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I. CIVIL PROCEDURE
RULE 1. GENERAL PROVISIONS
1. Q: Define the following terms:
1. Civil action
2. Criminal action
3. Special proceeding
A:
1. Civil Action is an action by which a party
sues another for the enforcement or
protection of a right, or the prevention or
redress of a wrong. A civil action may either
be ordinary or special. Both are governed
by the rules for ordinary civil actions, subject
to the special rules prescribed for special
civil action.
2. Criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law.
3. A special proceeding is a remedy by which
a party seeks to establish a status, a right,
or a particular fact. (SEC. 3, Rule 1, Rules
of Court)
2. Q: When does an action commence?
A: A civil action is commenced by the filing of the
original complaint in court, if an additional defendant
is impleaded in a later pleading, the action is
commenced with regard to him on the date of such
later pleading, irrespective whether the motion for its
admission, if necessary, is denied by the court. (Sec.
5, Rule 1, Rules of Court)
3. Q: distinguish actions in personam, in rem,
and quasi in rem.
A: In actions in personam, the judgment is for or
against a person directly. Jurisdiction over the
parties is required in actions in personam because
they seek to impose personal liability upon a person.
In a proceeding in rem or quasi in rem , jurisdiction
over the person of the defendant is not prerequisite
to confer jurisdiction on the court, provided that the
latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by seizure of the
property under legal process, by whereby it is
brought into actual custody of the law; or (b) as a
result of the institution of legal proceedings, in which
the power of the court is recognized and made
effective. (Noche, 2020 ed. p. 223)
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RULE 2. CAUSE OF ACTION
1. Q: What is a cause of action?
A: A cause of action is the act or omission by which
a party violates a right of another. (Sec. 1, Rule 2,
Rules of Court)
2. Q: Distinguish a cause of action from a right
of action.
A: Cause of action is the act or omission by which a
party violates the rights of another. Right of action
refers to the right of a plaintiff to bring an action and
to prosecute that action until final judgment.
Right of action is the legal right to sue while the
cause of action is the facts which give rise to a right
of action. (Riguera, 2020 ed. p. 104)
3. Q: May there be a cause of action without a
corresponding right of action?
A: Yes. there may be a cause of action without a
right of action if the latter is barred by prescription.
(Riguera, 2020 ed. p. 104)
4. Q: What are the elements of cause of action?
A: The elements of cause of action are the following:
1. The existence of a legal right in the plaintiff;
2. A correlative legal duty on the part of the
defendant; and
3. An act or omission of the defendant in
violation of plaintiffs right with consequential
injury or damage to the plaintiff for which he
may maintain an action for the recovery of
damages or other appropriate relief.
(Bangko Sentral ng Pilipinas v. Sps.
Ledesma, GR No. 211176, 6 February
2019) J. Leonen)
5. Q: What does it mean by “splitting a cause of
action” and its effects?
A: It is when a party institutes more than one suit
for a single cause of action. (Riguera, 2020 ed. p.
104)
If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground
for the dismissal of the others. (Sec. 4, Rule 2,
Rules of Court)
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6. Q: What are the rules governing joinder of
causes of action?
A: A party may in one pleading assert, in the
alternative or otherwise, as many causes of action
as he may have against an opposing party, subject
to the following conditions:
a. The party joining the causes of action
shall comply with the rules on joinder of
parties;
b. The joinder must not include special civil
action or actions governed by special rules;
c. If the causes of action are between the
same parties but the causes of action
pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional
Trial Court provided that one of the causes
of action falls within its jurisdiction and the
venue lies therein.
d. If the claims in all causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction. (Sec. 5, Rule 2, Rules of
Court)
7. Q: What is the totality rule?
A: If the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
(Rule 5(d), Sec. 2, Rules of Court)
RULE 3. PARTIES TO CIVIL ACTIONS
1. Q: Who may be parties in a civil action?
A: only natural or juridical persons, or entities
authorized by law may be parties in civil action.
(Sec. 1, Rule 3, Rules of Court)
2. Q: What are the requirements for a permissive
joinder of parties?
A: The following are the requirements for a
permissive joinder of parties:
1. Right to relief arises out of the same
transaction or series of transactions;
2. There is question of law or fact common to
all plaintiffs;
3. Joinder is not otherwise proscribed by
provision (Legaspi, 2020 ed., p. 37)
3. Q: What are the requisites of a class suit?
A: The requisites of a class suit are the following:
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1. The subject matter of controversy is one
of common or general interest to many
persons;
2. The parties affected are so numerous that
it is impracticable to bring them all to court;
and,
3. The parties bringing the class suit are
sufficiently numerous or representative of
the class and can fully protect the interests
of all concerned. (Sec. 11, Rule 3, Rules of
Court)
RULE 4. VENUE
1. Q: Distinguish venue and jurisdiction.
A: Jurisdiction and venue are not synonymous
concepts. Jurisdiction is conferred by law and not
subject to stipulation of parties. It relates to the
nature of the case. On the contrary, venue pertains
to the place where the case may be filed. Unlike
jurisdiction, venue may be waived and subjected to
agreement of the parties provided that it does not
cause them inconvenience. (Noche, 2020 ed., p.
326-327)
2. Q: What are the rules in actions against a non-
resident defendant?
