REMEDIAL LAW

SYLLABUS FOR THE 2021 BAR EXAMINATION

Notes: All Bar candidates should be guided that only laws with their respective amendments and canonical doctrines pertinent to these
topics as of June 30, 2019 will be covered in the 2020 Bar Examinations, except when provided in this syllabus. Principles of law are not
covered by the cut-off period. This syllabus is only a guide for the bar examinations. It should not be mistaken for a course syllabus.

I. GENERAL PRINCIPLES

A. Distinguish: Substantive law and Remedial law

Substantive law creates, defines and regulates rights and duties regarding
life, liberty or property which when violated gives rise to a cause of
action (Bustos v. Lucero, 81 Phil. 640).

Remedial law prescribes the methods of enforcing those rights and

obligations created by substantive law by providing a procedural system for
obtaining redress for the invasion of rights and violations of duties and by
prescribing rules as to how suits are filed, tried and decided by the courts.

As applied to criminal law, substantive law is that which declares what acts
are crimes and prescribes the punishment for committing them, as
distinguished from remedial law which provides or regulates the steps by
which one who commits a crime is to be punished.

B. Rule-making power of the Supreme Court

Article VIII Section 5 (5) of the Constitution expressly authorizes the High
Court to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

1. Limitations on the rule-making power of the Supreme Court

(1)     The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases
(2)     They shall be uniform for all courts of the same grade
(3)     They shall not diminish, increase, or modify substantive rights (Sec. 5[5], Art. VIII,
Constitution).
(4)     The power to admit attorneys to the Bar is not an arbitrary and despotic one, to be
exercised at the pleasure of the court, or from passion, prejudice or personal hostility, but is
the duty of the court to exercise and regulate it by a sound and judicial discretion.

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2. Power of the Supreme Court to amend and suspend procedural rules
(1)     When compelling reasons so warrant or when the purpose of justice requires
it. What constitutes and good and sufficient cause that would merit suspension of
the rules is discretionary upon courts. (CIR v. Migrant Pagbilao Corp., GR 159593,
Oct. 12, 2006).

Reasons that would warrant the suspension of the Rules:

(a) the existence of special or compelling circumstances

(b) merits of the case
(c) cause not entirely attributable to the fault or negligence of the party
favored by the suspension of rules
(d) a lack of ay showing that the review sought is merely frivolous and
dilatory
(e) the other party will not be unjustly prejudiced thereby1

(2)     To relieve a litigant of an injustice commensurate with his failure to comply

with the prescribed procedure and the mere invocation of substantial justice is not a
magical incantation that will automatically compel the Court to suspend procedural
rules. (Cu-Unjieng v. CA, 479 SCRA 594)

(3)     Where substantial and important issues await resolution. (Pagbilao, supra)

(4)     When transcendental matters of life, liberty or state security are

involved. (Mindanao Savings Loan Asso. V. Vicenta Vda. De Flores, 469 SCRA 416).

(5)     The constitutional power of the Supreme Court to promulgate rules of

practice and procedure necessarily carries with it the power to overturn judicial
precedents on points of remedial law through the amendment of the Rules of
Court (Pinga vs. Heirs of Santiago, GR 170354, June 30, 2006).

C. Nature of Philippine courts

Philippine courts are both courts of law and equity. Hence, both legal and
equitable jurisdiction is dispensed with in the same tribunal. 2

1. Meaning of a court
(1)     It is an organ of government belonging to the judicial department the
function of which is the application of the laws to the controversies brought
before it as well as the public administration of justice.

(2)     It is a governmental body officially assembled under authority of law

at the appropriate time and place for the administration of justice through
which the State enforces its sovereign rights and powers3.

(3)     It is a board or tribunal which decides a litigation or contest 4.

1
Sarmiento v. Zaratan, GR 167471, Feb. 5, 2007
2
US v. Tamparong, 31 Phil. 321
3
21 CJS 16
4
Hidalgo v. Manglapus, 64 OG 3189

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2. Distinguish: Court and Judge
(1)     A court is a tribunal officially assembled under authority of law; a
judge is simply an officer of such tribunal;

(2)     A court is an organ of the government with a personality separate and

distinct from the person or judge who sits on it;

(3)     A court is a being in imagination comparable to a corporation,

whereas a judge is a physical person ;

(4)     A court may be considered an office; a judge is a public officer; and

(5)     The circumstances of the court are not affected by the circumstances
that would affect the judge.

3. Classification of Philippine courts

(1) Regular courts engaged in the administration of justice are organized into four (4)
levels:

(a) First Level (MTCs, MeTCs, MCTCs) – which try and decide (1) criminal actions
involving violations of city or municipal ordinances committed within their
respective territorial jurisdiction and offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine and regardless of other
imposable accessory or other penalties, and (2) civil actions including ejectment,
recovery of personal property with a value of not more than P300,000 outside
MM or does not exceed P400,000 in MM;

(b) Second Level (RTCs, Family Courts) – courts of general jurisdiction; among the
civil actions assigned to them by law are those in which the subject of litigation
is incapable of pecuniary estimation, or involving title to or possession of real
property where the assessed value of the property exceeds P20,000 outside MM
or exceeds P50,000 in MM, except actions for ejectment (forcible entry and
unlawful detainer), or where the demand exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and cost, or the value of the
personal property or controversy exceeds P300,000 outside MM or exceeds
P400,000 in MM. RTCs also exercise appellate jurisdiction, to review cases
appealed from courts of the first level;

(c) Third Level (Court of Appeals, Sandiganbayan) – CA is an appellate court,

reviewing cases appealed to it from the RTC, on questions of fact or mixed
questions of fact and law. Appeals to it decided by the RTC in the exercise of
original jurisdiction are a matter of right; appeals with respect to cases decided
by the RTC in the exercise of its appellate jurisdiction are a matter of discretion.
Occasionally, CA may act as a trial court, as in actions praying for the annulment
of final and executor judgments of RTCs on the ground of extrinsic fraud
subsequently discovered, against which no other remedies lies.

Sandiganbayan has jurisdiction over all criminal and civil cases involving graft
and corrupt practices act, and such other offenses committed by public officers
and employees including those in GOCCs in relation to their office. It also has
exclusive appellate jurisdiction over final judgments, resolutions, or orders of
RTCs whether in the exercise of their own original or appellate jurisdiction over
criminal and civil cases committed by public officers or employees including
those in GOCCs in relation to their office.

(d) Fourth Level (Supreme Court)

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4. Courts of original and appellate jurisdiction

(1) 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

(2) MeTCs, MCTCs and MTCs are courts of original jurisdiction without appellate
jurisdiction. RTC is likewise a court of original jurisdiction with respect to
cases originally filed with it; and appellate court with respect to cases
decided by MTCs within its territorial jurisdiction. (Sec. 22, BP 129)

(3) CA is primarily a court of appellate jurisdiction with competence to review

judgments of the RTCs and specified quasi-judicial agencies (Sec. 9[3], BP
129). It is also a court of original jurisdiction with respect to cases filed
before it involving issuance of writs of certiorari, mandamus, quo warranto,
habeas corpus, and prohibition. CA is a court of original and exclusive
jurisdiction over actions for annulment of judgments of RTCs (Sec. 9 [1],
[2], BP 129).

(4) The SC is fundamentally a court of appellate jurisdiction but it may also be a

court of original jurisdiction over cases affecting ambassadors, public
ministers and consuls, and in cases involving petitions for certiorari,
prohibition and mandamus (Sec. 5[1], Art. VIII, Constitution). The Supreme
Court en banc is not an appellate court to which decisions or resolutions of a
division of the Supreme Court may be appealed.

5. Courts of General and Special jurisdiction

1. Courts of general jurisdiction are those with competence to decide on
their own jurisdiction and to take cognizance of all cases, civil and
criminal, of a particular nature. Courts of special (limited) jurisdiction are
those which have only a special jurisdiction 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.

2. A court may also be considered ‘general’ if it has the competence to

exercise jurisdiction over cases not falling within the jurisdiction of any
court, tribunal, person or body exercising judicial or quasi-judicial
functions. It is in the context that the RTC is considered a court of
general jurisdiction.

6. Constitutional and statutory courts

1. A constitutional court is one created by a direct Constitutional provision.
Example of this court is the SC, which owes its creation from the
Constitution itself. Only the SC is a Constitutional court.

2. A statutory court is one created by law other than the Constitution. All courts
except the SC are statutory courts. SB was not directly created by the
Constitution but by law pursuant to a constitutional mandate.

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7. Courts of law and equity
The distinction can sometimes be significant. Specifically, a court of law must
follow the black letter rules, while a court of equity has the ability to do what is
fair and equal.

Article 9 of the Civil Code expressly mandates the courts to make a ruling despite
the "silence, obscurity or insufficiency of the laws 5.

While Section 6 of the Rules of Court provides that, the Rules shall be liberally
construed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.

Procedural Due Process is not based solely on a mechanical and literal application
that renders any deviation inexorably fatal. Instead, procedural rules are liberally
construed to promote their objective and to assist in obtaining a just, speedy and
inexpensive determination of any action and proceeding 6.

8. Principle of judicial hierarchy

1. This is an ordained sequence of recourse to courts vested with concurrent
jurisdiction, beginning from the lowest, on to the next highest, and
ultimately to the highest. This hierarchy is determinative of the venue of
appeals, and is likewise determinative of the proper forum for petitions for
extraordinary writs. This is an established policy necessary to avoid
inordinate demands upon the Court’s time and attention which are better
devoted to those matters within its exclusive jurisdiction, and to preclude
the further clogging of the Court’s docket7.

2. A higher court will not entertain direct resort to it unless the redress cannot
be obtained in the appropriate courts. The SC is a court of last resort.  It
cannot and should not be burdened with the task of deciding cases in the
first instances. Its jurisdiction to issue extraordinary writs should be
exercised only where absolutely necessary or where serious and important
reasons exist.

3. Petitions for the issuance of extraordinary writs against first level courts
should be filed with the RTC and those against the latter with the CA. a
direct invocation of the SC’s original jurisdiction to issue these writs should
be allowed only where there are special and important reasons therefor,
clearly and specifically set out in the petition.

4. The doctrine of hierarchy of courts may be disregarded if warranted by the

nature and importance of the issues raised in the interest of speedy justice
and to avoid future litigations, or in cases of national interest and of serious
implications. Under the principle of liberal interpretations, for example, it
may take cognizance of a petition for certiorari directly filed before it.

5
NCC, Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.
6
Douglas Anama v. Philippine Savings Bank et. al., G.R. No. 187021, January 25, 2012
7
Sec. 9[1], BP 129; Sec. 5[1], Art. VIII, Constitution of the Philippines

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9. Doctrine of non-interference or doctrine of judicial stability
1. Courts of equal and coordinate jurisdiction cannot interfere with each other’s
orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a
writ of possession issued by another RTC. The principle also bars a court
from reviewing or interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of review.

2. This doctrine applies with equal force to administrative bodies. When the law
provides for an appeal from the decision of an administrative body to the SC
or CA, it means that such body is co-equal with the RTC in terms of rand and
stature, and logically beyond the control of the latter.

II. JURISDICTION
Jurisdiction – the power and authority of the court to hear, try and decide a case.

A. Classification of jurisdiction

1. Distinguish: Original and Appellate

1. 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

2. MeTCs, MCTCs and MTCs are courts of original jurisdiction without appellate
jurisdiction. RTC is likewise a court of original jurisdiction with respect to
cases originally filed with it; and appellate court with respect to cases
decided by MTCs within its territorial jurisdiction8.

3. CA is primarily a court of appellate jurisdiction with competence to review

judgments of the RTCs and specified quasi-judicial agencies 9. It is also a
court of original jurisdiction with respect to cases filed before it involving
issuance of writs of certiorari, mandamus, quo warranto, habeas corpus, and
prohibition. CA is a court of original and exclusive jurisdiction over actions
for annulment of judgments of RTCs10.

4. The SC is fundamentally a court of appellate jurisdiction but it may also be a

court of original jurisdiction over cases affecting ambassadors, public
ministers and consuls, and in cases involving petitions for certiorari,
prohibition and mandamus11. The Supreme Court en banc is not an appellate
court to which decisions or resolutions of a division of the Supreme Court
may be appealed.

8
Sec. 22, BP 129
9
Sec. 9[3], BP 129
10
Sec. 9 [1],[2], BP 129
11
Sec. 5[1], Art. VIII, Constitution

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 2. Distinguish: general and special

1. Courts of general jurisdiction are those with competence to decide on their

own jurisdiction and to take cognizance of all cases, civil and criminal, of a
particular nature. Courts of special (limited) jurisdiction are those which
have only a special jurisdiction 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.

2. A court may also be considered ‘general’ if it has the competence to exercise

jurisdiction over cases not falling within the jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions. It is in
the context that the RTC is considered a court of general jurisdiction.

3. Distinguish: Exclusive and Concurrent

Exclusive: only one court has the power (jurisdiction) to hear the case.

Concurrent: more than one court can hear the case.

B. Doctrines of hierarchy of courts and continuity of jurisdiction

The hierarchy of courts doctrine prohibits parties from directly resorting to a
higher court when relief may be obtained before the lower courts.

Nevertheless, this doctrine is not an iron-clad rule; it also admits of

exceptions, such as when the case involves matters of transcendental
importance.

Direct invocation of the Supreme Court's jurisdiction should only be allowed

when there are special, important and compelling reasons clearly and
specifically spelled out in the petition.

C. Jurisdiction of various Philippine courts

1. Supreme Court
1. Exclusive original jurisdiction in petitions for certiorari, prohibition and
mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan, NLRC

2. Concurrent original jurisdiction

a. With Court of Appeals in petitions for certiorari, prohibition and

mandamus against the RTC, CSC, Central Board of Assessment Appeals,
Quasi-judicial agencies, and writ of kalikasan, all subject to the doctrine
of hierarchy of courts.

b. With the CA and RTC in petitions for certiorari, prohibition and

mandamus against lower courts and bodies and in petitions for quo
warranto, and writs of habeas corpus, all subject to the doctrine of

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 hierarchy of courts.

c. With CA, RTC and Sandiganbayan for petitions for writs of amparo and
habeas data

d. Concurrent original jurisdiction with the RTC in cases affecting

ambassadors, public ministers and consuls.

3. Appellate jurisdiction by way of petition for review on certiorari (appeal by

certiorari under Rule 45) against CA, Sandiganbayan, RTC on pure questions
of law; and in cases involving the constitutionality or validity of a law or
treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty, jurisdiction of a lower court; and CTA in
its decisions rendered en banc.

4. Exceptions in which factual issues may be resolved by the Supreme Court:

a) When the findings are grounded entirely on speculation, surmises or

conjectures;

b) When the inference made is manifestly mistaken, absurd or

impossible;

c) When there is grave abuse of discretion;

d) When the judgment is based on misapprehension of facts;

e) When the findings of facts are conflicting;

f) When in making its findings the CA went beyond the issues of the
case, or its findings are contrary to the admissions of both the
appellant and the appellee;

g) When the findings are contrary to the trial court;

h) When the findings are conclusions without citation of specific evidence

on which they are based;

i) When the facts set forth in the petition as well as in the petitioner’s
main and reply briefs are not disputed by the respondent;

j) When the findings of fact are premised on the supposed absence of

evidence and contradicted by the evidence on record; and

k) When the Court of Appeals manifestly overlooked certain relevant facts

not disputed by the parties, which, if properly considered, could justify
a different conclusion.

2. Court of Appeals
1. Exclusive original jurisdiction in actions for the annulment of the judgments
of the RTC.

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 2. Concurrent original jurisdiction
a) With SC to issue writs of certiorari, prohibition and mandamus
against the RTC, CSC, CBAA, other quasi-judicial agencies
mentioned in Rule 43, and the NLRC, and writ of kalikasan.

b) With the SC and RTC to issue writs of certiorari, prohibition and

mandamus against lower courts and bodies and writs of quo
warranto, habeas corpus, whether or not in aid of its appellate
jurisdiction, and writ of continuing mandamus on environmental
cases.

c) With SC, RTC and Sandiganbayan for petitions for writs of

amparo and habeas data

3. Exclusive appellate jurisdiction

a. by way of ordinary appeal from the RTC and the Family Courts.

b. by way of petition for review from the RTC 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, CBAA and other bodies mentioned in Rule 43 and
of the Office of the Ombudsman in administrative disciplinary cases.

d. over decisions of MTCs in cadastral or land registration cases pursuant

to its delegated jurisdiction; this is because decisions of MTCs in these
cases are appealable in the same manner as decisions of RTCs.

3. Court of Tax Appeals

4. Sandiganbayan
1. Original jurisdiction in all cases involving:

a. Violations of RA 3019 (Anti-Graft and Corrupt Practices Act)

b. Violations of RA 1379 (Anti-Ill-Gotten Wealth Act)
c. Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the
principal accused are occupying the following positions in the government, whether
in permanent, acting or interim capacity at the time of the commission of the
offense.
d. Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and
Position Classification Act of 1989 (RA 6758)
Members of Congress and officials thereof classified as G-27 and up under RA 6758
Members of the Judiciary without prejudice to the provisions of the Constitution
Chairmen and Members of the Constitutional Commissions without prejudice to the
provisions of the Constitution
All other national and local officials classified as Grade 27 and higher under RA 6758
e. Other offenses or felonies committed by the public officials and employees
mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office

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 f. Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A
(Sec. 4, RA 8249)

2. Concurrent original jurisdiction with SC, CA and RTC for petitions for writs of
habeas data and amparo

5. Regional Trial Courts

1) Exclusive original jurisdiction

a. matters incapable of pecuniary estimation, such as rescission of

contract
b. title to, possession of, or interest in, real property with assessed
value exceeding P20,000 (outside Metro Manila), or exceeds
P50,000 in Metro Manila
c. probate proceedings where the gross value of the estate exceeds
P300,000 outside MM or exceeds P400,000 in MM
d. admiralty or maritime cases where the demand or claim exceeds
P300,000 outside MM or exceeds P400,000 in MM
e. other actions involving property valued at more than P300,000
outside MM or more than P400,000 in MM
f. criminal cases not within the exclusive jurisdiction of the
Sandiganbayan
2) Original exclusive jurisdiction over cases not falling within the jurisdiction of
any court, tribunal, person or body exercising judicial or quasi-judicial
functions

3) Original and exclusive jurisdiction to hear and decide intra-corporate

controversies:

a. Cases involving devises or schemes employed by or any acts, of the

board of directors, business associates, its officers or partnership,
amounting to fraud and misrepresentation which may be detrimental to
the interest of the public and/or of the stockholders, partners, members
of associations or organizations registered with the SEC
b. Controversies arising out of intra-corporate or partnership relations,
between and among stockholders, members or associates; between
any or all of them and the corporation, partnership or association of
which they are stockholders, members or associates, respectively; and
between such corporation , partnership or association and the state
insofar as it concerns their individual franchise or right to exist as such
entity
c. Controversies in the election or appointments of directors, trustees,
officers or managers of such corporations, partnerships or associations
d. Petitions of corporations, partnerships or associations to be declared in
the state of suspension of payments in cases where the corporation,
partnership of association possesses sufficient property to cover all its
debts but foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation, partnership of
association has no sufficient assets to cover its liabilities, but is under
the management of a Rehabilitation Receiver or Management

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 Committee.

4) Concurrent and original jurisdiction

a. with the Supreme Court in actions affecting ambassadors, other public

ministers and consuls
b. with the SC and CA in petitions for certiorari, prohibition and mandamus
against lower courts and bodies in petitions for quo warranto, habeas
corpus, and writ of continuing mandamus on environmental cases
c. with the SC, CA and Sandigabayan in petitions for writs of habeas data and
amparo

5) Appellate jurisdiction over cases decided by lower courts in their respective

territorial jurisdictions

6) Special jurisdiction over JDRC, agrarian and urban land reform cases not
within the exclusive jurisdiction of quasi-judicial agencies when so
designated by the SC.

6. Family Courts

Under RA 8369, shall have exclusive original jurisdiction over the following cases:

1) Petitions for guardianship, custody of children and habeas corpus involving

children
2) Petitions for adoption of children and the revocation thereof
3) Complaints for annulment of marriage, declaration of nullity of marriage and
those relating to status and property relations of husband and wife or those
living together under different status and agreements, and petitions for
dissolution of conjugal partnership of gains
4) Petitions for support and/or acknowledgment
5) Summary judicial proceedings brought under the provisions of EO 209
(Family Code)
6) Petitions for declaration of status of children as abandoned, dependent or
neglected children, petitions for voluntary or involuntary commitment of
children, the suspension, termination or restoration of parental authority and
other cases cognizable under PD 603, EO 56 (1986) and other related laws
7) Petitions for the constitution of the family home
8) In areas where there are no Family Courts, the above-enumerated cases
shall be adjudicated by the RTC (RA 8369)

7. Metropolitan Trial Courts, Municipal Trial Courts, Municipal Trial

Courts in Cities, and Municipal Circuit Trial Courts
1) Criminal cases
Exclusive original jurisdiction
a) Summary proceedings for violations of city or municipal
ordinances committed within their respective territorial
jurisdiction, including traffic laws

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 b) offenses punishable with imprisonment not exceeding six (6)
years irrespective of the amount of fine, and regardless of other
imposable accessory or other penalties, including the civil liability
arising from such offenses or predicated thereon, irrespective of
the kind, nature, value or amount thereof; provided however,
that in offenses involving damage to property through criminal
negligence, they shall have exclusive original jurisdiction
thereof12.

2) Civil actions

Exclusive original jurisdiction

a. civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount the
demand does not exceed P200,000 outside MM or does not
exceed P400,000 in MM, exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs.

b. Summary proceedings of forcible entry and unlawful detainer,

violation of rental law

c. 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 does not exceed
P50,000 in MM

3) Special jurisdiction over petition for writ of habeas corpus and application for
bail if the RTC Judge in area is not available

4) Delegated jurisdiction to hear and decide cadastral and land registration

cases where there is no controversy provided the value of the lad to be
ascertained by the claimant does not exceed P100,000

D. Aspects of jurisdiction
1. Jurisdiction over the parties

a. How jurisdiction over the plaintiff is acquired

Acquired when the action is commenced by the filing of the complaint. This
presupposes payment of the docket fees.

b. How jurisdiction over the defendant is acquired

Jurisdiction over the person of the defendant is required only in an action in personam; it
is not a prerequisite in an action in rem and quasi in rem.

12
Sec. 2, RA 7691

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In an action in personam, jurisdiction over the person is necessary for the court to validly
try and decide the case, while in a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction on the court, provided
the latter has jurisdiction over the res.

1) By voluntary appearance of the defendant, without service of summons or

despite a defective service of summons. The defendant’s voluntary
appearance in the action shall be equivalent to service of summons.

2) Instances when appearance of defendant is not tantamount to voluntary

submission to the jurisdiction of the court:

a. when defendant files the necessary pleading;

b. when defendant files motion for reconsideration of the judgment by
default;
c. when defendant files a petition to set aside the judgment of default;
d. when the parties jointly submit a compromise agreement for approval of
the court;
e. when defendant files an answer to the contempt charge;
f. when defendant files a petition for certiorari without questioning the
court’s jurisdiction over his person.

2. Jurisdiction over the subject matter

a) Meaning of jurisdiction over the subject matter

1. It is the power to deal with the general subject involved in the action,
and means not simply jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the class of cases to which
the particular case belongs. It is the power or authority to hear and
determine cases to which the proceeding is question belongs.

2. When a complaint is filed in court, the basic questions that ipso facto
are to be immediately resolved by the court on its own:

a. What is the subject matter of their complaint filed before the

court?
b. Does the court have jurisdiction over the said subject matter of
the complaint before it? Answering these questions inevitably
requires looking into the applicable laws conferring jurisdiction.

b) Distinguish: jurisdiction and exercise of jurisdiction

Jurisdiction if the power or authority of the court. The exercise of this power or
authority is the exercise of jurisdiction.

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c) How jurisdiction is conferred and determined
[Medical Plaza Makati Condominium v. Cullen, G.R. No. 181416 (2013)]
Jurisdiction over the subject matter of a case is conferred by law and
determined by the allegations in the complaint which comprise a concise
statement of the ultimate facts constituting the plaintiff's cause of action.
[City of Dumaguete v. PPA, G.R. No. 168973 (2011)]
Jurisdiction over the subject matter is conferred only by the Constitution or
law, it cannot be:
(1) Fixed by the will 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. [De Jesus v.
Garcia, G.R. No. L26816 (1967)]
(4) Subject to compromise [Art. 2035(5), Civil Code]
(5) Generally, the jurisdiction of a court is determined by the
statute in force at the commencement of the action, unless
such statute provides for its retroactive application.
[Baritua v. Mercader, G.R. No. 136048 (2001)]

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. [City of Dumaguete v. PPA, G.R.
No. 168973 (2011)]

Jurisdiction is not affected by the pleas set up by the defendant in his

answer or in a motion to dismiss, otherwise, jurisdiction would be
dependent on his whims. [Sindico v. Diaz, G.R. No. 147444 (2004)]

NOTE: The MTCC does not lose jurisdiction over ejectment cases by mere
allegation of a tenancy relationship. However, if after hearing, tenancy had
in fact been shown to be the real issue, the court should dismiss the case
for lack of jurisdiction. [Hilado v. Chavez, G.R. No. 134742 (2004)]

d) Distinguish: doctrine of primary administrative jurisdiction and doctrine of

exhaustion of administrative remedies
The doctrine of primary jurisdiction holds that if a case is such that its
determination requires the expertise, specialized training and knowledge of
the proper administrative bodies, relief must first be obtained in an
administrative proceeding before a remedy is supplied by the courts even if
the matter may well be within their proper jurisdiction. [Province of Aklan v.
Jody King Construction and Dev’t Corp., G.R. No. 197592 (2013)]

The objective of the doctrine of primary jurisdiction 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.
[Province of Aklan v. Jody King Construction and Dev’t Corp., G.R. No.
197592 (2013)]
Exceptions:
(1) Where there is estoppel on the part of the party invoking the doctrine;
(2) Where the challenged administrative act is patently illegal, amounting to

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 lack of jurisdiction;
(3) Where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant;
(4) Where the amount involved is relatively small;
(5) Where the question involved is purely legal and will ultimately have to
be decided by the courts;
(6) Where judicial intervention is urgent;
(7) When its application may cause great and irreparable damage;
(8) Where the controverted acts violate due process;
(9) When the issue of non-exhaustion of administrative remedies has been
rendered moot;
(10) When there is no other plain, speedy, adequate remedy;
(11) When strong public interest is involved; and
(12) In quo warranto proceedings. [Province of Aklan v. Jody King
Construction and Dev’t Corp., G.R. No. 197592 (2013)]

e) Doctrine of adherence of jurisdiction

Doctrine of Adherence of Jurisdiction Also known as doctrine of continuity of
jurisdiction

Once the jurisdiction of a court attaches, it continues until the case is finally
terminated. The trial court cannot be ousted therefrom by subsequent
happenings or events, although of a character that would have prevented
jurisdiction from attaching in the first instance. [Baritua v. Mercader, G.R.
No. 136048 (2001)]

As a consequence, jurisdiction is not affected by a new law placing a

proceeding under the jurisdiction of another tribunal, except:
(1) Where there is an express provision in the statute
(2) The statute is clearly intended to apply to actions pending before its
enactment. [People v. Cawaling, G.R. No. 117970 (1998)]

f) Objections to jurisdiction over the subject matter

When it appears from the pleadings or evidence on record that the court
has no jurisdiction over the subject matter, the court shall dismiss the
same. [Sec. 1, Rule 9]

The Court ex mero motu may take cognizance of lack of jurisdiction at any
point in the case where the fact is developed. The court has a clearly
recognized right to determine its own jurisdiction in any proceeding.
[Fabian v. Desierto, G.R. No. 129742 (1998)].

The earliest opportunity of a party to raise the issue of jurisdiction is in a

motion to dismiss filed before the filing or service of an answer. Lack of
jurisdiction over subject matter is a ground for a motion to dismiss. [Sec.
1(b), Rule 16]

If no motion is filed, the defense of lack of jurisdiction may be raised as an

affirmative defense in the answer. [Sec. 16(6), Rule 16].

When the court dismisses the complaint for lack of jurisdiction over subject
matter, it is submitted that the court should not remand the case to
another court with the proper jurisdiction. Its only has authority to dismiss

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 and not to make any other order. [Riano]

g) Effect of estoppel on objection to jurisdiction

GENERAL RULE: Jurisdiction over the subject matter may be raised at any stage
of the proceedings, even for the first time on appeal. The reason for this is that
jurisdiction is conferred by law, and lack of it affects the very authority of the
court to take cognizance of the action. [Asiatrust Development Bank v First Aikka
Development, Inc., G.R. No. 179558 (2011)]

EXCEPTION: Tijam v. Sibonghanoy [G.R. No. L-21450 (1968)] espoused the

doctrine of estoppel by laches, which held that a party may be barred from
questioning a court’s jurisdiction after invoking the court’s authority in order to
secure affirmative relieve against its opponent – laches would prevent the issue
of lack of jurisdiction from being raised for the first time on appeal by a litigant
whose purpose is to annul everything done in a trial in which it has actively
participated. [Francel Realty Corp. v. Sycip, G.R. No. 154684 (2005)]

NOTE: Tijam must be construed as an exception to the general rule and applied
only in the most exceptional cases whose factual milieu is similar to that in the
latter case. [Figueroa v. People, G.R. No. 147406 (2008)]

JURISDICTION OVER THE PARTIES A Court must acquire jurisdiction over the
persons of indispensable parties before it can validly pronounce judgments
personal to the parties. [Regner v. Logarta, G.R. No. 168747 (2007)]

The manner by which the court acquires jurisdiction over the parties depends on
whether the party is the plaintiff or the defendant.
Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint.
[Regner v. Logarta, G.R. No. 168747 (2007)]

Jurisdiction over the person of the defendant is acquired: (1) By his voluntary
appearance in court and his submission to its authority; or (2) By service of
summons. [Sec. 20, Rule 14; Macasaet v. Co, G.R. No. 156759 (2013)]

Jurisdiction over the person of the defendant is necessary for the court to validly
try and decide a case only in an action in personam. It is not a prerequisite in an
action in rem or quasi in rem, provided that the court acquires jurisdiction over
the res. [Alba v. CA, G.R. No. 164041 (2005)]

An objection to jurisdiction over the person of the defendant may be raised as a

ground in a Motion to Dismiss [Sec. 1(a), Rule 16] or as an affirmative defense in
an Answer [Sec. 6, Rule 16].

However, if not raised in such Motion or Answer, it is deemed waived. It is not

one of those defenses not deemed waived under Section 1, Rule 9. [Boston
Equity Resources, Inc. v. CA, G.R. No. 173946 (2013)]

3. Jurisdiction over the issues

An issue is a disputed point or question to which parties to an action have
narrowed down their several allegations and upon which they are desirous of
obtaining a decision.

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The SC had occasion to note that in some instances it has been held that the court
must also have jurisdiction over the issues – that is, the issue being tried and
decided by the court be within the issues raised in the pleadings [Reyes v. Diaz,
G.R. No. L-48754 (1941)]

Generally, jurisdiction over the issues is conferred and determined:

(1) by the pleadings of the parties, which present the issues to be tried and
determine whether or not the issues are of fact or law [Reyes v. Diaz, G.R. No.
L48754 (1941)];
(2) by stipulation of the parties as when, in the pre-trial, the parties enter into
stipulations of facts or enter into agreement simplifying the issues of the case
[Sec. 2, Rule 18];
(3) by waiver or failure to object to evidence on a matter not raised in the
pleadings. Here the parties try with their express or implied consent or issues not
raised by the pleadings. [Sec. 5, Rule 10]

4. Jurisdiction over the res or property in litigation

“Res,” in civil law is a “thing” or “object.” It is everything that may form an object
of rights as opposed to a “persona,” which is the subject of rights. It includes
object, subject matter or status. [Riano citing Black’s Law Dictionary]

Jurisdiction over the res refers to the court’s jurisdiction over the thing or the
property which is the subject of the action.
Jurisdiction over the res may be acquired:
(1) By seizure of the thing under legal process whereby, it is brought into actual
custody of the law (custodia legis); or,
(2) From the institution of legal proceedings wherein, under special provisions of
law, the power of the court over the property is recognized and made effective
(potential jurisdiction over the res). [Biaco v. Philippine Countryside Rural Bank,
G.R. No. 161417 (2007); El Banco Español-Filipino v. Palanca, G.R. No. L-11390
(1918)]

As early as Perkins v. Dizon [G.R. No. 46631 (1939)], the Court held: “In order
that the court may exercise power over the res, it is not necessary that the court
should take actual custody of the property, potential custody thereof being
sufficient. There is potential custody when, from the nature of the action brought,
the power of the court over the property is impliedly recognized by law.” [Marcos,
Jr. v. Republic, G.R. No. 189434 (2014)]

5. Jurisdiction over the remedies

E. Distinguish: error of jurisdiction and error of judgment

Error of jurisdiction
 One where the act complained of was (1) without jurisdiction, in excess of
jurisdiction, or with grave abuse of discretion amounting to lack of
jurisdiction.
 Correctible only by the extraordinary writ of certiorari. NOTE: Sec. 8, Rule
40 allows an RTC with original jurisdiction over a case brought on appeal
from a lower court to decide the case on the merits.
 Renders a judgment void or voidable.
Error of judgment
 One which the court may commit in the exercise of its jurisdiction. It

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 includes errors of procedure or mistakes in the court’s findings.
 Correctible by appeal.
Ground for reversal only if it is shown that prejudice has been caused.

F. Distinguish: jurisdiction and venue

Jurisdiction
 Power of the court to hear and decide a case
 Jurisdiction over the subject matter and over the nature of the action is
conferred by law and cannot-be waived
Substantive
 Is fixed by law and cannot be the subject of the agreement of the parties
 Establishes a relation between the court and the subject matter
 Lack of jurisdiction over the subject matter is a ground for a motu proprio
dismissal.
Venue
 Place where the action is instituted
 May be waived
Procedural
 May be changed by the written agreement of the parties
 Establishes a relation between plaintiff and defendant, or petitioner and
respondent
 Not a ground for a motu propio dismissal
 Exceptions: - cases on summary procedure - Small claims cases -
ejectment cases

G. Jurisdiction over small claims, cases covered by the rules on

Summary Procedure and Barangay Conciliation
JURISDICTION OVER SMALL CLAIMS

MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money
where the value of the claim does not exceed P200,000 exclusive of interest and costs
[Sec. 2, AM 08-8-7-SC, February 1, 2016].

Applicability [Sec. 2, AM 08-8-7-SC, February 1, 2016]: all actions which are purely
civil in nature, where the claim or relief prayed for by the plaintiff is solely for payment
or reimbursement of sum of money.
The claim or demand may be:
(1) For money owed under a contract of lease, loan, services, sale, or mortgage
(2) For liquidated damages arising from contracts;
(3) The enforcement of a barangay amicable settlement or an arbitration award involving
a money claim covered by this Rule pursuant to Sec. 417 of the LGC.

CASES COVERED BY RULES ON SUMMARY PROCEDURE

Civil Cases subject to Summary Procedure (1) All cases of forcible entry and unlawful
detainer (FEUD), irrespective of the amount of damages or unpaid rentals sought to be
recovered; and (2) All other cases, except probate proceedings where the total amount of
the plaintiff‘s claim does not exceed P100,000 (outside Metro Manila) or P200,000 (in

Page 18 of 360
Metro Manila), exclusive of interest and costs.

Probate proceedings are not covered by the Rule on Summary Procedure even if the gross
value of the estate does not exceed the above-mentioned amounts.
Prohibited Pleadings [Sec. 19, 1991 Revised Rule on Summary Procedure]
(1) Motion to dismiss the compliant except on the ground of
(a) Failure to comply with barangay conciliation proceedings; or
(b) Lack of jurisdiction over the subject matter
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.

CASES COVERED BY BARANGAY CONCILIATION

The Lupon of each barangay shall have the authority to bring together the parties actually
residing in the same municipality or city for amicable settlement of all disputes.

EXCEPT:
(1) Where one party is the government or any subdivision or instrumentality thereof
(2) Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions
(3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding
P5,000
(4) Offenses where there is no private offended party
(5) Where the dispute involves real properties located in different cities or municipalities
unless the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon
(6) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate lupon
(7) Such other classes of disputes which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice
(8) Any complaint by or against corporations, partnerships, or juridical entities. The
reason is that only individuals shall be parties to barangay conciliation proceedings either
as complainants or respondents
(9) Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically:
(a) A criminal case where the accused is under police custody or detention
(b) A petition for habeas corpus by a person illegally detained or deprived of
his liberty or one acting in his behalf
(c) Actions coupled with provisional remedies, such as preliminary

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 injunction, attachment, replevin and support pendente lite
(d) Where the action may be barred by statute of limitation
(10) Labor disputes or controversies arising from employer-employee relationship
(11) Where the dispute arises from the CARL
(12) Actions to annul judgment upon a compromise which can be directly filed in court.

NOTE: It is a condition precedent under Rule 16; can be dismissed but without prejudice

H. How jurisdiction is determined

III. CIVIL PROCEDURE

A. GENERAL PROVISIONS
- Rules of court has force and effect of law
- It is liberally construed
- It may be given retroactive effect in actions pending and undetermined at the
time of their passage except if it will work injustice because THERE IS NO VESTED
RIGHT IN RULES OF PROCEDURE
- Circulars issued by SC partake as procedural laws

B. ACTIONS
1. Meaning of ordinary civil actions
Civil action that is governed by the rules for ordinary civil actions.
Kinds of Ordinary Civil Actions
(1) As to place
a. Transitory – action founded on privity of contract between parties;
brought in the place where the party resides
b. Local - action founded on privity of estate only and there is no privity
of contract; brought in a particular place
(2) As to object
(a) Action in rem
(b) Action quasi in rem
(c) Action in personam
(3) As to foundation
(a) Real
(b) Personal

2. Meaning of special civil actions

Civil that is subject to the specific rules prescribed for a special civil action but also
governed by the rules for ordinary civil actions [Sec. 3(a), par. 2, Rule 1]

3. Meaning of criminal actions

One by which the State prosecutes a person for an act or omission punishable by law
[Sec. 3(b), Rule 1]

4. Distinguish: civil actions and special proceedings

Action Special proceedings
As to Parties
Involves at least 2 parties Involves at least 1 party or 2 or more
parties in proper cases

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 As to cause of action
Involves a right and a violation of such Does not involve the violation of a right,
right by the defendant, which causes instead is concerned with the
some damage or prejudice upon the establishment of a right (or of a status
plaintiff or a particular fact)
As to formalities
Requires the application of legal Requires no such formalities, as it may
remedies in accordance with the be granted upon application
prescribed rules
As to governing rules
Ordinary rules of procedure Special rules of procedure
As to appeal from an Interlocutory Order
Cannot be directly and immediately Can be immediately and directly
appealed to the appellate court until appealed to the appellate court
after final judgment on the merits

5. Personal actions and real actions

The distinction is importation for purposes of determining venue: “The question
whether or not venue has been properly laid depends to a great extent on the kind
of action (real or personal) presented by the Complaint.” [PICOP v. Samson, G.R.
No. L-30175 (1975)]

REAL ACTION
An action affecting title to or possession of real property, or interest therein. [See
Sec. 1, Rule 4] A real action is ‘local,’ i.e. its venue depends upon the location of
the property involved in the litigation. [Sec. 1, Rule 4; BPI v. Hontanosas, G.R. No.
157163 (2014)]

Not every action involving real property is a real action because the realty may
only be incidental to the subject matter of the suit. See again the cases of Heirs of
Bautista and Olivarez Realty: in both cases, the SC held that the conveyance of
real property was only incidental to the determination of things that were
incapable of pecuniary estimation.

PERSONAL ACTION
All other actions [Sec. 2, Rule 4] A personal action is ‘transitory,’ i.e. its venue
depends upon the residence of the plaintiff or of the defendant, at the option of
the plaintiff. [Sec. 2, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)]

6. Local and transitory actions

Local Action
 One that could be instituted in one specific place [Manila Railroad v.
AttorneyGeneral, G.R. No. L6287 (1911)]
 Venue depends upon the location of the property involved in the litigation
[BPI v. Hontanosas, G.R. No. 157163 (2014)]
 E.g. Action to recover real property
Transitory actions
 One that could be prosecuted in any one of several places [Manila Railroad
v. Attorney-General, G.R. No. L-6287 (1911)]
 Its venue depends upon the residence of the plaintiff or of the defendant, at
the option of the plaintiff [BPI v. Hontanosas, G.R. No. 157163 (2014)]
 E.g. Action to recover sum of money

Page 21 of 360
7. Actions in rem, in personam and quasi in rem
The distinction is important to determine whether or not jurisdiction over the
person of the defendant is required, and the type of summons to be employed.
[Riano]

ACTION IN REM
One which seeks to determine the state or condition of a thing.

ACTION QUASI IN REM

One which seeks to directly subject the property or interest of named defendants
to the obligation or lien of the plaintiff.

ACTION IN PERSONAM
One which seeks to enforce personal rights and obligations brought against the
person. Its purpose is to impose, through the judgment of the court, some liability
directly upon the person of the defendant.

C. CAUSE OF ACTION
1. Meaning of cause of action
The act or omission by which a party violates a right of another. [Sec. 2, Rule 2]

Every ordinary civil action must be based on a cause of action [Sec. 1, Rule 2]

A cause of action stems from the sources of obligations under Art. 1156 of the
Civil Code:
(1) Law
(2) Contract
(3) Quasi-contract
(4) Acts and omissions punishable by law and
(5) Quasi-delict. [Sagrada Orden etc v. NACOCO, G.R. No. L-3756 (1952)]

Elements of a Cause of Action:

(1) Plaintiff’s legal right;
(2) Defendant’s correlative obligation to respect plaintiff’s right;
(3) Defendant’s act/omission in violation of plaintiff’s right [Ma-ao Sugar Central v.
Barrios, G.R. No. L-1539 (1947)]

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

Page 22 of 360
Right of action
 The remedial right or right to relief granted by law to a party to institute an
action against a person who has committed a delict or wrong against him
 Right to sue as a consequence of the delict
 Whether such acts give him right of action determined by substantive law
Cause of action
 The delict or wrongful act or omission committed by the defendant in
violation of the primary rights of the plaintiff
 The delict or wrong
 Determined by the averments in the pleading regarding the acts committed
by the defendant

3. Distinguish: failure to state a cause of action and lack of cause of

Action
Failure of the complaint to state a cause of action versus lack of cause of action
Failure to state a cause of action and lack of cause of action are really different
from each other. On the one hand, failure to state a cause of action refers to the
insufficiency of the pleading, and is a ground for dismissal under Rule 16 of the
Rules of Court. On the other hand, lack of cause [of] action refers to a situation
where the evidence does not prove the cause of action alleged in the pleading.
[Macaslang v. Zamora, G.R. No. 156375 (2011)]

FAILURE OF THE COMPLAINT TO STATE A CAUSE OF ACTION

Even if in reality, the plaintiff has a cause of action against the defendant, the
complaint may be dismissed if the complaint or pleading asserting the claim
“states no cause of action.” [Sec. 1(g), Rule 16]

The cause of action must unmistakably be stated or alleged in the complaint. All
the elements required by substantive law must clearly appear from a mere reading
of the complaint. [Riano]

The complaint must contain a concise statement of the ultimate or essential facts
constituting the plaintiff’s cause of action. The focus is on sufficiency, not veracity,
of the material allegations. [Anchor Savings Bank v. Furigay, G.R. No. 191178
(2013)]

4. Test of the sufficiency of a cause of action

TEST OF SUFFICIENCY
The test of sufficiency of a cause of action rests on whether, hypothetically
admitting the facts alleged in the complaint to be true, the court can render a valid
judgment upon the same, in accordance with the prayer in the complaint. [Heirs of
Maramag v. Maramag, G.R. No. 181132 (2009)]

However, there is no hypothetical admission of the veracity of the allegations if:

(1) The falsity of the allegations is subject to judicial notice;
(2) The allegations are legally impossible;
(3) The allegations refer to facts which are inadmissible in evidence;
(4) By the record or document in the pleading, the allegations appear unfounded;
or
(5) There is evidence which has been presented to the court by stipulation of the
parties or in the course of hearings related to the case [Heirs of Maramag v.
Maramag, G.R. No. 181132 (2009)].

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When the ground for dismissal is that the complaint states no cause of action,
such fact can be determined only from the facts alleged in the complaint and from
no other, and the court cannot consider other matters aliunde. [Manaloto v. Veloso
III, G.R. No. 171635 (2010)]

Note, however, that there have been instances when the SC considered matters
aside from the facts alleged in the complaint, such as:
(1) Documents attached to the complaint [Agrarian Reform Beneficiaries
Association v. Nicolas, G.R. No. 168394 (2008)] – this case refers to actionable
documents which by express provision of the Rules of Court are deemed part of
the pleading.
(2) Appended annexes, other pleadings, and admissions on record [Zepeda v.
China Banking Corp., G.R. No. 172175 (2006)] – the jurisprudence establishing
this supposed exception ultimately points to dismissals based on a lack of a cause
of action, opposed to a failure of the complaint to state a cause of action.

5. Splitting a single cause of action and its effects

SPLITTING A SINGLE CAUSE OF ACTION; EFFECTS SPLITTING A CAUSE OF
ACTION
The act of instituting two or more suits on the basis of the same cause of action.
[Sec. 4, Rule 2] Splitting a single cause of action is the act of dividing a single or
indivisible cause of action into several parts or claims and instituting two or more
actions upon them.

A single cause of action or entire claim or demand cannot be split up or divided in

order to be made the subject of two or more different actions. [Chu v. Sps.
Cunanan, G.R. No. 156185 (2011)]

TEST OF SINGLENESS OF CAUSE OF ACTION

The tests to ascertain whether two suits relate to a single or common cause of
action are:
(1)Whether the same evidence would support and sustain both
causes of action (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 filing of the first complaint [Umale v. Canoga Park
Development Corp., G.R. No. 167246 (2011)]

For a single cause of action or violation of a right, the plaintiff may be entitled to
several reliefs. It is the filing of separate complaints for these several reliefs that
constitutes splitting up of the cause of action which is proscribed by the rule
against the splitting of a cause of action. [City of Bacolod v. SM Brewery, G.R. No.
L-25134 (1969)] In the event that a plaintiff has omitted to include in the
complaint one or several other reliefs to which he may be entitled, the proper
remedy of the plaintiff is not to institute another or several other actions – instead
he should move to amend the complaint to include the omitted relief or reliefs.
[Bayang v. CA, G.R. No. L-53564 (1987)]

EFFECTS:
The filing of one or a judgment upon the merits in any one is available as a ground
for the dismissal of the others. [Sec. 4, Rule 2]. The remedy is for the defendant

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to file a Motion to Dismiss under Rule 16.
(1) Filing of the first complaint may be pleaded in abatement of the second
complaint, on the ground of litis pendentia [Sec. 1(e), Rule 16]; or
(2) A judgment upon the merits in any of the complaints is available as ground for
dismissal of the others based on res judicata [Sec. 1(f), Rule 16] A party may not
institute more than one suit for a single cause of action. [Sec. 3, Rule 2]

Rationale
(1) To prevent repeated litigation between the same parties in regard to the same
subject or controversy;
(2) To protect the defendant from unnecessary vexation. Nemo debet vexare pro
una et eadem causa (No man shall be twice vexed for one and the same cause);
(3) To avoid the costs and expenses incident to numerous suits. [City of Bacolod
v. SM Brewery, G.R. No. L-25134 (1969)]

6. Joinder and misjoinder of causes of action

JOINDER OF CAUSES OF ACTION
The assertion of as many causes of action as a party may have against another in
one pleading alone. [Sec. 5, Rule 2]

It is also the process of uniting two or more demands or rights of action in one
action. [Riano]

Ratio: To avoid a multiplicity of suits and to expedite disposition of litigation at

minimum cost [Ada v. Baylon, G.R. No. (2012)]

The rule however is purely permissive as there is no positive provision of law or

any rule of jurisprudence which compels a party to join all his causes of action and
bring them at one and the same time. [Nabus v. CA, G.R. No. 91670 (1991)]

There is no sanction against non-joinder of separate causes of action since a

plaintiff needs only a single cause of action to maintain an action [Regalado].
Requisites [Sec. 5, Rule 2]
(1) The party joining the causes of action shall comply with the rules on joinder of
parties;
(2) The joinder shall not include special civil actions or actions governed by special
rules;
(3) Where causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the RTC provided one of the
causes of action are within that court’s jurisdiction and venue lies therein;
(4) Where the claims in all the causes of action are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction (“totality
rule”)

MISJOINDER OF CAUSES OF ACTION

Misjoinder is not a ground for dismissal of an action [Sec. 6, Rule 2]

An erroneously joined cause of action may, on motion of a party or on the

initiative of the court, be severed and proceeded with separately. [Sec. 6, Rule 2]

If there is no objection to the improper joinder or the court did not motu proprio
direct a severance, then there exists no bar in the simultaneous adjudication of all

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the erroneously joined causes of action, as long as the court trying the case has
jurisdiction over all of the causes of action therein notwithstanding the misjoinder.
[Ada v. Baylon, G.R. No. (2012)]

If the court has no jurisdiction to try the misjoined action, then it must be
severed. Otherwise, adjudication rendered by the court with respect to it would be
a nullity. [Ada v. Baylon, G.R. No. (2012)]

D. PARTIES TO CIVIL ACTIONS

1. Real parties in interest; indispensable parties; representatives as
parties; necessary parties; indigent Parties; alternative defendants
REAL PARTY-IN-INTEREST
The party who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. [Sec. 2, Rule 3]

“Interest” means material interest or an interest in issue to be affected by the

decree or judgment of the case, as distinguished from mere curiosity about the
question involved. [Ang v. Sps. Ang, G.R. No. 186993 (2012)]

The interest must be ‘real,’ which a present and substantial interest as

distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest. [Rayo v. Metrobank, G.R. No. 165142] It should be
material and direct, as distinguished from a mere incidental interest. [Mayor
Rhustam Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)]

Unless authorized by law or the Rules, every action must be prosecuted or

defended in the name of the real party in interest. [Sec. 2, Rule 3]
Husband and wife shall sue and be sued jointly, except as provided by law. [Sec.
4, Rule 3]
Exceptions:
(1) Judicial separation of property
(2) Abandonment
(3) Exclusive property of spouses
(4) Suits with respect to the practice of profession

REPRESENTATIVES AS PARTIES
A representative is one acting in fiduciary capacity, such as a trustee of an express
trust, a guardian, an executor or administrator, or a party authorized by law or the
Rules of Court. [Sec. 3, Rule 3]

Where the action is allowed to be prosecuted or defended by a representative

party, the beneficiary shall be included in the title of the case and shall be deemed
to be the real party in interest.

An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal, except if the contract involves
things belonging to the principal.

A minor or a person alleged to be incompetent may sue or be sued, with the

assistance of his father, mother, guardian, or if he has none, a guardian ad litem.
[Sec. 5, Rule 3]
Minors (represented by their parents) are real parties in interest under the

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principle of intergenerational responsibility. [Oposa v. Factoran, G.R. No. 101083
(1993)]

NECESSARY PARTY
Not an indispensable party but ought to be joined as a party if complete relief is to
be accorded as to those already parties, or for a complete determination or
settlement of the claim subject of the action [Sec. 8, Rule 3]

Although joinder of parties is generally permissive [Sec. 6, Rule 3] the joinder of a

party becomes compulsory when the one involved is an indispensable party. [Sec.
7, Rule 3]

A person is not an indispensable party if his interest in the controversy or subject

matter is separable from the interest of the other parties, so that it will not
necessarily be directly or injuriously affected by a decree which does not complete
justice between them. [Riano]

INDIGENT PARTIES
(1) One who has no money or property sufficient and available for food, shelter,
and basic necessities [Sec. 21, Rule 3]
a. Include an exemption from payment of docket and other lawful fees,
and of transcripts of stenographic notes which the court may order to
be furnished him.
b. Amount of the docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court otherwise provides.
c. If the party is not actually indigent under this Rule, the proper docket
and other lawful fees shall be assessed and collected by the clerk of
court. If payment is not made within the time fixed by the court,
execution shall issue or the payment thereof, without prejudice to such
other sanctions as the court may impose.
(2) One whose gross income and that of their immediate family’s do not exceed an
amount double the monthly minimum wage of an employee, and who does not
own real property with a fair market value of more than Php 300,000 [Sec. 19,
Rule 141].
a. Legal fees shall be a lien on any judgment rendered in the case
favorable to the indigent litigant, unless the court otherwise provides.
b. Any falsity in the affidavits shall be sufficient cause to dismiss the
complaint or action or to strike out the pleading of that party, without
prejudice to whatever criminal liability may have been incurred.

When an application to litigate as an indigent litigant is filed, the court shall

scrutinize the affidavits and supporting documents to determine if the applicant
complies with the standards prescribed in Sec. 19, Rule 141. If so, the authority to
litigate as indigent litigant is automatically granted and the grant is a matter of
right.
However, if the trial court finds that one or both requirements have not been met,
then it would set a hearing to enable the applicant to prove that the applicant
complies with Sec. 21, par. 1, Rule 3.
The adverse party may adduce countervailing evidence.
The trial court will then rule on the application. In addition, Section 21, Rule 3 also
provides that the adverse party may later still contest the grant of such authority
at any time before judgment is rendered by the trial court.
If the court determines after hearing, that the party declared as an indigent is in

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fact not, the proper docket and other lawful fees shall be assessed and collected
by the clerk of court.
If payment is not made within the time fixed by the court, execution shall issue or
the payment of prescribed fees shall be made, without prejudice to such other
sanctions as the court may impose. [Sps. Algura v. City of Naga, G.R. No. 150135
(2006)]

ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against whom of several persons he is entitled to
relief, he may join any or all of them in the alternative, although a right to relief
against one may be inconsistent with a right to relief against the other. [Sec. 13,
Rule 3

2. Compulsory and permissive joinder of parties

COMPULSORY JOINDER
[Sec. 7, Rule 3] Parties in interest without whom no final determination can be had
of an action (i.e. indispensable parties) shall be joined either as plaintiffs or
defendants.

The absence of an indispensable parties renders all subsequent actions of the trial
court null and void for want of authority to act, not only as to the absent parties
but even as to those present. [Moldes v. Villanueva, G.R. No. 161955 (2012)]
Non-Joinder of Necessary Parties [Sec. 9, Rule 3] When a pleading asserting a
claim, omits to join a necessary party, the pleader must:
(1) Set forth the name of the necessary party, if known, and
(2) State the reason why the necessary party is omitted. [Sec. 9, par. 1, Rule 3]
Non-joinder of a necessary party does not prevent the court from proceeding in
the action. The judgment rendered therein shall not prejudice the rights of such
necessary party [Sec. 9, par. 3, Rule 3]

PERMISSIVE JOINDER
[Sec. 6, Rule 3] Parties can be joined, as plaintiffs or defendants, in one single
complaint or may themselves maintain or be sued in separate suits.
Requisites:
(1) Right to relief arises out of the same transaction or series of transactions
Transaction – not only a stipulation or agreement but any event resulting in
wrong, whether the wrong was done by violence, neglect, or breach of contract
Series of transactions – transactions connected with the same subject of the
action
(2) A question of law or fact common to all the plaintiffs or defendants (3) Such
joinder is not otherwise proscribed by the rules on jurisdiction and venue

NOTE: Compare to Joinder of Causes of Action where it is enough if the causes of

action arise out of the same contract, as there is no need for a common question
of fact or law.

3. Misjoinder and non-joinder of parties

MISJOINDER

When one is made a party to the action although he should not be impleaded.

NON-JOINDER

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When one is not joined when he is supposed to be joined but is not impleaded in
the action. [Riano]

Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action.

[Sec. 11, Rule 3]

Non-joinder of an indispensable party is not a ground for outright dismissal of the

action. If the plaintiff refused to implead an indispensable party despite order of
the court, that court may dismiss the complaint for the plaintiff’s failure to comply
with the order. [Pamplona Plantation v. Tinghil, G.R. No. 159121 (2005)].

If the court finds the reason for the nonjoinder of a necessary party unmeritorious,
it may order the inclusion of such necessary party, if jurisdiction over his person
may be obtained. Failure to comply with such order without justifiable cause is
deemed a waiver of the claim against such party. [Sec. 9, pars. 1-2, Rule 3]

Parties may be dropped or added by order of the court on motion of any party or
on its own initiative at any stage of the action and on such terms as are just. [Sec.
11, Rule 3]

Objections to defects in parties Objections should be made at the earliest

opportunity. At the moment such defect becomes apparent, a motion to strike the
names of the parties must be made.

Objections to misjoinder cannot be raised for the first time on appeal [Lapanday
Agricultural & Development Corporation v. Estita, G.R. No. 162109 (2005)]

4. Class suit
Requisites [Sec. 12, Rule 3]
1) Subject matter of the controversy is one of common or
general interest to many persons;
2) The persons are so numerous that it is impracticable to join
them all as parties, and to bring them all before the court;
3) Parties actually before the court are sufficiently numerous
and representative of the class as to fully protect the
interests of all concerned;
4) The representative sues or defends for the benefit of all.

In a class suit, any party in interest shall have the right to intervene to protect his
individual interest. [Sec. 12, Rule 3]

If a class suit is improperly brought, the action is subject to dismissal regardless of

the cause of action. [Sec. 1(d), Rule 16]

However, no class suit may be dismissed upon the instance of the plaintiff or
compromised, without the approval of the court. [Sec. 2, Rule 17]

A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit,

although subject to the other requisites of the corresponding governing law
especially on the issue of locus standi. [Regalado]

A derivative suit is action brought by minority shareholders in the name of the

corporation to redress wrongs committed against it, for which the directors refuse
to sue. It is a remedy designed by equity and has been the principal defense of the

Page 29 of 360
minority shareholders against abuses by the majority.

In a derivative action, the real party in interest is the corporation itself, not the
shareholder who actually instituted it [Lim v. Lim Yu, G.R. No. 138343 (2001)]

There is no class suit in an action filed by associations of sugar planters to recover

damages in behalf of individual planters for an allegedly libelous article in an
international magazine. There is no common or general interest in reputation of a
specific individual. Each of the sugar planters has a separate and distinct
reputation in the community not shared by the others. [Newsweek, Inc. v.
Intermediate Appellate Court, G.R. No. 63559 (1986)]

A class suit does not require a commonality of interest in the questions involved in
the suit. What is required by the Rules is a common or general interest in the
subject matter of the litigation. [Mathay v. Consolidated Bank & Trust Company,
G.R. No. L-23136 (1974)]

5. Suits against entities without juridical personality

Requisites [Sec. 15, Rule 3]
(1) There are 2 or more persons not organized as a juridical entity;
(2) They enter into a transaction;
(3) A wrong is committed against a 3rd person in the course of such transaction.
Persons associated in an entity without juridical personality may be sued under the
name by which they are generally or commonly known, but they cannot sue under
such name. [Sec. 15, Rule 3]
The service of summons may be effected upon all the defendants by serving upon
any of them, or upon the person in charge of the office or place of business
maintained under such name. [Sec. 8, Rule 14]

6. Effect of death of party litigant

DUTY OF COUNSEL UPON DEATH OF CLIENT [Sec. 16, Rule 3]
(1) Inform court of such fact within 30 days after the death;
(2) Give the name and address of the legal representatives.
Failure to comply is a ground for disciplinary action.

ACTION OF COURT UPON NOTICE OF DEATH

Upon receipt of notice, shall determine if claim is extinguished by such death.
(1) Claim does not survive: the proper action would be to dismiss the case.
Substitution would not be required.
(2) Claim survives: the court shall order the legal representative of the deceased
to appear and be substituted for him within 30 days, or within such time as may
be granted.

SURVIVAL OF ACTION
Survival depends on the nature of the action and the damage sought (1) Causes of
Action that Survive:
a. The wrong complained of affects primarily and principally property and
property rights
b. Injuries to the person are merely incidental
c. E.g. Purely personal actions like support
(2) Causes of Action that do not Survive:
a. The injury complained of is to the person
b. Property and property rights affected are incidental

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 c. E.g. actions to recover real and personal property or to enforce liens
thereon

Court may order the opposing party to procure the appointment of an

administrator or executor of the estate in the ff. cases:
(1) No legal representative is named; or
(2) The one so named fails to appear within the specified period. [Sec. 16, Rule 3]

The substitute defendant need not be summoned. The order of substitution shall
be served upon the parties substituted for the court to acquire jurisdiction over the
substitute party. [Ferreria v Vda de Gonzales, G.R. No. L-11567 (1986)]

ACTION ON CONTRACTUAL MONEY CLAIMS

Requisites [Sec. 20, Rule 3]
(1) The action must primarily be for recovery of money, debt or
interest thereon;
(2) The claim arose from express or implied contract;
(3) Defendant dies before the entry of final judgment in the
court in which the action was pending.
(4) The defendant’s death will not result in the dismissal of the
action.

Effect There shall be substitution in the manner provided under Sec. 16, Rule 3,
and the action will continue until the entry of final judgment. However, execution
shall not issue in favor of the winning plaintiff. It should be filed as a claim against
the decedent’s estate without need of proving the claim.

INCOMPETENCY OR INCAPACITY OF A PARTY DURING THE PENDENCY OF

THE ACTION
The Court, upon motion with notice, may allow the action to be continued by or
against the incapacitated person, assisted by his legal guardian or guardian ad
litem. [Sec. 18, Rule 3]

TRANSFER OF INTEREST DURING PENDENCY OF ACTION GENERAL RULE:

The rule does not consider the transferee an indispensable party. Hence, the
action may proceed without the need to implead him.

EXCEPTION
When the substitution by or joinder of the transferee is ordered by court. [Sec. 19,
Rule 3]
The case is dismissed if the plaintiff’s interest is transferred to defendant unless
there are several plaintiffs, in which case the remaining plaintiffs can proceed with
their own cause of action.

E. VENUE
Venue is related only to the place of trial or the geographical location in which an
action or proceeding should be brought and does not equate to the jurisdiction of
the court. [Spouses Mendiola v. CA, G. R. No. 159746 (2012)]
It is a procedural, not a jurisdictional matter. [Phil. Banking v. Tensuan, G.R. No.
104649 (1994)]

Choosing the venue of an action is not left to a plaintiff’s caprice; the matter is
regulated by the Rules of Court. [Ang v. Sps. Ang, G.R. No. 186993 (2012)]

Page 31 of 360
On Dismissal A motu propio dismissal based on improper venue is patently
incorrect. [Sec. 1, Rule 9; Dolot v. Paje, G.R. No. 199199 (2013)]
Unless and until the defendant objects to the venue in a motion to dismiss, the
venue cannot truly be said to have been improperly laid because the venue,
although technically wrong, may be acceptable to the parties for whose
convenience the rules of venue had been laid. [Dacuycoy v. IAC, G.R. No. 74854
(1991)]

However, the court may effect a motu propio dismissal for improper venue, inter
alia, in actions covered by the Rules on Summary Procedure [Sec. 4], Rule of
Procedure for Small Claims cases [Sec. 9], and in ejectment cases [Sec. 5, Rule
70].

1. Venue of real actions

VENUE OF REAL ACTIONS

Real actions shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved or a portion thereof is
situated. [Sec 1(1), Rule 4]

Forcible entry and detainer actions shall be commenced and tried in the municipal
court of the municipality or city wherein the real property involved, or a portion
thereof, is situated. [Sec. 1(2), Rule 4]

If the property is located at the boundaries of 2 places, file the case in either place
(at the plaintiff’s option).

If the case involves 2 properties located in 2 different places:

(1) objects of the same transaction – file it in any of the 2 places;
(2) Objects of distinct transactions – separate actions should be filed in each place
unless properly joined.

2. Venue of personal actions

VENUE OF PERSONAL ACTIONS
All other actions may be commenced and tried, at the plaintiff’s election,:
(1) Where the plaintiff or any of the principal plaintiffs resides;
(2) Where the defendant or any of the principal defendants resides;
(3) In case of a non-resident defendant, where he may be found. [Sec. 2, Rule 4]
The plaintiff or the defendant must be residents of the place where the action has
been instituted at the time the action is commenced. [Ang v. Sps. Ang, G.R. No.
186993 (2012)]

The residence of a person is his personal, actual or physical habitation or his actual
residence or place of abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and consistency. [Boleyley v.
Villanueva, G.R. No. 128734 (1999)]

A corporation cannot be allowed to file personal actions in a place other than its
principal place of business unless such place is also the residence of a co-plaintiff
or defendant. [Davao Light v. Court of Appeals, G.R. No. 111685 (2001)]

Page 32 of 360
3. Venue of actions against non-residents
VENUE OF ACTIONS AGAINST NONRESIDENTS
Non-resident found in the Philippines
(1) For personal actions
a) Where the plaintiff, or any of the principal plaintiffs, resides; or
b) Where the non-resident defendant may be found [Sec. 2, Rule 4]
(2) For real actions -- where the property is located [Sec. 1, Rule 4]
Non-resident not found in the Philippines
1. Involves personal status of plaintiff – where plaintiff
resides
2. Involves property of defendant in the Philippines – where
the property, or any portion thereof, is situated or found
[Sec. 3, Rule 4] When there is more than one defendant or
plaintiff, the residences of the principal parties should be
the basis for determining proper venue [Herrera]

4. When the rules on venue do not apply

WHEN THE RULES ON VENUE DO NOT APPLY
(1) If a specific rule or law provides otherwise (e.g. action for damages arising
from libel);
(2) If there is a stipulation as to venue which is permitted if the agreement:
(a) Is in writing;
(b) Was made before the filing of the action; and
(c) Is the exclusive venue. [Sec. 4, Rule 4]

5. Effects of stipulations on venue

EFFECTS OF STIPULATION ON VENUE
Written stipulations as to venue may be restrictive in the sense that the suit may
be filed only in the place agreed upon, or merely permissive in that the parties
may file their suit not only in the place agreed upon but also in the places fixed by
law. [Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

To be binding, the parties must have agreed on the exclusive nature of the venue
of any prospective action between them. The agreement of parties must be
restrictive and not permissive. [Regalado]

In the absence of qualifying or restrictive words (e.g. “only/solely/exclusively in

such court”), venue stipulation is merely permissive; that is, the stipulated venue
is in addition to the venue provided for in the rules. [Polytrade Corp. v. Blanco,
G.R. No. L-27033 (1969)]

The court may declare agreements on venue as contrary to public policy if such
stipulation unjustly denies a party a fair opportunity to file suit in the place
designated by the Rules [Regalado, citing Hoechst Philippines v Torres, G.R. No. L-
44351 (1978)].

However, a complaint directly assailing the validity of the written instrument itself
should not be bound by the exclusive venue stipulation contained therein and
should be filed in accordance with the general rules on venue. [Briones v. CA and
Cash Asia, G.R. No. 204444 (2015)]

Page 33 of 360
F. PLEADINGS
Pleadings are the written statements of the respective claims and defenses of the
parties, submitted to the court for appropriate judgment [Sec. 1, Rule 6]

Every pleading shall contain in a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the statement of mere evidentiary
facts. [Sec. 1, Rule 8]

1. Kinds of pleadings and when they should be filed

Pleadings Allowed
(1) Complaint
(2) Answer
(3) Counterclaim
(4) Cross-claim
(5) Third (fourth, etc.)-party Complaint
(6) Complaint-in-intervention
(7) Reply [Sec. 2, Rule 6]
(8) Counter-counterclaims [Sec. 9, Rule 6]
(9) Counter-crossclaims [Sec. 9, Rule 6]

a. Complaint
The pleading alleging the plaintiff’s cause/s of action. [Sec. 3, Rule 6]
Function
1. To inform the defendant clearly and definitely of the claims
made against him so that he may be prepared to meet the
issues at trial.
2. To inform the defendant of all material facts on which the
plaintiff relies to support his demand.
3. To state the theory of a cause of action which forms the
bases of plaintiff’s claim of liability. [Tantuico v. Republic,
G.R. No. 89114 (1991)]

Ultimate Facts are essential facts constituting the plaintiff’s cause of action. A fact
is essential if it cannot be stricken out without leaving the statement of the cause
of action insufficient. [Remitere v. Montinola, G.R. No. L-19751 (1966)]

Non-Ultimate Facts:
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of facts from
facts not stated, or incorrect inferences or conclusions
from facts stated;
3. Conclusions of law alleged in the complaint are not binding
on the court.
The details of probative matter or particulars of evidence, statements of law,
inferences and arguments

b. Answer
The pleading where the defendant sets forth his affirmative and/or negative
defenses. [Sec. 4, Rule 6]

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It may be directed toward a complaint, a counterclaim, a cross-claim, or a third
(fourth, etc.)-party complaint.

i. Negative defenses
Kinds of Defenses [Sec. 5, Rule 6]
(1) Negative Defenses - Specific denials of the material facts alleged in the
pleading of the claimant essential to his cause of action.
(2) Affirmative Defenses - Allegations of new matters which, while hypothetically
admitting the material allegations in the claimant’s pleading, would nevertheless
prevent or bar recovery, by way of confession and avoidance.

A denial does not become specific merely because it is qualified by that word.
[Agton v. CA, G.R. No. L-37309 (1982)]

A general denial will be deemed an admission of the material averments in the

complaint. [Sec. 11, Rule 8]

Modes of Specific Denial

(1) Specific Absolute Denial - Defendant must specify each material allegation of
fact the truth of which he does not admit, and, whenever applicable, set forth the
substance of matters relied upon to support the denial
(2) Partial Specific Denial - If pleader decides to deny only a part or a qualification
of an averment:
a. He shall specify so much of it as is true and material
b. He shall deny the remainder
(3) Denial by Disavowal of Knowledge – The defendant states that he is without
knowledge or information sufficient to form a belief as to the truth of a material
averment; has the effect of a denial [Sec. 10, Rule 8]

ii. Negative pregnant

Negative Pregnant
- A denial pregnant with the admission of the substantial facts in the pleading
responded to which are not squarely denied. It is in effect an admission of the
averment it is directed to. [Philamgen v. Sweet Lines, G.R. No. 87434 (1993)]

While it is a denial in form, its substance actually has the effect of an admission
because of a too literal denial of the allegation sought to be denied. This arises
when the pleader merely repeats the allegations in a negative form. [Riano]

c. Counterclaims
Any claim which a defending party may have against an opposing party. [Sec. 6,
Rule 6]

NOTE: Under OCA Circular No. 96-2009, citing A.M. No. 04-2-04 SC, the payment
of filing fees for compulsory counterclaims remains suspended effective September
21, 2004. It clarified that the portion of the decision in Korea Technologies v.
Lerma, G.R. No. 143581, which stated that docket fees are required to be paid in
compulsory counterclaims has been deleted in a revised issuance

i. Compulsory counterclaim
Compulsory Counterclaim
Requisites:

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 (1) It arises out of, or is necessarily connected with the transaction
or occurrence, constituting the subject matter of the opposing party's
claim;
(2) It does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction;
(3) It must be cognizable by the regular courts of justice, and within
the court’s jurisdiction both as to the amount and the nature. [Sec. 7,
Rule 6]

A plaintiff who fails or chooses not to answer a compulsory counterclaim may not
be declared in default, principally because the issues raised in the counterclaim are
deemed automatically joined by the allegations in the complaint. [Gojo v. Goyala,
G.R. No. L-26768 (1970)]

The filing of a motion to dismiss and the setting up of a compulsory counterclaim

are incompatible remedies. If he files a motion to dismiss, he will lose his
counterclaim. But if he opts to set up his counterclaim, he may still plead his
ground for dismissal as an affirmative defense in his answer. [Financial Building
Corp. v. Forbes Park Association, G.R. No. 133119 (2000)]

On Amounts
• In an original action before the RTC, the counterclaim may be considered
compulsory regardless of the amount. [Sec. 7, Rule 6]
• If a counterclaim is filed in the MTC in excess of its jurisdictional limits, the
excess is considered waived. [Agustin v. Bacalan, G.R. No. L-46000 (1985)]
• However, in another case, the remedy where a counterclaim is beyond the
jurisdictional amount of the MTC is to set off the claims and file a separate action
to collect the balance. [Calo v. Ajax, G.R. No. L-22485 (1968)] Note, however,
that the counterclaim in question here was permissive.

ii. Permissive counterclaim

Permissive Counterclaim A counterclaim is permissive if it does not arise out of,
nor is necessarily connected with, the subject matter of the opposing party’s claim
This is not barred even if not set up in the action.
Must have independent jurisdictional ground [Herrera]. Hence, the filing of a
separate docket fee.

NOTE: If the counterclaim, even if it arises out of, or is necessarily connected with,
the subject matter of the opposing party’s claim, matures or is acquired by a party
after serving his pleading, i.e. the Answer, it is merely permissive. [Sec. 9, Rule
11]

Determining whether Compulsory or Permissive (Also known as “logical

relationship test”)
A positive answer on all four the following tests would indicate that the
counterclaim is compulsory:
(1)Are the issues of fact and law raised by the claim and
counterclaim largely the same?
(2)Would res judicata bar a subsequent suit on defendant’s
claims, absent the compulsory counterclaim rule?
(3)Will substantially the same evidence support or refute plaintiff’s
claim as well as the counterclaim?
(4)Is there any logical relation between the claim and
counterclaim? [GSIS v. Heirs of Caballero, G.R. No. 158090

Page 36 of 360
 (2010)]

There is a logical relationship where conducting separate trials of the respective

claims would entail substantial duplication of effort and time and involves many of
the same factual and legal issues. [Meliton v. CA, G.R. No. 101883 (1992)]

iii. Effect on the counterclaim when the complaint is dismissed

Effect on Counterclaim when Complaint is dismissed
The case may be dismissed, with a counterclaim set up under any of the following
circumstances:
(1) Dismissal under Sec. 6, Rule 16 – where the defendant does not file motion to
dismiss but raises the ground as an affirmative defense
(2) Dismissal under Sec. 2, Rule 17 – where the plaintiff files a motion to dismiss
the case, after the defendant had filed a responsive pleading
(3) Dismissal under Sec. 3, Rule 17 – where the complaint is dismissed due to the
fault of the plaintiff

In all these cases, the rules expressly provide that the dismissal shall be without
prejudice to the right of the defendant to pursue his counterclaim in the same or in
a separate action.

How Raised
(1) By including it in the Answer A compulsory counterclaim or a crossclaim that a
defending party has at the time he files his answer shall be contained therein.
[Sec. 8, Rule 11]
(2) By filing after the Answer
(a) A counterclaim may be set up, by leave of court, by amendment before
judgment, when:
(i) it is not set up due to oversight, inadvertence, or excusable
neglect, or
(ii)when justice requires [Sec. 10, Rule 11]
(b) A counterclaim, which either matured or was acquired by a party after serving
his pleading, with permission of the court, may be set up in a supplemental
pleading before judgment. [Sec. 9, Rule 11]

d. Cross-claims
Any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein. Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant for all or part of a
claim asserted in the action against the cross-claimant. [Sec. 8, Rule 6]
A cross-claim is generally compulsory. A cross-claim not set up shall be barred.
[Sec. 2, Rule 9]
Exceptions (“permissive crossclaims”) are when:
(1)The claim is outside the court’s jurisdiction;
(2)The court cannot acquire jurisdiction over 3rd parties whose presence is
necessary for the adjudication of said cross-claim.
(3)The Cross-claim matured or was acquired after service of Answer

Effect on Cross-claim when Complaint is dismissed The dismissal of the complaint

carries with it the dismissal of a cross-claim, which is purely defensive; but not a
cross-claim seeking an affirmative relief. [Torres v. CA, G.R. No. L25889 (1973)]

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Improper Cross-Claims
(1)Where the cross-claim is improper, the remedy is certiorari [Malinao v.
Luzon Surety (1964)]
(2)The dismissal of a cross-claim is unappealable when the order dismissing the
complaint becomes final and executory [Ruiz, Jr. v. CA (1993)]
(1) (3) A cross-claim is not allowed after declaration of default of cross-claimant
[Tan v. Dimayuga, (1962)] It would be tantamount to setting aside the
order of default because then the cross-claimant would re-obtain standing in
court as party litigant

e. Third (fourth, etc.) party complaints

It is a claim that a defending party may, with leave of court, file against a person
not a party to the action, for contribution, indemnity, subrogation, or any other
relief, in respect of his opponent's claim. [Sec. 11, Rule 6]

There could also be a 4th/etc.-party complaint with the same purpose and
function.

Under this Rule, a person not party to an action may be impleaded by the
defendant either:
(1)On allegation of liability to the latter, covered by the phrase
“contribution, indemnity, or subrogation”
(2)On the ground of direct liability to the plaintiff; or both, as
covered by the phrase “any other relief”. [Samala v. Victor,
G.R. No. L-53969 (1989)]

Tests to Determine Whether the 3rdParty Complaint is in Respect of Plaintiff’s

Claim
(4)WON it arises out of the same transaction on which the
plaintiff's claim is based, or although arising out of
another/different transaction, is connected with the plaintiff’s
claim;
(5)WON the 3rd-party defendant would be liable to the plaintiff or
to the defendant for all/part of the plaintiff’s claim against the
original defendant;
(6)WON the 3rd-party defendant may assert any defenses which
the 3rd party plaintiff has or may have to the plaintiff’s claim.
[Capayas v. CFI, G.R. No. L-475 (1946)]

Additional Rules Leave of court to file a 3rd-party complaint may be obtained

by motion filed under Rule 15.

Summons on third (fourth, etc.)-party defendants must be served for the

court to obtain jurisdiction over his person, since he is not an original party.

Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third-party complaint, regardless of the amount
involved as a 3rd-party complaint is merely auxiliary to and is a continuation
of the main action. [Republic v. Central Surety, G.R. No. L-27802 (1968)]

A third-party complaint is not proper in an action for declaratory relief.

[Commissioner of Customs v. Cloribel, G.R. No. L-21036 (1977)]

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f. Complaint-in-intervention
Intervention is a remedy by which a third party, not originally impleaded in a
proceeding, becomes a litigant therein to enable him to protect or preserve a right
or interest which may be affected by such proceeding.

Pleadings-in-Intervention [Sec. 3, Rule 19]

(1)Complaint-in-intervention – If intervenor asserts a
claim against either or all of the original parties.
(2)Answer-in-intervention – If intervenor unites with
the defending party in resisting a claim against the
latter.

Intervention is never an independent action, but is ancillary and supplemental to

an existing litigation, and in subordination to the main proceeding. [Saw v. CA,
G.R. No. 90580 (1991)]
Its purpose is "to settle in one action and by a single judgment the whole
controversy (among) the persons involved." [First Philippine Holdings v.
Sandiganbayan (1996), G.R. No. 88345; Rule 19]

When Allowed Intervention shall be allowed when a person has:

(1)A legal interest in the matter in litigation; or
(2)A legal interest in the success of any of the parties; or
(3)An interest against the 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 of an officer thereof.
[Sec. 1, Rule 19; Fernandez v. CA, A.M. OCA IPI No. 12-201CA-J (2013)]

The Court has full discretion in permitting or disallowing intervention, which must
be exercised judiciously and only after consideration of all the circumstances
obtaining in the case. [Mago v. CA, G.R. No. 115624 (1999)]

It is not an absolute right as it can be secured only in accordance with the terms of
applicable statute or rule. [Office of Ombudsman v. Samaniego (2010)]

Legal Interest Interest must be of a direct and immediate character so that the
intervenor will either gain or lose by the direct legal operation of the judgment.
The interest must be actual and material, a concern which is more than mere
curiosity, or academic or sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural, consequential or collateral. [Virra
Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

Requisites for a Valid Intervention

(1) There must be a motion for intervention filed before judgment is rendered by
the trial court. (2) Movant must show in his motion:
(a) That he has a legal interest:
(i) in the matter of litigation,
(ii)in the success of either party in the action, or
(iii) against both parties.
(b) That the movant is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the
court or an officer thereof
(c)That the intervention must not unduly delay or prejudice the
adjudication of the rights of the original parties; and
(d) That the intervenor’s rights may not be fully protected in a

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 separate proceeding.

How to Intervene
(1)With leave of court, the court shall consider the 2 factors
(2)Motion to intervene may be filed at any time before judgment is rendered by
trial court
(3)Copy of the pleadings-in-intervention shall be attached to the motion and
served on the original parties
Time to Intervene [Sec. 2, Rule 19]

GENERAL RULE: The motion to intervene must be filed at any time before the
rendition of judgment by the trial court

EXCEPTIONS:
(1)With respect to indispensable parties, intervention may be allowed even on
appeal [Falcasantos v. Falcasantos (1952)]
(2)When the intervenor is the Republic [Lim v. Pacquing (1995)]
(3)Intervention may be allowed after judgment where necessary to protect
some interest which cannot otherwise be protected, and for the purpose of
preserving the intervenor’s right to appeal [Pinlac v. CA (2003)]
Remedies for Denial of Motion for Intervention
(1)The movant may file a motion for reconsideration since the denial of a
motion for intervention is an interlocutory order.
(2) Alleging grave abuse of discretion, movant can also file a certiorari case.

g. Reply
The plaintiff’s response to the defendant's answer, the function of which is to deny
or allege facts in denial or in avoidance of new matters alleged by way of defense
in the answer and thereby join or make issue as to such new matters. [Sec. 10,
Rule 6]

Effect of Failure to Reply

GENERAL RULE:
Filing a reply is merely optional. New facts that were alleged in the answer are
deemed controverted should a party fail to reply thereto.
EXCEPTION:
When a Reply is necessary
(a) To set up affirmative defenses on the counterclaim [Rosario v. Martinez
(1952)]
(b) Where the answer alleges the defense of usury in which case a reply under
oath should be made; otherwise, the allegation of usurious interest shall be
deemed admitted [Rule 8, Sec. 8; Sun Bros. v. Caluntad (1966)]
(c) Where the defense in the answer is based on an actionable document, a reply
under oath must be made; otherwise, the genuineness and due execution of the
document shall be deemed admitted. [Sec. 11, Rule 8; Toribio v. Bidin (1985)]

h. Extensions of time to file

2. Pleadings allowed in small claims cases and cases covered by the

Rules on Summary Procedure

Page 40 of 360
Forms:
(1)Instead of a Complaint, a Statement of Claim using Form 1-SCC
shall be filed [Sec 5]
(2)Answer shall be filed by way of a Response using Form 3-SCC [Sec.
10]
(3)Defendant may file counterclaim if he possesses a claim against the
plaintiff that
(a) Is within the coverage of this Rule, exclusive of interest and
costs;
(b) Arises out of the same transaction or event that is the subject
matter of the plaintiff’s claim;
(c)Does not require for its adjudication the joinder of third parties; and
(d) Is not the subject of another pending action, the claim shall be
filed as a counterclaim in the Response; otherwise, the defendant
shall be barred from suit on the counterclaim.

The defendant may also elect to file a counterclaim against the plaintiff that does
not arise out of the same transaction or occurrence, provided that the amount and
nature thereof are within the coverage of this Rule and the prescribed docket and
other legal fees are paid.

NOTE: Courts decision shall be contained in Form 13-SCC

Prohibited Pleadings and Motions [Sec. 14]
(1)Motion to dismiss the complaint except on the ground of lack of
jurisdiction;
(2)Motion for a bill of particulars;
(3)Motion for new trial, or for reconsideration of a judgment, or
for reopening of trial;
(4)Petition for relief from judgment;
(5)Motion for extension of time to file pleadings, affidavits, or any
other paper;
(6)Memoranda;
(7)Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(8)Motion to declare the defendant in default;
(9)Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.

3. Parts and contents of a pleading

PARTS OF A PLEADING
Caption
– that part of the pleading which sets forth the:
1. The name of the court;
2. The title of the action (i.e. the names of the parties); and
3. The docket number, if assigned. [Sec. 1, Rule 7]

Body
– That part of the pleading which sets forth its designation, the allegations of
party's claims or defenses, the relief prayed for, and its date.
1. Paragraphs must be numbered, and each paragraph number
must contain a single set of circumstances
2. Headings should be used if there is more than one cause of

Page 41 of 360
 action in the Complaint, and if paragraphs in the Answer
address one or more causes of action from the Complaint.
3. Should specify relief sought, but it may add a general prayer
for such further or other relief as may be deemed just or
equitable; also called the “prayer”
4. Every pleading shall be dated. [Sec. 2, Rule 7]

a. Caption
Caption
– that part of the pleading which sets forth the:
(1)The name of the court;
(2)The title of the action (i.e. the names of the parties); and
The docket number, if assigned. [Sec. 1, Rule 7]

b. Signature and address

SIGNATURE AND ADDRESS
Every pleading must be signed by the party or counsel representing him. The
address must be stated and such address must not be a post office box. [Sec. 3,
Rule 7]
An unsigned pleading produces no legal effect. However, the court may allow such
deficiency to be remedied if it appears that:
(1)It was due to mere inadvertence; and
(2)It was not intended for delay [Sec. 3, Rule 7]

Effect of Signature of Counsel This 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 interposed for delay [Sec. 3, Rule 7]

c. Verification
VERIFICATION
A pleading need not be under oath, verified or accompanied by affidavit, unless
otherwise provided by law or rules. [Sec. 4, Rule 7]

Verification is required in the following instances:

(1) Pleadings filed in the inferior courts in cases covered by the Rules on Summary
Procedure [Sec. 3, B]
(2) Petition for relief from judgment or order [Sec. 3, Rule 38]
(3) Petition for review from RTC to the CA [Sec. 1, Rule 42]
(4) Petition for review from quasi-judicial agencies to the CA [Sec. 5, Rule 43]
(5) Appeal by certiorari from the CTA to the SC [Sec. 12, RA 9282 amending Sec.
19, RA 1125]
(6) Appeal by certiorari from CA to the SC [Sec. 1, Rule 45]
(7) Petition for annulment of judgments or final orders and resolutions [Sec. 1,
Rule 47]
(8) Complaint for injunction [Sec. 4, Rule 58]
(9) Application for appointment of receiver [Sec. 1, Rule 59]
(10) Application for support pendente lite [Sec. 1, Rule 69]
(11) Petition for certiorari against judgments, final orders, or resolutions of
constitutional commissions [Sec. 2, Rule 64]

Page 42 of 360
(12) Petition for certiorari [Sec. 1, Rule 65]
(13) Petition for prohibition [Sec. 2, Rule 65]
(14) Petition for mandamus [Sec. 3, Rule 65]
(15) Petition for quo warranto [Sec. 1, Rule 66]
(16) Complaint for expropriation [Sec. 1, Rule 67]
(17) Complaint for forcible entry or unlawful detainer [Sec. 4, Rule 70]
(18) Petition for indirect contempt [Sec. 4, Rule 71]
(19) Petition for appointment of a general guardian [Sec. 2, Rule 93]
(20) Petition for leave to sell or encumber property of the ward by a guardian
[Sec. 1, Rule 95] (21) Petition for declaration of competency of a ward [Sec. 1,
Rule 97]
(22) Petition for habeas corpus [Sec. 3, Rule 102]
(23) Petition for change of name [Sec. 2, Rule 103]
(24) Petition for voluntary judicial dissolution of a corporation [Sec. 1, Rule 104]
(25) Petition for cancellation or correction of entries in the civil registry [Sec. 1,
Rule 108]

How verified [Sec. 4, Rule 7]

By an affidavit declaring that:
(1) That the affiant has read the pleading; and
(2) That the allegations therein are true and correct of his personal knowledge or
based on authentic documents.

Who Executes Verification

Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth of the allegations in the complaint or petition
signs the verification, and when matters alleged in the petition have been made in
good faith or are true and correct. [Altres v. Empleo, G.R. No. 180986 (2008)]

Effect of noncompliant or defective verification

Noncompliance there with or a defect therein does not necessarily render the
pleading fatally defective. The court may order its submission or correction or act
on the pleading if the attending circumstances are such that strict compliance with
the Rule may be dispensed with in order that the ends of justice may be served
thereby. [Altres v. Empleo, G.R. No. 180986 (2008)]

d. Certification against forum shopping

FORUM SHOPPING
The repeated availment of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions
and the same essential facts and circumstances, and all raising substantially the
same issues, either pending in or already resolved adversely by some other court.
[Asia United Bank v. Goodland Company, Inc., G.R. No. 191388 (2011)]

Test to determine existence of Forum Shopping Whether in the 2 or more cases

pending, there is identity of:
(1)Parties
(2) Rights or causes of action
(3)Relief sought [Huibonhoa v. Concepcion, G.R. No. 153785 (2005)]

Certificate of Non-Forum Shopping (CNFS) A sworn statement in which the plaintiff

or principal party certifies in a complaint or initiatory pleading:
(1)That he has not commenced any action or filed any claim involving the same
issues in any court or tribunal, and to the best of his knowledge, no such

Page 43 of 360
 other action is pending;
(2)That if there is such other pending action or claim, a complete statement of
the present status thereof; and
(3)That if he should learn that the same or a similar action has been filed or is
pending, he shall report such fact within 5 days to the court receiving his
initiatory pleading. [Sec. 5, Rule 7]
CNFS is not required in a compulsory counterclaim, as this is not an initiatory
pleading. [UST Hospital v. Surla, G.R. No. 129718 (1998)]
However, a certification is needed in permissive counterclaims [Korea Exchange
Bank v. Gonzales, G.R. No. 14228687 (2005)]

Who Executes the CNFS It is the plaintiff or principal party who executes the
certification under oath. [Sec. 5, Rule 7]

Rationale: The plaintiff, not the counsel, is in the best position to know whether
he or it has actually filed or caused the filing of a petition. Certification signed by
counsel without proper authorization is defective, and a valid cause for dismissal.
[Anderson v. Ho, G.R. No. 172590 (2013)]

If, for justifiable reasons, the party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of record to sign on his behalf.
[Vda. de Formoso v. PNB, G.R. No. 154704 (2011)]

Verification/CNFS for Corporation The certification must be executed by an officer,

or member of the board of directors, or by one who is duly authorized by a board
resolution; otherwise, the complaint will have to be dismissed. [Cosco Philippines
Shipping, Inc. v. Kemper Insurance, Co., G.R. No. 179488 (2012)]

However, the Court has ruled that a President of a corporation can sign the
verification and CNFS, without the benefit of a board resolution. It also allowed the
following to sign:
(1)The Chairperson of the Board;
(2)The General Manager or acting GM;
(3)A personnel officer; and
(4)An employment specialist in a labor case.

However, the better procedure would be to append a board resolution to obviate

questions regarding the authority of the signatory. [South Cotabato
Communications Corp. v. Sto. Tomas, G.R. No. 173326 (2010)]

Belated submission of written authority has been found to be substantial

compliance with the rule, especially when the acts were also ratified by the Board.
[Swedish Match Philippines v. Treasurer of the City of Manila, G.R. No. 181277
(2013)]

e. Contents of a pleading

4. Allegations in a pleading
IN GENERAL Every pleading shall contain a statement of the ultimate facts on
which the party pleading relies for his claim or defense
(1)In a methodical and logical form
(2)A plain, concise and direct statement
(3)Statement of mere evidentiary facts omitted [Sec. 1, Rule 8]

Page 44 of 360
If a defense relied on is based on law, state in a clear and concise manner:
(1)Pertinent provisions of the law
(2) Applicability of the law to him

a. Manner of making allegations

Facts that must be averred particularly
– Circumstances showing fraud or mistake when averred [Sec. 5, Rule 8]
Facts that may be averred generally
(1)Conditions precedent [Sec. 3, Rule 8]
(2)Capacity to sue or be sued;
(3)Capacity to sue or be sued in a representative capacity; [Sec. 4, Rule
8]
(4)Legal existence of an organization [Sec. 4, Rule 8]
(5)Malice/intent/knowledge or other condition of the mind; [Sec. 5, Rule
8]
(6)Judgments of domestic/foreign courts, tribunals, boards or officers
(without need to show jurisdiction); [Sec. 6, Rule 8]
(7) Official documents/acts. [Sec. 9, Rule 8]

i. Condition precedent
Condition Precedent
– If the cause of action depends upon a condition precedent, its fulfillment or
legal excuse for nonfulfillment must be averred.

A general averment of the performance or occurrence of all conditions precedent

shall be sufficient [Sec. 3, Rule 8]

All valid conditions precedent to the institution of a particular action, whether

prescribed by statute, fixed by agreement of the parties, or implied by law must
be performed or complied with before commencing the action. Such fact must be
pleaded.
Failure to comply with a condition precedent is a ground for a motion to dismiss
[Sec. 1(j), Rule 16]

Examples of Conditions Precedent:

(8)Exhaustion of administrative remedies
(9)Investigation by a fiscal is a prerequisite to annulment of marriage
when defendant defaults [Tolentino v. Villanueva (1974)]
(10) No suit shall be filed or maintained between members of the
same family unless it should appear that earnest efforts at
compromise have been made but that the same have failed. [Art. 222,
Family Code; Versoza v. Versoza (1968)]
(11) Arbitration;
(5) Barangay Conciliation

ii. Fraud, mistake, malice, intent, knowledge and other

condition of the mind, judgments, official documents or /J
acts ,x
1. By a party before responding to the pleading
2. If no responsive pleading permitted by law, upon a motion of party within 20
days after service of the pleading upon him (example for reply)

- Mere statement that they specifically deny does not constitute a specific denial.

