Remedial Law
General Principles:
1. There is no right of action (right to file suit) where there is no
cause of action.
2. The failure to make sufficient allegation of a cause of action
in the complaint is a ground for its dismissal.
3. Filing the complaint with the wrong court is a ground for
dismissal of the complaint either upon proper motion by the
adverse party or upon the court’s own motion.
4. Jurisdiction over the subject matter is a matter of substantive
law, not of mere procedure.
5. The rules on venue preclude a court from dismissing a
complaint motu propio except when so authorized by a special
rule.
6. If the action is real (one that affect title to, possession of, or
any interest in real property), the action shall be commenced
and tried in the place where the real property involved or a
portion thereof is situated. If the action is personal, the action
may be commenced and tried in the place where the plaintiff
resides or where the defendant resides, or in the case of a non-
resident defendant, where he may be found, at the election of
the plaintiff.
7. A complaint is not considered filed when the docket is not
paid. Payment of the full amount of the docket fee is
mandatory and jurisdictional.
8. When the court has no jurisdiction over the subject matter of
the action and the amendment is for the purpose of conferring
jurisdiction upon the court where the amendment is no longer
a matter of right, the amendment shall not be allowed. Since
the Court is without jurisdiction over the action, it has no
jurisdiction to act on the motion for leave to amend.
9. The summon and copy of the complaint are to be served upon
the defendant in person but, if he cannot be served despite
diligent efforts, summon may be served by an alternative
mode through substituted service. This consists in serving
the summons at the residence of the defendant or his regular
place of business with a person qualified to so receive the
summons in accordance with Rules.
- Summons by publication is not a recognized mode of
service for the purpose of acquiring jurisdiction over the
person of the defendant.
10. Defendant’s voluntary appearance in the action shall be
equivalent to service of summons.
11. The Court may only dismiss a case motu propio in case if
there is 1) lack of jurisdiction over the subject matter, 2)
litis pendentia, 3) res judicata and 4) prescription.
12. Failure of the defendant to file an answer will entitle the
plaintiff to file a motion to declare him in default. When he
is declared in default, the defendant loses his standing in court
and the latter may proceed to render judgment granting the
plaintiff such relief as his complaint may warrant, unless in its
discretion, the court requires the plaintiff to submit evidence
on his claim.
- A party declared in default shall still be entitled to notice
of subsequent proceedings and is accorded a relief from
the order.
- The defendant, at any time after notice thereof and before
judgment, file a motion under oath to set aside the
order of default, showing 1) that his failure to answer
was due to fraud, accident, mistake or excusable
negligence and 2) that he has meritorious defense.
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- A default order will not be issued in an action for
annulment of marriage, declaration of nullity of
marriage or legal separation, even if the defendant fails
to answer.
13. The answer to the complaint must specifically deny the
material averments in the complaint because material
averments not specifically denied are deemed admitted.
- If the answer admits the material averments in the
complaint, the answer is deemed to have failed to tender
an issue. The plaintiff may then file a motion for
judgment on the pleadings and the court may direct a
judgment based on the pleadings already filed. (Bar 2016,
2015, 2014, 2013)
- Where there is an issue in the case but the issue does not
concern any material fact, there is no genuine issue, thus a
summary judgment would be proper. (Bar 2016, 2015,
2014, 2013)
14. A counterclaim is a pleading which sets forth a claim which a
defending party may have against an opposing party.
- A compulsory counterclaim, which a defending party
has at the time he files answer, shall be contained therein.
- A permissive counterclaim does not have to be raised in
the same proceedings because, by its nature, it could be
invoked as an independent action.
- A cross-claim is a pleading containing the claim by one
party against a co-party.
15. The failure to file a reply will not, likewise, result in the
implied admission of the material allegations in the answer
because the allegations of new matters in the answer, even if
not replied to, are deemed controverted or denied.
16. After the last pleading has been served and filed, it is the duty
of the plaintiff to promptly move ex parte that the case be set
for pre-trial.
- A pre-trial is mandatory and failure to appear thereat by
either party will result in adverse consequences for the
absent party.
- In a pre-trial, the parties shall, among others, consider the
possibility of an amicable settlement or submission of the
case to alternative modes of dispute resolution.
- During the pre-trial stage and at any time even before pre-
trial or trial, the parties may obtain information from each
other through employment of devices, collectively known
as discovery procedure.
17. During trial, after the presentation of evidence by the plaintiff,
if the defendant believes that, upon the facts and the law, the
plaintiff is not entitled to relief, he may, instead of presenting
his own evidence, move for the dismissal of the case by way
of demurrer to evidence.
- If the demurrer is denied, the defendant still has the right
to present evidence.
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Remedial Law
- If the demurrer is granted but on appeal the order of
dismissal is reversed, the defendant is deemed to have
waived his right to present evidence.
18. Instances where judgment may be rendered even without a
trial:
1. Prescription
2. Bar by prior judgment or Res Judicata
3. Judgment on the pleadings
4. Judgment upon a compromise
19. The right to appeal is a statutory right and one who seeks to
avail of the right must comply with the pertinent statute or
rules. The perfection of an appeal in the manner and within
the period permitted by law is not only mandatory but also
jurisdictional.
- Rules on the manner and periods for perfecting appeals
are strictly applied and are only relaxed in very
exceptional circumstances on equitable consideration.
- A delay in filing of the appeal will not be excused in the
absence of exceptional, special or meritorious
circumstance.
20. Res Judicata applies in the concept of bar by prior judgment
if the following requisites concur: (FMJI)
1. The former judgment or order must be final;
2. The judgment or order must be on the merits;
3. The decision must have been rendered by a court having
jurisdiction over the subject matter and the parties; and,
4. There must be, between the first and the second action,
identity of the parties, subject matter and causes of
action.
- The application of the doctrine of res judicata does not
require absolute identity of parties, but merely substantial
identity of parties. There is substantial identity of parties
when there is community of interest in the first and a party
in the second case even if the first case did not implead the
latter.
- It does not apply to civil law and thus no bearing on
criminal proceedings.
- Res judicata in prison grey or the criminal law concept of
double jeopardy. The dismissal a case during the
preliminary investigation does not constitute double
jeopardy, preliminary investigation not being part of the
trial.
Remedial Law is a set of rules which prescribe the procedure for the
protection and enforcement of all claims arising from the right and duties
created by law.
Substantive Law creates, defines and regulates rights and duties
concerning life, liberty and property, the violation of which gives rise to a
cause of action.
Application of Rules of Court
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 Procedural laws shall have prospective effect. It may be made
applicable to actions pending and undetermined at the time of their
passage and is retroactive in that sense.
 Procedural laws may be given retroactive effect to actions pending
and to those which are yet undetermined at the time of their passage
because there are no vested rights in the rules of procedure.
- Instances when 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 action would impair vested
rights;
3. When do so would not be feasible or would work injustice;
or
4. If doing so would intricate problems of due process or
impair the independence of the courts.
 The Rules of Court does not apply the following cases: CLIEN
1. Cadastral cases;
2. Land Registration cases;
3. Insolvency proceedings;
4. Election cases; and,
5. Naturalization cases
- The Rules may, however, apply to the above cases by a)
analogy, or b) in suppletory character and whenever
practicable.
- Jurisprudence discloses that the rules in the Rules of Court do
not also apply to non-judicial proceedings.
- Administrative bodies are not bound by the technical niceties of
the rules obtaining in a court of law. Hence, administrative due
process cannot be fully equated with due process in strict
judicial terms.
- Quasi-judicial and administrative bodies are not bound by the
technical rules of procedure, that technicalities should never be
used to defeat the substantive rights of a party, and that every
litigant should be afforded the opportunity for the proper and
just determination of his cause, free from constraints of
technicalities.
 Rules of procedure are not to be applied in a very rigid and technical
manner, as they are used only to help secure and not to override
substantial justice.
RULE-MAKING POWER OF THE SC:
 The SC has the power to PROMULGATE rules concerning the
protection and enforcement of constitutional rights, pleadings,
practice, and procedure in all courts, the admission to the practice of
law, the integrated bar and legal assistance to the underprivileged.
- In Echegaray v. Sec. of Justice, the 1987 Constitution took away
the power of Congress to repeal, alter or supplement rules
concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleadings, practice and procedure is no
longer shared by the Court with Congress and with the
Executive branches.
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- In Neypes v. CA, the SC has the sole power to amend, repeal or
even establish new rules for a more simplified and inexpensive
process, and the speedy disposition of cases.
- In Pinga v. Heir of Santiago, the power to promulgate carries
with it the power to OVERTURN judicial precedents on points
of remedial law through the amendment of the Rules of Court.
- In CIR v. Mirant Pagbialo Corp., the courts have the power to
RELAX or SUSPEND technical or procedural rules or to
EXCEPT a case from their operation when compelling reasons
so warrant or when the purpose of justice requires it. It can
suspend rules with respect to a particular case (PRO HAC
VICE). See Sec. 6, Rule 1, ROC.
- As a rule, STRICT compliance with the rules of procedure is
essential to the administration of justice. Their strict and rigid
application should be relaxed when they hinder rather than
promote substantial justice.
- In Ginete v. CA, the rules of procedure as mere tools designed
to facilitate the attainment of justice. Hence, their strict
application which would result in technicalities and tend to
frustrate rather than to promote substantial justice must always
be eschewed (avoided).
- Procedural rules were conceived to aid the attainment of justice.
If a stringent application of the rules would hinder rather than
severe the demands of substantial justice, the former must yield
to the latter.
- Rules of procedure must be used to facilitated, not to frustrate
substantial justice.
 Reasons which would warrant the SUSPENSION of the rules:
1. The existence of SPECIAL or COMPELLING circumstances;
2. The MERITS of the case;
3. A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of rules;
4. A lack if any showing that the review sought is merely frivolous
and dilatory; and,
5. The rights of the other party will not be unjustly prejudiced
thereby.
 Liberal construction of the rule has been allowed by the Court in
cases 1) where a rigid application will result in a manifest failure or
miscarriage of justice; 2) where the interest of substantial justice
will be served; 3) where the resolution of the motion is addressed
solely to the sound and judicious discretion of the court; and 4)
where the injustice to the adverse party is not commensurate to the
degree if his thoughtlessness in not complying with the procedure
prescribed.
 Limitations on the rule-making power of the SC:
1. The rules shall provide a SIMPLIFIED and INEXPENSIVE
PROCEDURE for the speedy disposition of cases;
2. The rules shall be UNIFORM for courts of the same grade; and,
3. The rules shall not diminish, increase or modify substantive
rights.
Equity Jurisdiction is used to describe the power of the court to resolve
issues presented in a case, in accordance with natural rules of fairness and
justice, and in the absence of a clear, positive law governing such issues.
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 Equity does not apply when there is a law applicable to a given case.
It is available only in the absence of law and not as its replacement.
See Art, 9, NCC.
Doctrine of Hierarchy of Courts (Principle of Judicial Hierarchy), a
case must be filed before the lowest court possible having the appropriate
jurisdiction, except if one can advance a special reason which would
allow a party a direct resort to a higher court.
 It was ruled, that the concurrence of jurisdiction, does not grant the
party seeking relief the absolute freedom to file a petition in any
court of his choice.
 The concurrent jurisdiction among courts of different ranks is
subject to the Doctrine of Hierarchy of Courts.
 When the SC has shared concurrent jurisdiction with RTC and
CA, the direct invocation of SC’s original jurisdiction should be
allowed only when there are special and important reasons.
 The rationale for the doctrine of hierarchy of courts is two-fold:
1. It would be an imposition upon the limited time of the Court;
and,
2. It would inevitably result in a delay, intended or otherwise, in
the adjudication of cases, which in some instances, had to be
remanded or referred to the lower court as the proper forum
under the rules of procedure, or as better equipped to resolve the
issue because the Court is not a trier of facts.
 The doctrine may be disregarded if warranted by the nature and
importance of the issues raised in the interest of speedy justice and
to avoid future litigation.
Doctrine of non-interference or Doctrine of judicial stability holds
that courts of equal and coordinate jurisdiction cannot interfere with
each other’s orders.
 It bars a court from reviewing or interfering with judgment of a co-
equal court over which it has no appellate jurisdiction or power of
review.
 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.
Courts of general jurisdiction are those with competence to decide on
their own jurisdiction and take cognizance of all cases, civil and criminal,
of a particular nature.
Courts of special (limited) jurisdiction are those which have a special
jurisdiction only for a particular purpose or are clothed with special
powers for the performance of specified duties beyond which they have
no authority of any kind.
Courts of original and appellate jurisdiction:
 A court is one with original jurisdiction when actions or
proceedings are originally filed with it.
 A court is one with appellate jurisdiction when it has the power of
review over the decisions or orders of a lower court.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
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JURISDICTION OF COURTS
Jurisdiction is the power and authority of the court to hear, try and
decide a case. (PA HTD)
1. It has power of the court over the subject matter and the authority
of the court to render the judgment or decree it assumes to make.
2. It has authority to execute the decisions rendered by the court.
3. It has the power to control the execution of its decision
- Jurisdiction is the authority of the court to decide a case and not
the decision rendered therein.
- A court can dismiss an action motu propio even though issue of
jurisdiction is not raised in the pleadings or not even raised by
counsel. See Sec. 1, Rule 9, ROC
- Proceedings conducted or decisions made by a court are legally
void where there is an absence of jurisdiction over the subject
matter.
Jurisdiction over the subject matter is the power or authority to hear
and determine cases of general class to which the proceeding in question
belongs.
 It is 1) conferred by law and 2) determined by the allegations in
the complaint which comprise a concise statement of the ultimate
facts constituting the plaintiff’s cause of action. (Bar 2016, 2015)
- Once vested by the allegations in the complaint, jurisdiction also
remains vested irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims asserted
therein.
- The cause of action in complaint is not what the designation of
the complaint states, but what the allegations in the body of the
complaint define and describe.
- The averments in the complaint and the character of the
relief sought are the ones to be consulted. In sum, jurisdiction
over the subject matter is determined in the allegations in the
complaint and the reliefs prayed for.
 It is conferred by law which may be either the Constitution or a
statute. Thus, it is not for the courts or the parties to determine or to
conveniently set aside.
 The court’s jurisdiction cannot be made to depend upon the defenses
set up in the answer or in a motion to dismiss . Otherwise, the end of
justice would be frustrated by making sufficiency of this kind of
action dependent upon the defendant in all cases. (Bar 2016, 2015)
- Jurisdiction over the subject matter is not affected by the pleas
or theories set up by the defendant in an answer or MTD.
- The MTC does not automatically lose its jurisdiction over
ejectment cases by mere allegation of the defense of tenancy
relationship between the parties. There must first be a reception
of evidence, and if, after hearing, tenancy had in fact been
shown to be the real issue, the court should dismiss the case for
lack of jurisdiction.
 It CANNOT be 1) granted by agreement of the parties; 2) acquired,
waived, enlarged, or diminished by any act or omission of the
parties; or 3) conferred by the acquiescence of the courts.
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 It cannot be conferred by court’s unilateral assumption of
jurisdiction. Likewise, it cannot be cured by silence, acquiescence
or even express consent.
 Jurisdiction over the subject may be raised at any stage of the
proceedings, even for the first time on appeal.
 Exception is the Doctrine of Estoppel by Laches, in the case of
Tijam v. Sibonghanoy, the Court barred a belated objection to
jurisdiction that was raised by a party only when an adverse
decision was rendered by the lower court against it and because it
raised the issue only after seeking affirmative relief from the court
and actively participating in all stages of the proceedings.
Error of jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction.
 It occurs when the court exercises a jurisdiction not conferred upon it
by law.
 A judgment rendered by a body or tribunal that has no jurisdiction
over the subject matter of the case is no judgment at all.
 The void judgment can never be final and any writ of execution
based on it is likewise void.
 Any decision rendered without jurisdiction is a total nullity and may
be struck down at any time, even on appeal; the only exception is
when the party raising the issue is barred by estoppel.
 It is correctible only by extraordinary writ of certiorari.
 There is lack of jurisdiction when the court or tribunal is not vested
by law with authority or power to take cognizance of a case. On the
other hand, excess of jurisdiction presupposes the existence of an
authority for the court to assume jurisdiction over a case but it acted
beyond the power conferred upon it.
Error of judgment presupposes that the court is vested with jurisdiction
over the subject matter of the action but it committed mistakes in the
appreciation of the facts and evidence leading to an erroneous judgment.
 it includes error of procedure or mistake in the court’s findings.
 it is correctible by appeal.
Doctrine of Primary Jurisdiction (Primary Administrative
Jurisdiction) – Courts cannot and will not resolve controversy involving
a question within the jurisdiction of an administrative tribunal, especially
when the question demands the sound exercise of administrative
discretion requiring special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matter of fact.
 Its objective is to guide the court in determining whether it should
refrain from exercising its jurisdiction until after an administrative
agency has determined some question or some aspect of some
question arising in the proceeding before the court.
 Exceptions to the Doctrine of primary jurisdiction:
a. there is estoppel on the part of the party invoking the doctrine;
b. the challenged administrative act is patently illegal, amounting
to lack of jurisdiction;
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c. there is unreasonable delay or official inaction that will
irretrievable prejudice the complainant;
d. the amount involved is relatively small;
e. the question involved is purely legal and will ultimately have to
be decided by the courts of justice;
f. judicial intervention is urgent;
g. when its application may cause great and irreparable damage;
h. the controverted acts violated due process;
i. the issue of non-exhaustion of administrative remedies has been
rendered moot;
j. there is no other plain, speedy and adequate remedy: (PSAR)
k. when strong public interest is involved.
Doctrine of adherence of jurisdiction (Continuity of Jurisdiction)
means that once jurisdiction has attached, it cannot be ousted by
subsequent happenings or events, although of a character which would
have prevented jurisdiction from attaching in the first instance.
 It was held that the trial court did not lose jurisdiction over the case
involving a public official by the mere fact that said official ceased to
be in office during the pendency of the case.
 Exceptions: 1) there is an express provision in the statute, or 2) the
statute is clearly intended to apply to action pending before its
enactment.
Jurisdiction over the person is the legal power of the court to render
personal judgment against a party to an action or proceeding.
 A decision in personam imposes a responsibility or liability upon a
person directly and therefore, binds him personally.
 Jurisdiction over the plaintiff is acquired by his filing of the
complaint or petition. By doing so, he submits himself to the
jurisdiction of the court.
 Jurisdiction over the person of the defendant in civil cases is
acquired either by his 1) voluntary appearance in court and 2) his
submission to its authority or by service of summon.
 The defendant’s voluntary appearance in the action shall be
equivalent to service of summon.
 An appearance in whatever form without expressly objecting to
the jurisdiction of court over the person, is a submission to the
jurisdiction of the court.
 When the filing of the answer is precisely to object to the
jurisdiction of the court over his person, it is not considered an
appearance in court.
 It is required only in an action in personam, but it is not
prerequisite in an action in rem or quasi in rem.
- An action in personam is an action against a person on the
basis of his personal liability.
- It is one which seeks to enforce personal right and
obligations brought against the person.
- An action in rem is an action against the thing itself instead
of against the person.
Jurisdiction over the issue is the power of the court to try and decide the
issue raised in the pleadings of the parties.
a. Proceedings which are covered by action in rem, such
status, title to, possession of or interest to real property:
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Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
1. Petition for adoption;
2. Annulment of marriage;
3. Correction of entries in the birth certificate
4. Forfeiture Proceedings
5. Land registration
b. In action in rem or quasi in rem, jurisdiction over the
person of the defendant is not a pre-requisite to confer
jurisdiction on the court provided that the court acquires
jurisdiction over the res. However, summons be served
upon the defendant not for the purpose of vesting the
court with jurisdiction but merely for satisfying the due
process requirement.
- The distinction between the actions in rem, in
personam and quasi in rem is important 1) to
determine whether or not the jurisdiction over the
person is required and consequently 2) to determine
the type of summons to be employed.
c. Jurisdiction over the res refers to the court’s
jurisdiction over the thing or the property which is the
subject of the action.
- It is acquired either: 1) by seizure of the property
under the legal process, whereby it is brought into
actual custody of the law; or 2) as a result of the
institution of legal proceedings, in which the power
of the court is recognized and made effective.
- it may be acquired by the court by placing the
property or thing under its custody (custodia legis)
or constructive seizure through 1) publication
and 2) service of notice.
- Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort to the right sought to be established. Through
publication, all interested parties are deemed
notified of the petition.
d. If the objection is not raised either in a MTC or in the
answer, the objection to the jurisdiction over the person
of the defendant is deemed waived. See Sec 1(a), Rule
16 in rel. to Sec. 6, Rule 16, ROC.
e. Defenses and objection not pleaded either in a MTD or
in the answer are deemed waived, except lack of
jurisdiction over the subject matter, litis pendentia, res
judicata or prescription.
f. The inclusion in a MTD of other grounds aside from
lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance.
- An action quasi in rem is one wherein an individual is named
as defendant and the purpose of the proceeding is to subject
his interest therein to the obligation or lien burdening the
property.
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 It is conferred and determined by the allegations in the pleadings of
the parties.
 A denial, made not in accordance with Sec. 10, Rule 8 is to be
construed as an admission, a circumstance which does not give rise
to an issue.
 Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleading, judgment on
the pleadings may be rendered by the court upon a motion properly
filed.
 Jurisdiction over the issues may also be conferred by waiver or
failure to object to the presentation of evidence on a matter not raised
in the pleadings.
Distinction between a question of law and a questions of fact:
1. There is question of law when the doubt or difference arises as to
what the law is on a certain set of facts.
2. There is question fact when doubt or difference arises as to the
truth or falsehood of the alleged facts.
- The test of whether a question is one of law or of fact is
whether the appellate court can determine the issue raise
without reviewing or evaluating the evidence, in which case, it
is a question of law; otherwise, it is a question of fact.
Jurisdiction over the res
Supreme Court is the court of last resort. It cannot be burdened with the
task deciding cases in the first instance.
1. Exclusive Original Jurisdiction in petitions for certioratri,
mandamus, prohibition against the: CA, COMELEC, COA,
Sandiganbayan, and CTA.
2. Concurrent Original Jurisdiction with the CA in petitions for
certiorari, mandamus and prohibition against the RTC, CSC, CBAA,
NLRC and other quasi-judicial agencies.
 This jurisdiction is subject to the doctrine of hierarchy of courts.
3. Concurrent Original Jurisdiction with the CA and the RTC in
petitions for certiorari, mandamus and prohibition against the lower
courts and bodies, and in petitions for quo warranto and habeas
corpus.
 This jurisdiction is subject to the doctrine of hierarchy of courts.
 The CA may issue auxiliary writs or processes whether or not in
aid of its appellate jurisdiction
4. Concurrent Original Jurisdiction with the RTC in cases affecting
the ambassadors, public ministers and consuls (APC).
Court of Appeals
5. Appellate jurisdiction by way of petition for review on certiorari
(appeal by certiorari) against the CA, Sandiganbayan, CTA in its
decisions rendered EN BANC, RTC on pure questions of law and
in cases involving the constitutionality or validity of a law or treaty,
international or executive agreement, law and other statutes. 1.
 Cases that should be heard by the SC en banc, under the 1987
Constitution: 2.
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1. All cases involving the constitutionality of a treaty,
international or executive agreement, or law;
2. All cases which, under the ROC are required to be heard en
banc;
3. All cases involving the constitutionality, application or
operation of presidential decrees, proclamations, orders,
instructions, ordinances and other regulations;
4. Cases heard by a division when the required number in the
division is not obtained;
5. Cases involving a modification or reversal of a doctrine or
principle of law laid down previously by the SC in a decision
rendered en banc or by a division;
6. Cases involving the discipline of judges of lower courts;
7. Contests relating to the election, returns and qualifications of
the President or V. President. (ERQ)
- Procedure when the SC en banc is equally divided, see Sec. 7,
Rule 56, ROC.
 Actions or Petitions that may be filed directly to the SC:
1. Petition for Quo Warranto;
2. Disciplinary proceedings against members of the judiciary and
attorneys;
3. Petition for Amparo and Habeas Data
4. Appeal by Certiorari in Criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment.
 Instances where direct cases filed in the SC: (SABCC)
1. Where there are special and important reasons clearly stated
in the petition; (SIR)
2. When dictated by public welfare and the advancement of
public policy;
3. When demanded by the broader interest of justice:
4. When the challenged orders were patent nullities;
5. When analogous exceptional and compelling circumstances
called for and justified the immediate and direct handling by
the court.
 The SC is not a trier of facts. Thus, the findings of facts of the CA
are not generally reviewable by the SC.
- Exceptions:
1. The findings are grounded entirely on speculations, surmises,
or conjectures;
2. The inference made is manifestly mistaken, absurd or
impossible;
3. There is grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. The findings of facts are conflicting;
6. The CA went beyond the issue of the case
7. The findings of the Ca are contrary to those of the trial.
 The CA may sit EN BANC only for the purpose of exercising
administrative, ceremonial or non-adjudicatory functions.
Exclusive Original Jurisdiction in actions for the annulment of the
judgments of the RTCs.
Concurrent and Original Jurisdiction with the SC – see above
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

 It refers to 1) an ejectment suit 2a) where the cause of

3. Concurrent and Original Jurisdiction with the SC and the RTC – dispossession is not among the grounds for FEUD, or 2b)
see above when possession has been lost for more than one year and 3)
can no longer be maintained under Rule 70, ROC. Its
4. Exclusive Appellate Jurisdiction: objective is to recover possession only and not ownership.

a. by way of ordinary appeal from the judgments of the RTC and
the Family Court in the exercise of its original jurisdiction,
b. by way of petition for review from the judgement rendered by
the RTC in the exercise of its appellate jurisdiction.
c. By way of petition for review from the decisions, resolutions
orders or awards of the CSC and other quasi-judicial
administrative bodies mentioned in Rule 43.
- The decisions of the Office of the Ombudsman in
administrative disciplinary cases are appealable to the CA
under Rule 43. On the other hand, decisions of the OMB in
criminal or non-administrative cases are subject to
remedy by appeal by certiorari under Rule 65.
3. All actions in admiralty and maritime jurisdiction where the
demand or claim exceeds P300,000 outside Metro Manila, or in
Metro Manila, where such demand or claim exceeds P400,000
4. All matters of probate, both testate and intestate, where the
gross value of the estate exceeds P300,000 outside Metro Manila
or, in probate matters in Metro Manila, where such gross value
exceeds P400,000
5. In all actions involving the contract of marriage and marital
relations;
6. All cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions – RTC is a court of general jurisdiction;

5. Appellate Jurisdiction over decision of MTC in cadastral or land  The Supreme Court has held that despite its designation as a
registration cases to its delegated jurisdiction. Family Court, a Regional Trial Court remains possessed of
authority as a court of general jurisdiction to resolve the
constitutionality of a statute.  (Garcia v. Drilon, 25 June 2013)
Regional Trial Courts
7. All other cases in which the demand or the value of the property
1. Exclusive Original Jurisdiction in controversy exceeds P300,000 outside MM, or in MM where
the demand exceeds P400,000, exclusive of IDALEC.
1. All civil actions in which the subject of the litigation is
incapable of pecuniary estimation; 2. Concurrent Original Jurisdiction

- To determine if an action is one incapable of pecuniary 1. w/ the SC – see above

estimation, it is necessary to ascertain the nature of the 2. w/ the SC and CA – see above
principal remedy sought.
3. Appellate Jurisdiction
1. Action for reformation of the instrument;
2. Rescission of a contract 1. Over all cases decided by the MTCs
3. Action for specific performance
4. Expropriation 4. Special Jurisdiction
5. Action for the annulment of an extrajudicial foreclosure
sale of real property 1. Jurisdiction over intra-corporate controversies: (FIRES)
6. Support
7. Foreclosure of mortgage a. Controversies arising out of intra-corporate or
partnership relations;
- If it is primarily for the recovery of a sum of money, it is
capable of pecuniary estimation. b. Cases involving devises or schemes employed by or any
acts, of the BODs, buss. assoc., its officers or partnership,
- An action for quieting of title may be instituted in the amounting to fraud and misrepresentation which may be
RTC, regardless of the assessed value of the property detrimental to the interest of the public and/or of the
dispute. Under Rule 63, ROC, an action to quite to real stockholders;
property or removed cloud therein may be brought in the
appropriate RTC. c. Controversies in the election or appointments of directors,
officers or managers of such corporation; and
2. All civil actions which involve title to, possession of, real
property or an interest therein, where the assessed value of such d. Petitions of corporations to be declared in the state of
property involved exceeds P20,000 outside Manila, or for civil suspension of payments which is under the management of
actions in Metro Manila where such value exceeds P50,000; a Rehabilitation Receiver or Management Committee.

- Accion publiciana is an ordinary civil proceeding to  To determine a dispute if it is an intra-corporate

determine the better right of possession of realty controversy, the Court uses two tests, namely, the
independently. relationship test and the nature of the controversy test. In
other words, jurisdiction should be determined by considering

7
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
both the relationship of the parties as well as the nature of the
question involved.
1. Under the RELATIONSHIP TEST, the existence of any
of the below intra-corporate relations makes the case
intra-corporate. An intra-corporate controversy is one
which pertains to any of the ff. relationship: 1) b/w the
corporation and the public 2) b/w the corporation and the
State insofar as its franchise, permit or license to operate
is concerned; 3) b/w corporation and its stockholders or
officers; and, 4) among the stockholders.
2. Under the NATURE OF THE CONTROVERSY
TEST, the controversy must not only be rooted in the
existence of an intra-corporate relationship, but must as
well pertain to the enforcement of the parties’ correlative
rights and obligations under the Corporation Code and the
internal and intra-corporate regulatory rules of the
corporation.
Municipal Trial Courts:
 Jurisdictional amount is the value of the personal property, estate,
or amount of the demand involved in the civil action or proceedings.
1. Exclusive Original Jurisdiction
a. over civil actions where the value of the personal property,
estate or amount of the demand does not exceed P300,000
outside Manila or not more than P400,000 within Metro Manila;
b. over probate proceedings testate and intestate where the gross
value of the estate does not exceed P300,000 outside Metro
Manila or P400,000 within Metro Manila;
c. over civil actions involving title to or possession of real
property, or any interest therein, where the assessed value of the
property or interest therein does not exceed P20,000 outside MM
or P50,000 within Metro Manila. It does not include IDALEC.
 Accion publiciana is an ordinary civil proceeding to
determine the better right of possession of realty
independently. Its purpose is to recover possession only.
- It refers to an ejectment suit where the cause of
dispossession is not among the grounds for FEUD or 1)
when possession has been for more than one year and 2)
can no longer be maintained under Rule 70, ROC.
 Accion Reinvindicatoria is a suit which has for its object the
recovery of possession over the real property as owner. It
involves recovery of ownership and possession based on said
ownership.
- Actions for reconveyance of or for cancellation of title
to or to quiet title of real property are actions that fall
under the classification of cases that involve “title to or
possession of, real property or any interest therein”.
- Jurisdiction over the subject matter involving
possession of, title to real property, or interest therein, is
determined by: (MAR Law)
a. the material allegations of the complaint;
b. the assessed value of the property
8
c. the relief sought by the plaintiff;
d. the law in effect when the action is filed; and,
d. over Forcible Entry and Unlawful Detainer (FEUD) cases,
otherwise known as accion interdictal;
 in FEUD cases, when defendant raises the question of
ownership in his pleadings and the issue of possession cannot
be resolved without deciding the issue of ownership, the court
may resolve the issue of ownership but only for the purpose of
determining the issue of possession.
 in FEUD cases, the issue to be settled is the physical or
material possession over the real property, that is, possession
de facto and not possession de jure.
 The judgment of the inferior court on the question of
ownership is of a provisional nature and shall be for the sole
purpose of determining the issue of possession. It shall not
bind the title of the realty or affect the ownership thereof nor
shall it bar an action between the same parties respecting title
to the real property.
e. to grant provisional remedies in proper cases.
- The jurisdictional amount does not include (IDALEC) 1)
interest, 2) damages of whatever kind; 3) attorney’s fees; 4)
litigation expenses; and, 5) costs. Although excluded in
determining the jurisdiction of the court, the above items
however, shall be included in determining the filing fees.
- In cases where the claim for damages is the main cause of
action or one of the causes of action, the amount of such claim
shall be considered in determining the jurisdiction of the court.
- Under the Totality Rule, where there are several claims or
causes of actions between the same or different parties,
embodied in the same complaint, the amount of the demand
shall be totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the
same or different transactions.
2. Delegated Jurisdiction
 In Cadastral and land registration cases covering lots where
there is no controversy or opposition, or contested lots the value of
which does not exceed P100,000, as may be delegated by the SC.
- Jurisdiction over an application for land registration
remains with the RTC where the land is situated, except when
it is delegated by the SC to the MTC under certain
circumstances.
- The decision of the MTC shall be appealable in the same
manner as the decision of the RTC. Hence, the MTC acting
under its delegated jurisdiction, may be deemed to be acting as
RTC. Thus, the decision of the MTC shall be appealable to the
CA following the procedure of Rule 41.
3. Special Jurisdiction
1. MTC has special jurisdiction to hear and decide for a writ of
habeas corpus in the absence of all the RTC in the province or
city.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
2. It has the authority to hear and decide application for bail in
criminal cases in the province or city where the absent RTC
judges sit.
4. Civil cases subject to Summary Procedure:
1. FEUD, irrespective of the amount of damages or unpaid rentals
sought to be recovered;
2. All other cases where the total amount of the plaintiff’s claim
does not exceed P100,000 outside MM or does not exceed
P200,000 within MM, exclusive of IDALEC
 Probate Proceedings are not covered by the 1991 Revised
Rule on Summary Procedure even if the gross value of the
estate does not exceed P100,000/200,000.
 The only pleadings allowed are 1) complaint; 2) answer 3) cross-
claim pleaded in the answer; and 4) answer to these pleadings. All
of which must be verified.
 Prohibited Pleadings and motions: (PPM)
1. MTD, except lack of jurisdiction over the subject matter and
failure to comply with the barangay conciliation proceedings.
2. Motion for bill of particulars (MBP);
3. Motion for new trial or for reconsideration (MNT/MR);
4. Motion for extension of time to file pleadings or any other
paper (MET);
5. Dilatory motions for postponement;
6. Motion to declare defendant in default (MDD)
7. Petition for relief from judgment;
8. Petition for mandamus, certiorari or prohibition against any
interlocutory order issued by the court;
9. Reply;
10. Third-party complaints
11. Reply
12. Interventions
 The failure of the plaintiff to appear in the preliminary
conference shall be a cause for dismissal of his complaint.
 The judgment or final order of the MTC shall be appealable to the
RTC. The decision of the latter, including FEUD, shall be
immediately executory, without prejudice to a further appeal
which may be taken therefrom. The decision of the RTC shall be
appealable to the CA by petition for review on certiorari on error
of fact or law.
5. Jurisdiction over Small Claim Cases:
1. Cases for payment of money where the value of the claim does
not exceed P200,000, exclusive of interest and costs.
2. All actions that 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:
a. For money owed under: contract of lease, loan, services,
sale, or mortgage;
b. For liquidated damages arising from contracts;
c. The enforcement of barangay amicable settlement or an
arbitration award involving claim covered by this Rule
pursuant to Sec. 417, RA 7160.
9
 Prohibited Pleadings and Motions – same as above.
 Defendant’s response; counterclaim:
1. If the defendant failed to file his answer within the
reglementary period, the defendant shall be barred from the
suit on the counterclaim.
2. If the counterclaim does not arise out of the same transaction
or occurrence that is the subject matter of the plaintiff’s claim,
the defendant may elect to file a counterclaim against the
plaintiff provided two requirements are met: 1) the amount
and nature of the counterclaim are within the coverage of the
herein rule; and 2) the prescribed docket and other legal fees
are paid.
 If the defendant 1) fails to file his Response within the required
period, and 2) also fails to appear at the ate set for hearing, the
court shall render judgment on the same day, as may be warranted
by the facts. However, if the defendant fails to file his Response
within the required period but he appears at the date set for
hearing, the court shall ascertain what defense he has to offer and
proceed to hear, mediate, or adjudicate the case on the same day as
if a Response has been filed.
 Non-appearance at the hearing:
1. Failure of the plaintiff to appear shall be cause for the
dismissal of the claim without prejudice. The defendant who
appears shall be entitled to judgment on a permissive
counterclaim.
2. Failure of the defendant to appear shall not entitle him to file a
counterclaim against the plaintiff and the court will render
judgment based on merit of the claim of the plaintiff.
3. Failure of both parties to appear shall cause the dismissal with
prejudice of both the claim and counterclaim.
 The decision of the Court shall be final and unappealable, but the
party may avail of a petition for certiorari under the conditions
set forth in Rule 65.
 Appearance of lawyer in behalf of a party at a hearing is not
allowed, unless he is the 1) plaintiff or defendant, 2) general
partner of a partnership, provided all the partners in the partnership
are attorneys or 3) an officer of a professional corporation,
provided all other officers and directors are attorneys.
 However, in Small Claims cases, lawyers are allowed to
provide advice to a party and/or submit an affidavit of a
witness for a party.
Jurisdiction over Barangay Conciliation Proceedings:
 The primordial/primary aim of the Katarungang Pambarangay Law is
to 1) reduce the number of court litigations and 2) prevent the
deterioration of the quality of justice which has been brought about
by the indiscriminate filing of cases in the courts.
 In barangay conciliation before the Lupong Tagapamayapa or the
Pangkat ng Tagapagkasundo of the barangay, the proceeding is not
judicial.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 Legally, there is no barangay court since it is not mentioned in BP
129, as amended, and other pertinent laws on jurisdiction.
 The lupon and the pangkat do not have inherent adjudicatory
powers.
 They resolve dispute or attempt to do so through amicable
settlement, conciliation and arbitration.
 As a rule, no action or any proceeding shall be directly instituted in
court, unless there has been confrontation between the parties before
the lupon chairman or the pangkat and that no conciliation has been
reached as certified by the lupon secretary or pangkat secretary as
attested by the lupon or pangkat chairman or unless the settlement has
been repudiated.
 In certain cases, compulsory process of arbitration is required as
a pre-condition for filing a complaint in court.
 Non-compliance with barangay conciliation for formal
adjudication may be dismissed for insufficiency of the cause of
action or prematurity and not for lack of jurisdiction of the
court.
 Non-referral of a case for barangay conciliation, when so
required under the law, is not jurisdictional in nature and may,
therefore, be deemed waived if not raised seasonably in a MTD.
See Sec. 1, Rule 9 and Sec. 1, Rule 16.
 The conciliation proceeding is not a jurisdictional requirement in
the sense that failure to have prior recourse to it does not deprive
a court of its jurisdiction.
 All disputes are subject to Barangay Conciliation (BC), except in the
following disputes:
1. Where one party is the government, or any subdivision or
instrumentality thereof;
2. Where one is a public officer or employee and the dispute relates
to the performance of his official functions;
3. 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;
4. Any complaint by or against corporations, partnerships, or
juridical entities, since only individuals shall be parties to BC
proceedings either as complainants or respondents;
5. Dispute 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;
6. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding 1 year or a fine of over P5,000.00;
7. Offenses where there is no private offended party
8. Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued;
9. Labor disputes or controversies arising from EER;
10. Dispute arises from the Comprehensive Agrarian Reform Law
 Instances where the parties may go directly to court without the need
for undergoing the barangay conciliation proceedings, namely:
1. The accused is under detention;
2. A person has been deprived of personal liberty calling for habeas
corpus;
3. Actions are coupled with provisional remedies; and
10
4. The action may otherwise be barred by the statute of limitations.
 An Amicable Settlement after barangay conciliation proceedings has
the force and effect of a final judgment of a court if not repudiated or
a petition to nullify the same, on the ground of that the consent is
vitiated by fraud, violence or intimidation, is filed before the proper
city or municipal court within 10 days from its date.
 the above rule does not apply to compromise settlement agreed
upon by the parties before the lupon or pangkat chairman shall
be submitted to the court, and upon approval thereof, have the
force and effect of a judgment of said court.
 the amicable settlement or arbitration award may be enforced
by execution by the lupon within 6 months from the date of the
settlement. After the lapse of such time, the settlement may be
enforced by action in appropriate city or municipal court.
However, that period cannot be strictly applied in certain cases if
it would not reflect the true will of the legislature and attain is
objective, and not to cause an injustice.
CIVIL PROCEDURE
Action is real when it affects title to or possession of real property, or an
interest therein.
 It is founded upon the privity of real estate. All other actions other
than real actions are personal actions.
 The distinction between a real action and personal action is important
for the purpose of determining the venue of the action. **
a. Real action is local, its venue depends upon the location of the
property involved in the litigation;
b. Personal action is transitory, its venue depends upon the
residence of the plaintiff or the defendant.
 a judgment in rem is binding upon the whole world; while a
judgment in personam is binding upon the parties and their
successors-in-interest but not upon the strangers. **
- The distinction between the actions in rem, in personam and quasi
in rem is important 1) to determine whether or not the jurisdiction
over the person is required and consequently 2) to determine the
type of summons to be employed.
 An in personam or an action is a classification of actions according
to the object of the action. On the other hand, personal and real
action is a classification according to foundation.
Cause of action:
 The cause of action in a complaint is not what the designation of the
complaint states but what the allegations in the body of the complaint
define and describe.
- The nature of an action is not determined by the caption of the
complaint, but by the allegations therein together with the reliefs
prayed for.
 Elements of Cause of action:
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

1. A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
2. An obligation on the part of the named defendant to respect or
not to violate such right;
3. Act or omission on the part of such defendant in violation of the
right of the plaintiff or constituting a breach of the obligation of
the defendant to the plaintiff for which the latter may maintain
an action for recovery of damages or their appropriate relief.
 A cause of action arises only upon the occurrence of the last
element, giving the plaintiff the right to maintain an action in
court for the recovery of damages or other appropriate relief.
 In administrative cases, the issue is no whether the
complainant has a cause of action against the respondent, but
whether the respondent has breached the norms and
standard of the office.
- Joinder of causes of action is not compulsory. It is merely
permissive.
- The three test to ascertain whether two suits relate to a single or
common cause of action:
1. Whether the same evidence would support and sustain both the
first and second causes of action (also known as the same
evidence test);
2. Whether the defenses in one case may be used to substantiate
the complaint in the other;
3. Whether the cause of action in the second case existed at the
time of the filing of the first complaint.
 When there is a misjoinder of causes of action, the erroneously
joined cause of action can be severed and proceeded with separately
upon motion by a party or upon the court’s own initiative.