A: For Personal action, if the non-resident defendant
is found in the Philippines, the venue is where the
plaintiff or any of the principal plaintiffs resides, or
where the nonresident defendant may be found, at
the election of the plaintiff. (Sec. 2, Rule 4, Rules
of Court)
For Real action, in case the non-resident defendant
is found in the Philippines, it 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, Rule 4, Rules
of Court)
If the non-resident defendant is not found in the
Philippines, and the action affects the personal
status of the plaintiff, or any property of said
defendant located in the Philippines, the action may
be commenced and tried in the court of the place
where the plaintiff resides or where the property or
any portion thereof is situated or found. (Sec. 3,
Rule 4, Rules of Court)
RULE 6. KINDS OF PLEADINGS
1. Q: What are the pleadings allowed by the
Rules of Court?
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A: The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)- party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to
the pleading asserting a claim against him or her.
An answer may be responded to by a reply only if
the defending party attaches an actionable
document. (Riguera, 2020 ed., p. 219)
2. Q: What are the kinds of defenses?
A: Defenses may either be negative or affirmative.
a. A negative defense is the specific denial of
the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action.
b. An affirmative defense is an allegation of a
new matter, which while hypothetically
admitting the material allegations in the
claimant’s pleading, would nevertheless
prevent or bar recovery by him. The
affirmative defenses include:
○ fraud;
○ prescription;
○ release;
○ payment;
○ illegality;
○ statute of frauds;
○ estoppel;
○ former recovery;
○ discharge in bankruptcy; and
○ any other matter by way of
confession and avoidance.
Affirmative defenses may also include grounds for
dismissal of a complaint, specifically, that the court
has no jurisdiction over the subject matter, that there
is another action pending between the same parties
for the same cause, or that the action is barred by a
prior judgment. (Sec. 5, Rule 6, Rules of Court)
3. Q: What is a Counterclaim?
A: A counterclaim is any claim which a defending
party may have against an opposing party. (Sec. 6,
Rule 6, Rules of Court)
4. Q: How is a counterclaim set up or pleaded?
A: A counterclaim may be setup as a separate and
independent pleading but, it may also be pleaded or
set up in an answer. The common practice of
denominating such an answer as “Answer with
compulsory/ Permissive Counterclaim/s.” (Riguera,
2020 ed., p. 221)
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5. Q: What are the requirements in order that a
counterclaim may be considered compulsory?
A:
1. It must be cognizable by a regular court of
justice.
2. It must arise out of or is connected to the
transaction or occurrence constituting the
subject matter of the opposing party’s claim.
3. It does not require for its adjudication the
presence of third parties over whom the
court cannot acquire jurisdiction.
4. It must be within the jurisdiction of the court
both as to the amount and the nature
thereof.
5. It must be existing at the time the defendant
files his answer. (Sec. 7, Rule 6, Rules of
Court)
6. Q: What are the tests devised by the Supreme
Court to determine whether a counterclaim is
compulsory or not?
A: To determine whether a counterclaim is
compulsory or not, the Supreme Court has devised
the following tests:
1. Are the issues of fact and law raised by the
claim and by the counterclaim largely the
same?
2. Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
3. Will it substantially be the same evidence to
support or refute plaintiff's claim as well as
the defendant’s counterclaim?
4. Is there any logical relation between the
claim and the counterclaim?
A positive answer to all four questions would
indicate that the counterclaim is compulsory.
(Noche, 2020 ed., pp. 343-344)
7. Q: What is a cross-claim?
A: A cross-claim is any claim by one party against a
co-party arising out of the transaction or occurrence
that is the subject matter either of the original action
or of a counterclaim therein. Such cross-claim may
cover all pr part of the original claim. (Sec. 8, Rule
6, Rules of Court)
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8. Q: How is a cross-claim raised?
A: if the defendant has a compulsory counterclaim
or cross-claim, the rule is that the defendant shall
set-up the same in his or her answer or raised in the
same action; otherwise the same is considered
barred. However, if the omission to set up
counterclaim or cross-claim is through oversight,
inadvertence, or excusable neglect, or when justice
requires, he or she may by leave of court, set up the
counterclaim or cross-claim by amendment before
judgment. On the other hand, when there is no
omission to file counterclaim or cross-claim but the
same has just matured or acquired by a party after
serving his or her responsive pleading, he or she
may with the permission of the court, be presented
as a counterclaim or cross-claim by supplemental
pleading before judgment. (Legaspi, 2020 ed., p.
131)
9. Q: When does a plaintiff files a reply?
A: A plaintiff may file a reply only if the defending
party attaches an actionable document to his
answer. (Sec. 10, Rule 6, Rules of Court)
10. Q: Is there a need for the plaintiff to file a
reply?
A: NO. Even if a plaintiff does not file such reply, all
the new matters alleged in the answer, including
those alleged in or relating to an actionable
document attached to the answer, are deemed
controverted. If the plaintiff wishes to interpose any
claims arising out of the new matters so alleged, he
shall set forth such claims in an amended or
supplemental complaint. (Riguera, 2020 ed., p.
257)
11. Q: When is a reply necessary?
A: Where the defense in the answer is based on an
actionable document, a reply specifically denying
under oath must be made; otherwise, the
genuineness and due execution of the document will
be deemed admitted. (Noche, 2020 ed., pp. 347-
348)
12. Q: When may a defendant file a rejoinder?
A: If an actionable document is attached to the reply,
the defendant may file a rejoinder if the same is
solely based on an actionable document.