Page 45 of 360
- The Marcoses alleged that they have no knowledge of information sufficient to
form a belief as to the to the truth of the allegations in the complaint . The court
held that they were signatories to such bank accounts and such denial was not
done in good faith. Hence it is akin to a negative pregnant which means denial
pregnant with admissions. (Republic Vs Sandiganbayan)

Judgment
- In pleading a judgment or decision of a domestic or foreign court, judicial or
quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing jurisdiction to render it. [Sec. 6,
Rule 8]
Official documents or acts
– sufficient to aver that the document was issued, or the act done, in compliance
with law. [Sec. 9, Rule 8]

b. Pleading an actionable document

PLEADING IN AN ACTIONABLE DOCUMENT
An actionable document is the written instrument upon which the action or
defense is based. Where a pleader relies upon a document, its substance must be
set out in the pleading either by its terms or by its legal effects [Sec. 7, Rule 8]

Pleading the document

(1)The substance of such document shall be set forth in the pleading; and
the original or a copy shall be attached as an exhibit; or
(2)Said copy may with like effect be set forth in the pleading [Sec. 7,
Rule 8]

A variance in the substance of the document set forth in the pleading and the
document annexed thereto does not warrant dismissal of the action [Convets Inc.
v. National Dev. Co., G.R. No. L-10232 (1958)]

How to Contest [Sec. 8, Rule 8]

(1) By specific denial under oath; and
(2) By setting forth what is claimed to be the facts

Denial need not be under oath when:

(1) The adverse party does not appear to be a party to the instrument, or
(2) Compliance with an order for inspection of the document has been refused.

Effect of Failure to Deny Under Oath

(1) The genuineness and due execution is deemed admitted
(2) The document need not be formally offered in evidence

Due Execution and Genuineness

- That the party whose signature it bears admits that he signed it or that it was
signed by another for him with his authority; that it was in words and figures
exactly as set out in the pleading of the party relying upon it; that the document
was delivered and that any formal requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks, are waived by him. [Hibberd v.
Rohde and Mcmillian, G.R. No. 8418 (1915)]

c. Specific denials
Page 3 of28

Page 46 of 360
SPECIFIC DENIALS
The purpose of requiring the defendant to make a specific denial is to make him
disclose the matters alleged in the complaint which he succinctly intends to
disprove at the trial, together with matters which he relied upon to support the
denial. The parties are compelled to lay their cards on the table. [Philippine Bank
of Communications v. Go, G.R. No. 175514 (2011)]

G.
i. Effect of failure to make specific denials
Effect of Failure to make Specific Denials
GENERAL RULE: Allegations not specifically denied are deemed admitted [Sec.
11, Rule 8]
EXCEPT:
(1)Allegations as to the amount of unliquidated damages;
(2)Allegations immaterial to the cause of action
(3)Allegations of merely evidentiary or immaterial facts may be expunged from
the pleading or may be stricken out on motion. [Sec. 12, Rule 8]
(4) Conclusions of law.

ii. When a specific denial requires an oath

Specific Denial requires an oath in the following cases:
(1)Denial of the genuineness and due execution of an actionable document;
[Sec. 8, Rule 8] and
(2)Denial of allegations of usury. [Sec. 11, Rule 8]

NOTE: Under CB Circular No. 905, the Usury Law of 1912 is currently suspended.

d. Affirmative defenses
Modes of Specific Denial
(1) Specific Absolute Denial - Defendant must specify each material allegation of
fact the truth of which he does not admit, and, whenever applicable, set forth the
substance of matters relied upon to support the denial
(2) Partial Specific Denial - If pleader decides to deny only a part or a qualification
of an averment:
a) He shall specify so much of it as is true and material
b) He shall deny the remainder
(3) Denial by Disavowal of Knowledge – The defendant states that he is without
knowledge or information sufficient to form a belief as to the truth of a material
averment; has the effect of a denial

NOTE: Denial by disavowal of knowledge must be availed of with sincerity and in

good faith – certainly neither for the purpose of confusing the adverse party as to
what allegations of the complaint are really put in issue nor for the purpose of
delay. [Barnes v. Reyes, G.R. No. L-9531 (1958)]

5. Effect of failure to plead

FAILURE TO PLEAD DEFENSES AND OBJECTIONS GENERAL RULE:
Defenses and objections not pleaded in the answer or motion to dismiss are
deemed waived. [“Omnibus Motion Rule,” Sec. 1, Rule 9]

EXCEPTIONS:
(1) Lack of jurisdiction over the subject matter;
(2) Litis pendentia

Page 47 of 360
(3) Res judicata
(4) Action barred by statute of limitations. [Sec. 1, Rule 9]

NOTE: These exceptions also empower the courts to motu proprio dismiss an
action where such grounds appear from the pleadings or the evidence on record
[Sec. 1, Rule 9].

FAILURE TO PLEAD COMPULSORY COUNTERCLAIMS AND CROSS-CLAIMS

GENERAL RULE:
A compulsory counterclaim, or a cross-claim, not set up shall be barred. [Sec. 2,
Rule 9]

EXCEPTION: If due to oversight, inadvertence, excusable neglect, etc. the

compulsory counterclaim or a cross-claim, with leave of court, may be set up by
amendment before judgment. [Sec. 10, Rule 11]

a. Failure to plead defenses and objections

FAILURE TO PLEAD DEFENSES AND OBJECTIONS GENERAL RULE:
Defenses and objections not pleaded in the answer or motion to dismiss are
deemed waived. [“Omnibus Motion Rule,” Sec. 1, Rule 9]

EXCEPTIONS:
(1)Lack of jurisdiction over the subject matter;
(2)Litis pendentia
(3)Res judicata
(4)Action barred by statute of limitations. [Sec. 1, Rule 9]

NOTE: These exceptions also empower the courts to motu proprio dismiss an
action where such grounds appear from the pleadings or the evidence on record
[Sec. 1, Rule 9].

b. Failure to plead a compulsory counterclaim and cross-claim

FAILURE TO PLEAD COMPULSORY COUNTERCLAIMS AND CROSS-CLAIMS
GENERAL RULE: A compulsory counterclaim, or a cross-claim, not set up shall be
barred. [Sec. 2, Rule 9]
EXCEPTION: If due to oversight, inadvertence, excusable neglect, etc. the
compulsory counterclaim or a cross-claim, with leave of court, may be set up by
amendment before judgment. [Sec. 10, Rule 11]

6. Default
Failure of the defendant to answer within the proper period. [Sec. 3, Rule 9]

a. When a declaration of default is proper

There is only one instance when a party defendant can properly be declared in
default and that is when he fails to file his answer within the reglementary period
[Rule 11], or within such extended time as he is allowed by the court. [Sec. 11,
Rule 11]

Requisites before a Declaration of Default

(1)The court must have validly acquired jurisdiction over the person of
the defendant either by service of summons or voluntary appearance
(2)The defendant failed to file his answer within the time allowed therefor
(3)There must be a motion by the plaintiff to declare the defendant in

Page 48 of 360
 default with notice to the latter
(4)There must be notice to the defendant by serving upon him a copy of
such motion
(5)There must be proof of such failure to answer
(6)There must be a hearing to declare defendant in default

b. Effect of an order of default

(1) The party declared in default cannot take part in the trial. However, he may
still participate as a witness [Cavili v. Florendo, G.R. No. 73039 (1987)] and is
entitled to notices of subsequent proceedings. [Sec. 3, Rule 9]
In all, the defendant should receive the following notices:
a) Motion to declare him in default;
b) Order declaring him in default;
c) Subsequent proceedings;
d) Service of final orders and judgments.
(2) The court may either:
a) Proceed to render judgment granting the claimant such
relief as his pleading may warrant; or
b) Require the claimant to submit evidence, which need not
be received by the court personally but may be received by the
clerk of court A declaration of default is not tantamount to an
admission of the truth or validity of the plaintiff’s claims.
[Monarch Insurance v. CA, G.R. No. 92735 (2000)]
(3) A defending party declared in default retains the right to appeal from the
judgment by default. However, the grounds that may be raised in such an appeal
are restricted to any of the following:
(a) The failure of the plaintiff to prove the material allegations of the complaint;
(b) The decision is contrary to law; and
(c) The amount of judgment is excessive or different in kind from that prayed for.
[Otero v. Tan, G.R. No. 200134 (2012)]

c. Relief from an order of default

Relief from an Order of Default [Lina v. CA, G.R. No. L-63397]
(1) After notice of the Order and before Judgment – file a motion under oath
to set aside the Order; must show:
a) Failure to file Answer was due to fraud, accident, mistake,
excusable negligence; and
b) That he has a meritorious defense (i.e. through an affidavit
of merit)
(2) After rendition of Judgment, before judgment becomes final and executory –
may file: (a) a motion for new trial under Rule 37; or
(b) appeal from the judgment for being contrary to the evidence or law
(3) After Judgment becomes final and executory – may file a petition for relief
under Rule 38 (within 60 days from notice of the judgment, but within 6 months
from entry thereof) or annulment of judgment under Rule 47

These remedies presuppose that there was a valid order of default but the
defendant may also file a petition for certiorari when he is improperly declared in
default. [Riano]

d. Effect of a partial default

When the complaint states a common cause of action against several defendants,
only some of whom answer, the court should declare defaulting defendants in

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default, and proceed to trial on answers of others

If the defense is personal to the one who answered, it will not benefit those who
did not answer.

e. Extent of relief
Extent of Relief to be Awarded
1) A judgment rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor award
unliquidated damages
2) If the claim is not proved, the case should be dismissed

As held in Datu Samad Mangelen v. CA, G.R. No. 88954 (1992):

1) In a judgment based on evidence presented ex parte, judgment should
neither exceed the amount, nor be different in kind from that prayed for.
2) On the other hand, in a judgment where an answer was filed but defendant
did not appear at the hearing, the award may exceed the amount or be
different in kind from that prayed for.

f. Actions where default are not allowed

Default is not allowed, in the following cases:
1) An action for annulment or declaration of nullity of marriage
2) For legal separation
3) Special civil actions of certiorari, prohibition and mandamus where comment
instead of an answer is required to be filed
4) Summary procedure
5) In expropriation proceedings, whether or not a defendant has previously
appeared or answered, he may present evidence as to the amount of
compensation to be paid for his property in the trial of the issue of just
compensation. [Sec. 3, par. 3, Rule 67]

7. Filing and service of pleadings

PAYMENT OF DOCKET FEES
GENERAL RULE:
The court acquires jurisdiction over the case only upon payment of prescribed
fees. Without payment, the case is considered not filed. Payment of docket fees is
mandatory and jurisdictional.

It is not simply the filing of the complaint or appropriate initiatory pleading but the
payment of the prescribed docket fee that vests a trial court with jurisdiction over
the subject matter or nature of the action [Proton Pilipinas v. Banque National de
Paris, G.R. No. 151242 (2005)]

a. Payment of docket fees

Effect of Failure to Pay Docket Fees at Filing
(1) The Manchester Rule: Manchester v. CA, G.R. No. 75919 (1987)
• Automatic Dismissal
• Any defect in the original pleading resulting in underpayment of
the docket fees cannot be cured by amendment, such as by the
reduction of the claim as, for all legal purposes, there is no
original complaint over which the court has acquired
jurisdiction

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(2) Relaxation of the Manchester Rule, Sun Insurance v. Asuncion, G.R. No. 79937
(1989)
• NOT automatic dismissal
• Court may allow payment of fees within a reasonable time but
in no case beyond the expiration of the applicable prescriptive
period of the action filed.
(3) Exception to the Sun Insurance doctrine, Gochan v. Gochan, G.R. No. 146089
(2001)
• The Sun Insurance rule allowing payment of deficiency does
not apply where plaintiff never demonstrated any willingness to
abide by the rules to pay the docket fee but stubbornly insisted
that the case filed was one for specific performance and
damages.
(4) Further modification, Heirs of Hinog v. Melicor, G.R. No. 140954 (2005)
• Fees as lien
• Where the trial court acquires jurisdiction over a claim by the
filing of the pleading and the payment of the prescribed filing
fee, BUT SUBSEQUENTLY, the judgment awards a claim not
specified in the pleading, or cannot then be estimated, or a
claim left for determination by the court, then the additional
filing fee shall constitute a lien on the judgment
(5) Limitation on the claims covered by fees as lien, Metrobank v. Perez, G.R. No.
181842 (2010)
 • Claims not specified or claims although specified are left for determination
of the court are limited only to any damages that may arise after the filing of
the complaint or similar pleading for then it will not be possible for the
claimant to specify nor speculate as to the amount thereof

b. Distinguish: filing and service of pleadings

Filing is the act of presenting the pleading or other paper to the clerk of court.
[Sec. 2, Rule 13]

Service is the act of providing a party or his counsel with a copy of the pleading
or paper concerned. [Sec. 2, Rule 13]

Papers required to be filed and served: [Sec. 4, Rule 13]

1. Pleading subsequent to the complaint;

2. Appearance;
3. Written Motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
8. Offer of Judgment;
9. Resolution;
10. Similar papers.

c. Periods of filing of pleadings

Period
Answer to the Complaint
 General rule: Within 15 days
 Foreign private juridical entity defendant, summons through government

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 official: Within 30 days
 Non-resident defendant, with extraterritorial service of summon:
reasonable time not less than 60 days set by court
Answer to amended Complaint
 Amendment was matter of right: Within 15 days
 Amendment not matter of right: Within 10 days
Answer to Counterclaim or Cross-Claim
 Within 10 days
Answer to third (fourth, etc)-party complaint
 Within 15 days
Reply
 Within 10 days
Answer to supplemental complaint
 Within 10 days

Reckoning Point
Answer to the Complaint
 Service of summons, unless a different period is fixed by the court [Sec. 1,
Rule 11]
 Receipt of summons [Sec. 2, Rule 11]
 Service of extrajudicial summons [Sec. 15, Rule 14]
Answer to amended Complaint
 Service of a copy of the amended complaint
 Notice of the order admitting the same [Sec. 3, Rule 11]
Answer to Counterclaim or Cross-Claim
 From service [Sec. 4, Rule 11]
Answer to third (fourth, etc)-party complaint
 Same rule as answer to the complaint [Sec. 5, Rule 11]
Reply
 From service of the pleading responded to [Sec. 6, Rule 11]
Answer to supplemental complaint
 From notice of the order admitting the same, unless a different period is
fixed by the court

d. Manner of filing
Personal Filing

By personally presenting the original copy of the pleading, notice, appearance,

motion, order, or judgment to the clerk of court. [Sec. 3, Rule 13]

Deemed filed upon the receipt of the same by the clerk of court who shall
endorse on it the date and hour of filing.

Filing by Registered Mail[Sec. 3, Rule 13]

Filing by mail should be through the registry service (i.e. by depositing the
pleading in the post office).

Deemed filed on the date it was deposited with the post office, as shown by
the post office stamp on the envelope or the registry receipt.

NOTE: Filing a pleading by facsimile is not sanctioned. But fax was allowed in an
extradition case [Justice Cuevas v. Juan Antonio Muoz (2000)]

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Filing by Private Carrier
If a party avails of a private carrier, the date of the court’s actual receipt of the
pleading (not the date of delivery to the private carrier) is deemed to be the date
of the filing of that pleading. [Benguet Electric Cooperative v. NLRC, G.R. No.
89070 (1992)]

i. Personal filing
By personally presenting the original copy of the pleading, notice, appearance,
motion, order, or judgment to the clerk of court. [Sec. 3, Rule 13]

Deemed filed upon the receipt of the same by the clerk of court who shall
endorse on it the date and hour of filing.

ii. Filing by registered mail

Filing by mail should be through the registry service (i.e. by depositing the
pleading in the post office).

Deemed filed on the date it was deposited with the post office, as shown by
the post office stamp on the envelope or the registry receipt.

NOTE: Filing a pleading by facsimile is not sanctioned. But fax was allowed in an
extradition case [Justice Cuevas v. Juan Antonio Muoz (2000)]

iii. Filing by accredited courier

Filing by Private Carrier
If a party avails of a private carrier, the date of the court’s actual receipt of the
pleading (not the date of delivery to the private carrier) is deemed to be the date
of the filing of that pleading. [Benguet Electric Cooperative v. NLRC, G.R. No.
89070 (1992)]

iv. Transmittal by electronic mail or other electronic means

e. Modes of service
 Personal Service
 Service by Mail
 Substituted Service

i. Personal service
Personal Service [Sec. 6, Rule 13]
1. Delivering personally a copy to the party, who is not
represented by a counsel, or to his counsel; or
2. Leaving a copy in counsel’s office with his clerk or with a
person having charge thereof; or
3. Leaving the copy between 8am and 6pm at the party’s or
counsel’s residence, if known, with a person of sufficient age
and discretion then residing thereon – if not person is found in
his office, or if his office is unknown, or if he has no office

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ii. Service by registered mail
Service by Mail [Sec. 7, Rule 13]
1. Ordinary Mail - it does not constitute filing until the papers are
actually delivered into the custody of clerk or judge
(a) Service may be done by ordinary mail if no registry service
is available in the locality of either sender or addressee
2. Registered Mail - The date of mailing is the date of filing
(a) Date of filing is determinable from 2 sources:
i. From the post office
stamp on the envelope
ii. From the registry receipt
(b) It is done by depositing in the post office:
(c) In a sealed envelope
(d) Plainly addressed to the party or his counsel
i. At his office if known
ii. Otherwise, at his
residence if known
(e) Postage fully pre-paid
(f) With instructions to the postmaster to return the mail to the
sender after 10 days if undelivered

iii. Service by accredited courier

Substituted Service [Sec. 8, Rule 13]
Done by delivery of the copy to the clerk of court with proof of failure of both personal
and service by mail Proper only when:
1. Service cannot be made personally or by mail
2. Office and place of residence of the party or his counsel being
unknown

Service is complete at the time of such delivery.

iv. Service by electronic mail, facsimile transmission, or other

electronic means

v. Service as provided for in international conventions

f. Service of judgments, final orders or resolutions; service of court-issued orders and

other documents

g. Conventional service or filing of orders, pleadings, and other documents

h. When service is deemed complete

In the case of filing by registered mail, when the paper does not appear in the record, the
affidavit of the person who did the mailing must contain:
1. A full statement of the date and place of depositing the mail in

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 the post office
2. The fact that the paper was in a sealed envelope addressed to
the court
3. The fact that postage was fully paid
4. The fact that there were instructions to the postmaster to return
the mail to the sender after 10 days if undelivered

i. Proof of filing and service

Completeness of service [Sec. 10, Rule 13]
Personal service
 Upon actual delivery
Service by ordinary mail
 10 days after mailing, unless otherwise provided by the court
Service by registered mail
 Whichever is earlier of:
(1) Actual receipt by the addressee; or
(2) 5 days after addressee received postmaster's notice

Proof of service [Sec. 13, Rule 13]

Personal service
 (1) Written admission of the party served; or
(2) Official return of the server; or
(3) Affidavit of the party serving, with a full statement of the
date/place/manne r of service.
Service by ordinary mail
 Affidavit of person mailing of facts showing compliance with Sec. 7 of Rule
13.
Service by registered mail
 (1) Affidavit of person mailing showing compliance as above; and
 (2) Registry receipt issued by the post office

Substituted Service
At the time of delivery of the copy to the clerk of court together with proof of
failure of both personal service and service by mail

Duties of sender when service is effected by registered mail:

1. The registry return card shall be filed immediately upon its
receipt by the sender; or
2. The unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the
addressee shall likewise be filed immediately. [Sec. 13,
Rule 13]

Service to the lawyer binds the party. But service to the party does not bind the
lawyer, unless ordered by the court in the following circumstances:
1. When it is doubtful who the attorney for such party is; or
2. When the lawyer cannot be located; or (3) When the party
is directed to do something personally, as when he is
ordered to show cause. [Retoni, Jr. v. CA, G.R. No. 96776
(1993)]

Notice to the lawyer who appears to have been unconscionably irresponsible

cannot be considered as notice to his client, as it would then be easy for the

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lawyer to prejudice the interests of his client by just alleging that he just forgot
every process of the court affecting his clients, because he was so busy. [Bayog v.
Natino, G.R. No. 118691 (1996)]

8. Amendment
How to Amend Pleadings [Sec. 1, Rule 10]
1. Adding an allegation of a party;
2. Adding the name of a party;
3. Striking out an allegation of a party;
4. Striking out the name of a party;
5. Correcting a mistake in the name of a party; and
6. Correcting a mistaken or inadequate allegation or
description in any other respect

A new copy of the entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed. [Sec. 7, Rule 10]
Purpose: That the actual merits of the controversy may speedily be determined,
without regard to technicalities, and in the most expeditious and inexpensive
manner. [Sec. 1, Rule 10]

As a general policy, liberality in allowing amendments is greatest in the early

stages of a law suit, decreases as it progresses and changes at times to a
strictness amounting to a prohibition. This is further restricted by the condition
that the amendment should not prejudice the adverse party or place him at a
disadvantage. [Barfel Development v. CA, G.R. No. 98177 (1993)]

a. Amendment as a matter of right

A party may amend his pleading once as a matter of right, at any time before a
responsive pleading is served, thus:
(1)Amendment of complaint is before an answer is served.
(2)Amendment of answer is before a reply is filed, or before
the period for filing a reply expires, and
(3)Amendment of reply any time within 10 days after it is
served

A motion to dismiss is not a responsive pleading and does not preclude the
exercise of the plaintiff’s right to amend his complaint. [Remington Industrial Sales
v. CA, G.R. No. 133657 (2002)]

b. Amendments by leave of court

Leave of court is necessary in the following instances:
1) Further amendments after the party has already amended his pleading
as a matter of right; and
2) When a responsive pleading has already been served.
Requisites
1) A motion for leave of court to amend pleading is filed Amended pleading
should be attached to the motion [Sec. 9, Rule 15]
2) Notice is given to the adverse party
3) Parties are given opportunity to be heard

When amendment may not be allowed

1) If the cause of action, defense or theory of the case is changed.
2) If amendment is intended to confer jurisdiction to the court. f the court has

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 no jurisdiction in the subject matter of the case, the amendment of the
complaint cannot be allowed so as to confer jurisdiction on the court over
the property. [PNB v. Florendo, G.R. No. L-62082 (1992)]
3) If amendment is for curing a premature or inexistent cause of action. The
cause of action must exist at the time the action was begun, and the plaintiff
will not be allowed by an amendment to introduce a cause of action which
had no existence when the action was commenced. [Surigao Mine
Exploration v. Harris et al, G.R. No. L-45543 (1939)] (4) If amendment is for
purposes of delay.

c. Formal amendment
FORMAL AMENDMENTS
Instances:
1. Mere defect in the designation of the parties;
2. Other clearly clerical or typographical errors

The formal amendment must not cause prejudice to the adverse party.
How formal amendments are effected
(1) May be summarily corrected by the court at any stage of the action
(2) A party may, by motion, call for the formal amendment

d. Effect of amended pleading

AMENDMENTS TO CONFORM TO OR AUTHORIZE PRSENTATION OF EVIDENCE
[Sec. 5, Rule 10]
This is an instance wherein the court acquires jurisdiction over the issues even if
the same are not alleged in the original pleadings, where the trial of said issues is
with the express or implied consent of the parties.

What Sec. 5 contemplates

1) Allows a complaint which failed to state a cause of action to be cured
either by:
a) Evidence presented without objection or
b) In the event of an objection sustained by the
court, by an amendment of the complaint with leave
of court
2) Also allows admission of evidence on a defense not raised in a motion
or answer:
a) if no objection is made thereto; or
b) in the event of such objection, upon
amendment of the answer with leave of court

However, where the plaintiff has no cause of action at the time of the filing of the
complaint, this defect cannot be cured or remedied in this manner by the
acquisition or accrual of one while the action is pending.

Two Scenarios
(1)No objection to the evidence is raised
• Issues not raised in pleadings are tried by express or implied
consent of the parties; they are treated in all respects as if they had
been raised.
• Such amendments as may be necessary to cause the pleadings to
conform to the evidence may be made upon motion of any party at
any time, even after judgment

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 • Failure to amend does not affect the result of the trial of those issues
(2)Objection to the evidence is raised
• Objection on the ground that it is not within the issues made by the
pleadings
• Court may allow the pleadings to be amended and shall do so freely
when the presentation of the merits of the action will be subserved
• As safeguard, the court may grant a continuance to enable the
objecting party to meet such evidence

e. Supplemental pleadings
SUPPLEMENTAL PLEADINGS
A pleading which sets forth transactions, occurrences or events which have
happened since the date of the pleading sought to be supplemented. [Sec. 6, Rule
10]
Purpose: To bring into the records new facts which will enlarge or change the
kind of relief to which the plaintiff is entitled [Ada v. Baylon, G.R. No. 182435
(2012)]
How Made: Upon motion of a party, with reasonable notice and upon terms as
are just.
The admission or non-admission of a supplemental pleading is not a matter of
right but is discretionary on the court.

SUMMONS
The writ by which the defendant is notified of the action brought against him
[Licaros v. Licaros, G.R. No. 150656 (2003)]
Upon the filing of the complaint and the payment of legal fees, the clerk of court
shall issue the corresponding summons to the defendants. [Sec. 1, Rule 14]

1. Nature and purpose of summons

 ACTIONS IN PERSONAM
 ACTIONS IN REM AND QUASI IN REM

a. In relation to actions in personam, in rem and quasi in rem

ACTIONS IN PERSONAM
• To acquire jurisdiction over the person of the defendant in a civil case;
• To give notice to the defendant that an action has been commenced against him.

Where the action is in personam, that is, one brought against a person on the
basis of his personal liability, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case. [Velayo-Fong v. Velayo,
G.R. No. 155488 (2006)]

ACTIONS IN REM AND QUASI IN REM

• Not to acquire jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process
• Jurisdiction over the defendant is not required and the court acquires jurisdiction
over an action as long as it acquires jurisdiction over the res

b. When summons are issued

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

d. Duty of counsel

e. Return
Page 4 of28

£
2. Voluntary appearance
VOLUNTARY APPEARANCE Any form of appearance in court, by the defendant, by
his agent authorized to do so, or by attorney, is equivalent to service except
where such appearance is precisely to object the jurisdiction of the court over the
person of the defendant [Carballo v. Encarnacion, G.R. No. L-5675 (1953)]
GENERAL RULE: Defendant's voluntary appearance in the action shall be
equivalent to service of summons. [Sec. 20, Rule 14]
EXCEPTIONS: Conditional appearance to file a motion to dismiss challenging the
court’s jurisdiction. (1) Special appearance operates as an exception to the
general rule on voluntary appearance; (2) Objections to the jurisdiction of the
court over the person of the defendant must be explicitly made, i.e., set forth in
an unequivocal manner; and (3) Failure to do so constitutes voluntary submission
to the jurisdiction of the court, especially in instances where a pleading or motion
seeking affirmative relief is filed and submitted to the court for resolution. [Phil
Commercial Intl Bank v. Spouses Dy, G.R. No. 171137 (2009)]
Inclusion in the motion to dismiss of grounds other than lack of jurisdiction over
the defendant’s person, is not deemed a voluntary appearance. [Sec. 20, Rule 14]
However, seeking affirmative relief other than dismissal of the case is a
manifestation of voluntary submission to the court’s jurisdiction. The active
participation of a party in the proceedings is tantamount to an invocation of the
court’s jurisdiction and a willingness to abide by the resolution of the case, and will
bar said party from later on impugning the court’s jurisdiction. [Phil Commercial
Intl Bank v. Spouses Dy, G.R. No. 171137 (2009)]

3. Who may serve summons

WHO MAY SERVE SUMMONS
1) The sheriff

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 2) His deputy
3) Other proper court officer
4) Any suitable person authorized by the court, for justifiable
reasons. [Sec. 3, Rule 14]

The enumeration of persons who may validly serve summons is exclusive.

[Herrera]

4. Personal service
How Done [Sec. 6, Rule 14]
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to him

Personal Service of Pleadings Sec. 6, Rule 13

 Personal service includes:
1. Service on the party or his counsel; or
2. By leaving a copy with the clerk or person having charge of his office; or
3. Leaving it with a person of sufficient age and discretion at the party’s or
counsel’s residence
Personal Service of Summons Sec. 6, Rule 14
 Service is only made on defendant himself

5. Substituted service
It is only when the defendant cannot be served personally within a reasonable
time and for justifiable reasons that a substituted service may be made. [Sec. 7,
Rule 14]

How Done
1) By leaving copies of the summons at the defendant’s
residence with some person of suitable age and discretion
residing therein; or
2) By leaving the copies at defendant’s office or regular place
of business with some competent person in charge thereof

Requisites It is necessary to establish the following:

1. Indicate the impossibility of service of summons within a
reasonable time;
2. Specify the efforts exerted to locate the defendant; and
3. State that the summons was served upon:
a) a person of sufficient age and discretion
who is residing in the address, or
b) a person in charge of the office or
regular place of business, of the defendant.
4. It is likewise required that the pertinent facts proving
these circumstances be stated in the proof of service or in the
officer’s return. [Sps. Tiu v. Villar, A.M. No. P-11-2986 (2012)]

Residence is the place where the person named in the summons is living at the
time of when the service is made, even though he may be temporarily out of the
country at that time [Venturanza v. CA, G.R. No. 77760 1987]]
Office or Regular Place of Business is the office or place of business of defendant
at the time of service

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Person in Charge Individual must have sufficient knowledge to understand the
obligation of the defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. [Prudential Bank v. Magdamit, G.R.
No. 183795 (2014)]

6. Constructive service
SERVICE BY PUBLICATION
(CONSTRUCTIVE SERVICE)
1) Service upon Unknown Defendant [Sec. 14, Rule 14]
2) Extraterritorial Service of Summons [Sec. 15, Rule 14]
3) Service upon a Resident temporarily out of the Philippines
[Sec. 16, Rule 14]

a. Service upon a defendant where his identity is unknown or where his whereabouts are
unknown
Service upon Unknown Defendant [Sec. 14, Rule 14
Applicable in cases where:
1. Defendant is sued as an unknown owner; or
2. His whereabouts are unknown and cannot be ascertained
with diligent inquiry

Service of summons may be effected by publication in a newspaper of general

circulation and in such places and for such time as the court may order

The Section applies to “any action,” making no distinction between actions in rem,
in personam and quasi in rem.

b. Service upon residents temporarily outside the Philippines

Service upon a Resident temporarily out of the Philippines [Sec. 16, Rule 14]
Applicable in cases where:
(1) Defendant is a resident of the Philippines; and
(2) Is temporarily out of the country

Summons may, by leave of court, be effected as in the case of extraterritorial

service but unlike in Sec. 15, Rule 14 it may be effected in this manner for “any
action,” not distinguishing between actions in rem, in personam, and quasi in rem.

Even without such Section, as the defendant has a residence in the Philippines,
summons may also be served through substituted service under Sec. 7, Rule 14.
Summons may be effected to a resident defendant, temporarily outside the
Philippines, by:
(1) Substituted service [Sec. 7, Rule 14]
(2) Service by publication [Sec. 15, Rule 14

7. Extraterritorial service, when allowed

Extraterritorial Service of Summons [Sec. 15, Rule 14] Applicable in cases where:
(1) Defendant is a nonresident;
(2) He is not found in the Philippines; and
(3) The action is either in rem. or quasi in rem [Jose v. Boyon, G.R. No. 147369
(2003)]

The actions in rem or quasi in rem, which would justify extraterritorial service of

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summons are:
(1) Those which affect the personal status of the plaintiff,
(2) Those which relate to, or the subject of which is, property within the
Philippines in which defendant claims a lien or interest, actual or contingent;
(3) Those in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines, or
(4) Those wherein property of defendant within the Philippines has been attached

Service of summons is effected, by leave of court, in the following modes:

(1) By personal service, as under Sec. 6, Rule 14;
(2) By publication in a newspaper of general circulation in such places and for such
time as court may order; in which case, a copy of the summons and order of the
court shall be sent by registered mail to the last known address of defendant; or
(3) In any other manner the court may deem sufficient.

Any order granting such leave shall specify a reasonable time within which
defendant must answer, which shall not be less than 60 days after notice.

8. Service upon prisoners and minors; upon spouses

SPECIAL CLASSES OF DEFENDANTS
Upon an Entity without Juridical Personality [Sec. 8] Applicable in cases where:
(1) Persons are associated in an entity without juridical personality; and
(2) They are sued under the name by which they are generally or commonly
known

Service is effected upon all of them by:

(1) Serving summons upon any of them; or
(2) Serving summons upon the person in charge of their office or place of business

Upon Prisoners [Sec. 9] Where the defendant is a prisoner confined in a jail or

institution, service shall be by the management of such institution, who is deemed
deputized as a special sheriff.

Upon Minors and Incompetents [Sec. 10] Service upon minors is effected
upon:
(1) The minor defendant; and
(2) His legal guardian, or any of his parents

Service upon incompetents is effected upon:

(1) The defendant personally; and
(2) His legal guardian

In either case, if there be no legal guardian, the plaintiff shall apply for the
appointment of a guardian ad litem, whom he shall also serve upon.

9. Service upon domestic or foreign private juridical entities

Upon Domestic Private Juridical Entity [Sec. 11]
Service is effected upon:
(1) The president,
(2) Managing partner,
(3) General manager,
(4) Corporate secretary,
(5) Treasurer, or

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(6) In- house counsel

Upon a Foreign Private Juridical Entity [Sec. 12]

Service is effected:
(1)When the defendant is transacting business in the Philippines:
(a) Upon the resident agent; or
(b) Upon the government agent designated by law; or
(c) Any officer or agent of the corporation.
Note that service in the cases of (b) and (c) require that there
is no resident agent
(2)When the defendant is not registered in the Philippines, or has
no agent, with leave of court:
(a) By personal service coursed through the appropriate
foreign court, with the assistance of the DFA;
(b) 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 court order by registered mail at the
defendant’s last known address;
(c) By facsimile or any recognized electronic means, which can
generate proof of service;
(d) By such other means directed by the court.

10. Proof of service

PROOF OF SERVICE [Sec. 18, Rule 14]
Proof service shall be made in writing, and shall state
1) the manner, place, date of service;
2) any papers which served with the process; and
3) the name of the person who received the same.

Proof of service shall be sworn to when made by a person, other than the sheriff
or his deputy.
If effected by publication, proof of service shall be by:
1) The affidavit of the printer, his foreman, or principal clerk; or of the editor,
business or advertising manager
2) A copy of the publication; and
3) An affidavit showing the deposit in the post office, with postage prepaid,
directed for registered mail to the last known address of the defendant of:
(a) A copy of the summons; and
(b) The order of publication.

H. MOTIONS
A motion is any application for relief other than by a pleading

1. Motions in general
GENERAL RULE:
A motion does not pray for judgment
Exceptions:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to evidence.

a. Definition of a motion
A motion is any application for relief other than by a pleading

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b. Distinguish: motions and pleadings
Motion
 Contains allegations of facts
 Prays for a relief
 Grant of the relief does not extinguish the action (interlocutory relief)
 Generally in writing (with some exceptions)
Pleading
 Contains allegations of the ultimate facts
 Prays for a relief
 Grant of relief extinguishes the action (final relief)
 Always in writing

c. Contents and form of motions

Contents
[Sec. 3, Rule 15]
1. Relief sought to be obtained
2. Grounds upon which it is based
3. With supporting affidavits and other papers if:
a) Required by the Rules, or
b) Necessary to prove facts alleged therein
Form [Sec. 2, Rule 15]
Generally, in writing, except:
1. Motions for continuance made in the presence of the adverse party or those
made in the course of the hearing or trial
2. Those made in open court even in the absence of the adverse party or those
made in the course of a hearing or trial

d. Litigious and non-litigious motions; when notice of hearing necessary

KINDS OF MOTIONS
1. Litigated Motions -- one which requires the parties to be
heard before a ruling on the motion is made by the court;
written motions are generally litigated motions
2. Ex Parte Motions – one which does not require such
ruling, and upon which the court may act without prejudicing the
rights of the other party
3. Motion of Course - one for a relief or remedy, to which
the movant is entitled as a matter of right; factual allegations
contained therein do not require verification or investigation
4. Special Motions – one involving discretion of the court
and requiring investigation on the facts alleged
5. Pro Forma Motions – one which fails to indicate the time
and place of the hearing

NOTICE OF HEARING AND HEARING OF MOTIONS

Litigated written motions shall be set for hearing by the movant or applicant. [Sec.
4, Rule 15]
GENERAL RULE:
Motions shall be scheduled for hearing on Motion Day
(1) On Friday afternoons; or
(2) Afternoon of the next working day, if Friday is a non-working day. [Sec. 7,

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Rule 15]

EXCEPTION: Motions which require immediate action

NOTICE OF HEARING
Notice shall be addressed to all parties, and shall specify the time and date of the
hearing which shall not be later than 10 days from the filing of the motion. [Sec.
5, Rule 15]
Motion and notice of hearing must be served at least 3 days before the date of
hearing; [Sec. 4, Rule 15]

Purpose: To prevent surprise upon the adverse party and to enable the latter to
study and meet the arguments of the motion.

Notice must be addressed to the counsels. A notice of hearing addressed to the

clerk of court, and not to the parties, is no notice at all. Accordingly, a motion that
does not contain a notice of hearing to the adverse party is nothing but a mere
scrap of paper, as if it were not filed. [Provident International Resources v. CA,
G.R. No. 119328 (1996)]

Exceptions to the rule on Notice of Hearing:

1) Ex parte motions;
2) Urgent motions;
3) Motions agreed upon by the parties to be heard on shorter
notice, or jointly submitted by the parties;
4) Motions for summary judgment which must be served at
least 10 days before its hearing.

Proof of Service [Sec. 6, Rule 15] A written motion set for hearing will not be
acted upon by the court if there is no proof of service thereof.

Exceptions:
(1) If the motion is one which the court can hear ex parte.
(2) If the court is satisfied that the rights of the adverse parties are not affected
by the motion.
(3) If the party is in default; such a party is not entitled to notice.

e. Omnibus motion rule

A motion attacking a pleading, order, judgment, or proceeding must include all
objections then available. All objections not included in the motion are deemed
waived. [Sec. 8, Rule 15]

Purpose: To require the movant to raise all available exceptions for relief during a
single opportunity so that multiple and piece-meal objections may be avoided

Exception:
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9]

- If filed an MD and Bill of particulars, MD was denied, Reglementary period

remains suspended until action for bill or particulars is acted upon

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- The remedy for denial of MD is Rule 65 not an appeal because it is merely
interlocutory
- Effect of MD on the ground of Failure to state cause of action: Admits all the
averments thereof
- If failure to state cause of action, sufficiency can only be determined by
considering the facts alleged in the complaint
- Hypothetical admissions is however limited to the relevant and material facts
well pleaded in the complaint and inferences fairly deductible therefrom. It does
not extend to conclusions or interpretations of law.
- If failure to state cause of a action, there is hypothetical admission of the facts
alleged but it is only hypothetical. They can still be specifically denied in the
answer if the motion to dismiss is denied.
- Failure to state cause of action can be invoked in motion for judgment in
pleadings or at the trial on the merits. it can be invoked at any stage of the
proceedings.
- Academic freedom
- Failure to state cause of action.

f. Prohibited motions
 MOTION FOR BILL OF PARTICULARS
 PURPOSE AND WHEN APPLIED FOR
 ACTION OF THE COURT
 COMPLIANCE WITH THE ORDER
 EFFECT ON THE PERIOD TO FILE RESPONSIVE PLEADING

2. Motions for Bill of Particulars

Bill of Particulars is a detailed explanation respecting any matter which is not
averred with sufficient definiteness or particularity in the complaint as to enable a
party to properly prepare his responsive pleading [Sec. 1, Rule 12]

An action cannot be dismissed on the ground that the complaint is vague or

indefinite. The remedy of the defendant is to move for a Bill of Particulars, or avail
of the proper mode of discovery. [Galeon v. Galeon, G.R. No. L30380 (1973)]

a. Purpose and when applied for

The purpose of the motion is to seek an order from the court directing the pleader
to submit a bill of particulars, which avers matters with sufficient definiteness or
particularity to enable the movant to prepare his responsive pleading.

It is not to enable the movant to prepare for trial. When this is the purpose, the
appropriate remedy is to avail of Discovery Procedures under Rules 23 to 29.
[Riano]

When Applied For

(1) Before responding to a pleading
(2) If sought to clarify a reply, within 10 days from service thereof

The motion should point out:

(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired. [Sec. 1, Rule 12]

The only question to be resolved in such motion is whether the allegations in the

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complaint are averred with sufficient definiteness or particularity to enable the
movant to properly prepare his responsive pleading and to prepare for trial.
[Tantuico, Jr. v. Republic, G.R. No. 89114 (1991)]

What cannot be done in a Bill of Particulars:

(1) To supply material allegations necessary to the validity of a pleading
(2) To change a cause of action or defense stated in the pleading
(3) To state a cause of action or defense other than the one stated
(4) To set forth the pleader’s theory of his cause of action or a rule of evidence on
which he intends to reply
(5) To furnish evidentiary information [Virata v. Sandiganbayan, G.R. No. 103527
(1993)]

b. Actions of the court

Upon filing of the motion, the clerk must immediately bring it to the attention of
the court. [Sec. 2, Rule 12]

The court may either:

(1) Deny
(2) Grant the motion outright
(3) Allow the parties the opportunity to be heard

c. Compliance with the order and effect of noncompliance

If motion is granted, either in whole or in part, the pleader must file a Bill of
Particulars or a more definite statement, within 10 days from notice of order,
unless the court fixes a different period.

The bill of particulars or a more definite statement ordered by the court may be
filed either as a separate pleading or in an amended pleading, and a copy of which
must be served on the adverse party. [Sec. 3, Rule 12]

A Bill of Particulars becomes part of the pleading for which it was intended. [Sec.
6, Rule 12]

Effect of Non-Compliance [Sec. 4, Rule 12]

(1) In case of non-compliance or insufficient compliance with the order for Bill of
Particulars, the court may:
a. Order the striking out of the pleading (or portion thereof)
to which the order is directed; or
b. Make such order as it may deem just.
(2) If the plaintiff fails to obey, his complaint may be dismissed with prejudice
unless otherwise ordered by the court. [Sec. 4, Rule 12; Sec. 3, Rule 17]
(3) If defendant fails to obey, his answer will be stricken off and his counterclaim
dismissed, and he will be declared in default upon motion of the plaintiff. [Sec. 3,
Rule 9; Sec. 4, Rule 12; Sec. 4, Rule 17]

d. Effect on the period to file a responsive pleading

Provided that the Motion for Bill of Particulars is sufficient in form and substance, it
stays the period for the movant to file his responsive pleading.
The movant may file his responsive pleading:
(1) Within the period he was entitled at the time the motion was filed; or
(2) Within 5 days whichever is higher.

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Such period shall be reckoned from:
(1) Service of the Bill of Particulars or more definite pleading; or
(2) Notice of denial of his Motion for Bill of Particulars.

I. DISMISSAL OF ACTIONS
- An action may be dismissed by the PLAINTIFF without court order by filing a
NOTICE OF DISMISSAL at any time before service of the answer or of a motion for
summary judgment. ( matter of right)
- Filing of motion for the dismissal of the action by the plaintiff at any stage
OTHER THAN as a matter of right (Discretionary)
- If defendant filed a Motion to dismiss and plaintiff filed a notice of dismissal,
Deemed dismissed. Because it is a matter of right. Court has no choice but to
dismiss.
- If dismissed twice by the plaintiff
- WITH PREJUDICE = operates as an adjudication upon the merits.

1. Dismissal with prejudice

2. Dismissal upon notice by plaintiff

Dismissal by plaintiff as a matter of right

Dismissal is effected by mere notice of dismissal, which is a matter of right, before

service of:
(1) The answer; or
(2) A motion for summary judgment

The dismissal as a matter of right ceases when an answer or a motion for

summary judgment is served on the plaintiff, not when the answer or the motion
is filed with the court.

Withdrawal is not automatic but requires an order by the court confirming the
dismissal.

Until confirmed, the withdrawal does not take effect. The requirement is in keeping
with the respect due the court. [Herrera]

However, it is not the order which operates to dismiss the complaint. As stated by
the rule, it merely confirms the dismissal already effected by the filing of the
notice. [Riano]

GENERAL RULE: Dismissal is without prejudice

EXCEPTIONS:
(1) Where the notice of dismissal so provides; or
(2) Where the plaintiff has previously dismissed the same case in a court of
competent jurisdiction (“Two Dismissal Rule”)
(3) Where the notice of dismissal is premised on a reason which would prevent
refiling of the complaint (e.g. extinguishment or res judicata) [Riano]

Two Dismissal Rule Applies when the following are met:

(1) Plantiff had twice dismissed actions;
(2) Both actions based on , or including, the same claims;

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(3) In a court of competent jurisdiction.

The second dismissal operates as an adjudication on the merits.

3. Dismissal upon motion by plaintiff; effect on existing counterclaim

Under this section, dismissal of the complaint is subject to the discretion of the
court and upon such terms and conditions as may be just.

GENERAL RULE:
Dismissal is without prejudice

EXCEPTIONS:
(1) When otherwise stated in the motion to dismiss; or
(2) When stated to be with prejudice in the order of the court

Effect on Counterclaim:
If counterclaim has been pleaded by defendant prior to service upon him of
plaintiff’s motion for dismissal, dismissal shall be limited to the complaint
The defendant either:
(1) Prosecute his counterclaim in a separate action; or
• The court should render the corresponding order granting the plaintiff’s motion
and reserving his right to prosecute his claim in a separate complaint
(2) Have the same resolved in the same action
• Defendant must manifest such preference to the trial court within 15 days from
notice of the plaintiff’s motion to dismiss

These alternative remedies of the defendant are available to him regardless of

whether his counterclaim is compulsory or permissive.

4. Dismissal due to the fault of plaintiff

The case may be dismissed motu proprio or upon the defendant’s motion if,
without justifiable cause, plaintiff:
(1) Fails to appear on the date of the presentation of his
evidence-inchief on the complaint;
a) The plaintiff’s failure to appear at the trial after he has
presented his evidence and rested his case does not warrant the
dismissal of the case on the ground of failure to prosecute. It is
merely a waiver of his right to crossexamine and to object to the
admissibility of evidence. [Jalover v. Ytoriaga, G.R. No. L-35989
(1977)]
b) Since plaintiff’s presence is now required only during the
presentation of his evidence in chief, his absence during the
presentation of defendant or other parties’ evidence, or even at
rebuttal or subsequent stages, is not a ground for dismissal.
(2) Fails to prosecute his action for an unreasonable length of time
(nolle prosequi);
a) The test for dismissal of a case due to failure
to prosecute is WON, under the circumstances,
the plaintiff is The case may be dismissed motu
proprio or upon the defendant’s motion if,
without justifiable cause, plaintiff:
(1) Fails to appear on the date of the presentation of his evidence-
inchief on the complaint;

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 a) The plaintiff’s failure to appear at the trial after
he has presented his evidence and rested his
case does not warrant the dismissal of the case
on the ground of failure to prosecute. It is
merely a waiver of his right to crossexamine and
to object to the admissibility of evidence.
[Jalover v. Ytoriaga, G.R. No. L-35989 (1977)]
b) Since plaintiff’s presence is now required only
during the presentation of his evidence in chief,
his absence during the presentation of
defendant or other parties’ evidence, or even at
rebuttal or subsequent stages, is not a ground
for dismissal.
(2) Fails to prosecute his action for an unreasonable length of time
(nolle prosequi);
(a) The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the plaintiff is

5. Dismissal of counterclaim, cross-claim or third-party complaint

Provisions of Rule 17 shall apply to the dismissal of any counterclaim, cross-claim,
or third-party complaint
Voluntary dismissal by claimant by notice as in Sec. 1, shall be made:
(1) Before a responsive pleading or motion for summary judgment is served; or
(2) If there is none, before introduction of evidence at trial or hearing

J. PRE-TRIAL
Pre-Trial is a mandatory conference and personal confrontation before the judge
between the parties and their respective counsel, called by the court after the
joinder of issues in a case or after the last pleading has been filed and before trial,
for the purpose of settling the litigation expeditiously or simplifying the issues
without sacrificing the necessary demands of justice.

It is a procedural device by which the court is called upon, after the filing of the
last pleading, to compel the parties and their lawyers to appear before it, and
negotiate an amicable settlement or otherwise make a formal settlement and
embody in a single document the issues of fact and law involved in the action, and
such other matters as may aid in the prompt disposition in the case, such as:
(1) Number of witnesses
(2) Tenor or character of their testimonies
(3) Documentary evidence; nature and purpose of each
(4) Number of trial dates [Herrera]

1. Concept of pre-trial

2. Nature and purpose

Purpose of pre-trial is to consider: [Sec. 2, Rule 18]
(1) Possibility of an amicable settlement or of a submission to alternative modes of
dispute resolution;
(2) Simplification of the issues;
(3) Necessity/desirability of amendments to the pleadings;
(4) Possibility of obtaining stipulations or admissions of facts and of documents to
avoid unnecessary proof;

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(5) Limitation of the number of witnesses;
(6) Advisability of a preliminary reference of issues to a commissioner;
(7) Propriety of rendering judgment on the pleadings, or summary judgment, or of
dismissing the action should a valid ground therefor be found to exist;
(8) Advisability/necessity of suspending the proceedings; and
(9) Other matters that may aid in the prompt disposition of the action.

Pre-trial is Mandatory
Mandatory nature is addressed to both court and parties:
• Court must set the case for pre-trial and notify the parties as well as counsel to
appear
• Parties with their counsel are obliged to obey the order of the court to that effect

Primary Objective
Pre-trial is primarily intended to make certain that all issues necessary to the
disposition of a case are properly raised.

Thus, to obviate the element of surprise, parties are expected to disclose at a pre-
trial conference all issues of law and fact which they intend to raise at the trial,
except such as may involve privileged or impeaching matters. The determination
of issues at a pretrial conference bars the consideration of other questions on
appeal. [Caltex v. CA, G.R. No. 97753 (1992)]

3. Notice of pre-trial
After the last pleading has been served and filed, it shall be the duty of the
plaintiff to promptly move ex parte that the case be set for pre-trial. [Sec. 1, Rule
18]
• Within 5 days from date of filing of the reply, plaintiff must promptly move ex
parte that the case be set for pre-trial conference.
• If the plaintiff fails to file said motion within the given period, the branch clerk
shall issue a Notice of Pre-Trial [AM No. 03-1-09-SC]

The “last pleading” need not be literally construed as the actual filing of the last
pleading. For purpose of pre-trial, the expiration of the period for filing the last
pleading is sufficient [Sarmiento v. Juan, G.R. No. L-56605 (1983)]

The notice shall be served on counsel, or on the party if he has no counsel. [Sec.
3, Rule 18]

The sufficiency of the written notice of pretrial is irrelevant where evidence shows
that counsel and the parties actually knew of the pre-trial [Bembo v. CA, G.R. No.
116845 (1995)]

4. Appearance of parties; effect of failure to appear

It is the duty of both the parties and their counsel to appear at the pre-trial. [Sec.
4, Rule 18]
When non-appearance is excused [Sec. 4, Rule 18]
Non-appearance of a party may be excused only if either:
(1) Valid cause is shown for it;
(2) A representative appears in his behalf, fully authorized in writing:
(a) To enter into an amicable settlement;
(b) To submit to alternative modes of dispute resolution; and
(c) To enter into stipulations/admissions of facts and of documents.

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The written special authority must be in the form of a special power of attorney as
authority to enter into amicable settlement must be in such form. [Sec. 23, Rule
138; Art. 1878(3), Civil Code]

Effect of Failure to Appear; Order of Non-suit (1) Of the plaintiff – the case shall be
dismissed with prejudice, unless the court orders (2) Of the defendant – the
plaintiff shall be allowed to present evidence ex parte, and judgment shall be
rendered based thereon [Sec. 5, Rule 18]

The non-appearance of defendant in pre-trial is not a ground to declare him in

default. Thus, we distinguish:
Default by defendant [Sec. 3, Rule 9]
 Upon motion and notice to defendant.
 Requires proof of failure to answer
 Court may render judgment without receiving evidence
 Judgment by Default
 Relief awarded must be the same in nature and amount as prayed for in the
complaint
Failure to appear by defendant [Sec. 5, Rule 18]
 Not required
 Not required
 Court renders judgment based on the evidence presented ex parte
 Judgment Ex Parte
 Relief awarded may be of different nature and amount from the relief prayed
for

When we say that a defendant is “in default” it speaks of his failure to file
responsive pleading and not his non-appearance at pretrial.
Remedies of Non-suited Party
(1) For a non-suited plaintiff:
• Since the dismissal is with prejudice, it has the effect of an adjudication on
the merits.
• The proper remedy of the plaintiff is appeal, not certiorari [Chingkoe v.
Republic, G.R. No. 183608 (2013)]
(2) For a non-suited defendant:
• Since the order allowing presentation of the evidence ex parte does not
dispose of the case, it is interlocutory.
• The remedy of the defendant is to file a motion for reconsideration, and if
denial is with grave abuse of discretion, file a petition for certiorari [Riano]

5. Pre-trial brief; effect of failure to appear

PRE-TRIAL BRIEF
Parties shall file and serve their respective pre-trial briefs, ensuring receipt by
adverse party at least 3 days before the date of the pre-trial.

It is mandatory for parties to file their pretrial briefs as failure shall have the same
effect as failure to appear at the pre-trial. [Sec. 6, Rule 18]
Contents
(1) Statement of their willingness to enter into amicable settlement or alternative
modes of dispute resolution, indicating the desired terms thereof;
(2) Summary of admitted facts and proposed stipulation of facts;
(3) Issues to be tried/resolved;

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(4) Documents/exhibits to be presented, stating the purpose thereof;
(5) Manifestation of their having availed or their intention to avail themselves of
discovery procedures or referral to commissioners;
(6) Number and names of the witnesses, and the substance of their respective
testimonies. [AM No. 03-1-09-SC]

Remedy of defendant is to file a motion for reconsideration, showing that his

failure to file a trial brief was due to fraud, accident, mistake, or excusable
negligence. The filing of pre-trial brief is mandatory, and is not excused simply
because the defendant was not represented by counsel. [Saguid v. CA, G.R. No.
150611 (2003)]

No evidence shall be allowed to be presented and offered during the trial in

support of a party’s evidence-in-chief other than those identified and pre-marked
during the pretrial, except if allowed by the court for good cause shown. [AM No.
03-1-09-SC]

Effect of Failure to Appear; Order of Non-suit (1) Of the plaintiff – the case shall be
dismissed with prejudice, unless the court orders (2) Of the defendant – the
plaintiff shall be allowed to present evidence ex parte, and judgment shall be
rendered based thereon [Sec. 5, Rule 18]

The non-appearance of defendant in pre-trial is not a ground to declare him in

default. Thus, we distinguish:
Default by defendant [Sec. 3, Rule 9]
 Upon motion and notice to defendant.
 Requires proof of failure to answer
 Court may render judgment without receiving evidence
 Judgment by Default
 Relief awarded must be the same in nature and amount as prayed for in the
complaint
Failure to appear by defendant [Sec. 5, Rule 18]
 Not required
 Not required
 Court renders judgment based on the evidence presented ex parte
 Judgment Ex Parte
 Relief awarded may be of different nature and amount from the relief prayed
for

When we say that a defendant is “in default” it speaks of his failure to file
responsive pleading and not his non-appearance at pretrial.
Remedies of Non-suited Party
(3) For a non-suited plaintiff:
• Since the dismissal is with prejudice, it has the effect of an adjudication on
the merits.
• The proper remedy of the plaintiff is appeal, not certiorari [Chingkoe v.
Republic, G.R. No. 183608 (2013)]
(4) For a non-suited defendant:
• Since the order allowing presentation of the evidence ex parte does not
dispose of the case, it is interlocutory.
• The remedy of the defendant is to file a motion for reconsideration, and if denial
is with grave abuse of discretion, file a petition for certiorari [Riano]

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6. Pre-trial order
Effect of Pre-Trial Order
The contents of the order shall control the subsequent course of the action,
unless:
(1) Modified before trial to prevent manifest injustice [Sec. 7, Rule 18]
(2) Issues impliedly included therein or may be inferable therefrom by necessary
implication [Philippine Export and Foreign Loan Guarantee Corp. v. Amalgamated
Management and Development Corp., G.R. No. 177729 (2011)] (3) Amendment to
conform to evidence [Sec. 5, Rule 10]

7. Distinguish: pre-trial in civil cases and pre-trial in criminal cases

CivilCase [Rule 18]
 Set when the plaintiff moves ex parte to set the case for pre-trial [Sec. 1]
 Made after the last pleading has been served and filed [Sec. 1]
 Possibility of an amicable settlement as an important objective [Sec. 2(a)]
 The sanctions for non-appearance are imposed upon the plaintiff and the
defendant [Sec. 4]
 A pre-trial brief is specifically required to be submitted [Sec. 6]
Criminal Case [Rule 118]
 Ordered by the court and no motion is required from either party [Sec. 1]
 Ordered by the court after arraignment, and within 30 days from the date
the court acquired jurisdiction over the person of the accused [Sec. 1]
 Possibility of amicable settlement of criminal liability not among its purposes
[Sec. 1]
 Sanctions are imposed upon the counsel for the accused or the prosecutor
[Sec. 3]
 A pre-trial brief is not specifically required.

Pre-trial under Criminal Cases require stricter procedure:

• Civil Case: The arrangements and admissions are not required to be signed by
both parties and their counsels; instead contained in the record of pretrial and pre-
trial order [Sec. 7, Rule 18] Recently, the proceedings during the preliminary
conference are recorded in the “Minutes of Preliminary Conference” to be signed
by both parties and/or counsel. Note that either the party or his counsel may
sign. [AM No. 03-1-09-SC]
• Criminal Case – All agreements or admissions made during the pre-trial
conference are reduced in writing and signed by both the accused and counsel;
otherwise, they cannot be used against the accused. [Sec. 2, Rule 118]

K. INTERVENTION
A proceeding in a suit or an action by which a third person is permitted by the
court to make himself a party, either:
(1) Joining plaintiff in claiming what is sought by the complaint;
(2) Joining with defendant in resisting the claims of the plaintiff; or
(3) demanding something adverse to both of them. [Herrera]

Intervention is never an independent action, but is ancillary and supplemental to

the existing litigation. Its purpose is to afford one not an original party, yet having
a certain right/interest in the pending case, the opportunity to appear and be
joined so he could assert or protect such right/interest. [Carino v. Ofilada, G.R.
No. 102836 (1993)]

1. Requisites for intervention

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 1) The legal interest:
a) In the matter in controversy; or
b) In the success of either of the parties; or
c) Against both; or
d) So situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court or of an office thereof;
2) Intervention will not unduly delay or prejudice the adjudication of
rights of original parties
3) Intervenor’s rights may not be fully protected in a separate proceeding
[Lorenza Ortega v. CA, G.R. No. 125302 (1998)]

MEANING OF LEGAL INTEREST

Interest
– must be of a direct and immediate character so that the intervenor will either
gain or lose by the direct legal operation of the judgment. The interest must be
actual and material, a concern which is more than mere curiosity, or academic or
sentimental desire; it must not be indirect and contingent, indirect and remote,
conjectural, consequential or collateral. [Virra Mall Tenants v. Virra Mall, G.R. No.
182902 (2011)]

Notwithstanding the presence of a legal interest, permission to intervene is subject

to the sound discretion of the court, the exercise
of which is limited by considering "whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties and whether
or not the intervenor’s rights may be fully protected in a separate proceeding.
[Virra Mall Tenants v. Virra Mall, G.R. No. 182902 (2011)]

2. Time to intervene
The motion to intervene may be filed at any time before rendition of judgment by
the trial court.
Effected by:
(1) A motion to intervene
(2) Attaching the pleading-in-intervention; and
(3) Also serving the motion and pleading-inintervention on the original parties
[Sec. 2, Rule 19]

GENERAL RULE: Allowance of intervention is discretionary with the court

EXCEPTION: When the intervenor is an indispensable party

3. Remedy for the denial of motion to intervene

PLEADINGS-IN-INTERVENTION (1) Complaint-in-intervention – If intervenor
asserts a claim against either or all of the original parties. (2) Answer-in-
intervention – If intervenor unites with the defending party in resisting a claim
against the latter. (3) Answer to complaint-inintervention [Sec. 4, Rule 19] - It
must be filed within 15 days from notice of the order admitting the complaint-
inintervention, unless a different period is fixed by the court.
REMEDIES OF THE PARTIES
(1) If intervention is denied
(a) Aggrieved party may appeal
(b) Mandamus will not lie except in case of grave abuse of discretion
(2) If intervention is granted

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(a) A grant of a motion to intervene is interlocutory
(b) Hence, anyone who objects can file a petition for certiorari for improper
granting of intervention

L. SUBPOENA
A process directed to a person requiring him:
(1) To attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his
deposition; or
(2) To bring with him any books, documents, or other things under his control
[Sec. 1, Rule 21]

Page 5 of28

I
1. Subpoena duces tecum
A process directed to a person requiring him to bring with him books, documents,
or other things under his control [Sec. 1, Rule 21]

The subpoena duces tecum is, in all respects, like the ordinary subpoena ad
testificandum, with the exception that it concludes with an injunction that the
witness shall bring with him and produce at the examination the books,
documents, or things described in the subpoena.

Before this subpoena may issue, the court must first be satisfied that the following
tests are met:
(1) Test of relevancy – the books, documents, or other things requested must
appear prima facie relevant to the issue subject of the controversy;
(2) Test of definiteness – such books must be reasonably described by the parties
to be readily identified

2. Subpoena ad testificandum
A process directed to a person requiring him to attend and to testify at the hearing
or the trial of an action, or at any investigation conducted by competent authority
or for the taking of his deposition [Sec. 1, Rule 21]

3. Service of subpoena
Service of subpoena shall be made in the same manner as personal or substituted
service of summons. [Sec. 6, Rule 21]

Formalities
(1) The original is exhibited to the person served;
(2) A copy is delivered to him; and
(3) Tender is made to him of the following:
(a) Fees for one day’s attendance;
(b) Kilometrage allowed by the Rules; and
(c) In the case of subpoena duces tecum, the reasonable cost of producing the
books, documents and things demanded.

Note: Tender of these amounts need not be made if subpoena is issued by or on

behalf of the Republic, or an officer or agency thereof When made: must be such
as to allow the witness reasonable time for preparation and travel to the place of

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attendance

4. Compelling attendance of witnesses; contempt

The court which issued the subpoena may, upon proof of service and failure of
witness to attend, issue a warrant for the arrest of the witness and make him pay
the cost of such warrant and seizure, if the court should determine that his
disobedience was willful and without just cause [Sec. 8, Rule 21]

The refusal to obey a subpoena without adequate cause shall be deemed contempt
of the court issuing it. [Sec. 9, Rule 21]

EXCEPTION: Provisions regarding the compelling of attendance [Sec. 8] and

contempt [Sec. 9] do not apply where:
(1) Witness resides more than 100km from his residence to the place where he is
to testify by the ordinary course of travel [“viatory right”]; or
(2) Permission of the court in which the detention prisoner’s case is pending was
not obtained

Note: “Viatory right” applies only in civil cases, not criminal cases. [Genorga v.
Quitain, AM No. 981-CFI (1977)]

5. Quashing of subpoena
Quashing of subpoena is done by the court, upon motion promptly made at or
before the time specified in the subpoena. [Sec. 4, Rule 21]

GROUNDS
(1) For quashing subpoena duces tecum:
a. That the subpoena is unreasonable and oppressive;
b. That the articles sought do not appear prima facie relevant
to the issues;
c. That the applicant does not advance the cost for the
production of the articles desired; or
d. That there was no tender of witness fees and kilometrage.
(2) For quashing subpoena ad testificandum
a) That the witness is not bound thereby, or
b) That there was no tender of witness fees and kilometrage.

M. COMPUTATION OF TIME

N. MODES OF DISCOVERY
(1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending appeal [Rule 24]
(3) Interrogatories to parties [Rule 25]
(4) Admission by adverse party [Rule 26]
(5) Production or inspection of documents or thing [Rule 27]
(6) Physical and mental examination of persons [Rule 28]

1. Depositions pending action; depositions before action or pending appeal

(1) Depositions pending action [Rule 23] – called deposition de bene esse
(2) Depositions before action or pending appeal [Rule 24] – called
depositions in perpetuam rei memoriam

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When Depositions Pending Action Taken [Sec. 1, Rule 23]
(1) With leave of court
(a) After jurisdiction has been obtained over any defendant or over the property
which is the subject of the action, but
(b) Before an answer has been served
(2) Without leave of court after answer has been served

NOTE: The taking of deposition of a person confined in prison is always by leave of

court, whether before or after service of the answer. [Sec. 1, Rule 23]

Before whom Depositions are taken [Secs. 10-11, Rule 23]

(1) Within the Philippines:
(a) Judge
(b) Notary Public, or
(c) Any person authorized to administer oaths, as stipulated by the parties in
writing
(2) Outside the Philippines
(a) On notice before a secretary of embassy or legation, consul general, consul,
vice-consul, or consular agent of the Philippines
(b) Before such person or officer as may be appointed by commission or under
letter rogatory or
(c) Any person authorized to administer oaths as stipulated by parties in writing

a. Meaning of deposition
Deposition – taking of testimony out of court of any person, whether party to the
action or not but at the instance of a party to the action [Riano]

b. Uses; scope of examination

Scope of Examination [Sec. 2, Rule 23]
Deponent may be examined as to any matter:
(1) Not privileged;
(2) Relevant to the subject of the pending action; and
(3) Under such limitations as the court may order under Secs. 16 and 18.

These may relate to:

(1) Any claim or defense of any other party;
(2) The existence, description, nature, custody, condition, and location of books,
documents and other tangible things; or
(3) The identity or location of persons having knowledge of relevant facts.

Specific Uses of Depositions [Sec. 4, Rule 23]

The use of depositions depends on whether deponent is a party or not.
(1) For contradicting or impeaching the testimony of the former deponent, now
testifying as a witness
• Only used to contradict, not as proof of specific facts
• Cannot be used for this person if deponent does not testify
(2) For any purpose, if the deponent was an adverse party
• May be used as an admission
• Cannot, however, be used in the trial of a case against a defendant who was not
a party to the action when the deposition was taken
(3) Deposition of a witness or party may be used for any purpose under the
following circumstances:
(a) Witness-deponent is dead – there must be proof or presumption of death, and

Page 78 of 360
proof that the deposition was lawfully taken
(b) Witness resides more than 100 km from the place of trial or hearing, or is out
of the country -- unless absence was procured by the proponent of the deposition
(c) Disability of a witness due to age, sickness, infirmity, or imprisonment –
proven by certificate of attending physician
(d) Inability to procure attendance of witness by subpoena
(e) Exceptional circumstances

GENERAL RULE: A deposition is not a substitute for the actual testimony in open
court of a party or witness. If the witness is available to testify, he should be
presented in court to testify. If available to testify, a party’s or witness’ deposition
is inadmissible in evidence for being hearsay. [Dasmarinas Garments Inc. v.
Reyes, G.R. No. 108229 (1993)].

EXCEPTION: Depositions may be used as evidence under the circumstances in

Sec. 4.

c. When may objections to admissibility be made

OBJECTIONS TO ADMISSIBILITY
Objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. [Sec. 6, Rule 23]

d. When may taking of deposition be terminated or its scope limited

TERMINATION OF TAKING OF DEPOSITION OR LIMITATION OF SCOPE

How done
(1) A motion or petition for termination or limit examination is filed by any party
or of the deponent
(2) Filed in the court where the action is pending OR the RTC of the place where
deposition is being taken

When done: At any time during the taking of deposition

Grounds: That the examination is being conducted: (1) In bad faith, or (2) In such
manner as unreasonably to annoy, embarrass or oppress the deponent or party

2. Written interrogatories to adverse parties

Purpose: This mode of discovery is availed of by the party to the action for the
purpose of eliciting material and relevant facts from any of the adverse party.
[Sec. 1, Rule 25]

Scope and Use: Interrogatories have the may relate to the same matter as may be
inquired into under Depositions Pending Action and may also be used for the same
purposes provided. [Sec. 5, Rule 24]

a. Consequences of refusal to answer

CONSEQUENCES OF FAILURE TO ANSWER
On failure to answer of a party served with interrogatories, the court, on motion
and notice, may:
(1) Strike out all or any part of any pleading of that party;
(2) Dismiss the action;
(3) Render judgment by default against the party; and

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(4) Order payment by such party of reasonable expenses including attorney’s fees.
[Sec. 5, Rule 29]

b. Effect of failure to serve written interrogatories

EFFECT OF FAILURE TO SERVE
A party not served with written interrogatories may not be compelled by adverse
party to:
(1) Give testimony in open court; or
(2) Give deposition pending appeal [Sec. 6, Rule 25]

Exception: Allowed by the court for good cause shown and to prevent a failure of
justice

3. Request for admission

Rule 26, as a mode of discovery, contemplates interrogatories seeking clarification
in order to determine the truth of the allegation in a pleading.

Purposes:
(1) To allow one party to request the adverse in writing to admit certain material
and relevant matters which most likely will not be disputed during the trial.
(2) To avoid unnecessary inconvenience to the parties in going through the rigors
of proof, before the trial, a party may request the other to:
(a) Admit the genuineness of any material and relevant document described in and
exhibited with the request; or
(b) Admit the truth of any material and relevant matter of fact set forth in the
request [Sec. 1, Rule 26]

How made:
(1) A party files and serves upon any other party a written request
(2) Copies of the documents shall be served with the request unless already
furnished

The request for admission must be served on the party, not the counsel. This is an
exception to the general rule that notices shall be served upon counsel and not
upon the party. [Duque v. CA, G.R. 125383 (2002)]

When made: At any time after issues have been joined, which is to say,

a. Implied admission by adverse party

IMPLIED ADMISSION BY ADVERSE PARTY
Each of the matters which an admission is requested shall be deemed admitted
unless the party to whom request is directed files and serves upon the party
requesting admission a sworn statement [Sec. 2, Rule 26]

Contents
(1) Denying specifically the matters of which an admission is requested, or
(2) Setting forth in detail the reasons why he cannot truthfully either admit or
deny those matters
Period: Such party must file and serve such statement:
(1) Within a period not less than 15 days designated in the request; or
(2) Within such further time as the court may allow on motion

Page 80 of 360
Objections shall be submitted to the court by the party requested within the period
for and prior to filing of his sworn statement. Compliance with the sworn
statement shall be deferred until objections are resolved. [Sec. 2, Rule 26]

b. Consequences of failure to answer request for admission

CONSEQUENCES FOR FAILURE TO ANSWER REQUEST
The proponent may apply to the proper court for an order to compel an answer.
[Sec. 1, Rule 29]
If application is granted, the court:
(1) Shall require the refusing party to answer; and
(2) May require the refusing party or counsel to pay reasonable expenses for
obtaining the order, the refusal to answer was without substantial justification.

If application is denied and it was filed without substantial justification, the court
may require the refusing party or counsel to pay reasonable expenses for opposing
the application.

Refusal to answer after being directed by the court would constitute contempt of
court.
Refusal to obey would also allow the court to make such orders regarding the
refusal as are just, such as:
(1) That the matters regarding which questions were asked be taken as
established for the purposes of the action in accordance with the claim of the
party obtaining the order;
(2) That the disobedient party be disallowed from supporting or opposing
designated claims or defenses;
(3) That pleadings or parts thereof be stricken out; or
(4) That further proceedings be stayed until compliance; or that actions or any
parts thereof be dismissed or that judgment be rendered by default against the
disobedient party; or
(5) That the disobedient party be arrested. [Sec. 3, Rule 29]

c. Effect of admission
EFFECT OF ADMISSION
Any admission made by a party pursuant to such request is for the purpose of the
pending action only [Sec. 3, Rule 26]
It shall not:
(1) Constitute an admission by him for any other purpose; nor
(2) Be used against him in any other proceeding

d. Effect of failure to file and serve request for admission

Applicability: The party fails to file and serve a request for admission on the
adverse party for facts at issue, which are:
(1) Material and relevant fact at issue, and
(2) Are, or ought to be, within the personal knowledge of the adverse party

Effect: The party shall not be permitted to present evidence on such facts, unless
allowed by the court for good cause and to prevent a failure of justice [Sec. 5,
Rule 29]

4. Production or inspection of documents or things

Applicable only to a pending action and the things subject of the motion must be

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within the possession, control, or custody of a party.

PROCEDURE [Sec. 1, Rule 27] A motion is filed by the party seeking production or
inspection, showing good cause therefor.

The court may issue an order:

(1) for the party to produce and permit inspection, copying or photographing, by
or on behalf of the moving party, of any designated documents or tangible things,
a) not privileged,
b) constituting or containing material evidence, and
c) in the party’s in his possession, custody or control
(2) for the party to permit entry upon designated land or other property, in his
possession or control, for inspection, measuring, surveying, or photographing
property or any designated relevant object or operation.

The order shall state:

(1)The time, place, and manner of making the inspection and taking copies and
photographs, and
(2) Such terms and conditions as are just

5. Physical and mental examination of persons

Applicable in an action in which the mental or physical condition of a party is in
controversy. [Sec. 1, Rule 28]

PROCEDURE [Sec. 2, Rule 28]

A motion for the examination is filed in the court where the action is pending:
(1) showing good cause for the examination;
(2) with notice to the party to be examined, and all other parties; and
(3) specifying the time, place, manner, conditions, scope, and person conducting
the examination.

Since the results of the examination are intended to be made public, the same are
not covered by physician-patient privilege [Sec. 24(b), Rule 130]

REPORT OF FINDINGS [Sec. 3, Rule 28] The party examined may request delivery
of a copy of the detailed written report, with the findings of the examining
physician. Upon such request and delivery, the party causing the examination is
entitled upon request to receive a like report of any examination, previously or
thereafter made, of the same mental or physical condition.
If such report is not delivered:
(a) Due to refusal of the party examined, the court may make an order requiring
delivery on such terms as are just;
(b) Due to failure or refusal of the physician, the court may exclude his testimony
when offered at trial.
WAIVER OF PRIVILEGE [Sec. 4, Rule 28] Where the party examined requests and
obtains a report on the results of the examination, the consequences are:
(1) He has to furnish the other party a copy of the report of any previous or
subsequent examination of the same physical and mental condition; and
(2) He waives any privilege he may have in that action or any other involving the
same controversy regarding the testimony of any other person who has so
examined him or may thereafter examine him

6. Consequences of refusal to comply with modes of discovery

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 Form of Refusal
Refusal to answer any question [Sec. 1
and 2]
Refusal to be Sworn [Sec. 2]
Refusal to answer designated questions
or refusal to produce documents or to
submit to physical or mental
examination [Sec. 3]
Refusal to admit under Rule 26 [Sec. 4]
Failure of party to attend or serve
answers to written interrogatories [Sec.
Page 83 of 360
Sanctions
The court may, upon proper application,
compel a refusing deponent to answer
[Sec. 1]
(1) If granted, and refusal to answer is
without substantial justification, court
may require the refusing party to pay
proponent the reasonable expenses
incurred in obtaining the order
(2) If denied, and filed without
substantial justification, court may
require proponent to pay refusing party
the reasonable expenses incurred in
obtaining the order
A refusal to answer after being directed
by court to do so may be constituted as
contempt of court
Cite the disobedient deponent in
contempt of court
The court may make the following
orders:
(1) Prohibit the disobedient party to
introduce evidence of physical or mental
condition
(2) Refuse to allow the disobedient
party to support or oppose claims or
defenses
(3) Strike out pleadings or parts thereof
(4) Stay further proceedings
(5) Dismiss the action or proceeding or
any part thereof
(6) Render a judgment by default
against disobedient party
(7) Direct the arrest of any party
disobeying any of such orders except an
order to submit to a physical or mental
examination
(8) Other orders as may be just
The court, upon proper application,
issue an order requiring the other party
to pay him reasonable expenses
incurred, including attorney’s fees
PROVIDED that party requesting proves
genuineness of such document or truth
UNLESS court finds:
(1) There were good reasons for denial
(2) Admissions sought were of no
importance
The court on motion and notice may:
(1) Strike out all or any part of any
pleading of disobedient party
(2) Dismiss the action or proceeding or
any part thereof
(3) Enter a judgment by default against
5] disobedient party
(4) Order payment of reasonable
expenses incurred by the other including
attorney’s fees
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of
the Philippines. [Sec. 6, Rule 29]

0. TRIAL
Trial – is the judicial process of investigating and determining the legal
controversies, starting with the production of evidence by the plaintiff and ending
with his closing arguments [Acosta v. People [1962]].

1. Adjournments and postponements

ADJOURNAMENTS AND POSTPONEMENTS
A court may adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may require

Limitations
The court has no power to adjourn a trial for: (1) A period longer than one month
for each adjournment; or (2) More than 3 months in all

EXCEPTION: The court may go beyond these limitations, if authorized in writing by

the Court Administrator.

Postponement
A motion for postponement should not be filed on the last hour especially when
there is no reason why it could not have been presented earlier. A party asking for
postponement has no absolute right to expect that his motion would be granted.
[Republic v. Sandiganbayan, G.R. No. 123997 (1999)]

2. Requisites of motion to postpone trial

Requisites of Motion to Postpone Trial
(1) For absence of evidence [Sec. 3, Rule 30]
– Motion accompanied by affidavit showing:
a) That the materiality or relevancy of the evidence; and
b) That diligent efforts had been exerted to procure the
evidence
(2) For illness of party or counsel [Sec. 4, Rule 30] – Motion accompanied by
affidavit or sworn certification showing:
(a) The presence of such party or counsel at the trial is indispensable; and
(b) That the character of his illness is such as to render his non-attendance
excusable

a. For absence of evidence

(1) For absence of evidence [Sec. 3, Rule 30]
– Motion accompanied by affidavit showing:
a) That the materiality or relevancy of the evidence; and
b) That diligent efforts had been exerted to procure the evidence

b. For illness of party or counsel

(2) For illness of party or counsel [Sec. 4, Rule 30] – Motion accompanied by
affidavit or sworn certification showing:

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(a) The presence of such party or counsel at the trial is indispensable; and
(b) That the character of his illness is such as to render his non-attendance
excusable

3. Agreed statement of facts

The parties may agree, in writing, upon the facts involved in the litigation and
submit the case for judgment in the facts agreed upon, without the introduction of
evidence

If the parties agree only on some of the facts in issue, trial shall be held as to the
disputed facts in such order as the court shall prescribe. [Sec. 6, Rule 30]

An agreed statement of facts is conclusive on the parties, as well as on the court.

Neither of the parties may withdraw from the agreement, nor may the court ignore
the same. [McGuire v. Manufactures Life, G.R. L3581 (1950)]

4. Order of trial; reversal of order

Trial shall be limited to the issues stated in the pre-trial order, except in the
following cases:
(1) The court orders separate trial under Sec. 2, Rule 31 in the furtherance of
convenience or to avoid prejudice; or
(2) When for special reasons the court directs otherwise

General Order of Trial

1. Plaintiff’s evidence in chief
2. Defendant’s evidence in chief and evidence in support of his
counterclaim, cross-claim and 3rd-party complaint
3. 3rd-party defendant shall adduce evidence of his defense,
counterclaim, cross-claim, and 4th party complaint
4. 4th-party defendant shall adduce evidence, and so forth
5. Parties against whom any counterclaim or cross-claim has been
pleaded shall adduce evidence in support of their defense, in the order
to be prescribed by court
6. Parties may then respectively adduce rebutting evidence only, unless
the court permits them to adduce evidence upon original case
7. Upon admission of evidence, case submitted for decision, unless court
directs parties to argue or to submit respective memoranda or any
further pleading [Sec. 5, Rule 30]

Reverse Order
The defendant presents evidence ahead of the plaintiff, when the defendant relies
in his Answer only upon an affirmative defense.

Where the answer of the defendant admitted the obligation stated in the
complaint, although special defenses were pleaded, the plaintiff has every right to
insist that it was for the defendant to come forward with evidence to support his
special defenses. [Yu v. Mapayo, G.R. No. L-29742 (1972)]

The reasoning behind this is that the plaintiff need not present evidence since
judicial admissions do not require proof [Sec. 2, Rule 129]

5. Consolidation or severance of hearing or trial

Consolidation – a procedural device, granted to the court as an aid in deciding

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how case in its docket are to be tried, so that the business of the court may be
dispatched expeditiously while providing justice to the parties. [Republic v. Heirs
of Oribello, G.R. No. 199501 (2013)]

When proper: When actions involving a common question of fact or law are
pending before the court [Sec. 1, Rule 31]

Court action: The court may:

1. Order a joint hearing or trial of any or all matters in issue in the
actions
2. Order all actions consolidated; or
3. Make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay

Purpose: To avoid multiplicity of suits, guard against oppression or abuse,

prevent delay, clear congested dockets, simplify the work of the trial court and
save unnecessary costs and expenses

Where a case has been partially tried before one judge, the consolidation of the
same with another related case pending before another judge who had no
opportunity to observe the demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v. Sandiganbayan, G.R. No. 102370-71
(1992)]

The rules do not distinguish between cases filed before the same branch or judge
and those that are pending in different branches or before different judges of the
same court, in order that consolidation may be proper, as long as the cases
involve the resolution of questions of law or facts in common with each other
[Active Woods Products Co. Inc. v. CA, G.R. No. 86602 (1990)]

Kinds of Consolidation [Republic v. Heirs of Oribello, G.R. No. 199501 (2013)]

1) Quasi-consolidation – where all, except one, of several actions are
stayed until one is tried, in which case, the judgment in the one trial is
conclusive as to others; not actually consolidation but referred to as
such
2) Actual consolidation – where several actions are combined into one,
lose their separate identity, and become one single action in which
judgment is rendered
3) Consolidation for Trial – where several actions are ordered to be
triedtogether, but each retains its separate character, and requires the
entry of separate judgment

When proper: A single action has a number of claims, counterclaims, cross-claims,

thirdparty complaints or issues which may be separately tried for convenience, or
to avoid prejudice.

When separate trial of claims is conducted by the court under this section, it may
render separate judgments on each claim [see Sec. 5, Rule 36]

This provision permitting separate trials presupposes that the claims involved are
within the jurisdiction of the court
• When one of the claims is not within its jurisdiction, the same should be
dismissed, so that it may be filed in the proper court

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6. Delegation of reception of evidence
GENERAL RULE: The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. [Sec. 9, Rule 30]

EXCEPTION: The court may delegate the reception of evidence to its clerk of court
who is a member of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.

The clerk of court has no power to rule on objections to any question or the
admission of exhibits. Objections shall be resolved by the court upon submission of
the clerk’s report and TSN within 10 days from termination of the hearing.

The rule requires that, where the reception of evidence is delegated to the clerk of
court, he must also be a member of the bar. Neither agreement by parties nor
their acquiescence can justify its violation. [Umali-Paco v. Quilala, AM RTJ-02-
1699 (2003)]

7. Trial by commissioners
Commissioner - A person to whom a case pending in court is referred, for him to
take testimony, hear the parties and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered

GENERAL RULE: Trial by commissioner depends largely upon the discretion of the
court

EXCEPTIONS: In the following instances, appointment of a commissioner is

necessary:
(1)Expropriation [Rule 67]
(2)Partition [Rule 69]
(3)Settlement of Estate of a Deceased Person in case of contested
claims; and
(4)Submission of Accounting by executors or administrators

Kinds of Trial by Commissioners

(1)Reference by consent of both parties.
(2)Reference ordered on motion.

Proceedings before the Commissioner [Sec. 5, Rule 32]

1. Upon receipt of the order of reference, the commissioner
shall set a time and place for the first meeting of parties or their
counsel
2. Notices shall be sent to parties or counsel
3. Hearing is to be held within 10 days after date of order of
reference
4. If a party fails to appear, the commissioner may: [Sec. 6]
a) Proceed ex parte; or
b) Adjourn the proceedings to a future date giving notice to
the absent party or his counsel

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a. Reference by consent or ordered on motion
Reference by Consent
The court may order any or all of the issues in a case to be referred to a
commissioner by written consent of both parties. [Sec. 1, Rule 32]

Commissioners are to be:

1) Agreed upon by the parties; or
2) Appointed by the court

Reference Ordered on Motion

The court may direct reference to a commissioner, upon application of a party or
upon its own motion, in the ff. cases:
1) When trial of an issue of fact requires examination of long
account;
2) When taking of an account is necessary;
3) When question of fact, other than upon pleadings, arises
upon motion or otherwise, in any stage, or for carrying a
judgment into effect [Sec. 2, Rule 32]

Order of Reference: [Sec. 3, Rule 32] When a reference is made, the clerk shall
furnish the commissioner with a copy of the order of reference, which may contain
the following:
1) Specifications or limitations of the powers of the
commissioner;
2) A direction to report only upon particular issues, to do or
perform particular acts, or to receive and report evidence
only
3) The date for beginning and closing the hearings, and that for
the filing of his report

b. Powers of the commissioner

Powers of Commissioner
1) Exercise power to regulate the proceeding before him
2) Do all acts and take all measures necessary or proper for
the efficient performance of his duties
3) Issue subpoena and subpoenas duces tecum
4) Swear witnesses
5) Rule upon the admissibility of evidence, unless otherwise
provided in the order of reference

NOTE: Refusal of a witness to obey such subpoena or to give evidence before him
is deemed contempt of the court which appointed the commissioner. [Sec. 7, Rule
32]

c. Commissioner's report; notice to parties and hearing on the report

Report of the Commissioner [Sec. 9, Rule 32]
The report is filed with the court upon completion of the trial, hearing or
proceeding before the commissioner.

Contents:
(1) Report in writing upon the matters submitted to him by the order of reference

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(2) When his powers are not specified or limited, he shall set forth his findings of
fact and conclusions of law
(3) He shall attach all exhibits, affidavits, depositions, papers, and transcripts, if
any, of testimonial evidence presented before him

Notice and Hearing on the Report [Secs. 10-11, Rule 32]

Upon filing of the report of the commissioner:
(1) Parties shall be notified by the clerk
(2) Parties shall be allowed 10 days within which to object to the findings of the
report

NOTE: Objections based upon grounds which were available to the parties during
the proceedings before the commissioner shall not be considered by the court,
unless they were made before the commissioner

Upon expiration of the 10-day period to file objections, the report shall be set for
hearing. After such hearing, the court shall issue an order:
(1) Adopting, modifying, or rejecting the report, in whole or in part
(2) Recommitting it with instructions; or (3) Requiring the parties to present
further evidence before the commissioner or the court

P. DEMURRER TO EVIDENCE
A species of motion to dismiss that may be invoked based on insufficiency of
evidence [i.e. upon the facts and the law the plaintiff has shown no right to relief].
[Sec. 1, Rule 33]

It is invoked after the plaintiff has presented all the evidence available to him
Judgment on Demurrer to Evidence – judgment rendered by the court dismissing a
case upon motion of defendant, made after plaintiff has rested his case, on the
ground that upon the facts presented and the law on the matter, plaintiff has not
shown any right to relief.

1. Ground

2. Effect of denial
If the demurrer is denied, the defendant shall have the right to present his
evidence.

The court should not proceed to grant the relief demanded by the plaintiff but
should set the date for reception of the defendant’s evidence. [Northwest Airlines
v. CA, G.R. No. 120334 (1998)]

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

3. Effect of grant
If the demurrer is granted, the case shall be dismissed.

As a final order, the remedy of the plaintiff is to appeal. If the appeal is granted,
the defendant-movant loses the right to present evidence.

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The appellate court should not remand the case for further proceedings but should
render judgment on the basis of the evidence submitted by the plaintiff.
[Consolidated Bank and Trust Corp. v. Del Monte Motor Works, Inc., G.R. No.
143338 (2005)]

4. Waiver of right to present evidence

If the order granting the demurrer is reversed on appeal, the defendant loses his
right to present evidence. [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No. 148246
(2007)]

5. Action on demurrer to evidence

 Presented after the plaintiff has rested his case
 Based on the insufficiency of evidence
 If denied, the defendant may present his evidence
 If granted, the complaint is dismissed; plaintiff’s remedy is to appeal

Page 6 of28

fl
6. Distinguish: demurrer to evidence in a civil case and demurrer to evidence in a
criminal case
Civil Cases Criminal Cases
Defendant files a demurrer. Court may motu proprio dismiss the
action for insufficiency of prosecution’s
Court cannot motu propio dismiss the evidence, after it has rested its case.
case for insufficiency of plaintiff’s [Sec. 23, Rule 119]
evidence
Defendant need not ask for leave of May be filed with or without leave of
court court
If court denies the demurrer
If court denies the demurrer, defendant (1) Filed with leave, accused may
will present his evidence present evidence.
(2) filed without leave, accused can no
longer present evidence.
If plaintiff’s evidence insufficient, court If prosecution’s evidence insufficient,
will grant demurrer by dismissing the court will grant demurrer by rendering
complaint judgment of acquittal.
The judgment of dismissal is Judgment of acquittal is not appealable;
appealable; If reversed, court will Double jeopardy sets in.
decide based on plaintiff’s evidence.

Q. JUDGMENTS AND FINAL ORDERS

JUDGMENTS IN GENERAL
The final ruling by a court of competent jurisdiction regarding the rights and
obligations of the parties, or other matters submitted to it in an action or
proceeding [Macahilig v. Heirs of Magalit (2000)]

REQUISITES OF A VALID JUDGMENT [Riano]

1) Court or tribunal must be clothed with authority to hear and determine
the matter before it. [Acosta v. COMELEC (1998)]
2) Court must have jurisdiction over the parties and the subject matter.

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 3) Parties must have been given an opportunity to adduce evidence in
their behalf. [Acosta v. COMELEC (1998)]
4) Evidence must have been considered by the tribunal in deciding the
case. [Acosta v. COMELEC (1998)]
5) Judgment must be in writing, personally and directly prepared by the
judge. [Corpus v. Sandiganbayan (2004)]
6) Judgment must state clearly the facts and the law upon which the
decision is based, signed by the judge and filed with the clerk of court.
[Sec. 1, Rule 36; Sec. 14, Art. VIII, 1987 Constitution]
 REQUISITES OF A VALID JUDGMENT
 KINDS OF JUDGMENT
(1) Judgment by Compromise
(2) Judgment by Confession
a) Judgment by cognovit actionem
b) Judgment by confession relicta verification
(3) Judgment upon the merits
(4) Clarificatory Judgment
(5) Judgment Nunc Pro Tunc
(6) Judgment sin perjuicio
(7) Conditional Judgment
(8) Several Judgment
(9) Separate Judgment
(10) Memorandum Decision
(11) Declaratory Judgment
(12) Foreign Judgment.
 JUDGMENT WITHOUT TRIAL

1. Judgment after pre-trial

1) Judgment by Compromise – one conferred on the basis of a
compromise agreement entered into between the parties. It is
immediately executory in the absence of a motion to set aside on the
ground of fraud, accident, mistake, or excusable negligence, as it
constitutes a waiver of the right to appeal.
2) Judgment by Confession – one rendered by the court when a party
expressly agrees to the other party’s claim or acknowledges the
validity of the claim against him.
a) Judgment by cognovit actionem – one rendered upon
confession made pursuant to a clause in a promissory note or
contract that upon default, the holder may confess judgment as
the maker’s attorney-in-fact. This is considered void in our
jurisdiction for denying a party his right to a day in court [PNB
vs. Manila Oil (1992)]
b) Judgment by confession relicta verification – after
pleading and before trial, the defendant:
i. confessed the plaintiff’s cause of action; and
ii. withdrew his plea or other allegations,
whereupon judgment was entered against him
without proceeding to trial.
3) Judgment upon the merits – one rendered after consideration of the
evidence submitted by the parties during the trial of the case. A
judgment is “on the merits” when it amounts to a legal declaration of
the respective rights and duties of the parties, based upon the
disclosed facts.
4) Clarificatory Judgment – one rendered to clarify an ambiguous
judgment or one difficult to comply with.
5) Judgment Nunc Pro Tunc – literally, “now for then”. It is a judgment

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 intended to enter into the record the acts which had already been
done, but which do not appear in the records. [Lichauco v. Tan Pho
(1923)] It can only be issued when the thing ordered has previously
been made, but by inadvertence has not been entered. [Briones-
Vasquez vs. CA (2005)]
6) Judgment sin perjuicio – refers to a judgment with a dispositive
portion only. It is not allowed and cannot have any effect.
7) Conditional Judgment – one whose effectivity depends upon the
occurrence or non-occurrence of an event; generally void because of
the absence of a disposition [Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
8) Several Judgment – one rendered by a court against one or more
defendants and not against all of them, leaving the action to proceed
against the others. [Sec. 4, Rule 36] Proper when the liability of each
party is clearly separate and distinct from his coparties such that:
a) the claims against each of them could have been the
subject of separate suits, and
b) the judgment for or against one of them will not
necessarily affect the other. Where a common cause of action
exists, a several judgment is not proper.
9) Separate Judgment – one rendered disposing of a claim among
several others presented in a case, after a determination of the issues
material to a particular claim and all counterclaims arising out of the
transaction or occurrence that is the subject matter of said claim.
[Sec. 5, Rule 36] Proper when more than one claim for relief is
presented in an action for the determination as to the issues material
to the claim has been made.
10) Memorandum Decision – a decision of the appellate court
which adopts the findings and conclusions of the trial court.
11) Declaratory Judgment – one rendered in a special civil action
for declaratory relief.
12) Foreign Judgment.