 A cause of action based on breached of contract, merely - Misjoinder is not a ground for dismissal of an action.
requires the following elements: 1) the existence of a contract,
and 2) the breach of the contract.  Litis Pendentia exists when the following requisites are present: 1)
identity of the parties in the two actions; 2) substantial identity in
 Failure to state cause of action ; test of sufficiency of the allegations the cause of action and in the reliefs sought by the parties; and 3)
– that all elements of the cause of action required by substantive law the identity between the two actions should be such that any
must clearly appear from the mere reading of the complaint. judgment that may be rendered in case regardless of which party is
successful, would amount to res judicata in the other.
- The rules of procedure require that the complaint must contain a
concise statement of the ultimate or essential facts constituting the
Venue is the place of trial in which an action or proceeding should be
plaintiff’s cause of action.
brought. It is intended to accord convenience to the parties, as it relates
to the place of trial. It does not equate to the jurisdiction of the court.
- The focus is on the sufficiency, not the veracity, of the material
allegations. If there is a defect or insufficiency in the statement of
 It is settled that what determines the venue of a case is the primary
the cause of action, a complaint may be dismissed not because of
objective for the filing of the case.
an absence or a lack of cause of action but because the complaint
states no cause of action.
 Objection to an improper venue must be raised either in MTD or in
the answer pursuant to Sec. 1, Rule 9, otherwise defenses and
- The distinction between failure to state cause of action and lack of
objections not pleaded in a MTD or in the answer are deemed
cause of action:
waived.
1. As to sufficiency. Former refers to an insufficiency in the
 Jurisdiction over the territory is irrelevant in a civil case. Territorial
allegation in the complaint, while the latter refers to the failure
jurisdiction applies only in criminal cases where venue is also
to prove or establish by evidence that one has a cause of action;
jurisdictional.
2. As to remedy invoked. The former is a ground for MTD; while
the latter is a ground for demurrer to evidence;
 The SC under the 1987 Constitution is authorized to order a change
3. As to the veracity of the allegations. The former does not
in venue to avoid miscarriage of justice.
concern itself with the truth and falsity of the allegations; while
the latter is concerned to determine the truth and falsity of the
 it is an essential element of jurisdiction only in criminal actions. If
allegations
the information is filed a place where the offense was not committed,
it may be quashed for lack of jurisdiction over the offense charged.
 Hypothetical admissions extend only to the relevant and material
facts well-pleaded in the complaint, as well as to interferences fairly
 Two-fold reason for this rule. 1) the jurisdiction of trial courts is
deductible therefrom.
limited to well-defined territories such that a trial court can only
hear and try cases involving crimes committed within its territorial
 Splitting a single cause of action is not allowed by the Rules of
jurisdiction. 2) laying the venue in the locus criminis is grounded
Court.
on the necessity and justice of having an accused on trial in the
municipality of province were witnesses and other facilities for his
- The practice of splitting a single cause of action is discouraged
defense are available.
because it breeds multiplicity of suits, clogs the court dockets,
leads to vexatious litigation, operates as an instrument of
 Venue may be distinguished from jurisdiction in the following
harassment and generates unnecessary expenses to the parties.
manner:
- The said rule applies not only to complaints but also to
1. Jurisdiction is the authority to hear and determine a case; venue is
counterclaims and cross-claims.
the place where the case is to be heard or tried;

11
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
2. As to law. Jurisdiction is a matter of substantive law; venue, of
procedural law;
3. As to relation. Jurisdiction establishes a relation between the
court and the subject matter; venue, a relation between plaintiff
and defendant, or petitioner and respondent;
4. Jurisdiction is fixed by law and cannot be conferred by the
parties; venue may be conferred by the act or agreement of the
parties.
 Instances where the rules on venue do not apply:
1. Where there is a specific rule or law provides.
a. In case of Quo Warranto proceeding commenced by the Sol.
General under Rule 66;
b. In case of petition for a continuing mandamus with the RTC
exercising jurisdiction over the territory where the actionable
neglect or omission occurred under Sec. 2, Rule 8, Rules of
Procedure for Environmental Cases;
c. In case of libel under Art. 360, RPC, to be filed in the RTC of
the province or city where the libelous article is printed and
first published or where any of the offended parties actually
resides at the time of the commission of the offense.
2. Where the parties have validly agreed in writing before the filing
of the action on the exclusive venue thereof.
 Rule 4 is only a complementary rule in case there is venue
stipulation agreed upon by the parties.
 The parties may stipulate on the venue as long as the agreement
is 1) in writing, 2) made before the filing of the action, and 3)
exclusive as to the venue.
 To be an EXCLUSIVE venue, the venue stipulation must have
qualifying or restrictive words which would indicate
exclusivity as to the venue, otherwise it would be deemed an
agreement on an additional venue or forum.
 Instances when court may make a motu proprio dismissal based on
improper venue:
1. Action covered by Rules on Summary Procedure;
2. Action covered by Rules on Small Claims;
3. Action for FEUD.
Parties
 Entities authorized by law to be parties (Sec. 1, Rule 3); they may
sue or be sued or both.
1. Corporation by Estoppel
2. Contract of Partnership
3. Estate of a deceased person
4. Legitimate Labor Organization
5. Roman Catholic Church
6. Dissolved Corporation may prosecute and defend suits by or
against it provided that the suits 1) occur within 3 years after its
dissolution, and 2) suits are in connection with the settlement and
closure of its affair.
- Where a plaintiff is not a natural or juridical person or an entity
authorized by law, a MTD may be filed on the ground that the
plaintiff has no legal capacity to sue.
12
 Real Party-in-interest is 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 and the only one who can file an action against another.
- The purposes of the requirement for the real party in interest
prosecuting or defending an action at laws are:
1. To prevent the prosecution of actions by persons without
any right, title or interest in the case;
2. To require that the actual party entitled to legal reliefs be
the one to prosecute the action;
3. To avoid multiplicity of suits; and
4. To discourage litigation and keep it within certain
bounds, pursuant to sound public policy.
- The plaintiff must have material interest in issue and to be
affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest, or real interest
which means a present substantial interest as distinguished from
a mere expectancy or future interest.
 in intra-corporate dispute, the interest of a stock holder is
indirect, contingent, remote, conjectural, consequential and
collateral. For brevity, their interest is purely inchoate in the
management of the corporation.
- Doctrine of relativity of contracts, only the contracting parties,
their heirs and assigns are bound by the stipulation in the
contract. They are the ones who would benefit from it and could
violate it. Thus, one who is not a party to a contract, and for
whose benefit it was not expressly made, cannot maintain an
action on it.
- Doctrine of Locus Standi requires a litigant to have a material
interest in the outcome of the case. Locus Standi is defined as a
right if appearance in a court of justice on a given question. The
following are extended to stand to institute an action:
1. For taxpayer, there must be claim of illegal disbursement
of public funds or the tax measure is unconstitutional;
2. For voters, there must be a showing of obvious interest in
the validity of the law in question;
3. For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and,
4. For legislators, there must be a claim that the official action
complained of infringes on their prerogatives as legislators.
5. Citizen suit can be instituted by 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.
- Every generation has a responsibility to the next to
preserve the rhythm and harmony for the full
enjoyment of a balanced and healthful ecology.
6. Class suit is proper if the following requisites are present:
a. The subject matter of the controversy must be of
common or general interest to many persons;
b. The persons are so numerous that it is impracticable to
join all as parties;
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
c. The parties actually before the court are sufficiently
numerous and representative as to full protect the
interests of all concerned; and,
d. The representatives sur or defend for the benefit of all.
 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.
a. There is no common or general interest in the
reputation of a specific individual.
b. There is no class suit in an action for damages filed
by the relatives of the fatalities in a plane crash. Each
has a distinct and separate interest which must be
proven individuality.
c. When the interest of the parties in the subject matter
are conflicting, a class suit will not prosper.
d. The corporation, being an entity separate and
distinct from its members, has no interest in the
individual property of its members, unless transferred
to the corporation.
 A class suit shall not be dismissed or compromised without
the approval of the court
- In constitutional litigation, no question involving the
constitutionality or validity of a law or governmental act may be
heard and decided by the Court unless there is compliance with
the legal requisites for judicial inquiry, namely:
1. There must be an ACTUAL CASE or CONTROVERSY
calling for the exercise of judicial power;
2. The person challenging the act must have the STANDING
to question the validity of the subject act or issuance;
3. The question of constitutionality must be raised at the
EARLIEST OPPORTUNITY;
4. The issue of constitutionality must be the LIS MOTA
(cause) of the case.
- Any decision rendered against a person who is not a real party-
in-interest in the case cannot be executed. Hence, a complaint
filed against such person should be dismissed for failure to state
a cause of action.
7. Indigent litigant - the other remedy the spouses can avail of
under the rules to exempt them from paying the filing fees is
to apply for exemption pursuant to the “indigency test”
under Section 21, Rule 3 of the Rules of Court if they can
prove that they have “no money or property sufficient and
available for food, shelter and basic necessities for
[themselves] and their family.”  (Sps. Algura v. City of
Naga, 30 October 2006)
 An indispensable party is a party who has an interest in the
controversy or subject matter that a final adjudication cannot be made,
in his absence, without injuring or affecting that interest. He is a real
party in interest without whom no final determination can be had of an
action.
- If there is a failure to implead an indispensable party, any judgment
rendered would have no effectiveness.
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- The joinder of indispensable parties is mandatory. Without the
presence of indispensable parties to the suit, the judgment of the
court cannot attain finality.
- The absence of indispensable parties renders all subsequent actions
of the trial court null and void for want of authority to act, not only
to the absent parties but even as to those present.
- Distinction between an indispensable and a necessary party:
1. An indispensable party must be joined under any and all
conditions while a necessary party should be joined whenever
possible;
2. A final decree can be had in a case even without a necessary
party because his interest are separable from the interest
litigated in the case unlike an indispensable party.
- The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the right of such necessary party.
- The failure to obey the order of the court to drop or add a party is a
ground for the dismissal of the complaint.
 The death of a client extinguishes the attorney-client relationship and
divests the counsel of his authority to represent the client. He does not
become the counsel of the heirs of the deceased unless his services are
engaged by said heirs.
- Non-compliance with the rules on substitution of a deceased party
renders the proceedings of the trial court infirm because the court
acquired no jurisdiction over the person of the legal representative
of heirs of the deceased because no man should be affected by a
proceeding to which he is a stranger.
Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate judgment.
They cannot be oral because they are clearly described as written
statement.
- Their office is to inform the court and the parties of the facts in issue.
- The nature of a pleading is to be determined by the averments in it
and not by its title. The allegations in the pleading and not the title
of the pleading determine the cause of action.
- The pleading asserting the claim or the cause of action must contain
only the ultimate facts. It refers to the essential facts of the claim.
- Evidentiary matters are to be presented during the trial of the case,
not in the pleadings of the parties.
- As to construction of pleadings, all pleadings shall be liberally
construed so as to do substantial justice. A party is strictly bound by
the allegations, statements, or admissions made in his pleadings and
cannot be permitted to take a contradictory position.
 In case there are ambiguities in the pleadings, the same must be
construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in.
A. Pleadings allowed under the Rules on Summary Procedure are: 1)
complaint; 2) compulsory counterclaim pleaded in the answer; 3)
cross-claim pleaded in the answer; and 4) answers thereto.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
B. Pleadings allowed in the Rule of Procedure for Small Claims Cases
are expressed in specific forms described therein: 1) for the
complainant, accomplished and verified Statement of Claim, and 2)
for the defendant, accomplished and verified Response.
- No other formal pleading is necessary to initiate a small claims
action
C. Prohibited Pleadings allowed in a Petition for a Writ of Amparo or
Habeas Data are the following: 1) counterclaim; 2) cross-claim; 3)
third-party complaint; 4) reply; and 5) intervention.
D. Prohibited Pleadings in the Rules for Environmental Cases are the
following: 1) reply, 2) rejoinder and 3) third-party complaint.
 Prayer. The complaint must contain a statement of the relief sought
form the court and to which he believes he is entitled.
- a court can grant relief warranted by the allegations and the proof
even if it is not specifically sought by the injured party; the
inclusion of a general prayer may justify the grant of a remedy
different from or together with the specific remedy sought, if the
facts alleged in the complaint and the evidence introduced so
warrant.
- it is the material allegations in the complaint, not the legal
conclusion made therein or the prayer, that determines the relief to
which the plaintiff is entitled.
- an unsigned pleading produces no legal effect.
 Significance of the signature of the counsel. His signature constitutes a
certificate by him that 1) he has read the pleading, 2) that to the best
of his knowledge, information and belief, there is good ground to
support it; and, 3) that it is not intended for delay.
- The lawyer cannot delegate it to any person who is unqualified to
perform it and to which it can only be performed by a member of
the Bar in good standing.
- A counsel shall be subject to disciplinary action in the following
cases: 1) when he deliberately files an unsigned pleading; 2)
when he signs a pleading in violation of the Rules; 3) when he
alleges in the pleading scandalous or indecent matter; or 4) when
he fails to promptly report to the court change of his address.
 Verification. As a general rule, pleadings need not be under oath,
verified or accompanied by affidavit, except when so required by law
or rule.
- a pleading is verified by an affidavit that 1) the affiant has read
pleading, and 2) the allegations therein are true and correct of his
personal knowledge or based on authentic records.
- the verification requirement is significant, as it is intended to
secure an assurance that the allegations in a pleading are true and
correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith.
- a pleading required to be verified but lacks the proper verification
shall be treated as an unsigned pleading. Hence, it produces no
legal effect. The lack of a proper verification is cause to treat the
pleading as unsigned and dismissible.
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 Non-compliance with the verification requirement does not
necessarily render the pleading defective. It is only formal and
not jurisdictional requirement. It can be corrected by requiring
an oath by the order of the court on the basis that rules of
procedure are established to secure substantial justice and that
technical requirements may be dispensed with in meritorious
cases.
 All practicing members of the bar are required to indicate in all
pleadings filed before the courts or quasi-judicial bodies, their 1) Roll
of Attorneys Number, 2) current Professional Tax Receipt (PTR), 3)
IBP Official Receipt Number and 4) the number and the date of issue
of their MCLE Certificate of Compliance or Certificate of Exemption.
- Failure to disclose the required information would cause the
dismissal of the case and the expunction of the pleadings from the
records.
- The requirement was meant to protect the public by making it
easier to detect impostors who represent themselves as members of
the bar.
 Certification of non-forum shopping / against forum shopping. It is
the plaintiff or principal party who executes the certification under oath
and not the lawyer.
- The certification is mandatory but not jurisdictional since
jurisdiction over the subject matter of the action is conferred by law.
- The rationale against forum shopping is that a party should not be
allowed to pursue simultaneous remedies in two different for a.
Filing multiple petitions or complaints constitutes abuse of court
processes, which tends to degrade the administration of justice
and adds congestion of the heavily burdened dockets of the courts.
- The SC has the power to suspend the Rules by disregarding the
absence of the certification against forum shopping in the interest of
substantial justice.
- a certification signed by counsel is defective certification and a valid
cause for dismissal. As an exception, the party-pleader may execute
a SPA designating his counsel of record to sign on his behalf if for
reasonable or justifiable reasons.
- If there are several plaintiffs or petitioners, the required verification
must be signed by all of them; otherwise, those who did not sign will
be dropped as parties to the case. However, as an exception, when
the plaintiffs or petitioners share a common interest and invoke a
common cause of action or defense, the signature of only one of
them, substantially complies with the rule.
 The exception to the rule does not apply if dishonesty attended the
signing of the certification.
- With respect to a corporation, the certification must be executed by
an officer or member of the BODs or by one who is duly authorized
by a resolution of the BODs; otherwise, the complaint will have to
be dismissed.
 a juridical entity can only perform physical acts through properly
delegated individuals. As long as he is 1) duly authorized by the
corporation and 2) has personal knowledge of the facts required
to be disclosed in the certification against forum shopping, the
certification may be signed by the authorized lawyer.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 The SC ruled that the following corporate officers are allowed to
execute the required verification without the benefit of a board
resolution: 1) the Chairperson of the BODs, 2) the general
manager or acting GM; 3) a personnel officer; 4) an employment
specialist in a labor case; and 5) the President of the Corporation.
- The lack of certification of certification against forum shopping is
generally not curable by the submission thereof after the filing of
the petition, except in certain exceptional circumstances if there were
special circumstances or compelling reasons that justified the
relaxation of the rule requiring verification and certification on non-
forum shopping.
 the violation of the anti-forum shopping rule shall not be
curable by mere amendment but shall be a cause for the
dismissal of the case without prejudice. The rule requires that the
dismissal be upon motion and after hearing.
 The rule can be relaxed on the ground of substantial compliance
or there is the presence of special circumstances or compelling
reasons.
- If the acts of the party or his counsel clearly constitute willful and
deliberate forum shopping, the same shall be a ground for
summary dismissal. Here, no MTD and hearing are required. The
dismissal in this case is with prejudice and shall constitute direct
contempt, as well for administrative sanctions.
 Instances when a claim is subject to a condition precedent and non-
- The submission of a false certification shall constitute indirect
contempt of court without prejudice to the corresponding
administrative and criminal sanctions.
- Prohibition against forum shopping is different from a violation of
the certification requirement under Sec. 5, Rule 7.
1. Prohibition against forum shopping is filing of multiple suits
involving the same parties, same rights asserted, and reliefs
prayed for. It is a ground for summary dismissal and direct
contempt, if willfully and deliberately done.
2. The violation of the certification requirement is the failure to
attach the sworn certification to the initiatory pleading and
constitutes a cause for dismissal without prejudice.
 Service of pleadings, judgments and other papers in civil cases upon
- There is FORUM SHOPPING in the following manner:
1. When a party repetitively avails of several judicial remedies in
different courts, simultaneously or successively, all substantially
founded on the same transaction and the same essential facts and
circumstances, all raising substantially the same issues either
pending in or already resolved adversely by some other court.
2. When, as a result of an adverse opinion in one forum, a party
seeks a favorable opinion, other than by appeal or certiorari in
another.
3. Forum shopping consists of filing of multiple suits involving
the 1) same parties for the same cause or action, either
simultaneously or successively, 2) for the purpose of obtaining a
favorable judgment.
- Three (3) ways of committing forum shopping:
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1. Filing multiple cases based on the 1) same cause of action and
2) with the same prayer, the previous case not have resolved yet
(litis pendntia);
2. Filing multiple cases baes on the same cause of action and with
the same prayer, the previous case having been finally resolved
(res judicata); and
3. Filing multiple cases baes on the same cause of action, but with
the different prayer (splitting of causes of action) (res judicata
or litis pendentia).
- Litis pendentia requires the concurrence of the following requisites:
1. Identity of parties, or at least such parties as those representing
the same interests in both actions;
2. Identity of rights asserted and reliefs prayed for, the reliefs
being founded on the same facts; and
3. Identity with respect to the two preceding particulars in the
two cases, such that any judgment that may be rendered in the
pending case, regardless of which party is successful would
amount to res judicata in the other case.
 where the reliefs sought in the two actions are different, there
is no forum shopping even if the parties in the actions are the
same.
compliance thereof is an independent ground for dismissal, the
compliance of the same must be alleged in the pleading: (BATEE)
1. A tender of payment is required before making a consignation.
2. Exhaustion of administrative remedies is required in certain
cases before resorting to judicial action.
3. Prior resort to barangay conciliation proceedings is necessary in
certain cases.
4. 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 is made, the cause must be dismissed.
5. Arbitration may be a condition precedent when the contract
between the parties provides for arbitration first before recourse to
judicial remedies.
the parties’ counsels of record is tantamount to service upon the parties
themselves, but service upon the parties themselves is not considered
service upon their lawyers.
- As a rule, notice to the client and not to his counsel of record is not
notice in law unless for instance when the court or tribunal orders
service upon the party or when the technical defect in the manner of
notice is waived.
- The filing of pleading or paper shall be proved by its existence in the
1) record of the case or 2) written or stamped acknowledgment of
its filing by the clerk or court on a copy of the same.
- Personal service is made by: 1) delivering a copy of the papers
personally to the party or his counsel, or 2) by leaving the papers in
his office with his clerk or a person having charge thereof. If no
person is found in the office, or his has no office, then by leaving a
copy of the papers at the party’s or counsel’s residence, if known,
with a person of 1) sufficient age and 2) discretion residing therein
between eight in the morning and six in the evening.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- The preferred service by mail is by registered mail. Service by
ordinary mail may be done only if no registry service is available in
the locality of either the sender or the addressee.
 Service by registered mail shall be done by depositing the copy
in the post office and addressed to the party or his counsel at his
office, if known or otherwise at his residence, if known, and with
instructions to the postmaster to return the mail to the sender after
10 days if not delivered.
 In civil cases, service made through registered mail is proved by
the registry receipt issued by the mailing office and an affidavit
of the person mailing of facts showing compliance with Sec. 13,
Rule 13.
- Substituted service is availed only when there is failure to effect
service personally or by mail. This failure occurs when the office and
residence of the party or counsel are unknown.
 It is effected by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by mail.
 Significance of filing of the complaint: (CIJ) 1) it signifies the
commencement of the civil action; 2) the court acquires jurisdiction
over the person of the plaintiff; and it has the effect of interrupting the
prescription of actions pursuant to Art. 1155, NCC.
- The payment of docket fees vests a trial court with jurisdiction over
the subject matter or nature of the action.
- The payment of the required docket fees is mandatory and
jurisdictional requirement, even its nonpayment at the time of filing
does not automatically cause the dismissal of the case, as long as the
fee is 1) paid within the applicable prescriptive or reglementary
period and 2) if there is no intent to defraud the government by the
failure to pay the correct amount of filing fees.
 The payment of docket fee within the prescribed period is
mandatory for the perfection of an appeal. Without such
payment, the appellate court does not acquire jurisdiction over the
subject matter of the action and the decision sought to be appealed
from becomes final and executory. However, delay in the payment
of the docket fees upon the court a discretionary, not mandatory,
power to dismiss an appeal.
- The non-specification of the amount of damages being prayed for
both in the body of the pleading and prayer therein shall not be
accepted or shall be expunged from the record.
 Answer contains the defenses of the answering party. These defenses
may either be negative or affirmative.
- An answer is negative when the material averments alleged in the
pleading of the claimant are specifically denied.
 Negative pregnant refers to a denial which implies its affirmative
opposite by seeming to deny only a qualification or an incidental
aspect of the allegation but not the main allegation itself.
 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 the matter
which he relied upon to support the denial.
16
 In a pleading, a negative pregnant is a negative implying also an
affirmative and which, although stated in a negative form, really
admits the allegations to which it relates. It is conceded to be
actually an admission.
 a denial in the form of a negative pregnant is an ambiguous
pleading, since it cannot be ascertained whether it is the fact or
only the qualification that is intended to be denied.
- if the allegations are deemed admitted, there is no more triable issues
between the parties and if the admissions appear in the answer of the
defendant, the plaintiff may file a motion for judgment on the
pleadings pursuant to Rule 34.
- A party who desires to contradict his own judicial admission may
do so only either of two ways: 1) by showing that the admission was
made through palpable mistake or 2) that no such admission was
made.
 Actionable document. When the action or defense is founded upon a
written instrument, the person who has no intent of admitting the
genuineness and due execution (GADE) of the document, must
contest the same by 1) specifically denying the genuineness and due
execution of the document under oath; and 2) setting forth what she
claims to be the facts. However, the requirement of a specific denial
under oath will not apply in either of the following cases:
1. When the adverse party does not appear to be a party to the
instrument, or
2. When compliance with an order for inspection of the original is
refused.
- By the Admission of GADE of an instrument is meant that the party
whose signature it bears admits he signed it or that it was signed by
another for him with his authority.
- The following defenses, among others, may be interposed despite the
implied admission of the GADE of the document: 1) payment or
non-payment; 2) want of consideration; 3) illegality of consideration;
4) usury and 5) fraud.
- In certain cases, the specific denial must be made under oath and, in
these instances, a mere specific denial is not enough to produce the
kind of denial required by the rules: 1) a denial of an actionable
document; and, 2) a denial of allegations of usury in a complaint to
recover usurious interest.
- it was ruled that the failure to deny the genuineness and due
execution of an actionable document does not preclude a party from
arguing against it by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want of consideration.
- The following are not deemed admitted by the failure to make a
specific denial in a party’s responsive pleading:
1. Amount of unliquidated damages;
2. Conclusions in a pleading because only ultimate facts need be
alleged in a pleading;
3. Non-material averments or allegations because only material
allegations have to be denied.
 Default is a procedural concept that occurs when the defending party
fails to file his answers within the reglementary period.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

- A declaration or order of default is issued as a punishment for

unnecessary delay in joining issues.  Remedies of a defending party declared in default:

1. Remedy after notice of order and before judgment – a party

- The terms, non-suited or as in default, are no longer appear in the
declared in default may, at any time after notice thereof and
Rules on default.
before judgment, file a motion under oath to set aside the
order of default and properly show that 1) the failure to answer
- The following are the requisites before a party may be declared in
was due to fraud, accident, mistake or excusable negligence
default: (JAF PNH)
(FAMEN); and 2) he has a meritorious defense, there must be
an affidavit of merit.
1. The court has validly acquired jurisdiction over the person of
the defending party, either by service of summons or voluntary
 Motion to lift a default order requires no hearing, it need be
appearance
under oath only and accompanied by an affidavit of merits
2. The defending party must have failed to file his answer within
showing a meritorious defense.
the time allowed therefor;
3. The claiming party must file a motion to declare the defending
2. Remedy after judgment and before judgment becomes final and
party in default;
executory – if the judgment has already been rendered when the
4. The claiming party must prove that the defending party has
defendant discovered the default, but before the same has
failed to answer within the period provided by the ROC;
become final and executory, he may file a motion for new trial
5. The defending party must be notified of the motion to declare
under Rule 37. He may also appeal from the judgment being
him in default; and
contrary to the evidence or the law.
 The purpose of notice of a motion is to avoid surprises on the
3. Remedy after the judgment becomes final and executory – the
opposite party and to give him time to study and meet the
defendant may file a petition for relief from judgment under
arguments.
Rule 38.
6. There must be hearing set on the motion to declare the
defending party in default.
4. Petition for Certiorari when the defendant was improperly
declared in default or prematurely declared in default.
 The court has no authority to motu propio declare the
defending party in default. A motion to declare the defending
The following cases where the declaration of default is not applicable:
party must be filed by the claiming party before a declaration
of default is made by the court.
- Under the Rule of Procedure for Small Claims Cases, when the
defendant 1) failed to file his Response within the required period,
 It was held that the defendant who files his answer in time, but
and 2) likewise fail to appear at the date set for hearing, the court
failed to serve a copy thereof upon the adverse party, may be
shall render judgment on the same day, as may be warranted by the
validly declared in default.
facts.
 The rule is that defendant’s answer should be admitted where
- Under the 1991 Revised Rules on Summary Procedure, when the
it is filed before a declaration of default and no prejudice is
defendant fails to file an answer within the reglementary period of
caused to the plaintiff.
10 days from service of summons, the court motu propio or on the
motion of the plaintiff, shall render judgment as may be warranted by
- A judgment in default may be rendered in the following cases
the facts alleged in the complaint and limited to what is prayed for.
despite an answer having been filed:
- Under the Rule of Procedure for Environmental Cases, when the
1. If a disobedient party refuses to obey an order him to comply
defendant failed to answer within the period provided, the court
with the various modes of discovery.
shall declare the defendant in default and, upon motion of the
2. If a party or officer or managing agent of a party 1) willfully
plaintiff, shall receive evidence ex parte and render judgment based
fails to appear before the officer who is to take his deposition,
thereon and the reliefs prayed for.
or a party 2) fails to serve answers to interrogatories.
 It is the court which shall, on its own motion, declare the defendant
- The following are the effects of declaration / order of default:
in default. No motion is required of the plaintiff.
1. the party declared in default loses his standing in court. The loss
- Under the Rule on the Writ of Amparo, upon service of the writ of
of such standing prevents him from taking part of the trial.
amparo, the respondent is required to file a verified written return
2. He is entitled to notices of subsequent proceedings. It is
which, among others, contains his lawful defenses. In case the
submitted that he may participate in the trial, not as a party but
respondent fails to file a return, the court shall proceed to hear the
as a witness.
petition ex parte.
3. A declaration of default is not tantamount to an admission of
truth or the validity of the plaintiff’s claims.
- Under the Rule on the Writ of Habeas Data, if the respondent fails
to file his return which contains his lawful defenses, the court shall
 When a defendant is declared in default, the court may do either of
proceed to hear the petition ex parte, granting the petitioner such
two things:
relief as the petition may warrant, unless the court, in its discretion,
requires the petitioner to submit evidence.
1. Proceed to render judgment granting the claimant such relief
as his pleading may warrant; or
2. Require the claimant to submit evidence ex parte.

17
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 Counterclaim is any claim which a defending party may have against
an opposing party. It is in itself a distinct and independent cause of
action and when filed, there are two simultaneous action between the
same parties.
- a MTD with a Counterclaim is not an accepted way of pleading a
counterclaim. It is sanctioned neither by the Rules nor common
usage.
 The filing of a MTD the complaint is an implied waiver of the
compulsory counterclaim because the grant of the motion
ultimately results in the dismissal of the counterclaim.
- A Compulsory counterclaim is one that 1) arises out (or is
necessarily connected with) the transaction or occurrence that is the
subject matter of the opposing party’s claim; 2) falls within the
jurisdiction of the court; and, 3) does not require for its adjudication
the presence of third parties over whom the court cannot acquire
jurisdiction.
 The rule requires that the counterclaim must be within the
jurisdiction of the court both as to the amount and the nature
thereof.
 The rule will differ, however, when the original action is filed
with the RTC, the counterclaim may be deemed compulsory
regardless of the amount. **
 It is auxiliary to the proceeding in the original suit and derives its
jurisdictional support therefrom.
- A Permissive counterclaim is one if any of the elements of a
compulsory counterclaim is absent. It is an absence of a logical
connection with the subject matter of the complaint.
 It is permissive if it does not arise out of nor is necessarily
connected with subject matter of the opposing party’s claim. It is
not barred even if not set up.
- The following are the most significant distinctions between a
compulsory and permissive counterclaims:
1. As to the content. A compulsory counterclaim shall be
contained in the answer, because a compulsory counterclaim
not set up shall be barred. A permissive counterclaim is not
subject to the above rule as it may be set up as an independent
action and will not be barred if not contained in the answer to
the complaint.
2. As to classification of the pleading. A compulsory counterclaim
is not an initiatory pleading. A permissive counterclaim is
considered an initiatory pleading.
3. As to the requirement of certificate against forum shopping.
A permissive counterclaim should be accompanied by a
certification against non-forum shopping. A compulsory
counterclaim does not require the said certificate.
4. As to the response. A permissive counterclaim must be
answered by the party against whom it is interposed; otherwise,
he may be declared n default as to the counterclaim. Failure to
answer a compulsory counterclaim is not a cause for default
declaration.
5. As to the payment of docket fees. The docket and other lawful
fees should be paid for a permissive counterclaim, otherwise the
court does not acquire jurisdiction over his permissive
counterclaim. Docket fees are not paid for compulsory
counterclaim.
18
 Cross-claim is 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 a counterclaim therein. It must be set up in the action
because if not set up, it shall be barred and likewise it cannot be set up
for the first time on appeal.
- The following are the distinctions between counterclaim and cross-
claim:
1. As to the party to be impleaded. A cross-claim is a claim against
a co-party; a counterclaim is a claim against an opposing party;
and,
2. A cross-claim must arise from the transaction or occurrence that
is the subject matter of the original complaint or counterclaim. A
counterclaim may or may not arise out of the subject matter of
the complaint.
 Leave of court is not required in filing a counterclaim or a cross-
claim because the parties involved are already parties to the action.
However, a third-party complaint requires leave of court and its
admission is subject to judicial discretion.
 Intervention is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein enable him,
her or it to protect or preserve a right or interest which may be affected
by such proceedings.
- Intervention shall be allowed when a person has legal interest 1) in
the subject matter; 2) in the success of any parties; 3) against both
parties; or 4) when he is so situated as to be adversely affected by a
distribution or disposition of property in the custody of the court or
an officer thereof.
- Intervention is never an independent proceeding but ancillary and
supplemental to an existing litigation and in subordination to the
main proceeding.
- The legal interest must be of direct and immediate character so
that the intervenor will either gain or lose by the direct legal
operation of the judgment.
- The following requisites must be complied with before a non-party
may intervene in a pending action:
1. The motion for intervention must be filed before the rendition of
judgment by the trial court. A motion is necessary because leave
of court is required before a person may be allowed to intervene.
2. The movant must show legal interest (see above) and that he 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.
3. The intervention must not unduly delay or prejudice the
adjudication of the rights of the original parties.
4. The intervenor’s right may not be fully protected in a separate
proceeding.
 Reply is a pleading, the 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 matters. It is a
responsive pleading to an answer.
- The filing of a reply to the answer is not mandatory and will not have
an adverse effect on the plaintiff. No admission follows from the
failure to file a reply.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- The material allegation in the complaint must be specifically denied
but the allegations of new matters or material allegations in the
answer need not be denied because they are deemed denied by the
Rules for the plaintiff.
 When the defense in the answer is based upon a written instrument
or document, said document is considered an actionable
document. Hence, the plaintiff has to file a reply under oath if he
desires to deny specifically the genuineness and due execution of
the actionable document, and avoid an admission of such matters.
 Amendment of Pleadings
- Amendment as a matter of right – the plaintiff has the right to
amend his complaint once at any time before a responsive pleading
is served by the other party or in case of a reply to which there is no
responsive pleading, at any time within ten (10) days after it is
served. It can be exercised only once.
 Before the service of a responsive pleading, a party has the
absolute right to amend his pleading, regardless of whether a new
cause of action or change in theory is introduced.
 A MTD is not a responsive pleading, a plaintiff may file an
amended complaint even after the original complaint was ordered
dismissed, provided the order of dismissal is not yet final.
 The plaintiff may file an amended complaint even after the original
complaint was ordered dismissed, provided that the order of
dismissal is not yet final.
 Jurisprudence recognizes the right of a pleader to amend his
complaint before a responsive pleading is served even if its effect
is to correct a jurisdictional defect.
- Amendment by leave of court – leave of court is required for an
amendment made after service of a responsive pleading.
 The plaintiff cannot, after defendant’s answer, amend his
complaint by changing his cause of action or adding a new one
without leave of court.
 An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served. It
requires leave of court, a matter which requires the exercise of
sound judicial discretion.
 A complaint cannot be amended after a responsive pleading has
been served in order to confer jurisdiction on the court in which it
was filed, if the cause of action originally set forth was not within
the court’s jurisdiction.
 Admission made in the original pleadings cease to be judicial
admission, they are to be considered as extrajudicial admissions.
 Supplemental pleading is one which sets forth transactions,
occurrences, or events which have happened since the date of the
pleading sought to be implemented. (TOE). Its filing requires leave of
court.
- It only serves to bolster or add something to the primary pleading.
- When the cause of action in the supplemental pleading is different
from the cause of action mentioned in the original complaint, the
court should not admit the supplemental complaint.
19
- The filing of an answer to the supplemental pleading is not
mandatory because of the use of the word “may.”
Motion is an application for relief other than by a pleading.
 Forms of motion. All motions must be in writing, except those 1)
motions made in open court, and 2) motions made in the course of a
hearing or trial.
 Litigated and Ex parte motions. As a rule, every written motion shall
be set for hearing by the applicant (litigated motion), except for
motions which the court may act upon without prejudicing the rights of
the adverse party (ex parte motion).
- A litigated motion unaccompanied by a notice of hearing is
considered a mere scrap of paper that does not toll the running of the
period to appeal.
- Non-compliance of Secs. 4 and 5, Rule 15 can be considered as pro
forma and does not affect the reglementary period for the appeal or
the filing of the requisite pleading. It is treated merely to delay the
proceedings.
- Service of a copy of a motion containing a notice of the time and
place of hearing of that motion is mandatory requirement, and the
failure of movants to comply with these requirements renders their
motions fatally defective.
 Omnibus Motion Rule is a procedural principle which requires that
every motion that attacks a pleading, judgment, order or proceeding
shall all grounds then available, and all objections not so included shall
be deemed waived. However, it does not include the following: 1) that
the court has no jurisdiction over the subject matter; 2) that there is
another action pending between the same parties for the same cause or
litis pendentia; 3) that the action is barred by a prior judgment or res
judicata; and 4) that the action is barred by statute of limitations or
prescription.
- If no MTD has been filed, any of the grounds for dismissal provided
in the Rules may be pleaded as an affirmative defense in the answer,
and, in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed.
- A MTD that is filed after the answer has been filed, is considered
filed out of time and the defending party is estopped from filing the
motion to dismiss, except the following: 1) lack of jurisdiction over
the subject matter; 2) litis pendentia; 3) res judicata; or 4) barred by
statute of limitations.
- An order granting a MTD shall bar the refiling of the same action or
claim if the dismissal is based on any of the following grounds:
1. The cause of action is barred by a prior judgment;
2. The cause of action is barred by the statute of limitations;
3. The claim or demand has been paid, waived, abandoned or
otherwise extinguished
4. The claim, on which the action is founded, is unenforceable
under the provisions of the statute of frauds.
 Where the defendant is barred from refiling the action, the remedy
is to file an appeal, because the dismissal is subject to the right of
appeal.
 Remedies of the plaintiff if the MTD is granted, the plaintiff may 1)
REFILE; 2) APPEAL or 3) PETITION FOR CERTIORARI.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

Motion for Bill of Particulars is proper when the defendant is required 3. The failure of the plaintiff to comply with the Rules of Court; or
to answer the complaint within 15 days from service of summons and the 4. The failure of the plaintiff to comply with any order of the court.
matters in the complaint are vague or ambiguous or not averred with
sufficient definiteness. - The dismissal due to the fault of the plaintiff may be done by the
court on its own motion (motu propio) or upon a motion filed by the
- It applies to any pleading which contains matters which are not alleged defendant.
with sufficient definiteness or particularity. The filing of MBP
interrupts or stays the period to file the responsive pleading.
 Effect of dismissal on the counterclaim – the dismissal of the complaint
under Sec. 3, Rule 17, due to the fault of the plaintiff, is without
- Its function is to clarify the allegations in the pleading so an adverse
prejudice to the right of the defendant to prosecute his counterclaim in
party may be informed with certainty of the exact character of the
the same action or separate action.
cause of action or defense and to allow the movant to properly prepare
his own pleading.
Summons is the writ by which the defendant is notified of the action
brought against him. It is a direction that the defendant answers the
- The court has three possible options, namely: 1) to deny the motion
complaint within the period fixed by the Rules and that, unless he so
outright; 2) to grant the motion outright, or 3) to hold a hearing on the
answers, plaintiff will take judgment by default and may be granted the
motion or allow the parties the opportunity to be heard.
relief applied for.
- If the order is not obeyed or if there is an insufficient compliance of
 The issuance of summons is a mandatory requirement directing the
the order, the court has the following options: 1) to order the striking
clerk of court to issue the corresponding summons to the defendant
out of the pleading; 2) to order the striking out of the portions of the
upon 1) filing of the complaint and 2) the payment of the requisite
pleading to which the order was directed, or 3) to make such other
legal fees.
order it may deem just.