13. Q: What are the requisites for a third-party
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action?
A: The requisites for a third-party action are the
following:
1. The party to be impleaded must not yet be
party to the action;
2. The claim against the third party defendant
must belong to the original defendant;
3. The claim of the original defendant against
the third-party defendant must be based
upon the plaintiff's claim against the original
defendant; and
4. The defendant is attempting to transfer to he
third-party defendant the liability asserted
against him by the original party. (Noche,
2020 ed., p. 350)
14. Q: When may the third (fourth, etc.)-party
complaint be denied?
A: The third (fourth, etc.) -party complaint shall be
denied admission, and the court shall require the
defendant to institute a separate action where:
1. The third (fourth, etc)-party defendant
cannot be located within thirty (30) days
from the grant of such leave;
2. Matters extraneous to the issue in the
principal case are raised; or
3. The effect would be to introduce a new and
separate controversy into the action.
(Riguera, 2020 ed., p. 260)
15. Q: What is the effect of dismissal of
complaint on third-party complaint?
A: If the complaint is dismissed, the third-party
complaint will also necessarily be dismissed,. If the
plaintiff appeals, the third-party plaintiff should also
appeal as a prudent step, so that in the event the
appellate court reverses the decision and renders
judgment against the defendant, judgment could
also be rendered against the third-party defendants.
(Noche, 2020 ed., p. 358)
RULE 7. PARTS AND CONTENTS OF A
PLEADING
1. Q: What is forum shopping?
A: Forum shopping consists of filing multiple suits in
different courts, either simultaneously or
successively, involving the same parties, to ask the
courts to rule on the same or related causes and/or
to grant the same or substantially same reliefs. The
Supreme Court has condemned this practice as it
creates the possibility of conflicting decisions being
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rendered by the different courts for the same issue.
(Noche, 2020 ed., p. 374)
2. Q: What is the test to determine forum
shopping?
A: The test to determine forum shopping is whether
in the two or more cases pending, there is identity of
(a) parties, (b) rights or causes of action, and (c)
reliefs sought. (Noche, 2020 ed., p. 374)
RULE 9. EFFECT OF FAILURE TO PLEAD
1. Q: What is the effect if defenses and
objections are not pleaded in a motion to
dismiss or in an answer?
A: They are deemed waived. However, when it
appears from the pleadings or the evidence on
record that the court has no jurisdiction over the
subject matter, that there is another action pending
between the same parties for the same cause, or
that the action is barred by prior judgment or by the
statute of limitations, the court shall dismiss the
claim.
2. Q: When may a defendant be declared in
default?
A: If the defendant fails to answer within the time
allowed therefor, the court shall upon motion of the
claiming party with notice to the defending party, and
proof of such failure, declare the defending party in
default. The court shall:
a. Proceed to render judgment granting the
claimant such relief as his pleading may
warrant; or
b. In its discretion, require the claimant to
submit evidence. (Riguera, 2020 ed., p.
349)
3. Q: What are the requisites before a party may
be declared in default?
A: The requisites before a party may be declared in
default are the following:
1. The court has validly acquired jurisdiction
over the person of the defending party either
by service of summons or voluntary
appearance;
2. The defending party failed to file an answer
within the time allowed therefor;
3. The claiming party filed a motion asking the
court to declare the defending party in
default;
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4. The defending party must be notified of the
motion to declare him in default;
5. The claiming party must prove that the
defending party has failed to answer within
the period provided by the Rule.
6. The motion to declare the defending party in
default must be heard. (Noche, 2020 ed.,
420)
4. Q: What is the remedy available to the
defendant declared in default?
A: A party declared in default may at any time after
notice thereof and before judgment, file a motion
under oath to set aside the order of default upon
proper showing that his or her failure to answer was
due to fraud, accident, mistake, or excusable
negligence and that he or she has a meritorious
defense. In such case, the order of default may set
aside on such terms and conditions as the judge
may impose in the interest of justice. (Sec. 3b, Rule
9, Rules of Court)
5. Q: What are the cases where declaration of
default is not applicable?
A: If the defending party in an action for annulment
or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the
Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a collusion
between the parties exist, and if there is no collusion,
to intervene for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3e, Rule
9, Rules of Court)
6. Q: What are the grounds for order of default?
A: The grounds for order of default are the following:
1. Failure to file a responsive pleading within
the reglementary period, and not failure to
appear at the hearing; and
2. Refusal to obey modes of discovery under
Rules 27 and 28, the court may render a
judgment by default against the disobedient
party even if the defendant had filed his
answer, under Section 39(c), Rule 29.
(Noche, 2020 ed., p. 423)
RULE 10. AMENDED AND SUPPLEMENTAL
PLEADINGS
1. Q: When is an amendment as a matter of
right?
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A: A party may amend his pleading once as a
matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any
time within ten (10) calendar days after it is served.
(Sec.2, Rule 10, Rules of Court)
2. Q: When is amendment by leave of court
proper?
A: The Rules provide that after the receipt by the
defendant of the responsive pleading, substantial
amendments may be made only upon leave of court.
