always
accounted for [Ampatuan v Judge Macaraig, G.R. No.
182497 (2010)]
However, actual physical restraint is not always
required; any restraint which will prejudice freedom
of action is sufficient [Moncupa v. Enrile, G.R. No. L-
63345 (1986)]
U.P. LAW BOC SPECIAL PROCEEDINGS
The restraint of liberty must be in the nature of an
illegal and involuntary deprivation of freedom of
action [Sambong v. CA, G.R. No. 111876 (1996)]
Writs issued by the Supreme Court, the Court of
Appeals, and the Sandiganbayan are enforceable
anywhere in the Philippines. Those issued by the
RTC and MTC are enforceable only within the
judicial region to which they belong.
Even though the writ of habeas corpus was issued by
the CA but it designated the RTC as the court to
which the writ is made returnable, the decision of the
RTC is its own and not that of the CA. [In re Datukan
Malang Salibo, (2015)].
Strict compliance with the technical requirements for
a habeas corpus petition as provided in the Rules of
Court may be dispensed with where the allegations in
the application are sufficient to make out a case for
habeas corpus. Indeed, in the landmark case of
Villavicencio v. Lukban, 39 Phil. 778, the Supreme
Court declared that it is the duty of a court to issue
the writ if there is evidence that a person is unjustly
restrained of his liberty within its jurisdiction even if
there is no application therefor. A petition which is
deficient in form, such as a petition-letter, may be
entertained so long as its allegations sufficiently make
out a case for habeas corpus. [Fletcher v. Director of
BuCor, UDK- 14071, (2009)].
The writ of habeas corpus is not available to one who
was released on bail, because actual physical restraint
is required.
Habeas corpus is the proper remedy for a person
deprived of liberty due to mistaken identity. In such
cases, the person is not under any lawful process and
is continuously being illegally detained. [In re Datukan
Malang Salibo, (2015)].
In the case of minors
1. Prosecuted for the purpose of determining the
right of custody over a child.
2. Question of identity is relevant and material and
must be convincingly established
[Tijing v. CA, G.R. No. 125901 (2001)]
Who may issue the writ
1. The SC, CA, and RTC have concurrent
jurisdiction to issue WHC [Sec. 2, Rule 102]
2. Family courts have jurisdiction to hear petitions
for custody of minors and the issuance of the
writ in relation to custody of minors [Sec. 20, AM
Page 266 of 481
REMEDIAL LAW
03-04-04-SC, Re Proposed Rule on Custody of
Minors and Writ of Habeas corpus in Relation to
Custody of Minors]
Temporary release may constitute restraint
1. Where a person continued to be unlawfully
denied one or more of his constitutional rights
2. Where there is present denial of due process
3. Where the restraint is not merely involuntary but
appear to be unnecessary
4. Where a deprivation of freedom originally valid
has in light of subsequent developments become
arbitrary [Moncupa v. Enrile, G.R. No. L-63345
(1986)]
General rule: Release of detained person, whether
permanent or temporary, makes the petition for
habeas corpus moot.
Exception: Doctrine of Constructive Restraint –
Restraints attached to release which precludes
freedom of action, in which case the court can still
inquire into the nature of the involuntary restraint
The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary
restraint. Any restraint which will preclude freedom
of action is sufficient [Villavicencio v. Lukban, G.R. No.
14639 (1919)]
Nature
Not a suit between private parties, but an inquisition
by the government, at the suggestion and instance of
an individual, but still in the name and capacity of the
sovereign. There can be no judgment entered against
anybody since there is no real plaintiff and defendant
[Alimpos v. CA, G.R. Nos. L-50405-06 (1981)]
Proceedings in habeas corpus are separate and distinct
from the main case from which the proceedings
spring. They rarely touch the merits of the case and
require no pronouncement with respect thereto
[Ching v. Insular Collector of Customs, G.R. No. 10972
(1916)]
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 [Herrera, citing 4 Cranch, 75, 101]
U.P. LAW BOC SPECIAL PROCEEDINGS
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 of relieving from illegal
restraint [People v. Valte, G.R. No. L-18760 (1922)]
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 to 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 [People v. Valte, G.R. No. L-18760 (1922)]
It is a prerogative writ which does not issue as a
matter of right but in the sound discretion of the
court [Mangila v. Judge Pangilinan, G.R. No. 160739
(2013)]
Habeas corpus is a summary remedy. It is analogous to
a proceeding in rem when instituted for the sole
purpose of having the person of restraint presented
before the judge in order that the cause of his
detention may be inquired into [Caballes v. CA, G.R.
No. 163108 (2005)]
The writ of habeas corpus will not issue where the
person alleged to be restrained of liberty is in the
custody of an officer under a process issued by a
court which has jurisdiction to do so. Since Major
Aquino stands charged in court martial proceedings
for alleged violations of Article 67 (attempting to
begin or create a mutiny) and Article 96 (conduct
unbecoming an officer and a gentleman), the legality
of his arrest is settled and the writ is unavailing.
Furthermore, the writ of habeas corpus is not the
proper mode to question conditions of confinement,
the writ will only lie if what is questioned is the fact
or duration of confinement. [Aquino v. Esperon,
174994, (2007)].
The restrictive custody and monitoring of
movements or whereabouts of police officers under
investigation by their superiors is not a form of illegal
detention or restraint of liberty. This is sanctioned by
Sec. 52.4 of R.A. No. 8551 (New DILG Act of 1990).
Even assuming that there initially was no
administrative investigation when placed in custody,
the subsequent investigation would legalize his
restrictive custody. [Ampatuan v. Macaraig, (2010)].
The writ of habeas corpus cannot be availed of in
cases of detention by virtue of a judicial process or
Page 267 of 481
REMEDIAL LAW
valid judgment. Exceptions where the writ may be
availed of as a post-conviction remedy:
(a) There has been a deprivation of a constitutional
right resulting in the restraint of a person;
(b) The court had no jurisdiction to impose the
sentence; or
(c) An excessive penalty has been imposed, as such
sentence is void as to such excess. [Harden v. Director
of Prisons, 81 Phil. 741; Go v. Dimagiba, G.R. No.
151876, (2005)].
Dimagiba’s contention that the principle of
retroactivity of penal laws would benefit him is not
correct since Adm. Cir. 12-2000 is not a law which
deleted the penalty of imprisonment but a circular
which merely established a rule of preference, subject
to the judge’s discretion, in imposing penalties under
B.P. Blg. 22. The SC cannot delete the penalty of
imprisonment for that would in effect be a law which
only Congress may enact. Nor would the plea of
equal protection of laws be appropriate. This is
because SC A.C. No. 12-2000 as aforestated is not a
law. Hence we apply the general rule that habeas
corpus is unavailing if a person is under custody by
virtue of legal process or a valid judgment. [Go v.
Dimagiba, G.R. No. 151876. (2005)].
Adm. Cir. 08-2008 (Rule of preference in the
imposition of penalties in libel) not a ground for the
release on habeas corpus of reporter. The circular
cannot be given retroactive effect where judgment in
criminal case already final and executory. [Adonis v
Tesoro, (2013)].
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 [Galvez v. CA, G.R. No. 114046 (1994)]
WHC reaches the body and the jurisdictional matters,
but not the record. Writ of certiorari reaches the
record, but not the body [Galvez v. CA, G.R. No.
114046 (1994)]
While generally, the WHC will not be granted when
there is an adequate remedy like writ of error, appeal,
or certiorari, it may still be available in exceptional
cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-
488]
Overview of Procedure
U.P. LAW BOC SPECIAL PROCEEDINGS
1. Application for the writ by petition [Sec. 3, Rule
102]
2. Grant or disallowance of writ and issuance by
court or judge [Secs. 4-5, Rule 102]
3. Clerk of court issues the writ under the seal of
court (in case of emergency, by the judge
himself) [Sec. 5, Rule 102]
Note: ROC (Secs. 5 and 12) does not fix the
periods but uses “forthwith” but the special rules
for WHC relating to minors designates periods.
However, in practice and in jurisprudence, the
writ must be issued within 24 hours.
4. Service
a. By whom sheriff or other proper officer
BUT in case of emergency where the judge
himself issues the writ, the judge may depute
any person to serve the writ [Sec. 5, Rule
102]
b. How leaving the original with the person to
whom it is directed and preserving a copy on
which to make return
c. To whom officer in custody or any officer
(when in custody of person other than an
officer) [Sec. 7, Rule 102]
5. Writ executed and returned [Sec. 8, Rule 102]
6. Hearing by the court (upon return) [Sec. 12, Rule
102]
7. Execution of the writ
a. Officer brings the person before the judge,
and
b. Officer makes due return [Sec. 8, Rule 102]
1. Contents of the Petition
Signed and verified petition must set forth
a. That the person in whose behalf the application
is made is imprisoned or restrained of his liberty
b. The officer or name of the person by whom he
is so imprisoned or restrained
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. Copy of the commitment or cause of detention
of such person, if it can be procured without
impairing the efficiency of the remedy
If imprisonment or restraint is without any legal
authority, such fact shall appear [Sec. 3, Rule 102]
Page 268 of 481
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Who may apply
a. The party for whose relief it is intended, or
b. By some person on his behalf [Sec. 3, Rule 102]
Some person – any person who has a legally justified
interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make
the application [Velasco v. CA, G.R. No. 118644
(1995)]
2. Contents of the Return
Form
a. Signed by the person who makes it
b. Sworn by the person who makes it if
1. The prisoner is not produced, and
2. In all other cases, unless the return is made
and signed by a sworn public officer in his
official capacity [Sec. 11, Rule 102]
By whom made: The person or officer who has the
person under restraint, or in whose custody the
prisoner is found [Sec. 10, Rule 102]
Contents
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.
When the return considered evidence, and when
only a plea
Custody under
warrant of Restraint is by
commitment in private authority
pursuance of law
The return shall be
The return shall be
considered only as a
considered prima
plea of the facts
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

facie evidence of the therein set forth, and
cause of restraint the party claiming the
custody must prove
such facts
[Sec. 13, Rule 102]
3. Distinguish Peremptory
Writ from Preliminary
Citation
Distinction between the writ and the privilege of
the writ
The writ of habeas corpus is a process that is
tantamount to a summons to appear before the court
issuing it for an inquiry into the cause of the restraint
complained of. Its issuance does not amount to an
adjudication of the issue of legality of the restraint. It
is just an order to appear and explain.
The privilege of the writ, on the other hand, is the
writ issued to enforce the court’s decision on the
merits finding the restraint illegal and directing the
release from custody of the detained individual.
their supposed release, the respondents have the
burden in law of proving by clear and convincing
evidence that they released the detainees [Dizon v
Eduardo, G.R. No. L-59118 (1988)]
4. When Not Proper or
Applicable
When WHC is NOT proper
a. For asserting or vindicating the denial of right to
bail [Galvez v. CA, G.R. No. 114046(1994)]
b. Where the petitioner has the remedy of appeal or
certiorari [Galvez v. CA, G.R. No. 114046(1994)]
c. For correcting errors in the appreciation of facts
or law [Sotto v. Director of Prisons, G.R. No. L-
18871 (1962)]
Exception: If error affects court’s jurisdiction
making the judgment void [Herrera]
d. For enforcing marital rights including venture
and living in conjugal dwelling [Ilusorio v. Bildner,
G.R. No. 139789 (2001)]

Preliminary citation Peremptory writ

A written document When WHC is proper
which unconditionally a. Remedy for reviewing proceedings for
Requires the
commands the deportation of aliens [De Bisschop v. Galang, G.R.
respondent to appear
respondent to have the No. L-18365 (1963)]
and show cause why
body of the detained b. Where the court has no jurisdiction to impose
the peremptory writ
person before the the sentence [Banayo v. President of San Pablo, G.R.
should not be granted
court at a time and No. 1430 (1903)]
place therein specified
[Lee Yick Hon v. Collector of Customs, G.R. No. L-16779
(1921)] 5. When Writ Disallowed or
Discharged
The order to present an individual before the court is
a preliminary step in the hearing of the petition. This a. When restraint is by lawful order or process
order is NOT a ruling on the propriety of the remedy [Mangila v. Judge Pangilinan, G.R. No. 160739
or on the substantive matters covered by the remedy. (2013); Adonis v. Tesoro, G.R. No. 182855 (2013);
Thus, the order to produce the body is not equivalent Ampatuan v. Judge Macaraig, G.R. No. 182497
to a grant of the writ of habeas corpus [In the Matter of (2010)]
the Petition for Habeas corpus of Alejano v. Cabuay, G.R. b. The person alleged to be restrained of his liberty
No. 160792 (2005)] is in the custody of an officer
1. Under process issued by the court or judge
Quantum of proof for the issuance or non- or by virtue of a judgment or order of a
issuance of the privilege court of record, and
When respondents' defense to a petition for habeas 2. Said court had jurisdiction to issue the
corpus is that they released the detainees for whom process, render the judgment or make the
the petition was filed, but the allegation of release is order, or
disputed by petitioners, and it is not denied that the
detainees have not been seen or heard from since

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

c. Jurisdiction appears after the writ is allowed

despite any informality or defect in the process,
judgment, or order [Sec. 4, Rule 102]
d. 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 [Sec. 14, Rule 102]
e. Even if the arrest of a person is illegal, the
following supervening events may bar release
1. Issuance of a judicial process [Sayo v. Chief of
Police of Manila, G.R. No. L-2128 (1948)]
The writ exists as a speedy and effectual remedy to
relieve persons from unlawful restraint and as an
effective defense of personal freedom. It is issued
only for the lone purpose of obtaining relief for those
illegally confined or imprisoned wihout sufficient
legal basis. It is not issued when the person is in
custody because of a judicial process or a valid
judgment. Thus, when the detention was by virtue of
a final judgment, the writ of habeas corpus may not
issue [Adonis v. Tesoro, G.R. No. 182855 (2013)]

Judicial process is defined as a writ,
warrant, subpoena, or other formal writing
issued by authority of law [Malaloan v. CA,
G.R. No. 104879 (1994)]
2. The filing of a complaint before a trial court
which issued a hold departure order and
denied motion to dismiss and to grant bail
[Velasco v. CA, G.R. No. 118644(1995)]
3. Filing of an information for the offense for
which the accused is detained bars the
availability of WHC [Velasco v. CA, G.R. No.
118644 (1995)]
What is to be inquired into is the legality of a person’s
detention as of, at the earliest, the filing of the
application for the writ of habeas corpus, for even if the
detention is at in its inception illegal, may no longer
be illegal at the time of the filing of the application,
by reason of supervening events [Ampatuan v.
Macaraig, G.R. 182497 (2010)]
What is to be inquired into is the legality of his
detention as of, at the earliest, the filing of the
application for the writ, for even if the detention is at
its inception illegal, it may, by reason of some
supervening events, such as the instances mentioned
in Section 4, Rule 102, be no longer illegal at the time
of the filing of the application [Office of the Solicitor
General v. De Castro, A.M. No. RTJ-06-2018 (2007)]
Where the person is detained under governmental
authority and the illegality of his detention is not
patent from the petition for the writ, the court may
issue a preliminary citation to the government officer
having custody to show cause why the writ should
not issue. When the cause of the detention appears to
be patently illegal, the court may issue a peremptory
writ requiring the unconditional production before
the court of the body of the person detained at the
date and time specified. [Lee Yick Hon v. Insular
Collector of Customs, 41 Phil. 548, (1921)].

Remedy 6. Distinguished From Writ of

In such cases, instead of availing themselves of the
extraordinary remedy of a petition for habeas corpus, Amparo and Habeas Data
persons restrained under a lawful process or order of
the court must pursue the orderly course of trial and Writ of
Writ of Writ of habeas
exhaust the usual remedies. This ordinary remedy is habeas
amparo data
to file a motion to quash the information or the corpus
warrant of arrest [In the matter of the petition for habeas Extends to Designed to
corpus of Datukan Malang Salibo v. Warden, G.R. No. all cases of protect the
197597 (2015)] illegal image, privacy,
confinement honor,
ONLY covers
The object of the writ of habeas corpus is to inquire into or detention information, and
extralegal
the legality of the detention, and, if the detention is (deprivation freedom of
killings and
found to be illegal, to require the release of the of liberty), information of
enforced
detainee. Equally well settled however, is that the writ or where an individual,
disappearances
will not issue where the person in whose behalf the rightful and to provide a
or threats
writ is sought is out on bail, or is in custody of an custody is forum to
thereof
officer under process issued by a court or judge with withheld enforce one’s
jurisdiction or by virtue of a judgment or oder of a from person right to the truth
court of record [Mangila v. Pangilinan, G.R. No. entitled and to
160739 (2013] thereto informational

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

privacy but in The verified petition shall allege the following

relation to a a. The personal circumstances of the petitioner and
threat to one’s of the respondent
right to privacy b. The name, age and present whereabouts of the
in regard to life, minor and his or her relationship to the
security, and petitioner and the respondent
liberty [Vivares v. c. The material operative facts constituting
St. Theresa’s deprivation of custody and
College, G.R. No. d. Such other matters which are relevant to the
202666 (2014)] custody of the minor [Sec. 4]

The writ of amparo, in its present form, is confined
only to these two instances of “extralegal killings”
and enforced disappearances [Rev. Fr. Reyes v. CA,
G.R. No. 182161 (2009)]
The writ of habeas data is not only confined to cases
of extralegal killings and enforced disappearances
[Vivares v. St. Theresa’s College, G.R. No. 202666
(2014)]
See Comparative Table at the end of Writ of Habeas
Data for a more comprehensive list of distinctions.
7. Rules on Custody of Minors
and Writ of Habeas Corpus
In Relation To Custody of
Minors [A.M. No. 03-04-04-
SC]
RULES ON CUSTODY OF MINORS
Applicability
a. Petitions for custody of minors and
b. Writs of habeas corpus in relation thereto [Sec. 1]
ROC shall apply suppletorily [Sec. 1]
PETITION FOR CUSTODY OF MINORS
Who may file
Any person claiming right of custody [Sec. 2]
Party against whom it may be filed shall be designated
as the respondent.
Where to file
Family Court of the province or city
a. where the petitioner resides or
b. where the minor may be found [Sec. 3]
Contents of petition
Answer to the Petition must be verified and filed
within 5 days after service of summons and copy of
petition [Sec. 7]
Motion to dismiss is not allowed except on ground
of lack of jurisdiction over
a. Subject matter or
b. Parties [Sec. 6]
Case study
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 [Sec. 8]
Pre-trial
Pre-trial is mandatory [Sec. 9]
a. 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 [Sec.10]
b. If the petitioner fails to appear personally at
the pre-trial, the case shall be dismissed
Unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner [Sec. 11]
c. 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.
The court shall then render judgment on the
basis of the pleadings and the evidence thus
presented [Sec. 9]
Provisional order awarding custody
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. As far as
practicable, the following order of preference shall
be observed in the award of custody
a. Both parents jointly

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U.P. LAW BOC SPECIAL PROCEEDINGS
b. Either parent taking into account all relevant
considerations, especially the choice of the
minor over seven years of age and of sufficient
discernment, unless the parent chosen is unfit
c. The grandparent, or if there are several
grandparents, the grandparent chosen by the
minor over 7 years of age and of sufficient
discernment, unless grandparent chosen is unfit
or disqualified
d. The eldest brother or sister over 21 years of age,
unless unfit or disqualified
e. The actual custodian of the minor over 21 years
of age, unless unfit or disqualified
f. Any other person or institution the court may
deem suitable [Sec. 13]
In awarding custody, the court shall consider the best
interests of the minor and shall give paramount
consideration to his material and moral welfare [Sec.
14]
Interim reliefs
a. Temporary visitation rights - court shall
provide in its order awarding provisional custody
appropriate visitation rights to the non-custodial
parent or parents.
1. Unless the court finds said parent or parents
unfit or disqualified.
2. 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 [Sec. 15]
b. 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.
1. The 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 Philippines without court
permission.
2. 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.
3. The court may recall the hold departure
order motu proprio or upon verified motion of
any of the parties after summary hearing
[Sec. 16]
Page 272 of 481
REMEDIAL LAW
c. Protection order (PO) - court may issue a PO
requiring any person
1. 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
2. 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
3. To refrain from acts or omission that create
an unreasonable risk to minor
4. 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
5. 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
6. To comply with such other orders as are
necessary for the protection of the minor
[Sec. 17]
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.
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 [Sec. 18]
U.P. LAW BOC SPECIAL PROCEEDINGS
Appeal
Appeal from the decision shall be allowed, 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 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
[Sec. 19]
PETITION FOR WRIT OF HABEAS CORPUS
INVOLVING CUSTODY OF MINORS
Where filed; where enforceable
A verified petition for a writ of habeas corpus involving
custody of minors is filed with the Family Court of
the province or city where the petitioner resides, or
where the minor may be found, or with the CA or the
SC.
If filed with the Family Court where the petitioner
resides, or where the minor may be found, the writ is
enforceable within the judicial region where the
Family Court belongs.
If filed with the CA or the SC, or with any of its
members, the writ shall be enforceable anywhere in
Philippines. Upon issuance of the writ by the SC or
CA, it 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.
If the presiding judge of the Family Court is absent,
then the petition may be filed with a regular court,
provided that the regular court shall refer the case to
the regular court as soon as the presiding judge
returns to duty.
If there are no Family Courts in the area, then the
petition may be filed with the regular courts
The writ is returnable to the Family Court, or to any
regular court within the judicial 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.
[Sec. 20]
Page 273 of 481
REMEDIAL LAW
Considering that the writ is made enforceable within
a judicial region, petitions for the issuance of the writ
of habeas corpus, whether they be filed under Rule
102 or pursuant to Section 20 of A.M. No. 03-04-04-
SC, may therefore be filed with any of the proper
RTCs within the judicial regional where enforcement
thereof is sought [Tujan-Militante v. Cada-Deapera, G.R.
No. 210636 (2014)]
Best interest of the child
The best interest of the child prevails over any
agreement on custody. Any such agreement is void
for being contrary to Article 213 of the Family Code.
In this case, the child was below seven years when
such agreement was executed. But since the child had
in the meantime turned 15, it is now the best interest
of the child which becomes the standard for custody
[Dacasin v. Dacasin, G.R. No. 168785 (2010)]
Habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled
thereto. Under Art. 211 of the Family Code, husband
and wife have joint parental authority over their son
and consequently, joint custody. And although the
couple is separated de facto, the issue of custody has
yet to be adjudicated by the court. In the absence of
judicial grant of custody to one parent, both parents
are still entitled to the custody of their child. Thus,
where the husband’s cause of action is the
deprivation of his right to see his child, the remedy of
habeas corpus is available to him [Salientes v. Abanilla,
G.R. No. 162734 (2006)]
Tender age presumption
General rule: No child under seven years of age shall
be separated from the mother
Exception: The court finds compelling reasons to
order otherwise [Art. 213, FC]
The tender age presumption may be overcome only
be compelling evidence of the mother’s unfitness.
But sexual preference or moral laxity alone does not
prove parental neglect or incompetence. It should be
clearly established that such moral lapses have had an
adverse effect on the welfare of the child or have
distracted the offending spouse from exercising
proper parental care [Pablo-Gualberto v. Gualberto, G.R.
No. 154994 (2005)]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Specific uses of depositions

Deposition By whom used Purpose
Any deposition Any party Contradicting or impeaching the testimony of deponent as a witness
Deposition of a party or of any one who at the time of taking the deposition was an officer, director, or
managing agent of a public or private corporation, partnership, or association which is a party An
adverse party Any purpose
Deposition of a witness, whether or not a party Any party Any purpose if the court finds that
1. Witness is dead, or
2. Witness resides more than 100 km from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the deposition, or
3. Witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment, or
4. Party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or
5. Upon application and notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally
in open court, to allow the deposition to be used;
[Sec. 4, Rule 23]

problem of extralegal killings and enforced

O. Writ of Amparo [A.M. 07-
9-12-SC]
Writ of Amparo, in General
Literally means “to protect”
It is a remedy available to any person whose right to
life, liberty, and security has been violated or is
threatened with violation by a public official or
employee or a private individual or a private
individual or entity. The writ covers extralegal killings
and enforced disappearances or threats thereof. [S1,
Rule on the Writ of Amparo].
Came originally from Mexico and evolved into many
forms
1. Amparo libertad – for protection of personal
freedom
2. Amparo contra leyes – for judicial review of the
constitutionality of statutes
3. Amaparo casacion – judicial review of
constitutionality and legality of judicial decisions
4. Amparo agrario – for protection of peasants’ rights
[Secretary of Justice v. Manalo, G.R. No. 180906 (2008)]
The remedy of the writ of amparo is an equitable and
extraordinary remedy to safeguard the right of the
people to life, liberty and security, as enshrined in the
1987 Constitution [De Lima v. Gatdula, G.R. 204528
(2013)]
The remedy of the writ of amparo serves both
preventive and curative roles in addressing the
disappearances.
1. Preventive – it breaks the expectation of
impunity in the commission of offenses
2. Curative – it facilitates the subsequent
punishment of perpetrators by inevitably leading
to subsequent investigation and action [Secretary of
National Defense v. Manalo, G.R. No. 180906
(2008)]
1. Coverage
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 [Sec.1]
The writ shall cover
a. Extralegal killings (killings committed without
due process of law) and
b. Enforced disappearances [Sec. 1]
Elements of enforced disappearance, as
statutorily defined in R.A. 9851
a. that there be an arrest, detention, abduction or
any form of deprivation of liberty
b. that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization
c. that it be followed by the State or political
organization’s refusal to acknowledge or give
information on the fate or whereabouts of the
person subject of the amparo petition, and
d. that the intention for such refusal is to remove
subject person from the protection of the law for
a prolonged period of time

Page 274 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
[Caram v. Segui, G.R. No. 193652 (2014)]
In our jurisdiction, the contextual genesis for the
present Amparo Rule has limited the remedy as a
response to extrajudicial killings and enforced
disappearances, or threats thereof [Spouses Santiago v.
Tulfo, G.R. No. 205039 (2015)]
The writ applies only to the right to life, liberty and
security of persons and not property. The writ of
amparo does not envisage the protection of concerns
that are purely property or commercial in nature
[Pador v. Arcayan citing Tapuz v. Del Rosario, G.R. No.
183460 (2013)]
“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.
Right to security includes
a. Freedom from fear
b. Guarantee of bodily and psychological integrity
or security
c. Guarantee of protection of one’s rights by the
government
Protection includes conducting effective
investigations, organization of the government
apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders
to the bar of justice.
[Secretary of National Defense v. Manalo, G.R. No. 180906
(2008)]
There is a violation of freedom from threat by the
apparent threat to life, liberty and security of their
person from the following facts
a. Threat of killing their families if they tried to
escape
b. Failure of the military to protect them from
abduction
c. Failure of the military to conduct effective
investigation
[Secretary of National Defense v. Manalo, G.R. No. 180906
(2008)]
The writ of amparo does not protect the right to travel.
Where the petitioner failed to establish that his right
to travel was impaired in the manner and to the extent
that it amounted to a serious violation of his right to
life, liberty and security, the writ of amparo will not lie
[Reyes v. Gonzales, G.R. No. 182161 (2009)]
Page 275 of 481
REMEDIAL LAW
Nature
The writ of amparo is an extraordinary and
independent remedy that provides rapid judicial relief,
as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate
interim and permanent reliefs available to the
petitioner. It is not an action to determine criminal
guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of
evidence, or administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings [Rodriguez v. Macapagal-Arroyo,
G.R. No. 191805 (2011)]
A petition for a writ of amparo is not available in
order for a biological mother to recover custody of
child from the DWSD. There is no enforced
disappearance within the context of the Rules on the
Writ of Amparo. Christina's directly accusing the
respondents of forcibly separating her from her child
and placing the latter up for adoption, supposedly
without complying with the necessary legal requisites
to qualify the child for adoption, clearly indicates that
she is not searching for a lost child but asserting her
parental authority over the child and contesting
custody over him. Since it is extant from the pleadings
filed that what is involved is the issue of child custody
and the exercise of parental rights over a child, who,
for all intents and purposes, has been legally
considered a ward of the State, the Amparo rule
cannot be properly applied. [Caram v. Segui, (2014)].
The coverage of the Writ of Amparo is confined to
cases of extralegal killings and enforced
disappearances or threats thereof. Hence the writ
cannot be availed of by an alien detained by the
Bureau of Immigration by virtue of legal process.
(Mison v. Gallegos, (2015)].
Under Section 1 of A.M. No. 07-9-12-SC a writ of
amparo may lie against a private individual or entity.
But even if the person sought to be held accountable
or responsible in an amparo petition is a private
individual or entity, still, government involvement in
the disappearance remains an indispensable element.
Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and
their principal, the Asian Land, is a private entity.
They do not work for the government and nothing
has been presented that would link or connect them
to some covert police, military or governmental
operation. As discussed above, to fall within the ambit
of A.M. No. 07-9-12-SC in relation to RA No. 9851,
the disappearance must be attended by some
U.P. LAW BOC SPECIAL PROCEEDINGS
governmental involvement. This hallmark of State
participation differentiates an enforced disappearance
case from an ordinary case of a missing person. (Navia
v Pardico, (2012)].
The inclusion of petitioners' names in the Order of
Battle List does not, by itself, constitute an actual
threat to their rights to life, liberty and security as to
warrant the issuance of a writ of amparo. (Ladaga v.
Mapagu, (2012)].
Court may motu proprio dismiss a petition for writ of
amparo, regardless of the filing of a motion to
dismiss, if it is clear that the case falls outside the
purview of the Rules on the Writ of Amparo. (Santiago
v. Tulfo, (2015).
2. Distinguish From Habeas
Corpus and Habeas Data
See [Habeas Corpus] Distinguished From Writ of
Amparo and Habeas Data above and Comparative
Table at the end of Writ of Habeas Data.
3. Amparo v. Search Warrant
“The production order under the Amparo Rule should
not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution.
The Constitutional provision is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as respondents.
Instead, the Amparo production order may be likened
to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure i.e.
“Upon motion of any party showing good cause
therefor, the court in which an action is pending may
(a) order any party to produce and permit the
inspection and copying or photographing, by or on
behalf of the moving party, of any designated
documents, papers, books of 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”
[Secretary of National Defense v. Manalo, G.R. No. 180906
(2008)]
Page 276 of 481
REMEDIAL LAW
4. Who May File
a. Aggrieved party, or
b. Qualified person or entity in the following order
1. Any member of the immediate family
namely the spouse, children and parents of
the aggrieved party
2. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph, or
3. 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 the order established herein [Sec.
2]
Ratio for preference for filing party
a. 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 [Boac v. Cadapan,
G.R. Nos. 184461-62 (2011)]
b. Untimely resort to the writ by a non-member of
the family may endanger the life of the aggrieved
party [Phil. Judicial Academy Journal, June-Dec
2008 Vol. 10 Issue 30, p. 243]
Where to file
a. RTC where the threat, act or omission was
committed or any of its element occurred, or
b. Sandiganbayan—unlike the writ of habeas corpus,
because public officials and employees will be
respondents in amparo petitions, or
c. Court of Appeals, or
d. Supreme Court, or
e. Any justice of such courts [Sec. 3]
May be filed on any day, including Saturdays, Sundays,
and holidays, from morning until evening.
The writ shall be enforceable anywhere in
Philippines [Sec. 3]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

May the AFP Chief of Staff and the PNP director be

No docket fees included as respondents in a writ of amparo case
Petitioner shall be exempted from payment of docket solely on the basis of command responsibility? Yes
fees and other lawful fees when filing the petition but not for the purpose of attaching accountability
[Sec. 4] and responsibility to them for the enforced
disappearance of Lourdes but only to determine the
Contents of the petition author who, at the first instance, is accountable for
A signed and verified petition shall contain and has the duty to address the disappearance and
a. The personal circumstances of the petitioner harassments complaint of in order to enable the court
b. The name and personal circumstances of the to devise remedial measures. (Rubrico v. Macapagal-
respondent responsible for the threat, actor Arroyo, G.R. No. 183871, (2010)].
omission
If the name is unknown or uncertain, may be 5. Contents of Return
described by an assumed appellation
c. The right to life, liberty and security of the
When to file return
aggrieved party violated or threatened with
Respondent must file a verified written return within
violation by an unlawful act or omission of the
72 hours after service of writ, together with
respondent
supporting affidavits. The period to file a return
1. How such threat or violation is committed
cannot be extended even on highly meritorious
2. With the attendant circumstances detailed in
ground [Sec. 9]
supporting affidavits
d. The investigation conducted, if any, specifying
Contents of the return
1. Names, the personal circumstances and
a. The lawful defenses to show that the respondent
addresses of the investigating authority or
did not violate or threaten with violation the right
individuals
to life, liberty and security of the aggrieved party,
2. Manner and conduct of the investigation
through any act or omission
3. Together with any report
b. The steps or actions taken by the respondent to
e. The actions and recourses taken by the petitioner
determine the fate or whereabouts of the
to determine the fate or whereabouts of the
aggrieved party and the person responsible for
aggrieved party and the identity of the person
the threat, act or omission
responsible for the threat, act or omission, and
c. All relevant information in the possession of the
f. The relief prayed for.
respondent pertaining to the threat, act or
It may include a general prayer for other just and
omission against the aggrieved party, and
equitable reliefs [Sec.5]
d. If the respondent is a public official or employee
the return shall further state the actions that have
Issuance of writ
been or will still be taken
Upon filing of petition, writ shall immediately issue
1. to verify the identity of the aggrieved party
if on its face it ought to issue.
2. to recover and preserve evidence related to
the death or disappearance of the person
Who shall issue the writ: clerk of court, however in
identified in the petition which may aid in the
case of urgent necessity, the justice or the judge may
prosecution of the person or persons
issue the writ under his or her own hand, and may
responsible
deputize any officer or person to serve it.
3. to identify witnesses and obtain statements
from them concerning the death or
Date and time for summary hearing of the petition
disappearance
shall be set not later than 7 days from date of issuance
4. to determine the cause, manner, location and
[Sec. 6]
time of death or disappearance as well as any
pattern or practice that may have brought
President may not be impleaded as respondent
about the death or disappearance
because of presidential immunity from suit. [Rubrico v.
5. to identify and apprehend the person or
Macapagal-Arroyo, (2010)]; Burgos v. Macapagal-Arroyo,
persons involved in the death or
(2010)].
disappearance, and
6. to bring the suspected offenders before a
competent court., and

Page 277 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
e. The return shall also state matters relevant to the
investigation, its resolution and the prosecution
of the case.
No general denial of the allegations allowed [Sec.
9]
Prohibited pleadings and motions
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
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. 11]
Prohibited pleadings; Suppletory application of
the Rules of Court
What is prohibited under Sec. 11 of A.M. No. 07-9-
12-SC are motions for reconsideration directed
against, interlocutory orders or interim relief
orders, not those assailing the final judgment or
order. The pleadings and motions enumerated in Sec.
11 of A.M. No. 07-9-12-SC would unnecessarily cause
delays in the proceedings; they are, thus, proscribed
since they would counter to the summary nature of
the rule on the writ of amparo. A motion seeking
reconsideration of a final judgment or order in such
case, obviously, no longer affects the proceedings.
Moreover, the ROC applies suppletorily to A.M. No.
07-9-12-SC insofar as it is not inconsistent with the
latter. Accordingly, there being no express prohibition
to the contrary, the rules on motions for
reconsideration under the ROC apply suppletorily to
the Rule on the Writ of Amparo. [Mamba, et al. v.
Buena, G.R. No. 191416 (2017)]
The RTC judge acted with grave abuse of discretion
in ordering the Respondents De Lima et al., to file an
answer rather than a return. A return is different from
and serves a different function from an answer. (De
Lima v. Gatdula, (2013)].
Page 278 of 481
REMEDIAL LAW
To whom returnable
a. If filed with RTC, returnable to RTC or any judge
b. If filed with Sandiganbayan, CA or any justice,
returnable to such court or any justice or the RTC
where the threat, act or omission was committed
or any of its elements occurred.
c. If filed with the SC, returnable to the SC or any
justice, or to the CA, SB or any of its justices, or
the RTC where the threat, act or omission was
committed or any of its elements occurred [Sec.
3]
6. 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 [Sec. 12]
7. Omnibus Waiver Rule
All defenses shall be raised in the return, otherwise,
they shall be deemed waived [Sec. 10]
8. Procedure for Hearing
Summary hearing
Hearing on the petition shall be summary.
BUT 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.
Hearing shall be from day to day until completed and
given the same priority as petitions for habeas corpus
[Sec. 13]
Judgment
The court shall render judgment within ten (10) days
from the time of petition is submitted for decision
[Sec.18]
Appeal
Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45, 5
working days from the date of notice of the
adverse judgment [Sec. 19]
U.P. LAW BOC SPECIAL PROCEEDINGS
Archiving and revival of cases
If the case cannot proceed for valid cause, the court
shall not dismiss the petition but shall archive it. If
after the lapse of two (2) years from the notice of
archiving, the petition shall be dismissed for failure to
prosecute [Sec. 20]
9. Institution of Separate
Action
The Rule shall neither preclude the filing of separate
criminal, civil or administrative actions [Sec. 21]
10. Effect of Filing a Criminal
Action
Reliefs under the writ shall be available by motion in
a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
When a criminal action has been commenced, no
separate petition for the writ shall be filed [Sec. 22]
11. 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
amparo, 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 [Sec. 23]
12. Interim Reliefs Available To
Petitioner and Respondent
When available
Upon filing of the petition or at any time before final
judgment
Page 279 of 481
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INTERIM RELIEFS AVAILABLE TO THE
PETITIONER
a. Temporary Protection Order
1. Issued upon motion or motu proprio
2. 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
be extended to the officers concerned [Sec.
14(a)]
3. 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
1. Issued only upon verified motion and after
due hearing
2. Directed to 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.
3. The order shall expire five (5) days after the
day of its issuance, unless extended for
justifiable reasons [Sec. 14(b)]
4. Requires hearing, may be availed of both the
petitioner and the respondent
5. 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
SC
c. Production Order
1. Issued only upon verified motion and after
due hearing
2. Directed to 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.
U.P. LAW BOC SPECIAL PROCEEDINGS
3. In case of opposition, the court, justice or
judge may conduct a hearing in chambers to
determine the merit of the opposition [Sec.
14(c)] Opposition may be had on the
following grounds
i. National security
ii. Privileged nature of the information
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
More similar to production of documents or
things under Sec. 1, Rule 27 [Secretary of National
Defense v. Manalo, G.R. No. 180906 (2008)]
d. Witness protection order
1. Issued upon motion or motu proprio
2. Order may refer the witnesses to
i. The Department of Justice for admission
to the Witness Protection, Security and
Benefit Program.
ii. Other government agencies, or to
accredited persons or private institutions
capable of keeping and securing their
safety [Sec. 14(d)]
Interim reliefs available to the respondent
1. Inspection Order
2. Production Order [Sec. 15]
Requisites
1. Verified motion of the respondent
2. Due hearing
3. Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent
[Sec. 14(b)]
13. Quantum of Proof in
Application for Issuance of
Writ of Amparo
The parties shall establish their claims by substantial
evidence.
Technical rules of evidence are not strictly observed
in writ of amparo case. The fair and proper rule is to
Page 280 of 481
REMEDIAL LAW
consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if
it is consistent with the admissible evidence adduced.
In other words, we reduce our rules to the most basic
test of reason – i.e., to the relevance of the evidence
to the issue at hand and its consistency with all other
pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic
minimum test. The courts should exercise of
flexibility in the consideration of evidence, including
hearsay evidence, in extrajudicial killings and enforced
disappearance cases. [Razon v. Tagitis, (2009)].
The failure to establish that the public official
observed extraordinary diligence in the performance
of duty does not result in the automatic grant of the
privilege of the amparo writ. It does not relieve the
petitioner from establishing his or her claim by
substantial evidence. The omission or inaction on the
part of the public official provides, however, some
basis for the petitioner to move and for the court to
grant certain interim reliefs. (Yano v. Sanchez, G.R.
No. 186640, 11 February 2010 [e.b.]).
Before a concerned citizen may file a petition for writ
of amparo in behalf of a non-relative, the petitioner
must allege that there were no known members of the
immediate family or relatives of the aggrieved party in
line with Sec. 2(c) of the RWA. Compare with a
habeas corpus proceeding, any person may apply for
the writ on behalf of the aggrieved party. [Boac v
Cadapan, (2011)].
Contrary to the ruling of the appellate court, there is
no need to file a motion for execution for an amparo
or habeas corpus decision. The appellate court erred
in ruling that its directive to immediately release
Sherlyn, Karen and Merino was not automatically
executory. That would defeat the very purpose of
having summary proceedings in amparo petitions.
Summary proceedings, it bears emphasis, are
immediately executory without prejudice to further
appeals that may be taken therefrom. [Boac v Cadapan,
(2011)].
If respondent is a public official or employee
Must prove that extraordinary diligence as required as
required by the applicable laws, rules and regulations
was observed in the performance of duty.
Cannot invoke the presumption that official duty has
been regularly performed to evade responsibility or
liability
U.P. LAW BOC SPECIAL PROCEEDINGS
If respondent 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.
[Sec. 17]
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. Their statements can be
corroborated by other evidence such as physical
evidence left by the torture or landmarks where
detained [Secretary of National Defense v. Manalo, G.R.
No. 180906 (2008)]
The writ can only be issued upon reasonable certainty.
Substantial evidence is sufficient to grant the writ
because the respondent is the State which has more
resources than the petitioner. However, the SC held
that mere inclusion in an Order of Battle List is
insufficient to grant the writ absent a finding of a
direct relation between prior deaths and the subject
list. No evidence was shown that the deaths occurred
due to inclusion in the list [Ladaga v. Magapu, G.R. No.
189689 (2012)]
That a public official failed to observe extraordinary
diligence in the performance of his duties does not
result in the automatic grant of the writ. Such failure
does not relieve the petitioner from establishing his
claim by substantial evidence [Yano v. Sanchez, G.R.
No. 186640 (2010)]
For the protective writ of amparo to issue, allegation
and proof of the persons subject thereof are missing
are not enough. The petitioner is an amparo case has
the burden of proving by substantial evidence the
indispensable element of government participation
[Navia v. Pardico, G.R. No. 184467 (2012)]
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
[Sec. 18]
Page 281 of 481
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P. Writ of Habeas Data
[A.M. No. 08-1-16-SC]
1. Scope of the Writ
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 engaged in the gathering,
collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party [Sec. 1]
Purpose
It is an independent and summary remedy designed
to protect the image, privacy, honor, information, and
freedom of information of an individual, and to
provide a forum to enforce one’s right to the truth
and to informational privacy. It seeks to protect a
person’s right to control information regarding
oneself, particularly in instances in which such
information is being collected through unlawful
means in order to achieve unlawful ends. There must
be a nexus between the right to privacy, as well as the
violation or threatened violation of the rights to life,
liberty, and security, for the writ to issue [Gamboa v.
Chan, G.R. No. 193636 (2012)]
The writ of habeas data is not available to an
employee who wanted to get details on the reason for
her transfer from Pampanga to Alabang. The issue
essentially is one of labor law not properly the subject
of the writ. [Manila Electric Co. v. Gopez-Lim, (2010)].
Notes:
a. Writ of Habeas data was not enacted solely for the
purpose of complementing the Writ of Amparo in
cases of extralegal killings and enforced
disappearances. It may be availed of in cases
outside of extralegal killings and enforced
disappearances. Habeas data, to stress, was
designed “to safeguard individual freedom from
abuse in the information age.” It can be availed
of as an independent remedy to enforce one’s
right to privacy, more specifically the right to
informational privacy [Vivares v. St Theresa’s
College G.R. No. 202666 (2014)]
b. Nothing in the Rule suggests that the habeas data
protection shall be available only against abuses
of a person or entity engaged in the business of
U.P. LAW BOC SPECIAL PROCEEDINGS
gathering, storing, and collecting of data [Vivares
v. St Theresa’s College G.R. No. 202666 (2014)]
Nature
As an independent and summary remedy to protect
the right to privacy especially the right to
informational privacy, the proceedings for the
issuance of the writ of habeas data does not entail any
finding of criminal, civil or administrative culpability.
If the allegations in the petition are proven through
substantial evidence, then the Court may (a) grant
access to the database or information; (b) enjoin the
act complained of; or (c) in case the database or
information contains erroneous data or information,
order its deletion, destruction or rectification
[Rodriguez v Macapagal-Arroyo, G.R. No. 191805 (2011)]
2. Availability of Writ
Where to file
a. RTC, at the option of the petitioner
1. Where petitioner resides, or
2. Where respondent resides, or
3. Which has jurisdiction over the place where
the data or information is gathered, collected
or stored
b. SC, CA, SB (when action concerns public data
files of government offices) [Sec. 3]
Writ is enforceable anywhere in Philippines [Sec. 4]
No fees for indigent petitioners
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. 5]
Nexus between right to privacy, and right to life,
liberty or security
The writ, however, will not issue on the basis merely
of an alleged unauthorized access to information
about the person. Availment of the writ requires the
existence of a nexus between the right to privacy on
the one hand, and the right to life, liberty or security
on the other [Vivares v. St. Theresa’s College, G.R. No.
202666 (2014)]
It will not issue to protect purely property or
commercial concerns nor when the grounds invoked
in support of the petition therefor are vague and
doubtful [Manila Electric Company v. Lim, G.R. No.
184769 (2010)]
Page 282 of 481
REMEDIAL LAW
Where the petitioner was not able to sufficiently allege
that his right to privacy in life, liberty or security was
or would be violated through the supposed
reproduction and threatened dissemination of the
subject sex video, the petition is dismissible. Even if
the petition alleges a privacy interest in the
suppression of the video, the petitioner failed to
explain the connection between such interest and any
violation of his right to life, liberty, or security. Courts
cannot speculate or contrive versions of possible
transgressions. As the rules and existing jurisprudence
on the matter evoke, alleging and eventually proving
the nexus between one’s privacy rights to the cogent
rights to life, liberty or security are crucial in habeas
data cases, so much so that a failure on either account
certainly renders a habeas data petition dismissible [Lee
v. Ilagan, G.R. No. 203254 (2014)]
Respondent must be engaged in the gathering,
collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party. However, it is not necessary that the
respondent does these acts as a business or for profit.
[Vivares v. St. Theresa’s College, G.R. No. 202666 (2014)]
3. Distinguish from Habeas
Corpus and Amparo
See [Habeas Corpus] Distinguished From Writ of
Amparo and Habeas Data above and Comparative
Table at the end of Writ of Habeas Data.
4. Who May File the Petition
Any aggrieved party may file a petition for the writ of
habeas data. However, in cases of extralegal killings
and enforced disappearances, the petition may be
filed by
a. Any member of the immediate family of the
aggrieved party, namely the spouse, children and
parents, 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 [Sec.
2]
5. Contents of the Petition
Contents of the petition
A verified written petition for a writ of habeas data
should contain
U.P. LAW BOC SPECIAL PROCEEDINGS
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, registers or databases,
the government office, and the person in charge,
in possession or in control of the data or
information, if known
e. The reliefs prayed for, which may include the
updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
f. In case of threats, the relief may include a prayer
for an order enjoining the act complained of, and
g. Such other relevant reliefs as are just and
equitable [Sec. 6]
Issuance of 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 [Sec. 7]
6. Contents of the Return
a. The lawful defenses such as national security,
state secrets, privileged communication,
confidentiality of the source of information of
media and others
b. In case of respondent in charge, in possession or
in control of the data or information subject of
the petition
1. disclosure of the data or information about
the petitioner, the nature of such data or
information, and the purpose for its
collection
2. the steps or actions taken by the respondent
to ensure the security and confidentiality of
the data or information, and
3. the currency and accuracy of the data or
information held, and
c. Other allegations relevant to the resolution of the
proceeding.
A general denial of the allegations in the petition shall
not be allowed [Sec. 10]
When to file return
Respondent must file a verified written return within
five (5) working days from service of the writ,,
together with supporting affidavits. The 5-day period
Page 283 of 481
REMEDIAL LAW
may be reasonably extended by the Court for
justifiable reasons.
Prohibited pleadings and motions
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
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. 13]
To whom returnable
If issued by
a. SC or any of its justices, before such Court or any
justice thereof, or CA/SB or any of its justices, or
the RTC of the place where the petitioner or
respondent resides/has jurisdiction over the
place where the data or information is gathered,
stored or collected
b. CA/SB or any of its justices, before such court or
any justice thereof, or RTC (same with scenario
SC issued and then returned in RTC)
c. RTC, returnable before such court or judge
[Sec. 4]
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 [Sec. 14]
Procedure for hearing
Hearing on the petition shall be summary. BUT 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 [Sec. 15]
7. Instances When Defenses
May Be Heard In Chambers
a. Where the respondent invokes the defense that
the release of the data or information in question
U.P. LAW BOC SPECIAL PROCEEDINGS
shall compromise national security or state
secrets, or
b. When the data or information cannot be divulged
to the public due to its nature or privileged
character
[Sec. 12]
Judgment
The court shall render judgment within ten (10) days
from the time of petition is submitted for decision
[Sec. 16]
Appeal
Any party may appeal from the final judgment or
order to the Supreme Court under Rule 45, 5 working
days from the date of notice of the adverse judgment
[Sec. 19]
8. 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.
[Sec. 21]
9. Effect of Filing Criminal
Action
Reliefs under the writ shall be available to an
aggrieved party by motion in a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
habeas data
When a criminal action has been commenced, no
separate petition for the writ shall be filed.
[Sec. 22]
Page 284 of 481
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10. Institution of Separate
Action
The filing of a petition for the writ of habeas data shall
not preclude the filing of separate criminal, civil or
administrative actions [Sec. 20]
11. Quantum of Proof in
Application for Issuance of
Writ of Habeas Data
If the allegations in the petition are proven by
substantial evidence, the court shall (a) enjoin the act
complained of, or order the deletion, destruction, or
rectification of the erroneous data or information
AND (b) grant other relevant reliefs as may be just
and equitable; otherwise, the privilege of the writ shall
be denied [Sec. 16]
An indispensable requirement before the privilege of
the writ may be extended is the showing, at least by
substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or
security of the victim [Roxas v. Arroyo, G.R. No.
189155 (2010)]
Not only direct evidence, but circumstantial evidence,
indicia, and presumptions may be considered, so long
as they lead to conclusions consistent with the
admissible evidence adduced [Saez v. Arroyo, G.R. No.
183533 (2012)]
HOWEVER, the right to informational privacy may
yield to an overriding legitimate state interest. The
determination of whether the privilege of the writ of
habeas data may be granted entails a delicate balancing
of the alleged intrusion upon a person’s private life
and the relevant state interest involved [Gamboa v.
Chan, G.R. No. 193636 (2012)
U.P. LAW BOC SPECIAL PROCEEDINGS
Comparative table of the writs of habeas corpus, amparo, and habeas data
Habeas corpus
a. All cases of illegal
confinement and
detention by which
any person is deprived
of his liberty
b. Deprivation of
rightful custody of
any person including
minors from the
Nature, scope, person entitled
function [Sec. 1]
Actual violation before writ
issues.
Note: Villavicencio v. Lukban
(G.R. No. L-14639, 1919)
on applicability of the writ
in case of constructive
restraint.
May not be suspended
except in cases of invasion
Limitations or rebellion when public
safety requires it [Sec. 15,
Art. III, 1987 Const.]
By a petition signed and
verified by the party for
Who may file whose relief it is intended,
or by some person on his
behalf [Sec. 3]
a. SC or any member
thereof, on any day and
at any time
Where filed
b. CA or any member
thereof in instances
authorized by law
Page 285 of 481
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission
of a public official or
employee or a private
individual or entity
Covers extralegal killings
and enforced
disappearances or threats
thereof [Sec. 1]
Shall not diminish, increase
or modify substantive rights
[Sec. 23]
Petition filed by the
aggrieved party or by any
qualified person or entity in
the following order:
a. Any member of the
immediate family
b. Any ascendant,
descendant or collateral
relative of the aggrieved
within the 4th civil
degree of affinity or
consanguinity
c. Any concerned citizen,
organization, association
or institution
Filing by the aggrieved
suspends the right of all
others [Sec. 2]
a. SB, CA, SC, or any
justice of such courts
b. RTC of place where the
threat, act, or omission
was committed or any
element occurred
[Sec. 3]
REMEDIAL LAW
Habeas data
Involves the right to
privacy in life, liberty or
security violated or
threatened by an unlawful
act or omission of a
public official or
employee, or of a private
individual or entity
engaged in the gathering,
collecting or storing of
data or information
regarding the person,
family, home and
correspondence of the
aggrieved party [Sec. 1]
Shall not diminish,
increase or modify
substantive rights [Sec. 23]
Any aggrieved party may
file a petition.
However, in cases of
extralegal killings and
enforced disappearances,
the petition may be filed
by (also successive):
a. Any member of the
immediate family of
the aggrieved
b. Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity
[Sec. 2]
a. At the option of
petitioner, RTC
where:
1. Petitioner resides
or
2. Respondent
resides or
U.P. LAW BOC SPECIAL PROCEEDINGS
Habeas corpus
c. RTC or a judge
thereof, on any day and
at any time, enforceable
only within his judicial
district
[Sec. 2]
d. MTC or first level
courts in the absence
of RTC judges in a
judicial region [Sec. 35,
B.P. 129]
If SC/CA issued,
anywhere in Philippines.
If granted by the RTC or
judge thereof, it is
Where enforceable in any part of
enforceable the judicial region [Sec.
21, B.P. 129 which
modified the term judicial
district in Sec. 2, Rule 102
into judicial region] where
the judge sits
If issued by:
a. SC/CA, or a member
thereof, returnable
before such court or
any member thereof or
Where returnable
an RTC
b. RTC, or a judge
thereof, returnable
before himself
[Sec. 2]
Upon the final disposition
Docket fees of such proceedings the
court or judge shall make
Page 286 of 481
REMEDIAL LAW
Amparo Habeas data
3. That which has
jurisdiction over
the place where
the data or
information is
gathered,
collected or
stored
b. SC, CA, or SB – If
public data files of
government offices
[Sec. 3]
Anywhere in Philippines Anywhere in
[Sec. 4] Philippines [Sec. 3]
If issued by:
If issued by:
a. SC or any of its
a. SC or any of its justices,
justices, before such
returnable before such
Court or any justice
court or any justice
thereof, or CA/SB or
thereof, or before the
any of its justices, or
CA/SB or any of their
the RTC of the place
justices, or to any RTC
where the petitioner
of the place where the
or respondent
threat, act or omission
resides/has
was committed or any of
jurisdiction over the
its elements occurred
place where the data
b. CA/SB or any of their
or information is
justices, returnable
gathered, stored or
before such court or any
collected
justice thereof, or to any
b. CA/SB or any of its
RTC of the place where
justices, before such
the threat, act, or
court or any justice
omission was committed
thereof, or RTC
or any of its elements
(same with scenario
occurred
SC issued and then
c. RTC or any judge
returned in RTC)
thereof, returnable
c. RTC, returnable
before such court or
before such court or
judge
judge
[Sec. 3]
[Sec. 4]
Petitioner shall be exempted None for indigent
from the payment of the petitioner
docket and other lawful fees
U.P. LAW BOC SPECIAL PROCEEDINGS
Habeas corpus
such order as to costs as the
case requires [Sec. 19]
Signed and verified either
by the party for whose
relief it is intended or by
some person on his behalf,
setting forth
a. The person in whose
behalf the application is
Essential
made is imprisoned or
allegations/
restrained of his liberty
Contents of
b. Name of the person
petition
detaining another or
assumed appellation
c. Place where he is
imprisoned or
restrained of his liberty
d. Cause of detention
[Sec. 3]
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
When proper • in case of emergency,
the judge may issue the
writ under his own
hand, and may depute
any officer or person to
serve it
Also proper to be issued
when the court or judge has
examined into the cause of
restraint of the prisoner,
Page 287 of 481
Amparo
Court, justice or judge shall
docket the petition and act
upon it immediately [Sec 4]
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
[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
[Sec. 6]
REMEDIAL LAW
Habeas data
Petition shall be docketed
and acted upon
immediately, without
prejudice to subsequent
submission of proof of
indigency not later than
15 days from filing [Sec.
5]
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, the
government office,
and the person in
charge or control
e. The reliefs prayed for
f. Such other relevant
reliefs as are just and
equitable [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:
• CoC 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
[Sec. 7]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Habeas corpus Amparo Habeas data

and is satisfied that he is
unlawfully imprisoned
[Sec. 5]
Writ may be served in any
province by the (a) sheriff,
(b) other proper officer, or The writ shall be served
The writ shall be served
(c) person deputed by the upon the respondent by a
upon the respondent by a
court or judge. judicial officer or by a
judicial officer or by a person
person deputized by the
deputized by the court,
Service is made by leaving court, justice or judge
justice or judge who shall
the original with the person who shall retain a copy on
retain a copy on which to
to whom it is directed and which to make a return of
Service make a return of service.
preserving a copy on which service.
to make return of service.
In case the writ cannot be
If that person cannot be In case the writ cannot be
served personally on the
found, or has not the served personally on the
respondent, the rules on
prisoner in his custody, respondent, the rules on
substituted service shall apply
service shall be made on substituted service shall
[Sec. 8]
any other person having or apply [Sec. 9]
exercising such custody
[Sec. 7]
A public official or
Respondent is a public employee or a private
May or may not be an official or employee or individual or entity
Respondent
officer [Sec. 6] private individual or entity engaged in gathering,
[Sec. 1] collecting or storing data
[Sec. 1]
The officer to whom the
writ is directed shall convey
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
How executed Respondent files the return Respondent files the
and returned on the day specified in the [Sec. 9] return [Sec. 10]
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
[Sec. 8]
When to file On the day specified on the Within 5 working days after
Same as Amparo [Sec. 10]
return writ [Sec. 8] service of the writ [Sec. 9]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Habeas corpus Amparo Habeas data

a. Lawful defenses such
When the person to be
Within 5 working days after as national security,
produced is imprisoned or
service of the writ, the state secrets,
restrained by an officer, the
respondent shall file a privileged
person who makes the
verified written return communications,
return shall state, and in
together with supporting confidentiality of the
other cases the person in
affidavits which shall, contain source of information
whose custody the prisoner
a. Lawful defenses of media etc.
is found shall state in
b. The steps or actions b. In case of respondent
writing to the court or
taken to determine the in charge, in
judge before whom the writ
fate or whereabouts of possession or in
is returnable:
the aggrieved party control of the data or
a. Truth of
c. All relevant information information subject
custody/power over
in the possession of the of the petition
the aggrieved party
respondent pertaining to 1. A disclosure of
b. If he has custody or
the threat, act or the data or
power, or under
omission against the information
restraint, the authority
aggrieved party about the
and the cause thereof,
d. If the respondent is a petitioner, the
with a copy of the writ,
public official or nature of such
order, execution or
Contents of return employee, the return data or
other process, if any
shall further state acts information, and
upon which the party is
1. To verify identity of the purpose for
held
aggrieved party its collection
c. If the party is in his
2. To recover and 2. The steps or
custody or power, and
preserve evidence actions taken by
is not produced,
3. To identify and the respondent
particularly the nature
collect witness to ensure the
and gravity of the
statements security and
sickness or infirmity
4. To determine cause, confidentiality of
d. If he has had the party
manner, location, the data or
in his custody or
and time of death or information
power, and has
disappearance 3. The currency and
transferred such
5. To identify and accuracy of the
custody or restraint to
apprehend persons data or
another, particularly to
involved information held
whom, at what time,
6. To bring suspected 4. Other allegations
for what cause, and by
offenders before a relevant to the
what authority such
competent court resolution of the
transfer was made
[Sec.9] proceeding
[Sec. 10]
[Sec.10]
Return or statement shall
be signed and sworn to by
the person who makes it if Respondent shall file a Respondent shall file a
Formalities of the prisoner is not verified written return verified written return
return produced, unless the return together with supporting together with supporting
is made and signed by a affidavits [Sec. 9] affidavits [Sec. 10]
sworn public officer in his
official capacity [Sec. 11]
Penalties for a. CoC who refuses to
a. Contempt without a. Contempt without
refusing to issue issue the writ after
prejudice to other prejudice to other
or serve OR for allowance and demand,
disciplinary actions disciplinary actions
faulty return or

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Habeas corpus Amparo Habeas data

b. A person to whom a 1. CoC who refuses to 1. CoC who refuses
writ is directed, who issue the writ after to issue the writ
1. neglects/refuses to its allowance, or after its
obey or make 2. A deputized person allowance, or
return of the same who refuses to serve 2. A deputized
according to the the writ person who
command thereof, [Sec. 7] refuses to serve
2. or makes false b. Contempt punishable by the writ
return, imprisonment or a fine [Sec. 8]
3. or upon demand 1. A respondent who b. Contempt punishable
made by or on refuses to make a by imprisonment or a
behalf of the return, or fine
prisoner, refuses to 2. A respondent who 1. A respondent
deliver to the makes a false return, who refuses to
person demanding, or make a return, or
within 6 hours a 3. Any person who 2. A respondent
true copy of the otherwise disobeys who makes a
warrant or order of or resist a lawful false return, or
commitment, process or order of 3. Any person who
the court otherwise
shall forfeit to the party [Sec. 16] disobeys or resist
aggrieved the sum of a lawful process
P1000, recoverable in a or order of the
proper action, and may also court
be punished for contempt [Sec. 11]
[Sec. 16]
No, not even on highly Yes, for justifiable reasons
meritorious grounds. [Sec. 10]
Is period of return
Note: Motion for extension Note: Motion for
extendable?
of time to file a return is a extension of time to file a
prohibited pleading return is a prohibited
[Sec. 11] pleading [Sec. 13]
Is a general
Not allowed [Sec. 9] Not allowed [Sec. 10]
denial allowed?
Defenses not Deemed waived if not raised
pleaded in return [Sec. 10]
Court, judge, or justice
shall hear the motion ex
parte, granting the
petitioner such reliefs as
Court or justice shall proceed
Effect of failure to the petition may warrant
to hear the petition ex parte
file return
[Sec. 12]
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary. Summary.

Nature of However, the court, justice, With possibility of

Hearing or judge may call for a preliminary conference
preliminary conference to similar to Amparo [Sec. 14]
simplify the issues and look

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U.P. LAW BOC SPECIAL PROCEEDINGS
Habeas corpus
Date and time of As specified in the writ
hearing [Sec. 8]
In custody of minors a
motion to dismiss, except
Prohibited
on the ground of lack of
pleadings
jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Burden of Clear and convincing
proof/Standard of evidence [Dizon v. Eduardo,
diligence G.R. No. L-59118 (1988)]
Yes. Consonant with Sec.
13, stating that if warrant of
Presumption of commitment is in
official duty pursuance with law, serves
as prima facie cause of
restraint
Page 291 of 481
REMEDIAL LAW
Amparo Habeas data
at possibility of obtaining Hearing in chambers may
stipulations and admissions be conducted where
from the parties. respondent invokes the
defense of national
Hearing shall be from day to security or state secrets, or
day until completed same the data is of privileged
priority as petitions for character [Sec. 12]
Habeas corpus
[Sec. 13]
As specified in the writ,
As specified in the writ, not
not later than 10 working
later than 7 days from the
days from the date of
issuance of the writ [Sec. 6]
issuance writ [Sec. 7]
a. Motion to dismiss
b. Motion for extension of
time to file opposition,
affidavit, position paper
and other pleadings
c. Dilatory motion for
postponement
d. Motion for bill of
particulars
e. Counterclaims or cross-
claims
f. Third-party complaint
g. Reply Same as Amparo [Sec. 13]
h. Motion to declare
respondent in default
i. Intervention
j. Memorandum
k. Motion for
reconsideration of
interlocutory orders or
interim relief orders
l. Petition for certiorari,
mandamus, or
prohibition
[Sec. 11]
Substantial evidence
a. if respondent is a private
individual or entity, Substantial evidence
ordinary diligence required to prove the
b. if public official or allegations in the petition
employee, extraordinary [Sec. 16]
diligence
[Sec. 17]
Public official or employee
cannot invoke the
presumption that official
duty has been regularly
performed [Sec. 17]
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Habeas corpus Amparo Habeas data

Upon filing of the petition or
at any time before final
judgment, the court, justice
or judge may grant any of the
following reliefs:
Interim reliefs a. temporary protection
order
b. inspection order
c. production order
d. witness protection order
[Sec. 14]
Within 10 days from the
Within 10 days from the time
time the petition is
Judgment the petition is submitted for
submitted for decision
decision [Sec. 18]
[Sec. 16]
Within 48 hours from 5 working days from the date 5 working days from the
notice of the judgment of of notice of adverse date of notice of adverse
Appeal
final order appealed [Sec. judgment to the SC under judgment to the SC under
39, B.P. 129] Rule 45 [Sec. 19] Rule 45 [Sec. 19]
Institution of
Not precluded Not precluded
separate actions
Consolidated with a
Consolidated with a criminal
Consolidation of criminal action filed
action filed subsequent to the
actions subsequent to the petition
petition [Sec. 23]
[Sec. 21]
No more separate petition
Effect of filing shall be filed. Reliefs
Same as Amparo [Sec. 21]
criminal action available by motion in the
criminal case [Sec. 22]

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U.P. LAW BOC SPECIAL PROCEEDINGS
Q. Change of Name
1. Distinctions between the Rules [103, 108, R.A. 9048];
Administrative Corrections
[De Leon 537-540]
Rule 103
Change of full name or
Scope surname (substantial
corrections)
Nature of proceedings Judicial: hearing necessary
A person desiring to
Who may file
change one’s name
Signed and verified
Initiatory pleading
petition
RTC of province in
Where to file which petitioner resided
for 3 years prior to filing
Correction of clerical or
typographical errors in
any entry in civil registry
documents, except
Coverage
corrections involving
change in sex, age,
nationality and status of a
person
Page 293 of 481
R.A. 9048, as amended
Change of first name or
nickname, day or month
(not year) of birthdate,
gender, and correction of
clerical errors of entries in
Civil Registry
Administrative: no
hearing required
Any person having direct
and personal interest in
correction of a clerical or
typographical error in an
entry and/or change of
first name or nickname
Sworn affidavit
Local civil registry office
of city or municipality
where record being
sought to be corrected or
changed is kept
Local civil registrar of
place where interested
party is presently residing
or domiciled
Philippine consulate
a. Correction of clerical
or typographical
errors, and
b. Change of
1. First name or
nickname
2. Day and month
in date of birth,
or
3. Sex of a person
where it is
patently clear
that there was a
clerical or
typographical
REMEDIAL LAW
Rule 108
Correction of substantial
errors or cancellation of
entries in Civil Registry
Judicial: Hearing
necessary; adversarial
Any person interested in
any act, event, order or
decree concerning civil
status of persons which
has been recorded in civil
register
Verified petition
RTC of city or province
where corresponding civil
registry is located
a. Births
b. Marriage
c. Deaths
d. Legal separations
e. Judgments of
annulments of
marriage
f. Judgments declaring
marriages void from
the beginning
g. Legitimations
h. Adoptions
i. Acknowledgments of
natural children
j. Naturalization
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

error or mistake k. Election, loss or

in the entry recovery of
citizenship
l. Civil interdiction
m. Judicial
determination of
filiation
n. Voluntary
emancipation of a
minor
o. Changes of name

the petition for hearing, the court should have

Procedure required the petitioner to have the petition verified
Filing of petition for change of name [Sec. 1] [Oshito v. Republic, G.R. No. L-21180 (1967)]

Court by order fixes date and place of hearing [Sec. All aliases of the applicant must be set forth in the
3] petition’s title. Such defect is fatal, even if said aliases
 are contained in the body of the petition [Go Chiu Beng
Publication of court order fixing date and place of v. Republic, G.R. No. L-29574 (1972)]
hearing, at least once a week for 3 consecutive
weeks in a newspaper of general circulation in the Failure to implead the local civil registrar as well as all
province [Sec. 3] 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
Hearing on the petition [Sec. 4] to publish, and all pleadings, orders or processes in
 the course of the proceedings. There was therefore
Judgment granting/denying change of name [Sec. substantial compliance of the provisions of Rules 103
5] and 108 [Republic v. Cagandahan, G.R. No. 166676
 (2008)]
Furnishing of judgment on the civil registrar, who
shall forthwith enter the same [Sec. 5] Change of name requires adversarial proceedings
In order to justify a request for change of name, there
What is changed must be a proper and compelling reason for the
The name that can be changed is the name that change and proof that the person requesting will be
appears in the civil register, and not in the baptismal prejudiced by the use of his official name. To assess
certificate or that which the person is known in the the sufficiency of the grounds invoked therefor, there
community [No Yao Siong v. Republic, G.R. No. L- must be adversarial proceedings [Republic v Mercadera,
20306 (1966)] G.R. No. 186027 (2010)]

A change of name granted by the court affects only a

petitioner. A separate petition for change of name
2. Grounds for Change of
must be filed for his/her spouse and children [Secan
Kok v. Republic, G.R. No. L-27621 (1973)]
a.
Jurisdictional requirements
An alien may petition for change of name but he must b.
be domiciled in the Philippines [Ong Huan Tin v.
Republic, G.R. No. L-20997 (1967)] c.
d.
Verification is a formal, not a jurisdictional,
requirement. The lack of verification is not a ground
for dismissing the petition. However, before setting
Name
The name is ridiculous, tainted with dishonor or
extremely difficult to write or pronounce
Change results as a legal consequence of
legitimation
The change will avoid confusion
A sincere desire to adopt a Filipino name to erase
signs of former alienage [Uy v. Republic, G.R. No.
L-22712 (1965)]

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U.P. LAW BOC SPECIAL PROCEEDINGS
e. Having continuously used and been known since
childhood by a Filipino name, having been
unaware of alien parentage [Ang Chay v. Republic,
G.R. No. L-28507 (1970)]
[Republic v. Hernandez, G.R. No. 117209 (1996)]
f. When the surname causes embarrassment and
there is no showing that the desired change of
name was for a fraudulent purpose or that the
change of name would prejudice public interest
[Republic v. Coseteng-Magpayo, G.R. No. 189476
(2011)]
g. 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 [Republic v. Cagandahan, G.R. No. 166676
(2008)]
When not proper
When what is sought to be changed relates to status
Rule 103 cannot be resorted to for expediency if the
petition substantially seeks to change one’s status
from legitimacy to illegitimacy. When a petition for
cancellation or correction of an entry in the civil
register involves substantial and controversial
alterations including those on citizenship, legitimacy
of paternity or filiation, or legitimacy of marriage, a
strict compliance with the requirements of Rule 108
is mandated. [Republic v. Coseteng-Magpayo, G.R. No.
189476 (2011); Republic v. Cagandahan, G.R. No.
166676 (2008)]
Legal separation is not a ground for the female spouse
to apply for a change of name under Rule 103 [Laperal
v. Republic, G.R. No. L-18008 (1962)]
A person’s first name cannot be changed on the
ground of sex reassignment [Silverio v. Republic, G.R.
No. 184689 (2007)]
A petition to correct an alleged erroneous entry in
one’s birth certificate pertaining to the date of
marriage of his parents, notwithstanding the fact that
it qualifies as a substantial correction, may be filed
under Rule 108 [Onde v. Office of the Local Civil Registrar,
G.R. No. 197174 (2014)]
Page 295 of 481
REMEDIAL LAW
A petition for cancellation of entries in a marriage
contract may prosper when the respondent [petitioner
below] was able to show by overwhelming evidence
that no marriage took place and that she was not even
aware of such marriage. To be sure, a petition for
correction or cancellation of an entry in the civil
registry cannot substitute for an action to invalidate a
marriage. Respondent indeed sought, not the
nullification of the marriage as there was no marriage
to speak of, but the correction of the record of such
marriage to reflect the truth as set forth by the
evidence. Otherwise stated, in allowing the correction
of the subject certificate of marriage by cancelling the
wife portion thereof, the trial court did not, in any
way, declare the marriage void as there was no
marriage to speak of [Republic v. Olaybar, G.R. No.
189538 (2014)]
Note: Olaybar is a very rare exception.
It is undoubtedly true that if the subject matter of a
petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving
nationality or citizenship, which is indisputably
substantial as well as controverted, affirmative relief
cannot be granted in a proceeding which is summary
in nature. However, it is also true that a right in law
may be enforced and a wrong may be remedied as
long as the appropriate remedy is used. Thus, even
substantial errors in a civil registry may be corrected
and the true facts established provided the parties
aggrieved by the error avail themselves of the
appropriate adversarial proceedings [Republic v. Kho,
G.R. No. 170340 (2007), citing Republic v. Valencia,
G.R. L-32181 (1986)]
The presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due
execution must be presented, as required under Secs.
24 and 25 of Rule 132 which provides that a writing
or document may be proved as a public or official
record of a foreign country by either (a) an official
publication; or (b) a copy thereof attested by the
officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must
be (a) accompanied by a certificate issued by the
proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in
which the record is kept; and (b) authenticated by the
seal of his office [San Luis v. San Luis, G.R. Nos.
133743 and 134029 (2007)]
The Rule of Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC) does not apply in a petition
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

to recognize a foreign judgment relating to the status

of the marriage where one of the parties is a citizen of
a foreign country. Divorce involves the dissolution of
a marriage, but the recognition of a foreign divorce
decree does not involve the extended procedure
under A.M. No. 02-11-10-SC or the rules of ordinary
trial. Thus, since the recognition of a foreign
judgment only requires proof of fact of the judgment,
it may be made in a special proceeding for cancellation
or correction of entries in the civil registry under Rule
108 [Fujiki v. Marinay, G.R. No. 196049 (2013)]
The second paragraph of Art. 26 of the Family Code
now covers even cases where it is the Filipino spouse
who initiates the proceedings for divorce. When this
Court recognized a foreign divorce decree that was
initiated and obtained by the Filipino spouse and
extended its legal effects on the issues of child custody
and property relation, it should not stop short in
likewise acknowledging that one of the usual and
necessary consequences of absolute divorce is the
right to remarry. Indeed, there is no longer a mutual
obligation to live together and observe fidelity. When
the marriage tie is severed and ceased to exist, the civil
status and the domestic relation of the former spouse
change as both of them are freed from the marital
bond [Republic v. Manalo, G.R. No. 221029 (2018)]
R. Absentees
1. Purpose of the Rule
The declaration of absence made in accordance with
the provisions of the Civil Code has for its sole
purpose to enable the taking of the necessary
precautions for the administration of the estate of the
absentee. Since Roberto left no properties, there was
no need to judicially declare him absent [In Re Petition
for Declaration of Absence of Roberto L. Reyes, G.R. No. L-
32036 (1986)]
General rule: No independent action for declaration of
presumption of death [In Re Petition for the Presumption
of Death of Nicolai V. Szatraw, G.R. No. L-1780 (1948)]
Exception: For purpose of contracting a second
marriage [Art. 41, FC]
2. Who May File; When to File
PETITION FOR APPOINTMENT OF
REPRESENTATIVE
When filed
To provisionally represent absentee when a person
a. Disappears from his domicile, his whereabouts
being unknown, and
b. Has not left an agent to administer his property
or the power conferred upon the agent has
expired
[Sec. 1, Rule 107]

Who may file

a. Any interested party
b. Relative
c. Friend
[Sec. 1, Rule 107]

Petition for declaration of absence and

appointment of trustee or administrator
When filed
a. After 2 years
1. From disappearance of and without any
news from absentee, or
2. Since the receipt of the last news about him
b. After 5 years If the absentee left an administrator
of his property
[Sec. 2, Rule 107]

Who may file

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Spouse present
a.
b. Heirs instituted in a will, who may present an
S. Cancellation or
authentic copy of the same
c. Relatives who would succeed by the law of
Correction of Entries in
intestacy the Civil Registry
d. Those who have over the property of the
absentee some right subordinated to the
condition of his death
1. Entries Subject To
[Sec. 2, Rule 107] Cancellation or Correction
Who may be appointed under Rule 108
a. Spouse present shall be preferred when there is
no legal separation a. Births
b. Any competent person if absentee left no spouse, b. Marriage
or spouse is incompetent c. Deaths
[Sec. 7, Rule 107] d. Legal separations
e. Judgments of annulments of marriage
Termination of administration f. Judgments declaring marriages void from the
Trusteeship or administration of property of absentee beginning
shall cease upon order of court if g. Legitimations
a. Absentee appears personally or through an agent h. Adoptions
b. Absentee’s death is proved and heirs appear i. Acknowledgments of natural children
c. Third person appears, showing by proper j. Naturalization
document that he acquired title over the property k. Election, loss or recovery of citizenship
of the absentee l. Civil interdiction
[Sec. 8, Rule 107] m. Judicial determination of filiation
n. Voluntary emancipation of a minor
Effects of reappearance o. Changes of name
If the absentee appears, or without appearing his [Sec. 2, Rule 108]
existence is proved, he shall recover his property in
the condition in which it may be found, and the price Cancellation or correction of entries in the civil
of any property that may have been alienated or the registry requires adversarial proceedings
property acquired therewith; but he cannot claim Corrections of entries in the civil register including
either fruits or rents [Art. 392, NCC] those on citizenship, legitimacy of paternity or
filiation, or legitimacy of marriage, involve substantial
The subsequent marriage shall be automatically alterations. Substantial errors in a civil registry may be
terminated by the recording of the affidavit of corrected and the true facts established provided the
reappearance of the absent spouse, unless there is a parties aggrieved by the error avail themselves of the
judgment annulling the previous marriage or declaring appropriate adversary proceedings [Onde v Office of the
it void ab initio [Art. 42, FC] Local Civil Registrar of Las Piñas, G.R. No. 197174
(2014)]

Substantial Change – change that affects the civil

status, citizenship, or nationality of a party [Republic v.
Bautista, G.R. No. L-35316 (1987)]

One where the trial court has conducted proceedings

where all relevant facts have been fully and properly
developed, where opposing counsel have been given
opportunity to demolish the opposite party’s case,
and where the evidence has been thoroughly weighed
and considered [Eleosida v. Local Civil Registrar of Quezon
City, G.R. No. 130277 (2002)]

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U.P. LAW BOC SPECIAL PROCEEDINGS
A petition for cancellation of entries in a marriage
contract may prosper when the respondent [petitioner
below] was able to show by overwhelming evidence
that no marriage took place and that she was not even
aware of such marriage. To be sure, a petition for
correction or cancellation of an entry in the civil
registry cannot substitute for an action to invalidate a
marriage. Respondent indeed sought, not the
nullification of the marriage as there was no marriage
to speak of, but the correction of the record of such
marriage to reflect the truth as set forth by the
evidence. Otherwise stated, in allowing the correction
of the subject certificate of marriage by cancelling the
wife portion thereof, the trial court did not, in any
way, declare the marriage void as there was no
marriage to speak of. [Republic v. Olaybar, G.R. No.
189538 (2014)]
Note: Olaybar is a very rare exception.
Parties to be impleaded
a. Civil registrar, and
b. All persons who have or claim any interest which
would be affected
[Sec. 3, Rule 108]
Notice and publication of order fixing time and
place for hearing
Reasonable notice to persons named in the petition,
and publication once a week for 3 consecutive weeks
[Sec. 4, Rule 108]
A reading of Sections 4 and 5 shows that the Rules
mandate two sets of notices to different potential
oppositors one given to the persons named in the
petition and another given to other persons who are
not named in the petition but nonetheless may be
considered interested or affected parties. Summons
must, therefore, be served not for the purpose of
vesting the courts with jurisdiction but to comply with
the requirements of fair play and due process to
afford the person concerned the opportunity to
protect his interest if he so chooses [Republic v.
Lugsanay-Uy, G.R. No. 198010 (2013)]
Opposition
Period to file Within 15 days from notice of petition,
or from last date of publication of notice [Sec. 5, Rule
108]
May be filed by
a. Civil registrar, and
Page 298 of 481
REMEDIAL LAW
b. Any person having or claiming any interest under
entry whose cancellation or correction is sought
[Sec. 5, Rule 108]
Effect of failure to implead and notify the affected
or interested parties
A petition which seeks the correction of entries in the
birth certificate pertaining to first name, surname and
citizenship is not merely clerical. When the
corrections will result in changes in the status from
“legitimate” to “illegitimate” and the citizenship from
“Chinese” to “Filipino”, the petitioner should have
impleaded not only the local civil registrar but also her
parents and siblings as they are affected by the
changes or corrections. It is clear therefore that when
the petition for cancellation or correction of an entry
in the civil register involves substantial and
controversial alterations, including those on
citizenship, legitimacy or paternity or filiation, or
legitimacy of marriage, a strict compliance with the
requirements of Rule 108 is mandated, failing in
which the petition must be dismissed. [Republic v.
Lagunsay Uy, G.R. No. 198010 (2013)]
Such failure, however, may be excused
a. where there is the publication of the notice of
hearing, and earnest efforts were made by
petitioners in bringing to court all possible
interested parties
b. where the interested parties themselves initiated
the corrections proceedings
c. when there is no actual or presumptive awareness
of the existence of the interested parties, or
d. when a party is inadvertently left out
The procedure recited in Rule 103 regarding change
of name and in Rule 108 concerning 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 [Republic v. Valencia, G.R. No.
L-32181 (1986)]
Grounds for cancellation or correction
Upon good and valid grounds [Sec. 2]
2. R.A. 9048, as amended by
R.A. 10172
Procedure
Filing of petition for the correction of a clerical or
typographical error in an entry and/or change of
U.P. LAW BOC SPECIAL PROCEEDINGS
first name or nickname in the civil register, with its
supporting documents [Sec. 5]

The city or municipal civil registrar or the consul
general shall examine the petition and its
supporting documents [Sec. 6]
 prescribed herein, such decision shall become final
If sufficient in form and substance, the examiner
shall post the petition in a conspicuous place for 10
consecutive days [Sec 6]
 the proper court [Sec. 7]
In case of a petition for change of first name, the
petition has to be published once a week for 2
consecutive weeks in a newspaper of general
circulation, with the petitioner also submitting a
certification that he has no pending case or prior
criminal record [Sec. 6]
 proceeding
Within 5 working days after the completion of the
posting and or publication requirement, the city or
municipal civil registrar or the consul general shall
render a decision [Sec. 6]
Entries subject to change/cancellation or
correction
a. Clerical or typographical errors, and
b. Change of
1. First name or nickname
2. Day and month in date of birth, or
3. Sex of a person where it is patently clear that
there was a clerical or typographical error or
mistake in the entry,
can be corrected or changed by the concerned city or
municipal civil registrar or consul general
[Sec. 1]
If the petition is granted
The civil registrar general shall, within ten (10)
working days from receipt of the decision granting a
petition, exercise the power to impugn such decision
by way of an objection based on the following
grounds
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, or
c. The basis used in changing the first name or
nickname of a person does not fall under Sec. 4.
The civil registrar general shall immediately notify the
city or municipal civil registrar or the consul general
of the action taken on the decision. Upon receipt of
the notice thereof, the city or municipal civil registrar
Page 299 of 481
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or the consul general shall notify the petitioner of
such action.
If the civil registrar general fails to exercise his power
to impugn the decision of the city or municipal civil
registrar or of the consul general within the period
and executory.
The petitioner may seek reconsideration with the civil
registrar general or file the appropriate petition with
If the petition is denied
The petitioner may either appeal the decision to the
civil registrar general or file the appropriate petition
with the proper court [Sec 7]
R.A. 9048 proceeding merely a summary
R.A.9048 refers specifically to the administrative
summary proceeding before the local civil registrar
[Re Final Report On The Judicial Audit Conducted At The
Regional Trial Court, Br. 67, Paniqui, Tarlac, Adm.
Matter No. 06-7-414-RTC (2007)]
Ground for cancellation or correction
Clerical or typographical errors
Meaning of clerical or typographical error
A mistake committed in the performance of clerical
work in writing, copying, transcribing or typing an
entry in the civil register that
a. Is harmless and innocuous, such as
1. Misspelled name or place of birth
2. Mistake in entry of day and month in date of
birth or sex or the like
b. Is visible to the eyes or obvious to the
understanding
c. Can be corrected or changed only by reference to
other existing record or records
d. Does not involve the change of nationality, age,
status or sex of the petitioner
[Sec. 2(3), R.A. 9048, as amended]
Ground for change of first name or nickname:
a. The petitioner finds the first name or nickname
to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce
b. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by that
by that first name or nickname in the community,
or
c. The change will avoid confusion
U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

[Sec. 4] HOWEVER, if one wants to change one’s name (first

3. R.A. 9048 vis-à-vis Rule 103
and Rule 108
The intent and effect of the law is to exclude the
change of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the
ROC, until and unless an administrative petition
for change of name is first filed and subsequently
denied. In sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial [Silverio v.
Republic, G.R. No. 174689 (2007)]
name, surname or both) and the ground therefor is
one of those allowed by law and jurisprudence,
REMEDY is Rule 103
AND, if one wants to cancel and or correct any
entries in the civil registry AND the correction and
cancellation entails a modification or increase in
substantive rights, REMEDY is Rule 108
NONETHELESS, whatever the reason for the
change, correction or cancellation, one has the option
to just go directly to the court via Rule 103 or Rule
108.