Dismissal by mere notice of dismissal  The purpose of summons in actions in personam is 1) to satisfy the
requirement of due process by giving notice to the defendant of the
action filed against him, and 2) to acquire jurisdiction over the person
 Before the service of an answer or a motion for summary judgment,
of the defendant.
a complaint may be dismissed by the plaintiff by filing a notice of
dismissal and upon receipt of the said notice by the court, the cout shall
- Jurisdiction over the person of the defendant is acquired 1) through
issue an order confirming the dismissal.
coercive process, generally by the service of summons issued by the
court, or 2) through the defendant’s voluntary appearance or
- The filing of notice of dismissal before a responsive pleading or
submission.
motion is filed by the defendant, is a matter of right. It is submitted
that the dismissal should occur as of the date the notice is filed by the
plaintiff and, not as of the date the court issues the order confirming  The purpose of summons in actions in rem and quasi in rem is the
the dismissal. acquisition by the court of jurisdiction over the res which principally
matters. The court is not concerned with the acquisition of jurisdiction
- It is a dismissal without prejudice, thus the complaint can be refiled. over the person of the defendant.
However, the dismissal will be one with prejudice in any of the
following situations: 1) the notice of dismissal by the plaintiff  Service in person on defendant is made whenever practicable by
provides that the dismissal is with prejudice; or 2) the plaintiff has handing a copy thereof to the defendant in person, or if he refuses to
previously dismissed the same case in a i) court of competent receive and sign for it, by tendering it to him.
jurisdiction ii) based on or including the same transaction.
- Tender of summons is not a separate mode of service. It is part of
 The two-dismissal rule applies when the plaintiff has a) twice service in person and applies when the defendant refuses to receive
dismissed actions; b) based on or including the same action; c) in a and sign for the summons.
court of competent jurisdiction.
- If the summons cannot be served personally within a reasonable
- The second notice of dismissal will bar the refiling of the action period of time, service may be resorted to by substituted service.
because it will operate as an adjudication of the claim upon the
merits.  The rule that the impossibility of prompt personal service should
be shown by stating in the proof of service that efforts were made
to find the defendant personally and that said efforts failed; hence,
 Once either an answer or a motion for summary judgment has been
the resort to substituted service.
served on the plaintiff, the dismissal is no longer a matter of right and
will require the filing of a motion to dismiss, not a mere notice of
 Substituted service is made by leaving copies of summons 1) at the
dismissal. Here, the dismissal is no longer a matter of right, but a
defendant’s residence with a person of suitable age and
matter of judicial discretion.
discretion residing therein; or 2) at the defendant’s office or
regular place of business with a competent person in charge of
 Dismissal due to the fault of plaintiff, the dismissal is with prejudice:
the office or regular place of business.
(PACC) **
- In a suit in personam against a resident of the Philippines
1. The failure of the plaintiff, without justifiable reasons, to appear
temporarily absent from the country, the defendant may be served
on the date of the presentation of his evidence in chief.
by substituted service because a man temporarily out of the country
2. The failure of the plaintiff to prosecute his action for an
unreasonable length of time;