But such leave of court shall be refused if it appears
to the court that the motion was made: (a) with intent
delay; (b) confer jurisdiction on the court; or (c) the
pleading stated no cause of action from the
beginning which could be amended. (Legaspi, 2020
ed., p. 106)
3. Q: When is a pleading deemed amended?
A: When issues not raised by the pleadings are tried
with the express or implied consent of the parties,
they shall be treated in all respects as if they had
been raised in the pleadings. No amendment of
such pleadings deemed amended is necessary to
cause them to conform to the evidence. (Sec. 5,
Rule 10, Rules of Court)
4. Q: What is the effect of amended pleadings?
A: An amended pleading supersedes the pleading
that it amends. However, admissions in superseded
pleadings may be offered in evidence against the
pleader, and claims or defenses alleged therein not
incorporated in the amended pleading shall be
deemed waived.
5. Q: What is a supplemental pleading?
A: Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just,
permit him or her to serve a supplemental pleading
setting forth transactions, occurrences or events
which have happened since the date of the pleading
sought to be supplemented. The adverse party may
plead thereto within ten (10) calendar days from
notice of the order admitting the supplemental
pleading. (Sec. 6, Rule 10, Rules of Court)
6. Q: What is the effect of amended pleadings?
A: An amended pleading supersedes the pleading
that it amends. However, admissions in superseded
pleadings may be offered in evidence against the
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pleader, and claims or defenses alleged therein not
incorporated in the amended pleading shall be
deemed waived. (Sec. 8, Rule 10, Rules of Court)
7. Q: Distinguish amended and supplemental
pleadings.
A: Amended pleadings are designed to include
matters before the filing of the bill but either
overlooked or not known at the time, whereas
supplemental pleadings are designed to cover
matters subsequently occurring but pertaining to the
original case. (Noche, 2020 ed., p. 440)
RULE 12. BILL OF PARTICULARS
1. Q: What is a bill of particulars?
A: A bill of particulars is a definite statement of any
matter which is not averred with sufficient
definiteness or particularity, to enable him or her
properly prepare his or her responsive pleading.
(Sec. 1, Rule 12, Rules of Court)
2. Q: Does the filing of a motion for bill of
particulars suspends the running of the period
to file an answer or s motion to dismiss?
A: Yes, the filing of a motion for a bill of particulars
suspends the running of the period to file an answer
or motion to dismiss. It is resumed upon the
amended complaint being filed in compliance with
the court’s order granting the motion for a bill of
particulars. (Noche, 2020 ed., p.463)
Under the Rules that, after the service of the bill of
particulars or of a more definite pleading or after
notice of denial of his or her motion, the moving party
may file his or her responsive pleading within the
period to which he or she was entitled at the time of
filing his or her motion, which shall not be less than
five (5) calendar days in any event. (Sec. 5, Rule 12,
Rules of Court)
RULE 13. FILING AND SERVICE OF
PLEADINGS, JUDGMENTS AND OTHER
PAPERS
1. Q: Distinguish filing from service of pleading
and other papers.
A: Filing is the act of submitting the pleading or other
paper to the court.
Service is the act of providing a party with a copy of
the pleading or any other court submission. If a party
has appeared by counsel, or one of them, unless
service upon the party and the party’s counsel is
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ordered by the Court. (Sec. 2, Rule 13, Rules of
court)
2. Q: What are the modes of service?
A: there are seven modes of service of pleadings,
motions, notices orders, judgments, and other court
submissions namely:
1. Personal service;
2. Registered mail;
3. Accredited courier;
4. Electronic mail;
5. Facsimile transmissions;
6. All other electronic means as may be
authorized by the Court; or
7. As provided for in international conventions
to which the Philippines is a party. (Noche,
2020 ed., p. 470, citing Sec. 5, Rule 13,
Rules of Court)
3. Q: What is a substituted service and when may
it be resorted to?
A: if personal service or service by mail cannot be
made, the office and place of residence of the party
or his counsel being unknown, service may be made
by delivering the copy to the clerk of court, with proof
of failure of both personal service and service by
mail. (Sec. 8, Rule 13, Rules of Court)
4. Q: What is a presumptive service?
A: There shall be presumptive notice to a party of a
court setting if such notice appears on the records to
have been mailed at least 20 days prior to the
scheduled date of hearing if the addressee is from
within the judicial region, or at least thirty (30)
calendar days if the addressee is from outside the
judicial region. (Sec. 10, Rule 13, Rules of Court)
RULE 14. SERVICE OF SUMMONS
1. Q: When is summons issued?
A: The court shall, within five (5) calendar days from
receipt of the initiatory pleading and proof of
payment of the requisite legal fees direct the clerk of
court to issue the corresponding summons to the
defendants. (Sec. 1, Rule 14, Rules of Court)
2. Q: When may substituted service be effected?
A: substituted service may be effected if for
justifiable causes, the defendant cannot, within a
period of thirty (30) calendar days from issue and
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receipt of summons, be served personally after at
least three attempts on two separate dates. (Sec. 6,
Rule 13, Rules of Court)