2. Judgment without trial

Trial is not necessary in the following instances:
1. Judgment on the Pleadings [Rule 34]
2. Summary Judgment [Rule 35]
3. Upon compromise or amicable settlement, either during pre-trial or
during trial [Rule 18; Art. 2028, Civil Code]
4. Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, last
par., Rule 7]
5. Under the Rules on Summary Procedure
6. Agreed statement of facts [Sec. 6, Rule 30]

Note: Also enumerated in Part III.P. (Trial)

3. Judgment on the pleadings

Judgment on the Pleadings is a judgment rendered by the court if the answer fails
to tender an issue, or otherwise admits the material allegations of the adverse
party’s pleading. It is rendered without a trial, or even without a pre-trial

A motion for a Judgment on the Pleadings, where the answer admits the material
averments of the complaint, is one that may be considered ex parte because upon

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the particular facts thus presented and laid down before the court, the plaintiff is
entitled to a judgment [Dino v. Valencia, G.R. No. L-43886 (1989)]

A Judgment on the Pleadings cannot be rendered by the court motu propio. It can
only be done where there is a prior motion to that effect by the appropriate party.
[Sec. 1, Rule 34; Riano; but see Luzon Development Bank v. Conquilla, G.R. No.
163338 (2005)]

GROUNDS FOR JUDGMENT ON THE PLEADINGS [Sec. 1, Rule 34]

1. The answer fails to tender an issue because of:
a) General denial of the material allegations of the complaint;
b) Insufficient denial of the material allegations of the
complaint; or
2. The answer otherwise admits material allegations of the adverse
party’s pleading

Judgment on the Pleadings is not proper in the ff. cases:

1. Declaration of Nullity of Marriage
2. Annulment of marriage; and
3. Legal Separation
4. Unliquidated damages; claims for such damages must be alleged and
proved
5. Admission refers only to allegations of fact and not conclusions of law
6. Insufficiency of facts; proper remedy is amendment

NOTE: The concept will not apply when no answer is filed. It will come into
operation when an answer is served and filed but the same fails to tender an
issue, or admits the material allegations of the adverse party’s pleading. [Riano]

When no answer is filed, the remedy is to move that the defendant be declared in
default. [Sec. 3, Rule 9]

4. Summary judgments
A judgment which the court may render before trial, but after both parties
have pleaded, upon application by one party supported by affidavits, depositions,
or other documents, with notice upon the adverse party who may file an
opposition supported also by such documents, should the court find, after
summarily hearing both parties with their respective proofs, that there exists no
genuine issue between them. [Herrera]

The trial court cannot motu propio decide that summary judgment on an action is
in order. The defending party or claimant, as the case may be, must invoke the
rule by filing a motion. The adverse party must then be notified of the motion and
furnished with supporting documents before hearing is conducted. [Pineda v. Heirs
of Eliseo Guevara, G.R. No. 143188 (2007)]

Proper when it appears to the court that:

1. There exists no genuine issue as to any material fact, except as to the
amount of damages; and
2. The party presenting the motion must be entitled to judgment as a
matter of law

Genuine Issue - an issue of fact which calls for the presentation of evidence as

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distinguished from a sham, fictitious, contrived, or false claim. [Philippine Bank of
Communications v. Go, G.R. No. 175514 (2011)]

Test: Whether or not the pleadings, affidavits and exhibits in support of the motion
are sufficient to overcome the opposing papers and to justify the finding that, as a
matter of law, that there is no defense to the action, or the claim is clearly
meritorious. [Estrada v. Consolacion, G.R. No. L-40948 (1976)]

When Filed
1) If sought by the claimant – only after the answer is served; [Sec. 1,
Rule 35]
2) If sought by the defendant – at any time [Sec. 2, Rule 35]

NOTE: Filing of a motion for summary judgment does not interrupt the running of
the period for filing an answer. Hence, the movant must also file a Motion for
Extension of Time to File Answer.

Procedure [Sec. 3, Rule 35]

1. Movant files a motion for summary judgment with supporting
affidavits, depositions or admission
2. Service to the adverse party at least 10 days the hearing
3. Adverse party may serve opposing affidavits, depositions or
admissions at least 3 days before the hearing
4. Hearing – Court shall determine if a genuine issue as to any material
fact exists, and if the movant is entitled to a summary judgment as a
matter of law
5. Court renders summary judgment

NOTE: Damages must still be proven even if not denied.

Bases for Summary Judgment

(1) Affidavits made on personal knowledge;
(2) Depositions of the adverse or a 3rd party [Rule 23]
(3) Answers to interrogatories [Rule 25]
(4) Admissions of the adverse party [Rule 26

a. For the claimant

(1) If sought by the claimant – only after the answer is served; [Sec. 1, Rule 35]

b. For the defendant

(2) If sought by the defendant – at any time [Sec. 2, Rule 35]

c. When the case not fully adjudicated

Partial Summary Judgment
– applies when for some reason there can be no full summary judgment. Trial
should deal only with the facts not yet specified or established.
Duty of the Court [Sec. 4, Rule 35]
1) Ascertain which material facts exist without substantial controversy,
and which are actually and in good faith controverted, by:
(a) Examining the pleadings and evidence before it; and
(b) Interrogating counsel
2) Make an order, which:
(a)Specifies the facts without substantial controversy and deemed established,

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 including extent of damages
(b)Directs further proceedings as are just
3) Conduct trial on the controverted facts

Effect: A partial summary judgment is not a final judgment, but merely a pre-trial
adjudication that said issues in the case shall be deemed established for the trial
of the case. [Guevarra v. CA, G.R. No. L-49017 (1983)]

d. Affidavits and attachments

Form [Sec. 5, Rule 35]
(1) Made on personal knowledge
(2) Setting forth such facts as would be admissible in evidence
(3) Showing affirmatively that the affiant is competent to testify to the matters
stated therein.
(4) Certified true copies of all papers or parts thereof referenced in the affidavit
shall be attached or served with the affidavit.

Affidavits in bad faith – those presented under this Rule which appear to the
court at any time as presented in bad faith or solely for the purpose of delay

Effect: The court:

(1) shall order the offending party or counsel to pay the other party the amount of
reasonable expenses which the filing of the affidavits caused him to incur; and
(2) may, after hearing, adjudge the offending party or counsel guilty of contempt
[Sec. 6, Rule 35]

5. Distinguish: judgment on the pleadings and summary judgments

Judgment On The Pleadings
 Based solely on the pleadings (complaint and answer)
 Generally available only to the plaintiff, unless the defendant presents a
counterclaim
 The answer fails to tender an issue or there is an admission of material
allegations
 3-day notice required
 On the merits
 Available in any action except annulment of marriage, legal separation, or
declaration of nullity cases
 There is already an answer filed
Summary Judgment
 Based on the pleadings, depositions, admissions, and affidavits
 Available to both plaintiff and defendant
 There is no genuine issue between the parties i.e. There may be issues but
these are irrelevant
 10-day notice required
 May be interlocutory or on the merits
 Available only in actions to recover a debt, or for a liquidated sum of money
or for declaratory relief
 If sought by plaintiff, it must be filed at any time after an answer is served.
If sought by defendant, may be filed at any time even before there is answer

6. Contents of a judgment

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7. Rendition of judgments and final orders
Rendition of Judgment
Pronouncement of the judgment in open court does not constitute rendition of
judgment. It is the filing of the signed decision with the clerk of court that
constitutes rendition. Even if the judgment has already been put in writing and
signed, it is still subject to amendment if it has not yet been filed with the clerk of
court. [Ago v. CA, G.R. No. L-17898 (1962)]
This includes an amended decision because an amended decision is a distinct and
separate judgment and must follow the established procedural rule. [Herrera]

Promulgation refers to the process by which a decision is published, officially

announced, made known to the public, or delivered to the clerk of court for filing,
coupled with notice to the parties or their counsel

Period for Rendition [Sec. 15, Art. VIII, 1987 Constitution]

1) All cases filed must be decided or resolved by the Supreme Court
within 24 months from the date of their submission for decision.
2) Unless reduced by the SC, within 12 months for lower collegiate courts
and within 3 months for all other lower courts.

A case is deemed submitted for resolution upon the filing of the last pleading, brief
or memorandum required by the Rules of Court or by the court.

An extension of the period may be set by the SC upon request by the judge
concerned on account of heavy caseload or by other reasonable excuse. Without
an extension, a delay in the disposition of cases is tantamount to gross inefficiency
on the part of the judge. [Arap v Mustafa, SCC-01-7 (2002)]

8. Entry of judgment and final order

The entry of judgment refers to the physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the book of entries of judgment
after the same has become final and executory. [Riano]

When entered: If no appeal, or motion for new trial or reconsideration is filed

within the time provided in the Rules, the judgment or final order shall forthwith
be entered by the clerk in the book of entries of judgments [Sec. 2, Rule 36]

Contents of Record in the Book of Entries:

1) Dispositive part of the judgment or final order
2) Signature of the clerk; and
3) Certification that such judgment or final order has become final and
executory.

NOTE: The date of finality is deemed the date of entry.

A judgment becomes final and executory when the period for appeal has elapsed
without a party having perfected an appeal, or if there has been an appeal, it has
been resolved by the highest tribunal.

This is the date of entry of judgment even if the physical act of entering the
judgment in the book of entries is done later. [Riano]

R. POST-JUDGMENT REMEDIES

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Remedies before Finality of Judgment
(1)Motion for reconsideration [Rule 37]
(2)Motion for new trial [Rule 37]
(3)Appeal [Rules 40-45]

1. Motion for new trial or reconsideration

NOTE: The motion for reconsideration under Rule 37 is directed against a
judgment or final order. It does not refer to one for interlocutory orders, which
often precedes a petition for certiorari under Rule 65.

These motions are prohibited in cases that fall under the Rule on Summary
Procedure and those falling under the Rule of Procedure for Small Claims.

a. Grounds
GROUNDS FOR MOTION FOR NEW TRIAL [Sec. 1, Rule 37]
1) Fraud, accident, mistake, excusable negligence (FAME) – subject to
the following conditions:
a. Which ordinary prudence could not have guarded against; and
b. By reason of which such aggrieved party has probably been impaired in his
rights. There must be a valid cause of action or defense. NOTE: Fraud must
be extrinsic fraud which is any fraudulent scheme executed outside of the
trial by the prevailing party against the losing party, who because of such
fraud is prevented from presenting his side of the case.
2) Newly discovered evidence – subject to the following requisites:
(a) It must have been discovered after the trial
(b) It could not have been discovered and produced at the trial even with the
exercise of reasonable diligence;
(c) It must be material and not merely collateral, cumulative, or
corroborative; and
(d) The evidence is of such weight that if admitted, would probably alter the
result of the action

GROUNDS FOR MOTION FOR RECONSIDERATION [Sec. 1, Rule 37]

(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the decision or final order
(3) The decision or final order is contrary to law

b. When to file
WHEN TO FILE [Riano]
An aggrieved party may file a motion for new trial or reconsideration within the
period for taking an appeal.

The period depends on whether the appeal is by mere notice of appeal or by

record on appeal. A record on appeal shall be required only in special proceedings
and in other cases of multiple or separate appeals.

Where an appeal is one by notice of appeal, the period for appeal is 15 days.
Where a record on appeal is required, the period is 30 days.

The periods commence upon receipt of notice of the decision or final order
appealed from by the counsel of record, which is considered notice to the parties.
Service upon the parties themselves is prohibited and is not considered as official
receipt of judgment.

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c. Denial of the motion; effect
Effect: The judgment or final order stands as is.
Fresh 15-Day Rule: The aggrieved party has a “fresh period” of 15 days within
which to file his appeal.

If the motion is denied, the movant has a “fresh period” of 15 days from receipt or
notice of the order denying the motion for new trial or motion for reconsideration
within which to file an appeal. [Neypes v. CA, G.R. No. 141524 (2005)]

NOTE:
(1) This fresh period becomes significant only when a party opts to file a motion
for new trial or reconsideration
(2) This rule does not refer to the period within which to appeal from the order
denying the motion for reconsideration but to the period within which to appeal
from the judgment itself.

d. Grant of the motion; effect

GRANT OF MOTION; EFFECT
Grant of motion for reconsideration The court may amend the judgment or final
order accordingly. The amended judgment is in the nature of a new judgment,
which supersedes the original judgment.

Grant of motion for new trial The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded evidence upon the former trial
shall be used at the new trial without retaking them, if they are material and
competent.

Partial grant The court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the
rest. [Sec. 7, Rule 37]

e. Remedy when motion is denied, fresh 15-day period rule

Remedies if Motion is Denied
(1) To appeal from the judgment or final order itself
(2) The order denying the motion may itself be assailed by a petition for certiorari
under Rule 65

Note: AM No. 07-7-12, effective December 27, 2007, amended Sec. 1, Rule 41 by
deleting “An order denying a motion for new trial or reconsideration” from the
non-appealable orders. Nevertheless, Sec. 9, Rule 37 says that an order denying a
motion for new trial or reconsideration is not appealable. However,
Motion for New Trial Motion for Reconsideration
Grounds:
Grounds: (1) Damages awarded are excessive
(1) Fraud, accident, mistake, or (2) That evidence is insufficient to
excusable negligence justify the decision or final order
(2) Newly discovered evidence (3) That decision or final order is
contrary to law
Second motion from the same party is
May be allowed so long as based on prohibited.
grounds not existing or available at the
time the first motion was made Prohibition applies only to motions for

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 reconsideration of final orders or
judgments; allowed for interlocutory
orders
The court may amend the judgment or
If granted, original judgment or final final order, it finds:
order is vacated, and the case stands (1) that excessive damages have been
for trial de novo. awarded; or
(2) that the judgment or final order is
contrary to the evidence or law
Available even on appeal but only on Available against the judgments or final
the ground of newly discovered orders or both the trial and appellate
evidence courts
Both are prohibited motions under Summary Procedure

2. Appeals in general
Nature
(1) Not a natural right nor a part of due process
(2) It is merely a statutory right, and may be exercised only in the manner and in
accordance with provisions of the law. It must comply with the requirements;
failing to do so, the right to appeal is lost
(3) Once granted, appeals become part of due process and should be liberally
applied in favor of the right to appeal

a. Judgments and final orders subject to appeal

1) Appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared
by the Rules to be appealable
2) No appeal may be taken from:
(a)An order denying a petition for relief or any similar motion seeking relief
from judgment;
(b)An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d)An order denying a motion to set aside a judgment by consent, confession
or compromise on the ground of fraud, mistake or duress, or any other
ground vitiating consent;
(e)An order of execution;
(f) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, crossclaims and third-party complaints,
while the main case is pending, unless the court allows an appeal therefrom;
and
(g)An order dismissing an action without prejudice (not a judgment on the
merits).

Note: A.M. No. 07-7-12-SC removed from the original list “an order denying a
motion for new trial or reconsideration.” Nevertheless, Rule 37, Sec. 9 still states
that no appeal can be made from an order denying MR or MNT.

Only final judgments or orders can be appealed as distinguished from interlocutory

judgments or orders which are not appealable.

b. Matters not appealable

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c. Remedy against judgments and orders which are not appealable
Remedy against Matters not Appealable In those instances where the judgment or
final order is not appealable, the aggrieved party may file the appropriate special
civil action under Rule 65. [Sec. 1, Rule 41]

d. Modes of appeal
1) Ordinary appeal – Rule 40 and 41
(a)Notice of appeal
(b)Record on appeal
2) Petition for review – Rule 42
3) Appeal from the CTA and other QJAs to the CA – Rule 43
4) Petition for review on certiorari – Rule 45

i. Ordinary appeal
Ordinary appeal – Rule 40 and 41 (a) Notice of appeal (b) Record on appeal

RULE 40: APPEAL FROM MTC TO RTC

- Right to appeal is a mere statutory privilege
- Appeal from judgment of MTC be taken to the RTC exercising jurisdiction over
the area to which MTC pertains
- 15 days after notice to the appellant of the judgment
- Where a RECORD ON APPEAL is required, the appellant shall file a notice of
appeal and record on appeal within 30 DAYS after notice of the judgment or final
order.
- Mistake in understanding of the law is not a valid excuse
- Period of appeal is computed from the date of RECEIPT of the order denying the
MR/ New Trial (NEYPES RULE) (FRESH 15 DAY PERIOD RULE)
- Neypes rule applies to Rules 40, 41, 42, 43 and 45, 65.
- Neypes rule is applicable in criminal cases.
- But it is not applicable to Administrative cases (San Lorenzeo Ruiz case) Fresh
period rule applies only to judicial appeals.
- Appeal is taken by filing of notice of appeal with the court that rendered
judgment or final order
- Record of appeal is required ONLY in Special proceedings and other classes of
multiple or separate appeals.
- It is Deemed perfected after the lapse of the following periods:
1. By notice of appeal - upon filing of notice
of appeal
2. By Record on Appeal - approval of record
on appeal filed in due time.
-When does the court lose jurisdiction BY NOTICE OF APPEAL: upon perfection of
appeal except Residual powers.

Doctrine of Residual Powers - prior transmittal of the original record to the

appellate court, the trial court RETAINS jurisdiction on:
1. Issue orders for the preservation of the
rights of the parties which do not involve
any matter litigated by appeal
2. Approve compromise prior to the
transmittal of records
3. Permit appeals by an indigent
4. Order of execution PENDING APPEAL
meaning that the motion for execution

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 was filed before the expiration of period
of appeal
5. Withdrawal of appeals
- IF APPEAL HAS ALREADY BEEN PERFECTED AND COURT HAS ALREADY LOST ITS
JURISDICTION BUT BEFORE TRANSMITTAL OF THE RECORD.
- It may be done before the CA gives due course to the Petition for review
- In petition for review, the cutoff period when the court may no longer exercise
residual jurisdiction is BEFORE CA GIVES DUE COURSE TO THE PETITION.
When does the court lose jurisdiction BY RECORD ON APPEAL: upon the approval
of the record on appeal and expiration of the time to appeal of the other parties
- Shall pay the appellate court docket fee within the period for taking an appeal
- Failure to file memorandum of appeal may be a ground for dismissal
- Multiple appeals are allowed in:
1. Special proceeding
2. Recovery of property with accounting
3. Partition
4. Eminent domain
5. Foreclosure of mortgage
6. Order of Expropriation
- Multiple appeal cannot be allowed in legal separation
- GR: No issue may be raised on appeal unless it has been brought before the
lower tribunal for its consideration BUT IT IS NOT ABSOLUTE
- for interest of justice
GR: Judgment on appeal is binding only on the parties in the appealed case and
does not affect those who did not appealed. EXC: If community of interests
- Period to appeal in expropriation case: 30 days from notice of judgment

RULE 41: APPEAL FROM THE RTC

- Available only to final judgment or orders that completely disposes the case.
- If appeal is not available:
RULE 65 SPECIAL CIVIL ACTION FOR CERTIORARI JUDGMENT OR ORDERS THAT
MAY NOT BE APPEALED FROM:
1. Order denying relief for judgment or any
similar motion seeking relief for
judgment
2. Interlocutory order
3. Disallowing or dismissing appeal
4. Order denying motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress or vitiated consent
5. Order of execution
6. Judgment or final order against one or
more of several parties or in separate
claims, counterclaims, crossclaims, and
third party claims, WHILE THE MAIN
ACTION IS PENDING
7. Order dismissing an action without
prejudice
- WRIT OF ERROR
- Rule 41 Sec 2(a)
- Question of fact or questions of law
- Appeal by Certiorari
- Rule 41 Sec2(c) in relation to Rule 45

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- Question of law only
- If MR is denied
- remedy is APPEAL.
- Order of execution is not appealable as a general rule. EXC:
1. When the terms of the judgment are varied
2. Terms of the judgment are not clear and there is room for interpretation
- ORDER of execution is not appealable but DENIAL of motion for execution
APPEAL IS PROPER
- Appeal to the CA in cases decided by the RTC in appellate jurisdiction shall be by
PETITION FOR REVIEW in accordance with Rule 42.
- In all cases where only questions of law are raised or involved, the appeal shall
be to the SC by PETITION FOR REVIEW with Rule 45
- In appeal, no trial de novo anymore.
- There can be no new parties
- If 2nd MR is filed, it does not toll the period RULE ON DID NOT APPEAL
1. If liability is dependent on appellant’s liability
- INURES TO THE BENEFIT
2. A 3rd party who did not appeal but is held liable on appeal cannot claim
affirmative relief against a third party defendant 3. Appellate courts cannot
reverse or modify decision as to those who did not appeal EXCEPTIONS:
1. Trial court failed to award interests on
damages
2. Exemplary damages and attorney’s fees
were erroneously deleted
3. Clarifies award for damages
-Appeal from RTC to SC is possible only by petition for review on certiorari
- If pure questions of law to CA
- Not proper remedy
- RTC
- CA in appellate jurisdiction
- IF DONE BY NOTICE OF APPEAL INSTEAD OF PETITION FOR REVIEW
- Dismiss. Erroneous appeal
- Appeal that is erroneous is not allowed.
- Only appellate court can disallowed appeal on the ground that it is frivolous
- If appealed from the judgment of the trial court during the pendency of the MR,
it is considered a waiver or abandonment of MR
- Where both parties are appellants, the may file a joint record on appeal within 30
days from notice of judgment or final order
- There is no need to approve the notice of appeal. It is deemed perfected upon
the expiration of the last day to appeal WHEN COURT LOSE JURISDICTION
1. Notice of appeal - Upon the perfection of
the appeal filed and expiration of the
time to appeal by the other parties
2. Record on appeal - court loses
jurisdiction over the subject matter upon
the approval of the records on appeal
filed in due time
-Court may still dismiss an appeal after its perfection PROVIDED that the complete
record or record on appeal has not yet been transmitted to the appellate court

ii. Petition for review

Petition for review – Rule 42

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RULE 42: PETITION FOR REVIEW FROM RTC TO CA
- Petition for review with the CA for appeal from decisions of RTC in exercise of
appellate jurisdiction
- He should pay docket fees and deposit Php 500 for costs and furnish adverse
party a copy
- A period for petition for review be extended upon proper motion and payment
before expiration of the period
- CA may grant a 15 day period and no further extensions may be granted except
for the most compelling reasons
- It is not only a judgment that may be questioned in petition for review but also
order denying motion for new trial
- CA may require the respondent to file a comment to the petition within 10 days
from notice
- In an unlawful detainer, if it is appealed in the RTC and affirmed into to, it is
immediately executory. Petition for review does not stay the judgment
- If a court commits error of judgment remedy is appea

iii. Petition for review on certiorari

Petition for review on certiorari – Rule 45

RULE 45: APPEAL BY CERTIORARI TO THE SC

- Within 15 days from notice of judgment or final order or denial of MR
- Petition shall not be acted upon without proof of service of a copy to the CA
- Period to file a petition for certiorari be extended on motion duly served with full
payment of the docket and other lawful fees. SC may for justifiable reasons grant
an extension of 30 days
- A petition for review on certiorari may be treated as one for certiorari under Rule
65 (Triste vs Leyte college)
- SC may consider a petition under Rule 65 as one filed under Rule 45 if it is filed
within the reglementary period for filing a petition for review
- Only QUESTIONS OF LAW may be raised in a petition for certiorari Question of
law
- doubt or difference arises as to what the law is on certain state of facts Question
of Fact - doubt or difference arises as to the truth or falsehood of the alleged facts
- SC has the option to take into account questions of fact raised taking into
account the attendant circumstances and decide the same
- SC may not review facts and evidence in a petition fore review on certiorari
because SC is not a trier of facts
- Proof of service that the LOWER COURT and adverse party has been served of
the copies is MANDATORY
- Service to lower court is equivalent to notice of appeal - Within 5 days from the
service of the petition or upon SC’s motion, petition may be dismissed by the
ground of:
1. Without merit
2. Prosecuted manifestly for delay
3. Too unsubstantial
- If given due course, SC may require the filing of pleadings or other documents
necessary
- Rule 45 is applicable both the civil and criminal cases except if the penalty
imposed is death, reclusion perpetrua or life imprisonment
- Certiorari is not available where the aggrieved party’s remedy of appeal is plain
and speedy in the ordinary course Certiorari cannot co exist with appeal or any
other adequate remedy. These remedies are mutually exclusive

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Material Data rule - Material dates are required to be stated in the petition for
certiorari under rule 65
APPEAL

e. Issues to be raised on appeal

Limited to cognizable judgments/issues (errors stated in the assignment of
errors).
The appellate court has no jurisdiction to review a judgment which is immediately
final and executory by express provision of law. [Republic v. Bermudez-Lorino,
G.R. No. 160258 (2005)]

Rationale: Appeal is merely a privilege conferred by law upon the litigants.

A party cannot change the theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the appellate court. [Medina v. CA
(1992)]

However, issues which are inferred from or necessarily connected with the issue
properly raised and pleaded may be resolved by the appellate court. [Espina v. CA,
G.R. No. 102128 (1992)

f. Period of appeal
The fresh period rule shall apply to:
(1) Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial
Courts;
(2) Rule 41 governing appeals from the Regional Trial Courts to the Court of
Appeals
(3) Rule 42 on petitions for review from the Regional Trial Courts to the Court of
Appeals;
(4) Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and
(5) Rule 45 governing appeals by certiorari to the Supreme Court.

The new rule aims to regiment or make the appeal period uniform, to be counted
from receipt of the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final order or resolution. [Neypes v.
CA, G.R. No. 141524 (2005)]

Being procedural in nature, Neypes is deemed to be applicable to actions pending

and undetermined at the time of its effectivity and is thus retroactive in that sense
and to that extent. [First Aqua Sugar v. BPI, G.R. No. 154034 (2007)]

g. Perfection of appeal
Perfection of an appeal in the manner and within the period laid down by law is
mandatory and jurisdictional. [Balgami v. CA, G.R. No. 131287 (2004)]

Effect of Failure to Perfect Appeal

(1) Defeats a party’s right to appeal.
(2) Precludes appellate court from acquiring jurisdiction.

h. Appeal from judgments or final orders of the Metropolitan Trial Courts/Municipal

Trial Courts/Municipal Trial Courts in Cities/Municipal Circuit Trial Courts
WHERE TAKEN It is taken to the RTC exercising jurisdiction over the area to which

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the MTC pertains. [Sec. 1, Rule 40]

WHEN TAKEN [Sec. 2, Rule 40]

1) If by notice of appeal, within 15 days after notice to appellant of
judgment or final order appealed from
2) If record of appeal is required, within 30 days from notice of judgment
or final order
3) Period of appeal shall be interrupted by a timely motion for new trial or
reconsideration

Extension of Period to Appeal Period to appeal may be extended but such

extension is addressed to the sound discretion of the court [Socco v. Garcia, G.R.
No. L-18231 (1962)]

HOW TAKEN [Sec. 3, Rule 40]

By Notice of Appeal
1) File a notice of appeal with the trial court that rendered the judgment
or final order appealed from
2) The notice of appeal must indicate the parties, the judgment or final
order or part thereof appealed from; the material date showing
timeliness of appeal
3) A copy served on the adverse party; and
4) Payment in full of docket fees and other lawful fees

By Record on Appeal
1) Record on appeal is required for the following cases:
(a) Special proceedings
(b) In such other cases where multiple appeals are allowed
2) Form and contents of the record on appeal: [Sec. 6, Rule 41]
(a) Within 15 days from perfection of appeal, clerk of court or the branch
clerk of the lower court shall transmit to the RTC:
I. Original record or record on appeal
II. Together with transcripts and exhibits
(b) Clerk shall make a certification that the documents are complete
(c) Clerk shall also furnish the parties a copy of his letter of transmittal of the
records to the appellate court
3) Copy is served on the adverse party
4) Payment in full of docket fees and other lawful fees

PERFECTION OF APPEAL Since appeals from inferior courts may now be either
by notice of appeal or record on appeal, the rules on the perfection and the effect
thereof are the same. [See Sec. 9, Rule 41]
APPEAL FROM ORDER DISMISSING A CASE WITHOUT TRIAL; LACK OF
JURISDICTION
Two Scenarios:
(1) If the MTC dismissed the case without trial on the merits, the RTC may:
(a) Affirm, if the ground of dismissal is lack of jurisdiction over the subject
matter; If the RTC has jurisdiction, it shall try the case on the merits as if
the case was originally filed therein; or
(b) Reverse, in which case, it shall remand the case for further proceedings
(2) If the case was tried on the merits by the MTC without jurisdiction over the
subject matter:
(a) The RTC shall not dismiss the case if it has original jurisdiction but shall

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 decide the case and admit amended pleadings or additional evidence in
the interest of justice

APPLICABILITY OF RULE 41 - The other provisions of Rule 41 shall apply to

appeals provided for herein insofar as they are not inconsistent with or may serve
to supplement the provisions of this Rule.

i. Appeal from judgments or final orders of the Regional Trial Courts

Modes of Appeal
– There are three modes of appeal from judgments or final orders of the RTC:
1. Ordinary Appeal or appeal by writ of error, where judgment was
rendered in a civil or criminal action by the RTC in the exercise of its
original jurisdiction
• This mode of appeal, governed by Rule 41, is taken to the CA on questions of
fact or mixed questions of fact and law
2. Petition for Review, where judgment was rendered by the RTC in the
exercise of its appellate jurisdiction
• This mode of appeal, covered by Rule 42, is brought to the CA on
question of fact, of law, or mixed questions of fact and law
3. Petition for Review on Certiorari, or appeal by certiorari to the SC
• This mode of appeal, provided for by Rule 45, is brought to the SC
from the decision of the RTC in the exercise of its original jurisdiction
and only on questions of law

J. Appeal from judgments or final orders of the Court of Appeals

Appeal via Rule 41 presupposes that:
1) The RTC rendered the judgment or final order in the civil action or
special proceeding in the exercise of its original jurisdiction; and
2) That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law

Notice of Appeal
– Filed with the court which rendered the judgment or final order appealed from. A
copy is served on the adverse party. [Sec. 5, Rule 41]
Contents of the Notice of Appeal:
1) Parties to the appeal
2) Judgment or final order or part thereof appealed from
3) The court to which the appeal is being taken; and
4) The material dates showing the timeliness of the appeal

Record on Appeal
– Done in special proceedings and other cases where multiple or separate appeals
are allowed. This is filed and served in the same manner as notice of appeal.

Contents of the Record [Sec. 6, Rule 41]

1. Full names of all the parties to the proceedings shall be stated in the
caption of the record on appeal
2. It shall include the judgment or final order from which the appeal is
taken,
3. In chronological order, copies of only such pleadings, petitions,
motions, and all interlocutory orders as are related to the appealed
judgment or final order

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 4. For the proper understanding of the issue involved
5. Together with such data as will show that the appeal was perfected on
time

Approval of the Record on Appeal [Sec. 7, Rule 41] Upon filing of the record for
approval and if no objection is filed by the appellee within 5 days from receipt of a
copy thereof, the trial court may:
1) Approve it as presented; or
2) Direct its amendment by the inclusion of any omitted matters which
are deemed essential.
Joint Record on Appeal [Sec. 8, Rule 41] Where both parties are appellants,
they may file a joint record on appeal.

PERIOD TO APPEAL [Sec. 2, Rule 41]

(1) 15 days from notice of judgment or final order appealed from
(2) 30 days from notice of judgment or final order where a record on appeal is
required (3) 48 hours from notice of judgment or final order appealed from in
habeas corpus cases

Reckoning point of reglementary period Period for filing the appeal should be
counted from the date when the party’s counsel received a copy of the judgment
or final order
When a party is represented by a counsel, service of process must be made on
counsel, not on party [Fajardo v. CA, G.R. No. 140356 (2001)]

Effect of Motions for New Trial and Reconsideration Originally, the period to appeal
is interrupted by a timely motion for new trial and reconsideration. However, with
the Neypes doctrine, a party has a fresh 15-day period from a denial of the motion
to perfect an appeal.

Extension of Period to Appeal Period to appeal may be extended but such

extension is addressed to the sound discretion of the court [Gregorio v. CA, G.R.
No. L-43511 (1976)]
The mere filing and pendency of motion for extension to perfect appeal does not
suspend the running of the reglementary period [King v. Corro, G.R. No. L-23617
(1967)]

PLEADINGS FILED [See Rule 44, Procedure in the CA]

Appellant’s Brief
• Filed within 45 days from receipt of notice of clerk that all evidence is attached
to record
• Follow the Efficient Use of Paper Rule, one original properly marked and 2 copies
with annexes
• Attach proof of service to adverse party
Grounds for dismissal with respect to appellant’s brief:
(1) Failure to file brief on time
(2) Failure to make specific assignment of errors in his brief

Contents:
(1) Subject index
(2) Assignment of Errors
(3) Statement of the Case
(4) Statement of Facts
(5) Statement of Issues

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(6) Arguments
(7) Relief
(8) Copy of judgment or final order appealed from
Appellee’s Brief
• Filed within 45 days from receipt of appellant’s brief
• Manner of filing is similar to that in appellant’s brief Contents:
(1) Subject index
(2) Statement of Facts and CounterStatement of Facts
(3) Arguments
Appellant’s Reply Brief
(1) Filed within 20 days from receipt of Appellee’s Brief
(2) This is not mandatory as it is optional on the part of the appellant

Extension of Time for Filing Briefs:

GENERAL RULE: Not allowed

EXCEPTION: For good reasons and only if motion for extension is filed before
expiration of time sought to be extended

PERFECTION OF APPEAL
Payment of Docket Fees [Sec. 4, Rule 41]
Within the period for taking an appeal, the appellant shall pay to the clerk of the
court which rendered the judgment or final order appealed from, the full amount
of the appellate court docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the original record or the
record on appeal.

Payment of docket fees in full is mandatory and is a condition sine qua non for the
perfection of an appeal.

Perfection of Appeal [Sec. 9, Rule 41]

• If appeal is by notice of appeal – it is deemed perfected as to him upon the filing
of the notice of appeal in due time
• If appeal is by record on appeal – it is perfected as to him with respect to the
subject matter thereof, upon approval of the record on appeal filed in due time

Effect of Perfected Appeal

(1) In appeals by notice of appeal:
• Court loses jurisdiction over the case upon perfection of appeal filed in due
time and expiration of the time to appeal of the other parties
• This rule applies individually and to each of the parties since the timeliness of
their recourse for appellate remedy depends on when they respectively received a
copy of the judgment or final order
(2) In appeals by record on appeal:
• Court loses jurisdiction only over the subject matter thereof upon approval of the
records on appeal filed in due time and the expiration of the time to appeal of the
other parties
• The effect is limited to the subject matter only. Jurisdiction over the case is still
with the trial court.

Residual Powers/Jurisdiction of the RTC After losing jurisdiction but prior to the
transmittal of the original record on appeal, the RTC may:
1) Issue orders for protection and preservation of the rights of the parties

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 which do not involve matters litigated by the appeal
2) Approve compromises
3) Permit appeals by indigent litigants
4) Order execution pending appeal under Sec. 2, Rule 39 (motion for
execution was filed before expiration of the period to appeal)
5) Allow withdrawal of the appeal

The concept of residual jurisdiction of the trial court is available at a stage in which
the court is normally deemed to have lost jurisdiction over the case or the subject
matter involved in the appeal. There is no residual jurisdiction to speak of where
no appeal or petition has even been filed [Fernandez v. CA, G.R. No. 131094
(2005)].

Duty of Clerk Upon Perfection of Appeal [Sec. 10, Rule 41] Within 30 days after
perfection of all appeals, the RTC clerk shall:
1. Verify completeness of original record or record on appeal and make
certification as to its correctness
2. Verify completeness of records that will be transmitted to appellate
court
3. If found to be incomplete:
(a)Take such measures as may be required to complete records
(b)If efforts to complete records fail:
I. Indicate in his letter of transmittal the exhibits or transcripts not included
II. Reasons for their transmittal
III. Steps taken or that could be taken to have them available
4.Transmit the records to the appellate court and furnish the parties
with copies of his letter of transmittal

DISMISSAL OF APPEAL [Sec. 13, Rule 41]

When can the RTC dismiss the appeal?
• Prior to transmittal of original record to appellate court; or
• Prior to transmittal of record on appeal to the appellate court

How done: By the court, motu proprio, or on motion to dismiss appeal by a party
Grounds
1. Appeal was taken out of time
2. Non-payment of docket and other lawful fees within the reglementary
period

NOTE: The dismissal of the appeal in the RTC is limited only to these two grounds

k. Appeal from judgments or final orders of the Sandiganbayan

1. Appeal from judgments or final orders of the Court of Tax

Appeals
A party adversely affected by a decision or ruling of the CTA en banc may file with
the Supreme Court a verified petition for review on certiorari pursuant to Rule 45.
[Sec. 19, RA 1125 as amended by RA 9282)

m. Review of final judgments or final orders of the Commission on /)

Audit (

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n. Review of final judgments or final orders of the Commission on
Elections
Unless otherwise provided by law, or by any specific provisions in these Rules, any
decision, order or ruling of the Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty (30) days from its promulgation.
[Sec. 1, Rule 37, COMELEC Rules of Procedure; Sec. 3, Rule 64, Rules of Court]

Decisions in appeals from courts of general or limited jurisdiction in election cases

relating to the elections, returns, and qualifications of municipal and barangay
officials are not appealable. [Sec. 2, Rule 37, COMELEC Rules of Procedure]

Decisions in pre-proclamation cases and petitions to deny due course to or cancel

certificates of candidacy, to declare a candidate as nuisance candidate or to
disqualify a candidate, and to postpone or suspend elections shall become final
and executory after the lapse of five (5) days from their promulgation, unless
restrained by the Supreme Court. [Sec. 3, Rule 37, COMELEC Rules of Procedure]
Page 7 of28

o. Review of final judgments or final orders of the Civil Service Commission

p. Review of final judgments or final orders of the Ombudsman

The following decisions are unappealable [Sec. 7, Rule III, Admin Order No. 7]
(1) In administrative cases where respondent is absolved of the charge
(2) In case of conviction, where penalty imposed is public censure or reprimand,
or suspension of not more than one month or a fine equivalent to one month
salary

Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives, and decisions of the Office of
Ombudsman in administrative disciplinary cases only
(2) It cannot review orders, directives, decisions in criminal and nonadministrative
cases

Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the Ombudsman has acted with grave abuse
of discretion amounting to lack or excess of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with this Court to set aside the Ombudsman’s
order or resolution. [Nava v. NBI, G.R. No. 134509 (2005)]

q. Review of final judgments or final orders of the National Labor Relations Commission
Appeal from quasi-judicial agencies does not apply to judgments or final orders
issued under the Labor Code. [Sec. 2, Rule 43]

The remedy of a party aggrieved by the decision of the NLRC is to file a motion for
reconsideration and, if denied, file a special civil action for certiorari under Rule 65
within 60 days from notice of the decision. In observance of the doctrine of
hierarchy of courts, this should be filed with the CA. [St. Martin Funeral Homes v.
NLRC, G.R. No. 130866 (1998)]

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From the CA, the remedy of the aggrieved party is a petition for review by
certiorari to the SC. [Dongon v. Rapid Movers and Forwarders, G.R. No. 163431
(2013)]

NLRC judgments and final orders or resolutions are now reviewable, in the first
instance, by the Court of Appeals on certiorari under Rule 65, but those of the
Employees Compensation Commission should be brought to the Court of Appeals
through a petition for review under this Rule. [Fabian v. Desierto, G.R. No. 129742
(1998)]

r. Review of final judgments or final orders of quasi-judicial agencies

Scope: Appeals from awards, judgments, final orders or resolution of or authorized
by any quasi-judicial agency (QJA) in the exercise of its quasi-judicial functions

A quasi-judicial agency or body is an organ of government other than a court and

other than a legislature, which affects the rights of private parties though either
adjudication or rule-making

NOTE: The CTA is no longer a quasijudicial agency under RA 9282, as of April 7,

2004. A party adversely affected by a decision or ruling of the CTA en banc may
file with the SC a verified petition for review on certiorari under Rule 45. [Sec. 11,
RA 9282 and AM No. 07-7-12-SC]

QJAs covered by Rule 43:

1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents, Trademarks and Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications Commission
11. Department of Agrarian Reform under RA 6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration Commission, and
19. Voluntary arbitrators authorized by law

Where to Appeal [Sec. 3, Rule 43] Appeal is taken to the CA on questions of fact,
of law, or mixed questions of fact and law.

Period to Appeal [Sec. 4, Rule 43] Period to appeal is 15 days from:

(1) Notice of award, judgment, final order, or resolution;
(2) Date of publication, if publication is required by law for its effectivity; or
(3) Denial of petitioner’s motion for new trial or reconsideration.

Extension of Period The CA may grant an additional 15 days within which to file

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the petition for review

Conditions:
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees and other lawful fees as well as
deposit for costs
(3) These two were done within the reglementary period

No further extension may be granted except for the most compelling reason and in
no case to exceed 15 days.

NOTE: Similar to the rule in petition for review from the RTC to the CA [Rule 42].
How Taken [Sec. 5, Rule 43]
(1) A verified petition for review is filed with the CA following the Efficient Use of
Paper Rule
(a) Attach proof of service of a copy to the adverse party and to
the court or agency a quo
(2) Upon filing, pay the docket and lawful fees as well as a P500 deposit for costs
a. Payment is made to the CA clerk
b. Exemption from payment may be granted by the CA by filing
a verified motion for exemption; if denied, party must pay
within 15 days from notice of denial

Contents of Petition [Sec. 6, Rule 43]

(1) Statement of full names of parties to the case without impleading court or
agencies
(2) Concise statement of facts and issues involved and grounds relied upon for
review
(3) Accompanied by:
(b) Clearly legible duplicate original or a certified true copy of
award, judgment, final order, or resolution appealed from
(c) Certified true copies of such material portions of record
referred to in the petition and other supporting papers
(4) Certificate of non-forum shopping
(5) Statement of specific material dates showing timeliness of appeal

Effect of Failure to Comply [Sec. 7, Rule 43]

Failure to comply with the following is sufficient ground for the CA to dismiss the
appeal:
(1) Payment of docket and lawful fees
(2) Deposit for costs
(3) Proof of service of petition
(4) Contents of petition
(5) Documents which should accompany the petition

Action on the Petition [Sec. 8, Rule 43] The CA may:

(1) Require respondent to file Comment within 10 days from notice
(2) Dismiss the petition if CA finds the same to be:
(d) Patently without merit
(e) Prosecuted manifestly for delay, or
(f) Questions raised are too unsubstantial to require
consideration

Form of Comment [Sec. 9, Rule 43]

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(1) Filed within 10 days from notice following the Efficient Use of Paper Rule
(2) Accompanied by the following:
(a) Clearly legible certified true copies of such material portions of the record
referred to therein
(b) And such other supporting documents
(3) Copy of Comment is served on petitioner with proof of such service filed with
the CA
Contents of Comment [Sec. 9, Rule 43]

The comment shall:

(1) Point out insufficiencies or inaccuracies in petitioner’s statement of facts and
issues
(2) State reasons why petition should be denied or dismissed

Due Course [Sec. 10, Rule 43] CA may give due course if CA finds prima facie that
court or agency has committed errors of fact or law that would warrant reversal or
modification
If not, then the CA may dismiss the same.

Transmittal of Records [Sec. 11, Rule 43]

Within 15 days from notice that petition has been given due course, the CA may:
(1) Require court or agency concerned to transmit original or legible certified true
copy of entire record of proceeding under review
(2) Require or permit subsequent correction or addition to record

Effect of Appeal [Sec. 12, Rule 43]

GENERAL RULE: Appeal shall not stay the award, judgment, final order or
resolution sought to be reviewed
EXCEPTION: When the CA shall direct otherwise upon such terms as it may deem
just
Submission for Decision [Sec. 13, Rule 43] If petition is given due course, the CA
may set the case for oral argument or require parties to submit memoranda within
15 days from notice.

Upon filing of last pleading or memorandum required, case is deemed submitted

for decision.

3. Relief from judgments, orders and other proceedings

Remedies after finality of judgment (1) Petition for Relief [Rule 38] (2) Action to
Annul Judgment [Rule 47] (3) Collateral Attack of a Judgment that is Void on its
Face

 NATURE
 MOTION FOR NEW TRIAL AND PETITION FOR RELIEF
 WHEN PROPER
 WHERE FILED
 GROUNDS
 PERIOD FOR FILING
 FORM OF THE PETITION
 ORDER TO FILE ANSWER
 PROCEEDINGS AFTER ANSWER IS FILED
 REMEDY FOR DENIAL OF PETITION FOR RELIEF

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a. Grounds for availing of the remedy
(1) When judgment or final order is entered or any other proceeding is thereafter
taken against petitioner through FAME
(2) When petitioner has been prevented from taking an appeal by FAME

NOTE: “Extrinsic fraud” is that fraud which the prevailing party caused to prevent
the losing party from being heard on his action or defense. Such fraud concerns
not the judgment itself but the manner in which it was obtained. [AFP Mutual
Benefit Association, Inc. v. RTC-Marikina City, G.R. No. 183906 (2011)]

b. Time to file petition

(1) Within 60 days after petitioner learns of the judgment, final order, or other
proceeding to be set aside; AND
(2) Not more than 6 months after such judgment or final order was entered, or
such proceeding was taken

These two periods must concur, are not extendible and are never interrupted.
Strct compliance with these periods stems from the equitable character and nature
of the petition for relief. Such petition is actually the “last chance” given by law to
litigants to question a final judgment or order. Failure to avail of such chance,
within the grace period fixed by the Rules, is fatal. [Quelnan v. VHF Phils, G.R. No.
138500 (2005)]

Reckoning Points
(1) The 60-day period is reckoned from the time the party acquired knowledge of
the order, judgment or proceeding. Not from the date he actually read the same
[Perez v. Araneta]
(2) 6-months period is computed from the date of entry of the order or judgment

c. Contents of petition
The petition must be:
(1) Verified;
(2) Accompanied by an affidavit showing the FAME relied upon; and
(3) Accompanied by an affidavit of merit, showing the facts constituting the
petitioner’s good and substantial cause of action or defense.

The absence of an affidavit of merits is a fatal defect and warrant denial of the
petition [Fernandez v. Tan Tiong Tick, G.R. No. 15877 (1961)]

However, it is not a fatal defect so long as the facts required to be set out also
appear in the verified petition [Fabar Inc. v. Rodelas, G.R. No. L-46394 (1977)]

When Affidavit of Merit is not necessary:

(1) When there is lack of jurisdiction over the defendant;
(2) When there is lack of jurisdiction over the subject matter;
(3) When judgment was taken by default;
(4) When judgment was entered by mistake or was obtained by fraud; or
(5) Other similar cases.

4. Annulment of Judgments or final orders and resolutions

NATURE
An action for annulment of judgment is a remedy in law independent of the case

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where the judgment sought to be annulled was rendered. The purpose is to have
the final and executory judgment set aside so that there will be a renewal of
litigation. [Alaban v. CA, G.R. No. 156021 (2005)]

When Proper The remedy may not be invoked where the party has availed himself
of the remedy of new trial, appeal, petition for review, or other appropriate
remedy and lost, or where he has failed to avail himself of those remedies through
his own fault or negligence. [Republic v. ‘G’ Holdings, Inc., G.R. No. 141241
(2005)]

It is a condition sine qua non that one must have failed to avail of those remedies,
through no fault attributable to him. Otherwise, he would benefit from his own
inaction or negligence. [Republic v. De Castro, G.R. No. 189724 (2011)]
Who Can File Petitioner need not be a party to the judgment sought to be
annulled.
A person who is not a party to the judgment may sue for its annulment provided
that he can prove the same was obtained through fraud or collusion, and that he
would be adversely affected thereby. . [Alaban v. CA, G.R. No. 156021 (2005)]

 NATURE
 GROUNDS
 PERIOD TO FILE ACTION
 PROCEEDINGS
 EFFECT OF JUDGMENT OF ANNULMENT

a. Grounds for annulment

(1) Extrinsic Fraud
• A fraudulent act committed by the prevailing party outside of the trial of the case, whereby
the defeated party was prevented from exhibiting fully his side of the case by deception
practiced on him by the prevailing party [Alba v. CA, G.R. No. 164041 (2005)] • Extraneous
evidence is admitted
(2) Lack of Jurisdiction
• Either lack of jurisdiction over the person of the defending party, or over the subject matter
of the claim
• Petitioner must show absolute lack of jurisdiction and not mere abuse of judicial discretion;
a claim of grave abuse of discretion will support a petition for certiorari but not an action for
annulment of judgment.
• Only evidence found in the record can justify nullity
(3) Denial of Due Process
• Recognized as an additional ground based on jurisprudence.

b. Period to file action

Extrinsic Fraud Lack of Jurisdiction
4 years from
Period for Filing discovery Before barred by laches or estoppel
There must be a manifest showing with petition that it was filed within the 4-yr
period.

The rule does not fix the period to annul judgment based on lack of jurisdiction but
recognizes the principle of estoppel as first laid down by Tijam v. Sibanghanoy
[G.R. No. L-21450 (1968)].
Form and Contents of Petition [Sec. 3, Rule 47]

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(1) Verified petition, alleging therein:
(a)With particularity, the facts and the law relied upon
(b)Petitioner’s good and substantial cause of action or defense
(2) Filed following the Efficient Use of Paper Rule
(3) Certified true copy of the judgment or final order or resolution shall be
attached to the original copy of the petition
(4) Affidavits of witnesses or documents supporting the cause of action or
defense; and
(5) Certificate of non-forum shopping

c. Effects of judgment of annulment

Based on Lack of Jurisdiction
(1) The same shall be set aside, and considered null and void
(2) Aggrieved party may refile the action in the proper court
• This may involve a different court of competent jurisdiction
• Where the reason was lack of jurisdiction over the defendant, the action may be
re-filed in the same original court, provided it has proper jurisdiction and venue

Based on Extrinsic Fraud

(1) The same shall be set aside and considered null and void
(2) On motion of the prevailing party on justifiable grounds, he may be allowed to
no longer refile the action; instead, the trial court which rendered the questioned
judgment shall be ordered to try the case anew

The prescriptive period for the refiling of the aforesaid original action shall be
deemed suspended from the filing of said original action until the finality of the
judgment of annulment. However, the prescriptive period shall not be suspended
where the extrinsic fraud is attributable to the plaintiff in the original action. [Sec.
8, Rule 47]

5. Collateral attack of judgments

ATTACKING A JUDGMENT
Direct Attack v. Collateral Attack
• Direct attack upon a judgment is an action or proceeding to annul it, this being
the main object of the proceeding
• Collateral attack upon a judgment is one made to obtain relief other than the
setting aside of the judgment, the attack on the judgment itself being incidental
Collateral attack is proper only when the judgment on its face is null and void as
where it is patent that the court which rendered said judgment has no jurisdiction

The validity of a judgment or order of the court, which has become final and
executory, may be attacked in three ways:
(1) By a direct action or proceeding to annul the same
• A direct attack against the order or judgment because it is not incidental to, but
is the main object of, the proceeding
• To annul and enjoin enforcement of the judgment, where the alleged defect is
not apparent on its face or from the recitals contained in the judgment
• See Rule 47
(2) By direct action, as certiorari, or by collateral attack in case of apparent nullity
• The collateral attack must be against a challenged judgment which is void upon
its face or that the nullity of the judgment is apparent from its own recitals
(3) By a Petition for Relief under Rule 38
• This third manner of attacking must be taken in the same action or proceeding in

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which the judgment or order was entered

VOID JUDGMENT
A void judgment is no judgment at all. It cannot be the source of any right nor the
creator of any obligation. All acts performed pursuant to it and all claims
emanating from it have no legal effect. Hence, it can never become final and any
writ of execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management, G.R. No. 171336 (2007)]

A void judgment may be likened to a lawless thing which can be treated as an

outlaw and slain at sight, or ignored wherever and whenever it rears its head.
[Banco EspanolFilipino v. Palanca, G.R. No. L-11390 (1918)]

A judgment may be void for lack of due process of law. [Spouses Benatiro v. Heirs
of Cuyos, G.R. No. 161220 (2008)]

Attacking a Void Judgment It may be assailed anytime, collaterally or in a direct

action or by resisting such judgment or final order in any action or proceeding
whenever it is invoked, unless barred by laches. [Spouses Benatiro v. Heirs of
Cuyos, G.R. No. 161220 (2008)]

Remedies If the reglementary period for appeal has not yet lapsed, some remedies
are New Trial and Reconsideration [Rule 37], Appeal [Rules 40-45], Petition for
Relief [Rule 48], and Other Appropriate Remedies such as Certiorari may also be
used.

If the appropriate remedies are no longer available without the fault of the
petitioner, the equitable and extraordinary remedy of Petition for Annulment of
Judgment [Rule 47] may be resorted to.

When all else fails, there is jurisprudence to the effect that a patently void
judgment may be dealt with by a Main Action for Injunction. [See Barrameda v.
Moir, G.R. No. L-7927 (1913)]
Jurisprudential Basis Spouses Benatiro v. Heirs of Cuyos [G.R. No. 161220 (2008)]
and Agustin v. Bacalan [G.R. No. L-46000 (1985)] on the matter of void judgment
particularly refer to Rule 47 as a remedy against a void judgment. This remedy,
however, should be availed of only when the appropriate remedies are no longer
available without fault on the part of the petitioner.

Although Sec. 2 of Rule 47 of the Rules of Court provides that annulment of a final
judgment or order of an RTC may be based "only on the grounds of extrinsic fraud
and lack of jurisdiction," jurisprudence recognizes denial of due process as
additional ground therefore. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220
(2008)]

A void judgment is like an outlaw which may be slain at sight wherever or

whenever it exhibits its head. The proper remedy in such case, after the time for
appeal or review has passed, is for the aggrieved party to bring an action to enjoin
the judgment. [Montinola v. Judge Gonzales (1989)]

Assuming the judgment to have been void… the proper remedy was by an original
proceeding and not by motion in the cause. [Banco Espanol-Filipino v. Palanca,
G.R. No. L-11390 (1918)]
A final judgment may be annulled on the ground of lack of jurisdiction, fraud, or

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that it is contrary to law. [Panlilio v. Garcia, G.R. No. L-29038 (1982)]

S. EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS

Execution is the legal remedy for the enforcement of a judgment. It is not an
action but is included in the phrase “Process in an action” – part of the
proceedings considered as still pending.
Writ of Execution – a judicial writ issued to an officer authorizing and requiring
him to execute the judgment of the court.

1. Difference between finality of judgment for purposes of appeal; for purposes of execution
A judgment is final if it disposes of the action as distinguished from an
interlocutory order which leaves something to be done with respect to the merits
of the case, and it is executory if the period to appeal has expired and no appeal is
taken. [Herrera]

Finality for purposes of appeal refers to the distinction between “final

judgments or orders” and “interlocutory orders,” which cannot be appealed. [Sec.
1(b), Rule 41]
The word interlocutory refers to something intervening between the
commencement and the end of a suit, which decides some point or matter but is
not a final decision of the whole controversy. [Ramiscal, Jr. v. Sandiganbayan,
G.R. No. 140756-90 (2004)]

A final judgment or order is one that finally disposes of a case, leaving nothing
more to be done by the court in respect thereto. Examples include:
(1) an adjudication on the merits which, on the basis of the evidence presented at
the trial, declares categorically what the rights and obligations of the parties are
and which party is in the right; or
(2) a judgment or order that dismisses an action on the ground, for instance, of
res judicata or prescription. Once rendered, the task of the court is ended, as far
as deciding the controversy or determining the rights and liabilities of the litigants
is concerned. Nothing more remains to be done by the court except to await the
parties' next move (such as filing of a motion for new trial or reconsideration, or
the taking of an appeal) and ultimately, to cause the execution of the judgment
once it becomes 'final and executory.’
Finality for purposes of execution refers to the judgment being “final and
executory” upon the lapse of the appeal period if no appeal is taken, upon which
execution shall issue as a matter of right. [Sec. 1, Rule 39]

A judgment becomes “final and executory” by operation of law. Finality becomes

a fact upon the lapse of the reglementary period to appeal if no appeal is
perfected.
Final Judgments
- They finally dispose of, adjudicate, or
determine the rights of the parties,
HOWEVER, they are not yet “final and
executory” pending the expiration of the
reglementary period for appeal.
- During that period, the winning party
cannot demand the execution of the
judgment yet as a right.
Final AND Executory Judgments
- Judgments become final and executory
by operation of law.
- After the lapse of the reglementary
period to appeal, the prevailing party is
entitled to a writ of execution, and
issuance thereof is a ministerial duty of
the court.

2. When execution shall issue

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GENERAL RULE: Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding upon the expiration of
the period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment/s or final order/s sought
to be
enforced and of the entry thereof, with notice to the adverse party.

EXCEPTIONS: Execution may Issue even if judgment not final in the following
cases:
(1) Support pendente lite
(2) Judgments of inferior courts in ejectment cases
(3) Execution pending appeal
(4) Injunction, accounting, receivership, support [Sec. 4, Rule 39]
(5) Decision of the RTC in appealed civil cases under Summary Procedure,
including forcible entry and unlawful detainer
(6) Decision of the LA reinstating dismissed employee, insofar as reinstatement
aspect is concerned

a. Execution as a matter of right

A judgment becomes final and executory by operation of law, not by judicial
declaration.

The prevailing party is entitled as a matter of right to a writ of execution, and the
issuance thereof is a ministerial duty and compellable by mandamus. [Herrera]

Execution as a matter of right is available in two instances:

(1) No appeal has been perfected or period of appeal has expired
(2) Appeal has been perfected and finally resolved

NOTE: Some judgments are not appealable, e.g. Small Claims judgments,
compromise judgments, etc

How Done
(1) If no appeal is perfected, prevailing party applies by motion for a writ of
execution
(2) If an appeal has been perfected and finally resolved –
(a) prevailing party files a motion in the court of origin, submitting:
I. certified true copies of the judgment/s or final order/s sought to be
enforced;
II. certified true copies of the entry thereof; and
III. with notice to the adverse party.
(b) appellate court may also direct the court of origin to issue the writ of
execution, upon motion in the same case, when the interest of justice so requires.

NOTE: Execution may only issue upon motion with notice of hearing.
GENERAL RULE: Issuance of the writ of execution is a matter of right on the part
of the prevailing party when the judgment or order becomes executory. The court
cannot refuse execution.

EXCEPTIONS:

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The issuance of a writ of execution which issues as a matter of right can be
countered in any of the following cases:
1) When the judgment has already been executed by the voluntary
compliance thereof by the parties;
2) When a judgment has been novated by the parties;
3) When a petition for review is filed and preliminary injunction is
granted; Also, when execution of the judgment has been enjoined by a
higher court;
4) When the judgment sought to be executed is conditional or
incomplete;
5) When facts and circumstances transpire which would render execution
inequitable or unjust;
6) When execution is sought more than five (5) years from its entry
without it having been revived;
7) When execution is sought against property exempt from execution;
8) When refusal to execute the judgment has become imperative in the
higher interest of justice. [Riano]

Supervening Event Doctrine A supervening event can be invoked for the

modification or alteration of a final judgment. This refers to:
(1) Facts which transpire after judgment has become final and executory;
(2) New circumstances which developed after the judgment has acquired finality;
(3) Matters which the parties were not aware of prior to or during the trial as they
were not yet in existence at that time.
(4) The supervening facts or circumstances must either bear a direct effect upon
the matters already litigated and settled or create a substantial change in the
rights or relations of the parties therein which render execution of the final
judgment unjust or impossible [Lim v. Jabalde, G.R. No. L36786 (1989)]

b. Discretionary execution
Under the Rule on Discretionary Execution (also called execution pending appeal),
the court rendering the judgment, if it still has jurisdiction, may exercise discretion
and order execution pending appeal.
It is the execution of a judgment or final order before it attains finality. The court
which rendered the decision can grant an execution pending appeal if it still retains
jurisdiction over the case and is in possession of the records at the time of the
filing of the motion; otherwise, the motion shall be acted upon by the appellate
court.

To be valid, there should be a good reason to justify execution pending appeal,

stated in the order which granted it.

Mere issuance of a bond to answer for damages is no longer considered a good

reason for execution pending appeal [Planters Products v. CA, G.R. No. 106052
(1999)]

“Good reasons” Compelling circumstances justifying the immediate execution lest

judgment becomes illusory, or the prevailing party may after the lapse of time
become unable to enjoy it [Fareast Bank v. Toh, G.R. No. 144018 (2003)]

Examples of Good Reasons:

(1) Where the goods subject of the judgment stand to perish or deteriorate during
the pendency of the appeal [Yasuda v. CA]

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(2) The award of actual damages is for an amount fixed and certain [Radio
Communications Inc. v. Lantin]. But not an award for moral and exemplary
damages
(3) Insolvency of a defeated party [Hacienda Navarro v. Labrador]
(4) The prevailing party is of advanced age and in a precarious state of health and
the obligation in the judgment is nontransmissible, being for support [De Leon v.
Soriano]
(5) Where defendants were exhausting their income and have no other property
aside from proceeds of the property subject in litigation [Lao v. Mencias]

Discretionary Execution is not applicable in the case of the Court of Appeals:

(1) The Rule on Discretionary Execution contemplates a situation where a
judgment or final order rendered in the exercise of its original jurisdiction and the
prevailing party in said decision seeks immediate execution during the pendency of
an appeal.
(2) The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF
ITS OWN DECISIONS THEREIN.
(3) Discretionary execution is allowed pending appeal of judgment or final order of
the trial court upon good reasons to be stated in a special order.

A judgment of the CA cannot be executed pending appeal. [Heirs of Justice JBL

Reyes v. CA, G.R. No. 135180-81 (2000)]

Requisites for Discretionary Execution:

(1) There must be a motion filed by prevailing party with notice to adverse party
(2) There must be a hearing of the motion for discretionary execution
(3) There must be good reasons to justify the discretionary execution
(4) These good reasons must be stated in a special order after due hearing

When Filed The motion for discretionary execution shall be filed with the trial court
while
(1) it has jurisdiction over the case; and
(2) it is in possession of either the original record or the record on appeal.

After the trial court has lost jurisdiction, the motion may be filed in the appellate
court. [Bangkok Bank Public Company, Ltd. v. Lee, G.R. No.159806 (2006)]

Stay of Discretionary Execution Discretionary execution may be stayed upon

approval by the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the judgment or
order allowed to be executed in case it shall be finally sustained in whole or in part
[Sec. 3, Rule 39]
Bond may be proceeded against on motion with notice to surety

GENERAL RULE: The filing of a supersedeas bond is sufficient to stay the

enforcement of a discretionary execution.

EXCEPTION: However, the filing of the supersedeas bond does not entitle the
judgment debtor to the suspension of execution as a matter of right. Where the
needs of the prevailing party are urgent, the Court can order immediate execution
despite such supersedeas bond. [Regalado]

If judgment is reversed totally or partially, or annulled The trial court may, on

motion, issue such orders of restitution or reparation of damages as equity and

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justice may warrant under the circumstances

Remedy against Discretionary Execution The remedy is certiorari by Rule 65. The
fact that the losing party has also appealed from the judgment does not bar
certiorari proceedings as the appeal could not be an adequate remedy from such
premature execution. [Hererra]

3. How a judgment is executed

 EXECUTION BY MOTION OR INDEPENDENT ACTION [SEC. 6, RULE 39]
 ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION [SEC. 8, RULE 39]
 RETURN OF WRIT OF EXECUTION [SEC. 14, RULE 39]
 ENTRY OF SATISFACTION OF JUDGMENT [SEC. 45, RULE 39]
 EXECUTION OF JUDGMENTS FOR MONEY
 EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS [SEC. 10, RULE 39]

a. Execution by motion or by independent action

Modes of Enforcement of Execution
Mode When Enforced
By Motion Within 5 years from date of entry of
judgment
By Independent Action After the lapse of 5 years from date of
entry and before it is barred by statute
of limitations which is 10 years from
date of entry (Art. 1144(3))
NOTE: The revived judgment may be enforced by motion within 5 years from date
of its entry and thereafter by action before it is barred by statute of limitations.

Once the judgment is revived, the 10-year prescriptive period commences to run
from the date of finality of the revived judgment and not the original judgment.
[PNB v. Bondoc, G.R. No. L-20236 (1965)]

b. Issuance and contents of a writ of execution

Contents of the Writ of Execution
(1) Issued in the name of the Republic from the court which granted
the motion
(2) States the name of the court, case number and title, dispositive
part of judgment or order
(3) Requiring the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms
(4) In all cases, it shall also specifically state the amount of interest,
cost, damages, rents, or profits due as well as the principal
obligation

Dispositive Portion as Subject of Execution

GENERAL RULE: The dispositive portion of the decision is that part that becomes
the subject of execution

EXCEPTIONS:
1) Where there is ambiguity, the body of the opinion may be referred
to for purposes of construing the judgment because the dispositive
part of a decision must find support from decision’s ratio decidendi
2) Where extensive and explicit discussion and settlement of the issue

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 is found in the body of the decision

Two Whom Issued

GENERAL RULE: Only real parties in interest in an action are bound by judgment
rendered therein and by the writs of execution

EXCEPTIONS: There are certain cases where the writ may be issued against non-
parties:
1) One who is privy to judgment debtor can be reached by an order of
execution and writ of demolition [Vda. De Medina v. Cruz, G.R. No.
L-39272 (1988)]
2) Issued against one who not being originally a party to the case
submits his interest to the court for consideration in the same case
and invites adjudication regarding said interest [Jose v. Blue, G.R.
No. L-28646 (1971)]
3) Where non-parties voluntarily signed the compromise agreement or
voluntarily appeared before court [Rodriguez v. Alikpala, G.R. No.
L-38314 (1974)]
4) Where the remedy of a person not a party to the case which he did
not avail of, was to intervene in the case in question involving
rights over the same parcel of land and said person in another case
was adjudged buyer in bad faith thereof [Lising v. Plan, G.R. No.
50107 (1984)]
5) In an ejectment case, where 3rd party derived his right of
possession from defendant particularly when such right was
acquired only after filing of ejectment suit [Cordova v. Tornilla, AM
No. MTJ-94997 (1995)] Remedies against a Writ of Execution

GENERAL RULE: The execution of final and executory judgments may no longer be
contested and prevented, and no appeal should lie therefrom.

EXCEPTIONS: Instances where errors may be committed prejudicial to the rights

of a party, calling for correction by a higher court. Examples of these instances
are:
(1) When the writ varies the judgment;
(2) When there has been a change in the situation of the parties
rendering execution inequitable;
(3) When execution is sought to be enforced against property exempt
from execution;
(4) When it appears that the controversy has never been submitted to
the judgment of the court;
(5) When the terms of the judgment are not clear enough and there
remains room for interpretation;
(6) When it appears that the judgment has already been satisfied;
(7) When it appears the writ has been improvidently issued;
(8) When it appears that the writ is defective in substance;
(9) When the writ is issued against the wrong party;
(10) When the writ was issued without authority.

If motion to quash is denied, appeal from said denial

An order granting the issuance of the writ is not appealable, except where:
(1) The order varies the terms of the judgment, or

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(2) Where, being vague, the court renders what is believed to be a wrong
interpretation

c. Execution of judgments for money

If the award is for payment of money, execution is enforced by:
(1) Immediate payment on demand
(2) Satisfaction by levy
(3) Garnishment of debts and credits [Sec. 9, Rule 39]

IMMEDIATE PAYMENT ON DEMAND

Procedure
(1) The officer shall demand from judgment obligor the immediate payment of the
full amount stated in the writ and all lawful fees
(2) The judgment obligor shall pay the amount of the judgment debt
(a) Payable in Cash, Certified bank check payable to judgment
obligee, or any other form of payment acceptable to judgment
obligee
I. In no case shall sheriff demand that any payment by check be made payable
to him
II. Amount of judgment under proper receipt directly to the judgment obligee or
his authorized representative if present at time of payment
(b) If judgment obligee or his representative is present to
receive payment:
I. Judgment obligor shall delver payment to executing sheriff
II. Sheriff shall turn over the amounts within the same day to the clerk which
issued the writ or deposit the amounts to a fiduciary account in the nearest
government depository bank of the RTC of the locality
(3) The judgment obligor shall pay the lawful fees handed over to the sheriff.
Sheriff shall turn over the said amount within the same day to the clerk that
issued the writ
(4) If there is any excess it shall be delivered to the judgment obligor. Lawful fees
shall be retained by the clerk
SATISFACTION BY LEVY
Levy is the act whereby a sheriff sets apart or appropriates for the purpose of
satisfying the command of the writ, a part or the whole of the judgment debtor’s
property.

Levy means the act or acts by which an officer sets apart or appropriates a part or
the whole of the property of the judgment debtor for purposes of the prospective
execution sale [Llenares v. Vandevella (1966)].

If susceptible of appropriation, the officer removes and takes the property for
safekeeping; otherwise the same is placed under sheriff’s guards. Without valid
levy having been made, any sale of the property thereafter is void.

What may be levied? All property of the judgment obligor not exempt from
execution.

Conditions before resort to Satisfaction by Levy

(1) If the judgment obligor cannot pay all or part of the obligation then the officer
shall levy upon the properties of the judgment obligor
(2) Characteristics of properties to be levied
(a) Properties of every kind and nature whatsoever

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(b) Which may be disposed of for value
(c) Not otherwise exempt from execution

Procedure
(1) The judgment obligor have the option to immediately choose which property or
part thereof may be levied upon, sufficient to satisfy judgment
(2) If judgment obligor does not exercise the option:
(a) The officer shall first levy on personal properties, if any
(b) If personal properties are insufficient, then on the real properties
(3) Sheriff shall sell only sufficient portion of personal or real property of the
judgment obligor levied upon
(4) If there is more property than is sufficient to satisfy judgment and lawful fees,
then sell only so much as is sufficient

GARNISHMENT OF DEBTS AND CREDITS

Garnishment is considered as a species of attachment for reaching credits
belonging to the judgment debtor and owing to him from a stranger to the
litigation

The Officer may levy on:

(1) Debts due the judgment obligor and other credits,
(2) Including bank deposits, financial interests, royalties, commissions,
(3) And other personal property not capable of manual delivery in possession and
control of third parties

The process of levying shall be called garnishment if the property involved is

money, stocks, or other incorporeal property in the hands of third persons.
Garnishment merely sets apart such funds but does not constitute the creditor as
owner of the garnished property.

The Rules of Court themselves do not require that the garnishee be served with
summons or impleaded in the case in order to make him liable. All that is
necessary for the trial court lawfully to bind the person of the garnishee or any
person who has in his possession credits belonging to the judgment debtor is
service upon him of the writ of garnishment. [Perla v. Ramolete, G.R. No. L-60887
(1991)]

Garnishment is not a violation of RA 1405 on the secrecy of bank deposits.

[Chinabank v. Ortega, G.R. No. L-34964 (1973)]

NOTES: Upon service of the writ of garnishment, the garnishee becomes a “virtual
party” or “forced intervenor” to the case and the trial court thereby acquires
jurisdiction to bind the garnishee to comply with its orders and processes. [BPI v.
Lee, G.R. No. 190144 (2012)]

UP’s funds, being government funds, are not subject to garnishment. Moreover,
The execution of the monetary judgment against the UP was within the primary
jurisdiction of the COA. [UP v. Dizon, G.R. No. 171182 (2012)]

Procedure
(1) Levy shall be made by serving notice upon:
(a) The person owing such debts, or
(b) Having in his possession or control such credits to which
judgment obligor is entitled

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(2) Garnishment to cover only such amount as will satisfy judgment and lawful
fees
(3) If there are 2 or more garnishees, holding deposits or credits sufficient to
satisfy judgment, judgment obligor shall have the right to indicate the garnishee/s
who
shall be required to deliver. Otherwise, the choice shall be made by judgment
obligee
(4) The garnishee shall make a written report to the court within 5 days from
service of notice of garnishment. The report shall state whether:
(a) Judgment obligor has sufficient funds or credits to satisfy judgment,
OR
(b) Judgment obligor has insufficient funds or credits to satisfy judgment
(5) Garnish the amount which may be in cash, or certified bank check issued in
the name of judgment obligee
(6) Garnished amount shall be delivered directly to judgment obligee within 10
working days from service of notice on said garnishee requiring such delivery
(7) Follow procedure under “Immediate Payment on Demand” with respect to
delivery
(8) Lawful fees shall be paid directly to court

d. Execution of judgments for specific acts

For Conveyance of Real of Land or Personal Property Judgment directs a party to:
(a) Execute a conveyance of land or personal property;
(b) Deliver deeds or other documents; or
(c) Perform any other specific act in connection therewith

If the party fails to comply within the time specified:

(1) Court may direct the act to be done at the cost of the disobedient party by
some other person appointed by the court; or
(2) If the real or personal property directed to be conveyed is situated in the
Philippines, court may by order divest the title of any party and vest it in others,
which shall have the force and effect of conveyance executed in due form.
For Sale of real or personal property An order for execution shall be issued
describing the property to be sold, and directing the sheriff or other proper officer
to sell it, and apply the proceeds in conformity with the judgment. [Secs. 8(b), 10,
Rule 39] For Delivery or Restitution of Real Property The officer shall demand of
the person against whom the judgment is rendered and all persons claiming rights
under him to peaceably vacate the property within three
(3) working days, and restore possession to the judgment obligee.
Otherwise, the officer shall oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and employing such means as may be
reasonably necessary to retake possession, and place the judgment obligee in
possession of such property.

Any costs, damages, rents or profits awarded by the judgment shall be satisfied in
the same manner as a judgment for money.

Removal of improvements on property subject of execution

When the property subject of the execution contains improvements constructed or
planted by the judgment obligor or his agent, the officer shall not destroy,
demolish or remove said improvements except:
(1) upon special order of the court, issued upon motion of the judgment obligee
after due hearing; and

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(2) after the judgment obligor has failed to remove these within a reasonable time
fixed by the court.
Delivery of personal property The officer shall take possession of the same and
forthwith deliver it to the party entitled to it, and satisfy any judgment for money
as therein provided.

e. Execution of special judgments

When Proper [Sec. 11, Rule 39]
A judgment requires performance of any other act than payment of money or sale
or delivery of property.

Such judgment is one which can only be complied with by the judgment obligor
because of his personal qualifications or circumstances.
Procedure
(1) A writ of execution shall be issued, with a certified true copy of the judgment
attached. (2) Writ shall be served by the officer upon:
(a) The party against whom the judgment is rendered; or
(b) Any other person required by the judgment or by the law
to obey the same.
(3) Failure of such party to obey is punishable by contempt.

Examples:
(1) A judgment in mandamus to reinstate petitioner as chief clinic of the hospital.
[Vital-Gozon v. CA (1992)]
(2) A judgment directing defendant to remove a fence from a certain place is a
special judgment. [Marquez v. Marquez, 73 Phil. 74]

f. Effect of levy on third persons

The levy on execution shall create a lien in favor of the judgment obligee over the
right, title and interest of the judgment obligor in such property at the time of the
levy, subject to liens and encumbrances then existing. [Sec. 12, Rule 39]

NOTE: The power of the court in execution extends only over properties
unquestionably belonging to the judgment debtor.

4. Properties exempt from execution

GENERAL RULE: Except as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution [Sec. 13, Rule 39]

1. The judgment obligor's family home as provided by law, or

the homestead in which he resides, and land necessarily used in
connection therewith;
2. Ordinary tools and implements personally used by him in
his trade, employment, or livelihood;
3. Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
4. His necessary clothing and articles for ordinary personal
use, excluding jewelry;
5. Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may select,
of a value not exceeding P 100,000.00;

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 6. Provisions for individual or family use sufficient for four (4)
months;
7. The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professionals, not exceeding
P300,000.00 in value;
8. One fishing boat and accessories not exceeding the total
value of one hundred thousand pesos owned by a fisherman and
by the lawful use of which he earns his livelihood;
9. So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four (4)
months preceding the levy as are necessary for the support of
his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
12. The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;
13. Properties specially exempted by law, such as:
(a) property mortgaged to the DBP [Sec. 26, CA 458];
(b) savings of national prisoners deposited with the postal
savings bank [Act. 2489];
(c)benefits from private retirement systems of companies and
establishments with limitations [RA 4917];
(d) laborer’s wages except for debts incurred for food, shelter,
clothing and medical attendance [Art. 1708, Civil Code];
(e) benefit payments from SSS [RA 1161, as amended; Sec.
16]

EXCEPTION:
However, no article or species of property mentioned in this section shall be
exempt from:
(1) Execution issued upon a judgment recovered for its price, or
(2) Upon a judgment of foreclosure of a mortgage thereon.

The exemptions must be claimed, otherwise they are deemed waived. It is not the
duty of the sheriff to set off the exceptions on his own initiative. [Herrera v.
Mcmicking, G.R. No. L-5329 (1909)]

5. Proceedings where property is claimed by third persons; in relation to third party claim in
attachment and replevin
Sec. 16, Rule 39 and other provisions providing a mode for recovering property
alleged to have been wrongfully taken by sheriff pursuant to a writ of execution or
other process, refer to a stranger to an action. [Tillson v. CA, G.R. No. 89870
(1991)]

Remedies of Third-Party Claimant

(1)Summary hearing before the court which authorized the
execution
(2)“Terceria” or third-party claim filed with the sheriff [Sec.
16, Rule 39]
(3)Action for damages on the bond posted by the judgment

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 creditor
(4)Independent reivindicatory action

The aforementioned are cumulative remedies and may be resorted to by a third-

party claimant independently of or separately from and without need of availing of
the others. [Sy v. Discaya, G.R. No. 86301 (1990)]

For a Third-Party Claim to be Sufficient:

(1)Must be filed by a person other than the defendant or his
agent, at any time before sale
(2)Must be under oath or supported by affidavit stating the
claimant’s title to, or right of possession of, the property, and
grounds therefor
(3)Must be served upon the officer making levy and a copy
thereof upon the judgment creditor

The timing of the filing of the claim is important because it determines the
remedies available to the claimant:
1. If the claim is filed under Sec. 16, Rule 39:
• Claimant may vindicate his claim in a separate action
• Intervention is no longer allowed since judgment has already been rendered
2. If the claim is filed under Sec. 14, Rule 57 (Attachment) or
under Sec. 7, Rule 60 (Replevin)
• Claimant may vindicate his claim by intervention as he has a legal interest in the
matter of litigation
• Intervention is allowed as these actions are still pending in court

When to file Anytime, as long as the sheriff has the possession of the property
levied upon, or before the property shall have been sold under execution.

Effect of Third-Party Claim

When a third-party claim is filed, sheriff is not bound to proceed with the levy of
the property unless judgment creditor or latter’s agent posts an indemnity bond
against the claim.

6. Rules on redemption
When Available
(1)For personal property – there is NO right of redemption as
the sale is absolute
(2)For real property – right of redemption is available

Who May Redeem [Sec. 27, Rule 39]

(1) Judgment obligor, or his successor in interest;
 Successors-in-interest include, among others, one to whom the debtor has
conveyed his interest in the property for purposes of redemption
(2) A creditor having a lien by virtue of an attachment, judgment or
mortgage on the property sold, subsequent to the lien under which the
property was sold.
 Redeeming creditors are called redemptioner.

Unlike a judgment obligor, such redemptioner must prove his right to redeem by
producing the ff. documents:
(1) The documents necessary to establish his right to redeem:

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 (a) A copy of the judgment or final order under which he claims the right to
redeem, certified by the clerk of the court wherein judgment or final order
was entered;
(b) If he redeems upon a mortgage or other lien, a memorandum of the
record thereof, certified by the Register of Deeds; or
(c) An original or certified copy of any assignment necessary to establish his
claim; and
(2) An affidavit executed by him or his agent showing the amount then actually
due on the lien [Sec. 30]

If the lien of the creditor is prior to the judgment under which the property was
sold:
(1) He is not a redemptioner
(2) He cannot redeem since his interests in his lien are fully protected.
Any purchaser at a public auction takes the same subject to such
prior lien which he has to satisfy In all cases, judgment debtor shall
have the entire 1 year period from date of registration of sale to
redeem the property. If judgment debtor redeems, no further
redemption is allowed [Sec. 29].

NOTE: There is no extension or interruption of redemption period.

REDEMPTION PRICE
(1) By the Judgment Debtor or First Redemptioner:
(a) Purchase PRICE
(b) 1% INTEREST thereon up to time of redemption
(c) Any amount of ASSESSMENTS OR TAXES which purchaser may
have paid after purchase as well as interest on such last named
amount at the same rate
(d) If purchaser is also a creditor having a PRIOR LIEN to that of
redemptioner, other than the judgment under which such purchase
was made, the AMOUNT of such OTHER LIEN, also with interest
(2) By all Subsequent Redemptioners
(a) AMOUNT paid on last redemption
(b) 2% INTEREST thereon
(c) Any amount of ASSESSMENTS OR TAXES which purchaser may have paid
after purchase as well as interest on such last named amount at the same
rate
(d) Amount of any LIENS held by said last redemptioner prior to his own, also
with interest

If redemption is made by the Judgment Obligor

(1) No further redemption is allowed
(2) He is restored to his estate [Sec. 29, Rule 39]

When a judgment debtor redeems the property, what is effected is the elimination
of the lien created by the levy on attachment or judgment on the registration of
mortgage thereon. Note that he never lost ownership so there is no recovery of
ownership.

Payment of redemption price may be made to the:

(1) Purchaser or redemptioner, or
(2) For him to the officer who made the sale

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The person to whom redemption payment is made must execute and deliver to
him a

CERTIFICATE OF REDEMPTION
(1) Acknowledged by a notary public or other officer authorized to take
acknowledgements of conveyances of real property
(2) Filed and recorded in the registry of deeds of the place which the property
is situated
(3) Registrar must note the record on the margin of the record of the
certificate of sale

RIGHTS PENDING REDEMPTION [Secs. 31-32, Rule 39]

Right of Judgment Creditor Pending Redemption
(1) Apply for injunction to restrain the commission of waste on the property

Rights of the Judgment Debtor Pending Redemption

(1) Remain in possession of the property
(2) Cannot be ejected
(3) Use the property in the same manner it was previously used
(4) Make necessary repairs to buildings thereon while he occupies the
property
(5) Use it in the ordinary course of husbandry [Sec. 31]; and
(6) Collect rents, earning and income derived from property until the
expiration of period of redemption

EXPIRATION OF REDEMPTION PERIOD [Sec. 33, Rule 39]

Judgment obligor shall have the entire period of one year from date of registration
of sale to redeem the property.

ENTITLEMENT TO CONVEYANCE AND POSSESSION

(1) Of Purchaser at Auction Sale
• If there is no redemption made within 1 year from date of registration of the
certificate of sale
(2) Of Last Redemptioner
• If there was redemption, and 60 days have elapsed and no other redemption has
been made
• Notice must have been given, and the redemption period has elapsed

Two Documents which the Sheriff Executes in case of Real Property

(1) CERTIFICATE OF SALE
• After auction sale, he will execute in favor of the purchaser the certificate of sale
under Sec. 25
• From registration of said certificate, the one year redemption period starts
• Certificate of sale after execution sale is merely a memorial of the fact of sale
and does not operate as conveyance
(2) DEED OF CONVEYANCE
• Issued if after expiration of redemption period there is no redemption
• Operates to transfer to purchaser whatever rights the judgment debtor had in
the property
• The effect of a final deed of sale transfers the right as of the time of the levy

RECOVERY OF PURCHASE PRICE IF SALE NOT EFFECTIVE [Sec. 34, Rule 39]
Purchaser may recover the purchase price when:
(1) Purchaser or his successor-in-interest fails to recover possession the property;

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or
(2) Evicted due to:
(a) Irregularities in the proceedings concerning the sale;
(b) Judgment has been reversed or set aside;
(c) The property sold was exempt form execution; or
(d) A third person has vindicated his claim to the property

REMEDIES OF THE PURCHASER

(1) File a motion in the same action or file a separate action to recover from
judgment creditor the price paid
(2) File a motion for revival of judgment in his name against judgment debtor; or
(3) Bring an action to recover possession of property

7. Examination of judgment obligor when judgment is unsatisfied

EXAMINATION OF JUDGMENT OBLIGOR

When Available At any time after return is made, when it shows that judgment
remains unsatisfied in whole or in part

Procedure Judgment Obligee entitled to an order from the court which rendered
the judgment to appear and be examined concerning his property and income
before the court or a commissioner assigned by the court.

Attendance may be compelled by order or subpoena. Failure to obey such order or

Subpoena, to answer as a witness, or to subscribe his deposition may be punished
for contempt. [Sec. 38, Rule 39]

Limitations
(1) No judgment obligor shall be required to appear before a court or
commissioner outside the province or city in which such obligor
resides or is found. [Sec. 36, Rule 39]
(2) A judgment obligor may no longer be examined after the lapse of
the five years within which a judgment may be enforced by motion.
[Umali v. Coquia, G.R. No. L46303 (1988)]

Order for payment in Fixed Monthly Installments [Sec. 40, Rule 39] Upon finding
that the earning of the judgment debtor for his personal services are more than
necessary for the support of his family, the court may order payment in fixed
monthly installments.

The court may also, upon failure of the judgment obligor without good excuse to
pay any installment when due, punish him for indirect contempt.

8. Examination of obligor of judgment obligor

When Available
(1)At any time after return is made, when it shows that judgment
remains unsatisfied in whole or in part; and
(2)Upon proof to the satisfaction of the court which issued the writ, that a
natural person or juridical entity has property of the judgment obligor
or is indebted to him

Procedure Court may, by an order, require such natural person, or any officer or
member of such juridical entity, to appear and be examined before the court or a

Page 132 of 360

commissioner concerning such property or debt.

Attendance may be compelled by order or subpoena. Failure to obey such order or

subpoena, to answer as a witness, or to subscribe his deposition may be punished
for contempt. [Sec. 38, Rule 39]
Effect Service of order shall bind all credits due to judgment debtor and all money
and property in the possession or control of such person, from the time of service.

Note: This is not applicable if there is no issue concerning the indebtedness of the
bank and there is no denial by the depositor of the existence of the deposit with
the bank which is considered a credit in favor of the depositor against the bank
[PCIB v. CA, G.R. No. 84526 (1991)]

When Alleged Obligor Denies Debt or Claims Property When such person claims an
interest in the property adverse to the judgment obligor or denies the debt, the
court may issue an order
(3)authorizing the judgment creditor to institute an action against such
person for the recovery of such interest or debt, and
(2) forbidding transfer or disposition of such interest or debt for 120
days.

9. Effect of judgment or final orders

IMMUTABILITY OF JUDGMENTS
A judgment that has acquired finality becomes immutable and unalterable, and
may no longer be modified in any respect, even if the modification is meant to
correct erroneous conclusions of fact and law, and whether it be made by the court
that rendered it or by the Highest Court of the land. [PNB v. Spouses Maranon,
G.R. No. 189316 (2013)]

Rationale:
(1) to avoid delay in the administration of justice, and procedurally to
make orderly the discharge of judicial business
(2) to put an end to judicial controversies at the risk of occasional errors

10. Enforcement and effect of foreign judgments or final orders

PUBLIC POLICY PRINCIPLE
A judgment by a foreign court is enforceable only within its territorial jurisdiction.

A valid judgment rendered by a foreign tribunal may be recognized insofar as the

immediate parties the underlying cause of action are concerned so long as it is
convincingly shown that:
(1) There has been an opportunity for a fair hearing before a
court of competent jurisdiction
(2) Trial upon registered proceedings has been conducted
(3) There is nothing to indicate either a prejudice in court and in
the system of laws under which it is sitting or fraud in
procuring the judgment [Philippine Aluminum v. Fasgi
Enterprises, G.R. No. 137378 (2000)]

Such limitation on the review of foreign judgment is adopted in all legal systems to
avoid repetitive litigation on claims and issues, prevent harassment of the parties
and avoid undue imposition on the courts.

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This policy of preclusion rests on principles of comity, utility and convenience of
nations.
As a generally accepted principle of international law, it is part of the law of the
Philippines by virtue of the Incorporation Clause [Sec. 2, Art. II, 1987
Constitution] [Regalado]

Two Ways of Giving Effect to Foreign Judgment:

(4) An ordinary action to enforce the foreign judgment may be
filed in court; or
(5) It may be pleaded in an Answer or a Motion to Dismiss.
EFFECT OF FOREIGN JUDGMENTS [Sec. 48, Rule 39]
NATURE EFFECT
In judgments against a specific thing (in Judgment is CONCLUSIVE upon the title
rem) to the thing
In judgments against a person (in Judgment is PRESUMPTIVE evidence of
personam) a right as between parties and their
successors-ininterest by a subsequent
title
In both cases, judgment may be repelled by evidence of:
(1) Want of jurisdiction
(2) Want of notice
(3) Collusion
(4) Fraud
(5) Clear mistake of law or fact

A foreign judgment is presumed to be valid and binding in the country from which
it comes, until a contrary showing, on the basis of a presumption of regularity of
proceedings and the giving of due notice in the foreign forum.

Before our courts can give the effect of res judicata to a foreign judgment, it must
be shown that the parties opposed to the judgment had been given ample
opportunity to do so on grounds under Section 48 of Rule 39 of the Rules of Court.
[Roehr v. Rodriguez, G.R. No. 142480 (2003)]

IV. PROVISIONAL REMEDIES

Provisional remedy issued upon order of the court where an order is PENDING to
levy upon the property of the defendant therein, the same to be held thereafter by
the sheriff as security for the satisfaction of whatever judgment might be secured
in said action

A. NATURE AND PURPOSE

Nature of Provisional Remedies Provisional remedies are writs and processes
available during the pendency of the action which may be resorted to by a litigant
for the preservation or protection of their rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in the case;
also known as ancillary or auxiliary remedies.

They are temporary, auxiliary, and ancillary remedies available to a litigant for the
protection and preservation of his rights while the main action is pending. They are
writs and processes which are not main actions and are dependent for their
application the existence of a principal action.

They are applied to a pending litigation, for the purpose of securing the judgment
or preserving the status quo, and in some cases after judgment, for the purpose of

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preserving or disposing of the subject matter. [Calo v. Roldan, G.R. No. L-252
(1946)]

Orders granting or denying provisional remedies are merely interlocutory and

cannot be the subject of an appeal. They may however be challenged before a
superior court through a petition for certiorari under Rule 65.

Purpose of Provisional Remedies

(1) To preserve or protect litigants’ rights or interests during the pendency of the
principal action;
(2) To secure the judgment;
(3) To preserve the status quo of the the things subject to the action or the
relation between the parties; and
(4) To preserve the subject matter of the action.

Kinds of Provisional Remedies

(1) Preliminary Attachment [Rule 57]
(2) Preliminary Injunction [Rule 58]
(3) Receivership [Rule 59]
(4) Replevin [Rule 60]
(5) Support Pendente Lite [Rule 61]

NOTE: The enumeration above is not exclusive. The court may invoke its equity
jurisdiction and order the appropriate reliefs during the pendency of an action
Jurisdiction over Provisional Remedies The court which grants or issues a
provisional remedy is the court which has jurisdiction over the main action.

Inferior courts may also grant all appropriate provisional remedies in an action
pending with it and is within its jurisdiction [Sec. 33 (1), BP 129]

B. JURISDICTION OVER PROVISIONAL REMEDIES

Jurisdiction over Provisional Remedies The court which grants or issues a
provisional remedy is the court which has jurisdiction over the main action.

Inferior courts may also grant all appropriate provisional remedies in an action
pending with it and is within its jurisdiction [Sec. 33 (1), BP 129]

C. PRELIMINARY ATTACHMENT
The provisional remedy in virtue of which a plaintiff or other party may, at the
commencement of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the satisfaction of
any judgment that may be recovered. [Davao Light v CA, G.R. No. 93262 (1991)]

Purposes
(1) To seize the property of the debtor in advance of final judgment and to hold it
for purposes of satisfying the said judgment.
(2) To enable the court to acquire jurisdiction over the action by the actual or
constructive seizure of the property in those instances where personal service of
summons on the creditor cannot be effected. [PCIB v. Alejandro, G.R. No. 175587
(2007)]
Kinds of Attachment
(1) Preliminary attachment - one issued at the commencement of the action or
at any time before entry of the judgment as security for the satisfaction of any

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judgment that may be recovered in the cases provided for by the rules;
(2) Garnishment - a kind of attachment in which the plaintiff seeks to subject
either the property of the defendant in the hands of a third person called
garnishee, to his claim or the money which said third person owes the defendant;
(3) Levy on execution - writ issued by the court after judgment by which the
property of the judgment obligor is taken into custody of the court before the sale
of the property on execution before the satisfaction of a final judgment.

1. Grounds for issuance of writ of attachment

There are only specific situations where preliminary attachment may issue. The
grounds are EXCLUSIVE:
(1) Action for recovery of a specified amount of money or damages, except moral
and exemplary,
a. On a cause of action arising from law, contract, quasi-contract, delict,
or quasi-delict
b. Against a party who is:
I. about to depart from the Philippines
II. with intent to defraud his creditors;
(2) Action for money or property, embezzled or fraudulently misapplied or
converted to his own use by either:
a. A public officer;
b. An officer of a corporation;
c. An attorney, factor, broker, agent, or clerk, in the course of his
employment as such; or
d. Any other person in a fiduciary capacity, or for a willful violation of
duty;
(3) Action to recover the possession of property unjustly or fraudulently taken,
detained or converted,
(a) When the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;
NOTE: The rule makes no distinction between real and personal property [Riano]
(4) Action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, OR in the performance
thereof;
NOTE: The delivery of counterfeit money or knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
(5) Action against a party who:
(b) has removed or disposed of his property, or is about to do so,
(c) with intent to defraud his creditors
(6) Action against a party who:
(a) Does not reside and is not found in the Philippines; or
(b) On whom summons may be served by publication.
NOTE: The persons on whom summons may be served by publication are:
a. Residents defendants whose identity or whose whereabouts are
unknown [Sec. 14, Rule 14]
b. Resident defendants who are temporarily out of the country [Sec. 16,
Rule 14]

2. Requisites
(1) The case must be any of those where preliminary attachment is proper
[Sec. 1, Rule 57]
(2) Applicant must file a motion, whether ex parte or with notice and

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 hearing
(3) Applicant must file an affidavit showing the required facts
(4) Applicant must post a bond executed to adverse party

A writ of preliminary attachment is too harsh a provisional remedy to be issued

based on mere abstractions of fraud. Rather, the rules require that for the writ to
issue, there must be a recitation of clear and concrete factual circumstances
manifesting that the debtor practiced fraud upon the creditor at the time of the
execution of their agreement in that said debtor had a preconceived plan or
intention not to pay the creditor. [Equitable v. Special Steel, G.R. No. 175350
(2012)]
Page 8 of28

I
3. Issuance and contents of order of attachment; affidavit and bond
When Applied For A preliminary attachment may be applied for
1) At the commencement of the action; or
2) At any time before the entry of judgment.
Who may apply It may be applied for by the plaintiff or any proper party (including
a defendant who filed a counterclaim, cross-claim, or a third party complaint).