20
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
leaves a definite place of residence or dwelling where he is bound to
return.
- Service of summons upon a resident of the Philippines who
temporarily absent of the country, may, by leave of court, be
effected out of the Philippines as under the rules on extraterritorial
service, in any of the following modes:
1. By personal service;
2. By substituted service;
3. By publication in a newspaper of general circulation together
with a registered mailing of a copy of the summons and the
order of the court to the last known address of the defendant; or,
4. By any manner the court may deem sufficient.
 Extraterritorial service applies when the following requisites: 1) the
defendant is a nonresident and he is not found in the Philippines; and
the action against him is either in rem or quasi in rem.
- Service may be effected by 1) personal service out of the country,
with leave of court; 2) publication, with leave of court; or 3) any
other manner the court may deem sufficient.
- The personal service is made in compliance with the requirements of
due process and not for the purpose of acquiring jurisdiction over
the person of the defendant.
- If the action is in personam, extraterritorial service of summon will
not be available. There is no extraterritorial service of summons in an
action in personam.
 Service upon an entity without juridical personality may be effected
upon all the defendants by serving summons upon 1) any one of them
or 2) upon the person in charge of the office or of the place of business
maintained in such name.
- The service shall not individually any person whose connection with
the entity, upon due notice, had been severed before the action was
brought.
 Service upon a private domestic juridical entity may made upon the
following persons: 1) President, 2) Managing Partner, 3) General
Manager, 4) Corporate Secretary, 5) Treasurer or 6) In-house counsel.
- The above enumeration has been held to be limited to the persons
enumerated and summons cannot be served upon any other person.
- A strict compliance with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer upon whom
the service is made must be one who is named in the statute;
otherwise the service is insufficient.
 The liberal construction rule cannot be invoked and utilized as a
substitute for the plain legal requirements as to the manner in
which summons should be served on a domestic corporation.
 Service upon a foreign private juridical entity which has transacted
business in the Philippines may be made on 1) its resident agent
designated in accordance with law for that purpose, or if there be no
such agent, 2) on the government official designated by law to that
effect, 3) on any of the officers or agents of said foreign entity within
the Philippines.
 Service upon a foreign private juridical entity which is not
registered in the Philippines or has no resident agent may be effected
21
out of the Philippines, with leave of court, through any of the
following means:
1. By personal service coursed through the appropriate court in the
foreign country with the assistance of the DFA;
2. By publication 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 last
known address of the defendant;
3. By facsimile or any recognized electronic means that could
generate proof of service; or
4. By such other means as the court may in its discretion direct.
 When a foreign corporation has designated a person to receive
summons on its behalf pursuant to the Corporation Code, that
designation is exclusive and service of summons on any other
persons is inefficacious.
 Service by publication is available only in actions in rem or quasi in
rem. It is not a means of acquiring jurisdiction over the person of the
defendant in an action in personam.
- Summon by publication against a resident in an action in personam
is permissible under the conditions set forth in the following rules:
1. Where the identity or whereabouts of the defendants are
unknown.
2. Where the defendant is a resident temporarily out of the
Philippines.
 Summons when complaint is amended. When a pleading is amended,
the original one is deemed abandoned. Hence, the amended pleading
replaces the original one which no longer forms part of the record and
the trial of the case is made on the basis of the amended pleading only.
- Where the defendant has already appeared before the trial court by
virtue of a summons on the original complaint, the amended
complaint may be served upon them without need for another
summons, even if new causes of actions are alleged.
- When the defendant has not yet appeared in court and no summons
has been validly served, new summons on the amended complaint
must be served on them.
Pre-trial is a procedural device held prior to the trial for the court to
consider the following purposes under Sec. 2, Rule 18, ROC. It is
mandatory in civil cases and also in civil and criminal cases under the
Rules on Summary Procedure.
- It is primarily intended to insure that the parties properly raise all
issues necessary to dispose of a case. The parties must disclose
during pre-trial all issues they intend to raise during the trial, except
those involving privileged communication or impeaching matters.
- The judge is mandated to refer the parties and/or their counsels to the
mediation unit of the Philippine Mediation Center for purposes of
mediation. If mediation fails, the judge will schedule the continuance
of the preliminary conference.
 Failure of the plaintiff to appear in the mediation merits sanction
on the part of the absent party.
- For purposes of pre-trial, the expiration of the period for filing the
last pleading, without it having been served and filed, is sufficient to
set for pre-trial. If the plaintiff fails to file said motion within the
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
given period, the branch clerk of court shall issue a notice of pre-
trial.
- Notice of pre-trial shall be served on the counsel of the party, if the
latter is represented by counsel. Otherwise, the notice shall be served
on the party himself.
- It is vital to have the documents and exhibits identified and marked
during the pre-trial. The current rule establishes the policy that no
evidence shall be allowed to presented and offered during the trial in
support of a party’s evidence-in-chief other than that had been earlier
identified and pre-marked during the pre-trial, except if allowed by
the court for good cause shown.
- The pre-trial order shall be issued within 10 days after the
termination of the pre-trial, and it 1) defines and limits the issues to
be tried and 2) controls the subsequent course of the action, except if
it is modified before trial to prevent manifest injustice.
- The distinctions between pre-trial in civil cases and pre-trial in
criminal cases are the following: (WHAAPS)
1. As to who set up for pre-trial. In civil cases, the plaintiff moves
ex parte to set the case for pre-trial; while in criminal cases, the
court orders for pre-trial and no motion to set the case for pre-
trial is required either the prosecution or the defense.
2. As to how pre-trial is set up. In civil case, the motion to set the
case for pre-trial in a civil case is made after the last pleading
has been served and filed. In a criminal case, the pre-trial is
ordered by the court after arraignment and within 30 days from
the date the court acquires jurisdiction over the person of the
accused.
3. As to possibility of an amicable settlement. The pre-trial in a
civil case considers the possibility of an amicable settlement as
an important objective. The pre-trial in criminal case does not
include considering the possibility of an amicable settlement of
criminal liability as one of its purposes.
4. As to the agreement and admissions entered by the litigants. In
civil cases, the agreement and admissions made in the pre-trial
are not required to be signed by both the parties and their
counsel. In criminal cases, all agreements and admissions made
or entered during the pre-trial conference shall be reduced n
writing and signed by both the accused and counsel; otherwise,
they cannot be used against the accused.
5. As to sanctions for non-appearance in pre-trial. In civil case,
sanctions are imposed upon the plaintiff and defendant. In
criminal case, sanctions are imposed upon the counsel for the
accused or the prosecutor.
6. As to the filing of pre-trial brief. In civil case, it is required to
be submitted. In criminal case, it is not specifically required.
 Failure to appear during Pre-trial; Effect:
1. The failure of the plaintiff to appear shall be cause for the
dismissal of the action with prejudice, except when the court
orders otherwise. The same shall have the effect of an adjudication
on the merits, thus, final and the remedy available for the plaintiff
is to appeal from the order of dismissal.
22
2. The failure of the defendant to appear in the pre-trial shall cause to
1) allow the plaintiff to present his evidence ex parte and 2) for
the court to render judgment on the basis of the evidence
presented by the plaintiff. The remedy available to defendant is: 1)
he may move for reconsideration of the order; and, 2) file for a
petition for certiorari if tainted with grave abuse of discretion.
- However, non-appearance of party may be excused only if a valid
cause is shown for such non-appearance or if a representative
shall appear in his behalf fully authorized in writing to enter into
any of the following matters: 1) an amicable settlement; 2)
alternative modes of dispute resolution, and 3) stipulation or
admissions of facts and documents. (ASA)
- The written authority must be in the form of a special power of
attorney.
 One Day Examination of Witness Rule shall be required where the
witness shall be fully examined in one (1) day only, subject to the
court’s discretion during the trial on whether or not to extend the
examination for justifiable reasons.
 Most Important Witness Rule where the court shall determine the
most important witness, limit the number of such witnesses and require
the parties and/or counsels to submit to the branch clerk of court the
names, addresses and contact numbers of the witnesses to be summons
by subpoena.
Modes of Discovery
- Discovery is a device employed by a party to obtain information
about relevant matters on the case from the adverse party in
preparation for the trial.
- Purpose of discovery procedure is to permit mutual knowledge
before trial of all relevant facts gathered by both parties so that either
party may compel the other to disgorge (disclose) facts whatever he
has in his possession.
- it is considered by the SC as vital components of case management
in pre-trial courts.
- A deposition is the taking of the testimony of any person, whether
he be a party or not, but at the instance of a party to the action. This
testimony is taken out of court.
- Two methods for taking deposition: 1) an oral examination, or 2)
by a written interrogatory. And it may be sought for use in 1) a
pending action, 2) a future action or 3) for use in a pending appeal.
- Leave of court is not required after an answer has been served, but it
is required before the service of an answer, but after the jurisdiction
has been acquired over any defendant or over the property subject of
the action.
 When it is a deposition of a prisoner that is to be taken, his
deposition may be taken only with leave of court and upon such
terms as the court may prescribe.
- the deponent may be examined regarding any matter not privileged,
which is relevant to the pending action, whether relating to the claim
or defense of any party.
- the officer before whom the deposition is taken has no authority to
rule on the objections interposed during the course of the deposition
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
although any objections shall be noted by the officer upon the
deposition. Any evidence that is objected to shall still be taken but
subject to the objection.
- The deposition may be used for the following purposes:
1. For contradicting or impeaching the testimony of the deponent
as a witness;
2. For any purpose by the adverse party where the deponent is a
party, at the time of taking the deposition;
3. For any purpose by any party, where the deponent is a witness,
whether or not a party.
- Guidelines for oral deposition is provided for under Sec. 17, Rule
23 must be observed. These are: (ORNT)
1. The officer before whom the deposition is taken shall put the
witness on oath;
2. The testimony of the witness or deponent must be recorded and
be taken stenographically, unless the parties agree otherwise;
3. All objections made at the time of the examination shall be
noted.
4. Evidence objected to shall be taken, but subject to the
objections
- a party desiring to take the deposition of any person upon written
interrogatories shall serve the interrogatories upon every other party
with a notice stating the name and address of the person who is to
answer them, the name and descriptive title and address of the office,
before whom the deposition is to be taken.
 Perpetuation of testimony before action:
1. The perpetuation of a testimony is done by filing a verified
petition in the place of the residence of any expected adverse
party.
2. Notices shall be sent in accordance with the Rules and if the court
is satisfied that the perpetuation of the testimony may prevent a
failure or delay of justice, it shall make the appropriate order for
the taking of the deposition.
3. The deposition taken under this Rule is admissible in evidence in
any action subsequently brought involving the same subject
matter.
 Interrogatories to parties is availed of by a party to the action for the
purpose of eliciting material and relevant facts from any adverse party.
- Within 1 day from receipt of the compliant, the rule mandates not
only the preparation of the summons but also the issuance of an
order requiring the parties to avail of interrogatories to parties under
Rule 25 and request for admission by adverse party under Rule 26.
- Written interrogatories in a deposition are not served upon the
adverse party directly. They are instead delivered to the officer
designated in the notice.
- A party not served with written interrogatories may not be compelled
by the adverse party to give testimony in open court, or give
deposition pending appeal, unless allowed by the court for good
cause shown and to prevent a failure of justice.
 Admission by adverse party – its purpose is to allow ne party to
request the adverse party, in writing, to admit certain material and
relevant matter which, mist likely, will not be disputed during the trial.
23
To avoid unnecessary inconvenience to the parties in going through the
rigors of proof before the trial, a party may request the other to:
1. Admit the genuineness of any material and relevant document
described in and exhibited with the request; or,
2. Admit the truth of any material and relevant matter of fact set
forth in the request.
- if the party to whom the written request for admission is directed
does not file the required sworn statement, each of the matters of
which an admission is requested shall be deemed admitted.
- Admissions made under this mode of discovery, whether express or
implied, are not final and irrevocable. The court may allow the party
making the admission to withdraw or amend the admission upon
such terms as may be just.
 Production or Inspection of Documents or Things
- The purpose of this mode of discovery is to allow a party to seek an
order from the court in which the action is pending to:
1. Order a party to produce and permit the inspection and copying
or photographing of any designated documents, not privileged,
which constitute or contain evidence material to any matter
involved in the action and which are in his possession; and,
2. Order any party to permit entry upon designated land or their
property in his possession or control for the purpose of
inspecting any designated object or operation thereon.
- The grant of a motion for inspection of a document is discretionary
on the part of the trial court judge and it cannot be arbitrarily or
unreasonably denied because to do so would bae access to relevant
evidence that may be used by a party-litigant and, hence, impair his
fundamental right to due process.
- The test to be applied by the trial judge in determining the relevancy
of documents is one of reasonableness and practicality.
 Failure to attend depositions or to serve answers to written
interrogatories, the court may:
1. strike out all or any part of the pleading of that party;
2. dismiss the action or proceeding or any party thereof;
3. enter a judgment by default against that party, and in its
discretion;
4. order him to pay reasonable expenses incurred by the other,
including attorney’s fees.
Trial is the judicial examination and determination of the issues between
the parties to the action.
 Trial is not necessary in the following manner:
1. Where the pleadings of the parties tender no issue at all, a
judgment on the pleadings may be directed by the court.
2. Where from the pleadings, affidavits, depositions and other papers,
there is actually no genuine issue, the court may render a
summary judgment.
3. Where the parties have entered into a compromise or an amicable
settlement either during the pre-trial or while trial is in progress.
4. Where the complaint has been dismissed with prejudice, or when
the dismissal has the effect of an adjudication on the merits.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
5. Where the case falls under the operation of the Rules on Summary
Procedure.
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.
- Issues in the trial – the trial shall be limited to the issued stated in
the pre-trial order.
- The parties may be permitted by the court to adduce evidence on
their original case even after the presentation of their original
evidence, provided 1. there are good reasons, and 2) such reasons
are in furtherance of justice. (GJ)
Consolidation is a procedural device, granted to the court as an aid in
deciding how cases in its docket are to be tried, so that the business of the
court may be dispatched expeditiously while providing justice to the
parties.
- the actions to be consolidated must involve a common question of
law or fact.
- When two or more cases involve the same parties and affect closely
related subject matters, they must be consolidated and jointly tried,
in order to serve the best interests of the parties and to settle
expeditiously the issues involved.
Demurrer to Evidence – a demurrer may be granted if, after the
presentation of plaintiff’s evidence, it appears upon the facts and the law
that the plaintiff has shown no right to relief.
- An order denying a demurrer to the evidence is interlocutory and is,
therefore, not appealable. It can, however, be the subject of a
petition for certiorari in case of grave abuse of discretion or an
oppressive exercise of judicial authority.
 Effect of granting the demurrer to evidence:
1. If the demurrer is granted, the case shall be dismissed. However,
if, on appeal the order granting the motion is reversed, the
defendant loses his right to present evidence.
2. It is not correct for the appellate court reversing the order granting
the demurrer to remand the case to the trial court for further
proceedings. The appellate court should, instead of remanding the
case, render judgment on the basis of the evidence submitted by
the plaintiff.
 Motion to Dismiss under Rule 16 may be distinguished from
Demurrer to Evidence in the following manner: (SG DG)
1. As to stage of filing. A MTD is made before the filing of the
answer; a demurrer to evidence is made after the plaintiff rests his
cases or presentation of his evidence;
2. As to grounds. A MTD have several grounds under Rule 16, but a
demurrer to evidence has only one ground under Rule 33 that upon
the facts and the law, the plaintiff has shown no right of relief.
3. As to the effect when it is denied by the court. If a MTD is denied,
the defendant may file his responsive pleading; while a denial of
demurrer to evidence, the defendant may present his evidence;
4. As to the effect when it is granted by the court. If a MTD is
granted, the complaint may be refiled, depending on the ground for
dismissal; in a demurrer to evidence, the complaint may not be
refiled and the remedy of the plaintiff is to appeal from the order
of dismissal.
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 The distinctions between demurrer in a civil and demurrer in a
criminal case are the following: (LAEI)
1. As to requirement of leave of court. In a civil case, leave of court
is not required before filing a demurrer. In a criminal case, a
demurrer is filed with or without leave of court.
2. As to availability of appeal. In a civil case, if the demurrer is
granted, the order of dismissal is appealable. In a criminal case, the
order of dismissal is not appealable because of the constitutional
policy against double jeopardy.
3. As to the effect of denial of the court. In civil case, if demurrer is
denied, the defendant may proceed to present his evidence. In a
criminal case, the accused may adduce his evidence only if the
demurrer is filed with leave of court. He cannot present evidence if
he filed the demurrer without leave of court.
4. As to initiative of the court. In civil case, the court cannot on its
own make a demurrer. In a criminal case, the court may do so.
Judgment is the final ruling by a court of competent jurisdiction
regarding the rights or other matters submitted to it in an action or
proceeding.
- Decisions must distinctly and clearly set forth the facts and the law
upon which they are based.
- A void judgment has no legal and binding effect, force or efficacy
for any purpose.
- Where the judgment is difficult to execute because of ambiguity in
its terms, it is suggested that the remedy avail of is to have the court,
which rendered the judgment, remove the ambiguity by filing of a
motion for a clarificatory judgment and not to assail the judgment
as void.
- A judgment is deemed rendered when the written and signed
decision of the judge is filed with the clerk or court. It is not the
pronounce of the judgment in open court that constitutes the
rendition.
 It is not necessary that the judge who heard the evidence be the
same judge who shall pen the decision.
 A judge who was permanently transferred to another court of equal
jurisdiction, before the case heard by him was decided, may
validly prepare and sign his decision on the said case and send the
same to the court where he was originally assigned.
 A decision penned by a judge during his incumbency cannot be
validly promulgated after his retirement. When a judge retires, all
his authority to decide any case, to write, sign and promulgate the
decision has also retired with him
- A judgment has two parts, namely, 1) the body of the judgment or
ratio decidendi, and 2) the dispositive portion of the judgment or
fallo.
 The body of the decision is not part of the judgment that is subject
to execution but the fallo because it is the latter which constitutes
the judgment of the court.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 The general rule is that where there is conflict between the
dispositive portion or fallo and the body of the decision, the fallo
controls. However, where the conclusion from the body of the
decision is so clear that there was a mere mistake in the
dispositive portion, the body of the decision will prevail.
 Minute resolution is issued by the SC denying or dismissing a petition
or a motion for reconsideration for lack of merit, it is understood that
the challenged decision or order, together with all its findings of fact
and legal conclusions are deemed sustained.
- It is not a decision falling within the constitutional requirement.
 Requisites for a valid judgment: AJEC WS
1. The court or tribunal must be clothed with authority to hear and
determine the matter before it;
2. The court must have jurisdiction over the parties and the subject
matter;
3. The parties must have been given an opportunity to adduce
evidence in their behalf;
4. The evidence must have been considered by the tribunal in
deciding the case;
5. The judgment must be in writing, personally and directly prepared
by the judge; and,
6. The judgment must state clearly the facts and the law on which it
is based, signed by the judge and filed with clerk of court.
 Memorandum decision is one rendered by an appellate court and
incorporates by reference the findings of fact and conclusions of law
contained in the decision or order under review.
- As long as a memorandum decision states: 1) the nature of the case,
2) summarizes the facts with reference to the record, 3) contains
statement of the applicable laws and jurisprudence, and 4) the
tribunal’s assessment and conclusions of the case, the constitutional
requirement of a valid judgment will not be transgressed.
 The principle of stare decisis et non quieta movere holds that a point
of law, once established by the Court, will generally be followed by the
same court and by all courts of lower rank in subsequent cases
involving a similar legal issue.
- When a court lays down a principle of law applicable to a certain
state of facts, it must adhere to such principle and apply it to all
future cases in which the facts sued upon are substantially the same.
 The principle of stare decisis and res judicata may be extinguished in
the following manner:
1. As to the focal point. Res judicata focuses to judgment, while a
stare decisis focuses to doctrine created.
 Pro hac vice rulings refer to certain cases where the Court suspends
the application of a rule in a particular case.
 Obiter dictum is an opinion expressed by a court, which is not
necessary to the decision of the case before it. It is neither enforceable
as a relief nor a source of a judicially actionable claim.
 Doctrine of immutability of Judgments (Conclusiveness of
judgments or preclusion of issues or collateral estoppel) refers to a
judgment that has attained finality can no longer be disturbed.
Likewise, it holds that issues actually and directly resolved in a former
suit cannot again be raised in any future case between the same parties.
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- It has two-fold purpose: 1) to avoid delay in the administration of
justice, thus, procedurally, to make orderly the discharge of judicial
business; and, 2) to put an end to judicial controversies, at the risk of
occasional errors, which is precisely why courts exist.
- Exceptions to the rule on immutability of judgments:
1. the correction of clerical errors;
2. nunc pro tunc entries which cause no prejudice to any party
and void judgments;
3. whenever circumstances transpire after the finality of the of the
decision rendering its execution unjust and inequitable;
4. in cases of special and exceptional nature as when facts and
circumstances transpire which render the judgment’s execution
impossible or unjust, when necessary in the interest of justice to
direct its modification to harmonize the disposition with
prevailing circumstances
5. in case of void judgments;
6. when there is a strong showing that a grave injustice would
result from the application of the Rules;
7. when there are grounds for annulment of the judgment or a
petition for relief.
- Remedies against a final and executory decision is to file a 1)
petition for relief of judgment, or 2) action for annulment of
judgment.
- Foreign arbitral awards may be enforced under the Alternative
Dispute Resolution Act of 2004.
 Proceedings for recognition and enforcement of an arbitration
agreement or for vacation, setting aside, correction or modification
of an arbitral award, and any application with a court for
arbitration assistance and supervision shall be deemed as special
proceedings and shall be filed with RTC 1) where the arbitration
proceedings are conducted, 2) where the asset to be attached or
levied upon, 3) where any of the parties to the dispute resides or
has his place of business.
- Foreign decision – when a foreign court or tribunal which renders a
judgment that has become final and it has jurisdiction to render such
judgment or final order, the same is conclusive upon the title to the
thing in case of a judgment or final order upon a specific thing.
 Res judicata has two aspects, namely:
1. Bar by a prior judgment – the judgment or final order is bar to
the prosecution of a subsequent action based on the same claim or
cause of action; and,
2. Conclusion of judgment – the judgment or final order precludes
the relitigation of particular issues or facts on different demand or
cause of action.
 Judgment on the merits refer when it amounts to a legal declaration
of the respective rights and duties of the parties, based upon the
disclosed facts. It does not require that a judgment on the merits be
one rendered after a full blown trial.
 Doctrine of law of the case has been defined as the opinion delivered
on a former appeal. It refers to whatever is once irrevocably
established as the controlling legal rule or decision between the same
parties in the case continues to be the law of the case, whether correct
on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts of the case before the court.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 Several judgment is one rendered by a court against or more
defendants, but not against all, leaving the action to proceed against the
others.
- It is proper when the liability of each party is clearly separable and
distinct from that of his co-parties.
 Conditional judgment is one the effectivity of which depends upon
the occurrence or the non-occurrence of an event. It is generally void
because of the absence of disposition.
 Judgment sin perjuicio is understood to be a brief judgment
containing only the dispositive portion, without prejudice to the
making of a more extensive discussion of the findings of fact and law
to support it.
 Judgment Nunc Pro Tunc is one intended to enter into the record acts
which had already been done, but which do not year appear in the
record. It is a judgment which orders the entry of something which was
actually previously done.
- The object of a judgment nunc pro tunc is not the rendering of a new
judgment and the ascertainment and determination of new rights. It is
merely a correction of clerical and not judicial error.
 Judgment upon a compromise is a judgment rendered by the court on
the basis of a compromise agreement entered into between the parties
to the action. It has the effect of res judicata.
- It is perfected by mere 1) consent, 2) manifested by the meeting of
the offer and 3) the acceptance upon the thing and the cause which
constitutes the contract.
- It does not need a judicial approval for perfection. However, there
shall be no execution of the compromise agreement, except in
compliance a judicial compromise.
- To assail a judgment by compromise, there must be a proper motion
to set aside the compromise on the ground that the compromise
agreement was obtained either by fraud; violence, intimidation,
falsity of documents or some other vices of consent.
- When the compromise is not judicial and is a result of the contract
between the parties, the proper remedy is an action to annul the
compromise on the ground of vitiated consent.
 Judgment upon confession (cognotiv actionem) is a judgment
rendered by the court when a party expressly agree to the other party’s
claim or acknowledges the validity of the claim against him.
Judgment on the Pleadings is appropriate when an answer fails to
tender an issue or otherwise admits the material allegations of the
adverse party’s pleading. It does not apply when no answer is filed.
- An answer that fails to tender issue, if it does not comply with the
requirements of a specific denial as set out in Secs. 8 and 10, Rule 8
of the ROC, resulting in the admission of the material allegations of
the adverse party’s pleading.
- An answer fails to tender an issue when the material allegations of
the other party are admitted or not specifically denied by the pleader.
26
- It cannot be rendered by the court motu propio. It can be done only
where there is a prior motion to the effect filed by the appropriate
party.
- Cases where judgment on the pleadings will not apply: (DAL) 1)
action for the declaration of nullity of marriage; 2) action for
annulment of marriage; and, 3) action for legal separation.
Summary Judgment (accelerated judgment) is proper where, upon
motion filed after the issues had been joined and on the basis of the
pleadings and papers filed, the court finds that there is no genuine issue
as to any material fact, except as to the amount of damages. It is the
absence of a genuine factual issue.
- A genuine issue is an issue of fact which requires the presentation of
evidence as distinguished from a sham, fictitious contrived or false
claim. When the facts, as pleaded, appear uncontested or undisputed,
then there is no real or genuine issue or question as to the facts.
- It is permitted only if there is 1) no genuine issue as to any material
fact and 2) a moving party is entitled to a judgment as a matter of
law.
 The distinctions between a judgment on the pleadings and a summary
judgment are the following: (PIBN)
1. As to the presence of issue. In a judgment on the pleading, there is
absence of a factual issue in the case because the answer tenders
no issue at all. A summary judgment involves an issue, but the
issue is not genuine.
2. As to the party who may institute the motion. A motion for
judgment on the pleadings is filed by a claiming party like plaintiff
or counterclaimant. A motion for summary judgment may be filed
either the claiming or defending party.
3. As to the basis. A judgment on the pleadings is based on the
pleadings alone. A summary judgment is based on the pleadings,
affidavits, depositions and admissions.
4. As to the date of notice required. Only 3-day notice to the adverse
party is required prior to the date of hearing in a motion of
judgment on the pleading based on the regular rules on motion. A
10-day notice to the adverse party is required in a motion for
summary judgment.
POST JUDGMENT REMEDIES
- A judgment becomes executory upon the expiration of the period to
appeal from a judgment or order that finally disposes of the action or
proceeding, if no appeal has been duly perfected.
 Remedies before a judgment becomes final and executory: 1)
motion for reconsideration; 2) motion for new trial; and, 3) appeal.
 Remedies after the judgment becomes executory: 1) petition for
relief from judgment; 2) annulment of judgment; 3) certiorari; and 4)
collateral attack.
Remedies before a judgment becomes final and executory:
Motion for Reconsideration referred to under Rule 37 is one that is
directed against a judgment or a final order.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- A motion for reconsideration of a judgment or final order is filed
within the period for taking an appeal. No motion for extension of
time to file a MR shall be allowed.
- Where the appeal is by notice of appeal, the period for the appeal is
within 15 days after notice to the appellant of the judgment or final
order appealed from.
- the period for appeal by record on appeal is within 30 days from
notice of judgment or final order. It shall be required only in special
proceedings and in other cases of multiple or separate appeals.
 Service of judgment on the party represented by counsel is not
considered the office notice and receipt of the judgment.
 It has been declared that notice upon the parties’ counsels of
record is tantamount to service upon the parties themselves, but
service upon the parties themselves is not considered service upon
their lawyers because the parties-clients have no formal education
or knowledge of the rules of procedure.
- The MR must be (WNA) 1) in writing; 2) a written notice of which
must be served on the adverse party, and 3) may be anchored on any
of the following grounds: (DEC)
a. That the damages awarded are excessive;
b. That the evidence is insufficient to justify the decision or final
order; or
c. That the decision or final order is contrary to law.
- Non-compliance with the abovementioned requirements would
reduce the motion to a mere pro forma motion. It is one which does
not satisfy the requirements of the rules and will be treated as a
motion to delay the proceedings. The following are considered pro
forma:
1. It was a second MR;
2. It did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not
supported by the evidence;
3. It failed to substantiate the alleged errors;
4. It merely alleged that the decision in question was contrary to
law;
5. The adverse party was not given notice thereof.
- Neypes Rule or Fresh Period Rule is applicable if a MR or MNT is
denied, the movant has a fresh period of 15 days from receipt or
notice of the order denying or dismissing the MR or MNT within
which to file a notice of appeal. It applies from Rule 40 to 45 and to
criminal cases.
 The rule was adopted 1) to standardize the appeal periods
provided in the Rules and to afford fair opportunity to appeal
their cases, and 2) to give the trial court another opportunity to
review the case and, in the process, minimize any error of
judgment.
 If a MR is denied, the remedy is to file appeal from the judgment
or final order, but a petition for certiorari under Rule 65 may also
be resorted to if the denial of the MR was 1) tainted with grave
abuse of discretion and 2) when there is no plain, speedy and
adequate remedy or appeal is available.
- Single Motion Rule is a rule that a party shall not be allowed to file
a second MR of a judgment or a final order. The rule does not apply
27
to a MR of an interlocutory order. It is based on the doctrine of
immutability.
 A second and subsequent MR may be given merit only when there
are 1) extraordinary persuasive reasons and 2) only after an
express leave of court shall have been obtained.
- The pendency of the MR shall stay the execution of the judgment or
final resolution sought to be reconsidered provided the motion is
filed 1) on time, and 2) by the proper party.
Motion for New Trial is a remedy that seeks to cause the severity of a
judgment or prevent a failure of justice. It is subject to the sound
discretion of the court which cannot be interfered with unless a clear
abuse thereof is shown.
- a MNT is filed within he period for taking an appeal. No MNT for
extension of time to file a MNT shall be allowed.
- the period for filing a notice of appeal or record on appeal is the
same in the rule on MR.
- the filing of a timely MNT interrupts the period to appeal.
- MNT is proper when the aggrieved party may move the trial court to
set aside the judgment or final order and grant a new trial on one or
more of the following causes materially affecting the substantial
rights of said party:
1. FAMEN which could not heave guarded against and by reason
of which, such aggrieved party has been impaired in his rights
and it shall be support by affidavit of merit that the moving
party must show that he has a meritorious defense; or
2. Newly-discovered evidence, which could not, with reasonable
diligence, have discovered and produced at the trial, and which,
if presented would probably alter the result and it shall be
supported by affidavits of witnesses by whom such evidence is
expected given, or by duly authenticated documents which are
proposed to be introduced in evidence.
 Requisites of newly discovered evidence: (DEMC)
1. That the evidence was discovered after trial;
2. That such evidence could not have been discovered and
produced at the trial even with the exercise of reasonable
diligence;
3. That it is material not merely cumulative, corroborative
or impeaching; and,
4. The evidence is of such weight that it would probably
change the judgment if admitted.
- Non-compliance of the rule shall be considered pro forma motion
and shall not toll the reglementary period of appeal.
- if the MNT is denied, the proper remedy for the aggrieved party is to
file a petition for certiorari under Rule 65.
- A second MNT is authorized by the Rules. It shall include all
grounds then available and those not included shall be deemed
waived.
Appeals – the right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the manner and in
accordance with provisions of law.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- A party is not allowed to question the decision of the court on the
merits and invoke the extraordinary remedy of certiorari under
Rule 65 and an ordinary appeal under Rule 41 at the same time.
Such cannot be allowed since one remedy would necessarily cancel
out the other.
- The perfection of an appeal within the statutory or reglementary
period and in the manner prescribed by law is mandatory and
jurisdictional. Failure to do so renders the questioned decision final
and executory and deprives the appellate court of jurisdiction to alter
the final judgment, much less to entertain the appeal.
- When the judgment or final order does not completely dispose of the
case, then the same is not appealable.
- A question that was never raised in the courts below cannot be
allowed to be raised for the first time on appeal without offending
basic rules of fair play and due process. Issues raised for the first on
appeal are barred by estoppel.
 Points of law, theories, issues and arguments not brought to the
attention of the lower court will not be ordinarily considered by the
reviewing court because they cannot be raised for first time at the
late stage.
 The rule that a party cannot change his theory on appeal also
applies to criminal cases. However, an appellate court appears to
enjoy wide latitude in deciding an appealed criminal case and it
opens the entire case for review.
 Exception to the rule of change of theory on appeal are the
followings:
1. It is an error that affects the jurisdiction over the subject
matter;
2. It is an error that affects validity of the judgment appealed
from;
3. It is an error which affects the validity of the proceedings;
4. It is an error closely related to or dependent on an assigned
error, and properly argue in the brief;
5. It is a plain and clerical error.
- The remedy where the judgment or final order is not appealable is to
file the appropriate special civil action under Rule 65.
- The remedy against an order of execution is to file a special civil
action for certiorari on any of the following grounds: 1) the writ of
execution has been improvidently issued, 2) the writ is defective in
substance, or 3) the writ was issued against a wrong party.
 Judgments or orders that are not appealable: (MID SE)
1. An order denying a MNT or a MR;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal
4. An order denying a motion to set aside a judgment but 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; or
7. An order dismissing an action without prejudice.
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 The following are the consequences for non-filing of appellant’s brief
with the CA:
1. The CA may dismiss an appeal when no appellant’s brief is filed
within the reglementary period prescribed by the rules;
2. The power conferred upon the CA to dismiss an appeal is
discretionary and directory and not ministerial or mandatory;
3. The failure of an appellant to file his brief within the reglementary
period does not have the effect of causing the automatic dismissal
of the appeal;
4. In case of delay, the lapse must be for a reasonable period;
5. Inadvertence of counsel cannot be considered as an adequate
excuse as to call for the appellate court’s indulgence; and,
6. a litigant’s failure to furnish his opponent with a copy of his appeal
brief does not suffice to warrant the dismissal of that appeal. All that
is needed is for the court to order the litigant to furnish his opponent
with a copy of his brief.
 Appeal from the MTC to the RTC
- The notice of appeal does not require the approval of the court. The
function of the notice of appeal is merely to notify the trial court that
the appellant was availing of the right to appeal, and not to seek the
court’s permission that he be allowed to pose an appeal.
- The non-submission of the memorandum within 15 days from
such notice shall be a ground for dismissal of the appeal. The case
shall be considered submitted for decision upon filing of the
memorandum of the appellee or the expiration of the period to do so.
- 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.
- 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 jurisdictional but shall decide the
case in accordance with the Rules.
 Residual jurisdiction refers to the authority of a trial court to issue
orders for the protection and preservation of the rights of the parties,
which do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with Sec. 2, Rule 39 and allow
withdrawal of the appeal provided these are done prior t the transmittal
of the original record or the record on appeal, even if the appeals have
already been perfected or despite the approval of the record on appeal.
- It is available at a stage in which the court is normally deemed to
have lost of jurisdiction over the case or the subject matter involved
in the appeal.
- Doctrine of Residual Jurisdiction applies when the MTC or RTC,
in the exercise of its original jurisdiction, 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. However, the
trial court, despite the perfection of the appeals, may still issue
orders for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal provided the
orders were made before the appellate court gives due course to the
petition.
 Appeal from the CA to SC
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- Factual-Issue-Bar Rule refers to the findings of fact of the CA,
when supported by substantial evidence, are conclusive and binding
on the parties and are not reviewable by the Court.
 The jurisdiction of the SC in cases brought before it from the CA
is limited to review and revising the errors of law imputed to it, its
findings of fact being conclusive. The SC is not a trier of facts and,
unless there are excepting circumstances, it does not routinely
undertake the re-examination of the evidence presented by the
contending parties during the trial of the case
 Appeal from the RTC to SC
- Appeal by certiorari from RTC to CA is proper when the judgment
or final order of the RTC in cases whereby 1) only questions of law
are raised or are involved, and the case is one decided by the said
court in the exercise of its original jurisdiction. However, the said
rule does not apply when the judgment or final order is rendered by
the RTC in the exercise of its appellate jurisdiction, regardless of the
issues involved.
- An appeal or review under Rule 45 is not a matter of right, but of
sound judicial discretion, and will be granted only when special
and important reasons could justify the petition.
- There is a question of law when there is doubt as to what law is on
certain state of acts, while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged facts.
- The test of whether a question is one of law or of fact is whether the
appellate court can determine the issue raised without reviewing or
evaluating the evidence, in which case, it is a question of law;
otherwise, it is a question of fact.
 The principal distinctions of certiorari under Rule 45 and Rule 65 of
the ROC:
1. As to the nature of the action. Certiorari under Rule 45 is a mode
of appeal; while certiorari under Rule 65 is a special civil action
that is an original action and not a mode of appeal.
2. As to the subject of the action. Certiorari under Rule 45 seeks to
review final judgment or final orders; while certiorari under Rule
65 may be directed against an interlocutory order or matters where
no appeal may be taken from;
3. As to the issue involved. Certiorari under Rule 45 raises question
of law; while certiorari question of jurisdiction;
4. As to the filing period of the action. Certiorari under Rule 45 shall
be filed within 15 days from notice of judgment; while Certiorari
under Rule 65 shall be filed within 60 days from notice of denial
of said motion;
5. As to MR required to be filed. Certiorari under Rule 45 does not
required MR; while certiorari under Rule 65 requires a prior MR;
6. As to the stay judgment. Certiorari under Rule 45 stays the
judgment appealed from; while certiorari under Rule 65 does not
stay the judgment or order subject of the petition.
 A party cannot simultaneously file a petition both under Rule 45
and Rule 65, ROC, because said procedural rules pertain to
different remedies and have distinct applications.
 Appeals from Quasi-Judicial Bodies
- In NLRC cases, the aggrieved party may resort to file a special civil
action for Certiorari under Rule 65 with the CA and from the CA, the
29
aggrieved party may file an appeal with the SC by petition for review
on Certiorari under Rule 45.
- In Voluntary Arbitration cases under the Labor Code, the
aggrieved party may file a petition for review under Rule 43, ROC.
- In administrative disciplinary cases held by the Office of the
Ombudsman, the cases are appealable to the CA by petition for
review under Rule 43, ROC. However, in criminal or non-
administrative cases held by the Office of the Ombudsman, the
orders or directives of the Omb. cannot be subject to review, unless
when tainted with grave abuse of discretion, is to file an original
action for certiorari with the SC under Rule 65, ROC.
 The decision of the Omb is immediately executory and may not be
stayed by the filing of an appeal or the issuance of an injunctive
writ.
- In election cases held by the COMELEC or cases held by the COA,
judgment, resolution or final order of the COMELEC may be
brought by the aggrieved party to the SC on Certiorari under Rule
65, limited only to jurisdictional issue.
- In civil service cases held by CSC, it may be taken to the CA on
petition for review under Rule 43.
- In judgments, resolutions or final order of the Office of the President,
it may be taken to the CA on petition for review under Rule 43.
- In resolutions decided by the Secretary of Justice, it may be brought
to the CA on petition for certiorari under Rule 65 on jurisdictional
issue.
Remedies after judgment has become final and executory:
 Petition for relief from judgment is a legal remedy whereby a party
seeks to set aside a judgment rendered against him by a court whenever
he was 1) unjustly deprived of a hearing or was 2) prevented from
taking an appeal because of FAMEN.
- it is an equitable remedy allowed only in exceptional cases when
there is no other available or adequate remedy.
- a party who has filed a MR or MNT, but which was denied, cannot
file a petition for relief.
- Petition for relief from a judgment, final order or other proceeding
rendered or taken should be filed with and rendered by the court in
the same case from which the petition arose.
- Extrinsic fraud refers to the fraud which the prevailing party caused
to prevent the losing party from being heard on his cause or defense.
Such fraud concerns not the judgment itself but the manner in which
it was obtained.
- Period for filing the action. The petition shall be 1) filed within 60
days after the petitioner learns of the judgment, final order or
proceeding and not more than 6 months after such judgment or final
order was entered, or such proceeding was taken, and 2) it must be
accompanied with affidavits, showing the FAMEN relied upon and
the facts constituting the petitioner’s good and substantial cause of
action or defense.
- When a petition is filed, the court may grant preliminary injunction
to preserve the rights of the parties upon the filing of a bond in favor
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of the adverse party. The bond is condition upon the payment to the
adverse party of all damages and costs that may be awarded by
reason of the issuance of the injunction or the other proceedings
following the petition.
- the petition for relief from judgment is not applicable in the CA and
SC. It is only applicable to lower courts, RTC and MTC. Likewise, it
is not applicable in summary procedure and small claims for being a
prohibited motion.
- in environmental cases, a petition for relief from judgment shall be
allowed in highly meritorious cases or to prevent a manifest
miscarriage of justice.
 Annulment of judgment is a remedy in law independent of the case
where the judgment sought to be annulled was rendered. Its purpose is
to have a final and executory judgment set aside so that there will be a
renewal of litigation.
- it is resorted to in cases where the ordinary remedies of new trial,
appeal, petition for relief from judgment or other appropriate
remedies are no longer available through no fault of the petitioner.
- if the petitioner failed to avail of those cited remedies without
sufficient justification, he cannot resort to the action for annulment
provided under Rule 47, for otherwise he would benefit from his own
inaction or negligence.
- the grounds for annulment of a judgment are 1) extrinsic fraud and
2) lack of jurisdiction and 3) denial of due process.
- Extrinsic fraud refers to fraud where it prevents a party from having
a trial or from presenting is entire case to the curt or where it
operates upon matters pertaining not to the judgment itself but to the
manner in which it is procured.
- Period for filing the action. If based on extrinsic fraud, the action
must be filed within 4 years from its discovery. If based on lack of
jurisdiction, the action must be brought before the action is barred by
laches or estoppel.
- It can be filed by one who was not party to the action in which the
assailed judgment was rendered. It is a remedy in law independent of
the case where the judgment sought to be annulled is promulgated.
- If the questioned judgment, final order or resolution had already been
executed, the court may issue such orders of restitution or other
relief as justice and equity may warrant under the circumstances.
- Judgment in issue held by the MTC to be annulled shall be filed with
the RTC and judgment in issue held by the RTC shall be filed with
the CA.
- It is submitted that an aggrieved party who desires an annulment of
judgment or resolution of a quasi-judicial body, enumerated under
Rule 43, may avail of a petition for review to the CA under Rule 43
and not an action to annul the judgment or resolution.
 A petition for certiorari under Rule 65 is an original and independent
action and is not part of the proceedings that resulted in the order
assailed.
- The petition shall not interrupt the course of the principal case,
unless a temporary restraining order or a writ of preliminary
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injunction has been issued, enjoining the public respondent from
further proceeding with the case.
- The purpose of Certiorari is to correct errors of jurisdiction only or
grave abuse of jurisdiction amounting to lack or excess of
jurisdiction. Its principal office is only to keep the inferior court
within the parameters of its jurisdiction.
- As a rule, where appeal is available, certiorari cannot be availed of,
unless it can be shown that appeal is not speedy or adequate.
- Ordinarily, an original action for certiorari will not prosper if the
reedy of appeal is available, for an appeal and certiorari are mutually
exclusive, not alternative or successive remedies.
- A writ of certiorari is an extraordinary prerogative writ that is never
demandable as a matter of right, but subject to the sound discretion
of the court.
- Under the Material Data (Date) Rule, there are three material dates
that must be stated in a petition for certiorari brought under Rule 65:
1) the date when notice of judgment, final order or resolution was
received; 2) the date when a motion for new trial or for
reconsideration was filed; and 3) the date when notice of the denial
thereof was received.
 Direct attack of judgment is made through an action or proceeding,
the main object of which is to annul, set aside or enjoin enforcement of
such judgment, if not yet carried into effect; or if the property has been
disposed of, the aggrieved party may sue for recovery. A collateral
attack is made when, in another action to obtain a different relief, an
attack on the judgment is made as an incident in said action.
EXECUTION and SATISFACTION of JUDGMENT
Execution is the remedy afforded for the satisfaction of a judgment. Its
object being obtain satisfaction of the judgment on which the writ is
issued.
- It is a matter of right upon the expiration of the period to appeal and
no appeal was perfected from a judgment or order that disposes of
the action or proceeding.
- Once a decision becomes final and executory, it is ministerial duty
of the presiding judge to issue a writ of execution, except in certain
cases, as when subsequent event would render execution of judgment
unjust.
- The judge may not order execution of the judgment in the decision
itself as a motion for issuance of execution is a requirement.
- Execution shall be applied for in the court of origin. If an appeal has
been duly perfected and finally resolved, the execution may be
applied for also in the court of origin on motion of the judgment
obligee.
- No appeal may be taken from an order of execution. A party desiring
to assail an order of execution may instead file an appropriate special
civil action.
- Lifetime of the writ of execution - the writ shall continue in effect
during the period within which the judgment may be enforced by
motion. Hence, the writ is enforceable within the 5-year period from
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Remedial Law
entry of judgment as provided for in Sec. 6, Rule 39 because within
that period, the writ may be enforced by motion.
 The following instances when execution will be denied:
1. When the judgment has already been executed by the voluntary
compliance thereof by the parties;
2. When the judgment has been novated by the parties – the parties,
despite the existence of judgment, are at liberty to novate a
judgment by entering into a compromise.
3. When a petition for relief is filed and a preliminary injunction is
granted in accordance with Sec. 5 of Rule 38.
4. When the judgment sought to be executed is conditional or when
the judgment sought to be executed is incomplete.
5. When the facts and circumstances transpire which would render
execution inequitable or unjust;
6. When execution is sought more than 5 years from its entry without
the judgment having been revived;
7. When execution is sought against property exempt from execution
under Sec. 13, Rule 39.
8. When refusal to execute the judgment has become imperative in
the higher interest of justice.
 Sheriff’s duty. It is the ministerial duty of the sheriff to execute the
execution of the writ, he is to execute the order of the court strictly to
the letter. He has no discretion whether to execute the judgment or not.
 Modes of execution of judgment:
1) Execution by motion if the enforcement of the judgment is
sought within 5 years from the date of its entry.
2) Execution by independent action if the 5-year period has
elapsed and before it is barred by the statute limitation.
- The rule is that the court could issue a writ of execution by
motion within 5 years from the finality of the decision. A writ
of execution issued after the expiration of that period is null
and void.
 Discretionary execution constitutes as an exception to the general rule
- There is need for the interested party to file an independent
action for revival of judgment. The judgment may be
enforced after the lapse of this period and before the same is
barred by the statute of limitations, by instituting an ordinary
civil action.
- After the 5-year period, the judgment is reduced to a mere
right of action, which judgment must be enforced, as all other
ordinary actions, by the institution of a complaint in the
regular form. Such action must be filed within 10 years from
the date the judgment became final.
- There are instances where the Court allowed execution by
motion even after the lapse of 5 years upon meritorious
grounds, such when there was delay caused or occasioned by
actions of the judgment debtor or incurred for his benefit or
advantage or the period may be interrupted by the agreement
of the parties to suspend the enforced of the judgment.
- an Action for Revival of judgment is no more than
procedural means of securing the execution of a previous
judgment which has become dormant after the passage of 5
years without it being executed upon motion of the prevailing
party.
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 It is not intended to re-open any issue affecting the merits of
the judgment debtor’s case not the propriety or correctness
of the first judgment.
 The purpose of the new action is not to re-examine and
retry the issues already decided and the cause of action of
this new action is the judgment to be revived and no identity
of causes of action can be said to exist between the first and
the second actions. The nature of the action is one of
incapable of pecuniary estimation.
 It is deemed a new judgment separate and distinct from the
original judgment. It is not a continuation of the original
judgment.
 If the prevailing party fails to have the decision enforced
by a motion after the lapse of 5 years from the date of entry
of the judgment, the said judgment is reduced to a right of
action which must be enforced by the institution of a
complaint in a regular court within 10 years from the time
the judgment.
 The 10-year period to revive the revived judgment shall
commence to run from the date of the finality of the revived
judgment and not from the date of finality of the old,
original judgment.
- The following instances when 5 or 10-year period do not
apply:
1. special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe;
2. judgment for support which do not become dormant and
which can always be executed by motion despite lapse of
the 5-year period because the obligation is a continuing
one and the court never loses jurisdiction to enforce the
same.
that a judgment cannot be executed before the lapse of the period for
appeal or during the pendency of an appeal.
- it is an execution not as a matter of right. It is addressed to the
discretionary power of the court when a there is already a judgment
or order by the court but has not yet attained finality.
- the motion for discretionary execution shall be filed with trial court
while 1) it has jurisdiction over the case and while 2) it is in
possession of either the original record or the record on appeal.
- Requisites for discretionary execution:
1. There must be a motion filed by the prevailing party with notice
to the adverse party;
2. There must be a hearing of the motion for discretionary
execution;
3. The motion must be filed in the trial court while it has
jurisdiction over the case and is in possession of either the
original record or the record on appeal;
4. There must be good reasons to justify the discretionary
execution; and
5. The good reasons must be stated in a special order.
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Remedial Law
- Where the executed judgment is reversed totally or partially, or
annulled on appeal or otherwise, the trial court may, on motion,
issued such orders of restitution or reparation of damages as
equity and justice may warrant under the circumstances.
 The sheriff is required first to demand from the judgment obligor the
immediate payment of the full amount stated in the writ of execution
before a levy can be made. If payment can be done, a levy is
unnecessary.
- It was ruled that the levy upon the properties of the judgment obligor
may be had by the executing sheriff only if the judgment obligor
cannot pay all or part of the full amount stated in the writ of
execution.
- The judgment obligor is given the option to immediately choose
which of his property or part thereof, not otherwise exempt from
execution, may be levied upon sufficient to satisfy the judgment.
- If the judgment obligor does not exercise the option immediately, or
when he is absent or cannot be located, he waives such right, and the
sheriff can now first levy his personal property, if any, and then the
real properties if the personal properties are insufficient to answer for
the judgment.
- In the enforcement of the writ of execution in ejectment cases is
carried out by giving the defendant notice of such writ, and making a
demand that defendant comply therewith within reasonable period,
normally from 3 to 5 days, and it is only after such period that the
sheriff is to enforce the writ by the bodily removal of the defendant
and his belongingness. The three-day notice is required.
 Immediacy of execution does not mean instant execution. When a
decision is immediately executory is does not mean dispensing
with the required three-day notice.
 Garnishment shall be made by 1) serving notice upon the third person
having possession or control of the credits in favor of the judgment
obligor; 2) the third person or 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 to
satisfy the judgment.
 Effect of levy and sale of property:
1. The result of such execution was that title over the subject property
is vested immediately in the purchaser subject only to the right to
redeem the property within the period provided for by law.
2. The right acquired by the purchaser at an execution sale is
inchoate and does not become absolute until after the expiration of
the redemption period without the right of redemption having been
exercised.
 Terceria is a remedy where a person, not a party to the action,
claiming a property levied upon may execute an affidavit of his title or
right of possession over the property.
- The officer served with the affidavit of the claiming third person
shall not be bound to keep the property subject of the claim, unless
the judgment oblige, on demand of the officer, files a bond approved
by the court to indemnify the claimant in a sum not less than the
value of the property levied upon.
PROVISIONAL REMEDIES
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Declaratory Reliefs is 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.
- Requisites: STB ADR
1. The subject matter of the controversy must be a deed, will,
contract or other written instrument, statute, executive order or
regulation, or ordinance;
2. The terms of said documents and the validity thereof are
doubtful and require judicial construction;
3. There must have been no breach of the documents in question;
4. There must be an actual justiciable controversy or the “ripening
seeds” of one between persons whose interests are adverse;
5. The issue must be ripe for judicial determination; and,
6. Adequate relief is not available through other means or other
forms of action or proceeding.
- The only issue that may be raised in such a petition is the question of
construction or validity of provisions in an instrument or statute.
- such action must be justified, as no other adequate relief or remedy is
available under the circumstances.
- Purpose - the petition is brought for the court to 1) determine any
question of construction or validity arising from the subject of the
action, and b) seek for declaration of the petitioner’s rights
thereunder.
 The purpose is to seek for a judicial interpretation of an
instrument or for judicial declaration of person’s rights under a
statute and not to ask for affirmative reliefs like injunction,
damages or any other relief beyond the purpose of the petition as
declared under the Rules. **
- Only a person 1) who is interested under a deed, will, contract or
other written instrument, and 2) whose rights are affected by a
statute or ordinance, may bring an action to determine any question
of construction or validity arising under the instrument or statute and
for a declaration of his rights or duties thereunder.
 Those who may sue under the contract should have an interest in
the contract like the parties, their assignees and heirs as required
by substantive law.
 A court decision cannot be interpreted as included within the
purview of the words “other written instrument” for the simple
reason that the provisions of the ROC already provide for the ways
by which an ambiguous or doubtful decision may be corrected or
clarified without need of resorting to the expedient prescribed by a
petition for declaratory relief. The remedy is to move for a
clarificatory judgment.
- An action for declaratory relief is brought to secure an authoritative
statement of the rights and obligations of the parties under a
contract or statute for their guidance in the enforcement or
compliance with the same and not to settle issues arising from its
alleged breach.
- Two types of actions under DR: the first paragraph is an action for
declaratory relief and second paragraph deals with similar remedies:
1) action for reformation of an instrument (Arts. 1359-1369), 2)
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
action for quieting of title to real property or remove clouds
therefrom (Arts. 476-481); and 3) action for consolidation of
ownership (Art. 1607).
- The court is given the discretion to act or not to act on the petition.
It may, therefore, choose not to construe the instrument sought to be
construed or refrain from declaring the rights of the petitioner under
the deed or law if 1) where a decision on the petition would not
terminate the uncertainty or controversy which gave rise to the
action, or 2) where the declaration or construction is not necessary
and proper under the circumstances as when the instrument or the
statute has already been breached.
 The court does not have the discretion to refuse with respect to the
actions described as similar remedies, namely: 1) reformation of
the instrument, 2) quieting of title, and 3) consolidation of
ownership (RQC) *
- The action for declaratory relief should be brought in the appropriate
RTC.
 An executive order issued by the President of the Philippines or
by a City Mayor may be questioned through petition for
declaratory relief under Rule 63 since the issuance of the executive
order is not judicial or quasi-judicial act.
 It was held that actions for reconveyance or cancellation of title
or quieting of title of real property are actions that fall under the
classification of cases that involve title to, or possession of, real
property, or any interest therein. Such actions are real actions
jurisdiction over which is determined by the assessed value of the
property. RCQ**
 An action for consolidation of ownership should be instituted
with the RTC, but the assessed value should not be considered in
the determination of jurisdiction because the action does not
involve recovery of title, or ownership, of real property. It is
merely to obtain a judicial order to effect the registration of the
consolidation ownership in the Registry of Property.
 The SC held that a petition for declaratory relief can be treated
as one for prohibition if the case has 1) far-reaching implications
and 2) raises questions that need to be resolved for the public
good.
- It was ruled that a petition for declaratory relief may entertain a
compulsory counterclaim as long as it is based on or arising from
the same transaction, subject matter of the petition.
- The SC held that when the main case is for declaratory relief, a
third-party complaint is inconceivable as the court is merely
interpreting the terms of the contract.
- As a rule, affirmative reliefs as in ordinary civil actions are not
granted in declaratory petitions, However, in Adlawan v. IAC, the
SC held that although the action is for declaratory judgment, but the
allegations in the complaints are sufficient to make out a case for
specific performance or recovery of property with claims for
damages and the defendant did not raise an issue in the trial court to
challenge the remedy or form of the action availed of, the court can
grant such affirmative relief as may be warranted by the evidence.
- The judgment in the declaratory relief is said to stand by itself and
no executory process follows as of course. It is unlike the judgment
33
in an ordinary civil action which is coercive in character and
enforceable by execution.
- Action for reformation may be resorted to reform the instrument
because despite the meeting of the minds of the parties as to the
object and cause of contract, the instrument which is supposed to
embody the agreement of the parties does not reflect their true
agreement by reason of mistake, fraud, inequitable conduct or
accident.
 A contract does not refer to the instrument, deed or document but
to the meeting of minds.
 Where the consent of a party to a contract has been procured by
fraud, inequitable conduct or accident, and an instrument was
executed by the parties in accordance with the contract, what is
defective is the contract itself because of vitiation of consent. The
remedy is to file an action for annulment of the contract.
 Reformation of the instrument cannot be brought for any of the
following: 1) simple donation inter vivos wherein no condition is
imposed, 2) wills, or 3) when the real agreement is void.
- Consolidation of ownership
 Legal redemption “retracto legal” is a statutory mandated
redemption of property previously sold.
 A co-owner of a property may exercise the right of redemption
in case the shares of all the other co-owners or any of them are
sold to a third person.
 Conventional redemption “pacto de retro sale” is one that is not
mandated by statute but one which takes place because of the
stipulation of the parties to the sale.
 It shall take place when the vendor reserves the right to
repurchase the thing sold.
 The essence of a pacto de retro sale is that the title and
ownership of the property sold are immediately vested in the
vendee a retro, subject to the resolutory condition of
repurchase by the vendor a retro within the stipulated period.
Failure thus of the vendor a retro to perform said resolutory
condition vests upon the vendee by operation of law absolute