3. Q: How substituted service may be effected?
A:
1. By leaving copies of the summons at the
defendant's residence to a person at least
18 years of age and of sufficient discretion
residing therein;
2. By leaving copies of the summons at the
defendant's office or regular place of
business with some competent person in
charge thereof. A competent person
includes, but is not limited to, one who
customarily receives correspondences for
the defendant;
3. By leaving copies of the summons, if
refused entry upon making his or her
authority and purpose known, with any of
the officers of the homeowners’ association
or condominium corporation, or its chief
security officer in charge of the community
or the building where the defendant may be
found; and
4. By sending an electronic mail to the
defendant’s electronic mail address, if
allowed by the court. (Sec. 6(a)-(d), Rule
13, Rules of Court)
4. Q: Who may serve summons?
A: The summons may be served by:
1. Sheriff, his or her deputy, or other proper
court officer, and in case of failure of service
by them,
2. Plaintiff, together with the sheriff, with leave
of court. (Noche, 2020 ed., p. 513, citing
Sec. 3, Rule 14, Rules of Court)
5. Q: How service of summons may be made
outside the judicial region
A: In cases where summons is to be served outside
the judicial region of the court where the case is
pending the plaintiff shall be authorized to cause the
service of summons. (Sec. 3 par. 2, Rule 14, Rules
of Court)
6. Q: When does summons by publication may
be resorted by the plaintiff in an action in
personam?
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A: Within ninety (90) calendar days from the
commencement of action, service may, by leave of
court, be effected upon him or her by publication in
the following situations:
1. The identity of the defendant is unknown;
2. The whereabouts of the defendants are
unknown and cannot be ascertained by
diligent inquiry;
3. The defendant is a resident of the
Philippines but is temporarily out of the
country; or
4. In case the defendant does not reside and
cannot be found in the Philippines, the
remedy of the plaintiff in order to acquire
jurisdiction to try the case is to convert the
action into a proceeding in rem or quasi in
rem by attaching the property of the
defendant. (Philippine Commercial
International Bank v. Alejandro, GR No.
175587, 21 September 2007), J. Ynares-
Santiago)
7. Q: What are the instances when the
extraterritorial service of summons may be
availed of by the plaintiff?
A: In the case of non-resident defendants who are
not found in the Philippines, extraterritorial service of
summons is allowed only in actions in rem and quasi
in rem ,that is –
1. The action affects the personal status of the
plaintiff;
2. The action relates to, or the subject of which
is the property within the Philippines on
which the defendant has or claims a lien or
interest, actual or contingent;
3. The action in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest therein; and
4. When the property of the defendant has
been attached in the Philippines. (Noche,
2020 ed., p. 539)
RULE 17. DISMISSAL OF ACTIONS
1. Q: May a plaintiff file for dismissal of his
complaint?
A: Yes. This may be done either by filing a notice of
dismissal by the plaintiff.
This is a dismissal without prejudice. Thus, the
complaint may be re-filed.
Except when:
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1. The notice of dismissal by the plaintiff
provides that the dismissal is with prejudice;
or
2. The plaintiff has once dismissed in a
competent court an action based on or
including the same claim;
3. Even where the notice of dismissal does not
provide that it is with prejudice but it is
premised on the fact of payment by the
defendant of the claim involved. (Sec. 1,
Rule 17, Rules of Court)
2. Q: What is the two-dismissal rule?
A: As a general rule, a dismissal of an action under
Sec. 1, Rule 17 of the Rules of Court is without
prejudice, except when it is the second time that the
plaintiff has caused its dismissal. Accordingly, for a
dismissal to operate as an adjudication upon the
merits, the following requisites must be present:
1. There was a previous case that was
dismissed by a competent court;
2. Both cases were based on or included the
same claim; and
3. Both notices for dismissal were filed by the
plaintiff.
When a complaint is dismissed a second time, the
plaintiff is thereafter barred from seeking relief on
the same claim. (Noche, 2020 ed., pp. 588-589)
RULE 18. PRE-TRIAL
1. When is notice of pre-trial issued?
A: After the last responsive pleading has been
served and filed, the branch clerk of court shall
issue, within five (5) calendar days from filing, a
notice of pre-trial (Section 1, Rule 18).
The notice of pre-trial shall include the dates
respectively set for:
a. Pre-trial;
b. Court-Annexed Mediation; and
c. Judicial Dispute Resolution, if necessary
(Section 3, Rule 18).
2. Q: When is pre-trial conducted
A: It shall be conducted 60 calendar days from the
filing of the last responsive pleading (Section 1,
Rule 18).
3. Q: Nature of pre-trial
A: The pre-trial is mandatory and should be
terminated promptly (Section 2, Rule 18).
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4. Q: What is the effect of failure without just
cause of a party and counsel to appear during
pre-trial?
A: It shall result in a waiver of any objections to the
faithfulness of the reproductions marked, or their
genuineness and due execution (Section 2, Rule
18).
5. Q: What is the effect of failure without just
cause of a party and/or counsel to bring the
evidence required?
A: It shall be deemed a waiver of the presentation of
such evidence (Section 2, Rule 18).
6. Q: What is the effect of non-appearance of a
party in a pre-trial, court-annexed mediation and
judicial dispute resolution of (1) plaintiff and
counsel? (2) defendant and counsel
A: (1) When duly notified, the failure of the plaintiff
and counsel to appear without valid cause when so
required, shall cause the dismissal of the action. (2)
A similar failure on the part of the defendant and
counsel shall be cause to allow the plaintiff to
present his or her evidence ex-parte within ten (10)
calendar days from termination of the pre-trial. and
the court to render judgment on the basis of the
evidence offered (Section 5, Rule 18).