Methods to Procure Preliminary Attachment

1. Writ may be prayed for in the complaint itself providing the
allegations warranting its issuance
2. May be issued pursuant to a separate motion for
attachment whenever the writ is not prayed for in the original
complaint

Three Stages in the Grant

(1) Court issues the order granting the application
(2) Writ of attachment issues pursuant to the order granting the
writ
(3) The writ is implemented

NOTE: For the initial two stages, it is not necessary that jurisdiction over person of
defendant be first obtained. However, once implementation of writ commences,
court must have acquired jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority to act [Cuartero v. CA, G.R. No.
102448 (1992)]

Issuance of the Order

(1) The order may be issued either:
a. Ex parte (service of summons to defendant required)
b. Or upon motion with notice and hearing
(2) The order is issued by the court in which the action is
pending or the CA, or the SC

Contents of the Order

(1) It must require the sheriff to attach so much of the property of the party
against whom it is issued as may be sufficient to satisfy applicant’s
demand

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 a. Property must be within the Philippines
b. And must not be exempt from execution
(2) It shall contain an amount for the attachment bond:
a. The amount sufficient to satisfy the applicant’s demand, or
b. The value of the property to be attached as stated by applicant

4. Rule on prior or contemporaneous service of summons

GENERAL RULE: A writ of attachment may be issued ex parte even before the
summons is served upon the defendant but a writ may not be implemented until
jurisdiction over the person is acquired by service of summons. Otherwise, the
implementation is null and void. [Riano]

Exceptions to Contemporaneous Service of Summons: [Sec. 5, Rule 57]

(1) Summons could not be served personally or by substituted service
despite diligent efforts, or
(2) Defendant is a resident of the Philippines temporarily absent
therefrom, or
(3) Defendant is a non-resident, or
(4) The action is in rem or quasi in rem.

5. Manner of attaching real and personal property; when property attached is claimed by
third person
The sheriff enforcing the writ shall attach only so much of the property in the
Philippines of the adverse party not exempt from execution as may be sufficient to
satisfy the applicant’s demand, unless
(1) Party against whom writ is issued makes a deposit with the court from
which the writ is issued, or
(2) He gives a counter-bond executed to the applicant

Attachment of specific kinds of property [Sec. 7, Rule 57]

(1) Real property, or growing crops thereon, or any interest
therein
(a) File with the Registry of Deeds:
I. A copy of the order together with a description of the property; and
II. A notice that the property is attached
(b) The registrar of deeds must index attachments in the names of the applicant,
adverse party, or person by whom the property is held or in whose name it stands
in the records
(c) If attachment is not claimed on the entire area of land, description sufficiently
accurate for identification of such shall be included in the registration
(2) Personal property capable of manual delivery
a. Sheriff Issues a corresponding receipt therefor
b. Sheriff takes it and safely keeps it in his custody
(3) Stocks or Shares, or an Interest therein, of any corporation
or company
a. Leave a copy of the writ and a notice stating that these properties are
attached in pursuance of such writ
b. Leave these documents with the president, or managing agent thereof
(4) Debts, credits, bank deposits, financial interest, royalties,
commissions and other personal property not capable of
manual delivery
a. Leave a copy of the writ and a notice that the debts owing, credits,
and other personal property are attached in pursuance of such writ

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 b. Leave these documents with:
I. The person owing such debts, or
II. Having in his possession or under his control, such credits or other personal
property, or
III. With his agent
(5) The interest of the party against whom attachment is issued
in property belonging to the estate of decedent, whether as
heir, legatee, or devisee
a. By service of a copy of the writ, and notice that said interest is
attached
b. Service is made to:
I. The executor, or administrator, or
II. Other personal representative of the decedent
c. Copy of the writ and notice:
I. Shall be filed with the clerk in which said estate is being settled, and
II. Served upon the heir, legatee, or devisee concerned Attachment of property
in custodia legis These may be attached by:
1. Filing a copy of the writ of attachment with the proper court or quasi-judicial
agency
2. Serving a notice of attachment upon the custodian of the property [Sec. 7,
Rule 57]

A previously attached property may also be subsequently attached. But the first
attachment shall have priority over subsequent attachments. [Riano]

PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON

A third person who has a claim to the property attached may avail of the following
remedies:
1. File terceria or third-party claim [Sec. 14, Rule 57] o A third-party claim may
be filed with the sheriff while he has possession of the properties levied
upon, this being the only time fixed for the purpose o The claimant makes
an affidavit of his title or right to possession, stating the grounds of such
right or title. The affidavit must be served upon the sheriff o Substantially
identical procedure as in terceria in Sec. 16, Rule 39
2. File independent action to recover property; or
3. (3) File motion for intervention o Available only before judgment is rendered

6. Discharge of attachment and the counter-bond

DISCHARGE OF ATTACHMENT AND COUNTER-BOND
After a writ of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.

Ways of Discharging Attachment

(1) Counterbond [Sec. 12]
(2) Motion for Discharge [Sec. 13]
Grounds for Discharge
(1) Debtor has posted a counterbond or has made the requisite cash
deposit [Sec. 12]
(2) Attachment was improperly or irregularly issued [Sec. 13]
a. As where there was no ground for attachment, or
b. The affidavit and/or bond filed are defective or insufficient [Sec. 3]
(3) Judgment is rendered against attaching creditor [Sec. 19]

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 (4) Attachment is excessive, but the discharge shall be limited to the
excess [Sec. 13]
(5) Property attached is exempt from execution

NOTE: There is a difference between the bond for issuance of writ and bond for
lifting the writ
(1) Bond for issuance of writ [Sec. 4] – This is for damages by reason of the
issuance of the writ
(2) Bond for lifting of writ [Sec. 5 and 12] – This is to secure the payment of
the judgment to be recovered

Only the defendant or party whose property is attached may move for its lifting. If
the attachment is proper, the discharge should be by counterbond under Sec. 12
[KO Glass v. Valenzuela, G.R. No. L-48756 (1982)]
Effect of Dissolution on Plaintiff’s Attachment Bond
(1) Dissolution of preliminary attachment upon security given,
or a showing if its irregular issuance, does not operate to
discharge the sureties on the attachment bond
(2) That bond is executed to adverse party conditioned that the
applicant will pay all the costs which may be adjudged to
adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge
that applicant was not entitled thereto [Sec. 4]
(3) Until that determination is made, as to applicant’s
entitlement to attachment, his bond must stand and cannot
be withdrawn

7. Satisfaction of judgment out of property attached

SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED [SEC. 15,
RULE 57]
Procedure
(1) Pay to judgment obligee the proceeds of sale of perishable property
(2) If there is any balance that remains due, sell property as may be
necessary to satisfy the balance if enough remains in the sheriff or those
of the clerk
(3) Collection of property of garnishee and proceeds paid to judgment oblige
without need of prior permission to file action but may be enforced in the
same action
(4) Return must be made within 10 days from receipt of writ

8. Compared with garnishment and levy on execution

Garnishment - a kind of attachment in which the plaintiff seeks to subject either
the property of the defendant in the hands of a third person called garnishee, to
his claim or the money which said third person owes the defendant;
Levy on execution - writ issued by the court after judgment by which the
property of the judgment obligor is taken into custody of the court before the sale
of the property on execution before the satisfaction of a final judgment.
D. PRELIMINARY INJUNCTION
- An order granted AT ANY STAGE of an action prior to the final judgment
requiring a person to refrain from particular act. It may also require a performance
of an act
- It may be issued against a party, court, agent or person

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1. Definitions and differences: preliminary injunction, temporary restraining order, and
status quo ante order
Injunction is a judicial writ, process, or proceeding whereby a party is ordered to
do or refrain from doing a particular act
Preliminary Injunction is an ancillary or preventive remedy where a court
requires a person, a party or even a court or tribunal either to refrain from
(prohibitory), or to perform (mandatory), particular acts during the pendency of
an action. It is only a temporary remedy.
A status quo order is in the nature of a cease and desist order. It is resorted to
when the projected proceedings in the case made the conservation of the status
quo desirable or essential, but the affected party neither sought such relief nor did
the allegations in his pleading sufficiently make out a case for a temporary
restraining order.
It does NOT direct the doing or undoing of acts but is an order to maintain the
last, actual, peaceable and uncontested state of things which preceded the
controversy.

2. Requisites
(1) There must be a verified application
(2) The applicant must establish:
(a) The existence of a clear and unmistakable right that must be
protected; that is, right in esse;
(b) A material and substantial invasion of such right; and
(c) An urgent and paramount necessity for the writ to prevent serious
damage
(3) The applicant must post a bond, unless otherwise exempted by the court
(4) As to a writ of preliminary injunction, there must be notice and hearing
RIGHT IN ESSE The applicant's right must be clear or unmistakable, that is, that
the right is actual, clear and positive especially calling for judicial protection. An
injunction will not issue to protect a right not in esse and which may never arise or
to restrain an act which does not give rise to a cause of action. [Marquez v.
Sanchez, G.R. No. 141849 (2007)]

IRREPARABLE INJURY Does not have reference to the amount of damages that
may be caused but rather to the difficulty of measuring the damages inflicted. This
includes:
(1) that degree of wrong of a repeated and continuing kind which
produce hurt, inconvenience, or damage that can be estimated only
by conjecture, and not by any accurate standard of measurement.
(2) damage where there is no standard by which their amount can be
measured with reasonable accuracy
(3) a serious charge of, or is destructive to, the property it affects,
either physically or in the character in which it has been held and
enjoined, or when the property has some peculiar quality or use, so
that its pecuniary value will not fairly recompense the owner of the
loss thereof If full compensation can be obtained, by way of
damages, equity will not apply the remedy of injunction. [Social
Security Commission v. Bayona, G.R. No. L-13555 (1962)]

3. Kinds of injunctions; kinds of temporary restraining orders

KINDS OF INJUNCTION
(1) Preliminary Preventive Injunction – Prohibits the performance of a
particular act or acts

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(2) Preliminary Mandatory Injunction – Requires the performance of a
particular act or acts. This is an extreme remedy which will be granted only on
showing that:
(a) The invasion of the right is material and substantial
(b) Right of complainant is clear and unmistakable
(c) There is an urgent and paramount necessity

GENERAL RULE: Before preliminary injunction may be granted, there must be prior
notice to person sought to be enjoined and there must be a hearing

Procedure When an application for a writ of preliminary injunction or TRO is

included in a complaint or initiatory pleading, the case, if filed in a multiple-sala,
shall proceed as follows:
(1) Verified complaint and bond is filed
(2) Determine if there is great or irreparable injury or extreme urgency,
which warrants the issuance of a TRO o If yes, go to Procedure for
Issuance of TRO
(3) In both cases, Notice shall then be served to the party sought to be
enjoined. There must be prior and contemporaneous service of summons
(exceptions also apply)

4. When writ may be issued, when writ may not be issued

When: It may be issued at any stage prior to the judgment or final order

By Whom: It may be granted by the court where the action or proceeding is

pending. If the action or proceeding is pending in the Court of Appeals or in the
Supreme Court, it may be issued by said court or any member thereof. [Sec. 2,
Rule 58]

5. Grounds for issuance of preliminary injunction

Preliminary injunction may be granted when it is established:
(1) That applicant is entitled to the relief demanded, which
consists in whole or in part in restraining commission or
continuance of an act, or in requiring the performance of an
act, either for a limited time or perpetually;
(2) That commission, continuance, or nonperformance of the act
complained of during the litigation would probably work
injustice to applicant; or
(3) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation
of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment
ineffectual

6. Grounds for objection to, or for the dissolution of injunction or restraining order
The application for injunction or restraining order may be denied:
(1) Upon a showing of its insufficiency. o Application is not verified o
Application is not supported by the grounds in Sec. 3 o Application
does not show facts entitling the applicant to the relief demanded o
Application is not supported by the required bond
(2) On other grounds upon affidavits of the party enjoined, which may

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 be opposed by the applicant also by affidavits
(3) If it appears after hearing that, although applicant is entitled to
injunction or TRO, the issuance or continuance thereof, would cause
irreparable damage to party enjoined while applicant can be fully
compensated for such damages as he may suffer. In this case, the
party enjoined shall file a bond o Amount: Fixed by

Court o Undertaking That he will pay all damages which the applicant may suffer
by denial or dissolution of the injunction or TRO
If it appears that the extent of the preliminary injunction or restraining order
granted is too great, it may be modified.

7. Duration of temporary restraining orders

Procedure for Issuance of TRO
(1) If it appears that great or irreparable injury would result to the applicant
before the matter can be heard on notice:
(a) Summary hearing on the application of the TRO within 24 hours after
sheriff’s return of service and/or records are received by the branch
selected by raffle
(b) The court may issue a TRO effective for 20 days from service on the party
sought to be enjoined Within the 20 day period: o The applicant must
show cause why injunction should not be granted o The court will
determine WON the preliminary injunction shall be granted. If granted,
the court will issue the corresponding order
(2) If the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury
(a) A TRO may be issued ex parte (after raffling of case) ordered by the
Executive judge of a multiple sala court or the presiding judge of a
single-sala court
(b) Effective for 72 hours from issuance
I. The applicant must then immediately comply with Sec. 4 as to
service of summons and documents
II. The Executive Judge shall then summon the parties to a conference
and raffle the case in their presence Within the 72-hr period o The
Presiding Judge before whom the case is pending shall conduct a
summary hearing to determine whether the TRO shall be extended
until application for preliminary injunction can be heard o In no
case shall the total period of effectivity of the TRO exceed 20 days,
including the original 72 hours

Effectivity of TRO o Effectivity is not extendible. No court shall have authority to

extend or renew the same on the ground for which it was issued o If issued by
the CA – effective for 60 days from service o If issued by SC – effective until
further orders

Upon the expiration of the non-extendible period, the TRO is automatically

terminated. No judicial declaration necessary.

8. Rule on prior or contemporaneous service of summons in relation to attachment

When an application for a writ of preliminary injunction or a temporary restraining
order is included in a complaint or any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such notice shall be

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preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint or initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.

Exceptions: The requirement of prior or contemporaneous service of summons

shall not apply: [Sec. 4, Rule 58]
(1) The summons could not be served personally or by substituted
service despite diligent efforts, or
(2) The adverse party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof

The executive judge of a multiple-sala court or the presiding judge of a single sala
court may issue ex parte a TRO effective for only 72 hours from issuance if the
matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury. However, he shall immediately comply with
the provisions of Sec. 4, Rule 38, Sec. 4 as to service of summons and the
documents to be served therewith. [Rule 38, Sec. 5]

E. RECEIVERSHIP
Receiver – A person appointed by the court in behalf of all the parties to an
action for the purpose of preserving the property involved in the suit and to
protect the rights of all the parties under the direction of the court.

1. Cases when receiver may be appointed

(1)When it appears from the verified application and other proof
that the applicant has an interest in the property or fund which
is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or
materially injured unless a receiver be appointed to administer
and preserve it;
(2)When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger of
being wasted or dissipated or materially injured, and that its
value is probably insufficient to discharge the mortgage debt,
or that the parties have so stipulated in the contract of
mortgage;
(3)After judgment, to preserve the property during the pendency
of an appeal, or to dispose of it according to the judgment, or
to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to carry
the judgment into effect;
(4)Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in
litigation.

Specific Cases
(1)If a spouse without just cause abandons the other or fails to
comply with his/her obligations to the family, the aggrieved
spouse may petition the court for receivership. [Art. 101,
Family Code]
(2)The court may appoint a receiver of the property of the

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 judgment obligor; and it may also forbid a transfer or other
disposition of, or any interference with, the property of the
judgment obligor not exempt from execution. [Sec. 41, Rule
39]
(3)After the perfection of an appeal, the trial court retains
jurisdiction to appoint a receiver of the property under
litigation since this matter does not touch upon the subject of
the appeal. [Sec. 9, Rule 41; Acuña v. Caluag (1957)]
(4)After final judgment, a receiver may be appointed as an aid to
the execution of judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5)Appointment of a receiver over the property in custodia legis
may be allowed when it is justified by special circumstances, as
when it is reasonably necessary to secure and protect the
rights of the real owner. [Dolar v. Sundiam (1971)]

2. Requisites
Procedure
(1)Verified application filed by the party requesting for the
appointment of the receiver;
(2)Applicant must have an interest in the property or funds
subject of the action;
(3)Applicant must show that the property or funds is in danger of
being lost, wasted, or dissipated;
(4)Application must be with notice and must be set for hearing;
(5)Before appointing a receiver, the court shall require applicant
to post a bond in favor of the adverse party.
(6)Before entering upon his duties, the receiver must be sworn to
perform his duties faithfully and shall file a bond.

Who Appoints Receiver

(1) Court where the action is pending
(2) CA
(3) SC
(4) During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be filed in and decided by
the court of origin. [Sec. 1, Rule 59]

Receivership may be denied or lifted

(1) If the appointment was sought or granted without sufficient cause [Sec.
3]
(2) Adverse party files a sufficient bond to answer for damages [Sec. 3]
(3) Bond posted by applicant for grant of receivership is insufficient [Sec. 5]
(4) Bond of the receiver is insufficient [Sec. 5]

Appointment is not proper where the rights of the parties, one of whom is in
possession of the property, are still to be determined by the trial court. [Vivares v.
Reyes, G.R. No. 155408 (2008)]

3. Requirements before issuance of an order

Procedure
(1) Verified application filed by the party requesting for the appointment of
the receiver;

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 (2) Applicant must have an interest in the property or funds subject of the
action;
(3) Applicant must show that the property or funds is in danger of being lost,
wasted, or dissipated;
(4) Application must be with notice and must be set for hearing;
(5) Before appointing a receiver, the court shall require applicant to post a
bond in favor of the adverse party.
(6) Before entering upon his duties, the receiver must be sworn to perform
his duties faithfully and shall file a bond.

4. General Powers of a receiver

Powers of a Receiver
(1) Bring and defend in such capacity actions in his own name
with leave of court
(2) Take and keep possession of the property in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver or to the fund,
property, estate, person, or corporation of which he is the
receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that shall remain
among the persons legally entitled to receive the same’
(9) Generally, to do such acts respecting the property as the
court may authorize
(10) Invest funds in his hands, only by order of the court upon
the written consent of all the parties. [Sec. 6, Rule 59]

5. Two kinds of bonds

APPLICANT’S BOND
Applicant must file a bond executed to the party against whom the application is
presented
 Amount: to be fixed by the court
 Undertaking: applicant will pay such party all damages he may sustain by
reason of the appointment, in case the applicant shall have procured such
without sufficient cause

The court may require additional bond after appointment in the exercise of its
discretion as further security for such damages [Sec. 2, Rule 59]

RECEIVER’S BOND
As a precondition before entering into his duties, receiver must file a bond.
 Executed to the person against whom the application is presented o Amount:
in such sum as the court may direct.
 Undertaking: To the effect that he will faithfully discharge his duties and
obey the orders of the court [Sec. 4, Rule 59]

6. Termination of receivership
Ground:
The necessity for a receiver no longer exists

Procedure

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 (1) The court shall determine that the necessity for a receiver
no longer exists o Motu proprio, or on motion of either party
(2) Due notice shall be given to all interested parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts of the receiver
(5) The court directs delivery of the funds and other property in
his possession to the person adjudged to be entitled to
receive them
(6) The court will then order the discharge of the receiver

Effect
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver entitled to reasonable compensation to be taxed as
costs against defeated party

F. REPLEVIN
Replevin is the provisional remedy seeking for the possession of the property prior
to the determination of the main action for replevin. Replevin may also be a main
action with the ultimate goal of recovering personal property capable of manual
delivery wrongfully detained by a person. In this sense, it is a suit in itself

1. When may writ be issued

WHEN WRIT MAY BE ISSUED
The provisional remedy of replevin is available where the principal purpose of the
action is to recover the possession of personal property. When Applied For A writ
of replevin must be applied for:
(1) At the commencement of the action, or
(2) At any time before defendant files his answer

NOTE: There can be no replevin before the appellate courts Who May Avail
(1) Plaintiff – where the complaint prays for recovery of possession of personal
property
(2) Defendant – where a counterclaim was set out in the answer for recovery of
personal property
It is available to any other party asserting affirmative allegations praying for the
recovery of personal property unjustly detained.

Does the applicant have to be the holder of the legal title to the property?

GENERAL RULE: No. It is in the nature of a possessory action. It is sufficient that

at the time he applied for a writ of replevin he is found to be entitled to a
possession thereof. Primarily, the action of replevin is possessory in character and
determines nothing more than the right of possession. However, when the title to
the property is distinctly put in issue by the defendant's plea, the question of
ownership may be resolved in the same proceeding because a replevin action is
sufficiently flexible to authorize a settlement of all equities between the parties,
arising from or growing out of the main controversy. [Chiao Liong v. CA, G.R. No.
106251 (1993)]

2. Requisites
(1) Applicant is owner of the property claimed or is entitled to

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 possession
(2) Property is wrongfully detained by the adverse party
(3) Property is not distrained or taken for tax assessment or
fine pursuant to law, or seized (if seized, that the property is
exempt)
(4) Principal purpose of the action is to recover possession of
personal property

Procedure [Secs. 2-3, Rule 60]

(1) An application is filed at the commencement of the action or at any time
before answer of defendant
(2) Application must contain an affidavit
(3) Applicant must file a bond
(4) Approval of the bond by the court
(5) Court shall then issue an order and the writ of replevin:
(a) It must describe the personal property alleged to be wrongfully detained
(b) Requiring the sheriff to take such property into his custody

NOTE: The writ of replevin may be served anywhere in the Philippines.

3. Affidavit and bond; redelivery bond

Contents of the Affidavit The affidavit shall:
(1) Particularly describe the property
(2) State that the applicant is:
(a) the owner of the property claimed; or
(b) entitled to possession
(3) State that the property is wrongfully detained by adverse party, allege the
cause of detention according to his best knowledge, information, belief
(4) State either
(a) That the property has not been:
(i) Distrained,
(ii) Taken for a tax assessment,
(iii) Taken as a fine pursuant to law,
(iv) Seized under a writ of execution or preliminary attachment, or
(v) otherwise under custodia legis
(b) That, if the property is so taken, it is exempt from such seizure or
custody.
(5) State the actual value of the property subject of replevin and not just its
probable value.

Applicant’s Bond
(1) Executed to the adverse party
(2) Amount is DOUBLE the value of the property stated in the affidavit
(3) Conditions of the Bond:
(a) The return to of property to adverse party, if such return be adjudged,
and
(b) The payment to adverse party of such sum as he may recover from the
applicant in the action

Return of Property[Sec. 5]
If the adverse party does not object to the sufficiency of the bond, he may require
the return of the property When: At any time before delivery to applicant How:
By filing a redelivery bond

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Redelivery Bond This is executed to the applicant and filed where the action is
pending
 Amount: double the value of the property as stated in the affidavit of the
applicant
 Undertaking:
(a) The delivery thereof to the applicant, if such delivery be adjudged, and
(b) The payment of such sum to him as may be recovered against the
adverse party

4. Sheriffs duty in the implementation of the writ; when property is claimed by third party
SHERIFF’S DUTY IN IMPLEMENTATION
Duties of the Sheriff [Sec. 4, Rule 60]
(1) Serve a copy of the order, together with the copies of the application, the
affidavit, and bond to the adverse party
(2) Take the property:
(a) If it be in the possession of the adverse party or his agent – Take
the property into custody
(b) If property is concealed in a building or enclosure:
(i) Demand delivery of the property
(ii) If not delivered, cause the building or enclosure to be broken open and then
take the property into possession
(3) After taking possession:
(a) Keep the property in a secure place
(b) He shall be responsible for delivery to party entitled

Unlike a preliminary attachment and preliminary injunction, the rule on prior or

contemporaneous jurisdiction is not provided for in replevin. However, the rule
requires that upon such order, the sheriff must serve a copy on the adverse party
together with the required documents. A sheriff’s prerogative does not give him
the liberty to determine who among the parties is entitled to possession. When a
writ is placed in the hands of a sheriff, it is his duty to proceed with reasonable
celerity and promptness to execute it according to its mandate.

Disposition of Property by Sheriff The sheriff shall retain the property for 5 days.
Within such period, the adverse party:
(1) May object to the sufficiency of the applicant’s bond or surety; or
(2) May file a redelivery bond, if he does not object to the sufficiency of the
bond

The adverse party is entitled to the return of the property taken under writ of
replevin, if:
(1) He seasonably posts a redelivery bond
(2) The applicant’s bond is found to be insufficient or defective and is not
replaced with a proper bond
(3) The property is not delivered to the plaintiff for any reason

WHEN PROPERTY CLAIMED BY THIRD PARTY

Procedure Third party claiming the property must:
(1) Make an affidavit of his title to the property, stating his grounds;
(2) Serve such affidavit upon the sheriff while the latter has possession of the
property; and

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 (3) Serve a copy upon the applicant.

Effect The sheriff shall not be bound to keep property under replevin or deliver
property to the applicant, unless the applicant files a bond approved by the court
to indemnify the third person, in an amount not less than the value stated in the
affidavit of the applicant. No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the action is filed within 120
days from filing of the bond.

NOTE: The procedure in Sec. 7, Rule 60 is similar to that in third-party claims in

execution [Sec. 16, Rule 39] and in attachment (Sec. 14, Rule 57].

Difference in Service of Affidavits:

o Sec. 14, Rule 57 – affidavit is served upon the sheriff while he has
possession of the attached property
o Sec. 7, Rule 60 – affidavit is served within 5 days in which sheriff has
possession (in connection with Sec. 6)

G. PROVISIONAL REMEDIES AND INTERIM RELIEFS UNDER SPECIAL

LAWS AND RULES

1. Provisional remedies of the Family Courts

2. Human Security Act

The Human Security Act of 2007, officially designated as Republic Act No.
9372, was a Philippine law that took effect on July 20, 2007. This law is one of the
most primary anti-terrorism law that brings the Philippines in line with its
Southeast Asian neighbors battling Islamist militants. It is aimed at tackling
militants in the southern Philippines.
The law defines terrorism a crime of "causing” widespread and extraordinary fear
and panic among the populace" and allows authorities to arrest terror suspects
without warrants and temporarily detain them without charges for a maximum of
three days. Under the law, detained terrorists are entitled to see a lawyer, a
priest, a doctor, or family members.

3. Anti-Violence against Women and Children Act

Violence Against Women is any act of gender-based violence that results or is
likely to result in physical, sexual or psychological harm or suffering to women
including threats or such acts, coercion or arbitrary deprivation of liberty whether
occurring in public or private life. Gender-based violence is any violence inflicted
on women because of their sex.

VAW in the family or domestic violence is “violence that occurs within the private
sphere, generally between individuals who are related through intimacy, blood or
law.” It may take the form of physical violence (hitting with the fist, slapping,
kicking different parts of the body, stabbing with a knife, etc) or psychological
and emotional violence (intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse, marital infidelity,
etc.) or sexual violence (rape, sexual harassment, acts of lasciviousness,
treating a woman or child as a sex object, making demeaning and sexually

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suggestive remarks, physically attacking the sexual parts of the victim’s body,
forcing him/her to watch obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films thereof, forcing the wife
and mistress/lover to live in the conjugal home or sleep together in the same
room with the abuser, etc) or economic abuse (withdrawal of financial support or
preventing the victim from engaging in any legitimate profession, occupation,
business or activity, deprivation or threat of deprivation of financial resources and
the right to use and enjoyment of the conjugal, community or property owned in
common, destroying household property; and controlling the victim’s own money
or properties or solely controlling the conjugal money or properties.

VAW in the community often takes one or more of the following

forms: physical violence such as physical chastisement, trafficking for both the
sex industry and the service industry, forced prostitution, battering by employers
and murder; sexual violence such as rape, sexual harassment and sexual
intimidation, and psychological violence such as intimidation, sanction or
isolation by community/cultural norms based on attitudes of gender
discrimination.

State Violence Against Women consists of political violence such as tolerance

of gender-based violence, trafficking, domestic violence, sexual abuse, forced
pregnancy and forced sterilization, custodial violence such as military and police
rape, torture, and suppression of the political acts of the women’s movement,
abuse of women in refugee and relocation camps and in prisons;
and institutional violence such as enforcement of discriminatory laws and
regulations, policies and programs such as abortion policies, reproduction policies
and matrilineal laws.

4. Anti-Money Laundering Act

AN ACT FURTHER STRENGTHENING THE ANTI-MONEY LAUNDERING LAW,
AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9160, OTHERWISE KNOWN AS
THE “ANTI-MONEY LAUNDERING ACT OF 2001”, AS AMENDED

The Anti‐Money Laundering Council (AMLC),created under Republic Act No. 9160,
otherwise known as the Anti‐Money Laundering Act of 2001 (AMLA), is mandated
to investigate money laundering and other violations of the AMLA in order to
protect the integrity and confidentiality of bank accounts and to ensure that the
Philippines shall not be used as money laundering site for the proceeds of any
unlawful activity. The AMLC shall extend cooperation in transnational investigation
and prosecution of persons involved in money laundering activities wherever
committed

5. Financial Rehabilitation and Insolvency Act

Republic Act No. 10142, or the Financial Rehabilitation and Insolvency Act (FRIA),
was enacted to “encourage debtors, both juridical and natural persons, and their
creditors to collectively and realistically resolve and adjust competing claims and
property rights” and to “ensure a timely, fair, transparent, effective and efficient
rehabilitation or liquidation of debtors.” It allows both insolvent juridical and
natural persons, and their creditors, in a summary and non-adversarial manner, to
restructure liabilities through court-supervised or pre-negotiated rehabilitation,

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out-of-court informal restructuring agreements or rehabilitation plans, and
suspension of payments. The FRIA also expressly adopted the UNCITRAL Model
Law on Cross-Border Insolvency, which allows for the recognition of foreign
insolvency proceedings, subject to Section 136 thereof (on the liquidation of
securities market participants), and the rules of procedure promulgated by the
Supreme Court. Insolvent banks, insurance companies, and pre-need companies,
however, are covered by R.A. No. 7653 (The New Central Bank Act), P.D. 1460
(Insurance Code), and R.A. 9829 (Pre-Need Code), with the FRIA only applying
suppletorily.
6. Precautionary Hold Departure Orders
The Supreme Court issued A.M. 18-07-05 SC on August 7, 2018, that laid down a
new rule that would prevent people suspected of committing a crime from going
out of the country.  Voting 11-1, the SC (under then-Acting Chief Justice Antonio
T. Carpio) approved The Rule on Precautionary Hold Departure Order (PHDO), OCA
Circular 194-2018, in place of a watch list order (WLO) by the Department of
Justice (DOJ). Associate Justice Marvie Leonen was the lone dissenter.

The SC issued the new rule after it struck down the power of the DOJ to prevent
the flights of respondents facing criminal complaints under DOJ Circular 41. The
new rule of the SC strips the DOJ of such powers.  It is now the investigating
prosecutor who can file with the appropriate court for a PHDO.

V. SPECIAL CIVIL ACTIONS

A special civil action whereby a person who has property in his possession w/o
claiming a right therein or an obligaiton to render  in whole or part an interest
which is not disputed by the claimant,comes to court and asks that the persons
who considers themselves entitled that they may demand compliance w/
obligation  be required to litigate among themselves  to determine who is entitled
to the same

A. NATURE OF SPECIAL CIVIL ACTIONS

NATURE
Special civil actions are civil actions primarily governed by special rules, and
secondarily by rules for ordinary civil actions. [SeeSec. 3, Rule 1] Since a civil
action in general is one by which a party sues another for the enforcement of a
right, or the prevention or redress of a wrong, a special civil action is generally
brought or filed for the same purpose. [Riano]

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I
B. DISTINGUISH: ORDINARY CIVIL ACTIONS AND SPECIAL CIVIL ACTIONS
A special civil action is governed by the rules of ordinary civil actions but there are
certain rules that are applicable only to special civil actions.
ORDINARY CIVIL ACTION SPECIAL CIVIL ACTION
Also governed by ordinary rules but
Governed by ordinary rules subject to specific rules prescribed [Sec.
3, Rule 1]

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Must be based on a cause of action The concept of cause of action in an
which means that the defendant has ordinary action does not always fit in a
violated plaintiff’s rights special civil action (e.g. interpleader)
Venue is determined by either the Venue is generally governed by the
residences of the parties when action is general rules on venue, except as
personal or by the location of the otherwise indicated by special rules.
property when the action is real. [Secs. [Regalado]
12, Rule 4]
Initiated by complaint Some initiated by complaint, some by
petition.
It may be filed initially either in the MTC Some special civil actions can only be
or the RTC filed in the MTC (e.g. forcible entry and
unlawful detainer) while there are some
which could not be commenced in the
MTC (e.g. certiorari)
The Special Civil Actions (SCA) under the Rules of Court
(1) SCAs initiated by complaints:
(a) Interpleader
(b) Foreclosure of Real Estate Mortgage
(c) Forcible Entry and Unlawful Detainer
(d) Partition
(e) Expropriation
(2) SCAs initiated by petitions:
(a) Declaratory Relief
(b) Review or Adjudication of COMELEC/COA Decisions
(c) Certiorari
(d) Prohibition
(e) Mandamus
(f) Quo Warranto
(g) Contempt

C. JURISDICTION AND VENUE

Jurisdiction over special civil actions is determined by the Constitution [Sec. 5, Art.
VIII, for the Supreme Court] and statutes [e.g. BPBlg 129).
Venue is a procedural matter and generally set by the Rules of Court. Hence, the
venue of civil actions is determined by the general rules on venue, unless
otherwise subject to special rules for special civil actions (e.g. quo warranto,
seeSec. 7, Rule 66).

Jurisdiction of inferior courts Special civil actions that can be filed in or are within
the jurisdiction of the inferior courts (i.e. MTC, MeTC, MCTC):
(1) Interpleader - Provided that amount involved is within its jurisdiction
(2) Ejectment suits – Original and exclusive
(3) Contempt

Application of hierarchy of courts In the absence of special reasons, the SC will

decline to exercise original jurisdiction in certiorari, prohibition, and mandamus
since it is not a trier of facts and, that is a function which can be better done by
the trial courts. The same rule applies for quo warranto wherein the SC has
concurrent jurisdiction with the RTC. [Regalado, citing Fisher v. Yangco Steamship
Co. (1915) and Veraguth v. Isabela Sugar Co. (1932)]

D. INTERPLEADER
- A person who has property in his possession or an obligation to render wholly or

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partially without claiming any right therein or an interest which in whole or in part
is not disputed by the claimants comes to court and asks that the persons who
consider themselves entitled to demand compliance with the obligation be required
to litigate among themselves in order to determine finally who is entitled to the
same
- Summons shall be served between the conflicting claimants
- Real property may be subject

1. Requisites for interpleader

(1) The plaintiff clams no interest in the subject matter or his claim thereto is not
disputed
(2) The parties to be interpleaded must make effective claims
(3) There must be at least two conflicting claimants with adverse or conflicting
interests to a property in custody or possession of the plaintiff; and
(4) The subject matter must be one and the same. [see Lim v. Continental Dev’t
Corp., G.R. No. L-41818(1976)] NOTE: Interpleader applies regardless of nature of
subject matter. [Wack Wack Golf & Country Club v. Lee Won, G.R. No.
L23851(1976), interpreting Rules of Court (1964), Sec.1, Rule 63, which was
virtually unchanged by the now Sec. 1, Rule 62]

NOTE: Interpleader cannot be availed of to resolve the issue of breach of

undertakings made by defendants, which should be resolved in an ordinary action
for specific performance or other relief [Beltran v. PHHC, G.R. No. L-
25138(1969)].

2. When to file
When to File:
GENERAL RULE:
Within a reasonable time. An action for interpleader should be filed within a
reasonable time after a dispute has arisen without waiting to be sued by either of
the contending parties. Otherwise, it may be barred by laches. [Wack Wack Golf &
Country Club v. Lee Won, G.R. No. L-23851(1976)] Exception: Where the
stakeholder acts with reasonable diligence in view of environmental circumstances,
the remedy is not barred. [Wack Wack Golf & Country Club v. Lee Won, G.R. No.
L-23851(1976)]

Who Files: A complaint for interpleader is filed by the person against whom the
conflicting claims are made.
Jurisdiction and Venue: General rules on jurisdiction and venue apply as in
ordinary civil actions. Hence, first-level courts have jurisdiction where the amount
is within the limit. [see Makati Dev’t Corp. v. Tanjuatco, G.R. No. L-26443(1969)]

PROCEDURE
(1) A complaint is filed.
(2) Upon filing of complaint, the court issues an Order [Sec. 2]
requiring conflicting claimants to interplead with one another.
(3) Summons shall then be served upon the conflicting claimants with a
copy of the complaint and the order to interplead [Sec. 3].
(4) Each claimant has a 15-day period to file any of the following [Sec.
5]:
(a) Answer, which must also be served upon the other
conflicting claimants.
(b) Motion to dismiss [Sec. 4].

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If filed, period to answer is
o Grounds:
(1) Same as in Rule 16, plus
(2) Impropriety of interpleader action o If motion is denied, movant may file his
answer within the remaining period but it shall not be less than 5 days in any
event from notice of denial.
(5) From service of Answer, the claimants may file their Reply serving
copies to all parties. Parties may file counterclaims, cross-claims,
third-party complaints, responsive pleadings Effect of Failure to
Answer: Default.
(a) The claimant may be declared, on motion, in default
(b) Unlike ordinary default, default in interpleader allows the court to
render judgment barring him from any claim in respect to the
subject matter
(6) Pre-trial is conducted.
(7) After all pleadings have been fled, the court shall then determine
the respective rights and adjudicate their several claims [Sec. 6]
NOTE: The parties in an interpleader action may file counterclaims,
cross claims, third party complaints and responsive pleadings
[Arreza v. Diaz, G.R. 133113(2001)]

3. Dismissal

E. DECLARATORY RELIEFS AND SIMILAR REMEDIES

Nature
Subject matter Deed, will, contract, or other written instrument, statute, executive
order, or regulation, or ordinance The enumeration of the subject matter is
exclusive. Hence, an action not based on any of the enumerated subject matters
cannot be the proper subject of declaratory relief [Mangahas v. Paredes, G.R. No.
157866 (2007)]

Issue The validity or construction of the subject matter. This is the only question
that may be raised in declaratory relief. [Atlas Consolidated Mining & Dev’t Corp.
v. CA, G.R. No. L-54305 (1990)]

Relief Declaration of the petitioner’s rights and duties

Purpose:
(1) To secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, contract, etc. for their guidance in its enforcement
or compliance and not to settle issues arising from its alleged breach. [Tambunting
v. Sumabat and Baello, G.R. No. 144101 (2005)]
(2) To relieve the litigants of the common law rule that no declaration of rights
may be judicially adjudged unless a right has been violated and for the violation of
which relief may be granted.

Characteristics The concept of a cause of action does not strictly apply to

declaratory relief since this SCA presupposes that there has been no breach or
violation of the instruments involved. However, a breach or violation must be
impending, imminent, or at least threatened. [Velarde v. Social Justice Society,
G.R. No. 159357(2004)]
Hence, unlike other judgments, judgment in an action for declaratory relief does

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not essentially entail any execution process. [Regalado]
1. Who may file action
(1) Any person interested under a deed, will, contract or other written instrument,
before abreach thereof.
(2) Any person whose rights are affected by a statute, executive order or
regulation, or ordinance, or any other governmental regulation, before a violation
thereof.

PARTIES
(1) All persons who have or claim any interest which would be affected
by the declaration [Sec. 2, Rule 63]
(2) If action involves the validity of a statute/executive
order/regulation/other governmental regulation, the Solicitor
General shall be notified. [Sec. 3, Rule 63] (3) If action involves the
validity of a local government ordinance, the prosecutor/attorney of
the LGU involved shall be notified. [Sec. 4, Rule 63]
Non-joinder of interested persons is not a jurisdictional defect; but persons not
joined shall not be prejudiced in their interests unless otherwise provided by the
Rules. [Baguio Citizens Action v. City Council of Baguio, G.R. No. L-27247 (1983)]

WHERE TO FILE
Jurisdiction: Exclusive and original jurisdiction is with the RTC (BP Blg. 129, sec.
19, i.e. incapable of pecuniary estimation). SC has no original jurisdiction over
declaratory relief petitions, but has appellate jurisdiction over them. [Liga ng mga
Barangay National v. City Mayor of Manila, G.R. No. 154599(2004)]

Venue: General rule on venue applies.

2. Requisites of action for declaratory relief
(1) Subject matter of controversy must be a deed, will, contract, or
other written instrument, statute, executive order or regulation, or
ordinance. The enumeration is exclusive. [Vda. de Aviles v. CA,
G.R. No. 95748(1996)]
(2) Actual justiciable controversy or “ripening seeds” of one between
person whose interests are adverse
(3) No breach of documents in question
(4) Doubtful as to the terms and validity of the document and require
judicial construction
(5) Issue is ripe for judicial determination, as where all administrative
remedies have been exhausted
(6) Adequate relief is not available through other means or other forms
of action or proceeding [Regalado]

A justiciable controversy refers to an existing case or controversy that is

appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory. [Velarde v. Social Justice Society, G.R. No. 159357(2004)]
3. When court may refuse to make judicial declaration
Court has discretion to refuse,motu proprio or on motion, to grant Declaratory
Relief when:
(1) The decision will not terminate the controversy or uncertainty
giving rise to the action; or
(2) The declaration or constitution is not necessary and proper under
the circumstances. [Sec. 5, Rule 63]

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4. Conversion to ordinary action
When proper If before the final termination of the case, a breach or violation of
the instrument or status occurs. Then, petition is converted into an ordinary
action.

Effect of Conversion Parties shall be allowed to file such pleadings as may be

necessary or proper. NOTE: If there has been breach or violation BEFORE filing of
the petition, declaratory relief cannot be availed of.

5. Proceedings considered as similar remedies

Actions similar to Declaratory Relief and may be brought under Rule 63: (may be
filed with the MTC)
(1) Action for reformation [See Art. 1359-1369, Civil Code]
(2) Action to quiet title or remove cloud [See Art. 476-481,
Civil Code]
(3) Action to consolidate ownership [See Art. 1607, Civil Code]
These remedies are considered similar to declaratory relief because they also
result in the adjudication of the legal rights of the litigants often without the need
of execution to carry the judgment into effect. [Malana v. Tappa, G.R. No.
181303(2009)]

However, distinction must be made between:

(1) Cases similar to declaratory relief, where the court is
BOUND to render judgment; and
(2) Actions for declaratory relief, where the court MAY REFUSE
to exercise the power to declare rights and to construe
instruments. [Sec. 5, Rule 63]
a. Reformation of an instrument

b. Consolidation of ownership

c. Quieting of title to real property

F. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTION OF THE

COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT
SCOPE [Sec. 1, Rule 64]
Applicable only to judgments and final orders of the COMELEC and COA[Sec. 1,
Rule 64]
This new rule is based on the provisions of CONST. art. IX-A, sec. 7, which states
that “[u]nless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on
certiorari within thirty days from receipt of a copy thereof.”
Hence, judgments/orders of the Civil Service Commission are now reviewable by
the CA under Rule 43, eliminating recourse to the SC. [RA 7902; SC Revised
Administrative Circular No. 1-95]
1. Distinctions in the application of Rule 65 to judgments of the Commission on
Elections and Commission on Audit and the application of Rule 65 to other tribunals,
persons and officers
RULE 64 RULE 65
Directed only to the judgments, final Directed to any tribunal, board, or
orders or resolutions of COMELEC and officer exercising judicial or quasijudicial
COA functions

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Filed within 30 days from notice of the Filed within 60 days from notice of the
judgment judgment
Fresh period rule does not apply. Rule Fresh period rule applies
64, sec. 3 (supra) is applicable.

G. CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI PROHIBITION MANDAMUS
Directed against an entity Directed against an entity Directed against an entity
or person exercising or person exercising or person exercising
judicial or quasijudicial judicial, quasijudicial, or ministerial functions
functions ministerial functions
Entity or person is alleged to have acted: Entity or person is alleged
(1) Without jurisdiction to have:
(2) In excess of jurisdiction; or (1) Neglected a
(3) With grave abuse of discretion amounting to lackministerial duty; or
or excess of jurisdiction (2) Excluded another from
a right or office
PURPOSE:
PURPOSE To annul or PURPOSE: To have For respondent to:
nullify a proceeding respondent desist from (1) do the act required,
further proceeding and
(2) pay damages
Covers discretionary acts Covers discretionary and Covers ministerial acts
ministerial acts
Corrective remedy: Negative and preventive May be affirmative,
To correct usurpation of remedy To restrain or positive, or negative
jurisdiction prevent the said
usurpation

1. Definitions and distinctions

DEFINITIONS AND DISTINCTIONS
Certiorari is a writ emanating from a superior court directed against an inferior
court, tribunal, or officer exercising judicial or quasi-judicial functions, the purpose
of which is to correct errors of jurisdiction—i.e. without or in excess of jurisdiction,
or with grave abuse of discretion amounting to the same. [Sec. 1, Rule 65]

Prohibition is a writ issued by a superior court and directed against an inferior

court, board, officer or other person whether exercising judicial, quasi-judicial, or
ministerial functions for the purpose of preventing or restraining the latter from
usurping jurisdiction with which it is not legally vested. [Sec. 2, Rule 65]

Mandamus is a writ issued in the name of the State, to an inferior tribunal,

corporation, board, or person, commanding the performance of an act which the
law enjoins
as a duty resulting from an office, trust, or station. [Sec. 3, Rule 65]

2. Requisites
CERTIORARI
(1) Respondent is exercising judicial or quasijudicial function
(2) Respondent acted without or in excess of its jurisdiction or acted
with grave abuse of discretion amounting to lack of jurisdiction; and
(3) There must be no appeal or other plain, speedy, and adequate
remedy [Barbers v. COMELEC, G.R. No. 165691(2005)]

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PROHIBITION
(1) Respondent is exercising judicial, quasijudicial, or ministerial functions
(2) Respondent acted without or in excess of its jurisdiction or acted with
grave abuse of discretion amounting to lack of jurisdiction; and
(3) There must be no appeal or other plain, speedy, and adequate remedy
[Barbers v. COMELEC, G.R. No. 165691(2005)]
MANDAMUS
(1) There must be a well-defined, clear legal right or duty. [Valmonte v.
Belmonte, G.R. No.74930 (1989)] o The duty must be enjoined by law;
hence, a contractual duty cannot be enforced by mandamus. [Province of
Pangasinan v. Reparations Commission, G.R. No. L-27448(1977)]
(2) Respondent must be exercising a ministerial duty. [Roble Arrastre, Inc. v.
Villaflor, G.R. No. 128509(2006)] o A duty which is absolute and
imperative and involves merely its execution
 However, mandamus “will lie to compel the discharge of the discretionary
duty itself but not to control the discretion to be exercised. In other words,
mandamus can issue to require action only but not specific action.” [Assoc.
of Small Landowners in the Phils., Inc. v. Sec. of Agrarian Reform, G.R. No.
78742(1989)]
(3) The duty to be performed must be existing.
 A correlative right will be denied if not performed by the respondents.
(4) There is no other plain, speedy, and adequate remedy in the ordinary
course of law.

3. When petition for certiorari, prohibition and mandamus is proper

NOTE:The common requisite among certiorari, prohibition, and mandamus is that
there is no other plain, speedy, or adequate remedy in the ordinary course of law.

WHEN PETITION FOR CERTIORARI IS PROPER Only to correct errors of jurisdiction,

not errors of judgment. Questions of fact cannot be raised in an original action for
certiorari. Only established or admitted facts may be considered. [Suarez v. NLRC,
G.R. No. 124723(1998)] GENERAL RULE: Where appeal is available, certiorari will
not lie. [Jose v. Zulueta, G.R. No. L-16598(1961)]
EXCEPTIONS:
(1) Where the appeal does not constitute a speedy and adequate
remedy
(2) Where orders were also issued either in excess or without
jurisdiction
(3) For certain special considerations, as public welfare or public policy
(4) Where, in criminal actions, the court rejects the rebuttal evidence
for the prosecution as, in case of acquittal, there could be no
remedy
(5) Where the order is a patent nullity
(6) Where the decision in the certiorari case will avoid future litigations
[Villarica Pawnshop v. Gernale, G.R. No. 163344(2009)

WHEN PETITION FOR PROHIBITION IS PROPER

Prohibition is a preventive remedy. However, to prevent the respondent from
performing the act sought to be prevented during the pendency of the proceedings
for the writ, the petitioner should obtain a restraining order and/or writ of
preliminary injuction. [REGALADO]
The office of prohibition is not to correct errors of judgment but to prevent or
restrain usurpation by inferior tribunals and to compel them to observe the

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limitation of their jurisdictions. [HERRERA]

GENERAL RULE: Prohibition does NOT ordinarily lie to restrain an act which is
already fait accompli.

EXCEPTION: Writ of prohibition will lie to prevent the unlawful creation of a new
province by those in the corridors of power who could avoid judicial intervention
and review by merely speedily and stealthily completing the commission of such
illegality [Tan v. COMELEC, G.R. No. 73155(1986)]

WHEN PETITION FOR MANDAMUS PROPER

The purpose of mandamus is to compel the performance, when refused, of a
ministerial duty, this being its main objective. A writ of mandamus will not issue to
control the exercise of official discretion or judgment, or to alter or review the
action taken in the proper exercise of the discretion of judgment, for the writ
cannot be used as a writ of error or other mode of direct review. However, in
extreme situations generally in criminal cases, mandamus lies to compel the
performance of the fiscal of discretionary functions where his actuations are
tantamount to a wilful refusal to perform a required duty. [REGALADO]

Grounds for Mandamus:

(1) When any tribunal, corporation, board, officer or person,
UNLAWFULLY NEGLECTS the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station.
(2) When any tribunal, corporation, board, officer, or person,
UNLAWFULLY EXCLUDES another from the due and enjoyment of a
right or office to which the other is entitled. [Sec. 3, Rule 65]

Mandamus is the proper remedy when the respondent unlawfully excludes the
petitioner from an office to which the latter is entitled without usurping, intruding
into or unlawfully holding the office. On the other hand, if the respondent claims
any right to the office and usurps, intrudes into or unlawfully holds it against the
petitioner, quo warranto is the proper remedy [FERIA]

4. Injunctive relief
INDEPENDENT ACTION
An original action for Certiorari, Prohibition, or Mandamus is an independent
action, and as such:
(1) Does not interrupt the course of the principal action;
(2) Does not affect the running of the reglementary periods involved in
the proceedings;
(3) Does not stay the execution of judgment unless a TRO or writ of
preliminary injunction has been issued. [Sec. 7, Rule 65]

INJUNCTIVE RELIEF
GENERAL RULE: The mere elevation of an interlocutory matter through a petition
for certiorari does not by itself merit a suspension of the proceedings before a
public respondent, applying Sec. 7, Rule 65. The public respondent shall proceed
with the principal case WITHIN 10 DAYS from filing of the petition for certiorari
with the higher court, absent a TRO or preliminary injunction, or upon its
expiration. Failure may be a ground for an administrative charge [AM No. 07-7-
12SC]
EXCEPTIONS:

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(1) When a writ of preliminary injunction or TRO is issued: The burden is on
petitioner to show that there are meritorious grounds, i.e. there is an urgent
necessity in order to prevent serious damage; or
(2) Judicial courtesy:Even if there is no injunction issued, lower court should defer
to higher court where there is a strong probability that the issues before the
higher court would be rendered “moot and moribund as a result of the
continuation of the proceedings in the” court of origin. [Republic v.
Sandiganbayan, G.R. No. 166859(2006)]

5. Distinguish: certiorari, appeal by certiorari, and Article VIII, Section 1 of the

Constitution
CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL
(Rule 45) ACTION (Rule 65)
A continuation of the appellate process An original action and not a mode of
over the original case appeal
May be directed against an interlocutory
Seeks to review final judgment or final order of the court or where no appeal or
orders plain or speedy remedy is available in
the ordinary course of law
Raises questions of jurisdiction, i.e.
whether a tribunal, board or officer
exercising judicial or quasi-judicial
Raises only questions of law functions has acted without jurisdiction
or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction
Filed not later than 60 days from notice
Filed within 15 days from notice of of judgment, order, or resolution sought
judgment or final order appealed from, to be assailed.
or of the denial of petitioner’s motion for In case a motion for reconsideration or
reconsideration or new trial. new trial is timely filed, the 60-day
period is counted from notice of said
denial.
Extension of 30 days may be granted Extension granted only under
for justifiable reasons. exceptional cases (infra).
Does not require a prior motion for Motion for reconsideration is a condition
reconsideration precedent, subject to exceptions
Does not stay the judgment or order
Stays the judgment appealed from subject of the petition, unless enjoined
or restrained
Parties are the original parties with the
appealing party as the petitioner and The tribunal, board, or officer,
the adverse party as the respondent, exercising judicial or quasijudicial
without impleading the lower court or its functions is impleaded as respondent
judge
Filed only with the SC May be filed with the SC, CA,
Sandiganbayan, or RTC
Review by the SC is discretionary and If the order is sufficient in form and
will be granted only when there are substance:
special or important reasons. [Rule 45, • The RTC shall
sec. 6] (1) order respondents to comment, and
then
(2)(a) hear the case or (2)(b) require

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 the parties to file memoranda.
• But the SC/CA may require a
comment before giving the petition due
course.

6. Distinguish: prohibition, mandamus, and injunction

INJUNCTION PROHIBITION
Ordinary civil action Special civil action
Directed only to the party litigants, Directed to the court itself, commanding
without in any manner interfering with it to cease from the exercise of a
the court jurisdiction to which it has no legal claim
Does not involve the jurisdiction of the
It is based on the ground that the court
court against whom the writ is sought had
acted without or in excess of jurisdiction
Main action or provisional remedy Main action
INJUNCTION MANDAMUS
Ordinary civil action Special civil action
Directed against a litigant Directed against a tribunal, corporation,
board, or officer
Purpose is to either refrain the Purpose is for the tribunal, corporation,
defendant from performing an act or to board, or officer, to perform a
perform not necessarily a legal and ministerial and legal duty
ministerial duty

7. When and where to file petition

8. Exceptions to filing of motion for reconsideration before filing petition

GENERAL RULE:
An MR is an essential precondition for the filing of a petition for certiorari,
prohibition, or mandamus.
It is a plain, speedy, and adequate remedy. This is to enable the lower court, in
the first instance, to pass upon and correct its mistakes without the intervention of
the higher court
EXCEPTIONS: MR may be dispensed with in some cases:
(1) Where the order is a patent nullity
(2) Where questions raised in the certiorari proceeding have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon
in the lower court
(3) Where there is urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government
(4) Where under the circumstances, an MR would be useless, as where the court
had already indicated that it would deny any motion for reconsideration of its
questioned order
(5) Where petitioner was deprived of due process and there is extreme urgency for
relief
(6) Where, in a criminal case, relief from an order of arrest is urgent and granting
such relief by trial court is improbable
(7) Where the proceedings in the lower court are a nullity for lack of due process
(8) Where the proceeding was ex parte or in which the petitioner had no
opportunity to object
(9) Where the issue raised is one purely of law or where public interest is involved
(10) Where the subject matter of the action is perishable [Ombudsman v. Laja,

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G.R. No. 169241(2006)]

9. Reliefs petitioner is entitled to

RELIEFS,
IN GENERAL Petitioner may be entitled to:
(1) Injunctive relief – Court may may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a writ
of preliminary injunction for the preservation of the rights of the parties
[Sec. 7, Rule 65]
(2) Incidental reliefs as law and justice may require [Secs. 1-2, Rule 65]
(3) Other reliefs prayed for or to which the petitioner is entitled [Sec. 8,
Rule 65]
PRAYERS
(1) In certiorari
(a) That the judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer; and
(b) Granting such incidental reliefs as law and justice may require [Rule 65, Sec.
1]
(2) In prohibition
(a) That the judgment be rendered commanding the respondent to desist
from further proceedings in the action or matter specified; or
(b) Otherwise granting such incidental reliefs as law and justice may
require [Rule 65, Sec. 2]
(3) In mandamus
(a) That the judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the
actrequired to be done to protect the rights of the petitioner; and
(b) To pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent [Sec. 3, Rule 65]

10. Acts or omissions of first-level/Regional Trial Courts in election cases

In election cases involving an act or an omission of a municipal or regional trial
court, the petition [for certiorari, prohibition, or mandamus] shall be filed
EXCLUSIVELY with the Commission on Elections, in aid of its appellate jurisdiction
[Sec. 4, par. 3, Rule 65 as amended by AMNo. 07-7-12-SC (2007)]

11. Where to file petition

PETITION AND CONTENTS
(1) A verified petition is filed in the proper court accompanied by:
(a) Certified true copy of the judgment, order, resolution subject
thereof
(b) Copies of all pleadings and relevant and pertinent documents
(c) Sworn certification of non-forum shopping
(2) Contents of the petition
(a) Allegation of facts with certainty
(3) Prayer
ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition, Mandamus, when does the court
acquire jurisdiction over the person of the respondent?
(1) If action is filed with the RTC:Follow rules on ordinary civil actions.
Jurisdiction is acquired by:
(a) Service of summons to respondent or
(b) By his voluntary appearance in court

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 (2) (2) If the action is filed with the SC/CA: Court acquires jurisdiction over
respondents by:
(a) Service on them of its orders indicating its initial action on the petition
or
(b) By their voluntary submission to such jurisdiction PROCEDURE A
petition for certiorari/ mandamus/ prohibition is filed

When filed:
(a) Not later than 60 days from notice of judgment/order/resolution
(b) If a motion for reconsideration/new trial is filed, the 60-day period shall be
counted from notice of denial of motion.

Rule on Extension of Time for Filing GENERAL RULE: The sixty (60)-day period
within which to file a petition for certiorari under Rule 65 is non-extendible.
Exceptions:
Under the following exceptional circumstances, the Court may extend the period
according to its sound discretion:
(1) Most persuasive and weighty reasons;
(2) To relieve a litigant from an injustice not commensurate with his
failure to comply with the prescribed procedure;
(3) Good faith of the defaulting party by immediately paying within a
reasonable time from the time of the default;
(4) The existence of special or compelling circumstances;
(5) The merits of the case;
(6) A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules;
(7) A lack of any showing that the review sought is merely frivolous
and dilatory;
(8) The other party will not be unjustly prejudiced thereby;
(9) Fraud, accident, mistake or excusable negligence without
appellant's fault;
(10) Peculiar legal and equitable circumstances
12. Effects of filing of an unmeritorious petition

H. Quo WARRANTO
NATURE
Literally means “by what authority”; a prerogative writ by which the court can call
upon any person to show by what warrant he holds a public office or exercises a
PUBLIC franchise.
When the inquiry is focused on the legal existence of a body politic, the action is
reserved to the State in a proceeding for quo warranto or any other direct
proceeding. Subject

Matter: The subject matter of a quo warranto may be a public office, franchise, or
position.

1. Distinguish: quo warranto under the Rules of Court and quo warranto under the
Omnibus Election Code
ROC RULE 66 OEC SEC. 253
Filed by whom
(1)Solicitor General or Public
Prosecutor, (a) in behalf of the Republic
[Rule 66, sec. 2] or (b) upon the

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request or relation of another person Any voter
[sec. 3]; or (2) Individual claiming to be
entitled to a public office or position
usurped or unlawfully held or exercised
by another [sec. 5]
Where filed
[Venue] [Jurisdiction]
(1) Commenced by Sol. (1) If against election of a
Gen.: Member of Congress,
(a) RTC Manila, Regional, Provincial or
(b) CA or (c) SC; City Officer: COMELEC
(2) Otherwise: (2) If against a municipal or
(a) RTC with jurisdiction over territorial barangay officer:
area where respondent resides, appropriate RTC or MTC,
(b) CA or respectively.
(c) SC
Period for filing
Within 1 year from ouster or from the Within 10 days after proclamation of
time the right to the position arose. results
[sec. 11]
Grounds (against occupants of public offices)
(1) A person, who usurps, intrudes into
or unlawfully holds or exercises a public
office, position or franchise; (1) Ineligibility; or
(2) A public officer, who does or suffers (2) Disloyalty to the Republic
an act which, by provision of law,
constitutes a ground for forfeiture of
office. [sec. 1]
Effect
The occupant who was declared
ineligible or disloyal will be unseated but
The Court will oust the person illegally the petitioner may be declared the
appointed and will order the seating of rightful occupant of the office if the
the person who was legally appointed respondent is disqualified and the
and entitled to the office petitioner received the second number
of votes [Maquiling v. COMELEC, G.R.
No. 195649 (2013)]

2. When government commences an action against individuals or associations

WHEN GOVERNMENT MAY COMMENCE AN ACTION AGAINST INDIVIDUALS
The Government, through the Solicitor General or public prosecutor commences
the action for quo warranto.
(1) Mandatory: When to commence:
(a) When directed by the President; OR
(b) When upon complaint or otherwise he has good reason to
believe that any case in Sec. 1 [supra] can be established by proof.
[Sec. 2]
(2) Discretionary: When to commence:
(a) Upon permission of the court; AND
(b) At the request and upon the relation of another person [ex
relatione], provided officer bringing it may require an indemnity
bond.

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3. When individual may commence an action
WHEN INDIVIDUAL MAY COMMENCE AN ACTION
An individual may commence the action if he claims to be entitled to the office or
position usurped or unlawfully held or exercised by another.
1. He may institute the action in his own name. [Sec. 5]
(a) He does not have to secure the intervention of the Solicitor General or
public prosecutor.
(b) No leave of court necessary.
2. He must aver and be able to show that he is entitled to the office in dispute,
otherwise the action may be dismissed at any stage. [General v. Urro, G.R.
No. 191560 (2011)]
3. A public utility may bring a quo warranto action against another public utility
which has usurped the rights of the former granted under a franchise [Cui v.
Cui, G.R. No. 39773 (1934)]

4. Judgment in quo warranto action

When respondent is found guilty of usurping, intruding, or unlawfully holding or
exercising a public office, judgment shall be rendered:
(1) That such respondent is ousted and altogether excluded therefrom;
and
(2) That petitioner or relator, as the case may be, recover his costs;
and
(3) Court may further determine the respective rights in and to the
public office, position, or franchise of all parties. [Sec. 9]
Page 10 of28

I
5. Rights of a person adjudged entitled to public office
Rights of persons adjudged entitled to office [Sec. 10]:
(1) Execution of the office After taking oath of office and executing any official
bond required by the law
(2) Demand from respondent all the books and papers appertaining to the office to
which judgment relates. Respondent’s neglect or refusal to comply with the
demand is punishable by contempt
(3) Bring an action for damages against respondent for damages sustained by him
by reason of the usurpation. Must be commenced within 1 year after entry of
judgment establishing petitioner’s right to the office in question [Sec. 11] because
it is not proper that the title to public office should be subjected to continued
uncertainty, and the people’s interest requires that such right should be
determined as speedily as practicale [Cuyo v. City Mayor, G.R. No. L-9912(1957)]

6. Limitations

I. EXPROPRIATION
NATURE
Eminent Domain is the right and authority of the State, as sovereign, to take
private property for public use upon observance of due process and payment of
just compensation.
It is in the nature of a compulsory sale to the State.

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1. Matters to allege in complaint for expropriation
Contents of the Complaint The complaint shall:
(1)State with certainty the right and purpose of expropriation
NOTE: Where the right of the plaintiff to expropriate is conferred by law,
complaint does not have to state with certainty the right of expropriation
[Manila Railroad Co. v. Mitchel (1923)]
(2)Describe the real or personal property sought to be expropriated
(3)Join defendants All persons owning or claiming to own, or occupying, any
part thereof or interest therein, showing separate interest of each
defendant, as far as practicable
(4)Make the following averments, if needed:
(a) If title appears to be in the Republic, although occupied by private
individuals
(b) If title is otherwise obscure or doubtful so that plaintiff cannot with
accuracy or certainty specify who the real owners are [Sec. 1, Rule 67]

Where to File RTC where property is located. MTC has no jurisdiction since an
action for expropriation is incapable of pecuniary estimation. [Barangay San Roque
v. Heirs of Pastor, G.R. No. 138816 (2000)]
There is no reason for the institution of expropriation proceedings when the owner
is willing to part with his property. The commencement of the complaint for
expropriation is necessary only when the owner does not agree to sell his
property, or if he is willing to sell but does not agree with the price offered.
[RIANO]

2. Two stages in every action for expropriation

(First Stage)
Propriety of Expropriation:
Determination of the authority of the plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the context of the facts involved. This
ends with either:
(1)An order of dismissal, or
(2)An order of expropriation
(Second Stage)
Just Compensation:
Determination of the just compensation for the property sought to be taken.
[HERRERA]

NOTE: Multiple appeals are allowed in expropriation. Aggrieved party may appeal
in each stage separately.

3. When plaintiff can immediately enter into possession of the real property
Plaintiff shall have the right to take or enter upon possession of the real property
upon:
(1) Filing of complaint or at any time thereafter, and after due notice to defendant
(2) Making preliminary deposit [Sec. 2, Rule 67]

4. New system of immediate payment of initial just compensation

For the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, upon the filing of the filing of the

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complaint, and after due notice to the defendant, the implementing agency shall
immediately pay the owner of the property the amount equivalent to the sum of:
(1) 100 percent of the value of the property based on the current relevant zonal
valuation of the BIR; and
(2) The value of the improvements and/or structures as determined under Sec. 7
of R.A. 8974, supra [Sec. 4, RA 8974]

5. Defenses and objections

No Objection to or Defense against With Objection to or Defense against
Taking Taking
What to file and serve
Notice of appearance and manifestation Answer to the complaint
Period to file
Time stated in the summons
Contents
(1) Specifically designating/identi fying
(1) Manifestation to the effect that he the property in which he claims to have
has no objection or defense; an interest in;
(2) Specifically designating/ident ifying (2) Nature and extent of the interest;
the property in which he claims to be and
interested (3) ALL his objections and defenses to
the complaint or any allegation therein
Prohibited
Counterclaim, crossclaim, third party
complaint in any pleading

6. Order of expropriation
ORDER OF EXPROPRIATION
It is the order declaring that the plaintiff has lawful right to take the property.
When Issued It is issued when:
(1) Objections or defenses against the right of plaintiff to expropriate are
overruled; or
(2) No party appears to defend the case

Contents of the Order

(1) That the plaintiff has a lawful right to take the property sought to be
expropriated:
(2) For the public use or purpose described in the complaint; and
(3) Upon payment of just compensation
(a) To be determined as of the date of taking, or
(b) The filing of the complaint, whichever came first.

REMEDY OF DEFENDANT
Order of condemnation is final, not interlocutory. Hence, it is appealable.

NOTE: Appeal shall not prevent court a quo from determining just compensation.

EFFECTS OF THE ORDER

(1) Plaintiff not permitted to dismiss or discontinue the proceeding, except on
such terms as the court deems just and equitable; and
(2) Order forecloses any further objections to the right to expropriate, including
the public purpose of the same. [Robern Development Corporation v. Quitain, G.R.
No. 135042 (1999)]

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Multiple appeals are permitted in expropriation. An appeal may be taken from the
order authorizing expropriation and, thereafter, another appeal on the judgment
on the just compensation to be paid. Thus, the reglementary period to appeal shall
be 30 days and a record on appeal shall be required for each of the permissible
appeals [REGALADO]

7. Ascertainment of just compensation

Upon rendition of the Order of Expropriation, the court issues an Order of
Appointment.
ORDER OF APPOINTMENT
(1)Court appoints not more than 3 commissioners to ascertain and report to
the court the just compensation for the property
(2)Contents: Order shall
(a) Designate the time and place of the first session of hearing to be held by
commissioner
(b) Specify the time within which their report shall be submitted to court
(3)Procedures:
(a) Copies of the Order shall be served on the parties
(4)Objections to appointment:
(a) Filed with the court within 10 days from service
(b) Objections shall be served to all commissioners
(c) Resolved within 30 days after all commissioners shall have received
copies

JUST COMPENSATION The full and fair equivalent of the property taken from its
owner by the expropriator. Just compensation means not only (1) the correct
determination of the amount to be paid but also the (2) payment of the land
within a reasonable time from its taking. [Land Bank of the Phils. v. Obias, G.R.
No. 184406 (2012)]
MARKET VALUE “Sum of money which a person desirous but not compelled to buy,
and an owner willing but not compelled to sell, would agree on as a price to be
given and received therefore.” [BPI v. CA, G.R. No. 160890 (2004)]
Time when market value should be fixed: (1) When plaintiff takes possession
before institution of proceedings: value fixed as of TIME OF TAKING; or (2) When
the taking coincides with or subsequent to the commencement of proceedings:
value fixed as of DATE OF FILING of the complaint

8. Appointment of commissioners; commissioner's report; court action upon commissioner's

report
QUALIFICATIONS
(1) Competent; and
(2) Disinterested

PROCEEDINGS BY COMMISSIONERS [Sec. 6, Rule 67]

(1) Oath: Commissioners shall first take and subscribe an oath that they will
faithfully perform their duties. Oath shall be filed in court together with other
proceedings.
(2) Introduction of evidence: Evidence may be introduced by either party before
the commissioners who are authorized to administer oaths on hearings before
them

DUTIES OF COMMISSIONERS
(1) View and examine the property sought to be expropriated and its

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surroundings, and may measure the same.
a. Parties may agree not to have the property inspected.
b. Due notice to parties to attend must first be given.
c. After this, each party may argue the case.
(2) Assess the consequential damages to the property not taken and deduct from
such the consequential benefits to be derived by owner.
a. Consequential benefits are those proximately resulting from the
improvements consequent to the expropriation and accruing to the
remaining portion of the land. [REGALADO]
b. In no case shall the consequential benefits assessed exceed the
consequential damages. [Sec. 6]
c. In no case shall the owner be deprived of the actual value of his
property taken. [Sec. 6]
REPORT BY COMMISSIONERS [Sec. 7, Rule 67]
1. Commissioners shall make a full and accurate report to the court of all their
proceedings.
2. Such proceeding shall not be effectual until court has accepted their report
and rendered judgment in accordance with their recommendations.
3. Report shall be filed within 60 days from date commissioners were notified of
their appointment. Time may be extended by court discretion,
4. Upon filing, clerk shall serve copies of the Commissioners’ Report to all
interested parties. Clerk includes a notice that parties are allowed to file
objections to the report within 10 days from notice.

ACTION UPON COMMISSIONERS’ REPORT [Sec. 8, Rule 67]

(1) When court renders judgment: Upon
(a) Filing of objections to the report or of the agreement thereon of all
interested parties; OR
(b) Expiration of 10-day period to object from the report
(2) Court may:
(a) After hearing, accept the report and render judgment in accordance
therewith;
(b) Recommit to commissioners for further report of facts, for cause
shown;
(c) Set aside the report and appoint new commissioners; OR
(d) Accept the report in part and reject in part; AND
(e) Make such order or render such judgment as shall secure the
plaintiff (as to its right to expropriate) and the defendant (as to his
right to just compensation)

The appointment of commissioners to ascertain just compensation for the property

sought to be taken is a mandatory requirement in expropriation cases. [RIANO]

The trial with the aid of the commissioners is a substantial right that may not be
done away with capriciously or for no reason at all. The absence of such trial or
hearing constitutes a violation of the right to due process [NPC v de la Cruz, G.R.
No. 156093(2007)]

9. Rights of plaintiff upon judgment and payment

RIGHTS Either:
(1) Right to retain: Applies when plaintiff immediately entered upon the property
after making the required deposit (and therefore already has possession of the
property), supra.

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(2) Right to enter and appropriate: Applies when plaintiff does not take immediate
possession of the property. Appropriation must be for the public use or purpose
defined in the judgment.
Conditions for exercise:
(1) Upon payment by plaintiff to defendant of compensation fixed by judgment,
with legal interest from taking; or
(2) After tender to defendant of the said amount and payment of the costs. N.B. If
defendant or counsel absent themselves from the court or decline the amount
tendered, the amount shall be deposited in court and shall have the effect of
actual payment.

EFFECT OF NON-PAYMENT OF JUST COMPENSATION

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

10. Effect of recording of judgment

Contents of the Judgment
(1) Statement of the particular property or interest therein expropriated, with
adequate description; and
(2) Nature of the public use or purpose for which it is expropriated. [Sec. 13]
When title to property vests:
(1) If personal property, upon payment of just compensation [Sec. 10]
(2) If real property, upon
(i) payment of just compensation and
(ii) registration of property (by recording of the judgment in the registry of deeds
where the property is situated.) [Sec. 13]

J. FORECLOSURE OF REAL ESTATE MORTGAGE

NATURE
Foreclosure of Mortgage is a proceeding by which the mortgagee or his successors
or one who has by law succeeded to the rights and liabilities of the mortgagee
undertakes to dispose of, to ban, to cut-off the legal and equitable claims of lien
holders or of the mortgagors or those who have succeeded to the rights and
liabilities of the mortgagor.
The cause of action in a foreclosure suit is generally the non-payment of the
mortgage loan, but it may be on other grounds which under the contract warrant
the foreclosure, such as the violation of the other conditions therein.

1. Kinds of foreclosure
Foreclosure may be made:
(1) Judicially: governed by Rule 68
(2) Extrajudicially: proper only when so provided in contracts in accordance with
Act No. 3135; governed by AM No. 99-1005.

a. Judicial foreclosure
 Requires court intervention
 There is only an equity of redemption
 Governed by Rule 68

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  There could be a Deficiency Judgment.
 Recovery of deficiency can be done by mere motion.
 No right of redemption, only equity of redemption
 Exception: Mortgagor may exercise right of redemption within one year after
the sale, when the loan or credit accommodation is granted by a bank. [Sec.
47, General Banking Law (2000)

b. Extrajudicial foreclosure
 No court intervention necessary
 Right of redemption exists
 Governed by Act 3135
 No Deficiency Judgment because there is no judicial proceeding.
 Recovery of deficiency is through an independent action.
 Mortgagor has a right to redeem the property within one year from
registration of the deed of sale
 Exception: In case of extrajudicial foreclosure, juridical persons shall have
the right to redeem until, but not after, the registration of the certificate of
foreclosure sale with the Register of Deeds which in no case shall be more
than 3 months after foreclosure, whichever is earlier. [Sec. 47, General
Banking Law (2000)]

2. Need for special power of attorney

3. Authority to foreclose extrajudicially

4. Procedure

a. Where to file

b. Where to sell

c. Posting requirement

d. Publication requirement

i. Sufficiency of newspaper publication

ii. Need for republication in case of postponement

iii. Personal notice to the mortgagor when and when not needed

5. Possession by purchaser of foreclosed property

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6. Remedy of debtor if foreclosure is not proper

7. Redemption

a. Who may redeem

b. Amount of redemption price

c. Period for redemption

d. Effect of pendency of action for annulment of sale

8. Writ of possession
WRIT OF POSSESSION
Upon the finality of the order of confirmation or upon the expiration of the period
of redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property.
EXCEPTION: Third party is actually holding the same adversely to the judgment
obligor.

a. Ministerial duty of the court

b. Enforcement against third parties

c. Pendency of action for annulment of sale

9. Annulment of sale

K. PARTITION
NATURE
Partition is the process of dividing and assigning the property owned in common
among the various co-owners thereof in proportion to their respective interests in
said property.
Partition may be:
(1) Judicial – Procedure is Rule 69
(2) Extrajudicial – No court intervention require The partition of property may be
made voluntarily (by agreement) or compulsorily under the Rules. Even if the
parties had resorted to judicial partition, they may still make an amicable partition
of the property. [Sec. 12]
An action for partition and accounting under Rule 69 is in the nature of an action

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quasi in rem. Such an action is essentially for the purpose of affecting the
defendant’s interest in a specific property and not to render a judgment against
him.

1. Who may file complaint; who should be made defendants

Who May File
A person having the right to compel partition of real estate, or of personal
property, or both real and personal property [Sec. 1, Sec. 13]

Venue and Jurisdiction

An action for partition should be filed in the RTC of the province where the
property or part thereof is situated. An action for partition is not a conveyance of
property. [Heirs of Urieta, Sr. v. Heirs of Urieta (2011)] Because the controversy
in partition is whether or not the plaintiff has a right to partition, the issue is
incapable of pecuniary estimation. [RIANO]
Parties
(1) The plaintiff is the person who is supposed to be a co-owner of the property.
[RIANO]
(2) Defendants are
(i) all the co-owners, who are indispensable parties, and
(ii) all other persons having an interest in the property [Id., citingMORAN]

2. Matters to allege in the complaint for partition

Contents of the Complaint:
(1) Nature and extent of his title
(2) Adequate description of the real estate sought to be partitioned
(3) Joining of Defendants – All other persons interested in the property [Sec. 1]
(4) Demand for accounting of the rents, profits, and other income from the
property to which he may be entitled to as his share. [Sec. 8] Since these cannot
be demanded in another action (because they are part of the cause of action for
partition), they are barred if not set up. [RIANO]

3. Two stages in every action for partition

FIRST STAGE:
DETERMINATION OF THE PROPRIETY OF PARTITION
This involves a determination of whether the subject property is owned in common
and whether all the co-owners are made parties in the case. [See Lacbayan v.
Samoy, G.R. No. 165427(2011)]

The order may also require an accounting of rents and profits recovered by the
defendant. This order of partition is appealable. [Miranda v. Court of Appeals, G.R.
No. L-33007(1976)]

If not appealed, then the parties may partition the common property in the way
they want. If they cannot agree, then the case goes into the second stage.
However, the order of accounting may in the meantime be executed. [De Mesa v.
CA, G.R. No.109387(1994)]

SECOND STAGE:
ACTUAL PARTITIONING OF THE SUBJECT PROPERTY
This is also a complete proceeding and the order or decision is appealable.
When there was a prior partition, the fact that the share of each co-heir has not
been technically described and the title over the whole lot remains uncancelled

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does not negate such partition. There can be no partition again because there is
no more common property. [Noceda v. CA, G.R. No. 119730 (1999)]

The action for partition is subject to multiple appeals and would require a record
on appeal [Roman Catholic Archbishop of Manila v. CA, G.R. No. 77425 (1991)]
Page 11 of28

4. Order of partition and partition by agreement

ORDER OF PARTITION
The court issues an order of partition AFTER the trial and the court finds that the
plaintiff has a right to partition. The court orders the partition of the property.

The parties may make the partition proper themselves, by agreement:

(1) After the issuance of the order of partition, the parties will be asked if they
agree to make partition of the property among themselves.
(2) If they agree, proper instruments of conveyance will be executed to effect the
partition.
(3) After the execution of instruments of conveyance, the court shall confirm the
partition through a final order.
(4) The final order of partition and the instruments of conveyance shall be
registered with the Registry of Deeds where the property is situated. [Sec. 2, Rule
69]

5. Partition by commissioners; appointment of commissioners, commissioner's report;

court action upon commissioner's report
When proper
If parties fail to agree on the manner of partition, commissioners are appointed to
make partition.
How Done
The court appoints not more than 3 competent and disinterested commissioners to
make the partition. [Sec. 3]
OATH OF THE COMMISSIONERS
Before entering into their duties, commissioners must first make an oath that they
will faithfully perform their duties as commissioners. Such oath is to be filed in
court. [Sec. 4]
DUTIES OF THE COMMISSIONERS
(1) They shall view and examine real estate, after due notice to parties to attend
at such view and examination;
(2) They shall hear the parties as to their preference in the portion to be set apart
to them;
(3) They shall also determine the comparative value thereof; and
(4) They shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable considering the improvements, situation, and quality
of the parts thereof. The provision authorizes the commissioners merely to make
or effect the partition. It does not grant them the authority to adjudicate on
questions of title or ownership. [RIANO]
ASSIGNMENT OF REAL ESTATE TO ONE PARTY
GENERAL RULE: If the commissioners should determine that the real estate
cannot be divided without prejudice to the interests of the parties, the court may
order that the property be assigned to one of the parties willing to take the same
provided he pays to the other parties such amounts as the commissioners deem
equitable.

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EXCEPTION: If one of the parties asks that the property be sold instead of being
so assigned, then the court shall order the commissioners to sell the real estate at
public sale under such conditions and within such time as the court may determine
[Sec. 5]
Requisites of Assignment:
(1) Assignment is in favor of one of the parties, not to 3rd persons
(2) Payment to the other parties
(3) Amount to be paid is based on the amounts which the commissioners deem
equitable
(4) Other interested parties do not ask the court that the property be sold instead.

COMMISSIONER’S REPORT
Commissioners shall make a full accurate report to the court on:
(1) All proceedings as to the partition, or
(2) The assignment of real estate to one of the parties, or
(3) The sale of the same.

Upon filing of Commissioner’s Report:

(1) Clerk shall serve copies on all interested parties with notice that they are
allowed to file objections
(2) Parties may file objections within 10 days upon receipt of notice

HEARING ON THE REPORT [Sec. 7]

(1) When Conducted:
(a) Upon expiration of the 10 day period for filing
objections; or
(b) Even before expiration but after the interested parties
have filed their objections or their statement of agreement
therewith
(2) The court may:
(a) Accept the report and render judgment in accordance
therewith; or
(b) Recommit the same to commissioners for further report
of facts, for cause shown; or
(c) Set aside the report and appoint new commissioners; or
(d) Accept the report in part and reject in part; and
(e) Make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its
value, if assigned or sold

6. Judgment and its effects

Contents of Judgment Effects of Judgment
If actual partition is properly made
Judgment shall state definitely, by Judgment shall vest in each party to the
metes and bounds and adequate action in severalty the portion of the
description, the particular portion of the real estate assigned to him.
real estate assigned to each party.
If the whole property Is assigned to one of the parties after payment
Judgment shall state the fact of such Judgment shall vest in the party making
payment and of the assignment of the the payment the whole of the real
real estate to the party making the estate free from any interest on the part
payment. of the other parties.
If property is sold and sale is confirmed by the court

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Judgment shall state the name of the Judgment shall vest the real estate in
purchaser or purchasers and a definite the purchaser(s), making the
description of the parcels of real estate payment(s) free from the claims of any
sold to each purchaser parties to the action.
A certified copy of the judgment shall in either case be recorded in the registry of
deeds of the place in which the real estate is situated. [Sec. 11, Rule 69]

7. Partition of personal property

The provisions of Rule 69 shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be
applicable. [Sec. 13]

8. Prescription of action
The right of action to demand partition does not prescribe De Castro v. Echarri,
G.R. No. 5609 (1911)], except where one of the interested parties openly and
adversely occupies the property without recognizing the co-ownership [Cordova v.
Cordova (1958)] in which case, acquisitive prescription may set in.
If a co-owner repudiates the co-ownership and makes known such repudiation to
the other co-owners, then partition is no longer a proper remedy of the aggrieved
co-owner. He should file an accion reivindicatoria, which is prescriptible. [Roque v.
IAC, G.R. No. 75886(1988)]

9. When partition is not allowed

L. FORCIBLE ENTRY AND UNLAWFUL DETAINER

NATURE
Ejectment cases are summary proceedings intended to provide an expeditious
means of protecting actual possession of property. [Tubiano v. Razo, G.R. No.
132598(2000)]

Rationale: The owners of property have no authority to use force and violence to
eject alleged usurpers who were in prior physical possession of it. They must file
the appropriate action in court and should not take the law in their own hands.

1. Definitions and distinction

Forcibly Entry (Detentacion)
Possession of land by defendant is
unlawful from the beginning as he
acquires possession by force,
intimidation, strategy, threat, or stealth
(FISTS).
No previous demand for defendant to
vacate the premises is necessary.
Plaintiff must prove that he was in prior
physical possession of the premises until
he was deprived thereof by defendant.
The 1-year period is generally counted
from date of actual entry on land.
The issue centers on who was in prior
possession de facto.
Unlawful Detainer (Desahucio)
Possession is inceptively lawful but it
becomes illegal by reason of the
termination of his right to possession of
the property under his contract (express
or implied) with the plaintiff.
Demand is jurisdictional.
Plaintiff need not have been in prior
physical possession.
Period is counted from the date of last
letter of demand.
The issue centers on whether the
defendant’s right to possess has expired
or not.

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2. Distinguish: forcible entry, unlawful detainer, accion publiciana, and accion
reivindicatoria
Accion Interdictal Accion Publiciana Accion Reinvindicatoria
Summary action for A plenary action for An action for recovery of
recovery of physical recovery of real right of possession based on
possession where the possession when ownership
dispossession has not dispossession has lasted
lasted for more than 1 for more than one year
year
Issues is possession de Issue involves Issue involves ownership
facto determination of who has (and consequently,
better right to possession possession)
Real action Real action Real action
In personam In personam Quasi in rem
All cases of forcible entry RTC has jurisdiction if value of the property exceeds
and unlawful detainer, P20,000 outside Metro Manila or P50,000 within Metro
irrespective of the amount Manila.
of damages or unpaid MTC has jurisdiction if value of property does not
rentals sought to be exceed the above amounts. [B.P. Blg. 129, as
recovered should be amended]
brought to the MTC.

3. Jurisdiction in accion publiciana and accion reivindicatoria

IN ACCION INTERDICTAL
Exclusive original jurisdiction over forcible entry and unlawful detainer suits is with
the MTC. [Sec. 33(2), BP 129] Amount of rents and damages claimed does not
affect the jurisdiction of the MTC because they are only incidental or accessory to
the main action. However, municipal courts have no jurisdiction over a forcible
entry/unlawful detainer case involving agricultural tenants. Jurisdiction is with the
HLURB.
IN ACCION PUBLICIANA AND ACCION REINVINDICATORIA
(1) RTC has jurisdiction where the assessed value of the property exceeds P20,000
or, in Metro Manila, P50,000;
(2) MTC has jurisdiction if the assessed value does not exceed said amounts.
[Secs. 19, 33,BP 129, as amended] Where the basic issue is not possession but
interpretation, enforcement and/or rescission of the contract, the same is no
longer an ejectment suit. [Villena v. Chavez, G.R. No. 148126 (2003)]

4. Who may institute the action and when; against whom the action may be maintained
WHO MAY INSTITUTE PROCEEDINGS
(1) In Forcible Entry: A person deprived of possession of any land or building by
force, intimidation, strategy, threat, or stealth.
(2) In Unlawful Detainer:
(a) Lessor, vendor, vendee or other person against whom any land or building is
unlawfully withheld; or
(b) His legal representatives or assigns. [Sec. 1, Rule 70]

PERIOD OF FILING
Within ONE (1) year after such unlawful deprivation or withholding of possession.
[Sec. 1]
Reckoning points: (1) For forcible entry, it is counted from date of entry or taking
of possession; EXCEPTION: In case of stealth or strategy, from the time plaintiff

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learned of entry. [Vda. de Prieto v. Reyes, G.R. No. L21740(1965)]
(2) For unlawful detainer, it is counted from:
(a) Date of last demand to vacate in case of non-payment of rent or
noncompliance with conditions of the lease; or
(b) Date of notice to quit, in case of tacit renewal of lease; or
(c) Date of revocation of the permit in case of occupancy on mere tolerance or
under temporary permit.

Against whom may the action be maintained: Person or persons unlawfully

withholding or depriving of possession, or any person/s claiming under them [Sec.
1]. Action may be maintained only against one in possession at the
commencement of the action. Tenant with right of [de facto] possession may
bring action against another tenant. Vendor may bring action for ejectment
against vendee upon failure to pay installments. Action may lie against the very
owner of the property. Action may be maintained against government officials or
agents acting in behalf of the government, even if government is not made a party
to the action. [REGALADO]

5. Pleadings allowed
ONLY allowed pleadings:
(1) Complaint
(2) Compulsory Counterclaim pleaded in the answer
(3) Cross-claim pleaded in the answer
(4) Respective answers. [Sec. 4, Rule 70]
NOTE: Pleadings must be VERIFIED. [Sec. 4, Rule 70]

6. Action on the complaint

MOTU PROPRIO DISMISSAL From the examination of allegations in the complaint,
the court may dismiss the case outright on any grounds mentioned in Rule 16.
[Sec. 5]
ISSUANCE OF SUMMONS If there is no ground for dismissal, court issues
summons. [Sec. 5]
ANSWER BY DEFENDANT Defendant shall file his answer within 10 days from
service of summons. [Sec. 6]
Effect of failure to answer Court shall render judgment, motu proprio or upon
motion. [Sec. 7]
(1) Judgment is limited to what is prayed for in the complaint.
(2) Court may reduce the amount of damages and attorney’s fees claimed
(a) For being excessive or otherwise unconscionable
(b) In the exercise of its discretion
(c) No prejudice to applicability of Sec. 3
(c), Rule 9 if there are 2 or more defendants

PRELIMINARY CONFERENCE
Preliminary conference shall be held not later than 30 days after filing of last
answer. [Sec. 8]
SUBMISSION OF AFFIDAVITS AND POSITION PAPERS
Affidavits and position papers are to be submitted within 10 days from receipt of
the Order stating the matters taken in the preliminary conference. [Sec. 10]
RENDITION OF JUDGMENT
Court shall render judgment within 30 days after receipt of affidavits and position
papers. [Sec. 11]

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7. When demand is necessary
GENERAL RULE:
In unlawful detainer cases, a prior written demand against the lessee is required
before the lessor can proceed against him. [Sec. 2]
Contents of demand: The demand must be two-fold:
(1) To (a) pay or (b) comply with the conditions of the lease; and
(2) To vacate.
Form of Demand: Demand may be:
(1) By service of written notice of such demand upon the person found on the
premises; [Sec. 2]
(2) By posting of the written notice on the premises if no person is found there;
[Sec. 2] or
(3) Oral. [Jakihaca v. Aquino, G.R. No. 83982(1990)]

Period to comply with demand: Lessor may file unlawful detainer suit if lessee fails
to comply with the demand:
(1) After 15 days in the case of lands; or
(2) After 5 days in case of buildings. [Sec. 2]

When demand not required:

(1) When parties stipulate that demand shall not be necessary [Sec. 2]; or
(2) When the action is predicated on the expiration of the lease. [Labastida v. CA,
G.R. No. 110174 (1998)] (Since it is not based on failure to pay or comply with
the conditions [see Sec. 2].)
It is only where defendant fails to comply with the demand within the periods
provided by Sec. 2 will his possession become unlawful. A demand to pay or
vacate does not give rise to a cause of action for unlawful detainer. [Peñas v. CA,
G.R. No. 112734 (1994)]
A person who occupies the land of another at the latter's tolerance or permission,
without any contract between them is necessarily bound by an implied promise
that he will vacate upon demand, failing which, an action for unlawful detainer
may be instituted against him. [Dakudao v. Consolacion, G.R. No. L-54753
(1983)] Demand is not required in forcible entry suits.

8. Preliminary injunction and preliminary mandatory injunction

Court may grant preliminary injunction in accordance with Rule 58 to prevent
defendant from committing further acts of dispossession against plaintiff. [Sec. 15,
Rule 70]
There is no distinction as to the type of ejectment case involved. A preventive
injunction is governed by Rule 58. A mandatory injunction is governed by the rules
in Rule 70.

PRELIMINARY MANDATORY INJUNCTION

Possessor may present a motion for issuance of preliminary mandatory injunction
in the action for forcible entry or unlawful detainer within 5 days from filing of
complaint to restore him in his possession. Court shall decide the motion within 30
days from filing. [Sec. 30] Preliminary mandatory injunction shall be available:
(1) At the start of the action; [Sec. 15]
(2) On appeal to the RTC upon motion of plaintiff within 10 days from perfection of
appeal. [Sec. 20]

NOTE: The injunction on appeal is to restore to plaintiff in possession:

(1) If the court is satisfied that the defendant’s appeal is frivolous or dilatory; or

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(2) That the appeal of plaintiff is prima facie meritorious. [Sec. 20] MTC can also
issue a preliminary mandatory injuction in an unlawful detainer case. [Day v. RTC
of Zamboanga, G.R. No. 71119 (1990)]

PRELIMINARY PREVENTIVE INJUNCTION

Preliminary preventive injunction is available in either case. Note that Sec. 15
makes the provisions of Rule 58 applicable to Rule 70.