title and ownership over the property sold.
- Quieting of title is an action brought to remove cloud on title to real
property or any interest therein.
 Requisites – 1) the plaintiff or complainant has a legal or
equitable title or interest in the real property subject of the action;
and 2) the deed, claim, encumbrance, or proceeding claimed to be
casting cloud on his tilt must be shown to be in fact invalid or
inoperative despite its prima facie appearance of validity or legal
efficacy.
 Legal title denotes registered ownership, while equitable title
means beneficial ownership. In the absence of such legal or
equitable title, there is no cloud to be prevented or removed.
 the cloud is caused by any instrument, record, claim, encumbrance
or proceeding which appears to be valid or effective. However, in
truth and in fact the same is invalid, ineffective, voidable or
unenforceable, and may be prejudicial to the title to real property.
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Remedial Law
 the plaintiff need not be in possession of the real party before may
bring the action as long as he can show that he has a legal or
equitable title to the property which is the subject matter of the
action.
 Suits to quite title are not technically suits in rem, nor are they,
strictly speaking, in personam but being against the person in
respect of the res, these proceedings are characterized as quasi in
rem. The judgment in such proceedings is conclusive only
between the parties.
 Those not made parties in the case are not bound by the
decision.
Quo Warranto is an action or proceeding against a person who usurps,
intrudes into or unlawfully holds or exercise a public office.
- It is specifically described as an action for the usurpation of a
public 1) office, 2) position, or 3) franchise that is commenced by a
verified petition in the name of the Republic of the Philippines by a
verified petition. POPF **
- The special civil action of quo warranto is a prerogative writ by
which the government can call upon any person to show by what
warrants he holds a public office or exercises a public franchise.
- The petition can be commenced by the 1) Solicitor General, or 2) a
public prosecutor, or 3) a private person. SPP *
 When directed by the President of the Philippines, or when upon
complaint or otherwise he has good reasons to believe that any
case specified in the Rules can be established by proof, the
Solicitor General or the public prosecutor must commence the
action.
 For a private person to file the petition for quo warranto, he must
be entitled to a public office or position which was usurped or
unlawfully held or exercised by another person. He must show that
he has a clear right to the office allegedly being held by another.
- As to the venue. When the action is commenced by the Solicitor
General, the petition may be brought in the RTC which has
jurisdiction over the territorial area where the respondent or any of
the respondents resides
 The abovementioned rule does not apply when the petition is filed
by the Solicitor General who is given the prerogative to file the
petition in the RTC of Manila.
- Quo Warranto under P.D. 1606, as amended by R.A. 8249, Sec. 4,
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
case filed or which may be filed under EO nos.1, 2, 14 and 14-A
issued in 1996: provided, that the jurisdiction over these petitions
shall not be exclusive of the SC.
- Quo Warranto under the Omnibus Election Code, a petition for quo
warranto may be brought in the COMELEC, RTC or MTC.
 Any voter contesting the election of any member of the regional,
provincial or city officer on the ground of inegibility or of
34
disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within 10 days
after the proclamation of the results of the election.
Any voter contesting the election of any municipal or barangay
officer on the ground of inegibility or of disloyalty to the
Republic of the Philippines shall file a sworn petition for quo
warranto with the RTC or MTC, respectively, within 10 days after
the proclamation of the results of the election.
 The HRET and the SET shall be the sole judges of all contests
relating to the election, returns and qualifications of their
respective members.
 A candidate who has not been proclaimed and who has not
taken his oath of office cannot be said to be a member of the
Congress.
- Quo Warranto in the OEC (elective official) may be distinguished
from a quo warranto in an appointive office.
1. As to governing law. The quo warranto for the elective official
is governed by the Omnibus Election Code, while for the
appointive official, it is governed by the rules under the Rules of
Court.
2. As to issue. In the first, the issue is the ineligibility of the person
elected or his disloyalty to the Republic; in the second, the issue
is the legality of the occupancy of the office by virtue of an
appointment.
3. As to duration to institute the petition. In the first, the petition is
filed within 10 days after the proclamation of the results of the
election. In the second, it is filed within 1 year from the time the
cause of ouster, or the right of the petitioner to hold the office or
position, arose.
4. As to jurisdiction. In the first, the petition is brought in the
Comelec, RTC, or MTC. In the second, the petition is brought in
the SC, CA or RTC.
5. As to petitioner. In the first, the petitioner may be any voter
even if he is not entitled to the office. In the second, the
petitioner is the person claiming to be entitled to the office.
6. As to entitlement. In the first case, where the person elected is
ineligible, the court cannot declare that candidate occupying the
second place as elected even if he were eligible, since the law
only authorizes a declaration of election in favor of the person
obtaining the plurality of votes. In the second case, the court
determines who is legally appointed, and can and ought to
declare the person entitled to occupy the office.
- Quo warranto may distinguished from an election protest in the
following manner:
As to cause of action. In quo warranto, the cause of action is
the eligibility of the candidate or lack of it, or his being disloyal
to the Republic. In election protest, the cause of action is the
irregularity in the conduct of the election.
 An election protest proposes to oust the winning candidate
from office. It is strictly a contest between the defeated and
the winning candidates, based on the grounds of electoral
frauds and irregularities, to determine who between them has
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
actually obtained the majority of the legal votes cast and is
entitled to hold the office. It can only be filed by a candidate
who has duly filed a certificate of candidacy and has been
voted for in the preceding elections.
 A special civil action for quo warranto refers to the questions
of disloyalty to the State, or of ineligibility of the winning
candidate. The objective of the action is to unseat the
ineligible person from the office, but not to install the
petitioner in his place.
 A controversy where the petitioner is seeking to be seated as
the second nominee of a party list organization is neither an
election protest nor a quo warranto proceeding.
- The SC held that a quo warranto proceeding is one of the instances
where the exhaustion of administrative remedies is not required.
- If the respondent refuses r 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. A disobedience to a
lawful order of a court is cause for an indirect contempt. This
contempt is punished after a charge in writing has been filed and an
opportunity given to the respondent to be heard.
- Although a quo warranto proceeding may be brought against an
association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to
act, the petition may be brought only against a de facto corporation,
not de jure corporation.
Foreclosure of Real Estate Mortgage
- As to venue, an action for foreclosure of real estate mortgage of real
property is an action affecting interest in real property and is, hence,
a real action.
 It has been held that if several parcels of land located in different
provinces covered by a single mortgage contract, the action may
be filed in any of the provinces where any of the parcels of land is
located. The judgment of the court of the province where the
action is filed may be executed in all the other provinces.
- A real estate mortgage is an accessory contract executed by a debtor
in favor of a creditor as security for the principal obligation. The
contract must be constituted on either immovable (real property) or
alienable real rights.
- A real right mortgage creates a real right which follows the property
whoever the owner may be after the constitution of the mortgage.
- The mortgagor need not be the debtor and the latter need not be the
mortgagor. The mortgagor who is not the debtor in the principal
obligation is referred to as an accommodation mortgagor. This
situation is not prohibited by law.
 The liability of the accommodation mortgagors extends only up to
the loan value of the of the mortgaged property and not to the
entire loan itself.
- There can be several mortgages over the same property since there
is neither a law nor rule prohibiting the existence of more than one
encumbrance over a property.
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 These encumbrances have no effect on the ownership of the
property and are treated merely as liens, the first one being
normally treated as more superior over subsequent encumbrances.
- A mortgage contract may have a provision in which the mortgage is
a security for past, present and future indebtedness which is called
dragnet clause or blanket mortgage clause and it is valid and legal
contracts
 The SC held that mortgages given to secure future advancements
are valid and legal contract, and the amounts names as
consideration in said contracts do not limit the amount for which
the mortgage may stand as security if from the four corners of the
instrument, the intent to secure future and other indebtedness can
be gathered.
 It operates as a convenience and accommodation to the borrowers
as it makes available additional funds without their having to
execute additional security documents, thereby saving time, travel,
loan closing costs, costs of extra legal services, recording fees, etc.
- Foreclosure of real estate mortgage presupposes that the debtor
failed to pay his debt despite demand. The default of the debtor must
first be established.
 Such default occurs when payment is not made after a valid
demand unless the contract between the parties carries with it a
stipulation that demand is not necessary for default to arise.
 Foreclosure is valid only when the debtor is in default in the
payment of his obligation.
 Pactum Commissorium; elements – 1) there should be a
property mortgaged by way of security for the payment of the
principal obligation, and 2) there should be a stipulation for
automatic appropriation by the creditor of the thing mortgaged n
case of non-payment of the principal obligation within the
stipulated period.
 If the debt is not paid and the debtor defaults, the creditor
cannot ipso facto appropriate the mortgaged property despite a
stipulation to that effect because of the policy against a
pactum commissoirium, an agreement that is illegally infirm.
- In case of default of the debtor, the creditor has the following
alternative remedies: 1) to file an action for collection of a sum of
money or 2) to foreclose the mortgage; if one has been constituted.
 An election of the first bars recourse to the second, otherwise,
there would be multiplicity of suits in which the debtor would be
tossed from one venue to another depending on the location of the
mortgaged properties and the residence of the parties.
 The mere act of filing of an ordinary action for collection operates
as a waiver of the mortgagee-creditor’s remedy to foreclose the
mortgage.
- Effect of death of the mortgagor/debtor
1. The death of the mortgagor does not extinguish his debt. Such
debt does not also preclude the foreclosure of any real estate
mortgage he may have executed prior to his death. When the
mortgagor dies, the following remedies may be availed of by the
mortgagee/creditor:
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
A. He may abandon the security and prosecute his claim in the
manner provided for under Rule 86, and his share in the
general distribution of the assets of the estate;
B. He may foreclose the mortgage by action in court, making
the executor or administrator a party defendant, and if there
be a deficiency judgment after the sale of the mortgaged
property, he may claim the deficiency in the manner
provided by Rule 86; or
C. He may rely upon the mortgage or other security alone, and
foreclose the same at any time before it is barred by
prescription, and in that event, he shall not be admitted as a
creditor, without the right to share in the distribution of the
other assets of the estate.
 A creditor cannot file a civil action against the debtor for
collection of the debt and subsequently file an action to
foreclose the mortgage as it would amount to splitting of a
single cause of action.
- Extrajudicial Foreclosure is the mode to be used if there is a
special power inserted in or attached to the real estate mortgage
contract allowing an extrajudicial foreclosure sale. Where there is no
such special power, the foreclosure shall be done judicially
following the procedure set forth in Rule 68.
 Right of redemption is a right granted to a mortgagor to reacquire
the property even after the confirmation of the sale and the
registration of the certificate of sale.
 There is no right of redemption in a judicial foreclosure of
mortgage under Rule 68. This right exists only in
extrajudicial foreclosure where there is always a right of
redemption within 1 year from the date of the registration of
the sale.
 However, the abovementioned rule has an exception that there
is right of redemption in a judicial foreclosure if the
foreclosure is in favor of banks as mortgagee, whether the
foreclosure be judicial or extrajudicial.
 The period of redemption in extrajudicial foreclosure is
shortened by the GBL (Sec. 47, par. 2) when the mortgagor is
a juridical person. The period of redemption is “until but not
after” the registration of the certificate of sale with the
Register of Deeds, which in no case shall be more than 3
months after foreclosure, whichever is earlier.
- Equity of Redemption
 The period mentioned in the judgment of the court is the period
within which the mortgagor may start exercising his equity of
redemption which is the right to extinguish the mortgage and
retain ownership of the property by paying he debt. The payment
may be made even after the foreclosure sale provided it is made
before the sale is confirmed by the court.
 It was also held that after the sale of the mortgaged property
and before its confirmation, the court may still grant the
judgment debtor the opportunity to pay the amount of the
judgment.
 The period for payment is reckoned from the date of entry of
judgment, not from the receipt of the Order of the court.
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 It may be exercised by the mortgagor even beyond the 90-day
period and even after the foreclosure itself, provided it be before
the order of confirmation of the sale. After such order of
confirmation, no redemption can be effected any longer.
 If the mortgagee fails to pay the sum within the period 90-120
days from the entry of judgment, stated by the court in its
judgment, it would be good practice for the mortgagee o file a
motion for the sale of the mortgaged property because under the
Rules, the court shall order the sale of the property only “upon
motion.” Such motion is non-litigable and may be made ex-parte
pursuant to the judgment of foreclosure.
 After the foreclosure sale has been effected, the mortgagee should
file a motion for the confirmation of the sale.
 If the mortgagor was not notified of the hearing, the
subsequent confirmation of the sale is vitiated and
consequently it is as if no confirmation ever took place.
 Notice and hearing of motion for confirmation are essential
to the validity of the order of confirmation, not only to enable
the integrated parties to resist the motion but also to inform
them of the time when their right of redemption is cut off.
 The effect of the confirmation of the sale shall operate to
divest the rights in the property of all parties to the action and
vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
 The purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property and he may
secure writ of possession, upon motion, from the court which
ordered the foreclosure unless the third party is actually
holding the same adversely to the judgment obligor.
o The purchaser is authorized by law to petition for a writ
of possession by filing an ex parte motion. There is no
need for the purchaser to notify the parties of the
proceedings. The motion for issuance of a writ of
possession is an exception to the general three-day notice
rule for motions.
 No independent action need be filed to recover the
deficiency from the defendant. The deficiency judgment shall
be rendered upon motion of the mortgagee.
o The mortgagor, who is not the debtor and who merely
executed the mortgage to secure the principal debtor’s
obligation, is not liable for the deficiency unless he
assumed liability for the same in the contract.
- The distinctions between judicial foreclosure and extrajudicial
foreclosure of real estate mortgage are the following:
1. As to the governing law. A judicial foreclosure is governed by
the Rules of Court. An extrajudicial foreclosure is governed by
Act 3135, as amended.
2. As to institution of action. A judicial foreclosure involves the
filing of an independent action; unlike in the extrajudicial
foreclosure, it does not require the filing of an action.
3. As to right of redemption. In judicial foreclosure, there is an
equity of redemption but no right of redemption, except when
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
the mortgagee is a banking institution. There is a right of
redemption in extrajudicial foreclosure.
4. As to deficiency judgment. In judicial foreclosure, there could
be a deficiency judgment rendered by the court in the same
proceeding. There can be no judgment for deficiency in an
extrajudicial foreclosure because there is no judicial proceeding,
although recovery of the deficiency is allowed.
5. As to recovery of deficiency. In judicial foreclosure, recovery of
the deficiency can be done by mere motion for a deficiency
judgment. In an extrajudicial foreclosure, the recovery of the
deficiency is through an independent action, and although
nothing about the recovery of the deficiency is provided in Act
3135, there is no prohibition either.
Foreclosure Entry and Unlawful Detainer
- There are three kinds of actions available to recover possession of
real property, namely:
1. Accion Interdical is the summary action for either forcible
entry, where the defendant’s possession of the property is illegal
ab initio which must be brought within one year from actual
entry on the land; or for unlawful detainer, where the
defendant’s possession was originally lawful but ceased to be so
by the expiration of his right to possess which must be brought
within one year from the date last demand.
 The proceedings in forcible entry and unlawful detainer
actions are summary in nature and designed o provide for an
expeditious means of protecting actual possession or the right
to possession of the property involved. These actions fall
under the coverage of the Rules on Summary Procedure
irrespective of the amount of damages or unpaid rental sought
to be recovered.
 Possession, in the eyes of law, does not mean that a man has
to have his feet on every square meter of the ground before he
is deemed to be in possession.
 Where the basic issue is not possession but interpretation,
enforcement and/or rescission of the contract, the same is no
longer an ejectment suit. Hence, it is beyond the jurisdiction of
the MTC to hear and determine.
 The decision in an ejectment case does not bind the title to or
ownership of the land or building.
 Jurisdiction in ejectment cases is determined by the allegations
pleaded in the complaint. It cannot be made to depend on the
defenses set up in the answer or pleadings filed by the
defendant.
 Affirmative and negative defenses not pleaded in the answer
shall be deemed waived except lack of jurisdiction over the
subject matter.
 If the defendant fails to answer the complaint within the
period provided, the court has no authority to declare the
defendant in default. Instead, the court, motu propio 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.
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Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
 The mere assertion of tenancy as a defense does not ipso
facto deprive the court of jurisdiction over an ejectment case
as the jurisdiction of the court is determined by the allegations
in the complaint and is not dependent upon the defenses set up
by the defendant.
 Where the tenancy is raised as a defense, the court must
conduct a hearing on the matter to determine the veracity
of the allegations of tenancy.
 The summary nature of the action is not changed by a claim
of ownership of the property by the defendant. Hence, the
MTC is not divested of its jurisdiction over an unlawful
detainer action simply because the defendant asserts
ownership over the property.
 When the defendant raises the issue of ownership, the
court may resolve the issue of ownership but only under
the following conditions: 1) when the issue of possession
cannot be resolved without deciding the issue of
ownership, and 2) the issue of ownership shall be
resolved only to determine the issue of possession.
 The disposition of the issue of ownership is not final, as it
may be the subject of a separate proceeding specifically
brought to settle the issue.
 The adjudication on the issue of ownership, being
provisional, is not a bar to an action between the same
parties involving the title to the property. Since the only
issue involved is the physical or material possession of
the premises, that is possession de facto and not
possession de jure, the question of ownership must be
threshed out in a separate action.
 A pending action involving ownership of the subject property
does not bar the filing of an ejectment suit, nor suspend the
proceedings of one already instituted. The underlying reason
is to prevent the defendant from trifling with summary nature
of an ejectment suit by the simple expedient of asserting
ownership over the disputed property.
1. Injunction suit instituted in the RTC by defendants in
ejectment actions in the MTCs or other courts of the first
level do not abate the latter.
2. An accion publiciana does not suspend an ejectment
suit against the plaintiff in the former.
3. A writ of possession case where ownership is concededly
the principal issue before the RTC does not preclude nor
bar the execution of the judgment in an UD suit where the
only issue involved is the material or possession de
facto of the premises.
4. An action for quieting of title to property is not a bar to
an ejectment suit involving the same property.
5. Suit for specific performance with damages do not
affect ejectment action.
6. An action for reformation of instrument from a deed of
sale to one of sale with pacto de retro sale does not
suspend an ejectment suit between the same parties.
Remedial Law
 A judgment rendered by the MTC on a FEUD is immediately
executory if the decision is against the defendant to avoid
injustice to a lawful possessor, and the court’s duty to order
the execution is practically ministerial. But if the decision is
in favor of the defendant and against the plaintiff, it is not
immediately executory.
 If the decision, if against defendant, is affirmed by the
RTC, it is also immediately executory without prejudice
to appeal.
However, under Sec. 21 of the 1991 Rule on Summary
Procedure, the decisions of the RTC in civil cases under
summary procedure appealed to it, including FEUD, are
immediately executory whether or not the judgment be
against the plaintiff or the defendant because the said rule
makes no specific reference to the defendant.
 The procedure to stay immediate execution of the
judgment, the defendant must take the following steps: 1)
perfect an appeal, 2) file a supersedeas bond to pay for
the rents, damages and costs accruing down to the time of
the judgment appealed from; and 3) deposit periodically
with the RTC, during the pendency of the appeal, the
adjudged amount of rent under the contract or if there be
no contract, the reasonable value of the use and
occupation of the premises.
o The non-compliance of the abovementioned requisites,
the appellate court could, upon motion of the plaintiff,
with notice to the defendant, and upon proof such
failure, order the immediate execution of the appealed
decision without prejudice to the appeal taking its
course.
o The deposit is a mandatory requirement, if it is not
complied with execution will issue as a matter of right.
It does not require a deposit for attorney’s fees for
execution to be stayed.
o The SC held that granting the plaintiff’s motion for
execution became a ministerial duty of the judge upon
the defendant’s failure to file a supersedeas bond, and
that the execution of the decision could not be stayed by
the mere taking of appeal. The perfection of the appeal
must be coupled with the filing of the requisite bond.
 As a rule, the judgment in an ejectment case is binding only
upon the parties properly impleaded and given an opportunity
to be heard, since an ejectment suit is an action in personam.
 However, the judgment may become binding on anyone who
has not impleaded in certain instances if he or she is a: 1)
trespasser, squatter, or agent of the defendant fraudulently
occupying the property to frustrate the judgment, 2) guest or
occupant of the premises with the permission of the defendant,
3) a transferee pendent lite, 4) sub-lessee or co-lessee, 5)
member of the family, relative or privy of the defendant.
is an action to recover possession of real property from one who illegally
withholds possession after the expiration or termination of his right to
hold possession under any contract, express or implied.
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 The cause of action does not accrue unless there is demand to vacate
and such is not complied with. If, however, the suit is based on
expiration of the lease, notice and demand are not required.
- The action must be brought up within one year from the date of last
demand, and the issue in the case must be the right to physical
possession.
 the following essential requisites must appear in the complaint:
1. the fact of lease by virtue of a contract, express or implied;
2. the expiration or termination of the possessor’s right to hold
possession;
3. withholding by the lessee of the possession of the land or building
after the expiration or termination of the right to possession;
4. demand upon lessee to pay the rental or comply with the terms of
the lease and vacate the premises;
the action must be filed within one (1) year from date of last
demand received by the defendant.
Forcible Entry, which is an action to recover possession of a
property from the defendant whose occupation thereof is illegal
from the beginning since he acquired possession by force,
intimidation, threat, strategy or stealth.
 The plaintiff is deprived of physical possession of real
property by means of force, intimidation, strategy, threats or
stealth.
 It must be alleged in the compliant 1) that the plaintiff had
prior physical possession of the property and 2) that the
defendant deprived him of such possession by means of force,
intimidation, threats, strategy, or stealth.
 Unlawfully entering the subject property, erecting a structure
thereon and excluding the lawful possessor therefrom would
necessarily imply the use of force.
 Prior physical possession is the primary consideration in a
forcible entry case. a party who can prove prior possession can
recover such possession even against the owner himself.
 Demand to vacate is not required before the filing of the
action because the occupancy is illegal from the very
beginning.
 Where FE was made clandestinely, the one-year prescriptive
period should be counted from the time private respondent
demanded that the deforciant desist from such dispossession
when the former learned thereof.
Forcible Entry, which is an action to recover possession of a
property from the defendant whose occupation thereof is illegal
from the beginning since he acquired possession by force,
intimidation, threat, strategy or stealth.
 The plaintiff is deprived of physical possession of real
property by means of force, intimidation, strategy, threats or
stealth.
 It must be alleged in the compliant 1) that the plaintiff had
prior physical possession of the property and 2) that the
defendant deprived him of such possession by means of force,
intimidation, threats, strategy, or stealth.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 Unlawfully entering the subject property, erecting a structure
thereon and excluding the lawful possessor therefrom would
necessarily imply the use of force.
 Prior physical possession is the primary consideration in a
forcible entry case. a party who can prove prior possession can
recover such possession even against the owner himself.
 Demand to vacate is not required before the filing of the
action because the occupancy is illegal from the very
beginning.
 Where FE was made clandestinely, the one-year prescriptive
period should be counted from the time private respondent
demanded that the deforciant desist from such dispossession
when the former learned thereof.
Unlawful Detainer, which is an action for recovery of
possession from the defendant whose possession of the property
was inceptively lawful by virtue of a contract (express or
implied) with the plaintiff, but became illegal when he continued
his possession despite the termination of his right thereunder.
 It an action to recover possession of real property from one
who illegally withholds possession after the expiration or
termination of his right to hold possession under any contract,
express or implied. The possession of the defendant is
originally legal but became illegal due to the expiration or
termination of the right to possess.
 The defendant illegally withholds possession from the
plaintiff after the expiration or termination of his right to
hold possession under any contract., express or implied.
 It is the demand to vacate the premises and the refusal
to do so which make unlawful the withholding of the
possession. Such refusal violates the plaintiff’s right of
possession and gives rise to an action for UD.
o The requirement for a demand implies that the mere
failure of the occupant to pay rentals or to comply with
the conditions of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure to
comply with the demand to vacate that vests upon the
lessor a cause of action.
o The proper demand should be to comply and vacate,
and not to comply or to vacate. The latter type of
demand gives rise to an action for specific performance,
not unlawful detainer.
o The demand may be in the form of a written notice
served upon the person found in the premises. The
demand may be made by posting such written notice on
the premises if no person can be found thereon.
* Demand is required only when the action is
predicated on the lessee’s failure to pay rent or
comply with the conditions of the lease, and not
when the action is to terminate the lease because of
the expiration of the term.
* Demand is not required when 1) there is a
stipulation dispending with a demand, or 2) the
39
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
ground for the suit is based on the expiration of the
lease.
Upon the expiration of the lease, the lessee is already
considered to be unlawfully withholding the property,
hence, the cause of action for unlawful detainer
immediately arises. In such a case, demand to vacate
is no longer necessary.
o The SC ruled that the demand upon tenant may be
verbal and is deemed a sufficient compliance with the
jurisdictional requirements. Since the demand is not
written, sufficient evidence must be adduced to show
that there was indeed a demand like testimonies from
disinterested and unbiased witnesses. **
o The subsequent payment did not cure his unlawful
withholding of possession of the premises. The essence
of unlawful detainer involved in the case is the failure
of the defendant to heed the demand to vacate, and not
failure to pay the rentals in arrears.
 The issue to be resolved is the right of physical or material
possession of the subject real property independent of any
claim of ownership by any of the parties involved.
 If the defendant stays in the premises by mere tolerance of the
owner, the possession becomes unlawful upon failure to
comply with the demand to vacate made by the owner. The
unlawful withholding of possession is to be counted from the
date of the demand to vacate and the possessor by tolerance
refuses to comply with such demand.
 The one year is counted from the date of the last demand
to vacate.
 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 a summary action
for ejectment is the proper remedy against him. ***
 Tacita Reconduccion (Art. 1670) arises if at the end of the
contract of lease, the lessee should continue enjoying the
property leased for 15 days with the consent of the lessor, and
no notice to the contrary has been given, it is understood that
there is an implied new lease, not for the period of the
original contract, but for the time established in Art. 1682 and
1687 of the Civil Code.
 It will set in if it is shown that: 1) the term of the original
contract of lease has expired; 2) the lessor has not given
the lessee a notice to vacate; and 3) the lessee continued
enjoying the thing leased for 15 days with the
acquiescence of the lessor. This acquiescence may be
inferred from the failure to serve a notice to quit.
 The terms of the contract which are revived in the implied
new lease are those terms which are germane to the
lessee’s right of continued enjoyment of the property
leased. No such presumption may be indulged in with
respect to special agreements which by nature are foreign
of occupancy or enjoyment inherent in a contract of lease.
Remedial Law
o An option to buy the property in the original lease is not
germane to possession of the premises and is not
deemed revived.
 This action may be filed by any person (natural or juridical),
lessor, vendor, vendee or any person against whom the
possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession by
virtue of any contract, express or implied.
 The SC ruled that contractual stipulations empowering the
lessor to repossess the leased property extrajudicially from a
lease whose lease contract has expired have been held to be
valid. The contract being the law between the parties, the
stipulations must be respected.
 The complaint for UD is sufficient if it alleges the following:
1) Initially, possession of the property by the defendant was
by contract with or by tolerance of the plaintiff;
2) Eventually, such possession became illegal upon notice
by plaintiff to defendant of the termination of the latter’s
right of possession.
3) Thereafter, the defendant remained in possession of the
property and deprived the plaintiff of the enjoyment
thereof; and,
4) Within one year from the last demand on defendant to
vacate the property, the plaintiff instituted the complaint
for ejectment.
 There must be an allegation in the complaint of how the
possession of the defendant started or continued, by virtue
of a lease or any contract, and that he held possession of
the land or building after the expiration or termination of
the right to hold possession by virtue of any contract,
express or implied.
2. Accion publiciana which is a plenary action for recovery of the
right to possess, when the dispossession has lasted more than
one year.
 It is an ordinary civil proceeding to determine the better right
of possession of realty, independently of title. If at the time of
the filing of the complaint, more than one year had elapsed
since defendant had turned plaintiff out of possession or
defendant’s possession had become illegal, the action will be,
not one for forcible entry or illegal detainer, but for accion
publiciana.
 It is an ordinary civil proceeding to determine the better right
of possession of realty independently of title. It is an ejectment
suit filed after the expiration of one year from the accrual of
the cause of action or from the unlawful withholding of
possession of the realty.
3. Accion reinvindicatoria which seeks the recovery of ownership
and includes the jus possidendi. It is an action whereby plaintiff
alleges ownership over a parcel of land and seeks recovery of its
full ownership.
 Things must be alleged and proven in an accion
reinvindicatoria: 1) the identity of the property; and 2)
plaintiff’s title to it. It is an action where the plaintiff alleges
ownership over a parcel of land and seeks recovery of its full
possession.
40
- These actions are real actions and the jurisdiction is determined by
the assessed value of the property involved.
- The jurisdiction of the court under RA 7691 over an action
involving title to or possession of land is determined by the assessed
value of the said property and not the market value.
Contempt of court has been defined as a willful disregard or
disobedience of a public authority.
- It is the disobedience to the court by acting in opposition to its
authority, justice, and dignity. It signifies not only a willful disregard
or disobedience of the court’s order, but also such conduct which
tends to bring the authority of the court and the administration of law
into disrepute or in some manner, to impede the due administration
of justice.
- It is a defiance of the authority, justice, or dignity of the court which
tends to bring the authority and administration of the law into
disrespect or to interfere with or prejudice party-litigants or their
witnesses during litigation.
- To be considered contemptuous, it was held that act must be clearly
contrary to or prohibited by the order of the court or tribunal and hat
the act which is forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable doubt or
uncertainty as to what specific act or thing is forbidden or required.
- The Court ruled that any publication, pending a suit, reflecting upon
the court, the jury, the parties, the officers of the court, the counsel
with reference to the suit, or tending to influence the decision of the
controversy, is contempt of court and is punishable.
- It has been ordained that the power to punish for contempt is
inherent in all courts and is essential for the preservation of order in
judicial proceedings of the court, and for the enforcement of
judgments, order, and mandates of the courts, and consequently, to
the due administration of justice.
 It is based on the respect for the courts which guarantees the
stability of their institution; without such guarantee, the institution
of the courts would be resting on a very shaky foundation.
- Dual function: 1) vindication of public interest by punishment of
contemptuous conduct; and 2) coercion to compel the contemnor to
do what the law requires him to uphold the power of the Court, and
also to secure the rights of the parties to a suit awarded by the Court.
 The power to punish contempt of court is exercised on the
preservative and not on the vindictive principle, and only
occasionally should a court invoke its inherent power to punish
contempt of court in order to retain that respect without which the
administration of justice must falter or fail.
1. Direct Contempt is committed in the presence of or so near the
court or judge as to obstruct or interrupt the proceedings before the
same.
- It is committed when a person is guilty of misbehavior in the
presence of or so near a court as to obstruct or interrupt the
proceedings before the same, including disrespect toward the
court, offensive personalities toward others, or refusal to be sworn
or answer as a witness, or subscribe an affidavit or deposition
when lawfully required to do so.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- It is generally summary and immediate, and no process or
evidence is necessary because the act is committed in facie curiae.
- It need not be committed in the presence of the court, if it tends to
obstruct justice or to interfere with the actions of the court in the
courtroom itself.
- Contemptuous acts committed out of the presence of the court, if
admitted by the contemnor in open court, may be punished
summarily as a direct contempt, although it is advisable to proceed
by requiring the person charged to appear and show cause why he
should not be punished when the judge is without personal
knowledge of the misbehavior and is informed of it only by a
confession of the contemnor or by testimony under oath of other
persons.
- Any of the following acts constitutes direct contempt: 1)
misbehavior in the presence of or so near the court as to obstruct
or interrupt the proceedings before the same; 2) disrespect toward
the court; 3) offensive personalities toward others; 4) refusal to be
sworn as a witness or to answer as a witness; 5) refusal to
subscribe an affidavit or deposition when lawfully required to do
so.
 The acts of a party or a counsel which constitute willful and
deliberate forum shopping.
 A pleading containing derogatory, offensive and malicious
statements is submitted in the same court or judge in which the
proceedings are pending is equivalent to misbehavior committed
in the presence of or so near a court or judge as to interrupt the
administration of justice.
- No formal proceedings are required to cite a person in direct
contempt. The Court may summarily adjudge one in direct
contempt without a hearing.
- If the act constituting direct contempt was committed against RTC
or a court of equivalent or higher rank, the penalty is a fine not
exceeding P2,000 or imprisonment not exceeding 10 days, or both.
If the act constituting direct contempt was committed against a
lower court, the penalty is a fine not exceeding P200 or
imprisonment not exceeding 1 day, or both.
If the contempt consists in the refusal or omission to do an act
which is yet within the power of the respondent to perform, he
may be imprisoned by order of the court concerned until he
performs it.
- A person adjudged in a direct contempt may not appeal therefrom.
His remedy is a petition for certiorari or prohibition directed
against the court which adjudged him in direct contempt.
2. Indirect Contempt is one not committed in the presence of the court
and it is an act done at a distance which tends to belittle, degrade,
obstruct or embarrass the court and justice. BDOE CJ
- It is a constructive contempt that which is committed out of the
presence of the court.
- It is committed by a person who commits any of the following
acts:
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1. Disobedience or resistance to a lawful writ, process, order or
judgment of a court;
2. Any abuse of or any unlawful interference with the process or
proceedings of a court not constituting direct contempt; and
3. Any improper conduct tending, directly or indirectly, to
impede, obstruct or degrade the administration of justice.
 The failure by the counsel to inform the court of the death of
his client constitutes indirect contempt since it constitutes
an improper conduct tending to impede the administration
of justice.
 The act of re-entry by a party into the land from which he
was ordered by the court to vacate may be punished for
contempt of court even after the lapse of 5 years from the
date of the execution of the judgment. **
- The procedural requisites before the accused may be punished for
indirect contempt are :1) charge in writing, 2) opportunity for the
person charged to appear and explain his conduct, and 3)
opportunity to be heard by himself or counsel.
- A charge for indirect contempt, such as disobedience to a court’s
lawful order, is initiated either motu propio by the order of or a
formal charge by the offended court, or by 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
such fact but it shall be docketed, heard, and decided separately
from the principal action. The court, however, in the exercise of its
discretion, may order the consolidation of the contempt charge
and principal action for joint hearing and decision.
CRIMINAL PROCEDURE
Criminal Procedure regulates the steps by which one who committed a
crime is to be punished.
- The system of procedure in the Philippines is accusatorial or
adversarial.
- The rules of procedure must be viewed as tools to facilitate the
attachment of justice, such that any rigid and strict application
thereof which results in technicalities tending to frustrate substantial
justice must always be avoided.
 The requirements of due process in a criminal proceeding: (CJOH)
1. That the court or tribunal trying the case is properly clothed with
judicial power to hear ad determine the matter before it;
2. That jurisdiction is lawfully acquired by it over the person of the
accused;
3. That the accused is given opportunity to be heard; and,
4. That judgment is rendered only upon lawful hearing.
 Jurisdiction over the territory; venue in criminal cases – the offense
must have been committed within the court’s territorial jurisdiction.
- This fact is to be determined by the facts alleged in the complaint or
information as regards the place where the offense charged was
committed.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- In all criminal prosecutions, the action shall be instituted and tried
in the court of the municipality or territory wherein the offense was
committed or where anyone of the essential ingredients took place.
- Venue in criminal cases is an essential element of jurisdiction.
Hence, for jurisdiction to be acquired by a court in a criminal case,
the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction
of the court.
- The following instances where the Court has jurisdiction to try
offenses not committed within its territorial jurisdiction:
1. Where the offense was committed under the circumstances
enumerate in Art. 2 of the Revised Penal Code, the offense is
cognizable before the Philippine courts even if committed
outside the territory of the Philippines. And also, Arts. 114 to
121, RPC.
2. Where the SC, pursuant to its constitutional powers orders a
change of venue or place of trial to avoid a miscarriage of
justice.
3. Where an offense is committed in a train, aircraft, or other
public or private vehicle in the course of its trips, the criminal
action need not be instituted in the actual place where the
offense was committed. It may be instituted and tried in the
court of any municipality or territory where said train, aircraft,
or vehicle passed during its trip.
4. Where the case is cognizable by the Sandiganbayan, the
jurisdiction of which depends upon the 1) nature of the offense
and 2) the position of the accused.
5. Where the offense is written defamation, the criminal action
need not necessarily be filed in the RTC of the province or city
where the alleged libelous article was printed and first
published. It may be filed in the province or city where the
offended party held office at the time of commission of the
offense if he is a public officer, or in the province or city where
he actually resided at the time of the commission of the offense
in case the offended party is a private individual.
 If the circumstance as to where the libel was printed and first
published is used by the offended party as basis for the venue
in the criminal action, the information must allege with
particularity where the defamatory article was printed and
first published, as evidenced or supported by the address of
their editorial or business offices in the case of newspaper,
magazines or serial publications. This pre-condition becomes
necessary in order to forestall any inclination to harass.
 Jurisdiction over the subject matter is the power to hear and
determine cases of the general class to which the proceedings in
question belongs. It is determined by the allegations in the complaint
or information and not by the evidence presented by the parties at the
trial.
- It is conferred by law and not by the rules. When the law confers
jurisdiction, that conferment must be clear. It cannot be presumed. It
must clearly appear from the statute or will not be held to exist.
- It is determined by the law in force at the time of the institution of
the action and not during the arraignment of the accused.
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- The statute in force at the time of the institution of the action
determines the jurisdiction of the court over the subject matter and
not at the time of its commission even if the penalty that may be
imposed at the time of its commission is less and does not fall under
the court’s jurisdiction.
- It is determined by the penalty which may be imposed upon the
accused and not the actual penalty imposed after the trial.
- It cannot be conferred upon the court by the accused, express waiver
or otherwise, since such jurisdiction is conferred by the sovereign
authority which organized the court, and is given only by law in the
manner and form prescribed by law.
- In cases cognizable by the Sandiganbayan, both 1) the nature of the
offense and 2) the position occupied by the accused are conditions
sine qua non before the Sandiganbayan can validly take cognizance
of the case.
- In complex crimes, jurisdiction is with the court having jurisdiction
to imposed the maximum and most serious penalty imposable on the
offense forming part of the complex crime.
- Principle of adherence of jurisdiction or continuing jurisdiction –
it refers that once a court has acquired jurisdiction, that jurisdiction
continues until the court has done all that it can do in the exercise of
that jurisdiction.
 The jurisdiction once vested, cannot be withdrawn or defeated by a
subsequent valid amendment of the information or it cannot be lost
by a new law amending the rules of jurisdiction.
- A special appearance before the court to challenge the jurisdiction
of the court over the person is not tantamount to estoppel or a
waiver of the objection and is not voluntary submission to the
jurisdiction of the court.
 Jurisdiction over the person of the accused is acquired upon his 1)
arrest or apprehension, with or without a warrant, or 2) his voluntary
appearance or submission to the jurisdiction of the court.
- As a general rule, seeking affirmative relief is deemed to be a
submission to the jurisdiction of the court.
 The giving or posting of a bail by the accused is tantamount to
submission of his person to the jurisdiction of the court. Even if it
is conceded that the warrant issued was void, the defendant waived
all his rights to object by appearing and giving a bond.
 Making special appearance in court to question the jurisdiction of
the court over the person of the accused is not a voluntary
appearance as when in a criminal case a motion to quash is filed
precisely on that ground.
 When an accused files a motion to quash the warrant of arrest
does not tantamount to submission to the jurisdiction of court
because it is the legality of the court process forcing the
submission of the person of the accused that is the very issue in the
said motion.
- Being in the custody of the law is not necessarily being under the
jurisdiction of the court, such as when a person arrested by virtue of
a warrant files a motion before arraignment to quash the warrant.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 One can be subject to the jurisdiction of the court over his person,
yet not be in the custody of the law, as when an accused escapes
custody after his trial has commenced.
 Injunction to restrain in criminal prosecution – as a general rule, the
Court will not issue a writ of prohibition or injunction preliminary or
final, to enjoin or restrain, criminal prosecution, except the following
exceptions:
1. When the injunction is necessary to afford adequate protection to
the constitutional rights of the accused;
2. When it is necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
3. When there is a prejudicial question which is subjudice;
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 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.
 Mandamus – the writ of mandamus is not available to control
discretion. Neither may it be issued to compel the exercise of
discretion.
- Generally, a public prosecutor is afforded a wide latitude of
discretion in the conduct of a preliminary investigation; except,
however, judicial review is allowed where the prosecutor committed
grave abuse of discretion when has exercised his discretion in an
arbitrary, capricious, whimsical or despotic manner.
Jurisdiction of Municipal Trial Court
1. Exclusive original jurisdiction over all violations of city or
municipal ordinances committed within their respective territorial
jurisdiction;
2. Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding 6 years irrespective of the amount of
fine, and regardless of other imposable or accessory penalties,
including the civil liability arising from such offenses irrespective
of kind, nature, value or amount, except those cases within the
exclusive original jurisdiction of the RTC and of the
Sandiganbayan;
- RTC has exclusive original jurisdiction over libel cases;
- Sandiganbayan has exclusive jurisdiction over direct and
indirect bribery.
3. Exclusive original jurisdiction over offenses punishable with a fine
of not more than P4000.00;
4. Exclusive original jurisdiction over offenses involving damage to
property through criminal negligence.
5. Special jurisdiction to decide on application for bail in criminal
cases in the absence of all RTC judges in a province.
6. Cases that are subject to summary procedure: (TROB)
a. Violation of traffic laws, rules and regulations;
b. Violation of rental law and BP 22;
c. Violation of municipal or city ordinances;
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d. All other criminal cases where the penalty prescribed by law
for offense charged is imprisonment not exceeding 6 months
or a fine not exceeding P1000, or both, irrespective of other
imposable penalties.
 Any admission of the accused made during the preliminary
conference must be reduced to writing and signed by the
accused and his counsel. If this requirement is not met, such
admission shall not be used against him.
 Same as with prohibited motions, pleadings and other
petitions stated above.
 Jurisdiction of the Regional Trial Court:
1. Exclusive original jurisdiction in all criminal cases (where the
penalty prescribed by law is exceeding 6 years) not within the
exclusive jurisdiction of any court, tribunal or body, except those
falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan;
2. Appellate jurisdiction over all cases decided by the MTC within its
territorial jurisdiction;
3. Special jurisdiction to handle exclusively criminal cases as
designated by the SC;
4. Jurisdiction over Money Laundering Cases – the RTC shall have
jurisdiction to try all cases on money laundering. Those committed
by public officers and private persons who are in conspiracy with
such public officers shall be under the jurisdiction of the
Sandiganbayan.
 Criminal Jurisdiction of the Sandiganbayan
- It has jurisdiction over felonies committed by public officials in
relation to their office. The Sandiganbayan has jurisdiction if 1) the
offense is committed by a public official or an employee (POE)
mentioned in Sec. 4, par. A, and the offense is committed in relation
to his office.
 The offense must be a constituent element of the crime as defined
by statute.
 There must be direct relation between the commission of the
crime and the office being held by the accused.
 An offense maybe said to have been committed in relation to the
office if the offense is intimately connected with the office of the
offender and perpetrated while he was in the performance of his
official functions even if public office is not an element of the
offense charged.
 Even if the public office is not an element of an offense but it was
shown1) that the offense was committed while in performance of
his official duty and 2) that the offense could not have been
committed had he not held his office.
- Those that are classified as Grade 26 and below may still fall within
the jurisdiction of the Sandiganbayan provided that they hold
position thus enumerated by the same law.
 It is not only the salary grade that determines the jurisdiction of
the Sandiganbayan.
 The compensation is not an essential element of a public office and
is merely incidental to the public office.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- there are two classes of public office-related crimes under
subparagraph (b) of Section 4, RA 8249:
1) those crimes or felonies in which the A) public office is a
constituent element as defined by statute and B) the relation
between the crime and the offense committed cannot exist
without the office;
2) offenses or felonies which are intimately connected with public
office and are perpetrated by the POE while in the performance
of his official functions, through improper or irregular conduct.
 Those money laundering cases committed by public officers
and private persons who are in conspiracy with such public
officers shall be under the jurisdiction of the Sandiganbayan.
Institution of criminal action
- A preliminary investigation is required to be conducted for
offenses where the penalty prescribed by law is at least 4 years, 2
months and 1 day.
 A preliminary investigation is essentially a determination
whether an offense has been committed and whether there is
probable cause for the accused to have committed an offense.
- The institution of the criminal action shall interrupt the period of
prescription of the offense charged, unless otherwise provided in
special laws, with the proper officer.
 The prescription begins from the commission of the crime or
from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
 The filing of the affidavit of complaint for preliminary
investigation interrupted the running of the prescriptive period.
 It is well-settled rule that the filing of the complaint with the
fiscal’s office suspends the running of the prescriptive period. The
prescriptive period remains tolled from the time the complaint
was filed with the Office of the Prosecutor until such time that
respondent is either convicted or acquitted by the proper court.
 The above rule does not apply to Rules on Summary
Procedure, except BP 22 cases. **
- A criminal action is prosecuted under the direction and control of
the public prosecutor. It is founded on the theory that a crime is a
breach of the security and peace of the people at large, an outrage
against the very sovereignty of the state.
 The right to prosecute vests the prosecutor with a wide range of
discretion, the discretion of whether, what and whom to charge,
the exercise of which depends on factors which are best
appreciated by prosecutors.
 The intervention of a private prosecutor is only allowed where the
civil action for the recovery of the civil liability is instituted in the
criminal action. However, the private prosecutor cannot
intervene if the offended party 1) waives the civil action, 2)
reserves the right to institute it separately or 3) institutes the civil
action prior to the criminal action.
 A private prosecutor may prosecute the criminal action up to the
end of the trial even in the absence of the public prosecutor if he is
authorized to do so in writing given either by the Chief of the
44
Prosecution Office or the Regional State Prosecutor and it must be
approved by the court. Likewise, it based on any of the following
reasons: 1) that the public prosecutor has a heavy work schedule,
or 2) there is lack of public prosecutor.
 The public prosecutor, in the exercise of his functions, has the
power and discretion to: 1) determine whether a prima facie case
exists, decide which of the conflicting testimonies should be
believed free from the interference or control of the offended
party, and 3) subject only to the right against self-incrimination,
determine which witnesses to present in court.
 In criminal cases in the MTC, when the prosecutor is not available,
the action may be prosecuted by 1) the offended party, 2) any
peace officer, or 3) public officer charged with the enforcement of
the law violated.
- Private offended parties have limited roles in criminal cases. They
are only witnesses for the prosecution. Thus, a private offended party
may not appeal the dismissal of a criminal case or the acquittal of an
accused because the aggrieved party is the People of the Philippines.
 The private offended party (or accused) may appeal the civil
aspect of the case and may file a special civil action for
certiorari questioning the decision/action of the court on
jurisdictional grounds.
 The public prosecutor generally has no interest in appealing the
civil aspect of a decision acquitting the accused.
- The information enables the accused to suitable prepare for his
defense, since he is presumed to have no independent knowledge of
the facts that constitute the offense.
 A valid information confers jurisdiction on the court over the
person the accused and the subject matter of the accusation.
 The nature and character of the crime charged against the
accused are determined not by the designation of the specific
crime, but by the facts alleged in the complaint or information**
 the acts or omissions complained must be alleged in the
complaint or information in order 1) to inform an accused of
the nature of the accusation against him so as to enable him to
suitably prepare for his defense and 2) he is presumed to have
no independent knowledge of the facts that constitute the
offense.
 The absence of an oath in the complaint does not necessarily
render it invalid. Want of oath is a mere defect of form, which
does not affect the substantial rights of the defendant on the merits.
 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 participated in the trial.
 Objections relating to the form of the complaint or information
cannot be made for the first time on appeal. The accused-appellant
should have moved before arraignment either for a bill of
particulars or for the quashal of the information.
 The failure to designate the offense by the statute or to mention the
specific provision penalizing the act or an erroneous specification
of the law violated does not vitiate the information if the facts
alleged clearly recite the facts constituting the crime charged.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 There is nothing in the Rules of Court which specifically
requires that the information must state the particular law
under which the accused is charged in order for it to be
considered sufficient and valid.
 The character of the crime is not determined by the caption or
preamble of the information nor by the specification of the
provision of law alleged to have been violated, they being
conclusion of law.
 Every information must state the qualifying and aggravating
circumstances attending the commission of the crime for them to
be considered in the imposition of the penalty. Otherwise stated,
the accused will not be convicted of the offense proved during the
trial if it was not properly alleged in the information.
 It is not the use of words qualifying or qualified by that raises
a crime to a higher category, but the specific allegation of an
attendant circumstance which adds the essential element
raising the crime to a higher category and in order to justify
the imposition of the graver penalty.
 No matter how conclusive and convincing the evidence of
guilt may be, an accused cannot be convicted of any offense
unless it is charged in the information on which he is tried or
is necessarily included therein.
 As a rule, a complaint or information must charge only one
offense. More than one offense may be charged when the law
prescribes a single punishment for various offense.
1. Failure of the accused to interpose an objection on the
ground of duplicity of the offense charged in the information
constitutes waiver.
- Amendment of the information or complaint before plea; no need for
leave:
 if the complaint is made before the accused enters his plea, the
complaint or information may be amended in form or in
substance, without the need for leave of court.
2. Leave of court is required even if made before plea if:
a. The amendment downgrades the nature of the offense
charged;
b. The amendment excludes any accused from the complaint
or information;
c. The Prosecutor is required to file a motion with notice to
the offended party;
d. The court is mandated by the rule to state its reasons in
resolving the motion of the prosecutor and to furnish all
parties, especially the offended party of copies pf its
order.
 if the amendment is made after the plea of the accused and
during the trial, any formal amendment may only be made
under two conditions, namely: 1) leave of court must be
secured; and 2) the amendment does not cause prejudice to the
rights of the accused.
 The distinctions between amendment and substitution of the
information are as follows:
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1. As to the changes. Amendment may involve either formal
or substantial changes, while substitution necessarily
involves a substantial change from the original charge;
2. As to the requirement of leave of court. Amendment before
plea has been entered can be effected without leave of court,
but substantial must be with leave of court as the
information has to be dismissed.
3. As to the requirement of preliminary investigation. Where
the amendment is only as to form, there is no need for
another preliminary investigation; in substitution of
formation, another preliminary investigation is entailed and
the accused has to plead anew to the new information.
- the dismissal made by the RTC of the criminal case can only be
appealed by the OSG to the CA and the SC.
Prosecution of civil action
- When a criminal action is instituted, the civil action for the recovery of
the civil liability arising from the offense charged shall be deemed
instituted with the criminal action.
 Every person criminally liable for a felony is also civilly liable
except in the instances when no actual damage results from an
offense.
 A separate civil action would only prove to be costly, burdensome
and time consuming for both parties and further delay the final
disposition of the case. Thus, multiplicity of suits must be avoided.
 The rule on implied institutions of the civil action does not apply
before the filing of the criminal action or information.
 The civil actions referred to in Arts. 32, 33, 34 and 2176 of the Civil
Code shall remain separate, distinct and independent of any
criminal prosecution which may be based on the same act.
 A criminal case based on defamation, fraud or physical injuries
gives rise to an independent civil action arising not from the crime
charged but from Art. 33 even if caused by the very same defamatory
or fraudulent act.
- A court cannot entertain counterclaims, cross-claims and third party
complaints in the criminal action. A court trying a criminal case is
limited to determining the guilt of the accused, and if proper, to
determine his liability.
- if the accused dies after arraignment and during the pendency of the
criminal action, the civil liability of the accused arising from the crime
is extinguished but the independent civil actions and civil liabilities
arising from other sources of obligation may be continued against the
estate or legal representative of the accused after proper substitution or
against the estate as the case may be.
 Novation is not one of the grounds prescribed by the RPC for the
extinguishment of criminal liability.
 The extinction of criminal action does not carry with it the extinction
of the civil action.
 The payment of civil liability does not extinguish criminal liability.
- The elements of a prejudicial question are: 1) a previously instituted
civil action involves an issue similar or intimately related to the issue
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
raised in the subsequent criminal action, and 2) the resolution of such
issue determines whether or not the criminal action may proceed.
 Prejudicial question may not be invoked in any of the following
situations: 1) both cases are criminal, 2) both civil, 3) both cases are
administrative, 4) one case is administrative and the other criminal.
 The principle of a prejudicial question will not arise if the criminal
case was instituted prior to the civil case.
 The issued that leads to a prejudicial question is one that arises in the
civil case and not in the criminal case. It is the issue in the civil case
which needs to be resolved first before it is determined whether or
not the criminal case should proceed or whether or not there should
be, in the criminal case, a judgment of acquittal or conviction.
 It is critical to show that the issue in the civil case is determinative
of the issue in the criminal case.
 The proper remedy in case there is a pendency of a prejudicial
question in a civil action is to file a petition for the suspension of
the criminal action. Thus, there is no motu propio suspension of the
criminal action.
3. It is not necessary that the criminal action be instituted in court,
it is sufficient that the case be in the stage of preliminary
investigation as long as there has already been a previously
instituted civil case.
 A prejudicial question accords a civil case a preferential treatment
and constitutes an exception to the general rule that the civil action
shall be suspended when the criminal action is instituted.
Venue of criminal actions
1. In cases of written defamation, the complaint shall be instituted in
the RTC of the province or city where:
a) the libelous article was printed or first published in the place
of the filing of the information;
b) if the offended party is a private individual, the place where he
actually resided at the time of the commission of the offense;
c) if he is POE, the place where he held office at the time of the
commission of the offense.
2. In cases where the offense is committed in train, aircraft or
vehicle:
The criminal action shall be instituted and tried in the court of any
municipality or territory where such vehicles passed during its
trip, including the place of its departure and arrival.
3. In cases where the offense is committed on board a vessel:
The criminal action shall be instituted and tried in 1) the court of
the first port of entry, or 2) of the municipality or territory where
the vessel passed during its voyage.
Preliminary Investigation
- Its purpose is not to declare the respondent guilty beyond
reasonable doubt but only to determine first, whether or not a
crime has been committed and second, whether or not the
respondent is probably guilty of the crime. It is merely
inquisitorial.
46
 PI is required to be conducted before the filing of a complaint or
information for an offense where the penalty prescribed by law
is at least 4 yrs., 2 months and 1 day without regard to the fine.
 Its ultimate purpose of PI is 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,
expenses and anxiety of a public trial, and also to protect the
State from useless and expensive prosecutions.
 PI is executive in character and it does not contemplate a judicial
function. It does not place the person against whom it is taken in
jeopardy.
- The dismissal of a case during its PI stage does not constitute
double jeopardy since a PI is not part of the trial and is not
the occasion for the full and exhaustive display of the parties’
evidence. **
 Hearsay evidence is admissible in determining probable cause
in a preliminary investigation because such investigation is
merely preliminary, and does not finally adjudicate rights and
obligations of parties.
 A clarificatory hearing is not indispensable during PI.
However, it is within the discretion of the investigation officer
whether to set the case for further hearings to clarify some
matters.
- The record of the PI shall not form part of the record of the cases,
unless on the initiative of the Court or on motions of any party,
may order the production of the record or any of its part when the
court considers it necessary in the resolution of the case or any
incidental therein or when it is introduced as an evidence in the
case by the requesting party.
- it is a statutory character and essentially a judicial inquiry and
that in a PI, the prosecutor or investigating officer acts as a quasi-
judicial officer.
 The following persons are authorized to conduct PI: PCA-NaReO
1. Provincial/City Prosecutors and their Assistant Prosecutors;
2. National and Regional State Prosecutors and
3. Other authorized officers (Comelec / Ombudsman and his deputies
/ special designated by the Sec. of Justice)
- The COMELEC, through its duly authorized legal officers, has
the exclusive power to conduct the preliminary investigation of
all election offenses punishable under the Omnibus Election
Code and to prosecute the same. Under Sec. 43, RA 9369, the
power of the COMELEC to investigate and prosecute election
offenses is now concurrent with the other prosecuting arms of
the government.
- The Office of the Ombudsman has the authority to investigate
and prosecute on its own or on complaint by any person, any act
or omission of any POE, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction,
it may take over, at any stage, from any investigatory agency of
the government, the investigation of such cases.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