This does not mean, however, that the trial courts are
divested of its authority or jurisdictions over petitions
for correction of entries and change of first name or
nickname. It only means that the local civil registrar
has primary, not exclusive, jurisdiction over such
petitions for correction of clerical errors and change
of first name or nickname. RA 9048 was enacted to
give the people an option to have the erroneous
entries in their civil records corrected via an
administrative proceeding before the local civil
registrar that is less expensive and more expeditious.

Nonetheless, it would be inappropriate to apply the

procedure prescribed in RA 9048 to petitions for the
correction of entries in the civil registry before the
courts. The promulgation of rules of procedure for
courts of justice is the exclusive domain of the
Supreme Court [Re Final Report On The Judicial Audit
Conducted At The Regional Trial Court, Br. 67, Paniqui,
Tarlac, Adm. Matter No. 06-7-414-RTC (2007)]

SO, if one wants to either

• Change one’s first name or nickname and the
ground therefor is one of those stated in Sec. 4,
R.A. 9048, or
• Cancel and or correct any entries in the civil
registry that is clearly a clerical or typographical
error
REMEDY is R.A. 9048

If application is denied, one can either

• appeal the decision to the proper judicial court,
or
• avail of Rule 103 or Rule 108, filing the
appropriate petition before the proper court

Page 300 of 481

U.P. LAW BOC SPECIAL PROCEEDINGS
T. Rule 109: Appeals in
Special Proceedings
What are the orders or judgements in Special
Proceedings from which an appeal may be taken?
An appeal may be taken from an order or judgement
which:
a. Allows or disallows a will
b. Determines who are the lawful heirs or the
distributive share of the estate to which such heir
is entitled
c. Allows or disallows any claim against the estate
or any claim presented on behalf of the estate to
offset a claim against it.
d. Settles the account of an executor, administrator,
trustee, or guardian.
e. Constitutes in estate proceedings or those
relating to the administration of a trustee or a
guardian, a final determination in the lower court
of the rights of the party appealing.
f. Which is the final order or judgment rendered in
the case, and affects the substantial rights of the
person appealing.
The order of the intestate court for Nelly to vacate a
portion of the estate property is only an interlocutory
order that may not be the subject of an appeal. It is
not a final determination of the case or of the issue of
distribution of the shares of the heirs in the estate or
their rights therein. It must be borne in mind that until
the estate is partitioned, each heir only has an inchoate
Page 301 of 481
REMEDIAL LAW
right to the properties of the estate, such that no heir
may lay claim on a particular property. [Silverio v. Court
of Appeals, G.R. No. 178933, (2009)].
From the probate court’s order allowing the will of
Ferdinand Marcos and issuing letters testamentary to
Imelda and Bongbong Marcos, the Republic should
have appealed to the CA under S1(a) R109 instead of
filing a petition for review on certiorari with the
Supreme Court. [Republic v. Marcos, (2009)].
Order of probate court that certain properties should
be included in the inventory is interlocutory and
cannot be appealed under S1 R109. Remedy is
certiorari under R65. [Aranas v Mercado, (2014)].
Period of appeal and how taken
In special proceedings and other cases of separate or
multiple appeals where a record on appeal is required,
the appeal shall be taken within 30 days from notice
by filing a notice of appeal and a record on appeal
with the court from which the appeal is being taken.
The test for determining if a record on appeal is
required is to ask if the court a quo notwithstanding
the appeal still needs to hold on to the original record
since it has not fully disposed of or decided the case.
Appeal from the RTC’s order granting a petition for
change of name is perfected by filing a notice of
appeal only. A record on appeal is not required since
the case does not involve multiple or separate appeals
where the trial court needs to retain the original
record. [Republic v. Nishina, (2010)].
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

CRIMINAL
PROCEDURE
Remedial Law

Page 302 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

VII. CRIMINAL a. Jurisdiction over Subject Matter

PROCEDURE This refers to the right to act or the power and
authority to hear and determine a cause [Gomez v.
Montalban, G.R. No. 174414 (2008)]
A. General Matters
The averments in the complaint or information
characterize the crime to be prosecuted [Brodeth v.
1. Jurisdiction over Subject People, G.R. No. 197849 (2017)], and the court before
Matter and Jurisdiction over which the case must be tried [Avecilla v. People, G.R,
No. 46370 (1992)]
Person of the Accused
Distinguished; Territorial Jurisdiction cannot be fixed by the will of the parties;
nor be acquired through waiver nor enlarged by the
Jurisdiction omission of the parties; nor conferred by any
acquiescence of the court [Gomez-Castillo v. Commission
Jurisdiction Jurisdiction on Elections, G.R. No. 187231 (2010)], or by mere
over subject over person of administrative policy of any trial court [Cudia v. Court
matter the accused of Appeals, G.R. No. 110315 (1998)]
Refers to the Refers to the
authority of the authority of the Statute applicable
Definition
court to hear and court over the Jurisdiction of a court to try a criminal action is
decide the case person charged determined by the law in force at the time of the
May be acquired institution of the action, and not the law in force at
by the arrest of the time of the commission of the crime [People v.
the accused, or Lagon, G.R. No. 45815 (1990)]
Conferred by by consent of
How law; cannot be the accused, or [NOTE: This rule refers only to remedial law and not
acquired conferred by the by waiver of substantive law.]
parties objections as
when the Imposable penalty
accused enters In determining whether or not the court has
his plea jurisdiction over an offense, we consider the penalty
Cannot be which may be imposed upon the accused for the
waived by the charge in the complaint and not the actual penalty
parties; even on imposed after the trial [People v. Purisima, G. R. No. L-
appeal and even 40902 (1976)]
if the reviewing
Right to object
parties did not Principle of adherence of jurisdiction
may be waived;
raise the issue of General rule: Under the principle of adherence of
Waiver of failure of the
jurisdiction, the jurisdiction or continuing jurisdiction, once a
objection accused to object
reviewing court court acquires jurisdiction over a controversy, it shall
in time would
is not precluded continue to exercise such jurisdiction until the final
constitute waiver
from ruling that determination of the case [Mendoza v. Comelec, G.R.
the lower court No. 188308 (2009)]
had no
jurisdiction over It is not affected by
the case 1. A subsequent valid amendment of the
information [People v. Chupeco, G.R. No. L-19568
On jurisdiction over the subject matter, see Garcia v. (1964)]; or
Ferro Chemicals, Inc. [G.R. No. 172505 (2014)]; on 2. A new law vesting jurisdiction over such
jurisdiction over the person, see Santiago v. Vasquez proceedings in another tribunal [Palana v. People,
[G.R. No. 99289-90 (1993)] G. R. No. 149995 (2007)]

Page 303 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
Exceptions: The succeeding statute
1. expressly provides, or
2. is construed to the effect that it is intended to
operate to actions pending before its enactment
[Palana v. People, G. R. No. 149995 (2007)]
b. Jurisdiction over the Person of
the Accused
The person charged with the offense must have been
brought in to its forum for trial
1. Forcibly by warrant of arrest; or
2. Voluntary appearance or submission of the
accused to the jurisdiction of the court
[Antiporda v. Garchitorena, G.R. No. 133289 (1999),
citing Arula v. Espino, G.R. No. L-28949 (1969)]
Voluntary appearance of the accused is
accomplished by
1. Filing pleadings seeking affirmative relief
2. Giving bail
[Santiago v. Vasquez, G.R. No. 99289-90 (1993)]
There is no voluntary appearance under item (a)
above in case of special appearance to challenge the
jurisdiction of the court over the person [Garcia v.
Sandiganbayan, G.R. Nos. 170122 & 171381 (2009)],
e.g. a motion to quash
1. a complaint on the ground of lack of jurisdiction
over the person of the accused because failure to
file would be a waiver of the defense of lack of
jurisdiction over the person, or
2. the warrant of arrest because it is the very
legality of the court process forcing the
submission of the person of the accused that is
the very issue in the motion to quash a warrant
of arrest
[Miranda v. Tuliao, G.R. No. 158763 (2006)]
Voluntary surrender as a mitigating
circumstance
When after the commission of the crime and the
issuance of the warrant of arrest, the accused
presented himself in the municipal building to post
the bond for his temporary release, voluntary
surrender is mitigating. The fact that the order of
arrest had already been issued is no bar to the
consideration of the circumstances because the law
does not require that the surrender be prior to the
order of arrest [Rivera v. CA, G.R. No. 125867 (2000),
citing People v. Yecla (erroneously referred to as Yeda),
G.R. No. 46612 (1939) and People v. Turalba, G.R. No.
L-29118 (1974)]
Page 304 of 481
REMEDIAL LAW
c. Territorial Jurisdiction
The place where the criminal offense was committed
not only determines the venue of the action but is
an essential element of jurisdiction [Alfelor v. Intia
G.R. No. L-27590 (1976)]
This is to be determined by the facts alleged in the
complaint or information as regards the place where
the offense charged was committed [Buaya v. Polo,
G.R. No. 167764 (2009)]
For jurisdiction to be acquired by courts in criminal
cases, the offense should have been committed or
any one of its essential ingredients took place
within the territorial jurisdiction of the court. Thus, it
cannot take jurisdiction over a person charged with an
offense allegedly committed outside of the limited
territory [Uy v. CA, G.R. No. 119000 (1997)] One
cannot be held to answer for any crime committed by
him except in the jurisdiction where it was committed
[People v. Mercado, G.R. No. L-2760 (1950)]
2. Requisites for Exercise of
Criminal Jurisdiction
Criminal jurisdiction
The authority to hear and try a particular offense and
impose the punishment for it [People v. Mariano, G.R.
No. L-40527 (1976)]
Requisites
a. Subject matter jurisdiction: the offense is one
which the court is by law authorized to take
cognizance of
b. Territorial jurisdiction: the offense must have
been committed within its territorial jurisdiction
c. Jurisdiction over the person: the person
charged with the offense must have been brought
into its forum for trial, forcibly by warrant of
arrest or upon his voluntary submission to the
court.
All three requisites must concur before a court can
acquire jurisdiction to try a case
[Antiporda v. Garchitorena, G.R. No. 133289 (1999),
citing Arula v. Espino, G.R. No. L-28949 (1969)]
U.P. LAW BOC CRIMINAL PROCEDURE
3. Jurisdiction of Criminal
Courts
Regular (civilian) courts
MTC/MeTC/MCTC
Except in cases falling within the exclusive original
jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the MTC/MeTC/MCTC shall exercise
exclusive original jurisdiction over:
a. All violations of city or municipal ordinances
committed within their respective territorial
jurisdiction
b. 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
c. Over offenses involving damage to property
through criminal negligence
[Sec. 32, B.P. 129, as amended by R.A. 7691]
d. Concurrent original jurisdiction with RTCs over
violations of R.A. 7610 (Child Abuse Act), as
amended, in cities or provinces where there are
no family courts yet, depending on the penalties
prescribed for the offense charged [Sec. 16-A,
R.A. 7610, as amended by R.A. 9231]
Note: SC Administrative Circular No. 09-94 (1994):
1. Item c: The criminal jurisdiction of the first-level
courts under Sec. 32(2) of B.P. 129, as amended
by R.A. 7691, has been increased to cover
offenses punishable with imprisonment not
exceeding 6 years irrespective of the amount of
the fine. As a consequence, the RTCs have no
more original jurisdiction over offenses
committed by public officers and employees
in relation to their office, where the offense is
punishable by more than 4 years and 2
months up to 6 years.
2. Item d: The provisions of Sec. 32(2) of B.P. 129
as amended by R.A. 7691, apply only to offenses
punishable by imprisonment or fine, or both, in
which cases the amount of the fine is disregarded
in determining the jurisdiction of the court.
a. However, in cases where the only penalty
provided by law is a fine, the amount
thereof shall determine the jurisdiction
of the court in accordance with the
original provisions of Sec. 32(2) of B.P.
129 which fixed original exclusive
Page 305 of 481
REMEDIAL LAW
jurisdiction of the first-level courts over
offenses punishable with a fine of not more
P4,000.
b. If the amount of the fine exceeds P4,000,
the RTC shall have jurisdiction, including
offenses committed by public officers
and employees in relation to their office
c. However, this rule does not apply to
offenses involving damage to property
through criminal negligence which are under
the exclusive original jurisdiction of the first-
level courts, irrespective of the amount of
the imposable fine.
RTC
a. Exclusive original jurisdiction in all criminal
cases not within the exclusive jurisdiction of
any court, tribunal or body, EXCEPT 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]
b. Exclusive appellate jurisdiction over all cases
decided by first-level courts within their
territorial jurisdiction [Sec. 22, BP 129]
c. Criminal cases commenced by information
against the child upon determination of probable
cause by the prosecutor [Sec. 33, R.A. 9344, as
amended by R.A. 10630], in places where there
are no family courts [Sec. 4(g), R.A. 9344]
d. Exclusive jurisdiction over drug-related
cases [Secs. 20, 61, 62, 90, R.A. 9165, see De Lima
v. Guerrero, G.R. No. 229781 (2017)]
e. Concurrent original jurisdiction with MTCs over
violations of R.A. 7610 (Child Abuse Act), as
amended, in cities or provinces where there are
no family courts yet, depending on the penalties
prescribed for the offense charged [Sec. 16-A,
R.A. 7610, as amended by R.A. 9231]
f. Cases of violence against women and children
under R.A. 9262 (Anti-VAWC Act), in the
absence of the RTC designated as a Family Court
in the place where the offense was committed
g. Violations of intellectual property rights
[A.M. No. 03-03-03-SC (2003); R.A. 8293]
h. Money laundering cases EXCEPT those
committed by public officers and private persons
who are in conspiracy with such public officers
shall be under the jurisdiction of the
Sandiganbayan [Sec. 5, R.A. 9160, as amended]
i. For offenses cognizable by the Sandiganbayan
where the information a) does not allege any
damage to the government or any bribery; or b)
the alleged damage to the government or the
bribery arising from the or closely related
U.P. LAW BOC CRIMINAL PROCEDURE
transactions are of an amount not exceeding P1
million [Sec. 4, P.D. 1606, as amended by R.A.
10660]
Sandiganbayan
a. Violations of:
1. RA 3019 (Anti-Graft and Corrupt Practices
Act)
2. RA 1379 (An Act Declaring Forfeiture In
Favor of The State Any Property Found To
Have Been Unlawfully Acquired by Public
Officer or Employee)
3. Crimes mentioned in Book 2, Title VII,
Section 2, Chapter 2 of the RPC (Indirect
Bribery, Corruption of Public officials, etc.)
where one or more of the accused are
officials occupying the following positions in
the government, whether in a permanent,
acting or interim capacity, at the time of the
commission of the offense
• 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]:
▪ Provincial governors, vice-
governors, members of the
sangguniang panlalawigan, and
provincial treasurers, assessors,
engineers, and other provincial
department heads
▪ City mayors, vice-mayors,
members of the sangguniang
panlungsod, city treasurers,
assessors, engineers, and other
city department heads
▪ officials of the diplomatic service
occupying the position of consul
and higher
▪ Philippine army and air force
colonels, naval captains, and all
officers of higher rank
▪ officers of the PNP while
occupying the position of
provincial director and those
holding the rank of senior
superintendent and higher;
▪ City and provincial prosecutors
and their assistants, and officials
and prosecutors in the Office of
the Ombudsman and special
prosecutor
Page 306 of 481
REMEDIAL LAW
▪ Presidents, directors or trustees,
or managers of GOCCs, state
universities or educational
institutions or foundations
• Members of Congress and officials
thereof classified as “Grade 27” and
up under the Compensation and
Position Classification Act of 198
• Members of the judiciary without
prejudice to the provisions of the
Constitution
• Chairmen and members of
Constitutional Commissions, without
prejudice to the provisions of the
Constitution
• All other national and local officials
classified as “Grade 27”
b. Other offenses or felonies whether simple or
complexed with other crimes committed by
public officials and employees mentioned
above in relation to their office. The following
must concur:
An offense is deemed committed in relation to his
office when it cannot exist without the office
1. The office is a constituent element of the
crime as defined in the statute
2. The offense be intimately connected with
the office of the offender
3. The fact that the offense was committed in
relation to the office must be alleged in the
Information
[People v. Magallanes, G.R. No. 118013-14 (1995)]
In the absence of any allegation that the offense
was committed in relation to the office of the
accused or was necessarily connected with the
discharge of their functions, the RTC and not
the Sandiganbayan, has jurisdiction over the
case [People v. Cawaling G.R. No. 117970 (1998)]
c. Criminal cases filed pursuant to and in
connection with EO 1, 2, 14, 14-A (1986)
[Sec. 4, P.D. 1606, as amended by R.A. 10660]
Section 4(b) of P.D. 1606, as amended by R.A. 10660,
is the general law on jurisdiction of the Sandiganbayan
over crimes and offenses committed by high-ranking
public officers in relation to their office. Sec. 90, R.A.
9165 is the special law excluding from the
Sandiganbayan's jurisdiction violations of R.A. 9165
committed by such public officers. In the latter case,
jurisdiction is vested upon the RTCs designated by
the Supreme Court as drugs court, regardless of
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

whether the violation of RA 9165 was committed in
relation to the public officials' office [De Lima v.
Guerrero, G.R. No. 229781 (2017)]
Military courts
General rule: Ordinary courts will have jurisdiction over
cases involving members of the armed forces, and
other persons subject to military law, regardless of
who the co-accused or victims are.
Exception: When the offense is service-oriented, it
will be tried by the court martial; Provided, that the
President may, in the interest of justice, order or
direct, at any time before arraignment, that any such
crimes or offenses be tried by the proper civil courts.
[Sec. 1, R.A. 7055]
j. Where there is no prima facie case and a motion to
quash on that ground has been denied
k. Where preliminary injunction has been issued by
the SC to prevent the threatened unlawful arrest
of petitioners
[Brocka v. Enrile, G.R. No. 69863-65 (1990)]
l. When it is necessary to prevent the use of the
strong arm of the law in an oppressive and
vindictive manner [Hernandez v. Albano, G.R. No.
L-19272 (1967)]

4. When Injunction May Be

Issued To Restrain Criminal
Prosecution
General rule: Criminal prosecution may NOT be
blocked by court prohibition or injunction [Brocka v.
Enrile, G.R. No. 69863-65 (1990)]

Rationale: If at every turn investigation of a crime

will be halted by a court order, the administration of
criminal justice will meet with an undue setback.
Indeed, the investigative power of the Fiscal may
suffer such a tremendous shrinkage that it may end up
in hollow sound rather than as a part and parcel of the
machinery of criminal justice [Hernandez v. Albano,
G.R. No. L-19272 (1967)]

Exceptions
a. To afford adequate protection to the
constitutional rights of the accused
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
suits
c. Where there is a prejudicial question which is sub
judice
d. Where acts of the officer are without or in excess
of authority
e. When the prosecution is under an invalid law,
ordinance or regulation
f. When double jeopardy is clearly apparent
g. When court has no jurisdiction over the offense
h. When it is a case of persecution rather than
prosecution
i. Where the charges are manifestly false and
motivated by vengeance

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Barangay [Sec. 410, LGC]

B. Prosecution of Offenses The prescriptive periods shall resume upon receipt by
the complainant
1. Criminal Actions; How a. of the complaint or
b. the certificate of repudiation or
Instituted c. of the certification to file action issued by the
Lupon or Pangkat Secretary
The institution of a criminal action generally depends Such interruption however shall not exceed 60 days
upon whether the offense is one which requires a from the filing of the complaint with the punong
preliminary investigation (PI) or not: barangay
Offenses requiring PI Other offenses [Sec. 410(c), LGC]
Those where the
penalty prescribed by What criminal cases require prior recourse to the
law is at least 4 years, lupon?
2 months and 1 day All other offenses Offenses punishable by imprisonment not exceeding
[Sec. 1, Rule 112, as one (1) year or a fine not exceeding P5,000
amended by A.M. No. [Sec. 408(c), LGC] and where the parties actually
05-8-26-SC] reside in the same city or municipality
a. The complaint or
information is Exceptions:
filed directly with a. when there is no private offended party [Sec.
the MTCs and 408(d), LGC]
MCTCs; or b. One party is the government or any subdivision
b. The complaint is thereof [408(a), LGC];
filed with the c. One party is a public officer or employee, and the
The criminal action is
office of the dispute relates to the performance of his official
instituted by filing the
prosecutor functions [408(b), LGC];
complaint with the
[Sec. 1(b), Rule 110] d. Parties actually resides in different cities or
appropriate officer
for PI [Sec. 1(a), Rule municipalities, EXCEPT where such barangays
In Manila and other adjoin each other AND the parties agree to
110]
chartered cities, the amicable settlement by an appropriate lupon
complaint shall be filed [408(f), LGC];
with the office of the e. when the accused is under police custody or
prosecutor unless detention
otherwise provided in
their charters [Sec. 1(b),
Rule 110]
2. Who May File; Crimes That
Cannot be Prosecuted De
Effect of institution
The institution of a criminal action shall interrupt the
Officio
running of the prescription period of the offense
charged UNLESS otherwise provided in special laws General rule: No complaint or information may be filed
[Sec. 1, Rule 110] or dismissed by an investigating prosecutor without
the prior written authority or approval of the
There is no more distinction between cases under the provincial or city prosecutor or chief state prosecutor
RPC and those covered by special laws with respect or the Ombudsman or his deputy [Sec. 4, Rule 112, as
to the interruption of the period of prescription amended by A.M. 05-8-26-SC]
[People v. Pangilinan, G.R. No. 152662 (2012)]
Note: Secs. 3 and 4, Rule 110 discuss who should
Falling under the authority of the lupon subscribe (not file) the complaint or information.
While the dispute is under mediation, conciliation or
arbitration, the prescriptive periods for offenses and Exception: CRIMES THAT CANNOT BE
causes of action under existing laws shall be interrupted PROSECUTED DE OFICIO
upon the filing of the complaint with the Punong

Page 308 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

file the
Rationale action shall
This was imposed out of consideration for the be exclusive
aggrieved party who might prefer to suffer the outrage of all other
in silence rather than go through with the scandal of persons and
a public trial [People v. Yparraguirre, G.R. No. 124391 shall be
(2000)] exercised
successively
Crime Who May File Conditions in this order
a. Must c. State – If
include the
both offended
guilty party dies or
parties, becomes
if both incapacitate
alive d before she
b. Must can file the
not have complaint,
consente and she has
d to the no known
offense parents,
or grandparent
pardone s or
Adultery and Offended d the guardian
concubinage spouse offender Defamation,
s which
c. The consists of
marital imputation Offended party
relation- of any of the
ship foregoing
must still offenses
be
subsistin EVENTS SUBSEQUENT TO FILING
g a. Death of offended party
[Pilapil v. Death after filing the complaint would not
Ibay-Somera, deprive the court of jurisdiction. The death of the
G.R. No. offended party in private crimes is essential not
80116, for the maintenance of the action but solely for
(1989)] the initiation thereof [People v. Diego, G.R. No.
a. Offended 1626 (1937)]
party –
includes The causes for extinguishment of criminal
minors, liability are enumerated in Art. 89 of the Revised
The offender
even Penal Code. The death of the offended party
must not
Seduction, independent is not one of them. Neither is such an event
have been
abduction, ly of those listed among the grounds of a motion to
pardoned by
acts of in item b, quash a criminal complaint or information as
any of a and
lasciviousne except if provided in Sec. 2, Rule 117. No Philippine
b in the
ss incompetent decision was cited to support the view espoused
preceding
or incapable by the defendant-appellee [People v. Bundalian,
column
b. Parents, G.R. No. L-29985 (1982)]
grandparent
s, guardian Note: Bundalian concerned a libel case, but Art. 89,
- right to RPC applies to crimes under the RPC in general.

Page 309 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Pardon Consent
b. Desistance by offended party
Given after the
Desistance of the victim’s complaining mother commission of the
does not bar the People of the Philippines from Given before the
crime but before the
prosecuting the criminal action, but it operates as commission of the
institution of the
a waiver of the right to pursue civil indemnity crime
criminal action
[People v. Amaca, G.R. No. 110129 (1995)]
In adultery and concubinage
c. Pardon by offended party
Either expressly or
impliedly
A pardon by the offended party does not
extinguish criminal action except as provided in
In this jurisdiction
Art. 344 of the RPC; but civil liability with regard
pardon for adultery and
to the interest of the injured party is extinguished
concubinage must
by his express waiver [Art. 23, RPC]
come before the
institution of the
Note: Subsequent Marriage below for a
criminal action and
discussion of Art. 344, RPC.
both offenders must be
pardoned by the
If there is more than one accused, the pardon
offended party if said Express only
must be extended to all offenders.
pardon is to be
effective. The pardon But note: Ligtas v. CA
Pardon for adultery and concubinage must come
can be express or in [G.R. No. L-47498],
before the institution of the criminal action and
applied. Thus, when where the SC stated,
both offenders must be pardoned by the
the offended party in “However, such
offended party if said pardon is to be effective.
writing or in an consent or pardon
The pardon can be express or implied [Ligtas v.
affidavit asserts that he cannot be implied
CA, G.R. No. L-47498 (1987)
or she is pardoning his when the offended
or her erring spouse party allows his wife to
The offenses of seduction, abduction and acts of
and paramour for their continue living in the
lasciviousness shall not be prosecuted if the
adulterous act this is a conjugal home after her
offender has been expressly pardoned by
case of express arrest only in order to
offended party or her parents, grandparents or
pardon. There is take care of their
guardian [Sec. 5, Rule 110]
implied pardon when children." This
the offended party statement suggests that
General rule: Pardon must be made before the
continued to live with consent may be implied
filing of the criminal complaint in court [People v.
his spouse even after if the circumstances
Bonaagua, G.R. No. 18897 (2011)]
the commission of were different.
the offense. However However, Ligtas
Exception: In rape, marriage between the offender
such consent or pardon concerned the issue of
and the offended party would be effective as
cannot be implied pardon, not consent.
pardon even when the offender has already
when the offended
commenced serving his sentence [People v. de
party allows his wife to
Guzman, [G.R. No. 185843 (2010)]
continue living in the
conjugal home after her
Pardon Consent
arrest only in order to
Refers to past acts Refers to future acts take care of their
children [Ligtas v. CA,
In order to absolve the In order to absolve the G.R. No. L-47498
accused from liability, it accused from liability, it (1987), citing People v.
must be extended to is sufficient even if Boca (CA), O.G. 2248]
both offenders granted only to the
offending spouse

Page 310 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
Pardon Consent
In Seduction, Abduction and Acts of
Lasciviousness
Must be expressly Offended party cannot
made consent to the crime
d. Subsequent marriage
General rule: In cases of seduction, abduction,
acts of lasciviousness and rape, the marriage
of the offender with the offended party shall
extinguish the criminal action or remit the penalty
already imposed upon him, together with the co-
principals, accomplices, and accessories after the
fact of the above-mentioned crimes [Art. 344,
RPC]
Exceptions:
1. Marriage was invalid or contracted in bad
faith to escape criminal liability [People v.
Santiago, G.R. No. L-27972 (1927)]
2. In multiple rape, insofar as the other accused
in the other acts of rape respectively
committed by them are concerned [People v.
Bernardo (38 O.G. 3479)]
Note: The enumeration in Art. 344, RPC quoted
above does not include:
a. Adultery
b. Concubinage,
c. Defamation which consists in the
imputation of concubinage, adultery,
seduction, abduction, or acts of
lasciviousness
Remedies if the prosecutor refuses to file an
information
a. Action for mandamus, in case of grave abuse of
discretion;
The moment the prosecutor finds one to be so
liable or responsible for the offense, it becomes
his inescapable duty to charge him therewith and
to prosecute him for the same. In this moment,
it becomes mandatory in character [Metropolitan
Bank and Trust Company v. Reynaldo, G.R. No.
164538 (2010)]
b. Lodge a complaint before the court having
jurisdiction over the offense;
c. Take up the matter with the Department of
Justice under the appropriate administrative
procedure;
Page 311 of 481
REMEDIAL LAW
d. Institute an administrative charge against the
erring prosecutor; and
e. File criminal action against the prosecutor for
negligence to prosecute or tolerance of the crime [Art 208,
RPC] with the corresponding civil action for
damages for failure to render service by a public officer
[Art 27, NCC]
3. Criminal Actions, When
Enjoined
See When Injunction May Be Issued To Restrain
Criminal Prosecution above.
4. Control of Prosecution
All criminal actions commenced by a complaint or
information shall be prosecuted under the direction
and control of the prosecutor. BUT a 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 [Sec. 5, Rule 110, as amended
by A.M. No. 02-2-07-SC (2002)]
Conditions for a private prosecutor to prosecute
a criminal action
a. The public prosecutor has heavy work schedule
or there is no public prosecutor assigned in the
province or the city
b. The private prosecutor is authorized in writing
by the Chief of the Prosecutor office or the
Regional State Prosecutor
c. The authority of the private prosecutor was
approved by the Court
d. The private prosecutor shall continue to
prosecute the case up to the end of the trial
unless the authority is revoked or otherwise
withdrawn.
[Sec. 5, Rule 110, A.M. No. 02-2-07-SC (2002)]
e. In case of withdrawal or revocation of
authority, the same must be approved by the
court [DOJ Memorandum Circular No. 25
(2002)]
f. The prosecution of the civil liability has not been
reserved or waived.
However, in MTCs or MCTCs when the prosecutor
assigned thereto or to the case is not available, the
offended party, any peace officer, or public officer
charged with the enforcement of the law violated may
prosecute the case. This authority shall cease upon
actual intervention of the prosecutor or upon
U.P. LAW BOC CRIMINAL PROCEDURE
elevation of the case to the RTC [OCA Circular No.
39-02, stating in toto Sec. 5, Rule 110, as amended by
A.M. No. 02-2-07-SC]
Regarding item d of the enumeration above, Note,
however, this statement from Mobilia Products Inc. v.
Umezawa, G.R. No. 149357 (2005), “It is necessary
that the public prosecutor be present at the trial until
the final termination of the case; otherwise, if he is
absent, it cannot be gainsaid that the trial is under his
supervision and control.” However, said statement
was not necessary for the disposition of the case.
Cases in the Court of Appeals and the Supreme
Court
General rule: Only the Solicitor General may bring or
defend actions in behalf of the Republic of the
Philippines, or represent the People of the Philippines
or State in criminal proceedings before the SC and the
CA [Cariño v. De Castro, G.R. No. 176084 (2008)]
Exceptions:
a. When there is denial of due process of law to the
prosecution and the State or its agents refuse to
act on the case to the prejudice of the State and
the private offended party [Cariño v. De Castro,
G.R. No. 176084 (2008)], and
b. When the private offended party questions the
civil aspect of a decision of a lower court [Heirs of
Delgado v. Gonzalez, G.R. No. 184337 (2009)]
Cases elevated to the Sandiganbayan and the
Supreme Court
The Office of the Ombudsman, through the Special
Prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to EO Nos.
1,2, 14, 14-A as these are under the PCGG [Sec. 4,
P.D. 1606, as amended by R.A. 10660]
EXTENT OF PROSECUTOR’S CONTROL
a. Prior to filing
Matters which are within the control of the
prosecutor
1. What case to file
2. Whom to prosecute
3. Manner of prosecution
4. Right to withdraw information before
arraignment even without notice and hearing
[Crespo v. Mogul, G.R. No. L-53373 (1987)]
Page 312 of 481
REMEDIAL LAW
b. After filing
The following matters are already within the control
of the court and are no longer within the discretion of
the prosecutor:
1. Suspension of arraignment [Sec 1, Rule 116
"Upon motion by proper party"]
2. Granting a reinvestigation; However, when
the judge grants the reinvestigation, he may
not choose the public prosecutor who will
conduct such reinvestigation or preliminary
investigation. [Levista v. Alameda, G.R. No.
182677 (2010)]
3. Dismissal of the case [Crespo v. Mogul, G.R.
No. L-53373 (1987)]
4. Downgrading of the offense or dropping of
accused before plea [Sec. 14(b), Rule 110]
It is the prosecutor’s duty to proceed with the
presentation of his evidence to the court to enable the
court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted
[Crespo v. Mogul, G.R. No. L-53373 (1987)]
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 on the
sound discretion of the court. A motion to dismiss
should be filed with the court, which has the option
to grant or deny it [Crespo v. Mogul, G.R. No. L-53373
(1987)]
Limitations on the court’s control
a. The prosecution is entitled to notice of hearing;
b. The court must suspend arraignment, upon
motion by the proper party, when a petition for
review of the resolution of the prosecutor is
pending at either the DOJ, or the OP; provided,
that the period of suspension shall not exceed 60
days counted from the filing of the petition with
the reviewing office [Sec. 11(c), Rule 116]
c. The court must make its own independent
evaluation or assessment of the merits of the case
(e.g. on a motion to dismiss [should be to quash]).
Otherwise, there will be a violation of private
complainant’s right to due process and erroneous
exercise of judicial discretion [Martinez v. CA,
[G.R. No. L-112387 (1994)]
Effect of lack of intervention of fiscal
Although the private prosecutor had previously been
authorized by the special counsel to present the
evidence for the prosecution, in view of the absence
of the City Fiscal at the hearing, it cannot be said that
U.P. LAW BOC CRIMINAL PROCEDURE
the prosecution of the case was under the control of
the City Fiscal. It follows that the evidence presented
by the private prosecutor at said hearing could not
be considered as evidence for the plaintiff [People
v. Beriales, G.R. No. L-39962 (1976)]
It is necessary that the public prosecutor be present at
the trial until the final termination of the case;
otherwise, if he is absent, it cannot be gainsaid that
the trial is under his supervision and control [Mobilia
Products Inc. v. Umezawa, G.R. No. 149357 (2005)] Note
that said statement was not necessary for the
disposition of Mobilia, which involved a motion filed
by counsel of complainant without the conformity of
the public prosecutor.
Note: OCA Circular No. 39-02 [stating in toto Sec. 5,
Rule 110, as amended by A.M. No. 02-2-07-SC]
However, in MTCs or MCTCs when the
prosecutor assigned thereto or to the case is not
available, the offended party, any peace officer, or
public officer charged with the enforcement of
the law violated may prosecute the case. This
authority shall cease upon actual intervention of the
prosecutor or upon elevation of the case to the RTC.
5. Sufficiency of Complaint or
Information
Complaint
A complaint is 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 [Sec.
3, Rule 110]
Information
An information is an accusation in writing, charging
a person with an offense, subscribed by the
prosecutor and filed with the court [Sec. 4, Rule 110]
Complaint Information
Subscribed by the
prosecutor [Sec. 4, Rule
Subscribed by the 110]
offended party, any
peace officer or other (Indispensable
officer charged with requirement. Lack of
the enforcement of the authority of the officer
law violated [Sec. 3, signing it cannot be
Rule 110] cured by silence,
acquiescence or even
express consent.)
Page 313 of 481
REMEDIAL LAW
May be filed either in
court or in the Filed with the court
prosecutor’s office [Sec. 4, Rule 110]
[Sec. 1, Rule 110]
Requires no oath [Sec.
4, Rule 110]
Must be sworn hence,
under oath [Sec. 3, Rule The fiscal filing the
110] information is acting
under the oath of his
office.
CONTENTS OF A VALID INFORMATION
A complaint or information is sufficient if it states
a. The name and surname of the accused; or any
appellation or nickname by which he is known or
had been known
b. The designation of the offense given by the
statute
c. The acts or omissions complained of as
constituting the offense
d. The name of the offended party
e. The approximate date of the commission of the
offense, and
f. The place where the offense was committed
When an offense is committed by more than one
person, all of them shall be included in the complaint
or information.
[Sec. 6, Rule 110]
The test for sufficiency of the complaint or
information is whether the crime is described in
intelligible terms with such particularity as to apprise
the accused with reasonable certainty of the offense
charged [Lazarte v. Sandiganbayan, G.R. No. 180122
(2009)]
When there is ambiguity in the accusation, the case
must be resolved in favor of the accused [People v.
Ng Pek, G.R. No. L-1895 (1948)]
General rule: A defective information cannot support a
judgment of conviction
Exception: Where the defect in the information was
cured by evidence during the trial and no objection
appears to have been raised
[Abunado v. People, G.R. No. 159218 (2004)]
An accused is deemed to have waived his right to
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
U.P. LAW BOC CRIMINAL PROCEDURE
participated in the trial [Frias v. People, G.R. No.
171437 (2007)]
Objections relating to the form of the complaint or
information cannot be made for the first time on
appeal. The accused should have moved for a bill of
particulars or for quashal of information before
arraignment, otherwise he is deemed to have waived
his objections to such a defect [People v. Teodoro, G.R.
No. 172372 (2009)]
NOTE: Exception would be if the defect consists in
the lack of authority of the prosecutor who filed the
information; such defect is jurisdictional.
a. Name of the accused
1. The complaint or information must state the
name and surname of the accused or any
appellation or nickname by which he has been or
is known.
2. If his name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown.
3. If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such name shall be inserted
in the complaint or information and record.
[Sec. 7, Rule 110]
An information against all accused described as “John
Does” is void, and an arrest warrant against them is
also void [Pangandaman v. Casar, G.R. No. L-71782
(1988)]
b. Place of commission
General rule: The complaint or information is sufficient
if it can be understood from its allegations that the
offense was committed or some of its essential
ingredients occurred at some place within the
jurisdiction of the court.
Exception: The particular place where it was
committed constitutes an essential element of the
offense charged or is necessary for its identification
[Sec. 10, Rule 110]
c. Date of commission
General rule: It is not necessary to state in the
complaint or information the precise date the offense
was committed. The offense may be alleged to have
Page 314 of 481
REMEDIAL LAW
been committed on a date as near as possible to the
actual date of the commission.
Exception: When it is a material ingredient of the
offense
[Sec. 11, Rule 110]
Allegation in an information of a date different from
the one established during the trial would not, as a
rule, be considered as an error fatal to the
prosecution. Erroneous allegation is just deemed
supplanted by the evidence presented during the trial
or may even be corrected by a formal amendment of
the information.
Variance in the date of commission of the offense
only becomes fatal when such discrepancy is so great
that it induces the perception that the information and
the evidence are no longer pertaining to one and the
same offense. In this event, the defective allegation in
the information is struck down for violating right of
accused to be informed of specific charge
[People v. Delfin, G.R. No. 201572 (2014)]
d. Name of the offended party
The complaint or information must state the name
and surname of the person against whom or against
whose property the offense was committed, or any
appellation or nickname by which such person has
been or is known. If there is no better way of
identifying him, he must be described under a
fictitious name [Sec. 12, Rule 110]
Offenses against property
If the name of the offended party is unknown, the
property must be described with such particularity as
to properly identify the offense charged [Sec. 12(a),
Rule 110]
If the true name of the person against whom or
against whose property the offense was committed is
thereafter disclosed or ascertained, the court must
cause such true name to be inserted in the complaint
or information and the record [Sec. 12(b), Rule 110]
Offended party is a juridical person
The complainant or offended party must state its
name, or any name or designation by which it is
known, or by which it may be identified, without need
of averring that it is a juridical person or that it is
organized in accordance with law [Sec. 12(c), Rule 110]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

6. Designation of Offense
Qualifying and aggravating circumstances must be
alleged in the Information. Otherwise, they are not to
The complaint or information shall state the
be considered even if proven during the trial [Viray v.
designation of the offense given by the statute, aver
People, G.R. No. 205180 (2013)]
the acts or omissions constituting the offense, and
specify its qualifying and aggravating circumstances.
The failure to allege such cannot be cured by an
If there is no designation of the offense, reference
amendment of the information after the accused
shall be made to the section or subsection of the
entered his plea [People v. Antonio, G.R. No. 142727
statute punishing it [Sec. 8, Rule 110]
(2002)]
Specific acts of accused do not have to be described
If the aggravating circumstances were not alleged,
in detail in the information, as it is enough that the
they can still be basis for the awarding of exemplary
offense be described with sufficient particularity to
damages. The basis, however, is no longer Art. 2230
make sure the accused fully understands what he is
of the NCC, but Art. 2229 (by way of example or
being charged with [Guy v. People, G.R. No. 166794-96
correction for the public good) [People v. Dalisay, G.R.
(2009)]
No. 188106 (2009)]
Allegations prevail over the designation of the
The aggravating circumstance of habitual
offense. The facts, acts or omissions alleged and not
delinquency
its title, determine the nature of the crime. The
designation of the offense is only the conclusion of
The Information must specify the following
the prosecutor [People v. Magdowa, G.R. No. 48457
a. The commission of the previous crimes
(1941)]
b. The last conviction or release
[People v. Venus, G.R. No. 45141 (1936)]
An accused may be convicted of a crime more serious
than that named in the title if such crime is covered
Rule on Negative Averments
by the facts alleged in the body of the Information
and its commission is established by evidence [Buhat
General rule: whenever a person accused of the
v. CA, G.R. No. 119601 (1996)]
commission of a crime claims to be within the
statutory exception, it is more logical and convenient
The minute details of participation and cooperation
that he should aver and prove the fact than that the
on Illegal Drug Trading are matters of evidence that
prosecutor should anticipate such defense, and deny
need not be specified in the Information but
it [Cabrera v. Marcelo, G.R. Nos.. 157419-20 (2004),
presented and threshed out during trial [De Lima v.
citing People v. San Juan, G.R. No. L-22944 (1968)],
Guerrero, G.R. No. 229781 (2017)]
citing US v. Chan Toco, G.R. No. 3851 (1908)]

7. Cause of the Accusation Exception: Where the exemptions are so incorporated

QUALIFYING AND AGGRAVATING
CIRCUMSTANCES
General rule: The acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated:
a. In ordinary and concise language; and
b. Not necessarily in the language used in the
statute; but
c. In terms sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment
[Sec. 9, Rule 110]
in the language defining the crime that the ingredients
of the offense cannot be accurately and clearly set
forth if the exemption are omitted, the indictment, to
be sufficient, must show that the person charged does
not fall within the exemptions [People v. San Juan, G.R.
No. L-22944 (1968), citing US v. Pompeya, G.R. No. L-
10255 (1915)]
Where Complex Crime is charged
The allegations do not necessarily have to charge a
complex crime as defined by law. It is sufficient that
the Information contains allegations which show that
one offense was a necessary means to commit the
other [People v. Alagao, G.R. No. L-20721 (1966)]

Page 315 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
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 [Gonzaludo v.
People, G.R. No. 150910 (2006)]
8. Duplicity of the Offense;
Exception
Duplicity of the offense in an information or
complaint means the joinder of two or more separate
and distinct offenses in one and the same information
or complaint [Loney v. People, G.R. No. 152644 (2006)]
General rule: A complaint or information must charge
only one offense
Exception: Multiple offenses may be charged when the
law prescribes a single punishment for various
offenses: [Sec. 13, Rule 110]
a. Complex crimes – e.g. Acts committed in
furtherance of rebellion are crimes in themselves
but are absorbed in the single crime of rebellion.
The test is whether the act was done in
furtherance of a political end [Enrile v. Salazar
G.R. No. 92163 (1990)]
b. Special complex crimes
c. Continuous crimes
1. Plurality of acts performed separately during
a period of time
2. Unity of penal provision violated
3. Unity of criminal intent
[People v. Ledesma, G.R. No. L-41522 (1976)]
d. Crimes susceptible of being committed in various
modes
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. [Jurado v. Suy Yan, G.R. No. L-20714,
(1971)]
e. Crimes of which another offense is an ingredient
[People v. Camerino, G.R. No. L-13484 (1960)]
f. When a single act violates different statutes [Loney
v. People, G.R. No. 152644 (2006)]
Page 316 of 481
REMEDIAL LAW
Remedy
The filing of a motion to quash is the remedy in case
of duplicity of offense in an information [Sec. 3(f),
Rule 117]
Objection to a complaint or information which
charges more than one offense must be timely
interposed before the accused enters his plea [Sec
1, Rule 117]
Failure to do so constitutes a waiver [People v. Tabio,
G.R. No. 179477 (2008)] and the court may convict
the accused of as many offenses as are charged and
proved, and impose on him the penalty for each
offense [Sec. 3, Rule 120]
9. Amendment or Substitution
of Complaint or Information
Amendment
A change in either the form or substance of the same
offense in the Information. It is not a new charge; it
just supersedes the original Information but relates
back to the date at which the original information was
filed [Teehankee Jr. v. Madayag, G.R. No. 103102
(1992)]
KINDS OF AMENDMENT
a. Formal amendment merely states with
additional precision something which is already
contained in the original information, and which,
therefore adds nothing essential for conviction
for the crime charged [Gabionza v. CA, G.R. No.
140311 (2001)]
Examples
1. New allegations which relate only to the
range of penalty that the court might impose
in the event of conviction;
2. One which does not charge another offense
distinct from that already charged;
3. Additional allegation which do not alter the
prosecution’s theory of the case so as to
surprise the accused or affect the form of
defense he has or will assume;
4. One which does not adversely affect any
substantial right of the accused, such as his
right to invoke prescription
[Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)]
An amendment due to a supervening event is
considered only a formal amendment as it did not
U.P. LAW BOC CRIMINAL PROCEDURE
adversely affect any substantial right of the appellant
[People v. Degamo, G.R. No. 121211 (2003)]
b. Substantial amendment consists of the recital
of facts constituting the offense charged and
determinative of the jurisdiction of the court
[Teehankee v. Madayag, G.R. No. 103102 (1992)]
Examples
1. Stating a different manner of committing the
felony
2. Including conspiracy because such involves
a change in the basic theory of the
prosecution
3. Change in the date of commission of the
offense that will be prejudicial to the accused
Since the date of commission of the offense is
not required with exactitude, the allegation in an
information of a date of commission different
from the one eventually established during the
trial would not, as a rule, be considered as an
error fatal to prosecution. In such cases, the
erroneous allegation in the information may be
corrected by a formal amendment in the
information. The foregoing rule, however, is
concededly not absolute. Variance in the date of
commission of the offense as alleged in the
information and as established in evidence
becomes fatal when such discrepancy is so great
that it induces the perception that the
information and the evidence are no longer
pertaining to one and the same offense. [People v.
Opemia, G.R. No. L-7987 (1956)]
An amendment that would change the date of the
commission of the offense from 1947 to 1952 is
certainly not a matter of form [People v. Delfin,
G.R. No. 201572 (2014), citing People v. Opemia,
G.R. No. L-7987 (1956)]
The test as to whether the amendment is merely
formal is whether or not a defense under the
original information would be equally
available after the amendment and whether or
not any evidence the accused might have
would be equally applicable in one form as in
the other [People v. Degamo, G.R. No. 121211
(2003), citing Teehankee v. Madayag, G.R. No.
103102 (1992)]
Page 317 of 481
REMEDIAL LAW
WHEN TO AMEND
a. Before plea or arraignment
General rule: Any formal or substantial
amendment, made before the accused enters his
plea may be done without leave of court [Sec. 14,
Rule 110]
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
1. Upon motion of the prosecutor
2. With notice to the offended party and
3. With leave of court
The court is mandated to state its reasons in
resolving the motion of the prosecutor and to
furnish all parties, especially the offended party,
of copies of its order
[Sec. 14, Rule 110]
Not all defects in an information may be cured
by an amendment. An Information which is void
ab initio cannot be amended to obviate a ground
for quashal. An amendment which operates to
vest jurisdiction is impermissible [Leviste v.
Alameda G.R. No. 182677 (2010)]
Granting without conceding that the information
contains averments which constitute the
elements of Direct Bribery or that more than one
offence is charged or as in this case, possibly
bribery and violation of R.A. 9165, still the
prosecution has the authority to amend the
information at any time before arraignment
pursuant to Sec. 14, Rule 110 [De Lima v. Guerrero,
G.R. No. 229781 (2017)]
b. After plea and during trial
Formal amendment
Amendment as to form can only be made under
two conditions:
1. With leave of court; and
2. It does not cause prejudice to the rights of
the accused
[Sec 14, Rule 110]
General rule: Amendment as to substance at this
stage of the case is proscribed [People v. Zulueta,
G.R. No. L-4017 (1951)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Amendment and Substitution Distinguished

Rationale Amendment Substitution
1. It violates the right to be informed of the The same
nature and cause of the accusation during his attempted,
plea [Buhat v. People, G.R. No. 119601 (1996)] frustrated, Involves
2. It violates the rule on double jeopardy. Applicability necessarily different
"Substantial amendments to the information includes or offense
after the plea has been taken cannot be made included
over the objection of the accused, for if the offense
original information would be withdrawn, Formal or
the accused could invoke double jeopardy" Substantial
Scope substantial
[Tehankee v. Madayag, G.R. No. 103102, changes
changes
(1992)] Amendment
before plea has
Exception: Amendment may be allowed if it is Necessity of been entered
beneficial to the accused, e.g. amending Information Must be with
leave of Can be
for murder after arraignment by deleting the leave of court
court effected
qualifying circumstances and downgrading the without leave
offense to homicide [People v. Janairo, G.R. No. 129254 of court
(2007)] When
amendment is
SUBSTITUTION Another PI is
Necessity of Only as to
If it appears at any time before judgment that a entailed and
new PI and form, no need
mistake has been made in charging the proper accused has to
plea for another PI
offense, the court shall dismiss the original complaint plead anew
and retaking of
or information upon the filing of a new one charging plea
the proper offense in accordance with Sec. 19, Rule The amended
119, provided the accused shall not be placed in information
double jeopardy. The court may require the witnesses refers to the Involves a
to give bail for their appearance at the trial [Sec. 14, same offense different
Rule 110] charged in the offense which
original does not
Sec. 19, Rule 119 states that when it becomes manifest Offense information or include those
at any time before judgment that a mistake has been involved to an offense provided in the
made in charging the proper offense and the accused which is original charge;
cannot be convicted of the offense charged or any included in the cannot invoke
other offense necessarily included therein, the original charge; double
accused shall not be discharged if there appears good can invoke jeopardy
cause to detain him. In such case, the court shall double
commit the accused to answer for the proper offense jeopardy
and dismiss the original case upon the filing of the The accused
proper information. The accused
could invoke
cannot claim
double
double
jeopardy if the
Limitations of substitution jeopardy;
new
a. At any time before judgment [Sec. 14, Rule 110] Presupposes
information is
b. The accused cannot be convicted of the offense that the new
Double a substantial
charged or of any other offense necessarily information
jeopardy amendment
included therein [Sec. 19, Rule 119] involves a
and it was
c. The accused would not be placed in double different
done after the
jeopardy [Sec. 14, Rule 110] offense which
plea because
does not
such would
include or is
Refer to Part
not included in
the same

Page 318 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

offense the original duties, crimes against

charged or to charge. national security and
an offense the law of nations)
necessarily In the court of any
Those committed on
includes or municipality or territory
a railroad train,
included where such train, aircraft,
aircraft, or any other
[Teehankee Jr. v. Madayag, G.R. No. 103102, (1992)] or other vehicle passed
public or private
during its trip, including
vehicle in the court
Variance between Allegation and Proof place of departure and
of its trip
Variance Consequence arrival[Sec. 15, Rule 110]
The accused will be In the proper court of the
When the offense proved
convicted of the first port of entry or of
is LESS than the offense
offense proved any municipality or
charged
[Sec. 4, Rule 120] Those committed on territory through which
The accused will be board a vessel in the such vessel passed during
When the offense proved course of its voyage its voyage, subject to the
convicted of the
is GREATER than the generally accepted
offense charged
offense charged principles of international
[Sec. 4, Rule 120]
The case should be law [Sec. 15, Rule 110]
When the offense proved dismissed and a May be instituted
is DIFFERENT and NOT new Information Piracy, which has no anywhere [People v. Lol-lo
NECESSARILY should be filed, territorial limits and Saraw, G.R. No.
INCLUDED/INCLUDES charging the proper 17958 (1922)]
the offense charged offense. If one of the offended
[Sec. 14, Rule 110] parties is a private
individual, (a) Where the
libelous article is printed
10. Venue of Criminal Actions and first published, or
(b) Where said individual
General rule: In all criminal prosecutions, the action actually resides
must be instituted and tried in the courts of the
municipality or territory where If one of the offended
(1) The offense was committed, or parties is a public
(2) Any of its essential ingredients occurred official,
[Sec. 15(a), Rule 110] a. Where the official
holds office at the
Unlike in civil cases, in criminal cases venue is time of the
jurisdictional [People v. Metropolitan Trial Court of Quezon commission of the
City, Br. 32, G.R. No. 123263 (1996)] Libel offense
1. If the office is in
The court has no jurisdiction to try an offense Manila, then CFI
committed outside its territorial jurisdiction [People v. Manila
Pineda, G.R. No. 44205 (1993)] 2. If the office is
any other city or
Exceptions: province, then
Crime Venue file where he
Felonies under Art. holds office
2, RPC (offense on b. Where the libelous
board a PH ship or article is printed and
Proper court where
airship, forgery or first published
criminal action was first
counterfeiting of
filed [Sec. 15, Rule 110]
coins, public officers For online libel, the same
abroad in the measure cannot be
exercise of their reasonably expected

Page 319 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

when it pertains to
defamatory material 11. Intervention of Offended
appearing on the Internet
or on a website as there Party
would be no way of
determining the situs of General rule: An offended party has the right to
its printing and first intervene in the prosecution of a crime, where the
publication [Bonifacio v. civil action for recovery of civil liability is instituted in
RTC of Makati, G.R. No. the criminal action [Sec. 16, Rule 110]
184800 (2010)]
May be filed in the place Note: The offended party may intervene by counsel in
where the check was the prosecution of the offense [Sec. 16, Rule 110] but
dishonored or issued. In the prosecution of the case is still subject to the
the case of a cross-check, control of the prosecutor [Ricarze v. People, G.R. No.
Cases filed under
in the place of the 160451 (2007)]
B.P. 22
depositary or collecting
bank [People v. Grospe, Exceptions:
G.R. No. L-74053-54, a. Where, from the nature of the crime and the law
(1988)] defining and punishing it, no civil liability arises
The victim has the option in favor of a private offended party (e.g.
to file the case in his treason, rebellion, espionage and contempt)
Illegal recruitment [Rodriguez v. Ponferrada, G.R. No. 155531-34
place of residence or in
cases (R.A. 8042 or (2005)]
the place where the crime
Migrant Workers b. Where, from the nature of the offense, the
was committed [Sto Tomas
Act) private offended party is entitled to civil
v. Salac G.R. No. 152642
(2012)] indemnity arising therefrom but he has
RTCs have jurisdiction 1. waived the same or
over any violation of the 2. expressly reserved his right to institute a
Violations of RA provisions of the Act, separate civil action or
10175 (Cybercrime including any violation 3. already instituted such action
Prevention Act of committed by a Filipino [Rodriguez v. Ponferrada, G.R. No. 155531-34 (2005)]
2012) national regardless of
the place of
commission [Sec. 21]
SC has the power to
In exceptional order a change of venue
circumstances to or place of trial to avoid
ensure a fair trial and miscarriage of justice
impartial inquiry [Sec. 5(4), Art. VII,
Constitution]
The courts of the
territories where the
essential ingredients of
the crime took place have
Transitory or concurrent jurisdiction.
continuing offenses The first court taking
cognizance of the case
will exclude the others
[People v. Grospe, G.R. No.
L-74053 (1988)]