9. Resolving defense of ownership

Under Sec. 33(2), BP Blg 129, when in an ejectment suit, the defendant raises the
question of ownership in his pleadings, and the issue of ownership, the MTC
nevertheless has undoubted competence to resolve the issue of ownership only to
determine the issue of possession.
Hence:
(1) Primary rule is that the principal issue must be that of possession.
(a) Ownership is merely ancillary.
(b) Issue of ownership may be resolved but only for the purpose
of determining the issue of possession.
(2) It must sufficiently appear from allegations of the complaint that what plaintiff
really and primarily seeks is restoration of possession.
(3) Inferior court cannot adjudicate on the nature of ownership where relationship
of lease has been sufficiently established
(a) Unless it be proven that there has been a subsequent
change in or termination of that relationship between
parties.
(4) In forcible entry, a party who can prove prior possession can recover such
possession even against the owner himself.
(a) Hence, if prior possession may be ascertained in some other
way, the inferior court cannot intrude into the issue of
ownership.
(5) Where the question of who has prior possession hinges on the issue of who is
the real owner:
a) The inferior court may resolve issue of ownership, but such pronouncement
is merely provisional.
b) It does not bar or prejudice an action between the same parties involving
title. [Refugia v. CA, G.R. No. 118284(1996)]
Judgment for ejectment cannot be enforced against a co-owner who was not made
a party to the action. [Cruzcosa v. Concepcion, G.R. No. L-11146 (1957)]

10. How to stay the immediate execution of judgment

JUDGMENT OF THE MTC
GENERAL RULE:
Judgment of the MTC against defendant in ejectment cases is immediately
executory.
EXCEPTION: When the following concur:
(1) The defendant perfects his appeal;
(2) He files a sufficient supersedeas bond to pay the rents, damages, and costs
accruing down to the time judgment appealed from; and
(3) He deposits with the appellate court:
(a) The amount of rent due from time to time under the contract, or
(b) In the absence of contract, the reasonable value of the use and
occupation of premises for the preceding month or period
determined by judgment on or before the 10th day of each

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 succeeding month or period [Chua v. CA, G.R. No. 113886 (1998)]
All of these requisites must concur. The deposit is a mandatory requirement;
hence, if it is not complied with, execution will issue as a matter of right. [Antonio
v. Geronimo, G.R. No. 124779(2005)]
JUDGMENT OF THE RTC
The judgment of the Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further appeal that may be taken
therefrom. [Sec. 21, Rule 70]

11. Prohibited pleadings and motions

GENERAL RULE:
All actions for forcible entry and unlawful detainer shall be governed by the
summary procedure of Rule 70, irrespective of the amount of damages or unpaid
rentals sought to be recovered. [Sec. 3]
EXCEPTIONS:
1. In cases covered by the agricultural tenancy laws; or
2. When the law otherwise expressly provides. [Sec. 3]

PROHIBITED PLEADINGS [Sec. 13]

1) Petition for relief from judgment;
2) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
3) Reply;
4) Third-party complaints;

PROHIBITED MOTIONS {Sec. 13}

(1) Motion to dismiss; only to exceptions:
(a) Lack of jurisdiction over subject matter; or
(b) Failure to comply with conciliation, when such is required;
(2) Motion for bill of particulars;
(3) Motion for new trial, reconsideration of a judgment, or reopening of
trial;
(4) Motion for extension of time to file pleadings, affidavits, or other
paper;
(5) Memoranda;
(6) Motion to declare defendant in default;
(7) Dilatory motions for postponement;
(b) (8) Interventions.

M. CONTEMPT
Contempt of court is disobedience to the court by acting in opposition to its
authority, justice, and dignity. It signifies not only a willful disregard or
disobedience to the court’s orders but also conduct tending to bring the authority
of the court and administration of law into disrepute, or, in some manner, to
impede the due
administration of justice. [Siy v. NLRC, G.R. No. 158971(2012)] The power to
declare a person in contempt of court and in dealing with him accordingly is an
inherent power of the court. It is used as a means to protect and preserve the
dignity of the court, the solemnity of the proceedings, and administration of
justice. [Montenegro v. Montenegro, G.R. No. 156829 (2004)] Contempt
proceedings have a dual function: (a) vindication of public interest by punishment
of contemptuous conduct; and (b) coercion to compel the contemnor to do what
the law requires him to uphold the power of the Court, and also to secure the

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rights of the parties to a suit awarded by the Court. [Regalado v. Go, G.R. No.
167988 (2007)]

1. Kinds of contempt
According to Nature
Criminal contempt
Civil contempt
According to Manner of Commission
Direct contempt
Indirect contempt

2. Purpose and nature of each

According to Nature
(1) Criminal contempt: Conduct directed against the authority and dignity of the
court or a judge acting judicially.
(2) Civil contempt: Failure to do something ordered to be done by a court or by
a judge for the benefit of the opposing party. [Lorenzo Shipping v. Distribution
Management, G.R. No. 155849 (2011)]
According to Manner of Commission
(1) Direct contempt: Act committed in the presence of or so near the court or
judge as to obstruct or interrupt the proceedings before the same.
(2) Indirect contempt: One not committed in the presence of the court. It is an
act done at a distance which tends to belittle, degrade, obstruct, or embarrass the
court and justice. [Lorenzo Shipping v. Distribution Management, G.R. No. 155849
(2011)]

3. Remedy against direct contempt; penalty

Offense Penalty
If RTC or a court of equivalent or higher Fine not exceeding P2,000 and/or
rank Imprisonment not exceeding 10 days or
both
If lower court: Fine not exceeding P200 and/or
Imprisonment not exceeding 1 day or
both
REMEDY OF A PERSON ADJUDGED IN DIRECT CONTEMPT [Sec. 2, Rule 71]
1. He cannot appeal, but he may file certiorari or prohibition.
2. Execution of judgment shall be suspended pending resolution of such
petition, provided:
(a)He files a bond fixed by the court which rendered judgment;
and
(b)Conditioned that he will abide by and perform the judgment
should the petition be decided against him.

4. Remedy against indirect contempt; penalty

Offense Penalty
If against RTC, or court of equivalent or Fine not exceeding P30,000 and/or
higher rank Imprisonment not exceeding 6 month,
or both
If committed against lower court Fine not exceeding P500, and/or
Imprisonment not exceeding 1 month,
or both
If contempt consists in violation of a Offender may also be ordered to make
writ of injunction, TRO, or status quo complete restitution to the party injured

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order by such violation of the property
involved or such amount as may be
alleged and proved.
If there is nothing more to return,
offender is personally liable for the
restitution of the money equivalent to
the lost thing [Rosario Textile Mills v.
CA, G.R. No. 137326 (2003)]
If committed against a person or entity Penalty shall depend upon the
exercising quasijudicial functions provisions of the law which authorizes
penalty for contempt against such
persons or entities [Sec. 12, Rule 71]
REMEDY OF A PERSON ADJUDGED IN INDIRECT CONTEMPT
May be appealed to the proper court as in criminal cases, but execution shall not
be suspended until bond is filed. [Sec. 11, Rule 71] Generally, a non-party may
not be liable for contempt unless he is guilty of conspiracy with any of the parties
in violating the court’s orders. [Desa Ent. Inc. v. SEC, G.R. No. L45430(1982)]
A contempt proceeding, whether civil or criminal, is still a criminal proceeding,
hence, acquittal is a bar to a second prosecution. The distinction is for the purpose
only of determining the character of the punishment to be administered. [Santiago
v. Anunciacion, G.R. No. 89318(1990)]

5. How contempt proceedings are commenced

PROCEDURAL REQUISITES FOR PROCEEDINGS
(1) A charge in writing or an order of the court to appear and explain; and
(2) An opportunity for respondent to comment on the charge and to appear and
explain his conduct.
(3) To be heard by himself or counsel [Regalado v. Go, G.R. No. 167988 (2007)]

TWO MODES OF COMMENCING A PROCEEDING

(1) Motu proprio by the court against which contempt was committed: By order or
any other formal charge requiring respondent to show why he should not be
punished for contempt; or
(2) Independent action via verified petition in all other cases: By a charge
commenced by a verified petition with supporting particulars. [Sec. 4, Rule 70]

WHERE TO FILE CHARGE

GENERAL RULE: Proceeding for Indirect Contempt shall be filed and tried by the
court against which the contumacious conduct was committed.
EXCEPTIONS:
(1) If committed against a lower court, it may be tried by the RTC, regardless of
the imposable penalty; or
(2) If committed against the SC, it may cause it to be investigated by the
prosecutor and filed with the RTC, or for hearing and recommendation where the
charge involves questions of fact [Sec. 5, Rule 70]

6. Acts deemed punishable as indirect contempt

SPECIFIC ACTS CONSTITUTING INDIRECT CONTEMPT
(1) Misbehavior of an officer of a court in the performance of his official duties or
in his official transactions.
(2) Abuse of or any unlawful interference with processes or proceedings of a court
not constituting direct contempt.
(3) Disobedience or resistance to lawful writ, process, order, or judgment of a

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court, or any unlawful intrusion to any real property after being ejected.
(4) Failure to obey subpoena duly served.
(5) Assuming to be an attorney or officer of a court, and acting as such without
authority.
(6) Improper conduct tending to impede, obstruct, or degrade administration of
justice.
(7) Rescue, or attempted rescue, of a person or property in custody of an officer.
[Sec. 3, Rule 71]
(8) Failure of counsel to inform the court of the death of his client. [RIANO, since it
constitutes improper conduct tending to impede the administration of justice.]

7. When imprisonment shall be imposed

(1) When the contempt consists in the refusal or omission to do an act which is yet
in the power of the respondent to perform, he may be imprisoned by order of the
court concerned until he performs it. [Rule 71, Sec. 8]
(2) When the respondent “carried the keys to his prison in his own pocket.”
[Galvez v. Republic Surety & Insurance Co., Inc., G.R. No. L-12581(1959)] Only
the judge who ordered the confinement of the person for contempt of court can
issue the Order of Release. [Inoturan v Limsiaco, Jr., AM No. MTJ-01-1362(2005)]
Sec. 8, Rule 71 does not apply to tenants who refused or failed to pay their rentals
to the special administratrix of the property. The non-payment of rentals, which is
a civil debt, is covered by the constitutional guarantee against imprisonment.
[REGALADO]

8. Contempt against quasi-judicial bodies

Rule 71 shall apply to contempt committed against persons, entities, bodies, or
agencies exercising quasi-judicial functions or have suppletory effect to such rules
as they may have adopted.
RTC of the place where the contempt was committed shall have jurisdiction. It is
not within the jurisdiction and competence of quasi-judicial bodies to decide
indirect contempt cases. The requirement for a verified petition must also be
complied with (e.g. DARAB has no power to decide the contempt charge filed
before it). [Land Bank v. Listana, G.R. No. 152611(2003)]
Sec. 12, Rule 71 confers contempt powers on all Quasi-Judicial entities or
supplements their rules, unless the applicable law provides otherwise.
Acts or violations against quasi-judicial bodies punishable as contempt: Where a
person, without lawful excuse, fails to appear, make oath, give testimony or
produce documents when required to do so by the official or body exercising such
powers.
Other acts or violations cannot be punished as contempt unless specifically defined
in the governing law as contempt of court or if it authorizes the quasi-judicial body
to punish for contempt, and providing the corresponding penalty. [People v.
Mendoza (1953);ADMIN. CODE, Bk. VII, Ch. 3, sec. 13]

VI. SPECIAL PROCEEDINGS

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

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND

PROCESS
(1) Extrajudicial

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 (a) If only one heir: Affidavit of Selfadjudication
(b) If two or more heirs: Deed of Extrajudicial Settlement or Partition
[Sec. 1, Rule 74]
(2) Judicial
(a) Partition [Rule 69]
(b) Summary Settlement of Estate of Small Value [Sec. 2, Rule 74]
(c) Petition for Letters of Administration [Rule 79]
(d) Probate of a Will [Rules 75-79]
(i) Petition for Letters Testamentary; or
(ii) Petition for Letters of Administration with the will annexed (if no
named executor)

1. Which court has jurisdiction

Exclusive original jurisdiction over all matters of probate, both testate and
intestate, shall lie with:
Outside Metro Manila MTC if gross value of the estate does
not exceed P300,000; If it exceeds such
value then RTC
In Metro Manila MTC if gross value of the estate does
not exceed P400,000; Otherwise RTC
Court first taking cognizance shall exercise jurisdiction to the exclusion of all other
courts and cannot be divested by subsequent act of interested parties.
Testate proceedings take precedence over intestate proceedings of the same
estate. [Sandoval v. Santiago, G.R. No. L-1723 (1949)]

Thus, if in the course of intestate proceedings pending before a court of first

instance, it is found that the decedent had left a last will and testament,
proceedings for the probate of the latter should replace the intestate proceedings
even if at that stage an administrator had already been appointed, the latter being
required to render final account and turn over the estate in his possession to the
executor subsequently appointed. This, however, is understood to be without
prejudice that should the alleged will be rejected or is disapproved, the proceeding
shall continue as an intestacy. [Uriarte v. CFI, G.R. No. L-21938 (1970]

2. Venue in judicial settlement of estate

Inhabitant of the Philippines at the time Court of the province where decedent
of death (citizen or alien) resided at time of death
Inhabitant of foreign country at the time Court of any province where decedent
of death had estate
Residence
In the application of venue statutes and rules, residence rather than domicile is
the significant factor. The word “resides” means personal, actual, or physical
habitation of a person, or his actual residence or place of abode. It does not mean
legal residence or domicile. [Fule v. CA, G.R. No. L-40502 (1976)]
Even where the statute uses the word ‘domicile’, it must be construed as meaning
residence. [Festin at 16]

NOTE: “Jurisdiction” as used in Rule 73 means venue.

If venue is improperly laid: General Rule: Ordinary appeal

Exceptions: Certiorari may be resorted to if impropriety of venue (due to residence

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or location of estate) appears on the record. [Sec. 1, Rule 73]

3. Extent of jurisdiction of probate court

A probate court is of limited jurisdiction. It may only determine and rule upon
issues relating to the settlement of estates namely:
(1) Liquidation of estate;
(2) Administration of the estate; and
(3) Distribution of the estate [Herrera]
(4) Testamentary capacity of testator
(5) If will was executed in accordance with formalities prescribed by law [Camaya
v. Patulandong, G.R. 144915 (2004)]

General rule: Questions as to title to property cannot be passed upon on testate or

intestate proceedings.
Exceptions:
(1) In a provisional manner to determine whether said property should be included
or excluded in the inventory, without prejudice to final determination of title in a
separate action [Cuizon v. Ramolete, G.R. No. L-51291 (1984)]
(2) With consent of all the parties, without prejudice to the rights of third persons
[Trinidad v. CA, G.R. No. 75579 (1991)]
(3) If the question is one of collation or advancement [Coca v. Borromeo, G.R. No.
L-27082 (1978)]
(4) When the estate consists of only one property [Portugal v. Portugal-Beltran,
G.R. No. 155555 (2005)]

Not the court where petition is first filed but court which first takes cognizance
The court first taking cognizance of the settlement of estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. [Sec. 1, Rule 73]

Under the rule of venue, the court with whom a petition is first filed must also first
take cognizance of the petition in order to exclude other courts. [Bautista]

4. Powers and duties of probate court

It is the duty of courts of probate jurisdiction to guard jealously the estates of the
deceased person by intervening in the administration thereof in order to remedy or
repair any injury that may be done thereto [Dariano vs. Fernandez Fidalgo, G.R.
No. L-4918 (1909)]
There seems, however, to be a general tendency, in the absence of express and
specific restrictions to the contrary, to uphold the exercise by the probate court of
such incidental powers as are, within the purview of their grant of authority,
reasonably necessary to enable them to accomplish the objects for which they
were invested with jurisdiction and to perfect the same. [In Re: Baldomero Cosme,
G.R. No. 43351 (1937)]

Ancillary powers of a probate court

(1) Issue warrants and processes to compel attendance of a witness and to carry
into effect their orders and judgments;
(2) Issue warrant for apprehension and imprisonment of a person who refuses to
perform an order or judgment;
(3) All other powers granted to them by law [Sec. 3, Rule 73]

B. SUMMARY SETTLEMENT OF ESTATES

General rule: The settlement of the estate of the decedent should be judicially

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administered through an administrator or executor.
Exceptions: Law allows heirs to resort to:
(1) Extrajudicial settlement of estate (decedent died intestate and left no debts);
(2) Summary settlement of estate (for estates of small value, when gross estate
does not exceed P10,000)

Ratio: Where partition is possible, either in or out of court, the estate should not
be burdened with an administration proceeding without good and compelling
reasons. [Pereira v. CA, G.R. No. L-81147 (1989)]

No preclusion from instituting administrative proceedings While Section 1 allows

the heirs to divide the estate among themselves as they may see fit, or to resort
to an ordinary action for partition, the said provision does not compel them to do
so (not precluded from instituting administration proceedings) if they have good
reasons to take a different course of action. “Good reasons” depend on
circumstances of each case. [Ibid]

1. Extrajudicial settlement by agreement between heirs, when allowed

Requisites [Sec. 1, Rule 74]
(1) Decedent died intestate
(2) Left no debts or heirs have already paid such at the time of partition
(3) Heirs are all of age, minors represented by their legal or judicial
representatives
Modes: [Sec. 1, Rule 74]

(1) If sole heir: Affidavit of Selfadjudication (of the whole estate)

(2) If more than one heir: Deed of Extrajudicial Settlement or partition Deed of
Extrajudicial Settlement is resorted to if there is no disagreement among the heirs.

If there is a disagreement, then they may resort to an action for partition (judicial)

2. Two-year prescriptive period

Two-year prescriptive period: Heirs or persons deprived of lawful participation in
the estate may compel settlement of estate within 2 years from settlement and
distribution.

A lien shall be constituted on the real property of the estate and together with the
bond, it shall be liable to creditors, heirs or other persons for a full period of 2
years after such distribution.

Such lien will not be cancelled before the lapse of two years even if a distributee
offers to post bond to answer for contingent claims [Rebong v. Ibanez, G.R. No. L-
1578 (1947)]

3. Affidavit of self-adjudication by sole heir

Modes: [Sec. 1, Rule 74]
(1) If sole heir: Affidavit of Selfadjudication (of the whole estate)
(2) If more than one heir: Deed of Extrajudicial Settlement or partition Deed of

Extrajudicial Settlement is resorted to if there is no disagreement among the heirs.

If there is a disagreement, then they may resort to an action for partition (judicial)

4. Summary settlement of estates of small value, when allowed

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When allowed:
Whenever the gross value of estate of the decedent does not exceed P10, 000.

Procedural Requirements:
(1) Petition by an interested person alleging fact that estate does exceed
P10,000Notice
(a) Which shall be published once a week for 3 consecutive weeks
(b) n a newspaper of general circulation in the province
(c) It is not required that publication be for a complete 21 days. What is required
is that it be published for once a week for 3 consecutive weeks.
(2) Other notice to interested persons as the court may direct [Sec. 2, Rule 74]
(3) Hearing which shall be
(a) Held not less than 1 month nor more than 3 months
(b) Counted from the date of the last publication of a notice
Division
(4) Bond in an amount to be fixed by court if personal property is to be distributed
[Sec. 3, Rule 74]

Upon fulfillment of the requisites, the court may proceed summarily without the
appointment of an executor/administrator and without delay,
(1) to grant, if proper, allowance of the will, if there be any
(2) to determine who are persons legally entitled to participate in the estate
(3) to apportion and divide among them after the payment of such debts of the
estate
(4) persons in own right if of lawful age, or their guardians, will be entitled to
receive and enter into possession of the portions of the estate so awarded to them
respectively. [Sec. 2, Rule 74]
Page 12 of28

~
5. Remedies of aggrieved parties after extra-judicial settlement of estate
WITHIN REGLAMENTARY PERIOD OF TWO YEARS:
(1) Claim on the bond
(2) Claim on lien on real property – notwithstanding any transfers of real property
that may have been made.
(3) Reopening by intervention before rendition of judgment
(4) Action to Annul Settlement

When applicable: there is an heir or other person who

(1) has been unduly deprived of his lawful participation in the estate:
(a) He shall have a right to compel the settlement of the estate in the courts for
the purpose of satisfying such lawful participation
(b) If annulment on the ground of fraud – an action for reconveyance based on an
implied or constructive trust must be filed within 10 years from accrual of the
cause of action [Amerol v. Bagumbaran, G.R. No. L-33261 (1987)]
(2) has been unduly deprived of his lawful participation payable in money:
The court having jurisdiction of the estate may, by order for that purpose, after
hearing,
(a) settle the amount of such debts or lawful participation, and
(b) may issue execution against the bond or against the real estate belonging to
the deceased, or both. [Sec. 4, Rule 74]

When not applicable:

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(1) To persons who have participated or taken part or had notice of the
extrajudicial partition
(2) When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all
persons or heirs of the decedent have taken part in the extrajudicial settlement or
are represented by themselves or through guardians)

Additional Period for Claim of Minor or Incapacitated Person If on the date of the
expiration of the period of 2 years, the person authorized to file a claim is:
(1) a minor or mentally incapacitated,
(2) is in prison or
(3) outside the Philippines, He may present his claim within 1 year after such
disability is removed. [Sec. 5, Rule 74]

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

OTHERS:
(1) Action for reconveyance of real property – based on an implied trust, reckoned
10 years from issuance of title [Marquez v. CA, G.R. No. 125715 (1998)]
(2) Rescission – in case of preterition of compulsory heir in partition tainted with
bad faith [Art 1104, NCC]
(3) Petition for Relief – on ground of fraud, accident, mistake, excusable
negligence; within 60 days after petitioner learns of judgment or final order, or
other proceedings to be set aside, and not more than 6 months after such
judgment or order is entered or taken [Rule 38]

C. PRODUCTION AND PROBATE OF WILL

1. Nature of probate proceeding

(1) In rem proceedings
(2) Mandatory – no will shall pass either real or personal property unless it is
proved and allowed in the proper court [Sec. 1, Rule 75]
(3) Right to ask for probate does not prescribe [Guevara v. Guevara, G.R. No.
L5405 (1956)]
(4) Doctrine of estoppel does not apply [Fernandez v. Dimagiba, G.R. No. L23638
(1967)]
Before any will can have force or validity, it must be probated. Until admitted to
probate, a will has no effect whatsoever and no right can be claimed thereunder.
[Sps Pascual v. CA, G.R. No. 115925 (2003)]

The presentation of the will for probate is mandatory and is a matter of public
policy. Unless the will is probated, the right of a person to dispose of his property
may be rendered nugatory. [Maninang v. CA, G.R. No. L-57848 (1982)]

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

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The person named executor shall present the will to the court having jurisdiction,
unless the will has reached it in any manner, and signify acceptance/refusal of the
trust within 20 days after he knows of the death of the testator, or within 20 days
after he knows that he is named executor. [Sec. 3, Rule 75]

Penalty for neglect without excuse satisfactory to the court: Fine not exceeding
P2,000 [Sec. 4, Rule 75]

Person retaining will may be committed to prison if:

(1) He has custody of the will
(2) There is a court order directing him to deliver the will; and
(3) He neglects without reasonable cause to deliver the same [Sec. 5, Rule 75]

2. Who may petition for probate; persons entitled to notice

TIMING AND WHO MAY PETITION A will may be probated:
(1) Before the testator’s death - By testator himself (ante-mortem probate)
Rationale: Easier for courts to determine mental condition of testator. Fraud
intimidation and undue influence are minimized. And if will does not comply with
requirements prescribed by law, they can be easily corrected.
(2) After the testator’s death – By executor, devisee, or legatee named in the will
or any person interested in the estate

MEANING OF INTEREST IN ESTATE

An interested party is one who would be benefited by the estate such as an heir or
one who has claim against the estate like a creditor. [Sumilang v. Ramagosa, G.R.
No. L23135 (1967)]

Persons entitled to notice

(1) Known heirs, legatees and devisees;
(2) Named executor or his co-executor if they are not the petitioner [Sec. 4, Rule
76]
(3) Compulsory heirs, if the testator himself asks for probate of his own will.

Periods to give notice

(1) Personal service: At least 10 days before hearing
(2) By mail: at least 20 days before hearing

D. ALLOWANCE OR DISALLOW ANCE OF WILL

Allowance or Disallowance of Will
Probate or allowance of wills is the act of proving in court a document purporting
to be the last will and testament of the deceased for the purpose of its official
recognition, registration and carrying out its provision in so far as they are in
accordance with law. [Festin at 40]

General Rule: A probate proceeding only looks at extrinsic validity.

Exception: Principle of Practical Consideration The probate court may pass upon
the intrinsic validity of the will because there is apparent defect on its face – this is
also known as the principle of practical consideration [Nepomuceno v. CA, G.R.
No. L-62952 (1985)]. (e.g. When on the face of the will the petitioner appears to
be preterited)

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But the remedy of certiorari is available, where the grounds for dismissal are
indubitable (e.g. grave abuse of discretion of the judge when there is clearly
preterition and the said judge still continues the probate proceedings)

Extrinsic validity: due execution of the will

Due execution of the will means:

(1) That the will was executed strictly in accordance with the formalities required
by law;
(2) That the testator was of sound and disposing mind when the will was
executed;
(3) That there was no vitiation of consent through duress, fear or threats;
(4) That it was not procured by undue and improper pressure or influence on part
of beneficiary or other person for his benefit;
(5) That the testator’s signature is genuine (not procured through fraud, and that
the testator intended that what he executed was his last will and testament)
[Festin]

1. Contents of petition for allowance of will

(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, his leaving his estate in such
province;
(2) Names, ages, and residences of the heirs, legatees, and devisees of the
testator or decedent
(3) Probable value and character of the property of the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court, the name of the person having
custody of it. [Sec. 2, Rule 76]

2. Grounds for disallowing a will

The will shall be disallowed in any of the following cases:
(1) If not executed and attested as required by law;
(2) If the testator was insane, or otherwise mentally incapable to make a will, at
the time of its execution;
(3) If executed under duress, or the influence of fear, or threats;
(4) If procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(5) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto [Sec. 9, Rule 76]

The list is exclusive. [Sps Ajero v. CA, G.R. No. 106720 (1994)]

3. Reprobate; requisites before will proved outside allowed in the Philippines; effects of
probate
REPROBATE

Wills proved and allowed in a foreign country, according to the laws of such
country, may be allowed, filed, and recorded by the proper Court of First Instance
in the Philippines (now RTC). [Sec. 1, Rule 77]

Page 192 of 360

Requisites for Allowance
(1) Duly authenticated Copy of the will;
(2) Duly authenticated Order or decree of the allowance in foreign country;

A petition for allowance in the Philippines may be filed by executor or other person
interested. The Court having jurisdiction shall fix a time and place for the hearing
and cause notice thereof to be given as in case of an original will presented for
allowance. [Sec. 2, Rule 77]

Evidence necessary for reprobate

(1) the due execution of the will in accordance with the foreign laws;
(2) the testator has his domicile in the foreign country and not in the Philippines;
(3) the will has been admitted to probate in such country;
(4) the fact that the foreign tribunal is a probate court, and
(5) the laws of a foreign country on procedure and allowance of wills [Vda. De
Perez v. Tolete, G.R. No. 76714 (1994)]

Effect
(1) The will shall have the same effect as if originally proved and allowed in such
court;
(2) The grant of letters testamentary or administration shall extend to all estates
of the testator in the Philippines;
(3) After payment of just debts and expenses of administration the estate shall be
disposed of according to the will
(4) Residue disposed of in accordance with law [Sec. 4, Rule 77]

EFFECTS OF PROBATE

Effect of Probate of Will Decree of probate is conclusive as to its due execution,

subject to the right of appeal. (Thus, no suit for forgery of a will which has been
duly probated with the order becoming final).

If a decision admitting a will to probate becomes final, there can no longer be any
challenge to its due execution and authenticity. Thus, a criminal action will not lie
against an alleged forger of a will which had been duly admitted to probate by a
court of competent jurisdiction. [Mercado v. Santos, G.R. No. 45629 (1938)]

Order allowing or disallowing a will may be the subject of an appeal. [Sec. 1, Rule
109]

E. LETTERS TESTAMENTARY AND OF ADMINISTRATION

1. When and to whom letters of administration granted

Who may administer the estate of a deceased person?
(1) Executor
(2) Administrator

Executor Administrator
Appointed when:
Person named expressly by deceased 1. Testator did not appoint an executor
person in his will to administer, settle, 2. The appointment was refused

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and liquidate estate, and subsequently 3. The executor is incompetent to serve
appointed by court 4. The will was disallowed 5. No will
(intestate succession)
Has duty to present the will to court
within 20 days after
(1) he learns of the death of testator or
(2) after he knew he was appointed as No such duty
executor (if he obtained such knowledge
after death of testator), unless will has
reached the court in any manner
The testator may provide that he may
serve without a bond but the court shall Required to file bond unless exempted
direct him to post a bond conditioned by law
only to pay debts.
Compensation provided in the will
controls, unless renounced.
First part of Rule 85 Sec 7 applies
If there’s no provision for compensation,
Sec. 7 of Rule 85 shall apply.
Any competent person may serve as an executor or administrator.

Married woman may serve as executor or administrator and a marriage of a single

woman shall not affect her authority so to serve under a previous appointment.
[Sec. 3, Rule 78]

WHO ARE INCOMPETENT TO SERVE AS EXECUTOR OR ADMINISTRATOR

(1) Minor;
(2) Non-resident
(3) One who, in the opinion of the court, is unfit to exercise the duties of the trust
by reason of
(a) Drunkenness
(b) Improvidence
(c) Want of understanding
(d) Want of integrity; or
(e) Conviction of an offense involving moral turpitude. [Sec. 1, Rule 78]
(4) Executor of an executor cannot, as such, administer estate of the first testator
[Sec. 2, Rule 78]

The list above is not exclusive.

In this jurisdiction, one is considered to be unsuitable for appointment as

administrator when he has adverse interest of some kind or hostility to those
immediately interested in the estate. [Lim v. Diaz-Millarez, G.R. No. L17633
(1966)] The administrator should be indifferent between the estate and claimants
of the property, except to preserve it for due administration, and should be
removed when his interests conflicts with such right and duty. [Medina v. CA, G.R.
No. L-34760 (1973)]

The regular administrator is charged with the task of accomplishing and

terminating the administration of the estate with the utmost reasonable dispatch,
with a view to an early distribution of the net estate among the heirs and persons
entitled thereto. [Medina v. CA, G.R. No. L-34760 (1973)]

WHEN ARE LETTERS TESTAMENTARY OR OF ADMINISTRATION GRANTED

Page 194 of 360

Letters testamentary – it is an authority issued to an executor named in the will
to administer the estate. It is issued once the will has been proved and allowed
and if the executor named is competent, accepts the trust and gives bond. [Sec.
4, Rule 78]

Letters administration – authority issued by court to a competent person to

administer the estate if:
(1) No executor is named in will
(2) Executor or executors named are incompetent, refuse the trust, or fail to give
bond or
(3) Person dies intestate. [Sec. 6, Rule 78]

2. Order of preference
Order of preference in the grant of administration
(1) Surviving spouse or next of kin, or both, or to such person as the surviving
spouse, or next of kin requests to have appointed, if competent and willing to
serve.
(2) If those enumerated above be incompetent or unwilling, or if the husband or
widow, or next of kin, neglects for 30 days after the death of the person to apply
for administration or to request that administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent
and willing to serve.
(3) If there is no
(2), it may be granted to such other person as the court may select. [Sec. 6, Rule
78]

Next of kin are those entitled by law to receive the decedent’s properties. [Ventura
v. Ventura, G.R. No. L-26306 (1988)]

3. Opposition to issuance of letters testamentary; simultaneous filing of petition for

administration
Who may oppose Any person interested in a will. [Sec. 1, Rule 79]
Meaning of interested person One who would be benefited by the estate, such as
an heir, or one who has a claim against the estate, such as a creditor; thus
interest must be material and direct, not merely indirect or contingent. [Saguinsin
v. Lindayag, G.R. No. L-17759 (1962)]

Grounds
(1) Incompetency of the person/s for whom letters are prayed, or
(2) Contestant’s own right to the administration (ex. preferential right under Rule
78 Sec 6) [Sec. 4, Rule 79]

Form required Grounds for opposition must be stated in writing; court shall then
hear and pass upon sufficiency of such grounds. [Sec 1, Rule 79]

Contents of a Petition for Letters of Administration

(1) Jurisdictional facts;
(a) Death of testator;
(b) Residence at time of death in the province where probate court is sitting; or
(c) If he is an inhabitant of foreign country, his having left his estate in such
province [Diez v. Serra, G.R. No. L27650 (1927)]

Page 195 of 360

(2) Name, age and residence of heirs and the name and age of creditors;
(3) Probable value and character of the estate; (4) Name of person for whom
letter is prayed [Sec. 2, Rule 79]

Defect in petition would not render void issuance of letters of administration.

Publication and Notice Publication of notice for 3 weeks successively and notice to
heirs, creditors and interested persons, if place of residence is known, are
jurisdictional. [Sec. 3, Rule 79 and Secs. 3-4, Rule 76]

Simultaneous filing of Opposition and Petition: A petition may, at the same time,
be filed for letters of administration to himself, or to any competent person or
persons named in the opposition. [Sec. 4, Rule 79]

Lack of interest in the proceedings is equal to lack of legal capacity to institute

proceedings. NOT lack of jurisdiction on part of court. [Herrera]

Order appointing regular administrator is appealable. [Rule 109]

When Letters of Administration is issued:

If proven at a hearing that:
(1) Notice has been given as required; and
(2) That decedent left no will or there is no competent and willing executor [Sec.
5, Rule 79]

One who is named as executor in the will or one who enjoys preference under the
rules is not automatically entitled to the issuance of letters testamentary/of
administration. A hearing has to be held in order to ascertain her fitness to act as
executor/administrator. [Baluyut v. Cruz Paño, G.R. No. L-42088 (1976)]

Letters of administration may be granted to any qualified applicant, though it

appears that there are other competent persons having better right if such
persons fail to appear when notified and claim the issuance of letters to
themselves. [Sec. 6, Rule 79]

4. Powers and duties of executors and administrators; restrictions on the powers

Posting of bond Before an executor or administrator enters upon the execution of
his trust, and letters testamentary or of administration issue, he shall give a bond
in such sum as the court directs.

Purpose The bond posted by the administrators and executors is intended as an

indemnity to the creditors, the heirs and the estate.

How is liability on the bond enforced? By motion or in a separate action. [Festin at

56] Conditions on the bond
(1) Make a return to the court, within 3 months, a true and complete inventory of
all goods, chattel, rights, credits, and estate of the deceased which shall come to
his possession or knowledge or to the possession of any other person for him;
(2) To administer according to these rules, and if an executor, according to the will
of the testator, all goods, chattel, rights, credits, and estate of the deceased which
shall come to his possession or to the possession of any other person for him and
from the proceeds to pay and discharge all debts, legacies, charges on the same,
and dividends as shall be decreed by court.

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(3) Render a true and just account within 1 year and when required by court; and
(4) Perform all orders of the court [Sec. 1, Rule 81]

If the testator provides in his will that executor shall serve without a bond, the
court may still require him to file a bond conditioned only to pay debts of testator.
[Sec. 2, Rule 81]

Joint bond Joint executors or administrators may be required by court to file either
a separate bond from each or joint bond from all. [Sec. 3, Rule 81]

Special Administrator Condition on the bond

(1) Make and return true inventory;
(2) Render accounting when required by court;
(3) Deliver the estate of the deceased to the person appointed as regular executor
or administrator, or other authorized person. [Sec. 4, Rule 81]

5. Appointment of special administrator

When appointed
(1) When there is delay in granting letters testamentary or administration, or
(2) By any cause, including an appeal from allowance or disallowance of a will
[Sec. 1, Rule 80]
(3) When the executor or regular administrator has a claim against the estate,
with respect to the settlement or adjustment of that claim [Sec. 8, Rule 86]

Procedure for Appointment There must first be notice and publication. Notice
through publication of the petition is a jurisdictional requirement even in the
appointment of a special administrator. [De Guzman v. Angeles, G.R. No. 78590
(1988)]

Appointment of special administrator lies entirely in the sound discretion of the

court. [De Gala v. Gonzales, G.R. No. L-30289 (1929)]

The preference laid down under Sec 6, Rule 78 refers to the appointment of a
regular administrator, not to that of a special administrator [Pijuan v. De Gurrea,
G.R. No. L21917 (1966)].

POWERS AND DUTIES OF SPECIAL ADMINISTRATOR

(1) Take possession and charge of the goods, chattels, rights, credits, and estate
of the deceased, and
(2) Preserve the same for the executor/administrator afterwards appointed, and
(3) For the purpose of (1) and (2), may commence and maintain suits as
administrator
(4) May sell only such perishable and other property as the court orders sold
(5) Not liable - to pay any debts of the deceased unless so ordered by the court.
[Sec. 2, Rule 80]

WHEN SPECIAL ADMINISTRATOR CEASES DUTIES

When letters testamentary/administration are granted on the estate of the
deceased:
(1) He shall deliver to the executor/administrator the goods, chattels, money, and
estate of the deceased in his hands.
(2) The executor/administrator may prosecute to final judgment suits commenced
by such SA [Sec. 3, Rule 80]

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Appointment of Special Administrator is interlocutory and is not appealable.
[Garcia v. Flores, G.R. No. L-10392 (1957)]

6. Grounds for removal of administrator

Revocation of administrator When the decedent’s will is allowed and proved after a
letters of administration has been issued as if he had died intestate, the
administration is deemed revoked. [Sec. 1, Rule 82]

Duty of administrator upon revocation of Letters

(1) Surrender the letters to court;
(2) Render his account within such time as the court may direct [Sec. 1, Rule 82]

Removal of executor or administrator Grounds

(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the court, or a duty expressly provided by
these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to discharge the trust. [Sec. 2, Rule 82]

List enumerated is not exclusive. Court is vested with ample discretion in removal
of administrator for as long as there is evidence of act or omission on the part of
the administrator not conformable to or in disregard of rules or orders of the court
which it deems as sufficient or substantial to warrant removal of administrator.
[Festin]

Examples of valid removal of an administrator by probate court

(1) Administrator who disbursed funds of estate without judicial approval. [Cotia v.
Jimenez, G.R. No. L-12132 (1958)]
(2) False representation by administrator in securing his appointment.
[Cobarrubias v. Dizon, G.R. No. L-225 (1946)]
(3) Administrator who holds interest adverse to that of the estate or his conduct
shows unfitness to discharge the trust [Garcia v. Vasquez, G.R. No. L-26615
(1970)]
(4) Administrator who has physical and mental inability and consequent
unsuitability to manage the estate. [De Borja v. Tan, G.R. No. L-6476 (1955)]

Temporary absence in the state does not disqualify one to be an administrator of

the estate [Gonzales v. Aguinaldo, G.R. No. 74769 (1990)]

Removal of Special Administrators The probate court may appoint or remove

special administrators based on grounds other than those enumerated in the Rules
at its discretion, such that the need to first pass upon and resolve the issues of
fitness or unfitness and the application of the order of preference under Section 6
of Rule 78, as would be proper in the case of a regular administrator, do not
obtain. As long as the discretion is exercised without grave abuse, and is based on
reason, equity, justice, and legal principles, interference by higher courts is
unwarranted. [Ocampo v Ocampo, G.R. No. 187879 (2010)]

Page 198 of 360

EFFECT OF REMOVAL, DEATH, OR RESIGNATION
(1) The remaining executor/administrator may administer the trust alone, unless
the court grants letters to someone to act with him.
(2) If there is no remaining executor/administrator, administration may be to any
suitable person. [Sec. 2, Rule 82]

Validity of acts Acts of the executor/administrator before removal/resignation are

valid. [Sec. 3, Rule 82]

Powers of new executor or administrator

(1) Collect and settle the estate not administered;
(2) Prosecute and defend actions commenced by or against the former executor or
administrator; and
(3) Have execution on judgments recovered in the name of the former executor or
administrator.
(4) Authority to sell granted by court to former executor or administrator may be
renewed without further notice or hearing. [Sec. 4, Rule 82]

F. CLAIMS AGAINST THE ESTATE

ESTATE BURDENED WITH LIEN OF CREDITORS Upon the death of the person, all
his property is burdened with all his debts, his debts creating an equitable lien
thereon for the benefit of the creditors.

And such lien continues until the debts are extinguished either by the payment,
prescription, or satisfaction in one of the modes recognized by law. [Suiliong & Co.
v. Chio-Taysan, G.R. No. L-4777 (1908)]

PURPOSE OF PRESENTATION OF CLAIMS AGAINST ESTATE

(1) To protect the estate of the deceased
(2) Executor/administrator will be able to examine each claim, determine whether
it is a proper one which should be allowed
(3) To appraise the administrator and the probate court of the existence of the
claim so that a proper and timely arrangement may be made for its payment in
full or by pro-rata portion in the due course of the administration. [Estate of Olave
v. Reyes, G.R. No. L29407 (1983)]

1. Time within which claims shall be filed; exceptions

General Rule: Claims must be filed within the time specified by the court in its
notice which shall not be less than 6 months nor more than 12 months from the
date of the first publication of the notice. [Sec. 2, Rule 86 Sec 2]

Exception

Belated claims The Court has the discretion, for cause and upon such terms as are
equitable, to allow contingent claims presented beyond the period previously fixed
provided they are filed within 1 month from the expiration of such period but in no
case beyond the date of entry of the order of distribution. [Danan v. Buencaminao,
G.R. No. L-57205 (1981); Sec. 2, Rule 86]

2. Statute of non-claims
Statute of non-claims General Rule: Claim must be filed within the time fixed by
the notice otherwise they are barred forever. [Sec. 5, Rule 86]

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Purpose: to settle the estate with dispatch, so that the residue may be delivered to
the persons entitled thereto without their being afterwards called upon to respond
in actions for claims. [Rio y Compania v. Maslog, G.R. No. L-12302 (1959), citing
Tan Se Guan v. Ga Siu San, 47 Phil. 96]

3. Claim of executor or administrator against the estate

Procedure to follow if the executor or administrator has a claim against the estate
he represents
(1) Executor/Administrator shall give notice thereof, in writing, to the court;
(2) The court shall appoint a special administrator who shall have the same
powers and liabilities as the general executor/administrator in the adjustment of
such claim.
(3) The court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim. [Sec. 8, Rule 86]

4. Payment of debts
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and ascertained; and
(2) It appears that there are sufficient assets to pay the debts

Executor/administrator shall pay the same within the time limited for that purpose.
[Sec. 1, Rule 88]

The probate court may hold in abeyance intestate proceedings pending

determination of a separate civil action against the administrator. [Dinglasan v.
Chia, G.R. No. L3342 (1951)]

The heirs of the estate may not demand the closing of an intestate proceeding at
any time where there is a pending case against the administrator of the estate.
The court can rightfully hold in abeyance until the civil case is settled. [Dinglasan
v. Chia, G.R. No. L-3342 (1951)]

G. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

1. Actions that may be brought against executors and administrators

Actions that may be commenced directly against executor or administrator (1)
Recovery of real or personal property, or interest therein, from the estate (2)
Action to enforce a lien thereon and (3) Actions to recover damages for an injury
to a person or property [Aguas v. Llenos, G.R. No. L-18107 (1962); Sec. 1, Rule
87] The aforementioned instances are deemed actions that survive the death of
the decedent: [Aguas v. Llenos, G.R. No. L-18107 (1962); Festin]

Actions which may NOT brought against Administrators Claim for the recovery of
money or debt or interest cannot be brought against executors or administrators.
[Aguas v. Llenos, G.R. No. L-18107 (1962); Sec. 1, Rule 87]

Executor or Administrator May Bring or Defend Actions Which Survive Death For
the recovery or protection of the property or rights of the deceased [Sec. 2, Rule
87]

Covers injury to property i.e. not only limited to injuries to specific property, but
extends to other wrongs by which personal estate is injured or diminished. [Aguas
v. Llenos, G.R. No. L-18107 (1962)]

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A mortgage belonging to the estate may be foreclosed by the executor or
administrator. [Sec. 5, Rule 87]

General Rule: Heirs may not sue for the recovery of property of the estate against
the executor or administrator during the pendency of the administration
proceedings. [Sec. 3, Rule 87]

Exceptions: (1) If executor or administrator is unwilling to bring a suit; (2) When

the executor or administrator is made a party defendant where he is alleged to
have participated in the act complained of; (3) Where there is no appointed
administrator [Festin]

2. Requisites before creditor may bring an action for recovery of property fraudulently
conveyed by the deceased
Any creditor may commence and prosecute to final judgment a like action for the
recovery of the subject of the conveyance or attempted conveyance if the
following requisites are satisfied:
(1) If executor/administrator failed to commence such action, action must be: (a)
With court permission (b) In the name of the executor/administrator (c) Creditor
files a bond, conditioned to indemnify the executor/administrator against the cost
and expenses incurred by such action (2) If conveyance or attempt is made in
favor of executor/administrator (a) No need for court permission (b) No need for
bond (c) Action shall be brought in the name of all the creditors

Effect Such creditor shall have a lien upon any judgment recovered by him in the
action for such costs and other expenses incurred therein as the court deems
equitable. [Sec. 10, Rule 87]

H. DISTRIBUTION AND PARTITION

BEFORE THERE COULD BE A DISTRIBUTION OF ESTATE, THE FOLLOWING STAGES
MUST BE FOLLOWED:
(1) Liquidation of the estate i.e. payment of obligations of the deceased.
(2) Collation and Declaration of heirs
- to determine to whom the residue of the estate should be distributed. -
Determination the right of a natural child
- Determination of proportionate shares of distributees Afterwards, the residue
may be distributed and delivered to the heirs. [Herrera]

Powers of the court in distribution and partition of estate:

(1) Collate;
(2) Determine the heirs; and
(3) Determine the share of each heirs.

Court may determine questions as to advancement made by decedent

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

1. Liquidation
General Rule: Before an order of distribution or assignment, it must be shown that
the “debts, funeral expenses and expenses of administration, allowances, taxes,

Page 201 of 360

etc., chargeable to the estate” have been paid.

Exception: If the distributees give a bond conditioned on the payment of above

obligations [Sec. 1, Rule 90]

The part distributed must not be subject to any controversy or appeal. [Sec. 2,
Rule 109]

2. Project of partition
A project of partition is merely a proposal for the distribution of the hereditary
estate which the court may accept or reject. [Reyes v. Barretto-Datu G.R. No. L-
17818 (1967)]

The executor/administrator has no duty to prepare and present the same under
the Rules. The court may, however, require him to present such project to better
inform itself of the condition of the estate. [3 Moran 541, 1980 Ed.]

It is the court that makes that distribution of the estate and determines the
persons entitled thereto:
(1) On application of executor/administrator or person interested in the estate
(2) Notice
(3) Hearing

Court shall assign the residue of the estate to the persons entitled to the same,
naming them and the proportions, or parts, to which each is entitled.

Such persons may demand and recover their respective shares from the
executor/administrator, or any other person having the same in his possession.

If there is a controversy as to who are heirs or shares such shall be heard and
decided as in ordinary cases. [Sec. 1, Rule 90]

Effect of Final Decree of Distribution

(1) In rem; binding against the whole world.
(2) Settlement of a decedent’s estate is a proceeding in rem which is binding on
the whole world. All persons having interest in the subject matter involved,
whether they are notified or not, are equally bound.
Consequently, a liquidation of similar import or other equivalent general liquidation
must also necessarily be a proceeding in rem so that all interested persons
whether known to the parties or not may be bound by such proceeding. [Philippine
Savings Bank v. Lantin G.R. L33929 (1983)]
(3) The court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed and any order that may be entered therein is
binding against all of them. [Ramon v. Ortuzar G.R. No. L-3299 (1951)]

The only instance where a party interested in a probate proceeding may have a
final liquidation set aside is when he is left out by reason of circumstances beyond
his control or through mistake or inadvertence not imputable to negligence. [Vda.
De Alberto v. CA G.R. No. L-29759 (1989)]

3. Remedy of an heir entitled to residue but not given his share

The better practice for the heir who has not received his share is to:
(1) Demand his share through a proper motion in the same probate or

Page 202 of 360

administrative proceedings, or
(2) Motion for reopening of the probate or administrative proceedings if it had
already been closed, and not through an independent action. [Guilas v. Judge of
the CFI of Pampanga, G.R. No. L-26695 (1972)]

4. Instances when probate court may issue writ of execution

General Rule: Writ of Execution is not allowed in probate proceedings [Vda de
Valera v. Ofilada, G.R. No. L-27526 (1974)]

Exceptions:
(1) To satisfy the contributive shares of devisees, legatees and heirs in possession
of the decedent’s assets [Sec. 6, Rule 88]
(2) To enforce payment of expenses of partition; [Sec. 3, Rule 90]
(3) To satisfy the costs when a person is cited for examination in probate
proceedings [Sec. 13, Rule 142]
When does a probate court lose jurisdiction of an estate under administration?
The probate court loses jurisdiction of an estate under administration only after
payment of all debts, and the remaining estate delivered to the heirs entitled to
receive the same. [Guilas v. Judge of the CFI of Pampanga, G.R. No. L-26695
(1972)]

I. TRUSTEES
 An individual person or member of a board given control or powers of
administration of property in trust with a legal obligation to administer it
solely for the purposes specified.

A trustee, like an executor/administrator, holds an office of trust, particularly when

the trustee acts as such under judicial authority. [Trusteeship of the Minors
Benigno, Angela and Antonio Perez y Tuazon, G.R. Nos. L16185-86 (1962)]

The duties of executor/administrator are however, fixed and/or limited by law

whereas those of the trustee of an express trust are, usually governed by the
intention of the trustor or the parties, if established by contract. Besides, the
duties of trustees may cover a wider range than those of executor/administrator of
the estate of deceased persons. [Araneta v. Perez, G.R. No. L-16962, (1962)]

1. Distinguish: trustee and executor/administrator

Trustee
Accounts must be under oath and
annually filed
Court which has jurisdiction: (1) RTC or
MTC if appointed to carry into effect the
provisions of a will (2) If trustee dies,
resigns, or removed in a contractual
trust, RTC has jurisdiction to appoint
new trustee
May sell or encumber property of the
estate held in trust if necessary or
expedient upon order of the court
May sell or encumber property of the
estate held in trust if necessary or
expedient upon order of the court
Executor/Administrator
Accounts are not under oath and shall
be filed only at such times as may be
required by court, except for initial and
final submission of accounts
Court which has jurisdiction may be the
RTC or MTC
May sell, encumber, or mortgage
property if it is necessary for the
purpose of: (1) paying debts, expenses
of administration or legacies, or (2) for

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Order of sale has no time limit
Appointed to carry into effect the
provisions of a will or written instrument
May be exempted from filing of bond if
(1) provided in the will, or (2)
beneficiaries requested exemption
Trusteeship is terminated upon turning
over the property to the beneficiary
after expiration of trust.
No obligation to pay debts of the
beneficiary or trustor
the preservation of property or (3) if
sale will be beneficial to heirs, legatees,
or devisees upon application to court
with written notice to heirs
Order of sale has no time limit
Appointed by court to settle estate of a
decedent
Not exempted from filing of bond even if
such exemption is provided in the will;
However bond is only conditioned upon
payment of debts.
Services of executor/administrator is
terminated upon payment of debts of
the estate and the distribution of
property to the heirs
Must pay the debts of the estate.

2. Conditions of the bond

General Rule: Before entering the duties of his trust a trustee shall file with the
clerk of court having jurisdiction of the trust a bond in the amount fixed by court
Exception:
The trustee may be exempted from giving a bond when requested by:
(1) Testator;
(2) All persons beneficially interested in the trust. [Sec. 5, Rule 98]

Effect of neglect to file bond A trustee who neglects to file a bond shall be
considered to have declined or resigned the trust. [Sec. 5, Rule 98]

Conditions
(1) Inventory
That the trustee will make and return to the court, at such time as it may order, a
true inventory of all the real and personal estate belonging to him as trustee,
which at the time of the making of such inventory shall have come to his
possession or knowledge.

(2) Faithful management

That he will manage and dispose of all such estate, and faithfully discharge his
trust in relation thereto, according to law and the will of the testator or the
provisions of the instrument or order under which he is appointed

(3) Accounting
That he will render upon oath at least once a year until his trust is fulfilled, unless
he is excused in any year by the court, a true account of the property in his hands
and the management and disposition thereof, and will render such other accounts
as the court may order

(4) Settlement of account and delivery of estate.

That at the expiration of his trust he will settle his account in court and pay over
and deliver all the estate remaining in his hands, or due from him on such
settlement, to the person or persons entitled to thereto. [Sec. 6, Rule 98]

3. Requisites for the removal and resignation of a trustee

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(1) Petition by parties beneficially interested;
(2) Due notice to the trustee;
(3) Hearing.

Who may file a petition: Parties beneficially interested [Sec. 8, Rule 98]

4. Grounds for removal and resignation of a trustee

GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE

Grounds for removal

(1) Removal appears essential in the interest of petitioner;
(2) Trustee is insane;
(3) Otherwise incapable of discharging his trust; or (4) Evidently unsuitable. [Sec.
8, Rule 98]

Resignation
He may resign but the court will determine if resignation is proper. [Sec. 8, Rule
98]

5. Extent of authority of trustee

Nature of Possession The possession of the property by the trustee is not an
adverse possession, but only a possession in the name and in behalf of the owner
of the same.

A trustee may acquire the trust estate by prescription provided there is a

repudiation of the trust, such repudiation being open, clear and unequivocal,
known to the cestui que trust. In that case, prescription will commence to run
from and after said repudiation and the knowledge thereof by the cestui. [Salinas
v. Tuazon G.R. No. L-33626 (1931)]

Territoriality of authority of trustee The powers of a trustee appointed by a

Philippine court cannot extend beyond the confines of the territory of the Republic.

This is based on the principle that his authority cannot extend beyond the
jurisdiction of the Republic, under whose courts he was appointed. [Herrera]

Page 13 of28

JJ
J. ESCHEAT
Escheat is a proceeding where the real and personal property of a person
deceased in the Philippines, who dies without leaving any will and without any
legal heirs, becomes the property of the State. [Municipal Council of San Pedro v.
Colegio de San Jose, G.R. No. L45460 (1938)]

It is an incident or attribute of sovereignty and rests on the principle of ultimate

ownership by the state of all property within its jurisdiction.

1. When to file
Three instances of Escheats:
(1) When a person dies intestate leaving property in the Philippines but leaving no
heir [Sec. 1, Rule 91]

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(2) Reversion proceedings in alienations in violation of Constitution or other
statute [Sec. 5, Rule 91]
(3) Unclaimed Balances Act (Act No. 3936, as amended by PD 679) – dormant
accounts for 10 years shall be escheated.

Where to file:
(1) If Resident – RTC of the province where the deceased last resided;
(2) If Non-resident – RTC of the place where his estate is located. [Sec. 1, Rule
91]

2. Requisites for filing of petition

(1) A person died intestate
(2) He left no heirs or persons by law entitled to the same
(3) Deceased left properties [City of Manila v. Archbishop of Manila, G.R. No. L-
10033 (1917); Sec. 1, Rule 91]

Escheat proceedings must be initiated by the Government through the Solicitor

General. [Sec. 1, Rule 91]

The Court must fix a date and place for hearing, which shall not be more than 6
months after the entry of the order

3. Remedy of respondent against petition; period for filing a claim

Period to file a claim to the estate A claim must be made within 5 years from date
of judgment; otherwise, barred forever [Sec. 4, Rule 91]

By whom: Devisee, legatee, heir, surviving spouse, or other person entitled to

such estate. [Sec. 4, Rule 91]

Effect of claim Possession and title to the estate shall be given. If estate has
already been sold, then the city/municipality shall be accountable for the proceeds,
less reasonable charges for care of the estate. [Sec. 4, Rule 91]

K. GUARDIANSHIP
The power of protective authority given by law and imposed on an individual who is free
and in the enjoyment of his rights, over one whose weakness on account of his age or
other infirmity renders him unable to protect himself. [Herrera]

1. Venue
Resident minor Family Court of the province or city
where the minor actually resides.
Non-Resident minor Family Court of the province or city
where his property or any part thereof is
situated

2. Appointment of guardians
Who may file
(1) Resident minor:
(a) Any relative; or
(b) Other person on behalf of a minor; or
(c) Minor himself, if 14 years of age or over; or
(d) The Secretary of DSWD or the Secretary of DOH, in the case

Page 206 of 360

 of an insane minor who needs to be hospitalized. [Sec. 2]
(2) Non-resident minor who has property in the Philippines:
a) Any relative or friend of such minor; or
b) Anyone interested in his property, in expectancy or otherwise. [Sec. 12]

Grounds for filing

(1) Death, continued absence, or incapacity of parents;
(2) Suspension, deprivation or termination of parental authority;
(3) Remarriage of surviving parent, if the latter is found unsuitable to exercise
parental authority;
(4) When the best interests of the minor so require. [Sec. 4] Grounds are not
exhaustive. [Herrera]

Qualifications of Guardians
The court shall consider the guardian’s:
(1) Moral character;
(2) Physical, mental and psychological condition;
(3) Financial status;
(4) Relationship of trust with the minor;
(5) Availability to exercise the powers and duties of a guardian for the full period
of the guardianship;
(6) Lack of conflict of interest with the minor;

3. General Powers and duties of guardians

(1) Care and custody of the person of his ward and management of his property;
or
(2) Management of his property only;
(3) Management of property within the Philippines (in case of non-resident ward).
[Sec. 1, Rule 96]

Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of the real property of the ward
(b) If (a) is not sufficient, real property of the ward upon obtaining an order for its
sale or encumbrance. [Sec. 2, Rule 96]
(2) To settle all accounts of his ward [Sec. 3, Rule 96]
(3) To demand, sue for, receive all debts due him, or, with the approval of the
court, compound for the same and give discharges to the debtor on receiving a fair
and just dividend of the property and effects [Sec. 3, Rule 96]
(4) To appear for and represent the ward in all actions and special proceedings,
unless another person is appointed for that purpose [Sec. 3, Rule 96]
(5) To manage the property of the ward frugally and without waste, and apply the
income and profits thereon, insofar as may be necessary, to the comfortable and
suitable maintenance of the ward. If such income and profits be insufficient for
that purpose, to sell or encumber the real or personal property, upon being
authorized by the court to do so [Sec. 4, Rule 96]
(6) To consent to a partition of real or personal property owned by the ward jointly
or in common with others, upon authority granted by the court,
(a) After hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the necessity and propriety of the proposed action.
[Sec. 5, Rule 96]
(7) To submit to the court a verified inventory of the property of the ward:

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(a) Within three months:
(i) after his appointment
(ii) after the discovery, succession or acquisition of property of the ward not
included in the inventory
(b) Annually, and
(c) Whenever required upon the application of an interested person. [Sec. 7, Rule
96]
(8) To report to the court any property of the ward not included in the inventory
which is discovered, or succeeded to, or acquired by the ward within 3 months
after such discovery, succession, or acquisition [Sec. 7, Rule 96]
(9) To render to the court for its approval an accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required. [Secs. 7-8, Rule 96]

4. Termination of guardianship
Removal How:
Upon reasonable notice to the guardian.

Grounds:
The guardian:
(1) Becomes insane or otherwise incapable of discharging his trust; or
(2) Is found to be unsuitable;
(3) Wasted or mismanaged the property of the ward; or
(4) Failed to render an account or make a return for thirty days after it is due.
[Sec. 24]

Resignation Ground:
Any justifiable cause.

Upon the removal or resignation of the guardian, the court shall appoint a new
one.

No motion for removal or resignation shall be granted unless the guardian has
submitted the proper accounting of the property of the ward and the court has
approved the same. [Sec. 24]

Termination

Grounds
(1) The ward has come of age; or
(2) The ward has died.

How Terminated
(1) Court motu proprio; or
(2) Upon verified motion of any person allowed to file a petition for guardianship.

Duty to notify: Guardian shall notify the court of the fact of coming of age or death
of the ward within 10 days of its occurrence. [Sec. 25]

The final and executory judgment or order removing a guardian or terminating the
guardianship shall be served upon the Local Civil Registrar of the municipality or
city where the minor resides and the Register of Deeds of the province or city

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where his property or any part thereof is situated, who shall enter the final and
executory judgment or order in the appropriate books in their offices. [Sec. 26]

L. ADOPTION
Adoption A juridical act which creates between two persons a relation similar to
that which results from legitimate paternity and filiation. [Prasnik v. Republic, G.R.
No. L-8639 (1956)]

It is a proceeding in rem.

Objective: Best interest of the child

Only an adoption made in pursuance with the procedures laid down under the
Rules on Domestic and Inter-Country Adoption is valid in this jurisdiction.

Adoption is strictly personal between the adopter and the adopted. [Teotico v. Del
Val, G.R. No. L-18753 (1965)]

Construction of adoption statutes: All sections are designed to protect the best
interests of the adoptee.

1. Distinguish domestic adoption from inter-country adoption

Domestic Adoption (RA 8552) Inter-country Adoption (RA 8043)
Kind of proceedings
Judicial Adoption Extra-judicial Adoption
What it governs
RA 8552 amended Art. 183 – 193 of the
Family Code and is the governing law for
Filipino citizens adopting other Filipinos RA 8043 governs adoption of
(whether relatives or strangers) with some Filipinos by foreigners and non-
exceptions. resident citizen and is
implemented by the Inter-Country
Rescission of adoption is no longer allowed. Adoption Board
Definition of “child”
A person below 18 years of age [Sec. 3(a)] A person below fifteen (15) years
of age unless sooner emancipated
by law [Sec 3 (b)]
Who may adopt
(1) Any Filipino citizen;
(2) Any alien possessing the same An alien or Filipino citizen
qualifications for Filipino nationals; permanently residing abroad [Sec.
(3) The guardian with respect to the ward 9]
[Sec. 7]
Qualifications
Filipino Citizen (a)At least twenty-seven (27)
(a) Legal age, in possession of full civil years of age and at least sixteen
capacity and legal rights; (16) years older than the child to
(b) Of good moral character, has not been be adopted, at the time of
convicted of any crime involving moral application, unless the adopter is
turpitude; the parent by nature of the child
(c) Emotionally and psychologically capable of to be adopted or the spouse of
caring for children; such parent;
(d) At least sixteen (16) years older than the (b) If married, his/her spouse

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adoptee (waived when adopter is the must jointly file for the adoption;
biological parent of the adoptee, or is the (c) Has the capacity to act and
spouse of the adoptee’s parent) [Sec. 7(a)] assume all rights and
responsibilities of parental
Alien authority under his national laws,
(a) Same as qualifications of Filipino citizens; and has undergone the
and appropriate counseling from an
(b) His/her country has diplomatic relations accredited counselor in his/her
with the Republic of the Philippines; country;
(c) Has been living in the Philippines for at (d) Has not been convicted of a
least 3 continuous years prior to filing of crime involving moral turpitude;
application and maintains such residence until (e) Eligible to adopt under his/her
adoption decree is entered; national law;
(d) Has been certified by his/her (f) In a position to provide the
diplomatic/consular office or any appropriate proper care and support and to
government agency that he/she has legal give the necessary moral values
capacity to adopt in his/her country; and example to all his children,
(e) His/her government allows the adoptee to including the child to be adopted;
enter the country as his/her adopted child. (g) Agrees to uphold the basic
rights of the child as embodied
NOTE: Residency and certification of under Philippine laws, the U.N.
qualification may be waived if: Convention on the Rights of the
(i) Former Filipino citizen who seeks to adopt Child, and to abide by the rules
a relative within the 4th degree of and regulations issued to
consanguinity or affinity; or implement the provisions of this
(ii) One who seeks to adopt legitimate child of Act;
his/her Filipino spouse; or (h) Comes from a country with
(iii) One who is married to a Filipino citizen whom the enter the country as
and seeks to adopt jointly with his/her spouse his/her adopted child.
a relative within the 4th degree of
consanguinity or affinity of the Filipino Philippines has diplomatic relations
spouse. [Sec. 7(b)] and whose government maintains
a similarly authorized and
accredited agency and that
adoption is allowed under his/her
national laws; and
(i) Possesses all the qualifications
and none of the disqualifications
provided herein and in other
applicable Philippine laws. [Sec. 9]
Who may be adopted
(a) Any person below 18 years of age who
has been administratively or judicially
declared available for adoption;
(b) The legitimate son/daughter of one
spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified Only a legally free child may be
adopter to improve his/her status to that of the subject of intercountry
legitimacy; adoption. [Sec 8]
(d) A person of legal age if, prior to adoption,
said person has been consistently considered Legally-free child means a child
and treated by the adopter(s) as his/her own who has been voluntarily or
child since minority; involuntarily committed to the
(e) A child whose adoption has been Department, in accordance with

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previously rescinded; or the Child and Youth Welfare Code.
(f) A child whose biological or adoptive [Sec. 3(f)]
parent(s) has died: provided that no
proceedings shall be initiated within 6 months
from time of death of said parents. [Sec. 8]
Where to file application
(a) Philippine Regional Trial Court
having jurisdiction over the child,
or
Family Court of the place where adopter (b) Inter-Country Adoption Board,
resides through an intermediate agency,
whether governmental or an
authorized and accredited agency,
in the country of the prospective
adoptive parents, [Sec. 10]
What the petition for adoption may include
May include prayer for change of name,
rectification of simulated birth or declaration
that the child is foundling, abandoned, Only petition for adoption
dependent or neglected child
RA 8552 does not provide for any annexes Application must be supported by
but Sec 11 AM 02-6-02-SC Rule on Domestic the following documents (written
and Intercountry Adoption, requires the and officially translated in
following to be annexed to the petition: English):
(a) Birth, baptismal or (a) Birth certificate of
foundling certificate, as applicant(s);
the case may be, and (b) Marriage contract,
school records showing if married, and
the name, age and divorce decree, if
residence of the applicable;
adoptee; (c) Written consent
(b) Affidavit of consent of of their biological
the following: or adoptive
(1) The adoptee, if ten children above
(10) years of age or ten (10) years of
over; age, in the form
(2) The biological of sworn
parents of the child, if statement;
known, or the legal (d) Physical, medical
guardian or the child- and psychological
placement agency, evaluation by a
child-caring agency, or duly licensed
the proper government physician and
instrumentality which psychologist;
has legal custody of the (e) Income tax
child; returns or any
(3) The legitimate and document
adopted children of the showing the
adopter and of the financial
adoptee, if any, who capability of the
are ten (10) years of applicant(s);
age or over; (f) Police clearance
(4) The illegitimate of applicant(s);
children of the adopter (g) Character

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 living with him who are reference from
ten (10) years of age or the local
over; church/minister,
(5) The spouse, if any, the applicant's
of the adopter or employer and a
adoptee. member of the
(c) Child study report on immediate
the adoptee and his community who
biological parents; have known the
(d) If the petitioner is an applicant(s) for at
alien, certification by least five (5)
his diplomatic or years; and
consular office or any (h) Recent postcard-
appropriate size pictures of
government agency the applicant(s)
that he has the legal and his
capacity to adopt in his immediate family
country and that his [Sec. 10]
country and that his
government allows to
adoptee to enter his
country as his own
adopted child unless
exempted under
Section 4 (2);
(e) Home study report on
the adopters. If the
adopter is an alien or
residing abroad but
qualified to adopt, the
home study report by a
foreign adoption
agency duly accredited
by the Inter-Country
Adoption Board; and
(f) Decree of annulment,
nullity or legal
separation of the
adopter as well as that
of his biological parents
of the adoptee, if any.
Publication
Petition must be published at least once a
week for 3 consecutive weeks in a newspaper
of general circulation in the province or city No publication requirement.
where the court is situated;

Rescission of adoption is no longer allowed.

Supervised Trial Custody
For at least six (6) months within which the Trial period for 6 months in
parties are expected to adjust psychologically country of adopter for at least 6
and emotionally to each other and establish a months; Only after lapse of period
bonding relationship. During said period, shall a decree of adoption be
temporary parental authority shall be vested issued. [Sec. 14]

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in the adopter(s).

Period may be reduced by court if in the best

interest of adoptee. [Sec 12]
Penalties
Any gov’t official, employee or functionary
who shall be found guilty of violating any of Same [Sec. 17]
the provisions shall automatically suffer
suspension until resolution of the case.

2. Domestic adoption
RA 8552 (Domestic Adoption Act) and the Rule on Adoption govern the domestic
adoption of Filipino children.

“A child legally available for adoption:” It refers to a child who has been voluntarily
or involuntarily committed to the DSWD or to a duly licensed and accredited child-
placing or child caring agency, freed of the parental authority of his biological
parents, or in case of rescission of adoption, his guardian or adopter(s). [Sec. 3]

General Rule: Husband and wife shall adopt jointly

Exceptions:
(1) If one spouse seeks to adopt the legitimate child of other
(2) If one spouse seeks to adopt his own illegitimate child, provided the other
spouse has signified his/her consent
(3) If spouses are legally separated [Sec 7(c)]

a. Effects of adoption
EFFECTS OF ADOPTION
(1)Adopters shall exercise parental authority.
(2)All legal ties between biological parent(s) and adoptee shall be
severed (except in cases where the biological parent is the spouse of
the adopter), and the same shall be vested on the adopter(s); [Sec.
16, RA 8552]
(3)Adoptee shall be considered the legitimate child of the adopter(s) for
all intents and purposes; [Sec. 17, RA 8552]
(4)Adopters shall have reciprocal rights of succession without distinction
from legitimate filiation; [Sec. 18, RA 8552]

b. Instances when adoption may be rescinded

INSTANCES WHEN ADOPTION MAY BE RESCINDED; EFFECTS OF RESCISSION OF
ADOPTION
Rescission may only be at the petition of the adoptee.
(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the assistance of the DSWD
(3) If the adoptee is over 18 years of age but incapacitated, by his guardian or
counsel. [Sec. 19]

Grounds NOTE: These are committed by the adopter

(1) Repeated physical and verbal maltreatment despite having undergone
counseling;
(2) Attempt on the life of the adoptee;
(3) Sexual assault or violence;

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(4) Abandonment or failure to comply with parental obligations.

Adoption, being in the best interests of the child, shall not be subject to rescission
by the adopter. However, the adopter may disinherit the adoptee for causes
provided in Article 919 of the Civil Code. [Sec. 19]

Where to file petition for rescission: Family Court of the city or province where the
adoptee resides. [Sec. 20, AM 02-6-02-SC,
Rule on Domestic and Inter-Country Adoption]

When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the adoption, within 5 years after
recovery from such incompetency. [Sec. 21, AM 026-02-SC, Rule on Domestic and
InterCountry Adoption]

c. Effects of rescission of adoption

EFFECTS OF RESCISSION OF ADOPTION
(1) Adoptee is still a minor - Restoration of parental authority to biological parent
if known, or legal custody to the DSWD;
(2) Reciprocal rights and obligations of adopter and adoptee are extinguished;
(3) Cancellation of amended birth certificate and restoration of original;
(4) Successional rights shall revert to its status prior to adoption, as of the date of
final judgment of rescission.
(5) Vested rights prior to judicial rescission shall be respected [Sec. 20, RA 8552]

3. Inter-country adoption
RA 8043 (Inter-country Adoption Act) governs the adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing abroad. [Sec. 3 (a)]

a. When allowed
Inter-country Adoption as the Last Resort; “Best Interest of the child” as objective
The Inter-country Adoption Board (ICAB) shall ensure that all possibilities for
adoption of the child under the Family Code (domestic adoption) have been
exhausted and that inter-country adoption is in the best interest of the child [Sec.
7, RA 8043]

b. Functions of the Regional Trial Court

FUNCTIONS OF THE RTC
(1) Filing of petition may be made with the Family Court having jurisdiction over
the place where the child resides or may be found. [Sec. 28, AM 02-6-02 SC]
(2) Court shall determine whether or not petition is sufficient in form and
substance and a proper case for intercountry adoption.
(3) Transmit the petition to the ICAB for appropriate action.

c. "Best interest of the child" standard

“BEST INTEREST OF THE MINOR” STANDARD
The best interests of the minor refer to:
(1) Totality of the circumstances and conditions as are most congenial to the

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survival, protection, and feelings of security of the minor encouraging to his
physical, psychological and emotional development; and
(2) The least detrimental available alternative for safeguarding the growth and
development of the minor. [Sec. 14 AM No. 03-04-04-SC, Re: Proposed Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors]

The rule that there should be no contact between the adoptee and his/her
biological parents shall not apply in exceptional cases where the child’s best
interests are at stake [Sec. 37, IRR of RA 8043]

In case physical transfer fails to occur, the ICAB shall take appropriate steps for
the protection of the best interests of the child. [Sec. 44, IRR of RA 8043]

Placement may be terminated if it is not in the best interests of the child. [Sec. 45,
IRR of RA 8043]

Any doubt or vagueness in the provisions of these rules shall be interpreted in

consideration of the best interests of the child. [Sec. 61, IRR of RA 8043]

M. WRIT OF HABEAS CORPUS

WRIT OF HABEAS CORPUS Essentially a writ of inquiry, granted to test the right
under which a person is detained, and to relieve a person if such restraint is
illegal. [Velasco v. CA, G.R. No. 118644 (1995)]

Extends to all cases of illegal confinement or detention by which any person is

deprived of his liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto. [Sec. 1, Rule 102]

Can only be suspended in cases of rebellion or invasion and when public interest
requires it [Sec. 15, Art. III

1. Contents of the petition

Verified petition must set forth:
(1) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
(2) The officer or name of the person by whom he is so imprisoned or restrained -
If unknown or uncertain, such officer or person may be described by an
assumed appellation, and the person who is served with the writ shall be deemed
the person intended;
(3) The place where he is so imprisoned or restrained, if known;
(4) Copy of the commitment or cause of detention of such person, if it can be
procured without impairing the efficiency of the remedy - If imprisonment or
restraint is without any legal authority, such fact shall appear. [Sec. 3, Rule 102]

Who may apply

(1) The party for whose relief it is intended; or
(2) By some person on his behalf [Sec. 3, Rule 102] - Some person – any person
who has a legally justified interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make the application [Velasco v.
CA, G.R. No. 118644 (1995)

2. Contents of the return

Form

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- Signed by the person who makes it
- Sworn by the person who makes it if:
 The prisoner is not produced; and
 In all other cases, unless the return is made and signed by a sworn public
officer in his official capacity [Sec. 11, Rule 102]

By whom made: The person or officer who has the person under restraint, or in
whose custody the prisoner is found. [Sec. 10, Rule 102]

Contents
(1) Whether he has or has not the party in his custody or power, or under restraint
(2) If he has the party in his custody or power, or under restraint, the authority
and the true and whole cause thereof, set forth at large, with a copy of the writ,
order execution, or other process, if any, upon which the party is held
(3) If the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of such
party by reason of which he cannot, without danger, be bought before the court or
judge
(4) If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what
time, for what cause, and by what authority such transfer was made.

3. Peremptory writ and preliminary citation

Preliminary citation Peremptory writ
Requires the respondent to appear and Unconditionally commands the
show cause why the peremptory writ respondent to have the body of the
should not be granted detained person before the court at a
time and place therein specified

4. When not proper or applicable

WHEN NOT PROPER OR APPLICABLE

(1) For asserting or vindicating the denial of right to bail. [Galvez v. CA, G.R. No.
114046 (1994)]
(2) Where the petitioner has the remedy of appeal or certiorari. [Galvez v. CA,
G.R. No. 114046 (1994)]
(3) For correcting errors in the appreciation of facts or law [Sotto v. Director of
Prisons, G.R. No. L-18871 (1962)] Exception: If error affects court’s jurisdiction
making the judgment void [Herrera]

WHC is proper: Remedy for reviewing proceedings for deportation of aliens [De
Bisschop v. Galang, G.R. No. L-18365 (1963)]

Where the court has no jurisdiction to impose the sentence [Banayo v. President of
San Pablo, G.R. No. 1430 (1903)]

5. When writ disallowed or discharged

(1) The person alleged to be restrained of his liberty is:
a. In custody of an officer or under process issued by the court or judge
or by virtue of a judgment or order of a court of record, and
b. Said court had jurisdiction to issue the process, render the judgment
or make the order; or
(2) Jurisdiction appears after the writ is allowed despite any informality or defect

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in the process, judgment, or order; or
(3) Person is charged with or convicted of an offense in the Philippines; or
(4) Suffering from imprisonment under lawful judgment. [Sec. 4, Rule 102]
(5) If it appears that the prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with an offense punishable by
death [Sec. 14, Rule 102]
(6) Even if the arrest of a person is illegal, the following supervening events may
bar release:
a. Issuance of a judicial process [Sayo v. Chief of Police of Manila, G.R.
No. L2128 (1948)] Judicial process is defined as a writ, warrant,
subpoena, or other formal writing issued by authority of law. [Malaloan
v. CA, G.R. No. 104879 (1994)]
b. The filing of a complaint before a trial court which issued a hold
departure order and denied motion to dismiss and to grant bail
[Velasco v. CA, G.R. No. 118644 (1995)]
c. Filing of an information for the offense for which the accused is
detained bars the availability of WHC [Velasco v. CA, G.R. No. 118644
(1995)]

6. Distinguish: writ of habeas corpus, writ of amparo, and writ of habeas data
Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data
Extends to all cases of Covers extralegal killings Designed to protect the
illegal confinemen t or and enforced disappeara image, privacy, honor,
detention (deprivation of nces or threats thereof information, and freedom
liberty), or where rightful of information of an
custody is withheld from individual, and to provide
person entitled thereto a forum to enforce one’s
right to the truth and to
informational privacy
[Vivares v. St. Theresa’s
College, G.R. No. 202666
(2014)]

7. Writ of habeas corpus in relation to custody of minors

Applicability
(1) Petitions for custody of minors and
(2) Writs of habeas corpus in relation thereto. [Sec. 1]

Rules of Court shall apply suppletorily. [Sec. 1]

PETITION FOR CUSTODY OF MINORS

Who may file: Any person claiming right of custody. [Sec. 2] Party against whom it
may be filed shall be designated as the respondent.

Where to file:
Family Court of the province or city:
(1) where the petitioner resides or
(2) where the minor may be found. [Sec. 3]

Contents of petition: The verified petition shall allege the following:

a. The personal circumstances of the petitioner and of the respondent;
b. The name, age and present whereabouts of the minor and his or her

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 relationship to the petitioner and the respondent;
c. The material operative facts constituting deprivation of custody; and
d. Such other matters which are relevant to the custody of the minor.
[Sec. 4]

Answer to the Petition must be verified and filed within 5 days after service of
summons and copy of petition. [Sec. 7]

Motion to Dismiss is not allowed except on ground of lack of jurisdiction over:

(1) Subject matter or
(2) Parties [Sec. 6]

Case study – upon the filing of the verified answer or the expiration of the period
to file it, the court may order a social worker to make a case study of the minor
and the parties and to submit to the court at least 3 days before pretrial. [Sec. 8]

Pre-trial is mandatory. [Sec. 9]

(1) Failure to file the pre-trial brief or to comply with its required contents has
same effect as failure to appear at the pretrial. [Sec.10]
(2) If the petitioner fails to appear personally at the pre-trial, the case shall be
dismissed. Unless his counsel or a duly authorized representative appears in court
and proves a valid excuse for the non-appearance of the petitioner. [Sec. 11]
(3) If the respondent has filed his answer but fails to appear at the pre trial, the
petitioner shall be allowed to present his evidence ex parte. The Court shall then
render judgment on the basis of the pleadings and the evidence thus presented.
[Sec. 9]

N. WRITOFAMPARO
WRIT OF AMPARO Literally means “to protect”

Came originally from Mexico and evolved into many forms

(1) Amparo libertad – for protection of personal freedom
(2) Amparo contra leyes – for judicial review of the constitutionality of statutes
(3) Amaparo casacion – judicial review of constitutionality and legality of judicial
decisions
(4) Amparo agrario – for protection of peasants’ rights

AM No. 7-9-12-SC (Rules on the Writ of Amparo) was promulgated by the

Supreme Court by virtue of the 1987 Constitution stating that the SC has the
power to “[p]romulgate rules concerning the protection and enforcement of
constitutional rights…” [Sec. 5, Art. VIII ]

1. Coverage
Available to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity.

The writ shall cover:

(1) Extralegal killings (killings committed without due process of law) and
(2) Enforced disappearances [Sec. 1]

Elements of enforced disappearance:

(1) An arrest, detention or abduction of a person by a government official or

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organized groups or private individuals acting with the direct or indirect
acquiescence of the government
(2) The refusal of the State to disclose the fate or whereabouts of the person
concerned or a refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law [Sec. of National Defense v. Manalo, G.R.
No. 180906 (2008)]

The writ applies only to the right to life, liberty and security of persons and not
property.

“Right to security” as a guarantee of protection by the government, is violated by

the apparent threat to the life, liberty and security of their person.

2. Differences between amparo and search warrant

Sec. of National Defense v. Manalo, G.R. No. 180906 (2008) “The production
order under the Amparo Rule should not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987 Constitution.”

The Constitutional provision is a protection of the people from the unreasonable

intrusion of the government, not a protection of the government from the demand
of the people such as respondents.

Instead, the Amparo production order may be likened to the production of

documents or things under Section 1, Rule 27 of the Rules of Civil Procedure i.e.
“Upon motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material to
any matter involved in the action and which are in his possession, custody or
control...”

3. Who may file

WHO MAY FILE
(1) Aggrieved party; or
(2) Qualified person or entity in the following order:
(a) Any member of the immediate family namely: the spouse, children
and parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution if
there is no known member of the immediate family or relative of
the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other
authorized parties to file similar petitions. [Sec. 2]

4. Contents of return
CONTENTS OF RETURN
1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty
and security of the aggrieved party, through any act or

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 omission;
2. The steps or actions taken by the respondent to determine
the fate or whereabouts of the aggrieved party and the
person responsible for the threat, act or omission;
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and
4. If the respondent is a public official or employee the return
shall further state the actions that have been or will still be
taken:
a. to verify the identity of the aggrieved party;
b. to recover and preserve evidence related to
the death or disappearance of the person
identified in the petition which may aid in the
prosecution of the person or persons
responsible;
c. to identify witnesses and obtain statements
from them concerning the death or
disappearance;
d. to determine the cause, manner, location and
time of death or disappearance as well as any
pattern or practice that may have brought
about the death or disappearance;
e. to identify and apprehend the person or
persons involved in the death or
disappearance; and
f. to bring the suspected offenders before a
competent court.; and
5. The return shall also state matters relevant to the
investigation, its resolution and the prosecution of the
case.

No general denial allowed. [Sec. 9]

Prohibited Pleadings and Motions: The following pleadings and motions are
prohibited:
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and (12) Petition for certiorari,
mandamus or prohibition against any interlocutory order.
[Sec. 11]

To whom returnable
1. If filed with RTC, returnable to RTC or any judge

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 2. If filed with Sandiganbayan, CA or any justice, returnable
to such court or any justice or the RTC where the threat,
act or omission was committed or any of its elements
occurred.
3. If filed with the SC, returnable to the SC or any justice, or
to the CA, SB or any of its justices, or the RTC where the
threat, act or omission was committed or any of its
elements occurred. [Sec. 3

5. Effects of failure to file return

In case the respondent fails to file a return, the court, justice, or judge shall
proceed to hear the petition ex parte. [Sec. 12]

6. Omnibus waiver rule

All defenses shall be raised in the return, otherwise, they shall be deemed waived.
[Sec. 10]

7. Procedure for hearing

Summary Hearing Hearing on the petition shall be summary.

BUT: The court, justice, or judge may call for a preliminary conference to simplify
the issues and determine the possibility of obtaining stipulations and admissions
from the parties.

Hearing shall be from day to day until completed and given the same priority as
petitions for habeas corpus. [Sec. 13] Judgment The court shall render judgment
within ten (10) days from the time of petition is submitted for decision.

Archiving and revival of cases If the case cannot proceed for valid cause, the court
shall not dismiss the petition but shall archive it. If after the lapse of two (2) years
from the notice of archiving, the petition shall be dismissed for failure to
prosecute. [Sec. 20]

8. Institution of separate action

The Rule shall neither preclude the filing of separate criminal, civil or
administrative actions [Sec. 21]

But a claim for damages should instead be filed in a proper civil action.

If the evidence so warrants, the amparo court may refer the case to the
Department of Justice for criminal prosecution, because the amparo proceeding is
not criminal in nature and will not determine the criminal guilt of the respondent

9. Effect of filing of a criminal action

Reliefs under the writ shall be available by motion in a criminal case. - Procedure
under this Rule shall govern the disposition of the reliefs available under the writ
of amparo.

When a criminal action has been commenced, no separate petition for the writ
shall be filed. [Sec. 22]

10. Consolidation

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When a criminal action is filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of amparo, the latter shall be consolidated with the criminal
action.

After consolidation, the procedure under this Rule shall continue to apply to the
disposition of the reliefs on the petition. [Sec. 23]

11. Interim reliefs available to petitioner and respondent

When: Upon filing of the petition or at any time before final judgment

Interim Reliefs available to the Petitioner

(1) Temporary Protection Order.
- Issued upon motion or motu proprio
- That the petitioner or the aggrieved party and any member of the immediate
family be protected in a government agency or by an accredited person or private
institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers concerned. [Sec. 14(a)] - Different
from the inspection and production order in that the temporary protection order
and the witness protection order do not need a verification and may be issued
motu proprio or ex parte.

(2) Inspection Order.

- Issued only upon verified motion and after due hearing
- Directed to any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.
- The order shall expire five (5) days after the day of its issuance, unless extended
for justifiable reasons. [Sec. 14(b)]
- Requires hearing, may be availed of both the petitioner and the respondent
- If the court, justice or judge gravely abuses his or her discretion in issuing the
inspection order, the aggrieved party is not precluded from filing a petition for
certiorari with the Supreme Court

(3) Production Order.

- Issued only upon verified motion and after due hearing
- Directed to any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form which constitute or contain
evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
- In case of opposition, the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition. [Sec. 14(c)].
Opposition may be had on the following grounds:
(a) National security
(b) Privileged nature of the information

Not the same as search warrant for law enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of the people from unreasonable

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intrusion of the government, not a protection of the government from the demand
of the people such as respondents

More similar to production of documents or things under Sec. 1 Rule 27 of Rules of

Civil Procedure [Sec. of National Defense v. Manalo, G.R. No. 180906 (2008)]

(4) Witness Protection Order.

- Issued upon motion or motu proprio - Order may refer the witnesses to
(a) The Department of Justice for admission to the Witness Protection, Security
and Benefit Program.
(b) Other government agencies, or to accredited persons or private institutions
capable of keeping and securing their safety. [Sec. 14(d)]

Interim Reliefs available to the Respondent

(1) Inspection Order
(2) Production Order [Sec. 15]

Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having personal knowledge of the
defenses of the respondent.

12. Quantum of proof in application for issuance of writ of amparo

The parties shall establish their claims by substantial evidence.

If respondent is a public official or employee Must prove that extraordinary

diligence as required as required by the applicable laws, rules and regulations was
observed in the performance of duty.

Cannot invoke the presumption that official duty has been regularly performed to
evade responsibility or liability

If respondent is a private individual or entity Must prove that ordinary diligence as

required by applicable laws, rules and regulations was observed in the
performance of duty. [Sec. 17]

With the secret nature of an enforced disappearance and the torture perpetrated
on the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves.

Their statements can be corroborated by other evidence such as physical evidence

left by the torture or landmarks where detained. [Sec. of National Defense v.
Manalo, G.R. No. 180906 (2008)]

The writ can only be issued upon reasonable certainty. Substantial evidence is
sufficient to grant the writ because the respondent is the State which has more
resources than the petitioner. However, the SC held that mere inclusion in an
Order of Battle List is insufficient to grant the writ absent a finding of a direct
relation between prior deaths and the subject list. No evidence was shown that the
deaths occurred due to inclusion in the list. [Ladaga v. Magapu, G.R. No. 189689
(2012)]

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That a public official failed to observe extraordinary diligence in the performance of
his duties does not result in the automatic grant of the writ. Such failure does not
relieve the petitioner from establishing his claim by substantial evidence. [Yano v.
Sanchez, G.R. No. 186640 (2010)]

0. WRIT OF HABEAS DATA

The writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party. [Sec. 1]

1. Scope of writ
The writ of habeas data is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party. [Sec. 1]

It is an independent and summary remedy designed to protect the image, privacy,

honor, information, and freedom of information of an individual, and to provide a
forum to enforce one’s right to the truth and to informational privacy. It seeks to
protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in
order to achieve unlawful ends. There must be a nexus between the right to
privacy, as well as the violation or threatened violation of the rights to life, liberty,
and security, for the writ to issue. [Gamboa v. Chan, G.R. No. 193636 (2012)]

Writ of Habeas Data was not enacted solely for the purpose of complementing the
Writ of Amparo in cases of extralegal killings and enforced disappearances. It may
be availed of in cases outside of extralegal killings and enforced disappearances.
Habeas data, to stress, was designed “to safeguard individual freedom from abuse
in the information age.” It can be availed of as an independent remedy to enforce
one’s right to privacy, more specifically the right to informational privacy. [Vivares
v. St Theresa’s College G.R. No. 202666 (2014)]

2. Availability of writ
Who may file:
Any aggrieved party may file a petition for the writ of habeas data.

However, in cases of extralegal killings and enforced disappearances, the petition

may be filed by:
a) Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding
paragraph [Sec. 2]

Where to file:
(1) RTC, at the option of the petitioner

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 a. Where petitioner resides; or
b. Where respondent resides; or
c. Which has jurisdiction over the place where the data or information is
gathered, collected or stored
(2) SC, CA, SB (when action concerns public data files of government offices).
[Sec. 3]

Writ is enforceable anywhere in the Philippines. [Sec. 4]

Indigent petitioner no need to pay docket fees The petition of the indigent shall be
docked and acted upon immediately, without prejudice to subsequent submission
of proof of indigency not later than fifteen (15) days from the filing of the petition.
[Sec. 5]
Page 14 of28

JJ
3. Who may file
Who may file:
Any aggrieved party may file a petition for the writ of habeas data.

However, in cases of extralegal killings and enforced disappearances, the petition

may be filed by:
(a) Any member of the immediate
family of the aggrieved party,
namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or
collateral relative of the aggrieved
party within the fourth civil degree
of consanguinity or affinity, in
default of those mentioned in the
preceding paragraph [Sec. 2]

4. Contents of the petition

CONTENTS A verified written petition for a writ of habeas data should contain:
1. The personal circumstances of the petitioner and the
respondent;
2. The manner the right to privacy is violated or threatened
and how it affects the right to life, liberty or security of the
aggrieved party;
3. The actions and recourses taken by the petitioner to
secure the data or information;
4. The location of the files, registers or databases, the
government office, and the person in charge, in possession
or in control of the data or information, if known;
5. The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
- In case of threats, the relief may include a prayer for an
order enjoining the act complained of; and
6. Such other relevant reliefs as are just and equitable. [Sec.
6]

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Issuance of Writ Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to issue. [Sec. 7]

5. Contents of return
When to file return Respondent must file a verified written return within five (5)
work days from service of the writ, together with supporting affidavits. The 5-day
period may be reasonably extended by the Court for justifiable reasons.

CONTENTS
1. The lawful defenses such as national security, state
secrets, privileged communication, confidentiality of the
source of information of media and others;
2. In case of respondent in charge, in possession or in control
of the data or information subject of the petition:
a. disclosure of the data or information about the
petitioner, the nature of such data or information, and the
purpose for its collection;
b. the steps or actions taken by the respondent to ensure
the security and confidentiality of the data or information;
and
c. the currency and accuracy of the data or information
held; and
3. Other allegations relevant to the resolution of the
proceeding.

A general denial of the allegations in the petition shall not be allowed. [Sec. 10]

6. Instances when petition be heard in chambers

(1) Where the respondent invokes the defense that the release of the data or
information in question shall compromise national security or state secrets, or
(2) When the data or information cannot be divulged to the public due to its
nature or privileged character. [Sec. 12]

7. Consolidation
When a criminal action is filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a
petition for a writ of habeas data, the petition shall be consolidated with the
criminal action. [Sec. 21]

8. Effect of filing of a criminal action

Reliefs under the writ shall be available to an aggrieved party by motion in a
criminal case.
- Procedure under this Rule shall govern the disposition of the reliefs available
under the writ of habeas data.

When a criminal action has been commenced, no separate petition for the writ
shall be filed. [Sec. 22]

9. Institution of separate action

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The filing of a petition for the writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions. [Sec. 20]

XVII. Change of Name

DISTINCTIONS BETWEEN THE RULES [103, 108, R.A. 9048] See Annex B.

Procedure:
1. Petition for Change of Name
2. Court order fixing the date and place of hearing
3. Publication of the court order fixing the date and place of
hearing, at least once a week for 3 consecutive weeks in a
newspaper of general circulation.
4. Hearing on the petition
5. Judgment granting/denying the change of name. Copy of
the judgment shall be served upon the civil registrar, who
shall annotate the same.

10. Quantum of proof in application for issuance of writ of habeas data

P. CHANGE OF NAME
What is changed is the name register of the petitioner that appears in the civil
register.
- The name that can be changed is the name that appears in the civil register, and
not in the baptismal certificate or that which the person is known in the
community. [No Yao Siong v. Republic, G.R. No. L-20306 (1966)]
- A change of name granted by the court affects only a petitioner. A separate
petition for change of name must be filed for his/her spouse and children. [Secan
Kok v. Republic, G.R. No. L-27621 (1973)]

1. Differences under Rule 103, Republic Act No. 9048 and Rule 108
Clerical or Typographical Errors

General Rule: Entry in a civil register shall be changed or corrected with a judicial
order.