 The absence in the information of a certification as to the 3. The prescription of the offense is not due to lapse
holding of a PI, the information is nonetheless considered valid within 6 months from notice of the questioned
for the reason that such certification is no an essential part of the resolutions; and,
information itself and its absence cannot vitiate it as such. What 4. The appeal or petition for review is filed within 30
is not allowed is the filing of the information without a PI having days from notice.
been previously conducted.
- The aggrieved party may appeal the decision of the
Office of the President by verified petition for review
 The following authorized persons who are authorized to approve an
under Rule 43, ROC to the CA.
information or complaint: PCCOD
1. Provincial/City Prosecutors
 The distinctions between preliminary investigation and preliminary
2. Chief State Prosecutors
examination (preliminary inquiry) are the following:
3. Ombudsman or his Deputies
1. As to the INVESTIGATING OFFICER who conduct the
- The rule that no complaint or information may be filed or
preliminary proceeding. A preliminary investigation is conducted
dismissed by an investigating prosecutor without the prior
by the prosecutor whether the alleged offender should be held for
written authority or approval of PCCOD.
trial or if the offender is to be released. A preliminary examination
is conducted by the judge to determine probable cause for the
- The aggrieved party may file a MR within 15 days from receipt
issuance of a warrant of arrest. This is a judicial function.
of the assailed resolution. If the MR is denied, the aggrieved
party may appeal by petition for review, within 15 days from
- Probable cause, in general, has been defined as the existence of
the denial of the MR, with the Office of the Secretary of
such facts and circumstances as would lead a person of ordinary
Justice.
caution and prudence to entertain an honest and strong suspicion
that the person charged is guilty of the crime subject of the
- the SOJ may reverse, affirm or modify (RAM) the appealed
investigation.
resolution. He may also dismiss the petition for review motu
propio or upon motion of any of the following grounds:
 it need not be based on clear and convincing evidence of guilt,
as the investigating officer acts upon reasonable beliefs.
1. the petition for review was filed beyond the period
prescribed;
 It implies only probability of guilt and requires more than bare
2. the prescribed procedure and requirements provided in
suspicion but less than evidence which would justify a
Department Order no. 70 were not complied with;
conviction.
3. there is no showing of any reversible error or that the
accused was already arraigned when the appeal was taken;
- Probable cause, for purposes of filing a criminal information,
4. the appealed resolution is interlocutory in nature, except
has been defined as such facts as sufficient to engender a well-
when it suspended the proceedings based on the alleged
founded belief that a crime has been committed and that
existence of a prejudicial question; and,
respondents are probably guilty thereof.
5. the offense has already prescribed.
2. As to the NATURE of the proceeding. Preliminary investigation is
 The DOJ is not a quasi-judicial agency exercising a quasi-
executive in nature and it is part of the prosecutor’s job.
judicial function when it reviews the findings of a public
Preliminary examination is judicial in nature and is lodged with the
prosecutor regarding the presence of a probable cause and
judge.
that its findings are not reviewable by the CA in a petition
for review under Rule 43, ROC.
- The judicial determination of probable cause is one made by the
judge to ascertain whether a warrant of arrest should be issued
 The decision of the SOJ may be brought / reviewed to the
against the accused. There is a necessity for placing the accused
CA by petition for certiorari under Rule 65 if it is tainted
under the custody in order not to frustrate the ends of justice.
with grave abuse of discretion amounting to lack or
excess of jurisdiction. The same may be brought to the SC
- Probable cause to warrant an arrest which is made by the judge
by way of a petition for review on certiorari under Rule
refers to facts and circumstances that would lead a reasonably
45.
discreet and prudent man to believe that an offense has been
committed by the person to be arrested.
 Memorandum Circular No. 58 provides that appeals
from or petition for review of decisions/orders/
 If a person is arrested lawfully without a warrant involving an offense
resolutions of the SOJ on PI of criminal cases are
which requires a PI, an information or complaint may be filed against
entertained by the Office of the President under the
him without need for a PI, provided an inquest proceeding was
following conditions which have to be established as
conducted to the accused.
jurisdictional facts:
- Inquest proceedings are proper only when the accused has been
1. The offense involved is punishable by reclusion
lawfully arrested and detained without a warrant involving even also
perpetua to death;
an offense which requires a PI. It is a summary investigation and
2. New and material issues are raised which were not
which does not follow the procedures set forth in Sec. 3, Rule 112,
previously presented before the Department of Justice
ROC.
and were not hence, ruled upon;