7. Q: When to file and serve pre-trial brief?
A: The parties shall file with the court and serve on
the adverse party, in such manner as shall ensure
their receipt thereof at least three (3) calendar days
before the date of the pre-trial, their respective pre-
trial briefs (Section 6, Rule 18).
8. Q: What is a pre-trial order?
A: A pre-trial order is the order issued by the court
within 10 days from the termination of the pre-trial
which shall recite in detail the matters taken up
(Riguerra Vo. 1, p. 491).
9. Q: When shall court-annexed mediation be
conducted?
A: After pre-trial and, after issues are joined, the
court shall refer the parties for mandatory court-
annexed mediation. The period for court-annexed
mediation shall not exceed thirty (30) calendar days
without further extension (Section 8, Rule 18).
10. Q: When shall judicial dispute resolution be
conducted?
A: Only if the judge of the court to which the case
was originally raffled is convinced that settlement is
still possible, the case may be referred to another
court for judicial dispute resolution. The judicial
dispute resolution shall be conducted within a non-
extendible period of fifteen (15) calendar days from
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notice of failure of the court-annexed mediation. If
judicial dispute resolution fails, trial before the
original court shall proceed on the dates agreed
upon (Section 9, Rule 18).
11. Q: What is the effect of failure to appear
during JDR?
A: In case of failure to appear during the JDR
proceedings, judge, may motu pro prio, or upon
motion, dismiss the case or allow the presentation of
evidence ex parte (Part 3, VIII, A.M. No. 11-1-6-SC-
PHILJA-February 2, 2011).
12. Q: When will a court motu proprio submit the
case for summary judgment or judgment on the
pleadings in its pre-trial order?
A: Should there be no more controverted facts, or
no more genuine issue as to any material fact or an
absence of any issue, or should the answer fail to
tender an issue, the court shall. without prejudice to
a party moving for judgment on the pleadings under
Rule 34 or summary judgment under Rule 35, motu
proprio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings, without need of position papers or
memoranda. In such cases, judgment shall be
rendered within ninety (90) calendar days from
termination of the pre-trial.
The order of the court to submit the case for
judgment pursuant to this Rule shall not be the
subject of appeal or certiorari (Section 10, Rule 18).
RULE 19. INTERVENTION
1. Q: Who may intervene in an action?
A: (1) A person who has a legal interest in the matter
in litigation, or in the success of either of the parties,
or an interest against both; or
(2)A person who is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an officer
thereof. (Section 1, Rule 19).
2. Q: When can the motion to intervene be filed?
A: At any time before rendition of judgment by the
trial court (Section 2, Rule 19).
3. Q: When must an answer to complaint-in-
intervention be filed?
A: It must be filed within fifteen (15) calendar days
from notice of the order admitting the same, unless
a different period is fixed by the court (Section 4,
Rule 19).
RULE 21. SUBPOENA
1. It is a process directed to a person requiring
him or her to:
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(1) 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 or her deposition.
(2) Require him to bring with him or her any
book s, documents, or other things under
his or her control, in which case it is called a
subpoena duces tecum (Section 1, Rule
21).
2. Q: Who may issue the subpoena?
A: The subpoena may be issued by:
(1) The court before whom the witness is
required to attend;
(2) The court of the place where the deposition
is to be taken;
(3) The officer or body authorized by law to do
so in connection with investigations
conducted by said officer or body; or
(4) Any Justice of the Supreme Court or the
Court of Appeals in any case or
investigation pending within the Philippines
(Section 2, Rule 21).
3. Q: What is the form and contents of
subpoena?
A: A subpoena:
(1) Shall state the name of the court and the title
of the action or investigation;
(2) Shall be directed to the person whose
attendance is required; and
(3) In the case of a subpoena duces tecum, it
shall also contain a reasonable description
of the book s, documents or things
demanded which must appear to the court
prima facie relevant (Section 3, Rule 21).
4. Q: What are the grounds for quashing a
subpoena duces tecum?
A: The court may quash a subpoena duces tecum
upon motion promptly made and, in any event, at or
before the time specified therein if:
(1) It is unreasonable and oppressive;
(2) The relevancy of the book s, documents or
things does not appear;
(3) If the person in whose behalf the subpoena
is issued fails to advance the reasonable
cost of the production thereof;
(4) The witness fees and kilometrage allowed
by these Rules were not tendered when the
subpoena was served (Section 4, Rule 21).
5. What are the grounds for quashing a
subpoena ad testificandum?
A: The court may quash a subpoena ad
testificandum on the ground that:
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(1) The witness is not bound thereby;
(2) The witness fees and kilometrage allowed
by these Rules were not tendered when the
subpoena was served (Section 4, Rule 21).
6. Q: How is subpoena served?
A: Subpoena may be served
(1) Personally;
(2) By substituted service of summons;
(Section 6, Rule 21)
(3) By registered mail or by electronic means
(Section 14[b], Rule 13)
7. Q: What is the viatory right of a witness?
A: It is the right of a witness not to be compelled to
attend in court under a subpoena if the witness
resides ore than one hundred (100) kilometers from
his or her residence to the place where he or she is
to testify by the ordinary course of travel (Riguerra
Vol. 1, page 512).
8. Q: What are other instances when a person
cannot be compelled to attend and/or deemed in
contempt of court for failure to obey a
subpoena?