Page 320 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
C. Prosecution of Civil
Action
1. Rule on Implied Institution
of Civil Action with Criminal
Action
General rule: The civil action for the recovery of civil
liability arising from the offense charged is deemed
instituted with the criminal action.
Exception: The civil action is not deemed so instituted
if the offended party
a. Waives the civil action
b. Reserves the right to institute it separately
c. Institutes the civil action prior to the criminal
action;
[Sec. 1, Rule 111]
2. When Civil Action May
Proceed Independently
a. Independent civil actions
When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be
instituted [Art 29, NCC]
Actions under the Civil Code, specifically for quasi-
delict, violation of constitutional rights, defamation,
fraud, physical injuries, refusal or failure to render aid
or protection by the members of the police or the
prosecuting attorney [Art. 32, 33, 34, 35 and 2176]
remain separate, distinct, and independent of any
criminal prosecution although based on the same act
[Phil. Rabbit Bus Lines v. People, G.R. No. 147703
(2004); Sec. 3, Rule 111]
Only a preponderance of evidence is required but in
no case may the offended party recover damages
TWICE for the same act or omission charged in the
criminal action [Sec. 3, Rule 111]
NOTE: The judgment of the court must state the
civil liability or damages caused by a wrongful act or
omission to be recovered from the accused by the
offended party, if there is any, EXCEPT, when the
enforcement of the civil liability by a separate civil
Page 321 of 481
REMEDIAL LAW
action has been reserved or waived. [Rule 120 (Sec 2),
ROC]
b. Reservation of right to file civil
action
When reservation shall be made
1. Before the prosecution starts to present its
evidence
2. Under circumstances affording the offended
party a reasonable opportunity to make such
reservation. [Sec. 1, Rule 111]
Instances where reservation to file the civil action
separately shall not be allowed
1. B.P. 22 cases [Sec. 1(b), Rule 111]
2. Cases cognizable by the Sandiganbayan [Sec. 4,
P.D. 1606, as amended by R.A. 10660]
3. Tax cases [Sec. 7(b)(1), RA 9282]
c. Separate action filed by the
accused
No counterclaim, cross-claim or third-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 [Sec. 1, Rule 111]
3. When Separate Civil Action
Is Suspended
a. After the criminal action has been commenced,
the separate civil action arising therefrom
cannot be instituted until final judgment has
been entered in the criminal action
b. If the criminal action is filed after the civil
action has already been instituted, the civil
action shall be suspended in whatever stage it
may be found before judgment on the merits.
The suspension shall last until final judgment is
rendered on the criminal action.
c. The civil action may be consolidated with the
criminal action in the court trying the criminal
case, upon motion of the offended party and
before judgment is rendered on the merits of
the civil action. The evidence already adduced
in the civil action will be automatically
reproduced in the criminal action.
[Sec. 1, Rule 111]
U.P. LAW BOC CRIMINAL PROCEDURE
Note: The Rules preclude a motu proprio suspension by
the judge of the civil action; it must be by petition of
the defendant [Yap v. Paras, G.R. No. 101236 (1992)]
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled [Sec. 2,
Rule 111]
4. Effect of Death of the
Accused or Convict On Civil
Action
Upon the death of the accused or convict, criminal
liability is extinguished [Art. 89, RPC]
The criminal case shall be
dismissed without
Before prejudice to any civil action
arraignment that the offended party may
file against the estate of the
deceased [Sec. 4, Rule 111]
The civil liability is
extinguished. But,
a. An independent civil
action enforcing
liabilities under Art. 32,
33, 34, 35 and 2176 may
be continued against the
After
estate or legal
arraignment
representative of the
and during
accused, after proper
pendency of the
substitution.
criminal action
b. If the civil action has
been reserved and
subsequently filed, the
civil action shall proceed
after substitution of
parties.
[Sec. 4, Rule 111]
Civil and criminal liabilities
are extinguished [People v.
During appeal
Alison, G.R. No. L-30612
(1983)]
The civil liability is not
extinguished. Claims shall be
After judgment filed against the estate of the
accused under Rule 86 of the
ROC. [Sec. 5, Rule 86]
Page 322 of 481
REMEDIAL LAW
5. Prejudicial Question
One which arises in a case, where
the resolution of which is a logical
antecedent of the issue involved
therein and the cognizance of
which pertains to another tribunal
[People v. Consing, G.R. No. 148193
(2003)]
There is a prejudicial question only
when the matter that has to be
priorly decided by another
authority is one where the
cognizance of which pertains to
Definition
that authority and should not,
under the circumstances, be
passed upon by the court trying
the criminal case [Rojas v. People,
G.R. No. L-22237 (1974)]
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, G.R.
No. L-50411 (1980)]
a. The previously instituted civil
action involves an issue
similar or intimately related
to the issue raised in the
subsequent criminal action.
Elements
b. The resolution of such issue
determines whether or not
the criminal action may
proceed.
[Sec. 7, Rule 111]
Suspension of the criminal action
[Sec. 6, Rule 111]
Effect
It does not prescribe the dismissal
of the criminal action [Yap v. Paras,
G.R. No. 101236, (1992)]
a. office of the prosecutor (in
the PI stage);
b. Court conducting the PI; or
c. Court where criminal action
Where filed
has been filed for trial, at any
time before the prosecution
rests
[Sec. 6, Rule 111]
U.P. LAW BOC CRIMINAL PROCEDURE
A petition for suspension of the
criminal action by reason of a
prejudicial question in a civil
action may be filed in
a. the office of the prosecutor or
the
b. court conducting the PI
When the criminal action has
already been filed for trial, the
petition shall be filed in the same
criminal action at any time before
the prosecution rests [Sec. 6, Rule
111]
Application
Sec. 6, Rule 111 of the 1985 Rules
of Criminal Procedure plainly says
that the suspension may be made
only upon petition and not at the
instance of the judge alone, and it
also says suspension, and not
dismissal [Yap v. Paras, G.R. No.
No. 101236 (1992)]
Note: Both the 1985 Rules
(involved in Yap) and the 2000
Rules refer to a petition for
suspension.
To avoid two conflicting decisions
in the civil case and in the criminal
Rationale
case [Sy Thiong Shiou v. Sy Chim,
G.R. No. 174168 (2009)]
The nullity and forgery of the
prior deed of sale is based on the
very same facts which would be
necessarily determinative of the
accused’s guilt or innocence in the
Example case for estafa. If the first alleged
sale is void or fictitious, then there
would have been no double sale
and the accused would be declared
innocent [Ras v. Rasul, G.R. No.
50411 (1980)]
Not a prejudicial question
Although both are based on fraud, civil case for the
revocation of a management contract did not affect
the criminal cases for estafa for executing a chattel
mortgage on personal property in favor of another
without the consent of the previous mortgagee [Rojas
v. People, G.R. No. L-22237 (1974)]
The issue of the validity of the receipt was not
determinative of the guilt or innocence for estafa
Page 323 of 481
REMEDIAL LAW
because even if that receipt was annulled on the basis
of fraud, duress or intimidation, the accused’s guilt
could still be established when evidence can be shown
that they had actually received the sum for the fishing
boat but instead of purchasing one, they
misappropriated and failed to return the money to
him upon demand. But, it could have been a prejudicial
question had the criminal case been for falsification of
the same receipt involved in the civil action [Jimenez v.
Averia, G.R. No. L-22759 (1968)]
Where petition for suspension based upon
prejudicial question may be filed
A petition for suspension of the criminal action based
upon the pendency of a prejudicial question in a civil
action may be filed in the office of the prosecutor or
the court conducting the preliminary investigation.
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests [Sec. 6, Rule 111]
Prejudicial question where civil and
administrative cases, but no criminal case,
involved
The actions involved being respectively civil (forcible
entry) and administrative (before the Land Authority
regarding the right to possession) in character, it is
obvious that technically, there is no prejudicial
question to speak of. Equally apparent, however, is
the intimate correlation between said two
proceedings, stemming from the fact that the right of
private respondents to eject petitioner from the
disputed portion depends primarily on the resolution
of the pending administrative case. Thus, the SC ruled
that the more prudent course for the trial court to
have taken is to hold the ejectment proceedings in
abeyance until after a determination of the
administrative case [Quiambao v. Osorio, G.R. No. L-
48157 (1988)]
Prejudicial question where administrative and
criminal cases, but no civil case, involved
The case of San Miguel Properties, Inc. v. Perez [G.R. No.
166836 (2013)] involved an administrative case for
specific performance before the HLURB and a
criminal prosecution for violation of Sec. 25 of P.D.
957. San Miguel argued that the concept of a
prejudicial question involves a civil action and a
criminal action and there can be no prejudicial
question to speak of because no civil action was
pending. The SC said the HLURB case raises a
prejudicial question that sufficed to suspend the
criminal proceedings since the action before the
U.P. LAW BOC CRIMINAL PROCEDURE
HLURB was “civil in nature” and could not be
instituted elsewhere except in the HLURB whose
jurisdiction over the action was exclusive and original.
6. Rule on Filing Fees in Civil
Action Deemed Instituted
With the Criminal Action
General rule:
a. No filing fees shall be required for actual
damages.
b. Where the amount of moral, exemplary, nominal,
temperate (except actual) damages is specified in
the complaint/information, the corresponding
filing fees shall be paid by the offended party
upon the filing thereof in court.
c. Where the amount of moral, exemplary, nominal,
temperate damages is NOT specified in the
complaint/Information, the filing fees shall
constitute a first lien on the judgment awarding
such damages
[Sec. 1, Rule 111]
Exception:
a. Violations for B.P.22
1. The offended party shall pay in full the
filing fees based on the amount of the
check involved, which shall be considered
as the actual damages claimed.
2. Where the complaint or information also
seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the
offended party shall pay additional filing fees
based on the amounts alleged therein.
3. If the amounts are not so alleged but any of
these damages are subsequently awarded by
the court, the filing fees based on the amount
awarded shall constitute a first lien on the
judgment.
[Sec. 1, Rule 111]
b. Estafa – The offended party shall pay in full the
filing fees based on the amount involved [See
Sec. 20, Rule 141]
Page 324 of 481
REMEDIAL LAW
D. Preliminary Investigation
1. Nature of Right
It is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty thereof, and should be
held for trial [Sec. 1, Rule 112, as amended by A.M.
No. 05-8-26-SC]
Preliminary Investigation is “merely inquisitorial, and
it is often the only means of discovering the persons
who may reasonably be charged with a crime, to
enable the prosecutor to prepare his complaint or
information. It is not a trial of the case on the merits”
and does not place the persons against whom it is
taken in jeopardy [Paderanga v. Drilon, G.R. No. 96080
(1991)]
It is an executive, not a judicial function. Such
investigation is not part of the trial, hence, a full and
exhaustive presentation of the parties' evidence is not
required, but only such as may engender a well-
grounded belief that an offense has been committed
and that the accused is probably guilty thereof
[Metropolitan Bank and Trust Company v. Tonda, G.R. No.
134436 (2000)]
Right to preliminary investigation
Neither the 1935 nor the 1973 Constitution requires
the holding of a PI. The right thereto is of statutory
character and may be invoked only when specifically
created by statute. It is not a fundamental right and
may be waived expressly or by silence [Marinas v.
Siochi, G.R. Nos.. L-25707 (1981)]
Note: This doctrine is still applicable since the 1987
Constitution does not require a PI.
The right to have a PI conducted before being bound
over to trial for a criminal offense and hence formally
at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right.
To deny the accused’s claim to a PI would be to
deprive him of the full measure of his right to due
process [Sales v. Sandiganbayan, G.R. No. 143802
(2001)]
Waiver of right
The right to PI is a personal right which the accused
may waive either expressly or by implication but at all
times must be unequivocal. Mere failure of a
U.P. LAW BOC CRIMINAL PROCEDURE
defendant and/or his counsel to appear during PI
cannot be construed as a waiver [Larranaga v. CA,
G.R. No. 130644 (1998)]
When the accused waives his right to PI, the fiscal
may forthwith file the corresponding information
with the proper court [People v. Perez, G.R. No. L-
15231 (1960)]
An application for or admission to bail shall not bar
the accused from assailing the regularity or
questioning the absence of a PI of the charge against
him provided that he raises the challenge before
entering his plea [Sec. 26, Rule 114]
When right deemed waived
a. Express waiver or by silence [Pilapil v.
Sandiganbayan, G.R. No. 101978 (1993)]
b. Failure to invoke it during arraignment [People v.
De Asis, G.R. No. 105581 (1993)]; and
c. Consenting to be arraigned and entering a plea of
not guilty without invoking the right to PI [People
v. Bulosan, G.R. No. L-58404 (1988)]
The waiver, whether express or implied, must be in a
clear and unequivocal manner [Larranaga v. CA. G.R.
No. 130644 (1998)]
The right cannot be raised for the first time on appeal
[Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]
When right not deemed waived
a. Failure to appear before the prosecutor during
the clarificatory hearing or when summoned,
when the right was invoked at the start of the
proceeding [Larranaga v. CA, G.R. No. 130644
(1998)]; or
b. When the accused filed an application for bail
and was arraigned over his objection and the
accused demand that PI be conducted [Go v. CA,
G.R. No. 101837 (1992)]
2. Purposes of Preliminary
Investigation
a. To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty [Raro v.
Sandiganbayan, G.R. No. 108431 (2000)]
b. 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
Page 325 of 481
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expensive trials [Tandoc v. Resultan, G.R. No.
59241-44 (1989)]
3. Who May Conduct
Determination of Existence
of Probable Cause
Probable cause
Probable cause means the existence of such facts and
circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted
[Allado v. Diokno, G.R. No. 113630 (1994)]
The quantum of evidence now required in PI is such
evidence sufficient to “engender a well-founded
belief” as to the fact of the commission of a crime and
the respondent's probable guilt thereof. A PI is not
the occasion for the full and exhaustive display of the
parties’ evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief
that an offense has been committed and that the
accused is probably guilty thereof [Estrada v.
Ombudsman, G.R. No. 212140 (2015)]
The determination of probable cause during a PI or
reinvestigation is recognized as an executive function
exclusively of the prosecutor. A prosecutor cannot
then be compelled by mandamus to file a case against
an alleged criminal. The only exception is when such
prosecutor acted with grave abuse of discretion
amounting to grave abuse of discretion amounting to
lack or excess of jurisdiction [Hegerty v. CA, 409 SCRA
285 (2003)]
Hearsay evidence is admissible during PI [De Lima v.
Guerrero, G.R. No. 229781 (2017), citing Estrada v.
Ombudsman, G.R. No. 212140 (2015)]
In general, the following may conduct the
determination of existence of probable cause in a PI
a. Provincial/city prosecutors and their assistants
b. National and regional state prosecutors
c. Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by A.M. No. 05-8-
26-SC]
d. Ombudsman (see below)
U.P. LAW BOC CRIMINAL PROCEDURE
JUDICIAL DETERMINATION v.
EXECUTIVE DETERMINATION OF
PROBABLE CAUSE
a. Prosecutor
The executive determination of probable
cause is one made during the PI. It is a function
that properly pertains to the public prosecutor
who is given a broad range of discretion to
determine whether probable cause exists for
purposes of indictment. Such finding will not
be disturbed by the court unless there is finding
of grave abuse of discretion [Mendoza v. People,
G.R. No. 197293 (2014)]
The PI conducted by the fiscal is terminated
upon the filing of the information in the proper
court [Crespo v. Mogul, G.R. No. L-53373 (1987)]
b. Court
The judicial determination of probable cause
is one made by the judge to ascertain whether a
warrant of arrest should be issued against the
accused [Sec. 2, Art. III, Constitution]
Note: 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
conduct a PI effective October 3, 2005.
c. COMELEC
The COMELEC may conduct investigation as
regards election offenses [Sec. 2(6), Art. IX-C,
Constitution; Sec. 265, Omnibus Election Code]
d. 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 [Sec. 12, Art. XI, Constitution]
Only one motion for reconsideration or
reinvestigation of an approved order or
resolution shall be allowed, the same to be filed
within 5 days from notice thereof with the Office
of the Ombudsman, or the proper Deputy
Page 326 of 481
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Ombudsman as the case may be, with
corresponding leave of court in cases where
information has already been filed in court [Sec.
7. Rule II, Rules of Procedure of the Office of the
Ombudsman]
The Ombudsman is authorized to conduct PI
and to prosecute all criminal cases involving
public officers and employees, not only those
within the jurisdiction of the Sandiganbayan, but
also those within the jurisdiction of regular courts
as well [Uy v. Sandiganbayan, G.R. No. 105965-70
(2001)]
Courts should not interfere with the
Ombudsman’s investigatory power, exercised
through the Special Prosecutor, except when the
finding is tainted with GAD amounting to lack or
excess of jurisdiction. On the other hand, if the
Special Prosecutor files a motion to
dismiss/motion for leave to file a motion to
withdraw the information after reinvestigation,
the resolution of such motion rests on the sound
discretion of the anti-graft court [Fuentes v.
Sandiganbayan, G.R. No. 164664 (2006)]
A person under PI by the Ombudsman is entitled
to file a motion for reconsideration of the adverse
resolution, under Sec. 7 of the Rules of Procedure
of the Ombudsman. The filing of the
information without first affording the accused
his right to file a motion for reconsideration
renders PI conducted in this case incomplete.
The inevitable conclusion is that the accused was
not only effectively denied the opportunity to file
a motion for reconsideration of the
Ombudsman’s final resolution but also deprived
of his right to a full PI preparatory to the filing of
the information against him [Sales v.
Sandiganbayan, G.R. No. 143802 (2001)]
Procedure for Preliminary Investigation
Filing of the complaint, which
a. States the respondent’s address
b. Includes the affidavits of the complainant and
his witnesses, and other supporting
documents to establish probable cause. The
affidavits shall be subscribed and sworn to
before any prosecutor or government official
authorized to administer oath or if absent or
unavailable, before a notary public, each of
whom must certify that he personally
examined the affiants and that he is satisfied
U.P. LAW BOC CRIMINAL PROCEDURE
that they voluntarily executed and understood
their affidavits.
c. Shall be in such number of copies as there are
respondents, plus 2 copies for the official file
[Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-
26-SC]
 documents or from the expiration of the period for
Action of the investigating officer
a. Within 10 days after the filing of the
complaint, the investigating officer will either:
1. Dismiss, if he finds no ground to continue
the investigation; or
2. Issue a subpoena to the respondent,
attaching the complaint and supporting
affidavits and documents
[Sec. 3(b), Rule 112, as amended by A.M. No. 05-8-
26-SC]
3. If the respondent cannot be subpoenaed,
the investigating officer shall resolve the
complaint based on the evidence
presented by the complainant [Sec. 3(d),
Rule 112, as amended by A.M. No. 05-8-
26-SC]
b. Respondent has the right to examine the
evidence submitted by complainant which he
may not have been furnished and to copy
evidence at his expense [Sec. 3(b), Rule 112, as
amended by A.M. No. 05-8-26-SC]
 If he finds probable cause to hold respondent for
Respondent’s counter-affidavit
It must be made within 10 days from receipt of
subpoena with the complaint, and must comply
with the same requirements as a complaint.
Respondent is not allowed to file a motion to
dismiss in lieu of counter-affidavit [Sec. 3(c), Rule
112, as amended by A.M. No. 05-8-26-SC]
If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating
officer shall resolve the complaint based on the
evidence presented by the complainant [Sec. 3(d),
Rule 112, as amended by A.M. No. 05-8-26-SC]
This situation would have the effect of an ex-parte
investigation [Riano 210, 2016 Ed.]

Clarificatory hearing
The investigating officer may set a hearing if there
are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing
but without the right to examine or cross-examine.
They may, however, submit to the investigating
Page 327 of 481
REMEDIAL LAW
officer questions which may be asked to the party
or witness concerned [Sec. 3(e), Rule 112, as
amended by A.M. No. 05-8-26-SC]
The hearing shall be held within 10 days from
submission of the counter-affidavits and other
their submission. It shall be terminated within five
(5) days [Sec. 3(e), Rule 112, as amended by A.M.
No. 05-8-26-SC]

Determination
Within ten (10) days after the investigation, the
investigating officer shall determine whether or not
there is sufficient ground to hold the respondent
for trial [Sec. 3(f), Rule 112, as amended by A.M.
No. 05-8-26-SC]
Note: During the conduct of PI, the prosecutor is
under no duty to provide the respondent with the
counter-affidavits of his/her co-respondents [Estrada
v. Ombudsman, G.R. No. 212140-41 (2015)]
4. Resolution of the
Investigating Prosecutor
trial, he shall prepare the resolution and information
and shall certify under oath in the information that:
a. He, or as shown by the record, an authorized
officer has personally examined the complainant
and his witnesses;
b. There is reasonable ground to believe that a crime
has been committed and the accused is probably
guilty thereof;
c. The accused was informed of the complaint and
of the evidence against him; and
d. He was given opportunity to submit
controverting evidence
If he finds no probable cause, he shall recommend
the dismissal of the complaint [Sec. 4, Rule 112, as
amended by A.M. No. 05-8-26-SC]
5. Review
Within 5 days from the resolution, the investigating
officer shall forward the case to the
provincial/city/chief state prosecutor, or to the
Ombudsman or his deputy in cases cognizable by
the Sandiganbayan in the exercise of its original
jurisdiction.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

 the latter may be appealed before the CA pursuant to

Within 10 days from receipt of the resolution, the Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932
Prosecutor/Ombudsman shall act on the (2006)]
resolution and shall immediately inform the parties
of such action. Note: As provided under Memorandum Circular No.
 58 (2003), no appeal from or petition for review of
No complaint/information may be filed or decisions/orders/resolutions of the Secretary of
dismissed by an investigating prosecutor without Justice on preliminary investigations shall be
the prior written authority or approval of the entertained by the Office of the President, except
provincial/city/chief state prosecutor, or those involving offenses punishable by reclusion
Ombudsman or his deputy. perpetua to death [Angeles v. Gaite, G.R. No. 176596
(2011)]
Where the investigating prosecutor recommends
the dismissal of the complaint but the Thus, in De Ocampo involving homicide in relation to
prosecutor/Ombudsman or his deputy Sec. 10(a), Art. VI of R.A. 7610 punishable by reclusion
disapproves his recommendation, the latter may perpetua, appeal to the OP was available. However, in
file the information by himself or direct another Angeles involving libel, appeal to the OP was not
assistant/state prosecutor to do so without allowed.
conducting a new PI.
The Court of Appeals is clothed with jurisdiction to

review the resolution issued by the Secretary of the
If upon petition by a proper party under such rules
DOJ through a petition for certiorari under Rule 65
as the Department of Justice may prescribe or motu
… solely on the ground that the Secretary of Justice
proprio, the Secretary of Justice reverses or modifies
committed grave abuse of his discretion amounting to
the resolution of the provincial or city prosecutor
excess or lack of jurisdiction [Argovan v. San Miguel
or chief state prosecutor, he shall direct the
Corporation, G.R. No. 188767 (2013)]
prosecutor concerned either to file the
corresponding information without conducting
“While they are correct in stating that the right to
another preliminary investigation, or to dismiss or
preliminary investigation is a substantive, not merely
move for dismissal of the complaint or
a procedural right, petitioners are wrong in arguing
information with notice to the parties. The same
that the Information filed, without affording the
rule shall apply in preliminary investigations
respondent his right to file a motion for
conducted by the officers of the Office of the
reconsideration of an adverse DOJ resolution, is
Ombudsman.
fatally premature” [Aguinaldo and Perez v. Ventus and
[Sec. 4, Rule 112, as amended by A.M. No. 05-8-26-
Joson, G.R. No. 176033 (2015)]
SC]
The CA has jurisdiction to review the resolution
The Secretary of Justice (SOJ) may review resolutions,
issued by the Secretary of Justice through a petition
via petition for review to the SOJ, of his subordinates
for certiorari under Rule 65 albeit solely on the
in criminal cases despite the information being filed
ground that the Secretary committed grave abuse of
in court [Community Rural Bank of Guimba v. Talavera,
his discretion amounting to excess or lack of
A.M. No. RTJ-05-1909 (2005); see also DOJ Circ. No.
jurisdiction. Petitioners could have easily availed
70]
themselves of such recourse instead of directly
assailing the same before the SC [Chong v. Dela Cruz,
A motion for reconsideration may be filed against the
G.R. No. 184948 (2009)]
SOJ’s resolution [DOJ Circ. No. 70 (2000)]

The resolution of the Secretary of Justice may be 6. When Warrant of Arrest May
nullified in a petition for certiorari under Rule 65 on Issue
grounds of grave abuse of discretion resulting to lack
or excess of jurisdiction [Ching v. Sec. of Justice, G.R.
By the RTC
No. 164317 (2006)]
a. Within 10 days from the filing of the complaint
or information, the judge shall personally
The DOJ resolution is appealable administratively
before the Office of the President and the decision of

Page 328 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
evaluate the resolution of the prosecutor and its
supporting evidence.
b. He may immediately dismiss the case if the
evidence on record clearly fails to establish
probable cause.
c. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a
warrant issued by the judge who conducted the
PI or when the complaint or information was
filed pursuant to Sec. 7 of Rule 112, as amended
by A.M. No. 05-8-26-SC.
d. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to
present additional evidence within 5 days from
notice and the issue must be resolved by the court
within 30 days from the filing of the complaint or
information.
[Sec. 5(a), Rule 112, as amended by A.M. No. 05-8-26-
SC]
By the MTC
The procedure for the issuance of a warrant of arrest
by the judge shall be governed by Sec. 5(a) quoted
above [Sec. 5(b), Rule 112, as amended by A.M. No.
05-8-26-SC]
When warrant of arrest shall not issue
A warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant issued
by the municipal trial court in Section 5(b) quoted
above, or if the complaint or information was filed
pursuant to Sec. 6, Rule 112 (When accused lawfully
arrested without warrant) or is for an offense
penalized by fine only. The court shall then proceed
in the exercise of its original jurisdiction [Sec. 5(c),
Rule 112, as amended by A.M. No. 05-8-26-SC]
The PI for the determination of a sufficient ground
for the filing of the information is executive in nature.
It is part of the prosecution's job [P/Supt. Cruz v. Judge
Areola, A.M. No. RTJ-01-1642 (2002)]
The PI conducted by the judge which is properly
called preliminary examination is for the
determination of probable cause for the issuance of
warrant of arrest [P/Supt. Cruz v. Judge Areola, A.M.
No. RTJ-01-1642 (2002)]
NOTE: Trial judges determine probable cause in the
exercise of their judicial functions. A trial judge’s
finding of probable cause for the issuance of a search
warrant is accorded respect by reviewing courts when
Page 329 of 481
REMEDIAL LAW
the finding has substantial basis [Worldwide Web Corp.
v. People, G.R. No. 161106 (2014)]
The judge had no positive duty to first resolve the
Motion to Quash before issuing a warrant of arrest.
Sec. 5(a), Rule 112 required the judge to evaluate the
prosecutor's resolution and its supporting evidence
within a limited period of only 10 days [De Lima v.
Guerrero, G.R. No. 229781 (2017)]
7. Cases Not Requiring
Preliminary Investigation
nor Covered By the Rule on
Summary Procedure
If the complaint is filed directly with the
prosecutor involving an offense punishable by an
imprisonment of less than 4 years, 2 months and 1
day, the procedure outlined in Sec. 3(a), Rule 112, as
amended by A.M. No. 05-8-26-SC shall be observed.
The prosecutor shall act on the complaint based on
the affidavits and other supporting documents
submitted by the complainant within ten (10) days
from its filing [Sec. 8(a), Rule 112, as amended by
A.M. No. 05-8-26-SC]
Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-26-
SC states that:
a. The complaint shall state the address of the
respondent and shall be accompanied by
affidavits of the complainant and his witnesses,
as well as other supporting documents to
establish probable cause.
b. They shall be in such number of copies as there
are respondents, plus 2 copies for the official file.
The affidavits shall be subscribed and sworn to
before any prosecutor or government official
authorized to administer oath, or, in their absence
or unavailability, before a notary public, each of
whom must certify that he personally examined
the affiants and that he is satisfied that they
voluntarily executed and understood their
affidavits.
If the complaint or information is filed with the
MTC/MCTC for an offense covered by this
section
a. The procedure in Sec. 3(a) quoted above shall be
observed.
b. If within 10 days after the filing of the complaint
of information, the judge finds no probable cause
after personally evaluating the evidence, or after
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

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.
c. He may, however, require the submission of
additional evidence, within 10 days from notice,
to determine further the existence of probable
cause.
d. If the judge still finds no probable cause despite
the additional evidence, he shall, within 10 days
from its submission or expiration of said period,
dismiss the case.
e. When he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused had already been arrested, and hold him
for trial.
f. However, if the judge is satisfied that there is no
necessity for placing the accused under custody,
he may issue summons instead of a warrant of
arrest.
[Sec. 8(b), Rule 112, as amended by A.M. No. 05-8-26-
SC]
The right cannot be raised for the first time on appeal
[Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]
Restraining preliminary investigation
General rule: The power of the Fiscal to investigate
crimes committed within his jurisdiction will,
ordinarily, not be restrained.
Exceptions: Extreme cases may exist where relief in
equity may be availed of to stop a purported
enforcement of a criminal law where it is necessary:
a. For the orderly administration of justice;
b. To prevent the use of the strong arm of the law
in an oppressive and vindictive manner;
c. To avoid multiplicity of actions;
d. To afford adequate protection to constitutional
rights [Hernandez v. Albano, G.R. No. L-19272
(1967)]
e. In proper cases, because the statute relied upon
is unconstitutional, or was “held invalid” [Ladlad
v. Velasco, G.R. No. 172070-72 (2007)]

8. Remedies of Accused If
There Was No Preliminary
Investigation
Effect of denial of right
The absence of a PI does not impair the validity of an
information or render it defective. Neither does it
affect the jurisdiction of the court or constitute a
ground for quashing the information [Villaflor v.
Vivar, G.R. No. 134744 (2001)]

Remedies of the accused if there was no PI

a. Call the attention of the court to the deprivation
of the required PI before entering his plea
[Larranaga v. CA. G.R. No. 130644 (1998)]
b. File a certiorari, if refused and such refusal is
tainted with grave abuse of discretion [Riano 186,
2016 Ed.]

The trial court, instead of dismissing the information,

should hold in abeyance the proceedings and order
the public prosecutor to conduct a PI [Villaflor v.
Vivar, G.R. No. 134744 (2001)]

After the filing of the 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 as provided in
Rule 112 [Sec. 6, Rule 112, as amended by A.M. No.
05-8-26-SC]

Page 330 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
E. Arrest
1. Arrest, How Made
Arrest
Arrest is the taking of a person into custody in order
that he may be bound to answer for the commission
of an offense [Sec. 1, Rule 113]
How made
a. by actual restraint of a person to be arrested;
b. by his submission to the custody of the person
making the arrest [Sec. 2, 1st par., Rule 113]
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, G.R. No. 111771
(1993)]
No violence or unnecessary force shall be used in
making an arrest [Sec. 2, 2nd par., Rule 113]
An arrest may be made on any day and at any time of
the day or night [Sec. 6, Rule 113]
2. Arrest without Warrant,
When Lawful
General rule: No peace officer or person has the power
or authority to arrest anyone without a warrant except
in those cases expressly authorized by law [Umil v.
Ramos, G.R. No. 81567 (1991)]
Exceptions:
a. In flagrante delicto [Sec. 5(a), Rule 113]
b. Hot pursuit arrest [Sec. 5(b), Rule 113]
c. Arrest of escaped prisoner [Sec. 5(c), Rule 113]
d. Other lawful warrantless arrests
1. If a person lawfully arrested escapes or is
rescued, any person may immediately pursue
or retake him without a warrant at any time
and in any place within the Philippines [Sec.
13, Rule 113]
2. For the purpose of surrendering the accused,
the bondsmen may arrest him or, upon
written authority endorsed on a certified
copy of the undertaking, cause him to be
Page 331 of 481
REMEDIAL LAW
arrested by a police officer or any other
person of suitable age and discretion [Sec.
23, Rule 114]
3. An accused released on bail may be re-
arrested without the necessity of a warrant if
he attempts to depart from the Philippines
without permission of the court where the
case is pending [Sec. 23, Rule 114]
Note: A legitimate warrantless arrest necessarily
includes the authority to validly search and seize from
the offender (1) dangerous weapons, and (2) those
that may be used as proof of the commission of an
offense [People v. Montilla, G.R. No. 123872, (1998)]
a. In flagrante delicto
A peace officer or a private person may, without
warrant, arrest a person when, in his presence, the
person to be arrested:
1. Has committed
2. Is actually committing, or
3. Is attempting to commit
an offense
[Sec. 5(a), Rule 113]
“Reliable information” alone, absent any overt act
indicative of a felonious enterprise in the presence
and within the view of the arresting officers, are not
sufficient to constitute probable cause that would
justify an in flagrante delicto arrest [People v. Molina,
G.R. No. 133917 (2001)]
To constitute a valid in flagrante delicto arrest, the
following requisites must concur
1. The person to be arrested must execute an overt
act indicating that he has just committed, is
actually committing, or is attempting to commit
a crime, and
2. Such overt act is done in the presence or within
the view of the arresting officer
[Zalameda v. People, G.R. No. 183656 (2009); People v.
Laguio, G.R. No. 128587 (2007)]
“In his presence” means:
1. He sees the offense, even though at a distance, or
2. He hears the disturbances created by the offense
and proceeds at once to the scene
[People v. Evaristo, G.R. No. 93828 (1992)]
The following are instances of this type of arrest
without warrant
1. An arrest made after an entrapment does not
require a warrant inasmuch as it is considered a
U.P. LAW BOC CRIMINAL PROCEDURE
valid warrantless arrest pursuant to Sec. 5(a), Rule
113 [Teodosio v. CA, G.R. No. 124346 (2004)] This
is different from instigation, which means luring
the accused into a crime that he, otherwise, had
no intention to commit, in order to prosecute
him, and leads to acquittal [People v. Dansico, G.R.
No. 178060 (2011)]
2. When a person 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, G.R. No.
94953 (1994)]
A buy-bust operation is a valid form of in flagrante
delicto arrest. It is a valid form of entrapment [People v.
Araneta, G.R. No. 191062 (2010)]
b. Hot pursuit arrest
A peace officer or a private person may, without
warrant, arrest a person when an offense has just been
committed and the officer or private person has
probable cause to believe, based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it [Sec. 5(b), Rule 113]
Requisites:
1. An offense has just been committed. There
must be a large measure of immediacy between
the time the offense was committed and the time
of the arrest. If there was an appreciable lapse of
time between the arrest and the commission of
the crime, a warrant of arrest must be secured
[People v. del Rosario, G.R. No. 127755 (1999);
People v. Agojo , G.R. No. 181318 (2009)]; and
2. The person making the arrest has probable
cause to believe, based on personal knowledge
of facts and circumstances, that the person to be
arrested has committed it.
The phrase covers facts, or in the alternative,
circumstances. Circumstances may pertain to events
or actions within the actual perception, personal
evaluation or observation of the police officer at the
scene of the crime. Thus, even though the police
officer has not seen someone actually fleeing, he
could still make a warrantless arrest if, based on his
personal evaluation of the circumstances at the scene
of the crime, he could determine the existence of
probable cause. However, the determination of
probable cause and the gathering of facts and
circumstances should be made immediately after the
commission of the crime in order to comply with the
Page 332 of 481
REMEDIAL LAW
element of immediacy [Pestilos v. Generoso, G.R. No.
182601 (2014)]
Probable cause must be based on personal knowledge
which means an actual belief or reasonable grounds
of suspicion [Abelita III v. Doria, G.R. No. 170672
(2009)]
The clincher in the element of “personal knowledge
of facts or circumstances” is the required element of
immediacy within which these facts or circumstances
should be gathered (i.e. just after the commission of
the crime). This required time element acts as a
safeguard to ensure that the police officers have
gathered the facts or perceived the circumstances
within a very limited time frame, such that the chances
of contamination of facts is minimal. It does not
require actual presence at the scene while a crime
was being committed; it is enough that evidence of
the recent commission of the crime is patent and the
police officer has probable cause to believe based on
personal knowledge of facts or circumstances, that
the person to be arrested has recently committed the
crime [Pestilos v. Generoso, G.R. No. 182601 (2014)]
Note: Where a warrantless arrest is made under the in
flagrante and hot pursuit exceptions, the person arrested
without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded
against in accordance with Sec. 7 of Rule 112 [Sec. 5,
2nd par., Rule 113]
Sec. 7 of Rule 112 states that when a person is lawfully
arrested without a warrant involving an offense which
requires a PI, the complaint or information may be
filed by a prosecutor without need of such
investigation provided an inquest has been conducted
in accordance with existing rules.
Inquest is defined as an informal and summary
investigation conducted by a public prosecutor in
criminal cases involving persons arrested and
detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining
whether said persons should remain under custody
and correspondingly be charged in court [Leviste v.
Alameda, G.R. No. 182677 (2010), citing Sec. 1, DOJ
Circ. No. 61 (1993)]
General rule: PI is required to be conducted before a
complaint/information is filed for an offense where
the penalty prescribed by law is at least 4 years, 2
months and 1 day, without regard to the fine [Sec. 1,
Rule 112, , as amended by A.M. No. 05-8-26-SC]
U.P. LAW BOC CRIMINAL PROCEDURE
Exception: When a person is lawfully arrested without
a warrant involving an offense that requires a PI, a
complaint/information may be filed without
conducting the PI if the necessary inquest is
conducted.
In the absence of an inquest prosecutor, the offended
party or peace officer may directly file the complaint
in court [Sec. 6, Rule 112, as amended by A.M. No.
05-8-26-SC]
Remedy of a person arrested without a warrant:
1. BEFORE the complaint or information is filed,
arrested person may ask for PI
a. he must sign a waiver of the provisions of
Article 125 of RPC, in the presence of his
counsel;
b. he may apply for bail;
c. the investigation must be terminated within
15 days from its inception
2. AFTER the filing of the complaint but BEFORE
arraignment, the accused may ask for PI within 5
days after he learns of the filing of the complaint
or information
[Sec. 6, Rule 112, as amended by A.M. No. 05-8-26-
SC]
Procedure
An inquest is considered commenced upon receipt by
the Inquest officer from the law enforcement
authorities of the complaint/referral documents
which should include:
1. Affidavit of arrest, investigation report,
statement of the complainant and witnesses, all
of which must be subscribed and sworn to before
him;
2. Other supporting evidence gathered by the police
in the course of the latter's investigation of the
criminal incident involving the arrested or
detained person.
[Sec. 3, DOJ Circ. No. 61 (1993)]
The inquest proceedings must be terminated within
the period prescribed under the provisions of Art.
125, RPC. [Sec. 3, DOJ Circ. No. 61 (1993)]
Duty of inquest officer
1. Determine whether warrantless arrest is valid.
[Sec. 8, DOJ Circ. No. 61 (1993)]
2. If warrantless arrest is improperly made, Inquest
officer recommends to the City Prosecutor the
release of the arrested person [Sec. 9, DOJ Circ.
No. 61 (1993)]
Page 333 of 481
REMEDIAL LAW
3. If warrantless arrest is validly made, the Inquest
officer asks the detained person if he desires to
avail of a PI. If he does, he must execute a waiver
of Art. 125, RPC, with the assistance of a lawyer
and, in case of non-availability of a lawyer, a
responsible person of his choice [Sec. 10, DOJ
Circ. No. 61 (1993)]
4. If detained person does not opt for a PI or
refuses to execute the waiver, the Inquest officer
determines the probable cause that the accused is
probably guilty [Sec. 11, DOJ Circ. No. 61
(1993)]
5. If there is probable cause, the Inquest officer
prepares the complaint/information and forward
it, together with the records of the case, to the
City Prosecutor for appropriate action [Sec. 13,
DOJ Circular No. 61 (1993)]
c. Arrest of escaped prisoner
A peace officer or a private person may, without
warrant, arrest a person when the person to be
arrested is a prisoner who has escaped
1. from a penal establishment or place where he is
serving final judgment or temporarily confined
while his case is pending; or
2. While being transferred from one confinement to
another
[Sec. 5(c), Rule 113]
Escapee may be immediately pursued or re-arrested
without a warrant at any time and in any place within
the Philippines [Sec. 13, Rule 113]
Rationale
At the time of arrest, the escapee is in continuous
commission of a crime (i.e., evasion of service of
sentence). [Parulan v. Director of Prisons, G.R. No. L-
28519 (1968)]
RULES ON ILLEGALITY OF ARREST
Effect
The legality of the arrest affects only the jurisdiction
of the court over the person of the accused [People v.
Nuevas, G.R. No. 170233 (2007)]
Waiver
Any objection involving the arrest or the procedure
in the court’s acquisition of jurisdiction over the
person of an accused must be made before he enters
his plea; otherwise the objection is deemed waived
[Zalameda v. People, G.R. No. 183656 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE
An accused may be estopped from assailing the
legality of his arrest if he failed to move for the
quashing of the Information against him before his
arraignment. Any objection involving the arrest or the
procedure in the court's acquisition of jurisdiction
over the person of an accused must be made before
he enters his plea; otherwise, the objection is deemed
waived [People v. Badilla, G.R. No. 218578 (2016)]
An application for or admission to bail shall not
bar the accused from challenging the validity of his
arrest or the legality of the warrant issued , provided
that he raises the objection before he enters his plea.
The court shall resolve the matter as early as
practicable but not later than the start of the trial of
the case [Sec. 26, Rule 114]
A waiver of the right to question an illegal warrantless
arrest does not also mean a waiver of the
inadmissibility of evidence seized during an illegal
warrantless arrest [People v. Nuevas, G.R. No. 170233
(2007)]
When invalid arrest is cured
1. When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People, G.R.
No. 180693 (2009); People v. Alunday, G.R. No.
181546 (2008)]
2. by the filing of an information in court and the
subsequent issuance by the judge of a warrant of
arrest [Sanchez v. Demetriou, G.R. No. 111771
(1993)]
Note: In Sanchez v. Demitriou [G.R. No. 111771 (1993)],
the Court held that the original warrantless arrest of
the petitioner was doubtless illegal. Nevertheless, the
RTC lawfully acquired jurisdiction over the person of
the petitioner by virtue of a warrant of arrest … it
issued against him …. It was belated, to be sure, but
it was nonetheless legal.
The issuance of the corresponding warrant of arrest,
against a person invalidly detained will cure the defect
of that detention or at least deny him the right to be
released because of such defect [Sanchez v. Demetriou,
G.R. No. 111771 (1993)]
3. Method of Arrest
a. By Officer with Warrant
Duties of arresting officer
1. Execution of warrant
Page 334 of 481
REMEDIAL LAW
a. The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within 10 days from
its receipt.
b. Within ten (10) days after the expiration of
the period, the officer to whom it was
assigned for execution shall make a report to
the judge who issued the warrant.
c. In case of his failure to execute the warrant,
he shall state the reasons therefor.
[Sec. 4, Rule 113]
2. The officer shall inform the person to be arrested
of the cause of the arrest and the fact that a
warrant has been issued for his arrest
3. This duty does not apply:
a. When the person to be arrested flees;
b. When he forcibly resists before the officer
has opportunity to so inform him;
c. When the giving of such information will
imperil the arrest
[Sec. 7, Rule 113]
4. The officer need not have the warrant in his
possession at the time of the arrest but after the
arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as
practicable [Sec. 7, Rule 113]
This is not a case of a warrantless arrest but
merely an instance of an arrest effected by the
police authorities without having the warrant in
their possession at that precise moment [Mallari
v. CA, G.R. No. 11069 (1996)]
5. The officer executing the warrant shall arrest the
accused and deliver him to the nearest police
station or jail without unnecessary delay [Sec. 3,
Rule 113];
6. No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not
be subject to a greater restraint than is necessary
for his detention [Sec. 2, 2nd par., Rule 113]
Rights of the arresting officer
1. To orally summon as many persons as he deems
necessary to assist him in effecting the arrest [Sec.
10, Rule 113]
2. To break into building or enclosure when the
following concur:
a. he person to be arrested is or is reasonably
believed to be in said building;
U.P. LAW BOC CRIMINAL PROCEDURE
b. He has announced his authority and purpose
of entering therein; and
c. He has requested and been denied
admittance.
[Sec. 11, Rule 113]
3. To break out from the building/enclosure when
necessary to liberate himself [Sec. 12, Rule 113];
4. To search the person arrested for dangerous
weapons or anything which may have been used
or constitute proof in the commission of an
offense without a warrant [Sec. 13, Rule 126]
b. By Officer without Warrant
General rule: The officer shall inform the person to be
arrested of:
1. His authority; and
2. The cause of the arrest
Exceptions:
1. When the person to be arrested is engaged in the
commission of the offense;
2. When he is pursued immediately after its
commission;
3. When he has escaped, flees or forcibly resists
before the officer has the opportunity to so
inform him; or
4. When the giving of such information will imperil
the arrest.
[Sec. 8, Rule 113]
c. By Private Person (Citizen’s
Arrest)
1. The private person shall inform the person to be
arrested of the intention to arrest him and the
cause of the arrest except in the same cases as
those for arrest by an officer without a warrant
[Sec. 9, Rule 113]
2. The private person must deliver the arrested
person to the nearest police station or jail, and he
shall be proceeded against in accordance with
Sec. 7, Rule 112 [Sec. 5, Rule 113] Otherwise, the
private person may be held liable for illegal
detention [Art. 125, RPC]
4. Requisites of a Valid
Warrant of Arrest
Essential requisites
The warrant must:
Page 335 of 481
REMEDIAL LAW
a. Be issued upon probable cause determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce; and
b. Particularly describe the person to be arrested
[Sec. 2, Art. III, Constitution]
When Issued
A judge issues a warrant of arrest upon the filing of
the information by the public prosecutor and after
personal evaluation by the judge of the prosecutor’s
resolution and supporting evidence [Sec. 5(a), Rule
112, as amended by A.M. No. 05-8-26-SC]
The judge does not have to personally examine the
complainant and his witnesses. Established doctrine
provides, he shall personally evaluate the report and
the supporting documents submitted by the fiscal
regarding the existence of probable cause:
a. If he finds probable cause, he shall issue a warrant
of arrest, or
b. If on the basis thereof he finds no probable
cause, he may disregard the fiscal’s report and
require the submission of supporting affidavits of
witnesses
[People v. Gray, G.R. No. 180109 (2010); AAA v.
Carbonell, G.R. No. 171465 (2007)]
When warrant of arrest is not necessary
A warrant of arrest shall not issue
a. if the accused is already under detention pursuant
to a warrant issued by the municipal trial court in
accordance with Sec. 5(b) of Rule 112; or
b. if the complaint or information
1. was filed pursuant to Sec. 6 of Rule 112 or
2. is for an offense penalized by fine only
[Sec. 5(c), Rule 112, as amended by A.M. No. 05-
8-26-SC]
Sec. 5(b), Rule 112, as amended by A.M. No. 05-8-26-
SC states that the procedure for the issuance of a
warrant of arrest by the judge shall be governed by
Sec. 5(a). (See Part D.6 of this (Criminal Procedure)
reviewer.)
Sec. 6 of Rule 112, as amended by A.M. No. 05-8-26-
SC states that when a person is lawfully arrested
without a warrant involving an offense which requires
a PI, the complaint or information may be filed by a
prosecutor without need of such investigation
provided an inquest has been conducted in
accordance with existing rules.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The court shall then proceed in the exercise of its Rule 112, as therein has
original jurisdiction [Sec. 5(c), Rule 113] amended by been
A.M. No. 05-8- committed by
Note: If complaint or information is filed with the 26-SC] the person
MTC judge, and the judge finds probable cause, he sought to be
shall issue a warrant of arrest, or a commitment order arrested
if the accused had already been arrested. However, if [Baltazar v. People,
the judge is satisfied that there is no necessity for G.R. No. 174016
placing the accused under custody, he may issue (2008)]
summons instead of a warrant of arrest [Sec. 8(b), Rule
112, as amended by A.M. No. 05-8-26-SC] The preliminary inquiry made by a Prosecutor does
not bind the Judge. It merely assists him in making
a. Determination of Probable the determination of probable cause for issuance of
the warrant of arrest. The Judge does not have to
Cause For Issuance of Warrant follow what the Prosecutor presents to him. By itself,
of Arrest the Prosecutor’s certification of probable cause is
ineffectual. It is the report, the affidavits, the
Probable cause, in connection with the issuance of a transcripts of stenographic notes (if any), and all other
warrant of arrest, assumes the existence of facts and supporting documents behind the Prosecutor’s
circumstances that would lead a reasonably discreet certification which are material in assisting the Judge
and prudent man to believe that a crime has been in making his determination [Baltazar v. People, G.R.
committed and that it was likely committed by the No. 174016 (2008)]
person sought to be arrested [People v. Tan, G.R.
No. 182310 (2009)]

b. Probable Cause of Prosecutor

and Judge Distinguished
Prosecutor Judge
Executive
Judicial
determination of
determination of
Nature PC [Mendoza v.
PC [Sec. 2, Art.
People, G.R. No.
III, Constitution]
197293 (2014)]
Determination of
Determination of
PC to hold a
PC for the arrest
person for trial
of the accused
Purpose [Sec. 1, Rule 112,
[Baltazar v. People,
as amended by
G.R. No. 174016
A.M. No. 05-8-
(2008)]
26-SC]
Sufficient ground Set of facts and
to engender a circumstances
well-founded which would lead
belief that a a reasonably
crime has been discreet and
committed, and prudent man to
Standard
that the believe that the
respondent is offense charged
probably guilty in the
thereof and Information or
should be held any offense
for trial [Sec. 1, included

Page 336 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
F. Bail
1. Nature
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 the conditions hereinafter specified
[Sec. 1, Rule 114]
Purpose
a. To relieve an accused from imprisonment until
his conviction and yet secure his appearance at
the trial [People v. Hon. Donato, G.R. No. 79269
(2011) & Enrile v. Sadiganbayan, G.R. No. 213847
(2016)]
b. To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Sec. 14,
Art. III, Constitution]; and
c. To enable him to prepare his defense without
being subject to punishment prior to conviction
[Cortes v. Judge Catral, A.M. No. RTJ-97-1387
(1997)]
Note: The right to bail flows from the right to be
presumed innocent. It is accorded to a person in the
custody of the law who may be allowed provisional
liberty upon filing of a security to guarantee his
appearance before any court, as required under
specified conditions. Before conviction, bail is either
a matter of right or of discretion.
Bail is a matter of right when the offense charged is
punishable by any penalty lower than reclusion perpetua.
Bail is a matter of discretion when it comes to cases
penalized by reclusion perpetua, murder being of these
cases. Bail may be granted in such cases if the
evidence of guilt is not strong.
[Tanog v. Balindog, G.R. No. 187464 (2015)]
A person is allowed to petition for bail as soon as he
is deprived of his liberty by virtue of his arrest or
voluntary surrender. An accused need not wait for his
arraignment before filing a petition for bail [Serapio v.
Sandiganbayan, G.R. No. 148468 (2003)]
Requirement of custody
General rule: Custody of the law is required before the
court can act on an application for bail [Miranda v.
Tuliao, G.R. No. 158763 (2006)]
Page 337 of 481
REMEDIAL LAW
Exceptions: Custody is not required in cases of
witnesses posting bail:
a. When bail is required to guarantee the
appearance of a material witness [Sec. 14, Rule
119];
b. When bail is required to guarantee the
appearance of a prosecution witness in cases
where there is substitution of the information
[Sec. 14, Rule 110]
2. When a Matter of Right;
Exceptions
Bail is a matter of right
a. Before or after conviction, but pending appeal,
by the first-level courts;
b. Before conviction by RTC of an offense not
punishable by death, reclusion perpetua, or life
imprisonment
[Sec. 4, Rule 114]
Bail on offenses where minors are accused
For purposes of recommending the amount of bail,
the privileged mitigating circumstance of minority
shall be considered [Sec. 34, R.A 9344]
Where a child is detained, the court shall order
a. the release of the minor on recognizance to
his/her parents and other suitable person;
b. the release of the child in conflict with the law on
bail; or
c. the transfer of the minor to a youth detention
home/youth rehabilitation center
The court shall not order the detention of a child in a
jail pending trial or hearing of his/her case [Sec. 35,
R.A. 9344]
Children detained pending trial may be released on
bail or recognizance as provided for under Secs. 34
and 35 under this Act. In all other cases and whenever
possible, detention pending trial may be replaced by
alternative measures, such as close supervision,
intensive care or placement with a family or in an
educational setting or home. Institutionalization or
detention of the child pending trial shall be used only
as a measure of last resort and for the shortest
possible period of time [Sec. 36, R.A. 9344]
Exception: When the offense involved is a capital
offense, admission to bail may only be denied when
evidence of guilt is strong [Sec. 5, Rule 114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

If he applied for probation before finality, he

Recognizance may be allowed temporary liberty under his bail;
Recognizance is a mode of securing the release of any b. After the accused has commenced to serve his
person in custody or detention for the commission of sentence
an offense who is unable to post bail due to abject [Sec. 24, Rule 114]
poverty [Sec. 1, R.A. 10389] c. To military personnel accused under general
courts martial [Comendador v. de Villa, G.R. No.
Capital offense 93177 (1991)]
A capital offense is an offense which under the law
existing at the time of commission and of the 3. When a Matter of Discretion
application for admission to bail is punishable by
death [Sec. 6, Rule 114]
Upon conviction by the RTC of anoffense not
punishable by death, reclusion perpetua, or life
The capital nature of the offense is determined by the
imprisonment, admission to bail is discretionary [Sec.
penalty prescribed by law and not the one actually
5, Rule 114]
imposed [Riano, 335, 2016 Ed., citing Bravo v. De Borja,
G.R. No. L-65228 (1985)]
The application for bail may be filed in and acted
upon by the RTC despite the filing of notice of appeal,
Note: R.A. 9346 (An Act Prohibiting the Imposition
provided that it has not transmitted the original
of Death Penalty in the Philippines) enacted on June
record to the appellate court [Sec. 5, Rule 114]
24, 2006 (which repealed R.A. 8177 and R.A. 7659)
prohibited the imposition of the death penalty.
If the RTC decision changed the nature of the offense
from non-bailable to bailable, the application for bail
Generally not applicable to extradition
can only be filed with and resolved only by the
proceedings
appellate court [Sec. 5, Rule 114]
General rule: Right to bail is available only in criminal
proceedings and does not apply to extradition
If the conviction by the trial court is for a capital
proceedings because extradition courts do not render
offense, the accused convicted of a capital offense is
judgments of conviction or acquittal [Gov. of USA v.
no longer entitled to bail, and can only be released
Purganan and Jimenez, G.R. No. 148571 (2002)]
when the conviction is reversed by the appellate court
[Sec. 13, Article III, Constitution]
Exception: Only upon clear and convincing evidence:
a. That once granted, the applicant will not be flight
If the penalty imposed by the trial court is
risk or will not pose danger to the community;
imprisonment exceeding 6 years, the accused shall be
and
denied bail or his bail shall be cancelled upon
b. That there exists special humanitarian and
showing by the prosecution, with notice to the
compelling circumstances [Gov. of USA v.
accused, of any of the following [Sec. 5, Rule 114]:
Purganan and Jimenez, G.R. No. 148571 (2002)]
a. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime aggravated
Exception to the exception: When the accused is a minor,
by reiteration of the accused
he is entitled to bail regardless of whether the
b. The accused previously escaped from legal
evidence of guilt is strong [See Part F.4 of this
confinement, evaded sentence or violated bail
(Criminal Procedure) reviewer.]
conditions without valid justification
c. Commission of offense while under probation,
Note: Bail is a matter of discretion in extradition
parole or conditional pardon
proceedings [Govt. of HK Special Administrative Region v.
d. Probability of flight;
Olalia, G.R. No. 153675 (2007)]
e. Undue risk of the commission of another crime
during the pendency of the appeal
When not available
[Sec. 5, Rule 114]
Right to bail is also not available
Upon conviction of the RTC, the bail posted earlier
a. After a judgment of conviction has become final;
as a matter of right loses its force and the accused
must file a new and separate petition for bail.

Page 338 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
In deportation proceedings, bail is discretionary
upon the Commissioner of Immigration and
Deportation [Harvey v. Defensor-Santiago, G.R. No.
82544 (1990)]
Note: In Enrile v. People [G.R. No. 213847 (2015)], the
Court ruled that an accused should be granted bail if
it is shown that: (1) the detainee will not be a flight
risk or a danger to the community; and (2) there exist
special, humanitarian, and compelling circumstances.
The SC further explained that bail for the provisional
liberty of the accused, regardless of the crime charged
should be allowed independently of the merits
charged, provided his continued incarceration is
injurious to his health and endanger his life.
4. Hearing of Application for
Bail in Capital Offenses
In general
At the hearing of an application for bail filed by a
person in custody for the commission of an offense
punishable by reclusion perpetua or life imprisonment,
the prosecution has the burden of showing that
evidence of guilt is strong [Sec. 8, Rule 114]
Evidence of guilt in the Constitution and the Rules
refers to a finding of innocence or culpability,
regardless of the modifying circumstances [Bravo v.
De Borja, G.R. No. L-65228 (1985)]
Gacal v. Judge Infante [A.M. No. RTJ-04-1845 (2011)]
involved an Information that charged the accused of
murder but the public prosecutor recommended bail
in the amount of P400,000. For this reason, the SC
held, “The offense of murder is punishable by reclusion
temporal in its maximum period to death (Art. 248,
RPC). By reason of the penalty prescribed by law,
murder is considered a capital offense and, grant of
bail is a matter of discretion which can be exercised
only by respondent judge after the evidence is
submitted in a hearing. Hearing of the application for
bail is absolutely indispensable before a judge can
properly determine whether the prosecution’s
evidence is weak or strong.” The SC later stated, “The
fact that the public prosecutor recommended bail for
Ancheta did not warrant dispensing with the hearing.
The public prosecutor’s recommendation of bail was
not material in deciding whether to conduct the
mandatory hearing or not.”
Page 339 of 481
REMEDIAL LAW
Duties of judge hearing the petition for bail when
capital offenses are involved
a. In all cases whether bail is a matter of right or
discretion, notify the prosecutor of the hearing of
the application for bail or require him to submit
his recommendation [Sec. 18, Rule 114]
b. Where bail is a matter of discretion, conduct a
hearing of the application for bail regardless or
whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to
exercise its sound discretion [Sec. 7-8, Rule 114]
c. Decide whether the guilt of the accused is strong
based on the summary of evidence of the
prosecution
d. If the guilt of the accused is not strong, discharge
the accused upon the approval of the bail bond
[Sec. 19, Rule 114]. Otherwise, the petition
should be denied.
[Gacal v. Infante, A.M. No. RTJ- 04-1845 (2011)]
Note: Evidence presented during the bail hearing are
automatically reproduced at the trial, but upon
motion of either party, the court may recall any
witness for additional examination unless the latter is
dead, outside the Philippines, or otherwise unable to
testify [Sec. 8, Rule 114]
A.M. No. 12-11-2-SC (Guidelines for
Decongesting Holding Jails by Enforcing the
Rights of Accused Persons to Bail and to Speedy
Trial)
a. The hearing of the accused's motion for bail in
offenses punishable by death, reclusion perpetua or
life imprisonment shall be summary, with the
prosecution bearing the burden of showing that
the evidence of guilt is strong. The accused may
at his option, if he wants the court to consider his
evidence as well, submit in support of his motion
the affidavits of his witnesses attesting to his
innocence.
b. At the hearing of the accused's motion for bail,
the prosecution shall present its witnesses with
the option of examining them on direct or
adopting the affidavits they executed during the
preliminary investigation as their direct
testimonies.
c. The court shall examine the witnesses on their
direct testimonies or affidavits to ascertain if the
evidence of guilt of the accused is strong. The
court's questions need not follow any particular
order and may shift from one witness to another.
The court shall then allow counsels from both
U.P. LAW BOC CRIMINAL PROCEDURE
sides to examine the witnesses as well. The court
shall afterwards hear the oral arguments of the
parties on whether or not the evidence of guilt is
strong.
d. Within 48 hours after hearing, the court shall
issue an order containing a brief summary of the
evidence adduced before it, followed by its
conclusion of whether or not the evidence of
guilt is strong. Such conclusion shall not be
regarded as a pre-judgment on the merits of the
case that is to be determined only after a full-
blown trial.
[Sec. 6]
Where application for bail is filed
General rule: The application may be filed with the
court where the case is pending.
Exceptions:
a. If the judge of the court where the case is pending
is absent or unavailable, the application may be
filed with any RTC/MTC/MeTC/MCTC judge
in the province, city or municipality;
b. Where the accused is arrested in a province,
city/municipality other than where the case is
pending, the application may be filed with any
RTC of the said place, or, if no judge is available,
then with any MeTC/MTC/MCTC judge in the
said place.
c. When a person is in custody but not yet charged,
he may apply with any court in the province or
city/municipality where he is held
[Sec. 17, Rule 114, as amended by A.M. No. 05-8-26-
SC]
Note: Where the grant of bail is a matter of discretion,
or the accused seeks to be released on recognizance,
the application may only be filed in the court where
the case is pending, on trial, or appeal [Sec. 17, Rule
114, as amended by A.M. No. 05-8-26-SC]
When bail is filed with a court other than where the
case is pending, the judge who accepted the bail shall
forward it, together with the order of release and
other supporting papers, to the court where the case
is pending, which may, for good reason, require a
different one to be filed [Sec. 19 Rule 114]
5. Guidelines in Fixing
Amount of Bail
The considerations are primarily, but not limited, to
the following factors
Page 340 of 481
REMEDIAL LAW
a. Financial ability of the accused
b. Nature and circumstances of the offense
c. Penalty for the offense charged
d. Character and reputation of the accused
e. Age and health of the accused
f. Weight of the evidence against the accused
g. Probability of the accused appearing at the trial
h. Forfeiture of other bail
i. Fact that accused was a fugitive from justice
when arrested
j. Pendency of other cases where the accused is on
bail
[Sec. 9, Rule 114]
The amount should be high enough to assure the
presence of the accused when required but no higher
than is reasonably calculated to fulfill this purpose. To
fix bail at an amount equivalent to the civil liability of
which petitioner is charged is to permit the
impression that the amount paid as bail is an exaction
of the civil liability that accused is charged of; this we
cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability
which should necessarily await the judgment of the
appellate court [Yap Jr. v. CA G.R. No. 141529 (2001)]
6. When Bail Not Required
When bail is not required
a. When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment of the offense charged
b. If the maximum penalty is destierro, he shall be
released after 30 days of preventive
imprisonment
[Sec. 16, Rule 114]
c. In cases where a person is charged with violation
of a municipal/city ordinance, a light felony
and/or criminal offense, the penalty of which is
not higher than 6 months imprisonment and/or
a fine of P2,000, or both, where it is established
that he is unable to post the required cash or bail
bond [Sec. 1, R.A. 6036]. NOTE: The title of
R.A. 6036 reads “arresto mayor” instead of “6
months”.
When bail is nonetheless required
a. When accused was caught committing the
offense in flagrante;
b. When accused confesses to the commission of
the offense unless he later repudiates the same in
a sworn statement or in open court as having
been extracted through force or intimidation;
U.P. LAW BOC CRIMINAL PROCEDURE
c. When accused is found to have previously
escaped legal confinement, evaded sentence, or
jumped bail;
d. When accused is found to have violated Section 2,
R.A. 6036, which provides that the violation of
the accused of the sworn statement (required
instead of bail) binding himself, pending final
decision of his case, to report to the Clerk of the
Court hearing his case periodically every two
weeks shall justify the court to order his
immediate arrest, if the failure of the accused to
report is not justified;
e. Accused is a recidivist or habitual delinquent or
has been previously convicted for an offense to
which the law/ordinance attaches an
equal/greater penalty or for two/more offenses
to which it attaches a lighter penalty
f. Accused committed the offense while on parole
or under conditional pardon;
g. Accused has previously been pardoned for
violation of municipal/city ordinance for at least
two times
[Sec. 1, R.A. 6036]
7. Increase or Reduction of
Bail
After the accused is admitted to bail, the court may,
upon good cause, increase or decrease the amount
[Sec. 20, Rule 114]
Increased bail
The accused may be committed to custody if he does
not give bail in the increased amount within a
reasonable period [Sec. 20, Rule 114]
Reduced bail
A 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 [Sec. 16, Rule 114]
8. Forfeiture and Cancellation
of Bail
Forfeiture of bail
When the presence of the accused out on bail is
required by court or Rules of Court and he failed to
appear, his bail shall be declared forfeited and the
bondsmen are given 30 days within which to:
a. Produce their principal
Page 341 of 481
REMEDIAL LAW
b. Show cause why no judgment should be rendered
against them for the amount of their bail
c. Produce the body of their principal or give the
reason for his non-production; and
d. Explain why the accused did not appear before
the court when first required to do so
[Sec. 21, Rule 114]
Failing in items (3) and (4) above, a judgment shall be
rendered against the bondsmen, jointly and severally,
for the amount of the bail. The court shall not reduce
or otherwise mitigate the liability of the bondsmen,
unless the accused has been surrendered or is
acquitted [Sec. 21, Rule 114]
For the purpose of surrendering the accused, the
bondsmen may arrest him or, upon written authority
endorsed on a certified copy of the undertaking, cause
him to be arrested by a police officer or any other
person of suitable age and discretion [Sec. 23, Rule
114]
Judgment against the bondsmen cannot be entered
unless such judgment is preceded by an order of
forfeiture and an opportunity given to the bondsmen
to produce the accused or to adduce satisfactory
reason for their inability to do so. An order of
forfeiture is interlocutory and is different form the
judgment on the bond which is issued if the accused
was not produced within the 30-day period [Mendoza
v. Alarma, G.R. No. 151970 (2008)]
CANCELLATION OF BAIL
Application by bondsmen
Upon application of the bondsmen with due notice to
the prosecutor, bail may be cancelled upon:
a. Surrender of the accused; or
b. Proof of his death
[Sec. 22(1), Rule 114]
In order to cancel a bail on the ground of surrender,
the surrender must be voluntary. In this case, the
accused was not surrendered, he was charged and
arrested for another crime [Esteban v. Alhambra, G.R.
No. 135012 (2004)]
Automatic cancellation
a. Upon acquittal of the accused
b. Upon dismissal of the case, or
c. Upon execution of judgment of conviction
[Sec. 22, Rule 114]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

9. Application not a Bar to issuance of HDOs shall pertain only to criminal cases
within the exclusive jurisdiction of the RTC, to the
Objections on Illegal Arrest, exclusion of criminal cases falling within the
jurisdiction of the MTC and all other cases. The
Lack of or Irregular reason lies in seeking the balance between the state's
Preliminary Investigation interest over the prosecution of the case considering
the gravity of the offense involved and the individual's
Bail is no longer a waiver of these objections [Leviste exercise of his right to travel [Genuino v. De Lima, G.R.
v. Alameda, G.R. No. 182677 (2011)] No. 197930 (2018)]

Thus, provided that the accused raises them before

entering his plea, an application or an admission to
bail shall not bar the accused from challenging or
questioning the:
a. Validity of his arrest
b. Legality of the arrest warrant
c. Regularity of PI, or
d. Absence of PI
The court shall resolve the objections as early as
practicable but not later than the start of the trial of
the case.
[Sec. 26, Rule 114]

10. Hold/Allow Departure

Order and Bureau of
Immigration Watchlist
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of the
court where the case is pending [Sec. 23, Rule 114]

The accused may be prohibited from leaving the

country during the pendency of his case [People v. Uy
Tuising, G.R. No. 42118-20 (1935); Manotoc v. CA,
G.R. No. L-62100 (1986)]

A hold-departure order may be issued only in

criminal cases within the exclusive jurisdiction of the
RTCs. The judgment of acquittal or dismissal of the
case shall include the cancellation of the HDO [SC
Circ. No. 39-97]

SC Circular 39-97 deals only with criminal cases

pending in the RTC. As to those cases pending in the
MTC as well as those under PI, the DOJ promulgated
DOJ Circular No. 41 governing the issuance of HDO,
Watchlist Orders, and Allow Departure Orders.

HOWEVER, the SC has declared DOJ Circular

No. 41 as unconstitutional. The Secretary of Justice
has no power to issue HDOs and WLOs. The

Page 342 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
G. Arraignment and Plea
1. Arraignment and Plea; How
Made
Arraignment
It is the stage where the issues are joined and without
which the proceedings cannot advance further or, if
held, will otherwise be void [People v. Albert, G.R. No.
114001 (1995)]
The accused must be arraigned before the court
where the complaint or information was filed or
assigned for trial. The arraignment shall be made in
open court by the judge or clerk by furnishing the
accused with a copy of the complaint or information,
reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses
other than those named in the complaint or
information [Sec. 1(a), Rule 116]
Rationale
The importance of arraignment is based on the
constitutional right of the accused to be informed. It
is at this stage that the accused, for the first time, is
given the opportunity to know the precise charge that
confronts him [Kummer v. People, G.R. No. 174461
(2013)]
Plea
Pertains to the matter which the accused, on his
arraignment, alleges in answer to the charge against
him
Duty of the court before arraignment
The court shall
a. Inform the accused of his right to counsel;
b. Ask him if he desires to have one; and
c. Must assign a counsel de oficio to defend him,
unless the accused:
1. Is allowed to defend himself in person; or
2. Has employed a counsel of his choice
[Sec. 6, Rule 116]
Before arraignment and plea, the accused may avail
of any of the following
a. Motion for bill of particulars: to enable him to
properly plead and prepare for trial [Sec. 9, Rule
116]
Page 343 of 481
REMEDIAL LAW
b. Motion to suspend arraignment: upon motion
by the proper party, the arraignment shall be
suspended
1. Accused appears to be suffering from
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently.
In such case, the court shall order his mental
examination and, if necessary, his
confinement for such purpose.
2. Existence of a prejudicial question;
3. A petition for review of the resolution of
the prosecutor is pending at either the DOJ
Secretary or the Office of the President for a
period of suspension not exceeding 60 days
from filing of petition with the reviewing
office
[Sec. 11, Rule 116]
c. Motion to quash the complaint or
information: on any of the grounds under Sec.
3, Rule 117 in relation to Sec. 1, Rule 117
d. Challenge the validity of the arrest or legality of
the warrant or assail the regularity or question the
absence of PI of the charge [Sec. 26, Rule 114]
If the accused does not question the legality of the
arrest or search, this objection is deemed waived
[People v. Racho y Raquero, G.R. No. 186529 (2010)]
Procedure of Arraignment
The court shall issue an order directing the public
prosecutor to submit the record of the PI to the
branch COC for the latter to attach the same to the
record of the case.

The court shall inform the accused of his right to
counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him
[Sec. 6, Rule 114]

a. If the accused pleads not guilty, either:
1. The accused admits the act or omission
charged in the complaint or information
but interposes a lawful defense, the order
of trial may be modified [Sec. 11(e), Rule
119]
2. He raises a negative defense, that is, he
denies the charge, in which case regular
trial proceeds
b. If the accused pleads guilty:
U.P. LAW BOC CRIMINAL PROCEDURE
1. For a non-capital offense, the court may
receive evidence to determine the penalty
to be imposed [Sec. 4, Rule 116]
2. For a capital offense, the court shall
conduct a searching inquiry into the
voluntariness and full comprehension of
the consequences of his plea and shall
require the prosecution to prove his guilt
and the precise degree of culpability [Sec.
3, Rule 116]
If the accused does not enter any plea or makes a
conditional plea, a plea of not guilty is entered by
the court [Sec. 1(c), Rule 116]
How made
a. Before the court where the complaint or
information has been filed or assigned for trial;
b. In open court
c. by the judge or clerk of court;
d. by furnishing the accused with a copy of the
complaint or information;
e. Reading it in a language or dialect known to the
accused;
f. Asking the accused whether he pleads guilty or
not guilty.
g. The accused must be present and must personally
enter his plea.
h. Both arraignment and plea shall be made on
record but failure to enter of record shall not
affect the validity of the proceedings
[Sec. 1(a) and (b), Rule 116]
There can be no arraignment or plea in absentia.
Under both the 1964 and 1985 Rules, a defendant
must be present at the arraignment and must
personally enter his plea [Nolasco v. Enrile, G.R. No. L-
68347 (1985)] The 2000 Rules contains the same
requirement (See Part (7) of the enumeration above).
When held
General rule: The accused should be arraigned within
30 days from the date the court acquires jurisdiction
over his person [Sec. 1(g), Rule 116]
Exceptions: Unless a shorter period is provided by
special law or Supreme Court circular [Sec. 1(g), Rule
116]
a. When an accused is under preventive detention,
his case should be raffled within 3 days from
filing and accused shall be arraigned within 10
days from receipt by the judge of the records of
the case [RA 8493 (Speedy Trial Act)];
Page 344 of 481
REMEDIAL LAW
b. Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without delay
[R.A. 4908]
Presence of the offended party
The private offended party shall be required to appear
in the arraignment for the purpose of
a. Plea bargaining
b. Determination of civil liability, and
c. Other matters requiring his presence
In case of failure of the offended party to appear despite
due notice, the court may allow the accused to enter a
plea of guilty to a lesser offense which is necessarily
included in the offense charged with the conformity
of the trial prosecutor alone [Sec. 1(f), Rule 116; Part
B(2), A.M. No. 03-1-09-SC]
The 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.
There can be no trial in absentia without first
arraigning the accused; otherwise, the judgment is null
and void [Riano 394, 2016 Ed., citing Taglay v. Daray,
G.R. No. 164258 (2012)]
Specific rules
a. Trial in absentia may be conducted only after valid
arraignment [Sec. 14(2), Art. III, Constitution]
b. Accused must personally appear during
arraignment and enter his plea; counsel cannot
enter plea for the accused [Sec. 1[b], Rule 116]
c. Accused is presumed to have been validly
arraigned in the absence of proof to the contrary
[see Sec. 3(m), Rule 131]
d. Generally, judgment is void if accused has not
been validly arraigned [Riano 394, 2016 Ed., citing
Taglay v. Daray, G.R. No. 164258, (2012)]
e. If accused went into trial without being arraigned,
subsequent arraignment will cure the error
provided that the accused was able to present
evidence and cross examine the witnesses of the
prosecution during trial
If an information is amended in substance which
changes the nature of the offense (not merely as to
form), arraignment on the amended information is
mandatory [Teehankee v. Madayag, G.R. No. 103102
(1992)]
The need for arraignment is imperative in an amended
information or complaint. This, however, pertains
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

only to substantial and not to formal amendments

[Kummer v. People, G.R. No. 174461 (2013)] 3. When Accused May Enter a
Whatever procedural infirmity in the arraignment of Plea of Guilty to a Lesser
the accused was rectified when he was re-arraigned
and entered a new plea. Accused did not question the
Offense
procedural errors in the first arraignment and having
failed to do so, he is deemed to have abandoned his DURING ARRAIGNMENT
right to question the same and waived the errors in
procedure [People v. Magat, G.R. No. 130026 (2000)] Requisites
a. The lesser offense is necessarily included in the
offense charged
2. When a Plea of Not Guilty b. The plea must be with the consent of both the
Should Be Entered offended party and the prosecutor
[Sec. 2, Rule 116]
a. When the accused so pleaded
In case of failure of the offended party to appear
b. When he refuses to plead or makes a conditional
despite due notice, the court may allow the accused to
plea [Sec. 1(c), Rule 116]
enter a plea of guilty to a lesser offense which is
c. When he pleads guilty but presents exculpatory
necessarily included in the offense charged with the
evidence [Sec. 1(d), Rule 116]
conformity of the trial prosecutor alone {Sec. 1(f),
d. Where the plea of guilty was compelled by
Rule 116]
violence or intimidation [Riano 402, 2016 Ed.,
citing People v. Baetiong, 2 Phil. 126]
AFTER ARRAIGNMENT BUT BEFORE
e. When the plea is indefinite or ambiguous [Riano
TRIAL
403, 2016 Ed., citing People v. Strong, G.R. No. L-
38626 (1975)]
After arraignment but before trial, the accused may
still be allowed to plead guilty to said lesser offense
Plea of guilty is mitigating if it is made before
after withdrawing his plea of not guilty. No
prosecution starts to present evidence [Art. 13(7),
amendment of the complaint or information is
RPC]
necessary [Sec. 2, Rule 116]
Retaking of plea
AFTER TRIAL HAS BEGUN
Accused did not fully comprehend the
consequences of a plea of guilty, or even what crimes
After the prosecution has rested its case, a change of
he was pleading guilty to. Hence, the necessity of a re-
plea to a lesser offense may be granted by the judge,
arraignment and retaking of his plea [People v. Nuelan,
with the approval of the prosecutor and the offended
G.R. No. 123075 (2001)]
party if the prosecution does not have sufficient
evidence to establish the guilt of the accused for the
Plea of not guilty should be entered
crime charged. The judge cannot on its own grant the
a. When the accused did not fully understand the
change of plea [People v. Villarama,G.R. No. 99287
meaning and consequences of his plea
(1992)]
b. Where the information is insufficient to sustain
conviction of the offense charged
c. Where the information does not charge an 4. Accused Pleads Guilty to
offense, any conviction thereunder being void
d. Where the court has no jurisdiction
Capital Offense; What the
Court Should Do
Conditions that the trial court must observe to
obviate an improvident plea of guilty by the accused
a. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the pleas; and

Page 345 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

b. Require prosecution to present evidence to prove b. Ask the defense counsel a series of questions as
the guilt and precise degree of culpability of the to whether he had conferred with, and
accused; completely explained to, the accused the meaning
c. Accused may present evidence in his behalf and consequences of a plea of guilty.
[Sec. 3, Rule 116] c. Elicit information about the personality profile of
the accused, such as his age, socio-economic
Note: A plea of guilty to a capital offense does not status, and educational background, which may
result to an immediate rendering of judgment [Riano, serve as a trustworthy index of his capacity to
407, 2016 Ed.] give a free and informed plea of guilty.
d. Inform the accused the exact length of
5. Searching Inquiry imprisonment or nature of the penalty under the
law and the certainty that he will serve such
sentence. For not infrequently, an accused pleads
The procedure in Sec. 3, Rule 116, when the accused
guilty in the hope of a lenient treatment or upon
pleads guilty to a capital offense, is mandatory. [Riano
bad advice or because of promises of the
407, 2016 Ed., citing People v. Oden, G.R. No. 155511-
authorities or parties of a lighter penalty should
22 (2004)]
he admit guilt or express remorse. It is the duty
of the judge to ensure that the accused does not
The plea must be clear, definite and unconditional. It
labor under these mistaken impressions because
must be based on a free and informed judgment.
a plea of guilty carries with it not only the
admission of authorship of the crime proper but
The judge must ask whether the accused was assisted
also of the aggravating circumstances attending it,
by counsel during custodial investigation and PI; ask
that increase punishment.
questions on age, educational attainment and socio-
e. Inquire if the accused knows the crime with
economic status; and ask the defense counsel whether
which he is charged and fully explain to him the
or not he conferred with the accused [People v. Nadera,
elements of the crime which is the basis of his
G.R. Nos. 181384-87 (2000)]
indictment. Failure of the court to do so would
constitute a violation of his fundamental right to
A plea of guilt to a capital offense can be held null and
be informed of the precise nature of the
void where the trial court has inadequately discharged
accusation against him and a denial of his right to
the duty of conducting the prescribed "searching
due process.
inquiry” [People v. Durango, G.R. Nos. 135438-39
f. All questions posed to the accused should be in a
(2000)]
language known and understood by the latter.
Rationale
g. The trial judge must satisfy himself that the
This is to enjoin courts to proceed with more care
accused, in pleading guilty, is truly guilty. The
where the possible punishment is in its severest form
accused must be required to narrate the tragedy
and to avoid improvident pleas of guilt [People v.
or reenact the crime or furnish its missing details
Samontanez, G.R. No. 134530 (2000)]
[People v. Pastor, G.R. No. 140208 (2002)]
Guidelines for conducting a search inquiry
a. Ascertain from the accused himself 6. Improvident Plea of Guilty
1. How he was brought into the custody of the
law
to a Capital Offense
2. Whether he had the assistance of a
An improvident plea is one without proper
competent counsel during the custodial and
information as to all the circumstances affecting it;
preliminary investigations, and
based upon a mistaken assumption or misleading
3. Under what conditions he was detained and
information/advice [Black’s Law Dictionary]
interrogated during the investigations. This
is intended to rule out the possibility that the
General rule: If the accused does not clearly and fully
accused has been coerced or placed under a
understand the nature of the offense charged, if he is
state of duress either by actual threats of
not advised as to the meaning and effect of the
physical harm coming from malevolent
technical language so often used in formal complaints
quarters or simply because of the judge’s
and information in qualifying the acts constituting the
intimidating robes.
offense, or if he does not clearly understand the