47
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 Where arrest not properly effected – the inquest officer may resort
to the following procedure:
1. Recommend the release of the person arrested;
2. Noted down the disposition on the referral document;
3. Prepare a brief memorandum indicating the reasons for the
action taken; and,
4. Forward the same, together with the record of the case, to the
City or Provincial Prosecutor for appropriate action.
- In the absence or unavailability of an inquest prosecutor, the
complaint may be filed directly with the proper court by the
offended party or a peace officer on the basis of the affidavit of the
offended party or arresting officer.
 When a person is lawfully arrest without a warrant, he may still
avail PI within 5 days from the time he learns (knowledge) of the
filing of the complaint or information and provided he must sign a
waiver of the provisions of Art. 125, RPC (12/18/36 hrs.) by filing
a motion to conduct a PI.
 Any waiver by the person arrested or detained or under custodial
investigation shall be in 1) writing and 2) signed by such person in
the presence of his counsel otherwise such waiver shall be null and
void.
 An accused who wants to question the regularity or absence of a
PI must do so before he enters his plea. The court shall resolve the
matter as early as practicable but not later than the start of the trial.
Failure to invoke the right before entering a plea will amount to a
waiver.
 As a rule, bail must be applied for and issued by the court in the
province, city or municipality where the person arrested is held.
 The SC held that while a person lawfully arrested and detained and
not yet formally charged can apply for bail, the application must
be filed in the province, city or municipality where the person
arrested is held.
 In the absence of a PI and the accused before entering his plea
calls the attention of the court to his deprivation of the required PI,
the court should not dismiss the information. It should remand the
case to the prosecutor so that the investigation may be conducted.
1. The absence of PI does not affect the court’s jurisdiction over
the case nor does it impair the validity of the information or
otherwise, render it defective.
2. It is not a ground for a motion to quash as it is not provided in
Sec. 3, Rule 117.
 The options available to the RTC upon the filing of an information
before it by the public prosecutor or any prosecutor of the SOJ, are the
following: (DEW)
1. Dismiss the case if the evidence on record clearly failed to
establish probable cause;
2. In case of doubt as to the existence of probable cause, order the
prosecutor to present additional evidence within 5 days from
notice, the issue to be resolved by the within 30 days from the
filing of the information.
3. If the RTC finds probable cause, issue warrant of arrest.
- In Crespo v. Mogul, once a criminal complaint or information is filed
in court, any disposition of the case or dismissal or acquittal or
48
conviction of the accused rests within the exclusive jurisdiction,
competence and discretion of the trial court.
 Once a criminal action has been instituted by the filing of the
Information with the court, the later acquires jurisdiction and has
the authority to determine whether to dismiss the case or convict
or acquit the accused. (DCA)
 The trial court should not rely solely and merely on the findings of
the public prosecutor or the Secretary of Justice that no crime was
committed. The trial court should not rely on the resolution of the
prosecuting arm of the government, but is required to make an
independent assessment of the merits of such position.
Arrest – see Sec. 2, Art. 3, 1987 Constitution
- Probable cause in connection with the issuance of a warrant of
arrest, assumes the existence of facts that would lead a reasonably
discreet and prudent man to believe that a crime has been committed
and that it was likely committed by the person sought to be arrested.
- the constitutional provision does not mandatorily require the judge to
personally examine the complainant and her witnesses. Instead, 1)
he may opt to personally evaluate the report and supporting
documents submitted by the prosecutor if it is supported by
substantial evidence or 2) he may disregard the prosecutor’s report
and require the submission of supporting affidavits of witnesses.
- Under recent jurisprudence, the judge shall: 1) personally evaluate
the report and the supporting document submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or 2) if on the basis there he finds no
probable cause, he may disregard the fiscal’s report and require the
submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause.
 The judge may opt to personally evaluate the report and
supporting documents submitted by the regarding the existence of
probable cause and on the basis thereof issue a warrant of arrest.
 There is no requirement of a prior order by the judge finding
probable cause.  The SC has held that the judge may rely upon the
resolution of the investigating prosecutor provided that he
personally evaluates the same and the affidavits and supporting
documents.
- Before issuing warrants of arrest, judges merely determine the
probability, not the certainty, of guilt of an accused. In doing so,
judges do not conduct a de novo hearing to determine the existence
of probable cause.
 Method of making arrest by virtue of a warrant, the officer shall 1)
inform the person to be arrested of the cause of his arrest, and inform
him of the fact that a warrant has been issued for his arrest.
- Method of arrest without a warrant:
1. Arrest by an officer – when making an arrest without a warrant,
the officer shall inform the person to be arrested of his 1)
authority and 2) the cause of his arrest. The information need
not be given if any of circumstances under Sec. 5, Rule 113 is
present.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
2. Arrest by a private person – when a private person makes an
arrest, he shall inform the person to be arrested of his intention
to arrest him and the cause of his arrest.
3. In flagrante and hot pursuit exceptions, the person arrested
without a warrant shall be delivered to nearest police station or
jail.
 The right to break into a building or an enclosure specifically
refers to an officer and not to private person.
 An arrest may be made on any day and at any time of the day
or night.
 A warrantless arrest may be made not only by a peace officer but also
by a private person through citizen’s arrest. See Sec. 5, Rule 113,
ROC.
- In flagrante delicto means caught in the act of committing a crime.
 Any person may immediately pursue or retake him without a
warrant at any time and in any place within the Philippines.
 An accused released on bail may be re-arrested without a warrant
if he attempts to depart from the Philippines without permission of
the court where the case is pending.
 Suspicion and reliable information are not justifications for a
warrantless arrest. Anything illegally seized not incident to a
lawful arrest may become fruit of a poisonous tree and may be
held inadmissible in evidence.
 Reliable information alone, absent any overt act indicative of a
felonious enterprise in the presence and within the view of the
arresting offices, is not sufficient to constitute probable cause that
would justify an in flagrante delicto arrest.
 The SC held that a warrantless arrest cannot be justified where no
crime is being committed at the time of the arrest because no crime
may be inferred from the fact that the eyes of the person arrested
were moving fast and looking at every person passing by.
 “On the spot” information may justify valid warrantless arrest and
a valid warrantless search.
- In hot pursuit exception, a warrantless arrest may be effected if the
following requirements are present: 1) an offense has just been
committed; and 2) the person making the arrest has personal
knowledge of facts indicating that the person to be arrested has
committed it.
 Where the arrest took place a day after the commission of the
crime, it cannot be said that an offense has just been committed.
Hence, the warrantless arrest was not lawful.
 A warrantless arrest made, one-year after the offense was
allegedly committed is an illegal arrest.
 Personal knowledge of facts must be based on probable cause,
which means an actual belief or reasonable grounds of suspicion.
 The SC ruled that the petitioner’s act of trying to get away,
coupled with the incident report which they investigated, is enough
to raise a reasonable suspicion on the part of the police authorities
to the existence of a probable cause.
49
- Other cases of lawful warrantless arrests: (BAD)
1. Bondsman’s arrest
2. Arrestee escapes;
3. Depart from the Philippines.
 Rights of a person arrested (RA 7438) ASIV
1. The right to be assisted by counsel at all times;
2. The right to remain silent;
3. The right to be informed of the above rights; and,
4. The right to be visited by the immediate members of his family, by
his counsel, or by any NGO, national or international.
- The lawyer-counsel must be who is independent and competent. The
lawyer shall be allowed to confer at all times with the person
arrested, detained or under custodial investigation.
- In the absence of a lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with Art. 125, RPC.
- Custodial investigation shall include the practice of issuing an
invitation to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to the
liability of the inviting officer for any violation of law.
- A waiver of an illegal warrantless arrest does not also mean a waiver
of the inadmissibility of evidence seized during an illegal warrantless
arrest. ***
- an application for an admission to bail shall not bar the accused
from challenging the validity of his arrest or the legality of the
warrant issued.
- a warrantless arrest is not a jurisdictional defect and any objection to
it is waived when the person arrested submits to arraignment without
any objection. If the appellants are questioning their arrest for the
first time on appeal, they are, therefore, deemed to have waived their
right to the constitutional protection against illegal arrests and
searches.
 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.
Searches and Seizures
 Nature of a Search warrant:
- Search warrant is 1) an order in writing issued in the name of the
People of the Philippines, 2) signed by the judge and 3) directed to a
peace officer, commanding him to search for personal property
described therein and 4) bring it before the court. (OJPB)
- It is not a criminal action nor does it represent a commencement of a
criminal prosecution even if it is entitled like a criminal action.
- it is not a proceeding against a person but is solely for the discovery
and to get possession of personal property. It is a special and peculiar
remedy and made necessary because of public necessity.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- an application for a search warrant is heard ex parte. It is neither a
trial nor part of the trial.
- it is a police weapon, issued under the police power.
- It is not a sweeping authority empowering a raiding party to
undertake a fishing expedition to confiscate any and all kinds of
evidence or articles relating to a crime. The objects taken which were
not specified in the search warrant should be restored to appellant.
- Inherent in the court’s power to issue search warrants is the power
to quash warrants already issued.
 The following are the requisites for a search warrant under the Rules of
Court: (PDES)
1. There must be probable cause in connection with one specific
offense;
2. The presence of probable cause is to be determined by the judge
personally;
3. The determination by the judge must be made after an
examination under oath or affirmation of the complainant and the
witnesses he may produce;
4. The warrant must specifically describe the place to be searched
and the things to be seized which may be anywhere in the
Philippines.
- The absence of any of the requisites will cause its downright
nullification.
- In determination of probable cause, the court must resolve
whether or not an offense exists to justify the issuance of the
search warrant.
- The probable cause must also be shown to be within the personal
knowledge of the complainant or the witnesses he may produce
and not based on mere hearsay. In determining its existence, the
examining magistrate must make a probing and not merely
routine or pro forma examination of the complainant and the
witnesses. Reliable information is insufficient.
- The oath required must refer to the truth of the facts within the
personal knowledge of the applicant or his witnesses, because
the purpose thereof is to convince the magistrate.
- The probable cause to arrest does not necessarily involve a
probable cause to search and vice versa.
- As to the duration, a search warrant shall be valid for 10 days
from its date of issuance. Thereafter, it shall be void.
 As a rule, an application for a search warrant shall be filed before any
court within whose territorial jurisdiction a crime was committed.
- There are exceptions to the above general rule:
1. The application may be made before any court within the
judicial region where the crime was committed if the place of
the commission of the crime is known.
2. The application may also be filed before any court within the
judicial region where the warrant shall be enforced.
 In both exceptions, filing in such courts requires compelling
reasons stated in the application.
50
3. The application shall also be made only in the court where the
criminal action is pending, if the criminal action has already
been filed.
 Arrest may be distinguished from search and seizure as follows:
(STEP)
1. As to the subject of seizure. An arrest is concerned with the
seizure of a person as it involves the taking of a person in custody.
A search may follow an arrest but the search must be incident to a
lawful arrest.
2. As to the time when a warrant may be served. An arrest may be
made on any day and at any time of the day or night. A search
warrant is generally served in the day time, unless there be a
direction in the warrant that it may be served at any time of the day
or night.
3. As to the examination to conducted. In arrest warrant, the judge is
not required to make a personal examination before issuing a
warrant. In search warrant, the judge must personally examine the
complainant and the witnesses he may produce in determining
probable cause before a search warrant may be issued.
4. As to the probable cause of seizure. In arrest, the judge
determines whether there is sufficient ground whether a crime has
been committed and a particular person committed it. In search, it
requires facts to show that a particular things connected with a
crime are found in a specific location.
 Particular description of place or person in a search warrant – the
prevailing doctrine is that the warrant must sufficiently describe the
premises to be searched so that the officer executing the warrant may,
with reasonable effort, ascertain and identify the place intended.
- Description of the place to be searched is sufficient if the officer with
the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community.
- The person to be searched must be described with reasonable
particularity. He can be identified by a name which others use in
calling him, even if it is not his real name.
- The provision requiring a particular description of the items or
things to be seized is designed to 1) prevent general searches and 2)
avoid seizure of a thing not described in the warrant and also so
nothing is to be left to the discretion of the officer executing the
warrant.
 The requirement of particularity is said to be satisfied if the
warrant imposes a meaningful restriction upon the objects to be
seized. It is one that leaves nothing to the discretion of the officer
who conducts the search.
 The purpose of this requirement is 1) to limit the things to be
seized to those described in the search warrant and 2) to leave the
officers of the law no discretion regarding what articles they shall
seize so abuses may not be committed.
 The law does not require that the things to be seized must be
described in precise and minute details as to leave no room for
doubt on the part of the searching authorities.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 The seizing officer cannot seize property not specified in the
warrant.
 The lawful search of the premises particularly described extends to
the areas in which the object may be found.
 It has been held that when a search warrant authorizes the search
of a place particularly described, a justified search would include
all the things attached to or annexed to the land if the place
described be land.
 The law 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 and possession of the property to be seized.
 As to the manner of making search.
- Knock and announce rule - being armed with a warrant does not
justify outright entry or barging into the place to be searched. An
officer should knock, introduce himself and announce his purpose
and only exceptional cases may he forego the same like when his
safety is in danger of being jeopardized or when evidence is about to
be destroyed.
- The officer may break open any other or inner door or window of a
house or any part of a house or anything therein provided the
following requisites are complied with:
1. The officer gives notice of his purpose and authority;
2. He is refused admittance to the place of directed search despite
the notice; and,
3. The purpose of breaking is to execute the warrant or to liberate
himself or any person lawfully aiding him when unlawfully
detained therein
- The delivery of the seized items to the judge who issued the search
warrant to be kept in custodia legisin anticipation of the criminal
proceedings against petitioner.
 Motion to quash a search warrant and / or suppress evidence obtained
by virtue of the warrant may be filed and acted upon only by the court
when the action has been instituted.
- If no criminal action has been instituted, the motion may be filed in
and resolved by the court that issued the search warrant.
- A special civil action for certiorari is a proper recourse available to
an aggrieved party in assailing the quashal of the search warrant.
- An unwarranted reversal of an earlier finding of probable cause
constituted grave abuse of discretion.
 Exceptions to the search warrant requirements:
1. Warrantless search incidental to a lawful arrest
- There must be a lawful arrest either by virtue of a warrant or
warrantless arrest under Sec. 5, Rule 113 before a search may be
conducted.
- After a lawful arrest is made, the arresting officer is permitted to
conduct a search on the accused:
51
1. for dangerous weapon which may the latter use in order to
resist arrest or effect his escape;
2. for anything which may have been used in the commission
of an offense in order to prevent its concealment or
destruction;
3. for anything which constitute proof in the commission of an
offense.
- A valid arrest allows the seizure of evidence or dangerous
weapons either 1) on the person of the one arrested or 2) within
the area of his immediate control – the area from within which
he might gain possession of a weapon or destruction evidence.
**
 Extensive searches in other areas not within the immediate
possession and control of the arrestee is unreasonable and
inadmissible.
 The purpose of the exception is: 1) to protect the arresting
officer from being harmed by the person arrested, who might
be armed with concealed weapon, and 2) to prevent the latter
from destroying evidence within reach.
- In Marron v. US, where the officers had made a valid search and
arrest in the premises, they had a right without a warrant to
contemporaneously search the place for evidence of the
criminal enterprise. In Agnello v. US, however, the right does
not extend to other places such as a house several blocks away
from the place where an arrest was made. **
- The SC held that the articles seized from the accused during his
arrest were valid under the doctrine of search made incidental
to a lawful arrest. The search may extend beyond the person of
the person arrested to include the premises or surroundings
under his immediate control.
- Buy-bust operation is a form of entrapment legally employed
by peace officers as an effective way of apprehending drug
dealers in the act of committing an offense.
 It does not need search warrant or warrant of arrest because
the accused is caught in flagrante delicto.
 Under the subjective view of entrapment, the focus is on the
intent or predisposition of the accused to commit a crime.
Under the objective view, on the other hand, the primary
focus is on the particular conduct of law enforcement officials
or their agents and the accused’s predisposition becomes
irrelevant.
 No rule requires a prior surveillance of the suspected offender
before conducting a buy-bust operation and the absence of
such surveillance or prior test buy does not affect the legality
of the buy-bust operation.
 The recording of marked money used in a buy-bust operation
is not one of the elements for the prosecution of sale of illegal
drugs. Thus, non-recording thereof in an official record will
not lead to an acquittal of the accused as long as the sale of the
prohibited drugs is proven.
2. Stop and frisk or terry searches – it is allowed if 1) the officer has
reasonable belief based on a genuine reason and 2) in the light of
the officer’s experience and the surrounding circumstances, that a
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
crime has either taken place or is about to take place and the
person to be stopped is armed and dangerous.
- It serves a dual purpose: 1) the general interest of effective crime
prevention and detection; and 2) the safety of 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 be used
against him.
- It is limited to the person’s outer clothing, and should be
grounded upon a genuine reason to warrant the belief that the
person detained has weapons concealed about him.
- It is not a full arrest and it does not require probable cause. It has
limited scope.
3. Seizure of evidence in plain view (IDAS)
- the elements of the plain view exception are: 1) a prior valid
intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties or
he is in a position from which he can view a particular area; 2)
the evidence was inadvertently discovered by the police who
have the right to be where they are; 3) the evidence must be
immediately apparent; 4) plain view justified mere seizure of
evidence without further search.
- Under the plain view doctrine, objects falling in the plain view
of an officer who has a right to be in position to have that view
are subject to seizure and may be presented as evidence.
- The rule allows a law enforcement officer to make a seizure
without obtaining a search warrant if evidence of criminal
activity or the product of a crime can be seen without entry or
search.
- The requirement of inadvertence means that the officer must
not have known in advance of the location of the evidence and
discovery is not anticipated.
- The plain view doctrine is not an exception to the warrant
requirement but merely serves to supplement the prior
justification.
4. Search by moving vehicle – it is justified on the ground that it is
not practicable to secure a warrant because the vehicle can be
quickly move out of the locality or jurisdiction in which the
warrant must be sought.
- When a vehicle is flagged down and subjected to an extensive
search, such warrantless search is valid as long as the officers
conducting the search have reasonable or probable cause to
believe prior to the search that they would find the
instrumentality or evidence pertaining to a crime, in the vehicle
to be searched.
- It is required that probable cause exist in order to justify the
warrantless search of a vehicle.
- Checkpoints may be allowed and installed by the government,
where the lives and safety of the people are in grave peril, as
long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle is
limited to a visual search.
52
 Searches conducted in checkpoints are valid for as long as
they are warranted by exigencies of public order and
conducted in a way least intrusive to motorists.
5. Consented warrantless search – the consent to a warrantless search
must be voluntary.
- To be valid, there must be a waiver and it must appear that 1) the
right exists; 2) the person involved had knowledge, either
constructive or actual, of the existence of such right; and 3) the
said person had an actual intention to relinquish the right.
- Evidence obtained by virtue of an illegal warrantless search is
inadmissible.
6. Custom search
7. Exigent and emergency circumstances
8. Search of vessels and aircraft
9. Inspection of building and other premises for enforcement of fire,
sanitary and building regulations.
 Under A.M. No. 99-20-09 SC, the “heads” of the agencies mentioned
in filing a search warrant in Manila and Quezon City, the court held
that nothing in the rule prohibits such heads from delegating the
ministerial duty of endorsing the application for search warrants to
their assistant heads.
Bail is the security given for the release of a person in the custody of
law, furnished by him or a bondsman, to guarantee his appearance
before any court as required under certain specified conditions.
- Its purpose is to obtain the provisional liberty of a person
charged with an offense until conviction while at the same time
securing his appearance at the trial.
- It is a constitutional right, and it is personal in nature and therefore,
waivable.
- It springs from the presumption of innocence accorded every
accused upon whom should not be inflicted incarceration at the
outset since after the trial he would be entitled to acquittal, unless
his guilt be established beyond reasonable doubt.
- A person deprived of his liberty by virtue of his arrest or
voluntary surrender may apply for bail as soon as he is deprived of
his liberty, even before a complaint or information is filed against
him.
- The grant of bail should not be conditioned upon the prior
arraignment of the accused. In cases where bail is authorized, bail
should be granted before arraignment, otherwise the accused will
be precluded from filing a motion to quash which is done before
arraignment.
- All prisoners whether under preventive detention or serving final
sentence cannot practice their profession nor engage in any
business or occupation, or hold office, elective or appointive, while
in detention.
- The grant or denial of bail to a person charged with an offense
punishable by at least reclusion perpetua is made dependent on
whether or not the evidence of guilt is strong.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 The test is not whether the evidence establishes guilt beyond
reasonable doubt but rather whether it shows evident guilt or
great presumption of guilt.
- The rule considers bail as applicable only to a person in custody of
the law and does not cover a person who is in the enjoyment of his
physical liberty.
 Custody of law is required before the court can act on an
application for bail, but is not required for the adjudication of
other reliefs sought by the defendant.
 As bail is intended to obtain or secure one’s provisional liberty,
the same cannot be posted before custody over him is acquired
by the judicial authorities, either by his lawful arrest or
voluntary surrender.
 The accused who is confined in a hospital may be deemed to be
in the custody of the law if he clearly communicates his
submission to the court while confined in a hospital. **
- The principle that the accused is precluded from questioning the
legality of the arrest after arraignment is true only if he 1)
voluntarily enters his plea and 2) participates during trial,
without previously invoking his objections thereto.
 Bail in military – the right to bail is not available in the military, as an
exception to the general rule embodied in the Bill of Rights.
- The right to a speedy trial is given more emphasis in the military
where the right to bail does not exist.
 Bail in extradition proceedings – Bail is not a matter of right in
extradition cases.
- An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof
beyond reasonable doubt in criminal cases nor the standard of
proof of preponderance of evidence in civil cases.
- Bail may be applied and granted as an exception, only upon clear
and convincing evidence showing 1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community;
and 2) that there exist special, humanitarian and compelling
circumstances including, as a matter of reciprocity, those cited by
the highest court in the requesting state when it grants provisional
liberty in extradition cases therein.
- Extradition is basically an executive, not judicial, responsibility
arising from the presidential power to conduct foreign relations.
 Bail in deportation proceedings – Aliens in deportation proceedings,
as a rule, have no inherent right to bail.
- Any alien under arrest in deportation may be released under bond
or under such other conditions as may be imposed by the
Commissioner of Immigration.
- The Commissioner of Immigration has the power and discretion to
grant bail in deportation proceedings, but does not grant aliens the
right to be released on bail.
 the grant of bail is merely permissive and not mandatory or
obligatory on the part of the Commissioner. The exercise of the
power is discretionary.
53
 The determination as to the propriety of allowing an alien,
subject to deportation under the Immigration Act, to be released
temporarily on bail, as well as the conditions, falls within the
exclusive jurisdiction of the Commissioner, and not with the
courts as the courts do not administer immigration laws.
-
 Effects of failure to appear at the trial:
1. The failure of the accused to appear at the trial without
justification despite due notice shall be deemed a waiver of his
right to be present and the trial may proceed in absentia.
2. The bondsman may arrest the accused for the purpose of
surrendering the accused. The bondsman may also cause the
accused to be arrested by a police officer or any other person of
suitable age and discretion upon written authority endorsed on a
certified copy of the undertaking.
 Duration of the bail
1. The undertaking under the bail shall be effective upon approval,
and unless cancelled, shall remain in force at all stages of the case
until promulgation of judgment of the RTC, irrespective whether
the case was originally filed in or appealed to it.
2. The bail bond posted by the accused can only be used during the
15-day period to appeal and not during the entire period of appeal.
For the accused to continue his provisional liberty on the same bail
bond, consent of the bondsman is necessary.
 Bail is not required in the following cases:
1. Bail is not required when the law or the Rules of Court so
provide;
2. When a person has been in custody for a period equal or more
than the possible maximum imprisonment prescribed for the
offense charged, he shall be released immediately, without
prejudice to the continuation of the trial or the proceedings on
appeal; Also, if the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after 30 days of
preventive imprisonment.
3. In cases filed with the MTC for an offense punishable by
imprisonment of less than 4 yrs., 2 months and 1 day, and 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. Since no arrest was made, bail is not required.
4. If a person is charged with a violation of a municipal or city
ordinance, the prescribed penalty for which is not higher than 6-
month imprisonment and/or fine of P2000.00.
 Bail is not allowed in the following cases:
1. A person charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment, shall not be admitted
to bail when evidence of guilt is strong regardless of the stage of
the criminal prosecution;
2. Bail shall not be allowed after a judgment of conviction has
become final;
3. Bail shall not be allowed after the accused has commenced to
serve sentence.
 Bail is a matter of right – as a rule, all persons in custody shall be
admitted to bail as a matter of right:
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
1. Before and after conviction by the MTC
2. Before conviction by the RTC of an offense not punishable by
death, reclusion perpetua or life imprisonment (DRL); or,
- The remedy of the petitioner from the order of the trial court
denying a petition for bail is to file a petition for certiorari if
the trial court committed jurisdictional issue (GAD).
 Bail is a matter of discretion –
1. Before conviction by the RTC of an offense punishable by DRL
2. After conviction by the RTC of an offense not punishable by DRL;
3. If the decision of the RTC convicting the accused changed the
nature of the offense from non-bailable to bailable, application for
bail can be filed with and resolved by the appellate court.
- Notice of hearing applies in all cases whether bail is a matter
of right or discretion to determine existence of strong evidence
or the lack of it. The prosecution has the burden of showing
that the evidence of guilt is strong.
- Bail hearing is mandatory in order to give the prosecution
reasonable opportunity to oppose the application by proving
that the evidence of guilt is strong.
 The evidence presented during the bail hearing shall be
considered automatically reproduced at the trial.
However, any witness during the bail hearing may, upon
motion of either party, be recalled by the court for
additional examination except if such witness is dead,
outside the Philippines, or otherwise unable to testify.
- the court is not authorized to deny or cancel the bail ex parte.
- The resolution of the RTC denying or cancelling the bail may
be reviewed by the appellate court motu propio or on motion
of any party after notice to the adverse party in either case.
- In an application for bail pending appeal by an appellant
sentenced by the trial court to a penalty of imprisonment for
more than 6 years, the discretionary nature of the grant of bail
pending appeal does not mean that bail should automatically
be granted absent any of the circumstances mentioned in the
3rd par. of Sec. 5, Rule 114 of the Rules of Court.
 An application for bail pending appeal may be denied even
if the bail-negating circumstances in the 3rd par. are absent.
Arraignment is that stage where, in the mode and manner required by
the Rules, an accused, for the first time, is granted the opportunity to
know the precise charge that confronts him.
- Its purpose is to apprise the accused of the possible loss of freedom,
even of his life, depending on the nature of the crime imputed to him,
or at the very least to inform him of why the prosecuting arm of the
State is mobilized against him.
- It is the formal mode and manner of implementing he constitutional
right of an accused to be informed of the nature and cause of the
accusation against him.
- It is an indispensable requirement of due process.
 Options of the accused before arraignment of plea:
54
A. Before arraignment and plea, the accused may avail of any of the
following:
1. Bill of particulars – the accused may, before arraignment, move
for a bill of particulars to enable him to properly plead and
prepare for trial.
 The motion shall 1) specify the alleged defects of the
complaint or information, and shall 2) specify the details
desired.
2. Suspension of the arraignment – upon motion, the proper party
may ask for suspension of the arraignment in the following
cases:
a. There is a petition for review of the resolution of the
prosecutor which is pending at either the Department of
Justice, or of the Office of the President.
b. The accused appears to be suffering from an unsound
mental condition which effectively renders him unable to
fully understand the charge against him and plead
intelligently thereto.
c. There exists a prejudicial question;
3. Motion to quash at any time before entering his plea, the
accused may move to quash the complaint or information on any
of the grounds provided for under Sec. 3, Rule 117, in relation to
Sec. 1, Rule 117.
4. Challenge the validity of arrest or legality of the warrant issued
or assail the regularity or question the absence of preliminary
investigation of the charge.
- The arraignment of the accused constitutes a waiver of the right
to preliminary investigation or reinvestigation. Such waiver is
tantamount to a finding of probable cause.
- A plea made before a court that has no jurisdiction over the
criminal action does not give rise to double jeopardy.
 Arraignment under an amended information; substituted information:
1. Where the accused has been already arraigned and subsequently,
the information was substantially amended, an arraignment on
the amended information is mandatory. If he is not arraigned and is
convicted under the second information, the conviction constitutes
reversible error.
2. Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the plea of
the accused; in substitution of information, another PI is entailed
and the accused has to plead anew to the new information.
 Presence of the offended party to appear at the arraignment is required
for the following purposes: 1) plea bargaining 2) determination of
civil liability, and 3) other matters requiring his presence.
- In case the offended party fails 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.
 Plea of not guilty shall be entered for the accused if 1) he refuses to
plead, 2) he makes conditional plea or 3) when he pleads guilty but
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
presents exculpatory evidence in which case the guilty plea shall be
deemed withdrawn and a plea of not guilty shall be entered. (ERC)
- The accused, by entering a plea of not guilty, submits himself to the
jurisdiction of the trial court, thereby curing any defect in his arrest.
- A formal of plea of not guilty should be entered if an accused admits
the truth of some or all the allegations of the information, but
interposes excuses or additional facts which, if duly established
would exempt or relieve him in whole or in part of criminal
responsibility.
- When a plea of guilty is not definite or ambiguous, or not absolute,
the same amounts to a plea of not guilty.
 Plea of guilty is a judicial confession of guilt – an admission of all the
material facts alleged in the information, including the aggravating
circumstances alleged.
- It admits the truths of all material facts alleged in the information,
including all aggravating circumstances mentioned therein, except if
such circumstances are disproved by the evidence, it should be
disallowed in the judgment.
- Requisites for a plea of guilty to a lesser offense:
1. The lesser offense is necessarily included in the offense
charged; and,
2. The plea must be with the consent of both the offended and the
prosecutor.
 The acceptance of an offer to plead guilty to a lesser offense
is not demandable by the accused as a matter of right but is a
matter addressed entirely to the sound discretion of the trial
court.
 When an accused pleads guilty to a non-capital offense, the
court may receive evidence from the parties to determine the
penalty to be imposed.
 Offense may be said to be necessarily included in another
when the essential ingredients of the former constitute or form
part of those constituting the latter.
 As long as the 1) voluntary intent of the accused and 2) his
full comprehension of the consequences of his plea are
ascertained, the accused’s plea of guilt is to be sustained.
 When there is a plea of guilty to a lesser offense and the same
was allowed by the court, there is no need to amend the
information or complaint.
 Plea bargaining in criminal cases is a process where the accused and
the prosecution work mutually satisfactory disposition of the case
subject to court approval.
Motion to quash
- it may be made at any time before the accused enters his plea.
- The failure to assert any ground of a MTQ before a plea to the
complaint or information shall be deemd a waiver of any objections.
55
- it is not allowed in a summary procedure except on the ground for
lack of jurisdiction over the subject matter and failure to comply with
the barangay conciliation proceedings.
- The 1) execution by the offended party of an affidavit of desistance,
2) pardon 3) absence of PI or absence of probable cause is not a
ground for MTQ a complaint or information as they are not included
in the grounds of MTQ (JEJEMON FD)
 Jurisprudence regarded such affidavit as exceedingly unreliable,
because it can easily be secured from a poor and ignorant witness,
usually through intimidation or for monetary consideration.
- When a MTQ in criminal case is denied, the remedy is not a petition
for certiorari, but for the petitioners to go to trial, without prejudice
to reiterating the special defenses invoked in their MTQ.
- If the MTQ is based on the alleged defect of the complaint or
information, and the defect can be cured, the court shall order that an
amendment be made.
- When a MTQ is sustained, the court may order that another
complaint or information be filed unless the ground relied upon is
either 1) extinction of the criminal liability, or 2) on the ground of
double jeopardy.
 The following are the distinctions between motion to quash and
demurrer to evidence: GILE
1. As to the ground. A MTQ has several grounds to quash and they
are not available grounds for demurrer to evidence. A demurrer to
evidence has one ground which is insufficiency of evidence.
2. As to the institution of the motion. A motion to quash a complaint
or information is filed before the accused enters plea. A demurrer
to evidence in criminal action is filed after the prosecution rests its
case.
3. As to the requirement of prior leave of court. MTQ does not
require a prior leave of court for the filing of the motion. A
demurrer to evidence may be filed by the accused with leave or
without leave of court.
4. As to the effect. When a MTQ is granted, a dismissal of the case
will not necessarily follow as the court may order the filing of a
new complaint. The grant of demurer to evidence is deemed an
acquittal and would preclude the filing of another information.
 Double Jeopardy – the constitutional provision against double
jeopardy guarantees that the state shall not be permitted to make
repeated attempts to convict an individual for an alleged offense.
- It is also called res judicata in prison grey – the right against
double jeopardy prohibits the prosecution for a crime of which he
has been previously convicted or acquitted.
- it prohibits refers to the identity of elements in the two offenses.
- As a rule, an acquittal rendered by a court of competent jurisdiction
after trial on the merits is immediately final and cannot be appealed
on the ground of double jeopardy.
- The accused may appeal from a judgment of conviction but when the
accused appeals from the sentence of the trial court, he waives his
right to the constitutional safeguard against double jeopardy and
throws the whole case open to review by the appellate court.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- Requisites: ATO 1) a first jeopardy must have attached prior to the
second; 2) the first jeopardy must be validly terminated; and 3) the
second jeopardy must be for the same offense includes or is
necessarily included in the offense charged in the first information,
or is an attempt to commit the same or a frustration thereof.
 In determining when the first jeopardy may be said to have
attached, it is necessary to prove the following elements: (C JIPS)
1. The accused has been convicted or acquitted, or the case against
him was dismissed or terminated without his express consent;
2. That the conviction, acquittal or dismissal (CAD) was made by a
court of competent jurisdiction;
3. There is a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction.
4. The accused has pleaded to the charge; and,
5. The subsequent prosecution is for an offense which is the same
as the former complaint or information.
 Reckless imprudence under Art. 365 is a single quasi-
offense by itself and not merely means to commit the other
crimes, such that conviction or acquittal of such quasi-
offense, regardless of its various resulting acts.
- As an exception to the rule, when the trial court acted with grave
abuse of discretion or when there was mistrial, the OSG can assail
the said judgment in a petition for certiorari establishing that the
State was deprived of a fair opportunity to prosecute and prove its
case.
- Any acquittal or conviction before a court having no jurisdiction
would not violate the principle of double jeopardy since it failed to
attach in the first place.
- The rule against double jeopardy does not apply under sec. 7, Rule
117, the conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense
charged in the former complaint or information.
- The rule on double jeopardy does not apply to administrative cases.
As double jeopardy attaches only: (ICAP-cad) 1) upon valid
indictment, 2) before a competent court, 3) after arraignment, 4)
when a valid plea has been entered, and 5) when the defendant was
acquitted or convicted or the case was dismissed or otherwise
terminated without the express consent of the accused.
- The discharge of an accused to be a state witness shall amount to an
acquittal and shall be a bar to a future prosecution for the same
offense, unless the accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting the
basis for his discharge.
- In reckless imprudence cases under Art. 365, RPC, it is a single
quasi-offense by itself and not merely a means to commit other
crimes. Conviction or acquittal of such quasi-offenses bars
subsequent prosecution for the same quasi-offense, regardless of its
various resulting acts.
 Provisional Dismissal of a criminal action does not terminate a
criminal case.
- Under the first paragraph of Sec. 8, Rule 177, the following
requisites should concur: 1) there must be express consent of the
accused and 2) there must be notice to the offended party.
56
 The non-compliance of the above rule, the dismissal will not
trigger the operation of the time-bar rule under the second par. of
Sec. 8, Rule 117.
 The prosecution has to revive the case if it desires to prevent the
provisional dismissal becoming permanent and the revival of the
case being time-barred.
 The time-bar under the new rule does not reduce the periods under
Art. 90 of the RPC. It is but a limitation of the right of the State to
revive a criminal case against the accused after the information had
been filed but subsequently provisionally dismissed with the
express consent of the accused. The State may revive a criminal
case beyond the 1-year or 2-year periods provided that there is a
justifiable necessity for the delay.
- The following requirements are conditions sine qua non for the
application of the time-bar rule:
1. The prosecution with the express conformity of the accused or
the accused moves for a provisional dismissal of the case or both
the prosecution and the accused move for PD of the case;
2. The offended party is notified of the motion for PD of the case;
3. The court issues an order granting the motion and dismissing the
case provisionally;
4. The public prosecutor is served with a copy of the order of PD
of the case.
RULE ON EVIDENCE
Evidence is admissible when it is related to the issue and not excluded
by the law or Rules on Evidence.
- Its purpose under the ROC is to ascertain the truth respecting a
matter of fact in a judicial proceeding.
- Requisites for evidence to be considered by the Court: 1)
competent, 2) offered in evidence, 3) relevant and 4) authenticated.
(CORA)
- Administrative agencies are not bound by the technical rules of
evidence. It can accept documents which cannot be admitted in a
judicial proceeding where the ROC are strictly observed.
 Even if not bound by technical rules of procedure, the findings
of facts of administrative bodies are, however, respected as
long as they are supported by substantial evidence, even if not
such evidence is not overwhelming or preponderant.
 The factual findings of quasi-judicial agencies, which have
acquired expertise because their jurisdiction is confined to
certain specific matters, are generally accorded not only
respect but, at all times, even finality if such findings are
supported by substantial evidence.
- Relevance requires that the immediate fact proved must have
connection to the ultimate issue. It is based on logic and common
sense.
 The determination of whether particular evidence is relevant
rests largely at the discretion of the court, which must be
exercised according to the teachings of logic and everyday
experience.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
 The admissibility of the evidence depends on its relevance
and competence while the weight of evidence pertains to its
tendency to convince and persuade.
 Conditional admissibility happens frequently enough that
the relevance of a piece of evidence is not apparent at the
time it is offered, but the relevance of which will readily be
seen when connected to other pieces of evidence not yet
offered.
 Doctrine of curative admissibility allows party to
introduce otherwise inadmissible evidence to answer the
opposing party’s previous introduction of inadmissible
evidence if it would remove any unfair prejudice caused by
the admission of the earlier inadmissible evidence.
 Evidence on collateral matter is not allowed because it does not
have direct relevance to the issue of the case.
 It may be admitted if it tends in any reasonable degree to
establish the probability or improbability of the fact in issue
of the case when it would have the effect of corroborating
or supplementing facts previously established by direct
evidence.
- Falsus in uno, falsus in omnibus means false in one thing, false
in everything. It means that if the testimony of a witness on a
material issue is willfully false and given with an intention to
deceive, the jury may disregard all the witness’ testimony.
 It deals only with weight of the evidence and is not a positive
rule of law.
 It is particularly applied to the testimony of a witness who may
be considered unworthy of belief as to all the rest of his
evidence if he is shown to have testified falsely in one detail.
- The provisions of the Rules on Electronic Evidence (REE) apply
civil actions and proceedings, as well as quasi-judicial and
administrative cases. It does not apply to criminal actions. **
 Electronic evidence is competent evidence and is admissible 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 the REE.
 All matters relating to the admissibility and evidentiary weight
of an electronic document may be established by an affidavit
stating facts of direct personal knowledge of the affiant or based
on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained
therein.
 The affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined as a
matter of right by the adverse party.
 Photographic evidence, acts or transactions shall be admissible
in evidence provided that:
1. It shall be presented, displayed or shown to the court;
2. It shall be identified, explained or authenticated by either i)
the person who made the recording; or ii) some other person
competent to testify on the accuracy thereof.
57
- An objectionable evidence may be admissible if it is not objected
to because of waiver.
 Objections to evidence offered orally must be made immediately
after the offer is made and objections to questions propounded in
the course of the oral examination of the witness shall be made
as soon as the grounds therefor shall become apparent.
- Competence evidence is one that is not excluded by law or rules
in a particular case. It is primarily a matter of law or rule.
 Under the Rule on Examination of a Child Witness,
corroboration shall not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to support a
finding of fact, conclusion or judgment subject to the standard of
proof required in criminal and non-criminal cases.
 Testimonies of child-witness are normally given full weight and
credit since youth and immaturity are generally badges of truth
and sincerity.
 The sole testimony of a rape victim, if credible, natural,
convincing and consistent with human nature and the normal
course of things, suffices to convict.
- Direct evidence proves fact without the need to make an inference
from another fact.
- Circumstantial evidence or indirect evidence is that evidence
which indirectly proves a fact in issue through an inference which
the fact finder draws from the evidence established.
 a fact is established by making an inference from a previously
established fact. It is the rule of evidence that applies when no
witness saw the commission of the crime.
 In criminal case, circumstantial evidence may be sufficient for
conviction provided the following requisites concur: (OIC)
1. There is more than one circumstance;
2. The facts from which the interferences are derived are
proven; and,
3. The combination of all circumstances is such as to produce
a conviction beyond reasonable doubt.
 The above circumstances must constitute an unbroken chain
that inexorably leads to one fair conclusion: the accused
committed the crime to the exclusion of all others.
 For conviction to appreciate, the evidence must fulfill the
test of moral certainty and sufficiency to support a
judgment of conviction.
- Cumulative evidence refers to evidence of the same kind and
character as that already given and that tends to prove the same
proposition.
- Corroborative Evidence is one that is supplementary to that
already given tending to strengthen or confirm it. It is a additional
evidence of a different character to the same point.
 it is necessary only when there are reasons to suspect that
the witness falsified the truth or that his observations are
inaccurate.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- Denial evidence is the weakest defense and can never overcome a
positive testimony particularly when it comes from the mouth of a
credible witness. Evidence that is negative is self-serving in nature
and cannot attain more credibility than the testimonies of witnesses
who testify on clear and positive evidence.
- Defense of alibi is inherently weak and must be rejected when the
identity of the accused is satisfactorily and categorically
established by the eyewitnesses to the offense, especially when
such eyewitnesses have no ill- motive to testify falsely.
 Denial and alibi are self-serving negative evidence as it can be
easily fabricated; it cannot prevail over the spontaneous,
positive, and credible testimonies of the prosecution witnesses
who pointed to and identified the accused-appellant.
 Defense of alibi will only when the requirements of time and
place must be strictly met. He must demonstrate by clear and
convincing evidence that it was physically impossible for him
to have been at the scene of the crime at the time the same was
committed.
- Allegations of frame-up by police officers are common and
standard defenses in most dangerous drug cases.
 For this claim to prosper, the defense must adduce clear and
convincing evidence to overcome the presumption that
government officials have performed their duties in a regular
and proper manner.
- Delayed reporting by a witnesses of what they know about a
crime does not render their testimonies false or incredible, for the
delay may be explained by the natural reticence of most people
and their abhorrence or get involved in a criminal case.
 Delay in revealing the commission of a crime does not
necessarily render such charge unworthy of belief.
- Flight is indicative of guilt, but its converse is not necessarily true.
Flight alone is not reliable indicator of guilt without other
circumstances because flight alone is inherently ambiguous.
 Non-flight does not signify innocence and it is simply inaction,
which may be due to several factors.
 Evidence in civil cases distinguished from evidence in criminal cases:
1. As to burden of proof. In civil cases, the party having the burden
of proof and prove his claim by a preponderance of evidence. In
criminal cases, the guilt of the accused has to be proven. Beyond
reasonable doubt.
2. As to offer of compromise. In civil cases, an offer of compromise
is not an admission of any liability, and is not admissible in
evidence against the offeror. In criminal cases, except those
involving quasi-offense (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
3. As to presumption of innocence. In civil cases, the concept of
presumption of innocence does not apply and generally there is no
presumption for or against a party except in certain cases provided
for by law. In criminal cases, the accused enjoys the constitutional
presumption of innocence.
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 Factum probans is distinguished from Factum probandum in the
following manner:
1. As to the facts to be established. Factum probandum refers to the
fact or proposition to be established. Factum probans refers to the
facts or material evidencing the fact or proposition to be
established.
- Factum probandum is the fact to be proved; the fact which is
in issue and to which the evidence is directed. On the other hand,
Factum probans, is the probative or evidentiary fact tending to
prove the fact in issue.
- In criminal cases involving prohibited drugs, there can be no
conviction unless the prosecution shows that the accused
knowingly possessed the prohibited articles in his person, or
that animus possidendi is shown to be present together with his
possession or control of such article.
 When the accused was not in possession of the illegal drugs
when he was arrested, his arrest was illegal and the
confiscated drugs cannot be used in evidence against him.
 A constructive possession exists 1) when the drug is under
the dominion and control of the accused or 2) when he has
the right to exercise dominion and control over the place
where it is found.
 The presentation of the informant in illegal drug cases is not
indispensable for a successful prosecution because his
testimony would merely be corroborative and cumulative.
Informants are not presented in court because of the need to
hide his identity and preserve their invaluable service to the
police.
 Evidence obtained under the Anti-Wiretapping Law (RA 4200)
- Evidence obtained in violation of RA4200 shall not be admissible in
evidence in the following proceedings: 1) judicial, 2) quasi-judicial,
3) legislative, or 4) administrative hearing or investigation.
- Recording of open and public communications are not covered by
RA 4200. Thus, such recording is not unlawful. The law protects
only private conversations and communications.
- It is considered unlawful to 1) secretly overhear, 2) intercept, or 3)
record private communication or spoken word when doing so is
without the authority of all the parties communication. If only one
party authorizes the recording and the other does not, there is
violation of the law. (SIR PC SW)
- RA 4200 is not violated if done by a 1) peace officer 2) authorized
by a written order of the court in cases involving: i) treason ii)
espionage iii) provoking war and disloyalty in case of war iv) piracy
v) mutiny in the high seas vi) rebellion vii) conspiracy and proposal
to commit rebellion viii) inciting to rebellion ix) sedition x)
kidnapping.
- Sec. 7, RA 9372 (Human Security Act of 2007), a police or law
enforcement may listen to, intercept and record, any communication,
message, conversation, discussion, or written or spoken words b/w
the following:
1. Members of the judicially declared and outlawed terrorist
organization, association or group of persons; or
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2. Any person charged with or suspected of the crime of terrorism
or conspiracy to commit terrorism.
 Any of the above acts may not be done without a written order
of the Court of Appeals. Such written order of a division of
the CA shall be granted only upon a written application by a
police or law enforcement official. This official must be one
who is authorized by the Anti-Terrorism Council to file such
application. RA 9372 requires only an ex parte application.
Burden of Proof or “onus probandi” refers to the obligation of a party
to a litigation to persuade the court that he is entitled to relief.
- It 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.
 The SC held that one who denies the due execution of a deed
where one’ signature appears has the burden of proving that,
contrary to the recital in the jurat, one never appeared before the
notary public and acknowledged the deed to be a voluntary act.
- It is fixed by the pleadings. The claim of the plaintiff, which he must
prove, is spelled out in his complaint.
- In civil cases, a party who alleges a fact has the burden of proving it.
 A mere allegation is not evidence, and he who alleges has the
burden of proving his allegation with the requisite quantum of
evidence.
 Bare allegations, when unsubstantiated by evidence,
documentary or otherwise, are not equivalent to proof under
the Rules of Court.
 The burden of proof is on the plaintiff to establish his case by
preponderance of evidence. If he claims a right granted or
created by law, he must prove such right. He must rely on the
strength of his own evidence and not on the weakness of that of the
opponent.
 Preponderance of evidence is an evidence which is more
convincing to the court as worthy of belief than that which is
offered in opposition thereto.
 In an action for sum of money, where the creditor alleges non-
payment, the general rule is that the onus rests on the debtor to
prove payment, rather than on the creditor to prove non-payment.
 In a breach of contract of carriage, the aggrieved party does not
have to prove that the common carrier was at fault or was
negligent. All that he has to prove are 1) the existence of the
contract, and 2) the fact of non-performance by the carrier.
 In eminent domain case, the local government that seeks to
expropriate private property has the burden of proving that the
elements for the valid exercise of the right of eminent domain have
been complied.
 In termination cases, the burden of proof rests upon the employer
to show that dismissal is for a valid and just cause. A dismissed
employee is not required to prove his innocence of the charges
leveled against him by his employer.
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 In administrative proceedings, the burden of proof that the
respondent committed the acts complained of rests on the
complainant.
 In issue of constitutionality of a law, the onus probandi rests of
the petitioner to show why the law is repugnant to the Constitution
Failing to overcome its presumption of constitutionality, a claim
that a law is cruel, unusual or inhuman, must fail.
 Notarized documents enjoy the presumption of regularity
which may only be rebutted by evidence so clear, strong, and
convincing as to exclude all controversy as to falsity.
Burden of evidence is the duty of a party to go forward with the
evidence to overthrow the prima facie evidence against him.
 Burden of proof and burden of evidence are distinguished as follows:
Burden of proof is the obligation of the party to present evidence on
the facts in issue necessary to establish his claim or defense by the
amount of evidence required by law.
Burden of evidence is the duty of a party to go forward with the
evidence to overthrow any prima facie presumption against him.
 Equipoise doctrine is based on the principle that no one shall be
deprived of life, liberty or property without due process of law.
- it is a situation where the evidence of the parties is evenly balanced
or there is doubt on which side the evidence preponderates.
- In criminal case, the equipoise rule provides that where the evidence
is evenly balanced, the constitutional presumption of innocence tilts
the scales in favor of the accused.
- In labor case, if doubt exists between the evidence presented by the
employer and employee, the scales of justice must be tilted in favor
of the latter.
Presumption is an assumption of fact resulting from a rule of law which
requires such fact to be assumed from another fact or group of facts
found or otherwise established in the action.
 Inference may be distinguished from a presumption as follows:
Inference is a factual conclusion that can rationally be drawn from
facts or a result of the reasoning process.
Presumption, on the other hand, is a rule of law directing that if a
party proves certain facts at the trial or hearing, the factfinder must also
accept an additional fact as proven unless sufficient evidence is
introduced tending to rebut the presumed fact.
- A presumption of law is an assumption which the law requires to be
made from a set of facts.
- A presumption of fact is when an assumption is made from the
facts without any direction or positive requirements of a law.
- A presumption is conclusive when the presumption becomes
irrebuttable upon the presentation of the evidence and any evidence
tending to rebut the presumption is not admissible.
 Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any
contrary proof however strong.
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 It is based on the doctrine of estoppel that a person making the
representation cannot claim benefit from the wrong he himself
committed. It is rooted upon natural justice, prevents persons
from going back on their own acts and representations, to the
prejudice of others who have relied on them.
 An essential element of estoppel is that the person invoking it
has been influenced, or relied on the representations or
conduct of the person sought to be estopped.
 In land tenancy cases, as long as the lessor-lessee
relationship between the parties exists, the lessee cannot, by
any proof, however, strong, overturn the conclusive
presumption that the lessor has a valid title to or better right of
possession to the subject leased premises than it has.
- The relation of lessor and lessee does not depend on the
former’s title but on the agreement between the parties,
followed by the possession of the premises by the lessee
under such agreement.
- A presumption is disputable or rebuttable if it may be contradicted
or overcome by other evidence.
 It has been settled that credence is given to prosecution witnesses,
who are police officers, for they are presumed to have performed
their duties in a regular manner, unless there is evidence to the
contrary suggesting ill motive on the part of the police officers.
 The presumption of regularity in the performance of official
duties will stand if the defense failed to present clear and
convincing evidence that the police officers did not properly
perform their duty or that they were inspired by an improper
motive.
 The above presumption does not apply in petition for a writ
of amparo. Under Rule 17, Rule on Writ of Amparo, the
respondent POE cannot invoke presumption that official duty
has been regularly performed to evade responsibility or
liability.
 The presumption of regularity does not apply during in-
custody investigation.
 The presumption of regularity in the performance of official
duty must be seen in the context of an existing rule of law or
statute authorizing the performance of an act or duty or
procedure in the performance thereof.
 The presumption of innocence of the accused prevails over
the presumption that law enforcement agents were in the
regular performance of their duty.
- A document acknowledged before a notary public enjoys
presumption of regularity.
- The constitutional presumption of innocence is enjoyed by
the accused until final conviction and in this regard, the
prosecution’s case must rise and fall on its own merits and
cannot draw its strength from the weakness of the defense.
- Intent is a state of mind, and is hidden from the judicial
eye. Courts are left to evaluate the overt acts, and on their
basis, to form a conclusion as to the actor’s intentions.
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Quantum of Evidence
 Proof beyond reasonable doubt
- In criminal cases, the burden of proof as to the guilt of the accused
lies with the prosecution because of the presumption that the accused
is presumed innocent until the contrary is proved.
 When a prima facie case is established by the prosecution in a
criminal case, the burden of proof does not shift to the defense.
 A prima facie case need not be countered by a preponderance of
evidence nor by evidence of greater weight. Defendant’s evidence
which equalizes the weight of plaintiff’s evidence or puts the case
in equipoise is sufficient.
- In every criminal prosecution, the State must prove beyond
reasonable doubt, all the elements of the crime charged and the
complicity or participation of the accused.
- The conviction of the accused must rest, not on the weakness of the
defense, but on the strength of the prosecution. The burden is on the
prosecution to prove built beyond reasonable doubt, not on the
accused to prove his innocence.
 Preponderance of evidence is the weight, credit and value of the
aggregate evidence on either side and is usually considered to be
synonymous with the term greater weight of the evidence or greater
weight of the credible evidence.
- it means that the evidence adduced by one side is, as a whole,
superior to or has greater weight than that of the other.
 Substantial evidence refers to evidence which constitute the amount
of relevant evidence which a reasonable mind might accept as adequate
to support a conclusion.
- An administrative proceeding against judges are highly penal in
character and are to be governed by the rules applicable to criminal
cases.
 The quantum of proof required to support the administrative
charges or to establish the ground/s for the removal of a judicial
officer should thus be more than substantial; they must be proven
beyond reasonable doubt.
- Preponderance of evidence may be distinguished from substantial
evidence as follows:
Preponderance of evidence applies to civil cases. It is the
evidence that is more convincing and more credible than the one
offered by the adverse party.
Substantial evidence applies to cases filed before administrative
or quasi-judicial bodies and which requires that in order to
establish a fact, the evidence should constitute that amount of
relevant evidence which a reasonable mind might accept as
adequate to support a conclusion.
- In a petition for a writ of amparo, the parties shall establish their
claims by substantial evidence.
 Clear and convincing evidence – if it produces in the mind of the trier
of fact a firm belief or conviction as to allegation sought to be
established. It is intermediate, being more than preponderance, but not
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to the extent of such certainty as is required beyond reasonable doubt
as in criminal case.
- In an actions for annulment or reconveyance of title, a party
seeking it should establish not merely by a preponderance of
evidence, but by clear and convincing evidence that the land sought
to be reconveyed is his.
- When an accused-appellant invokes the justifying circumstances of
self-defense, it is well-settled doctrine that when an accused invokes
self-defense, the onus is on him to establish by clear and convincing
his justification for the killing.
Judicial Notice is based on the maxim that what is known need not be
proved.
- The function of judicial notice is to abbreviate litigation by the
admission of matters that need no evidence because judicial notice is
a substitute for formal proof of a matter of evidence.
- When the court takes judicial notice of matter, the court accepts and
recognizes the same without necessity of formal proof.
 When the matter is subject to a mandatory judicial notice, no motion
or hearing is necessary for the court to take judicial notice of a fact
because this is a matter which a court ought to take judicial notice
itself.
 Under the principle of discretionary judicial notice, a court may take
judicial notice of matters which are 1) public knowledge, or 2) are
capable of unquestionable demonstration, or 3) ought to be known to
judges because of their judicial functions.
- Judicial notice is limited to facts evidenced by public records and
facts of general notoriety. A court cannot take judicial notice of a
factual matter in controversy.
- 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 facts,
not generally or professionally known as the basis of his action.
 Under the doctrine of processual presumption, courts of the
forum will not take judicial notice of the law prevailing in another
country. Foreign laws must be alleged and proved.
 In the absence of proof, the foreign law will be presumed to be
the same as the laws of the jurisdiction hearing the case under
the said doctrine.
 Where the foreign law is within the actual knowledge of the court,
such as when the law is generally well-known, had been ruled
upon in previous cases before it and none of the parties claim
otherwise, the court may take judicial notice of the foreign law.
 According to Riano, law of nations being parts of the law of the
land, they are, technically, in the nature of local laws and are
subject to a mandatory judicial notice under Sec. 1, Rule 129.
- Facts which are universally known and which may be found in
encyclopedias, dictionaries or other publications, are judicially
notices, provided they are of such universal notoriety and so
generally understood that they may be regarded as forming part of
the common knowledge of every person.
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- Matters which are capable of unquestionable demonstration pertain
to fields of professional and scientific knowledge.
Judicial Admission is an admission, verbal or written, made by a party
in the course of the proceedings in the same case, does not require
proof, unless there is a showing that it was made through palpable
mistake or that no such admission was made.
- A party may make judicial admission in 1) the pleadings, 2) during
the trial, either by verbal or written manifestations or stipulations, 3)
in other stages of the judicial proceedings.
- An admission is judicial if made not only in the pleadings, or by
verbal or written manifestations in the trial but also in pre-trial of the
case.
- Admissions obtained through depositions, written interrogatories or
requests for admission are also considered judicial admissions.
- Extrajudicial admission is an admission made in another judicial
proceeding will not be deemed a judicial admission in another case
where the admission was not made.
 An admission made in a document drafter for purposes of filing a
pleading but never filed, is not a judicial admission. If signed by
the party, it is deemed an extrajudicial admission.
 The admissions in a superseded pleading are to be considered as
extrajudicial admissions which must be proven.
 the SC declared that pleadings that have been amended
disappear from the record, lose their status as pleadings, and
cease to be judicial admissions, and to be utilized as
extrajudicial admissions, they must, in order to have such
effect, be formally offered in evidence.
Object evidence refers to evidence that is addressed to the senses of the
court.
- Physical evidence is a mute but eloquent manifestation of truth, and
it ranks high in our hierarchy of trustworthy evidence – where they
physical evidence runs counter to the testimonial evidence, the
physical evidence should prevail.
- When a contract is presented in court to show that it exists or simply
to establish its condition, it is not offered to prove its contents. The
contract is an object or real evidence and not documentary evidence.
 A photocopy of marked bills used in buy-bust operation is real
(object) evidence and not documentary evidence. Although it is
conceded that the bills contain letters, words, numbers and other
modes of written expression, these facts alone do not make the
bills documentary evidence. The bills were obviously presented to
show that money exchanged hands in the buy-bust operations and
not to prove anything written on the bills.
- The following are the basic requisites for the admissibility of an
object or real evidence: 1) the evidence must be relevant, 2) the
evidence must be authenticated, 3) the authentication must be made
by a competent witness, and 4) the object must be formally offered
in evidence. (CORA)
 To authenticate the object, it must be shown that it is the very
thing that is either the subject matter of the lawsuit or the very one
involved to prove an issue in the case and there must be someone
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who should identify the object to be the actual thing involved in
the litigation.
 The formal offer of evidence is particularly a vital act before the
admission of evidence because the court shall consider no
evidence which has not been formally offered.
 Relevance is a matter of reasoning and the court will draw an
inference of the relevancy of the evidence from the issues of the
case.
 When an object evidence is offered in accordance with the
requisites for its admissibility, it becomes evidence of the highest
order and speaks more eloquently than witnesses put together.
- Demonstrative evidence referred to as demonstrative because it
represents or demonstrates the real thing. It is not strictly real
evidence because it is not the very thing involved in the case.
- Chain custody is to guaranty the integrity of the physical evidence
and prevent the introduction of evidence which is not authentic.
 There must be links to the chain. The links are the people who
actually handled or had custody of the object. Each of the links in
the chain must show how he received the object, how he handled it
to prevent substitution, and how it was transferred to another.
 In drug cases, chain of custody means the duly recorded
authorized movements and custody of seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to presentation in
court for destruction. (DRAMAC)
 Record of movement and custody of seized item shall include
the identity and signature of the person who held temporary
custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping
and use in court as evidence, and final disposition.
 The chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to
be.
 Marking should be made in the presence of the apprehended
violator immediately upon arrest. It operates to set apart as
evidence the dangerous drugs or related items from other
material from the moment they are confiscated until they are
disposed of at the close of the criminal proceedings, thereby
forestalling switching, planting or contamination of evidence.
 The non-compliance with the required inventory and
photograph of the evidence confiscated under justifiable
grounds, as long as the integrity and evidentiary value of the
seized item are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of
and custody over said items.
 The utmost importance of the preservation of the integrity and
evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the
accused.
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Documentary evidence refers to evidence consist of writings or any
material containing letters, words, numbers or other modes of written
expressions offered as proof of their contents.
- Being writings or materials containing modes of written expressions
do not ipso facto make such documentary evidence.
- If offered for some other purpose, the writings or materials would not
be deemed documentary evidence but merely object evidence.
 A private document may be offered and admitted in evidence both
as documentary evidence and as object evidence depending on the
purpose for which the document is offered. If offered to prove its
existence, condition or for any purpose other than the contents of a
document, the same is considered as an object evidence. When the
private document is offered as proof of its contents, the same is
considered as a documentary evidence.
 The document may be offered for both purposes under the
principle of multiple admissibility.
- An electronic document or electronic data message refers to the
representation of information whether it be the information itself or
its representation, for the document to be deemed electronic, it is
important that it be received, recorded, transmitted, stored,
processed, retrieved or produced electronically (3R PTS)
 An electronic document is the functional equivalent of paper-based
document, whenever a rule of evidence makes reference to the
terms of a writing, document, record, instrument, memorandum or
any other form of writing, such terms are deemed to include
electronic documents.
Best evidence rule (Original document rule) – when the subject inquiry
is the contents of a document, no evidence shall be admissible other than
the original document itself.
- It applies only to documentary evidence not to testimonial or object
evidence.
- A purpose of the BER requiring the production by the offeror of the
best evidence is the prevention of fraud or mistake in the proof of the
contents of the writing.
 The BER applies 1) if the inquiry involves a document, and 2) its
contents are the subject of that same inquiry.
 So long as the original is available, no other evidence can be
substituted for the original because the original is the best evidence
in relation to mere copies or substitutes thereof. The BER may be
waived if not raised in the trial.
 BER under S3, R130, ROC may be distinguished from BER under
R4, REE in the following manner: **
1. As to application. BER under ROC applies to non-electronic
and electronic documents. BER under REE applies to
electronic documents only.
2. As to original copy. Copies or duplicates under ROC not
equivalent of original. Copies or duplicates under REE is
equivalent of the original.
 An electronic document shall be regarded as the
equivalent of an original document under BER if it is a
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printout or output readable by sight or other means,
shown to reflect the data accurately. (POR)
 In MCC Industrial Sales Corpo. B. Ssanyong Corp., the
Court held that electronic data message and electronic
document as defined under Electronic Commerce Act, do
not include a facsimile transmission and cannot be
considered as electronic evidence. It is not the functional
equivalent of an original under the BER and is not
admissible as electronic evidence.
 Original – CBD: 1) original simply means the documents the
contents of which are the subject of inquiry, 2) duplicate
originals, and 3) regularly repeated business entries.
 To be considered originals, to wit: RTP
1) there must be entries made and repeated in the regular
course of business; 2) the entries must be made at or near the
time of the transaction; and the entrant must have personal
knowledge of the facts he is entering or the information have
been supplied by persons having a specific legal duty to
supply such information. ***
- Where the issue is the execution or existence of the document or the
circumstances surrounding its execution, the best evidence rule does
not apply and testimonial evidence is admissible. 2ED CE
- When a document is involved in the inquiry but the document is only
collaterally in issue, the best evidence rule does not apply. A
document is collaterally in issue when the purpose of introducing the
document is not to establish its terms, but to show facts that have no
reference to its contents like its existence, condition, execution or
delivery. (ECED)
 Secondary evidence may be admitted only be laying the basis for its
production. Specifically, laying such basis requires compliance with
the following:
1. The offeror must prove the execution and existence of the original
document.
2. The offeror must show the cause of its unavailability; and,
3. The offeror must show that the unavailability was not due to his
bad faith.
- The due execution and authenticity of the document must be
proved either 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.
- The presentation of SE must be in the following order: CRT 1) a
copy of the original, 2) a recital of the contents of the document
in some authentic document, or 3) by the testimony of the
witness.
 The hierarchy of preferred SE must be strictly followed
because of the requirements of the rule, the testimony of the
witness to prove the contents of the lost original is
inadmissible if a copy is available or if there is a recital of the
contents of the writing in some authentic document.
 Parol evidence rule applies only to contracts which the parties have
decided to set forth in writing.
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- As a rule, a written form is not required for the existence of a
contract because contracts are perfected by mere consent, it would be
legally convenient for the parties to reduce the contract in written
form in order to have a tangible and incontrovertible evidence of a
previous meeting of the minds.
- when the terms of agreement have been reduced to writing, it is
considered 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.
 if the written agreement already represents the final expression of
the agreement of the parties on the subject. Being the final
agreement, any extraneous or parol evidence is inadmissible for
any of the following purposes 1) modify, 2) explain or 3) add to
the terms of the written agreement. (MED)
- For PER to apply, a written contract need not be in any particular
form, or be signed by both parties. As a rule, bills, notes and other
instruments of a similar nature are not subject to be varied or
contradicted by parol or extrinsic evidence.
- the PER forbids any addition to or contradiction of, the terms of a
written agreement by testimony or other evidence purporting to show
that different terms were agreed upon by the parties, varying the
purport of the written contract. Whatever is not found in the writing
is understood to have been waived and abandoned.
- PER applies only to the parties and successors-in-interest. However,
it does not apply to oral agreements.
- Exceptions to PER, to wit: VISA
1. Validity of written agreement;
2. Intent of the parties not expressed in written agreement;
3. Subsequent agreements, made after the execution of written
agreement;
4. Ambiguity (latent), imperfection or mistake.
 Intrinsic or latent ambiguity is one which is not apparent on
the face of the document but which lies in the person or thing
that is the subject of the document or deed.
- PER is admissible to explain the meaning of a contract, it cannot
serve the purpose of incorporating into the contract additional
contemporaneous conditions which are not mentioned at all in the
writing unless there has been fraud or mistake.
- Even if the PER is admitted, such admission would not mean that the
court would give probative value to the parol evidence. Admissibility
is not the equivalent of probative value or credibility.
 BER may be distinguished from the PER in the following manner:
APPI
1. As to the importance of the document. The BER establishes a
preference for the original document over the secondary evidence
thereof. The PER is not concerned with the primacy of evidence
but presupposes that the original is available.
2. As to the preclusion of other evidence. The BER precludes the
admission of secondary evidence if the original document is
available. The PER precludes the admission of other evidence to
prove the terms of a document other than the contents of the
document itself for the purpose of varying the terms of the writing.
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3. As to party who invoke the rule. The BER can be invoked by any
litigant an action whether or not said litigant is a party to the
document involved. The PER can be invoked only by the parties to
the document ad their successors-in-interest.
4. As to application, the BER applies to all forms of writing. The
PER applies to written agreements and wills.
 Authentication is the preliminary step in showing the admissibility of
an evidence.
- Authentication of private documents is not required in the following:
1. When the document is an ancient one within the context of S21,
R132;
 Ancient document is a private document that is more than 30
years old produced from a custody in which it would naturally
be found if genuine and is unblemished by any alterations or
circumstances of suspicion
 While the witness is not needed to prove the due
execution and authenticity of the document, a witness is
needed to identify the same.
2. When the genuineness and authenticity of an actionable
document have not been specifically denied under oath by the
adverse party under S8, R8;
3. When the genuineness and authenticity of the document have
been admitted under S4, R129; or
4. When the document is not being offered as authentic as implied
from S20, R132, which requires authentication only when the
document is offered as authentic.
 S22, R132 does not require expert testimony to prove the
handwriting of a person because: 1) he has seen the person
write; or 2) 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; or 3)
by a comparison made by the witness or the court, with
writings admitted or treated as genuine by the party against
whom the document is offered, or proved to be genuine to the
satisfaction of the judge.
 Notarized document does not require authentication as they
enjoy prima facie presumption of authenticity and due
execution. To overcome the presumption, there must be
sufficient, clear and convincing evidence as to exclude all
reasonable controversy as to the falsity of the certificate.
 In Heirs of Medina v. Natividad, the Court held that a
notary public in a foreign country is not one of those who
can issue the certificate mentioned in S24, R132. The
Court ruled that non-compliance with said provision, will
render the SPA inadmissible in evidence. The failure to
have the SPA authenticated according to the Court, is not
a mere technicality but a question of jurisdiction.
 In Tujan-Militante v. Nustad, an SPA notarized abroad
does not need a consular certification for it to be
admitted in evidence. **
Genuineness of a Handwriting
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- It does not require expert testimony to prove the handwriting of a
person. It may be proven by any witness who believes it to be the
handwriting of a person because: 1) he has seen the person write; or
2) 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; or 3) by comparison made by the
witness or the court, with writings admitted or treated as genuine by
the party against whom the document is offered, or proved to be
genuine to the satisfaction of the judge.
 Importance of Public or Private document:
- Before the admission of a private document in evidence that is
offered authentic, its due execution and authenticity must be
proved (S20, R123, ROC). This requirement does not apply to a
public document which is admissible without further proof of its
due execution and genuineness.
 Public Document
1. Every document duly notarized 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.
2. Notarization of a private document converts the document
into a public one and renders it admissible in court without
further proof of its authenticity. It is entitled to full faith and
credit upon its face. However, the irregular notarization or
lack of notarization does not necessarily affect the validity of
the contract reflected in the document.
3. It is well settled that a document acknowledged before a
notary public is a public document that 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 die execution.
- To overcome this presumption, there must be presented
evidence that is clear and convincing. One who denies the
due execution of a deed where one’s signature appears has
the burden of proving that contrary to the recital in the
jurat, one never appeared before the notary public and
acknowledged the deed to be a voluntary act.
4. Under S23, R132, ROC, when a public officer, in the
performance of his duty, makes an entry in the public
record, the document of such entry is deemed prima facie
evidence of the facts stated in the entry.
- While a public document does not require the authentication
imposed upon a private document, there is a necessity for
the showing to the court that indeed a record of the official
acts of official bodies, tribunals or of public officers exists.
(See S24, R132, ROC)
a) An official publication thereof;
b) By I) a copy of the document attested by the officer
having legal custody of the record or by the attestation
of his deputy; II) if the record is not kept in the
Philippines, such attestation must be accompanied by a
certificate that such officer has the custody; III) if the
officer in which the record is kept is in a foreign
country, the certificate may be made by a secretary of
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
the embassy or legation, consul-general, consul, vice-
consul, or consular agent or by any officer in the
foreign service of the Philippine stationed in the foreign
country in which the record is kept, and authenticated
by the seal of his office. (relate it to S26, R132)
 In case of SPA executed abroad, the SC held that a
notary public in a foreign country is not of the
those who can issue the certificate mentioned in
S24, R132. The Court ruled that non-compliance
with said provision, will render the SPA
inadmissible in evidence. The failure to have the
SPA authenticated according to the Court, is not a
mere technicality but a question of jurisdiction.
 In Tujan-Militante v. Nustad, 6/19/2017, S24,
R132 (Proof of official record) applies only to
S19(a) not to (b) and (c) of R132. Hence, an SPA
notarized abroad does not need a consular
certification for it to be admitted in evidence.
 Last wills and testaments must undergo an
authentication process even if they are notarized in
accordance with Art. 806, NCC. Art. 838, NCC
provides that no will shall pass either real or
personal property unless proved and allowed in
the proper court.
5. S29, R132 authorizes the impeachment of any judicial record
if there be evidence of the existence of any of the following
grounds: 1) lack of jurisdiction in the court or judicial officer,
2) collusion between the parties, or 3) fraud in the party
offering the record, in respect to the proceedings.
6. As to Foreign judgment, before it is given presumptive
evidentiary value, the document must first be presented and
admitted in evidence.
7. As to Church registries, it is well-settled that church
registries of births, marriages, and deaths are no public
writing, nor are they kept by duly authorized public officials.
They are private writings and their authenticity must therefore
be proved, as are all other private writings in accordance with
the Rules of Evidence.
 Private document
1. It 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.
2. Lacking the official or sovereign character of a public
document or the solemnities prescribed by law, a private
document requires authentication in the manner allowed by
law or the ROC before its acceptance as evidence in court.
Testimonial evidence or oral evidence is evidence elicited from the
mouth of a witness. It is also called vice voce evidence which literally
means living voice or by word of mouth.
- Competence of a witness refers to his personal qualification to
testify and the absence of any factor that would disqualify him from
being a witness.
65
- Self-authenticating documents need a witness to identify the
document because being inanimate, a document or an object cannot
speak for itself.
- The rule clearly requires that the examination of a witness in a trial
or hearing shall be done under oath or affirmation. No court would
and should allow the testimony of someone who desires to testify but
refuses to sear or make an affirmation.
- The following disqualifications of witnesses: MIM DIP – 1) mental
incapacity or immaturity 2) marriage disqualification rule 3) death or
insanity (dead man’s statute and claim against insane) 4) privilege
communication (MAP PP)
- Competency of a witness may be distinguished from credibility of
the witness, to wit:
As to significance. Competency of witness has reference to the
basic qualification of a witness as his capacity to perceive and
communicate his perception to other. It also includes the absence of
any of the disqualifications imposed upon a witness. Credibility of a
witness refers to the believability of a witness and has nothing to do
with the law or the rules.
 Bias is not even a basis for declaring a witness incompetent to
testify. The relationship of a witness with a party does not ipso
facto render him a biased witness in criminal cases where the
quantum of evidence is proof beyond reasonable doubt.
 Drug abuse will not render a person incompetent to testify. It
becomes relevant only if the witness was under the influence of
drugs at the time he is testifying or at the time the events in
question were observed.
 Deaf-mutes are not necessarily incompetent as witness. They are
competent where they can: 1) understand and appreciate the
sanctity of an oath; 2) comprehend facts they are going to testify
to; and 3) communicate their ideas through a qualified interpreter.
(OCC)
 Every child is presumed qualified to be a witness as the
presumption is established by the Rule on Examination of a
Child Witness and to rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party
challenging his competence.
 When the court finds that 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, the court shall, motu propio or on motion of
party, conduct a competency examination of the child.
 The competency examination of the child shall be conducted
only by the judge. If counsels of the parties desire to ask
questions, they cannot do so directly. Instead, they are allowed
to submit question to the judge which he may ask the child in
his discretion.
 Questions concerning the credibility of a witness are best
addressed to the sound discretion of the trial court as it is in the
best position to observe his demeanor and bodily movements.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
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 Survivorship disqualification rule or the dead man’s statute –
applies only to civil case or a special proceeding over the estate of a
deceased or insane person.
- The following are the elements for the application of the rule: SEWT
1. the suit is upon a claim by the plaintiff against the estate of said
deceased or person of unsound man;
2. the defendant in the case is the executor or administrator or a
representative of the deceased or the person of unsound mind;
3. the witness is the plaintiff, or an assignor of that party, or a
person in whose behalf the case is prosecuted; and,
4. the subject of the testimony is to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind.
- Its purpose is to close the lips of the plaintiff when death has closed
the lips of the defendant, in order to remove from the plaintiff the
temptation to do falsehood and the possibility of fictitious claims
against the deceased.
- The rule contemplates a suit against the estate, its administrator or
executor and not a suit filed by the administrator or executor of the
estate.
- The rule will not apply where the plaintiff is the executor,
administrator as representative of the deceased or if the plaintiff is
the person of unsound mind.
- when a counterclaim is set up by the administrator of the estate, the
case is removed from the operation of the “dead man’s statute.”
- Offering the testimony of a so-called disinterested witness is not a
transgression of the rule since the prohibition extends only to the
party or his assignor or the person in whose behalf the case is
prosecuted.
- the survivorship disqualification rule is intended to benefit the
estate of the deceased or the insane person, this protection may be
waived by 1) failing to object to the testimony, or 2) cross-
examining the witness on the prohibited testimony, or 3) by offering
evidence to rebut the testimony.
 Marital disqualification rule (MDR) or Spousal immunity – the rule
prohibiting testimony by one spouse against the other is based on
society’s intent to preserve the marriage relations and promote
domestic peace.
- The forbids the husband or the wife to testify for or against the other
without the consent of the affected spouse except in those cases
authorized by the rule. The prohibition extends not only to a
testimony adverse to the spouse but also to a testimony in favor of
the spouse.
- In order that the husband or wife may claim the privilege, it is
essential that they be validly married. If they are not, there is no
privilege.
- The prohibited testimony is one that is given or offered during the
existence of marriage. The rule does not prohibit a testimony for or
against the other after the marriage is dissolved.
- If the testimony for or against the other spouse is offered during the
existence of the marriage, it does not matter if the facts subject of the
testimony occurred or came to the knowledge of the witness-spouse
66
before the marriage. The affected spouse may still invoke the rule by
objecting to the testimony as long as it is offered during the
marriage.
 In People v. Castaneda, where the marital and domestic
relations have become so strained that there is no more
harmony, peace or tranquility to be preserved, there is no
longer any reason to apply the marital disqualification rule.
(Bar 2006)
 Marital privileged communication (MPC) rule, the husband or the
wife cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during
the marriage.
- The application of the rule requires the presence of the following
elements: MCD
1. There must be a valid marriage between the husband and wife;
2. There is a communication received in confidence by one from
the other; and,
3. The confidential communication was received during the
marriage.
 The rule does not apply if it can be shown that their relations
are so estranged that the reason for the rule no longer exist.
(Bar 2004)
- For information to be confidential, it must be 1) made during and 2)
by reason of the marital relations and is intended not to be shared
with others. Without such intention, common reason suggests that
the information is not confidential.
- The prerogative to object to a confidential communication between
the spouses is vested upon the spouses themselves, particularly the
communicating spouse, not a third person.
- The MDR may be distinguished from MPCR in following manner:
1. As to confidentiality. The MPCR has reference to confidential
communication received by one spouse from the other during
the marriage. The MDR does not refer to confidential
communications between the spouses.
2. As to the time the communication received. The MDR includes
facts, occurrences or information even prior to the marriage
unlike MPCR applies only to confidential information received
during the marriage. The MDR is broader because it prevents
testimony for or against the spouse on any fact and not merely a
disclosure of confidential information.
3. As to the time of objection. The MPCR applies when the spouse
affected by the disclosure of the information or testimony may
object even after the dissolution of marriage as the privilege
does not cease when the marriage is dissolved. The MDR can no
longer be invoked once the marriage is dissolved as it may be
asserted only during the marriage.
4. As to the spouse to be impleaded to the action. The MDR
requires that the spouse against for or against whom the
testimony is offered is a party to the action. The MPCR does not
require the other spouse to be a party to the action.
Attorney-Client privilege
- The following requisites must be present for the privilege to arise:
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Remedial Law
1. There must be a communication made by the client to the
attorney, or an advice given by the attorney to his client;
2. The communication or advice must be given in confidence; and,
3. The communication or advice must be given either in the course
of the professional employment or with a view to professional
employment;
Priest-Penitent Privilege
- As a rule, every communication arising from the professional
relationship cannot be disclosed without his consent The privilege is
personal and it belongs to the client. If the client waives the
privilege, no one else including the attorney can invoke it.
- The mere relation of attorney and client does not raise a presumption
of confidentiality. The client must have intended the communication
to be confidential.
- privileged information relates only to past crimes not intention to
Doctrine of Executive Privilege
commit future crime. Cut-off point is when the communication was
made to the client, not when witness will testify.
- Where a person consults an attorney, not as a lawyer, but merely as a
friend, or a participant in a business transaction, the consultation
would not be one made in the course of a professional employment
or with a view to professional employment as required by S24(b),
R130.
- It does not extend to communication where the client’s purpose is the
furtherance of a future crime or fraud.
- Last link doctrine refers to a non-privileged information, such as
the identity of the client, is protected if the revelation of such
information without necessarily reveal privileged information.
- Those made to the attorney’s secretary, clerk or stenographer for
transmission to the attorney for the purpose of the professional
relationship, with a view to such relationship, or knowledge acquired
by such employees in such capacity are covered by the privilege.
- Before the statements of the client and the advice of the attorney be
deemed as privileged, the same should have been intended to be
confidential.
 The matters communicated to the attorney are evidently not
intended to be confidential when they were made to the layer but
in the presence of third persons who neither stand in a position of
peculiar confidence to the client or are not agents of the attorneys.
Physician-Patient Privilege
- The rationale of this privilege is to encourage the patient to freely
disclose all the matter which may aid in the diagnosis in the
treatment of a disease or an injury.
- The information which cannot be disclosed refers to 1) any advice
given to the client; 2) any treatment given to the client; 3) any
information acquired in attending such patient provided that the
advice, treatment or information was made or acquired in a
professional capacity and was necessary to enable him to act in that
capacity and was necessary to enable him to act in that capacity, and
4) the information sought to be disclosed would tend blacken the
reputation of the patient.
- it could be the result of a quasi-contractual relationship as when
the patient is seriously ill and the physician treats him even if he is
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not in condition to give consent as in the situation described in Art.
2167, NCC.
- The physician may be said to be acting in a professional capacity
when he attends to the patient for either curative or preventive.
- The priest or minister hearing the confession in his professional
capacity is prohibited from making a disclosure of the confession
without the consent of the person confessing.
- the privilege also extends not only to a confession made by the
penitent but also to any advice given by the minister or priest.
- The communication must be made pursuant to confession of sins.
- The power of the government to withhold information from the
public, the courts and the Congress.
- The President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions
and to do so in way many would be unwilling to express except
privately.
- It was held that secrets involving military, diplomatic and national
security matters, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused were
exempted from the right to information.
 The right to information does not extend to presidential
conversations, correspondence and discussions in close-door
cabinet meetings.
 S3, EO 464 required that all public officials enumerated shall
secure consent of the President prior to appearing before either
House of Congress to give effect to the purpose of the EO.
- The following elements of presidential communication privilege:
1. The protected communication must relate to a quintessential and
non-delegable presidential power;
2. The communication must be authored or solicited by a close
advisor of the President or the President himself. The judicial
test is that the advisor must be in operational proximity with
the President.
3. The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need,
such that the information sought “likely contains important
evidence” and by the unavailability of the information elsewhere
by an appropriate investigating authority.
- When Congress exercises its power of inquiry, the department heads
are not exempt by the mere fact that they are department heads.
Accordingly, only one executive official may be exempted from the
power of inquiry of Congress – the President upon whom executive
power is vested and is beyond reach of Congress except through the
power of impeachment.
- The Court held that S1, EO 464 cannot be applied to appearance of
department heads in inquiries in aid of legislation and Congress is
not bound to respect the refusal of the department heads in such
inquiry, unless a valid claim of privilege is subsequently made by the
President or by the Executive Secretary.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- The information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest.
Examination of Witnesses
- S1, R132 provides for the examination of the witness in open court
and, unless the question calls for a different mode, the answer of the
witness shall be given orally. This method allows the court the
opportunity to observed the demeanor of the witness and also allows
the adverse party to cross- examine the witness.
- The witness must take either an oath or an affirmation but the
option to do is given to the witness and not to the court.
 when the witness refuses to take an oath or give any affirmation,
the testimony may be barred.
- Leading questions are not appropriate in direct and re-direct
examination particularly when the witness is asked to testify about a
major element of the cause of action or defense. It is allowed in cross
and re-cross examination.
 Leading questions are, however, allowed in a direct examination in
the following instances: 1) on preliminary matters, 2) when the
witness is ignorant or a child of tender years, or is feeble-minded
or a deaf-mute and there is difficulty in getting direct and
intelligible answers from such witness, 3) when the witness is a
hostile witness, or 4) when the witness is an adverse party or an
officer, director, or managing agent of a corporation, partnership or
association which is an adverse party.
 Under the Rule on Examination of Child Witness, the court may
allow leading questions in all stages of examination of a child
under the condition that the same will further the interest of justice.
 Right and obligations of a witness
- As a rule, a witness has an obligation to answer questions, although
his answer may tend to establish a claim against him.
- An accused may totally refuse to take the stand but a mere witness
cannot refuse to take the stand. Before he refuses to answer, he must
wait for the incriminating question.
- The right against self-incrimination applies only to testimonial
evidence.
1. Extracting blood samples and cutting strands of hair do not
involve testimonial compulsion but purely mechanical acts
which neither requires discretion nor reasoning.
2. It is well-settled rule that the rights of the accused are not
violated by compulsory testing for HIV/AIDS. There is no
testimonial compulsion involved by extracting blood from the
accused for testing purposes. Hence, there is no violation of the
right to privacy and the right to be presumed innocent.
3. the pair of short pants may be considered as circumstantial
evidence when taken with other circumstances. No valid
objection may be interposed over the order of the court to put on
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the pair of pants. The right against self-incrimination does not
apply to a physical and mechanical act.
- The examination of a child witness presented in a hearing or any
proceeding shall be done in open court. The answer of the witness
shall be given orally, unless the witness is incapacitated to speak, or
the question calls for a different mode of answer.
 The court may order that the testimony of the child be taken by
live-link television if there is a substantial likelihood that the
child would suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case may be. The
trauma should be of a kind which would impair the completeness
or truthfulness of the testimony of the child.
 To shield the child from the accused, the court may allow the child
to testify in such a manner that the child cannot see the accused by
testifying through one-way mirrors, and other devices.
- Death or absence of a witness
1. If the witness dies before his cross-examination is over, his
testimony on the direct may be stricken out only with respect to
the testimony not covered by the cross-examination. The
absence of the witness is not enough to warrant striking out of
his testimony for failure to appear for further cross-examination
where the witness has already been sufficiently cross-examined,
and the matter on which the cross-examination is sought is not in
controversy.
2. If the witness was not cross-examined because of causes
attributable to the cross-examining party and the witness had
always made himself available for cross-examination, the direct
testimony of the witness shall remain in the record and cannot be
ordered stricken off because the cross-examiner is deemed to
have waived the right to cross-examine the witness.
 Impeachment of Witness
- Impeachment is basically a technique employed usually as part of
the cross-examination to discredit a witness by attacking his
credibility. Destroying credibility is vital because it is linked with a
witness’ ability and willingness to tell the truth.
- A witness may be impeached through the following modes: 1) by
contradictory evidence; 2) by evidence that his general reputation
for truth, honesty or integrity is bad; or 3) by evidence that he has
made at other times statements inconsistent with his present
testimony.
Res Inter Alios Acta Rule
- Admission is an act, declaration (statement) or omission of a party
as to a relevant fact. (ADO / ASO)
 Effects of admissions:
1. An admission by a party may be given in evidence against
him.
2. His admission is not admissible in his favor, because it
would be self-serving evidence.
3. Declaration of a party favorable to himself are not
admissible as proof of the facts asserted.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
- Admission may be distinguished from confession in the following
manner:
1. As to the acknowledgment of guilt. In a confession, there is an
acknowledgment of guilt. In an admission, there is merely a
statement of fact not directly involving an acknowledgment of
guilt or the criminal intent to commit the offense with which one
is charged.
2. As to the extent. An admission, in a general sense, includes
confessions, the former being a broader term because a
confession is also an admission. A confession is a specific type
of admission which refers only to an acknowledgement of guilt.
3. As to implication. An admission may be implied like an
admission by silence. A confession cannot be implied and it
should be a direct and positive acknowledgement of guilt
because S33, R130.
- Admission may be distinguished from declaration against interest
in the following manner:
1. As to the declarant. To be admitted as a declaration against
interest, the declarant must be dead or unable to testify. An
admission is admissible in evidence even if the person making
such is alive and is in court;
2. As to the time of the controversy happened, a declaration
against interest is generally made before the controversy arises;
an admission is made at any time, even during the trial.
3. As to the classification. An admission may be express or
implied. A confession cannot be implied.
 Under the principle of adoptive admission, a party may, by
his words or conduct, voluntarily adopt or ratify another’s
statement. Where it appears that a party clearly and
unambiguously assented to or adopted the statements of
another, evidence of those statements is admissible against
him.
- It a party’s reaction to a statement or action by another
person when it is reasonable to treat the party’s reaction as
admission of something stated or implied by the other
person.
4. As to one’s interest. A declaration against interest is generally
made against one’s pecuniary or moral interest; an admission is
admissible as long as it is inconsistent with his present claim or
defense and need not be against one’s interest;
5. As to admissibility against third party. A declaration against
interest is admissible even against third persons; an admission is
admissible only against the party making the admission.
6. As to the hearsay rule. A declaration against interest is an
exception to the hearsay rule; an admission is not, and is
admissible not as an exception to any rule.
- Judicial confession may be distinguished from extrajudicial
confession in the following manner:
1. As to the evidence against co-accused. An extrajudicial
confession may be given in evidence against the confessant but
not against his co-accused as they are deprived of the
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opportunity to cross-examine him. A judicial confession is
admissible against the declarant’s co-accused since the latter are
afforded opportunity to cross-examine the former.
2. As to conviction of the accused. A judicial confession may
sustain a conviction, while an extrajudicial confession is not
sufficient for conviction. The rule requires that the confession be
corroborated by evidence of corpus delicti, the body of the
crime or the offense.
 Extrajudicial confession or admission of one accused is
admissible only against the said accused but inadmissible
against the other accused. However, 1) if the
declarant/admitter repeats in court his extrajudicial confession
during trial and 2) the other accused is accorded opportunity to
cross-examine the admitter, such confession or admission is
admissible against both accused. When an extrajudicial
confession is repeated during the trial, it is transposed into
judicial admissions.
 Corpus delicti, and all the elements thereof, may be proved by
circumstantial evidence but such proof must be convincing
and compatible with the nature of the case.
1. The SC held that the element of death in the corpus delicti
may be established by circumstantial evidence.
2. The corpus delicti in the crime of illegal possession of
firearms is the accused’s lack if license or permit to
possess or carry the firearm, as possession itself is not
prohibited by law.
3. In theft, the fact of the commission of the offense or the
corpus delecti may be proven by testimonial evidence and
whatever documentary evidence is on the record.
 Any custodial confession made by a person arrested, detained
or under custodial investigation shall be in writing and signed
by such person in the presence of his counsel or in the latter’s
absence, upon a valid waiver and in the presence of any of the
parents, older siblings, his spouse, the municipal mayor, the
judge, district school supervisor or priest or minister of gospel
as chose by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding.
 Constitutional procedures on custodial investigation do
not apply to spontaneous statements, not elicited
through questioning by authorities, but given in the
ordinary manner whereby the accused orally admitted
having committed the crime. Hence, such confession is
admissible in evidence against him, even when he did so
without the assistance of counsel.
 A suspect’s confession, whether verbal or non-verbal,
when taken without the assistance of counsel or without a
valid waiver of such assistance regardless of the absence
of such coercion, or the fact that it had been voluntarily
given, is inadmissible in evidence, even if such confession
were gospel truth.
 Admission by silence involves a statement by a person in the presence
of a party to the action, criminal or civil. The statement contains
assertions against the party which, if untrue, would be sufficient cause
for the party to deny. His failure to speak against the statement is
admissible as an admission.
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Remedial Law
- For silence to be deemed an admission, it is necessary that: 1) the
witness heard and understood the statement; 2) he was at liberty to
make a denial; 3) the statement was about a matter affecting his
rights or in which he was interested and which naturally calls for a
response; 4) the facts were within his knowledge; and, 5) the fact
admitted from his silence is material to the issue.
 Res inter alion acta, branches:
1. The rule that the rights of a party cannot be prejudiced by the act,
declaration or omission of another (S28, R130)
- The above rule has reference only to extrajudicial confession.
Hence, statements made in open court by a witness implicating
persons, aside from his own judicial admissions, are admissible
as declarations from one who has personal knowledge of the
facts testified to.
- Exceptions to the res inter alios acta rule (first branch), to wit:
1. Admission by a co-partner or agent – requisites: 1) the
declaration or act of the partner or agent must have been
made or done within the scope of his authority, 2) the
declaration or act of the partner or agent must have been
made or done during the existence of the participation or
agency (while the person making the declaration was still a
partner or an agent), and, 3) the existence of the partnership
or agency is proven by evidence other than the declaration
or act of the partner or agent.
 Any declaration made before the partnership or agency
existed, or those made after, are not admissible against the
other partners or the principal but remains admissible
against the partner or agent making the declaration.
2. Admission by a co-conspirator – requisites: 1) the
declaration or act be made or done during the existence of
the conspiracy, 2) the declaration or act must relate to the
conspiracy, and 3) the conspiracy must be shown by
evidence other than such declaration or act.
 Incriminating declarations of co-conspirators made in the
absence of or without the knowledge of the others after
the conspiracy has come to an end is inadmissible.
 Declarant’s post arrest statements do not qualify as
admissible co-conspirator statements.
 An extrajudicial confession made by an accused is
admissible against him but not admissible against his co-
accused who took no part in the confession. An
extrajudicial confession is binding only upon the
confessant and is not admissible against his co-accused.
 The reason for this rule is that, on a principle of good
faith and mutual convenience, a man’s own acts are
binding upon himself, and are evidence against him.
3. Admission by privies – requisites: 1) there must be an act,
declaration or omission (ADO) by a predecessor-in-interest;
2) the ADO of the predecessor must have occurred while
he was holding the title of the property, and 3) the ADO
must be in relation to the property.
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 When the former owner of the property made the
declaration after he ceased to be the owner of the
property, the rule on admission by privies does not apply.
2. The rule that evidence of previous conduct or similar acts at one
time is not admissible to prove that one did or did not do the same
act at another time.
- Although the accused has previously been charged with and
convicted of similar offenses, the trial court commits an error if
it considers such circumstance for the purpose of showing that
he was likely to commit the crimes charged in the indictment.
- This rule prohibits the admission of the so-called propensity
evidence which is evidence that tends to show that what a
person has done at one time is probative of the contention that he
has done a similar act at another time.
Judicial Affidavit Rule (JAR)
- The most basic reason for the adoption of the rule is: 1) to decongest
the courts of cases and 2) to reduce delays in the disposition of
cases.
- The JAR took effect on January 1, 2013 and shall apply to existing
cases.
- It shall take the place of the direct evidence of witnesses.
- The original document or object evidence need not be attached to the
judicial affidavit. The party or witness may keep the same in his
possession after the exhibit has been identified, marked as an
exhibit and authenticated. He must, however, warrant in his judicial
affidavit that the copy or reproduction attached is a faithful copy or
reproduction of the original.
 In case of failure to bring the originals for comparison, the
attached copy, reproduction or pictures shall not be admitted.
- The JAR shall apply to all actions, proceedings or incidents requiring
the reception of evidence.
- The JA of the witnesses and the documentary or object evidence
shall be filed by the parties with the court and served on the adverse
party, not later than 5 days before the pre-trial or preliminary
conference or the scheduled hearing, with respect to motions and
incidents.
- Service of papers shall be made either personally or by mail and if
services cannot be made through such modes, service shall be done
basically through substituted service by delivering a copy of the
paper to be served with the clerk of court.
- A party who fails to submit the required JA and exhibits on time
shall be deemed to have waived their submission.
 Applicability of the JAR to criminal cases:
1. The JAR applies to criminal cases where the maximum of the
imposable penalty does not exceed 6 years, except when the
accused agrees to the use of JA irrespective of the penalty
involved.
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2. The JAR applies to the civil aspect of the criminal action,
irrespective of the penalty involved. The penalty for the offense is
not to be considered.
 Non-compliance with the content requirements of S3, JAR, Effect:
1. A JA which does not conform to the content requirements shall
not be admitted by the court in evidence. However, it does not
absolutely bar the submission of a compliant replacement judicial
affidavit as long as the replacement shall be submitted before the
hearing or trial and provided further that the following requisites
are met: 1) the submission shall be allowed only once, 2) the delay
is for a valid reason, 3) the delay would not unduly prejudice the
opposing party, and 4) the public or private counsel responsible for
the preparation and submission of the affidavit pays a fine of not
less than P1,000.00 nor more than P5,000.00, at the discretion of
the court.
2. A false attestation shall subject the lawyer to disciplinary action,
including disbarment.
3. A JA which does not conform to the attestation requirement of S4,
JAR shall not be admitted by the court in evidence. However,
subject to the condition in num. 1 abovementioned.
 Objections to testimony in the JA, ruling of the court:
- The presentation of the JA and the statement of the purpose of the
testimony contained therein will give the adverse party the
opportunity to object to the testimony.
 The adverse party may, on the ground of inadmissibility, move to
1) disqualify the witness 2) strike out his affidavit, or 3) strike out
any of the answers found in the JA.
Hearsay Evidence
 Sec. 38, Rule 30 – a witness can testify only to those facts which he
knows of his personal knowledge; that is, which are derived from his
perception, except as otherwise provided by the Rules on Evidence
- To constitute hearsay, the following must be present: 1) an out-of-
court statement, oral, written or nonverbal conduct, made by other
than the one made by the declarant or witness testifying at the trial,
and 2) the out-of-court statement must be offered to prove the truth
of the matter asserted in the out-of-court statement. **
- The reliability if a testimony is based on the on the personal
knowledge of a witness.
- If a witness testifies on the basis of what others have told him, and
not on facts which he knows of his own personal knowledge, the
testimony would be excluded as hearsay evidence.
- The rule against hearsay testimony rests mainly on the ground that
there was no opportunity to cross-examine the declarant.
 The right to cross-examine the adverse party’s witness, being the
only means of testing the credibility of witnesses and their
testimonies, is essential to the administration of justice.
 An out-of-court statements is admissible if it is to be offered for
non-hearsay purpose to prove other than the truth of the matter
asserted.
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 A statement by an out-of-court declarant may be offered not
for the veracity of what is asserted but merely to impeach the
declarant’s credibility.
 Non-hearsay purpose is one which demonstrates by inference
from the tenor of the statement the state of mind of the speaker
or the declarant.
 It is the reaction of the witness to the tenor of the statement of
the declarant that is relevant, not the truth of the assertion in
the statement.
- Hearsay is not limited to oral testimony or statements. The rule that
excludes hearsay evidence applies to both written and oral
statements.
- The SC acknowledged that the ban on hearsay does not include
statements which are relevant independently of whether they are
true or not, like statements of a person to show, among others, his
state of mind, mental condition, knowledge, belief, intention, ill-will
and other emotions.
- Newspaper clippings or articles are hearsay if they were offered for
the purpose of proving the truth of the matter alleged, unless offered
for a purpose other than proving the truth of the matter asserted. *
- Hearsay evidence may be distinguished from opinion evidence as
follow:
Hearsay evidence is one that is not based on one’s personal
perception but based on the knowledge of others to prove the truth of
the matter asserted in an out-of-court declaration. An opinion
evidence is based on the personal knowledge or personal conclusions
of the witness based on his skill, training or experience.
 Independently relevant statements refer to a doctrinal that a
declarant’s statement may have relevance to an issue in a case from the
mere fact that the words were spoken or written, irrespective of the
truth or falsity of the assertion.
- the statements are admissible for some relevant reason independent
of their truth or falsity. They are relevant because the statement itself
is either the very fact in issue or a circumstantial evidence of a fact in
issue.
- The ban on hearsay evidence does not cover independently relevant
statements which are relevant independently of whether they are true
or not.
- Newspaper accounts of an incident are hearsay if offered to prove
the truth of the accounts but are not hearsay if offered for a purpose
other than the truth of the matter asserted. **
 The newspaper account is admissible only to prove that there was
a publication and merely the tenor of the news, but not its truth.
- A testimony that attacks the credibility of the witness is equally
relevant especially when that witness claims to have personal
knowledge of the facts testified to.
- If the statement of the declarant is being offered merely to prove the
tenor of the statement, it is may be considered as an independently
relevant statement, and thus not hearsay.
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Remedial Law
 The following are the exceptions to the rule that hearsay evidence is
inadmissible (admissible hearsay):
- They are hearsay evidence but they are deemed admissible hearsay
for certain reasons.
1. Dying declaration or ante mortem statement; elements: 1) the
declaration is one made by a dying person, 2) the declaration is
made by said dying person under the consciousness of his
impending death, 3) the declaration refers to the cause and
circumstances surrounding the death of the declarant and not
anyone else, 4) the declaration is offered in a cases where the
declarant’s death is the subject of inquiry, 5) the declarant is
competent a witness had survived and 6) the declarant should
have died. (DCSOCD)
- It has been rules that, as a general rule, when a person is at the
point of death, every motive to falsehood is silenced and the
mind is induced by the most powerful consideration to speak he
truth, and therefore the statements under such circumstances
deserve weight.
 A dying declaration is entitled to the highest respect since no
person who knows of impending death would make a careless
or false accusation.
 It is thus, admissible to provide the identity of the accused and
the deceased, to show the cause of death of the deceased, and
the circumstances under which the assault was caused upon
him.
- It is entitled to the utmost credence on the premise that no
person who knows of his impending death would make a
careless and false accusation.
- The reasons for its admissibility is necessity and trustworthiness
as the declarant’s death renders it impossible his taking the
witness stand, and it often happens that there is no other equally
satisfactory proof of the crimes.
- As long as the relevance is clear, a dying declaration may now be
introduced in a criminal or a civil action and the requirement of
relevance is satisfied where the subject of inquiry is the death of
the declarant himself.
- It must be shown that the declarant believed, at the time the
statement was made, that he was in a dying condition and had
given up the hope of surviving.
 The declarant’s belief that death is impending may be deduced
from all the surrounding circumstances such as his physical
condition, conduct and statements.
- If the declarant survives, his declaration may be admissible as part
of res gestae.
- It is submitted that the admissibility of a dying declaration does
not create conclusive presumption of credibility of the admitted
declaration.
 No evidence rule grants a dying declaration a favored status in
the hierarchy of evidence.
 The declaration himself may be impeached through the normal
methods provided for under the rules.
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2. Parts of the res gestae
- It is defined as those circumstances which are the undersigned
incidents of a particular litigated act and which are admissible
when illustrative of such act.
- It is the event that speaks for itself through the spontaneous
words or instinctive words or conduct of the witness, and not the
witness speaking for and about the event.
- It refers to the circumstances, facts and declarations that grow
out of the main fact and contemporaneous with the main fact as
to exclude the idea of deliberation and fabrication.
- It has been held that in spontaneous exclamations or statements,
the res gestae is the startling occurrence, whereas in verbal acts,
the res gestae are the statement accompanying the equivocal act.
A. Spontaneous statements, to be admitted in evidence, must have
the following characteristics:
1. There is a startling event or occurrence taking place;
2. A statement was made, while the event is taking place or
immediately prior to or subsequent thereto;
3. The statement was made before the declarant had the time to
contrive or devise a falsehood;
4. The statement relates to the circumstance of the startling
event or occurrences, or that the statement must concern the
occurrence in question and its immediate attending
circumstances.
 Spontaneous statement is anchored on the theory that
the statement was uttered under the circumstances where
the opportunity to fabricate is absent.
 If the statement made by the declarant is under the
influence of the occurrence, the event must be of such a
nature as to cause an excited reaction in an average
individual.
B. Verbal acts; to be admissible, the following requisites must be
present:
1. The principal act to be characterized must be equivocal;
2. The equivocal act must be material to the issue;
3. The statement must accompany the equivocal act; and,
4. The statement gives a legal significance to the equivocal act.
- A verbal act presupposes a conduct that is equivocal or
ambiguous, one which, in itself, does not signify anything
when taken separately.
3. Entries in the course of the business or business records rule;
the following requisites must be present: (PEKDO)
1. The person who made the entry must be dead or unable to
testify;
2. The entries were made at or near the time of the transaction to
which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or
religious; and,
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