Exception:
1. Clerical or typographical errors and
2. Change of:
(a) First name or nickname
(b) The day and month in the date of birth or
(c) Sex of a person where it is patently clear that there
was a clerical or typographical error or mistake in the
entry, which can be corrected or changed by the concerned
city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations. [Sec. 1, RA 9048, as
amended]

Clerical or typographical error: A mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register
that:

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 1. Is harmless and innocuous.
2. Is visible to the eyes or obvious to the understanding
(patent)
3. Can be corrected or changed only by reference to other
existing record or records
4. Does not involve the change of nationality, age, status or
sex of the petitioner. [Sec. 2(3), RA 9048, as amended]

The procedure recited in Rule 103 regarding change of name and in Rule 108
concerning the cancellation or correction of entries in civil registry are separate
and distinct. They may not be substituted one for the other. If both reliefs are to
be sought in the same proceedings all the requirements of Rule 103 and 108 must
be complied with. [Republic v. Valencia, G.R. No. L-32181 (1986)]

2. Grounds for change of name

GROUNDS FOR CHANGE OF NAME [Republic v. Hernandez (1996)]

Valid Grounds for Change of Name

(1) The name is ridiculous, tainted with dishonor or extremely difficult to write or
pronounce.
(2) Change results as a legal consequence of legitimation
(3) The change will avoid confusion.
(4) A sincere desire to adopt a Filipino name to erase signs of former alienage [Uy
v. Republic, G.R. No. L-22712 (1965)]
(5) Having continuously used and been known since childhood by a Filipino name,
having been unaware of alien parentage
[Ang Chay v. Republic, G.R. No. L-28507 (1970)]
(6) Intersexuality is a valid ground for change of name and change of entry of sex
in the civil registry. Where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, having
reached the age of majority, with good reason, thinks of his sex. Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons is fixed. [People v.
Cagandahan, G.R. No. 166676 (2008)]

Q. ABSENTEES

1. Purpose of the rule

The declaration of absence made in accordance with the provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for
the administration of the estate of the absentee. Since Roberto left no properties,
there was no need to judicially declare him absent. [In Re: Petition for Declaration
of Absence of Roberto L. Reyes, G.R. No. L-32036 (1986)]

General Rule: No independent action for declaration of presumption of death [In

Re:
Petition for the Presumption of Death of Nicolai V. Szatraw, G.R. No. L-1780
(1948)] Exception: For purpose of contracting a second marriage [Art. 41, FC]

Exception: For purpose of contracting a second marriage [Art. 41, FC]

2. Who may file; when to file

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PETITION FOR APPOINTMENT OF REPRESENTATIVE [PAR] When filed: To
provisionally represent absentee when a person:
(1) Disappears from his domicile, his whereabouts being unknown; and
(2) Has not left an agent to administer his property or the power conferred upon
the agent has expired. [Sec. 1, Rule 107]
Who may file
(1) Any interested party
(2) Relative
(3) Friend [Sec. 1, Rule 107]

PETITION FOR DECLARATION OF ABSENCE AND APPOINTMENT OF TRUSTEE OR

ADMINISTRATOR [PDA]
When filed:
(1) After 2 years:
(a) From the disappearance of and without any news from the absentee or
(b) Since the receipt of the last news about him.
(2) After 5 years: - If the absentee left an administrator of his property. [Sec. 2,
Rule 107]
Who may file:
(1) The spouse present
(2) The heirs instituted in a will, who may present an authentic copy of the same
(3) The relatives who would succeed by the law of intestacy
(4) Those who have over the property of the absentee some right subordinated to
the condition of his death. [Sec. 2, Rule 107]

R. CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL

REGISTRY
Proceedings for cancellation or correction of entries in the Civil Registry may be:

(1) Summary – when the correction sought to be made is a mere clerical error
(now governed by RA 9048)
(2) Adversarial – where the rectification affects civil status, citizenship or
nationality of a party or any other substantial change. Substantial Change –
change that affects the civil status, citizenship, or nationality of a party.

1. Entries subject to cancellation or correction under Rule 108, in relation to Republic Act
No. 9048
RULE 108 Substantial changes in entries in the civil registry Entries:
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
(6) Judgments declaring marriages void from the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name [Sec. 2, Rule 108] Such changes have public interest

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implications and must only be made upon approval of the Court.

Cancellation or correction of substantial errors is allowed provided proceeding is

adversary. [Chiao Ben Lim v. Zosa, G.R. No. L40252 (1986)] Unfortunately, even
under R.A. No. 9048, a correction in the civil registry involving a change of sex is
not a mere clerical or typographical error. Such involves a substantial change to
which Rule 108 should apply. [Silverio v. Republic, G.R. No. 174689 (2007)]
Appropriate adversary proceeding One where the trial court has conducted
proceedings where all relevant facts have been fully and properly developed,
where opposing counsel have been given opportunity to demolish the opposite
party’s case, and where the evidence has been thoroughly weighed and
considered. [Eleosida v. Local Civil Registrar of Quezon City, G.R. No. 130277
(2002)]

Parties
(1) Civil registrar and
(2) All persons who have or claim any interest which would be affected are made
parties [Sec. 3, Rule 108] Notice and publication Reasonable notice be given to
persons named in the petition, and publication once a week for 3 consecutive
weeks [Sec. 4, Rule 108] Opposition Period to file:15 days from notice of petition,
or from last date of publication of notice [Sec. 5, Rule 108]

May be filed by:

(1) Civil registrar or
(2) Any person having or claiming any interest under the entry whose cancellation
or correction is sought. [Sec. 5, Rule 108] RA 9048, AS AMENDED BY RA 10172
Clerical or Typographical Errors

General Rule:
Entry in a civil register shall be changed or corrected with a judicial order.
Exception:
(1) Clerical or typographical errors and
(2) Change of:
(a) First name or nickname
(b) The day and month in the date of birth or
(c) Sex of a person where it is patently clear that there was a clerical or
typographical error or mistake in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or consul general in accordance with
the provisions of this Act and its implementing rules and regulations. [Sec. 1, RA
9048, as amended]

Clerical or typographical error:

A mistake committed in the performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the understanding (patent)
(3) Can be corrected or changed only by reference to other existing record or
records
(4)Does not involve the change of nationality, age, status or sex of the petitioner.
[Sec. 2(3), RA 9048, as amended]
The procedure recited in Rule 103 regarding change of name and in Rule 108
concerning the cancellation or correction of entries in civil registry are separate
and distinct. They may not be substituted one for the other. If both reliefs are to
be sought in the same proceedings all the requirements of Rule 103 and 108 must

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be complied with. [Republic v. Valencia, G.R. No. L-32181 (1986)]

S. APPEALS IN SPECIAL PROCEEDING

1. Judgments and orders for which appeal may be taken

(1) If it allows or disallows a will;
(2) If it wholly determines who are the lawful heirs or the
distributive shares;
(3) If it wholly or partially allows or disallows a claim
against a decedent’s estate, or any claim presented on
the decedent’s estate, or any claim presented on the
estate’s behalf in offset to claim against it;
(4) If it settles the account of an
executor/administrator/trustee/guardian;
(5) If it constitutes a final determination in the lower court
of the rights of the party appealing in proceedings
relating to estate settlement or administration of a
trustee/guardian –
Exception: Appointment of a special administrator is not
appealable Remedy: Petition for certiorari under Rule
65, if there is grave abuse of discretion.
(6) If it is the final order/judgment rendered in the case,
and affects the substantial rights of the person
appealing - Exception: Orders granting/denying a
MFR/MNT [Sec. 1, Rule 109]
While some of the items in Sec. 1, Rule 109 may be considered as interlocutory
under ordinary special actions, the nature of special proceedings declares them as
appealable as exceptions to Sec. 1, Rule 41. Rationale: To enable the rest of the
case to proceed in the event that a separate and distinct issue is resolved by the
court and held to be final. [Marinduque Mining and Industrial Corporation v. CA,
G.R. No. 161219 (2008)]

2. When to appeal
General Rule: In a special proceeding, the period of appeal is 30 days. [Sec. 3,
Rule 41] Exceptions:
(1) Habeas corpus: 48 hours from notice of judgment in final order appealed from.
[Sec. 39, BP 129, Sec. 3, Rule 41]
(2) Amparo: 5 working days from the date of notice of the adverse judgment.
[Sec. 19, AM No. 07-9-12-SC]
(3) Habeas data: 5 working days from the date of notice of the adverse judgment
[Sec. 19, AM No. 08-1-16-SC]

See also Annex A.

The appeal period may be interrupted by the filing of an MFR/MNT. Once the
appeal period expires without an appeal/MF/MNT, the order becomes final. [Sec.
3, Rule 41]

3. Modes of appeal
Notice and record on appeal required. [Sec. 3, Rule 41] Rule 109 contemplates
multiple appeals during the pendency of special proceedings. A record on appeal –
in addition to the notice of appeal – is thus required to be filed as the original

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records of the case should remain with the trial court to enable the rest of the case
to proceed in the event that a separate and distinct issue is resolved by said court
and held to be final. However, a record on appeal is not necessary where no other
matter remained to be heard and determined by the trial court after it issued the
appealed order granting the petition for cancellation of birth record and change of
surname in the civil registry. [Republic v. Nishina, G.R. No. 186053 (2010)]

4. Rule on advance distribution

Notwithstanding a pending controversy/appeal in estate settlement proceedings,
the court may permit that the estate’s parts which are not affected by
thecontroversy/appeal be distributed, upon compliance with Rule 90. [Sec. 2, Rule
109]

VII. CRIMINAL PROCEDURE

A. GENERALMATTERS
CRIMINAL JURISDICTION
The authority to hear and try a particular offense and impose the punishment for it
[People v. Mariano, G.R. No. L-40527 (1976)]

1. Distinguish jurisdiction over subject matter from jurisdiction over

person of the accused
Definition
How acquired
Waiver of objection
Jurisdiction over subject
matter
Refers to the authority of
the court to hear and
determine a particular
criminal case
Conferred by law; can
never be acquired solely
by consent of the accused
Right to object is never
waived; the absence of
jurisdiction over the
subject matter may be
raised at any stage of the
proceeding
Jurisdiction over person of
the accused
Refers to the authority of
the court over the person
charged
May be acquired by the
apprehension of the
accused, or by consent of
the accused, or by waiver
of objections as when the
accused enters his plea
Right to object may be
waived; failure of the
accused to object in time
would constitute waiver

2. Requisites for exercise of criminal jurisdiction

(1) Subject matter jurisdiction, that is, whether or not the court has jurisdiction
over the offense by virtue of the imposable penalty and its nature;
(2)Jurisdiction over the person of the accused;
(3) Territorial jurisdiction, which refers to venue or the place where the case is to
be tried.

3. Jurisdiction of criminal courts

MTC/MeTC/MCTC RTC Sandiganbayan
(1) Exclusive original (1) Exclusive original (1) Exclusive original
jurisdiction over all jurisdiction in all criminal jurisdiction in those cases
violations of city or cases not within the expressly enumerated in

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municipal ordinances
committed within their
respective territorial
jurisdiction [Sec. 32(1),
BP 129] (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 accessory
or other penalties,
including the civil liability
arising from such offenses
or predicated thereon,
irrespective of kind,
nature, value, or amount
thereof [Sec. 32(2), BP
129]; (3) Exclusive
original jurisdiction over
offenses involving damage
to property through
criminal negligence [Sec.
32(2), BP 129; RA 7691]
(this rule
exclusive jurisdiction of
any court, tribunal or
body [Sec. 20, BP 129];
(2) Exclusive appellate
jurisdiction over all cases
decided by the MTC within
its territorial jurisdiction
[Sec. 22, BP 129]; (3)
Criminal cases where one
or more of the accused is
below 18 years of age but
not less than 15 years, or
where one or more of the
victims is a minor at the
time of the commission of
the offense [RA 9344];
(4) Cases against minors
cognizable under the
Dangerous Drugs Act, as
amended [RA 8369
(Family Courts Act of
1997)];
PD 1606, as amended by
RA 8249, violations of RA
3019, RA 1379, and
Chapter II, Section 2,
Title VII, Book II, RPC;
The officials enumerated
are: (a) Officials of the
executive branch
occupying the positions of
regional director and
higher, otherwise
classified as Grade 27 and
higher, of the
Compensation and
Position Classification Act
of 1989 [RA 6758];
NOTE: The shift from,
“PNP chief superintendent
and PNP officers of higher
rank” to “Officers of the
PNP while occupying the
position of provincial
director and those holding
the rank of senior
superintendent and
higher” in this

4. When injunction may be issued to restrain criminal prosecution

General rule: The prosecution of a criminal case may not be enjoined by
prohibition/injunction because public interest requires that criminal acts be
immediately investigated and prosecuted for the protection of society [Domingo v.
Sandiganbayan, G.R. No. 109376 (2000)]. Exceptions [Brocka v. Enrile, G.R. No.
69863-65 (1990)]:
(1) When necessary in the protection of the constitutional rights of the accused;
(2) When necessary for the orderly administration of justice or to avoid oppression
or multiplicity of suits;
(3) Where there is a prejudicial question which is sub judice;
(4) Where acts of the officer are without or in excess of authority;
(5) When the prosecution is under an invalid law or statute;
(6) When double jeopardy is apparent;
(7) When court has no jurisdiction over the offense;
(8) When it is a case of persecution rather than prosecution;
(9) Where the charges are manifestly false and motivated by vengeance;
(10)Where there is no prima facie case and a motion to quash on that ground has
been denied;
(11) Where preliminary injunction has been issued by the SC to prevent the
threatened unlawful arrest of petitioner.

B. PROSECUTION OF OFFENSES

1. Criminal actions, how instituted

A. CRIMINAL ACTIONS; HOW INSTITUTED

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IN GENERAL
The institution of a criminal action generally depends upon whether the offense is
one which requires a preliminary investigation or not. A criminal action is
commenced by the filing of a complaint or information. The complaint may be filed
either with the MTC, when allowed, or with a public prosecutor for purposes of
conducting a preliminary investigation. [Sec. 1, (Rule 110]

OFFENSES REQUIRING PRELIMINARY INVESTIGATION

Offenses which require preliminary investigation are those where the penalty
prescribed by law is at least 4 years, 2 months and 1 day [Sec. 1, Rule 112].
The criminal action is instituted by filing the complaint with the appropriate officer
for preliminary investigation [Sec. 1(a), Rule 110].

OTHER OFFENSES
For all other offenses, or in offenses cognizable by inferior courts (MTCs or
MCTCs), the complaint or information is filed directly with said courts or the
complaint is filed with the fiscal [Sec. 1(b), Rule 110].

IN METROPOLITAN MANILA AND OTHER CITIES

In Metropolitan Manila and other chartered cities, the complaint shall be filed with
the office of the public prosecutor unless otherwise provided in their charters [Sec.
1(b), Rule 110].

EFFECT OF INSTITUTION ON PRESCRIPTIVE PERIOD

The institution of a criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws [Sec.
1, Rule 110]. There is no more distinction between cases under the RPC and those
covered by special laws with respect to the interruption of the period of
prescription. [People v. Pangilinan, G.R. No. 152662 (2012)]

SUSPENSION OF PRESCRIPTIVE PERIODS IN CASES FALLING UNDER THE

AUTHORITY OF THE LUPON
While the dispute is under mediation, conciliation or arbitration, the prescriptive
periods for offenses and causes of action under existing laws shall be interrupted
upon filing of the complaint with the Punong Barangay. The prescriptive periods
shall resume upon receipt by the complainant of the complaint or the certificate of
repudiation or of the certification to file action issued by the Lupon or Pangkat
Secretary. Such interruption however shall not exceed sixty (60) days from the
filing of the complaint with the punong barangay [Sec. 410[c], RA 7160 (The Local
Government Code of 1991)].

2. Who may file them, crimes that cannot be prosecuted de oficio

WHO MAY FILE;
CRIMES THAT CANNOT BE PROSECUTED DE OFICIO
General rule:
All criminal actions commenced by a complaint or information shall be prosecuted
under the direction and control of the prosecutor [Sec. 5, Rule 110].

WHO MAY FILE COMPLAINT OR INFORMATION

For Non-Private Crimes Persons authorized to file a complaint [Sec. 3, Rule 110]:
(1) The offended party
(2) Any peace officer

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(3) Other public officer charged with the enforcement of the law violated Persons
authorized to file an information [Sec. 4, Rule 110]:
(1) City or provincial prosecutor and their assistants; and
(2) Duly appointed special prosecutorsFor

Private Crimes [Sec. 5, Rule 110]

Private crimes which may only be prosecuted by a complaint filed by the private
offended party [Sec. 5, Rule 110]

3. Criminal actions, when enjoined

4. Control of prosecution
IN GENERAL
General rule:
All criminal actions commenced by a complaint or information shall be prosecuted
under the direction and control of the prosecutor [Sec. 5, Rule 110].
Exceptions:
The private prosecutor may be authorized in writing by the Chief of the
Prosecution Office or the Regional State Prosecutor to prosecute the case subject
to the approval of the court.
(1) In case of heavy work schedule of the public prosecutor or
(2) In the event of lack of public prosecutors.
However, the criminal action is still prosecuted under the direction and control of
the public prosecutor, which requires that the prosecutor must be present during
the proceedings. [People v. Beriales, G. R. No. L39962 (1976)].

5. Sufficiency of complaint or information

A complaint is a sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer or other public officer charged
with the enforcement of the law violated [Sec 3, Rule 110].
An information is an accusation in writing, charging a person with an offense,
subscribed by the prosecutor and filed with the court [Sec. 4, Rule 110].
TEST OF SUFFICIENCY
A complaint or information is sufficient if it states:
(1) The name of the accused;
(2) The designation of the offense given by the statute;
(3) The acts or omissions complained of as constituting the offense;
(4) The name of the offended party;
(5) The approximate date of the commission of the offense; and
(6) The place where the offense was committed [Sec. 6, Rule 110].
The test for sufficiency of the complaint or information is whether the crime is
described in intelligible terms with such particularity as to apprise the accused with
reasonable certainty of the offense charged [Lazarte v. Sandiganbayan, G.R. No.
180122 (2009)].
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 [Frias v. People, G.R. No. 171437 (2007)].
Consequently, objections as to form cannot be made for the first time on appeal.
The accused should have moved for a bill of particulars or for quashal of
information before arraignment, otherwise he is deemed to have waived his
objections to such a defect [People v. Teodoro (2009)].

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6. Designation of offense
The complaint or information shall:
(1) State the designation of the offense given by the statute;
(2) Aver the acts and omissions constituting the offense; and
(3) Specify the qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of
the statute punishing it [Sec. 8, Rule 110].
This is a procedural requirement to safeguard the right of the accused to be
informed of the nature and cause of the accusation against him. Specific acts of
accused do not have to be described in detail in the information, as it is enough
that the offense be described with sufficient particularity to make sure the accused
fully understands what he is being charged with [Guy v. People, G.R. No. 166794-
96 (2009)].

7. Cause of the accusation

The acts or omissions complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated:
(1) In ordinary and concise language; and
(2) Not necessarily in the language used in the statute; but
(3) In terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment [Sec. 9, Rule 110].
Qualifying and aggravating circumstances must be alleged. Otherwise, they are
not to be considered even if proven during the trial. The failure to allege such
cannot be cured by an amendment of the information after the accused entered
his plea. [People v. Antonio (2002)]
Although aggravating circumstances cannot be appreciated for the purpose of
fixing a heavier penalty, they should, however, be considered as bases for the
award of exemplary damages [People v. Evina, G.R. Nos. 124830-31 (2003)].

8. Duplicity of the offense; exception

Duplicity of the offense in an information or complaint means the joinder of two or
more separate and distinct offenses in one and the same information or complaint

General rule:
The information must charge only one offense [Sec. 13, Rule 110].

Exception:
Multiple offenses may be charged when the law prescribes a single punishment for
various offenses. REMEDY The filing of a motion to quash is the remedy in case of
duplicity of offense in an information. Objection to a complaint or information
which charges more than one offense must be timely interposed before trial [Sec.
3, Rule 120].
Failure to do so constitutes a waiver [People v. Tabio, G.R. No. 179477 (2008)]
and the court may convict the accused of as many offenses as are charged and
proved, and impose on him the penalty for each offense [Sec. 3, Rule 120].

9. Amendment or substitution of complaint or information

KINDS OF AMENDMENT:
(1) Formal Amendment merely states with additional precision something which is
already contained in the original information, and which, therefore adds nothing
essential for conviction for the crime charged [Gabionza v. CA, G.R. No. 140311
(2001)]

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Examples of Formal Amendment:
(a) New allegations which relate only to the range of penalty that the court might
impose in the event of conviction;
(b)One which does not charge another offense distinct from that already charged;
(c) Additional allegation which do not alter the prosecution’s theory of the case so
as to surprise the accused or affect the form of defense he has or will assume;
(d)One which does not adversely affect any substantial right of the accused, such
as his right to invoke prescription.
(2) Substantial amendment consists of the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other matters are
merely of form [Teehankee v. Madayag, G.R. No. 103102 (1992)]
Page 15 of28
10. Venue of criminal actions
General rule:
In all criminal prosecutions, the action must be instituted and tried in the courts of
the municipality or territory where:
(1) The offense was committed; or
(2) Any of its essential ingredients occurred [Sec. 15(a), Rule 110]
This is the principle of territoriality. Venue in criminal cases is jurisdictional. The
court has no jurisdiction to try an offense committed outside its territorial
jurisdiction. It cannot be waived, or changed by agreement of the parties, or by
the consent of the defendant. Thus, where an offense is wholly committed outside
the territorial limits wherein the courtoperates, said court is powerless to try the
case. For the rule is that one cannot be held to answer for any crime committed by
him except in the jurisdiction where it was committed [Hernandez v. Albano, G.R.
No. L19272 (1967)].

11. Intervention of offended party

General rule:
An offended party has the right to intervene in the prosecution of a crime, where
the civil action for recovery of civil liability is instituted in the criminal action [Sec.
16, Rule 110].

NOTE: This is still subject to the control of the prosecutor [Phil. Rabbit Bus Lines v.
People, G.R. No. 147703 (2004)]

Exceptions:
(1) Where, from the nature of the crime and the law defining and punishing it, no
civil liability arises in favor of a private offended party (e.g. treason, rebellion,
espionage and contempt);
(2) Where, from the nature of the offense, the private offended party is entitled to
civil indemnity arising therefrom but he has waived the same or has expressly
reserved his right to institute a separate civil action or he has already instituted
such action.

C. PROSECUTION OF CIVIL ACTION

1. Rule on implied institution of civil action with criminal action

General rule:
The civil action for the recovery of civil liability arising from the offense charged is
deemed instituted with the criminal action.

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Exception:
The civil action is not deemed so instituted if the offended party:
(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal action; or
(3) Reserves the right to institute it separately [Sec. 1, Rule 111].

2. When civil action may proceed independently

INDEPENDENT CIVIL ACTIONS
Under the Rules, only civil liability arising from the crime charged is deemed
instituted. Hence, the civil actions under the Civil Code, specifically Art. 32, 33, 34,
and 2176, remain separate, distinct, and independent of any criminal prosecution
although based on the same act [Phil. Rabbit Bus Lines v. People, G.R. No. 147703
(2004)].
RESERVATION OF RIGHT TO FILE CIVIL ACTION
The civil action may also proceed independently of the criminal action when
reservation to institute the civil action separately is made. The reservation shall be
made before the prosecution starts presenting its evidence and under
circumstances affording the offended party a reasonable opportunity to make such
reservation [Sec. 1, Rule 111].
Instances where reservation to file the civil action separately shall not be allowed:
(1) B.P. 22 cases [Sec. 1(b), Rule 111]
(2) Cases cognizable by the Sandiganbayan [PD 1606, as amended by Sec. 4, R.A.
8249] (3) Tax cases [Sec. 7(b)(1), RA 9282]
SEPARATE ACTION FILED BY THE ACCUSED
No counterclaim, cross-claim or third-party complaint may be filed by the accused
in the criminal case, but any cause of action which could have been the subject
thereof may be litigated in a separate civil action [Sec. 1, Rule 111].

3. When separate civil action is suspended

After the criminal action has been commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the
criminal action [Sec. 2, Rule 111].

4. Effect of the death of accused or convict on civil action

Upon the death of the accused or convict, criminal liability is extinguished [Art. 89,
RPC]. As regards civil liability:
(1) When death occurs before the arraignment, the case shall be dismissed
without prejudice to any civil action against the estate of the deceased [Sec. 4,
Rule 111];
(2) When death occurs after arraignment and during pendency of criminal action,
it extinguishes civil liability arising from the delict;
(3) When death occurs during pendency of appeal, it extinguishes criminal liability
and the civil liability based thereon [People v. Ayochok, G.R. No. 175784 (2010)].
Independent civil actions instituted under Arts. 32, 33, 34 and 2176, Civil Code, or
those instituted to enforce liability arising from other sources of obligation may be
continued against the estate or legal representative of the accused after proper
substitution or against his estate

As regards the parties in the civil action, the heirs of the accused may be
substituted without requiring the appointment of an executor/administrator. The
court may appoint guardian ad litem for the minors.
The court shall order the legal representatives to appear and be substituted within

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30 days from notice.

5. Prejudicial question
ELEMENTS
A prejudicial question is that which arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which
pertains to another tribunal. [People v. Consing, G.R. No. 148193 (2003)]
Elements of a prejudicial question:
(1) The previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action; and
(2) The resolution of such issue determines whether or not the criminal action may
proceed [Sec. 7, Rule 111].
A civil action may be considered prejudicial when the following concur:
(1) The civil case involves facts intimately related to those on which the criminal
prosecution would be based;
(2) In the resolution of the issue/s raised in the civil action, the guilt/innocence of
the accused would necessarily be determined;
(3) Jurisdiction to try the action is lodged in another tribunal [Prado v. People,
G.R. No. L-37652 (1984)];
(4) The action is instituted prior to the institution of the criminal action [Pimentel
v. Pimentel, G.R. No. 172060 (2010)].
Ratio:
The rule seeks to avoid two conflicting decisions in the civil case and in the
criminal case [Sy Thiong Shiou vs Sy Chim, G.R. No. 174168 (2009)]. E.2. EFFECT

General rule:
Where both a civil and a criminal case arising from the same facts are filed in
court, the criminal case takes precedence [Sec. 2, Rule 111]. Exception: If there
exists a prejudicial question which should be resolved first before an action could
be taken in the criminal case.
WHERE TO FILE PETITION FOR SUSPENSION
(1) Office of the prosecutor (in the PI stage);
(2) Court conducting the PI; or
(3) Court where criminal action has been filed for trial, at any time before the
prosecution rests [Sec. 6, Rule 111].

NOTE:
The Rules preclude a motu proprio suspension by the judge of the civil action, it
must be by petition of the defendant. [Yap v. Paras, G.R. No. 101236 (1992)].

6. Rule on filing fees in civil action deemed instituted with the criminal action
THE CRIMINAL ACTION
Filing fees apply when damages are being claimed by the offended party, to be
paid upon filing of the criminal action.
General rule:
The actual damages claimed or recovered by the offended party are not included
in the computation of the filing fees [Sec. 1, Rule 111].
When the amount of damages, other than actual, is specified in the complaint or
information filed in court, then the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court for trial.
In any other case (i.e., when the amount of damages is not so alleged in the
complaint or information filed in court), the corresponding filing fees need not be
paid and shall simply constitute a first lien on the judgment, except on an award

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for actual damages [General v. Claravall, G.R. No. 96724 (1991)].

Exceptions:
In criminal actions for violation of BP 22, the amount of the check involved shall be
considered as the actual damages for which no separate civil action is allowed. In
estafa cases, the filing fees shall be paid based on the amount involved (AM 04-2-
04).

D. PRELIMINARY INVESTIGATION
The preliminary investigation is the police agency's first response to a report that a crime
has occurred. As in every investigative effort, the primary objective of the preliminary
investigation is to determine who committed the crime and to apprehend the offender.

1. Nature of right
DEFINITION
It is an inquiry or proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial [Sec. 1, Rule
112].
Preliminary Investigation is “merely inquisitorial, and it is often the only means of
discovering the persons who may reasonably be charged with a crime, to enable
the prosecutor to prepare his complaint or information. It is not a trial of the case
on the merits” and does not place the persons against whom it is taken in
jeopardy. [Paderanga v. Drilon, G.R. No. 96080 (1991)]
It is an executive, not a judicial function [Metropolitan Bank and Trust Company v.
Tonda, G.R. No. 134436 (2000)].
RIGHT TO PRELIMINARY INVESTIGATION
The right to preliminary investigation is a statutory right in those instances where
it is required, and to withhold it would violate the constitutional right to due
process [People v. Oandasa, G.R. No. L-29532 (1968)]. It is not a mere formal or
technical right but a substantial right.
WAIVER OF RIGHT
The right to preliminary investigation is a personal right which the accused may
waive either expressly or by implication. When the accused waives his right to
preliminary investigation, the fiscal may forthwith file the corresponding
information with the proper court [People v. Perez, G.R. No. L-15231 (1960)]. An
application for or admission to bail shall not bar the accused from assailing the
regularity or questioning the absence of a preliminary investigation of the charge
against him provided that he raises the challenge before entering his plea [Sec.
26, Rule 114].
WHEN RIGHT DEEMED WAIVED
(1) Express waiver or by silence [Pilapil v. Sandiganbayan, G.R. No. 101978
(1993)];
(2) Failure to invoke it during arraignment [People v. De Asis, G.R. No. 105581
(1993)]; and
(3) Consenting to be arraigned and entering a plea of not guilty without invoking
the right to PI [People v. Bulosan, G.R. No. L58404 (1988)]. The waiver, whether
express or implied, must be in a clear and unequivocal manner [Herrera (2007)].
The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan,
G.R. No. 101978 (1993)].
WHEN RIGHT NOT DEEMED WAIVED
(1) Failure to appear before the prosecutor during the clarificatory hearing or when
summoned, when the right was invoked at the start of the proceeding [Larranaga

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v. CA, G.R. No. 130644 (1998)]; or
(2) When the accused filed an application for bail and was arraigned over his
objection and the accused demand that preliminary investigation be conducted [Go
v. CA, G.R. No. 101837 (1992)].

2. Purposes of preliminary investigation

(1) To determine whether or not a crime has been committed and whether or not
there is probable cause to believe that the accused is guilty [Raro v.
Sandiganbayan, G.R. No. 108431 (2000)];
(2) To secure the innocent against hasty, malicious and oppressive prosecution,
and to protect him from an open and public accusation of a crime, from the
trouble, expense, anxiety of a public trial, and also protect the state from useless
and expensive trials [Tandoc v. Resultan, G.R. No. 59241-44 (1989)].

3. Who may conduct determination of existence of probable cause

Probable cause means the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. In general, the following may conduct the determination of existence
of probable cause:
(1) Provincial/city prosecutors and their assistants;
(2) National and regional state prosecutors;
(3) Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by
AM 05-8- 26-SC].

a. Distinguish: executive and judicial determination of probable cause

4. Resolution of investigation prosecutor

If he finds probable cause to hold respondent for trial, he shall prepare a
resolution and certify under oath in the information that:
(1) He or an authorized officer has personally examined the complainant and his
witnesses;
(2) That there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof;
(3) That the accused was informed of the complaint and evidences against him;
(4) That he was given opportunity to submit controverting evidence If he finds no
probable cause, he shall recommend the dismissal of the complaint [Sec. 4, Rule
112].

5. Review
1. Within 5 days from resolution, the investigating officer will forward the case to
the prosecutor or to the Ombudsman in cases cognizable by the Sandiganbayan in
the exercise of its original jurisdiction.
2. Within 10 days from receipt of the resolution, the Prosecutor/Ombudsman will
act on the case.
3. No complaint/information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the prosecutor or
ombudsman. In case the investigating officer recommends the dismissal of the
complaint but the prosecutor or Ombudsman disagrees, the latter may file the
information himself or any deputy or order any prosecutor to do so, without
conducting a new PI.

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4. The DOJ Secretary may file the information without conducting another PI or
dismiss the information filed by the prosecutor. The DOJ Secretary may review
resolutions, via petition for review to the Secretary of Justice, of his subordinates
in criminal cases despite the information being filed in court [Sec. 4, Rule 112;
Community Rural Bank of Guimba v. Talavera, RTJ-05-1909 (2005)]; see also DOJ
Circ. No. 70].

6. When warrant of arrest may issue

If the judge finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested, and hold him for trial.
The PI conducted by the prosecutor is executive in nature. It is for the purpose of
determining whether or not there exists sufficient ground for the filing of
information. The PI conducted by the judge which is properly called preliminary
examination is for the determination of probable cause for the issuance of warrant
of arrest [P/Supt. Cruz v. Judge Areola, AM No. RTJ-01-1642 (2002)].

7. Cases not requiring a preliminary investigation

These are cases punishable by imprisonment of less than 4 years, 2 months and 1
day, and filed with the prosecutor or MTC/MCTC. If filed directly with the
prosecutor, Sec. 3(a), Rule 112 applies.
Thus, the complaint must be filed:
(1) Stating the respondent’s name and address;
(2) Include the affidavits of complainant and the witnesses, and other documents
to establish probable cause, which must be subscribed and sworn to before a
prosecutor or government official authorized to administer oath or notary public;
and
(3) In such number of copies as there are respondents, plus 2 copies for the
official file. The prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within 10 days from its
filing.

8. Remedies of accused if there was no preliminary investigation

EFFECT OF DENIAL OF RIGHT
The absence of PI [Villaflor v. Vivar, G.R. No. 134744 (2001)]:
(1) Does not impair the validity of the information or otherwise render it defective;
(2) Does not affect the jurisdiction of the court; (3) Does not constitute a ground
for quashing the information.

REMEDIES OF THE ACCUSED IF THERE WAS NO PI:

(1) Refuse to enter a plea upon arraignment and object to further proceedings
upon such ground;
(2) Insist on a preliminary investigation;
(3) File a certiorari, if refused;
(4)Raise lack of PI as error on appeal [United States v. Banzuela, G.R. No. L-
10172 (1915)]
The trial court, instead of dismissing the information, should hold in abeyance the
proceedings and order the public prosecutor to conduct a PI [Villaflor v. Vivar, G.R.
No. 134744 (2001)]. After the filing of the complaint/information in court without
a PI, the accused may within 5 days from the time he learns of its filing, ask for a
PI with the same right to adduce evidence in his defense as provided in Rule 112
[Sec. 6, Rule 112].

9. Inquest

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An inquest is an informal and summary investigation conducted by a public
prosecutor in criminal cases involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the purpose of determining
whether or not said persons should remain under custody and correspondingly be
charged in court [DOJ-NPS Manual].

General rule: PI is required to be conducted before a complaint/information is filed

for an offense where the penalty prescribed by law is at least 4 years, 2 months
and 1 day, without regard to the fine [Sec. 1, Rule 112] Exception: When a person
is lawfully arrested without a warrant involving an offense that requires a PI, a
complaint/information may be filed without conducting the PI if the necessary
inquest is conducted.
However, before the complaint or information is filed, the person arrested may ask
for a PI, but he must sign a waiver of the provisions of Art. 125, RPC in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within 15 days from its inception [Sec. 6, Rule
112]. PROCEDURE An inquest is considered commenced upon receipt by the
Inquest Officer from the law enforcement authorities of the complaint/referral
documents which should include:
(1) Affidavit of arrest, investigation report, statement of the complainant and
witnesses, all of which must be subscribed and sworn to before him;
(2) Other supporting evidence gathered by the police in the course of the latter's
investigation of the criminal incident involving the arrested or detained person. It
must be terminated within the period prescribed under the provisions of Art. 125,
RPC.
Thus, if after the inquest proceedings:
(1) There is no probable cause, the case is dismissed;
(2) The accused wants a PI and is willing to waive Art. 125, a preliminary
investigation conducted;
(3) The arrest was without warrant, but there possibly is PC, the accused is
released for regular PI;
(4) There is PC and the arrest was valid, an information is filed.

E. ARREST
Arrest is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense [Sec. 1, Rule 113].

IMMUNITY
PARLIAMENTARY IMMUNITY Senators and Members of the House of
Representatives, while Congress is in session and for offenses punishable by not
more than 6 years imprisonment are immune to arrest [Sec. 11, Art. VI,
Constitution].
DIPLOMATIC IMMUNITY Ambassadors and ministers of foreign countries and
their duly registered domestics subject to the principle of reciprocity are immune
to arrest [RA 75]. NOTE: Diplomatic immunity is not limited to immunity from
arrest only.

1. Arrest, how made

(1) By actual restraint of a person to be arrested;
(2)By his submission to the custody of the person making the arrest [Sec. 2, 1st
par., Rule 113]. It is enough that there be an intent on the part of one of the
parties to arrest the other and an intent on the part of the other to submit, under
the belief and impression that submission is necessary [Sanchez v. Demetriou,

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G.R. No. 111771-77 (1993)]. No violence or unnecessary force shall be used in
making an arrest [Sec. 2, 2nd par., Rule 113]. Application of actual force, manual
touching of the body, physical restraint or a formal declaration of arrest is not
required. An arrest may be made on any day and at any time of the day or night
[Sec. 6, Rule 113].

2. Arrest without warrant, when lawful

General rule:
No peace officer or person has the power or authority to arrest anyone without a
warrant except in those cases expressly authorized by law [Umil v. Ramos, G.R.
No. 81567 (1991)].
Exceptions:
(1) In flagrante delicto [Sec. 5(a), Rule 113];
(2) Hot pursuit arrest [Sec. 5(b), Rule 113];
(3) Arrest of escaped prisoner [Sec. 5(c), Rule 113];
(4)Other lawful warrantless arrests:
(a) Where a person who has been lawfully arrested escapes or is rescued [Sec. 13,
Rule 113]; any person may immediately pursue or retake him without a warrant at
any time and in any place within the Philippines;
(b) By the bondsman, for the purpose of surrendering the accused [Sec. 23, Rule
114];
(c) Where the accused who is released on bail attempts to leave the country
without permission of the court where the case is pending [Sec. 23, Rule 114].

3. Method of arrest
 BY OFFICER WITH WARRANT
 DUTIES OF ARRESTING OFFICER
 RIGHTS OF THE ARRESTING OFFICER
 BY OFFICER WITHOUT WARRANT
 BY PRIVATE PERSON (CITIZEN’S ARREST)

a. By officer with warrant

DUTIES OF ARRESTING OFFICER
(1) Execution of warrant [Sec. 4, Rule 113]:
a) The head of the office to whom the warrant of arrest was delivered shall
cause the warrant to be executed within 10 days from its receipt;
b) The officer to whom it was assigned for execution shall make a report to the
judge who issued the warrant within 10 days after expiration of the period to
execute.
c) In case of the officer’s failure to execute, he shall state the reasons therefor.
(2) The officer shall inform the person to be arrested of the cause of the arrest and
the fact that a warrant has been issued for his arrest [Sec. 7, Rule 113].
(a) This duty does not apply:
(i) When the person to be arrested flees;
(ii) When he forcibly resists before the officer has opportunity to so inform him;
(iii)When the giving of such information will imperil the arrest.
(b) The officer need not have the warrant in his possession at the time of the
arrest but after the arrest, if the person arrested so requires, the warrant shall be
shown to him as soon as practicable [Sec. 7, Rule 113]. This is not a case of a
warrantless arrest but merely an instance of an arrest effected by the police
authorities without having the warrant in their possession at that precise moment
[Mallari v. CA, G.R. No. 11069 (1996)].

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(3) The officer executing the warrant shall arrest the accused and deliver him to
the nearest police station or jail without unnecessary delay [Sec. 3, Rule 113];
(4) No violence or unnecessary force shall be used in making an arrest [Sec. 2,
2nd par., Rule 113].RIGHTS OF THE ARRESTING OFFICER
(1) To summon assistance [Sec. 10, Rule 113]. He may orally summon as many
persons as he deems necessary to assist him in effecting the arrest.
(2) To break into building or enclosure [Sec. 11, Rule 113], when the following
concur:
(a) The person to be arrested is or is reasonably believed to be in said building;
(b)He has announced his authority and purpose of entering therein; and
(c) He has requested and been denied admittance.
(3) To break out from the building/enclosure when necessary to liberate himself
[Sec. 12, Rule 113];
(4) To search the person arrested for dangerous weapons or anything which may
have been used or constitute proof in the commission of an offense without a
warrant [Sec. 13, Rule 126].

NOTE: Nos. 2 and 3 are also applicable where there is a valid warrantless arrest.

b. By officer without warrant

BY OFFICER WITHOUT WARRANT
General rule:
The officer shall inform the person to be arrested of:
(1) His authority; and
(2) The cause of the arrest (Sec. 8, Rule 113).

Exceptions:
(1) When the person to be arrested is engaged in the commission of the offense;
(2) When he is pursued immediately after its commission;
(3) When he has escaped, flees or forcibly resists before the officer has the
opportunity to so inform him; or
(4) When the giving of such information will imperil the arrest.

c. By private person
BY PRIVATE PERSON (CITIZEN’S ARREST)
(1) The private person shall inform the person to be arrested of the intention to
arrest him and the cause of the arrest [Sec. 9, Rule 113], except in the same
cases as those for arrest by an officer without a warrant.
(2) The private person must deliver the arrested person to the nearest police
station or jail, and he shall be proceeded against in accordance with Sec. 7, Rule
112. Otherwise, the private person may be held liable for illegal detention.

4. Requisites of a valid warrant of arrest

ESSENTIAL REQUISITES
The warrant must:
(1) Be issued upon probable cause determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce; and
(2) Particularly describe the person to be arrested [Sec. 2, Art. III, Constitution]
WHEN ISSUED
A judge issues a warrant of arrest upon the filing of the information by the public
prosecutor and after personal evaluation by the judge of the prosecutor’s
resolution and supporting evidence [Sec. 5(a), Rule 112]. The judge does not have

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to personally examine the complainant and his witnesses. Established doctrine
provides, he shall personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause:
(1) If he finds probable cause, he shall issue a warrant of arrest; or
(2) If on the basis thereof he finds no probable cause, he may disregard the
fiscal’s report and require the submission of supporting affidavits of witnesses
[People v. Gray, G.R. No. 180109 (2010); AAA v. Carbonell, G.R. No. 171465
(2007)].

5. Determination of probable cause for issuance of warrant of arrest

Probable cause, in connection with the issuance of a warrant of arrest, assumes
the existence of facts and circumstances 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 [People v. Tan, G.R. No. 182310
(2009)].

F. BAIL
Bail is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as
required under conditions hereinafter specified [Sec. 1, Rule 114].

1. Nature
DEFINITION
Bail is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as
required under conditions hereinafter specified [Sec. 1, Rule 114].

PURPOSE
(1) To relieve an accused from imprisonment until his conviction and yet secure
his appearance at the trial [People v. Hon. Donato, G.R. No. 79269 (2011)];
(2) To honor the presumption of innocence until his guilt is proven beyond
reasonable doubt [Sec. 14, Art. III, Constitution]; and
(3) To enable him to prepare his defense without being subject to punishment
prior to conviction [Cortes v. Judge Catral, AM No. RTJ-97-1387 (1997)].

REQUIREMENT OF CUSTODY
General rule:
Custody of the law is required before the court can act on an application for bail
[Miranda v. Tuliao, G.R. No. 158763 (2006)]. Exceptions: Custody is not required
in cases of witnesses posting bail:
(1) When bail is required to guarantee the appearance of a material witness [Sec.
14, Rule 119];
(2) When bail is required to guarantee the appearance of a prosecution witness in
cases where there is substitution of the information [Sec. 14, Rule 110].

2. When a matter of right; exceptions

Bail is a matter of right:
(1) Before or after conviction, but pending appeal, by the MTC;
(2) Before conviction by RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment. [Sec. 4, Rule 114].

General rule:
Bail is a matter of right.

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Exception:
When the offense involved is a capital offense, admission to bail is discretionary,
and may only be denied when evidence of guilt is strong. Exception to the
exception: When the accused is a minor, he is entitled to bail regardless of
whether the evidence of guilt is strong.

CAPITAL OFFENSE
A capital offense is an offense which under the law existing at the time of
commission and of the application for admission to bail is punishable by death
[Sec. 6, Rule 114]. The capital nature of the offense is determined by the penalty
prescribed by law and not the one actually imposed.

Note: RA 9346 (An Act Prohibiting the Imposition of Death Penalty in the
Philippines) enacted on June 24, 2006 (which repealed RA 8177 and RA 7659)
prohibited the imposition of the death penalty. Under Sec. 7, RA 9346, it stated
that “[c]apital offense or an offense punishable by reclusion perpetua or life
imprisonment.”

3. When a matter of discretion

(1) Before conviction, in offenses punishable by death, reclusion perpetua or life
imprisonment and evidence of guilt is not strong;
(2) Upon conviction by the RTC, which has not become final as the accused still
has the right to appeal, of an offense not punishable by death, reclusion perpetua
or life imprisonment. It may be filed in and acted upon by the RTC despite the
filing of notice of appeal, provided that it has not transmitted the original record to
the appellate court. If the RTC decision changed nature of the offense from non-
bailable to bailable, the application for bail can be resolved only by the appellate
court [Sec. 5, Rule 114].
If the conviction by the trial court is for a capital offense, the accused convicted of
a capital offense is no longer entitled to bail, and can only be released when the
conviction is reversed by the appellate court [Sec. 13, Article III, Constitution]. If
the penalty imposed by the trial court is imprisonment exceeding 6 years, the
accused shall be denied bail or his bail shall be cancelled upon showing by the
prosecution, with notice to the accused, of any of the following [Sec. 5, Rule 114]:
(1) Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime
aggravated by reiteration of the accused;
(2) The accused previously escaped from legal confinement, evaded sentence or
violated bail conditions without valid justification;
(3) Commission of offense while under probation, parole or conditional pardon by
the accused;
(4) Probability of flight;
(5)Undue risk that the accused may commit another crime during pendency of
appeal. Upon conviction of the RTC, the bail posted earlier as a matter of right
loses its force and the accused must file a new and separate petition for bail. In
deportation proceedings, bail is discretionary upon the Commissioner of
Immigration and Deportation [Harvey v. Defensor-Santiago, G.R. No. 82544
(1990)].

NOTE: In Enrile v. People, G.R. No. 213847 (2015), the Court ruled that an
accused should be granted bail if it is shown that:
(1) the detainee will not be a flight risk or a danger to the community; and
(2) there exist special, humanitarian, and compelling circumstances.

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4. Hearing of application for bail in capital offenses
IN GENERAL
At the hearing of an application for bail filed by a person in custody for the
commission of an offense punishable by reclusion perpetua or life imprisonment,
the prosecution has the burden of showing that evidence of guilt is strong [Sec. 8,
Rule 114].
Evidence of guilt in the Constitution and the Rules refers to a finding of innocence
or culpability, regardless of the modifying circumstances.

MINORS CHARGED WITH CAPITAL OFFENSE

If the person charged with a capital offense is admittedly a minor, which would
entitle him, if convicted, to a penalty next lower than that prescribed by law, he is
entitled to bail regardless of whether the evidence of guilt is strong. Reason: One
who faces a probable death sentence has a particularly strong temptation to flee.
This reason does not hold where the accused has been established without
objection to be minor who by law cannot be sentenced to death.

DUTIES OF JUDGE HEARING THE PETITION FOR BAIL

(1) Notify the prosecutor of the hearing and require him to submit his
recommendation;
(2) Conduct a hearing of the application regardless of whether or not prosecution
refuses to present evidence to show that the guilt of the accused is strong;
(3) Decide whether the evidence of guilt of the accused is strong based on the
summary of the evidence of the prosecution;
(4) If the guilt of the accused is not strong, discharge the accused upon the
approval of the bail bond. Otherwise, petition should be denied [Riano (2011),
citing Narciso v. Santa Romana-Cruz (2000)].

Note: Evidence presented during the bail hearing are automatically reproduced at
the trial, but upon motion of either party, the court may recall any witness for
additional examination. [Sec. 8, Rule 114].

WHERE APPLICATION FOR BAIL IS FILED

General rule: The application may be filed with the court where the case is
pending.
Exceptions:
(1) If the judge of the court where the case is pending is absent or unavailable,
the application may be filed with any RTC/MTC/MeTC/MCTC judge in the province,
city or municipality;
(2) Where the accused is arrested in a province, city/municipality other than
where the case is pending, the application may be filed with any RTC of the said
place. If no judge is available, then with any MeTC/MTC/MCTC judge in the said
place. Judge who accepted the application shall forward it, together with the order
of release and other supporting papers where the case is pending;
(3) When a person is in custody but not yet charged, he may apply with any court
in the province or city/municipality where he is held [Sec. 17, Rule 114].
NOTE: Where the grant of bail is a matter of discretion, or the accused seeks to
be released on recognizance, the application may only be filed in the court where
the case is pending, on trial, or appeal.

5. Guidelines in fixing amount of bail

The considerations are primarily, but not limited, to the following [Sec. 9, Rule

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114]
(1) Financial ability of the accused;
(2) Nature and circumstances of the offense;
(3) Penalty for the offense charged;
(4) Character and reputation of the accused;
(5) Age and health of the accused;
(6) Weight of the evidence against the accused;
(7) Probability of the accused appearing at the trial;
(8) Forfeiture of other bail;
(9) Fact that accused was a fugitive from justice when arrested;
(10) Pendency of other cases where the accused is on bail.

6. Bail when not required

(1) When a person has been in custody for a period equal to or more than the
possible maximum imprisonment of the offense charged to which he may be
sentenced;
(2) If the maximum penalty is destierro, he shall be released after 30 days of
preventive imprisonment [Sec. 16, Rule 114];
(3) In cases filed with the MTC/MCTC for an offense punishable by an
imprisonment of less than 4 yrs, 2 mos. and 1 day, and the judge is satisfied that
there is no necessity for placing the accused under custody [Sec. 8, Rule 112];
(4) In cases where a person is charged with violation of a municipal/city
ordinance, a light felony and/or criminal offense, the penalty of which is not higher
than 6 months imprisonment and/or a fine of 2000, or both, where it is
established that he is unable to post the required cash or bail bond [Sec. 1, RA
6036].

7. Increase or reduction of bail

After the accused is admitted to bail and for good cause, the court may increase or
decrease the amount [Sec. 20, Rule 114]

INCREASED BAIL
The accused may be committed to custody if he does not give bail in the increased
amount within a reasonable period of time [Sec. 20, Rule 114].

REDUCED BAIL A person in custody for a period equal to or more than the
minimum of the principal penalty prescribed for the offense charged may be
released on a reduced bond [Sec. 16, Rule 114].

8. Forfeiture and cancellation of bail

FORFEITURE OF BAIL
When the appearance of the accused out on bail is required by court and he failed
to appear, the court shall issue an order of forfeiture wherein:
(1) The provisional liberty of the accused due to the bail bond shall be revoked
and;
(2) It shall require the bondsman to produce the principal If the accused failed to
appear in person as required, the bondsmen are given 30 days within which to:
(1) Produce the body of the principal or give reason for the non-production. The
bondsmen may:
(a) Arrest the accused;
(b) Cause him to be arrested by a police officer or any other person of suitable age
or discretion upon written authority endorsed on a certified copy of the
undertaking.

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(2) Explain why the accused failed to appear:
(a) If the bondsmen fail to do these, judgment is rendered against them, jointly
and severally, for the amount of the bail.
(b) Bondsmen’s liability cannot be mitigated or reduced, unless the accused has
been surrendered or is acquitted [Sec. 21, Rule 114].
Bondsmen can prevent the accused from leaving country by arresting him or
asking for him to be re-arrested by a police officer upon written authority [Sec. 23,
Rule 114]. Judgment against the bondsmen cannot be entered unless such
judgment is preceded by an order of forfeiture and an opportunity given to the
bondsmen to produce the accused or to adduce satisfactory reason for their
inability to do so.
An order of forfeiture is interlocutory and is different form the judgment on the
bond which is issued if the accused was not produced within the 30-day period
[Mendoza v. Alarma, G.R. No. 151970 (2008)].

CANCELLATION OF BAIL
a) APPLICATION BY BONDSMEN Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled upon:
(1) Surrender of the accused; or
(2) Proof of his death. [Sec. 22(1), Rule 114]
b) AUTOMATIC CANCELLATION
(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction [Sec. 22(2), Rule 114].

9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary

investigation
Bail is no longer a waiver of these objections [Sec. 26, Rule 114; Leviste v.
Alameda, G.R. No. 182677 (2011)].
Thus, provided that the proper objections are timely raised (i.e., before accused
enters a plea), an application or an admission to bail shall not bar the accused
from challenging or questioning the:
(1) Validity of his arrest;
(2) Legality of the arrest warrant;
(3) Regularity of preliminary investigation;
(4)Absence of preliminary investigation. The court shall resolve the objections as
early as practicable but not later than the start of the trial of the case.
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/
G. ARRAIGNMENT AND PLEA

1. How made
ARRAIGNMENT AND PLEA; HOW MADE
This is the stage where the accused is formally informed of the charge against him
by reading before him the information/complaint and asking him whether he
pleads guilty or not guilty [Sec. 1(a), Rule 116]. It is the stage where the issues
are joined and without which the proceedings cannot advance further or, if held,
will otherwise be void. [People v. Albert, G.R. No. 114001 (1995)].

Rationale: The importance of arraignment is based on the constitutional right of

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the accused to be informed. It is at this stage that the accused, for the first time,
is given the opportunity to know the precise charge that confronts him. [Kummer
v. People, G.R. No. 174461 (2013)] PLEA Pertains to the matter which the
accused, on his arraignment, alleges in answer to the charge against him.

DUTY OF THE COURT BEFORE ARRAIGNMENT

The court shall:
(1) Inform the accused of his right to counsel;
(2) Ask him if he desires to have one; and
(3) Must assign a counsel de oficio to defend him, unless the accused:
(a) Is allowed to defend himself in person; or
(b)Has employed a counsel of his choice [Sec. 6, Rule 116]. Before arraignment
and plea, the accused may avail of any of the following:
1. Bill of particulars to enable him to properly plead and prepare
for trial;
2. Suspension of arraignment; upon motion, he may ask for
suspension of arraignment to pursue a petition for review
before the DOJ Secretary under Sec. 11, Rule 116, for a period
of suspension shall not exceed 60 days from filing of petition
with the reviewing office;
3. Motion to quash the complaint or information on any of the
grounds under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117;
4. Challenge the validity of the arrest or legality of the warrant or
assail the regularity or question the absence of preliminary
investigation of the charge. If the accused does not question
the legality of the arrest or search, this objection is deemed
waived.

PROCEDURE OF ARRAIGNMENT
1 The Court shall issue an order directing the public prosecutor to submit the
record of the PI to the branch COC for the latter to attach the same to the record
of the case.
2 The court shall inform the accused of his right to counsel and ask him if he
desires to have one. Unless the accused is allowed to defend himself in person or
has employed counsel of his choice, the court must assign a counsel de oficio to
defend him.
3
(1) If the accused pleads not guilty, either:
(a) He raises an affirmative defense, that is, he admits the
charge but raises exempting or justifying
circumstances, in which case the order of trial is
reversed;
(b) He raises a negative defense, that is, he denies the
charge, in which case regular trial proceeds;
(2) If the accused pleads guilty:
(a) For a non-capital offense, the court will promulgate a judgment of
conviction;
(b) For a capital offense, the prosecution is still required to prove guilt
beyond reasonable doubt;
(2) If the accused does not enter any plea, a plea of not guilty is entered
by the court.

The time of the pendency of a motion to quash or for a bill of particulars or other
causes justifying suspension of the arraignment shall be excluded in computing

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the period [Sec. 1(g), Rule 116].

HOW MADE
1. In open court where the complaint or information has been filed or assigned
for trial;
2. By the judge or clerk of court;
3. By furnishing the accused with a copy of the complaint or information;
4. Reading it in a language or dialect known to the accused;
5. Asking the accused whether he pleads guilty or not guilty.
6. The accused must be present and must personally enter his plea.
7. Both arraignment and plea shall be made on record but failure to enter of
record shall not affect the validity of the proceedings [Sec. 1, Rule 116].

WHEN HELD
General rule: The accused should be arraigned within 30 days from the date the
court acquires jurisdiction over his person. Exceptions: When the law provides for
another period, arraignment should be held within said period, as in the following
cases:
(1) When an accused is under preventive detention, his case should be raffled
within 3 days from filing and accused shall be arraigned within 10 days from
receipt by the judge of the records of the case [RA 8493 (Speedy Trial Act)];
(2) Where the complainant is about to depart from the Philippines with no definite
date of return, the accused should be arraigned without delay [RA 4908]. Presence
of the offended party: The private offended party shall be required to appear in
the arraignment for the purpose of:
(1) Plea bargaining;
(2) Determination of civil liability; and
(3) Other matters requiring his presence In case of failure of the
offended party to appear despite due notice, the court may allow
the accused to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the conformity of
the trial prosecutor alone [Sec. 1(f), Rule 116; AM No. 03-1-09-SC
Part B(2)].
In case of failure of accused to appear despite due notice, there is no arraignment
in absentia [Nolasco v. Enrile (1985)]. The presence of the accused is not only a
personal right but also a public duty, irrespective of the gravity of the offense and
the rank of the court. There can be no trial in absentia without first arraigning the
accused; otherwise, the judgment is null and void

SPECIFIC RULES
(1) Trial in absentia may be conducted only after valid arraignment.
(2) Accused must personally appear during arraignment and enter his plea;
counsel cannot enter plea for the accused.
(3) Accused is presumed to have been validly arraigned in the absence of proof to
the contrary.
(4)Generally, judgment is void if accused has not been validly arraigned.
(5) If accused went into trial without being arraigned, subsequent arraignment will
cure the error provided that the accused was able to present evidence and cross
examine the witnesses of the prosecution during trial. If an information is
amended in substance which changes the nature of the offense (not merely as to
form), arraignment on the amended information is mandatory [Teehankee v.
Madayag, G.R. No. 103102 (1992)].
The need for arraignment is imperative in an amended information or complaint.
This, however, pertains only to substantial and not to formal amendments.

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[Kummer v. People, G.R. No. 174461 (2013)]

2. When should plea of not guilty be entered

1. When the accused so pleaded;
2. When he refuses to plead;
3. When he makes a conditional or qualified plea of guilt [Sec. 1(c), Rule 116];
4. When the plea is indefinite or ambiguous;
5. When he pleads guilty but presents
exculpatory evidence [Sec. 1(d), Rule 116].
Plea of guilty is mitigating if it is made before
prosecution starts to present evidence.
Plea of not guilty should be entered:
(1) Where the plea of guilty was compelled by
violence or intimidation
(2) When the accused did not fully understand the meaning and consequences of
his plea
(3) Where the information is insufficient to sustain conviction of the offense
charged
(4) Where the information does not charge an offense, any conviction thereunder
being void
(5) Where the court has no jurisdiction

3. When may accused enter a plea of guilty to a lesser offense

Requisites:
(1) The lesser offense is necessarily included in the offense charged;
(2) The plea must be with the consent of both the offended party and the
prosecutor, except when the offended party fails to appear despite due notice;
(3) The penalty for the lesser offense is not more than two degrees lower than the
imposable penalty for the crime charged.

DURING ARRAIGNMENT
At arraignment, the accused, with the consent of the offended party and
prosecutor, may be allowed by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged. [Sec. 2, Rule 116]

AFTER ARRAIGNMENT
BUT BEFORE TRIAL After arraignment but before trial, the accused may still be
allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary [Sec. 2, Rule
116].

AFTER TRIAL HAS BEGUN

After the prosecution has rested its case, a change of plea to a lesser offense may
be granted by the judge, with the approval of the prosecutor and the offended
party if the prosecution does not have sufficient evidence to establish the guilt of
the accused for the crime charged. The judge cannot on its own grant the change
of plea.

4. Accused plead guilty to capital offense, what the court should do

Conditions that the trial court must observe to obviate an improvident plea of
guilty by the accused:
(1) Conduct a searching inquiry into the voluntariness and full comprehension of
the consequences of the pleas;

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(2) Require prosecution to present evidence to prove the guilt and precise degree
of culpability of the accused;
(3) Ask the accused if he desires to present evidence in behalf and allow him to do
so if he desires [Sec. 3, Rule 116]. NOTE: A plea of guilty to a capital offense does
not re

5. Searching inquiry
The procedure in Sec. 3, Rule 116, when the accused pleads guilty to a capital
offense, is mandatory. The plea must be clear, definite and unconditional. It must
be based on a free and informed judgment. The judge must ask whether the
accused was assisted by counsel during custodial investigation and PI; ask
questions on age, educational attainment and socio-economic status; and ask the
defense counsel whether or not he conferred with the accused [People v. Nadera,
G.R. Nos. 181384-87 (2000)].

Rationale: This is to enjoin courts to proceed with more care where the possible
punishment is in its severest form and to avoid improvident pleas of guilt [People
v. Samontanez, G.R. No. 134530 (2000)].

Guidelines for conducting a search inquiry:

(1) Ascertain from the accused himself:
(a) How he was brought into the custody of the law;
(b) Whether he had the assistance of a competent counsel during the custodial
and preliminary investigations; and
(c) Under what conditions he was detained and interrogated during the
investigations. This is intended to rule out the possibility that the accused has
been coerced or placed under a state of duress either by actual threats of physical
harm coming from malevolent quarters or simply because of the judge’s
intimidating robes.
(2) Ask the defense counsel a series of questions as to whether he had conferred
with, and completely explained to, the accused the meaning and consequences of
a plea of guilty.
(3) Elicit information about the personality profile of the accused, such as his age,
socio-economic status, and educational background, which may serve as a
trustworthy index of his capacity to give a free and informed plea of guilty.
(4) Inform the accused the exact length of imprisonment or nature of the penalty
under the law and the certainty that he will serve such sentence. For not
infrequently, an accused pleads guilty in the hope of a lenient treatment or upon
bad advice or because of promises of the authorities or parties of a lighter penalty
should he admit guilt or express remorse. It is the duty of the judge to ensure that
the accused does not labor under these mistaken impressions because a plea of
guilty carries with it not only the admission of authorship of the crime proper but
also of the aggravating circumstances attending it, that increase punishment.
(5) Inquire if the accused knows the crime with which he is charged and fully
explain to him the elements of the crime which is the basis of his indictment.
Failure of the court to do so would constitute a violation of his fundamental right to
be informed of the precise nature of the accusation against him and a denial of his
right to due process.
(6) All questions posed to the accused should be in a language known and
understood by the latter.
(7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly
guilty. The accused must be required to narrate the tragedy or reenact the crime
or furnish its missing details [People v. Pastor, G.R. No. 140208 (2002)].

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6. Improvident plea
An improvident plea is one without proper information as to all the circumstances
affecting it; based upon a mistaken assumption or misleading information/advice
[Black’s Law Dictionary].

General rule:
An improvident plea should not be accepted. If accepted, it should not be held to
be sufficient to sustain a conviction [People v. De Ocampo Gonzaga, G.R. No. L-
48373 (1984)]. The case should be remanded to the lower court for further
proceedings. Exception: If the accused appears guilty beyond reasonable doubt
from the evidence adduced by the prosecution and defense.

WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN

At any time before judgment of conviction becomes final, the court may permit an
improvident plea of guilty to be withdrawn and be substituted by a plea of not
guilty. [Sec. 5, Rule 116]
The withdrawal of a plea of guilty is not a matter of right of the accused but of
sound discretion of the trial court [People v. Lambino, G.R. No. L-10875 (1958)].
The reason for this is that trial has already begun and the withdrawal of the plea
will change the theory of the case and put all past proceedings to waste.
Moreover, at this point, there is a presumption that the plea was made voluntarily

H. MOTION TO QUASH
Form and content
(1) In writing;
(2) Signed by the accused or his counsel; and
(3) Distinctly specify the factual and legal grounds [Sec. 2, Rule 117].

WHEN FILED
General Rule:
At any time before entering his plea, the accused may move to quash the
complaint or information [Sec. 1, Rule 117].

Exception:
When the grounds relied upon the motion are:
(1) Failure to charge an offense
(2) Lack of jurisdiction over the offense charged
(3) Extinction of the offense or penalty
(4)Double jeopardy In cases covered by the Rules on Summary Procedure, MTQ is
allowed only if made on the grounds of lack of jurisdiction or failure to comply with
barangay conciliation proceedings [Sec. 19, Rules on Summary Procedure].

1. Grounds
In general The following grounds for MTQ are exclusive:
(1) Facts charged do not constitute an offense;
(2) Court trying the case has no jurisdiction over the offense charged;
(3) Court trying the case has no jurisdiction over the person of the accused;
(4)Officer who filed the information had no authority to do so;
(5) The information does not conform substantially to the prescribed form;
(6) More than one offense is charged, except when a single punishment for various
offenses is prescribed by law;
(7) Criminal action or liability has been extinguished;

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(8)Averments which, if true, would constitute a legal excuse or justification;
(9)Accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his express
consent (Sec. 3, Rule 117).

NOTE: Although the rule is that grounds not asserted in the motion to quash are
waived, the following objections are not subject to waiver:
(1) Facts charged do not constitute an offense
(2) Court trying the case has no jurisdiction over the offense charged
(3) Criminal action or liability has been extinguished
(4)Double jeopardy

2. Distinguish from demurrer to evidence

Motion to quash
When filed Filed before entering plea
Basis for grant or denial Does not go into the
merits of the case
Grounds Grounds are
stated in Rule
117
Necessity of leave Does not require a prior
leave of court
Effect of grant Grant does not
necessarily follow a
dismissal (Court may
order the filing of a new
complaint or information)
Remedy If the court, in denying
the motion to quash acts
with grave abuse of
discretion, then certiorari
or prohibition lies.
Demurrer to evidence
Filed after the prosecution
has rested its case
Based upon the
inadequacy of the
evidence adduced by the
prosecution
Ground is
“insufficiency of
evidence” to
convict
May be filed either with
leave or without leave of
court
Grant is deemed an
acquittal and would
preclude the filing of
another information or
appeal by the prosecution
The order denying the
motion for leave to file a
demurrer “shall not be
reviewable by appeal or
by certiorari before
judgment” If the court
denies the demurrer to
evidence filed with leave
of court, the accused may
adduce evidence in his
defense. When the
demurrer is filed without
leave, the accused waives
the right to present
evidence and submits the
case for judgment
[Section 23, Rule 119]

3. Effects of sustaining the motion to quash

FILING ANOTHER COMPLAINT OR INFORMATION
General rule: Court may order that another complaint or information be filed [Sec.

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5, Rule 117)
Exception: If MTQ was based on the following:
(1) Criminal action or liability has been extinguished;
(2) Double jeopardy.
DISCHARGE OF THE ACCUSED
General rule:
If in custody, the accused shall not be discharged unless admitted to bail [Sec. 5,
Rule 117]. The order granting the MTQ must state either release of the accused or
cancellation of his bond.

Exception: When there is no order to file another complaint/information or, if there

is one, when no new information is filed within the time specified in the order or
within such further time as the court may allow for good cause, the accused shall
be discharged. Exception to the exception: The accused will not be discharged if
he is in custody for another charge.
REMEDIES OF THE PROSECUTION
General rule: The prosecution may amend the information to correct the defects if
the TC makes the order, and thereafter prosecute on the basis of the amended
information [Sec. 4, Rule 117]. Exception: Prosecution is precluded where the
ground for quashal would bar another prosecution for the same offense. The
prosecution may appeal from the order of quashal to the appellate court. If the
information was quashed because it did not allege the elements of the offense, but
the facts so alleged constitute another offense under a specific statute, the
prosecution may file a complaint for such specific offense where dismissal is made
prior to arraignment and on MTQ [People v. Purisima (1978)].

4. Exception to the rule that sustaining the motion is not a bar to another prosecution
General rule:
Grant of the MTQ will not be a bar to another prosecution for the same offense
[Sec. 6, Rule 117].
Exception:
It will bar another prosecution when the ground for the quashal is either:
(1) The criminal action or liability has been extinguished; or
(2) The accused has been previously convicted, or in jeopardy of being convicted,
or acquitted of the offense charged.

5. Double jeopardy
The right against double jeopardy prohibits the prosecution for a crime of which he
has been previously convicted or acquitted [Caes v. IAC, G.R. No. 74989-90
(1989)].
Rule of double jeopardy When a person is charged with an offense and the case is
terminated either by acquittal or conviction or in any other manner without the
express consent of the accused, the latter cannot again be charged with the same
or identical offense [Sec. 3(i), Rule 117].
Kinds of double jeopardy
(a) No person shall be put twice in jeopardy for the same offense [Sec. 21, Art.
III, Constitution];
(a) General rule: There is identity between the two
offenses not only when the second offense is exactly the
same as the first, but also when the second offense is an
attempt to or frustration of or is necessarily included in the
offense charged in the first information.
(b) Exceptions:

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 i. The graver offense developed due to supervening facts arising
from the same act or omission constituting the former charge;
ii. The facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint
or information;
iii. The plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except when
offended party failed to appear during such arraignment.
(c)What: The offenses are penalized either by different
sections of the same law or by different statutes. The
essential elements of each must be examined.
(d) Test: Whether or not evidence that proves one
likewise proves the other [People v. Ramos (1961)].
(b) When an act punished by a law and an ordinance, conviction or acquittal under
either shall be a bar to another prosecution for the same act [Sec. 21, Art. III,
Constitution].
A. The second sentence of the constitutional protection was precisely intended
to extend to situations not covered by the first sentence. Although the prior
offense charged under an ordinance be different from the offense charged
under a national statute, the constitutional protection is available provided
that both arise from the same act or set of acts [People v. Relova, G.R. No.
L-45129 (1987)].
B. But: An offense penalized by ordinance is, by definition, different from an
offense penalized under a statute. Hence, they would never constitute
double jeopardy. [People v. Relova, G.R. No. L-45129 (1987)]

Requisites to successfully invoke double jeopardy

(1) A first jeopardy must have attached;
(2) The first jeopardy must have been validly terminated; and
(3) The second jeopardy must be for the same offense or the second
offensenecessarily 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
[People v. Espinosa, G.R. Nos. 153714-20 (2003)].

Requisites for first jeopardy to attach

(1) Valid indictment;
(2) Before a competent court;
(3) Arraignment;
(4) A valid plea entered; and
(5) The accused has been convicted or acquitted, or the case dismissed or
otherwise validly terminated without his express consent [People v. Honrales, G.R.
No. 182651 (2010)].
However, a dictated, coerced and scripted verdict of acquittal is a void judgment.
It neither binds nor bars anyone [Galman v. Sandiganbayan, G.R. No. 72670
(1986)]. Without express consent This refers only to dismissal or termination of
the case. It does not refer to the conviction or acquittal [People v. Labatete, G.R.
No. L-12917 (1960)].
If consent is not express, dismissal will be regarded as final (i.e., with prejudice to
refilling) [Caes v. IAC, G.R. Nos. 74989-90 (1989)]. Even with the consent of the
accused, however, dismissal has the effect of acquittal when predicated on:
(1) Insufficiency of the prosecution’s evidence or
(2) Denial of the right to a speedy trial [Almario v. CA, G.R. No. 127772 (2001)].

When dismissal constitutes acquittal Dismissal constitutes acquittal when it is

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granted:
(1) Upon demurrer to evidence;
(2) Due to violation of right to speedy trial (even if dismissal was upon motion of
the accused or with his express consent).

6. Provisional dismissal
Provisional dismissal is dismissal without prejudice to its being refiled or revived.
Cases are provisionally dismissed where there has already been arraignment and
the accused consented to a provisional dismissal.

I. PRE-TRIAL
Pre-trial is mandatory in all criminal cases. Its main objective is to achieve an
expeditious resolution of the case.

1. Matters to be considered during pre-trial

2. What the court should do when prosecution and offended party agree to the plea
offered by the accused
Plea bargaining It is the process in criminal procedure whereby the accused,
offended party, and the prosecution work out a mutually satisfactory disposition of
the case subject to court approval (See DOJ Circ. No. 35, as amended by Circ. No.
55 for the guidelines on plea bargaining as well as note on Rule 116).
It usually involves the defendant pleading guilty to a lesser offense or to one or
some of the counts of a multi-count indictment in return for a lighter sentence
than that for the graver charge [People v. Mamarion, G.R. No. 137554 (2003)].
The conviction of the accused of the lesser offense precludes the filing and
prosecution of the offense originally charged in the information, except when the
plea of guilty to a lesser offense is without the consent of the offended party and
the prosecutor [People v. De Luna, G.R. No. L-77969 (1989); Sec. 7(c), Rule 117,
see Sec. 2, Rule 116].

Effect when the prosecution and the offended party agree to the plea offered by
the accused The Court shall:
(1) Issue an order which contains the plea bargaining arrived at;
(2) Proceed to receive evidence on the civil aspect of the case; and
(3) Render and promulgate judgment of conviction, including the civil liability or
damages duly established by the evidence [AM 03-1-09-SC].

3. Pre-trial agreement
Requirements [Sec. 2, Rule 118]
(1) Must be in writing;
(2) Signed by the accused and his counsel;
(3) With approval of court if agreements cover matters in Sec. 1, Rule 118. If this
is not followed, the admissions cannot be used against the accused (i.e.,
inadmissible in evidence). The constitutional right to present evidence is waived
expressly.

General rule: Court approval is required.

Exception: Agreements not covering matters referred to in Sec. 1, Rule 118, need

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not be so approved [AM 03-1-09-SC]. Effect The stipulations become binding on
the parties who made them. They become judicial admissions of the fact or facts
stipulated.
Even if placed at a disadvantageous position, a party may not be allowed to
rescind them unilaterally; he must assume the consequences of the disadvantage
[Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)].

NON-APPEARANCE DURING PRE-TRIAL

The court may impose proper sanctions or penalties (reprimand, fine or
imprisonment), if counsel for the accused or the prosecutor to enforce the
mandatory character of the pretrial in criminal cases:
(1) Does not appear at the pre-trial conference; and
(2) Does not offer an acceptable excuse [Sec. 3, Rule 118].

NOTE: The accused is not included because his constitutional right to remain silent
may be violated. The accused is not required to attend (unless ordered by the
court) and is merely required to sign the written agreement arrived at in the pre-
trial conference, if he agrees to the contents of such. The complainant is also not
required to appear during pre-trial. It is the prosecutor who is required to appear
at the pre-trial.

4. Non-appearance during pre-trial

5. Pre-trial order
Issuance The pre-trial order is:
(1) Issued by the court;
(2) Within 10 days after the pre-trial [AM 03- 1-09-SC]. Judgment of acquittal
based on pre-trial despite disputed documents and issues of fact amounts to grave
error and renders the judgment void [People v. Santiago, G.R. No. L-80778
(1989)].

Content
(1) Actions taken;
(2) Facts stipulated;
(3) Evidence marked;
(4)Admissions made;
(5) The number of witnesses to be presented; and
(6) The schedule of trial [Sec. 4, Rule 118].

NOTE: Nos. 4 to 6 are added by AM 03-1-09- SC to the requirements under Sec.

4, Rule 118.

Effect
(1) Binds the parties. The procedure is substantially the same in civil cases, except
that any modification of the pretrial order in civil cases must be made before the
trial. No such limitation is provided for in criminal cases;
(2) Limits the trial to those matters not disposed of; (3) Controls the course of the
action during trial, except if modified by the court to prevent manifest injustice.

J. TRIAL
A trial is a formal meeting in a law court, at which a judge and jury listen to
evidence and decide whether a person is guilty of a crime.

Page 260 of 360

1. Instances when presence of accused is required by law
OF ACCUSED
General rule: The presence of the accused during the trial may be waived.
Exception: For purposes of identification. Exception to the exception: The presence
of the accused is no longer required when he unqualifiedly admits in open court
after arraignment that he is the person named as defendant in the case on trial
[Lavides v. CA, G.R. No. 129670 (2000)].
Note: The presence of the accused is also required in the following cases:
(1) At arraignment; [Sec. 1(b), Rule 116]
(2) At the promulgation of judgment, unless the conviction is for a light offense
[Sec. 6, Rule 120].

2. Requisite before trial can be suspended on account of absence of

witness
(1) The witness must be either absent or unavailable;
(2) The absent or unavailable witness must be essential [Riano (2011)]. “Absent”
means that his whereabouts are unknown or cannot be determined by due
diligence. [Sec. 3(b), Rule 119] “Unavailable” means that his whereabouts are
known but presence for trial cannot be obtained by due diligence. [Sec. 3(b), Rule
19] “Essential” means indispensable, necessary, or important in the highest
degree [Black’s Law Dictionary].

Effect of absence of witness

The period of delay resulting from the absence or unavailability of an essential
witness shall be excluded in computing the time within which trial must commence
[Sec. 3, Rule 119]. Counsel for the accused, the public prosecution or public
attorney may be punished if he knowingly allows the case to be set for trial
without disclosing that a necessary witness would be unavailable for trial.

Conditional examination When it satisfactorily appears that a witness for the

prosecution is too sick or infirm to appear at the trial as directed by the court, or
has to leave the Philippines with no definite date of returning, he may forthwith be
conditionally examined before the court where the case is pending.

Such examination, in the presence of the accused, or in his absence after

reasonable notice to attend the examination has been served on him, shall be
conducted in the same manner as an examination at the trial. Failure or refusal of
the accused to attend the examination after notice shall be considered a waiver.
The statement taken may be admitted in behalf of or against the accused [Sec.
15, Rule 119].

3. Trial in absentia
Requisites:
(1) Accused has been arraigned;
(2) He was duly notified of trial;
(3) His failure to appear is unjustified. Rationale: This is to speed up disposition of

4. Remedy when accused is not brought to trial within the prescribed

period
Remedy when accused is not brought to trial within the prescribed period On
motion of the accused, the information may be dismissed on the ground of denial

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of his right to speedy trial [Sec 9, Rule 119].

Factors to consider:
(1) Duration of the delay;
(2) Reason therefor;
(3) Assertion of the right or failure to assert it; and
(4) Prejudice caused by such delay [Corpuz v. Sandiganbayan, G.R. No. 162214
(2004)]. Must be raised prior to trial; otherwise, the right to dismiss is considered
waived under Sec. 9, Rule 119.

5. Requisites for discharge of accused to become a state witness

Requisites
(1) Two or more persons are jointly charged with the commission of any offense.
(2) Upon motion of the prosecution before resting its case
(3) Petition for discharge is filed before the defense has offered its evidence.
[People v. Anion (1988)]
(4)Hearing in support of the discharge where the prosecution is to present
evidence and the sworn statement of each proposed state witness.
(5) The court is satisfied of the following:
(a) Absolute necessity for the testimony of the accused whose discharge is
requested;
(i) He alone has the knowledge of the crime, and not when his testimony
would simply corroborate or strengthen the evidence in the hands of the
prosecution. [Flores v. Sandiganbayan, G.R. No. L-63677 (1983)];
(b) There is no other direct evidence available for the proper prosecution of the
offense, except the testimony of the said accused;
(c) The testimony can be substantially corroborated in its material points;
(d) The accused does not appear to be the most guilty;
(e) The accused has not, at any time, been convicted of any offense involving
moral turpitude [Sec. 17, Rule 119].

6. Effects of discharge of accused as state witness

General rule:
The order of discharge shall:
(1) Amount to an acquittal of the discharged accused;
(2) Bar future prosecutions for the same offense [Sec. 18, Rule 119].

Exception: If the accused fails/refuses to testify against his co-accused in

accordance with his sworn statement constituting the basis for his discharge, these
effects do not set in. Any error in asking for and in granting the discharge cannot
deprive the one discharged of the acquittal and the constitutional guaranty against
double jeopardy [People v. Verceles, G.R. No. 130650 (2002)].

Conviction of the accused against whom discharged state witness testified is not
required. Subsequent amendment of the information does not affect discharge
[People v. Taruc, G.R. No. L-14010 (1962)].
NOTES
(1) The evidence adduced in support of the discharge shall automatically form part
of the trial.
(2) If the discharge is not granted, the affidavit of the accused cannot be used by
the prosecution.

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7. Demurrer to evidence
A demurrer to evidence is defined as “an objection or exception by one of the
parties in an action at law, to the effect that the evidence which his adversary
produced is insufficient in point of law (whether true or not) to make out his case
or sustain the issue” [Pasag v. Parocha, G.R. No. 155483 (2007), citing Black’s
Law Dictionary].

General rule: An order granting the accused’s demurrer to evidence amounts to an

acquittal.

Exception: When there is a finding that there was grave abuse of discretion on the
part of the trial court in dismissing a criminal case by granting the accused’s
demurrer to evidence [Hon. Mupas v. People, G.R. No. 189365 (2011)]. The order
granting the demurrer is not appealable but may be reviewed via certiorari under
Rule 65 [People v. Sandiganbayan, Marcos (2012)].

Ratio: This is to prevent the filing of demurrer based on frivolous and flimsy
grounds. How initiated
1) By the court motu proprio, after giving the prosecution the opportunity to be
heard; or
2) Upon demurrer to evidence filed by the accused:
(a) With leave of court;
(b) Without leave of court [Sec. 23, Rule 119].

Motion for leave to file demurrer

1) It must specifically state its grounds.
2) It must be filed within a non-extendible period of 5 days after the
prosecution rests (i.e. after the court shall have ruled on the prosecution’s
formal offer). Prosecution may then oppose within a non-extendible period of
5 days from receipt.
3) If leave of court is granted, the demurrer must be filed within a non-
extendible period of 10 days from notice. Prosecution may oppose within a
similar period [Sec. 23, Rule 119].

8. Guidelines on continuous trial

a. Applicability

b. Prohibited and meritorious motions

c. Arraignment and pre-trial

d. Trial; memoranda

e. Promulgation

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K. JUDGMENT
A judgment is the adjudication by the court that the accused is guilty or not
guilty of the offense charged and the imposition on him of the proper penalty and
civil liability, if any [Sec. 1, Rule 120]

1. Requisites of a judgment
A judgment is the adjudication by the court that the accused is guilty or not
guilty of the offense charged and the imposition on him of the proper penalty and
civil liability, if any [Sec. 1, Rule 120]

A.1. FORM (1) Written in official language. If given verbally, it is incomplete

[People v. Catolico, G.R. No. L-31260 (1972)]; (2) Personally and directly
prepared by the judge; (3) Signed by the judge. The judge who presided over the
entire trial would be in a better position to ascertain the truth or falsity of the
testimonies. But the judge who only took over can render a valid decision by
relying on the transcript. It does not violate due process [People v. Badon, G.R.
No. 126143 (1999)]; (4) Contains clearly and distinctly a statement of facts
proved and the law upon which judgment is based [Sec. 1, Rule 120]. There is
sufficient compliance if the decision summarizes the evidence of both parties,
synthesizes the findings and concisely narrates how the offense was committed.

2. Contents of judgment
The judgment of conviction shall state:
(1) The legal qualification of the offense constituted by the acts committed by the
accused and the aggravating/mitigating circumstances which attended its
commission;
(2) The participation of the accused in the offense, whether as principal,
accomplice or accessory after the fact;
(3) The penalty imposed upon the accused;
(4) The penalty should not be imposed in the alternative. There should be no
doubt as to the offense committed and the penalty for it;
(5) The civil liability or damages caused by his wrongful act/omission to be
recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil action has been
reserved/waived [Sec. 2, Rule 120].

3. Promulgation of judgment; instances of promulgation of judgment /

in absentia
Promulgation is the official proclamation or announcement of a judgment or
order. Promulgation is made by reading it in the presence of the accused and any
judge of any court in which it was rendered [Sec. 6, Rule 120]

IN GENERAL REQUISITES
1) There must be a judge or judges legally appointed or elected and
actually acting either de jure or de facto;
2) The said judgment must be duly signed and promulgated during the
incumbency of the judge who signed it [Miguel v Municipal Trial Court
(1986)].
3) The judgment or sentence does not become a judgment or sentence in
law until it is:
(a) Read and announced to the defendant; or
(b)Has become a part of the record of the court [US v. CFI of Manila
(1913)].

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FAILURE TO PROMULGATE
Where there is no promulgation of judgment, no right to appeal accrues. Merely
reading the dispositive portion of the decision is not sufficient.

NOTICE FOR PROMULGATION

The Clerk of Court gives notice to the accused personally or through the bondsman
or warden and counsel. If the accused jumps bail or escapes from prison and was
tried in absentia, notice will be served in last known address [Sec. 6, Rule 120].
SIN PERJUICIO JUDGMENT It is a judgment without a statement of the facts in
support of its conclusion to be later supplemented by the final judgment [Dizon v.
Lopez, AM RTJ-96-1338 (1997)].

PROMULGATION IN CERTAIN CIRCUMSTANCES PROMULGATION WHERE

THE JUDGE IS ABSENT
The judgment may be promulgated by the clerk of court when the judge is absent
or outside the province or city [Sec. 6, Rule 120].

WHERE PRESENCE OF ACCUSED IS REQUIRED; EXCEPTIONS

General rule: Presence of the accused is mandatory in the promulgation of
judgment. Exception: Convictions for light offenses [Sec. 6, Rule 120]. If the
judgment is for conviction and the failure of the accused to appear was without
justifiable cause, he shall lose the remedies available in the Rules against the
judgment and the court shall order his arrest.
However, within 15 days from promulgation of judgment, he may surrender and
file a motion for leave of court to avail of these remedies. He shall state the
reasons for his absence. If he proves his absence was for a justifiable cause, shall
be allowed to avail of the remedies within 15 days from notice [Sec. 6, Rule 120;
People v. De Grano, G.R. No. 167710 (2009)].

Failure of the accused to appear at the scheduled date of promulgation

Promulgation is made by recording the judgment in the criminal docket and
serving a copy at the accused’s last known address or through counsel [Sec. 6,
Rule 120].
PROMULGATION WHEN ACCUSED IS CONFINED OR DETAINED IN
ANOTHER CITY
Promulgation will be done in the RTC which has jurisdiction over the place of
confinement. In this case, the court promulgating the judgment shall have
authority to accept notice of appeal and to approve the bail bond pending appeal
[Sec. 6, Rule 120]

PROMULGATION WHEN A JUDGE IS NO LONGER A JUDGE

A judgment promulgated after the judge who signed the decision has ceased to
hold office is not valid and binding. In like manner, it cannot be promulgated after
the retirement of the judge. [Nazareno v. CA, G.R. No. 111610 (2002)]

4. Instances when judgment becomes final

Page 17 of28
FINALITY
When does judgment become final
1) After the lapse of the period for perfecting an appeal;
2) When the sentence has been partially/totally satisfied or served;
3) The accused has expressly waived in writing his right to appeal;
4) When the accused applies for probation, and thereby waives right to appeal.

Page 265 of 360

 [Sec. 7, Rule 120] Judgment also becomes final when judgment is an
acquittal [People v. Sandiganbayan, G.R. No. 164577 (2010)].

NOTE: Before the judgment becomes final, the TC has plenary power to make,
either on motion or motu proprio, such amendment or alterations as it may deem
best, within the frame of law, to promote the ends of justice [Sec. 7, Rule 120].
After finality, the TC is divested of authority to amend/alter the judgment, except
to correct clerical errors.

L. NEW TRIAL OR RECONSIDERATION

1. Grounds for new trial

ERRORS OF LAW OR IRREGULARITIES The court shall grant a new trial when
errors of law or irregularities prejudicial to the substantial rights of the accused
have been committed during the trial. General rule: Errors of the defense counsel
in the conduct of the trial is neither an error of law nor an irregularity.

Exception: They become an error of law or irregularity when acquittal would, in

all probability, have followed the introduction of certain testimony which was not
submitted at the trial under improper or injudicious advice of incompetent counsel
of the accused. Irregularities must be with such seriousness as to affect
prejudicially the substantial rights of the accused.

NEW AND MATERIAL EVIDENCE

The court shall grant a new trial when new and material evidence has been
discovered which the accused could not with reasonable diligence have discovered
and produced at the trial and which if introduced and admitted would probably
change the judgment [Estino v. People, G.R. No. 163957- 58 (2007)].
The determinative test is the presence of due or reasonable diligence to locate the
thing to be used as evidence in the trial [Briones v. People, G.R. No. 156009
(2009)].

2. Grounds for reconsideration

The court shall grant reconsideration on the ground of errors of law or fact in the
judgment, which requires no further proceedings [Sec. 3, Rule 121].

3. Requisites before a new trial may be granted on ground of newly

discovered evidence
The evidence:
(1) Was discovered after the trial;
(2) Could not have been discovered and produced at the trial even with the
exercise of reasonable diligence [US v. Pico (1982)];
(3) Burden of proving this is on the accused. [US v. Torrente (1922)];
(4) Is material, not merely cumulative/ corroborative/impeaching; and
(5) Is of such weight that it would probably change the judgment if admitted [Jose
v. CA (1997)]. It must be of weighty influence and will affect the result of the trial
[People v. Alfaro (2003)].

Interest of justice as gauge for introduction of new evidence

In People v. Almendras [G.R. No. 145915 (2003)], the court ruled that a motion
for a new trial may be granted on a ground not specifically provided in the rules,
provided that it is sought in the interest of justice. In that case, the relief of a new

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trial was granted to a client who has suffered by reason of his/her counsel’s gross
mistake and negligence.
When there is variance between two reports
In People v. del Mundo (1996), the court allowed the presentation in a new trial of
a police report, not new, and which could have been discovered with due diligence,
because the evidence contained in such was at such variance with the health
officer’s report at trial, that its contents raised doubts to the guilt of the accused.

4. Effects of granting a new trial or reconsideration

IN ALL CASES
(1) The original judgment set aside or vacated;
(2) A new judgment is rendered accordingly;
OTHER EFFECTS
Other specific effects (see table) also result when granted upon different grounds
[Sec. 6, Rule 121].

Ground Effect Action of the court

Errors of law or All proceedings and The court will allow
irregularities committed evidence affected shall be introduction of additional
during the trial set aside and taken anew. evidence in the interest of
If error or irregularity justice.
goes into the jurisdiction,
the entire proceeding is
void and must be set
aside.
Newly-discovered Evidence already adduced The court will allow
evidence shall stand and the newly- introduction of other such
discovered and such other evidence in the interest of
evidence shall be taken justice.
and considered together
with the evidence already
in the record.

In case of grave abuse of discretion

The remedy of the prosecution in case of grave abuse of discretion in the grant of
the MNT/MR is certiorari or prohibition. Otherwise, it may no longer have
opportunity to question the order if accused is acquitted after a new trial is
conducted, because of the rule on double jeopardy [Luciano v. Estrella, G.R. No. L-
31622 (1970)].

M. APPEAL

1. Effect of an appeal
In case of grave abuse of discretion The remedy of the prosecution in case of
grave abuse of discretion in the grant of the MNT/MR is certiorari or prohibition.
Otherwise, it may no longer have opportunity to question the order if accused is
acquitted after a new trial is conducted, because of the rule on double jeopardy
[Luciano v. Estrella, G.R. No. L-31622 (1970)].

2. Where to appeal
For cases decided by Appeal to
MTC/MeTC/MCTC RTC

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RTC or MTC/MeTC/ MCTC (if it is Sandigan -bayan
government duty-related, i.e., filed
under EO 1, 2, 4 and 14-A)
RTC (if it involves questions of fact and CA
of law)
(a) RTC (b) Involves only questions of SC
law (c) Involves constitutionality or
validity of any treaty, law, ordinance,
EO, regulation or jurisdiction of the
inferior court (d) In criminal cases
involving offenses for which the penalty
imposed is death or life imprisonment
(e) Other offenses, which, although not
so punished, arose out of the same
occurrence or which may have been
committed by the accused on the same
occasion, as that giving rise to the more
serious offense
CA or Sandiganbayan SC

3. How appeal taken

The right to appeal is not a natural right nor a part of due process but merely a
statutory privilege and may be exercised only in the manner and in accordance
with the provisions of the law [Estarija v. People, G.R. No. 173990 (2009)].

4. Effect of appeal by any of several accused

General rule:
An appeal taken by one or more of several accused shall not affect those who did
not appeal. As to the appealing party, the execution of judgment appealed from is
stayed upon the perfection of the appeal. As to the co-accused who did not appeal,
the judgment of the TC insofar as it relates to him becomes final and the appellate
court has no power to interfere with it [Salvatierra v. CA, G.R. No. 107797
(1996)].

Exception: Insofar as the judgment of the appellate court is favorable and

applicable to those who did not appeal or who withdrew his appeal [People v.
Gandia, G.R. No. 175332 (2008)].

The appeal of the offended party from the civil aspect shall not affect the criminal
aspect of the judgment or order appealed from [Sec. 11, Rule 122].

5. Grounds for dismissal of appeal

WHEN APPEAL BY THE PEOPLE WILL NOT LIE
The People/State cannot appeal when it will put the accused in double jeopardy.
The constitutional mandate against double jeopardy prohibits not only a
subsequent prosecution in a new and independent cause but extends also to
appeal in the same case by the prosecution after jeopardy had attached [Republic
v. CA, G.R. No. L- 41115 (1982)].

The prosecution cannot appeal from a judgment of acquittal.

Ratio: A verdict of that nature is immediately final and to try on the merits, even
in an appellate court, places the accused in double jeopardy [Central Bank v. CA,

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G.R. No. 41859 (1989)].

Dismissal of case upon filing of demurrer by the accused was held to be final even
though based on erroneous interpretation of the law. Hence, an appeal therefrom
by the prosecution would constitute double jeopardy [People v. Sandiganbayan,
G.R. No. 174504 (2011), citing People v. Nieto, 103 Phil. 1133]

Where the TC has jurisdiction but mistakenly dismisses the complaint/information

on the ground of lack of it, the order of dismissal is unappealable [People v.
Duran, G.R. No. L13334 (1960)]. An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the trial court or to include in a
judgment a penalty erroneously omitted [People v. Paet, G.R. No. L-9551 (1956)].

The preclusion against appeal by the State from judgments or final orders having
the effect of acquittal applies even though accused did not raise question of
jeopardy [People v. Ferrer, G.R. No. L-9072 (1956)].

N. SEARCH AND SEIZURE

DEFINITION
It is an order in writing; issued in the name of the People of the Philippines; signed
by a judge; and directed to a peace officer, commanding him to search for
personal property described in the warrant and bring it before the court [Sec. 1,
Rule 126].

1. Nature of search warrant

NATURE
A search warrant is in the nature of a criminal process akin to a writ of discovery,
employed by the state to procure relevant evidence of a crime [Malaloan v. CA,
G.R. No. 104879 (1994)].

It is not available to individuals in the course of civil proceedings. It is

interlocutory in character – it leaves something more to be done, which is the
determination of the guilt of the accused.

CONSTITUTIONAL SAFEGUARD
No search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after the examination under
oath/affirmation of the complaint and the witness he may produce, and
particularly describing the place to be searched, and the things/persons to be
seized [Sec. 2, Art. III, Constitution]. Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for any purpose in any proceeding [Sec.
3, 2nd par., Art. III, Constitution].