Page 346 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
consequences by way of a heavy and even a capital
penalty flowing from his admission of his guilt of the
crime in the precise technical manner and form in
which it is charged, his plea of guilty should not be
accepted and if accepted it should not be held to be
sufficient to sustain a conviction [People v. De Ocampo
Gonzaga, G.R. No. L-48373 (1984)]
Exception: If the accused appears guilty beyond
reasonable doubt from the evidence adduced by the
prosecution and defense
When improvident plea may be withdrawn
At any time before judgment of conviction becomes
final, the court may permit an improvident plea of
guilty to be withdrawn and be substituted by a plea of
not guilty [Sec. 5, Rule 116]
The withdrawal of a plea of guilty is not a matter of
right of the accused but of sound discretion of the
trial court [People v. Lambino, G.R. No. L-10875 (1958)]
The reason for this is that trial has already begun and
the withdrawal of the plea will change the theory of
the case and put all past proceedings to waste.
Moreover, at this point, there is a presumption that
the plea was made voluntarily.
7. Grounds for Suspension of
Arraignment
a. Unsound mental condition of
the accused at the time of the
arraignment
When 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 [People v. Estrada [G.R.
No. 130487 (2000)]
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 and defense counsel had called
attention to [People v. Alcalde, G.R. Nos. 139225-28
(2002)]
In People v. Dungo [G.R. No. 89420 (1991)], there are
three major criteria to determine insanity
Page 347 of 481
REMEDIAL LAW
1. Delusion test, where insanity is manifested by a
false belief for which there is no reasonable basis
and which would be incredible under the given
circumstances;
2. Irresistible impulse test, where 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.
3. Right and wrong test, where a perverted
condition of mental and mortal faculties afflicts
the accused as to render him incapable of
distinguishing between right and wrong.
In People v. Pascual [G.R. No. 95029 (1993)], there are
two tests to determine insanity
1. Test of cognition, which requires complete
deprivation of intelligence in committing the
criminal act. It is the test adopted in this
jurisdiction.
2. Test of volition, which requires a total
deprivation of free will.
b. Existence of prejudicial question
Rationale
A prejudicial question would be determinative of guilt
or innocence. [Ty-de Zuzuarregui v. Villarosa, G.R. No.
183788 (2010)]
It may be raised during PI. If the information is filed
in court, it may be raised as ground to suspend the
arraignment [Sec. 6, Rule 111]
c. Pendency of petition for review
Upon motion by the proper party, the arraignment
shall be suspended in case a petition for review of the
resolution of the prosecutor is pending at either the
DOJ, or the OP; provided, that the period of
suspension shall not exceed 60 days counted from the
filing of the petition with the reviewing office [Sec. 11,
Rule 116]
Rationale
This is to observe judicial courtesy and 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.
If petition for review is not resolved within 60 days,
court may insist on the arraignment.
U.P. LAW BOC
With the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or
petition for review because petitioner had already
waived or abandoned the same [Gandarosa v. Flores,
G.R. No. 167910 (2007)]
d. Other pending incidents
Such as
1. Motion to quash
2. Motion for inhibition, and
3. Motion for bill of particulars
CRIMINAL PROCEDURE REMEDIAL LAW
H. Motion to Quash
Nature of motion to quash (MTQ)
1. Mode by which an accused assails the validity of
a criminal complaint or information filed against
him for insufficiency on its face in point of law
or defects which are apparent in the face of the
information [Riano 328, 2011 Ed.]
2. Hypothetical admission of the facts alleged in the
information
Note: Fundamental test in determining sufficiency
of the material averments in an information:
WON the facts alleged which are hypothetically
admitted would establish the essential elements
of the crime defined by law.
3. Evidence aliunde or matters extrinsic of the
information are not to be considered. EXCEPT
when admissions made by the prosecution [People
v. Dela Rosa, G.R. No. L-34112 (1980)],
Note: A motion to quash based on double jeopardy or
extinction of the criminal action or liability, may, by
their nature, be based on matters outside of the
allegations of the information or complaint [Riano]
Form and contents
1. In writing
2. Signed by the accused or his counsel, and
3. Distinctly specify the factual and legal grounds
[Sec. 2, Rule 117]
When filed
General rule: At any time before entering his plea, the
accused may move to quash the complaint or
information [Sec. 1, Rule 117]
Exception: When the grounds relied upon the motion
are:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or penalty
4. Accused has been previously convicted, or in
jeopardy of being convicted, or acquitted of the
offense charged
They shall not be deemed waived if the accused failed
to file MTQ or to allege them in the motion.
[Sec. 9, Rule 117]
Page 348 of 481
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Need not be resolved before issuing warrant of Note: In cases covered by the Rules on Summary
arrest Procedure, MTQ is allowed only if made on the
The judge had no positive duty to first resolve the grounds of lack of jurisdiction over the subject matter
MTQ before issuing a warrant of arrest. Sec. 5(a), Rule or failure to comply with barangay conciliation
112 required the judge to evaluate the prosecutor's proceedings [Sec. 19, Rules on Summary Procedure]
resolution and its supporting evidence within a
limited period of only 10 days [De Lima v. Guerrero, Facts charged do not constitute an offense
G.R. No. 229781 (2017)] Where it is clear that the information does not really
charge an offense, the case against the accused must
1. Grounds be dropped immediately [Dela Chica v. Sandiganbayan,
G.R. No. 144823 (2003)]
In general
The test is whether the facts alleged, if hypothetically
a. Facts charged do not constitute an offense;
admitted, would establish the essential elements of the
b. Court trying the case has no jurisdiction over the
offense, as defined by law without considering
offense charged;
matters aliunde [People v. Romualdez, G.R. No. 166510
c. Court trying the case has no jurisdiction over the
(2008)]
person of the accused;
d. officer who filed the information had no
That the missing element may be proved during the
authority to do so;
trial or that the prosecution has presented evidence to
e. The information does not conform substantially
establish the same cannot have the effect of validating
to the prescribed form;
the void information or of proving an offense which
f. More than one offense is charged, except when a
does not exist [People v. Asuncion, G.R. No. 80066
single punishment for various offenses is
(1988)]
prescribed by law;
g. Criminal action or liability has been extinguished;
The defect is not cured by a failure to move to quash
h. Averments which, if true, would constitute a legal
or by a plea of guilty [Suy Sui v. People, G.R. No. L-
excuse or justification;
5278 (1953)]
i. Accused has been previously convicted or
acquitted of the offense charged, or the case
If a MTQ is based on the ground that the facts
against him was dismissed or otherwise
charged do not constitute an offense, the prosecution
terminated without his express consent
shall be given by the court an opportunity to correct
[Sec. 3, Rule 117]
the defect by amendment. The motion shall be
granted if the prosecution fails to make the
The following grounds are exclusive. [Galzote v.
amendment, or the complaint or information still
People, G.R. No. 164682 (2011)]
suffers from the same defect despite the amendment
[Sec. 4, Rule 117]
General rule: Failure of the accused to assert any
ground on a MTQ before he pleads, either because he
Court has no jurisdiction over the offense
did not file MTQ or failed to allege said ground in the
charged
MTQ shall be deemed a waiver of any objections
In a criminal prosecution, the place where the offense
was committed not only determines venue, but is an
Exceptions:
essential element of jurisdiction [Sec. 15, Rule 110;
a. Facts charged do not constitute an offense
Lopez v. City Judge, G.R. No. L-25795 (1966)]
b. Court trying the case has no jurisdiction over the
offense charged
In private crimes, the complaint of the offended party
c. Criminal action or liability has been extinguished
is necessary to confer authority to the court [Donio-
d. Accused has been previously convicted, or in
Teves v. Vamenta Jr., G.R. No. L-38308 (1984)]
jeopardy of being convicted, or acquitted of the
offense charged
Court has no jurisdiction over the person of the
[Sec. 9, Rule 117]
accused
e. Officer who filed information had no authority
When the accused files a MTQ based on this ground,
to do so [Quisay v. People, G.R. No. 216920 (2016)]
he must do so only on this ground. If he raises other
grounds, he is deemed to have submitted his person

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U.P. LAW BOC CRIMINAL PROCEDURE
to the jurisdiction of the court [Sanchez v. Demetriou,
G.R. No. L-11171-77 (1993)]
When the objection is raised, the court should resolve
it before conducting trial to avoid unnecessary
expenditure of time and money [Mead v. Argel, G.R.
No. L-41958 (1982)]
Officer who filed the information had no
authority to do so
Authority to file and prosecute criminal cases is vested
in:
1. Prosecutor
2. Any peace officer, or public officer charged with
the enforcement of the law, in Municipal Trial
Courts or Municipal Circuit Trial Courts when
the prosecutor assigned thereto or to the case is
not available
[Sec. 5, Rule 110]
3. Commission on Elections regarding violations of
election laws [Sec. 2(6), Art. IX-C, Constitution]
The prosecutor who signed the information must
have territorial jurisdiction to conduct PI of the
offense [Cudia v. CA, G.R. No. 110315 (1998)]
Note: The following may conduct preliminary
investigations
1. Provincial or City Prosecutors and their
assistants;
2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by A.M. No. 05-8-26-
SC]
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 or the
Ombudsman or his deputy [Sec. 4, Rule 112]
An information filed in the Sandiganbayan must be
signed by a graft investigating officer with prior
approval of the Ombudsman.
For election offenses, it must be signed by the duly
deputized prosecutors and legal officers of the
COMELEC [Sec. 265, Art. XXII, Omnibus Election
Code]
Lack of authority of the officer is not cured by silence,
acquiescence, express consent or even by
amendment. [Cudia v. CA, G.R. No. 110315 (1998)]
Page 350 of 481
REMEDIAL LAW
Complaint or information does not conform
substantially to the prescribed form
The formal and substantial requirements are provided
for in Secs. 6-12, Rule 110.
General rule: Lack of substantial compliance renders
the accusatory pleading nugatory.
Exception: Mere defects in matter of form may be
cured by amendment [Sec. 4, Rule 117]
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,
G.R. No. 120093 (1997)]
Vague or broad allegations are generally not grounds
for a MTQ. The correct remedy is to file for a bill of
particulars [Sec. 9, Rule 116; Enrile v. People, G.R. No.
213455 (2015)]
The accused may, before arraignment, move for a bill
of particulars to enable him properly to plead and
prepare for trial. The motion shall specify the alleged
defects of the complaint or information and the
details desired [Sec. 9, Rule 116]
More than one offense is charged
General rule: A complaint or information must charge
only one offense [Sec. 13, Rule 110]
Exceptions:
1. When the law prescribes a single punishment for
various offenses [Sec. 13, Rule 110]
2. Complex and compound crimes, except where
one offense was committed to conceal another
3. An offense incidental to the gravamen of the
offense charged
4. A specific crime set forth in various counts, each
of which may constitute a distinct offense
However, this ground is waivable. The accused may
be convicted of all the offenses alleged and proved if
he goes to trial without objecting to the inclusion of
two or more separate offenses in the same
information [People v. Villamor, G.R. No. 124441
(1998)]
Criminal action or liability has been extinguished
When criminal liability is extinguished:
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

1. Death of the accused, but liability for pecuniary the accused in double jeopardy, except in the
penalties is extinguished only if death occurs following cases:
before final judgment; i. Insufficiency of the prosecution’s evidence
2. Service of sentence, which must be by virtue of a ii. Denial of the right to a speedy trial
final judgment and in the form prescribed by law; [Almario v. CA, G.R. No. 127772 (2001)]
3. Amnesty;
4. Absolute pardon; When dismissal constitutes acquittal
5. Prescription of the crime; Dismissal constitutes acquittal when it is granted:
6. Prescription of the penalty; 1. Upon demurrer to evidence; [Riano 439, 2016
7. Pardon in private offenses Ed., citing People v.Tan, G.R. No. 167526 (2010)]
[Art. 89, Revised Penal Code] 2. Due to violation of right to speedy trial (even if
dismissal was upon motion of the accused or with
Protection from prosecution under a statute of his express consent) [Riano 439-440, 2016 Ed.,
limitation is a substantive right. Where the statute citing Andres v. Cacdac, G.R. No. L-45650 (1982)]
fixes a period of limitation as to a prosecution for a
particular offense, the limitation so fixed is Dismissal Acquittal
jurisdictional, and the time within which the offense Always based on the
is committed is a jurisdictional fact, it being necessary Does not decide the
merits. Defendant’s
that the indictment or information be actually filed case on the merits.
guilt was not proven
within the time prescribed [People v. Sandiganbayan, Does not determine
beyond reasonable
G.R. No. 101724 (1992)] innocence or guilt
doubt
Double jeopardy will Double jeopardy
Contains averments that if true would constitute not always attach always attaches
a legal excuse or justification
See Provisional Dismissal below.
Examples:
1. Justifying circumstances [Art. 11, RPC]
2. Exempting circumstances [Art. 12, RPC]
3. Absolutory causes 2. Distinguish Motion to
Quash from Demurrer to
Accused has been previously convicted or
acquitted of the offense charged, or the case Evidence
against him was dismissed or otherwise
terminated without his consent Motion to Demurrer to
quash evidence
1. Double jeopardy Filed after the
Filed before
prosecution has
When entering plea
See Double Jeopardy below. rested its case
filed [Sec. 1, Rule
[Sec. 23, Rule
117]
2. Dismissal without express consent 119]
Based upon the
This refers only to dismissal or termination of insufficiency of
Basis for Does not go into
the case. It does not Refer to Part the conviction the evidence
grant or the merits of the
or acquittal [People v. Labatete, G.R. No. L-12917 adduced by the
denial case
(1960)] prosecution [Sec.
23, Rule 119]
If consent is not express, dismissal will be Ground is
regarded as final (i.e., with prejudice to refilling) Grounds are “insufficiency of
[Caes v. IAC, G.R. Nos. 74989-90 (1989)] Grounds stated in Sec. 3 , evidence” to
Rule 117 convict [Sec. 23,
The dismissal of a criminal case resulting in Rule 119]
acquittal made with the express consent of the May be filed
Leave of Does not require
accused or upon his own motion will not place either with leave
court a prior leave of
or without leave

Page 351 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

court [Sec. 1, of court [Sec. 23, 2. Double jeopardy.

Rule 117] Rule 119]
Grant does not b. Discharge of the accused
necessarily result Grant is deemed
in a dismissal an acquittal and General rule: If in custody, the accused shall not be
(Court may would preclude discharged unless admitted to bail [Sec. 5, Rule 117]
Effect of order the filing the filing of The order granting the MTQ must state either release
grant of a new another of the accused or cancellation of his bond.
complaint or information or
information) appeal by the Exception: The accused, if in custody, shall be
[Sec. 4, Rule prosecution discharged if:
117] 1. No order is made; or
The order 2. Having been made, no new information is filed
denying the within
motion for leave i. The time specified in the order; or
to file a demurrer ii. Such further time as the court may allow for
“shall not be good cause
reviewable by [Sec. 5, Rule 117]
appeal or by
certiorari before Exception to the exception: The accused shall not be
judgment” discharged if he is in custody for another charge [Sec.
If the court 5, Rule 117]
If the court, in denies the
denying the demurrer to
motion to quash evidence filed
c. Remedies of the prosecution
acts with grave with leave of
Remedy General rule: The court shall order that an amendment
abuse of court, the
be made:
discretion, then accused may
1. If the MTQ is based on an alleged defect of the
certiorari or adduce evidence
complaint or information which can be cured by
prohibition lies in his defense.
amendment
When the
2. If the MTQ is based on the ground that the facts
demurrer is filed
charged do not constitute an offense
without leave, the
[Sec. 4, Rule 117]
accused waives
the right to
Exception: Prosecution is precluded where the ground
present evidence
for quashal would bar another prosecution for the
and submits the
same offense.
case for judgment
[Sec. 23, Rule
The prosecution may appeal from the order of
119]
quashal to the appellate court.

3. Effects of Sustaining the If the information was quashed because it did not
Motion to Quash allege the elements of the offense charged, but the
facts so alleged constitute another offense under a
specific statute, the prosecution may file a complaint
a. Filing another complaint or for such specific offense where dismissal is made
information prior to arraignment and on MTQ [People v. Purisima,
G.R. No. L-42050-66 (1978)]
General rule: Court may order that another complaint
or information be filed [Sec. 5, Rule 117)

Exception: If MTQ was based on the following:

1. Criminal action or liability has been extinguished

Page 352 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

previously convicted or acquitted [Caes v. IAC, G.R.

Order denying MTQ Order granting MTQ No. 74989-90 (1989)]
Interlocutory Final Order
Not appealable absent Immediately appealable RULE OF DOUBLE JEOPARDY
a showing of GAD. If but subject to rules on
there is GAD, then file double jeopardy Conditions
petition for certiorari a. When
Does not dispose of Disposes of the case 1. an accused has been convicted or acquitted,
the case upon its merits upon its merits when or
the ground is the 2. the case against him dismissed or otherwise
extinguishment of terminated without his express consent
liability or double b. by a court of competent jurisdiction
jeopardy c. Upon a valid complaint or information or other
Proper remedy: appeal Proper remedy: appeal formal charge sufficient in form and substance to
after the trial the order sustain a conviction and
Consequence: Consequence: d. After the accused had pleaded to the charge,
Arraignment Amend information if
possible Effect
The conviction or acquittal of the accused or the
Note: The remedy for an order denying a MTQ is to dismissal of the case shall be a bar to another
go to trial, without prejudice to reiterating the special prosecution
defenses invoked in their MTQ [Serana v. a. for the offense charged, or
Sandiganbayan, G.R. No. 162059 (2008)] However, if b. for any attempt to commit the same or
the court in denying the motion to quash acts without frustration thereof, or
or in excess of jurisdiction or with grave abuse of c. for any offense which necessarily includes or is
discretion, then certiorari or prohibition lies [Lazarte necessarily included in the offense charged in the
v. Sandiganbayan, G.R. No. 180122 (2009); Javier v. former complaint or information
Sandiganbayan, G.R. Nos.. 147026-27 (2009)] [Sec. 7, Rule 117]

KINDS OF DOUBLE JEOPARDY

4. Exception to the Rule that a. No person shall be put twice in jeopardy for the
Sustaining the Motion is same offense [Sec. 21, Art. III, Constitution]
1. General rule: There is identity between the
Not a Bar to another two offenses not only when the second
Prosecution offense is exactly the same as the first, but
also when the second offense is an attempt
General rule: Grant of the MTQ will not be a bar to to or frustration of or is necessarily included
another prosecution for the same offense in the offense charged in the first
information. [Teehankee Jr. v. Madayag, G.R.
Exception: It will bar another prosecution when the 103102 (1992)]
MTQ is based on 2. Exceptions:
a. The criminal action or liability has been • The graver offense developed due to
extinguished; or supervening facts arising from the same
b. The accused has been previously convicted, or in act or omission constituting the former
jeopardy of being convicted, or acquitted of the charge;
offense charged • The facts constituting the graver charge
[Sec. 6, Rule 117] became known or were discovered only
after a plea was entered in the former
complaint or information;
5. Double Jeopardy • The plea of guilty to the lesser offense
was made without the consent of the
The right against double jeopardy prohibits the prosecutor and of the offended party
prosecution for a crime of which he has been except when offended party failed to
appear during such arraignment.

Page 353 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec 7, Rule 117] [People v. Espinosa, G.R. Nos. 153714-20 (2003)]

3. What: The offenses are penalized either by
different sections of the same law or by Requisites for first jeopardy to attach
different statutes. The essential elements of a. Valid indictment
each must be examined. b. Before a competent court;
4. Test: Whether or not evidence that proves c. Arraignment
one likewise proves the other, e.g. The mere d. A valid plea entered, and
fact that two offenses (slander by deed and e. The accused has been convicted or acquitted, or
slight physical injuries) may have taken place the case dismissed or otherwise validly
on the same occasion, or that one preceded terminated without his express consent
the other, both proceeding from the same [People v. Honrales, G.R. No. 182651 (2010)]
impulse, does not make the two a single act
or a single offense for one is certainly However, a dictated, coerced and scripted verdict of
distinguishable from the other. It is clear that acquittal is a void judgment. It neither binds nor bars
two different acts were committed one anyone [Galman v. Sandiganbayan, G.R. No. 72670
preceding the other, resulting in two (1986)]
different offenses. As jeopardy prohibits
making a person liable twice for the same act, 6. Provisional Dismissal
it is not present in the case where the
offender is being made liable for two distinct
Provisional dismissal
acts constituting two distinct offenses [People
Provisional dismissal is dismissal without prejudice to
v. Ramos, G.R. No. L-15958 (1961)]
its being refiled or revived [Los Baños v. Pedro, G.R.
b. When an act punished by a law and an ordinance,
No. 173588 (2009)]
conviction or acquittal under either shall be a bar
to another prosecution for the same act [Sec. 21,
Cases are provisionally dismissed where there has
Art. III, Constitution]
already been arraignment and the accused consented
1. The second sentence of the
to a provisional dismissal.
constitutional protection was precisely
intended to extend to situations not
A case shall not be provisionally dismissed except
covered by the first sentence. Although
with the express consent of the accused and with
the prior offense charged under an
notice to the offended party [Sec. 8, Rule 117]
ordinance be different from the offense
Grounds for provisional dismissal
charged under a national statute, the
The delimitation of the grounds available in a MTQ
constitutional protection is available
suggests that a MTQ is a class in itself, with specific
provided that both arise from the same
and closely-defined characteristics under the Rules of
act or set of acts [People v. Relova, G.R.
Court. A necessary consequence is that where the
No. L-45129 (1987)]
grounds cited are those listed under Sec. 3, Rule 117,
2. But: An offense penalized by ordinance
then the appropriate remedy is to file a motion to
is, by definition, different from an
quash, not any other remedy. Conversely, where a
offense penalized under a statute.
ground does not appear under Sec. 3, then a motion
Hence, they would never constitute
to quash is not a proper remedy. A motion for
double jeopardy [People v. Relova, G.R.
provisional dismissal may then apply if the conditions
No. L-45129 (1987)]
required by Sec. 8 obtain [Los Baños v. Pedro, G.R. No.
173588 (2007)]
Requisites to successfully invoke double
jeopardy
When dismissal becomes permanent (Time-bar
a. A first jeopardy must have attached;
rule)
b. The first jeopardy must have been validly
a. One year after issuance of the order without the
terminated; and
case having been revived for offenses punishable
c. The second jeopardy must be for the same
1. by imprisonment not exceeding 6 years, or
offense or the second offense necessarily
2. by fine of any amount, or
includes or is necessarily included in the offense
3. by both
charged in the first information, or is an attempt
to commit the same or a frustration thereof

Page 354 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

b. Two years after issuance of the order without the d. If the criminal liability is upgraded from
case having been revived for offenses punishable accessory to principal
by imprisonment of more than 6 years
[Sec. 8, Rule 117]

Exception to the periods: The State may revive beyond

the periods provided there is a justifiable necessity for
the delay.

The Court is not mandated to apply Sec. 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, and not
for the accused only [People v. Lacson, G.R. No. 149453
(2003)]

What to file?
Motion for permanent dismissal [Prof. Sanidad]

Note: A provisional dismissal is not equivalent of an

acquittal because the dismissal is with the express
consent of the accused [Saldariega v. Panganiban, G.R.
Nos. 211933 & 211690 (2015)]

The following are conditions sine qua non for the

application of the time-bar rule
a. The prosecution, with the express conformity of
the accused, or the accused moves for the
provisional (sin perjucio) dismissal of the case; or
both the prosecution and the accused move for a
provisional dismissal of the case [Sec. 8, Rule 117]
b. The offended party is notified of the motion for
the provisional dismissal of the case
c. The court issues an order granting the motion
and dismissing the case provisionally
d. The public prosecutor is served with a copy of
the order of provisional dismissal of the case
[People v. Lacson, G.R. No. 149453 (2003)]

A case may be revived by

a. Refiling of the information
b. Filing of a new information for the same offense
or one necessarily included in the original offense
charged

General rule: Upon revival of the case, there is no need

for a new PI

Exceptions:
a. If the original witnesses have recanted their
testimonials or have died
b. If the accused is charged under a new criminal
complaint for the same offense
c. If the original charge is upgraded

Page 355 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
I. Pre-Trial
Its main objective is to achieve an expeditious
resolution of the case.
Application of Judicial Affidavit Rule
a. The Judicial Affidavit Rule shall apply to all
criminal actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
3. With respect to the civil aspect of the
actions, whatever the penalties involved are.
b. The prosecution shall submit the judicial
affidavits of its witnesses not later than five days
before the pre-trial, serving copies of the same
upon the accused. The complainant or public
prosecutor shall attach to the affidavits such
documentary or object evidence as he may have,
marking them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or object
evidence shall be admitted at the trial.
c. If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit
his judicial affidavit as well as those of his
witnesses to the court within ten days from
receipt of such affidavits and serve a copy of each
on the public and private prosecutor, including
his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These
affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear
before the court to testify.
[Sec. 9, AM 12-8-8-SC]
1. Matters to Be Considered
During Pre-Trial
Coverage
In all criminal cases cognizable by the Sandiganbayan,
RTC, MeTC, MTCC, MTC and MCTC [Sec. 1, Rule
118]
Period
General rule: The court shall order a pre-trial
conference after arraignment and within 30 days from
the date the court acquires jurisdiction over the
person of the accused.
Page 356 of 481
REMEDIAL LAW
Exception: A shorter period may be provided by special
laws or SC circulars [Sec. 1, Rule 118]
Things considered
a. Plea bargaining
b. Stipulation of facts
c. Marking for identification of evidence
d. Waiver of objections to admissibility of evidence
e. Modification of the order of trial if accused
admits the charge but interposes a lawful defense
(reverse trial)
f. Other matters that will promote a fair and
expeditious trial of the civil and criminal aspects
of the case [Sec. 1, Rule 118]
Plea bargaining
Plea bargaining has been defined as "a process
whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to
court approval" [Estipona Jr. v. Lobrigo, G.R. No.
226679 (2017)]
It usually involves the defendant pleading guilty to a
lesser offense or to one or some of the counts of a
multi-count indictment in return for a lighter sentence
than that for the graver charge [People v. Mamarion,
G.R. No. 137554 (2003)]
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 without the consent
of the offended party and the prosecutor [People v. De
Luna, G.R. No. L-77969 (1989); Sec. 7(c), Rule 117, see
Sec. 2, Rule 116]
With Sec. 23 of R.A. 9165 being declared
unconstitutional in Estipona Jr. v. Lobrigo [G.R. No.
226679 (2017)], offenses involving dangerous drugs
may now be the subject of plea bargain [see DOJ
Circular No. 61 (2017)]
Stipulation of facts
This is no longer prohibited in criminal cases [People v.
Hernandez, G.R. No. 108028 (1996)]
However, in a case of rape with the allegation that the
victim is below 12 years 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. Circumstances that qualify a crime and
increases its penalty to death cannot be the subject of
stipulation [People v. Sitao, G.R. No. 146790 (2002)]
U.P. LAW BOC CRIMINAL PROCEDURE
Marking for identification of evidence
Proffer of exhibits is not allowed. It ought to be done
at the time a party closes the presentation of evidence.
[People v. Santiago, G.R. No. L-80778 (1989)]
Role of the judge
During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions
must be directed to him to avoid hostilities between
the parties [Item B.7, A.M. No. 03-1-09-SC]
2. What the Court Should Do
When Prosecution and
Offended Party Agree to the
Plea Offered by the Accused
The Court shall
a. Issue an order which contains the plea bargaining
arrived at
b. Proceed to receive evidence on the civil aspect of
the case; and
c. Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence
[Item B.5, A.M. No. 03-1-09-SC]
General rule: Court approval is required.
Exception: Agreements not covering matters referred
to in Sec. 1, Rule 118, need not be so approved [Item
B.8, A.M. No. 03-1-09-SC]
Effect
The stipulations become binding on the parties who
made them. They become judicial admissions of the
fact or facts stipulated [Bayas v. Sandiganbayan, G.R.
No. 143689-91 (2002)])
Even if placed at a disadvantageous position, a party
may not be allowed to rescind them unilaterally; he
must assume the consequences of the disadvantage
[Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)]
3. Pre-Trial Agreement
Requirements
a. Reduced in writing;
b. Signed by the accused and counsel;
c. With approval of court if agreements cover
matters in Sec. 1, Rule 118
[Sec. 2, Rule 118]
Page 357 of 481
REMEDIAL LAW
If this is not followed, the admissions cannot be used
against the accused (i.e., inadmissible in evidence)
[Item I-B[8], A.M. No. 03-1-09-SC (2004)] The
constitutional right to present evidence is waived
expressly.
The accused must have voluntarily waived his right to
present evidence and with full comprehension. [Rivera
v. People, G.R. No. 163996 (2005)]
4. Non-Appearance during
Pre-Trial
The court may impose proper sanctions or penalties,
if counsel for the accused or the prosecutor to enforce
the mandatory character of the pre-trial in criminal
cases:
a. Does not appear at the pre-trial conference; and
b. Does not offer an acceptable excuse for his lack
of cooperation [Sec. 3, Rule 118]
Note: The accused is not included because his
constitutional right to remain silent may be violated.
The accused is not required to attend (unless ordered
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. The complainant is
also not required to appear during pre-trial. It is the
prosecutor who is required to appear at the pre-trial
[People v. Judge Tac-An, G.R. No. 148000 (2003)]
5. Pre-Trial Order
Issuance
The pre-trial order is:
a. Issued by the trial judge;
b. Within 10 days after the termination of the pre-
trial pre-trial
[Item B.10, A.M. No. 03-1-09-SC]
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, G.R. No. L-80778 (1989)]
Content
a. Actions taken
b. Facts stipulated
c. Evidence marked
[Sec. 4, Rule 118]
d. Admissions made;
e. The number of witnesses to be presented; and
f. The schedule of trial
[Item B.10, A.M. No. 03-1-09-SC]
U.P. LAW BOC CRIMINAL PROCEDURE
Effect
a. Binds the parties
b. Limits the trial to those matters not disposed of;
and
c. Controls the course of the action during trial,
unless modified by the court to prevent manifest
injustice
[Sec. 4, Rule 118]
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.
6. Referral of Some Cases for
Court-Annexed Mediation
and Judicial Dispute
Resolution
After the arraignment, the court shall forthwith set
the pre-trial conference within 30 days from the date
of arraignment, and issue an order:
a. Requiring the private offended party to appear
thereat for purposes of plea-bargaining except
for violations of the Comprehensive Dangerous
Drugs Act of 2002, and for other matters
requiring his presence;
b. Referring the case to the Branch COC, if
warranted, for a preliminary conference to be set
at least three days prior to the pre-trial to mark
the documents or exhibits to be presented by the
parties and copies thereof to be attached to the
records after comparison and to consider other
matters as may aid in its prompt disposition; and
c. Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown.
In mediatable cases, the judge shall refer the parties
and their counsel to the PMC unit for purposes of
mediation if available.
[Item B.2, A.M. No. 03-1-09-SC]
Page 358 of 481
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J. Trial
1. Instances When Presence of
Accused is Required by Law
In all criminal prosecutions, the accused shall have the
right to be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment [Sec.
1(c), Rule 115]
Note: The presence of the accused is required in the
following cases:
a. At arraignment; [Sec. 1(b), Rule 116]
b. At the promulgation of judgment, unless the
conviction is for a light offense [Sec. 6, Rule 120]
Waiver of right
General rule: The accused may waive his presence at the
trial pursuant to the stipulations set forth in his bail
[Sec. 1(c), Rule 115]
Exception: Unless his presence is specifically ordered
by the court for purposes of identification [Sec. 1(c),
Rule 115]
Prosecution may require the presence of the accused
for the purposes of identification by its witnesses
[Carredo v. People, G.R. No. 77542, March 19, 1990]
Exception to the exception: The presence of the accused
is no longer required when he unqualifiedly admits in
open court after arraignment that he is the person
named as defendant in the case on trial [Carredo v.
People, G.R. No. 77542, March 19, 1990]
Other instances of waiver
a. The absence of the accused without justifiable
cause at the trial of which he had notice shall be
considered a waiver of his right to be present
thereat.
b. When an accused under custody escapes, he shall
be deemed to have waived his right to be present
on all subsequent trial dates until custody over
him is regained
[Sec. 1(c), Rule 115]
When trial should be commenced
Pursuant to Sec. 8(d) of the Guidelines for
Decongesting Holding Jails by Enforcing the Rights
of the Accused Persons to Bail and to Speedy Trial
[A.M. No. 12-11-2 SC], trial shall be set not later than
U.P. LAW BOC CRIMINAL PROCEDURE
thirty (30) days from the termination of pre-trial
conference.
2. Requisites Before Trial Can
be Suspended on Account of
Absence of Witness
Requisites
a. Absence or unavailability
1. “Absent” means that his whereabouts are
unknown or cannot be determined by due
diligence
2. “Unavailable” means that his whereabouts
are known but his presence for trial cannot
be obtained by due diligence
b. of an essential witness
[Sec. 3(b), Rule 119]
“Essential” means indispensable, necessary, or
important in the highest degree [Riano 530, 2011
Updated Ed., citing 5 Black’s Law Dictionary 490]
Effect of absence of witness
Any period of delay resulting from the absence or
unavailability of an essential witness shall be excluded
in computing the time within which trial must
commence [Sec. 3, Rule 119]
Private counsel for the accused, the public attorney,
or the prosecutor who knowingly allows the case to
be set for trial without disclosing that a necessary
witness would be unavailable for trial, may be
punished by the court as follows
a. by imposing on a counsel privately retained in
connection with the defense of an accused, a fine
not exceeding ₱20,000.00;
b. by imposing on any appointed counsel de officio,
public attorney, or prosecutor a fine not
exceeding ₱5.000.00; and
c. by denying any defense counsel or prosecutor the
right to practice before the court trying the case
for a period not exceeding 30 days
The punishment provided for by this section shall be
without prejudice to any appropriate criminal action
or other sanction authorized under the Rules [Sec. 8,
Rule 119]
Conditional examination
a. A witness for the prosecution may forthwith be
conditionally examined before the court where
the case is pending when it satisfactorily appears
that he
Page 359 of 481
REMEDIAL LAW
1. Is too sick or infirm to appear at the trial as
directed by the court, or
2. Has to leave the Philippines with no definite
date of returning.
b. Such examination, shall be conducted in the same
manner as an examination at the trial
1. In the presence of the accused, or
2. In his absence after reasonable notice to
attend the examination has been served on
him
c. Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted in
behalf of or against the accused.
[Sec. 15, Rule 119]
Remedy to secure appearance of a material
witness
a. When the court is satisfied, upon
1. proof or
2. oath,
that a material witness will not testify when
required, it may, upon motion of either party,
order the witness to post bail in such sum as may
be deemed proper.
b. Upon refusal to post bail, the court shall commit
him to prison until he complies or is legally
discharged after his testimony has been taken
[Sec. 14, Rule 119]
3. Trial in Absentia
Requisites
a. Accused has been arraigned
b. He was duly notified of trial
c. His failure to appear is unjustified [Bernardo v.
People, G.R. No. 166980 (2007)]
This is to speed up disposition of cases [People v.
Agbulo, G.R. No. 73875 (1993)]
Order of Trial
a. The prosecution shall present evidence to prove
the charge and, in the proper case, the civil
liability.
b. The accused may present evidence to prove his
defense and damages, if any, arising, from the
issuance of a provisional remedy in the case.
c. The prosecution may present rebuttal evidence
unless the court, in furtherance of justice, permits
it to present additional evidence bearing upon the
main issue.
U.P. LAW BOC CRIMINAL PROCEDURE
d. The defense may present sur-rebuttal evidence
unless the court, in furtherance of justice, permits
it to present additional evidence bearing upon the
main issue.
e. Upon admission of evidence of the parties, the
case shall be deemed submitted for decision
unless the court directs them to argue orally or to
submit written memoranda
[Sec. 11(a) to (d), Rule 119]
Modification of order of trial; reverse trial
When the accused admits the act or omission charged
in the complaint or information but interposes a
lawful defense, the order of trial may be modified
[Sec. 11(e), Rule 119]
4. Remedy When Accused is
Not Brought to Trial within
the Prescribed Period
On motion of the accused, the information may be
dismissed on the ground of denial of his right to
speedy trial if the accused is not brought to trial within
the time limit required by
a. Sec. 1(g), Rule 116; and
b. Sec. 1, as extended by Section 6 of Rule 119.
[Sec. 9, Rule 119]
Sec. 1(g), Rule 116: Unless a shorter period is provided
by special law or Supreme Court circular, the
arraignment shall be held within thirty (30) days from
the date the court acquires jurisdiction over the
person of the accused. The time of the pendency of a
motion to quash or for a bill of particulars or other
causes justifying suspension of the arraignment shall
be excluded in computing the period.
Sec. 1, Rule 119: After a plea of not guilty is entered,
the accused shall have at least 15 days to prepare for
trial. The trial shall commence within 30 days from
receipt of the pre-trial order.
Sec. 6, Rule 119: Notwithstanding the provisions of
section 1(g), Rule 116 and the preceding section 1, for
the first twelve-calendar-month period following its
effectivity on September 15, 1998, the time limit with
respect to the period from arraignment to trial
imposed by said provision shall be 180 days. For the
second twelve-month period, the time limit shall be
120 days, and for the third twelve-month period, the
time limit shall be 80 days.
Page 360 of 481
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Factors to consider
a. Duration of the delay
b. Reason therefor
c. Assertion of the right or failure to assert it, and
d. Prejudice caused by such delay
[Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)]
Failure of the accused to move for dismissal prior to
trial shall constitute a waiver of the right to dismiss on
the ground of denial of his right to speedy trial [Sec.
9, Rule 119]
Burden of proof
a. The accused has the burden of proving the
ground of denial of right to speedy trial for the
motion.
b. The prosecution has the burden of going forward
with the evidence to establish the exclusion of
time under Sec. 3, Rule 119.
c. The dismissal shall be subject to the rules on
double jeopardy.
[Sec. 9, Rule 119]
No provision of law on speedy trial and no rule
implementing the same shall be interpreted as a bar to
any charge of denial of the right to speedy trial
guaranteed by Sec. 14(2), Art. III, Constitution [Sec.
10, Rule 119]
5. Requisites for Discharge of
Accused to Become a State
Witness
Requisites
a. Two or more persons are jointly charged with the
commission of any offense.
b. Upon motion of the prosecution before resting
its case
c. After requiring the prosecution to present
evidence and the sworn statement of each
proposed state witness at a hearing in support of
the discharge
d. The court is satisfied of the following:
1. Absolute necessity for the testimony of the
accused whose discharge is requested
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, G.R. No. L-63677 (1983)];
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

2. There is no other direct evidence available
for the proper prosecution of the offense,
except the testimony of the said accused
3. The testimony can be substantially
corroborated in its material points
4. The accused does not appear to be the most
guilty
5. The accused has not, at any time, been
convicted of any offense involving moral
turpitude
[Sec. 17, Rule 119]
e. Petition for discharge is filed before the defense
has offered its evidence [People v. Aniñon, G.R.
No. L-39083 (1988)]
Discharge of a co-accused
It is the duty of the prosecutor to include all the
accused in the complaint/information. He may ask
the court to discharge one of them after complying
with the conditions prescribed by law. This applies
only when the information has already been filed in
court. Thus, even the state witness is included as
accused prior to discharge.
While all the accused may be given the same penalty
by reason of conspiracy, one may be considered the
least guilty if we take into account his degree of
participation in the perpetration of the offense [People
v. Ocimar, G.R. No. 94555 (1992)]
Subsequent amendment of the information does not
affect discharge [People v. Taruc, G.R. No. L-14010
(1962)]
Notes:
a. Evidence adduced in support of the discharge
shall automatically form part of the trial.
b. If the court denies the motion for discharge of
the accused as state witness, his sworn statement
shall be inadmissible in evidence.
[Sec. 18, Rule 119]
7. Demurrer to Evidence
It is defined as “an objection or exception by one of
the parties in an action at law, to the effect that the
evidence which his adversary produced is insufficient
in point of law (whether true or not) to make out his
case or sustain the issue” [Pasag v. Parocha, G.R. No.
155483 (2007), citing Black’s Law Dictionary]
General rule: An order granting the accused’s demurrer
to evidence amounts to an acquittal [Riano 491-492,
2016 Ed., citing People v. Go, G.R. No. 191015 (2014)]
Exception: When there is a finding that there was grave
abuse of discretion on the part of the trial court in
dismissing a criminal case by granting the accused’s
demurrer to evidence [Hon. Mupas v. People, G.R. No.
189365 (2011)]

6. Effects of Discharge of The order granting the demurrer is not appealable but
Accused as State Witness may be reviewed via certiorari under Rule 65 [People v.
Sandiganbayan, G.R. No. 164577 (2010)]
General rule: The order of discharge shall:
Rationale
a. Amount to an acquittal of the discharged
This is to prevent the filing of demurrer based on
accused;
frivolous and flimsy grounds.
b. Bar future prosecutions for the same offense
How initiated
Exception: If the accused fails/refuses to testify against
a. by the court motu proprio, after giving the
his co-accused in accordance with his sworn
prosecution the opportunity to be heard; or
statement constituting the basis for his discharge,
b. Upon demurrer to evidence filed by the accused:
these effects do not set in.
1. With leave of court;
[Sec. 18, Rule 119]
2. Without leave of court
[Sec. 23, Rule 119]
Any error in asking for and in granting the discharge
cannot deprive the one discharged of the acquittal and
Motion for leave to file demurrer
the constitutional guaranty against double jeopardy
a. It must specifically state its grounds.
[People v. Verceles, G.R. No. 130650 (2002)]
b. It must be filed within a non-extendible period of
5 days after the prosecution rests its case (i.e. after
Conviction of the accused against whom discharged
the court shall have ruled on the prosecution’s
state witness testified is not required.
formal offer). Prosecution may then oppose
within a non-extendible period of 5 days from
receipt.

Page 361 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

c. If leave of court is granted, the demurrer must be files motion with resolution until
filed within a non-extendible period of 10 days reservation to present decision is rendered on
from notice. Prosecution may oppose the evidence in case the other accused if it
demurrer within a similar period motion is denied) can be shown from the
[Sec. 23, Rule 119] decision that the
resolution on the
Effect granting demurrer demurrer was rendered
The court dismisses the action on the ground of not only on the basis of
insufficiency of evidence [Sec. 23, Rule 119] This the prosecution’s
amounts to acquittal of the accused [People v. evidence but also on
Sandiganbayan, G.R. No. 164577 (2010)] the evidence adduced
by his co-accused, then
Sufficient evidence for frustrating a demurrer is the demurrer is deemed
evidence that proves: resolved
a. Commission; and
b. Precise degree of participation [Singian, Jr.v. Demurrer in CIVIL Demurrer in
Sandiganbayan, G.R. Nos.. 195011-19 (2013)] CASE CRIMINAL CASE
Anchored upon the
Test: Whether the prosecution evidence is sufficient Predicated upon
failure of the plaintiff
enough to warrant the conviction of the accused prosecution’s
to show that upon the
beyond reasonable doubt [Riano] insufficiency of
facts and the law, he is
evidence [Sec. 23, Rule
entitled to relief [Sec. 1
Effect of denial of motion for leave to file 119]
Rule 33]
demurrer Requires prior leave of May be filed with or
a. Accused may choose between court relief [Sec. 1, without leave of court
1. Filing the demurrer even without leave, or Rule 33] [Sec. 23, Rule 119]
2. Adducing evidence for his defense Defense may present
[Sec. 23, Rule 119] evidence upon denial
b. Order denying the motion for leave or order of demurrer if the
denying the demurrer itself, is not reviewable by Defense filed the
appeal or by certiorari before judgment [Sec. 23, demurrer with leave of
Rule 119]; court.
c. It is interlocutory, but it may be assigned as error
and reviewed in the appeal that may be taken When demurrer is
When without leave of
from the decision on the merits [Cruz v. People, denied, defendant does
court, demurrer was
G.R. No. 121422 (1999)] not lose his right to
denied,
present his evidence
defense/accused
Right of the accused to present evidence after waives his right to
demurrer is denied present evidence and
Filed with leave Filed without leave submits the case for
of court of court judgment on the basis
May adduce evidence Waives the right to of evidence offered by
in his defense [Sec. 23, present evidence [Sec. the prosecution.
Rule 119] 23, Rule 119] If the demurrer is
Purpose is to determine No appeal is allowed
Submits the case for granted, plaintiff may
whether or not the when a demurrer is
judgment on the basis appeal and if the
demurrer was filed granted because the
of the evidence for the dismissal is reversed,
merely to stall the dismissal is deemed an
prosecution the defendant is
proceedings acquittal [People v. Tan,
deemed to have waived
Implied leave of court If there are 2 or more G.R. No. 167526
his right to present his
is no longer sufficient accused and only one (2010)]
evidence
and prevents accused presents a demurrer The court may, on its
from presenting without leave of court, It is the defendant who
own initiative, dismiss
evidence (e.g. accused the court may defer invokes demurrer by
the action after giving

Page 362 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

moving for the

dismissal of the case.
the prosecution an
opportunity to be
K. Judgment
heard.
The court does not so Judgment is the adjudication by the court that the
on its own inititiative accused is guilty or not guilty of the offense charged
[Riano 498, 2016 Ed.] and the imposition on him of the proper penalty and
civil liability, if any [Sec. 1, Rule 120]

1. Requisites of a Judgment
Written in the official language

If given verbally, it is incomplete [People v. Catolico,

G.R. No. L-31260 (1972)]
a. Personally and directly prepared by the judge
b. Signed by the judge
c. Contains clearly and distinctly a statement of the
facts and the law upon which judgment is based
[Sec. 1, Rule 120]

There is sufficient compliance if the decision

summarizes the evidence of both parties, synthesizes
the findings and concisely narrates how the offense
was committed.

Jurisdictional requirements
a. Jurisdiction over the subject matter
b. Jurisdiction over the territory
c. Jurisdiction over the person of the accused
[Riano, 499, 2016 Ed., citing Cruz v. CA, G.R. No.
123340 (2002) and Antiporda v. Garchitorena, G.R. No.
133289 (1999)]

Judge who renders decision

The judge who presided over the entire trial would be
in a better position to ascertain the truth or falsity of
the testimonies. But the judge who only took over can
render a valid decision by relying on the transcript. It
does not violate due process [People v. Badon, G.R. No.
126143 (1999)]

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, especially
when the evidence on record is sufficient to support
its conclusion [People v. Alfredo, G.R. No. 188560
(2010)]

Page 363 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
2. Contents of Judgment
a. Conviction
The judgment of conviction shall state:
1. The legal qualification of the offense constituted
by the acts committed by the accused and the
aggravating/mitigating circumstances which
attended its commission
2. The participation of the accused in the offense,
whether as principal, accomplice or accessory
after the fact
3. The penalty imposed upon the accused
4. 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
[Sec. 2, Rule 120]
The penalty should not be imposed in the alternative.
There should be no doubt as to the offense
committed and the penalty for it.
Proof beyond reasonable doubt
It is that degree of proof which produces conviction
in an unprejudiced mind [People v. Bacalzo, G.R. No.
89811 (1991)]
Conviction of the accused must rest, not on the
weakness of the defense, but on the strength of the
prosecution. The burden to prove guilt beyond
reasonable doubt is on the prosecution [Boac v. People,
G.R. No. 180597 (2008)]
Judgment for two or more offenses
Also known as duplicitous complaint or
information [Prof. Sanidad]
When two or more offenses are charged in a single
complaint or information but the accused fails to
object to it before trial, the court may convict him of
as many offenses as are charged and proved, and
impose on him the penalty for each offense, setting
out separately the findings of fact and law in each
offense [Sec. 3, Rule 120]
Variance between allegation and proof
Also known as the Variance Doctrine [Riano 503,
2016 Ed.]
Page 364 of 481
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General rule: The defendant can be convicted only of
the crime with which he is charged [Riano 504, 2016
Ed.]
However, a minor variance between the information
and the evidence does not alter the nature of the
offense, nor does it determine or qualify the crime or
penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for acquittal [People v.
Noque, G.R. No. 175319 (2010)]
Exception: When there is variance between the offense
charge in the complaint or information and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is
included in the offense charged, or of the offense
charged which is included in the offense proved [Sec.
4, Rule 120]
1. The accused can be convicted of an offense only
when it is both charged and proven.
2. The mere fact that the evidence presented would
indicate that a lesser offense outside the court’s
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it
under the allegations in the information
[People v. Ocaya, G.R. No. L-47448 (1978)]
Exception to the exception: Where there are facts that
supervened after the filing of the information which
change the nature of the offense.
When an offense includes or is included in
another
1. An 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.
Examples: Murder includes homicide; Serious
physical injuries include less serious or slight
physical injuries; Robbery includes theft [Riano]
2. 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 [Sec. 5, Rule 120]
Examples: Less serious physical injuries are included in
serious physical injuries; Acts of lasciviousness are
included in rape; Theft is included in robbery [Riano]
The right to be informed of the charges has not been
violated because where an accused is charged with a
U.P. LAW BOC CRIMINAL PROCEDURE
specific crime, he is duly informed also of lesser
crimes/offenses included therein [People v. Noque,
G.R. No. 175319 (2010)]
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 one
which is proven [People v. Llaguno, G.R. No. 91262
(1998)]
b. Acquittal
The judgment of acquittal shall state whether
1. The evidence of the prosecution absolutely failed
to prove the guilt of the accused; or
2. Merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if the act
or omission complained from which the civil liability
might arise did not exist.
[Sec. 2, Rule 120]
Acquittal Dismissal
Terminates the case
Decision on the merits Not on the merits but
based on a finding that no finding that accused
the accused is not is not guilty
guilty
Reasonable doubt is 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 [People v. Nito, G.R. No. 70305
(1993)]
Acquittal based on failure to prove guilt beyond
reasonable doubt 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, which can be proven by a lower quantum of
evidence. Thus, it does not bar a separate civil action
based on quasi-delict [Lontoc v. MD Transit, G.R. No.
L-48949 (1988)]
The court may hold the 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 [Lontoc v. MD Transit, G.R. No. L-48949
(1988)] Thus:
1. The court may nonetheless hold the accused
civilly liable in favor of the offended party, or it
Page 365 of 481
REMEDIAL LAW
may deny the award of civil damages expressly or
impliedly by being silent on the matter.
2. 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.
The judge acquitting an accused cannot punish him at
the same time.
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.
3. Promulgation of Judgment;
Instances of Promulgation
of Judgment in Absentia
IN GENERAL
Promulgation of judgment is an official
proclamation or announcement of the decision of the
court [Pascua v. Court of Appeals, G.R. No. 140243
(2000), citing Jacinto, Sr. 521, Commentaries and
Jurisprudence on the Revised Rules of Court [Criminal
Procedure], 1994 Ed.]
Requisites
a. There must be a court legally organized or
constituted; and there must be a judge, or judges,
legally appointed or elected and actually acting,
either de jure or de facto [Luna v. Rodriguez, G.R. No.
12647 (1917)]
b. Said judgment must be duly signed and
promulgated during the incumbency of the judge
who penned it [Payumo v. Sandiganbayan, G.R. No.
151911 (2011)]
c. The judgment is promulgated by reading it in the
presence of the accused and any judge of the
court in which it was rendered [Sec. 6, Rule 120]
Failure to promulgate
Where there is no promulgation of judgment, no right
to appeal accrues. Merely reading the dispositive
portion of the decision is not sufficient [Pascua v. CA,
G.R. No. 140243 (2000)]
Notice for promulgation
The proper clerk of court shall give notice to the
accused personally or through his bondsman or
U.P. LAW BOC CRIMINAL PROCEDURE
warden and counsel, requiring him to be present at
the promulgation of the decision. If the accused was
tried in absentia because he jumped bail or escaped
from prison, the notice to him shall be served at his
last known address [Sec. 6, Rule 120]
Sin perjuicio judgment
It is a judgment without a statement of the facts in
support of its conclusion to be later supplemented by
the final judgment. This practice is discouraged by the
courts [Dizon v. Lopez, A.M. No. RTJ-96-1338 (1997)]
This is a practice which should not be followed and
cannot be looked upon with favor [Director of Lands v.
Sanz, G.R. No. 21183 (1923)]
PROMULGATION IN CERTAIN
CIRCUMSTANCES
a. When the judge is absent or outside the
province or city
The judgment may be promulgated by the clerk
of court [Sec. 6, Rule 120].
b. Where Presence of Accused Is Required;
Exceptions
General rule: Presence of the accused is mandatory
in the promulgation of judgment.
Exception: If the conviction is for a light offense,
the judgment may be pronounced in the presence
of his counsel or representative [Sec. 6, Rule 120]
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
Rules against the judgment and the court shall
order his arrest. However, within 15 days from
promulgation of judgment, he may surrender and
file a motion for leave of court to avail of these
remedies. He shall state the reasons for his
absence. If he proves his absence was for a
justifiable cause, shall be allowed to avail of the
remedies within 15 days from notice [Sec. 6, Rule
120; People v. De Grano, G.R. No. 167710 (2009)]
Effect of failure of the accused to appear at
the scheduled date of promulgation
Promulgation is made by recording the judgment
in the criminal docket and serving a copy at the
accused’s last known address or through counsel
[Sec. 6, Rule 120]
Page 366 of 481
REMEDIAL LAW
c. If the accused is confined or detained in
another province or city
The judgment may be promulgated by the
executive judge of the RTC having jurisdiction
over the place of confinement or detention upon
request of the court which rendered the
judgment. The court promulgating the judgment
shall have authority to accept the notice of appeal
and to approve the bail bond pending appeal;
provided, that if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed and resolved
by the appellate court [Sec. 6, Rule 120]
d. Promulgation when a judge is no longer a
judge
A judgment promulgated after the judge who
signed the decision has ceased to hold office is
not valid and binding. In like manner, it cannot
be promulgated after the retirement of the judge
[Nazareno v. CA, G.R. No. 111610 (2002)]
4. When Does Judgment
Become Final
Modification of judgment
A judgment of conviction may, upon motion of the
accused, be modified or set aside before the judgment
becomes final or before appeal is perfected [Sec. 7,
Rule 120, Rules of Court]
When does judgment become final?
a. After the lapse of the period for perfecting an
appeal;
b. When the sentence has been partially/totally
satisfied or served;
c. The accused has waived in writing his right to
appeal;
d. When the accused has applied for probation,
Except: where the death penalty is imposed
[Sec. 7, Rule 120]
Judgment also becomes final when judgment is an
acquittal [People v. Sandiganbayan, G.R. No. 164577
(2010)]
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct clerical
errors. See Quirino v. PNB [G.R. No. L-9159 (1957)]
U.P. LAW BOC CRIMINAL PROCEDURE
L. New Trial or
Reconsideration
1. Grounds for New Trial
a. Errors of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial
General rule: Errors of the defense counsel in the
conduct of the trial is neither an error of law nor
an irregularity [Ceniza-Manantan v. People, G.R.
No. 156248 (2007)]
Exception: They become an error of law or
irregularity when acquittal would, in all
probability, have followed the introduction of
certain testimony which was not submitted at the
trial under improper or injudicious advice of
incompetent counsel of the accused. [Aguilar v.
Court of Appeals, G.R. No. 114282 (1995)]
Irregularities must be with such seriousness as to
affect prejudicially the substantial rights of the
accused. [Sec. 2(a), Rule 121; Tabobo v. People, G.R.
No.220977 (2017)]
b. New and material evidence has been discovered
which the accused could not with reasonable
diligence have discovered and produced at the
trial and which if introduced and admitted would
probably change the judgment
- See Part L.3 of this (Criminal Procedure)
reviewer
[Sec. 2, Rule 121]
2. Grounds for Reconsideration
The court shall grant reconsideration on the ground
of errors of law or fact in the judgment, which
requires no further proceedings [Sec. 3, Rule 121]
3. Requisites Before a New
Trial May be Granted on
Ground of Newly
Discovered Evidence
The court shall grant a new trial when new and
material evidence has been discovered which the
Page 367 of 481
REMEDIAL LAW
accused could not with reasonable diligence have
discovered and produced at the trial and which if
introduced and admitted would probably change the
judgment [Estino v. People, G.R. No. 163957-58 (2007)]
The determinative test is the presence of due or
reasonable diligence to locate the thing to be used as
evidence in the trial [Briones v. People, G.R. No. 156009
(2009)]
Requisites
The evidence
a. Was discovered after the trial
b. Could not have been discovered and produced at
the trial even with the exercise of reasonable
diligence
c. Is material, not merely cumulative/
corroborative/impeaching; and
d. Is of such weight that it would probably change
the judgment if admitted
[Tadeja v. People, G.R. No. 145336 (2013)]
The accused has the burden of proving item (2) above
[US v. Torrente, G.R. No. 1001 (1922)]
It must be of weighty influence and will affect the
result of the trial [People v. Alfaro, G.R. Nos. 136742-
43 (2003)]
Interest of justice as gauge for introduction of
new evidence
In People v. Almendras [G.R. No. 145915 (2003)], the
court ruled that a motion for a new trial may be
granted on a ground not specifically provided in the
rules, provided that it is sought in the interest of
justice. In that case, the relief of a new trial was
granted to a client who has suffered by reason of
his/her counsel’s gross mistake and negligence.
Form of motion for reconsideration & new trial
a. must be in writing
b. state the grounds on which it is based
c. if based on newly-discovered evidence, motion
must be supported by:
1. the affidavits of the witnesses by whom such
evidence is expected to be given, or
2. duly authenticated copies of documents
which are proposed to be introduced in
evidence
Notice of the motion shall be given to the prosecutor
[Sec. 4, Rule 120]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Courts to the Regional Trial Courts; Rule 42 on

4. Effects of Granting New petitions for review from the Regional Trial Courts to
the Court of Appeals; Rule 43 on appeals from quasi-
Trial or Reconsideration judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme
In general Court.”
a. The original judgment set aside or vacated; and
b. A new judgment is rendered accordingly The “fresh period rule” enunciated in Neypes also
[Sec. 6, Rule 121] applies to criminal actions, particularly to Sec. 6 of
Rule 122 [Yu v. Tatad, G.R. No. 170979 (2011)]
Other effects of granting new trial or
reconsideration depending on ground
Action of the
Ground Effect
court
All proceedings
and evidence
affected shall
Errors of law be set aside and The court will
or taken anew. allow
irregularities If error or introduction of
committed irregularity goes additional
during the into the evidence in the
trial jurisdiction, the interest of
entire justice.
proceeding is
void and must
be set aside.
Evidence
already adduced
shall stand and
the newly- The court will
discovered and allow
Newly- such other introduction of
discovered evidence shall other such
evidence be taken and evidence in the
considered interest of
together with justice.
the evidence
already in the
record.
[Sec. 6, Rule 121]

5. Application of the Neypes

Doctrine in Criminal Cases
The Neypes doctrine allows a fresh period of 15 days
within which to file the notice of appeal in the RTC,
counted from receipt of the order denying a MNT or
MR. Neypes v. CA [G.R. No. 141534 (2005)] declared
that:

“Henceforth, this ‘fresh period rule’ shall also apply

to Rule 40 governing appeals from the Municipal Trial

Page 368 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

M. Appeal If it involves
constitutionality or
validity of any treaty/
1. Effect of an Appeal law/ordinance/EO/
regulation or the
An appeal in a criminal proceeding throws the whole jurisdiction of the
case open for review and it becomes the duty of the inferior court
appellate court to correct an error as may be found in
the appealed judgment WON it is made the subject of In criminal cases
assignment of errors [People v. Calayca, G.R. No. involving offenses for
121212 (1999)] which the penalty
imposed is death or
life imprisonment
2. Where to Appeal
Other offenses,
For cases decided by Appeal to which, although not
RTC [Sec. 2(c), Rule so punished, arose
MTC/MeTC/MCTC
122] out of the same
RTC or occurrence or which
MTC/MeTC/ may have been
MCTC (if it is Sandiganbayan [Sec. 4 (c) committed by the
government duty- PD 1606 as amended accused on the same
related, i.e., filed by RA 8249] occasion, as that
under E.O. 1, 2, 4 and giving rise to the
14-A) more serious offense
RTC (if it involves CA [Sec. 2(c), Rule
questions of fact and CA 122] or SC [Sec. 2(c), Rule 122]
of law) Sandiganbayan
CA (notice of appeal)

If the CA imposes 3. How Appeal Taken

reclusion perpetua or life
Where the RTC imprisonment, it will The right to appeal is not a natural right nor a part of
imposed the penalty render and enter due process but merely a statutory privilege and may
of reclusion perpetua judgment. The be exercised only in the manner and in accordance
or life imprisonment subsequent appeal to with the provisions of the law [Estarija v. People, G.R.
the SC No. 173990 (2009)]
is by notice of appeal
[Sec. 3(a)(c), Rule 122; Decided by Appeal to Mode
People v. Mateo, G.R. MTC/MeTC Filing of notice
RTC
No. 147678 (2004)] /MCTC of appeal with
CA (automatic review) the court
which rendered
If CA imposes the order
Where the RTC death, it will render RTC (original appealed from
CA
imposed judgment but will not jurisdiction) and serving a
the penalty of death enter, and will certify copy thereof to
the case to the the adverse
SC for review [Sec. 3(d) party
and 10 , Rule 122 ] RTC Petition for
RTC (appellate CA review (Rule
If it involves SC jurisdiction) 42)
questions of law only Appeal to the Filing of notice
SC in cases of appeal with

Page 369 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

where the the court The period to appeal shall be suspended from the
penalty which rendered time a MNT or MR is filed until notice of the order
imposed by the the order overruling the motion has been served upon the
RTC is death, appealed from accused or his counsel.
reclusion and serving a
perpetua, or life copy thereof to [Sec. 6, Rule 122]
imprisonment, the adverse 
or where a party (Except Transmission of record to RTC
lesser penalty is when the Within 5 days from perfection of the appeal, the
imposed but penalty COC shall transmit the original record to the
for offenses imposed is appropriate RTC [Sec. 9(a), Rule 122]
committed on death as such is 
the same subject to Notification of parties
occasion or automatic Upon receipt of the complete record, TSN and
which arose review) evidence of the case, the RTC COC shall notify the
out of the parties of such fact [Sec. 9(b), Rule 122]
same

occurrence that
Submission of memoranda/briefs
gave rise to the
Within 15 days from receipt of said notice, the
more serious
parties may submit memoranda/briefs, or may be
offense for
required by the RTC to do so [Sec. 9(c), Rule 122]
which the
penalty of 
death, Decision
reclusion After submission of such memoranda/briefs or
perpetua, or life upon the expiration of the period to file the same,
imprisonment the RTC shall decide the case on the basis of the
is imposed. entire record of the case and of such
Petition for memoranda/briefs as may have been filed [Sec.
All other 9(c), Rule 122]
review on
appeal to the
certiorari (Rule
SC General rule: The procedure to be observed in the
45)
[Sec. 3, Rule 122] MeTC/MTC/MCTC shall be the same as that in the
RTC.
Who may appeal
Exceptions:
General rule: Any party may appeal from a judgment or 1. Where a particular provision applies only to
final order [Sec. 1, Rule 122] either of said courts;
2. Criminal cases governed by the Revised Rules on
Exceptions: Summary Procedure
a. A party may not appeal if the accused will be [Sec. 1, Rule 123]
placed in double jeopardy by such action [Sec. 1,
Rule 122]; Offenses falling under the jurisdiction of the
b. If the judgment is for conviction and the accused MTC/MCTC
fails to appear during promulgation without Notwithstanding the uniform procedure rule, if the
justifiable cause, he would lose the remedy to offense falls under the jurisdiction of the
appeal [Sec. 6, Rule 120] MTC/MCTC, complaint/information may be filed
directly with said courts or with the City Prosecutor’s
office [Salcedo v. Nobles-Bans, G.R. No. L-67540
a. Procedure in the lower courts (1985)]
When appeal to be taken Offenses falling under the jurisdiction of MeTC
Within 15 days from promulgation of the judgment In Metro Manila and other chartered cities, criminal
or from notice of the final order appealed from. cases shall be commenced only by information; thus,

Page 370 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
the complaint may be filed only with the office of the
City Prosecutor [Sec. 1(b), Rule 110]
If the case is directly filed with the court, the case
should not be dismissed. The court should just refer
it to the City Prosecutor for the filing of the
corresponding information [Salcedo v. Nobles-Bans,
G.R. No. L-67540 (1985)]
b. Procedure in the court of appeals
Parties and title
In all criminal cases appealed to the CA, the party
appealing shall be called the “appellant” and the
adverse party the “appellee” but the title of the case
shall remain as it was in the court of origin (i.e., People
v. John Doe) [Sec. 1, Rule 124]
BRIEFS
Brief for the appellant
Within thirty (30) days from receipt by the appellant
or his counsel of the notice from the clerk of court of
the Court of Appeals that the evidence, oral and
documentary, is already attached to the record, the
appellant shall file seven (7) copies of his brief with
the clerk of court which shall be accompanied by
proof of service of two (2) copies thereof upon the
appellee [Sec. 3, Rule 124]
Brief for the appellee
Within thirty (30) days from receipt of the brief of the
appellant, the appellee shall file seven (7) copies of the
brief of the appellee with the clerk of court which
shall be accompanied by proof of service of two (2)
copies thereof upon the appellant [Sec. 4, Rule 124]
Reply to appellee’s brief
Within twenty (20) days from receipt of the Brief of
the appellee, the appellant may file a reply brief
traversing matters raised in the former but not
covered in the brief of the appellant [Sec. 4, Rule 124]
With the use of the word “may”, filing a reply is
optional.
Extension of time for filing briefs
General rule: Extension of time for the filing of briefs
is not allowed.
Exception: Extension may be granted for good and
sufficient cause and only if the motion for extension
Page 371 of 481
REMEDIAL LAW
is filed before the expiration of the time sought to be
extended [Sec. 5, Rule 124]
The court may grant as many extensions as may be
asked [Gregorio v. CA, G.R. No. L-43511 (1976)]
Form of briefs
Briefs shall either be printed, encoded or typewritten
in double space on legal size, good quality unglazed
paper, 330 mm. in length by 216 mm. in width [Sec.
6, Rule 124]
Content of briefs
The briefs in criminal cases shall have the same
contents as provided in Secs. 13 to 14, Rule 44. A
certified true copy of the decision or final order
appealed from shall be appended to the brief of the
appellant [Sec. 7, Rule 124]
DISMISSAL OF APPEAL FOR
ABANDONMENT OR FAILURE TO
PROSECUTE; GROUNDS
Appellant fails to file his brief within the
prescribed time
The CA may, upon motion of the appellee or motu
proprio and with notice to the appellant in either case,
dismiss the appeal if the appellant fails to file his brief
with the time prescribed, except where the appellant
is represented by a counsel de oficio [Sec. 8, Rule 124]
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
[Baradi v. People, G.R. No. L-2658 (1948)]
However, dismissal is proper despite lack of notice:
1. 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, G.R.
No. L-2658 (1948)]
2. If appeal was dismissed without notice but
appellant took no steps to have the appeal
reinstated. Such action amounts to abandonment
[Salvador v. Reyes, G.R. No. L-2606 (1949)]
Appellant escapes, jumps bail, or flees
The CA may also, upon motion of the appellee or
motu proprio, dismiss the appeal if the appellant escapes
from prison/confinement, jumps bail or flees to a
foreign country during the pendency of the appeal
[Sec. 8, Rule 124]
U.P. LAW BOC CRIMINAL PROCEDURE
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, G.R. No. L-
48547 (1941)]
However, the appeal will not be dismissed despite
escape
1. 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 two hours after, the SC ruled that
these circumstances were not sufficient to justify
dismissal of the appeal which, upon the
conclusion arrived at by the Court on the merits,
would entail a clear miscarriage of justice [People
v. Valencia, G.R. No. L-1369 (1949)]
2. In case of automatic review [People v. Cornelio,
G.R. No. L-1289 (1971)]
Prompt disposition of appeal
Appeals of accused who are under detention shall be
given precedence in their disposition over other
appeals. The Court of Appeals shall hear and decide
the appeal at the earliest practicable time with due
regard to the rights of the parties. The accused need
not be present in court during the hearing of the
appeal [Sec. 9, Rule 124]
Reversal or modification of judgment on appeal
General rule: No judgment shall be reversed or
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 appellant’s substantial rights
[Sec. 10, Rule 124]
When it involves credibility of witnesses, appellate
courts will not generally disturb the TC’s findings
[People v. Cabiling, G.R. No. L-38091 (1976)]
Ratio: The TC is in a better position to decide the
question, having seen and heard the witnesses
themselves [People v. Cabiling, G.R. No. L-38091
(1976)]
Scope of the CA’s judgment
The CA may:
1. Reverse/affirm/modify the judgment;
2. Increase/reduce the penalty imposed by the TC;
Page 372 of 481
REMEDIAL LAW
3. Remand the case to the RTC for new trial or
retrial;
4. Dismiss the case [Sec. 11, Rule 124]
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, G.R. No. L-57170 (1982)]
CA’s power to receive evidence
The CA has power to try cases and conduct hearings,
receive evidence and 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
[Sec. 12, Rule 124]
CA’s trials and hearings must be continuous and
completed within three months, unless extended by
the Chief Justice. [Sec. 9, BP 129 as amended by RA
7902]
POST-CA JUDGMENT
Certification or appeal of cases to the SC
Whenever the CA finds that the penalty of death,
reclusion perpetua, or life imprisonment should be
imposed in a case, the court, after discussion of the
evidence and the law involved, shall render judgment
imposing the penalty of death, reclusion perpetua, or life
imprisonment as the circumstances warrant.
However, it shall refrain from entering the judgment
and forthwith certify the case and elevate the entire
record thereof to the Supreme Court for review [Sec.
13, Rule 124]
Judgment transmitted and filed in the TC
When the CA’s 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 [Sec. 17,
Rule 124]
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 that
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

the judgment may be executed and/or placed or General rule: No party shall be allowed a second MFR
noted in the proper file. of a judgment or final order [Sec. 16, Rule 124; Sec.
11, BP 129]
MNT during the pendency of appeal
1. Appellant may file MNT on the ground of newly Exception: Where the first MFR resulted in a reversal
discovered evidence material to his defense any or substantial modification of the original decision or
time: final resolution. In this case, the party adversely
a. After the appeal from the lower court has affected by the reversal/modification may himself file
been perfected; but a MFR of the latest judgment of the court, because
b. Before the CA judgment convicting him with respect to him, said motion is a first pleading of
becomes final; that nature
2. The motion shall conform to Sec. 4, Rule 121
[Sec. 14, Rule 124]; NOTE: Again, this is not available to the State if the
3. If the CA grants a MNT, it may either: first MFR resulted in setting aside of judgment of
a. Conduct the hearing and receive evidence; conviction. [Prof. RVC]
b. Refer the trial to the court of origin
[Sec. 15, Rule 124] Applicable Civil Procedure Rules
Provisions of Rules 42, 44-46 and 48-56 relating to
Motion For New Trial procedure in the CA and the SC in original and
RTC [Rule 121] CA [Rule 124] appealed civil cases, shall be applied to criminal cases
Grounds: Ground: insofar as they are applicable and not inconsistent
a. errors of law or a. newly-discovered with the provision of this Rule [Sec. 18, Rule 124]
irregularities evidence material
prejudicial to the to his defense c. Procedure In The Supreme
substantial rights
of the accused
Court
have been
Uniform procedure
committed during
the trial;
General rule: The procedure in the SC in original and
b. new and material
in appealed cases shall be the same as in the CA.
evidence has been
discovered
Exception: The Constitution or law otherwise
Filed after judgment, Filed after appeal from
provides.
but before finality of lower court is perfected
[Sec. 1, Rule 125]
conviction but before judgment
CA can either conduct
Cannot remand to What the SC may do on review
the evidentiary hearing
lower court in its In a criminal case, an appeal to the SC throws open
by itself, or it will
exercise of appellate the whole case for review and it becomes its duty to
remand the case to the
jurisdiction correct such errors as may be found in the judgment
court of origin
appealed from, whether or not they were assigned as
errors [People v. Olfindo, G.R. No. L-22679 (1924)]
Reconsideration of CA judgment
MFR may be filed within 15 days from notice of the It may examine the judgment as to the qualification of
CA judgment or final order, with copies served on the the crime and the degree of the penalty imposed
adverse party, setting forth the grounds in support [Macali v. Revilla, G.R. No. L-25308 (1926)]
thereof. The mittimus shall be stayed during the MFR’s
pendency [Sec. 16, Rule 124] It may also assess and award civil indemnity [Quemuel
v. CA, G.R. No. L-22794 (1946)]
NOTE: This is not available to the State in case the
CA reverses the conviction of the accused since Modes by which a case may reach the SC
double jeopardy shall have attached. [Prof. RVC] 1. Automatic review
Automatic review is not a matter of right on the part
of the accused, but a matter of law.

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U.P. LAW BOC CRIMINAL PROCEDURE
It is available when:
1. The RTC decision is appealed to CA and the
latter is of the opinion that the penalty imposed
should be death. 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 [Sec. 13(a), Rule 124]
NOTE: In all cases where the death penalty is
imposed by the trial court, the records are forwarded
to the CA for automatic review and not to the SC.
[A.M. No. 00-5-3-SC]
2. Ordinary appeal
It is available when:
a. In cases where the CA imposes reclusion
perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment
imposing such penalty. The judgment may
be appealed to the SC by notice of appeal
with the CA. [Sec 13 (c), Rule 124]
b. 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 (2002)]
In these cases, the SC reviews not only errors of law
but also the findings of fact by the TC.
3. Petition for review on certiorari
It is available when
a. The constitutionality or validity of any treaty,
executive agreement, law, ordinance or
executive order or regulation is in question
[Sec. 5(2)(a), Art. VIII, 1987 Constitution]
b. 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, G.R. No. 2487 (1904)]
c. When the jurisdiction of any inferior court is
in issue
d. When only an error or question of law is
involved [Sec. 6(a), Rule 45]
Page 374 of 481
REMEDIAL LAW
On decisions of the CA and the Sandiganbayan, as a
rule, review here is limited to errors of law [Sec. 6(a),
Rule 45]
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 [Tagle v. Equitable PCI, G.R. No. 172299
(2008)]
Exceptions:
In the following cases, certiorari is granted despite
existence of the remedy of appeal:
1. Where public welfare and advancement of public
policy so dictate;
2. Where the broader interests of justice so require;
3. Where the orders complained of were found to
be completely null and void;
4. Where appeal was not considered as the
appropriate remedy.
[Department of Education v. Cuanan, G.R. No. 169013
(2008)]
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
[Sec. 2, Rule 125]
General rule: The appellate jurisdiction of the SC in
cases brought to it from the CA is limited to reviewing
and revising the errors of law incurred by the latter.
The CA’s 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, G.R. Nos.. L-45274-5 (1936)]
Exceptions:
1. When the conclusion is a finding founded
entirely on speculations/surmises/conjectures
2. When the inference made is manifestly
mistaken/absurd/impossible
3. When there is GAD
4. When the judgment is based on a
misapprehension of facts
5. When the findings of facts are conflicting
6. 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 [Napolis v. CA, G.R. No. L-28865
(1972)]
[Napolis v. CA, G.R. No. L-28865 (1972)]
U.P. LAW BOC CRIMINAL PROCEDURE
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
[R.A. 296]
Erroneous mode of appeal
In the case of People v. Resuello [GR No. L-30165
(1969)], the contention of the adverse party that the
ordinary appeal filed by appellant 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
requiring the appellant to file the necessary petition
for review on certiorari which is also a form of appeal.
Decision if opinion is equally divided
When the Supreme Court en banc is equally divided in
opinion or the necessary majority cannot be had on
whether to acquit the appellant, the case shall again be
deliberated upon and if no decision is reached after
re-deliberation, the judgment of conviction of the
lower court shall be reversed and the accused
acquitted [Sec. 3, Rule 125]
4. Effect of Appeal by Any of
Several Accused
General rule:
a. An appeal taken by one or more of several
accused shall not affect those who did not appeal.
b. As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
[Sec. 11, Rule 122]
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, G.R. No. 107797
(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 [Sec. 11, Rule 122;
People v. Gandia, G.R. No. 175332 (2008)]
The appeal of the offended party from the civil aspect
shall not affect the criminal aspect of the judgment or
order appealed from [Sec. 11, Rule 122]
Page 375 of 481
REMEDIAL LAW
5. Grounds for Dismissal of
Appeal
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 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, G.R. No. L- 41115 (1982)]
The prosecution cannot appeal from a judgment of
acquittal [Central Bank v. CA, G.R. No. 41859 (1989)]
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, G.R.
No. 41859 (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 [People v. Sandiganbayan, G.R. No.
174504 (2011), citing People v. Nieto, 103 Phil. 1133]
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, G.R. No. L-13334 (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, G.R. No. L-9551 (1956)]
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, G.R. No. L-9072
(1956)]
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

N. Search and Seizure Directed upon acts of the government, not

1. Nature of Search Warrant
In general
It is an order in writing; issued in the name of the
People of the Philippines; signed by a judge; and
directed to a peace officer, commanding him to
search for personal property described in the warrant
and bring it before the court [Sec. 1, Rule 126]
Nature
A search warrant is in the nature of a criminal process
akin to a writ of discovery, employed by the state to
procure relevant evidence of a crime [Malaloan v. CA,
G.R. No. 104879 (1994)]
It is not available to individuals in the course of civil
proceedings.
It is interlocutory in character – it leaves something
more to be done, which is the determination of the
guilt of the accused.
Constitutional safeguard
No search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after the examination under
oath/affirmation of the complaint and the witness he
may produce, and particularly describing the place to
be searched, and the things/persons to be seized [Sec.
2, Art. III, Constitution]
private persons
The constitutional protection is directed against the
acts of the government and its agents, not private
persons [People v. Marti, G.R. No. 81561 (1991)]
However, if the private person is acting upon orders
of government officials, the principle of agency
applies, because in fact such private person is acting
in the interest of government, and is therefore subject
to the prohibition against unreasonable searches and
seizures.
General rule: Search of property is unreasonable unless
it has been authorized by a valid search warrant.
Exceptions:
a. Search incidental to a lawful arrest;
b. Consented search;
c. Search of moving vehicle;
d. Checkpoints;
e. Plain view;
f. Stop and frisk;
g. Customs search;
h. Other exceptions, such as exigent circumstances,
buy-bust operations, and private searches.