A: A detention prisoner if no permission of the court
in which his or her case is pending was obtained
(Section 10, Rule 21).
RULES 23-29. MODES OF DISCOVERY
1. The modes or methods of discovery provided
in the Rules of Court:
(1) Depositions pending action or depositions
before action or pending appeal
(2) Interrogatories to parties
(3) Request for admission by adverse party
(4) Motion for production or inspection of
documents or things
(5) Motion for physical or mental examination of
a party.
2. Q: When may depositions pending action be
taken?
A: Upon ex parte motion of a party, the testimony of
any person, whether a party or not, may be taken by
deposition upon oral examination or written
interrogatories (Section 1, Rule 23).
3. Q: Will substitution of parties affect the right
use depositions previously taken?
A: No. Substitution of parties does not affect the
right to use depositions previously taken (Section 5,
Rule 23).
4. Q: What happens when an action has been
dismissed and another action involving the
same subject is afterward brought between the
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same parties or their representatives or Difference between a commission or letters

successors in interest? rogatory
A: All depositions lawfully taken and duly filed in the
Commission Letters rogatory
former action may be used in the latter as if originally
taken therefor (Section 5, Rule 23).

5. Q: What is the effect of taking depositions? Directives to officials of Requests to foreign

A: A party shall not be deemed to make a person his the issuing jurisdiction tribunals
or her own witness for any purpose by taking his or
her deposition (Section 5, Rule 23).

6. Q: What is the effect of using depositions? Generally, a Letter rogatory is a

A: The introduction in evidence of the deposition or commission is an request to a foreign court
any part thereof for any purpose other than that of instrument issued by a to give its aid, backed by
contradicting or impeaching the deponent makes the court of justice, or other its power, to secure
deponent the witness of the party introducing the competent tribunal, desired information.
deposition (Section 8, Rule 23). directed to a magistrate
by his official
Exception: designation or to an
The use by an adverse party of a deposition of an individual by name,
officer, director, or managing agent of a public or authorizing him to take
private corporation, partnership, or association the depositions of the
which is a party (Section 4[b]; Section 8, Rule 22). witnesses named
The right to take statements and the right to use therein
them in court have been kept entirely distinct. The
utmost freedom is allowed in taking depositions;
restrictions are imposed upon their use. As a result,
there is accorded the widest possible opportunity for Commissions are In letters rogatory, the
knowledge by both parties of all the facts before the taken in accordance methods of procedure
trial… The deposition serves the double function of with the rules laid down are under the control of
a method of discovery — with use on trial not by the court issuing the the foreign tribunal.
necessarily contemplated — and a method of commission
presenting testimony. Accordingly, no limitations
other than relevancy and privilege have been placed
on the taking of depositions, while the use at the trial
is subject to circumscriptions looking toward the use (Dulay v. Dulay, G.R. No. 158857; November 11,
of oral testimony wherever practicable (Santamaria 2005)
v. Cleary, G.R. No. 191722; June 15, 2016).
8. Q: Who are disqualified for deposition?
7. Q: Before whom may a deposition be taken? No deposition shall be taken before a person who is:
A: Within the Philippines, depositions may be taken 1. Relative within the sixth degree of
before any: consanguinity or affinity,
1. Judge 2. Employee or counsel of any of the parties
2. Notary public 3. Relative within the same degree, or
3. Person authorized to administer oaths employee of such counsel; or who is
(Section 10; Section 14, Rule 23). financially interested in the action (Section
13, Rule 23).
In a foreign state or country, depositions may be
taken before a: 9. Q: How is deposition before action taken?
1. Secretary of embassy or legation, consul A: person who desires to perpetuate his or her own
general, consul, vice-consul, or consular testimony or that of another person regarding any
agent of the Republic of the Philippines; matter that may be cognizable in any court of the
2. Person or officer as may be appointed by Philippines, may file a verified petition in the court of
commission or under letters rogatory; the place of the residence of any expected adverse
3. Person authorized to administer oaths party (Section 1, Rule 24)
(Section 11; Section 14, Rule 23).
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10. Q: How is deposition pending appeal taken?
A: The party who desires to perpetuate the
testimony may make a motion in the said court for
leave to take the depositions, upon the same notice
and service thereof as if the action was pending
therein.
designated relevant object or operation
thereon. The order shall specify the time,
place and manner of making the inspection
and taking copies and photographs, and
may prescribe such terms and conditions as
are just (Section 1, Rule 26)

The motion shall state:

1. The names and addresses of the persons to
be examined;
Production or inspection Subpoena duces tecum
2. The substance of the testimony which he
expects to elicit from each; and or documents or things
3. The reason for perpetuating their testimony under Rule 27
(Section 7, Rule 24).

11. Q: How may a party serve interrogatories

This is a pre-trial discovery This is used during the
upon an adverse party?
device intended to obtain trial proper and
A: Upon ex parte motion, any party desiring to elicit
facts or documents in order contemplates that the
material and relevant facts from any adverse parties
to prepare for trial; the party applying for its
shall file and serve upon the latter written
movant may opt to use such issuance intends to
interrogatories to be answered by the party served
facts or documents. present in evidence the
or, if the party served is a public or private
witness or the things
corporation or a partnership or association, by any
subject thereof.
officer thereof competent to testify in its behalf
(Section 1, Rule 25).