The constitutional guarantee is not a blanket prohibition against all searches and
seizures. It operates only against “unreasonable” searches and seizures. What
constitutes a reasonable or unreasonable search or seizure in any particular case
is purely a judicial question, determinable from a consideration of the
circumstances involved, including the purpose of the search, the presence or
absence of probable cause, the manner in which the search and seizure was made,
the place or thing searched, and the character of the articles procured [Rodriguez
v. Villamiel, L-44328 (1937)].

DOCTRINE OF ATTENUATION

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Under the doctrine of attenuation, despite the illegality in obtaining evidence, such
evidence may be admissible if the connection between the evidence and the illegal
method is sufficiently remote or attenuated so as to dissipitate the taint [Wong
Sun v. US (1963)].

Directed upon acts of the government, not private persons The constitutional
protection is directed against the acts of the government and its agents, not
private persons [People v. Marti, G.R. No. 81561 (1991)]
However, if the private person is acting upon orders of government officials, the
principle of agency applies, because in fact such private person is acting in the
interest of government, and is therefore subject to the prohibition against
unreasonable searches and seizures.

General rule: Search of property is unreasonable unless it has been authorized

by a valid search warrant. Exceptions:
1) Search incidental to a lawful arrest;
2) Consented search;
3) Search of moving vehicle;
4) Checkpoints;
5) Plain view;
6) Stop and frisk;
7) Customs search;
8) Other exceptions, such as exigent circumstances, buy-bust operations,
and private searches.

2. Distinguish from warrant of arrest

Search warrant Warrant of arrest
Nature and purpose Order in writing in the Order directed to the
name of the People of the peace officer to execute
Philippines, signed by the the warrant by taking the
judge and directed to the person stated therein into
peace officer to search custody that he may be
personal property bound to answer for the
described therein and to commission of the offense
bring it to court
Probable cause The judge must personally The judge does not have
examine the complainant to personally examine the
and witnesses in the form complainant and his
of searching questions witnesses. Instead, he
and answers may opt to personally
evaluate the report and
supporting documents
submitted by the
prosecutor [AAA v.
Carbonell (2007)]
Examination The examination must be Examination must be
under oath or affirmation under oath.
of the complainant and
his witnesses.
Form It must particularly It must particularly
describe the place to be describe the person to be
searched and the things arrested.
to be seized.

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When executed Generally served in the May be made at any time
day time, unless there be of the day or night
a direction in the warrant
that it may be served at
any time of the day or
night [Section 9, Rule
126]
Validity Valid for 10 days Does not expire

3. Application for search warrant, where filed

It may be filed in any court within whose territorial jurisdiction the crime was
committed. For compelling reasons, which must be stated in the application, it
may also be filed:
(1) If the place of the commission of the crime is known, any court within the
judicial region where the crime was committed;
(2) Any court within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be
made in the court where the criminal action is pending [Sec. 2, Rule 126].

Under AM 03-8-02-SC, Executive Judges and, whenever they are on official leave
of absence or are not physically present in the station, the Vice-Executive Judges
of Manila and Quezon City RTCs shall have authority to act on applications for
search warrants involving:
1) Heinous crimes;
2) Illegal gambling;
3) Illegal possession of firearms and ammunitions
4) Violations of the Comprehensive Dangerous Drugs Act of 2000;
5) Violations of the Intellectual Property Code;
6) Violations of the Anti-Money Laundering Act of 2001;
7) Violations of the Tariff and Customs Code; and (8)Other relevant laws
that may hereafter be enacted by Congress and included herein by the
Supreme Court.

4. Probable cause for issuance of search warrant

PROBABLE CAUSE IN SEARCH WARRANTS Probable cause means such facts and
circumstances which would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and that objects sought in connection with
the offense are in the place sought to be searched [Santos v. Pryce Gases Inc.,
G.R. No. 165122 (2007)].

This probable cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere hearsay.
The probable cause must refer only to one specific offense [Roan v. Gonzales, G.R.
No. 71410 (1986)]. Note: Probable cause to arrest does not necessarily involve a
probable cause to search and vice-versa.

5. Personal examination by judge of the applicant and witnesses

Aside from the requirements mandated by Sec. 4, Rule 126, the Rules require the
judge to comply with a specific procedure in the conduct of the examination of the
complainant and the witnesses he may produce [Sec. 5, Rule 126]:
(1) The examination must be personally conducted by the judge;
(2) The examination must be in the form of searching questions and answers;
(3) The complainant and the witnesses shall be examined on those facts

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personally known to them;
(4) The statements must be in writing and under oath; and
(5) The sworn statements of the complainant and the witnesses, together with the
affidavits submitted, shall be attached to the record.

SEARCHING QUESTIONS AND ANSWERS

Searching questions are such questions which have the tendency to show the
commission of a crime and the perpetrator thereof [Luna v. Plaza, G.R. No. 27511
(1968)].
In search cases, the application must be supported by substantial evidence:
(1) That the items sought are in fact seizable by virtue of being connected with
criminal activity; and
(2) That the items will be found in the place to be searched [People v. Tuan, G.R.
No. 176066 (2010)]. A search warrant issued by a judge who did not ask
searching questions but only leading ones and in a general manner is invalid [Uy
v. BIR, G.R. No. 129651 (2000)].
Although there is no hard-and-fast rule governing how a judge should conduct his
investigation, it is axiomatic that the examination must be probing and exhaustive,
not merely routinary, general, peripheral, perfunctory or pro forma. The judge
must not simply rehash the contents of the affidavit but must make his own
inquiry on the intent and justification of the application. [Yao v. People, G.R. No.
168306 (2007)] A warrant not based on personal knowledge is void.

EXAMINATION UNDER OATH

The judge must examine under oath or affirmation the complainant and the
witness he may produce. Oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an act faithfully and truthfully.
The oath required must refer to the truth of facts within the personal knowledge of
the petitioner or his witnesses [Alvarez v. CFI, G.R. No. L-45358 (1937)]. Mere
affidavits of the complainant or his witnesses are not sufficient.
The examining judge has to take depositions in writing of the complaint or his
witnesses, and attach the same to the record [Prudente v. Judge Dayrit, G.R. No.
82870 (1989)].

6. Particularity of place to be searched and things to be seized

Warrant issued must particularly describe the place to be searched and the things
to be seized.

PARTICULARITY OF PLACE TO BE SEARCHED

Description of place to be searched is sufficient if the officer with the search
warrant can, with reasonable efforts, ascertain and identify the place intended
[People v. Veloso, G.R. No. L-23051 (1925)]. An apparent typographical error will
not necessarily invalidate the search warrant, as long as the application contains
the correct address [Burgos v. Chief of Staff, G.R. No. L64261 (1984)].

7. Personal property to be seized

The scope of the search warrant is limited to personal property only. It does not
issue for seizure of immovable properties.

General rule: Things to be seized must be described particularly. General search

warrants are not allowed. Otherwise, the search and seizure of the items in the
implementation of such search warrant is illegal and the items seized are
inadmissible in evidence [Sec. 2, Art. III, Constitution].

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Search warrants authorizing the seizure of books of accounts and records
“showing all the business transactions” of certain persons, regardless of whether
the transactions were legal or illegal, are general warrants prohibited by law.
[Stonehill v. Diokno, G.R. No. L-19550 (1967)].

Likewise, a description of things to be seized as “subversive documents,

propaganda materials, FAs, printing paraphernalia and all other subversive
materials” hardly provided a definite guideline to the executing officers [Dizon v.
Castro (1985)]. Where the language used is too allembracing as to include all the
paraphernalia of petitioner in the operation of its business, the SW is
constitutionally objectionable [Columbia Pictures v. Flores, G.R. No. 78631
(1993)].

8. Exceptions to search warrant requirement

Where, by the nature of the goods to be seized, their description must be rather
general, it is not required that a technical description be given, for this would
mean that no search warrant could issue [People v. Rubio, G.R. No. L-35500
(1932)].

The general description of the documents listed in the search warrant does not
render the it void if it is severable, and those items not particularly described may
be cut off without destroying the whole [Uy v. BIR, G.R. No. 129651 (2000)].

PERSONAL PROPERTY TO BE SEIZED

What may be seized
(1) Personal property subject of the offense;
(2) Personal property stolen/embezzled and other proceeds/fruits of the offense;
(3) Personal property used or intended to be used as the means of committing an
offense [Sec. 3, Rule 126].
The rule does not require that the property to be seized should be owned by the
person against whom the search warrant is directed. It is sufficient that the person
against whom the warrant is directed has control of possession of the property
sought to be seized [Burgos v. Chief of Staff, G.R. No. L64261 (1984)].

a. Search incidental to lawful arrest

In a search incidental to an arrest, even without a warrant, the person arrested
may be searched for:
(a) Dangerous weapons;
(b) Anything which may have been used in the commission of an offense; or
(c) Anything which may constitute proof in the commission of the offense [Sec.
13, Rule 126].
The arrest must precede the search; generally, the process cannot be reversed.
Nevertheless, a search substantially contemporaneous with an arrest can precede
the arrest as if the police have probable cause to make the arrest at the outset of
the search [Riano (2011)].
The rule assumes that the arrest is legal. If the arrest is illegal, then the search is
illegal and as a result, the things seized are inadmissible as evidence [People v.
Aruta, G.R. No. 120195 (1998)].
The search is confined to his person, but as an incident of an arrest, the place or
premises where the arrest was made can also be searched without a search
warrant. The extent and reasonableness of the search must be decided on its own
facts and circumstances [Nolasco v. Paño, G.R. No. L69803 (1985)].

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When an individual is lawfully arrested, he/she may be frisked for concealed
weapons that may be used against the arresting officer and all unlawful articles
found in his person, or within his immediate control, may be seized. [OCA v.
Barron, AM No. RTJ-98-1420 (1998)]

Where a search is first undertaken, and an arrest was effected based on evidence
produced by such search, both search and arrest are illegal [Lui v. Matillano, G.R.
No. 141176 (2004)].

b. Consented search
Jurisprudence requires that in case of consented searches or waiver of the
constitutional guarantee against obtrusive searches, it must first appear that:
(a) The right exists;
(b) The person involved had knowledge, either actual or constructive, of the
existence of such right; and
(c) The said person had an actual intention to relinquish the right [People v.
Nuevas, G.R. No. 170233 (2007)]. Consent to a search is not to be lightly inferred,
but must be shown by clear and convincing evidence. It is the State which has the
burden of proving, by clear and positive testimony, that the necessary consent
was obtained and that it was freely and voluntarily given [Valdez v. People, G.R.
No. 170180 (2007)].

A peaceful submission to a search or seizure is not a consent or an invitation

thereto, but is merely a demonstration of regard for the supremacy of the law
[People v. Nuevas, G.R. No. 170233 (2007)]. Consented search is reasonable only
if kept within the bounds of the actual consent. A person’s consent may limit the
extent/scope of a warrantless search in the same way that the specifications of a
warrant limit the search pursuant thereto.
Relevant to the determination of consent are the following characteristics of the
person giving consent and the environment in which consent is given:
(1) The age of the defendant;
(2) Whether he was in a public or secluded location;
(3) Whether he objected to the search or passively looked on;
(4) The education and intelligence of the defendant;
(5) The presence of coercive police procedures;
(6) The defendant's belief that no incriminating evidence will be found;
(7) The nature of the police questioning;
(8) The environment in which the questioning took place; and
(9) The possibly vulnerable subjective state of the person consenting [Caballes v
CA, G.R. No. 136292 (2002)].

c. Search of moving vehicle

Rationale:
Peace officers may lawfully conduct searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial warrant before searching a
vehicle since it can be quickly moved out of the locality or jurisdiction in which the
warrant may be sought [People v. Tuazon, G.R. No. 175783 (2007)].

However, these searches would be limited to visual inspection and the vehicles or
their occupants cannot be subjected to physical or body searches, except where
there is probable cause to believe that the occupant is a law offender or the
contents of the vehicles are instruments or proceeds of some criminal offense.

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The search and seizure without warrant of vessel and aircrafts for violation of
customs laws has been a traditional exception to the requirement of search
warrant [Roldan v. Arca, G.R. No. L-25434 (1975)]. Nonetheless, in all cases
falling under this category, there must be a showing of a probable cause of a
violation of the law [Caroll v. US (1924)].

d. Check points; body checks in airport

Searches conducted in checkpoints are valid as long as they are warranted by the
exigencies of public order and conducted in a way least intrusive to motorists
[People v. Vinecario, G.R. No. 141137 (2004)].
Routine inspections are not regarded as violative of an individual’s right against
unreasonable search:
(a) Where the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds;
(b)Officer simply looks into a vehicle;
(c) Officer flashes a light therein without opening car’s doors;
(d)Occupants not subjected to a physical search;
(e) Inspection is limited to usual search or inspection; or
(f) Routine check is conducted in a fixed area [People v. CA (2002)].

e. Plain view situation

a. A prior valid intrusion i.e., based on the valid warrantless
arrest in which the police are legally present in the pursuit
of their official duties;
b. Evidence was inadvertently discovered by the police who
have a right to be where they are;
c. Evidence must be immediately and apparently illegal (i.e.,
drug paraphernalia); (d) Plain view justified mere seizure
of evidence without further search [People v. Valdez
(1999)].

Limitations:
a) It may not be used to launch unbridled searches and
indiscriminate seizures.
b) It does not extend to a general exploratory search made
solely to find evidence of defendant’s guilt [People v.
Musa, G.R. No. 96177 (1993)].

The doctrine is usually applied where a police officer is not searching for evidence
against the accused, but nonetheless inadvertently comes across an incriminating
object. Even if an object is in plain view, before it can be seized without a search
warrant, its incriminating nature must first be apparent. Where police officers are
on the premises pursuant to a valid consent to a search, an item falling into their
plain view may properly be seized even if the item is not connected with their
purpose in entering.

f. Stop and frisk situation

Stop and frisk is a limited protective search of outer clothing for weapon [Malacat
v. CA, G.R. No. 123595 (1997)].

Where a police officer observes unusual conduct, which leads him reasonably to
conclude in the light of his experience that criminal activity may be afoot, and that

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a person with whom he is dealing may be armed and presently dangerous, he is
entitled to conduct a stop and frisk search.
Where in the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiry, and where nothing in the initial stage of
the encounter serves to dispel his reasonable fear for his own or others’ safety, he
is entitled for the protection of himself and others in the area to conduct a
carefully limited search of outer clothing of such persons in an attempt to discover
weapons which might be used to assault him [Terry v. Ohio (1968)].

Under this theory, probable cause is not required to conduct a “stop and frisk” but
mere suspicion or hunch will not validate a “stop and frisk.” The test is whether or
not there is a reasonable belief based on genuine reason and in the light of the
officer’s experience and the surrounding circumstances, that a crime has either
taken place or is about to take place and the person to be stopped is armed and
dangerous.

g. Enforcement of custom laws

For the enforcement of customs duties and tariff laws, the Collector of Customs is
authorized to effect searches and seizure [General Travel Services v. David, G.R.
No. L19259 (1966)].

The Tariff Code authorizes customs officers to:

(a) Enter, pass through or search any land, enclosure, warehouse;
(b) Inspect/search/examine any vessel or aircraft and any
trunk/package/box/envelope or any person on board, or stop and examine any
vehicle/beast/person suspected of holding/conveying any dutiable/prohibited
article introduced into the Philippines contrary to law.

General rule: The Tariff and Customs Code does not require a warrant for such
searches. Exception: In the search of a dwelling house, a search warrant is
required.

9. Remedies from unlawful search and seizure

WHO MAY AVAIL
Only the party whose rights have been impaired thereby; the objection to an
unlawful search and seizure is purely personal and cannot be availed of by third
parties [Stonehill v. Diokno, G.R. No. L-19550 (1967); Santos v. Pryce Gases Inc.,
G.R. No. 165122 (2007)].

MEANS EMPLOY ANY MEANS TO PREVENT THE SEARCH

Without a search warrant, the officer cannot insist on entering a citizen’s premises.
If he does so, he becomes an ordinary intruder. The person to be searched may
resist the search and employ any means necessary to prevent it, without incurring
any criminal liability [People v. Chan Fook, G.R. No. L16968 (1921)].

FILE CRIMINAL ACTION AGAINST OFFICER

A public officer/employee who procures a search warrant without just cause is
criminally liable under Art. 129, RPC, on search warrants maliciously obtained and
abuse in the service of those legally obtained. FILE A

MOTION TO QUASH THE ILLEGAL WARRANT

This remedy is employed if search is not yet conducted. Who may file
(1) Person injured;

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(2) Person searched;
(3) Owner of the property. Where to file General rule: Motions to quash a search
warrant and/or to suppress evidence obtained thereby may be filed in and acted
upon only by the court where the action has been instituted. If no criminal action
has been instituted, motion may be filed in and resolved by the court that issued
the warrant. If such court failed to resolve the motion, and a criminal case is
subsequently filed in another court, the motion shall be resolved by the latter
court. [Sec. 14, Rule 126]

Grounds The following may be raised in the MTQ:

1. Absence of probable cause at the time of the issuance of the search
warrant;
2. Non-compliance with substantive and procedural requisites, such as:
(a) No personal examination by the judge;
(b) More than one specific offense;
(c) No particular description [Bache & Co. v. Ruiz, G.R. No.
L-32409 (1971)]. These may also be raised in the
criminal action as matters of defense [DOH v. Sy Chi
Siong (1989)].

Failure to file motion to quash

Where no MTQ the search warrant was filed in or resolved by the issuing court, the
interested party may move in the court where the criminal case is pending for the
suppression of the personal property seized if the same is offered therein as
evidence [Malaloan v. CA, G.R. No. 104879 (1994)] The MTQ and Motion to
Suppress Evidence are alternative, not cumulative remedies.

FILE A MOTION TO RETURN THINGS SEIZED

This is the remedy used if the search was already conducted and goods were
seized as a consequence thereof. Where the motion will be filed follows the same
rules as in a motion to quash. An accused may file a motion to suppress evidence
if he is not among the persons who can file a motion to quash.

General rule: Goods seized by virtue of an illegal warrant must be returned.

Exception: If possession of the things seized is prohibited by law, they should not
be returned [Castro v. Pabalan, G.R. No. L28642 (1976)]. Where the accused
obtained goods from another through payment of bouncing checks and thereafter
sold said goods to a buyer in good faith, but said goods were taken from the
purchaser with the use of a search warrant although the criminal case for estafa
against the accused was still pending, the goods should be returned to the buyer.
The buyer is entitled to possession of goods until restitution is ordered by the
court in the criminal case [Yu v. Honrado, G.R. No. 50025 (1980)].

MOTION TO SUPPRESS EVIDENCE

This refers to a motion to suppress as evidence the objects illegally taken pursuant
to the exclusionary rule, which states that any evidence obtained through
unreasonable searches and seizures shall be inadmissible for any purpose in any
proceeding.

CIVIL AND CRIMINAL LIABILITY

The following offenses may result from unreasonable search and seizure:
1) Violation of domicile [Art. 128, RPC];
2) Search warrant maliciously obtained [Art. 129, RPC];

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 3) Searching domicile without witnesses [Art. 130, RPC];
4) Unjust interlocutory order [Art. 206, RPC].

The public officer or employee may be held liable for:

1. Entering without authority; against the will; refuses to leave;
2. A search warrant procured without just cause or if with just cause,
exceeds his authority or uses unnecessary severity of force;
3. Conducting the search without the required witnesses.

The judge may be held liable for:

(1) Knowingly rendering an unjust interlocutory order;
(2) Inexcusable negligence or ignorance.

It may also result in civil liability for:

(1) Violation of rights and liberties [Art. 32(9), Civil Code];
(2) Malicious prosecution and acts referred to Art. 32 [Art. 2218, Civil Code].
Malice or bad faith is not required. Not only official actions, but all persons who are
responsible for the violation are liable for damages [MHP Garments v. CA, G.R. No.
86720 (1994)].

WAIVER OF IMMUNITY AGAINST UNREASONABLE SEARCH AND SEIZURE

The constitutional immunity against unreasonable searches and seizure is a
personal right that may be waived expressly/impliedly only by the person whose
right is being invaded or one who is expressly authorized to do so in his behalf
[Pasion v. Locsin, G.R. No. L-45950 (1938)].

Requisites:
1. It must appear that the right exists;
2. That the person involved had knowledge, (actual or constructive) of
the existence of such right;
3. That the person had an actual intention to relinquish the right.

10. Cybercrime warrants

a. Scope and applicability

b. General provisions

c. Preservation of computer data

d. Disclosure of computer data

e. Interception of computer data

f. Search, seizure, and examination of computer data

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g. Custody of computer data

h. Destruction of computer data

0. PROVISIONAL REMEDIES IN CRIMINAL CASES

NATURE
Provisional remedies in civil actions, insofar as they are applicable, may be availed
of in connection with the civil action deemed instituted with the criminal action
[Sec. 1,Rule 127].

Where the civil action has actually been instituted, or proceeded independently of
thecriminal action, these provisional remedies cannot be availed of in the criminal
action but may be applied for in the separate civil action.[Regalado (2010)]
If the civil action is suspended on account of filing of the criminal action, the court
with which the civil case is filed is not thereby deprived of its authority to issue
auxiliary writs that do not go into the merits of the case [Ramcar, Inc v. de Leon,
G.R. No. L-1329 (1947)].

Provisional remedies are not available when:

(1) Offended party has waived the civil claim;
(2) Offended party has reserved the civil claim;
(3) Offended party has already instituted aseparate civil action;
(4) Criminal action carries with it no civil liability.

KINDS OF PROVISIONAL REMEDIES

IN GENERAL
Reference to provisional remedies in Sec. 1, Rule 127 is made in general terms,
hence preliminary injunction, preliminary attachment, receivership, replevin or
support pendent lite may be availed of [Riano, Criminal Procedure (2011)].
However, only preliminary attachment is provided for under the same rule. The
accused may present evidence to prove his defense and damages, if any, arising
from the issuance of a provisional remedy in the case [Sec. 11(b), Rule 119].

PRELIMINARY ATTACHMENT
When proper

When the civil action is properly instituted in the criminal action, the offended
party may have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused inthe
following cases:
(a) When the accused is about to abscond from the Philippines
(b) When the criminal action is based on a claim for money or property embezzled
or fraudulently misapplied or converted to the use of the accused who is a
public/corporate officer, attorney, factor, broker, agent or clerk, in the course of
his employment as such, or by any other person in a fiduciary capacity, or for a
willful violation of duty
(c) When the accused has concealed, removed or disposed of his property, or is
about to do so
(d) When the accused resides outside the Philippines [Sec. 2, Rule 127].

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Issuance and implementation
The writ may be issued ex parte before acquisition of jurisdiction over the accused.
However, it may be enforced only after acquisition of jurisdiction over the person
of the accused [Gonzalez v. State Properties, G.R. No. 140765 (2001)]. No notice
to the adverse party, or hearing on the application is required before a writ of
preliminary attachment may issue as a hearing would defeat the purpose of the
provisional remedy. The time which such hearing would take could be enough to
enable the defendant to abscond or dispose of his property before a writ of
attachment may issue [Mindanao Savings and Loan Assoc. v. CA, G.R. No. 84481
(1989)].

VIII. EVIDENCE
Evidence, in law, any of the material items or assertions of fact that may be
submitted to a competent tribunal as a means of ascertaining the truth of any
alleged matter of fact under investigation before it.

A. GENERAL PRINCIPLES
A. Concept of Evidence
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in Criminal Cases
D. Proof Versus Evidence E. Factum Probans Versus Factum Probandum
F. Admissibility of Evidence
G. Burden of Proof and Burden of Evidence
H. Presumptions
I. Liberal Construction of the Rules of Evidence
J. Quantum of Evidence (Weight And Sufficiency of Evidence)

1. Concept of evidence
The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the
truth respecting a matter of fact [Sec. 1, Rule 128]

2. Scope of the rules of evidence

The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the
truth respecting a matter of fact [Sec. 1, Rule 128]

SCOPE OF THE RULES OF EVIDENCE [Sec. 2, Rule 128]

GENERAL RULE: Principle of uniformity The rules of evidence shall be the same in
all courts and in all trials and hearings.
EXCEPTIONS: If otherwise provided by:
1. Law [e.g. 1987 Constitution, statutes]
2. Rules of Court
3. SC issuances [e.g., Judicial Affidavit Rule, Rules on Procedure for
Environmental Cases, Child Witness Rule, Rules on Electronic
Evidence, Rules on DNA Evidence]
4. Jurisprudence [e.g., Star Two v. Ko, G.R. No. 185454 (2011), where
evidence was presented to support a MR of the denial of an MTD but
the adverse party failed to attend the hearing for their reception. The
evidence not formally offered was considered when it had been
identified by testimony, duly recorded and it had been incorporation in
the records of the case.]

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APPLICABILITY
Under the Rules of Court, the rules of evidence are specifically applicable only to
judicial proceedings. [Sec. 1, Rule 128]

In quasi-judicial proceedings, the same apply by analogy or suppletorily AND

whenever practicable and convenient [Sec. 4, Rule 1], except in cases where the
governing law or rules specify otherwise, e.g., the Rules on Electronic Evidence
covers quasi-judicial and administrative bodies [Sec. 2, Rule 1, Rules on Electronic
Evidence]; special rules are laid down in EO 292, series of 1987 [Revised
Administrative Code], etc.

Administrative investigations shall be conducted without necessarily adhering

strictly to the technical rules of procedure and evidence applicable to judicial
proceedings [Dela Cruz v. Malunao, AM No P-11-3019 (2012))

JUDICIAL PROCEEDING [Sec. 3, Rule 1]

1) Civil – includes special civil actions
2) Criminal
3) Special Proceeding

NOTE: Disbarment is not included as it is an exercise of the judiciary’s quasi-

executive powers. SOURCE The Rules of Court are not the only source of rules that
apply to judicial proceedings (e.g. court issuances, constitutional provisions with
exclusionary rule implications, etc).
Page 18 of28

/
3. Distinguish: proof and evidence
Proof Evidence
Result or effect of evidence [Regalado] Mode and manner of proving competent
facts in judicial proceedings [Bustos v.
Lucero, G.R. No. L-2068, (1948)]

4. Distinguish:/actum probans and factum probandum

Factum Probans Factum Probandum
Facts or material evidencing the The proposition to be established
proposition
The evidentiary fact tending to prove The ultimate fact sought to be
the fact in issue established

5. Admissibility of evidence
Admissibility of evidence refers to the question of whether or not the circumstance
(or evidence) is to be considered at all. On the other hand, the probative value of
evidence refers to the question of whether or not it proves an issue. [PNOC
Shipping and Transport Corporation v. CA, G.R. No. 107518 (1998)]

a. Requisites for admissibility of evidence; exclusions under the Constitution, laws, and
the Rules of Court

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REQUISITES FOR ADMISSIBILITY
(1) Relevant to the issue; and
(2) Competent i.e. not excluded by law or the ROC. [Sec. 3, Rule 128]

THE IMPORTANCE OF OFFER AND OBJECTION IN RELATION TO ADMISSIBILITY

Admissibility is determined at the time the evidence is offered to the court.
Therefore, offer of evidence is an important part before courts can rule on their
admissibility. Every objection to the admissibility of evidence shall be made at the
time such evidence is offered, or as soon thereafter as the objection to its
admissibility have become apparent, otherwise the objection shall be considered
waived. [Abrenica v. Gonda, G.R. No. L-10100 (1916)]

b. Relevance of evidence and collateral matters

Relevancy
Evidence is relevant when it has “such a relation to the fact in issue as to induce
belief in its existence or non-existence”. [Sec. 4, Rule 128] e.g., Evidence as to
the age of a person who has been raped is relevant in a situation where the age
would qualify the offence to statutory rape

Determinable by the rules of logic and human experience.

Collateral matters

Matters other than the fact in issue which are offered as a basis for inference as to
the existence or non-existence of the facts in issue [Regalado]

GENERAL RULE: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128]

EXCEPTION: When it tends in any reasonable degree to establish the probability or

improbability of the fact in issue. [Sec. 4, Rule 128]

NOTE: What is prohibited by the Rules is not evidence of all collateral matters, but
evidence of irrelevant collateral facts. [Regalado]

EXAMPLE
In an administrative case for sexual harassment, the respondent did not offer
evidence that has a bearing on the complainant’s chastity. What he presented are
different charges for unrelated filed against her. These pieces of evidence do not
establish the probability or improbability of the offense charged. Credibility means
the disposition and intention to tell the truth in the testimony given. It refers to a
person’s integrity, and to the fact that he is worthy of belief. [Civil Service
Commission v. Belagan, G.R. No. 132164 (2004)]

NOTE: The court in this case had discussed Sec. 51(a), Rule 130 in relation to
relevance and stated that the question of a witness’ credibility should be referred
to Sec. 11, Rule 132.

c. Multiple admissibility
Where the evidence is relevant and competent for two or more purposes, such
evidence shall be admitted for any or all the purposes for which it is offered,
provided it satisfies all the requisites of law for its admissibility therefor.
[Regalado]

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d. Conditional admissibility
Where the evidence at the time of its offer appears to be immaterial or irrelevant
unless it is connected with the other facts to be subsequently proved, such
evidence may be received, on condition that the other facts will be proved
thereafter; otherwise, the evidence already given shall be stricken out. [Regalado]

e. Curative admissibility
Where the court has admitted incompetent evidence adduced by the adverse
party, a party has a right to introduce the same kind of evidence in his/her behalf.
[Regalado]

What determines the rule of curative admissibility:

1. Whether the incompetent evidence was seasonably objected to - Lack of
objection to incompetent evidence constitutes waiver on the part of the
party against whom it was introduced but the opposing party is not deprived
of his right to similar rebutting evidence; and
2. Whether the admission of such evidence will cause a plain and unfair
prejudice to the party against whom it was admitted [Regalado]

f. Direct and circumstantial evidence

Circumstantial evidence is the evidence of collateral facts or circumstances from
which an inference may be drawn as to the probability or improbability of the fact
in dispute. They are evidence of relevant collateral facts. [Regalado]

Direct Evidence Circumstantial

Proves the fact in dispute without the Proof of a fact/s from which, taken
aid of any inference or presumption either singly or collectively, the
existence of a particular fact in dispute
may be inferred as a necessary or
probable consequence

g. Positive and negative evidence

Positive evidence Negative evidence
Witness affirms that a fact did or did not Witness states he/she did not see or
occur know of the occurrence of a fact

h. Competent and credible evidence

Competence Credibility
Eligibility of evidence to be received as Worthiness of belief; “believability”
such

6. Burden of proof and burden of evidence

Burden of proof is the duty of a party to present evidence on the facts in issue
necessary to establish his/her claim or defense by the amount of evidence
required by law. [Sec. 1, Rule 131]
In civil cases, the quantum of evidence required to sustain the proponent of an
issue is preponderance of evidence. The burden of proof is on the party who would
be defeated if no evidence were given in either side, the plaintiff with respect to
his complaint, the defendant with respect to his counterclaim, and the cross-
claimant, with respect to his cross-claim.

In criminal cases:

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• For the issuance of warrant of arrest - evidence of probable cause that there
exist a reasonable ground that the accused has committed an offense [Algas v.
Garrido, AM No. 289-MJ, (1974))
• To warrant the filing of an information – if there is sufficient ground to engender
a well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial [Sec. 1, Rule 112]
• To sustain a conviction - evidence of guilt beyond reasonable doubt.
• To deny bail when discretionary – when the evidence of guilt is strong
• To accept a plea of guilty to a capital offense – that the accused voluntarily and
fully comprehended the consequences of his plea [Sec. 3, Rule 116]
• To grant demurrer to evidence – the evidence is insufficient to sustain a
conviction [Sec. 23, Rule 119] The burden of proof rests on the prosecution.

A party will have the burden of evidence only (i.e., will have to be a proponent)
if there is any factum probandum (whether evidentiary or otherwise) that the
adverse party has already established (whether by law, rule, or by virtue of
evidence that he has presented) that he (the potential proponent) has to
overcome. That factum probandum may, but does not have to be, nor is limited to
a "prima facie presumption." Likewise, a party will not have any burden of
evidence at all if the adverse party has not established any factum probandum in
the first place [Prof. Avena].

In both civil and criminal cases, the burden of evidence lies with the party who
asserts an affirmative allegation. [Regalado]

EXAMPLE: In a case for collection of a sum of money, if the defendant asserts

that she has paid, then she has the burden of proving that she had, not on the
creditor that she had not. While the creditor had needed to prove the existence of
a debt, the burden shifts to the debtor because she alleged an affirmative defense,
which admits the creditor’s allegation. [Vitarich v. Losin, G.R. No. 181560 (2010)

Burden of Proof Burden of Evidence

Does not shift throughout the trial
Generally determined by the pleadings Generally
filed by the party
Shifts from party to party depending
upon the exigencies of the case in the
course of the trial”
determined by the
developments at the trial, or by the
provisions of substantive law or
procedural rules which may relieve the
party from presenting evidence on the
fact alleged (presumptions, judicial
notice and admissions)

7. Presumptions
Conclusive Disputable
Inferences which the law makes so Satisfactory if uncontradicted, but may
peremptory that it will not allow them to be contradicted and overcome by other
be overturned by any contrary proof evidence. [Sec. 3, Rule 131]
however strong [Datalift Movers v.
Belgravia Realty, G.R. No. 144268
(2006)]

a. Conclusive presumptions

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CONCLUSIVE PRESUMPTIONS UNDER THE RULES [Sec. 2, Rule 131]:
(1) A party is not permitted falsify a thing if:
(a) By his own declaration, act or omission;
(b) He intentionally and deliberately led another to
believe a particular thing is true;
(c) To act upon such belief; and
(d) The litigation arises out of such declaration act
or omission.
(2) A tenant is not permitted to deny the title of his landlord at the time
of the commencement of the relation of landlord and tenant
between them. These conclusive presumptions are based upon the
doctrine of estoppel in pais under the Civil Code. [Regalado] Once a
contract of lease is shown to exist between the parties, the lessee
cannot by any proof, however strong, overturn the conclusive
presumption that the lessor has a valid title to or a better right of
possession to the subject premises than the lessee. [Santos v.
National Statistics Office., G.R. No. 171129, (2011)]

What a tenant is estopped from denying is the title of his landlord at the time of
the commencement of the landlord-tenant relation. If the title asserted is one that
is alleged to have been acquired subsequent to the commencement of that
relation, the presumption will not apply. Hence, the tenant may show that the
landlord's title has expired or been conveyed to another or himself; and he is not
estopped to deny a claim for rent, if he has been ousted or evicted by title
paramount. [Ermitaño v Paglas, G.R. No. 174436 (2013)]

b. Disputable presumptions
DISPUTABLE PRESUMPTIONS UNDER THE RULES [Sec. 3, Rule 131]
(1) Person is innocent of a crime or wrong;
(2) Unlawful act is done with an unlawful intent;
(3) Person intends the ordinary consequences of his voluntary act;
(4) Person takes ordinary care of his concerns;
(5) Evidence willfully suppressed would be adverse if produced;
(6) Money paid by one to another was due to the latter;
(7) Thing delivered by one to another belonged to the latter;
(8)Obligation delivered up to the debtor has been paid;
(9) Prior rents or installments had been paid when a receipt for the later ones is
produced;
(10) A person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and doer of the whole act; otherwise, that things which a
person possesses or exercises acts of ownership over are owned by him;
(11)Person in possession of an order on himself for the payment of the money or
the delivery of anything has paid the money or delivered the thing accordingly;
(12) Person acting in public office was regularly appointed or elected to it;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;
(15) All the matters within an issue raised in a case were laid before the court and
passed upon by it; all matters within an issue raised in a dispute submitted for
arbitration were laid before arbitrators and passed upon by them;
(16) Private transactions have been fair and regular;
(17) Ordinary course of business has been followed;
(18) There was a sufficient consideration for a contract;

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(19) Negotiable instrument was given or indorsed for a sufficient consideration;
(20) An indorsement of negotiable instrument was made before the instrument
was overdue and at the place where the instrument is dated;
(21) A writing is truly dated;
(22) Letter duly directed and mailed was received in the regular course of the
mail;
(23) Presumptions concerning absence:
a) Ordinary but continued absence of:
i. 7 years, it being unknown WON the absentee still lives, he is
considered dead for all purposes, except for those of succession
ii. 10 years—the absentee shall be considered dead for the purpose of
opening his succession; but if he disappeared after the age of 75
years, an absence of 5 years shall be sufficient to open his succession
iii. 4 consecutive years—the spouse present may contract a subsequent
marriage if s/he has a well-founded belief that the absent spouse is
already dead; but where there is danger of death, an absence of only
2 years shall be sufficient for remarriage
b) Qualified absence
i. A person on board a vessel lost during a sea voyage, or an aircraft
which is missing, who has not been heard of for 4 years since the loss
of the vessel or aircraft
ii. A member of the armed forces who has taken part in armed hostilities,
and has been missing for 4 years
iii. A person who has been in danger of death under other circumstances
and whose existence has not been known for 4 years
(24) Acquiescence resulted from a belief that the thing Persons acting as
copartners have entered into a contract of co-partnership;
(25) A man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage;
(26) Property acquired by a man and a woman who are capacitated to marry each
other and who live exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage, has been obtained by their joint
efforts, work or industry;
(27) In cases of cohabitation by a man and a woman who are not capacitated to
marry each other and who have acquired property through their actual joint
contribution of money, property or industry, such contributions and their
corresponding shares including joint deposits of money and evidences of credit are
equal;
(28) Presumptions governing children of women who contracted another marriage
within 300 days after termination of her former marriage (in the absence of proof
to the contrary): acquiesced in was conformable to the law/fact;
(29) Things have happened according to the ordinary course of nature and
ordinary nature habits of life; When Child was Born Pres

When Child was Born Presumption

Before 180 days after the solemnization Considered to have been conceived
of the subsequent marriage during the former marriage, provided it
be born within 300 days after the
termination of the former marriage
After 180 days following the celebration Considered to have been conceived
of the subsequent marriage during the subsequent marriage, even
though it be born within the 300 days
after the termination of the former

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 marriage.

(30) A thing once proved to exist continues as long as is usual with things of the
nature;
(31) The law has been obeyed;
(32) A printed/published book, purporting to be printed/published by public
authority, was so printed/published;
(33) A printed/published book, purporting to contain reports of cases adjudged in
tribunals of the country where the book is published, contains correct reports of
such cases;
(34) A trustee or other person whose duty it was to convey real property to a
particular person has actually conveyed it to him when such presumption is
necessary to perfect the title of such person or his successor in interest;
(35) Presumptions regarding survivorship: (Applicable for all purposes except
succession)
(a) When 2 persons perish in the same calamity,
(b) and it is not shown who died first,
(c) and there are no particular circumstances from which it
can be inferred,
(d) the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes:

Situation Person presumed to have survived

Both < 15 y/o The older
Both < 60 y/o The younger
One < 15 y/o, the other > 60 y/o The one < 15
Both > 15 and < 60 y/o, of different The male
sexes
Both > 15 and <60 y/o, of The older
the same sex
One < 15 or > 60 y/o, and the other The one between those ages
between those ages

(36) As between 2 or more persons called to succeed each other: If there is a

doubt as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same. In the absence of proof, they shall be considered to
have died at the same time.

c. Presumptions in civil actions and proceedings; against an accused in criminal cases

8. Construction of the rules of evidence

Like all other provisions under the ROC, rules of evidence must be liberally
construed. [Sec. 6, Rule 1]

Rules on Electronic Evidence shall likewise be construed liberally. [Sec. 2, Rule 2,

Rules on Electronic Evidence]

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9. Quantum of evidence
PROOF BEYOND REASONABLE DOUBT
Applicable quantum of evidence in criminal cases. The accused is entitled to an
acquittal if his guilt is not shown beyond reasonable doubt. [Sec. 2, Rule 133]

It does not mean such a degree of proof excluding possibility of error and
producing absolute certainty. Only moral certainty is required – that degree of
proof which produces conviction in an unprejudiced mind. [Sec. 2, Rule 133]

The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on
the accused to prove his/her innocence. [Boac v People, G.R. No. 180597, (2008)]

The prosecution must not rely on the weakness of the evidence of the defense.
[Ubales v People, G.R. No. 175692, (2008); People v. Hu, G.R. No. 182232,
(2008)]

PREPONDERANCE OF EVIDENCE
Applicable quantum of evidence in civil cases [Sec. 1, Rule 133]

Means that the evidence adduced by one side is, as a whole, superior to or has
greater weight than that of the other. [Habagat Grill v. DMC-Urban Property
Developer, Inc., G.R. No. 155110, (2005); Bank of the Philippine Islands v. Reyes,
G.R. No. 157177, (2008)]

In determining preponderance of evidence, the court may consider:

(1) All the facts and circumstances of the case;
(2) The witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they testify, the nature of the facts to
which they testify, the probability or improbability of their testimony, their interest
or want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial;
(3) Number of witnesses (although preponderance is not necessarily with the
number of witnesses). [Sec. 1, Rule 133]

SUBSTANTIAL EVIDENCE Degree of evidence required in cases filed before

administrative or quasi-judicial bodies. [Sec. 5, Rule 133]

Also applies to petitions under the Rule on the Writ of Amparo. [Sec. 17, Rule on
the Writ of Amparo]

SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion. [Sec. 5, Rule 133]

SUBSTANTIAL EVIDENCE RULE

Factual findings, especially when affirmed by the Court of Appeals, are accorded
not only great respect but also finality, and are deemed binding upon this Court so
long as they are supported by substantial evidence. [Tan Brothers Corp. v.
Escudero, G.R. No. 188711 (2013)]

CLEAR AND CONVINCING EVIDENCE

The standard of proof required in granting or denying bail in extradition cases is
“clear and convincing evidence” that the potential extradee is not a flight risk and
will abide with all the orders and process of the extradition court. [Government of

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Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, (2007)]

It must be added that the defenses of denial and improper motive can only
prosper when substantiated by clear and convincing evidence. [People v.
Colentava, G.R. No. 190348 (2015)]

It is used for overturning disputable presumptions, such as the presumption of

regularity in the performance of official duties [Portuguez v. People, G.R. No.
194499, (2015)] or the existence of a valuable consideration. [Tolentino v. Sps.
Jerera, G.R. No. 179874 (2015)]

NOTE, however: The addressee's “direct denial” of receipt of mail alleged to have
been mailed to it defeats the presumption in Sec. 3(v), Rule 131 and shifts the
burden upon the party favored by the presumption to prove that the mailed letter
was indeed received by the addressee. [Commissioner of Internal Revenue v.
Metro Star, G.R. No. 185371 (2010)]

It is also the standard of proof for invoking the justifying circumstance of self-
defense for the defense and proving the aggravating circumstance of treachery for
the prosecution [People v. Casas, G.R. No. 212565 (2015)] The former is because
having admitted the killing requires the accused to rely on the strength of his own
evidence, not on the weakness of the Prosecution’s, which, even if it were weak,
could not be disbelieved in view of his admission. [People v. Mediado, G.R. No.
169871 (2011)]

Intermediate in character – lower than proof beyond reasonable doubt, but higher
than preponderance of evidence

B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

A. What Need Not be Proved
B. Matters of Judicial Notice
C. Judicial Admissions
D. Judicial Notice of Foreign Laws, Law
of Nations and Municipal Ordinance

1. What need not be proved

(1) Facts of Judicial Notice
(2)Judicial Admissions
(3) Conclusive Presumptions

NOTE: Evidence is also not required when the issue is purely a question of law.

2. Matters of judicial notice

JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts that judges may properly take and
act on without proof because these facts are already known to them. Put
differently, it is the assumption by a court of a fact without need of further
traditional evidentiary support. The principle is based on convenience and
expediency in securing and introducing evidence on matters which are not
ordinarily capable of dispute and are not bona fide disputed. [Republic v.
Sandiganbayan, G.R. No. 166859, (2011))

a. Mandatory

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(1) Existence and territorial extent of states;
(2) Their political history, forms of government, and symbols of nationality;
(3) Law of nations;
(4)Admiralty and maritime courts of the world and their seals;
(5) Political constitution and history of the Philippines;
(6)Official acts of the legislative, executive and judicial departments of the
Philippines;
(7) Laws of nature;
(8) Measure of time; and
(9)Geographical divisions. [Sec. 1, Rule 129]

NOTE: It would be error for the court not to take judicial notice of an amendment
to the Rules of Court [Riano citing Siena Realty v. Gal-lang, G.R. No. 145169] The
Management Contract entered into by petitioner and the PPA is clearly not among
the matters which the courts can take judicial notice of. It cannot be considered an
official act of the executive department. The PPA was only performing a
proprietary function when it entered into a Management Contract with petitioner.
As such, judicial notice cannot be applied. [Asian Terminals v. Malayan Insurance,
G.R. No. 171406 (2011)]

The RTC declared that the discrepancy arose from the fact that Barrio Catmon was
previously part of Barrio Tinajeros. The RTC has authority to declare so because
this is a matter subject of mandatory judicial notice. Geographical divisions are
among matters that courts should take judicial notice of. [B.E. San Diego, Inc. v.
CA, G.R. No. 159230 (2010)]

b. Discretionary
(1) Matters of public knowledge;
(2) Matters capable of unquestionable demonstration; and
(3) Matters ought to be known to judges because of their judicial functions. [Sec.
2, Rule 129]

REQUISITES
For the court to take judicial notice, three material requisites should be present:
(a) The matter must be one of common and general knowledge;
(b) It must be well and authoritatively settled and not doubtful or uncertain;
(c) It must be known to be within the limits of the jurisdiction of the court. [State
Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)]

Judicial notice is not judicial knowledge. The mere personal knowledge of the
judge is not the judicial knowledge of the court, and he is not authorized to make
his individual knowledge of a fact, not generally or professionally known, the basis
of his action. Judicial cognizance is taken only of those matters which are
"commonly" known. [State Prosecutors v, Muro, A.M. No. RTJ-92-876 (1994)]

WITH RESPECT TO ORDINANCES

Municipal trial courts are required to take judicial notice of the ordinances of the
municipality or city wherein they sit. Regional Trial Courts must take judicial notice
of such ordinances only:
(a) When required to do so by statute e.g. in Manila as required by the city charter
[City of Manila v. Garcia, et al., G.R. No. L-26053 (1967)]; and
(b) In a case on appeal before them and wherein the inferior court took judicial
notice of an ordinance involved in said case. [U.S. v. Blanco, G.R. No. 12435

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(1917); U.S. v. Hernandez, 31 Phil. 342]

Note: The guides in determining what facts may be assumed to be judicially

known are either:
(1) Generally known within the territorial jurisdiction of the trial court; or
(2) Capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable. [Riano]

3. Judicial admissions
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the proceedings in the same case;
and
NOTE: As regards judicial admissions made in the trial of another
case, the same would be considered an extrajudicial admission for
the purpose of the other proceeding where such admission is
offered. [Riano]
(3) May be verbal or written. [Sec. 4, Rule 129]
Judicial admissions may be—
(1) Made in:
(a) Pleadings filed by the parties
• This does not include pleadings superseded by an
amendment. Sec. 8, Rule 10 provides that “[a]n amended
pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in
evidence against the pleader.” Admissions in superseded
pleadings have to be “received in evidence” precisely
because they become extra-judicial in nature the moment
the pleading containing them are superseded by virtue of
amendment.
(b) Stipulations of facts by the parties in a pre-trial conference
[People v. Hernandez, G.R. No. 108028, (1996)]
(c) The course of the trial either by verbal or written
manifestations or stipulations
(d) Other stages of judicial proceedings
(e) Motions [Republic v. de Guzman, G.R. No. 175021 (2011),
where allegations made in a motion to dismiss were
considered to be, among others requiring denial by the
adverse party and absence of such led to the application of
Sec. 4, Rule 129] (2) Obtained through:
(a) Depositions
(b) Written interrogatories
(c) Request for admissions

NOTE: Admissions made by a party pursuant to a request for admission is for the
purpose of the pending action only. [Sec. 3, Rule 26] [Regalado; See also Civil
Procedure Rules]

There are averments made in pleadings which are not deemed admissions even if
the adverse party fails to make a specific denial of the same like immaterial
allegations [Sec. 11, Rule 8], conclusions, non-ultimate facts in the pleading [Sec.
1, Rule 8] as well as the amount of liquidated damages [Sec. 11, Rule 8]. [Riano]

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Although an admission made during the pretrial is deemed to have been made in
the course of the judicial proceeding and is necessarily a judicial admission, an
admission made by the accused in the pre-trial of a criminal case is not necessarily
admissible against him. To be admissible, it must comply with the conditions set
forth under Sec. 2, Rule 118:
(1) Reduced in writing, and
(2) Signed by the accused and counsel. [Riano]

However, in the civil case instituted with the criminal case, such admission will be
admissible against any other party.

NOTE: The theory of adoptive admission has been adopted by the court in this
jurisdiction. An adoptive admission is a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s reaction as an admission
of something stated or implied by the other person. The basis for admissibility of
admissions made vicariously is that arising from the ratification or adoption by the
party of the statements which the other person had made. In the Angara Diary,
Estrada’s options started to dwindle when the armed forces withdrew its support.
Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise
petitioner to consider the option of dignified exit or resignation. Estrada did not
object to the suggested option but simply said he could never leave the country.
His silence on this and other related suggestions can be taken as an admission by
him. [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]

JUDICIAL PROCEEDING [Sec. 3, Rule 1]

(1) Civil – includes special civil actions
(2) Criminal
(3) Special Proceeding

a. Effect of judicial admissions

GENERAL RULE: Judicial admissions CANNOT be contradicted. [Sec. 4, Rule 129]
An original complaint, after being amended, loses its character as a judicial
admission, which would have required no proof. It becomes merely an extra-
judicial admission requiring a formal offer to be admissible. [Torres v CA, G.R. No.
L-37420, (1984)]. A party who judicially admits a fact cannot later challenge that
fact as judicial admissions are a waiver of proof; production of evidence is
dispensed with. [Alfelor v Halasan, G.R. No. 165987 (2006)]

b. How judicial admissions may be contradicted

HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED As an exception to the
general rule, judicial admissions may be contradicted only by showing that: (1) It
was made through palpable mistake; or (2) No such admission was made. [Sec. 4,
Rule 129] This may be invoked when the statement of a party is taken out of
context or that his statement was made not in the sense it is made to appear by
the other party. [Phil. Health Care Providers v. Estrada, G.R. No. 171052, (2008),
citing Atillo, III v. CA (1997)]

c. Pre-trial admissions

C. OBJECT (REAL) EVIDENCE

A. Nature of Object Evidence
B. Requisites for Admissibility

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C. Categories of Object Evidence
D. Demonstrative Evidence
E. View of an Object or Scene
F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous
Drugs Act of 2002
G. Rule on DNA Evidence (A.M. No. 06- 11-5-SC)

1. Nature of object evidence

OBJECT EVIDENCE
Those addressed to the senses of the court [Sec. 1, Rule 130]

A person’s appearance, where relevant, is admissible as object evidence, the same

being addressed to the senses of the court. [People v. Rullepa y Guinto, G.R. No.
131516 (2003)]

An ocular inspection of the body of the accused is permissible. [Villaflor v.

Summers, G.R., No. 16444 (1920)]
The right against self-incrimination CANNOT be invoked against object evidence.
[People v. Malimit, G.R. No. 109775 (1996)]

2. Requisites for admissibility

Basic requisites for admissibility [Riano]
(1) Evidence must be relevant;
(2) Evidence must be authenticated;
(3) Authentication must be made by a competent witness; and
(4) Object must be formally offered [Sec. 34, Rule 132]

Requisites for the admissibility of tape recording:

1. A showing that the recording was capable of taking testimony
2. A showing that the operator of the recording device is competent
3. Establishment of the authenticity and correctness of recording
4. A showing that no changes, deletions, or additions have been made on the
recordings
5. A showing of the manner of preservation of the recording
6. Identification of speakers
7. A showing that the testimony elicited was voluntarily made without any kind
of inducement. [Torralba v. People, G.R. No. 153699 (2005))

RELEVANT GENERAL RULE:

When an object is relevant to the fact in issue, it may be exhibited to, examined or
viewed by the court. [Sec. 1, Rule 130]

EXCEPTIONS: Court may refuse exhibition of object evidence and rely on

testimonial evidence alone if—
(1) Exhibition is contrary to public policy, morals or decency;
(2) It would result in delays, inconvenience, unnecessary expenses, out of
proportion to the evidentiary value of such object; [People v. Tavera, G.R. No. L-
23172 (1925)]
(3) Evidence would be confusing or misleading.
(4) The testimonial or documentary evidence already presented clearly portrays
the object in question as to render a view thereof unnecessary

COMPETENT

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Evidence Must be Authenticated To authenticate the object is to show that the
object 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. Authentication Must be Made by
Competent Witness To authenticate the object, the witness must have the capacity
to identify the object as the very thing involved in the litigation. A witness can
testify to those facts which he/she knows of his/her personal knowledge [Sec. 36,
Rule 130]

3. Categories of object evidence

Unique objects
Objects made unique
Nonunique objects
Objects that have readily E.g., a caliber 45 pistol by
identifiable marks virtue of its serial number
Objects with no unique E.g., a typical kitchen
characteristic but are knife with identifying
made readily identifiable marks placed on it by the
witness
Objects with no E.g., narcotic substances
identifying marks and
cannot be marked

DEMONSTRATIVE EVIDENCE
Not the actual thing, rather it represents or “demonstrates” the real thing, e.g.,
photographs, motion pictures and recordings [Riano] Audio, photographic and
video evidence of events, acts or transactions shall be admissible provided it shall
be:
1) shown, presented or displayed to the court, and
2) identified, explained or authenticated
(a) by the person who made the recording, or
(b) by some other person competent to testify on the accuracy thereof [Sec.
1, Rule 11, Rules on Electronic Evidence]

EPHEMERAL ELECTRONIC COMMUNICATIONS

Refers to telephone conversations, text messages, chatroom sessions, streaming
audio, streaming video, and other electronic forms of communication the evidence
of which is not recorded or retained. [Sec. 1(k), Rule 2, Rules on Electronic
Evidence]

How proven
(1) By the testimony of a person who was a party to the same;
(2) By the testimony of a person who has personal knowledge thereof; or
(3) In the absence or unavailability of such witnesses, by other competent
evidence [Sec. 2, Rule 11, Rules on Electronic Evidence]

When recorded, the communication ceases to be ephemeral and shall be proven in

the same manner as proving audio, photographic and video evidence [Sec. 2, Rule
11, Rules on Electronic Evidence].

4. Chain of custody in relation to Section 21 of the Comprehensive Dangerous Drugs Act

of 2002
MEANING OF CHAIN OF CUSTODY
A method of authenticating evidence which 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. It would include testimony about

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every link in the chain, from the moment the item was picked up to the time it is
offered into evidence [Lopez v People, G.R. No. 172953 (2008)]

PURPOSE OF ESTABLISHING CHAIN OF CUSTODY

To guaranty the integrity of the physical evidence and to prevent the introduction
of evidence which is not authentic. [Riano]

NOTE: A unique characteristic of narcotic substances is that they are not readily
identifiable. Hence, in authenticating the same, a more stringent standard than
that applied to readily identifiable objects is necessary. This exacting standard
entails a chain of custody of the item with sufficient completeness to render it
improbable for the original item to be exchanged with another, contaminated or
tampered with [Lopez v. People, G.R. No. 172953 (2008))

ESTABLISHING CHAIN OF CUSTODY IN DRUG CASES

The apprehending team having initial custody and control of the drugs shall:
1) immediately after seizure and confiscation,
2) physically inventory, and
3) photograph the same,
4) in the presence of
(a) accused or the person/s from whom the drugs were
seized, or his/her representative or counsel
(b) representative from the media
(c)a representative from the Department of Justice
(d) any elected public official
5) who shall be required to sign the copies of the inventory
and be given a copy thereof. [Sec. 21, Art. II, RA 9165 or the
Comprehensive Dangerous Drugs Act of 2002]

EFFECT OF NON-COMPLIANCE
Non-compliance with Sec. 21 of RA 9165, particularly the making of the inventory
and their photographing of the drugs confiscated will not render the drugs
inadmissible in evidence. The issue if there is non-compliance with the law is not
admissibility, but of weight – evidentiary merit or probative value. [People v Del
Monte, G.R. No. 179940 (2008)]

5. DNA Evidence
 APPLICATION FOR DNA TESTING ORDER
 POST-CONVICTION DNA TESTING
 ASSESSING DNA EVIDENCE

a. Meaning of DNA
DNA EVIDENCE The totality of the DNA profiles, results and other genetic
information directly generated from DNA testing of biological samples. [Sec. 3(c)]

b. Application for DNA testing order

APPLICATION FOR DNA TESTING ORDER WITH PRIOR COURT ORDER
1) The appropriate court may, at any time, either (i) motu proprio or (ii) on
application of any person who has a legal interest in the matter in litigation,
order a DNA testing.
2) Such order shall issue after due hearing and notice to the parties upon a
showing of the following:
a) A biological sample exists that is relevant to the case;

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 b) The biological sample:
i. was not previously subjected to the type of DNA
testing now requested; or
ii. was previously subjected to DNA testing, but the
results may require confirmation for good reasons;
c) The DNA testing uses a scientifically valid technique;
d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case; and
e) The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy of integrity of the
DNA testing. [Sec. 4]

WITHOUT PRIOR COURT ORDER

(1) This Rule shall not preclude a DNA testing, without need of a prior court order,
at the behest of any party. [Sec. 4] (2) Post-conviction DNA testing [Sec. 6]

c. Post-conviction DNA testing; remedy

HOW OBTAINED
(1) Without need of prior court order
(2) Available to the prosecution or any person convicted by final and executory
judgment

REQUISITES
1) A biological sample exists
2) Such sample is relevant to the case
3) The testing would probably result in the reversal or
modification of the judgment of conviction. [Sec. 6]

REMEDY IF RESULTS FAVORABLE TO THE CONVICT

Convict or the prosecution may file a petition for a writ of habeas corpus in the
court of origin, CA or SC or any member of said courts. [Sec. 10]

GENERAL RULE: If the court, after due hearing, finds the petition meritorious, it
shall reverse or modify the judgment of conviction and order the release of the
convict. [Sec. 10]

EXCEPTION: Continued detention is justified for a lawful cause. [Sec. 10]

d. Assessment of probative value of DNA evidence and admissibility

FACTORS IN ASSESSING THE PROBATIVE VALUE OF DNA EVIDENCE
1. Chain of custody
a. How the biological samples were collected
b. How they were handled
c. Possibility of contamination
2. DNA testing methodology
(a) Procedure followed in analyzing the samples
(b) Advantages and disadvantages of the procedure
(c) Compliance with scientifically valid standards in conducting the
tests
3. Forensic DNA laboratory
(a) Accreditation by any reputable standards-setting institution

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 (b) Qualification of the analyst who conducted the tests
(c) If not accredited, relevant experience of the laboratory in forensic
work and its credibility
4. Reliability of the testing result [Sec. 7] Vallejo standards In assessing the
probative value of DNA evidence, courts should consider the following:
(a) How the samples were collected
(b) How they were handled
(c) The possibility of contamination of the samples
(d) The procedure followed in analyzing the samples, whether the
proper standards and procedures were followed
(e) Qualification of the analyst who conducted the tests [People v.
Vallejo, G.R. No. 144656 (2002)]

e. Rules on evaluation of reliability of the DNA testing methodology .f'

Factors that Determine the Reliability of the DNA Testing Methodology
1. Falsifiability of the principles or methods used, that is,
whether the theory or technique can be and has been tested
2. Subject to peer review and publication of the principles or
methods
3. General acceptance of the principles or methods by the
scientific community
4. Existence and maintenance of standards and controls to
ensure the correctness of data generated
5. Existence of an appropriate reference population database
6. General degree of confidence attributed to mathematical
calculations used in comparing DNA profiles; and
7. Significance and limitation of statistical calculations used in
comparing DNA profiles [Sec. 5]

D. DOCUMENTARY EVIDENCE
A. Meaning of Documentary Evidence
B. Requisites for Admissibility
C. Best Evidence Rule
D. Rules on Electronic Evidence [AM No. 01-7-01- SC]
E. Parol Evidence Rule
F. Authentication and Proof of Documents

1. Meaning of documentary evidence

Consist of writings or any material containing letters, words, numbers, figures,
symbols or other modes of written expressions offered as proof of their contents
[Sec. 2, Rule 130]

To be deemed documentary evidence, such writings or materials must be offered

as proof of their contents. If offered for some other purpose, they constitute object
evidence.

2. Requisites for admissibility

(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]

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Page 19 of28
3. Original document rule

a. Meaning of the rule

the restriction of the arbitrary exercise of power by subordinating it to well-defined
and established laws.

b. When not applicable

When not applicable When the issue is only as to whether or not such document
was actually executed or in the circumstances relevant to its execution. [People v
Tandoy, G.R. No. 80505, (1990))

The Best Evidence Rule applies only when the terms of a writing are in issue.
When the evidence sought to be introduced concerns external facts, such as the
existence, execution or delivery of the writing, without reference to its terms, the
Best Evidence Rule cannot be invoked. In such a case, secondary evidence may be
admitted even without accounting for the original.

The Best Evidence Rule was not applicable because the terms of the deed of sale
with right to repurchase were not the issue. [Heirs of Prodon v., Heirs of Alvarez,
G.R. No. 170604 (2013)]
Affidavits and depositions are considered as not being the best evidence, hence
not admissible if the affiants or deponents are available as witnesses. [Regalado
citing 4 Martin, op cit., p. 82]

c. Meaning of original document and duplicate

ORIGINAL DOCUMENT
(1) A document, the contents of which is the subject of inquiry
(2) All such copies executed at or about the same time, and
with identical contents
NOTE: Carbon copies are deemed duplicate originals.
[People v Tan, G.R. No. (1959); Skunac v. Sylianteng, G.R.
No. 205879 (2014)) The picture images of the ballots, as
scanned and recorded by the PCOS, are likewise ‘official
ballots’ that faithfully capture in electronic form the votes
cast by the voter, as defined by Sec. 2(3) of RA 9369. As
such, the printouts thereof are the functional equivalent of
the paper ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral protest.
[VinzonsChato v. House of Representatives Electoral
Tribunal, G.R. No. 199149, (2013]]
All such entries made and repeated in the regular course of business, at/near the
time of the transaction [Sec. 4, Rule 130]

EXCEPTIONS [SEC. 3, RULE 130]

WHEN THE ORIGINAL HAS BEEN LOST OR DESTROYED, OR CANNOT BE
PRODUCED IN COURT, WITHOUT BAD FAITH ON THE OFFEROR’S PART
Proponent must prove due execution or existence, and the cause of the loss,
destruction or unavailability of the original [Sec. 5, Rule 130] and reasonable
diligence and good faith in the search for/attempt to produce the original [Tan v.
CA, G.R. No. L56866 (1985))

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ALL duplicates or counterparts must be accounted for before using copies [De Vera
v. Aguilar, GR. No. 83377 (1993)]
Due execution of the document should be proved through the testimony of
either:
(a) the person or persons who executed it;
(b) the person before whom its execution was
acknowledged; or
(c) any person who was present and saw it executed and
delivered, or who, after its execution and delivery,
saw it and recognized the signatures, or by a person
to whom the parties to the instruments had previously
confessed the execution thereof. [Director of Lands v.
CA, G.R. No. L-29575 (1971))

What to present instead (in order)

(a) By a copy
(b) By a recital of its contents in some authentic document
(c) By the testimony of witnesses [Rule 130, Sec. 5]

WHEN THE ORIGINAL IS IN THE CUSTODY OR UNDER THE CONTROL OF THE

PARTY AGAINST WHOM IT IS OFFERED, AND THE LATTER FAILS TO PRODUCE IT
AFTER REASONABLE NOTICE

What to present instead

Same as when lost, destroyed, or cannot be produced in court [Sec. 6, Rule 130]
WHEN THE ORIGINAL CONSISTS OF NUMEROUS ACCOUNTS OR OTHER
DOCUMENTS WHICH CANNOT BE EXAMINED IN COURT WITHOUT GREAT LOSS OF
TIME, AND THE FACT SOUNDS TO BE ESTABLISHED FROM THEM IS ONLY THE
GENERAL RESULT OF THE WHOLE

WHEN THE ORIGINAL IS A PUBLIC RECORD IN THE CUSTORY OF A PUBLIC

OFFICER OR IS RECORDED IN A PUBLIC OFFICE

What to present instead Certified copy issued by the public officer in custody
thereof

OTHER INSTANCES

When the original is outside the jurisdiction of the court, secondary evidence is
admissible [PNB v. Olila, 98 Phil 1002, unreported (1956)]

d. Secondary evidence; summaries

4. Electronic evidence
An electronic document shall be regarded as the equivalent of an original
document under the Best Evidence Rule if:
(1) it is a printout or output readable by sight or other means,
(2) shown to reflect the data accurately [Sec. 1, Rule 4]

COPIES AS EQUIVALENT OF ORIGINAL

When a document is in two or more copies:
(1) executed at or about the same time with identical contents, or

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(2) is a counterpart produced by:
a. the same impression as the original, or
b. from the same matrix, or
c. by mechanical or electronic rerecording, or
d. by chemical reproduction,
e. or by other equivalent techniques which accurately reproduces the
original, such copies or duplicates shall be regarded as the equivalent
of the original. [Sec. 2, Rule 4]

EXCEPTION:
Copies or duplicates shall not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of
the original.

a. Meaning of electronic evidence; electronic data massage

ELECTRONIC DOCUMENT
(1) Information or the representation of information, data, figures, symbols or
other modes of written expression,
(2) Described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed,
(3) Which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
(4) It includes digitally signed documents and any print-out or output, readable by
sight or other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term “electronic document”
may be used interchangeably with electronic data message”. [Sec. 1(h), REE]

ELECTRONIC DATA MESSAGE

Information generated, sent, received or stored by electronic, optical or similar
means. [Sec. 1(g), REE]

b. Probative value of electronic documents or evidentiary weight; method of proof

In assessing the evidentiary weight of an electronic document, the following
factors may be considered:
(1) The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to
(a) input and output procedures,
(b) controls, tests and checks for accuracy and reliability of the
electronic data message or document,
(c) in the light of all the circumstances as well as any relevant
agreement;
(2) The reliability of the manner in which its originator was identified;
(3) The integrity of the information and communication system in which it is
recorded or stored, including but not limited to the hardware and computer
programs or software used as well as programming errors;
(a) Whether the information and communication system or other similar
device was operated in a manner that did not affect the integrity of
the electronic document, and there are no other reasonable grounds
to doubt the integrity of the information and communication system;
(b) Whether the electronic document was recorded or stored by a party
to the proceedings with interest adverse to that of the party using it;
or

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 (c) Whether the electronic document was recorded or stored in the usual
and ordinary course of business by a person who is not a party to the
proceedings and who did not act under the control of the party using
it [Sec. 2, Rule 7]
(4) The familiarity of the witness or the person who made the entry with the
communication and information system;
(5) The nature and quality of the information which went into the
communication and information system upon which the electronic data
message or electronic document was based; or
(6) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message.

Text messages have been classified as “ephemeral electronic communication”

under Sec 1(k), Rule 2 of the Rules on Electronic Evidence, and “shall be proven
by the testimony of a person who was a party to the same or has personal
knowledge thereof.” [Vidallon-Magtolis v. Salud, AM No. CA-05- 20-P (2005)]

METHOD OF PROOF
(1) Affidavit of Evidence [Sec. 1, Rule 9]
(a) Must state facts
(i) of direct personal knowledge, or
(ii) based on authentic records
(b) Must affirmatively show the competence of the affiant to testify on
the matters contained in the affidavit
(2) Cross-Examination of Deponent [Sec. 2, Rule 9]
(a) Affiant shall affirm the contents of the affidavit in open court.
(b) Affiant may be cross-examined as a matter of right by the adverse party.

c. Authentication of electronic documents and electronic signatures

AUTHENTICATION OF ELECTRONIC DOCUMENTS AND ELECTRONIC SIGNATURES
[Secs. 1-3, Rule 5; Secs. 1-2, Rule 11, REE]

d. Electronic documents and the hearsay rule

Requisites to an exception to the rule on hearsay evidence A memorandum,
report, record, or data compilation of acts, events, conditions, opinions or
diagnosis:
(1) Made by electronic, optical or other similar means
(2) Made at or near the time of or from transmission or supply
of information
(3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a business activity,
(5) Such was the regular practice to make the memorandum,
report, record, or data compilation by electronic, optical or
similar means
(6) Abovementioned facts shown by the testimony of the
custodian or other qualified witnesses [Sec. 1, Rule 8]

The presumption provided above may be overcome by evidence of—

(1) Untrustworthiness of the source of information
(2) Untrustworthiness of the method of the preparation, transmission or storage
thereof

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(3) Untrustworthiness of the circumstances of the preparation, transmission or
storage thereof [Sec. 2, Rule 8]

e. Audio, photographic, video and ephemeral evidence

AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE
Refers to telephone conversations, text messages, chatroom sessions, streaming
audio, streaming video, and other electronic forms of communication the evidence
of which is not recorded or retained. [Sec. 1(k), Rule 2]

5. Parol evidence rule

Any evidence aliunde, whether oral or written, which is intended or tends to vary
or contradict a complete and enforceable agreement embodied in a document.
[Regalado]

a. Application of the parol evidence rule

APPLICATION OF THE PAROL EVIDENCE RULE (GENERAL RULE) When the terms of
an agreement (including wills) have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms other than the contents of
the written agreement. [Sec. 9, Rule 130]

Where not applicable

It does not apply when third parties are involved or those not privy to the written
instrument in question and does not base a claim or assent a right originating in
the instrument. [Lechugas v. CA, G.R. No. L39972 & L-40300 (1986))

b. When parol evidence can be introduced

HOW PAROL EVIDENCE CAN BE INTRODUCED
1. A party presents parol evidence to modify, explain or add to the terms of a
written agreement AND
2. Ground/s for presenting parol evidence is put in issue in the pleading

GROUNDS FOR PRESENTING PAROL EVIDENCE

Intrinsic ambiguity, mistake or imperfection in the written agreement

Intrinsic ambiguity – writing admits of two constructions both of which are in
harmony with the language used

NOTE: If ambiguity is intermediate (both latent and patent), parol evidence is

admissible [Regalado, citing 20 Am. Jur 1011] Mistake refers to mistake of fact
which is mutual to the parties [BPI v. Fidelity and Surety, Co., G.R. No. L-26743
(1927)]

Imperfection includes inaccurate statement in the agreement or incompleteness

in the writing or the presence of inconsistent provisions [Regalado] Failure of the
written agreement to express the true intent and agreement of the parties thereto
Purpose: To enable court to ascertain the true intention of the parties [Tolentino v.
Gonzales Sy Chiam, G.R. No. 26085 (1927)]

Validity of the written agreement Parol Evidence may be admitted to show:

1. True consideration of a contract
2. Want/Illegality of consideration
3. Incapacity of parties

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 4. Fictitious/simulated contract
5. Fraud in inducement [Regalado]

Existence of other terms agreed to by the parties or their successors in

interest after the execution of the written agreement.

c. Distinguish: original document rule and parol evidence rule

Best Evidence Rule Parol Evidence Rule
Contemplates the situation wherein the
original writing is not available and/or Presupposes that the original document
there is a dispute as to whether said is available in court
writing is the original
Prohibits the introduction of
substitutionary evidence in lieu of the Prohibits the varying of the terms of a
original document regardless of WON it written agreement
varies the contents of the original
Applies to all kinds of documents Applies only to documents contractual in
nature (Exception: wills)
Can be invoked by any party to an Can be invoked only when the
action regardless of WON such party controversy is between the parties to
participated in the writing involved the written agreement, their privies or
any party directly affected thereby

6. Authentication and proof of documents

 PUBLIC AND PRIVATE DOCUMENTS
 OTHER INSTANCES WHEN AUTHENTICATION IS NOT REQUIRED
 HOW TO PROVE GENUINENESS OF HANDWRITING
 ATTESTATION OF A COPY OF A DOCUMENT OR RECORD [Sec. 25, Rule 132]
 PUBLIC RECORDS OF PRIVATE DOCUMENTS [Sec. 27, Rule 132]
 ATTACKING RECORDS
 PROOF OF NOTARIAL DOCUMENTS
 HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT [SEC. 31, RULE 132]
 DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE [Sec. 33, Rule
132]

a. Meaning of authentication
MEANING OF AUTHENTICATION
The preliminary step in showing the admissibility of evidence

Proving that the objects and documents presented in evidence are not counterfeit

b. Classes of documents
1) PUBLIC DOCUMENTS
2) PRIVATE DOCUMENTS

c. When a private writing requires authentication; proof of a private writing

GENERAL RULE:
Authentication necessary
How to Prove Due Execution and Authenticity
(1) By anyone who saw the document executed or written; OR
(2) By evidence of the genuineness of the signature or handwriting of the maker

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[Sec. 20, Rule 132]

Before a private document is admitted in evidence, it must be authenticated either

by:
(1) the person who executed it,
(2) the person before whom its execution was acknowledged,
(3) any person who was present and saw it executed, or
(4) who after its execution, saw it and recognized the signatures, or (5)the person
to whom the parties to the instruments had previously confessed execution
thereof. [Malayan Insurance v. Phil. Nails and Wires Corp., G.R. No. 138084
(2002)]

Private documents in the custody of PCGG are not public documents. What
became public are not the private documents (themselves) but the recording of it
in the PCGG. If a private writing itself is inserted officially into a public record, its
record, its recordation, or its incorporation into the public record becomes a public
document, but that does not make the private writing itself a public document so
as to make it admissible without authentication. [Republic v Sandiganbayan, G.R.
No. 188881, (2014)]

Additional Modes of Authentication under American Jurisprudence [Regalado]

(1) Doctrine of Self-Authentication – Where the facts in writing could only have
been known by the writer
(2) Rule of Authentication by adverse party – Where the reply of the adverse
party refers to and affirms the transmittal to him and his receipt of the letter in
question, a copy of which the proponent is offering as evidence

d. When evidence of authenticity of a private writing is not required

The requirement of authentication of a private document is excused only in four
instances, specifically:
(1)when the document is an ancient one which is:
(a) More than 30 years old;
(b) Produced from a custody in which it would naturally be found if genuine; and
(c) Unblemished by any alterations or circumstances of suspicion. [Sec. 21, Rule
132]
(2)when the genuineness and authenticity of the actionable document have not
been specifically denied under oath by the adverse party;
(3)when the genuineness and authenticity of the document have been admitted;
or
(4)when the document is not being offered as genuine.

e. Genuineness of handwriting
(1) By any witness who believes it to be the
handwriting of such person because:
(a) he has seen the person write;
(b) he has seen writing purporting to be his
upon which the witness has acted or been
charged, and has thus acquired knowledge
of the handwriting of such person [Sec. 22,
Rule 132]
(2) A comparison by the witness or the court of the
questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to the

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 satisfaction of the judge [Sec. 22, Rule 132]
(3) Expert evidence [Sec. 49, Rule 130]

f. Public documents as evidence; proof of official record

Proof of public documents
(1) Records of Official Acts [Sec. 24, Rule 132]
(2) By an official publication thereof; or
(3) By an attested copy of the document

NOTE: Documents without documentary stamp affixed thereto, unless specifically

exempted by law, may not be admitted or used in evidence in any court until the
requisite stamp shall have been affixed. [Sec. 201, NIRC] Also, there is a
presumption that the requisite stamps have been affixed in the original copy when
only the carbon copies of the same is available. [Mahilum v CA, G.R. No. L-17666
(1966))

g. Attestation of a copy
(1) Must be made by the officer having the legal custody of the record, or by his
deputy
(2) Must state that the copy is a correct copy of the original or a specific part
thereof, as the case may be
(3) Must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court

If the record is not kept in the Philippines, attested copy must be accompanied
with a certificate, which:
(1) May be made by a secretary of the embassy/legation, consul-general, consul,
vice-consul, consular agent or any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept;
(2) Must state that such officer has the custody; and
(3) Must be authenticated by the seal of his office. [Sec. 24, Rule 132]

h. Public record of a public document

(1) By the original record; or
(2) By a copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. [Sec. 27, Rule 132]

NOTE: Please refer to “Attestation of Copy” under Rule 132, Sec. 25.

i. Proof of lack of record

(1) Written statement
(a) Signed by an officer having the custody
of an official record or by his deputy
(b) Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his office
(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the custody WHAT TO ESTABLISH TO

j. How a judicial record is impeached

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IMPEACH JUDICIAL RECORD [Sec. 29, Rule 132]
(4) Want of jurisdiction in the court or judicial officer;
(5) Collusion between the parties; OR
(6) Fraud in the party offering the record, with respect to the proceedings

k. Proof of notarial documents

NOTARIAL DOCUMENTS (except last wills and testaments)
Every instrument duly acknowledged or proved and certified as provided by law
which may be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the instrument or
document involved. [Sec. 30, Rule 132]

Such notarized documents are evidence, even against 3rd persons, of the facts
which gave rise to their execution and of the date of execution. [Sec. 23, Rule
132]

1. Alterations in a document
WHEN APPLICABLE
(1) Document is being presented as genuine;
(2) Document has been altered and appears to have been altered;
(3) Alteration was made after execution of the document; and
(4)Alteration is in a part material to the question in dispute

WHAT TO SHOW ABOUT ALTERATION

(1) Was made by another, without his concurrence;
(2) Was made with the consent of the parties affected by it;
(3) Was otherwise properly or innocently made; or
(4)Did not change the meaning or language of the instrument.

WHOSE BURDEN OF PROOF

Party producing the document must account for the alteration. Failure to do so
would result in the inadmissibility of evidence.

m. Documentary evidence in an unofficial language

NOT admissible unless accompanied by a translation into English or Filipino.

Parties or their attorneys are directed to have the translation prepared before trial.

The OCT written in the Spanish language already formed part of the records of the
case for failure of the adverse parties to interpose a timely objection when it was
offered as evidence. Any objection to the admissibility of such evidence not raised
will be considered waived and said evidence will have to form part of the records
of the case as competent and admitted evidence. [Heirs of Doronio v. Heirs of
Doronio, G.R. No. 169454 (2007)]

E. TESTIMONIAL EVIDENCE

1. Qualifications of a witness
All persons who can perceive, and, in perceiving, can make their known perception
to others, may be witnesses. Religious/political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise provided by law, shall not be
ground for disqualification.

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QUALIFICATIONS OF A WITNESS [Herrera]
(1) To observe, the testimonial quality of perception; [Sec. 20, Rule 130]
(2) To remember, the testimonial quality of memory;
(3) To relate, the testimonial quality of narration; [Sec. 20, Rule 130]
(4) To recognize a duty to tell the truth, the testimonial quality of sincerity; [Sec.
1, Rule 132]
(5) He must not possess any of the disqualifications imposed by the law or rules.
[Sec. 1, Rule 132] A deaf-mute is competent to be a witness so long as he/she has
the faculty to make observations and he/she can make those observations known
to others. [People v. Aleman y Longhas, G.R. No. 181539 (2013)]

Parties declared in default are not disqualified from taking the witness stand for
non-disqualified parties. The law does not provide default as an exception. [Marcos
v. Heirs of Navarro, G.R. No. 198240 (2013)].

There is no substantive or procedural rule which requires a witness for a party to

present some form of authorization to testifyas a witness for the party presenting
him or her. [AFP Retirement and Separation Benefits System v. Republic, G.R. No.
188956 (2013)]

When determined Qualification of a witness is determined at the time the said

witness are produced for examination or at the taking of their depositions. With
respect to children of tender years, competence at the time of the occurrence is
also taken into account. In case person is convicted of a crime GENERAL RULE:
Not disqualified

EXCEPTION: Otherwise provided by law, e.g. under Art. 821 of the Civil Code, a
person convicted of any of the following crimes cannot be a witness to a will:
(a) Falsification of documents,
(b) Perjury; or
(c) False testimony

2. Disqualifications of witnesses
EFFECT OF INTEREST IN THE SUBJECT MATTER [Regalado]
A person is not disqualified (except if covered by the Dead Man’s statute) Interest
only affects credibility, not competency.

EFFECT OF RELATIONSHIP
GENERAL RULE: Mere relationship does not impair credibility.

EXCEPTION: To warrant rejection, it must be clearly shown:

(1) Testimony was inherently improbable or defective
(2) Improper/evil motives had moved the witness to incriminate falsely

a. Disqualification by reason of marriage

BY REASON OF MARRIAGE
Also known Martial Disqualification Rule or Spousal Immunity

REQUISITES [Sec. 22, Rule 130]

(1) Marriage is valid and existing as of the time of the offer of testimony.
(2) That the spouse for or against whom the testimony is offered is a party to the
case;

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(3) That the case is not one against the other. [Herrera]

EXCEPTIONS: [Sec. 22, Rule 130] Spouse may testify for or against the other
even without the consent of the latter—
(1) In a civil case by one against the other; or
(2) In a criminal case for a crime committed by one against the other or the
latter's direct descendants/ascendants.

RATIONALE [Alvarez v. Ramirez, G.R. No. 143439 (2005)]

(1) There is identity of interests between husband and wife;
(2) If one were to testify for or against the other, there is a consequent danger of
perjury;
(3) Policy of the law is to guard the security and confidence of private life, and to
prevent domestic disunion and unhappiness; and
(4) Where there is want of domestic tranquility, there is danger of punishing one
spouse through the hostile testimony of the other.

DURATION
The privilege lasts only during the marriage and terminates upon divorce or
annulment or death. [Herrera]

SCOPE OF RULE
The rule also includes utterance as to facts or mere production of documents. It
does not only prevent disclosure of matters communicated in nuptial confidence
but is an absolute prohibition against the spouse’s testifying to any facts affecting
the other however these facts may have been acquired. [Herrera]

WAIVER OF DISQUALIFICATION
If a spouse imputed the conviction to the other.

SPOUSES AS CO-ACCUSED

The other cannot be called as an adverse party witness under this Rule.

b. Disqualification by reason of privileged communications; rule on third parties

PRIVILEGE
A privilege is a rule of law that, to protect a particular relationship or interest,
either permits a witness to refrain from giving testimony he otherwise could be
compelled to give, or permits someone usually one of the parties, to prevent the
witness from revealing certain information. [Herrera]

i. Husband and wife

HUSBAND AND WIFE [Sec. 24(a), Rule 130]
Also known as marital privilege Rationale Confidential nature of the privilege; to
preserve marital and domestic relations.

Requisites:
(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.
(4) The spouse against whom such is being offered has not given his consent to
such testimony. A widow of a victim allegedly murdered may testify as to her
husband’s dying declaration as to how he died the since the same was not

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intended to be confidential. [US v. Antipolo, G.R. No. L13109 (1918)]

Scope: “Any communication” Includes utterances, either oral or written, or acts.

[Herrera]

When not applicable

(1) When the communication was not intended to be kept in confidence
(2) When the communication was made prior to the marriage
(3) When the communication was overheard/comes into the hands of a third party
whether legally or not
(4) Waiver of the privilege
(5) In a civil case by one against the other
(6) In a criminal case for a crime committed by one against the other or the
latter's direct descendants/ascendants.

Waiver [Herrera]
(1) Failure of the spouse to object; or
(2) Calling spouse as witness on cross examination
(3) Any conduct constructed as implied consent. The objection to the competency
of the spouse must be made when he or she is first offered as a witness. The
incompetency is waived by failure to make a timely objection to the admission of
spouse’s testimony. [People v. Pasensoy, G. R. No. 140634 (2002)]

ii. Attorney and client; exceptions

Requisites
(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 must have been given in confidence; and
(3) The communication or advice must have been given either in the course of the
professional employment or with a view to professional employment.
(4) The client has not given his consent to the attorney’s testimony thereon.
Attorney’s secretary, stenographer, or clerk are also covered by the rule and
cannot be examined concerning any fact the knowledge of which has been
acquired in such capacity without the consent of the client AND their employer.

Subject-matter of the privilege [Herrera]

(1) Communications
(2) Observations by the lawyer (regardless of medium of transmission which may
include oral or written words and actions)
(3) Tangible evidence delivered to a lawyer
(4) Documents entrusted to a lawyer

When not applicable

(1) When the communication made was not for the purpose of creating
relationship (even if afterwards he become counsel)
(2) When the communication was intended to be made public
(3) When the communication was intended to be communicated to others
(4) When the communication was intended for an unlawful purpose
(5) When the communication was received from third persons not acting in
behalf/as agents of clients
(6) When the communication was made in the presence of third parties stranger to
the attorney-client relationship
(7) When the communication has something to do with a client’s contemplated
criminal act [People v. Sandiganbayan, G.R. Nos. 115439-41 (1997)]

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(8) When there is a controversy between the client and attorney [Herrera]

Identity of Client

GENERAL RULE:
The attorney-client privilege may not be invoked to refuse to divulge the identity
of the client.

EXCEPTIONS: [Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113
(1996)]:
(1) When a strong probability exists that revealing the name would implicate that
person in the very same activity for which he sought the lawyer’s advice;
(2) When disclosure would open the client to liability;
(3) When the name would furnish the only link that would form the chain of
testimony necessary to convict.

Duration of the privilege In the absence of a statute, the privilege is permanent. It

may even be claimed by a client’s executor or administrator after the client’s
death. [Herrera]

iii. Physician and patient

PHYSICIAN AND PATIENT [Sec. 24(c), Rule 130]
Requisites: [Krohn v. CA, G.R. No. 108854 (1994), citing Lim v. CA, G.R. No.
91114 (1992)]
(1) Physician is authorized to practice medicine, surgery or obstetrics;
(2) Information was acquired or the advice or treatment was given by him in his
professional capacity for the purpose of treating and curing the patient;
(3) The information was necessary to enable him to act in that capacity;
(4) Information, advice or treatment, if revealed, would blacken the reputation of
the patient; and
(5) Privilege is invoked in a civil case, whether or not the patient is a party
thereto. Physician-patient relationship need not be entered into voluntarily.

Where applicable
(1) All forms of communication, advice or treatment
(2) Information acquired by the physician from his personal observations and
examination of the patient

When not applicable

(1) Communication was not given in confidence
(2) Communication was irrelevant to the professional employment
(3) Communication was made for an unlawful purpose
(4) Communication was intended for the commission/concealment of a crime
(5) Communication was intended to be made public/divulged in court
(6) When there was a waiver
(7) When the doctor was presented as an expert witness and only hypothetical
problems were presented to him. [Lim v. CA, G.R. No. 91114 (1992)]

Waiver
(1) Express waiver – may only be done by the patient.
(2) Implied waiver [Herrera]
(a) By failing to object
(b) When the patient testifies
(c) A testator procures an attending doctor to subscribe his will as an

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 attesting witness
(d) Disclosure of the privileged information either made or acquiesced
by the privilege holder before trial
(e) Where the patient examines the physician as to matters disclosed in
a consultation
(f) Also check Rule 28 on Mental or Physical Examination [Rules on
Civil Procedure] Professional capacity When the doctor attends to a
patient for curative treatment, or for palliative or preventive
treatment. [Herrera]

Extent of rule The privilege extends to communications which have been

addressed to physician’s assistants or agents. [Herrera] Physician allowed to
testify as an expert A doctor is allowed to be an expert witness when he does not
disclose anything obtained in the course of his examination, interview and
treatment of a patient. [Lim v. CA, G.R. No. 91114 (1992)]

Autopsical information If the information was not acquired by the physician in

confidence, he may be allowed to testify thereto. But if the physician performing
the autopsy was also the deceased’s physician, he cannot be permitted either
directly or indirectly to disclose facts that came to his knowledge while treating the
living patient. [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron)]

Duration of privilege The privilege continues until the death of the patient. It may
be waived by the personal representative of the decedent. [Herrera]

Hospital Records during discovery procedure

To allow the disclosure during discovery procedure of the hospital records would
be to allow access to evidence that is inadmissible without the patient’s consent.
Disclosing them would be the equivalent of compelling the physician to testify on
privileged matters he gained while dealing with the patient, without the latter’s
prior consent. [Chan v. Chan, G.R. No. 179786 (2013)]

iv. Priest and penitent

Requisites
(1) Priest or minister must be duly ordained in the sect in which he belongs
(2) Confession was made to, or advice given by him pursuant to a religious duty
enjoined in the course of discipline of the sect or denomination of the priest.
(3) Confession or advice was confidential and penitential in character.

v. Public officers
Requisites
(1) Communication was made to the public officer in official confidence; and
(2) Public interest would suffer by the disclosure of such communication.
Elements of “presidential communications privilege”
(1) Must relate to a “quintessential and nondelegable presidential power;”
(2) Must be authored or “solicited and received” by a close advisor of the President
or the President himself; and
(3) Privilege 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. [Neri v. Senate, G.R. No. 180643 (2008)]

Purpose of privilege: protection of public interest The privilege is not intended

for the protection of public officers but for the protection of the public interest.

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When no public interest would be prejudiced, this privilege cannot be invoked.
[Banco Filipino v. Monetary Board, G.R. No. 70054 (1986))

c. Parental and filial privilege rule

GENERAL RULE:
A person cannot be compelled to testify against his parents (parental privilege),
other direct ascendants, children or other direct descendants (filial privilege).

EXCEPTIONS: [Art. 215, Family Code]

Descendant may be compelled to give his testimony in a criminal case when—
(1) [against parent or grandparent] The testimony is indispensable in a crime
committed against said descendant; or
(2) [against parent] In a crime committed by one parent against the other.
Applicability The rule is applied to both civil and criminal cases. [Herrera]

The privilege cannot apply between stepmothers and stepchildren because the rule
applies only to direct ascendants and descendants, a family tie connected by a
common ancestry. A stepdaughter has no common ancestry by her stepmother.
[Lee v. CA, G.R. No. 177861 (2010)]
A child can waive the filial privilege and choose to testify against his father. The
rule refers to a privilege not to testify, which can be invoked or waived like other
privileges. [People v. Invencion y Soriano, G.R. No. 131636 (2003)]

d. Trade secrets
Undisclosed information or trade secrets are considered privileged communication.
It is protected information if it complies with 3 requisites:
(1) A secret in a sense that it is not generally known among or readily accessible
to persons within the circles that normally deal with the kind of info in question,
(2) Has commercial value because it is a secret;
(3) Has been subject to reasonable steps, under the circumstances by the person
lawfully in control of the information, to keep it a secret. [Art. 39]

Electronic Document as Privileged Communication The confidential character of a

privileged communication is not solely on the ground that it is in the form of an
electronic document. [Sec. 3, Rule 3, Rules on Electronic Evidence]

3. Examination of a witness
1. RIGHTS AND OBLIGATIONS OF A WITNESS [SEC. 3, RULE 132]
2. ORDER OF EXAMINATION OF AN INDIVIDUAL WITNESS
3. LEADING AND MISLEADING QUESTIONS [SEC. 10, RULE 132]
4. IMPEACHING A WITNESS
5. JUDICIAL AFFIDAVIT RULE [AM 12-8- 8-SC]

a. Rights and obligations of a witness

OBLIGATION
To answer questions, although his answer may tend to establish a claim against
him.
RIGHTS
(1) To be protected from irrelevant, improper, or insulting questions, and from
harsh or insulting demeanor
(2) Not to be detained longer than the interests of justice require
(3) Not to be examined except only as to matters pertinent to the issue
(4) Not to give an answer which will tend to subject him to a penalty for an

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offense unless otherwise provided by law, e.g., Sec. 8, RA 1379 and other
immunity statutes which grant the witness immunity from criminal prosecution for
offenses admitted
(5) Not to give an answer which will tend to degrade his reputation, unless it to be
the very fact at issue or to a fact from which the fact in issue would be presumed.
But a witness must answer to the fact of his previous final conviction for an
offense.

ONE-DAY EXAMINATION OF WITNESS RULE [AM 03-1-09-SC] A witness has

to be fully examined in one (1) day only. It shall be strictly adhered to subject to
the courts' discretion during trial on whether or not to extend the direct and/or
cross-examination for justifiable reasons.
Page 20 of28

I
b. Order in the examination of an individual witness
DIRECT EXAMINATION [Sec. 5, Rule 132]
Examination-in-chief of a witness by the party presenting him, on the facts
relevant to the issue. The purpose is to elicit facts about the client’s cause of
action or defense.

CROSS-EXAMINATION [Sec. 6, Rule 132]

Examination of the witness by the adverse party after said witness has given
testimony on direct examination. The purpose is to test the witness’s accuracy and
truthfulness, and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. Matters covered Any matters stated in the
direct examination, or connected therewith Right to cross-examination Cross-
examination is the most reliable and effective way known of testing the credibility
and accuracy of testimony. This is an essential element of due process. [Herrera,
citing Alford v. US (1931)]

The right to cross-examine under the constitution is superior to technical rules on

evidence. [Herrera, citing People v. Valero (1982)] Partial cross-examination is
sufficient where the witness was cross-examined on material points, and full cross-
examination was not due to prosecutors’ fault but that of the defense who
repeatedly moved for postponement, direct examination cannot be thrown off the
case. [Herrera, citing People v. Caparas, 102 SCRA 782]

Effect of denial of right to cross-examine Most courts require that the testimony
given on direct examination be stricken off – provided theunavailability of the
witness is through no fault of the party seeking to cross-examine. [Herrera]

Cross-examination must be completed or finished. When cross-examination is not

and cannot be done or completed due to causes attributable to the party offering
the witness, the uncompleted testimony is thereby rendered incompetent.
[Herrera, citing Ortigas, Jr. v. Lufthansa German Airlines (1975)]

RE-DIRECT EXAMINATION [Sec. 7, Rule 132]

Examination of a witness by the counsel who conducted the direct examination
after the cross examination. The purpose is for the witness to explain or
supplement his answers given during the cross examination. Matters covered

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Those stated in the cross-examination, and matters not dealt with, if allowed by
the Court

RE-CROSS-EXAMINATION [Sec. 8, Rule 132]

Examination conducted by adverse party upon conclusion of the re-direct
examination. Matters covered Those stated in his re-direct examination, and also
on such other matters as may be allowed by the court in its discretion.