Under the exclusionary rule, any evidence obtained

in violation of this is inadmissible for any purpose in
any proceeding [Sec. 3, 2nd par., Art. III, Constitution]

The constitutional guarantee is not a blanket

prohibition against all searches and seizures. It
operates only against “unreasonable” searches and
seizures.

What constitutes a reasonable or unreasonable search

or seizure in any particular case is purely a judicial
question, determinable from a consideration of the
circumstances involved, including the purpose of the
search, the presence or absence of probable cause, the
manner in which the search and seizure was made, the
place or thing searched, and the character of the
articles procured [Rodriguez v. Villamiel, L-44328
(1937)]

Page 376 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

2. Distinguish From Warrant of Arrest

Search warrant
Order in writing issued in the name of the
People of the Philippines, signed by the
Nature and
judge and directed to the peace officer to
purpose
search personal property described therein
and to bring it to court [Sec. 1, Rule 126]
The judge must personally examine in the
form of searching questions and answers,
Determination under oath, the complainant and witnesses
of Probable he may produce on facts personally known
cause to them and attach to the record their sworn
statements, together with the affidavits
submitted [Sec. 5, Rule 126]
It must particularly describe the place to be
searched and the things to be seized [Sec. 2,
Form
Art. III, Constitution], which may be
anywhere in the Philippines [Sec. 4, Rule 126]
The warrant must direct that it be served in
the day time, unless the affidavit asserts that
the property is on the person or in the place
When
ordered to be searched, in which case a
executed
direction may be inserted that it be served at
any time of the day or night [Sec. 9, Rule
126]
Warrant of arrest
Order directed to the peace officer to
execute the warrant by taking the person
stated therein into custody that he may be
bound to answer for the commission of the
offense
Sec. 2, Art. III of the Constitution does not
mandatorily require the judge to personally
examine the complainant and her witnesses.
Instead, he may opt to personally evaluate
the report and supporting documents
submitted by the prosecutor or he may
disregard the prosecutor’s report and require
the submission of supporting affidavits of
witnesses [People v. Grey,, G.R. No. 180109
(2010), citing Soliven v. Makasiar, G.R. No. L-
82585 (1988)]
It must particularly describe the person to be
arrested [Sec. 2, Art. III, Constitution]
No such limitation under Sec. 2, Art. III,
Constitution and Rule 113
Does not expire

The 10-day period referred to in Sec. 4, Rule

Valid for 10 days from its date [Sec. 10, Rule
Validity 113 refers to the time within which the head
126]
of the office to whom the warrant of arrest
was delivered for execution shall cause the
warrant to be executed.

3. Application for Search However, if the criminal action has already been filed,
the application shall only be made in the court where
Warrant; Where Filed the criminal action is pending [Sec. 2, Rule 126]

General rule: It may be filed in any court within whose
territorial jurisdiction the crime was committed.
Exception: For compelling reasons, which must be
stated in the application, it may also be filed:
a. If the place of the commission of the crime is
known, any court within the judicial region where
the crime was committed
b. Any court within the judicial region where the
warrant shall be enforced
Under A.M. No. 03-8-02-SC, Executive Judges and,
whenever they are on official leave of absence or are
not physically present in the station, the Vice-
Executive Judges of Manila and Quezon City RTCs
shall have authority to act on applications for search
warrants involving
a. Heinous crimes
b. Illegal gambling
c. Illegal possession of firearms and ammunitions
d. Violations of the Comprehensive Dangerous
Drugs Act of 2000

Page 377 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
e. Violations of the Intellectual Property Code
f. Violations of the Anti-Money Laundering Act of
2001
g. Violations of the Tariff and Customs Code, and
h. Other relevant laws that may hereafter be enacted
by Congress and included herein by the Supreme
Court.
Substance of application
A search warrant shall not issue except
a. Upon probable cause
b. In connection with one specific offense
c. To be determined personally by the judge
d. After examination under oath or affirmation of
the complainant and the witness he may produce
e. Particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines [Sec. 4, Rule 126]
Issuance and form of search warrant
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 the Rules [Sec. 6, Rule 126]
Thus, the search warrant must be in writing and
contain
a. Name of person against whom it is directed
b. Offense for which it was issued
c. The place to be searched, and
d. The description of the specific things to be seized
e. A directive to law enforcement officers to search
and seize and for them to bring in court the
things seized
f. Signature of the judge issuing it
Validity of the search warrant
The search warrant is valid for 10 days from its date.
Thereafter, it shall be void [Sec. 10, Rule 126]
The lifetime of the search warrant also ends when a
return has already been made [Mustang Lumber v. CA,
G.R. No. 104988 (1996)]
SERVICE OF THE 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 or
window of a house or any part of a house or anything
therein to execute the warrant to liberate himself or
Page 378 of 481
REMEDIAL LAW
any person lawfully aiding him when unlawfully
detained therein [Sec. 7, Rule 126]
Knock and announce principle
Generally, officers executing a search must do the
following acts:
a. Announce their presence;
b. Identify themselves to the accused and to the
persons who rightfully have possession of the
premises to be searched;
c. Show to them the search warrant; and
d. Explain the warrant in a language or dialect
known and understood by them
[People v. Huang Zen Hua, G.R. No. 139301 (2004)]
When unannounced intrusion permissible
a. Person in the premises refuses to open it upon
demand;
b. Person in the premises already knew of the
identity and authority of the officers;
c. When the officers have an honest belief that
there is an imminent danger to life and limb;
d. When those in the premises, aware of the
presence of someone outside, are then engaged
in activities which justifies the officers to believe
that an escape or the destruction of evidence is
imminent.
[People v. Huang Zen Hua, G.R. No. 139301 (2004)]
Search 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 [Sec. 8,
Rule 126]
Time of making search
General Rule: The search shall be made at day time
Exception: Unless the 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 [Sec.
9, Rule 126]
A search warrant violates Sec. 9, Rule 126 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, causing untold conveniences to the
person searched.
Where a search is to be made during the night time,
the authority for executing the same at that time
U.P. LAW BOC CRIMINAL PROCEDURE
should appear in the directive on the face of the
search warrant [Asian Surety v. Herrera, G.R. No. L-
25232 (1973)]
POST-SERVICE
Receipt of property seized
a. If the lawful occupant is present: the officer
seizing the property under the search 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.
b. If the lawful occupant is not present: the
officer seizing the property under the search
warrant 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
[Sec. 11, Rule 126]
Delivery and inventory of property
a. 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.
b. Ten 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.
c. If the return has been made, the judge shall
ascertain whether Sec. 11, Rule 126, on giving or
receipts, has been complied with and shall require
that the property seized be delivered to him. The
judge shall see to it that delivery has been
complied with.
d. 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.
[Sec. 12, Rule 126]
The court which issued the search warrant acquires
jurisdiction over the items seized under the said
warrant. Goods seized lawfully on the basis of the said
warrant or its accepted exceptions are in custodia legis.
Only that court which issued the warrant may order
the release or disposition thereof. The jurisdiction,
custody and control of the court over the items seized
cannot be interfered with. Custody lasts until the
institution of the appropriate criminal action with the
proper court [Tenorio v. CA, G.R. No. 110604 (2003)]
Page 379 of 481
REMEDIAL LAW
4. Probable Cause (in Search
Warrants)
Probable cause means 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
[Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]
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. The probable cause must refer only to one
specific offense [Roan v. Gonzales, G.R. No. 71410
(1986)]
Note: Probable cause to arrest does not necessarily
involve a probable cause to search and vice-versa.
5. Personal Examination by
Judge of the Applicant and
Witnesses
Aside from the requirements mandated by Sec. 4,
Rule 126, the Rules require the judge to comply with
a specific procedure in the conduct of the
examination of the complainant and the witnesses he
may produce
a. The examination must be personally conducted
by the judge;
b. The examination must be in the form of
searching questions and answers;
c. The complainant and the witnesses shall be
examined on those facts personally known to
them;
d. The statements must be in writing and under
oath; and
e. The sworn statements of the complainant and the
witnesses, together with the affidavits submitted,
shall be attached to the record.
[Sec. 5, Rule 126]
Searching questions and answers
Searching questions are such questions which have
the tendency to show the commission of a crime and
the perpetrator thereof [Luna v. Plaza, G.R. No. 27511
(1968)]
In search cases, the application must be supported by
substantial evidence
U.P. LAW BOC CRIMINAL PROCEDURE
a. That the items sought are in fact seizable by
virtue of being connected with criminal activity;
and
b. That the items will be found in the place to be
searched
[People v. Tuan, G.R. No. 176066 (2010)]
A search warrant issued by a judge who did not ask
searching questions but only leading ones and in a
general manner is invalid [Uy v. BIR, G.R. No. 129651
(2000)]
Although there is no hard-and-fast rule governing
how a judge should conduct his investigation, it is
axiomatic that the examination must be probing and
exhaustive, not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not simply
rehash the contents of the affidavit but must make his
own inquiry on the intent and justification of the
application [Yao v. People, G.R. No. 168306 (2007)]
A warrant not based on personal knowledge is void.
Examination under oath
The judge must examine under oath or affirmation
the complainant and the witness he may produce [Sec.
2, Art. III, Constitution]
Oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an
act faithfully and truthfully. The oath required must
refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because
the purpose thereof is to convince the committing
magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence
of probable cause [Alvarez v. CFI, G.R. No. 45358
(1937)]
Mere affidavits of the complainant or his witnesses
are not sufficient. The examining judge has to take
depositions in writing of the complaint or his
witnesses, and attach the same to the record [Prudente
v. Judge Dayrit, G.R. No. 82870 (1989)]
6. Particularity of Place to Be
Searched and Things to Be
Seized
Warrant issued must particularly describe the place to
be searched and the things to be seized [Sec. 2, Art.
III, Constitution]
Page 380 of 481
REMEDIAL LAW
Particularity of place to be searched
Description of place to be searched is sufficient if the
officer with the search warrant can, with reasonable
efforts, ascertain and identify the place intended
[People v. Veloso, G.R. No. L-23051 (1925)]
An apparent typographical error will not necessarily
invalidate the search warrant, as long as the
application contains the correct address [Burgos v. Chief
of Staff, G.R. No. L-64261 (1984)]
Particularity of things to be seized
The scope of the search warrant is limited to personal
property. It does not issue for seizure of immovable
properties [see Sec. 3, Rule 126]
General rule: Things to be seized must be described
particularly. General search warrants are not allowed.
Otherwise, the search and seizure of the items in the
implementation of such search warrant is illegal and
the items seized are inadmissible in evidence [Sec. 2,
Art. III, Constitution]
A general warrant is defined as "(a) search or arrest
warrant that is not particular as to the person to be
arrested or the property to be seized." It is one that
allows the "seizure of one thing under a warrant
describing another" and gives the officer executing
the warrant the discretion over which items to take
[Worldwide Web Corporation v. People, G.R. No. 161106
(2014)]
Such discretion is abhorrent, as it makes the person,
against whom the warrant is issued, vulnerable to
abuses. Our Constitution guarantees our right against
unreasonable searches and seizures, and safeguards
have been put in place to ensure that people and their
properties are searched only for the most compelling
and lawful reasons [Worldwide Web Corporation v. People,
G.R. No. 161106, January 13, 2014]
Search warrants 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,
G.R. No. L-19550 (1967)]
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, G.R. No.
78631 (1993)]
U.P. LAW BOC CRIMINAL PROCEDURE
Exceptions:
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 search warrant could issue [People v.
Rubio, G.R. No. L-35500 (1932)]
The general description of the documents listed in the
search warrant does not render it void if it is severable,
and those items not particularly described may be cut
off without destroying the whole [Uy v. BIR, G.R. No.
129651 (2000)]
Although the warrant was defective in the respects
noted, it does not follow that it was invalid as a whole.
It would be a drastic remedy indeed if a warrant is to
be invalidated in toto because the judge erred in
authorizing a search for other items not supported by
the evidence [People v. Salinguit, 356 SCRA 683 (2001)]
Note: The law does not require that the things must be
described in precise and minute detail as to leave no
room for doubt on the part of the searching
authorities. Otherwise, it would be virtually
impossible for the applicants to obtain a warrant as
they would not know exactly what kind of things they
are looking for [Vallejo v. People, G.R. No. G.R. No.
156413 (2004), Kho v. Makalintal, G.R. Nos.. 94902-06
(1999)]
7. Personal Property to be
Seized
What may be seized
a. Personal property subject of the offense;
b. Personal property stolen/embezzled and other
proceeds/fruits of the offense;
c. Personal property used or intended to be used as
the means of committing an offense
[Sec. 3, Rule 126]
The rule does not require that the property to be
seized should be owned by the person against whom
the search warrant is directed. It is sufficient that the
person against whom the warrant is directed has
control of possession of the property sought to be
seized [Burgos v. Chief of Staff, G.R. No. L-64261
(1984)]
8. Exceptions to the Search
Warrant Requirement
a. Search Incidental to Lawful Arrest
Page 381 of 481
REMEDIAL LAW
b. Consented Search
c. Search of a Moving Vehicle
d. Checkpoints; Body Checks in Airport
e. Plain View
f. Stop and Frisk
g. Enforcement of Customs Law
h. Other Exceptions
1. Exigent and Emergency Circumstances
2. Buy-Bust Operation
3. Private Searches
Items (1) to (3), (5) to (7) and (8)(a) are enumerated in
Veridiano v. People [G.R. No. 200370 (2017)] The other
items are sanctioned by the SC in other cases. See the
discussion below.
a. Search incidental to lawful arrest
In a search incidental to an arrest, even without a
warrant, the person arrested may be searched for:
1. Dangerous weapons
2. Anything which may have been used in the
commission of an offense, or
3. Anything which may constitute proof in the
commission of the offense [Sec. 13, Rule 126]
Purpose
When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order
to remove any weapon that the latter might use in
order to resist arrest or effect his escape. Otherwise,
the officer’s safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely
reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction [People v.
Calantiao, G.R. No. 203984 (2014), citing Valeroso v.
CA, G.R. No. 164815 (2009)]
Scope
A valid arrest allows the seizure of evidence or
dangerous weapons either on the person of the one
arrested or within the area of his immediate control.
The phrase “within the area of his immediate control”
means the area from within which he might gain
possession of a weapon or destructible evidence. A
gun on a table or in a drawer in front of one who is
arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person
arrested [People v. Calantiao, G.R. No. 203984 (2014),
citing Valeroso v. CA, G.R. No. 164815 (2009)]
U.P. LAW BOC CRIMINAL PROCEDURE
“Lawful arrest”
Although, generally, a warrant is necessary for a valid
arrest, Sec. 5, Rule 113 provides the exceptions such
as arrests in flagrante delicto, arrests effected in hot
pursuit, and arrests of escaped prisoners [People v.
Mariacos, G.R. No. 188611 (2010)]
In searches incident to a lawful arrest, the arrest must
precede the search; generally, the process cannot be
reversed. Nevertheless, a search substantially
contemporaneous with an arrest can precede the
arrest if the police have probable cause to make the
arrest at the outset of the search [Sy v. People, G.R. No.
182178 (2011) citing People v. Racho (erroneously
referred to as Rancho), G.R. No. 186529 (2010)]
When an individual is lawfully arrested, he/she may
be frisked for concealed weapons that may be used
against the arresting officer and all unlawful articles
found in his person, or within his immediate control,
may be seized [OCA v. Barron, A.M. No. RTJ-98-1420
(1998)]
Illegal search
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 [People v.
Aruta, G.R. No. 120195 (1998)]
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, G.R.
No. 141176 (2004)]
b. Consented search
Jurisprudence requires that in case of consented
searches or waiver of the constitutional guarantee
against obtrusive searches, it must first appear that:
1. The right exists;
2. The person involved had knowledge, either
actual or constructive, of the existence of such
right; and
3. The said person had an actual intention to
relinquish the right.
[People v. Nuevas, G.R. No. 170233 (2007)]
Consent to a search is not to be lightly inferred, but
must be shown by clear and convincing evidence. It
is the State which has the burden of proving, by clear
and positive testimony, that the necessary consent
was obtained and that it was freely and voluntarily
given [Valdez v. People, G.R. No. 170180 (2007)]
Page 382 of 481
REMEDIAL LAW
A peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law
[People v. Nuevas, G.R. No. 170233 (2007)]
Consented search is reasonable only if kept within the
bounds of the actual consent. A person’s 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.
Relevant to the determination of consent are the
following characteristics of the person giving consent
and the environment in which consent is given:
1. The age of the defendant;
2. Whether he was in a public or secluded location;
3. Whether he objected to the search or passively
looked on;
4. The education and intelligence of the defendant;
5. The presence of coercive police procedures;
6. The defendant's belief that no incriminating
evidence will be found;
7. The nature of the police questioning;
8. The environment in which the questioning took
place; and
9. The possibly vulnerable subjective state of the
person consenting.
[Caballes v. CA, G.R. No. 136292 (2002)]
c. Search of a moving vehicle
When a vehicle is stopped and subjected to an
extensive search, such a warrantless search should be
constitutionally permissible only if the officers
conducting the search have reasonable or probable
cause to believe, before the search, that either:
1. the motorist is a law-offender; or
2. they will find the instrumentality or evidence
pertaining to a crime in the vehicle to be searched
[Caballes v. CA, G.R. No. 136292 (2002)]
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 [People v. Tuazon, G.R. No. 175783 (2007)]
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
U.P. LAW BOC CRIMINAL PROCEDURE
vehicles are instruments or proceeds of some criminal
offense.
The search and seizure without warrant of vessel and
aircrafts for violation of customs laws has been a
traditional exception to the requirement of search
warrant [Roldan v. Arca, G.R. No. L-25434 (1975)]
When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally
permissible only if the officers made it upon probable
cause, i.e., upon a belief, reasonably arising out of
circumstances known to the seizing officer, that an
automobile or other vehicle contains a[n] item, article
or object which by law is subject to seizure and
destruction [People v. Breis, G.R. No. 205823 (2015),
citing People v. Libnao, G.R. No. 136860 (2003)]
d. Checkpoints; body checks in
airport
Searches conducted in checkpoints are valid as long
as they are warranted by the exigencies of public order
and conducted in a way least intrusive to motorists.
Although the general rule is that motorists and their
vehicles as well as pedestrians passing through
checkpoints may only be subjected to a routine
inspection, vehicles may be stopped and extensively
searched when there is probable cause which justifies
a reasonable belief of the men at the checkpoints that
either the motorist is a law offender or the contents
of the vehicle are or have been instruments of some
offense [People v. Vinecario, G.R. No. 141137 (2004)]
Routine inspections are not regarded as violative of
an individual’s right against unreasonable search
1. Where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public
fair grounds
2. officer simply looks into a vehicle
3. officer flashes a light therein without opening
car’s doors
4. Occupants not subjected to a physical search
5. Inspection is limited to visual search or visual
inspection, or
6. Routine check is conducted in a fixed area
[Caballes v. CA, G.R. No. 136292 (2002)]
Page 383 of 481
REMEDIAL LAW
e. Plain View Situation
Requisites
1. A prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties
2. Evidence was inadvertently discovered by the
police who have a right to be where they are
3. Evidence must be immediately and apparently
illegal (i.e., drug paraphernalia)
4. Plain view justified mere seizure of evidence
without further search
[People v. Martinez, G.R. No. 191366 (2010)]
It is clear that an object is in plain view if the object
itself is plainly exposed to sight. Where the object
seized was inside a closed package, the object is not in
plain view and therefore cannot be seized without a
warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may
be seized [People v. Doria, G.R. No. 125299 (1999)]
Limitations
1. It may not be used to launch unbridled searches
and indiscriminate seizures
2. It does not extend to a general exploratory search
made solely to find evidence of defendant’s guilt
[People v. Musa, G.R. No. 96177 (1993)]
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
Even if an object is in plain view, before it can be
seized without a search warrant, 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 as long
as its discovery was inadvertent, and the item was
incriminating [United Laboratories v. Isip, G.R. No.
163858 (2005)]
Rationale
The doctrine is a recognition of the fact that when the
police come across immediately recognizable
incriminating evidence not named in the warrant, they
should not be required to close their eyes to it,
U.P. LAW BOC CRIMINAL PROCEDURE
regardless of whether it is evidence of the crime they
are investigating or evidence of some other crime.
The doctrine is also a recognition of the fact that it
would be needless inconvenience to require the police
to obtain another warrant [US v. Gray, 484 F.2d 352
(6th Cir., 1978)]
f. Stop and frisk situation
Stop and frisk is a limited protective search of outer
clothing for weapon [Malacat v. CA, G.R. No. 123595
(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, he is entitled to conduct a
stop and frisk search.
Where in the course of investigating this behavior he
identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial
stages 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 the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him [Malacat
v. CA, G.R. No. 123595 (1997), citing Terry v. Ohio,
392 U.S. 1 (1968)]
Genuine reason required
Other notable points of Terry are that while probable
cause is not required to conduct a “stop and frisk,” it
nevertheless holds that mere suspicion or a hunch will
not validate a “stop and frisk.” A genuine reason must
exist, in light of the police officer’s experience and
surrounding conditions, to warrant the belief that the
person detained has weapons concealed about him
[Malacat v. CA, G.R. No. 123595 (1997), citing Terry v.
Ohio, 392 U.S. 1 (1968)]
Test of reasonableness
The test of reasonableness is the concept of
suspiciousness present in the situation the officer
finds himself. This is subject to the experiences of the
officer for them to determine whether the situation
does feel suspicious based on the facts presented to
them. In jurisprudence, seeing a person with red eyes
or is walking in swaying manner would amount to a
suspicious situation [People v. Cogaed, G.R. No. 200334
(2015)]
Page 384 of 481
REMEDIAL LAW
Dual purpose of stop-and-frisk
1. The general interest of effective crime
prevention and detection, which underlies the
recognition that a police officer may, under
appropriate circumstances and in an appropriate
manner, approach a person for purposes of
investigating possible criminal behavior even
without probable cause; and
2. The more pressing interest of safety and self-
preservation which permit the police officer to
take steps to assure himself that the person with
whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be
used against the police officer.
[Malacat v. CA, G.R. No. 123595 (1997)]
Stop and Frisk v. Search Incidental to Lawful
Arrest
Stop and frisk is usually confused with search
incidental to lawful arrest. The latter happens when
one is caught in flagrante delicto, the former is done in
order to prevent a crime from occurring [People v.
Cogaed, G.R. No. 200334 (2015)]
"Stop and frisk" searches are also conducted to
prevent the occurrence of a crime and should be used
when dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably
there is no time to secure a search warrant [Manalili v.
CA, G.R. No. 113447 (1997)]
g. Enforcement of customs law
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,
G.R. No. L-19259 (1966)]
The Customs Modernization and Tariff Act (CMTA)
authorizes customs officers to:
1. Enter, pass through or search any land,
enclosure, warehouse [Sec. 219, CMTA]
2. Inspect/search/examine any vessel or 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 [Sec. 221, CMTA]
General rule: The CMTA does not require a warrant for
such searches
Exception: In the search of a dwelling house, a search
warrant is required [Sec. 220, CMTA]
U.P. LAW BOC CRIMINAL PROCEDURE
Note: RTCs are devoid of any competence to pass
upon the validity or regularity of seizure and forfeiture
proceedings conducted by the Bureau of Customs
and to enjoin or otherwise interfere with these
proceedings. It is the Collector of Customs, sitting in
seizure and forfeiture proceedings, who has exclusive
jurisdiction to hear and determine all questions
touching on the seizure and forfeiture of dutiable
goods [Asian Terminals, Inc. v. Bautista-Ricafort, G.R.
No. 166901 (2006)]
h. Other exceptions
Exigent and emergency circumstances
In one case, there was a prevailing general chaos and
disorder because of an ongoing coup, and the raid of
the office/building was precipitated by an 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 [People v. de Gracia, G.R. Nos.. 102009-10
(1994)]
Buy-bust operation
This is a form of entrapment legally employed by
peace officers as an effective way of apprehending
drug dealers in committing an offense. There is no
need for a search warrant (or warrant of arrest)
because the accused is caught in flagrante delicto.
Private searches
In one case, the evidence was obtained by a private
person acting in a private capacity, while performing
company standard operating procedures and without
state participation and intervention. It was held that
the constitutional rights cannot be invoked when
there is no government interference [People v. Marti,
G.R. No. 81561 (1991)]
9. Remedies From Unlawful
Search And Seizure
Who may avail
Only the party whose rights have been impaired
thereby; the objection to an unlawful search and
seizure is purely personal and cannot be availed of by
third parties [Stonehill v. Diokno, G.R. No. L-19550
(1967); Santos v. Pryce Gases Inc., G.R. No. 165122
(2007)]
Page 385 of 481
REMEDIAL LAW
REMEDIES
a. Employ any means to prevent the search
Without a search warrant, the officer cannot
insist on entering a citizen’s premises. If he does
so, he becomes an ordinary intruder.
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, G.R. No. L-16968 (1921)]
b. File criminal action against officer
A public officer/employee who procures a search
warrant without just cause is criminally liable
under Art. 129, RPC, on search warrants
maliciously obtained and abuse in the service of
those legally obtained.
c. File a motion to quash the illegal warrant
This remedy is employed if search is not yet
conducted.
Who may file
1. Person who will potentially be injured;
2. Person to be searched;
3. Owner of the property to be searched.
Where to file
1. Motions to quash a search warrant and/or to
suppress evidence obtained thereby may be filed
in and acted upon only by the court where the
action has been instituted.
2. If no criminal action has been instituted,
motion may be filed in and resolved by the court
that issued the warrant.
3. If such court failed to resolve the motion, and a
criminal case is subsequently filed in another
court, the motion shall be resolved by the latter
court.
[Sec. 14, Rule 126]
Grounds
A MTQ a search warrant may be based on grounds
extrinsic of the search warrant, such as (1) the place
searched or the property seized are not those specified
or described in the search warrant; and (2) there is no
probable cause for the issuance of the search warrant
[Abuan v. People, G.R. No. 168773 (2006)]
In Abuan v. People [G.R. No. 168773 (2006)], the SC
ruled that the accused did not waive her right to file a
MTQ the search warrant in question and for the
suppression of the evidence seized by the police
U.P. LAW BOC CRIMINAL PROCEDURE
officers. She reserved her right to question the
warrant when she filed her motion for bail and
rejected the prosecution’s proposal during pre-trial to
admit the validity of the warrant. She adduced her
evidence supporting her motion during the trial and
objected to the admission of the warrant and the
evidence confiscated.
Failure to file motion to quash
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 as evidence of the personal
property seized under the warrant if the same is
offered therein for said purpose. Since two separate
courts with different participations are involved in
this situation, a MTQ a search warrant and a motion
to suppress evidence are alternative and not
cumulative remedies. In order to prevent forum
shopping, a motion to quash shall consequently be
governed by the omnibus motion rule, provided,
however, that objections not available, existent or
known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to
suppress. The resolution of the court on the motion
to suppress shall likewise be subject to any proper
remedy in the appropriate higher court [Malaloan v.
CA, G.R. No. 104879 (1994)]
d. File a motion to return things seized
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 in a motion to quash.
An accused may file a motion to suppress evidence if
he is not among the persons who can file a motion to
quash.
General rule: Goods seized by virtue of an illegal
warrant must be returned.
Exception: The illegality of the search warrant does not
call for the return of the things seized, the possession
of which is prohibited by law [Castro v. Pabalan, G.R.
No. L-28642 (1976)]
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 search warrant although the criminal case for estafa
Page 386 of 481
REMEDIAL LAW
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, G.R. No.
50025 (1980)]
e. Motion to suppress evidence
This refers to a motion to suppress as evidence the
objects illegally taken pursuant to the exclusionary
rule, which states that any evidence obtained through
unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding
CIVIL AND CRIMINAL LIABILITY FROM
UNREASONABLE SEARCH AND SEIZURE
The following offenses may result from unreasonable
search and seizure
a. Violation of domicile [Art. 128, RPC]
b. Search warrant maliciously obtained [Art. 129,
RPC]
c. Searching domicile without witnesses [Art. 130,
RPC]
d. Unjust interlocutory order [Art. 206, RPC]
The public officer or employee may be held liable for:
a. Entering without authority; against the will;
refuses to leave
b. A search warrant procured without just cause or
if with just cause, exceeds his authority or uses
unnecessary severity of force
c. Conducting the search without the required
witnesses.
The judge may be held liable for
a. Knowingly rendering an unjust interlocutory
order [Art. 206, RPC]
b. Inexcusable negligence or ignorance [Art. 205,
RPC]
It may also result in civil liability for
a. Violation of rights and liberties [Art. 32(9), CC]
b. Malicious prosecution and acts referred to Art. 32
[Art. 2218, CC]
Malice or bad faith is not required.
Not only official actions, but all persons who are
responsible for the violation are liable for damages
[MHP Garments v. CA, G.R. No. 86720 (1994)]
U.P. LAW BOC CRIMINAL PROCEDURE
Waiver of immunity against unreasonable search
and seizure
The constitutional immunity against unreasonable
searches and seizure is a personal right that may be
waived expressly/impliedly only by the person whose
right is being invaded or one who is expressly
authorized to do so in his behalf [Pasion v. Locsin, G.R.
No. L-45950 (1938)]
Requisites
a. It must appear that the right exists
b. The person involved had knowledge (actual or
constructive) of the existence of such right
c. The person had an actual intention to relinquish
the right
[Pasion v. Locsin, G.R. No. L-45950 (1938)]
Page 387 of 481
REMEDIAL LAW
O. Provisional Remedies
1. Nature
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 [Sec. 1, Rule 127]
If civil action has been waived, reserved, or instituted
separately, provisional remedy applicable may not be
availed of in criminal action. Instead, provisional
remedy should be applied for in separate civil action
instituted [Riano 571, 2011 Updated Ed.]
If the civil action is suspended on account of filing of
the criminal action, the court with which the civil case
is filed is not thereby deprived of its authority to issue
auxiliary writs that do not go into the merits of the
case [Ramcar, Inc v. de Leon, G.R. No. L-1329 (1947)]
Provisional remedies are not available when
a. Offended party has waived the civil claim
b. Offended party has reserved the civil claim
c. Offended party has already instituted a separate
civil action
d. Criminal action carries with it no civil liability.
2. Kinds of Provisional
Remedies
In general
Reference to provisional remedies in Sec. 1, Rule 127
is made in general terms, hence preliminary
injunction, preliminary attachment, receivership,
replevin or support pendente lite may be availed of
[Riano 572, 2011 Updated Ed.]
However, only preliminary attachment is provided for
under the same rule.
The accused may present evidence to prove his
defense and damages, if any, arising from the issuance
of a provisional remedy in the case [Sec. 11(b), Rule
119]
a. Preliminary attachment
When proper
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
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

satisfaction of any judgment that may be recovered
from the accused in the following cases:
1. When the accused is about to abscond from the
Philippines
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused
who is a public/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
3. When the accused has concealed, removed or
disposed of his property, or is about to do so
4. When the accused resides outside the Philippines
[Sec. 2, Rule 127]
Issuance and implementation
The writ may be issued ex parte before acquisition of
jurisdiction over the accused [Cuarter v. CA, G.R No.
102448 (1992))
However, it may be enforced only after acquisition of
jurisdiction over the person of the accused [Gonzalez
v. State Properties, G.R. No. 140765 (2001)]
1. To afford adequate protection to the
constitutional rights of the accused
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;
3. When there is a pre-judicial question which is sub
judice
4. When the acts of the officer are without or in
excess of authority
5. Where the prosecution is under an invalid law,
ordinance or regulation
6. When double jeopardy is clearly apparent
7. Where the court has no jurisdiction over the
offense
8. Where it is a case of persecution rather than
prosecution
9. Where the charges are manifestly false and
motivated by the lust for vengeance
10. When there is clearly no prima facie case against
the accused and a motion to quash on that
ground has been denied, and
11. Preliminary injunction has been issued by the
Supreme Court to prevent the threatened
unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]

A public prosecutor has the authority to apply for

preliminary attachment to protect the interest of the
P. Revised Guidelines for
offended party, particularly considering that the
corresponding civil liability of the culprits is to be
Continuous Trial of
determined therein, no reservation having been made Criminal Cases
of the right to enforce it in a separate civil action
[Santos v. Judge Flores, G.R. No. L-18251 & L-18252 A.M. No. 15-06-10-SC
(1962)]
Objectives
No notice to the adverse party, or hearing on the 1. To protect and advance the constitutional right
application is required before a writ of preliminary of persons to a speedy disposition of their
attachment may issue as a hearing would defeat the criminal cases;
purpose of the provisional remedy. The time which 2. To reinforce and give teeth to the existing rules
such hearing would take could be enough to enable on criminal procedure and other special rules
the defendant to abscond or dispose of his property prescribing periods for court action and those
before a writ of attachment may issue [Mindanao which promote speedy disposition of criminal
Savings and Loan Assoc. v. CA, G.R. No. 84481 (1989)] cases; and
3. To introduce innovations and best practices for
b. Injunction the benefit of the parties.

General rule: Criminal prosecution may not be stayed Applicability

or restrained by injunction, preliminary or final. ▪ All newly-filed criminal cases (filed after
effectivity date), including those governed by
Exceptions: Special Laws and Rules1, in the :

1 Comprehensive Dangerous Drugs Act of 2002, Cybercrime and Criminal Cases cognizable by Family Courts and
Prevention Act of 2012, Rules of Procedure for Environmental Commercial Courts.
Cases, Rules of Procedure for Intellectual Property Rights Cases,

Page 388 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

o the 1st and 2nd Level Courts provided for under two (2) calendar days
o Sandiganbayan Rule 137) from date of their filing
o Court of Tax Appeals
▪ Pending criminal cases with respect to the Prohibited, except if it is
remainder of the proceedings based on:
MOTION FOR 1) acts of God
 The Revised Guidelines SHALL NOT APPLY POSTPONEMENT 2) force majeure
to criminal cases filed under the Rule on 3) physical inability of
Summary Procedure, UNLESS otherwise the witness to
specifically provided appear and testify

Effectivity date: 1 September 2017 If the Motion is granted

based on such
Effect of non-compliance: Non-compliance with exceptions, the moving
the Revised Guidelines, including failure to observe party shall be warned
the timelines and deadlines herein provided, is a that the presentation of
ground for DISCIPLINARY ACTION. its evidence must still be
finished on the dates
PROCEDURE: previously agreed upon.
PROHIBITED shall be DENIED
HEARING DAYS AND CALENDAR DAYS MOTION outright before the
scheduled arraignment
WHEN PURSUANT without need of
TO comment and/ or
Trial shall be held opposition
from Monday MERITORIOUS MOTION
to Thursday Administrative Comment of the adverse party
Circular No. 3- o shall be filed within a non-extendible period of
cases shall be 99 ten (10) calendar days from notice/receipt of
called at the order of the court to file the same
exactly 8:30 o The court shall resolve the motion within a
A.M. and 2:00 non-extendible period of ten (10) calendar
P.M days from the expiration of the ten (10)-day
Hearing on period, with or without comment.
motions, o The court, at its discretion, may set the motion
arraignment shall be held Sec. 7, Rule 15, for hearing within a non-extendible period of
and pretrial, in the Rules of Court ten (10) calendar days from the expiration of
and morning of the ten (10)-day period to file comment, in
promulgation Fridays which case the same shall be submitted for
of decisions resolution after the termination of the hearing,
and shall be resolved within a non-extendible
NOTE: All courts shall ensure the posting of their period of ten (10) calendar days thereafter.
court calendars outside their courtrooms at least (1) o Reply and memorandum need not be
day before the scheduled hearings [OCA Circular No. submitted.
250-2015] Motion to discharge accused as state witness,
where the prosecution is required to present
MOTIONS evidence in support thereof [Sec. 17, Rule 119]
o shall be submitted for resolution from the
MOTION RESOLUTION/ termination of the hearing, and
COURT ACTION o shall be resolved within a non-extendible
MOTION FOR period of ten (10) calendar days thereafter
INHIBITION Shall be resolved The motion for reconsideration of the
(based on grounds immediately or within resolution of a meritorious motion

Page 389 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
oshall be filed within a non-extendible period of
five (5) calendar days from receipt of such
resolution, and
o the adverse party shall be given an equal period
of five (5) calendar days from receipt of the
motion for reconsideration within which to
submit its comment.
o Thereafter, the motion for reconsideration
shall be resolved by the court within a non-
extendible period of five (5) calendar days
fro1n the expiration of the five (5)-day period
to submit the comment.
NOTE: Motions that do not conform to the
requirements stated shall be considered
unmeritorious and shall be denied outright.
Prohibited Motions
a. Motion for judicial determination of probable
cause.
b. Motion
1. For preliminary investigation filed beyond
the five (5)-day reglementary period in
inquest proceedings [Sec. 6, Rule 112], or
2. When preliminary investigation is required
[Sec. 8, Rule 112], or allowed in inquest
proceedings and the accused failed to
participate despite due notice.
c. Motion for reinvestigation of the prosecutor
recommending the filing of information once the
information has been filed before the court
1. if the motion is filed without prior leave of
court;
2. when preliminary investigation is not
required under Sec. 8, Rule 112; and
3. When the regular preliminary investigation
is required and has been actually conducted,
and the grounds relied upon in the motion
are not meritorious, such as:
• issues of credibility,
• admissibility of evidence
• innocence of the accused
• lack of due process when the accused
was actually notified
d. Motion to quash information when the ground is
not one of those stated in Sec. 3, Rule 117.
e. Motion for bill of particulars that does not
conform to Sec. 9, Rule 116.
f. Motion to suspend the arraignment based on
grounds not stated under Sec. 11, Rule 116.
g. Petition to suspend the criminal action on the
ground of prejudicial question, when no civil case
has been filed, pursuant to Sec. 7, Rule 111.
Page 390 of 481
REMEDIAL LAW
Meritorious Motions: These are Motions that allege
plausible grounds supported by relevant documents
and/ or competent evidence, except those that are
already covered by the Revised Guidelines, such as:
1. Motion filed by the prosecution as a result of a
reinvestigation, reconsideration, and review; to
a. to withdraw information, or
b. to downgrade the charge in the original
information, or
c. to exclude an accused originally charged
therein
2. Motion to quash warrant of arrest;
3. Motion to suspend arraignment on the ground of
an unsound inental condition under Sec. ll(a),
Rule 116;
4. Motion to suspend proceedings on the ground of
a prejudicial question where a civil case was filed
prior to the criminal case under Sec. ll(b), Rule
116
5. Motion to quash information on the grounds
[under Sec. 3, par. (a), (b), (g), and (i), Rule 117]
a. that the facts charged do not constitute an
offense
b. lack of jurisdiction
c. extinction of criminal action or liability, or
d. double jeopardy
6. Motion to discharge accused as a state witness
under Sec. 17, Rule 119;
7. Motion to quash search warrant under Sec. 14,
Rule 126
8. motion to suppress evidence; and
9. Motion to dismiss on the ground that the
criminal case is a SLAPP under Rule 6 of the
Rules of Procedure for Environmental Cases.
CONSOLIDATIONS
When newly-filed criminal cases
involving offenses based on the same
NEWLY- facts or forming part of a series of
FILED offenses of similar character, are
CASES accompanied by a motion for
consolidation filed by the Office of the
Prosecutor
o The Executive Judge shall cause the raffle to
only one court which shall then resolve said
motion for consolidation, preferably on the
date of the arraignment and in the presence
of the accused and counsel.
In cases involving multiple accused
PENDING where a subsequent information is
CAXES WITH filed involving an accused who has
been subjected to further investigation
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

MULTIPLE by the Office of the Prosecutor over Waiver of Reading of the Information. In multiple
ACCUSED an incident which has the same cases, the court may allow a waiver of the reading of
subject matter as a prior the information upon:
information/ s against different ▪ The full understanding and express consent of
accused the accused and his/her counsel
o The said subsequent case when filed o consent shall be expressly stated in both
accompanied by a motion for consolidation ➢ the minutes/ certificate of
from the Office of the Prosecutor shall no arraign1nent
longer be raffled ➢ the order of arraignment
o The subsequent case shall be assigned ▪ The court’s personal examination of the accused
directly by the Executive Judge to the ▪ Explanation of the waiver to the accused in the
court where the earlier case is pending language or dialect known to him/her
o If the earlier case is already at the trial ▪ ensure the accused's full understanding of the
stage and witnesses have been presented, consequences of the waiver
the parties may be allowed to adopt the
evidence so far presented, without Arraignment Proper
prejudice to additional direct
examination questions and cross- 1. Plea bargaining
examination questions. shall
immediately
proceed,
ARCHIVING OF CASES Plea If the provided:
Bargaining accused a) the private
REVIVAL OF PROVISIONALLY DISMISSED Except in desires to offended
CASES Drug Cases enter a plea party in
of guilty to private
ARRAIGMENT AND PRE-TRIAL a lesser crimes, or
offense b) the
Once the court has acquired jurisdiction over the person of the arresting
Accused officer in
victimless
Schedule: The arraignment of the accused and the crimes
pretrial shall be set within the ff period, UNLESS a Is present to give
shorter period is provided by his/her consent
special law or Supreme Court circular. with the conformity
▪ within ten (10) calendar days from date of the of the public
court's receipt of the case for a detained accused prosecutor to the
▪ within thirty (30) calendar days from the date the plea bargaining
court acquires jurisdiction (either by arrest or
voluntary surrender) over a non-detained accused 2. Thereafter,
judgment shall
The court must set the arraignment of the accused in be immediately
the commitment order, in the case of detained rendered in the
accused, or in the order of approval of bail, in any same
other case. proceedings
Plea of If the
Notice: shall be sent to the accused, his/her counsel, Guilty to the accused Judgment shall be
private complainant or complaining law enforcement Crin1e pleads immediately
agent, public prosecutor, and witnesses whose names Charged in guilty rendered
appear in the information, for purposes of plea- the to the crime
bargaining, arraignment and pre-trial. Information charged in EXCEPT in those
the cases involving
information capital punishment

Page 391 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Where No If the The court shall If the accused the

Plea accused does immediately proceed does not enter a court shall immediately proceed
Bargaining not with the plea with the
or Plea of enter a plea arraignment and the of guilty, whether arraignment and the preliminary
Guilty of guilty, pretrial, in to a lesser offense conference, and thereafter refer
Takes Place whether to a accordance with ff: or to the case to
lesser the offense mediation. (See Annex 7)
offense or to 1. The schedule of charged in the
the offense the trial dates, information
charged in for both the
the prosecution and
information the accused, (see sample flowchart)
shall be
continuous and Conduct of Pre-Trial
within the ▪ Absence: The court shall proceed with the pre-
periods trial despite the absence of the accused and/ or
provided in the private complainant, provided:
Regular Rules/ o They were duly notified of the same, and
Special Rules. o The counsel for the accused, as well as the
2. The trial dates public prosecutor, are present.
may be ▪ Stipulation: Proposals for stipulations shall be
shortened done with the active participation of the court
depending on itself and shall not be left alone to the counsels.
the number of ▪ Marking of Evidence: The documentary
witnesses to be evidence of the prosecution and the accused shall
presented. A be marked.
flowchart shall ▪ Pre-Trial Order: It shall i1nmediately be served
be prepared by upon the parties and counsel on the same day
the court which after the termination of the pre-trial.
shall serve as
the final NOTE: Courts must strictly comply with the
schedule of Guidelines to be Observed in the Conduct of Pre-
hearings. Trial under A.M. No. 03-1-09-SC.

Arraignment and Preliminary Conference of MEDIATION

Mediatable Cases subject to the Rule on
Summary Procedure 1. The court shall serve the Order of Referral to the
Philippine Mediation Center (PMC) Unit
The arraignment and preliminary conference shall be immediately after the arraignment and the pre-
simultaneously held, and the court shall take up all the matters trial/ preliminary conference.
required under Sec. 14, Rule on Summary Procedure during o The referral of the case for mediation to the
the preliminary conference. (PMC) Unit shall be made only after the
conduct of the arraignment and the pre-
If the accused subheading trial/ preliminary conference.
pleads guilty to III, item no. 8, subparagraph ( 2. The mediation shall be terminated within a non-
the crime charged d) ii (Plea of Guilty to the extendible period of thirty (30) calendar days
in the Crime Charge 1n the from the date of referral by the court to the PMC
information Information) shall be followed. Unit.
3. Trial shall proceed
If the accused subheading III, item no. 8, a. After the lapse of the mediation period or
pleads guilty to a subparagraph ( d) 1 (Plea b. If mediation fails
lesser Bargaining
offense, except in Drug Cases) shall be
followed.

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The fallowing cases shall be referred to mediation on the civil 6. Intellectual property rights cases where the
liability UNLESS a settlement is reached earlier in the pre- liability may be civil in nature.
trial/ preliminary conference:
Criminal cases subject to the Rule on Summary
1. Crimes where payment may prevent criminal Procedure SHALL NOT be referred to mediation,
prosecution or may extinguish criminal liability, EXCEPT those cases mentioned above
such as violations of:
o B.P. Blg. 22; BAIL
o SSS Law (R.A. No. 1161, as a1nended by
R.A No. 8282); and FORM OF TESTIMONY
o PAG-IBIG Law (R.A. No. 9679).
2. Crimes against property under Title 10 of the I. FOR FIRST LEVEL COURTS
Revised Penal Code (RPC), where the obligation CASE FORM OF TESTIMONY
may be civil in nature, such as: The testimonies of witnesses shall
o Theft (Art. 308), cognizable by the first level consist of:
courts; 1. The duly subscribed written
o Estafa [Art. 315(1 )] , except estafa under statements given to law
Art. 315 (2) and (3); In all enforcement or peace
o Other forms of swindling [Art. 316] criminal officers or
o Swindling of a minor under [Art. 317] cases, 2. The affidavits or counter-
o Other deceits under [Art. 318] including affidavits submitted before
o Malicious mischief under [Art. 327] those the investigating prosecutor,
3. Crimes against honor under Title 13, RPC, where covered by and
the liability may be civil in nature, such as: the Rule on
o Libel by means of writings or similar means Summary If such are not available:
under [Art. 355] Procedure: 1. It shall be in the form of
o Threatening to publish and offer to present judicial affidavits, subject to
such publication for a compensation [Art. additional direct and cross-
356] examination questions.
o Prohibited publication of acts referred to in
the course of official proceedings under Art. Note: The trial prosecutor may dispense with
357, RPC; the sworn written statements submitted to the
o Grave Slander (Grave Oral Defamation) of law enforcement or peace officers and prepare
serious and insulting nature under Art. 358, the judicial affidavits of the affiants or modify
par. 1, RPC; or revise the said sworn statements before
o Simple Slander (Oral Defamation) - not of a presenting it as evidence.
serious and insulting nature under Art. 358, II. FOR SECOND LEVEL COURTS, THE
par. 2, RPC; SANDIGANBAYAN, AND THE COURT
o Grave Slander by Deed - of a serious nature OF TAX APPEALS
under Art. 359, par. 1, RPC; CASE FORM OF TESTIMONY
o Simple Slander by Deed - not of a serious In criminal The testimonies of the witnesses shall
nature under Art. 359, par. 2, RPC; cases where be:
o Incriminating innocent person under Art. the
363, RPC; demeanor of 1. The duly subscribed written
o Intriguing against honor under Art. 364, the witness statements given to law
RPC; is not enforcement or peace
4. Libel under R.A. 10175 (Cybercrime Prevention essential in officers or
Act of 2012) where the liability may be civil in determining 2. The affidavits or counter-
nature; the affidavits submitted before
5. Criminal negligence under Title 14, RPC, where credibility of the investigating prosecutor
the liability inay be civil in nature; and said witness2

2
forensic chemists, medico-legal officers, investigators, auditors, similar witnesses, who will testify on the authenticity, due
execution and the contents of public documents and reports
accountants, engineers, custodians, expert witnesses and other

Page 393 of 481

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

If such are not available: d. witnesses who will testify on the civil liability
in criminal 1. It shall be in the form of ▪ This rule is without prejudice to allowing
cases that judicial affidavits, subject to additional direct and cross-examination
are additional direct and cross- questions.
transactional examination questions. ▪ If stipulations cannot be had in full, where the
in character3 adverse party does not waive the right to cross-
examination, the subject of the direct testimony
Other of these witnesses should be stipulated upon,
crimes without prejudice to additional direct and cross-
where the examination questions.
culpability
or innocence TRIAL
of the
accused can The court shall encourage the accused and the
be prosecution to avail of:
established For the accused For the prosecution
through Secs. 12 and 13, Rule Sec. 15, Rule 119 on
documents 119 on the application the conditional
for examination of examination of witness
In all other witness for accused for the prosecution
cases where before trial and how it
the The testimonies of these is made
culpability witnesses shall be in oral form.
or the Absence of counsel de parte. - In the absence of the
innocence of counsel de parte, the hearing shall proceed upon
the accused appointment by the court of a counsel de officio.
is based on
the Offer of evidence.
testimonies The offer of evidence, the comment/ objection
of the thereto, and the court ruling thereto shall be made
alleged ORALLY.
eyewitnesses
1. A party is required to make his/ her oral offer of
evidence on the same day after the presentation
STIPULATIONS of his/her last witness.
o In making the offer, the counsel shall cite the
▪ During pre-trial/ preli1ninary conference, the specific page numbers of the court record
court shall require the parties to enter into where the exhibits being offered are found,
stipulations on the subject of both direct and if attached thereto.
cross-examinations of witnesses: o The court shall ensure that all exhibits
a. who have no personal knowledge of the offered are submitted to it on the same day
material facts constituting the crimes, such of the offer.
as: o If the exhibits are not attached to the record,
• forensic chemists, medico-legal the party making the offer must submit the
officers, investigators, auditors, same during the offer of evidence in open
accountants, engineers, custodians, court.
expert witnesses and other similar 2. The opposing party is required to immediately
witnesses interpose his/her oral comment/ objection
b. who will testify on the authenticity, due thereto.
execution and the contents of public 3. Thereafter, the court shall make a ruling on the
documents and reports offer of evidence in open court.
c. corroborative witnesses; and

3
falsification, malversation, Estafa

Page 394 of 481

U.P. LAW BOC CRIMINAL PROCEDURE
After the prosecution has rested its case, the court
shall inquire from the accused if he/ she desires:
1. To move for leave of court to file a demurrer to
evidence, or
2. To proceed with the presentation of his/her
evidence.
Demurrer to Evidence (DTE)
If the accused orally moves for leave of court to
file a demurrer to evidence, the court shall
ORALLY resolve the same.
▪ If the motion for leave is denied, the court shall
issue an order for the ACCUSED:
o To present and terminate his/her evidence
on the dates previously scheduled and agreed
upon, and
o To orally offer and rest his/her case on the
day his/her last witness is presented
▪ If despite the denial of the motion for leave, the
accused insists on filing the DTE, the previously
scheduled dates for the accused to present
evidence shall be cancelled.
▪ Period of Filing:
o The DTE shall be filed within a non-
extendible period of ten (10) calendar days
from the date leave of court is granted, and
o The corresponding comment shall be filed
within a non-extendible period of ten (10)
calendar days counted from date of receipt
of the DTE.
▪ Resolution: The demurrer shall be resolved by
the court within a non-extendible period of thirty
(30) calendar days from date of the filing of the
comment or lapse of the ten (10)-day period to
file the same.
▪ If the motion for leave of court to file DTE is
granted, and the subsequent DTE is denied
o The ACCUSED shall:
• present and terminate his/her
evidence (one day apart, morning and
afternoon) and
• orally offer and rest his/her case on
the day his/her last witness is
presented
o The COURT shall rule on:
▪ the oral offer of evidence of the
accused and
▪ the comment or objection of the
prosecution on the same day of the
offer
o If the court denies the motion to present
rebuttal evidence because it is no longer
Page 395 of 481
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necessary, it shall consider the case
submitted for decision.
Presentation of Rebuttal and Sur-rebuttal
Evidence
▪ If the court grants the motion to present rebuttal
evidence, the PROSECUTION shall:
o immediately proceed with its presentation
after the accused had rested his/her case,
and
o orally rest its case in rebuttal after the
presentation of its last rebuttal witness
▪ The ACCUSED shall:
o immediately present sur-rebuttal evidence,
if there is any, and
o orally rest the case in sur-rebuttal after the
presentation of its last sur-rebuttal witness
▪ Thereafter, the court shall submit the case for
decision.
One-day examination of witness rule: The court
shall strictly adhere to the rule that a witness has to be
fully examined in one (1) day.
PROMULGATION
Schedule of promulgation: The date of the
promulgation of its decision
▪ Shall not be more than ninety (90) calendar days
fro1n the date the case is submitted for decision
o For those covered by Regular Rules,
including Sandiganbayan and Court of Tax
Appeals
▪ Except when the case is covered by Special Rules
and other laws which provide for a shorter period
Drug Cases (15) days from the date of
submission for resolution of
the case
Environmental (60) days from the last day of
Cases the 30-day period to file the
memoranda
Intellectual (60) days from the time the
Property case is submitted for decision,
Rights Cases with or without the
memoranda
Note: The court shall announce in open court and include in the
order submitting the case for decision, the date of the
promulgation of its decision.
Resolution of motion for reconsideration of
judgment of conviction or motion for new trial.
U.P. LAW BOC CRIMINAL PROCEDURE
▪ A motion for reconsideration of judgment of
conviction or motion for new trial under Rule
121 filed within the reglementary period of
fifteen (15) days from promulgation
▪ Shall be resolved within:
o A non-extendible period of ten (10)
calendar days fro1n the submission of the
comment of the prosecution.
o With or without comment, the court shall
resolve the motion within the ten (10)-day
period.
MEMORANDA
▪ The submission of memoranda is
discretionary on the part of the court
o Format: shall exceed (25) pages in length,
single-spaced, on legal size paper, using size
14 font.
▪ Submission period: non-extendible and shall
not suspend the running of the period of
promulgation of the decision.
o With or without memoranda, the
promulgation shall push through as
scheduled.
LACK OF STENOGRAPHIC NOTES
▪ Incomplete TSN is not a ground to defer
submission of the case for decision:
o Judges who conducted the trial and heard the
testimonies of some or all of the witnesses
shall not defer the submission of the case for
decision on the ground of incomplete or
missing transcript of stenographic notes
▪ If the case was heard completely by another
judge, not the judge tasked to write the
decision:
o The latter shall direct the stenographers
concerned to submit the complete
transcripts within a period of (30) calendar
days from date of his/her assumption to
office.
INVENTORY OF CRIMINAL CASES
The one (1) week of each semester devoted for the
conduct of annual and semi-annual physical inventory
of cases and preparation of the semestral docket
inventory report pursuant to Administrative Circular
No. 76-2007 SHALL NOT SUSPEND court
hearings.
Page 396 of 481
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Q. Rule on Cybercrime
Warrants
A.M. No. 17-11-03-SC
SECTION 1.
Scope: The rule provides for the procedure in the
application and grants of warrants and related orders
involving preservation, disclosure, interception,
search, seizure, and/or examination of computer
data.
SECTION 2. GENERAL PROVISIONS
VENUE FOR FILING A CRIMINAL ACTION
A. Violation of Section 4 (Cybercrime offenses)
and/or Section 5 (Other offenses) of RA 10175
(Cybercrime Prevention Act of 2012 hereinafter “RA
10175”) shall be filed before the designated
cybercrime court of the province or city:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system used is
situated, or
3. Where any of the damage caused to a natural or
juridical person took place
Note: The court where the criminal action was first
filed shall acquire jurisdiction to the exclusion of
other courts.
B. All other crimes committed using Information and
Communication Technology (ICT) shall be filed
before the regular or specialized courts as the case
maybe.
VENUE FOR FILING AN APPLICATION
FOR CYBERCRIME WARRANT
A. Violation of Section 4 and Section 5 of RA
10175
GR: Application shall be filed before the designated
cybercrime courts of the province or the city where:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system used is
situated, or
3. Where any of the damage caused to a natural or
juridical person took place
NOTE: Cybercrime courts in Quezon City, City of
Manila, Makati City, Pasig City, Cebu City, Iloilo City,
Davao City, and Cagayan De Oro City have the
special authority to act on applications and issue
U.P. LAW BOC CRIMINAL PROCEDURE
warrants which shall be enforceable nationwide
and outside the Philippines.
B. Application for a warrant for violation of all crimes
defined, and penalized by RPC and other special laws
if committed using ICT shall be filed with the regular
courts or other specialized RTC in the places:
1. Where the offense or any of its elements is
committed, or
2. Where any part of the computer system used is
situated, or
3. Where any of the damage caused to a natural or
juridical person took place
JUDGE EXAMINES APPLICANT AND
RECORD BEFORE ISSUING A WARRANT
The judge must examine the applicant and his/her
witnesses in the form of searching questions and
answers, in writing and under oath.
EFFECTIVITY OF WARRANTS
GR: Not exceeding 10 days from its issuance
X: the issuing court may, upon motion, extend its
effectivity based only on justifiable reasons for a
period not exceeding 10 from the expiration of the original
period.
CONTEMPT
The responsible law enforcement authorities shall be
subject to action for contempt in case:
1. Failure to timely file the return for any of the
issued warrants under this Rule
2. Failure to duly turn-over to the court’s custody
any of the items disclosed intercepted, searched,
seized, and/or examined
SECTION 3. PRESERVATION OF
COMPUTER DATA
GR: Data should be kept, retained, and preserved by
a service provider for a minimum period of 6
months from:
1. The date of transaction in the case of traffic data
and subscriber’s information;
2. The date of receipt of order from law
enforcement requiring its preservation in the case
of content data
X: One-time extension for another 6 months may be
ordered
X2: The data is preserved until the final termination
of a case once the data that is preserved, transmitted
or stored by the service provider is used as evidence
in a case.
The receipt by the service provider of transmittal of
document to the Office of the Prosecutor shall be
Page 397 of 481
REMEDIAL LAW
deemed a notification to preserve data until the final
termination of the case.
CYBERCRIME WARRANTS UNDER THIS
RULE
1. Warrant to Disclose Computer Data (WDCD)
[Sec. 4]
2. Warrant to Intercept Data (WICD) [Sec. 5]
3. Warrant to Search, Seize and Examine Computer
Data (WSSECD) [Sec. 6]
4. Warrant to Examine Computer Data (WECD)
[Sec 6.9]
SECTION 4. DISCLOSURE OF COMPUTER
DATA
WARRANT TO DISCLOSE COMPUTER
DATA (WDCD)
It is an order in writing issued in the name of the
People of the Philippines, signed by the judge, upon
application of law enforcement authorities,
authorizing the latter to issue an order to disclose and
accordingly, require any person or service provider to
disclose or submit subscriber’s information, traffic
data, or relevant data in his/her or its possession or
control.
Disclosure of Computer Data
1. The person or service provider must disclose or
submit the subscriber’s information, traffic data
or relevant data in his/her or its possession or
control within 72 hours from receipt of an Order;
2. The Order must be in relation to a complaint
officially docketed and assigned for investigation;
and
3. The disclosure must be necessary and relevant for
the purpose of investigation.
Contents of Application for WDCD
1. The probable offense involved
2. Relevance and necessity of the computer data or
subscriber’s information sought to be disclosed
for the purpose of investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information are
sought to be disclosed, including the names of
the individuals of the individuals or entities who
have control, possession, or access thereto, if
available;
4. Particular description of the computer data or
subscriber’s information sought to be disclosed
5. Place where the disclosure of computer data or
subscriber’s information is to be enforced, if
available;
U.P. LAW BOC CRIMINAL PROCEDURE
6. Manner or method by which the disclosure of the
computer data or subscriber’s information is to
be carried out, if available; and
7. Other relevant information that will persuade the
court that there is a probable cause to issue a
WDCD.
Return on the WDCD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after the
expiration of the effectivity of the WDCD, whichever
comes first, the law enforcement officer shall:
1. Submit a return on the WDCD to the court that
issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
The officer is allowed to retain a copy of the copy of
the disclosed data or subscriber’s information subject
of the WDCD without the need of court intervention,
provided:
1. It will be utilized for case build-up or preliminary
investigation purposes
2. The details are kept strictly confidential, and the
retained copy shall be labelled as such
3. The retained copy shall be turned over upon
filing of a criminal action involving the disclosed
computer data or subscriber’s information, or
upon order of the issuing court if no criminal
action is filed.
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer to
whom the WDCD was issued, and require
him/her to explain why no return was made,
without prejudice to any action of contempt
SECTION 5. INTERCEPTION OF
COMPUTER DATA
Interception refers to:
1. listening to,
2. recording,
3. monitoring, or
4. surveillance of the content of communications,
including procuring of the content data:
a. directly, through access and use of a
computer system, or
b. indirectly through the use of electronic
eavesdropping or tapping devices, at the
same time that the communication if
occurring.
Page 398 of 481
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Warrant Required
Interception may be carried out only by virtue of a
court issued warrant, duly applied for by law
enforcement authorities.
WARRANT TO INTERCEPT COMPUTER
DATA (WICD)
It is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities,
authorizing the latter to carry out any or all of the
activities of interception (see above).
Contents of Application for WICD
The application shall state the essential facts similar to
WDCD
1. The probable offense involved
2. Relevance and necessity of the computer data or
subscriber’s information sought to be
intercepted for the purpose of investigation
3. Names of the individuals or entities whose
computer data or subscriber’s information are
intercepted, including the names of the
individuals of the individuals or entities who have
control, possession, or access thereto, if available;
4. Particular description of the computer data or
subscriber’s information sought to be
intercepted;
5. Place where the disclosure of computer data or
subscriber’s information is to be enforced, if
available;
6. Manner or method by which the disclosure of the
computer data or subscriber’s information is to
be carried out, if available; and
Return on the WICD
Duty of Law Enforcement Officer:
Within 48 hours from implementation or after the
expiration of the effectivity of the WICD, whichever
comes first, the law enforcement officer shall:
1. Submit a return on the WDCD to the court that
issued it; and
2. Simultaneously turn over the custody of the
disclosed computer data or subscriber’s
information thereto
Duty of the Issuing Judge:
It is the duty of the issuing judge to:
1. Ascertain if the return has been made, and
2. If no return was made, summon the officer to
whom the WDCD was issued, and require
him/her to explain why no return was made,
without prejudice to any action of contempt
U.P. LAW BOC CRIMINAL PROCEDURE
Notice to Person Intercepted after Filing of
Return Required
Duty of Law Enforcement
The law enforcement officer has the duty to notify the
person whose communication or computer data have
been intercepted of the activities conducted pursuant
to the WICD:
1. Within 30 days from the filing of the return,
attaching a copy of the return to the notice; or
2. From the lapse of 48-hour period to file the
return, if no return was filed. The notice shall
state the details of the interception activities,
including the contents of the intercepted
communication or computer data.
Remedy of the Person Involved
Within 10 days from notice, the person whose
communication or computer data have been
intercepted may challenge, by motion, the legality of
the interception before the issuing court.
SECTION 6. SEARCH, SEIZURE, AND
EXAMINATION OF COMPUTER DATA
WARRANT TO SEARCH, SEIZE AND
EXAMINE COMPUTER DATA (WSSECD)
It is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon
application of law enforcement authorities,
authorizing the latter to search the particular place for
items to be seized and/or examined.
Content of Application for a WSSECD
The content shall state the essential fact similar to
WDCD except that the subject matter is the computer
data sought to be searched, seized and examined, and
all other items related thereto.
Further, it shall contain an explanation of the search
and seizure strategy to be implemented taking into
account the nature of the computer data involved, the
computer or computer system’s security features,
and/or other relevant circumstances.
Off-site and On-site Principle
GR: Law enforcement shall endeavor to first make a
forensic image of the computer data on-site as well
as limit their search to the place specified in the
warrant.
X: Off-site search may be conducted provided that
a forensic image is made, and that the reasons for the
off-site search are stated in the initial return
Page 399 of 481
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Remedy of Person whose devices have been
searched and seized off-site
The concerned individual may, upon motion, seek the
return of the said items from the court issuing the
WSSCED provided that a forensic image of the data
subject of the WSSECD has already been made.
What Activities are Allowed During the
Implementation of the WSSECD
1. Interception of communications and
computer data may be conducted during the
implementation of the WSSECD which shall:
a. limited to communications and computer
that are reasonably related to the subject
matter of WSSECD; and
b. the activities are fully disclosed which shall
be duly explained in the initial return.
2. Law enforcement may order any person who has
knowledge of the functioning of the computer
data therein, to provide necessary information to
enable the undertaking of the search, seizure and
examination
Initial Return of WSSECD
The authorized law enforcement shall submit within
10 days from issuance of WSSECD an initial return
which contains:
1. A list of all items that were seized, with a detailed
identification of the devices of the computer
system seized;
2. Statement on whether a forensic image of the
computer data was made on-site, and if not, the
reason for making forensic image off-site;
3. Statement on whether the search was conducted
on-site, and not, the reasons for conducting the
search and seizure off-site;
4. Statement on whether interception was
conducted during the implementation of the
WSSECD, together with (a) a detailed
identification of all the interception activities that
were conducted; (b) the hash value/s of the
communications or computer data intercepted;
and (c) an explanation of the said item’
reasonable relation to the computer data subject
of WSSECD;
5. List of all the actions taken to enforce the
WSSECD, from the time the law enforcement
officers reached the place to be seized until they
left the premises with the seized items and
reached the place where the items seized were
stored and secured for examination; and
6. A reasonable estimation of how long the
examination of the items seized will be concluded
and the justification therefor.
U.P. LAW BOC CRIMINAL PROCEDURE
Period to Examine Seized Items After Initial
Return
The Court shall issue an order fixing the period to
conclude the examination of all the items seized. The
period may be extended not exceeding 30 days, upon
motion, for justifiable reasons.
Final Return on the WSSECD
Within 48-hours after the expiration of the period to
examine seized items after the initial return, the law
enforcement officer shall:
1. Submit a final return in the WSSECD to the
issuing court; and
2. Simultaneously turn-over the custody of the
seized computer data, as well as all other items
seized and/or the communications or computer
data intercepted in relation thereto.
WARRANT TO EXAMINE COMPUTER
DATA (WECD)
It refers to a warrant applied for by law enforcement
authorities before searching a computer device or
computer system (for the purpose of obtaining for
forensic examination the computer data) which was
obtained via a lawful warrantless arrest or by any other
lawful method.
It is available when:
1. The law enforcement authority acquires
possession of a computer device or computer
system;
2. Through a lawful warrantless arrest, or other
lawful method;
3. The law enforcement authority shall first apply
for WECD before searching for forensic
examination the computer data contained
therein.
Content of WECD
It shall state the essential facts similar to WDCD
except that the subject matter us the computer sought
to be examined.
The application shall disclose the circumstances
surrounding the lawful acquisition of the computer
device or computer system containing the said
computer data.
Initial and Final Return of WECD
The initial and final return of WECD shall be similarly
governed by the procedures under WSSECD.
Page 400 of 481
REMEDIAL LAW
SECTION 7. CUSTODY OF COMPUTER
DATA
Upon filing of the return for WDCD or WICD, or
the final return for a WSSECD or WECD with the
issuing court, the following are likewise submitted:
1. All computer data shall be simultaneously
deposited in a sealed package with the issuing
court;
2. A complete and verified inventory of all the other
items seized
3. Affidavit of the duly authorized law enforcement.
Duty of the Prosecutor When Criminal Action is
Instituted
Within 10 days from the time of the criminal action
is instituted, It is the duty of the prosecutor, or
his/her duly authorized representatives, once a
criminal action is instituted, to file a motion before
the issuing court to:
1. Move for the immediate transmittal of the
records, and
2. Move for the transfer of the intercepted,
disclosed, searched, seized and/or examined
computer data and items, including the complete
and verified inventory thereof to the court
Within 5 days, the court shall act upon the motion
filed.
Access and Use of Computer Data
GR: The package containing the computer data
deposited in the issuing court shall not
1. be opened, or
2. the recordings replayed, or
3. its contents revealed, or,
4. in any manner as used as evidence
Except: The court may grant so upon filing a motion
for the purpose stating:
1. the relevance of the computer data sought to be
opened, replayed, revealed, or used as evidence;
and
2. the names of the persons who will be allowed to
have access thereto, if the motion is granted.
3. Must include proof of service of copies sent to
the person/s whose computer data is subject of
the motion.
Within 10 days from receipt of notice thereof, the
person must file comment thereto. After which, the
court shall rule on the motion, unless a clarificatory
hearing is needed.
U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

SECTION 8. DESTRUCTION OF
COMPUTER DATA
Duty of Service Providers and Law Enforcement
Authorities to Destroy
The service providers and law enforcement
authorities, as the case maybe, shall immediately and
completely destroy the computer data subject of
preservation and examination upon expiration of
the periods provided in Sec. 13 and 15 of RA 10175.
1. Sec 13: Service providers preserve the data for a
minimum of 6 months, unless a one-time
extension of another 6 months is ordered by the
law enforcement authority, or in the event that
that the data was used as evidence in which case
the data is preserved until the final termination of
the case.
2. Sec 15: After lapse of the time period specified in
the warrant, unless the court granted extension of
time to complete examination for no longer than
30 days (from the time of the court’s approval).

How Destruction of Computer Data is Made

1. Made in the presence of the Branch Clerk-of-
Court, or in his/her absence, in the presence of
any other person duly designated by the court to
witness the same
2. The accused or the person from whom the items
were seized, or his/her representative or counsel,
or law enforcement agency may be allowed to
witness.

Provided, they appear during the scheduled date

of destruction upon written notice to them by the
Branch Clerk of Court.
3. Within 24 hours from the destruction of data, the
Branch Clerk of Court or the witness duly
designated by court shall issue a sworn
certification as to the fact of destruction
4. The Branch Clerk of Court shall file the said
certificate with the same court
5. The storage device or other items turned over to
the court’s custody shall be destroyed by:
a. Shredding
b. Drilling of four holes through the device,
c. Prying the platters apart, or
d. Other means that will sufficiently make it
inoperable.