5. The entries were made in the ordinary or regular course of

business. 6. Family reputation or tradition regarding pedigree

- It has been held that entries in the payroll, being entries in the
ordinary course of business, enjoy the presumption of regularity.
4. Declaration against interest refers to a declaration made by a
person, who at the time his declaration is presented in evidence, is
already dead or unable to testify.
- This declaration must be one which, when made, was known to
the declarant himself to be against his interest, pecuniary or
moral, and which would not have been made unless he believed
it to be true.
 It is necessary that the declarant knew that the statement was
against his interest and which he would not have made had it
not been true.
7. Common reputation
- It is admissible in evidence where the reputation refers to a
matter of public or general interest, or respecting marriage or
moral character and said matter is more than 30 years old.
- The common reputation must be existing prior to the
controversy. This may be established by monuments and
inscriptions or reputation in the family and not in the
community.
8. Entries in official records
- The requisites for the admissibility in evidence of entries in
official records, as an exception to the hearsay rule, are:

 Illustration: A statement by the debtor before he died that he 1. The entry was made by a public officer or by another
owes the creditor a sum of money, or an oral acknowledgment person specially enjoined by law to do so;
by the principal that he received the money previously 2. It was made by the public officer (entrant), or by such other
entrusted to his agent, are clear declarations against the person in the performance of a duty specially enjoined by
interest of the person making the statement. law; and,
3. The public officer or other person had sufficient knowledge
of the facts by him or her stated, which must have been
- This exception will not apply where the declarant is available as
acquired by the public officer or other person personally or
a witness. The declarant must be dead or unable to testify.
through official information. (EPK)
 Being outside the territorial jurisdiction of the country may be
- An entrant must have personal knowledge of the facts stated
a good reason for unavailability if his exact whereabouts
by him or such facts were acquired by him from reports made by
abroad are unknown.
persons under a legal duty to submit the same.
- People normally speak freely and even with untruth when the
9. Commercial lists and the like
statement is in their interest, but are usually unwilling to speak
falsely against their interest.
- They are made by persons engaged in that occupation and are
generally used and relied upon by them and those lists and
- If the declaration is favorable to the interest of the declaration, it
reports are published.
is a mere self-serving statement and does not fall as an
exception to the hearsay rule.
10. Learned treaties
- As a rule, the interest against which the declaration may have
11. Testimony or deposition at a former proceeding
been made should be either a pecuniary or moral interest, but in
our jurisdiction, the declaration could possibly be against one’s
- The following requisites must be satisfied for it to be admissible:
penal interest because if one admits to a crime, he is also civilly
liable, a liability that is pecuniary.
1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a former case or
5. Act or declaration about pedigree
proceeding, judicial or administrative, between the same
parties or those representing the same interests;
- to be admissible as an exception to the hearsay rule, it must be
3. The former case involved the same subject as that in the
shown that:
present case, although on different causes of action;
4. The issue testified to by the witness in the former trial is the
1. The declarant is dead or unable to testify;
same issue involved in the present case: and,
2. The declarant is related by birth or marriage to the person
5. The adverse party had an opportunity to cross-examine the
whose pedigree is in issue;
witness in the former case.
3. The declaration was made before the controversy; and
4. The relationship between the two persons is shown by
- The testimony contemplated is one given in a former case or
evidence other than such act or declaration.
proceeding, judicial or administrative, involving the same parties
and subject matter. The testimony was given by one who is now
- The declaration about pedigree may be received in evidence if
deceased or unable to testify.
the relationship is shown by evidence other than the declaration.
 Said testimony may be given in evidence against the adverse
- The word “pedigree” includes relationship, family, genealogy,
party provided the later had the opportunity to cross0examine
birth, marriage, death, the dates when and the places where these
the witness who gave the previous testimony.
facts occurred and the names of the relatives. It also embraces
facts of family history intimately connected with pedigree.

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Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law
Opinion Evidence
- As a general rule, the opinion of a witness is inadmissible because
when a witness testifies, 1) a witness does so with respect to facts
personally observed by him and 2) it is for the court to draw
conclusions from the facts testified to.
A. Expert testimony – when the opinion is that of an expert, the
opinion of a witness requiring special knowledge, skill,
experience or training which is shown to possess, it may be
receive in evidence.
- the Court is not bound by the opinion of an expert such as a
handwriting expert. Expert opinion evidence is to be
considered or weighed by the court in the light of its own
general knowledge and experience upon the subject inquiry.
 The opinion of handwriting experts is not necessarily
binding upon the court, the expert’s function being to place
before the court data upon which the court can form its own
opinion.
- It is not ordinarily conclusive. When faced with conflicting
expert opinions, court give weight and credence to that which
is more complete, thorough and scientific.
- Judges must also exercise independent judgment in
determining the authenticity or genuineness of the signature in
question, and not rely merely on the testimonies of
handwriting experts.
- Credentials of an expert witness play a factor in the
evidentiary and persuasive weight of his testimony, the same
cannot be the sole factor in determining its value.
B. Opinion of an ordinary witness
- When the opinion is that of a witness who is not an expert his
testimony may be admitted in evidence provided that the
proper basis of the opinion is given and the subject of the
opinion is any of the following matters: (IDMC)
1. The identity of a person about whom the witness has
adequate knowledge;
2. The handwriting of a person with which the witness has
sufficient familiarity;
3. The mental sanity of a person with whom he is
sufficiently acquainted; and,
4. The impression of the witness of the emotion, behavior,
condition or appearance of a person.
Character Evidence
- Character refers to what a man is and depends on the attributes he
possesses. It is not the same as a man’s reputation because the latter
depends on attributes which others believe one to possess
 Character is what the person really is, reputation is what he is
supposed to be in accordance with what people say he is and is
dependent on how people perceive him to be.
- As a rule, character evidence is inadmissible because the character or
reputation of a party is regarded as legally irrelevant in determining a
controversy.
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- In a criminal case, the prosecution cannot prove the bad moral
character of the accused in its evidence-in-chief. It can only do so in
rebuttal
 The prosecution may not offer evidence of the character of the
accused unless the accused himself has offered evidence of his
good moral character. The prosecution must wait until the accused
puts his character in issue during the proceedings.
 The offering of evidence of good moral character is a privilege of
the accused and the prosecution cannot even comment on his
failure to produce such evidence. But once he raises the issue of
his good character, the prosecution may, in rebuttal, offer evidence
of the defendant’s bad character.
Rule on Examination of a Child Witness:
- Child witness is any person who at the time of giving of testimony is
below the age of 18.
 It applies also to a person due to his physical or mental disability
or condition is unable to 1) fully take care of himself, or protect
himself from abuse, neglect, cruelty, exploitation or
discrimination.
 It is presumed that every child is qualified to be a witness, but it
does not preclude the court from conducting a competency
examination of the child.
 The examination may be conducted motu propio by the court or
on motion of a party.
- It shall govern the examination of the following child witnesses: 1)
the child witness who are victims of a crime; 2) the child witness
accused of a crime; and 3) the child witness to a crime.
- The rule does not apply to criminal proceedings but it applies to
non-criminal proceedings as long as such involve a child witness.
- As a rule, a leading question is not allowed in direct examination,
however the court may allow leading questions in all stages of
examination of a child if the same will further the interest of justice.
- An order that the testimony of the child be taken in a room outside
the courtroom and be televised to the courtroom by live-link
television may be applied for by the 1) prosecutor, 2) counsel, or 3)
guardian ad litem where the child is a victim or a witness.
 The court may order that the testimony of the child be taken by
live-link television if there is a substantial likelihood that the
child would suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case may be.
 The trauma must be of a kind which would impair the
completeness or truthfulness of the testimony of the child.
 If it is necessary for the child to identify the accused at the trial,
the court may allow the child to enter the courtroom for the limited
purpose of identifying the accused, or the court may allow the
child to identify the accused by observing the image of the latter
on a television monitor.
- The prosecutor, counsel or guardian ad litem may apply for that a
deposition be taken of the testimony of the child and that it be
recorded and preserved on videotape.
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Remedial Law
 The court shall issue an order that the deposition of the child be
taken and preserved by videotape if it finds out that the child will
not be able to testify in open court at the trial.
- Under the Sexual Abuse Shield Rule, the following are not
admissible in any criminal proceeding involving alleged sexual
child abuse:
1. Evidence offered to prove that the alleged victim engaged in
other sexual behavior, and
2. Evidence offered to prove the sexual predisposition of the
alleged victim.
Offer of Evidence
- Importance; an evidence must be formally offered as it is necessary
because it is the duty of the court to rest its findings of fact and
judgment only and strictly upon the evidence offered by the parties.
 to allow parties to attach any document to their pleadings and then
expect the court to consider it evidence, even without formal offer
and admission, may draw unwarranted consequences.
 Opposing parties will be deprived of their chance to examine the
document and object to its admissibility.
 The appellate court will have difficulty reviewing documents not
previously scrutinized by the court below.
- A formal offer of evidence is not required in certain cases, thus:
1. In a summary proceeding, because it is a proceeding where
there is no full blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents or affidavits used in deciding quasi-judicial or
administrative cases;
4. Lost object previously marked, identified, described in the
record, and testified to by witness who has been subjects of
cross-examination in respect to said objects.
 There is an instance when the Court allowed the admission of
evidence not formally offered if the following requirements are
present: 1) the evidence must have been duly identified by
testimony duly recorded; and 2) the same must have been
incorporated in the records of the case.
- An evidence is to be offered as to when the offer of evidence is made
depends upon the nature of the evidence:
1. As regards the testimony of the witness, the offer is to be made
at the time the witness is called to testify.
2. As regards documentary and object evidence, they are to be
offered after the presentation of a party’s testimonial evidence.
The offer is orally made unless allowed by the court to be in
writing.
- An offer of evidence is made:
1. When a party makes a formal offer of his evidence, he must state
the nature or substance of the evidence, and the specific
purpose for which the evidence is offered; and
2. The Court shall consider the evidence for the purpose for which
it is offered, not for any other purpose.
Objections
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- An objection must point out the specific ground of the objection, and
if it does not and if it does not do so, no error is committed in
overruling it.
 General objection does not clearly indicate to the judge the
ground upon which the objections are predicated. It does not
assign no grounds to the objection and actually specifies nothing.
 Special objection dictates largely by the need to allow the court to
intelligently rule on the objection and give the other party an
opportunity to withdraw the evidence or correct an error in his
presentation.
 Formal objection is one directed against the alleged defect in the
formulation of the question, such as leadings and misleading
questions, multiple questions and argumentative questions.
 Substantive objection is one made and directed against the very
nature of the evidence, i.e. m it is inadmissible either because it is
irrelevant or incompetent or both.
- Objections may be made for any of the following purposes:
1. To keep out inadmissible evidence that would cause harm to a
client’s cause. The rules of evidence are not-self-operating and,
hence, must be invoked by way of an objection;
2. To protect the record, i.e., to present the issue of inadmissibility
of the offered evidence in a way that if the trial court rules
erroneously, the error can be relied upon as a ground for a future
appeal;
3. To protect a witness from being embarrassed on stand or from
being harassed by the adverse counsel;
4. To expose the adversary’s unfair tactics like his consistently
asking obviously leading questions;
5. To give the 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 the inadmissibility of an otherwise
inadmissible evidence.
- Formal offer of evidence may be distinguished from offer of proof
in the following manner:
Formal offer of evidence refers either to the offer of the testimony
of a witness prior to the latter’s testimony, or the offer of the
documentary and object evidence after a party has presented his
testimonial evidence.
Offer of proof is the process by which a proponent of an excluded
evidence tenders the same.
 If what has been excluded is testimonial evidence, the tender is
made by stating for the record the name and other personal
circumstances of the proposed witness and the substance of his
proposed testimony.
 If the evidence excluded is documentary or of things, the offer of
proof is made by having the same attached to or made a part of
the record.
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB
Remedial Law

- The Rules of Court does not prohibit a party from requesting the
court to allow it to present additional evidence even after it has rested
its case.

76
Arranged by ATTY. HENRY S. PAYTE, JR., REA, REB