RECALLING THE WITNESS [Sec. 9, Rule 132]

After both sides have concluded the examination of a witness, either party with
leave of court may recall a witness.

Why conducted
(1) Particularly identified material points were not covered in cross-examination
(2) Particularly described vital documents were not presented to the witness
(3) Cross-examination was conducted in so inept a manner as to result in a virtual
absence thereof [People v. Rivera, G.R. No. 98376 (1991))

c. Leading and misleading questions

QUESTIONS NOT ALLOWED
(1) Misleading Questions – These are questions that assume as true a fact not yet
testified to by the witness, or contrary to that which he has previously stated.
These are never allowed.
(2) Leading Questions – These are questions that suggest to the witness the
answer, which the examining party desires.

LEADING QUESTIONS
GENERAL RULE: Leading questions are not allowed.
EXCEPTIONS:
(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is getting direct and intelligible answers from a
witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-
mute;
(4) On an unwilling or hostile witness;
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling him to the
witness stand.
On a witness who is an adverse party or an officer/director or managing agent of a
public/private corporation or of a partnership/association which is an adverse
party. Test of leading questions: By putting the words or though in the witness’
mind to be echoed back, the examiner is in effect the one testifying, not the
witness. [Herrera, citing Escato v Pineda, CA 53 OG 7742]

MISLEADING QUESTIONS
Questions containing facts not in evidence. [Herrera]

d. Impeachment of witness
METHODS OF IMPEACHMENT OF AN ADVERSE PARTY’S WITNESS [Sec. 11,
Rule 132]
(1) By contradictory evidence;
(2) By evidence that his general reputation for truth, honesty or integrity is bad;

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(3) By evidence that he has made at other times statements inconsistent with his
present testimony.

i. Adverse party's witness

SPOUSES AS CO-ACCUSED The other cannot be called as an adverse party witness
under this Rule.

ii. By evidence of conviction of crime

Evidence of the good character of a witness
Evidence of the witness’ good character is not admissible until such character has
been impeached. [Sec. 14, Rule 132]

Because a witness is presumed to be truthful and of good character, the party

presenting him does not have to prove he is good because he is presumed to be
good.

iii. Own witness

iv. How the witness is impeached by evidence of inconsistent statements

How the witness is impeached by evidence of inconsistent statements (laying the
predicate)
(1) The alleged statements must be related to the witness including the
circumstances of the times and places and the persons present. If the statements
are in writing they must be shown to him.
(2) Witness may be asked whether he made such statements and also to explain
them if he admits making those statements.

Purpose: To allow the witness to admit or deny the prior statement and afford
him an opportunity to explain the same.

e. Referral of witness to memorandum

f. Examination of a child witness

A statement made by a child describing any act or attempted act of child abuse,
not otherwise admissible under the hearsay rule, maybe admitted in evidence in
any criminal or noncriminal proceeding subject to the following rules:
(1) Before such hearsay statement may
be admitted, its proponent shall
make known to the adverse party
the intention to offer such statement
and its particulars to provide him a
fair opportunity to object. If the child
is available, the court shall, upon
motion of the adverse party, require
the child to be present at the
presentation of the hearsay
statement for cross-examination by
the adverse part. When the child is

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 unavailable, the fact of such
circumstance must be proved by the
proponent.
(2) In ruling on the admissibility of such
hearsay statement, the court shall
consider the time, content and
circumstances thereof which provide
sufficient indicia of reliability. It shall
consider the following factors:
(a) Whether there is a motive to lie;
(b) The general character of the
declarant child;
(c) Whether more than one person
heard the statement;
(d) Whether the statement was
spontaneous;
(e) The timing of the statement and
the relationship between the
declarant child and witness;
(f) Cross-examination could not
show the lack of knowledge of the
declaration child;
(g) The possibility of faulty
recollection of the declarant of child
is remote; and
(h) The circumstances surrounding
the statement are such that there is
no reason to suppose the declarant
child misrepresented the
involvement of the accused.
(3) The child witness shall be considered
unavailable under the following
situations:
(a) Is deceased, suffers from
physical infirmity, lack of memory,
mental illness, or will be exposed to
severe psychological injury; or
(b) Is absent from the hearing and
the proponent of his statement has
been unable to procure his
attendance by process or other
reasonable means. When the child
witness is unavailable, his hearsay
testimony shall be admitted only if
corroborated by other admissible
evidence.

i. Applicability of the rule

APPLICABILITY OF THE RULE
Shall apply in all criminal proceedings and noncriminal proceedings involving child
witnesses. [Sec. 1]
The ROC provisions on deposition, conditional examination of witnesses and
evidence shall be applied suppletorily. [Sec. 32]

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ii. Meaning of "child witness"
(1) Any person who at the time of giving testimony is less than 18 years;
(2) In child abuse cases a child includes one over 18 years,
(a) But is found by the court as:
i. Unable to fully take care of himself, or
ii. Protect himself from abuse, neglect, cruelty, exploitation, or
discrimination
(b) Because of a physical or mental disability or condition.

Child witnesses may testify in a narrative form and leading questions may be
allowed by the trial court in all stages of the examination if the same will further
the interest of justice. [People v. Santos, G.R. No. 172322 (2006)]

iii. Competency of a child witness

PRESUMPTION OF COMPETENCE
Every child is presumed qualified to be a witness. To rebut the presumption of
competence enjoyed by a child, the burden of proof lies on the party challenging
his competence. [Sec. 6(b)]

REQUISITES FOR COMPETENCY [People v. Mendoza, G.R. No. 113791. (1996)]

(1) Capacity of observation;
(2) Capacity of recollection; and
(3) Capacity of communication.

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, a competency exam shall be
conducted.

The age of the child by itself is not a sufficient basis for a competency
examination. [Sec. 6(a)]

The court has the duty of continuously assessing the competence of the child
throughout his testimony. [Sec. 6(f)]

iv. Examination of a child witness

1) In open court [Sec. 11]
2) Alternative Modes
a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a
Witness [Sec. 25]
(i) 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.
(ii) Trauma must be of a kind which would impair the completeness or
truthfulness of the child’s testimony.
b) Videotaped Deposition of a Child Witness [Sec. 27]
(i) If the court finds that the child will not be able to testify in open
court at trial, it shall issue an order that the deposition of the child be
taken and preserved by videotape.
(ii) The rights of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be
violated during the deposition.

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v. Live-link TV testimony of a child witness
Live-link television testimony, in criminal cases 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.

The trauma must be of a kind which would impair the completeness/truthfulness

of the child’s testimony.

If it is necessary for the child to identify the accused at 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.

vi. Videotaped deposition of a child witness

If the court finds that the child will not be able to testify in open court at trial, it
shall issue an order that the deposition of the child be taken and preserved by
videotape.

The rights of the accused during trial, especially the right to counsel and to
confront and crossexamine the child, shall not be violated during the deposition.

ADMISSIBILITY OF VIDEOTAPED AND AUDIOTAPED IN-DEPTH INVESTIGATIVE OR

DISCLOSURE INTERVIEWS IN CHILD ABUSE CASES [Sec. 29]

Requisites for admissibility:

(1) The child witness is unable to testify in court on grounds and under
conditions established under section 28 (c) which are:
(a) Is deceased, suffers from physical infirmity, lack of memory,
mental illness, or will be exposed to severe psychological injury; or
(b) Is absent from the hearing and the proponent of his statement
has been unable to procure his attendance by process or other
reasonable means.
(2) The interview of the child was conducted by duly trained members
of a multi-disciplinary team or representatives of law enforcement
or child protective services in situations where child abuse is
suspected so as to determine whether child abuse occurred.
(3) The party offering the videotape or audiotape must prove that:
(a) the videotape or audiotape discloses the identity of all
individuals present and at all times includes their images and
voices;
(b) the statement was not made in response to questioning
calculated to lead the child to make a particular statement or is
clearly shown to be the statement of the child and not the product
of improper suggestion;
(c) the videotape and audiotape machine or device was capable of
recording testimony;
(d) the person operating the device was competent to operate it;
(e) the videotape or audiotape is authentic and correct; and
(f) it has been duly preserved.

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The individual conducting the interview of the child shall be available at trial for
examination by any party. Before the videotape or audiotape is offered in
evidence, all parties shall be afforded an opportunity to view or listen to it and
shall be furnished a copy of a written transcript of the proceedings.

The fact that an investigative interview is not videotaped or audiotaped as

required by this section shall not by itself constitute a basis to exclude from
evidence out-of-court statements or testimony of the child. It may, however, be
considered in determining the reliability of the statements of the child describing
abuse.

vii. Hearsay exception in child abuse cases

Proponent of hearsay statement shall make known to the adverse party the
intention to offer such statement and its particulars.

If the child is available, court shall require the child to be present at the
presentation of the hearsay statement for cross-examination by the adverse party.

If unavailable, the fact of unavailability must be proved by the proponent and his
hearsay testimony must be corroborated by other admissible evidence.

viii. Sexual abuse shield rule

GENERAL RULE: [Sec. 30(a)]
The following are inadmissible in any criminal proceeding involving alleged child
sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other sexual
behavior;
(2) Evidence offered to prove the sexual predisposition of the alleged victim.

EXCEPTION: [Sec. 30(b)]

Evidence of specific instances of sexual behavior by the alleged victim to prove
that a person other than the accused was the source of semen, injury or other
physical evidence.

ix. Protective orders

Video/audio tapes that are part of the court record may be viewed only by parties,
their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)]

The court may issue additional orders to protect the child’s privacy. [Sec. 31(c)]

Publication (or causing it) in any format any identifying information of a child who
is or is alleged to be a victim/accused of a crime or a witness thereof, or an
immediate family of the child, shall be liable for contempt of court. [Sec. 31(d)]

A child has a right at any court proceeding not to testify regarding personal
identifying information that could endanger his physical safety or his family. [Sec.
31(e)]

4. Admissions and confessions

EXTRAJUDICIAL ADMISSIONS
Any statement of fact made by a party against his interest or unfavorable to the
conclusion for which he contends or is inconsistent with the facts alleged by him. A

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statement by the accused, direct or implied, of facts pertinent to the issue, and
tending in connection with proof of other facts, to prove his guilt. [People v.
Lorenzo, G.R. No. 110107 (1995)]

RULE
The act, declaration or omission of a party, as to a relevant fact may be given in
evidence against him. [Sec. 26, Rule 130] This rule pertains to extra-judicial
admission.

ELEMENTS
(1) The admission is made by a party to the case
(2) It is against interest
(3) Made out of court
(4) Offered and presented in court in an admissible manner (e.g. non-hearsay)
(5) It is an ACT, OMISSION, or DECLARATION

REQUISITES FOR ADMISSIBILITY [Regalado]

(1) They must involve matters of fact;
(2) They must be categorical and definite;
(3) They must be knowingly and voluntarily made; and
(4) Is against admitter’s interest.

EFFECT OF AN ADMISSION It may be given in evidence against the admitter. [Sec.

26, Rule 130] Flight from justice is an admission by conduct and circumstantial
evidence of consciousness of guilt. [US v. Sarikala, G.R. No. L-12988 (1918))

RATIONALE
No man would make any declaration against himself unless it is true. [Republic v.
Bautista, G.R. No. 169801 (2007))

a. Admission by a party
ADMISSION MUST BE MADE IN CONTEXT
It is a rule that a statement is not competent as an admission where it does not,
under reasonable construction, appear to admit or acknowledge the fact which is
sought to be proved by it. [CMS Logging, Inc. v. CA, G.R. No. L-41420 (1992))
Lacbayan v. Samoy, Jr. [G.R. No. 165427, (2011)]

ISSUE: WON a Partition Agreement between partners having an extramarital affair

is an admission against interest such that a party to it who admitted the existence
of co-ownership can no longer assail the agreement.

HELD: No. The question on the Partition Agreement indicates a question of law to
determine whether the parties have the right to freely divide among themselves
the subject properties. An admission must involve matters of fact and not of law.

b. Res inter alias acta rule

Things done between strangers ought not to injure those who are not parties to
them. [Black’s Law Dictionary].

TWO BRANCHES
(1) First branch: Admission by a third party [Sec. 28, Rule 130]
(2) Second branch: Similar acts as evidence [Sec. 34, Rule 130]

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c. Admission by a third party
FIRST BRANCH: ADMISSIONS BY A THIRD PARTY
GENERAL RULE: The rights of a party cannot be prejudiced by an act, declaration,
or omission of another. Admission by a third party is inadmissible as against
another. The act, declaration or omission of another is generally irrelevant, and
that in justice, a person should not be bound by the acts of mere unauthorized
strangers. The rule is well-settled that a party is not bound by any agreement of
which he has no knowledge and to which he has not given his consent and that his
rights cannot be prejudiced by the declaration, act or omission of another, except
by virtue of a particular relation between them.

EXCEPTIONS:
(1) Partner’s or Agent’s Admission [Sec. 29, Rule 130]
(2) Admission by conspirator [Sec. 30, Rule 130]
(3) Admission by privies [Sec. 31, Rule 130]
Basis of exception A third party may be so united in interest with the party-
opponent that the other person’s admissions may be receivable against the party
himself. The term “privy” is the orthodox catchword for the relation.

d. Admission by a co-partner or agent

Requisites for admissibility: [Herrera]
(1) The act or declaration is by a partner or agent of the party;
(2) The act or declaration is within the scope of his authority;
(3) The act or declaration is made during the existence of the partnership or
agency;
(4) The partnership, or agency, is shown by evidence other than such act or
declaration;
(5) May be given in evidence against such party. This rule also applies to the act
or declaration of a joint owner, joint debtor, or other persons jointly interested
with the party. [Sec. 29, Rule 130] Statements made after partnership is dissolved
As a rule, statements made after the partnership has been dissolved do not fall
within the exception, but where the admissions are made in connection with the
winding up of the partnership affairs, said admissions are still admissible as the
partner is acting as an agent of his co-partners in said winding up [Regalado].

e. Admission by a conspirator
Admissions by counsel
Admissions by counsel are admissible against the client as the former acts in
representation and as an agent of the client, subject to the limitation that the
same should not amount to a compromise [Sec. 23, Rule 138] or confession of
judgment [Acenas, et al. v. Sison, et al., G.R. No. L17011 (1963)].

Joint interests [Herrera]

(1) The joint interest must be first made to appear by evidence other than the
admission itself
(2) The admission must relate to the subjectmatter of joint interest.

The word “joint” must be construed according to its meaning in the common law
system, that is, in solidum for the whole [Jaucian v. Querol, G.R. No. L-11307
(1918)]. A mere community of interests between several persons is not sufficient
to make the admissions of one admissible against all. [Herrera]
Just like in partnership and agency, the interest must be a subsisting one unless

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for the admission to be admissible. [Herrera]

f. Admission by privies
Privies Persons who are partakers or have an interest in any action or thing, or
any relation to another [Riano, citing Black’s Law Dictionary]

It denotes the idea of succession, not only be right of heirship and testamentary
legacy, but also that of succession by singular title, derived from acts inter vivos,
and for special purposes. (example: assignee of a credit and one subrogated to it
are privies.) [Alpuerto v. Perez Pastor and Roa, G.R. No. L-12794 (1918)]

g. Admission by silence
Requisites for Admissibility
When silence is deemed an admission: [People v. Paragsa, G.R. No. L-44060
(1978)]
(1) Person heard or understood the statement;
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter affecting his rights or in which he was
interested and which naturally calls for a response;
(4) That the facts were within his knowledge; and
(5) That the fact admitted from his silence is material to the issue

When not applicable

(1) Statements adverse to the party were made in the course of an official
investigation, neither asked to reply nor comment [Sec. 2(b), RA 7438]
(2) Party had justifiable reason to remain silent, e.g. acting on advice of counsel
[Regalado]

Failure to file a comment Respondent’s failure to file a comment despite all the
opportunities afforded him constituted a waiver of his right to defend himself. In
the natural order of things, a man would resist an unfounded claim or imputation
against him. It is generally contrary to human nature to remain silent and say
nothing in the face of false accusations. As such, respondents silence may be
construed as an implied admission and acknowledgement of the veracity of the
allegations against him. [OCA v. Amor, AM No. RTJ-08-2140 (2014)]

h. Confessions
CONFESSION
A declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein [Sec. 33, Rule 130] An acknowledgment
in express words or terms, by a party, in a criminal case, of the crime charged or
some essential parts of it. [People v. Lorenzo, (1995)]

Requisites
(1) Express and categorical acknowledgement of guilt
(2) Facts admitted constitutes a criminal offense
(3) Given voluntarily
(4) Intelligently made, realizing the importance or legal significance of the act
(5) No violation of Secs. 12 and 17, Art. III of the Constitution [Regalado] If the
accused admits having committed the act in question but alleges a justification
therefore, the same is merely an admission. [Ladiana v. People, G.R. No. 144293
(2002))

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Any confession, including a re-enactment, without admonition of the right to
silence and to counsel, and without counsel chosen by the accused is inadmissible
in evidence. [People v. Yip Wai Ming, G.R. No. 120959 (1996))

[T]he basic test for the validity of a confession is – was it voluntarily and freely
made. The term "voluntary" means that the accused speaks of his free will and
accord, without inducement of anykind, and with a full and complete knowledge of
the nature and consequences of the confession, and when the speaking is so free
from influences affecting the will of the accused, at the time the confession was
made, that it renders it admissible in evidence against him. Plainly, the
admissibility of a confession in evidence hinges on its voluntariness.[People v.
Satorre, G.R. No. 133858 (2003)]

Effect of Extrajudicial Confession of Guilt

GENERAL RULE: An extrajudicial confession made by an accused is not a sufficient

ground for conviction. [Sec. 3, Rule 133]

EXCEPTION:
When corroborated by evidence of the actual commission of a particular crime
(corpus delicti). [Sec. 3, Rule 133] Corpus Delicti Substance of the crime; the fact
that a crime has actually been committed [People v. De Leon, G.R. No. 180762
(2009)]

i. Similar acts as evidence

Similar acts previously done
GENERAL RULE:
Evidence that one did or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at another time. (2nd
Branch of res inter alios acta rule) [Sec. 34, Rule 130]

EXCEPTIONS:
Said evidence may be received to prove:
(1) specific intent or knowledge;
(2) identity;
(3) plan, system, or scheme;
(4) habit;
(5) established custom, usage and the like. [Sec. 34, Rule 130] Reason for

General Rule
The rule is founded upon reason, justice and judicial convenience. The lone fact
that a person committed the same or similar act at some prior time affords, as a
general rule, no logical guaranty that he committed the act in question. A man’s
mind and even his modes of life may change; and objectively, the conditions which
he may find himself at a given time make likewise change and induce him to act a
different way. [Herrera, citing Justice Moran]

j. Admissibility of offers of compromise

5. Hearsay rule
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts which he knows of his personal

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knowledge, or those derived from his own perception. [Sec. 36, Rule 130]

The hearsay rule is not limited to oral testimony or statements; it applies to

written, as well as oral statements. [Consunji v. CA, G.R. No. 137873 (2001))

If a party does not object to hearsay evidence, the same is admissible, as a party
can waive his right to cross-examine [People v. Ola, G.R. No. L-47147 (1987))

Repeated failure to cross-examine is an implied waiver [Savory Luncheonette v.

Lakas ng Manggagawang Pilipino, G.R. No. L-38964 (1975)]

a. Meaning of hearsay
It is an out-of-court statement which is offered by the witness in court to prove
the truth of the matters asserted by the statement. It is any evidence, whether
oral or documentary, if its probative value is not based on personal knowledge of
witness but on knowledge of some other person not on witness stand [Regalado]

ELEMENTS
(1) Declarant is out of court
(2) Out of court declaration is offered as proof of its contents
(3) Absence of opportunity for cross-examination

b. Reason for exclusion of hearsay evidence

REASON FOR EXCLUSION OF HEARSAY EVIDENCE
The underlying rule against hearsay are serious concerns about the worth
(trustworthiness, reliability) of hearsay evidence.
Because such evidence:
(1) was not given under oath or solemn affirmation; and
(2) was not subject to cross-examination by opposing counsel to test the
perception, memory, veracity and articulateness of out-ofcourt declarant or actor
upon whose reliability on which the worth of the out-of-court testimony depends.
[Herrera]

c. Exceptions to the hearsay rule

(1) Dying declaration
(2) Declaration against interest
(3) Act or declaration about pedigree
(4) Family reputation or tradition regarding pedigree
(5) Common reputation
(6) Part of the res gestae
(7) Entries in the course of business
(8) Entries in official records
(9) Commercial lists and the like
(10) Learned treaties
(11) Testimony or deposition at a former trial

i. Dying declaration
DYING DECLARATION
Also known as “antemortem statement” or “statement in articulo mortis” [Sec. 37,
Rule 130]

Requisites for Admissibility

(1) Declaration is one made by a dying person;

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(2) Declaration was made under the consciousness of an impending death;
(3) Declaration refers to cause and surrounding circumstances of such death;
(4) Declaration is offered in any case wherein his death is the subject of inquiry;
(5) Declarant is competent as a witness had he survived [Geraldo v People, G.R.
No. 173608 (2008)); and
(6) Declarant should have died. [People v. Macandog, G.R. No. 129534 and
1411691 (2001)]

Rationale for Admissibility

As a general rule, when a person is at the point of death, every motive to
falsehood is silenced. [People v Bacunawa, G.R. No. 136859 (2001))
The law considers the point of death as a situation so solemn and awful as creating
an obligation equal to that which is imposed by an oath administered by the court.
[People v. Cerilla, G.R. No. 177147 (2007))

If the declarant’s statement is made under consciousness of impending death, a

subsequent belief in recovery before his actual death does not bar admissibility of
his statement [Riano, citing People v. Black (1979), 96 CA3d 846, 158 CR 449]

The foreboding may be gleaned from surrounding circumstances, such as the

nature of the declarant’s injury and conduct that would justify a conclusion that
there was consciousness of impending death. [People v. Latayada, G.R. No.
146865 (2004)) The admissibility of an ante mortem declaration is not affected by
the fact that the declarant died hours or several days after making his declaration.

It is sufficient that he believe himself in imminent danger of death at the time of

such declaration. [Herrera, citing People v. Ericta 77 SCRA 199] People v.
Quisayas [G.R. No. 198022 (2014)]

FACTS: Victim Januario was stabbed by respondents on his way home. Policemen
patrolling the area saw Januario lying on the street. He was brought by the
policemen to the hospital. While in the vehicle, the police asked him who hurt him.
He answered that it was the respondents. He eventually died because of the stab
wounds.

ISSUE: WON the testimony of the accused was a dying declaration.

HELD: No. It does not appear that the declarant was under the consciousness of
his impending death when he made the statements. No questions relative to the
second requisite was propounded to Januario.

The rule is that, in order to make a dying declaration admissible, a fixed belief in
inevitable and imminent death must be entered by the declarant. It is the belief in
impending death and not the rapid succession of death in point of fact that renders
a dying declaration admissible. The test is whether the declarant has abandoned
all hopes of survival and looked on death as certainly impending.

Thus, the utterances made by Januario could not be considered as a dying

declaration. However, the Court appreciated the testimony as part of res gestae.
Conviction of accused was sustained.

ii. Statement of decedent or person of unsound mind

Objections to the dying declaration May be premised on any of the requisites for

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its admissibility embodied in Sec. 37, Rule 130. Counsel who wants a dying
declaration excluded must have to deal with the primary question of whether or
not the evidentiary foundations for the introduction where met. [Riano]

Dying declarations are admissible in favor of the defendant as well as against him.
[US v. Antipolo, 37 Phil. 726 (1918))

iii. Declaration against interest

Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the interest of the declarant;
(3) At the time he made said declaration, declarant was aware that the same was
contrary to his interest; and
(4) Declarant had no motive to falsify and believed such declaration to be true
[Sec. 38, Rule 130]

Inability to testify means that the person is dead, mentally incapacitated or

physically incompetent. Mere absence from the jurisdiction does not make him
ipso facto unavailable. [Fuentes v. CA, G.R. No. 111692 (1996)]

Declaration against interest made by the deceased, or by one unable to testify, is

admissible even against the declarant’s successors-in-interest or even against
third persons [Sec. 38, Rule 130]

Actual or real interest It is essential that at the time of the statement, the
declarant’s interest affected thereby should be actual, real or apparent, not merely
contingent, future or, conditional; otherwise the declaration would not in reality be
against interest. (example: declarations regarding a declarant’s inheritance are not
admissible because these are future interests) [Herrera]

Admissible against third persons If all the requisites for admission of a declaration
against interest are present, the admission is admissible not only against the
declarant but against third persons. [Herrera, citing Viacrusis v. CA, 44 SCRA 176]

iv. Act or declaration about pedigree

ACT OR DECLARATION ABOUT PEDIGREE
Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) The pedigree is in issue or is relevant thereto; [Herrera]
(3) Declarant must be related by birth or marriage to the person whose pedigree
is in issue;
(4) Declaration was made before the controversy; and
(5) Relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such declaration. [Sec. 39, Rule
130]

Pedigree includes
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;

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(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected with pedigree. [Sec. 39, Rule 130]
“Proof other than declaration”

GENERAL RULE: Proof of relationship must be shown in evidence other than the
declaration.

EXCEPTION: The general rule does not apply where the claim is sought to reach
the estate of the declarant himself, and not merely to establish a right through his
declarations to the property of some other member of the family. [Tison v. CA,
G.R. No. 121027 (1997)]

Pedigree declaration by conduct

This rule may also consist of proof of acts or conduct of relatives and the mode of
treatment in the family of one whose parentage is in question. [Herrera, pg. 649]
Not applicable to adoption The rule allowing proof of pedigree is not applicable to
adoption.
The absence of proof of an order of adoption by the court, as provided by statute,
cannot be substituted by parol evidence that the child has lived with a person, not
his parent, and was treated as child during the latter’s lifetime. [Herrera, citing
Lazatin v. Campos, G.R. No. L-43955-56 (1979)]

v. Family reputation or tradition regarding pedigree

FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE
Requisites for Admissibility
(1) Witness must be a member, by consanguinity or affinity, of the same family as
the subject; and
(2) Such reputation or tradition must have existed in that family ante litem
motam. [Sec. 40, Rule 130]

Other Admissible Evidence

(1) Entries in family bibles or other family books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [Sec. 40, Rule 130]

This enumeration, by ejusdem generis, is limited to "family possessions," or those

articles which represent, in effect, a family's joint statement of its belief as to the
pedigree of a person. [Jison v. CA, G.R. No. 124853. (1998))

A person’s statement as to his date of birth and age, as he learned of these from
his parents or relatives, is an ante litem motam declaration of a family tradition.
[Gravador v. Mamigo, G.R. No. L24989, (1967)]

vi. Common reputation

Requisites for Admissibility
(1) Reputation pertains to:
(a) facts of public or general interest more than 30 years
old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem motam. [Sec. 41, Rule 130]

Page 327 of 360

Other Admissible Evidence
(1) Monuments
(2) Inscriptions in public places [Sec. 41, Rule 130]

Pedigree may be established by reputation in the family, but not in the

community. [Secs. 40-41, Rule 130] Common reputation is hearsay like any other
exception to the hearsay rule, but is admissible because of trustworthiness.
[Riano, citing Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542]

Reputation has been held admissible as evidence of age, birth, race, or race-
ancestry, and on the question of whether a child was born alive. [In re: Florencio
Mallare, AM No. 533 (1974))

Unlike that of matters of pedigree, general reputation of marriage may proceed

from persons who are not members of the family — the reason for the distinction
is the public interest that is taken in the question of the existence of marital
relations. [In re: Florencio Mallare, AM No. 533 (1974)]

vii. Part of the res gestae

Res Gestae
This expression signifies merely “transactions” or “things done” and is used in
common law as meaning the circumstances which are automatic and undersigned
incidents of the particular act in issue, and which are admissible in evidence when
illustrative and explanatory of the act. [Herrera]

Admissible Statements
(1) Spontaneous statements - Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto, with
respect to the circumstances thereof:
(a) Principal act be a startling occurrence
(b) Statement made before declarant had opportunity to
contrive a falsehood [Talidano v. Falcon Maritime, G.R. No.
172031 (2008)]
(c) Statement refer to occurrence in question and attending
circumstances [Sec. 42, Rule 130] or that the statements
must concern the occurrence in question and its immediate
attending circumstances [Talidano v. Falcon Maritime, G.R.
No. 172031 (2008)]
(2) Verbal acts - Statements, which accompany an equivocal act material to the
issue and give it a legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal act
(d) Statement gives legal significance to equivocal act [Talidano v. Falcon
Maritime, G.R. No. 172031 (2008)]
(e) Must be made at the time, not after, the equivocal act was being
performed A dying declaration can be made only by the victim after the
attack while a statement as part of the res gestae may be that of the
killer himself after or during the killing. [People v. Reyes]

A statement not admissible as dying declaration because it was not made under
consciousness of impending death, may still be admissible as part of res gestae if

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made immediately after the incident. [People v. Gueron, G.R. No. L-29365 (1983)]

viii. Records of regularly conducted business activity

ENTRIES IN THE COURSE OF BUSINESS
Requisites for Admissibility
1. Entries were made at, or near the time of the transactions
referred to;
2. Such entries were made in the ordinary or regular course
of business or duty;
3. Entrant was in a position to know the facts stated in the
entries;
4. Entrant did so in his professional capacity, or in the
performance of duty and in the regular course of business;
and
5. Entrant is now dead or unable to testify. [Northwest
Airlines v. Chiong, G.R. No. 155550 (2008)]
If the entrant is available as a witness, the entries will not be admitted, but they
may nevertheless be availed of by said entrant as a memorandum to refresh his
memory while testifying on the transactions reflected therein. [Cang Yui v.
Gardner, G.R. No. L-9974 (1916)]

“Business records” are exempt from the hearsay rule. [Sec. 1, Rule 8, Rules on
Electronic Evidence] Entries in the payroll, being entries in the course of business,
enjoy the presumption of regularity [Sapio v. Undaloc Construction, G.R. No.
155034 (2008)]

Reason for rule The duty of the employees to communicate facts is of itself a
badge of trustworthiness of the entries [Security Bank and Trust Company v. Gan,
G.R. No. 150464 (2006)] These entries are accorded unusual reliability because
their regularity and continuity are calculated to discipline record keepers in the
habit of precision. [LBP v. Monet’s Export and Manufacturing Corp., G.R. No.
184971 (2010)]

ix. Entries in official records

ENTRIES IN OFFICIAL RECORDS
Requisites for Admissibility
(1) Entries were made by a public officer in the performance of his duties or by a
person in the performance of a duty specially enjoined by law [Sec. 44, Rule 130];
(2) Entrant must have personal knowledge of the facts stated by him or such facts
acquired by him from reports made by persons under a legal duty to submit the
same [Barcelon, Roxas Securities v. CIR, 157064 (2006)]; and
(3) Entries were duly entered in a regular manner in the official records. Entries in
official records, just like entries in the course of business, are merely prima facie
evidence of the facts therein stated. [Secs. 43-44, Rule 130] Entries in a police
blotter are not conclusive proof of the truth of such entries. [People v. Cabuang,
G.R. No. 103292 (1993)] Baptismal certificates or parochial records of baptism are
not official records. [Fortus v. Novero, G.R. No. L-22378 (1968)]

x. Commercial lists and the like

COMMERCIAL LISTS AND THE LIKE

Requisites for Admissibility

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(1) Statements of matters of interest to persons engaged in an occupation;
[Herrera]
(2) Such statements are contained in a list;
(3) Compilation is published for use by persons engaged in that occupation; and
(4) It is generally used and relied upon by them. Need of preliminary proof of
trustworthiness There should be requirements of preliminary proof of
trustworthiness before such lists are rendered admissible. Some proof must be
shown how or in what manner it was made up, where the information it contained
was obtained, or whether the quotation of prices made were derived from actual
sales or otherwise. [Herrera]

xi. Learned treatises

Requisites for Admissibility
(1) Published treatise, periodical or pamphlet is on a subject of history, law,
science, or art; and
(2) Court takes either:
(a) judicial notice of it, or
(b) witness expert in the subject testifies that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject

xii. Testimony or deposition at a former trial

Requisites for Admissibility [Sec. 47, Rule 130; Manliclic v. Calaunan, G.R. No.
150157 (2007)]
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a former case
or proceeding, judicial or administrative, between the
same parties or those representing the same interests;
(3) Former case involved the same subject as that in the
present case although on different causes of action;
(4) Issue testified to by the witness in the former trial is the
same issue involved in the present case; and
(5) Adverse party had the opportunity to crossexamine the
witness in the former case. Inability to testify (meaning
and standard) The inability of the witness to testify
must proceed from a grave cause, almost amounting to
death, as when the witness is old and has lost the
power of speech. Mere refusal shall not suffice. [Tan v.
CA, G.R. No. L-22793 (1967))

xiii. Residual exception

(1) Affidavit in the Rules of Summary Procedure - shall not be considered as
competent evidence for the party presenting the affidavit, but the adverse party
may utilize the same for any admissible purpose [Sec. 14, Rules on Summary
Procedure]
(2) Examination of a child witness

d. Independently relevant statements

6. Opinion rule

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OPINION RULE
Opinion is an inference or conclusion drawn from facts observed.

GENERAL RULE: The opinion of witness is not admissible [Sec. 48, Rule 130]

EXCEPTIONS
(1) Expert witness [Sec. 49, Rule 130]
(2) Ordinary witness [Sec. 50, Rule 130]
Page 21 of28

f
a. Opinion of expert witness; weight given
The opinion of a witness on a matter requiring special knowledge, skill, experience
or training which he shown to possess, may be received in evidence. Expert
witness is one who has made the subject upon which he gives his opinion a matter
of particular study, practice or observation and he must have particular and
special knowledge on the subject. [People v. Dekingco, G.R. No. 87685 (1990)]

Expert evidence is the testimony of one possession in regard to a particular

subject or department of human activity not usually acquired by other persons.
[Herrera]

ADMITTING EXPERT TESTIMONY

Question in admitting expert testimony Whether the opinion called for will aid the
fact finder in resolving an issue, or whether the jury or the judge is as well
qualified as the witness to draw its own or his own deductions from the
hypothetical facts. [Herrera]

Court discretion to exclude or include expert evidence If men of common

understanding are capable of comprehending the primary facts and drawing
correct conclusions from them, expert testimony may be excluded by the Court.
[Herrera]

Competency of witness is a preliminary question before testimony is admitted It

must be shown that the witness is really an expert; determination of competency
is a preliminary question. [Herrera]

HYPOTHETICAL QUESTIONS
Test Fairness is the ultimate test of hypothetical questions. The Court shall reject a
question which unfairly selects parts of the facts proved or omits material facts. If
it omits facts, it may be opposed on the ground that it is misleading. [Herrera]
Admissibility of hypothetical question Admissibility of hypothetical questions
depends on whether it furnishes the tribunal with the means of knowing upon what
premises of fact the conclusion is based. [Herrera, citing Magiore v. Sheed (195 A.
392, 173 Md 33)]

EXAMINING AN EXPERT WITNESS

Mode of examination of expert witness He may base his opinion either on a first-
hand knowledge of the facts or on the basis of hypothetical questions where the
facts are presented to him hypothetically, and on the assumption that they are
true, formulates his opinion on this hypothesis. [Herrera]

How to present an expert witness

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(1) Introduce and qualify the witness;
(2) Let him give his factual testimony, if he has knowledge of the facts;
(3) Begin the hypothetical question by asking him to assume certain facts as true;
(4) Conclude the question, by first asking the expert if he has an opinion on a
certain point
(5) assuming that these facts are true and secondly, asking him, after he has
answered affirmatively, to give his opinion on the point;
(6) After he has stated his opinion, ask him to give his reasons. Dela Llana v.
Biong [G.R. No. 182356 (2013)]

Despite the fact that petitioner is a physician and even assuming that she is an
expert in neurology, she was not presented as an expert witness. As an ordinary
witness, she was not competent to testify on the nature, and the cause and effects
of whiplash injury.

b. Opinion of ordinary witness

OPINION OF ORDINARY WITNESS [SEC. 50, RULE 130]
(4) If proper basis is given, and
(5) Regarding:
(a) Identity of a person about whom
he has adequate knowledge;
(b) Handwriting with which he has
sufficient familiarity;
(c) Mental sanity of a person with
whom he is sufficiently acquainted;
and
(d) Impressions of the
i. emotion,
ii. behavior,
iii. condition, or
iv. appearance of a person

IDENTITY OF A PERSON ABOUT WHOM HE HAS ADEQUATE KNOWLEDGE

Statements of a witness as to identity are not to be rejected because he is unable
to describe features of the person in question. [Herrera] Identification by voice is
recognized by the courts, especially in a case where it was impossible to see the
accused but the witness has known the accused since their childhood. [Herrera,
citing US v. Manabat]

HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY

The ordinary witness must be acquainted with the characteristics of the
handwriting of a person. He may only draw on the knowledge which he already
has and which enables him to recognize the handwriting. Only experts are allowed
to give conclusions from the comparison of samples of handwriting of a person
whose handwriting he is not familiar with. [Herrera]

MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY

ACQUAINTED
These are allowed where the witness can adequately describe the actions, looks or
symptoms of a person’s sanity or insanity which is impossible for the court to
determine. [Herrera]

IMPRESSIONS OF THE EMOTION, BEHAVIOR, CONDITION OR

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APPEARANCE OF A PERSON
The rule recognizes instances when a witness may be permitted to state his
inferences that are drawn from minute facts and details which the witness cannot
fully and properly describe in court. Such expressions are expressed to the
countenance, the eye and the general manner and bearing of the individual;
appearance which are plainly enough recognized by a person of good judgment,
but which he cannot otherwise communicate by an expression of results in the
shape of an opinion. [Herrera, citing US case Hardy v. Merill]

7. Character evidence
GENERAL RULE: [Sec. 51, Rule 130]
Character evidence is not admissible.

EXCEPTIONS:
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51(b), Rule 130]
(3) In the case provided for in Sec. 14, Rule 132.

CHARACTER EVIDENCE
The aggregate of the moral qualities which belong to and distinguish an individual
person; the general result of one’s distinguishing attributes. [Herrera citing Black’s
Law Dictionary, pg. 834]

Character distinguished from reputation

Character is what a man is and depends on attributes he possesses. It signifies
reality. Reputation is what he is supposed to be in what people say he is, it
depends on attributes which others believe one to possess. It signifies what is
accepted to be reality at present. [Herrera, citing Black’s Law Dictionary]

a. Criminal cases
(1) Accused – May prove his good moral character, which is pertinent to the
moral trait involved in the offense charged.
(2) Prosecution – May not prove the bad moral character of the accused, except
in rebuttal.
(3) Offended Party – His/her good or bad moral character may be proved if it
tends to establish in any reasonable degree the probability or improbability of the
offense charged.

Good moral character of accused

The purpose of presenting evidence of good moral character is to prove the
improbability of his doing the act charged. The accused may prove his good moral
character only if it is pertinent to the moral trait involved in the offense charged.
[Herrera]

Bad moral character of accused in rebuttal

Unless and until the accused gives evidence of his good moral character the
prosecution may not introduce evidence of his bad character. [Herrera, citing
People v. Rabanes, G.R. No. 93709 (1992)]

Good or bad moral character of offended party

This is usually offered in rape cases and where the accused invokes the defense of
self-defense.
In rape cases, the character of a woman may be relevant and admissible on the

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question of the presence or absence of her consent. While in homicide and assault
cases, it may be used as evidence of the victim’s character for turbulence and
violence warranting the response of the accused. [Herrera]

Character evidence must be limited to the traits and characteristics involved in the
type of offense charged. Thus:
- on a charge of rape : character for chastity
- on a charge of assault: character for peaceableness or violence
- on a charge of embezzlement : character for honesty. [CSC v. Belagan, G.R.
No. 132164 (2004)]

b. Civil cases
Moral character is admissible only when pertinent to the issue of character
involved in the case. [Sec. 51(b), Rule 130] Evidence of the witness’ good
character is not admissible until such character has been impeached. [Sec. 14,
Rule 130]

c. Criminal and civil cases

8. Judicial affidavits
 SCOPE
 SUBMISSION OF JUDICIAL AFFIDAVITS AND EXHIBITS IN LIEU OF DIRECT
TESTIMONIES
 FORM [Sec. 3]
 CONTENTS [Sec. 3]

a. Scope
SCOPE
Applies to all actions and proceedings, and incidents requiring the reception of
evidence before the courts, quasi-judicial bodies, whose rules of procedure are
subject to disapproval of the Supreme Court, insofar as their existing rules of
procedure contravene the provisions of this Rule, and investigating officers and
bodies authorized by the SC to receive evidence, including the IBP [Sec. 1].

b. Submission in lieu of direct testimony

SUBMISSION OF JUDICIAL AFFIDAVITS AND EXHIBITS IN LIEU OF DIRECT
TESTIMONIES
(1) The parties shall file with the court and serve on the adverse party,
personally or by licensed courier service, not later than five days
before pre-trial or preliminary conference or the scheduled hearing
with respect to motions and incidents, the following:
(a) The judicial affidavits of their witnesses, which shall take the
place of such witnesses' direct testimonies; and
(b) The parties' documentary or object evidence, if any, shall be
marked and attached to the judicial affidavits
(2) Should a party or a witness desire to keep the original document or
object evidence in his possession, he may, after the same has been
identified, marked as exhibit, and authenticated, warrant in his
judicial affidavit that the copy or reproduction attached to such
affidavit is a faithful copy or reproduction of that original. In
addition, the party or witness shall bring the original document or

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 object evidence for comparison during the preliminary conference
with the attached copy, reproduction, or pictures, failing which the
latter shall not be admitted This is without prejudice to the
introduction of secondary evidence in place of the original when
allowed by existing rules. [Sec. 2]

FORM [Sec. 3]
(1) Language known to the witness, or if not in English or Filipino with a
translation in English or Filipino
(2) With a sworn attestation executed by the lawyer who conducted or supervised
the examination of the witness

c. Contents
CONTENTS [Sec. 3]
(1) The name, age, residence or business address, and occupation of
the witness;
(2) The name and address of the lawyer who conducts or supervises
the examination of the witness and the place where the
examination is being held;
(3) A statement that the witness is answering the questions asked of
him, fully conscious that he does so under oath, and that he may
face criminal liability for false testimony or perjury;
(4) Questions asked of the witness and his corresponding answers,
consecutively numbered, that:
(a) Show the circumstances under which the witness acquired the
facts upon which he testifies;
(b) Elicit from him those facts which are relevant to the issues that
the case presents; and
(c) Identify the attached documentary and object evidence and
establish their authenticity;
(5) The signature of the witness over his printed name; and
(6) A jurat with the signature of the notary public who administers the
oath or an officer who is authorized by law to administer the same.

d. Offer and objection

OFFER
When made Upon the termination of the testimony of his last witness
How made Party shall immediately make an oral offer of evidence of his
documentary or object exhibits, piece by piece, in their chronological order, stating
the purpose or purposes for which he offers the particular exhibit.

OBJECTION
When made After each piece of exhibit is offered, How made Party shall state the
legal ground for his objection, if any, to its admission. The court shall immediately
make its ruling respecting that exhibit.

e. Application in criminal cases

APPLICATION TO CRIMINAL ACTIONS
While the case of Ang v. CA [G.R. No. 182835 (2010]) held that the Rules on
Electronic Evidence applies only to civil actions, quasijudicial proceedings and
administrative proceeding, not to criminal action, in People vs. Enojas [G.R. No.
204894 (2014)], the SC upheld the RTC’s admission of text messages as evidence
in a murder case as conforming with the Court’s earlier Resolution [AM No. 01-7-

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01, dated September 24, 2002] applying the Rules on Electronic Evidence to
criminal actions effective October 14, 2002.

f. Effect of non-compliance
Non-compliant behavior Consequence
Deemed to have waived the submission
of the same

Party’s failure to submit
Witness’ failure to appear
scheduled hearing
Counsel’s failure to appear
Non-compliance with requirements
NOTE: Court may allow, only once, late
submission, provided the delay is for a
valid reason and the defaulting party
pays a fine.
at the Affidavit shall not be considered by the
court
Deemed to have waived his client’s right
to cross examine the witnesses there
present
Judicial affidavit cannot be admitted as
evidence

F. OFFER AND OBJECTION

A. OFFER OF EVIDENCE
B. WHEN TO MAKE AN OFFER [SEC. 35, RULE 132]
C. OBJECTION [SEC. 36, RULE 132]
1. CONCEPT
2. MANNER
3. PURPOSES OF OBJECTION [RIANO]
4. CLASSIFICATION OF OBJECTIONS
5. WHEN TO OBJECT
D. RULING ON THE OBJECTION [SEC. 38, RULE 132]
E. STRIKING OUT AN ANSWER [SEC. 39, RULE 132]
F. TENDER OF EXCLUDED EVIDENCE [SEC. 40, RULE 132]

1. Offer of evidence
GENERAL RULE:
Court shall consider no evidence which has not been formally offered. [Sec. 34,
Rule 132]

Purpose: The purpose for which the evidence is offered must be specified.

EXCEPTION: Evidence not formally offered may be admissible when two essential
conditions concur:
(1) the same must have been duly identified by testimony duly recorded and,
(2) the same must have been incorporated in the records of the case. [Mato v. CA,
320 Phil. 344 (1995)]

WHY FORMAL OFFER IS NECESSARY

There is a need for a formal offer of evidence because without such offer, the court
cannot determine whether the evidence is admissible or not. [Riano] No
evidentiary value can be given to pieces of evidence not formally offered. [Dizon v.
CTA, G.R. No. 140944 (2008)]

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However, where the absence of an offer of a testimonial evidence was not
objected to as when the witness was cross-examined by the adverse party despite
failure to make an offer of the testimony, the court must consider the testimony.
The provisions of the ROC on the inclusion on appeal of documentary evidence or
exhibits in the records, cannot be stretched as to include such pleadings or
documents not offered at the hearing of the case [Candido v. CA, G.R. No. 107493
(1996)]

WHEN FORMAL OFFER IS NOT REQUIRED

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, affidavits, and depositions used in rendering a summary
judgment;
4) Documents or affidavits used in deciding quasi-judicial or
administrative cases [Bantolino v. Coca Cola Bottlers, G.R. No. 153660
(2003)]
5) Lost objects previously marked, identified, described in the record, and
testified to by witness who had been subjects of crossexamination in
respect to said objects [Tabuena v. CA, G.R. No. 85423 (1991), citing
People v. Napat-a, G.R. No. 84951 (1989)] [Riano]

The Republic offered the negotiated contracts solely to prove that the Bakunawas
had been incorporators or owners, or had held key positions in the corporations
that entered into the contracts. The Sandiganbayan correctly ruled, therefore, that
the contracts could be considered and appreciated only for those stated purposes,
not for the purpose of proving the irregularity of the contracts. Evidence can be
considered only for the purposes it was specifically offered. [Republic v Reyes-
Bakunawa, G.R. No. 180418 (2013)]

WAIVER OF RIGHT TO MAKE FORMAL OFFER

It is deemed waived by a party if it fails to submit within a considerable period of
time its formal offer. [Heirs of Pasag v. Parocha, G.R. No. 155483 (2007)) In this
case, the court did not allow the petitioners to present their formal offer 10 years
after resting its case. In an earlier case of Constantino v. CA [G.R. No. 116018
(1996)], the Court did not allow a formal offer even only after three months
because such would, “condone an inexcusable laxity if not non-compliance with a
court order which, in effect, would encourage needless delays and derail the
speedy administration of justice.”

2. When to make an offer

The party who terminated the presentation of evidence must make an oral offer of
evidence on the very day the party presented the last witness. Otherwise, the
court may consider the party’s documentary or object evidence waived. [Heirs of
Pasag v. Sps. Parocha, G.R. No. 155483 (2007)]

MANNER OF OFFER

GENERAL RULE: Offer shall be done orally

EXCEPTION: Allowed by the court in writing While the trial court may allow the
offer to be done in writing, this can only be tolerated in extreme cases where the
object evidence or documents are large in number––say from 100 and above, and

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only where there is unusual difficulty in preparing the offer. Absence of an offer is
a defect which is waived when a party fails to object when the ground became
reasonably apparent, as when the witness is called to testify without any prior
offer. [Catuira v. CA, G.R. No. 105813 (1994)]

The defect caused by the absence of formal offer of exhibits can be cured by the
identification of the exhibits by testimony duly recorded and the incorporation of
the said exhibits in the records of the case. [People v. Mate, G.R. No. L-34754
(1981)] The defendant cannot offer his evidence before the plaintiff has rested.
[Herrera, citing Engersail v. Malabon Sugar Co., 53 Phil. 7450]

3. Objection
CONCEPT
The party has a right to object to evidence which he considers not admissible
under the complaint, even if the questions were asked by the judge. [Francisco]
When a party desires the court to reject the evidence offered, he must so state in
the form of objection. Without such objection, he cannot raise the question for the
first time on appeal. [People v. Diaz, G.R. No. 197818 (2015))

MANNER
Excluding inadmissible evidence
(1) One has to object to inadmissible evidence;
(2) The objection must be timely made; and
(3) The grounds for the objection must be specified. [Herrera]

PURPOSES OF OBJECTION [RIANO]

(1) Made to keep out inadmissible evidence that would cause harm to client’s
cause (rules of evidence are not self-operating)
(2) To protect the record (for future appeal)
(3) To protect witness from being embarrassed or harassed
(4) To expose adversary’s unfair tactics
(5) To give trial court an opportunity to correct its own errors and at the same
time warn the court that a ruling adverse to the objector may supply a reason to
invoke a higher court’s appellate jurisdiction; and
(6) To avoid a waiver of inadmissibility Objections must be specific enough to
adequately inform the court the rule of evidence or of substantive law that
authorizes the exclusion of evidence [Riano]

CLASSIFICATION OF OBJECTIONS GENERAL OBJECTIONS

Do not clearly indicate to the judge the ground upon which the objections are
predicated. In cases where the incompetency of the evidence is so palpable that a
mere general objection is deemed sufficient and where the portion of the evidence
objected to is clearly pointed out, and its illegality is apparent on its face, then the
objection must be allowed. [Riano]

SPECIFIC OBJECTION
States why or how the evidence is irrelevant or incompetent.

FORMAL OBJECTION Directed against the alleged defect in the formulation of

the question SUBSTANTIVE Made and directed against the very nature of the
evidence

WHEN TO OBJECT

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Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the ground therefor becomes reasonably
apparent. [Bayani v. People, G.R. No. 155619 (2007)] The issue of the
admissibility of documentary evidence arises only upon formal offer thereof. This is
why objection to the documentary evidence must be made at the time it is
formally offered, and not earlier. [Republic v. Sandiganbayan, G.R. No. 188881
(2014)]

WAIVER OF OBJECTION
When the party should have objected but did not. The failure to point out a defect,
irregularity or wrong in the admission or exclusion of evidence. [Riano]

Effect of waiver A waiver of objection should not be construed as an admission

that the evidence is credible. The scope of the waiver is only either on the
relevance or competence of the evidence. [Riano]

Although hearsay evidence may be admitted because of lack of objection, it is

nonetheless without probative value, unless the proponent can show that the
evidence falls within the exception to the hearsay evidence rule. [Bayani v. People,
G.R. No. 155619 (2007)]

4. Repetition of an objection
REPETITION OF AN OBJECTION [Sec. 37, Rule 132]
A court may, motu proprio, treat the objection as a continuing one. [Keller v.
Ellerman & Bucknall Steamship, G.R. No. L-12308 (1918)] An objection must be
seasonably made at the time it is formally offered. Objection prior to the formal
offer is premature and could not be considered by the Court as basis for a
continuing one. [Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]

5. Ruling
GENERAL RULE:
Parties who offer objections to questions on whatever ground are entitled to a
ruling at the time the objection is made.

EXCEPTION:
Unless they present a question with regard to which the court desires to inform
itself before making its ruling. In that event it is perfectly proper for the court to
take a reasonable time to study the question presented by the objection; but a
ruling should always be made during the trial. [Lopez v. Valdez, G.R. No. L-9113
(1915)]

A reasonable time must not extend beyond the ninety (90)-day reglementary
period from the date of submission of the formal offer of evidence [Beltran v.
Paderanga, AM No. RTJ-03-1747 (2003)]

The reason for sustaining or overruling an objection need not be stated. However,
if the objection is based on two or more grounds, a ruling sustaining the objection
on one or some of them must specify the ground/s relied upon. Reservation of a
ruling by the court on an objection to the admissibility of evidence, without
subsequently excluding the same, amounts to a denial of an objection. [People v.
Tavera, G.R. No. L-23172 (1925))

POR LO QUE PUEDO VALER PRINCIPLE

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The Supreme Court encourages the admission or borderline evidence for whatever
it is worth or por lo que puedo valer. [Prats & Co. v. Phoenix Insurance, 52 Phil.
807 (1930))

NO EXPRESS RULING NEEDED The trial court need not make an express ruling
admitting the exhibits if there is no objection interposed to their admission.
[Herrera, citing Boix v. Rivera, CA Rep. 2d 104] The ruling of the court is required
only when there is an objection to a question or to the admission of an exhibit.
[Herrera] The ruling on an objection must be given immediately after an objection
is made.

However, objections based on irrelevancy and immateriality need no specification

or explanation. Relevancy or materiality of evidence is a matter of logic, since it is
determined simply by ascertaining its logical connection to a fact in issue in the
case. [CruzArevalo v. Querubin-Layosa, AM No. RTJ-06-2005 (2006)]

6. Striking out of an answer

MOTION TO STRIKE
A motion to strike out goes to admissibility and not to weight; evidence should not
be stricken out because of its little probative value. [Herrera]
(1) Court may sustain an objection and order the answer given to be
stricken off the record if:
(a) witness answers the question before the adverse party had the
opportunity to object, and
(b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the striking out of answers,
which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper. Other cases when motion to strike is proper
1. When the answer of the witness is unresponsive;
2. When the witness becomes unavailable for cross-examination through no
fault of the cross-examining party;
3. When the testimony is allowed conditionally and the condition for its
admissibility was not fulfilled; [Riano]
4. Where evidence has been properly received, and its effect has been
destroyed by other evidence, or its admissibility has afterward become
apparent; [Herrera] Motion to strike out should specify objection A motion to
strike out should specify the objection as well as the portion of the evidence
which is objected to. [Herrera]

7. Tender of excluded evidence

The procedure in Section 40 is known as offer of proof or tender of excluded
evidence and is made for purposes of appeal. If an adverse judgment is eventually
rendered against the offeror, he may in his appeal assign as error the rejection of
the excluded evidence. The appellate court will better understand and appreciate
the assignment of error if the evidence involved is included in the record of the
case [Cruz-Arevalo v. QuerubinLayosa, AM No. RTJ-06-2005 (2006)]

If an exhibit sought to be presented in evidence is rejected, the party producing it

should ask the courts permission to have the exhibit attached to the record. Any
evidence that a party desires to submit for the consideration of [a higher] court
must be formally offered by him otherwise it is excluded and rejected and cannot

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even be taken cognizance of on appeal. [Catacutan v. People, G.R. No. 175991
(2011)]

Before tender of excluded evidence is made, the evidence must have been
formally offered before the court. And before formal offer of evidence is made, the
evidence must have been identified and presented before the court [Yu v. CA, G.R.
No. 154115 (2005)]

Documents marked as exhibits during the hearing but which were not formally
offered in evidence cannot be considered as evidence nor shall they have
evidentiary value. [Vda. De Flores v. Workmen’s Compensation Commission, G.R.
No. L-43316 (1977)]

IX. REVISED RULES ON SUMMARY PROCEDURE

1) . CASES COVERED BY THE RULE [Sec. 1]
2) EFFECT OF FAILURE TO ANSWER [Sec. 6]
3) PRELIMINARY CONFERENCE AND APPEARANCES OF PARTIES [Sec. 7]

A. Cases covered by the Rule

CASES COVERED BY THE RULE [Sec. 1]
Rule shall govern the summary procedure in the MTC, MTC in Cities, MCTC in the
following cases falling within their jurisdiction:

CIVIL CASES
(1) Cases of forcible entry and unlawful detainer (a) Irrespective of the amount of
damages or unpaid rentals sought to be recovered (b) Where attorney’s fees are
awarded, it shall not exceed P20,000
(2) All other civil cases where total amount of plaintiff’s claim does not exceed
P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs (a)

EXCEPT: probate proceedings

CRIMINAL CASES
(1) Traffic laws, rules, and regulations violation
(2) Rental law violations
(3) Municipal or city ordinance violations
(4)All other criminal cases where penalty prescribed by law for offense charged is
imprisonment not exceeding 6 months and/or a fine not exceeding P1,000
(a) Irrespective of other imposable penalties, accessory or otherwise, or of civil
liability arising therefrom
(b) In offenses involving damage to property through criminal negligence, this rule
shall govern where imposable fine does not exceed P10,000

RULE SHALL NOT APPLY

(1) To a civil case where plaintiff’s cause of action is pleaded in the same
complaint with another cause of action subject to ordinary procedure
(2) To a criminal case where offense charged is necessarily related to another
criminal case subject to ordinary procedure

B. Effect of failure to answer

If defendant fail to answer the complaint within the period provided, court (motu
proprio or on motion of plaintiff) shall render judgment

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The judgment:
(1) As may be warranted by the facts alleged in the complaint and
(2) Limited to what is prayed for The court may in its discretion reduce the
amount of damages and attorney’s fees claimed for being excessive or
unconscionable without prejudice to the applicability of Sec. 4, Rule 18 ROC, if
there are 2 or more defendants

C. Preliminary conference and appearances of parties

A preliminary conference shall be held not later than 30 days after the last answer
is filed. Rules on pre-trial in ordinary cases shall be applicable unless inconsistent
with the provisions of this Rule Failure of plaintiff to appear in preliminary
conference
(1) Cause for dismissal of complaint
(2) Defendant who appears in the absence of plaintiff shall be entitled to judgment
on his counterclaim in accordance with Sec. 6
(3) All cross-claims shall be dismissed

If sole defendant shall fail to appear

(1) Plaintiff entitled to judgment in accordance with Sec. 6
(2) Rule shall not apply where one of 2 or more defendants sued under a common
cause of action who had pleaded a common defense shall appear at preliminary
conference

D. Prohibited pleadings and motions

(1) Motion to dismiss the complaint except on the ground of lack of jurisdiction;
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9)Dilatory motions for postponement;
(10) Reply;
(11)Third-party complaints; and
(12) Interventions.

E. Appeal

X. KATARUNGANG PAMBARANGAY
1. SCOPE AND APPLICABILITY OF THE RULE
2. CASES COVERED
3. SUBJECT MATTER FOR AMICABLE SETTLEMENT [Sec. 408, RA 7160]
4. WHEN PARTIES MAY GO DIRECTLY TO COURT
5. VENUE [Sec. 409, RA 7610]
6. EXECUTION
7. REPUDIATION
8. FLOWCHART

Page 342 of 360

A. Cases covered
All disputes, civil and criminal in nature, where parties actually reside in the SAME
CITY/MUNICIPALITY are subjected barangay conciliation.

B. Subject matter for amicable settlement

The lupon of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable settlement of all
disputes.

C. Venue
Parties Lupon
Between actual residents of the same Lupon of said barangay
barangay
Between actual residents of different Lupon of the barangay where the
barangays but within same respondent or any of the respondents
city/municipality actually resides at the option of
complainant
Involving real property or any interest Lupon of barangay were the real
therein property or the larger portion thereof is
located
Between parties arising at the workplace Lupon of the barangay were the
or at institutions of learning workplace or institution is located

D. When parties may directly go to court

In these cases, referral to barangay conciliation is not a condition precedent for
filing a case to court:
(1) Where one party is the government, or any subdivision or
instrumentality thereof;
(2) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;
(3) Offenses punishable by imprisonment exceeding one (1) year
or a fine exceeding Five thousand pesos (P5,000.00);
(4) Offenses where there is no private offended party;
(5) Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to
submit their differences to amicable settlement by an
appropriate lupon;
(6) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to
submit their differences to amicable settlement by an
appropriate lupon;
(7) Such other classes of disputes which the President may
determine in the interest of Justice or upon the
recommendation of the Secretary of Justice. The court in
which non-criminal cases not falling within the authority of
the lupon under this Code are filed may, at any time before
trial motu propio refer the case to the lupon concerned for
amicable settlement.

E. Execution
The amicable settlement or arbitration award may be enforced by execution by the
lupon within six (6) months from the date of the settlement. After the lapse of

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such time, the settlement may be enforced by action in the appropriate city or
municipal court. [Sec. 417, RA 7160]

F. Repudiation
Any party to the dispute may, within ten (10) days from the date of the
settlement, repudiate the same by filing with the lupon chairman a statement to
that effect sworn to before him, where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be sufficient basis for the issuance of the
certification for filing a complaint as hereinabove provided. [Sec. 418, RA 7160]

XI. RULES OF PROCEDURE FOR SMALL CLAIMS CASES

A. Scope and applicability of the Rule

SCOPE AND APPLICABILITY OF THE RULE
This Rule shall govern the procedure in actions before the MeTC, MTC in Cities,
MTC and MCTC for payment of money where the value of the claim does not
exceed P200,000 exclusive of interest and costs. [Sec. 2] This Rule is applicable in
all actions which are purely civil in nature where the claim or relief prayed for by
the plaintiff is solely for payment or reimbursement of sum of money. [Sec. 4]
These claims or demands may be;
(1) For money owned under any of the following;
(a) Contract of Lease;
(b) Contract of Loan;
(c) Contract of Services;
(d) Contract of Sale; or
(e) Contract of Mortgage;
(2) For liquidated damages arising from contracts; (3) The enforcement of a
barangay amicable settlement or an arbitration award involving a money claim
covered by this Rule pursuant to Sec. 417, LGC.

B. Commencement of small claims action; response

How commenced By filing with the court an accomplished and verified STATEMENT
OF CLAIM in duplicate [Sec. 6]

NOTE: The plaintiff must state in the Statement of Claim if he/she/it is engaged in
the business of lending, banking and similar activities, and the number of small
claims cases filed within the calendar year regardless of judicial station. [Sec. 6]
Plaintiffs engaged in the aforementioned businesses who have a branch within the
municipality/city where the defendant resides must file the Statement of Claim/s
in such municipality/city. Other plaintiffs are subject to the regular rules on venue.
[Sec. 7]

If a plaintiff who is engaged in the aforementioned businesses but misrepresents

that he/she/it is not engaged in them, then the Statement of Claim/s shall be
dismissed with prejudice; the plaintiff shall be meted the appropriate sanctions,
such as direct contempt. [Sec. 11]

Attachments to the Statement of Claim: [Sec. 6]

(1) Certification of Non-forum Shopping, Splitting a Single Cause of Action, and
Multiplicity of Suits
(2) Two(2) duly certified photocopies of the actionable document/s subject of the
claim
(3) Affidavits of witnesses and other evidence to support the claim

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NOTE: No evidence shall be allowed during the hearing which was not attached to
or submitted together with the Claim.

UNLESS good cause is shown for admission of additional evidence. [Sec. 6] No

formal pleading, other than the Statement of Claim, is necessary to initiate a small
claims action. [Sec. 6]

PAYMENT OF FILING FEES[Sec. 10]

GENERAL RULE: The prescribed legal fees prescribed under Rule 141 of the Rules
of Court must be paid by the plaintiff

EXCEPTION: allowed to litigate as an indigent. Any exemption from the payment

of filing fees shall be granted only by the SC.

If a claim is filed with a motion to sue as an indigent

It shall be referred to the Executive Judge for immediate action. If the motion is
granted, the case shall be raffled off or assigned to the court designated to hear
small claims cases. If the motion is denied, the plaintiff shall be given 5 days
within which to pay the docket fees – otherwise the case shall be dismissed
without prejudice. In no case shall any party – even one declared an indigent – be
exempt from the payment of the 1,000 fee for service of summons and processes.

If more than 5 claims are filed by one party within the calendar year,
additional filing fees shall be paid
(1) P500 for every claim filed after the 5th claim; and,
(2) An additional P100 (or a total of P600) for every claim filed after the 10th
claim; and,
(3) Another additional P100 (or a total of P700) for every claim filed after the 15th
claim, progressively and cumulatively.

DISMISSAL [Sec. 11]

After examination of allegations of the Claim, and such evidence attached thereto
– the court may dismiss outright the case for any of the grounds apparent for the
dismissal of a civil action. During the hearing, the court may, by itself, dismiss the
case if it is able to determine that there exists a ground for dismissal of the
Statement of Claim/s – even if such ground is not pleaded in the defendant’s
Response. If the case does not fall under the Rules on Small Claims, but instead
falls under Summary or Regular procedure, the case shall not be dismissed –
instead it shall be re-docketed under the appropriate procedure, and returned to
the court where it was assigned (subject to the payment of any deficiency in filing
fees). On the other hand, if a case is filed under Summary or Regular procedure
but actually falls under the Rules on Small Claims – the case shall be referred to
the Executive Judge for appropriate assignment.

RESPONSE
If no ground of dismissal is found, the court shall issue Summons directing
defendant to submit a verified response. [Sec. 12] The defendant shall file with
the court and serve on the plaintiff a duly accomplished and verified Response
within a non - extendible period of ten (10) days from receipt of summons. [Sec.
13] Attachments (to Response):
(1) Certified photocopies of documents
(2) Affidavits of witnesses
(3) Evidence in support [Sec. 13]

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NOTE: No evidence shall be allowed during hearing which was not attached or
submitted together with the Response. [Sec. 13] Should the defendant fail to file
his response within the required period, and likewise fail to appear on the date set
for hearing – the court by itself shall render judgment as may be warranted by the
facts alleged in the Statement of claim limited to what is prayed for. [Sec. 14]
Should the defendant fail to file his response within the required period, but
appears on the date set for hearing – the court shall ascertain what defense
he/she/it has to offer which shall constitute his/her/its Response, and proceed to
hear or adjudicate the case on the same day as if a Response has been filed. [Sec.
14]

NOTE: The following is not expressly provided in the section: “The court may, in
its discretion, reduce the amount of damages for being excessive or
unconscionable.”

C. Prohibited pleadings and motions

The following pleadings, motions, and petitions shall not be allowed in the cases
covered by this Rule:
(1) Motion to dismiss the compliant except on the ground of lack of jurisdiction;
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply and Rejoinder;
(11) Third-party complaints; and
(12) Interventions.
Page 22 of28

jJ
D. Appearances
The parties shall appear at the designated date of hearing personally or through a
representative authorized under a Special Power of Attorney to:
(1) Enter into an amicable settlement; and,
(2) Enter into stipulations or admissions of facts and of documentary exhibits [Sec.
16]

NOTE: There must be a valid cause to bring about the necessity of sending a
representative. No attorney shall appear in behalf of or represent a party at the
hearing, unless the attorney is the plaintiff or defendant. [Sec. 19]

FAILURE TO APPEAR
(1) If plaintiff fails to appear – it shall be a cause for dismissal without prejudice.
Defendant present shall be entitled to judgment on permissive counterclaim.
(2) If defendant fails to appear – same effect as failure to file Response.
(3) If both plaintiff and defendant fail to appear – dismissal with prejudice of both
the Statement of Claim and the Counterclaim. [Sec. 20]

Page 346 of 360

E. Hearing; duty of the judge
At the beginning of the court session, the judge shall read aloud a short statement
explaining the nature, purpose and the rule of procedure of small claims cases.
[Sec. 22]

At the hearing, the judge shall first exert efforts to bring the parties to an
amicable settlement of their dispute. [Sec. 23] If the attempt at an amicable
settlement fails, the hearing shall so proceed in an informal and expeditious
manner and shall be terminated within the same day. [Sec. 23]

Any settlement or resolution of the dispute shall be:

(1) Reduced into writing;
(2) Signed by the parties; and,
(3) Submitted to the court for approval.

F. Finality of judgment
After the hearing, the court shall render its decision within 24 hours from
termination of the hearing, based on the facts established by the evidence. The
decision shall immediately be entered by the Clerk of Court in the court docket for
civil cases and a copy thereof forthwith served on the parties. The decision shall be
final, executory, and unappealable. [Sec. 24]

XII. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

(1) Scope and Applicability of the Rule
(2) Civil Procedure
(3) Special Civil Actions
(4) Criminal Procedure
(5) Evidence

A. Scope and applicability of the Rule

These Rules shall govern the procedure in
(1) civil,
(2) criminal and
(3) special civil actions Involving enforcement or violations of environmental
and other related laws, rules and regulations such as but not limited to
the following:
(1) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(2) PD 705, Revised Forestry Code;
(3) PD 856, Sanitation Code;
(4) PD 979, Marine Pollution Decree;
(5) PD 1067, Water Code;
(6) PD 1151, Philippine Environmental Policy of 1977;
(7) PD 1433, Plant Quarantine Law of 1978;
(8)PD 1586, Establishing an Environmental Impact Statement System Including
Other Environmental Management Related Measures and for Other Purposes;
(9)RA 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or
Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public
Roads, in Plazas, Parks, School Premises or in any Other Public Ground;
(10) RA 4850, Laguna Lake Development Authority Act;
(11)RA 6969, Toxic Substances and Hazardous Waste Act;
(12) RA 7076, People’s Small-Scale Mining Act;
(13) RA 7586, National Integrated Protected Areas System Act including all laws,

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decrees, orders, proclamations and issuances establishing protected areas;
(14) RA 7611, Strategic Environmental Plan for Palawan Act;
(15) RA 7942, Philippine Mining Act;
(16) RA 8371, Indigenous Peoples Rights Act;
(17) RA 8550, Philippine Fisheries Code;
(18) RA 8749, Clean Air Act;
(19) RA 9003, Ecological Solid Waste Management Act;
(20) RA 9072, National Caves and Cave Resource Management Act;
(21) RA 9147, Wildlife Conservation and Protection Act;
(22) RA 9175, Chainsaw Act;
(23) R.A. No. 9275, Clean Water Act;
(24) RA 9483, Oil Spill Compensation Act of 2007; and
(25) Provisions in CA No. 141, The Public Land Act; RA 6657, Comprehensive
Agrarian Reform Law of 1988; RA 7160, Local Government Code of 1991; RA
7161, Tax Laws Incorporated in the Revised Forestry Code and Other
Environmental Laws [Amending the NIRC]; RA 7308, Seed Industry Development
Act of 1992; RA 7900, High-Value Crops Development
(26) Rules of Procedure for Environmental Cases Act; RA 8048, Coconut
Preservation Act; RA 8435, Agriculture and Fisheries Modernization Act of 1997;
RA 9522, The Philippine Archipelagic Baselines Law; RA 9593, Renewable Energy
Act of 2008; RA 9637, Philippine Biofuels Act; and other existing laws that relate
to the conservation, development, preservation, protection and utilization of the
environment and natural resources. [Sec. 3, Rule 1]

B. Civil procedure
WHO MAY FILE
Any real party in interest, including the government and juridical entities
authorized by law, may file a civil action involving the enforcement or violation of
any environmental law. [Sec. 4, Rule 2]

CITIZEN SUIT
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. Upon the filing of a citizen suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs prayed for,
requiring all interested parties to manifest their interest to intervene in the case
within fifteen days from notice thereof. The plaintiff may publish the order once in
a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order. Citizen suits filed under RA 8749 (Clean Air Act)
and RA 9003 (Ecological Solid Waste Management Act) shall be governed by their
respective provisions. [Sec. 5, Rule 2]

1. Prohibition against temporary restraining order and preliminary injunction

GENERAL RULE:
No court can issue a TRO or writ of preliminary injunction against lawful actions of
government agencies that enforce environmental laws or prevent violations
thereof.

EXCEPTION:
The Supreme Court [Sec. 10, Rule 2] Where the issuance of a TEPO is premised on
the violation of an environmental law or a threatened damage or injury to the
environment by any person, even the government and its agencies, the prohibition
against the issuance of a TRO or preliminary injunction is premised on the

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presumption of regularity on the government and its agencies in enforcing
environmental laws and protecting the environment. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme Court Sub-Committee]

2. Pre-trial conference; consent decree

The judge shall put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences. The judge shall exert best efforts to
persuade the parties to arrive at a settlement of the dispute. The judge may issue
a consent decree approving the agreement between the parties in accordance with
law, morals, public order and public policy to protect the right of the people to a
balanced and healthful ecology. Evidence not presented during the pre-trial,
except newly-discovered evidence, shall be deemed waived. [Sec. 5, Rule 3]

CONSENT DECREE
A judicially-approved settlement between concerned parties based on public
interest and public policy to protect and preserve the environment. [Sec. 4(b),
Rule 1]

PROHIBITED PLEADINGS AND MOTIONS

(1) Motion to dismiss the complaint;
(2) Motion for a bill of particulars;
(3) Motion for extension of time to file pleadings, except to file answer, the
extension not to exceed fifteen days;
(4) Motion to declare the defendant in default;
(5) Reply and rejoinder; and
(6) Third party complaint. [Sec. 2, Rule 2]

3. Prohibited pleadings and motions

PROHIBITED PLEADINGS AND MOTIONS
(1) Motion to dismiss the complaint;
(2) Motion for a bill of particulars;
(3) Motion for extension of time to file pleadings, except to file answer, the
extension not to exceed fifteen days;
(4) Motion to declare the defendant in default;
(5) Reply and rejoinder; and
(6) Third party complaint. [Sec. 2, Rule 2]

4. Temporary environmental protection order

GROUND FOR ISSUANCE
It appears from the complaint that—
(1) the matter is of extreme urgency and
(2) the applicant will suffer grave injustice and irreparable injury [Sec. 8, Rule 2]

5. Judgment and execution; reliefs in a citizen's suit

RELIEFS IN A CITIZEN SUIT
If warranted, the court may grant to the plaintiff proper reliefs which shall include
—
(1) the protection, preservation or rehabilitation of the environment and
(2) the payment of attorney’s fees, costs of suit and other litigation expenses The
court may also require the violator
(1) to submit a program of rehabilitation or
restoration of the environment, the costs of which
shall be borne by the violator or

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 (2) to contribute to a special trust fund for that
purpose subject to the control of the court [Sec.
1, Rule 5]

6. Permanent environmental protection order; writ of continuing mandamus

In the judgment, the court may—
a) convert the TEPO to a permanent EPO OR
b) issue a writ of continuing mandamus directing the performance of acts which
shall be effective until the judgment is fully satisfied [Sec. 3, Rule 5]

CONTINUING MANDAMUS
A writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or series of
acts decreed by final judgment which shall remain effective until judgment is fully
satisfied [Sec. 4(c), Rule 1]

The court may, by itself or through the appropriate government agency, monitor
the execution of the judgment and require the party concerned to submit written
reports on a quarterly basis or sooner as may be necessary, detailing the progress
of the execution and satisfaction of the judgment. The other party may, at its
option, submit its comments or observations on the execution of the judgment.
[Sec. 3, Rule 5]

NOTE: A continuing mandamus was issued in the case of MMDA v. Concerned

Residents of Manila Bay, G.R. No. 171947-48 (2008)]

7. Strategic lawsuit against public participation

SLAPP
A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse
that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of
environmental rights. [Sec. 1, Rule 6]

The SLAPP provisions apply not only to suits that have been filed in the form of a
countersuit, but also to suits that are about to be filed with the intention of
discouraging the aggrieved person from bringing a valid environmental complaint
before the court.

Illustrations:
(1) X files a complaint in an environmental case against A [violator of
environmental laws] and the A retaliates by filing a complaint for damages against
X;
(2) X is a witness in a pending environmental case against A and A retaliates by
filing a complaint for damages or libel against X; or
(3) X is an environmental advocate who rallies for the protection of environmental
rights and a complaint for damages is filed against him by A. [Annotation to the
Rules of Procedure for Environmental Cases, Supreme Court Sub-Committee]

C. Special proceedings

1. Writ of kalikasan
WRIT OF KALIKASAN

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 WHO MAY FILE
(1) natural or juridical person,
(2) entity authorized by law,
(3) people’s organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on
behalf of persons whose constitutional right to a balanced and healthful
ecology is violated…involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in two or more cities
or provinces.

ACTS COVERED BY THE WRIT

Unlawful act or omission of a public official or employee, or private individual
or entity, involving environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or provinces.
[Sec. 1, Rule 7]

WHERE TO FILE
The petition shall be filed with the Supreme Court or with any of the stations
of the Court of Appeals. [Sec. 3, Rule 7]

PROCEDURE
Filing of verified Petition with Certificate Against Forum Shopping
Issuance of Writ of Kalikasan within 3 days from filing of petition
Service of the Writ
Filing of a verified Return within a nonextendible period of ten [10] days
after service of the writ
Hearing [Court may call for preliminary conference]
Judgment

2. Prohibited pleadings and motions

(1) Motion to dismiss;
(2) Motion for extension of time to file return;
(3) Motion for postponement;
(4) Motion for a bill of particulars;
(5) Counterclaim or cross-claim;
(6) Third-party complaint;
(7) Reply; and
(8) Motion to declare respondent in default. [Sec. 9, Rule 7]

3. Discovery measures
The following discovery measures are available to all parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and things [Sec. 12, Rule 7]

The motion must show that a production order is necessary to establish the
magnitude of the violation or the threat as to prejudice the life, health or property
of inhabitants in two or more cities or provinces.

4. Writ of continuing mandamus

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WHEN AVAILABLE
(1) An agency or instrumentality of the government or officer thereof either:
a) unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein or
b) unlawfully excludes another from the use or enjoyment of such
right
(2) there is no other plain, speedy and adequate remedy in the ordinary course of
law [Sec. 1, Rule 8]

WHERE TO FILE
(1) Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred
(2) Court of Appeals
(3) Supreme Court [Sec. 2, Rule 8]

PROCEDURE
File a verified Petition with prayer that respondent be ordered to do an act or
series of acts until the judgment is fully satisfied, and to pay damages +
Certification Against Forum Shopping
Issuance of Writ of Continuing Mandamus and Order to Comment
Filing of Comment within 10 days after receipt of Order
Summary Hearing
Judgment
Return of the Writ

D. Criminal procedure
(a) WHO MAY FILE
(b) INSTITUTION OF CRIMINAL AND CIVIL ACTION
(c) ARREST WITHOUT WARRANT, WHEN VALID
(d) STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
[SLAPP]
(e) PROCEDURE IN THE CUSTODY AND DISPOSITION OF
SEIZED ITEMS
(f) BAIL
(g) ARRAIGNMENT AND PLEA
WHEN
PLEA-BARGAINING
(h) PRE-TRIAL
(i) SUBSIDIARY LIABILITIES

1. Who may file

(1) Offended party;
(2) Peace officer;
(3) Public officer charged with the enforcement of an environmental law [Sec. 1,
Rule 9]

2. Institution of criminal and civil action

When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged, shall be deemed instituted with the criminal

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action unless the complainant waives the civil action, reserves the right to institute
it separately or institutes the civil action prior to the criminal action. Unless the
civil action has been instituted prior to the criminal action, the reservation of the
right to institute separately the civil action shall be made during arraignment. In
case civil liability is imposed or damages are awarded, the filing and other legal
fees shall be imposed on said award in accordance with Rule 141 of the Rules of
Court, and the fees shall constitute a first lien on the judgment award. The
damages awarded in cases where there is no private offended party, less the filing
fees, shall accrue to the funds of the agency charged with the implementation of
the environmental law violated. The award shall be used for the restoration and
rehabilitation of the environment adversely affected. [Sec. 1, Rule 10]

3. Arrest without warrant, when valid

(1) When, in his presence, the person to be arrested has committed, is actually
committing or is attempting to commit an offense; or
(2) When an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it. Individuals deputized by the proper government
agency who are enforcing environmental laws shall enjoy the presumption of
regularity under Sec. 3(m), Rule 131 of the Rules of Court when effecting arrests
for violations of environmental laws. [Sec. 1, Rule 11]

4. Procedure in the custody and disposition of seized items

The applicable rules and regulations of the concerned government agency shall be
followed. In the absence of such rules and regulations, the following procedure
shall be observed:
(1) Inventory. The apprehending officer having initial custody and control of the
seized items, equipment, paraphernalia, conveyances and instruments shall
physically inventory and whenever practicable, photograph the same in the
presence of the person from whom such items were seized.
(2) Return. The apprehending officer shall submit to the issuing court the return of
the search warrant within five days from date of seizure or in case of warrantless
arrest, submit within five days from date of seizure, the inventory report,
compliance report, photographs, representative samples and other pertinent
documents to the public prosecutor for appropriate action.
(3) Sale Upon Motion. Upon motion by any interested party, the court may direct
the auction sale of seized items, equipment, paraphernalia, tools or instruments of
the crime. The court shall, after hearing, fix the minimum bid price based on the
recommendation of the concerned government agency. The sheriff shall conduct
the auction. The auction sale shall be with notice to the accused, the person from
whom the items were seized, or the owner thereof and the concerned government
agency. The notice of auction shall be posted in three conspicuous places in the
city or municipality where the items, equipment, paraphernalia, tools or
instruments of the crime were seized.
(4)Disposition of Proceeds. The proceeds shall be held in trust and deposited with
the government depository bank for disposition according to the judgment. [Sec.
2, Rule 12]

5. Bail
WRITTEN UNDERTAKING BY ACCUSED
(1) To appear before the court that issued the warrant of arrest for arraignment
purposes on the date scheduled, and if the accused fails to appear without
justification on the date of arraignment, accused waives the reading of the

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information and authorizes the court to enter a plea of not guilty on behalf of the
accused and to set the case for trial;
(2) To appear whenever required by the court where the case is pending; and
(3) To waive the right of the accused to be present at the trial, and upon failure of
the accused to appear without justification and despite due notice, the trial may
proceed in absentia. [Sec. 2, Rule 13] If the court grants bail, the court may issue
a hold-departure order in appropriate cases. [Sec. 1, Rule 13]

6. Arraignment and plea

WHEN
The court shall set the arraignment of the accused within fifteen [15] days from
the time it acquires jurisdiction over the accused, with notice to the public
prosecutor and offended party or concerned government agency that it will
entertain plea-bargaining on the date of the arraignment. [Sec. 1, Rule 15] G.2.

PLEA-BARGAINING
On the scheduled date of arraignment, the court shall consider plea-bargaining
arrangements. Where the prosecution and offended party or concerned
government agency agree to the plea offered by the accused, the court shall:
(1) Issue an order which contains the pleabargaining arrived at;
(2) Proceed to receive evidence on the civil aspect of the case, if any; and
(3) Render and promulgate judgment of conviction, including the civil liability for
damages. [Sec. 2, Rule 15]

7. Pre-trial
After the arraignment, the court shall set the pre-trial conference within thirty (30)
days. It may refer the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least three days prior to the pre-trial. [Sec. 1,
Rule 16]

Parties are required to be under oath in pretrial in order to obviate the use of false
or misleading statements at this stage. [Annotation to the Rules of Procedure for
Environmental Cases, Supreme Court SubCommittee]

8. Subsidiary liabilities
In case of conviction of the accused and subsidiary liability is allowed by law, the
court may, by motion of the person entitled to recover under judgment, enforce
such subsidiary liability against a person or corporation subsidiary liable under Art.
102 and 103 of the Revised Penal Code. [Sec. 1, Rule 18]

E. Evidence
PRECAUTIONARY PRINCIPLE
When human activities may lead to threats of serious and irreversible damage to
the environment that is scientifically plausible but uncertain, actions shall be taken
to avoid or diminish that threat. [Sec. 4(b), Rule 1] When there is a lack of full
scientific certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle in resolving
the case before it. The constitutional right of the people to a balanced and
healthful ecology shall be given the benefit of the doubt. [Sec. 1, Rule 20]

STANDARDS FOR APPLICATION

(1) Threats to human life or health;
(2) Inequity to present or future generations;

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(3) Prejudice to the environment without legal consideration of the environmental
rights of those affected. [Sec. 2, Rule 20]

DOCUMENTARY EVIDENCE

PHOTOGRAPHIC, VIDEO AND SIMILAR EVIDENCE MUST BE AUTHENTICATED

Photographs, videos and similar evidence of events, acts, transactions of wildlife,
wildlife by-products or derivatives, forest products or mineral resources subject of
a case shall be admissible when authenticated by—
(1) the person who took the same
(2) some other person present when said evidence was taken, or
(3) any other person competent to testify on the accuracy thereof. [Sec. 1, Rule
21]

ENTRIES IN OFFICIAL RECORDS AS PRIMA FACIE EVIDENCE

Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated. [Sec. 2, Rule 21]

A. Types of processes and procedures in alternative dispute resolution; comparison with

court-annexed mediation
Under AM No. 03-1-09 (Proposed Rule on Guidelines to be Observed by Trial Court
Judges and Clerks of Court in the Conduct or Pre-Trial and use of Deposition-
Discovery Measures), after the arraignment, the court shall forthwith set the pre-
trial conference within 30 days from the date of arraignment, and issue an order:
(1) Requiring the private offended party to appear thereat for purposes of
pleabargaining except for violations of the Comprehensive Dangerous Drugs Act of
2002, and for other matters requiring his presence;
(2) Referring the case to the Branch COC, if warranted, for a preliminary
conference to be set at least three days prior to the pretrial to mark the
documents or exhibits to be presented by the parties and copies thereof to be
attached to the records after comparison and to consider other matters as may aid
in its prompt disposition; and
(3) Informing the parties that no evidence shall be allowed to be presented and
offered during the trial other than those identified and marked during the pre-trial
except when allowed by the court for good cause shown. In mediatable cases, the
judge shall refer the parties and their counsel to the PMC unit for purposes of
mediation if available.

B. Domestic arbitration
Domestic Arbitration – an arbitration that is not international; governed by RA 876
(Arbitration Law) [Sec. 32, RA 9285]

C. Judicial review of arbitral awards

power of the Court to declare a law, treaty, international or executive agreement,
presidential decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional

D. Appeal from court decisions on arbitral awards

E. Venue and jurisdiction

An action for partition should be filed in the RTC of the province where the

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property or part thereof is situated. An action for partition is not a conveyance of
property. [Heirs of Urieta, Sr. v. Heirs of Urieta (2011)]
Because the controversy in partition is whether or not the plaintiff has a right to
partition, the issue is incapable of pecuniary estimation. [RIANO]

F. Special Rules of Court on Alternative Dispute Resolution

One the purposes of pre-trial is the consideration of the possibility of amicable
settlement, or of a submission to alternative modes of dispute resolution. [Sec.
2(a), Rule 18]

The pre-trial briefs of parties must include the parties’ statement of their
willingness to enter into an amicable settlement indicating the desired terms
thereof or to submit the case to any of the alternative modes of dispute resolution
[Sec. 6, Rule 18; AM No. 03-1-09-SC]

At the start of the pre-trial conference, the judge shall immediately refer the
parties and/or their counsel if authorized by their clients to the Philippine
Mediation Center mediation unit for purposes of mediation if available. IF
mediation fails, the judge will schedule the continuance of the preliminary
conference. [AM No. 03-1-09-SC]

The judge should not allow the termination of pre-trial siply because of the
manifestation of the parties that they cannot settle the case. He should expose the
parties to the advantages of pre-trial [AM No. 03-1-09-SC]

1. Precautionary principle
When human activities may lead to threats of serious and irreversible damage to
the environment that is scientifically plausible but uncertain, actions shall be taken
to avoid or diminish that threat. [Sec. 4(b), Rule 1]

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

STANDARDS FOR APPLICATION

(1) Threats to human life or health;
(2) Inequity to present or future generations;
(3) Prejudice to the environment without legal consideration of the environmental
rights of those affected. [Sec. 2, Rule 20]

2. Documentary evidence
PHOTOGRAPHIC, VIDEO AND SIMILAR EVIDENCE MUST BE
AUTHENTICATED
Photographs, videos and similar evidence of events, acts, transactions of wildlife,
wildlife by-products or derivatives, forest products or mineral resources subject of
a case shall be admissible when authenticated by—
(1) the person who took the same
(2) some other person present when said evidence was taken, or
(3) any other person competent to testify on the accuracy thereof. [Sec. 1, Rule
21]

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ENTRIES IN OFFICIAL RECORDS AS PRIMA FACIE EVIDENCE
Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated. [Sec. 2, Rule 21]

XIII. ALTERNATIVE DISPUTE RESOLUTION

1. Subject matter

2. Summary proceedings in certain cases

3. Prohibited submissions

Page 23 of28

/
4. Judicial relief involving the issue of existence, validity and
enforceability of arbitration agreements

5. Interim measures of protection

6. Enforcement and recognition or setting aside of an international

commercial arbitral award

7. Recognition and enforcement of a foreign arbitral award

8. Special civil action for certiorari

Page 24 of28

LIST OF RELEVANT MATERIALS

I. THE 1987 CONSTITUTION

II. LAWS

B.P. Blg. 129 as amended by:

a. Rep. Act No. 9276

b. Rep. Act No. 9252
c. Rep. Act No. 7902
d. Pres. Decree No. 1860

B.P. Blg. 881, Art. XXI

Pres. Decree No. 1083
Pres. Decree No. 1606

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as amended by
Rep. Act No. 10660
Rep. Act No. 1125
as amended by:
a. Rep. Act No. 3457
b. Rep. Act No. 9503
c. Rep. Act No. 9282
Rep. Act No. 7160,
ch.2,sec. 19
Rep. Act No. 7438
Rep. Act No. 8043
as amended by
Rep. Act No. 9523
Rep. Act No. 8369
as amended by
Rep. Act No. 9775
Rep. Act No. 8552
as amended by:
a. Rep. Act No. 8552
b. Rep. Act No. 10165
c. Rep. Act No. 11222
The Judiciary Reorganization Act of
1980
Omnibus Election Code of the
Philippines
Code of Muslim Personal Laws of the
Philippines
Creating a Special Court to be Known
as "Sandiganbayan" and for Other
Purposes
An Act Creating the Court of Tax
Appeals
Local Government Code of 1991
Rights of Persons Arrested, Detained,
or Under Custodial Investigation
Inter-Country Adoption Act of 1995
Family Courts Act of 1997
Domestic Adoption Act of 1998
Rep. Act No. 8974
Rep. Act No. 8975
Rep. Act No. 9048
as amended by
Rep. Act No. 10172
Rep. Act No. 9160
as amended by:
a. Rep. Act No. 9194
b. Rep. Act No. 10167
c. Rep. Act No. 10365
d. Rep. Act No. 10927

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Rep. Act No. 9165,
sec. 21
as amended by
Rep. Act No. 10640
Rep. Act No. 9262
as amended by
Rep. Act No. 9710,
sec. 41
Rep. Act No. 9285
Rep. Act No. 9372
Rep. Act No. 10142
An Act to Facilitate the Acquisition of
Right-Of-Way, Site or Location for
National Government Infrastructure
Projects and for Other Purposes
Prohibiting Lower Courts from
Issuing Temporary Restraining
Orders, Preliminary Injunctions or
Preliminary Mandatory Injunctions on
Government Infrastructure Projects
An Act Authorizing the City or
Municipal Civil Registrar or the
Consul General to Correct a Clerical
or Typographical Error in an Entry
and/or Change of First Name or
Nickname in the Civil Register
Without Need of a Judicial Order,
Amending for This Purpose Articles
376 and 412 of the Civil Code of the
Philippines
Anti-Money Laundering Act of 2001
Comprehensive Dangerous Drugs Act
of2002
Anti-Violence Against Women and
their Children Act of 2004
The Alternative Dispute Resolution
Act
Human Security Act of 2007
Financial Rehabilitation and
Insolvency Act of 2010

III. RULES
The Rules of Court
A.M. No. 19-10-20-SC 2019 Proposed Amendments to the
1997 Rules of Civil Procedure
A.M. No. 19-08-15-SC 2019 Proposed Amendments to the
Revised Rules on Evidence
A.M. No. 13-7-05-SB 2018 Revised Internal Rules of the
Sandiganbayan
A.M. No. 19-08-06-SC Rule on Administrative Search and

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Inspection under the Philippine
Competition Act
Resolution of the Court En Revised Rules on Summary
Banc Dated October 15, Procedure
1991
as amended by
A.M. No. 02-11-09-SC
Administrative Circular No. 14-93 Katarungang Pambarangay
A.M. No. 00-4-07-SC Rule on Examination of a Child Witness
A.M. No. 01-7-01-SC Rules on Electronic Evidence
A.M. No. 02-6-02-SC Rule on Adoption
A.M. No. 02-11-12-SC Rules on Provisional Orders
A.M. No. 03-04-04-SC Rules on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors
A.M. No. 06-11-5-SC Rule on DNA Evidence
A.M. No. 07-9-12-SC The Rule on the Writ of Amparo
A.M. No. 07-11-08-SC Special Rules of Court on Alternative Dispute Resolution
AM No. 08-1-16-SC The Rule on the Writ of Habeas Data
A.M. No. 08-8-7-SC
A.M. No. 09-6-8-SC
A.M. No. 10-4-1-SC
A.M. No. 12-8-8-SC
A.M. No. 12-12-11-SC &
A.M. No. 15-04-06-SC
A.M. No. 15-06-10-SC
A.M. No. 17-11-03-SC
A.M. No. 18-07-05-SC
The Revised Rules of Procedure for
Small Claims Cases
Rules of Procedure for Environmental
Cases
Rules of Procedure in Election
Contests before the Courts involving
Elective Municipal and Barangay
Officials
The Judicial Affidavit Rule
Financial Rehabilitation Rules of
Procedure
Revised Guidelines for Continuous
Trial of Criminal Cases
The Rule on Cybercrime Warrants
Rule on Precautionary Hold
Departure Order

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