Page 401 of 481

U.P. LAW BOC EVIDENCE REMEDIAL LAW

EVIDENCE
Remedial Law

Page 402 of 481

U.P. LAW BOC EVIDENCE REMEDIAL LAW

VIII.EVIDENCE [Sec. 2, Rule 128]

3. SC issuances [e.g., Judicial Affidavit Rule, Rules
on Procedure for Environmental Cases, Child
A. General Principles Witness Rule, Rules on Electronic Evidence,
Rules on DNA Evidence]

1. Concept of Evidence No Vested Right of Property in Rules of

Evidence
The means, sanctioned by these rules, of ascertaining The general rule is that there is no vested right of
in a judicial proceeding, the truth respecting a matter property in rules of evidence [Aldeguer v. Hoskyn, G.R.
of fact [Sec. 1, Rule 128] No. 1164 (1903)] Any evidence inadmissible
according to the laws in force at the time the action
accrued, but admissible according to the laws in force
2. Scope and Applicability of at the time of trial, is receivable [Francisco 8, 1996 Ed.,
the Rules of Evidence citing Aldeguer v. Hoskyn, G.R. No. 1164 (1903)]

Rules of Evidence May be Waived

a. Scope of Application According to Francisco [9, 1996 Ed., citing American
cases], there are rules of evidence established merely
Under the Rules of Court (ROC), the rules of
for the protection of the parties. If, according to the
evidence are specifically applicable only to judicial
well-established doctrine, the parties may waive such
proceedings [Sec. 1, Rule 128]
rules during the trial of a case, there is no reason why
they cannot make the waiver in a contract (ex. a
This rule must be read as referring to the rules of
contract of insurance requiring the testimony of
evidence AS CONTAINED in the ROC, because –
eyewitness as the only evidence admissible concerning
obviously – constitutional evidentiary rules permeate
the death of the insured person' is valid or a contract
ALL proceedings and is the constant, bottomline
waiving the privilege against the disclosure of
yardstick for the validity of ALL acts in Philippine
confidential communications made by a patient to
territory [Prof. Avena]
physician). However, if the rule of evidence waived by
the parties has been established on grounds of public
Judicial proceedings are of THREE KINDS
policy, the waiver is void (ex. waiver of the privilege
ONLY
against the disclosure of state secrets).
1. Civil action – which is of two kinds
a. ordinary civil action, and
b. special civil action 3. Evidence in Civil Cases v.
2. Criminal action
3. Special Proceeding
Evidence in Criminal Cases
[Sec. 3, Rule 1]
Preponderance of Proof beyond
Note: All other proceedings are NON-JUDICIAL, evidence reasonable doubt
hence, application of the rules of evidence in the ROC [Sec. 1, Rule 133] [Sec. 2, Rule 133]
is not mandatory unless provided to be so by law or Offer of compromise
Offer of compromise
regulation [see Sec. 4, Rule 1] NOT an admission of
by the accused may be
any liability, and is not
received in evidence as
admissible in evidence
b. Uniformity of Application against the offeror
an implied admission of
guilt.
[Sec. 27, Rule 130], as a
General rule: The rules of evidence shall be the same in general rule [Tan v.
all courts and in all trials and hearings [Sec. 2, Rule Exceptions:
Rodil Enterprises, G. R.
128] a. for quasi-offenses
No. 168071 (2006)]
or
Exceptions: b. those allowed by
Exceptions: The party
If otherwise provided by: law to be
making the offer
1. Law [e.g. 1987 Constitution, statutes] compromised,
admits the existence of
2. Rules of Court examples:
an indebtedness

Page 403 of 481

U.P. LAW BOC EVIDENCE REMEDIAL LAW

Preponderance of Proof beyond Preponderance of Proof beyond

evidence reasonable doubt evidence reasonable doubt
[Sec. 1, Rule 133] [Sec. 2, Rule 133] [Sec. 1, Rule 133] [Sec. 2, Rule 133]
combined with a 1. Sec 204, RA inserted by
proposal to settle the 8424 (Tax R.A. 8353]
claim amicably. In Tan, Reform Act of
petitioner made 1997), which A plea of guilty later
categorical judicial provides that withdrawn or an
admissions, not only as payment of unaccepted offer of a
to his liability, but also, any internal plea of guilty to a lesser
as to the amount of revenue tax offense, is not
indebtedness in the and all criminal admissible in evidence
form of rentals due: violations may against the accused who
a. Petitioner agreed be made the plea or offer
in open court to compromised, [Sec. 27, Rule 130]
pay the amount of except those Constitutional
P440,000.00, already filed in presumption of
representing Court and innocence does NOT
petitioner’s unpaid those apply [Sec. 14, Art. III,
rentals from involving Constitution refers
September 1997 to fraud; only to “in all criminal
June 2000; and 2. In rape cases, prosecutions”]
that petitioner will the subsequent
pay the monthly valid marriage However, the ROC
rentals computed between the requires meeting the
Presumption of
at P13,750.00 on offended party burden of proof [Sec.
innocence a
or before the 5th shall 1, Rule 131] of
constitutional guarantee
day of each month extinguish the preponderance of
on the accused [Sec. 14,
after 30 June 2000, criminal action evidence [Sec. 1, Rule
Art. III, Constitution]
as detailed by the or the penalty 133]. Note also the
Order of the imposed. In disputable
MeTC; and case it is the presumption that a
b. In his Motion to legal husband person is innocent of
Allow Defendant who is the wrong [Sec. 3(a), Rule
to Deposit offender, the 131]. See also Sec. 3(m),
Rentals, petitioner subsequent (p), (x), (aa), and (ff),
stated that the forgiveness by Rule 131; Sec. 3(4),
rentals due on the the wife as the Rule 132; and Sec. 5,
premises in offended party Rule 133.
question from shall
September 1997 extinguish the An offer to pay or the payment of medical, hospital
up to the present criminal action or other expenses occasioned by an injury is NOT
amounted to or the penalty: admissible as proof of criminal or civil liability for the
P467,500.00, as of Provided, That injury [Sec. 27, Rule 130]
the date of filing the crime shall
the Motion. not be The following distinctions may also be noted
extinguished a. In terms of evidence in connection with
or the penalty constitutional law doctrines – e.g., under par. 4,
shall not be Sec. 12, Art. III, Constitution, an uncounseled
abated if the extra-judicial confession elicited during custodial
marriage is investigation will be inadmissible in any criminal
void ab initio case against the accused, but will be admissible in
[Art. 266-C, a civil case for damages by the latter against the
RPC, as violator

Page 404 of 481

U.P. LAW BOC
b. In terms of evidence arising from procedure –
e.g.:
1. Judicial Affidavit Rule [A.M. No. 12-8-8-SC]
– does not apply to criminal case where
penalty exceeds six years)
2. Guidelines in the Conduct of Pre-Trial and
Use of Deposition-Discovery Measures
[A.M. No. 03-1-09-SC] – “All agreements or
admissions made or entered during the pre-
trial conference shall be reduced in writing
and signed by the accused and counsel,
otherwise, they cannot be used against the
accused. The agreements covering the
matters referred to in Section 1 of Rule 118
shall be approved by the court.” (par. 8, Part
B)
c. The rules on search and seizure in
constitutional law in connection with
criminal procedure do not apply in civil
actions involving infringement of intellectual
property, where the applicable rule is A.M.
No. 02-1-06-SC (Rule on Search and Seizure
in Civil Actions for Infringement of
Intellectual Property Rights)
4. Proof v. Evidence
Proof Evidence
Result or
Mode and manner of proving
effect of
competent facts in judicial
evidence [2
proceedings [Bustos v. Lucero,
Regalado 698,
G.R. No. L-2068, (1948)]
2008 Ed.]
The end result The means to an end
5. Factum Probans v. Factum
Probandum
Factum
Factum probans
probandum
Evidentiary fact Ultimate fact
Fact by which the factum
Fact sought to
probandum is to be
be established
established
Materials which establish that
Proposition
proposition
[2 Regalado 698-699, 2008 Ed.]
One must adduce during trial the factum probans or
the evidentiary facts by which the factum probandum
Page 405 of 481
EVIDENCE REMEDIAL LAW
or the ultimate fact can be established. [Dela Llana vs.
Biong, G.R. No. 182356 (2018)]
6. Classes of Evidence
According to Form
a. Object - those addressed to the senses of the
court [Sec. 1, Rule 130]
b. Documentary - consists of writings or any
material containing letters, words, numbers,
figures, symbols or other modes of written
expressions offered as proof of their contents
[Sec. 2, Rule 130]
c. Testimonial - evidence elicited from the mouth
of a witness [Riano 180, 2016 Ed., citing Black’s
Law Dictionary] It involves two levels of
perception: that of the witness perceiving the
event, and that of the judge evaluating the witness
There is no hierarchy with respect to the physical
forms of evidence. A fact may be proved by any kind;
the court may admit. There is no rule (in general) that
prefers one form rule as against another [Adzuara v.
C.A., G.R. No. 125134 (1999)]
In Adzuara, the petitioner claimed that the medical
certificate presented by the prosecution was
uncorroborated by actual testimony of the physician
who accomplished the same and as such has no
probative value insofar as the physical injuries
suffered by the victim are concerned. The SC
disagreed, ruling that the fact of the injury resulting
from the collision may be proved in other ways such
as the testimony of the injured person.
7. Cumulative and
Corroborative Evidence
Note: This distinction refers to the uniformity of
evidentiary form, not the distinction between forms
of evidence per se [Prof. Avena]
Cumulative Corroborative
evidence evidence
Evidence of the same Additional evidence of a
kind and to the same different character to
state of facts the same point
[2 Regalado 702, 2008 Ed.]
Cumulative evidence refers to pieces of evidence of
the same form, e.g. testimonies. Corroborative
evidence refers to pieces of evidence of different
forms, e.g. object and testimonial.
U.P. LAW BOC EVIDENCE
8. Prima facie and Conclusive Evidence
Prima facie
Standing alone, unexplained or uncontradicted, is sufficient
to maintain the proposition affirmed [2 Regalado 703, 2008
Ed.]
e.g. official records such as Police blotter [Sec. 44, Rule 130;
public documents such as notarial register [Sec. 23, Rule
132]
9. Disputable and Conclusive
Presumption
a. The technical definition of “conclusive
presumption” is implied by way of contra-
distinction with that for the term “disputable
presumption” in sec. 3 of Rule 131 of the Rules
of Court (the latter being a presumption that is
satisfactory if uncontradicted, but which may be
contradicted and overcome by other evidence).
Page 406 of 481
REMEDIAL LAW
Conclusive
Class of evidence which the law does not allow
to be contradicted [2 Regalado 703, 2008 Ed.]
Note: This statement refers only to the second
part of the definition of conclusive evidence (i.e.,
its exclusionary feature).
The first part refers to the fact that a rule of law
has provided that it constitutes factum probans
that sufficiently establishes the factum
probandum without need of any other evidence
[Prof. Avena]
e.g. (1) The decree of registration and the
certificate of title issued shall become
incontrovertible, upon the expiration of the one-
year period within which any person deprived of
land or of any estate or interest therein by such
adjudication or confirmation of title obtained by
actual fraud, to file in the proper court a petition
for reopening and review of the decree of
registration [Sec. 32, P.D. 1529]; (2) The child
shall be considered legitimate although the
mother may have declared against its legitimacy
or may have been sentenced as an adulteress.
[Art. 167, FC]. Factum probans that the child
was conceived or born during the marriage of its
parents conclusively establishes the factum
probandum of the legitimate status of that child,
and by providing that this factum probandum
subsists “although the mother may have declared
against its legitimacy or may have been sentenced
as an adulteress,” Art. 167 is in effect saying that
any factum probans presented and offered to
prove the truth of the latter declaration (of the
mother) will be inadmissible in evidence.
b. Sources of above presumptions other than the
Rules of Court:
1. law
2. SC issuances
10. Primary and Secondary
Evidence
Primary evidence is that which the law regards as
affording the greatest certainty of the fact in question
[1 Regalado 703, 2010 Ed.]
U.P. LAW BOC EVIDENCE
Examples of primary evidence
The filiation of legitimate children is established by
any of the following
a. The record of birth appearing in the civil register
or a final judgment; or
b. An admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be roved by:
a. The open and continuous possession of the
status of a legitimate child; or
b. Any other means allowed by the Rules of Court
and special laws
[Art. 172, FC]
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children [Par. 1, Art. 175, FC]
De la Cruz v. Gracia, G.R. No. 177728, July 31,
2009
1) Where the private handwritten instrument is
the lone piece of evidence submitted to
prove filiation, there should be strict
compliance with the requirement that the
same must be signed by the acknowledging
parent; and
2) Where the private handwritten instrument is
accompanied by other relevant and
competent evidence, it suffices that the claim
of filiation therein be shown to have been
made and handwritten by the acknowledging
parent as it is merely corroborative of such
other evidence.
Best Evidence Rule: When the subject of inquiry is
the contents of a document, no evidence shall be
admissible other than the original document itself
[Sec. 3, Rule 130]
Secondary evidence
In the context of the Best Evidence rule in Sec. 3,
Rule 130, secondary evidence may be admitted
a. When the original document has been lost or
destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence
and the cause of its unavailability without bad
faith on his part, may prove its contents by a
copy, or by a recital of its contents in some
Page 407 of 481
REMEDIAL LAW
authentic document, or by the testimony of
witnesses in the order stated [Sec. 5, Rule 130]
b. If the document is in the custody of under the
control of the adverse party, he must have
reasonable notice to produce it. If after such
notice and after satisfactory proof of its
existence, he fails to produce the document,
secondary evidence may be presented as in the
case of its loss [Sec. 6, Rule 130]
c. When the original of a document is in the custody
of a public officer or is recorded in a public
office, its contents may be proved by a certified
copy issued by the public officer in custody
thereof [Sec. 7, Rule 130]
Generic, non-technical term “best evidence” as
used in Vitarich
A receipt, which is a written and signed
acknowledgment that money and goods have been
delivered, is the best evidence of the fact of
payment although not exclusive [Vitarich v. Losin,
G.R. No. 181560 (2010)]
In using the term “best evidence”, the SC in Vitarich
is referring to probative weight, not to admissibility.
The term “not exclusive” in Vitarich means that the
term “best evidence” in the same case is not intended
to be exclusionary.
Lastly, in another case, the SC ruled that a statement
in a written instrument regarding the payment of
consideration is merely in the nature of a receipt and
may be contradicted [Philippine Banking Corporation v.
C.A., G.R. No. 133710 (2004)]. The receipt in the
Philippine Banking case was not excluded as evidence,
but was not given much weight. The respondent-
defendant in Philippine Banking denied receiving the
loan proceeds and presented evidence that on the day
the bank claimed to have credited the subject amount,
it was again debited or withdrawn by the bank,
admittedly upon the instruction of the officials from
the bank’s head office.
U.P. LAW BOC EVIDENCE
B. Admissibility of Evidence
Admissibility of evidence refers to the question of
whether or not the circumstance (or evidence) is to be
considered at all. On the other hand, the probative
value of evidence refers to the question of whether or
not it proves an issue [PNOC Shipping and Transport
Corporation v. C.A., G.R. No. 107518 (1998)]
Admissibility does not concern weight
Admissibility of evidence should not be equated with
weight of evidence. The admissibility of evidence
depends on its relevance and competence, while the
weight of evidence pertains to evidence already
admitted and its tendency to convince and persuade.
Thus, a particular item of evidence may be admissible,
but its evidentiary weight depends on judicial
evaluation within the guidelines provided by the Rules
of Court [Dela Llana v. Biong, G.R. No. 182356 (2013)]
Weight involves the effect of evidence admitted, its
tendency to convince and persuade. It is not
determined mathematically by the numerical
superiority of the witnesses testifying to a given fact,
but depends upon its practical effect in inducing belief
on the part of the judge trying the case [Francisco 11,
1996 Ed.]
Evidence is admissible when it is relevant to the issue
and is not excluded by the law or the rules or is
competent [Sec. 3, Rule 132]. Since admissibility of
evidence is determined by its relevance and
competence, admissibility is, therefore, an affair of
logic and law. On the other hand, the weight to be
given to such evidence, once admitted, depends on
judicial evaluation within the guidelines provided in
Rule 133 and the jurisprudence laid down by the
Court. Thus, while evidence may be admissible, it may
be entitled to little or no weight at all. Conversely,
evidence which may have evidentiary weight may be
inadmissible because a special rule forbids its
reception. [People v. Turco, G.R. No. 137757, (2000)]
The admissibility of evidence cannot be ruled
upon in a preliminary investigation.
In a preliminary investigation, ... the public
prosecutors do not decide whether there is evidence
beyond reasonable doubt of the guilt of the person
charged; they merely determine whether there is
sufficient ground to engender a well-founded belief
that a crime has been committed and that respondent
is probably guilty thereof, and should be held for trial.
Page 408 of 481
REMEDIAL LAW
To emphasize, “a preliminary investigation is merely
preparatory to a trial[;] [i]t is not a trial on the merits.”
Since “it cannot be expected that upon the filing of
the information in court the prosecutor would have
already presented all the evidence necessary to secure
a conviction of the accused,” the admissibility or
inadmissibility of evidence cannot be ruled upon in a
preliminary investigation. [Maza v. Judge Turla, G.R.
No. 187094 (2017)].
1. Requisites for Admissibility
a. Relevant to the issue; and
b. Not excluded by law or the ROC [Sec. 3, Rule 128]
The second item is called “competence” [2 Regalado
704, 2008 Ed.]
The Importance of Offer In Relation To
Admissibility
Parties are required to inform the courts of the
purpose of introducing their respective exhibits to
assist the latter in ruling on their admissibility in case
an objection thereto is made [Star Two v. Ko, G.R. No.
185454 (2011)]
Objection
a. Objection to evidence offered orally must be
made immediately after the offer is made.
1. As regards the testimony of a witness, the
offer must be made at the time the witness is
called to testify.
2. Documentary and object evidence shall be
offered after the presentation of a party’s
testimonial evidence. Such offer shall be
done orally unless allowed by the court to be
done in writing.
[Sec. 35, Rule 132]
b. Objection to a question propounded in the
course of the oral examination of a witness shall
be made as soon as the grounds therefor shall
become reasonably apparent.
c. An offer of evidence in writing shall be objected
to within three (3) days after notice of the offer
unless a different period is allowed by the court.
d. In any case, the grounds for the objections must
be specified.
[Sec. 36, Rule 132]
Every objection to the admissibility of evidence shall
be made at the time such evidence is offered, or as
soon thereafter as the objection to its admissibility
have become apparent, otherwise the objection shall
be considered waived [Abrenica v. Gonda, G.R. No. L-
10100 (1916)]
U.P. LAW BOC
Form When objection made
Objection to the qualification of
the witness must be made at the
time he is called to the stand
If the witness is qualified, the
Testimonial
objection should be raised when
evidence
the objectionable question is
asked or after the answer is
given if the objectionable
feature became apparent by
reason of such answer
Must be made either:
a. At the time it is presented
Object or real
in ocular inspection or
evidence
demonstration, or
b. When it is formally offered
Documentary
At the time it is formally offered
evidence
[2 Regalado 705, 2008 Ed.]
2. Relevance of Evidence and
Collateral Matters
Relevancy
Evidence is relevant when it has “such a relation to
the fact in issue as to induce belief in its existence or
non-existence” [Sec. 4, Rule 128] e.g., Evidence as to
the age of a person who has been raped is relevant in
a situation where the age would qualify the offence to
statutory rape
Determinable by the rules of logic and human
experience [2 Regalado 704, 2008 Ed.]
Collateral matters
Matters other than the fact in issue and which are
offered as a basis for inference as to the existence or
non-existence of the facts in issue [2 Regalado 708,
2008 Ed.]
General rule: Evidence on collateral matters is NOT
allowed [Sec. 4, Rule 128]
Exceptions: When it tends in any reasonable degree to
establish the probability or improbability of the fact
in issue [Sec. 4, Rule 128]
Note: What the Rules prohibit is evidence of
irrelevant collateral facts [2 Regalado 708, 2008 Ed.]
Page 409 of 481
EVIDENCE REMEDIAL LAW
Example
In an administrative case for sexual harassment, the
respondent did not offer evidence that has a bearing
on the complainant’s chastity. What he presented are
charges for grave oral defamation, grave threats,
unjust vexation, physical injuries, malicious mischief,
etc. filed against her. These pieces of evidence do not
establish the probability or improbability of the
offense charged [Civil Service Commission v. Belagan,
G.R. No. 132164 (2004)]
Note: The SC in this case discussed Sec. 51(a), Rule
130 (character evidence in criminal cases) in relation
to relevance but after the above-quoted statement
clarifies, “Obviously, in invoking the above provision,
what respondent was trying to establish is
Magdalena’s lack of credibility and not the probability
or the improbability of the charge. In this regard, a
different provision applies” (i.e. Sec. 11, Rule 132). .
3. Multiple Admissibility
Where the evidence is relevant and competent for two
or more purposes, such evidence should be admitted
for any or all the purposes for which it is offered,
provided it satisfies all the requisites of law for its
admissibility therefor [2 Regalado 706, 2008 Ed.]
When a fact is offered for one purpose, and is
admissible insofar as it satisfies all rules applicable to
it when offered for that purpose, its failure to satisfy
some other rule which would be applicable to it if
offered for another purpose does not exclude it. Thus,
a confession of an accused may not be competent as
against his co-accused, being hearsay as to the latter,
or to prove conspiracy between them without the
conspiracy being established by other evidence,
nonetheless, the confession of the accused may be
admitted as evidence of his own guilt [Francisco 11,
1996 Ed.]
4. Conditional Admissibility
Where the evidence at the time of its offer appears to
be immaterial or irrelevant unless it is connected with
the other facts to be subsequently proved, such
evidence may be received on condition that the other
facts will be proved thereafter; otherwise, the
evidence already given shall be stricken out [2 Regalado
705, 2008 Ed.]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

beyond reasonable doubt [People v. Matito, G.R. No.

5. Curative Admissibility 144405 (2004)]

Note: Circumstantial evidence is not a weaker form of

A party has the right to introduce incompetent
evidence vis-a-vis direct evidence [People v. Matito,
evidence in his behalf where the court has admitted
G.R. No. 144405 (2004)]
incompetent evidence adduced by the adverse party,
[2 Regalado 706, 2008 Ed.]
7. Positive and Negative
What determines the rule of curative
admissibility
Evidence
a. Whether the incompetent evidence was
seasonably objected to - Lack of objection to Positive
Negative evidence
incompetent evidence constitutes waiver by the evidence
party against whom it was introduced but the Witness affirms Witness states he/she did
opposing party is not deprived of his right to that a fact did or not see or know of the
similar rebutting evidence; and did not occur occurrence of a fact
b. Whether the admission of such evidence will [2 Regalado 703, 2008 Ed.]
cause a plain and unfair prejudice to the party
against whom it was admitted 8. Competent and Credible
[2 Regalado 707, 2008 Ed.]
Evidence
6. Direct and Circumstantial Competence
Evidence Evidence is competent when it is not excluded by (i)
law or (ii) the ROC [Sec. 3, Rule 128; 2 Regalado 704,
Direct evidence Circumstantial evidence 2008 Ed.]
Proof of facts from which,
Proves the fact in Determined by the prevailing exclusionary rules of
taken collectively, the
dispute without evidence [2 Regalado 704, 2008 Ed.]
existence of a particular fact
the aid of any
in dispute may be inferred as
inference or Note: Exclusionary rules may affect due process. To
a necessary or probable
presumption the extent that they might prejudice substantive
consequence
rights, therefore, they cannot be made to apply
[Francisco 2, 1996 Ed.]
retroactively.
Circumstantial evidence is the evidence of
EXCLUSIONARY RULES OF EVIDENCE
collateral facts or circumstances from which an
a. Constitutional exclusionary rules
inference may be drawn as to the probability or
1. Unreasonable searches and seizures [Sec. 2,
improbability of the fact in dispute. They are evidence
Art. III]
of relevant collateral facts [2 Regalado 708, 2008 Ed.]
2. Privacy of communication and
correspondence [Sec. 3, Art. III]
Requisites to warrant a conviction based on
3. Right to counsel, prohibition on torture,
circumstantial evidence
force, violence, threat, intimidation or other
a. there is more than one circumstance;
means which vitiate the free will; prohibition
b. the facts from which the inferences are derived
on secret detention places, solitary,
are proven; and
incommunicado [Sec. 12, Art. III]
c. the combination of all the circumstances is such
4. Right against self-incrimination [Sec. 17, Art.
as to produce conviction beyond reasonable
III]
doubt
[Sec. 4, Rule 133]
It is settled that for an extrajudicial confession to be
admissible in evidence against the accused, the same
The totality of the evidence must constitute an
“must be (a) voluntary, (b) made with the assistance
unbroken chain showing the guilt of the accused
of a competent and independent counsel, (c) express,
and (d) in writing.”

Page 410 of 481

U.P. LAW BOC
Moreover, Section 2 of Republic Act No. 7438
requires that "any person arrested, detained or under
custodial investigation shall at all times be assisted by
counsel.”
People v. Paris, G.R. No. 218130 (2018)
Fernandez testified that he was brought to the
Binmaley Police Station at 6:00 a.m. on June 16,
2011 and was asked if he was the one responsible
for the crime and if he would rather admit the
same. Despite the fact that he was already
considered as a suspect of the crime, Fernandez
was not assisted by a lawyer at that time. Atty.
Francisco only arrived past 1:00 p.m. after
Fernandez had already been subjected to
questioning by the police officers starting 6:00 a.m.
Thus, prior to 1:00 p.m., while Fernandez was in
the custody of the Binmaley police and under
investigation as a suspect, he was not able to confer
with any lawyer.
Moreover, Atty. Francisco was not an independent
counsel. Atty. Francisco was a legal consultant in
the Office of the Municipal Mayor of Binmaley. As
such, his duty was to provide legal advice to the
Mayor whose duty, in turn, is to execute the laws
and ordinances and maintain peace and order in
the municipality.
Atty. Francisco cannot be considered as an
independent counsel since protecting the rights of
Fernandez as a suspect is in direct conflict with his
duty to the Municipal Mayor and the local
government of the Municipality.
Atty. Francisco was not vigilant in protecting the
rights of Fernandez during the course of the
custodial investigation. Atty. Francisco allowed
Fernandez to answer each question without
reminding him that he can refuse to answer them
and/or remain silent.
b. Statutory exclusionary rules
1. Lack of documentary stamp tax to
documents required to have one makes such
document inadmissible as evidence in court
until the requisite stamp/s shall have been
affixed thereto and cancelled [Sec. 201,
NIRC];
2. any communication obtained by a person,
not being authorized by all the parties to any
private communication, by tapping any
wire/cable or using any other
Page 411 of 481
EVIDENCE REMEDIAL LAW
device/arrangement to secretly
overhear/intercept/record such information
by using any device, shall not be admissible
in evidence in any judicial/quasi-
judicial/legislative/administrative hearing or
investigation [Secs. 1 and 4, R.A. 4200 (Wire-
Tapping Act)]
The use of a telephone extension for the
purpose of overhearing a private
conversation without authorization did not
violate R.A. 4200 because a telephone
extension devise was neither among those
“device(s) or arrangement(s)" enumerated
therein, following the principle that "penal
statutes must be construed strictly in favor of
the accused.” [Ganaan v. IAC, 145 SCRA
112]
c. Under the ROC, Rule 130 is the applicable
rule in determining the admissibility of
evidence.
d. Court issuances, such as
1. Rule on Electronic Evidence, e.g.
compliance with authentication
requirements for electronic evidence
2. Rule on Examination of a Child Witness, e.g.
sexual abuse shield rule
3. Judicial Affidavit Rule
Competence Credibility
Eligibility of evidence to Worthiness of belief;
be received as such “believability”
Note: Credibility does not, per se, exclude. It only does
in so far as it makes the piece of evidence irrelavant
to the fact in issue. (e.g. the cross-examination of a
witness is primarily about his credibility)
U.P. LAW BOC EVIDENCE
C. Burden of Proof and
Burden of Evidence
Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence
required by law [Sec. 1, Rule 131]
In civil cases, the quantum of evidence required to
sustain the proponent of an issue is preponderance of
evidence [Sec. 1, Rule 133] The burden of proof is on
the party who would be defeated if no evidence were
given on either side [2 Regalado 816, 2008 Ed.], the
plaintiff with respect to his complaint, the defendant
with respect to his counterclaim, and the cross-
claimant, with respect to his cross-claim.
In criminal cases:
• For the issuance of warrant of arrest - evidence
of probable cause that there exist a reasonable
ground that the accused has committed an
offense [Algas v. Garrido, A.M.289-MJ, (1974))
• To warrant the filing of an information – if
there is sufficient ground to engender a well-
founded belief that a crime has been committed
and the respondent is probably guilty thereof,
and should be held for trial [Sec. 1, Rule 112]
• To sustain a conviction - evidence of guilt
beyond reasonable doubt [Sec. 2, Rule 133]
• To deny bail when discretionary – when the
evidence of guilt is strong
• To accept a plea of guilty to a capital offense –
that the accused voluntarily and fully
comprehended the consequences of his plea [Sec.
3, Rule 116]
• To grant demurrer to evidence – the evidence is
insufficient to sustain a conviction [Sec. 23, Rule
119]
The burden of proof rests on the prosecution [Boac v
People, G.R. No. 180597 (2008)]
A party will have the burden of evidence only (i.e.,
will have to be a proponent) if there is any factum
probandum (whether evidentiary or otherwise) that
the adverse party has already established (whether by
law, rule, or by virtue of evidence that he has
presented) that he (the potential proponent) has to
overcome. That factum probandum may, but does
not have to be, nor is limited to a "prima facie
presumption." Likewise, a party will not have any
burden of evidence at all if the adverse party has not
Page 412 of 481
REMEDIAL LAW
established any factum probandum in the first place
[Prof. Avena]
The burden of proof does not shift as it remains
throughout the trial with the party upon whom it is
imposed; the burden of evidence shifts from party
to party depending upon the exigencies of the case in
the course of the trial [2 Regalado 816, 2008 Ed., see
Bautista v. Sarmiento, G.R. No. L-45137 (1985)]
The burden of proof is generally determined by the
pleadings filed by the party; the burden of evidence
is generally determined by the developments at the
trial, or by the provisions of the substantive law or
procedural rules which may relieve the party from
presenting evidence on the fact alleged, i.e.,
presumptions, judicial notice and admissions [2
Regalado 816-817, 2008 Ed.]
In both civil and criminal cases, the burden of
evidence lies with the party who asserts an affirmative
allegation [2 Regalado 817, 2008 Ed.]
Example
In a case for collection of a sum of money, if the
defendant asserts that she has paid, then she has the
burden of proving that she had, not on the creditor
that she had not. While the creditor had needed to
prove the existence of a debt, the burden shifts to the
debtor because she alleged an affirmative defense,
which admits the creditor’s allegation [Vitarich v.
Losin, G.R. No. 181560 (2010)]
Equipoise Rule or Equipoise Doctrine
The doctrine refers to the situation where the
evidence of the parties are evenly balanced or there is
doubt on which side the evidence preponderates. In
this case, the decision should be against the party with
the burden of proof [Rivera v. C.A., G.R. No. 115625
(1998); Marubeni v. Lirag, G.R. No. 130998, (2001)]
In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused [Malana v. People, G.R.
No. 173612, (2008)]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

D. Presumptions Realty, G.R. No. 144268

Presumptions are inferences as to the existence of a
fact not actually known, arising from its usual
connection with another which is known, or a
conjecture based on past experience as to what course
human affairs ordinarily take. Presumptions embody
values and revealed behavioral expectations under a
given set of circumstances [University of Mindanao, Inc.
v. Bangko Sentral ng Pilipinas, G.R. No. 194964-65
(2016)]
A rule of law that attaches probative value to specific
facts, or directs that an inference be drawn as to
existence of a fact, not actually known, arising from
its usual connection with other particular facts which
are known or established [Francisco at 51]
A presumption can rest only upon ascertained facts.
It cannot be based on other presumptions,
assumptions, probabilities or inferences [ibid. At 52]
Presumptions are not allegations, nor do they supply
their absence. Presumptions are conclusions. They do
not apply when there are no facts or allegations to
support them [University of Mindanao, Inc. v. Bangko
Sentral ng Pilipinas, G.R. No. 194964-65 (2016)]
(2006)]
1. Conclusive Presumptions
a. A party is not permitted falsify a thing whenever:
1. By his own declaration, act or omission;
2. He intentionally and deliberately led another
to believe a particular thing is true;
3. To act upon such belief; and
4. The litigation arises out of such declaration
act or omission.
b. A 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
[Sec. 2, Rule 131]
These conclusive presumptions are based upon the
doctrine of estoppel in pais, see Arts. 1431-1439, Civil
Code [2 Regalado 820, 2008 Ed.]
Once a contract of lease is shown to exist between the
parties, the lessee cannot by any proof, however
strong, overturn the conclusive presumption that the
lessor has a valid title to or a better right of possession
to the subject premises than the lessee [Santos v.
National Statistics Office., G.R. No. 171129, (2011)]

Presumption of fact Presumption of law What a tenant is estopped from denying is the title of
Praesumptiones hominis [2 Praesumptiones juris [2 his landlord at the time of the commencement of the
Regalado 819, 2008 Ed.] Regalado 819, 2008 Ed.] landlord-tenant relation. If the title asserted is one
Those which the law that is alleged to have been acquired subsequent to the
Those which the commencement of that relation, the presumption will
requires to be drawn
experience of mankind not apply. Hence, the tenant may show that the
from the existence of
has shown to be valid, landlord's title has expired or been conveyed to
established facts in the
founded on general another or himself; and he is not estopped to deny a
absence of contrary
knowledge and claim for rent, if he has been ousted or evicted by title
evidence; derived from
information; essentially paramount [Ermitaño v Paglas, G.R. No. 174436
the law itself rather
an inference (2013)]
from common logic or
probability
e.g. Inference of guilt
upon discovery of 2. Disputable Presumptions
e.g. Presumption of
bloodied garment in
innocence in favor of a. Person is innocent of crime or wrong;
possession of accused
the accused b. Unlawful act is done with an unlawful intent;
c. Person intends the ordinary consequences of his
Conclusive Disputable voluntary act;
Satisfactory if d. Person takes ordinary care of his concerns;
Inferences which the law
uncontradicted, e. Evidence willfully suppressed would be adverse
makes so peremptory that it
but may be if produced;
will not allow them to be
contradicted and f. Money paid by one to another was due to the
overturned by any contrary
overcome by latter;
proof however strong
other evidence g. Thing delivered by one to another belonged to
[Datalift Movers v. Belgravia
[Sec. 3, Rule 131] the latter;

Page 413 of 481

U.P. LAW BOC EVIDENCE
h. Obligation delivered up to the debtor has been
paid;
i. Prior rents or installments had been paid when a
receipt for the later ones is produced;
j. 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;
k. 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;
l. Person acting in a public office was regularly
appointed or elected to it;
m. Official duty has been regularly performed;
n. A court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
o. All the matters within an issue raised in a case
were laid before the court and passed upon by it;
and in like manner that all matters within an issue
raised in a dispute submitted for arbitration were
laid before the arbitrators and passed upon by
them;
p. Private transactions have been fair and regular;
q. Ordinary course of business has been followed;
r. There was a sufficient consideration for a
contract;
s. Negotiable instrument was given or indorsed for
a sufficient consideration;
t. An indorsement of a negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
u. A writing is truly dated;
v. Letter duly directed and mailed was received in
the regular course of the mail;
w. Presumptions concerning absence:
1. Ordinary but continued absence of:
a. 7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for those
of succession
b. 10 years—the absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75 years,
an absence of 5 years shall be sufficient
to open his succession
c. 4 consecutive years—the spouse
present may contract a subsequent
marriage if s/he has a well-founded
belief that the absent spouse is already
dead; but where there is danger of
Page 414 of 481
REMEDIAL LAW
death, an absence of only 2 years shall
be sufficient for remarriage
2. Qualified absence – The following shall be
considered dead for all purposes including
the division of the estate among the heirs
i. A person on board a vessel lost during
a sea voyage, or an aircraft which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aircraft
ii. A member of the armed forces who
has taken part in armed hostilities, and
has been missing for 4 years
iii. A person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years
x. Acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact
y. Things have happened according to the ordinary
course of nature and the ordinary habits of life
z. Persons acting as co-partners have entered into a
contract of co-partnership;
aa. A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
bb. Property acquired by a man and a woman who
are capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under a void
marriage, has been obtained by their joint efforts,
work or industry;
cc. In cases of cohabitation by a man and a woman
who are not capacitated to marry each other and
who have acquired property through their actual
joint contribution of money, property or
industry, such contributions and their
corresponding shares including joint deposits of
money and evidences of credit are equal;
dd. Presumptions governing children of women who
contracted another marriage within 300 days after
termination of her former marriage (in the
absence of proof to the contrary):
When Child was
Presumption
Born
Considered to have
been conceived during
Before 180 days after
the former marriage,
the solemnization of
provided it be born
the subsequent
within 300 days after
marriage
the termination of the
former marriage
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Considered to have
been conceived during No presumption of legitimacy or illegitimacy
After 180 days the subsequent There is no presumption of legitimacy or illegitimacy
following the marriage, even though of a child born after 300 days following the
celebration of the it be born within the dissolution of marriage or the separation of spouses.
subsequent marriage 300 days after the Whoever alleges the legitimacy or illegitimacy of such
termination of the child must prove his allegation [Sec. 4, Rule 131]
former marriage.
The application of disputable presumptions on a
ee. A thing once proved to exist continues as long as given circumstance must be based on the existence of
is usual with things of the nature; certain facts on which they are meant to operate
ff. The law has been obeyed; [University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas,
gg. A printed/published book, purporting to be G.R. No. 194964-65 (2016)]
printed/published by public authority, was so
printed/published; MCMP contends that the Contract presented by
hh. A printed/published book, purporting to contain Monark is not the contract that they entered into. Yet,
reports of cases adjudged in tribunals of the it has failed to present a copy of the Contract even
country where the book is published, contains despite the request of the trial court for it to produce
correct reports of such cases; its copy of the Contract. Normal business practice
ii. A trustee or other person whose duty it was to dictates that MCMP should have asked for and
convey real property to a particular person has retained a copy of their agreement. Thus, MCMP's
actually conveyed it to him when such failure to present the same and even explain its failure
presumption is necessary to perfect the title of gives rise to the disputable presumption adverse to
such person or his successor in interest; MCMP that "evidence willfully suppressed would be
jj. Presumptions regarding survivorship: adverse if produced [MCMP Construction v. Monark
(Applicable for all purposes except succession) Equipment, G.R. No. 201001 (2014)]
1. When 2 persons perish in the same calamity
2. It is not shown who died first; and The adverse presumption of suppression of
3. There are no particular circumstances from evidence is not applicable when:
which it can be inferred, a. The suppression is not willful;
b. The evidence suppressed or withheld is merely
The survivorship is determined from the probabilities corroborative or cumulative;
resulting from the strength and the age of the sexes: c. The evidence is at the disposal of both parties;
Person and
Situation presumed to d. The suppression is an exercise of a privilege
have survived [Tarapen v. People, G.R. No. 173824 (2008)]
Both < 15 y/o The older
Both > 60 y/o The younger The presumption of regularity in the performance of
One < 15 y/o, official duty obtains only when there is no deviation
The one < 15 from the regular performance of duty. Where the
the other > 60 y/o
Both > 15 and < 60 y/o, of official act in question is irregular on its face, no
The male presumption of regularity can arise [People v.
different sexes
Both > 15 and <60 y/o, of Casabuena, G.R. No. 186455 (2014)]
The older
the same sex
One < 15 or > 60 y/o, and The one between When there is gross disregard of the procedural
the other between those ages those ages safeguards set forth in Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002),
kk. As between 2 or more persons called to succeed serious uncertainty is generated as to the identity of
each other: If there is a doubt as to which of them the seized items that the prosecution presented in
died first, whoever alleges the death of one prior evidence. Such doubt cannot be remedied by merely
to the other, shall prove the same. In the absence invoking the presumption of regularity in the
of proof, they shall be considered to have died at performance of official duties [People v. Lagahit, G.R.
the same time. No. 200877 (2014)]
[Sec. 3, Rule 131]

Page 415 of 481

U.P. LAW BOC EVIDENCE REMEDIAL LAW

There is a disputable presumption that things have

happened according to the ordinary course of nature
and the ordinary habits of life. All of the foregoing
evidence, that a person with typical Filipino features
is abandoned in Catholic Church in a municipality
where the population of the Philippines is
overwhelmingly Filipinos such that there would be
more than a 99% chance that a child born in the
province would be a Filipino, would indicate more
than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and
the evidence on which it is based are admissible under
Rule 128, Section 4 of the Revised Rules on Evidence
[Poe-Llamanzares v. COMELEC, G.R. No. 221697
(2016)]
E. Liberal Construction of
the Rules of Evidence
The Rules of Court, including the Revised Rules on
Evidence, shall be liberally construed in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and
proceeding [Sec. 6, Rule 1]
Rules on Electronic Evidence shall likewise be
liberally construed [Sec. 2, Rule 2, Rules on Electronic
Evidence]

Page 416 of 481

U.P. LAW BOC EVIDENCE
F. Quantum of Evidence
(Weight and Sufficiency
of Evidence)
1. Proof beyond Reasonable
Doubt
In a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond reasonable
doubt. Proof beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which
produces conviction in an unprejudiced mind [Sec. 2,
Rule 133]
The burden is on the prosecution to prove guilt
beyond reasonable doubt, NOT on the accused to
prove his/her innocence [Boac v People, G.R. No.
180597, (2008)]
The prosecution must not rely on the weakness of the
evidence of the defense [Ubales v People, G.R. No.
175692, (2008); People v. Hu, G.R. No. 182232, (2008)]
2. Preponderance of Evidence
Applicable quantum of evidence in civil cases [Sec. 1,
Rule 133]
Means that the evidence adduced by one side is, as a
whole, superior to or has greater weight than that of
the other [Habagat Grill v. DMC-Urban Property
Developer, Inc., G.R. No. 155110, (2005); Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, (2008)]
In determining preponderance of evidence, the court
may consider:
a. All the facts and circumstances of the case;
b. The witnesses’ manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they testify, the nature
of the facts to which they testify, the probability
or improbability of their testimony, their interest
or want of interest, and also their personal
credibility so far as the same may legitimately
appear upon the trial;
c. Number of witnesses (although preponderance is
not necessarily with the greater number) [Sec. 1,
Rule 133]
Page 417 of 481
REMEDIAL LAW
3. Substantial Evidence
a. Degree of evidence required in cases filed before
administrative or quasi-judicial bodies
b. Definition: Amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion.
[Sec. 5, Rule 133]
Also applies to petitions under the Rule on the Writ
of Amparo [Sec. 17, Rule on the Writ of Amparo] and
the Rule on the Writ of Habeas data [Sec. 16, Rule on
the Writ of Habeas data]
Substantial Evidence Rule
Factual findings, especially when affirmed by the
Court of Appeals, are accorded not only great respect
but also finality, and are deemed binding upon this
Court so long as they are supported by substantial
evidence [Tan Brothers Corp. v. Escudero, G.R. No.
188711 (2013)]
4. Clear and Convincing
Evidence
The standard of proof required in granting or denying
bail in extradition cases is “clear and convincing
evidence” that the potential extradee is not a flight
risk and will abide with all the orders and process of
the extradition court [Government of Hongkong Special
Administrative Region v. Olalia, Jr., G.R. No. 153675,
(2007)]
It must be added that the defenses of denial and
improper motive can only prosper when
substantiated by clear and convincing evidence [People
v. Colentava, G.R. No. 190348 (2015)]
It is used for overturning disputable presumptions,
such as the presumption of regularity in the
performance of official duties [Portuguez v. People, G.R.
No. 194499, (2015)] or the existence of a valuable
consideration [Tolentino v. Sps. Jerera, G.R. No. 179874
(2015)]
Note however: The addressee's “direct denial” of
receipt of mail alleged to have been mailed to it
defeats the presumption in Sec. 3(v), Rule 131 and
shifts the burden upon the party favored by the
presumption to prove that the mailed letter was
indeed received by the addressee [Commissioner of
Internal Revenue v. Metro Star, G.R. No. 185371 (2010)]
U.P. LAW BOC
It is also the standard of proof for invoking the
justifying circumstance of self-defense for the defense
and proving the aggravating circumstance of
treachery for the prosecution [People v. C.A.sas, G.R.
No. 212565 (2015)] The former is because having
admitted the killing requires the accused to rely on the
strength of his own evidence, not on the weakness of
the Prosecution’s, which, even if it were weak, could
not be disbelieved in view of his admission [People v.
Mediado, G.R. No. 169871 (2011)]
Clear and convincing evidence is more than mere
preponderance, but not to extent of such certainty as
is required beyond reasonable doubt as in criminal
cases [Manalo v. Roldan-Confesor, G.R. No. 102358
(1992)]
Page 418 of 481
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G. Judicial Notice and
Judicial Admissions
1. What Need Not Be Proved
a. Facts of Judicial Notice
b. Judicial Admissions
c. Conclusive Presumptions
Note: Evidence is also not required when the issue is
purely a question of law. The definition of “evidence”
in Sec. 1, Rule 128 refers to “a matter of fact”.
2. Matters of Judicial Notice
Judicial Notice
Judicial notice is the cognizance of certain facts that
judges may properly take and act on without proof
because these facts are already known to them. Put
differently, it is the assumption by a court of a fact
without need of further traditional evidentiary
support. The principle is based on convenience and
expediency in securing and introducing evidence on
matters which are not ordinarily capable of dispute
and are not bona fide disputed [Republic v.
Sandiganbayan, G.R. No. 166859, (2011)]
a. When Mandatory
1. Existence and territorial extent of states;
2. Their political history, forms of government, and
symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world and
their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of the legislative, executive and
judicial departments of the Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions [Sec. 1, Rule 129]
Note: Even if not raised or alleged by petitioner, courts
should take mandatory judicial notice of an
amendment to the Rules of Court [Siena Realty v. Gal-
lang, G.R. No. 145169 (2004)]
The Management Contract entered into by petitioner
and the PPA is clearly not among the matters which
the courts can take judicial notice of. It cannot be
U.P. LAW BOC EVIDENCE
considered an official act of the executive department.
The PPA was only performing a proprietary function
when it entered into a Management Contract with
petitioner. As such, judicial notice cannot be applied
[Asian Terminals v. Malayan Insurance, G.R. No. 171406
(2011)]
The RTC declared that the discrepancy arose from the
fact that Barrio Catmon was previously part of Barrio
Tinajeros. The RTC has authority to declare so
because this is a matter subject of mandatory judicial
notice. Geographical divisions are among matters that
courts should take judicial notice of [B.E. San Diego,
Inc. v. C.A., G.R. No. 159230 (2010)]
b. When Discretionary
1. Matters of public knowledge;
2. Matters capable of unquestionable
demonstration; and
3. Matters ought to be known to judges because of
their judicial functions [Sec. 2, Rule 129]
Requisites
1. The matter must be one of common and general
knowledge;
2. It must be well and authoritatively settled and not
doubtful or uncertain;
3. It must be known to be within the limits of the
jurisdiction of the court
[State Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)]
Judicial notice is not judicial knowledge. The mere
personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to
make his individual knowledge of a fact, not generally
or professionally known, the basis of his action.
Judicial cognizance is taken only of those matters
which are "commonly" known [State Prosecutors v,
Muro, A.M. No. RTJ-92-876 (1994)]
With Respect to Ordinances
Municipal trial courts are required to take judicial
notice of the ordinances of the municipality or city
wherein they sit [2 Regalado 833, 2008 Ed.]
Regional Trial Courts must take judicial notice of
such ordinances only:
1. When required to do so by statute e.g. in Manila
as required by the city charter [City of Manila v.
Garcia, et al., G.R. No. L-26053 (1967)]; and
2. In a case on appeal before them and wherein the
inferior court took judicial notice of an ordinance
involved in said case [U.S. v. Blanco, G.R. No.
Page 419 of 481
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12435 (1917); U.S. v. Hernandez, G.R. No. 9699
(1915)]
Note: The principal guide in determining what facts
may be assumed to be judicially-known is that of
notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and facts
of general notoriety. Morever, a judicially-noticed fact
must be one not subject to a reasonable dispute in that
it is either (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be
questionable [Riano 76-77, 2016 Ed.]
c. When Hearing Necessary
During the Trial
The court, on its own initiative, or on request of a
party, may announce its intention to take judicial
notice of any matter and allow the parties to be heard
thereon [Sec. 3, Rule 129]
After the Trial and Before Judgment or on Appeal
The proper court, on its own initiative or on request
of a party, may take judicial notice of any matter and
allow the parties to be heard thereon if such matter is
decisive of a material issue in the case [Sec. 3, Rule
129]
With Respect to the Court’s Own Acts and
Records
A court will take judicial notice of its own acts and
records in the same case, of facts established in prior
proceedings in the same case, of the authenticity of its
own records of another case between the same
parties, of the files of related cases in the same court,
and of public records on file in the same court
[Republic v. C.A., G.R. No. 119288 (1997)]
d. With Respect to Records of
Other Cases
General rule: Courts are not authorized to take judicial
notice of the contents or records of other cases even
if both cases may have been tried or are pending
before the same judge [Prieto v. Arroyo, G.R. No. L-
17885 (1965)]
Exceptions:
In the absence of objection, and as a matter of
convenience to all parties, a court may properly treat
all or any part of the original record of a case filed in
U.P. LAW BOC
its archives as read into the record of a case pending
before it, when:
1. With the knowledge of the opposing party,
reference is made to it for that purpose, by name
and number or in some other manner by which it
is sufficiently designated; or
2. The original record of the former case or any part
of it, is actually withdrawn from the archives by
the court's direction, at the request or with the
consent of the parties, and admitted as a part of
the record of the case then pending
[US v Claveria, G.R. No. G.R. No. 9282 (1915)]
Courts may also take judicial notice of proceedings in
other causes because of their:
1. Close connection with the matter in controversy.
Ex: In a separate civil action against the
administrator of an estate arising from an appeal
against the report of the committee on claims
appointed in the administration proceedings of
the said estate, the court took judicial notice of
the record of the administration proceedings to
determine whether or not the appeal was taken
on time,
2. To determine whether or not the case pending is
a moot one or whether or not a previous ruling is
applicable in the case under consideration.
3. The other case had been decided by the same
court, involving the same subject matter, with the
same cause of action, and was between the same
parties (which was not denied), and constituted
res judicata on the current cause before the court
[Tiburcio v. PHHC, G.R. No. L-13479, (1959)]
Courts cannot take judicial notice that vehicular
accidents cause whiplash injuries [Dela Llana v Biong,
G.R. No. 182356 (2013)]
The classification of the land is obviously essential to
the valuation of the property. The parties should thus
have been given the opportunity to present evidence
on the nature of the property before the lower court
took judicial notice of the commercial nature of a
portion of the subject landholdings [LBP v. Honeycomb
Farms, G.R. No. 166259 (2012)]
It can be considered of public knowledge and
judicially noticed that the scene of the rape is not
always nor necessarily isolated or secluded for lust is
no respecter of time or place. The offense of rape can
and has been committed in places where people
congregate, e.g. inside a house where there are
occupants, a five (5) meter room with five (5) people
inside, or even in the same room which the victim is
Page 420 of 481
EVIDENCE REMEDIAL LAW
sharing with the accused's sister [People v. Tundag, G.R.
Nos. 135695-96. (2000)]
Laws of nature involving the physical sciences,
specifically biology, include the structural make-up
and composition of living things such as human
beings. The Court may take judicial notice that a
person’s organs were in their proper anatomical
locations [Atienza v. Board of Medicine, G.R. No. 177407
(2011)]
The distance between places may be taken as a matter
of judicial notice [Maceda v. Vda. De Macatangay, G.R.
No. 164947 (2006)]
The Court may take judicial notice of the assessed
value of the property. Considering that the subject
land was more than 4 million square kilometers, RTC
acted properly when it took judicial notice of the total
area of the property involved and the prevailing
assessed value of the titled property, and it would also
be at the height of absurdity if the assessed value of
the property with such an area is less than P20,000
[Bangko Sentral ng Pilipinas v. Legaspi, G.R. No. 205966
(2016)]
The Court may not take judicial notice of contracts
entered into by GOCCs in the exercise of their
proprietary function. These cannot be considered an
official act of the executive department [Asian
Terminals v. Malayan Insurance, G.R. No. 171406 (2011)]
3. Judicial Admissions
In General
To be a judicial admission, the same:
a. Must be made by a party to the case;
b. Must be made in the course of the proceedings in
the same case; and
c. May be verbal or written
[Sec. 4, Rule 129]
Note: The admission, to be judicial, must be made in
the course of the proceedings in the same case. Thus,
an admission made in another judicial proceeding will
not be deemed a judicial admission in another case
where the admission is not made. Instead, it will be
considered an extrajudicial admission for purposes of
the other proceeding where such admission is offered
[Riano 87, 2016 Ed.]
Judicial admissions may be made in
a. the pleadings filed by the parties,
U.P. LAW BOC
b. in the course of the trial, either by verbal or
written manifestations or stipulations, or
c. in other stages of the judicial proceeding; as in the
pre-trial of the case.
Admissions obtained through depositions, written
interrogatories or requests for admission are also
considered judicial admissions [2 Regalado 836-837,
2008 Ed.]
Examples of item (c) above are
1. Stipulations of facts by the parties in a pre-trial
conference. See People v. Hernandez [G.R. No.
108028 (1996)]
2. Motions, see Republic v. de Guzman, G.R. No.
175021 (2011), where allegations made in a
motion to dismiss were considered to be, among
others requiring denial by the adverse party and
absence of such led to the application of Sec. 4,
Rule 129
Note:
a. Sec. 8, Rule 10 provides that “[a]n amended
pleading supersedes the pleading that it amends.
However, admissions in superseded
pleadings may be received in evidence
against the pleader.” Thus, admissions in
superseded pleadings have to be “received in
evidence” precisely because they become extra-
judicial in nature the moment the pleading
containing them are superseded by virtue of
amendment. See Bastida v. Menzi & Co, Inc [G.R.
No. L-35840 (1933)], cited in 2 Regalado 837, 2008
Ed.
b. Admissions made by a party pursuant to a request
for admission is for the purpose of the pending
action only [Sec. 3, Rule 26]
c. In criminal cases, all agreements or admissions
made or entered during the pre-trial conference
shall be reduced in writing and signed by the
accused and counsel, otherwise, they cannot be
used against the accused [Sec. 2, Rule 118]
However, in the civil case instituted with the
criminal case, such admission will be admissible
against any other party.
There are averments made in pleadings which are not
deemed admissions even if the adverse party fails to
make a specific denial of the same like immaterial
allegations [Sec. 11, Rule 8], conclusions, non-
ultimate facts in the pleading [Sec. 1, Rule 8] as well
as the amount of liquidated damages [Sec. 11, Rule 8]
[Riano 89, 2016 Ed.]
Page 421 of 481
EVIDENCE REMEDIAL LAW
Note: The theory of adoptive admission has been
adopted by the court in this jurisdiction. An adoptive
admission is a party’s reaction to a statement or action
by another person when it is reasonable to treat the
party’s reaction as an admission of something stated
or implied by the other person. The basis for
admissibility of admissions made vicariously is that
arising from the ratification or adoption by the party
of the statements which the other person had made.
In the Angara Diary, Estrada’s options started to
dwindle when the armed forces withdrew its support.
Thus, Executive Secretary Angara had to ask Senate
President Pimentel to advise petitioner to consider
the option of dignified exit or resignation. Estrada
did not object to the suggested option but simply said
he could never leave the country. His silence on this
and other related suggestions can be taken as an
admission by him [Estrada v. Desierto, G.R. Nos.
146710-15 (2001)]
Judicial Proceeding [Sec. 3, Rule 1]
a. Civil – includes special civil actions
b. Criminal
c. Special Proceeding
Examples of statements made that are not judicial admissions
a. Statements made during preliminary
investigation
b. Statements during Court-Annexed Mediation
Note: Execution of judgment is part of a judicial
proceeding. The Court retains control over the case
until the full satisfaction of the final judgment [People
v. Gallo, G.R. No. 124736 (1999)]
a. Effect of Judicial Admissions
It does not require proof and CANNOT be
contradicted [Sec. 4, Rule 129]
An original complaint, after being amended, loses its
character as a judicial admission, which would have
required no proof. It becomes merely an extra-judicial
admission requiring a formal offer to be admissible
[Torres v. C.A., G.R. No. L-37420, (1984)]
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, G.R. No. 165987 (2006)]
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. A
U.P. LAW BOC EVIDENCE
judicial admission also removes an admitted fact from
the field of controversy.
Consequently:
1. an admission made in the pleadings cannot be
controverted by the party making such admission
and are conclusive as to such party, and all proofs
to the contrary or inconsistent therewith should
be ignored, whether objection is interposed by
the party or not;
2. The allegations, statements or admissions
contained in a pleading are conclusive as against
the pleader.
3. A party cannot subsequently take a position
contrary of or inconsistent with what was
pleaded. [Florete, Sr. v. Florete, Jr., G.R. No.
223321, (2018)]
b. How Judicial Admissions May
be Contradicted
As an exception to the general rule, judicial
admissions may be contradicted only by showing that:
1. It was made through palpable mistake; or
2. No such admission was made
[Sec. 4, Rule 129]
3. In the case of a pre-trial admission in civil cases,
to prevent manifest injustice [Sec. 7, Rule 18]; or
4. In criminal cases, if the pre-trial admission was
reduced to writing and signed by the accused and
his counsel [Secs. 2 and 4, Rule 118]
This may be invoked when the statement of a party is
taken out of context or that his statement was made
not in the sense it is made to appear by the other party
[Phil. Health Care Providers v. Estrada, G.R. No. 171052,
(2008), citing Atillo, III v. C.A. (1997)]
An admission against interest binds the person who
makes the same, and absent any showing that this was
made through palpable mistake, no amount of
rationalization can offset it, especially so in this case
where respondents failed to present even one piece of
evidence in their defense. [Heirs of Donton v. Stier, G.R.
No. 216491 (2017)]
Page 422 of 481
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4. Judicial Notice of Foreign
Laws, Law of Nations and
Municipal Ordinance
FOREIGN LAWS
General rule: Courts cannot take judicial notice of
foreign laws. They must be alleged and proved as any
other fact [Yao-Kee v. Sy-Gonzales, G.R. No. L-55960
(1988)]
Written foreign law may be proved by:
a. An official publication; or
b. A duly attested and authenticated copy
[Sec. 24, Rule 132]
Attested copy
a. Attestation must be made by the officer having
legal custody of the record or by his deputy [Sec.
24, Rule 132]
1. It must state, in substance, that the copy is a
correct copy of the original, or a specific part
thereof [Sec. 25, Rule 132]
2. It must be under the official seal of the
attesting officer, if there be any, or if he be a
clerk of court having a seal, under the seal of
such court [Sec. 25, Rule 132]
b. It must be accompanied by a certificate that
attesting officer has custody. The certificate may
be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular
agent or by 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 [Sec. 24, Rule 132]
Unwritten foreign law
Where the foreign law sought to be proved is
"unwritten," the oral testimony of expert witnesses is
admissible, as are printed and published books of
reports of decisions of the courts of the country
concerned if proved to be commonly admitted in
such courts [Wildvalley Shipping Co., Ltd. v. C.A., G.R.
No. 119602 (2000)]
Doctrine of Processual Presumption
In the absence of proof, the foreign law will be
presumed to be the same as the laws of the
jurisdiction hearing the case [Northwest Orient Airlines
v. C.A., G.R. No. 112573 (1995)]
U.P. LAW BOC EVIDENCE
The court may take judicial notice of the foreign
law
a. Where the foreign law is within the actual
knowledge of the court such as when the law is
well and generally known such as when they are
well and generally known or they had been ruled
upon in other cases before it and none of the
parties claim otherwise [PCIB v Escolin G.R. L-
27860 and L-27896 (1974], citing Moran]
b. When the foreign law is part of a published
treatise, periodical or pamphlet and the writer is
recognized in his/her profession or calling as
expert in the subject [Sec. 46, Rule 130]
Law Of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of the
land [Sec. 2, Art. II, Constitution]
Being part of the law of the land, they are therefore in
the nature of local laws, and hence, subject to
mandatory judicial notice under Sec. 1 of Rule 129.
MUNICIPAL ORDINANCE
Municipal trial courts are required to take judicial
notice of the ordinances of the municipality or city
wherein they sit [2 Regalado 833, 2008 Ed.]
Regional Trial Courts must take judicial notice of
such ordinances only:
a. When required to do so by statute e.g. in Manila
as required by the city charter [City of Manila v.
Garcia, et al., G.R. No. L-26053 (1967)]; and
b. In a case on appeal before them and wherein the
inferior court took judicial notice of an ordinance
involved in said case [U.S. v. Blanco, G.R. No.
12435 (1917); U.S. v. Hernandez, G.R. No. 9699
(1915)]
Page 423 of 481
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H. Object (Real) Evidence
1. Meaning of Object Evidence
Object Evidence
Those addressed to the senses of the court [Sec. 1,
Rule 130]
A person’s appearance, where relevant, is admissible
as object evidence, the same being addressed to the
senses of the court [People v. Rullepa y Guinto, G.R. No.
131516 (2003)]
An ocular inspection of the body of the accused is
permissible [Villaflor v. Summers, G.R., No. 16444
(1920)]
The right against self-incrimination cannot be
invoked against object evidence [People v. Malimit,
G.R. No. 109775 (1996)]
2. Requisites for Admissibility
Basic requisites for admissibility
a. Evidence must be relevant;
b. Evidence must be authenticated;
c. Authentication must be made by a competent
witness; and
d. Object must be formally offered [Sec. 34, Rule
132]
[Riano 101, 2016 Ed.]
Requisites for the admissibility of tape recording
a. A showing that the recording was capable of
taking testimony
b. A showing that the operator of the recording
device is competent
c. Establishment of the authenticity and correctness
of recording
d. A showing that no changes, deletions, or
additions have been made on the recordings
e. A showing of the manner of preservation of the
recording
f. Identification of speakers
g. A showing that the testimony elicited was
voluntarily made without any kind of inducement
[Torralba v. People, G.R. No. 153699 (2005))
U.P. LAW BOC EVIDENCE REMEDIAL LAW

RELEVANT Objects with no

Non-
General rule: When an object is relevant to the fact in identifying marks E.g., narcotic
unique
issue, it may be exhibited to, examined or viewed by and cannot be substances
objects
the court [Sec. 1, Rule 130] marked

Exceptions: Court may refuse exhibition of object

evidence and rely on testimonial evidence alone if— As a general rule, four links in the chain of custody of
a. Exhibition is contrary to public policy, morals or the confiscated item must be established:
decency;
b. It would result in delays, inconvenience, a. first, the seizure and marking, if practicable,
unnecessary expenses, out of proportion to the of the illegal drug recovered from the
evidentiary value of such object; [People v. Tavera, accused by the apprehending officer;
G.R. No. L-23172 (1925)] b. second, the turnover of the illegal drug
c. Evidence would be confusing or misleading. seized by the apprehending officer to the
d. The testimonial or documentary evidence already investigating officer;
presented clearly portrays the object in question c. third, the turnover by the investigating
as to render a view thereof unnecessary officer of the illegal drug to the forensic
chemist for laboratory examination; and
COMPETENT AND AUTHENTICATED d. fourth, the turnover and submission of the
marked illegal drug seized from the forensic
Evidence must be authenticated chemist to the court. [People v. Gayoso, G.R.
To authenticate the object is to show that the object No. 206590 (2017)]
is the very thing that is either the subject matter of the
lawsuit or the very one involved to prove an issue in 4. Demonstrative Evidence
the case
Not the actual thing, rather it represents or
Authentication must be made by competent “demonstrates” the real thing, e.g., photographs,
witness motion pictures and recordings [Riano 102, 2016 Ed.]
To authenticate the object, the witness must have the
capacity to identify the object as the very thing Audio, photographic and video evidence of events,
involved in the litigation acts or transactions shall be admissible provided it
shall be:
A witness can testify to those facts which he/she a. shown, presented or displayed to the court,
knows of his/her personal knowledge [Sec. 36, Rule and
130] b. identified, explained or authenticated
1. by the person who made the recording,
3. Categories of Object or
2. by some other person competent to
Evidence testify on the accuracy thereof
[Sec. 1, Rule 11, Rules on Electronic Evidence]
The “thing itself”
(according to means of authentication)
E.g., a caliber
5. View of an Object or Scene
Objects that have
Unique 45 pistol by
readily identifiable When an object is relevant to the fact in issue, it may
objects virtue of its
marks be exhibited to, examined or viewed by the court [Sec.
serial number
E.g., a typical 1, Rule 130]
Objects with no
kitchen knife
Objects unique The “view” is expressly authorized by Sec. 1, Rule 130
with identifying
made characteristic but but even without this express provision, it is well-
marks placed
unique are made readily recognized that the court has an inherent power to
on it by the
identifiable order a view when there is a need to do so (See Sec. 5,
witness
Rule 135.) [Riano 106, 2016 Ed.]

Page 424 of 481

U.P. LAW BOC
The inspection or view outside the courtroom should
be in made in the presence of the parties or at least
with previous notice to them in order that they may
show the object to be viewed [5 Moran 81, 1970 Ed.,
cited in In re Climaco, A.C. No. 134-J (1974),
Teehankee, J.]
Page 425 of 481
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I. Documentary Evidence
1. Meaning of Documentary
Evidence
Consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of
written expressions offered as proof of their
contents [Sec. 2, Rule 130] If offered for some other
purpose, they constitute object evidence.
2. Requisites for Admissibility
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a
competent witness;
d. The document must be formally offered in
evidence
[Riano 132, 2016 Ed.]
a. Rules on Electronic Evidence
(A.M. No. 01-7-01-SC)
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
[Sec. 2, Rule 3]
3. Best Evidence Rule
a. Meaning of the Rule
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other
than the original document itself [Sec. 3, Rule 130]
b. When Applicable
When applicable (General Rule)
Only when the subject of inquiry is the contents of
a document [Sec. 3, Rule 130]
When not applicable
When the issue is only as to whether or not such
document was actually executed or in the
circumstances relevant to its execution [People v
Tandoy, G.R. No. 80505, (1990)]
U.P. LAW BOC EVIDENCE
Hence, the Best Evidence Rule applies only when the
terms of a writing are in issue. When the evidence
sought to be introduced concerns external facts, such
as the existence, execution or delivery of the writing,
without reference to its terms, the Best Evidence Rule
cannot be invoked. In such a case, secondary evidence
may be admitted even without accounting for the
original. The Best Evidence Rule was not applicable
because the terms of the deed of sale with right to
repurchase were not the issue [Heirs of Prodon v.
Alvarez, G.R. No. 170604 (2013)]
Where the issue is only as to whether such document
was actually executed, or exists, or on the
circumstances relevant to or surrounding its
execution, the best evidence rule does not apply and
testimonial evidence is admissible. [Republic v. Gimenez,
G.R. No. 174673 (2016)]
Where the issue is only as to whether such document
was actually executed, or exists, or on the
circumstances relevant to or surrounding its
execution, the best evidence rule does not apply and
testimonial evidence is admissible.
Affidavits and depositions are considered as not being
the best evidence, hence not admissible if the affiants
or deponents are available as witnesses [2 Regalado
721, 2008 Ed., citing 4 Martin 82]
c. Meaning of Original Document
1. The original of a document is one the contents of
which are the subject of inquiry.
2. When a document is in two or more copies
executed at or about the same time, with identical
contents, all such copies are equally regarded as
originals.
3. When an entry is repeated in the regular course
of business, one being copied from another at or
near the time of the transaction, all the entries are
likewise equally regarded as originals.
[Sec. 4, Rule 130]
Carbon copies are deemed duplicate originals. [People
v Tan, G.R. No. L-14257 (1959); Skunac v. Sylianteng,
G.R. No. 205879 (2014)]
The picture images of the ballots, as scanned and
recorded by the PCOS, are likewise ‘official ballots’
that faithfully capture in electronic form the votes cast
by the voter, as defined by Sec. 2(3) of RA 9369. As
such, the printouts thereof are the functional
equivalent of the paper ballots filled out by the voters
Page 426 of 481
REMEDIAL LAW
and, thus, may be used for purposes of revision of
votes in an electoral protest [Vinzons-Chato v. House of
Representatives Electoral Tribunal, G.R. No. 199149
(2013)]
d. Requisites for Introduction of
Secondary Evidence
1. When the original has been lost or destroyed,
or cannot be produced in court
a. When the original has been lost or destroyed,
or cannot be produced in court;
b. Upon proof of its execution or existence;
c. Without bad faith on the offeror’s part
[Sec. 5, Rule 130]
Proponent must prove due execution or
existence, and the cause of the loss, destruction
or unavailability of the original [Sec. 5, Rule 130]
and reasonable diligence and good faith in the
search for/attempt to produce the original [Tan
v. C.A., G.R. No. L-56866 (1985)]
A photocopy, being merely secondary evidence,
is not admissible unless it is shown that the
original is unavailable.
Pursuant to Sec. 5, Rule 130, before a party is
allowed to adduce secondary evidence to prove
the contents of the original, it is imperative that
the offeror must prove:
• the existence or due execution of the
original;
• the loss and destruction of the original or the
reason for its non-production in court; and
• on the part of the offeror, the absence of bad
faith to which the unavailability of the
original can be attributed.
Hence, the correct order of proof is existence,
execution, loss, and contents. [Republic v. Cuenca,
G.R. No. 198393 (2018)]
ALL duplicates or counterparts must be
accounted for before using copies [De Vera v.
Aguilar, GR. No. 83377 (1993)]
Due execution of the document should be
proved through the testimony of either:
a. the person or persons who executed it;
b. the person before whom its execution was
acknowledged; or
c. any person who was present and saw it
executed and delivered, or who, after its
U.P. LAW BOC EVIDENCE
execution and delivery, saw it and recognized
the signatures, or by a person to whom the
parties to the instruments had previously
confessed the execution thereof
[Director of Lands v. C.A., G.R. No. L-29575
(1971))
What to present instead (in this order)
a. By a copy
b. By a recital of its contents in some authentic
document
c. By the testimony of witnesses [Rule 130, Sec.
5]
2. When the original is in the custody or under
the control of the party against whom it is
offered, and the latter fails to produce it after
reasonable notice
What to present instead
Same as when lost, destroyed, or cannot be
produced in court [Sec. 6, Rule 130]
3. When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time, and the fact sounds to be established
from them is only the general result of the
whole
4. When the original is a public record in the
custody of a public officer or is recorded in a
public office
What to present instead
Certified copy issued by the public officer in
custody thereof
5. When original is outside the jurisdiction of
the court
When the original is outside the jurisdiction of
the court, secondary evidence is admissible
[Regalado 784, 2008 Ed., citing PNB v. Olila, G.R.
No. L-8189 (1956), unreported]
4. Parol Evidence Rule
Parol evidence
Any evidence aliunde, whether oral or written, which
is intended or tends to vary or contradict a complete
and enforceable agreement embodied in a document
[2 Regalado 730, 2008 Ed.]
Page 427 of 481
REMEDIAL LAW
a. Application of the Parol
Evidence Rule
General Rule
When the terms of an agreement (including wills)
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be,
between the parties and their successors in interest,
no evidence of such terms other than the contents of
the written agreement [Sec. 9, Rule 130]
Where not applicable
It does not apply when third parties are involved or
those not privy to the written instrument in question
and does not base a claim or assent a right originating
in the instrument [Lechugas v. C.A., G.R. No. L-39972
& L-40300 (1986)]
The parol evidence rule does not apply to those who
are not parties to the deed and do not base a claim on
it. Hence, the party cannot be prevented from seeking
evidence to determine the complete terms of the deed
of assignment. [Eagleridge Development Corp. v. Cameron
Granville, G.R. No. 204700 (2014)]
The parol evidence rule forbids any addition to or
contradiction of the terms of a written instrument by
testimony or other evidence purporting to show that,
at or before the execution of the parties' written
agreement, other or different terms were agreed upon
by the parties, varying the purport of the written
contract. [Felix Plazo Urban Poor Settlers v. Lipat, G.R.
No. 182409 (2017)]
b. When Parol Evidence Can Be
Introduced
How Parol Evidence Can Be Introduced
General rule: Ground/s for presenting parol evidence
is put in issue in the pleading [Sec. 9, Rule 130]
Exception: Even if it is not explicitly stated in the words
of the law, if the facts in the pleadings all lead to the
fact that it is being put in issue then the Parol
Evidence exception may apply [Sps. Paras v. Kimwa
Corporation, G. R. No. 171601 (2015)]
When Can Parole Evidence Can Be Introduced
1. Intrinsic ambiguity, mistake or imperfection in
the written agreement
2. Failure of the written agreement to express the
true intent and agreement of the parties thereto
3. Validity of the written agreement
U.P. LAW BOC EVIDENCE REMEDIAL LAW

4. Existence of other terms agreed to by the parties SUCCESSORS IN INTEREST AFTER THE
or their successors in interest after the execution EXECUTION OF THE WRITTEN
of the written agreement. AGREEMENT.

INTRINSIC AMBIGUITY, MISTAKE OR c. Distinction between the Best

IMPERFECTION IN THE WRITTEN
AGREEMENT Evidence Rule and Parol
Evidence Rule
Intrinsic ambiguity – writing admits of two
constructions both of which are in harmony with the Best Evidence Rule Parol Evidence Rule
language used [Ignacio v. Rementeria, 99 Phil. 1054 Contemplates the
(Unrep.)] situation wherein the
original writing is not Presupposes that the
American jurisprudence also refers to a situation. available and/or there is original document is
where an ambiguity partakes of the nature of both a dispute as to whether available in court
patent and latent ambiguity, that is, an intermediate said writing is the
ambiguity, because the words of the writing, though original
seemingly clear and with a settled meaning, is actually Prohibits the
equivocal and admits of two interpretations. Parol introduction of
evidence, in such a case is admisaible to clarify the substitutionary evidence Prohibits the varying
ambiguity [2 Regalado 734, 2008 Ed., citing 20 Am. Jur in lieu of the original of the terms of a
1011] document regardless of written agreement
WON it varies the
Mistake refers to mistake of fact which is mutual to contents of the original
the parties [BPI v. Fidelity and Surety, Co., G.R. No. L- Applies only to
26743 (1927)] Applies to all kinds of documents
writings contractual in nature
Imperfection includes an inaccurate statement in the and to wills
agreement or incompleteness in the writing, or the Can be invoked only
presence of inconsistent provisions [2 Regalado 732, when the controversy
2008 Ed.] Can be invoked by any
is between the parties
party to an action
to the written
FAILURE OF THE WRITTEN regardless of WON such
agreement, their
AGREEMENT TO EXPRESS THE TRUE party participated in the
privies or any party
INTENT AND AGREEMENT OF THE writing involved
directly affected
PARTIES THERETO thereby
[2 Regalado 731, 2008 Ed.]
Purpose
To enable court to ascertain the true intention of the COLLATERAL AGREEMENTS
parties [Tolentino v. Gonzales Sy Chiam, G.R. No. 26085
(1927)] General rule: Parol Evidence Rule applies (i.e., no
evidence of such terms other than the contents of the
VALIDITY OF THE WRITTEN written agreement) [Sec. 9, Rule 130]
AGREEMENT Exceptions:
Parol evidence may be admitted to show: 1. Collateral agreement is not inconsistent with the
1. True consideration of a contract terms of the written contract [Robles v. Lizarraga
2. Want/Illegality of consideration Hermanos, G.R. No. 26173 (1927)]
3. Incapacity of parties 2. Collateral agreement has not been integrated in
4. Fictitious/absolutely simulated contract and is independent of the written contract
5. Fraud in inducement 3. Collateral agreement is subsequent to [Filpinas
[2 Regalado 733, 2008 Ed.] Manufacturers Bank v. Eastern Rizal Fabricators, G.R.
No. 62741 (1987)] or novatory of the written
EXISTENCE OF OTHER TERMS AGREED contract [Canuto v. Mariano, G.R. No. 11346
TO BY THE PARTIES OR THEIR (1918)]

Page 428 of 481

U.P. LAW BOC
4. Collateral agreement constitutes a condition
precedent which determines whether the written
contract may become operative or effective
[Peabody & Co. v. Bromfield, G.R. No. 13510
(1918)], but this exception does not apply to a
condition subsequent not stated in the agreement
[2 Regalado 730, 2008 Ed.]
5. Authentication and Proof of
Documents
a. Meaning of authentication
The preliminary step in showing the admissibility of
evidence
Proving that the objects and documents presented in
evidence are not counterfeit
b. Public and Private Documents
Private Documents Public Documents
When offered as
authentic, due Admissible without
execution and further proof of its due
authenticity must be execution and
proved [Sec. 20, Rule authenticity
132]
Public Documents
1. Written official acts or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines or of a foreign country
2. Public records, kept in the Philippines, of private
documents required by law to be entered therein
3. Notarial documents (except last wills and
testaments)
[Sec. 19, Rule 132]
All other writings are private [Sec. 19, Rule 132]
A public document enjoys the presumption of
regularity. It is a prima facie evidence of the truth of the
facts stated therein and a conclusive presumption of
its existence and due execution. To overcome this
presumption, there must be clear and convincing
evidence [Chua v. Westmont Bank, G.R. No. 182650
(2012)]. Note: Compare this statement with:
1. Documents consisting of entries in public
records made in the performance of a duty by a
public officer are prima facie evidence of the
Page 429 of 481
EVIDENCE REMEDIAL LAW
facts therein stated. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of the
date of the latter [Sec. 20, Rule 132]
2. Every instrument duly acknowledged or proved
and certified as provided by law, 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 [Sec. 30, Rule 132]
A public document is self-authenticating and requires
no further authentication in order to be presented as
evidence in court [Patula v. People, G.R. No. 164457
(2012)]
Private Documents
A private document is any other writing, deed, or
instrument executed by a private person without the
intervention of a notary or other person legally
authorized by which some disposition or agreement is
proved or set forth [Patula v. People, G.R. No. 164457
(2012)]
c. When a Private Writing Requires
Authentication; Proof of Private
Writing
General rule: Before any private document offered as
authentic is received in evidence, its due execution
and authenticity must be proved [Sec. 20, Rule 132]
How to Prove Due Execution and Authenticity
1. By anyone who saw the document executed or
written; or
2. By evidence of the genuineness of the signature
or handwriting of the maker [Sec. 20, Rule 132]
Before a private document is admitted in evidence, it
must be authenticated either by:
1. the person who executed it,
2. the person before whom its execution was
acknowledged,
3. any person who was present and saw it executed,
or
4. who after its execution, saw it and recognized the
signatures, or
5. the person to whom the parties to the
instruments had previously confessed execution
thereof
[Malayan Insurance v. Phil. Nails and Wires Corp., G.R.
No. 138084 (2002)]
U.P. LAW BOC EVIDENCE
Private documents in the custody of PCGG are not
public documents. What became public are not the
private documents (themselves) but the recording of
it in the PCGG. If a private writing itself is inserted
officially into a public record, its record, its
recordation, or its incorporation into the public
record becomes a public document, but that does not
make the private writing itself a public document so
as to make it admissible without authentication
[Republic v Sandiganbayan, G.R. No. 188881 (2014)]
Additional Modes of Authentication under
American Jurisprudence
1. Doctrine of Self-Authentication – Where the
facts in writing could only have been known by
the writer
2. Rule of Authentication of the adverse party –
Where the reply of the adverse party refers to and
affirms the transmittal to him and his receipt of
the letter in question, a copy of which the
proponent is offering as evidence
[2 Regalado 859, 2008 Ed.]
d. When Evidence of Authenticity
of a Private Writing is Not
Required (Ancient Documents)
The requirement of authentication of a private
document is excused only in four instances,
specifically:
1. when the document is an ancient one which is:
a. More than 30 years old;
b. Produced from a custody in which it would
naturally be found if genuine; and
c. Unblemished by any alterations or
circumstances of suspicion [Sec. 21, Rule
132]
2. when the genuineness and authenticity of the
actionable document have not been specifically
denied under oath by the adverse party;
3. when the genuineness and authenticity of the
document have been admitted; or
4. when the document is not being offered as
genuine.
OTHER INSTANCES WHEN
AUTHENTICATION IS NOT REQUIRED
1. Writing is a public document/record [Sec. 19,
Rule 132]
2. Notarial document acknowledged,
proved/certified [Sec. 30, Rule 132]
Page 430 of 481
REMEDIAL LAW
3. When authenticity and due execution has been
admitted as in the case of actionable documents
under Sec. 8, Rule 8
4. That which it is claimed to be: Authentication not
necessary [Sec. 20, Rule 132]
e. How to Prove Genuineness of a
Handwriting
1. By any witness who believes it to be the
handwriting of such person because:
a. he has seen the person write; or
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 [Sec. 22,
Rule 132]
2. A comparison by the witness or the court of the
questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to the
satisfaction of the judge [Sec. 22, Rule 132]
3. Expert evidence [Sec. 49, Rule 130]
f. Public Documents as Evidence;
Proof of Official Records
Documents consisting of entries in public records
made in the performance of a duty by a public officer
are prima facie evidence of the facts therein stated. All
other public documents are evidence, even against a
third person, of the fact which gave rise to their
execution and of the date of the latter [Sec. 23, Rule
132]
Proof of official record referred to in Sec. 19(a),
Rule 132
1. By an official publication thereof; or
2. By an attested copy of the document
Note: Documents without documentary stamp affixed
thereto, unless specifically exempted by law, may not
be admitted or used in evidence in any court until the
requisite stamp shall have been affixed [Sec. 201,
NIRC] Also, there is a presumption that the requisite
stamps have been affixed in the original copy when
only the carbon copies of the same is available
[Mahilum v. C.A., G.R. No. L-17666 (1966))
U.P. LAW BOC EVIDENCE REMEDIAL LAW

g. Attestation of a Copy of a h. Public Record of Private

Document or Record Documents
1. Must be made by the officer having the legal 1. By the original record; or
custody of the record, or by his deputy [Sec. 24, 2. By a copy thereof, attested by the legal custodian
Rule 132] of the record, with an appropriate certificate that
2. Must state that the copy is a correct copy of the such officer has the custody [Sec. 27, Rule 132]
original or a specific part thereof, as the case may
be [Sec. 25, Rule 132] See Sec. 25, Rule 132
3. Must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a i. Proof of Lack of Record
court having a seal, under the seal of such court
[Sec. 25, Rule 132] 1. Written statement
a. Signed by an officer having the custody of an
If the record is not kept in the Philippines, attested official record or by his deputy
copy must be accompanied with a certificate, which: b. Must state that after diligent search, no
1. May be made by a secretary of the record or entry of a specified tenor is found
embassy/legation, consul-general, consul, vice- to exist in the records of his office
consul, consular agent or any officer in the 2. Certificate
foreign service of the Philippines stationed in the a. Accompanying the written statement
foreign country in which the record is kept; b. Must state that that such officer has the
2. Must state that such officer has the custody; and custody
3. Must be authenticated by the seal of his office [Sec. 28, Rule 132]
[Sec. 24, Rule 132]

Exception: The United States Agency for International
Development (USAID) is the principal United States
agency to extend assistance to countries recovering
from disaster, trying to escape poverty, and engaging
in democratic reforms. It is an independent federal
government agency that receives over-all foreign
policy guidance from the Secretary of the State. Given
this background, it is highly improbable that such an
agency will issue a certification containing unreliable
information regarding an employee’s income. Besides,
there exists a presumption that official duty has been
regularly performed. Absent any showing to the
contrary, it is presumed that Cruz, as Chief of Human
Resources Division of USAID, has regularly
performed his duty relative to the issuance of said
certification and therefore, the correctness of its
contents can be relied upon. This presumption
remains especially so where the authenticity, due
execution and correctness of said certification have
not been put in issue either before the trial court or
the CA [Heirs of Ochoa v. G&S Transport, G.R. No.
170071 (2011)]
j. How Judicial Record is
Impeached
Establish:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, with
respect to the proceedings
[Sec. 29, Rule 132]
k. Proof of Notarial Documents
Notarial Documents
Every instrument duly acknowledged or proved and
certified as provided by law which 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
[Sec. 30, Rule 132]
Such notarized documents are evidence, even against
3rd persons, of the facts which gave rise to their
execution and of the date of execution [Sec. 23, Rule
132]

Page 431 of 481

U.P. LAW BOC EVIDENCE
Note: Last wills and testaments are not public
documents [Sec. 19, Rule 132]
l. How to Explain Alterations in a
Document
When Applicable and Whose Burden of Proof
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. If he fails
to do that, the document shall not be admissible in
evidence [Sec. 31, Rule 132]
How to Account for Alteration
Party producing a document as genuine may show
that the alteration
1. Was made by another, without his concurrence;
2. Was made with the consent of the parties
affected by it;
3. Was otherwise properly or innocently made; or
4. Did not change the meaning or language of the
instrument.
[Sec. 31, Rule 132]
m. Documentary Evidence in an
Unofficial Language
Not admissible unless accompanied by a translation
into English or Filipino. Parties or their attorneys are
directed to have the translation prepared before trial
[Sec. 33, Rule 132]
The OCT written in the Spanish language already
formed part of the records of the case for failure of
the adverse parties to interpose a timely objection
when it was offered as evidence. Any objection to the
admissibility of such evidence not raised will be
considered waived and said evidence will have to form
part of the records of the case as competent and
admitted evidence [Heirs of Doronio v. Heirs of Doronio,
G.R. No. 169454 (2007)]
Page 432 of 481
REMEDIAL LAW
J. Testimonial Evidence
1. Qualifications of a Witness
Witness
A witness is one who, being present, personally sees
or perceives a thing, a beholder, spectator or
eyewitness. One who testifies to what he has seen or
heard, or otherwise observed [Herrera citing Black’s
Law Dictionary]
Qualifications of a Witness
All persons who can perceive, and perceiving, can
make known their 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 [Sec. 20, Rule 130]
Qualifications of a Witness
a. To observe, the testimonial quality of perception;
[Sec. 20, Rule 130]
b. To remember, the testimonial quality of memory;
c. To relate, the testimonial quality of narration;
[Sec. 20, Rule 130]
d. To recognize a duty to tell the truth, the
testimonial quality of sincerity; [Sec. 1, Rule 132]
e. He must not possess any of the disqualifications
imposed by the law or rules [Sec. 20, Rule 130]
[Herrera]
A deaf-mute is competent to be a witness so long as
he/she has the faculty to make observations and
he/she can make those observations known to others
[People v. Aleman y Longhas, G.R. No. 181539 (2013)]
Parties declared in default are not disqualified from
taking the witness stand for non-disqualified parties.
The law does not provide default as an exception
[Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)]
There is no substantive or procedural rule which
requires a witness for a party to present some form of
authorization to testify as a witness for the party
presenting him or her [AFP Retirement and Separation
Benefits System v. Republic, G.R. No. 188956 (2013)]
When determined
Qualification of a witness is determined at the time
the said witness are produced for examination or at
the taking of their depositions.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

With respect to children of tender years, competence Competency Distinguished from Credibility
at the time of the occurrence is also taken into Competence Credibility
account. A matter of law and of Has nothing to do
rules with the law or rules
In case person is convicted of a crime Refers to the basic
General rule: Not disqualified qualifications of a witness Refers to the weight
The fact that a witness has been convicted of felony as his capacity to perceive and trustworthiness
is a circumstance to be taken into consideration as and his capacity to or reliability of the
affecting his character and credibility [Enrile, et al. v. communicate his testimony
Roberto, et al. G.R. No. L-42309 (1935)] perception to others

Exception: Otherwise provided by law, e.g. under Art. Two Kinds of Incompetency to Testify
821 of the Civil Code, a person convicted of any of Absolute Partial
the following crimes cannot be a witness to a will: Forbidden to testify
a. Falsification of documents, only on certain matters
b. Perjury; or specified under Secs.
c. False testimony Forbidden to testify on
22-23, Rule 130 due to
any matter
interest or relationship,
2. Competency v. Credibility of or to privileges of the
parties
a Witness [Herrera]
COMPETENCY Incompetence and Privilege
Incompetence Privilege
Competency of a Witness Excuses a witness from
One is qualified to take the witness stand if: Disqualifies a witness
testifying
a. He is capable of perceiving at the time of the [Herrera]
occurrence of the fact; and
b. He came make his perception known
[Sec. 20, Rule 130] 3. Disqualifications of
Witnesses
Competency Presumed
A person who takes the witness stand is presumed to Effect of Interest In The Subject Matter
possess the qualifications of a witness. His A person is not disqualified (except if covered by the
competence may be questioned by the other party by Dead Man’s statute)
interposing an objection [Herrera]
Interest only affects credibility, not competency.
Remedy for Errors or Questions on Competence
Appeal, not certiorari, is the proper remedy for the EFFECT OF RELATIONSHIP
correction of any error as to the competency of a
witness committed by an inferior court in the course General rule: Mere relationship does not impair
of the trial [Icutanim v. Hernandez, G.R. No. L-1709, credibility [People v. De Guzman, G.R. 130809 (2000)]
June 8, 1948]
Exception:
Credibility To warrant rejection, it must be clearly shown:
Credibility of a witness is a question of fact, which is a. Testimony was inherently improbable or
not reviewable by the Supreme Court [Addenbrook v. defective
People, G.R. No. L-22995 (1967)] b. Improper/evil motives had moved the witness to
incriminate falsely
[People v. Daen Jr., G.R. No. 112015 (1995)]

Page 433 of 481

U.P. LAW BOC EVIDENCE
a. DQ by Reason of Mental
Capacity or Immaturity
The following persons cannot be witnesses:
1. Those whose mental condition, at the time of
their production for examination, is such that
they are incapable of intelligently making known
their perception to others;
2. Children whose mental maturity is such as to
render them incapable of perceiving the facts
respecting which they are examined and of
relating them truthfully [Sec. 21, Rule 130]
When incapacity matters for disqualification
In case of Sec. 21(a): At the time of their production
for examination
In case of Sec. 21(b): At the time of perception
(“perceiving the facts”) and of examination (“relating
them truthfully”)
Presumption of sanity
General rule: The law presumes that every person is of
sound mind, in the absence of proof to the contrary
[Art. 800, Civil Code]
Exception: if the witness is a lawful inmate of an asylum
for the insane [Herrera citing Torres v. Lopez (1926)]
A mental retardate is not therefore, per se, disqualified
from being a witness. As long as his senses can
perceive facts and if he can convey his perceptions in
court, he can be a witness [People v. Española, G.R. No.
119308 (1997), citing People v. Salomon, G.R. No. 96848
(1994)]
Unsound mind
1. Includes any mental aberration
(organic/functional), induced by drugs/hypnosis
2. Not disqualified as long as the witness can convey
ideas by words/signs
Deaf-Mutes
Deaf-mutes are competent witnesses where they have
sufficient knowledge to understand and appreciate
the sanctity of an oath and comprehend the facts as
to which they wish to speak, and are capable of
communicating their Ideas with respect thereto [People
v. Hayag, G.R. No. L-38635 (1980)]
They may give evidence by signs, or through an
interpreter or in writing, and such testimony, through
an interpreter, is not hearsay. But sign language must
Page 434 of 481
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be capable of verification [People v. Hayag, G.R. No. L-
38635 (1980)]
Child Witness
The competency of a child witness is determined by
his capacity for observation, recollection and
communication [People v. Mendoza, G.R. No. 113791
(1996)]
Under the Rule on Examination of a Child Witness
(A.M. No. 004-07-SC, 15 December 2000), every
child is now presumed qualified to be a witness. To
rebut this presumption, the burden of proof lies on
the party challenging the child’s competency. Only
when substantial doubt exists regarding the ability of
the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the
duty to tell the truth in court will the court, motu
proprio or on motion of a party, conduct a
competency examination of the child. [People v. Esugon,
G.R. No. 195244 (2015)]
b. DQ by Reason of Marriage
Also known as Martial Disqualification Rule
[Alvarez v. Ramirez, G.R. No. 143439 (2005)] or
Spousal Immunity
Elements
1. During their marriage
2. Neither the husband nor the wife
3. May testify for or against the other
4. Without the consent of the affected spouse
[Sec. 22, Rule 130]
Except: Spouse may testify for or against the other
even without the consent of the latter
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants
[Sec. 22, Rule 130]
Rationale
1. There is identity of interests between husband
and wife;
2. If one were to testify for or against the other,
there is a consequent danger of perjury;
3. Policy of the law is to guard the security and
confidence of private life, and to prevent
domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility, there
is danger of punishing one spouse through the
hostile testimony of the other
U.P. LAW BOC
[Alvarez v. Ramirez, G.R. No. 143439 (2005)]
Duration
General rule: During the marriage [Sec. 22, Rule 130]
Exception: Where the marital and domestic relations
are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be
disturbed, the reason based upon such harmony and
tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury
based on that identity is non-existent [Alvarez v.
Ramirez, G.R. No. 143439 (2005)]
Compare the occasions in which the exception was
applied:
1. People v. Francisco [G.R. No. L-568 (1947)]: The
wife testified against her husband after the latter,
testifying in his own defense, imputed upon her
the killing of their little son.
2. Alvarez v. Ramirez [G.R. No. 143439 (2005)]: The
wife testified against her husband as the first
witness of the prosecution.
Scope of Rule
The rule also includes utterance as to facts or mere
production of documents. It does not only prevent
disclosure of matters communicated in nuptial
confidence but is an absolute prohibition against the
spouse’s testifying to any facts affecting the other
however these facts may have been acquired [Herrera]
Waiver of Disqualification
If one spouse imputes the commission of a crime
against the other, the latter may testify against the
former [People v. Francisco, G.R. No. L-568 (1947)]
Spouses as Co-Accused
The other cannot be called as an adverse party witness
under this Rule
c. DQ by Reason of Death or
Insanity of Adverse Party
Also known as Dead Man’s Statute or Survivorship
Rule [Sunga v. Chua, G.R. No. 143340 (2001)]
Elements
1. Parties or assignors of parties to a case, or
persons in whose behalf a case is prosecuted
2. Against:
a. An executor or administrator or other
representative of a deceased person, or
Page 435 of 481
EVIDENCE REMEDIAL LAW
b. A person of unsound mind
3. Upon a claim or demand against
a. The estate of such deceased person, or
b. Such person of unsound mind
4. Cannot testify as to any matter of fact occurring
before
a. The death of such deceased person
b. Such person became of unsound mind
[Sec. 23, Rule 130]
Applicability
This rule is applied only to civil cases.
It is still applicable even if the property has already
been judicially adjudicated to the heirs regardless
whether the deceased died before or after the suit
Rationale
To close lips of the plaintiff when death has closed
the lips of the defendant in order to discourage
perjury and protect the estate from fictitious claims
[Icard v. Masigan, G.R. No L-47442 (1947)]
Scope
Facts favorable to the deceased are not
prohibited
The rule does not operate to exclude testimony
favorable to the deceased because the rule seeks to
protect his interests [Herrera, citing Go Chi Gun v. Co
Cho, G.R. No. L-13342 (1962), which cited Jones on
Evidence]
When the Dead Man’s statute is not applicable
1. The survivor may testify against the estate of the
deceased where the latter was guilty of fraud
which fraud was established by evidence other
than the testimony of the survivor [Ong Chua v.
C.A.rr, G.R. No. L-29512 (1929))
2. He may also testify where he was the one sued by
the decedent’s estate since the action then is not
against the estate [Tongco v. Vianzon, G.R. No.
27498 (1927))
3. 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 [Goñi v. C.A.,
G.R. No. L-27434 (1986)]
4. No application to a mere witness
5. No application to nominal parties, officers and
stockholders against corporations [Lichauco v.
Atlantic Gulf and Pacific Co., G.R. No. L-2016
(1949)]
6. Cannot be used in a negative testimony
[Mendezona v. Vda. De Goitia, G.R. No. L-31739]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

7. If the defendant did not object 2. In a criminal case for a crime committed by one
8. When the party cross-examines the witness [Goni against the other or the latter’s direct descendants
v. C.A., G.R. No. L-27434 (1986)] or ascendants
9. Where the purpose of the oral testimony is to [Sec. 24(a), Rule 130]
prove a lesser claim than what might be
warranted by clear written evidence, to avoid A widow of a victim allegedly murdered may testify as
prejudice to the estate of the deceased [Icard v. to her husband’s dying declaration as to how he died
Marasigan, G.R. No. L-47442 (1941)] the since the same was not intended to be confidential
10. Agent of the deceased as to transactions or [US v. Antipolo, G.R. No. L-13109 (1918)]
communications with the deceased or
incompetent person which were made with an Scope: “Any communication”
agent of such person in cases in which the agent Includes utterances, either oral or written, or acts
is still alive and competent to testify [Goñi v. C.A., [Herrera]
G.R. No. L-27434 (1986)]
When not applicable
What the Dead Man’s Statute proscribes is the 1. When the communication was not intended to be
admission of testimonial evidence upon a claim kept in confidence
which arose before the death of the deceased. The 2. When the communication was made prior to the
incompetency is confined to the giving of testimony marriage
[Sanson v. C.A., G.R. No. 127745 (2003)] 3. When the communication was overheard/comes
into the hands of a third party whether legally or
d. DQ by Reason of Privileged not [People v. C.A.rlos, G.R. No. 22948 (1925)]
4. Waiver of the privilege
Communications [Herrera]
Privilege Waiver
A privilege is a rule of law that, to protect a particular 1. Failure of the spouse to object; or
relationship or interest, either permits a witness to 2. Calling spouse as witness on cross examination
refrain from giving testimony he otherwise could be 3. Any conduct constructed as implied consent.
compelled to give, or permits someone usually one of [Herrera]
the parties, to prevent the witness from revealing
certain information [Herrera] The objection to the competency of the spouse must
be made when he or she is first offered as a witness.
HUSBAND AND WIFE The incompetency is waived by failure to make a
timely objection to the admission of spouse’s
Also known as marital privilege testimony [People v. Pasensoy, G. R. No. 140634 (2002)]
Rationale Marital
Confidential nature of the privilege; to preserve Marital Privilege
Disqualification [Sec.
marital and domestic relations [Sec. 24(a)]
22]
One spouse should be Neither of the spouses
Elements a party to the case; need to be a party;
1. The husband or the wife
Applies only if the
2. During or after the marriage Does not cease even
marriage is existing at
3. Cannot be examined after the marriage is
the time the testimony
4. Without the consent of the other dissolved; and
is offered; and
5. As to any communication received in confidence
Constitutes a total Prohibition is limited
by one from the other during the marriage
prohibition on any to testimony on
[Sec. 24(a), Rule 130]
testimony for or against confidential
the spouse of the communications
Except: Spouse may testify for or against the other
witness between spouses
even without the consent of the latter
1. In a civil case by one against the other, or

Page 436 of 481

U.P. LAW BOC EVIDENCE
ATTORNEY AND CLIENT
Elements
As regards an attorney
1. Without the consent of his client
2. Cannot be examined as to
a. Any communication made by the client to
him, or
b. His advice given thereon in the course of, or
with a view to, professional employment
[Sec 24(b), Rule 130]
As regards an attorney’s secretary, stenographer,
or clerk
1. Without the consent of the client and his
employer
2. Cannot be examined
3. Concerning any fact the knowledge of which has
been acquired in such capacity
[Sec. 24(b), Rule 130]
Subject-matter of the privilege
1. Communications
2. Observations by the lawyer (regardless of
medium of transmission which may include oral
or written words and actions)
3. Tangible evidence delivered to a lawyer
4. Documents entrusted to a lawyer
[Herrera]
When not applicable
1. When the communication made was not for the
purpose of creating relationship (even if
afterwards he become counsel)
2. When the communication was intended to be
made public
3. When the communication was intended to be
communicated to others
4. When the communication was intended for an
unlawful purpose
5. When the communication was received from
third persons not acting in behalf/as agents of
clients
6. When the communication was made in the
presence of third parties stranger to the attorney-
client relationship
7. When the communication has something to do
with a client’s contemplated criminal act [People v.
Sandiganbayan, G.R. Nos. 115439-41 (1997)]
8. When there is a controversy between the client
and attorney
[Herrera]
Page 437 of 481
REMEDIAL LAW
Identity of Client
General rule The attorney-client privilege may not be
invoked to refuse to divulge the identity of the client.
Exceptions:
1. When a strong probability exists that revealing
the name would implicate that person in the very
same activity for which he sought the lawyer’s
advice;
2. When disclosure would open the client to
liability;
3. When the name would furnish the only link that
would form the chain of testimony necessary to
convict
[Regala v. Sandiganbayan, G.R. No. 105938 and G.R.
No. 108113 (1996)]
Duration of the privilege
In the absence of a statute, the privilege is permanent.
It may even be claimed by a client’s executor or
administrator after the client’s death [Herrera]
PHYSICIAN AND PATIENT
Elements
1. A person authorized to practice medicine,
surgery or obstetrics
2. In a civil case
3. Without the consent of the patient
4. Cannot be examined as to
a. Any advice or treatment given by him or
b. 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 that
capacity, and
5. Which would blacken the reputation of the
patient
[Sec. 24(c), Rule 130]
Physician-patient relationship need not be entered
into voluntarily.
When not applicable
1. Communication was not given in confidence
2. Communication was irrelevant to the
professional employment
3. Communication was made for an unlawful
purpose
4. Communication was intended for the
commission/concealment of a crime
5. Communication was intended to be made
public/divulged in court
6. When there was a waiver
U.P. LAW BOC
7. When the doctor was presented as an expert
witness and only hypothetical problems were
presented to him [Lim v. C.A., G.R. No. 91114
(1992)]
Waiver
1. Express waiver – may only be done by the
patient
2. Implied waiver
a. By failing to object
b. When the patient testifies
c. A testator procures an attending doctor to
subscribe his will as an attesting witness
d. Disclosure of the privileged information
either made or acquiesced by the privilege
holder before trial
e. Where the patient examines the physician as
to matters disclosed in a consultation
f. Also check Rule 28 on Mental or Physical
Examination [Rules on Civil Procedure]
[Herrera]
Professional capacity
When the doctor attends to a patient for curative
treatment, or for palliative or preventive treatment
[Herrera]
Extent of rule
The privilege extends to communications which have
been addressed to physician’s assistants or agents
[Herrera]
Physician allowed to testify as an expert
A doctor is allowed to be an expert witness when he
does not disclose anything obtained in the course of
his examination, interview and treatment of a patient
[Lim v. C.A., G.R. No. 91114 (1992)]
Autopsical information
If the information was not acquired by the physician
in confidence, he may be allowed to testify thereto.
But if the physician performing the autopsy was also
the deceased’s physician, he cannot be permitted
either directly or indirectly to disclose facts that came
to his knowledge while treating the living patient
[Herrera, citing US Case Travelers’ Insurance Co. v.
Bergeron]
Duration of privilege
The privilege continues until the death of the patient.
It may be waived by the personal representative of the
decedent [Herrera]
Page 438 of 481
EVIDENCE REMEDIAL LAW
Essential factors to establish the existence of the
attorney-client privilege communication
1. Where legal advice of any kind is sought
2. from a professional legal adviser in his capacity
as such,
3. the communications relating to that purpose,
4. made in confidence
5. by the client,
6. are at his instance permanently protected
7. from disclosure by himself
[Haduja vs. Madianda, A.C. No. 6711 (2007) citing
Wigmore]
Hospital Records during discovery procedure
To allow the disclosure during discovery procedure of
the hospital records would be to allow access to
evidence that is inadmissible without the patient’s
consent. Disclosing them would be the equivalent of
compelling the physician to testify on privileged
matters he gained while dealing with the patient,
without the latter’s prior consent [Chan v. Chan, G.R.
No. 179786 (2013)]
PRIEST AND PENITENT
Elements
1. A minister or priest
2. Without the consent of the person making the
confession
3. Cannot be examined as to any
a. confession made to or
b. advice given by him
4. in his professional character
5. in the course of discipline enjoined by the church
to which the minister or priest belongs
[Sec. 24(d), Rule 130]
This disqualification only applies if the confession is
given in the context of penitence [Prof. Avena].
PUBLIC OFFICERS
Elements
1. A public officer
2. During his term of office or afterwards
3. Cannot be examined as to communications made
to him in official confidence
4. When the court finds that the public interest
would suffer by the disclosure
[Sec. 24(e), Rule 130]
Elements of “presidential communications
privilege”
U.P. LAW BOC EVIDENCE REMEDIAL LAW

1. Must relate to a “quintessential and non- a common ancestry. A stepdaughter has no common
delegable presidential power;” ancestry by her stepmother [Lee v. C.A., G.R. No.
2. Must be authored or “solicited and received” by 177861 (2010)]
a close advisor of the President or the President
himself; and A child can waive the filial privilege and choose to
3. Privilege may be overcome by a showing of testify against his father. The rule refers to a privilege
adequate need such that the information sought not to testify, which can be invoked or waived like
“likely contains important evidence” and by the other privileges [People v. Invencion y Soriano, G.R. No.
unavailability of the information elsewhere [Neri 131636 (2003)]
v. Senate, G.R. No. 180643 (2008)]
OTHER PRIVILEGED COMMUNICATION
Purpose NOT IN THE RULES OF COURT
The privilege is not intended for the protection of
public officers but for the protection of the public 1. Newsman’s Privilege
interest. When no public interest would be prejudiced,
this privilege cannot be invoked [Banco Filipino v. General rule: Publisher, editor or duly accredited
Monetary Board, G.R. No. 70054 (1986)). reporter of any newspaper, magazine or
periodical of general circulation cannot be
Parental and Filial Privilege Rule compelled to reveal the source of any news-
Art. 315, report or information appearing in said
CC publication which was related in confidence to
Sec. 25, Rule 130 Art. 215, FC
(repealed such publisher, editor or reporter
by FC)
No Exception: Court or a House/Committee of
descendant Congress finds that such revelation is demanded
No person may by security of the State
No descendant can be
be compelled to
shall be compelled,
testify against his Note: This is without prejudice to his liability
compelled, in a in a
1. Parents under the civil and criminal laws
criminal case, criminal
2. other direct [R.A. 53, as amended by R.A. 1477]
to testify case, to
ascendants
against his testify
3. children or 2. Information in Conciliation Proceedings
parents and against his
4. other direct All information and statements made at
grandparents parents
descendants conciliation proceedings shall be treated as
and
ascendants privileged communications [Art. 233, Labor
Except when Code]
such testimony
is indispensable 3. Data Privacy Act
in a crime Personal information controllers may invoke the
1. against the principle of privileged communication over
NONE descendant NONE privileged information that they lawfully control
or or process. Subject to existing laws and
2. by one regulations, any evidence gathered on privileged
parent information is inadmissible [Sec. 15, RA 10173]
against the
other 4. Food and Drug Administration Act
Prohibits the use of a person to his own
Applicability advantage, or revealing, other than to the
The rule is applied to both civil and criminal cases Secretary of Health or officers or employees of
[Herrera] the Department of Health or to the courts when
relevant in any judicial proceeding under this Act,
The privilege cannot apply between stepmothers and any information acquired under authority Board
stepchildren because the rule applies only to direct of Food Inspection and Board of Food and
ascendants and descendants, a family tie connected by Drug, or concerning any method or process

Page 439 of 481

U.P. LAW BOC EVIDENCE
which as a trade secret is entitled to protection
[Secs. 9, 11 (f) and 12, RA 3720]
5. TRIPS Agreement
Undisclosed information or trade secrets are
considered privileged communication [Air Phils.
Corp. v. Penswell Inc., G.R. No. 172835 (2007)]
It is protected information if it complies with 3
requisites:
a. A secret in a sense that it is not generally
known among or readily accessible to
persons within the circles that normally
deal with the kind of info in question,
b. Has commercial value because it is a
secret;
c. Has been subject to reasonable steps,
under the circumstances by the person
lawfully in control of the information, to
keep it a secret [Art. 39, TRIPS
Agreement]
Electronic Document as Privileged
Communication
The confidential character of a privileged
communication is not solely on the ground that it is
in the form of an electronic document [Sec. 3, Rule 3,
Rules on Electronic Evidence]
4. Examination of a Witness
Shall be done
a. in open court, and
b. under oath or affirmation.
Answers shall be given orally, unless the
a. witness is incapacitated to speak, or
b. question calls for a different mode of answer
[Sec. 1, Rule 132]
Proceedings to be recorded, including
a. the questions propounded to a witness and his
answers thereto
b. the statements made by the judge or any of the
parties, counsel, or witnesses with reference to
the case
by means of shorthand or stenotype or by other
means of recording found suitable by the court [Sec.
2, Rule 132]
Transcript deemed prima facie correct
A transcript of the record of the proceedings made by
the official stenographer, stenotypist or recorder and
certified as correct by him shall be deemed prima facie
Page 440 of 481
REMEDIAL LAW
a correct statement of such proceedings [Sec. 2, Rule
132]
Exclusion and separation of witnesses
The judge may
a. On any trial or hearing, exclude from the court
any witness not at the time under examination, so
that he may not hear the testimony of other
witnesses
b. Cause witnesses to be kept separate and to be
prevented from conversing with one another
until all shall have been examined
[Sec. 15, Rule 132]
Without any motion from the opposing party or order
from the court, there is nothing in the rules that
prohibits a witness from hearing the testimonies of
other witnesses. Since there was no order of exclusion
from the RTC, there was nothing to prevent the
witness from hearing the testimony of the other
witness. [Eristingcol v. Design Sources International, G.R.
No. 193966 (2014)]
When witness may refer to memorandum
a. A witness may be allowed to refresh his memory
respecting a fact
1. by anything written or recorded
2. by himself or under his direction
3. at the time when the fact occurred, or
immediately thereafter, or at any other time
when the fact was fresh in his memory and
4. he knew that the same was correctly written
or recorded
5. the writing or record must be produced and
may be inspected by the adverse party, who
may, if he chooses, cross-examine the
witness upon it, and may read it in evidence.
b. A witness may also testify from such a writing or
record, though he retain no recollection of the
particular facts, if he is able to swear that the
writing or record correctly stated the transaction
when made; but such evidence must be received
with caution.
[Sec. 16, Rule 132]
When part of transaction, writing or record given
in evidence, the remainder admissible.
a. When part of an act, declaration, conversation,
writing or record is given in evidence by one
party, the whole of the same subject may be
inquired into by the other
b. When a detached act, declaration, conversation,
writing or record is given in evidence, any other
act, declaration, conversation, writing or record
U.P. LAW BOC EVIDENCE
necessary to its understanding may also be given
in evidence
[Sec. 17, Rule 132]
Right to inspect writing shown to witness
Whenever a writing is shown to a witness, it may be
inspected by the adverse party [Sec. 18, Rule 132]
a. Judicial Affidavit Rule [A.M. 12-
8-8-SC]
SCOPE AND WHERE APPLICABLE
Where Applicable
Applies to all actions and proceedings, and incidents
requiring the reception of evidence before:
1. Courts (but not to small claims cases)
2. Investigating officers and bodies authorized by
the SC to receive evidence, including the IBP
3. Quasi-judicial bodies, whose rules of procedure
are subject to disapproval of the Supreme Court,
insofar as their existing rules of procedure
contravene the provisions of this Rule
[Sec. 1]
Submission of Judicial Affidavits and Exhibits in
Lieu of Direct Testimonies
1. The parties shall file with the court and serve on
the adverse party, personally or by licensed
courier service, not later than five days before
pre-trial or preliminary conference or the
scheduled hearing with respect to motions and
incidents, the following
a. The judicial affidavits of their witnesses,
which shall take the place of such witnesses'
direct testimonies; and
b. The parties' documentary or object evidence,
if any, shall be marked and attached to the
judicial affidavits
2. Should a party or a witness desire to keep the
original document or object evidence in his
possession, he may, after the same has been
identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a
faithful copy or reproduction of that original. In
addition, the party or witness shall bring the
original document or object evidence for
comparison during the preliminary conference
with the attached copy, reproduction, or pictures,
failing which the latter shall not be admitted. This
is without prejudice to the introduction of
Page 441 of 481
REMEDIAL LAW
secondary evidence in place of the original when
allowed by existing rules.
[Sec. 2]
CONTENTS AND PROCEDURE
Contents
Shall be prepared in the language known to the
witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino
[Sec. 3]
1. The name, age, residence or business address,
and occupation of the witness
2. The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination is
being held
3. A statement that the witness is answering the
questions asked of him, fully conscious that he
does so under oath, and that he may face criminal
liability for false testimony or perjury
4. Questions asked of the witness and his
corresponding answers, consecutively numbered,
that
a. Show the circumstances under which the
witness acquired the facts upon which he
testifies
b. Elicit from him those facts which are
relevant to the issues that the case presents;
and
c. Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules of
Court
5. The signature of the witness over his printed
name
6. A jurat with the signature of the notary public
who administers the oath or an officer who is
authorized by law to administer the same
[Sec. 3]
7. A sworn attestation at the end, executed by the
lawyer who conducted or supervised the
examination of the witness, to the effect that:
a. He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness gave;
and
b. Neither he nor any other person then
present or assisting him coached the witness
regarding the latter's answers.
A false attestation shall subject the lawyer mentioned
to disciplinary action, including disbarment.
[Sec. 4]
U.P. LAW BOC EVIDENCE
PROCEDURE
Offer of and objections to testimony in judicial
affidavit
1. The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the
purpose of such testin1ony at the start of the
presentation of the witness.
2. The adverse party may move to disqualify the
witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility.
3. The court shall promptly rule on the motion and,
if granted, shall cause the marking of any
excluded answer by placing it in brackets under
the initials of an authorized court personnel,
without prejudice to a tender of excluded
evidence under Section 40 of Rule 132 of the
Rules of Court.
[Sec. 6]
Examination of the witness on his judicial
affidavit
1. The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and
on the exhibits attached to the same.
2. The party who presents the witness may also
examine him as on re-direct.
3. In every case, the court shall take active part in
examining the witness to determine his credibility
as well as the truuth of his testimony and to elicit
the answers that it needs for resolving the issues.
[Sec. 7]
Oral offer of and objections to exhibits
1. Upon the termination of the testimony of his last
witness, a party shall immediately make an oral
offer of evidence of his documentary or object
exhibits, piece by piece, in their chronological
order, stating the purpose or purposes for which
he offers the particular exhibit.
2. After each piece of exhibit is offered, the adverse
party shall state the legal ground for his objection,
if any, to its admission, and the court shall
immediately make its ruling respecting that
exhibit.
3. Since the documentary or object exhibits form
part of the judicial affidavits that describe and
authenticate them, it is sufficient that such
exhibits are simply cited by their n1arkings during
the offers, the objections, and the rulings,
dispensing with the description of each exhibit.
[Sec. 8]
Page 442 of 481
REMEDIAL LAW
APPLICATION TO CRIMINAL ACTIONS
This Judicial Affidavit Rule shall apply to all criminal
actions:
1. Where the maximum of the imposable penalty
does not exceed six years;
2. Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or
3. With respect to the civil aspect of the actions,
whatever the penalties involved are
[Sec. 9]
Procedure
1. The prosecution shall submit the judicial
affidavits of its witnesses not later than five days
before the pre-trial, serving copies ·of the same
upon the accused.
2. The complainant or public prosecutor shall
attach to the affidavits such documentary or
object evidence as he may have, marking them as
Exhibits A, B, C, and so on.
3. No further judicial affidavit, documentary, or
object evidence shall be admitted at the trial.
4. If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit
his judicial affidavit as well as those of his
witnesses to the court within ten days fron1
receipt of such affidavits and serve a copy of each
on the public and private prosecutor, including
his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These
affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear
before the court to testify.
[Sec. 9]
EFFECT OF NON-COMPLIANCE
Non-compliant
Consequence
behavior
Deemed to have waived
their submission
Note: Court may allow, only
once late submission,
Party’s failure to provided
submit 1. the delay (a) is for a
valid reason, (b) would
not prejudice the
opposing party and
2. the defaulting party pays
a fine.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Witness’ failure EFFECT ON OTHER RULES

to appear at the Affidavit shall not be
scheduled considered by the court The provisions of the Rules of Court and other rules
hearing of procedure in the investigative or quasi-judicial
Deemed to have waived his bodies covered by this rule are repealed or modified
Counsel’s failure client’s right to cross- insofar as these are inconsistent with the provisions
to appear examine the witnesses there of this Rule [Sec. 11]
present
Judicial affidavit cannot be 5. Rights and Obligations of a
admitted as evidence
Witness
The court may, however,
allow only once the Obligation
subsequent submission of To answer questions, although his answer may tend
Non-compliance to establish a claim against him.
the compliant replacement
with content and
affidavits before the hearing
attestation Rights
or trial provided
requirements 1. To be protected from irrelevant, improper, or
1. the delay (a) is for a
valid reason, (b) would insulting questions, and from harsh or insulting
not prejudice the demeanor
opposing party and 2. Not to be detained longer than the interests of
2. the defaulting party pays justice require
a fine. 3. Not to be examined except only as to matters
[Sec. 10] pertinent to the issue
4. Not to give an answer which will tend to subject
Issuance of Subpoena him to a penalty for an offense unless otherwise
If the government employee or official, or the provided by law
requested witness, who is neither the witness of the
adverse party nor a hostile witness, unjustifiably Example of this right: Sec. 8, R.A. 1379 and other
declines to execute a judicial affidavit or refuses immunity statutes which grant the witness
without just cause to make the relevant books, immunity from criminal prosecution for offenses
documents, or other things under his control available admitted
for copying, authentication, and eventual production 5. Not to give an answer which will tend to degrade
in court, the requesting party may avail himself of the his reputation, unless it to be the very fact at issue
issuance of a subpoena ad testificandum or duces tecum or to a fact from which the fact in issue would be
under Rule 21 of the Rules of Court. The rules presumed. But a witness must answer to the fact
governing the issuance of a subpoena to the witness of his previous final conviction for an offense
in this case shall be the same as when taking his [Sec. 3, Rule 132]
deposition except that the taking of a judicial affidavit
shall be understood to be ex parte [Sec. 5] One-Day Examination of Witness Rule
A witness has to be fully examined in one (1) day only.
Adverse party witnesses and hostile witnesses are It shall be strictly adhered to subject to the courts'
excluded since they are not covered by Sec. 5 [Tam v. discretion during trial on whether or not to extend the
China Banking Corporation, G.R. No. 214054 (2015)] direct and/or cross-examination for justifiable
reasons [A.M. No. 03-1-09-SC]
There is nothing in the provisions of the Judicial
Affidavit Rule, which prohibits a defendant from
filing a demurrer to evidence, if he truly believes that
the evidence adduced by the plaintiff is insufficient.
[Lagon v. Velasco, G.R. No. 208424 (2018)]

Page 443 of 481

U.P. LAW BOC EVIDENCE
6. Order of Examination of an
Individual Witness
a. Direct Examination
Examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue [Sec.
5, Rule 132]
b. Cross-Examination
The witness may be cross-examined by the adverse
party as to any matters stated in the direct
examination, or connected therewith, with sufficient
fullness and freedom
1. to test his accuracy and truthfulness and freedom
from interest or bias, or the reverse, and
2. to elicit all important facts bearing upon the issue
[Sec. 6, Rule 132]
Right to cross-examination
Cross-examination is the most reliable and effective
way known of testing the credibility and accuracy of
testimony. This is an essential element of due process
[Herrera, citing Alford v. US (1931)]
The right to cross-examine under the constitution is
superior to technical rules on evidence [Herrera, citing
People v. Valero, G.R. No. L-45283-84 (1982)]
Partial cross-examination is sufficient where the
witness was cross-examined on material points, and
full cross-examination was not due to prosecutors’
fault but that of the defense who repeatedly moved
for postponement, direct examination cannot be
thrown off the case [Herrera, citing People v. Caparas,
G.R. No. L-47411 (1981)]
Effect of denial of right to cross-examine
Most courts require that the testimony given on direct
examination be stricken off – provided the
unavailability of the witness is through no fault of the
party seeking to cross-examine [Herrera]
Cross-examination must be completed or finished.
When cross-examination is not and cannot be done
or completed due to causes attributable to the party
offering the witness, the uncompleted testimony is
thereby rendered incompetent [Herrera, citing Ortigas,
Jr. v. Lufthansa German Airlines, G.R. No. L-28773
(1975)]
Page 444 of 481
REMEDIAL LAW
c. Re-Direct Examination
The witness may be re-examined by the party calling
him, to explain or supplement his answers given
during the cross-examination. Questions on matters
not dealt with during the cross-examination, may be
allowed by the court in its discretion [Sec. 7, Rule 132]
d. Re-Cross Examination
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 [Sec. 8, Rule 132]
e. Recalling the Witness
After the examination of a witness by both sides has
been concluded, the witness cannot be recalled
without leave of the court. The court will grant or
withhold leave in its discretion, as the interests of
justice may require [Sec. 9, Rule 132]
Why conducted
1. Particularly identified material points were not
covered in cross-examination
2. Particularly described vital documents were not
presented to the witness
3. Cross-examination was conducted in so inept a
manner as to result in a virtual absence thereof
[People v. Rivera, G.R. No. 98376 (1991)]
7. Leading and Misleading
Questions
Leading question: A question which suggests to the
witness the answer which the examining party
General rule: Not allowed
Except:
a. On cross examination;
b. On preliminary matters;
c. When there is difficulty in 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. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
U.P. LAW BOC
corporation or of a partnership or association
which is an adverse party
[Sec. 10, Rule 132]
Misleading question: One which assumes as true a
fact not yet testified to by the witness, or contrary to
that which he has previously stated. It is not allowed
[Sec. 10, Rule 132]
When witness considered unwilling or hostile
Only if so declared by the court upon adequate
showing of his
a. adverse interest
b. unjustified reluctance to testify, or
c. having misled the party into calling him to the
witness stand
[Sec. 12, Rule 132]
Party may not impeach his own witness
EXCEPT with respect to
a. An unwilling or hostile witness; or
b. A witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership or association
which is an adverse party
How impeached: The unwilling or hostile witness so
declared, or the witness who is an adverse party, may
be impeached by the party presenting him in all
respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also
be impeached and cross-examined by the adverse
party, but such cross-examination must only be on the
subject matter of his examination-in-chief.
[Sec. 12, Rule 132]
8. Methods of Impeaching an
Adverse Party’s Witness
a. By contradictory evidence;
b. By evidence that his general reputation for truth,
honesty or integrity is bad;
c. By evidence that he has made at other times
statements inconsistent with his present
testimony
But NOT by evidence of particular wrongful acts,
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
[Sec. 11, Rule 132]
Page 445 of 481
EVIDENCE REMEDIAL LAW
Note: Before a party may be qualified under Section
12, Rule 132 of the Rules of Court, the party
presenting the adverse party witness must comply
with Section 6, Rule 25 of the Rules of Court which
provides:
SEC. 6. Effect of failure to serve written
interrogatories. – Unless thereafter allowed by
the court for good cause shown and to prevent a
failure of justice, a party not served with written
interrogatories may not be compelled by the
adverse party to give testimony in open court, or
to give a deposition pending appeal.
[Ng Men Tam v. China Banking Corp., G.R. No. 214054
(2015)]
In civil cases, the procedure of calling the adverse
party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.
9. How the Witness is
Impeached by Evidence of
Inconsistent Statements
(Laying the Predicate)
a. The statements must be related to him, with the
circumstances of the times and places and the
persons present, and
b. He must be asked whether he made such
statements, and if so, allowed to explain them.
c. If the statements be in writing they must be
shown to the witness before any question is put
to him concerning them
[Sec. 13, Rule 132]
10. Evidence of the Good
Character of a Witness
NOT admissible until such character has been
impeached [Sec. 14, Rule 132]
Because a witness is presumed to be truthful and of
good character, the party presenting him does not
have to prove he is good because he is presumed to
be good.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

11. Admissions and Confessions Flight from justice is an admission by conduct and
circumstantial evidence of consciousness of guilt [US
v. Sarikala, G.R. No. L-12988 (1918)]
a. Res Inter Alios Acta Rule
Rationale
Things done between strangers ought not to injure No man would make any declaration against himself
those who are not parties to them [Black’s Law unless it is true [Republic v. Bautista, G.R. No. 169801
Dictionary] (2007)]

Two Branches
1. First branch: Admission by a third party [Sec. Admission Must be Made in Context
28, Rule 130] It is a rule that a statement is not competent as an
2. Second branch: Similar acts as evidence [Sec. 34, admission where it does not, under reasonable
Rule 130] construction, appear to admit or acknowledge the fact
[2 Regalado 758, 774, 2008 Ed.] which is sought to be proved by it [CMS Logging, Inc.
v. C.A., G.R. No. L-41420 (1992)]
b. Admission by a Party
Lacbayan v. Samoy, Jr. [G.R. No. 165427 (2011)]:
Elements Issue: WON a Partition Agreement between partners
1. The act, declaration or omission having an extramarital affair is an admission against
2. Of a party interest such that a party to it who admitted the
3. As to a relevant fact existence of co-ownership can no longer assail the
[Sec. 26, Rule 130] agreement.
4. Against his interest (Sec. 26, Rule 130 states “may Held: No. The question on the Partition Agreement
be given in evidence against him”) indicates a question of law to determine whether the
5. Made out of court (Those made in court are parties have the right to freely divide among
governed by Sec. 4, Rule 129.) [2 Regalado 754, themselves the subject properties. An admission must
2008 Ed.] involve matters of fact and not of law.
6. Offered and presented in court in an admissible
manner (e.g. non-hearsay) Judicial and Extrajudicial Admissions
Judicial Extrajudicial
EXTRAJUDICIAL ADMISSIONS Made in connection
Any statement of fact made by a party against his with a judicial Any other admission
interest or unfavorable to the conclusion for which he proceeding in which it [Secs. 26 and 32, Rule
contends or is inconsistent with the facts alleged by is offered [Sec. 4, Rule 130]
him. [2 Regalado 754, 2008 Ed., citing 31 C.J.S. 1022] 129]
Must still be formally
A statement by the accused, direct or implied, of facts offered in evidence
Does not require proof
pertinent to the issue, and tending in connection with (Note language of Sec.
[Sec. 4, Rule 129]
proof of other facts, to prove his guilt [People v. 26, Rule 130: “may be
Lorenzo, G.R. No. 110107 (1995)] given in evidence”)
May be conclusive
Requisites for Admissibility unless contradicted Rebuttable
1. They must involve matters of fact; [Sec. 4, Rule 129]
2. They must be categorical and definite; May be written, oral express or implied [Sec. 4,
3. They must be knowingly and voluntarily made; Rule 129; Sec. 26, Rule 130]
and
4. Is adverse to admitter’s interests c. Admission by a Third Party
[2 Regalado 754, 2008 Ed.]
General rule: The rights of a party cannot be prejudiced
Effect of an Admission by an act, declaration, or omission of another [Sec. 28,
It may be given in evidence against the admitter [Sec. Rule 130]
26, Rule 130]

Page 446 of 481

U.P. LAW BOC
Admission by a third party is inadmissible as against
another. The act, declaration or omission of another
is generally irrelevant, and that in justice, a person
should not be bound by the acts of mere unauthorized
strangers
The rule is well-settled that a party is not bound by
any agreement of which he has no knowledge and to
which he has not given his consent and that his rights
cannot be prejudiced by the declaration, act or
omission of another, except by virtue of a
particular relation between them
Exceptions:
1. Partner’s or Agent’s Admission [Sec. 29, Rule
130]
2. Admission by conspirator [Sec. 30, Rule 130]
3. Admission by privies [Sec. 31, Rule 130]
Basis of exception
A third party may be so united in interest with the
party-opponent that the other person’s admissions
may be receivable against the party himself. The term
“privy” is the orthodox catchword for the relation.
d. Admission by a Co-Partner or
Agent
Requisites for Admissibility
1. The act or declaration
2. Of a partner or agent of the party
3. Within the scope of his authority
4. During the existence of the partnership or
agency,
5. May be given in evidence against such party
6. After the partnership or agency is shown by
evidence other than such act or declaration
[Sec. 29, Rule 130]
This rule also applies to the act or declaration of a
joint owner, joint debtor, or other persons jointly
interested with the party [Sec. 29, Rule 130]
Statements made after partnership is dissolved
As a rule, statements made after the partnership has
been dissolved do not fall within the exception, but
where the admissions are made in connection with
the winding up of the partnership affairs, said
admissions are still admissible as the partner is acting
as an agent of his co-partners in said winding up [2
Regalado 759, 2008 Ed.]
Page 447 of 481
EVIDENCE REMEDIAL LAW
Admissions by counsel
Admissions by counsel are admissible against the
client as the former acts in representation and as an
agent of the client, subject to the limitation that the
same should not amount to a compromise [Sec. 23,
Rule 138] or confession of judgment [Acenas, et al. v.
Sison, et al., G.R. No. L-17011 (1963)]
Joint interests
1. The joint interest must be first made to appear by
evidence other than the admission itself
2. The admission must relate to the subject-matter
of joint interest [Herrera]
The word “joint” must be construed according to its
meaning in the common law system, that is, in solidum
for the whole [Jaucian v. Querol, G.R. No. L-11307
(1918)]
A mere community of interests between several
persons is not sufficient to make the admissions of
one admissible against all [Herrera]
Just like in partnership and agency, the interest must
be a subsisting one unless for the admission to be
admissible [Herrera]
e. Admission by a Conspirator
Requisites for Admissibility
1. The act or declaration
2. Of a conspirator
3. Relating to the conspiracy and during its
existence,
4. May be given in evidence against the co-
conspirator
5. After the conspiracy is shown by evidence other
than such act or declaration
[Sec. 30, Rule 130]
An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30, Rule
130. This provision states that the act or declaration
of a conspirator relating to the conspiracy, and during
its existence, may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence
other than such act or declaration [People v. Cachuela,
G.R. No. 191752 (2013)]
Existence of the conspiracy may be inferred from acts
of the accused [People v. Belen, G.R. No. L-13895
(1963)).
U.P. LAW BOC EVIDENCE
Applies only to extra-judicial statements, not to
testimony given on the stand [People v. Serrano, G.R.
No. L-7973 (1959)] or at trial where the party
adversely affected has the opportunity to cross-
examine [People v. Palijon, G.R. No. 123545 (2000]
As regards extrajudicial admissions AFTER
termination of conspiracy, BEFORE trial
General rule: Not admissible [People v. Badilla, G.R. No.
23792 (1926); People v. Yatco, G.R. No. L-9181 (1955)]
Exceptions:
1. Made in the presence of the co-conspirator who
expressly/impliedly agreed (tacit admission)
2. Facts in admission are confirmed in the
independent extrajudicial confessions made by
the co-conspirators after apprehension [People v.
Badilla, G.R. No. 23792 (1926)]
3. As a circumstance to determine credibility of a
witness [People v. Narciso, G.R. No. L-24484
(1968)]
4. Circumstantial evidence to show the probability
of the latter’s participation
[2 Regalado 761, 2008 Ed.]
Doctrine of interlocking confessions
Extrajudicial statements of co-accused may be taken
as circumstantial evidence against the person
implicated to show the probability of the latter’s
actual participation, provided that the statements
are made by several accused are:
1. Made without collusion
2. Identical with each other in their essential details;
3. Corroborated by other evidence on record
[People v. Molleda, G.R. No. L-34248 (1978), People v.
Tuniaco, G.R. No. 185710 (2010)]
Applicable to extrajudicial statements
The evidence adduced in court by the conspirators as
witnesses are not declarations of conspirators, but
direct testimony to the acts to which they testify. This
is applicable only when it is sought to introduce
extrajudicial declarations and statements of the co-
conspirators [Herrera, citing People v. Vizcarra, G.R.
No. L-38859 (1982)]
f. Admission by Privies
Privies
Persons who are partakers or have an interest in any
action or thing, or any relation to another [Riano 262,
2016 Ed., citing Black’s Law Dictionary]
Page 448 of 481
REMEDIAL LAW
It denotes the idea of succession, not only be right of
heirship and testamentary legacy, but also that of
succession by singular title, derived from acts inter
vivos, and for special purposes. (example: assignee of a
credit and one subrogated to it are privies.) [Alpuerto
v. Perez Pastor and Roa, G.R. No. L-12794 (1918)]
Requisites for Admissibility
1. One derives title to property from another
2. The act, declaration, or omission
a. of the latter (the person from whom title is
derived)
b. while holding the title
c. in relation to the property
3. is evidence against the former (one who derives
title from another)
[Sec. 31, Rule 130]
g. Admission by Silence
Requisites: When silence is deemed an admission
1. Person heard or understood the statement;
2. That he was at a liberty to make a denial;
3. That the statement was about a matter affecting
his rights or in which he was interested and which
naturally calls for a response;
4. That the facts were within his knowledge; and
5. That the fact admitted from his silence is material
to the issue
[People v. Paragsa, G.R. No. L-44060 (1978); Sec. 32,
Rule 130]
This rule applies even when a person was surprised in
the act [US v. Bay, G.R. No. 9341 (1914)] or even if he
was already in the custody of the police [People v.
Ancheta, G.R. No. 143935 (2004)]
When not applicable
1. Statements adverse to the party were made in the
course of an official investigation [U.S. v. De la
Cruz, G.R. No. 4740 (1908)], as where he was
pointed out in the course of a custodial
investigation and was neither asked to reply nor
comment on such imputations [People v. Alegre,
G.R. No. L-30423 (1979)]
2. Party had justifiable reason to remain silent, e.g.
acting on advice of counsel
[2 Regalado 763, 2008 Ed.]
Failure to file a comment
Respondent’s failure to file a comment despite all the
opportunities afforded him constituted a waiver of his
right to defend himself. In the natural order of things,
a man would resist an unfounded claim or imputation
U.P. LAW BOC EVIDENCE REMEDIAL LAW

against him. It is generally contrary to human nature him. Plainly, the admissibility of a confession in
to remain silent and say nothing in the face of false evidence hinges on its voluntariness [People v. Satorre,
accusations. As such, respondents silence may be G.R. No. 133858 (2003)]
construed as an implied admission and
acknowledgement of the veracity of the allegations An extrajudicial confession may be given in evidence
against him [OCA v. Amor, A.M. No. RTJ-08-2140 against the confessant but not against his co-accused
(2014)] (since) they are deprived of the opportunity to cross-
examine him. A judicial confession is admissible
h. Confessions against the declarant’s co-accused since the latter are
afforded the opportunity to cross-examine the former
The declaration of an accused acknowledging his guilt [People v. Palijon, G.R. No. 123545 (2000), cited in
of the offense charged, or of any offense necessarily People v. Janjalani, G.R. No. 188314 (2011)]
included therein, may be given in evidence against
him [Sec. 33, Rule 130] Effect of Extrajudicial Confession of Guilt
General rule: An extrajudicial confession made by an
An acknowledgment in express words or terms, by a accused, shall not a sufficient ground for conviction
party in a criminal case, of his guilt of the crime
charged [People v. Lorenzo, G.R. No. 110107 (1995)] Exception: When corroborated by evidence of corpus
delicti
Requisites [Sec. 3, Rule 133]
1. Express and categorical acknowledgement of
guilt [U.S. v. Corrales, G.R. No. 9230 (1914)] Corpus Delicti
2. Facts admitted constitutes a criminal offense Substance of the crime; the fact that a crime has
[U.S. v. Flores, G.R. No. 9014 (1913)] actually been committed [People v. De Leon, G.R. No.
3. Given voluntarily [People v Nishishima, G.R. No. 180762 (2009)]
35122 (1932)]
4. Intelligently made [Bilaan v Cusi, G.R. No. L- As Distinguished from Admissions of a Party
18179 (1962)], realizing the importance or legal Admission of a Party Confession
significance of the act [U.S. v. Agatea, G.R. No. Acknowledgment of
A statement of fact [2
15177 (1919)] guilt or liability [2
Regalado 754, 2008 Ed.]
5. No violation of Secs. 12 and 17, Art. III of the Regalado 754, 2008 Ed.]
Constitution Maybe express or tacit
Must be express [2
[2 Regalado 765, 2008 Ed.] [2 Regalado 754, 2008
Regalado 754, 2008 Ed.]
Ed.]
If the accused admits having committed the act in Can be made only by
Maybe made by 3rd
question but alleges a justification therefore, the same the party himself, and
parties, and in certain
is merely an admission [Ladiana v. People, G.R. No. admissible against his
cases, admissible
144293 (2002)] co-accused in some
against a party [2
instances [2 Regalado
Regalado 754, 2008 Ed.]
Any confession, including a re-enactment, without 754, 2008 Ed.]
admonition of the right to silence and to counsel, and Acts, declarations or
Declarations [Sec. 33,
without counsel chosen by the accused is inadmissible omissions [Sec. 26,
Rule 130]
in evidence [People v. Yip Wai Ming, G.R. No. 120959 Rule 130]
(1996)] May be in any
proceeding
[T]he basic test for the validity of a confession is – Criminal case (Sec. 33,
was it voluntarily and freely made. The term (Sec. 26, Rule 130
Rule 130 refers to
"voluntary" means that the accused speaks of his free refers to a party
“accused”)
will and accord, without inducement of any kind, and without distinction as
with a full and complete knowledge of the nature and to nature of
consequences of the confession, and when the proceeding)
speaking is so free from influences affecting the will
of the accused, at the time the confession was made,
that it renders it admissible in evidence against

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

i. Similar Acts as Evidence 12. Hearsay Rule

General rule: Evidence that one did or did not do a
certain thing at one time is not admissible to prove
a. Meaning of Hearsay
that he did or did not do the same or similar thing at
It is an out-of-court statement which is offered by the
another time
witness in court to prove the truth of the matters
asserted by the statement
Exceptions: Said evidence may be received to prove a
1. specific intent or knowledge
It is any evidence, whether oral or documentary, if its
2. identity
probative value is not based on personal knowledge
3. plan, system, or scheme
of witness but on knowledge of some other person
4. habit
not on witness stand [2 Regalado 776, 2008 Ed.]
5. custom or usage and the like
[Sec. 34, Rule 130]
Elements
1. Declarant is out of court
2nd Branch of res inter alios acta rule [2 Regalado 774,
2. Out of court declaration is offered as proof of its
2008 Ed.]
contents
3. Absence of opportunity for cross-examination
Reason for General Rule
The rule is founded upon reason, justice and judicial
convenience. The lone fact that a person committed
the same or similar act at some prior time affords, as
General Rule on Hearsay
a general rule, no logical guaranty that he committed
A witness can testify only as to those facts which he
the act in question. A man’s mind and even his modes
knows of his personal knowledge, that is, which are
of life may change; and objectively, the conditions
derived from his own perception [Sec. 36, Rule 130]
which he may find himself at a given time make
likewise change and induce him to act a different way
The hearsay rule is not limited to oral testimony or
[Herrera, citing Moran]
statements; it applies to written, as well as oral
statements [Consunji v. C.A., G.R. No. 137873 (2001)]
Metrobank v. Custodio [G.R. No. 173780 (2011)]:
Facts: Respondent was accused of being responsible
If a party does not object to hearsay evidence, the
for cash shortage in the bank’s Laoag branch.
same is admissible, as a party can waive his right to
Metrobank argued that respondent Custodio’s prior
cross-examine [People v. Ola, G.R. No. L-47147 (1987)]
involvement in a cash shortage in its Cubao branch is
admissible as evidence to prove a scheme or habit on
Repeated failure to cross-examine is an implied waiver
her part.
[Savory Luncheonette v. Lakas ng Manggagawang Pilipino,
Held: Respondent’s prior involvement in a cash
G.R. No. L-38964 (1975)]
shortage in the bank’s Cubao branch does not
conclusively prove that she is responsible for the loss
of PhP600,000 in the Laoag City branch, subject of b. Reason for Exclusion of Hearsay
the instant case. If the prior cash shortage in Cubao Evidence
showed a reasonable intent or habit on her part, then
there was no reason for Metrobank to continue to The underlying rule against hearsay are serious
employ her, considering the degree of trust and concerns about the worth (trustworthiness, reliability)
confidence required of a bank teller. Nevertheless, of hearsay evidence. Because such evidence:
Custodio continued to serve the bank even after the 1. was not given under oath or solemn affirmation;
case in petitioner Metrobank’s Cubao branch. and
2. was not subject to cross-examination by
opposing counsel to test the perception, memory,
veracity and articulateness of out-of-court
declarant or actor upon whose reliability on
which the worth of the out-of-court testimony
depends

Page 450 of 481

U.P. LAW BOC
[Herrera]
Jurisprudence instructs that evidence of statement
made or a testimony is hearsay if offered against a
party who has no opportunity to cross-examine the
witness. Hearsay evidence is excluded precisely
because the party against whom it is presented is
deprived of or is bereft of opportunity to cross-
examine the persons to whom the statements or
writings are attributed [Philippines Free Press v. C.A.,
G.R. No. 132864 (2005)]
c. Exceptions to the hearsay rule
1. Dying declaration
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of the res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Learned treaties
11. Testimony or deposition at a former trial
DYING DECLARATION
Also known as “antemortem statement” or
“statement in articulo mortis” [People v. Mendoza, G.R.
No. 142654 (2001)]
Requisites for Admissibility
a. Declaration of a dying person
b. Declaration was made under the consciousness
of an impending death
c. Declaration may be received in any case wherein
his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such
death
[Sec. 37, Rule 130]
d. Declarant is competent as a witness had he
survived [Geraldo v People, G.R. No. 173608
(2008)); and
e. Declarant should have died [People v. Macandog,
G.R. No. 129534 and 1411691 (2001)]
Rationale for Admissibility
As a general rule, when a person is at the point of
death, every motive to falsehood is silenced [People v
Bacunawa, G.R. No. 136859 (2001)]
The law considers the point of death as a situation so
solemn and awful as creating an obligation equal to
Page 451 of 481
EVIDENCE REMEDIAL LAW
that which is imposed by an oath administered by the
court. [People v. Cerilla, G.R. No. 177147 (2007)]
The foreboding may be gleaned from surrounding
circumstances, such as the nature of the declarant’s
injury and conduct that would justify a conclusion
that there was consciousness of impending death
[People v. Latayada, G.R. No. 146865 (2004)]
The admissibility of an ante mortem declaration is not
affected by the fact that the declarant died hours or
several days after making his declaration. It is
sufficient that he believe himself in imminent danger
of death at the time of such declaration [Herrera, citing
People v. Ericta 77 SCRA 199]
People v. Quisayas [G.R. No. 198022 (2014)]:
Facts: Victim Januario was stabbed by respondents
on his way home. Policemen patrolling the area saw
Januario lying on the street. He was brought by the
policemen to the hospital. While in the vehicle, the
police asked him who hurt him. He answered that it
was the respondents. He eventually died because of
the stab wounds.
Issue: WON the testimony of the accused was a
dying declaration.
Held: No. It does not appear that the declarant was
under the consciousness of his impending death when
he made the statements. No questions relative to the
second requisite was propounded to Januario. The
rule is that, in order to make a dying declaration
admissible, a fixed belief in inevitable and imminent
death must be entered by the declarant. It is the belief
in impending death and not the rapid succession of
death in point of fact that renders a dying declaration
admissible. The test is whether the declarant has
abandoned all hopes of survival and looked on death
as certainly impending. Thus, the utterances made by
Januario could not be considered as a dying
declaration.
However, the Court appreciated the testimony as part
of res gestae. Conviction of accused was sustained.
Objections to the dying declaration
May be premised on any of the requisites for its
admissibility embodied in Sec. 37, Rule 130. Counsel
who wants a dying declaration excluded must have to
deal with the primary question of whether or not the
evidentiary foundations for the introduction where
met [Riano 302, 2016 Ed.]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

Dying declarations are admissible in favor of the Can be made any time, Must have been made
defendant as well as against him [US v. Antipolo, 37 even during trial ante litem motam
Phil. 726 (1918)] Admissible only against Admissible even
the admitter against 3rd persons
DECLARATION AGAINST INTEREST Admissible as an
Admissible not as an
exception to the
Requisites for Admissibility exception to any rule
hearsay rule
a. Declarant is dead or unable to testify; Made against one’s
b. Declaration relates to a fact against the interest of Made against one’s
claim or defense,
the declarant; pecuniary or moral
although not moral or
c. At the time he made said declaration, declarant interest
pecuniary interest
was aware that the same was contrary to his Primary evidence Secondary evidence
interest; and [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]
d. Declarant had no motive to falsify and believed
such declaration to be true [Sec. 38, Rule 130] ACT OR DECLARATION ABOUT
PEDIGREE
Inability to testify means that the person is dead,
mentally incapacitated or physically incompetent. Requisites for Admissibility
Mere absence from the jurisdiction does not make a. The act or declaration
him ipso facto unavailable. [Fuentes v. C.A., G.R. No. b. Of a person deceased or unable to testify
111692 (1996)] c. In respect to the pedigree of another person
related to him by birth or marriage
Declaration against interest made by the deceased, or d. May be received in evidence where the
by one unable to testify, is admissible even against the act/declaration occurred before the controversy;
declarant’s successors-in-interest or even against third and
persons [Sec. 38, Rule 130] e. Relationship between the declarant and the
person whose pedigree is in question must be
Actual or real interest shown by evidence other than such act or
It is essential that at the time of the statement, the declaration [Sec. 39, Rule 130]
declarant’s interest affected thereby should be actual,
real or apparent, not merely contingent, future or, Pedigree includes
conditional; otherwise the declaration would not in a. Relationship;
reality be against interest. (example: declarations b. Family genealogy;
regarding a declarant’s inheritance are not admissible c. Birth;
because these are future interests) [Herrera] d. Marriage;
e. Death;
Admissible against third persons f. Dates when these facts occurred;
If all the requisites for admission of a declaration g. Places where these facts occurred;
against interest are present, the admission is h. Names of relatives; and
admissible not only against the declarant but against i. Facts of family history intimately connected with
third persons [Herrera, citing Viacrusis v. C.A., 44 pedigree [Sec. 39, Rule 130]
SCRA 176]
“Proof other than declaration”
As Distinguished from Admissions General rule: Proof of relationship must be shown in
Declaration against evidence other than the declaration.
Admission by a party
Interest [Sec. 38,
[Sec. 26, Rule 130]
Rule 130] Exception: The general rule does not apply where the
Admitter is a party Declarant is neither a claim is sought to reach the estate of the declarant
himself, or in privity party nor in privity with himself, and not merely to establish a right through
with such party a party his declarations to the property of some other
Admissible whether or Admissible only when member of the family [Tison v. C.A., G.R. No. 121027
not admitter is available declarant is unavailable (1997)]
as a witness as a witness

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

The witness may testify

Pedigree declaration by conduct Independent evidence on the relationship
This rule may also consist of proof of acts or conduct is needed to establish between such
of relatives and the mode of treatment in the family relationship between relationship himself.
of one whose parentage is in question [Herrera 649] declarant and person The author of the
whose pedigree is in reputation need not be
Not applicable to adoption issue established by
The rule allowing proof of pedigree is not applicable independent evidence.
to adoption. The absence of proof of an order of [Herrera]
adoption by the court, as provided by statute, cannot
be substituted by parol evidence that the child has COMMON REPUTATION
lived with a person, not his parent, and was treated as
child during the latter’s lifetime [Herrera, citing Lazatin Definition: the definite opinion of the community in
v. Campos, G.R. No. L-43955-56 (1979)] which the fact to be proved is known or exists. It
means the general or substantially undivided
FAMILY REPUTATION OR TRADITION reputation, as distinguished from a partial or qualified
REGARDING PEDIGREE one, although it need not be unanimous [2 Regalado,
787, 2008 Ed.]
Requisites for Admissibility
a. Witness must be a member, by consanguinity or Requisites for Admissibility
affinity, of the same family as the subject; and a. Common reputation existed ante litem motam
b. Such reputation or tradition must have existed in b. Reputation pertains to:
that family ante litem motam [Sec. 40, Rule 130] 1. facts of public or general interest more than
30 years old,
Other Admissible Evidence 2. marriage, or
a. Entries in family bibles or other family books; 3. moral character
b. Charts; [Sec. 41, Rule 130]
c. Engravings on rings;
d. Family portraits and the like Other Admissible Evidence
[Sec. 40, Rule 130] a. Monuments
b. Inscriptions in public places
This enumeration, by ejusdem generis, is limited to [Sec. 41, Rule 130]
"family possessions," or those articles which
represent, in effect, a family's joint statement of its Pedigree may be established by reputation in the
belief as to the pedigree of a person [Jison v. C.A., G.R. family, but not in the community [Secs. 40-41, Rule
No. 124853. (1998)] 130]

A person’s statement as to his date of birth and age, Common reputation is hearsay like any other
as he learned of these from his parents or relatives, is exception to the hearsay rule, but is admissible
an ante litem motam declaration of a family tradition because of trustworthiness [Riano 327, 2016 Ed.,
[Gravador v. Mamigo, G.R. No. L-24989, (1967)] citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535,
542]
Distinguished from Declaration about Pedigree
Sec. 40 – Family The character of a place as an opium joint may be
Sec. 39 – Declaration
Reputation or proved by its common reputation in the community
about Pedigree
Tradition [U.S. v. Choa Chiok, G.R. No. 12423, (1917)]
There must be a The witness testifying
declarant and a witness to the family reputation Reputation has been held admissible as evidence of
The witness need not and tradition must be a age, birth, race, or race-ancestry, and on the question
be a relative of the member of the family of whether a child was born alive [In re: Florencio
person whose pedigree member of the person Mallare, A.M. No. 533 (1974)]
is in question, it must whose pedigree is in
be the declarant. controversy. Unlike that of matters of pedigree, general reputation
of marriage may proceed from persons who are not

Page 453 of 481

U.P. LAW BOC EVIDENCE REMEDIAL LAW

members of the family — the reason for the question and its significance to the
distinction is the public interest that is taken in the attending equivocal act
question of the existence of marital relations [In re: circumstances [Talidano v. Falcon
Florencio Mallare, AM No. 533 (1974)] [Talidano v. Falcon Maritime, G.R. No.
Maritime, G.R. No. 172031 (2008)]
PART OF THE RES GESTAE 172031 (2008)]] [2 Regalado 790, 2008
Ed.]
Res gestae [2 Regalado 788, 2008
This expression signifies merely “transactions” or Ed., citing People v.
“things done” and is used in common law as meaning Siscar, G.R. No. 55649
the circumstances which are automatic and (1985)]
undersigned incidents of the particular act in issue, Spontaneous
and which are admissible in evidence when illustrative Verbal act must have
exclamations may have
and explanatory of the act [Herrera] been made at the time,
been made before,
and not after, the
during or immediately
Res gestae, as an exception to the hearsay rule, refers to equivocal act was being
after the startling
those exclamations and statements made by either the performed equivocal
occurrence equivocal
participants, victims, or spectators to a crime act
act
immediately before, during, or after the commission [2 Regalado 790, 2008
[2 Regalado 790, 2008
of the crime, when the circumstances are such that the Ed.]
Ed.]
statements were made as a spontaneous reaction or
utterance inspired by the excitement of the occasion Sec. 37. Dying
and there was no opportunity for the declarant to Sec. 42. Res gestae
Declaration
deliberate and to fabricate a false statement [DBP Pool Statement may be
of Accredited Insurance Companies v. Radio Mindanao made by the killer
Network, Inc., G.R. No. 147039 (2006)] himself
after or during the Can be made only by
A dying declaration can be made only by the victim, killing [People v. Reyes, the victim
while a statement as part of the res gestae may be that G.R. Nos. L-1846–48
of the killer himself after or during the killing [2 (1949)] OR that of a
Regalado 788, 2008 Ed., citing People v. Reyes, G.R. Nos. 3rd person.
L-1846–48 (1949)] May precede,
accompany or be made Made only after the
A statement not admissible as dying declaration after the homicidal attack has
because it was not made under consciousness of homicidal attack was been committed
impending death, may still be admissible as part of res committed
gestae if made immediately after the incident [People v. Trustworthiness based
Gueron, G.R. No. L-29365 (1983)] Justification in the upon in its
spontaneity of the being given in
Requisites for res gestae statement. awareness of
Spontaneous impending death
Verbal Acts
Statements [2 Regalado 788-789, 2008 Ed.]
a. The principal act, a. The res gestae or
the res gestae, be a principal act or to ENTRIES IN THE COURSE OF BUSINESS
startling be characterized
occurrence must be equivocal; Requisites for Admissibility
b. The statements b. Such act must be a. Entries were made at, or near the time of the
were made before material to the transactions referred to;
the declarant had issue b. Such entries were made in the ordinary or regular
the opportunity to c. The statements course of business or duty;
contrive must accompany c. Entrant was in a position to know the facts stated
c. The statements the equivocal act. in the entries;
must refer to the d. The statements
occurrence in give a legal

Page 454 of 481

U.P. LAW BOC EVIDENCE
d. Entrant did so in his professional capacity, or in
the performance of duty and in the regular course
of business; and
e. Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong, G.R. No. 155550
(2008); Sec. 43, Rule 130]
If the entrant is available as a witness, the entries will
not be admitted, 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, G.R. No. L-9974 (1916)]
Business records as exception to the hearsay rule
under the Rules on Electronic Evidence
a. A memorandum, report, record or data
compilation
b. Of acts, events, conditions, opinions, or
diagnoses,
c. Made by electronic, optical or other similar
means
d. At or near the time of or from transmission or
supply of information by a person with
knowledge thereof, and
e. Kept in the regular course or conduct of a
business activity, and
f. Such was the regular practice to make the
memorandum, report, record, or data
compilation by electronic, optical or similar
means,
g. All of the preceding items are shown by the
testimony of the custodian or other qualified
witnesses, is excepted from the rule on hearsay
evidence
[Sec. 1, Rule 8, Rules on Electronic Evidence]
This presumption (more accurately, exception),
however, may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation,
transmission or storage thereof [Sec. 2, Rule 8, Rules
on Electronic Evidence]
Entries in the payroll, being entries in the course of
business, enjoy the presumption of regularity [Sapio v.
Undaloc Construction, G.R. No. 155034 (2008)]
Reason for rule
The duty of the employees to communicate facts is of
itself a badge of trustworthiness of the entries [Security
Bank and Trust Company v. Gan, G.R. No. 150464
(2006)]
These entries are accorded unusual reliability because
their regularity and continuity are calculated to
Page 455 of 481
REMEDIAL LAW
discipline record keepers in the habit of precision
[LBP v. Monet’s Export and Manufacturing Corp., G.R.
No. 184971 (2010)]
ENTRIES IN OFFICIAL RECORDS
Requisites for Admissibility
a. Entries in official records were made by a public
officer in the performance of his duties or by a
person in the performance of a duty specially
enjoined by law [Sec. 44, Rule 130];
b. 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 [Barcelon, Roxas Securities v.
CIR, G.R. 157064 (2006)]; and
c. Entries were duly entered in a regular manner in
the official records [People v. Mayingque, G.R. No.
179709 (2010)]
The trustworthiness of public documents and the
value given to the entries made therein could be
grounded on :
a. the sense of official duty in the preparation of
the statement made;
b. the penalty which is usually affixed to a breach of
that duty;
c. the routine and disinterested origin of most such
statements; and
d. the publicity of record which makes more likely
the prior exposure of such errors as might
have occurred
[Herce, Jr. v Municipality of Cabuyao, Laguna, GR. No.
166645 (2005)]
A sheriff’s return is an official statement by a public
official in the performance of a duty specially enjoined
by law and is prima facie evidence of the facts therein
stated. Being an exception to the hearsay rule, the
sheriff need not testify in court as to the facts stated
in said return [Manalo v Robles Trans.Co., GR. No. L-
8171, (1956)]
Entries in official records, just like entries in the
course of business, are merely prima facie evidence
of the facts therein stated [Secs. 43-44, Rule 130]
Entries in a police blotter are not conclusive proof of
the truth of such entries [People v. C.A.buang, G.R. No.
103292 (1993)]
Baptismal certificates or parochial records of baptism
are not official records [Fortus v. Novero, G.R. No. L-
22378 (1968)]
U.P. LAW BOC EVIDENCE
COMMERCIAL LISTS AND THE LIKE
Requisites for Admissibility
a. Evidence of statements of matters of interest to
persons engaged in an occupation
b. Such statements are contained in a list, register,
periodical, or other published compilations
c. Compilation is published for use by persons
engaged in that occupation; and
d. It is generally used and relied upon by them
[Sec. 45, Rule 130]
Need of preliminary proof of trustworthiness
There should be requirements of preliminary proof of
trustworthiness before such lists are rendered
admissible. Some proof must be shown how or in
what manner it was made up, where the information
it contained was obtained, or whether the quotation
of prices made were derived from actual sales or
otherwise [Herrera]
LEARNED TREATISES
Requisites for Admissibility
a. Published treatise, periodical or pamphlet is on a
subject of history, law, science, or art; and
b. Court takes either:
1. judicial notice of it, or
2. a witness expert in the subject testifies
that the writer of the statement in the
treatise, periodical or pamphlet is
recognized in his profession or calling as
expert in the subject
[Sec. 46, Rule 130]
Scientific studies or articles and websites which were
culled from the internet, attached to the Petition, and
were not testified to by an expert witness are basically
hearsay in nature and cannot be given probative
weight. [Paje v. Casiño, G.R. No. 207257 (2015)]
TESTIMONY OR DEPOSITION AT A 1. Statements which are the very facts in issue, and
FORMER TRIAL
Requisites for Admissibility
a. Witness is dead or unable to testify;
b. His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or those
representing the same interests;
c. Former case involved the same subject as that in
the present case although on different causes of
action;
Page 456 of 481
REMEDIAL LAW
d. Issue testified to by the witness in the former trial
is the same issue involved in the present case; and
e. Adverse party had the opportunity to cross-
examine the witness in the former case
[Sec. 47, Rule 130; Manliclic v. Calaunan, G.R. No.
150157 (2007)]
Inability to testify (meaning and standard)
The inability of the witness to testify must proceed
from a grave cause, almost amounting to death, as
when the witness is old and has lost the power of
speech. Mere refusal shall not suffice [Tan v. C.A.,
G.R. No. L-22793 (1967)]
OTHER EXCEPTIONS OUTSIDE THE
RULES OF COURT
a. Affidavit in the Rules of Summary Procedure -
shall not be considered as competent evidence
for the party presenting the affidavit, but the
adverse party may utilize the same for any
admissible purpose [Sec. 14, Rules on Summary
Procedure]
b. Under the Rule on Examination of a Child Witness,
hearsay exception in child abuse cases [see Sec.
28]
Doctrine Of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only to
prove that such were actually made.
These are not covered by the hearsay rule [People v.
Cusi, G.R. No. L-20986 (1965)]
These are statements which are relevant
independently of whether they are true or not [Estrada
v. Desierto, G.R. No. 146710 (2001)]
Two classes of independently relevant
statements:
2. Statements which are circumstantial evidence of
the facts in issue. They include the following:
a. Statement of a person showing his state of
mind, that is, his mental condition,
knowledge, belief, intention, ill will and other
emotions;
b. Statements of a person which show his
physical condition, as illness and the like;
c. Statements of a person from which an
inference may be made as to the state of
mind of another, that is, the knowledge,
U.P. LAW BOC EVIDENCE
belief, motive, good or bad faith, etc. of the
latter;
d. Statements which may identify the date,
place and person in question; and
e. Statements showing the lack of credibility of
a witness [Estrada v. Desierto, G.R. No.
146710 (2001)]
13. Opinion Rule
Opinion
Opinion is an inference or conclusion drawn from
facts observed [Black’s Law Dictionary]
General rule: The opinion of witness is not admissible
[Sec. 48, Rule 130]
Exceptions:
a. Expert witness [Sec. 49, Rule 130]
b. Ordinary witness [Sec. 50, Rule 130]
a. Opinion of Expert Witness
The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he
shown to possess, may be received in evidence [Sec.
49, Rule 130]
Expert witness is one who has made the subject
upon which he gives his opinion a matter of particular
study, practice or observation and he must have
particular and special knowledge on the subject [People
v. Dekingco, G.R. No. 87685 (1990)]
ADMITTING EXPERT TESTIMONY
Question in admitting expert testimony
Whether the opinion called for will aid the fact finder
in resolving an issue, or whether the jury or the judge
is as well qualified as the witness to draw its own or
his own deductions from the hypothetical facts
[Herrera]
Court discretion to exclude or include expert
evidence
If men of common understanding are capable of
comprehending the primary facts and drawing correct
conclusions from them, expert testimony may be
excluded by the Court [Herrera]
Competency of witness is a preliminary question
before testimony is admitted
Page 457 of 481
REMEDIAL LAW
It must be shown that the witness is really an expert;
determination of competency is a preliminary
question [Herrera]
HYPOTHETICAL QUESTIONS
Test
Fairness is the ultimate test of hypothetical questions.
The Court shall reject a question which unfairly
selects parts of the facts proved or omits material
facts. If it omits facts, it may be opposed on the
ground that it is misleading [Herrera]
Admissibility of hypothetical question
Admissibility of hypothetical questions depends on
whether it furnishes the tribunal with the means of
knowing upon what premises of fact the conclusion
is based [Herrera, citing Magiore v. Sheed (195 A. 392,
173 Md 33)]
EXAMINING AN EXPERT WITNESS
Mode of examination of expert witness
He may base his opinion either on a first-hand
knowledge of the facts or on the basis of hypothetical
questions where the facts are presented to him
hypothetically, and on the assumption that they are
true, formulates his opinion on this hypothesis
[Herrera]
The lack of personal examination and interview of the
respondent, or any other person diagnosed with
personality disorder, does not per se invalidate the
testimonies of the doctors. Neither do their findings
automatically constitute hearsay that would result in
their exclusion as evidence. Within their
acknowledged field of expertise, doctors can diagnose
the psychological make up of a person based on a
number of factors culled from various sources. A
person afflicted with a personality disorder will not
necessarily have personal knowledge thereof
[Camacho-Reyes v Reyes, G.R. No. 185286 (2010)]
How to present an expert witness
1. Introduce and qualify the witness;
2. Let him give his factual testimony, if he has
knowledge of the facts;
3. Begin the hypothetical question by asking him to
assume certain facts as true;
4. Conclude the question, by first asking the expert
if he has an opinion on a certain point
5. assuming that these facts are true and secondly,
asking him, after he has answered affirmatively,
to give his opinion on the point;
U.P. LAW BOC
6. After he has stated his opinion, ask him to give
his reasons.
Despite the fact that petitioner is a physician and even
assuming that she is an expert in neurology, she was
not presented as an expert witness. As an ordinary
witness, she was not competent to testify on the
nature, and the cause and effects of whiplash injury
[Dela Llana v. Biong, G.R. No. 182356 (2013)]
b. Opinion of Ordinary Witness
The opinion of an ordinary witness is admissible
when:
1. If proper basis is given, and
2. Regarding:
a. Identity of a person about whom he has
adequate knowledge;
b. Handwriting with which he has sufficient
familiarity;
c. Mental sanity of a person with whom he is
sufficiently acquainted; and
d. Impressions of the
i. emotion,
ii. behavior,
iii. condition, or
iv. appearance of a person
[Sec. 50, Rule 130]
IDENTITY OF A PERSON ABOUT WHOM
HE HAS ADEQUATE KNOWLEDGE
Statements of a witness as to identity are not to be
rejected because he is unable to describe features of
the person in question [Herrera]
Identification by voice is recognized by the courts,
especially in a case where it was impossible to see the
accused but the witness has known the accused since
their childhood [Herrera, citing US v. Manabat]
HANDWRITING WITH WHICH HE HAS
SUFFICIENT FAMILIARITY
The ordinary witness must be acquainted with the
characteristics of the handwriting of a person. He may
only draw on the knowledge which he already has and
which enables him to recognize the handwriting.
Only experts are allowed to give conclusions from the
comparison of samples of handwriting of a person
whose handwriting he is not familiar with [Herrera]
Page 458 of 481
EVIDENCE REMEDIAL LAW
MENTAL SANITY OF A PERSON WITH
WHOM HE IS SUFFICIENTLY
ACQUAINTED
These are allowed where the witness can adequately
describe the actions, looks or symptoms of a person’s
sanity or insanity which is impossible for the court to
determine [Herrera]
IMPRESSIONS OF THE EMOTION,
BEHAVIOR, CONDITION OR
APPEARANCE OF A PERSON
The rule recognizes instances when a witness may be
permitted to state his inferences that are drawn from
minute facts and details which the witness cannot
fully and properly describe in court. Such expressions
are expressed to the countenance, the eye and the
general manner and bearing of the individual;
appearance which are plainly enough recognized by a
person of good judgment, but which he cannot
otherwise communicate by an expression of results in
the shape of an opinion [Herrera, citing US case Hardy
v. Merill]
14. Character Evidence
Character distinguished from reputation
'Character' is what a man is, and 'reputation' is what
he is supposed to be in what people say he is.
'Character' depends on attributes possessed, and
'reputation' on attributes which others believe one to
possess. The former signifies reality and the latter
merely what is accepted to be reality at present [Lim v.
C.A., G.R. No. 91114 (1992)].
General rule: [Sec. 51, Rule 130]
Character evidence is not admissible.
Exceptions:
a. Criminal cases [Sec. 51(a), Rule 130]
b. Civil case [Sec. 51(b), Rule 130]
c. In the case provided for in Sec. 14, Rule 132
(Evidence of good character of witness is not
admissible until such character has been
impeached).
a. Criminal Cases
1. Accused – May prove his good moral character,
which is pertinent to the moral trait involved in
the offense charged.
U.P. LAW BOC EVIDENCE REMEDIAL LAW

2. Prosecution – May not prove the bad moral
character of the accused, except in rebuttal.
3. Offended Party – His/her good or bad moral
character may be proved if it tends to establish in
any reasonable degree the probability or
improbability of the offense charged.
[Sec. 51, Rule 130]
Good moral character of accused
The purpose of presenting evidence of good moral
character is to prove the improbability of his doing
the act charged. The accused may prove his good
moral character only if it is pertinent to the moral trait
involved in the offense charged [Herrera]
Bad moral character of accused in rebuttal
Unless and until the accused gives evidence of his
good moral character the prosecution may not
introduce evidence of his bad character [Herrera, citing
People v. Rabanes, G.R. No. 93709 (1992)]
Good or bad moral character of offended party
This is usually offered in rape cases and where the
accused invokes the defense of self-defense.
In rape cases, the character of a woman may be
relevant and admissible on the question of the
presence or absence of her consent. While in
homicide and assault cases, it may be used as evidence
of the victim’s character for turbulence and violence
warranting the response of the accused [Herrera]
Rape Shield Rule
In prosecution for rape, evidence of complainant’s
past sexual conduct, opinion thereof or of his/her
reputation shall not be admitted unless, and only to
the extent that the court finds that such evidence is
material and relevant to the case [Sec 6, R.A. 8505]
Sexual Abuse Shield Rule
The following evidence is not admissible in any
criminal proceeding involving alleged child sexual
abuse:
1. Evidence to prove that the alleged victim
engaged in other sexual behavior; and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec 30, Rule
on Examination of a Child Witness]
b. Civil cases
Moral character is admissible only when pertinent to
the issue of character involved in the case [Sec. 51(b),
Rule 130]
Evidence of the witness’ good character is not
admissible until such character has been impeached
[Sec. 14, Rule 130]

Note: Rape is no longer a crime against chastity (R.A.

8353).

Character evidence must be limited to the traits and

characteristics involved in the type of offense
charged. Thus:
• on a charge of rape : character for chastity
• on a charge of assault: character for
peaceableness or violence
• on a charge of embezzlement : character for
honesty [CSC v. Belagan, G.R. No. 132164 (2004)]

Proof of the bad character of the victim is not

admissible:
• In a murder case: If the crime was committed
through treachery and evident premeditation
[People v. Soliman, G.R. No. L-9723 (1957)]
• In a rape case: If through violence and
intimidation [People v. Blance, G.R. No. 20063,
(1923)]

Page 459 of 481

U.P. LAW BOC
K. Offer and Objection
1. Offer of Evidence
General rule: The court shall consider no evidence
which has not been formally offered. The purpose for
which the evidence is offered must be specified [Sec.
34, Rule 132]
Exception:
Evidence not formally offered may be admissible
when two essential conditions concur:
a. the same must have been duly identified by
testimony duly recorded and,
b. the same must have been incorporated in the
records of the case
[Star Two v. Ko, G.R. No. 185454 (2011)]
As Distinguished from Identification of
Documentary Evidence
Identification of
Formal Offer of
Documentary
Evidence
Evidence
Done in the course of
the trial and
Done only when the
accompanied by the
party rests his/her case
marking of the
evidence
[Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]
Why Formal Offer is Necessary
Parties are required to inform the courts of the
purpose of introducing their respective exhibits to
assist the latter in ruling on their admissibility in case
an objection thereto is made. Without a formal offer
of evidence, courts are constrained to take no notice
of the evidence even if it has been marked and
identified [Star Two v. Ko, G.R. No. 185454 (2011)]
No evidentiary value can be given to pieces of
evidence not formally offered [Dizon v. CTA, G.R.
No. 140944 (2008)]
However, where the absence of an offer of a
testimonial evidence was not objected to as when the
witness was cross-examined by the adverse party
despite failure to make an offer of the testimony, the
court must consider the testimony.
The provisions of the ROC on the inclusion on
appeal of documentary evidence or exhibits in the
records, cannot be stretched as to include such
Page 460 of 481
EVIDENCE REMEDIAL LAW
pleadings or documents not offered at the hearing of
the case [Candido v. C.A., G.R. No. 107493 (1996)]
When Formal Offer is NOT Required
a. In a summary proceeding because it is a
proceeding where there is no full-blown trial;
b. Documents judicially admitted or taken judicial
notice of;
c. Documents, affidavits, and depositions used in
rendering a summary judgment;
d. Documents or affidavits used in deciding quasi-
judicial or administrative cases [Bantolino v. Coca
Cola Bottlers, G.R. No. 153660 (2003)]
e. Lost objects previously marked, identified,
described in the record, and testified to by
witness who had been subjects of cross-
examination in respect to said objects [Tabuena v.
C.A., G.R. No. 85423 (1991), citing People v.
Napat-a, G.R. No. 84951 (1989)]
[Riano 343, 2016 Ed.]
f. When duly identified in a testimony duly
recorded and it was incorporated in the records
of the case [Vda. de Oate v. C.A., G.R. No. 116149
(1995)]
The Republic offered the negotiated contracts solely
to prove that the Bakunawas had been incorporators
or owners, or had held key positions in the
corporations that entered into the contracts. The
Sandiganbayan correctly ruled, therefore, that the
contracts could be considered and appreciated only
for those stated purposes, not for the purpose of
proving the irregularity of the contracts. Evidence can
be considered only for the purposes it was specifically
offered [Republic v Reyes-Bakunawa, G.R. No. 180418
(2013)]
Waiver of Right to Make Formal Offer
It is deemed waived by a party if it fails to submit
within a considerable period of time its formal offer
[Heirs of Pasag v. Parocha, G.R. No. 155483 (2007)]
In this case, the court did not allow the petitioners to
present their formal offer 10 years after resting its
case. In an earlier case of Constantino v. C.A. [G.R. No.
116018 (1996)], the Court did not allow a formal offer
even only after three months because such would,
“condone an inexcusable laxity if not non-compliance
with a court order which, in effect, would encourage
needless delays and derail the speedy administration
of justice.”
A party is not deemed to have waived objection to
admissibility of documents by his failure to object to
U.P. LAW BOC EVIDENCE
the same when they were marked, identified and then
introduced during the trial. This is because objection
to documentary evidence must be made at the time it
is formally offered and not earlier [Interpacific Transit v.
Aviles, G.R. No. 86062 (1990)]
a. When to Make an Offer
Kind of
When to offer
evidence
At the time the witness is
Testimonial
called to testify
Documentary and After the presentation of a
Object party’s testimonial evidence
[Sec. 35, Rule 132]
The party who terminated the presentation of
evidence must make an oral offer of evidence on the
very day the party presented the last witness.
Otherwise, the court may consider the party’s
documentary or object evidence waived [Heirs of Pasag
v. Sps. Parocha, G.R. No. 155483 (2007)]
Manner of Offer
General rule: Offer shall be done orally
Exception: Allowed by the court in writing
[Sec. 35, Rule 132]
While the trial court may allow the offer to be done
in writing, this can only be tolerated in extreme cases
where the object evidence or documents are large in
number––say from 100 and above, and only where
there is unusual difficulty in preparing the offer [Heirs
of Pasag v. Sps. Parocha, G.R. No. 155483 (2007)]
Absence of an offer is a defect which is waived when
a party fails to object when the ground became
reasonably apparent, as when the witness is called to
testify without any prior offer [Catuira v. C.A., G.R.
No. 105813 (1994)]
The defect caused by the absence of formal offer of
exhibits can be cured by the identification of the
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of the
case [People v. Mate, G.R. No. L-34754 (1981)]
The defendant cannot offer his evidence before the
plaintiff has rested [Herrera, citing Engersail v. Malabon
Sugar Co., 53 Phil. 7450]
The Court shall consider the evidence solely for the
purpose for which it is offered, not for any other
Page 461 of 481
REMEDIAL LAW
purpose [Spouses Ragudo v Fabella Estate Tenants
Association, Inc., G.R. No. 146823, (2005)].
b. Objection
Concept
A party (e.g. the defendant) has a right to object to
evidence which he considered not admissible under
the complaint, even if the questions were asked by the
judge and it was his duty to do so [Loper v. Standard Oil
Company, G.R. No. 2345 (1906)]
When a party desires the court to reject the evidence
offered, he must so state in the form of objection.
Without such objection, he cannot raise the question
for the first time on appeal [People v. Diaz, G.R. No.
197818 (2015)]
MANNER
Excluding inadmissible evidence
1. One has to object to inadmissible evidence;
2. The objection must be timely made; and
3. The grounds for the objection must be specified
[Herrera]
Purposes Of Objection
1. Made to keep out inadmissible evidence that
would cause harm to client’s cause (rules of
evidence are not self-operating);
2. To protect the record (for future appeal);
3. To protect witness from being embarrassed or
harassed;
4. To expose adversary’s unfair tactics;
5. To give trial court an opportunity to correct its
own errors and at the same time warn the court
that a ruling adverse to the objector may supply a
reason to invoke a higher court’s appellate
jurisdiction; and
6. To avoid a waiver of inadmissibility
[Riano]
Objections must be specific enough to adequately
inform the court the rule of evidence or of substantive
law that authorizes the exclusion of evidence [Riano]
CLASSIFICATION OF OBJECTIONS
General Objections
Do not clearly indicate to the judge the ground upon
which the objections are predicated [Riano 348, 2016
Ed.]
U.P. LAW BOC EVIDENCE REMEDIAL LAW

In cases where the incompetency of the evidence is so Without such objection, he cannot raise the question
palpable that a mere general objection is deemed for the first time on appeal [People v. Hernandez, G.R.
sufficient and where the portion of the evidence No. 184804, 2009]
objected to is clearly pointed out, and its illegality is
apparent on its face, then the objection must be Waiver of Objection
allowed [Riano 349, 2016 Ed., citing 75 Am Jur 257 When there is failure to point out some defect,
citing Scott v. Times-Mirro Co., 181 Cal 345, 184 P 672, irregularity or wrong in the admission or exclusion of
12 ALR 1007; Sparf v. United States, 156 US 51, 39 L evidence. Such failure may take various forms and
Ed 343, 15 S. Ct. 273] may either be expressed or implied [Riano 353, 2016
Ed.]
Specific Objection
States why or how the evidence is irrelevant or Effect of waiver
incompetent. Although hearsay evidence may be admitted because
of lack of objection, it is nonetheless without
Formal Objection probative value, unless the proponent can show that
Directed against the alleged defect in the formulation the evidence falls within the exception to the hearsay
of the question evidence rule [Bayani v. People, G.R. No. 155619
(2007)]
Substantive
Made and directed against the very nature of the c. Repetition of an Objection
evidence
When it becomes reasonably apparent in the course
When to Object of examination of a witness that the questions being
What to object to When to object propounded are of the same class as those to which
Evidence offered objection was sustained or overruled, it shall not be
Immediately after offer
orally (testimonial necessary to repeat the objection, it being sufficient
is made
evidence) for the adverse party to record his continuing
A question objection to such class of questions [Sec. 37, Rule 132]
As soon as the grounds
propounded in the
become reasonably
course of oral A court may, motu proprio, treat the objection as a
apparent
examination continuing one [Keller v. Ellerman & Bucknall Steamship,
Within 3 days after G.R. No. L-12308 (1918)]
notice of the offer,
Offer of evidence
unless a different An objection must be seasonably made at the time it
done in writing
period is allowed by the is formally offered. Objection prior to the formal
court offer is premature and could not be considered by the
The grounds for objection must be specified in Court as basis for a continuing one [Interpacific Transit
any case. v. Aviles, G.R. No. 86062 (1990)]
[Sec. 37, Rule 132]
Where a continuing objection had been interposed on
The issue of the admissibility of documentary prohibited testimony, the objection is deemed waived
evidence arises only upon formal offer thereof. This where the objecting counsel cross-examined the
is why objection to the documentary evidence must witness on the very matters subject of the prohibition
be made at the time it is formally offered, and not [De Abraham v. Recto-Kasten, G.R. No. L-16741 (1962)]
earlier [Republic v. Sandiganbayan, G.R. No. 188881
(2014)] A Comment/Opposition to a formal offer of
evidence, when objected to as being "immaterial,
Objection to a question propounded in the course of irrelevant and impertinent," is an admission of the
the oral examination of a witness shall be made as authenticity of the entries in the passport [Dycoco v.
soon as the ground therefor becomes reasonably Orina, G.R. No. 184843 (2010)]
apparent [Bayani v. People, G.R. No. 155619 (2007)]

When a party desires the court to reject the evidence

offered, he must so state in the form of objection.

Page 462 of 481

U.P. LAW BOC EVIDENCE
d. Ruling
General rule: The ruling of the court must be given
immediately after the objection is made
Exception: The court desires to take a reasonable time
to inform itself on the question presented; but the
ruling shall always be made during the trial and at such
time as will give the party against whom it is made an
opportunity to meet the situation presented by the
ruling.
[Sec. 38, Rule 132]
In that event it is perfectly proper for the court to take
a reasonable time to study the question presented by
the objection; but a ruling should always be made
during the trial [Lopez v. Valdez, G.R. No. L-9113
(1915)]
A reasonable time must not extend beyond the ninety
(90)-day reglementary period from the date of
submission of the formal offer of evidence [Beltran v.
Paderanga, AM No. RTJ-03-1747 (2003)]
The reason for sustaining or overruling an objection
need not be stated. However, if the objection is based
on two or more grounds, a ruling sustaining the
objection on one or some of them must specify the
ground/s relied upon [Sec. 38, Rule 132]
Reservation of a ruling by the court on an objection
to the admissibility of evidence, without subsequently
excluding the same, amounts to a denial of an
objection [People v. Tavera, G.R. No. L-23172 (1925)]
Por Lo Que Puedo Valer Principle
The Supreme Court encourages the admission or
borderline evidence for whatever it is worth or por lo
que puedo valer [Prats & Co. v. Phoenix Insurance, 52 Phil.
807 (1930)]
No Express Ruling Needed
The trial court need not make an express ruling
admitting the exhibits if there is no objection
interposed to their admission [Herrera, citing Boix v.
Rivera, CA Rep. 2d 104]
The ruling of the court is required only when there is
an objection to a question or to the admission of an
exhibit [Herrera]
The ruling on an objection must be given immediately
after an objection is made. However, objections based
Page 463 of 481
REMEDIAL LAW
on irrelevancy and immateriality need no specification
or explanation. Relevancy or materiality of evidence is
a matter of logic, since it is determined simply by
ascertaining its logical connection to a fact in issue in
the case [Cruz-Arevalo v. Querubin-Layosa, AM No.
RTJ-06-2005 (2006)]
e. Striking Out an Answer
Motion to Strike
A motion to strike out goes to admissibility and not
to weight; evidence should not be stricken out
because of its little probative value [Herrera]
1. Court may sustain an objection and order the
answer given to be stricken off the record if:
a. witness answers the question before the
adverse party had the opportunity to object,
and
b. such objection is found to be meritorious.
2. The court may also, upon motion, order the
striking out of answers, which are
a. incompetent,
b. irrelevant or
c. otherwise improper
[Sec. 39, Rule 132]
Other cases when motion to strike is proper
1. When the answer is premature
2. When the answer of the witness is unresponsive;
3. When the witness becomes unavailable for cross-
examination through no fault of the cross-
examining party;
4. When the testimony is allowed conditionally and
the condition for its admissibility was not
fulfilled; [Riano]
5. Where evidence has been properly received, and
its effect has been destroyed by other evidence,
or its admissibility has afterward become
apparent; [Herrera]
Motion to strike out should specify objection
A motion to strike out should specify the objection as
well as the portion of the evidence which is objected
to [Herrera]
f. Tender of Excluded Evidence
The procedure in Section 40 is known as offer of
proof or tender of excluded evidence and is made for
purposes of appeal. If an adverse judgment is
eventually rendered against the offeror, he may in his
appeal assign as error the rejection of the excluded
U.P. LAW BOC EVIDENCE REMEDIAL LAW

evidence. The appellate court will better understand
and appreciate the assignment of error if the evidence
involved is included in the record of the case [Cruz-
Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005
(2006)]
If an exhibit sought to be presented in evidence is
rejected, the party producing it should ask the courts
permission to have the exhibit attached to the record.
Any evidence that a party desires to submit for the
consideration of [a higher] court must be formally
offered by him otherwise it is excluded and rejected
and cannot even be taken cognizance of on appeal
[Catacutan v. People, G.R. No. 175991 (2011)]
[Riano 361-362, 2016 Ed.]
Erroneous Way of Making Tender
To make a mere general “offer of proof” without
producing the witness or stating the evidence where
by the fact in issue is to be proved [Riano 364, 2016
Ed., Douillard v. Wood, 20 C2d 670, 128 P2d 6 (1942)]
The SC had advised trial courts to allow the rejected
[documentary] evidence to be attached to the record
to enable the appellate court to examine the same and
determine whether the exclusion of the same was
proper or not [Herrera, citing Banez v. C.A., G.R. No.
L-30351 (1974)]

Before tender of excluded evidence is made, the Harmless error rule

evidence must have been formally offered before the In dealing with evidence improperly admitted in trial,
court. And before formal offer of evidence is made, we examine its damaging quality and its impact to the
the evidence must have been identified and presented substantive rights of the litigants. If the impact is
before the court [Yu v. C.A., G.R. No. 154115 (2005)] slight and insignificant, we disregard the error as it will
not overcome the weight of the properly admitted
Documents marked as exhibits during the hearing but evidence against the prejudiced party [People v.
which were not formally offered in evidence cannot Teehankee, G.R. No. 111206 (1995)]
be considered as evidence nor shall they have
evidentiary value [Vda. De Flores v. Workmen’s The Rules of Court does not prohibit a party from
Compensation Commission, G.R. No. L-43316 (1977)] requesting the court to allow it to present additional
evidence even after it has rested its case. Any such
How to Tender Evidence opportunity, however, for the ultimate purpose of the
Kind of admission of additional evidence is already addressed
How to tender the evidence
evidence to the sound discretion of the court [Republic v.
Offeror may have the same Sandiganbayan, G.R. No. 152375 (2011)].
Documentary attached or made part of the
record
Offeror may state for the record
the name and other personal
Testimonial circumstances of the witness
and the substance of the
proposed testimony
[Sec. 40, Rule 132]

Rationale
1. to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the evidence or
testimony; and
2. even if he is not convinced to reverse his earlier
ruling, the tender is made to create and preserve
a record for appeal
[Riano 360, 2016 Ed.]

Two Methods of making the Tender

1. Where the counsel tells the court what the
proposed testimony would be;
2. By using the question and answer form

Page 464 of 481

U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

SPECIAL RULES
Remedial Law

Page 465 of 481

U.P. LAW BOC SPECIAL RULES
IX. Revised Rules on
Summary Procedure
A. Cases Covered by the
Rule
Rule shall govern the summary procedure in the
MTC, MTC in Cities, MCTC in the following cases
falling within their jurisdiction: [Sec. 1]
Civil cases
1. Cases of forcible entry and unlawful detainer
a. Irrespective of the amount of damages or
unpaid rentals sought to be recovered
b. Where attorney’s fees are awarded, it shall
not exceed P20,000
2. All other civil cases where total amount of
plaintiff’s claim does not exceed PHP 100,000 or
PHP 200,000 in Metropolitan Manila, exclusive
of interest and costs
EXCEPT: probate proceedings
[Sec. 1, as amended by A.M. 02-11-09-SC]
Criminal cases
1. Traffic laws, rules, and regulations violations
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty prescribed
by law for offense charged is imprisonment not
exceeding 6 months and/or a fine not exceeding
P1,000
a. Irrespective of other imposable penalties,
accessory or otherwise, or of civil liability
arising therefrom
b. In offenses involving damage to property
through criminal negligence, this rule shall
govern where imposable fine does not
exceed P10,000
[Sec. 1]
Where rule shall not apply
1. To a civil case where plaintiff’s cause of action is
pleaded in the same complaint with another cause
of action subject to ordinary procedure
2. To a criminal case where offense charged is
necessarily related to another criminal case
subject to ordinary procedure
[Sec. 1]
Page 466 of 481
REMEDIAL LAW
B. Prohibited Pleadings and
Motions
Prohibited Pleadings
1. Complaint
2. Compulsory counterclaim, pleaded in the answer
3. Cross-claim, pleaded in the answer
4. Answer to these pleadings
[Sec. 3]
Prohibited motions
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section
(Referral to Lupon for conciliation)
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings,
affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints
12. Interventions
[Sec. 19]
In a civil case governed by the Rules on Summary
Procedure, no hearing is conducted. Instead, the
parties are required to submit their respective position
papers [Five Star Marketing Corporation v. Booc, G.R.
143331 (2007)].
Outright dismissal
1. After the court determines that the case falls
under summary procedure, it may, from an
examination of the allegations therein and such
evidence as may be attached thereto, dismiss the
case outright on any of the grounds apparent
therefrom for the dismissal of a civil action.
2. If no ground for dismissal is found it shall
forthwith issue summons which shall state that
the summary procedure under this Rule shall
apply
[Sec. 4]
U.P. LAW BOC SPECIAL RULES
Answer
1. Within 10 days from service of summons, the
defendant shall file his answer to the complaint
C. Effect of failure to answer
and serve a copy thereof on the plaintiff.
2. Affirmative and negative defenses not pleaded 1.
therein shall be deemed waived, except for lack
of jurisdiction over the subject matter.
3. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
4. The answer to counterclaims or cross-claims shall
be filed and served within 10 days from service
of the answer in which they are pleaded
[Sec. 5]
2.
Page 467 of 481
REMEDIAL LAW
Should the defendant fail to answer the
complaint within the period above provided, the
court, motu proprio, or on motion of the plaintiff,
shall render judgment as may be warranted by the
facts alleged in the complaint and limited to what
is prayed for therein: Provided, however, that the
court may in its discretion reduce the amount of
damages and attorney's fees claimed for being
excessive or otherwise unconscionable.
This is without prejudice to the applicability of
now-Sec. 3(c), Rule 9 of ROC, if there are two or
more defendants. [Sec. 6]
U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

Appeals
D. Preliminary Conference 1. The judgment or final order of the MTC shall be
and Appearances of appealable to the appropriate RTC.
2. The decision of the RTC in civil cases governed
Parties by the Rule on Summary Procedure shall be
immediately executory without prejudice to
1. Not later than thirty (30) days after the last further appeal.
answer is filed, a preliminary conference shall be [Sec. 21].
held.
2. The rules on pre-trial in ordinary cases shall be Note: When the case is already in the Regional Trial
applicable to the preliminary conference unless Court, the Rule on Summary Procedure no longer
inconsistent with the provisions of this Rule. applies. It applies only in cases filed before the MTCs.
3. The failure of the plaintiff to appear in the [Jakihaca v. Aquino, G.R. 83982 (1990)]
preliminary conference shall be a cause for the
dismissal of his complaint.
4. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6
5. All cross-claims shall be dismissed.
6. If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Sec. 6. This Rule shall not apply
where one of two or more defendants sued under
a common cause of action who had pleaded a
common defense shall appear at the preliminary
conference.
[Sec. 7]

Subsequent proceedings
1. The court shall issue an order stating the matters
taken up therein, not limited to the matters stated
in Sec. 8, within 5 days after the termination of
the preliminary conference [Sec. 8]
2. Within 10 days from the receipt of the order
mentioned in (1), 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 [Sec. 9]

Affidavits
1. The affidavits shall state only facts of direct and
personal knowledge of the affiants which are
admissible in evidence, if not, such affidavit or
portion thereof shall be expunged from the
record.
2. Violation of this rule may subject party or counsel
who submitted the defective affidavit is subject
to disciplinary action. [Sec. 20]

Rendition of judgment
Within thirty 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.
[Sec 30]

Page 468 of 481

U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

X. Rules of Procedure a. is within the coverage of this Rule, exclusive

For Small Claims
Cases
[AM No. 08-8-7-SC, effective February 2016]
Purpose
The purpose of the small claims process is to provide
an inexpensive and expeditious means to settle
disputes over small amounts.
Parties are encouraged to file small claims court
actions to resolve their minor disputes as opposed to
resorting to self-help or forcible means to seek their
remedy [Explanatory note to A.M. 08-8-7-SC]
of interest and costs;
b. arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim;
c. does not require for its adjudication the
joinder of third parties; and
d. is not the subject of another pending action,
the claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be
barred from suing on the counterclaim.
2. The defendant may also elect to file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
provided that the amount and nature thereof are
within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
[Sec. 15]

A. Scope and Applicability Note: In ordinary civil actions, docket fees need not be
paid for the imposition of docket fees on compulsory
of the Rule counterclaims has been suspended in OCA Circular
96-2009. [Villanueva-Ong v. Senator Enrile, G.R. No.
Scope 212904 (2017)]
This Rule shall govern the procedure in actions before
the MeTC, MTC in Cities, MTC and MCTC for
payment of money where the value of the claim does
not exceed PHP 400,000 exclusive of interest and
costs [Sec. 2]

Applicability
1. This Rule is applicable in all actions which are
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment
or reimbursement of sum of money
2. These claims or demands may be
a. For money owned under any of the
following;
i. Contract of Lease
ii. Contract of Loan
iii. Contract of Services
iv. Contract of Sale;
v. Contract of Mortgage
b. For liquidated damages arising from
contracts;
c. The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule pursuant
to Sec. 417, LGC.
[Sec. 5]

Counterclaims within the Coverage of Small

Claims
1. If at the time the action is commenced, the
defendant possesses a claim against the plaintiff
that

Page 469 of 481

U.P. LAW BOC SPECIAL RULES
B. Commencement of Small
Claims Action; Response
How commenced
By filing with the court an accomplished and verified
STATEMENT OF CLAIM in duplicate [Sec. 6]
Note: The plaintiff must state in the Statement of
Claim if he/she/it is engaged in the business of
lending, banking and similar activities, and the
number of small claims cases filed within the calendar
year regardless of judicial station [Sec. 6]
Plaintiffs engaged in the aforementioned businesses
who have a branch within the municipality/city where
the defendant resides must file the Statement of
Claim/s in such municipality/city. Other plaintiffs are
subject to the regular rules on venue. [Sec. 7]
If a plaintiff who is engaged in the aforementioned
businesses but misrepresents that he/she/it is not
engaged in them, then the Statement of Claim/s shall
be dismissed with prejudice; the plaintiff shall be
meted the appropriate sanctions, such as direct
contempt [Sec. 11]
Attachments to the Statement of Claim
1. Certification of Non-forum Shopping, Splitting a
Single Cause of Action, and Multiplicity of Suits
2. Two (2) duly certified photocopies of the
actionable document/s subject of the claim
3. Affidavits of witnesses and other evidence to
support the claim
[Sec. 6]
Note: No evidence shall be allowed during the hearing
which was not attached to or submitted together with
the Claim. UNLESS good cause is shown for
admission of additional evidence [Sec. 6]
No formal pleading, other than the Statement of
Claim, is necessary to initiate a small claims action
[Sec. 6]
Payment of filing fees
1. The plaintiff shall pay the docket and other legal
fees prescribed under Rule 141, unless allowed to
litigate as an indigent.
2. Exemption from the payment of filing fees shall
be granted only by the SC.
3. However, if more than 5 small claims are filed by
one party within the calendar year, regardless of
the judicial station, an additional filing fee of PHP
500 shall be paid for every claim filed after the
5th claim, and an additional 100.00 or a total of
Page 470 of 481
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600.00 for every claim filed after the tenth 10th
claim, and another 100.00 or a total of 700 for
every claim filed after the 15th claim,
progressively and cumulatively.
4. If the plaintiff is engaged in the business of
banking, lending and similar activities, the
amount of filing and other legal fees shall be the
same as those applicable to cases filed under the
regular rules.
5. A claim filed with a motion to sue as indigent
shall be referred to the Executive Judge for
immediate action in case of multi-sala courts.
a. If the motion is granted by the Executive
Judge, the case shall be raffled off or
assigned to the court designated to hear
small claims cases.
b. If the motion is denied, the plaintiff shall be
given 5 days within which to pay the docket
fees, otherwise, the case shall be dismissed
without prejudice.
6. In no case shall a party, even if declared an
indigent, be exempt from the payment of the
P1,000.00 fee for service of summons and
processes.
[Sec. 10]
Dismissal
1. After the court determines that the case falls
under these Rules, it may, from an examination
of the allegations of the Statement of Claim/s
and such evidence attached thereto, by itself,
dismiss the case outright on any of the grounds
for the dismissal of the case. The order of
dismissal shall state if it is with or without
prejudice.
2. If, during the hearing, the court is able to
determine that there exists a ground for dismissal
of the Statement of Claim/s, the court may, by
itself, dismiss the case even if such ground is not
pleaded in the defendant’s Response.
3. If plaintiff misrepresents that he/she/ it is not
engaged in the business of banking, lending or
similar activities when in fact he/she/it is so
engaged, the Statement of Claim/s shall be
dismissed with prejudice and plaintiff shall be
meted the appropriate sanctions, such as direct
contempt.
4. However, if the case does not fall under this Rule,
but falls under summary or regular procedure, the
case shall not be dismissed. Instead, the case shall
be re-docketed under the appropriate procedure,
and returned to the court where it was assigned,
subject to payment of any deficiency in the
applicable regular rate of filing fees.
5. If a case is filed under the regular or summary
procedure, but actually falls under this Rule, the
U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

case shall be referred to the Executive Judge for

appropriate assignment.
C. Prohibited Pleadings and
[Sec. 11] Motions
Even if not included in the grounds in the Rules of 1. Motion to dismiss the compliant except on the
Court, the court may dismiss the complaint for lack ground of lack of jurisdiction;
of cause action if the plaintiff failed to preponderantly 2. Motion for a bill of particulars;
establish its claim against the defendant by clear and 3. Motion for new trial, or for reconsideration of a
convincing evidence. [Lourdes Suites v. Binarao, G.R. judgment, or for reopening of trial;
No. 204729 (2014)] 4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
Response affidavits, or any other paper;
If no ground for dismissal is found, the court shall 6. Memoranda;
issue Summons directing defendant to submit a 7. Petition for certiorari, mandamus, or prohibition
verified response [Sec. 12] against any interlocutory order issued by the
court;
The defendant shall file with the court and serve on 8. Motion to declare the defendant in default;
the plaintiff a duly accomplished and verified 9. Dilatory motions for postponement;
Response within a non - extendible period of 10 days 10. Reply and Rejoinder;
from receipt of summons [Sec. 13] 11. Third-party complaints; and
12. Interventions
Attachments (to Response): [Sec. 16]
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
[Sec. 13]

General rule: No evidence shall be allowed during

hearing which was not attached or submitted together
with the Response.

Exception: Unless good cause is shown for the

admission of additional evidence [Sec. 13]

Should the defendant fail to file his response within

the required period, and likewise fail to appear on the
date set for hearing – the court by itself shall render
judgment as may be warranted by the facts alleged in
the Statement of claim [Sec. 14]

Should the defendant fail to file his response within

the required period, but appears on the date set for
hearing – the court shall ascertain what defense
he/she/it has to offer which shall constitute
his/her/its Response, and proceed to hear or
adjudicate the case on the same day as if a Response
has been filed [Sec. 14]

Note: The following is not expressly provided in the

section: “The court may, in its discretion, reduce the
amount of damages for being excessive or
unconscionable.”

Page 471 of 481

U.P. LAW BOC SPECIAL RULES
D. Appearances
1. The parties shall personally appear on the
designated date of hearing.
2. Appearance through a representative must be for
a valid cause.
3. The representative of an individual-party must
not be a lawyer, and must be related to or next-
of-kin of the individual-party.
4. Juridical entities shall not be represented by a
lawyer in any capacity.
5. The representative must be authorized under a
Special Power of Attorney to enter into an
amicable settlement of the dispute and to enter
into stipulations or admissions of facts and of
documentary exhibits.
[Sec. 18]
Attorneys not allowed
1. No attorney shall appear in behalf of or represent
a party at the hearing, unless the attorney is the
plaintiff or defendant
2. If the court determines that a party cannot
properly present his/her claim or defense and
needs assistance, the court may, in its discretion,
allow another individual who is not an attorney
to assist that party upon the latter’s consent.
[Sec. 19]
Failure to appear
1. If plaintiff fails to appear – it shall be a cause for
dismissal without prejudice. Defendant present
shall be entitled to judgment on permissive
counterclaim.
2. If defendant fails to appear – same effect as
failure to file Response.
3. If both plaintiff and defendant fail to appear –
dismissal with prejudice of both the Statement of
Claim and the Counterclaim
[Sec. 20]
Page 472 of 481
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E. Hearing; Duty of the
Judge
At the beginning of the court session, the judge
shall read aloud a short statement explaining the
nature, purpose and the rule of procedure of small
claims cases [Sec. 22]
At the hearing, the judge shall first exert efforts to
bring the parties to an amicable settlement of their
dispute [Sec. 23]
If the attempt at an amicable settlement fails, the
hearing shall so proceed in an informal and
expeditious manner and shall be terminated within
the same day [Sec. 23]
Any settlement or resolution of the dispute shall be:
1. Reduced into writing;
2. Signed by the parties; and,
3. Submitted to the court for approval
[Sec. 23]
F. Finality of Judgment
1. After the hearing, the court shall render its
decision within 24 hours from termination of the
hearing, based on the facts established by the
evidence.
2. The decision shall immediately be entered by the
Clerk of Court in the court docket for civil cases
and a copy thereof forthwith served on the
parties.
3. The decision shall be final, executory, and
unappealable
[Sec. 24]
An original special civil for certiorari is the proper
remedy to assail the propriety of the MTCC Decision
in the subject small claims case. Considering that
small claims cases are exclusively within the
jurisdiction of the MTC, Municipal Trial Courts in
Cities, Municipal Trial Courts, and Municipal Circuit
Trial Courts, certiorari petitions assailing its
dispositions should be filed before their
corresponding Regional Trial Courts. [A.L. Ang
Network v. Mondejar, G.R. No. 200804 (2014)]
U.P. LAW BOC SPECIAL RULES
XI. Rules of Procedure
For Environmental
Cases
[A.M. No. 09-6-8-SC]
A. Scope and Applicability
of the Rule
These Rules shall govern the procedure in
1. civil,
2. criminal and
3. special civil actions
Before
1. Regional Trial Courts,
2. Metropolitan Trial Courts
3. Municipal Trial Courts in Cities
4. Municipal Trial Courts and
5. Municipal Circuit Trial Courts
Involving enforcement or violations of
environmental and other related laws, rules and
regulations such as but not limited to the following:
1. Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees;
2. P.D. No. 705, Revised Forestry Code;
3. P.D. No. 856, Sanitation Code;
4. P.D. No. 979, Marine Pollution Decree;
5. P.D. No. 1067, Water Code;
6. P.D. No. 1151, Philippine Environmental Policy
of 1977;
7. P.D. No. 1433, Plant Quarantine Law of 1978;
8. P.D. No. 1586, Establishing an Environmental
Impact Statement System Including Other
Environmental Management Related Measures
and for Other Purposes;
9. R.A. No. 3571, Prohibition Against the Cutting,
Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of
Scenic Value along Public Roads, in Plazas,
Parks, School Premises or in any Other Public
Ground;
10. R.A. No. 4850, Laguna Lake Development
Authority Act;
11. R.A. No. 6969, Toxic Substances and Hazardous
Waste Act;
12. R.A. No. 7076, People’s Small-Scale Mining Act;
13. R.A. No. 7586, National Integrated Protected
Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing
protected areas;
Page 473 of 481
REMEDIAL LAW
14. R.A. No. 7611, Strategic Environmental Plan for
Palawan Act;
15. R.A. No. 7942, Philippine Mining Act;
16. R.A. No. 8371, Indigenous Peoples Rights Act;
17. R.A. No. 8550, Philippine Fisheries Code;
18. R.A. No. 8749, Clean Air Act;
19. R.A. No. 9003, Ecological Solid Waste
Management Act;
20. R.A. No. 9072, National Caves and Cave
Resource Management Act;
21. R.A. No. 9147, Wildlife Conservation and
Protection Act;
22. R.A. No. 9175, Chainsaw Act;
23. R.A. No. 9275, Clean Water Act;
24. R.A. No. 9483, Oil Spill Compensation Act of
2007; and
25. Provisions in C.A. No. 141, The Public Land Act;
R.A. No. 6657, Comprehensive Agrarian Reform
Law of 1988; R.A. No. 7160, Local Government
Code of 1991; R.A. No. 7161, Tax Laws
Incorporated in the Revised Forestry Code and
Other Environmental Laws [Amending the
NIRC]; R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900, High-
Value Crops Development
26. Rules of Procedure for Environmental Cases
Act; R.A. No. 8048, Coconut Preservation Act;
R.A. No. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law; R.A. No.
9593, Renewable Energy Act of 2008; R.A. No.
9637, Philippine Biofuels Act; and other existing
laws that relate to the conservation,
development, preservation, protection and
utilization of the environment and natural
resources [Sec. 3, Rule 1]
U.P. LAW BOC SPECIAL RULES
B. Civil Procedure
Who May File
Any real party in interest, including the government
and juridical entities authorized by law, may file a civil
action involving the enforcement or violation of any
environmental law [Sec.4, Rule 2].
Citizen Suit
1. Any Filipino citizen in representation of
others, including minors or generations yet
unborn, may file an action to enforce rights or
obligations under environmental laws.
2. Upon the filing of a citizen suit, the court shall
issue an order which shall contain a brief
description of the cause of action and the reliefs
prayed for, requiring all interested parties to
manifest their interest to intervene in the case
within 15 days from notice thereof.
3. The plaintiff may publish the order once in a
newspaper of a general circulation in the
Philippines or furnish all affected barangays
copies of said order.
4. Citizen suits filed under R.A. 8749 (Clean Air
Act) and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their
respective provisions.
[Sec. 5, Rule 2]
Declaration of Default Motu Proprio
Should the defendant fail to answer the complaint
within the period provided, the court shall declare
defendant in default and upon motion of the plaintiff,
shall receive evidence ex parte and render judgment
based thereon and the reliefs prayed for [Sec. 15, Rule
2]
Procedure
Filing of verified Complaint accompanied by
1. affidavits of witnesses, documentary evidence,
and if possible, object evidence, and
2. certification against forum shopping [Sec. 3,
Rule 2]
 environment [Annotation to the Rules of Procedure for
Referral/Assignment by raffle to branch of court

Issuance of Temporary Environmental Protection
Order (TEPO), when proper, effective for 72
hours from receipt and, during the same period,
conduct of a summary hearing for the extension of
the effectivity of the TEPO [Sec. 8, Rule 2]
 all pre-trial conferences.
Service of Summons [Sec. 13, Rule 2]
 parties to arrive at a settlement of the dispute.
Page 474 of 481
REMEDIAL LAW
Filing of verified Answer within 15 days from
receipt of summons [Sec. 14, Rule 2]

Issuance of Notice of Pre-trial within 2 days from
filing of Answer [Sec. 1, Rule 3]

Submission of Pre-Trial Briefs 3 days before pre-
trial [Sec. 2, Rule 3]

Referral to Mediation, Mediation and Mediation
Report [Sec. 3, Rule 3]

Preliminary Conference [Sec. 4, Rule 3]

Pre-trial Conference/s [Sec. 5, Rule 3]

Pre-trial Order [Sec. 9, Rule 3]

Continuous Trial [Sec. 1, Rule 4]

Judgment and Execution [Rule 5]
1. Prohibition against
Temporary Restraining
Order and Preliminary
Injunction
Except the SC, no court can issue a TRO or writ of
preliminary injunction against lawful actions of
government agencies that enforce environmental laws
or prevent violations thereof [Sec. 10, Rule 2].
Where the issuance of a TEPO is premised on the
violation of an environmental law or a threatened
damage or injury to the environment by any person,
even the government and its agencies, the prohibition
against the issuance of a TRO or preliminary
injunction is premised on the presumption of
regularity on the government and its agencies in
enforcing environmental laws and protecting the
Environmental Cases, Supreme Court Sub-Committee].
2. Pre-Trial Conference;
Consent Decree
a. The judge shall put the parties and their counsels
under oath, and they shall remain under oath in
b. The judge shall exert best efforts to persuade the
The judge may issue a consent decree approving
U.P. LAW BOC SPECIAL RULES
the agreement between the parties in accordance
with law, morals, public order and public policy
to protect the right of the people to a balanced
and healthful ecology.
c. Evidence not presented during the pre-trial,
except newly-discovered evidence, shall be
deemed waived.
[Sec. 5, Rule 3]
Consent decree refers to a judicially-approved
settlement between concerned parties based on public
interest and public policy to protect and preserve the
environment [Sec. 4(b), Rule 1].
3. Prohibited Pleadings and
Motions
The following pleadings or motions shall not be
allowed:
a. Motion to dismiss the complaint;
b. Motion for a bill of particulars;
c. Motion for extension of time to file pleadings,
except to file answer, the extension not to exceed
15 days;
d. Motion to declare the defendant in default;
e. Reply and rejoinder; and
f. Third party complaint [Sec. 2, Rule 2]
4. Temporary Environmental
Protection Order (TEPO)
Ground for Issuance
If it appears from the complaint with a prayer for the
issuance of an EPO that
a. the matter is of extreme urgency and
b. the applicant will suffer grave injustice and
irreparable injury [Sec. 8, Rule 2]
Period of Effectivity
Seventy-two (72) hours from date of the receipt of the
TEPO by the party or person enjoined [Sec. 8, Rule
2].
Duty of Court
The court where the case is assigned, shall periodically
monitor the existence of acts that are the subject
matter of the TEPO even if issued by the executive
judge, and may lift the same at any time as
circumstances may warrant [Sec. 8, Rule 2].
The judge shall report any action taken on a TEPO,
EPO, TRO or a preliminary injunction, including its
modification and dissolution, to the Supreme Court,
Page 475 of 481
REMEDIAL LAW
through the Office of the Court Administrator, within
10 days from the action taken [Sec. 11, Rule 2].
Ground to Dissolve TEPO
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would cause
irreparable damage to the party or person enjoined
while the applicant may be fully compensated for such
damages as he may suffer and subject to the posting
of a sufficient bond by the party or person enjoined
[Sec. 9, Rule 2].
Period to Try and Decide
a. The court shall have a period of 1 year from the
filing of the complaint to try and decide the case.
b. Before the expiration of the 1-year period, the
court may petition the SC for the extension of the
period for justifiable cause.
c. The court shall prioritize the adjudication of
environmental cases.
[Sec. 5, Rule 4]
5. Judgment and Execution;
Reliefs in a Citizen Suit
Judgment Not Stayed By Appeal
Any judgment directing the performance of acts for
the protection, preservation or rehabilitation of the
environment shall be executory pending appeal
unless restrained by the appellate court [Sec. 2, Rule
5].
Reliefs in a Citizen Suit
a. If warranted, the court may grant to the plaintiff
proper reliefs which shall include—
1. the protection, preservation or rehabilitation
of the environment and
2. the payment of attorney’s fees, costs of suit,
and other litigation expenses
b. The court may also require the violator
1. to submit a program of rehabilitation or
restoration of the environment, the costs of
which shall be borne by the violator or
2. to contribute to a special trust fund for that
purpose subject to the control of the court
[Sec. 1, Rule 5].
No Damages Can Be Awarded In a Citizen Suit
This measure is in line with the policy that a citizen
suit is filed in the public interest, and in effect, it is the
environment which is vindicated in the action. The
only recourse of a party or person who wishes to
recover damages for injury suffered is to file a
separate action under Sec. 4, Rule 2 [Annotation to the
Rules of Procedure for Environmental Cases, Supreme Court
Sub-Committee].
U.P. LAW BOC SPECIAL RULES
6. Permanent Environmental
Protection Order; Writ of
Continuing Mandamus
In the judgment, the court may—
a. convert the TEPO to a permanent EPO OR
b. issue a writ of continuing mandamus directing the
performance of acts which shall be effective until
the judgment is fully satisfied
[Sec. 3, Rule 5]
Continuing mandamus
A writ issued by a court in an environmental case
directing any agency or instrumentality of the
government or officer thereof to perform an act or
series of acts decreed by final judgment which shall
remain effective until judgment is fully satisfied [Sec.
4(c), Rule 1]
The court may, by itself or through the appropriate
government agency, monitor the execution of the
judgment and require the party concerned to submit
written reports on a quarterly basis or sooner as may
be necessary, detailing the progress of the execution
and satisfaction of the judgment. The other party may,
at its option, submit its comments or observations on
the execution of the judgment [Sec.3, Rule 5]
7. Strategic Lawsuit Against
Public Participation
(SLAPP)
SLAPP refers to a legal action filed to harass, vex,
exert undue pressure or stifle any legal recourse
that any person, institution or the government has
taken or may take in the enforcement of
environmental laws, protection of the environment or
assertion of environmental rights [Sec. 1, Rule 6].
The SLAPP provisions apply not only to suits that
have been filed in the form of a countersuit, but also
to suits that are about to be filed with the intention of
discouraging the aggrieved person from bringing a
valid environmental complaint before the court
[Annotation to the Rules of Procedure for Environmental
Cases, Supreme Court Sub-Committee].
Illustrations:
a. X files a complaint in an environmental case
against A [violator of environmental laws] and
the A retaliates by filing a complaint for damages
against X;
Page 476 of 481
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b. X is a witness in a pending environmental case
against A and A retaliates by filing a complaint
for damages or libel against X; or
c. X is an environmental advocate who rallies for
the protection of environmental rights and a
complaint for damages is filed against him by A
[Annotation to the Rules of Procedure for Environmental
Cases, Supreme Court Sub-Committee]
SLAPP as a Defense
If the suit is a SLAPP, such may be raised as an
affirmative defense in the Answer along with other
defenses.
If SLAPP is interposed as a defense, it is mandatory
for adverse party to file an Opposition [Sec. 2, Rule
6].
The hearing on the defense of a SLAPP shall be
summary in nature [Secs. 3, Rule 6]. The affirmative
defense of a SLAPP shall be resolved within 30 days
after the summary hearing [Secs. 4, Rule 6].
Quantum of Evidence
a. Party seeking the dismissal of the case must
prove by substantial evidence that his acts for
the enforcement of environmental law is a
legitimate action for the protection, preservation
and rehabilitation of the environment
b. Party filing the action assailed as a SLAPP
shall prove by preponderance of evidence that
the action is not a SLAPP and is a valid claim
[Secs. 3, Rule 6]
Resolution of the Defense of a SLAPP
a. If action is dismissed, dismissal is with prejudice
b. If defense of SLAPP is rejected, action will
proceed and evidence adduced during the
summary hearing shall be treated as evidence of
the parties on the merits of the case
[Sec. 4, Rule 6]
U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

The following pleadings and motions are prohibited:

C. Special Civil Actions
1. Writ of Kalikasan
Who May File
a. natural or juridical person,
b. entity authorized by law,
c. people’s organization, non-governmental
organization, or any public interest group
accredited by or registered with any government
agency, on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated, or threatened with violation
by an unlawful act or omission of a public official
or employee, or private individual or entity,
involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces
[Sec. 1, Rule 7]
Acts Covered By the Writ
Unlawful act or omission of a public official or
employee, or private individual or entity, involving
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
two or more cities or provinces [Sec. 1, Rule 7]
Where to File
The petition shall be filed with the SC or with any of
the stations of the CA [Sec. 3, Rule 7]
Procedure
Filing of verified Petition with Certificate Against
Forum Shopping [Sec. 2, Rule 7]
 of any designated documents, papers, books,
Issuance of Writ of Kalikasan within 3 days from
filing of petition [Sec. 5, Rule 7]
 which constitute or contain evidence relevant to the
Service of the Writ [Sec. 6, Rule 7]
 inspection, copying or photographing by or on behalf
Filing of a verified Return within a non-extendible
period of 10 days after service of the writ [Sec. 7,
Rule 7]

Hearing (court may call for preliminary
conference) [Sec. 11, Rule 7]
 of fact [Sec. 16, Rule 7]
Judgment [Sec. 15, Rule 7]
a. Motion to dismiss;
b. Motion for extension of time to file return;
c. Motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply; and
h. Motion to declare respondent in default
[Sec. 9, Rule 7]
3. Discovery Measures
A party may file a verified motion for the following
reliefs:
a. Ocular Inspection
b. Production or inspection of documents and
things
The motion must show that the order granting either
relief is necessary to establish the magnitude of the
violation or the threat as to prejudice the life, health
or property of inhabitants in two or more cities or
provinces [Sec. 12, Rule 7].
OCULAR INSPECTION
Purpose
To order any person in possession or control of a
designated land or other property to permit entry for
the purpose of inspecting or photographing the
property or any relevant object or operation thereon
[Sec. 12, Rule 7]
PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS
Purpose
To order any person in possession, custody or control
accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form,
petition or the return, to produce and permit their
of the movant [Sec. 12, Rule 7]
APPEAL
Within 15 days from the date of notice of the adverse
judgment or denial of motion for reconsideration, any
party may appeal to the Supreme Court under Rule 45
of the Rules of Court. The appeal may raise questions

2. Prohibited Pleadings and

Motions

Page 477 of 481

U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

Kalikasan Continuing Mandamus

4. Writ of Continuing Subject Matter
employee, or private act specifically enjoined
Mandamus individual or entity, by law in connection with
involving the enforcement/
When Available environmental violation of an
a. Any agency or instrumentality of the government damage of such environmental rule or
or officer thereof: magnitude as to [b] the unlawfully
1. unlawfully neglects the performance of an prejudice the life, exclusion of another
act which the law specifically enjoins as a health or property of from the use or
duty resulting from an office, trust or station inhabitants in two or enjoyment of such right
in connection with the enforcement or more cities or and in both instances,
violation of an environmental law, rule or provinces [Sec. 1, there is no other plain,
regulation or a right therein OR Rule 7[ speedy and adequate
2. unlawfully excludes another from the use or remedy in the ordinary
enjoyment of such right; AND course of law
b. there is no other plain, speedy and adequate [Sec. 1, Rule 8]
remedy in the ordinary course of law Who May File
[Sec. 1, Rule 8] a. natural and
juridical persons
Where to File b. entities
a. RTC exercising jurisdiction over the territory authorized by
where the actionable neglect or omission law
occurred c. POs, NGOs,
b. CA; or Person personally
PIG, on behalf
c. SC aggrieved by the unlawful
of
[Sec. 2, Rule 8] act or omission [Sec. 1,
persons whose right
Rule 8]
to a balanced and
Procedure healthful ecology
File a verified Petition with prayer that respondent is violated or
be ordered to do an act or series of acts until the threatened to be
judgment is fully satisfied, and to pay damages violated [Sec. 1, Rule
sustained by the petitioner + Certification Against 7]
Forum Shopping [Sec. 1, Rule 8] Respondent
 May be public or
Government or its
Issuance of Writ of Continuing Mandamus and private individual or
officers[Sec. 1, Rule 8]
Order to Comment [Sec. 4, Rule 8] entity [Sec. 1, Rule 7]
 Docket Fees
Filing of Comment within 10 days after receipt of Exempted [Sec. 4,
Exempted [Sec. 3, Rule 8]
Order [Sec. 4, Rule 8] Rule 7]
 Venue
Summary Hearing [Sec. 6, Rule 8] a. RTC exercising
 territorial
Judgment [Sec. 7, Rule 8] SC or CA [Sec. 2, jurisdiction,
Rule 7] b. CA,

c. SC
Return of the Writ [Sec. 8, Rule 8]
[Sec. 3, Rule 8]
Discovery Measures
Distinctions Between Writ of Kalikasan and Writ
Ocular Inspection
of Continuing Mandamus
and Production or
Kalikasan Continuing Mandamus None
Inspection Order
Subject Matter [Sec. 12, Rule 7]
Available against an
Directed against Damages
unlawful
[a] the unlawful neglect in None [Sec. 17, Rule
act or omission of a Allowed [Sec. 1, Rule 78
the performance of an 7]
public official or

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U.P. LAW BOC SPECIAL RULES
D. Criminal Procedure
1. Who May File
a. Offended party;
b. Peace officer;
c. Public officer charged with the enforcement
of an environmental law
[Sec. 1, Rule 9]
2. Institution of Criminal and
Civil Action
a. When a criminal action is instituted, the civil
action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action unless the
complainant waives the civil action, reserves the
right to institute it separately or institutes the civil
action prior to the criminal action.
b. Unless the civil action has been instituted prior to
the criminal action, the reservation of the right to
institute separately the civil action shall be made
during arraignment.
c. In case civil liability is imposed or damages are
awarded, the filing and other legal fees shall be
imposed on said award in accordance with Rule
141 of the Rules of Court, and the fees shall
constitute a first lien on the judgment award. The
damages awarded in cases where there is no
private offended party, less the filing fees, shall
accrue to the funds of the agency charged with
the implementation of the environmental law
violated. The award shall be used for the
restoration and rehabilitation of the environment
adversely affected
[Sec. 1, Rule 10]
3. Arrest Without Warrant,
When Valid
a. When, in his presence, the person to be arrested
has committed, is actually committing or is
attempting to commit an offense; or
b. When an offense has just been committed, and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it.
Individuals deputized by the proper government
agency who are enforcing environmental laws shall
enjoy the presumption of regularity under Section
3(m), Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws
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REMEDIAL LAW
[Sec. 1, Rule 11]
4. Strategic Lawsuit Against
Public Participation
[SLAPP]
The manner by which to allege that a criminal action
is a SLAPP is through a motion to dismiss [Sec. 1,
Rule 19] rather than a motion to quash. A motion to
dismiss allows the action to be challenged as a SLAPP,
while a motion to quash is directed at the
Information. Moreover, granting a motion to dismiss
bars the refiling of a SLAPP in accordance with the
law of the case. In contrast, the grant of a motion to
quash does not bar the filing of a subsequent
Information [Annotation to the Rules of Procedure for
Environmental Cases, Supreme Court Sub-Committee]
5. Procedure in the Custody
and Disposition of Seized
Items
The applicable rules and regulations of the concerned
government agency shall be followed [Sec. 1, Rule 12].
In the absence of such rules and regulations, the
following procedure shall be observed:
a. Inventory. The apprehending officer having
initial custody and control of the seized items,
equipment, paraphernalia, conveyances and
instruments shall physically inventory and
whenever practicable, photograph the same in
the presence of the person from whom such
items were seized.
b. Return. The apprehending officer shall submit
to the issuing court the return of the search
warrant within 5 days from date of seizure or in
case of warrantless arrest, submit within 5 days
from date of seizure, the inventory report,
compliance report, photographs, representative
samples and other pertinent documents to the
public prosecutor for appropriate action.
c. Sale Upon Motion. Upon motion by any
interested party, the court may direct the auction
sale of seized items, equipment, paraphernalia,
tools or instruments of the crime. The court shall,
after hearing, fix the minimum bid price based on
the recommendation of the concerned
government agency. The sheriff shall conduct the
auction. The auction sale shall be with notice to the
accused, the person from whom the items were
seized, or the owner thereof and the concerned
government agency. The notice of auction shall
U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

be posted in three conspicuous places in the city 3. Render and promulgate judgment of
or municipality where the items, equipment, conviction, including the civil liability for
paraphernalia, tools or instruments of the crime damages
were seized. [Sec. 2, Rule 15]
d. Disposition of Proceeds. The proceeds shall be
held in trust and deposited with the government 8. Pre-trial
depository bank for disposition according to the
judgment
After the arraignment, the court shall set the pre-trial
[Sec. 2, Rule 12]
conference within 30 days. It may refer the case to the
branch clerk of court, if warranted, for a preliminary
6. Bail conference to be set at least three days prior to the
pre-trial [Sec. 2, Rule 15]
Written Undertaking by Accused
a. To appear before the court that issued the Parties are required to be under oath in pre-trial in
warrant of arrest for arraignment purposes on the order to obviate the use of false or misleading
date scheduled, and if the accused fails to appear statements at this stage [Annotation to the Rules of
without justification on the date of arraignment, Procedure for Environmental Cases, Supreme Court Sub-
accused waives the reading of the information Committee]
and authorizes the court to enter a plea of not
guilty on behalf of the accused and to set the case 9. Subsidiary Liabilities
for trial;
b. To appear whenever required by the court where
In case of conviction of the accused and subsidiary
the case is pending; and
liability is allowed by law, the court may, by motion of
c. To waive the right of the accused to be present at
the person entitled to recover under judgment,
the trial, and upon failure of the accused to
enforce such subsidiary liability against a person or
appear without justification and despite due
corporation subsidiary liable under Article 102 and
notice, the trial may proceed in absentia
Article 103 of the Revised Penal Code [Sec. 1, Rule
[Sec. 2, Rule 14]
18]
If the court grants bail, the court may issue a hold-
departure order in appropriate cases [Sec. 1, Rule 14]
[Rule 13, Sec.1]

7. Arraignment and Plea

When
The court shall set the arraignment of the accused
within 15 days from the time it acquires jurisdiction
over the accused, with notice to the public prosecutor
and offended party or concerned government agency
that it will entertain plea-bargaining on the date of the
arraignment [Sec. 1, Rule 15]

Plea-Bargaining
a. On the scheduled date of arraignment, the court
shall consider plea-bargaining arrangements.
b. Where the prosecution and offended party or
concerned government agency agree to the plea
offered by the accused, the court shall:
1. Issue an order which contains the plea-
bargaining arrived at;
2. Proceed to receive evidence on the civil
aspect of the case, if any; and

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

E. Evidence
1. Precautionary Principle
When there is a lack of full scientific certainty in
establishing a causal link between human activity and
environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced
and healthful ecology shall be given the benefit of the
doubt.
[Sec. 1, Rule 20]

For purposes of evidence, the precautionary principle

should be treated as a principle of last resort, where
application of the regular Rules of Evidence would
cause in an inequitable result for the environmental
plaintiff (a) settings in which the risks of harm are
uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c)
settings in which the harm that might result would be
serious. When these features — uncertainty, the
possibility of irreversible harm, and the possibility of
serious harm — coincide, the case for the
precautionary principle is strongest [ISAAA v.
Greenpeace, G.R. No. 209271 (2015)]

Standards for application

In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats
to human life or health; (2) inequity to present or
future generations; or (3) prejudice to the
environment without legal consideration of the
environmental rights of those affected [Sec. 2, Rule
20]

2. Documentary Evidence
a. Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife by-
products or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by the person
who took the same, by some other person
present when said evidence was taken, or by any
other person competent to testify on the accuracy
thereof [Sec. 1, Rule 21]
b. Entries in official records made in the
performance of his duty by a public officer of the
Philippines, or by a person in performance of a
duty specially enjoined by law, are prima facie
evidence of the facts therein stated [Sec. 2, Rule
21]

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