12. Q: When and how may a request for

A motion and a showing of This may be issued upon
admission be made?
good cause is required for an ex parte application,
A: At any time after issues have been joined, a party
an order for the production unless the purpose is to
may file and serve upon any other party a written
or inspection of documents call the adverse party.
request for the admission by the latter of the
or things
genuineness of any material and relevant document
described in and exhibited with the request or of the
truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall
An order for production or Subpoena duces tecum
be delivered with the request unless copies have
inspection of documents or may be directed to a
already been furnished (Section 1, Rule 26).
things can be directed inly to nonparty.
a party
13. Q: What is production or inspection or
documents or things?
A: Upon motion of any party showing good cause (Riguerra, Vol. 1, page 556-557)
therefor, the court in which an action is pending may:
a. order any party to produce and permit the 14. Q: What are the requirements for the
inspection and copying or photographing, issuance of an order for the physical and mental
by or on behalf of the moving party, of any examination of a party?
designated documents, papers, book s, A:
accounts, letters, photographs, objects or 1. There should be a motion for good cause
tangible things, not privileged, which shown and upon notice to the party to be
constitute or contain evidence material to examined and to all other parties.
any matter involved in the action and which 2. Such motion shall specify the time, place,
are in his or her possession, custody or manner, conditions and scope of the
control; or examination and the person or persons by
b. Order any party to permit entry upon whom it is to be made.
designated land or other property in his or 3. The action in which the motion is made is
her possession or control for the purpose of one in which the mental or physical
inspecting, measuring, surveying, or condition of a party is in controversy
photographing the property or any (Section 2, Rule 28).
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15. Q: What is the effect of refusal to comply with
modes of discovery?
A:
1. If a party or other deponent refuses to
answer any question upon oral examination,
the examination may be completed on other
matters or adjourned as the proponent of
the question may prefer (Section 1, Rule
29).
2. If the application is grated, the court may
require the refusing party or deponent or the
counsel advising the refusal, or both of
them, to pay the proponent (Section 1,
Rule 29).
3. If the application is denied, the court require
the proponent or the counsel advising the
filing of the application, or both of them, to
pay to the refusing party or deponent
(Section 1, Rule 29).
4. If a party or other witness refuses to be
sworn or refuses to answer any question
after being directed to do so by the court of
the place in which the deposition is being
taken, the refusal may be considered a
contempt of that court (Section 2, Rule 29).
5. Other consequences:
a. An order that the matters shall be taken
to be established for the purposes of the
action in accordance with the claim of
the party obtaining the order
b. An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or
prohibiting him or her from introducing
in evidence designated documents or
things or items of testimony, or from
introducing evidence of physical or
mental condition
c. An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing
the action or proceeding or any part
thereof, or rendering a judgment by
default against the disobedient party
d. In lieu of any of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of a
party for disobeying any of such orders
except an order to submit to a physical
or mental examination (Section 3, Rule
29).
6. The court may order requiring the party
being served with a request to admit the
genuineness but refused to do so to pay
applicant reasonable expenses (Section 4,
Rule 29).
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7. Failure of party to attend or serve answers,
the court on motion and notice, may strike
out all or any part of any pleading of that
party, or dismiss the action or proceeding or
any part thereof, or enter a judgment by
default against that party, and in its
discretion, order him or her to pay
reasonable expenses incurred by the other
including attorney’s fees (Section 5, Rule
29).
RULE 30. TRIAL
The schedule of the trial dates, for both plaintiff and
defendant shall be continuous and within the
following periods:
i. The initial presentation of plaintiff’s evidence shall
be set not later than thirty (30) calendar days after
the termination of the pre-trial conference. Plaintiff
shall be allowed to present its evidence within a
period of three (3) months or ninety (90) calendar
days which shall include the date of the judicial
dispute resolution, if necessary;
ii. The initial presentation of defendant’s evidence
shall be set not later than thirty (30) calendar days
after the court’s ruling on plaintiff’s formal offer of
evidence. The defendant shall be allowed to present
its evidence within a period of three (3) months or
ninety (90) calendar days;
iii. The period for the presentation of evidence on the
third (fourth, etc.)-party claim, counterclaim or cross-
claim shall be determined by the court the total of
which shall in no case exceed ninety (90) calendar
days; and
iv. If deemed necessary, the court shall set the
presentation of the parties’ respective rebuttal
evidence, which shall be completed within a period
of thirty (30) calendar days (Section 1, Rule 30).
The order of trial in civil actions
a. The plaintiff shall adduce evidence in
support of his or her complaint;
b. The defendant shall then adduce evidence
in support of his or her defense,
counterclaim, cross-claim and third-party
complaint;
c. The third-party defendant, if any, shall
adduce evidence of his or her defense,
counterclaim, cross-claim and fourth-party
complaint;
d. The fourth-party, and so forth, if any, shall
adduce evidence of the material facts
pleaded by them;
e. The 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 the
court;
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f. The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
upon their original case; and
g. Upon admission of the evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to argue
or to submit their respective memoranda or
any further pleadings (Section 5, Rule 30).
Hearing days and calendar call:
Trial shall be held from Monday to Thursday, and
courts shall call the cases at exactly 8:30 a.m. and
2:00 p.m. pursuant to Administrative Circular No. 3-
99. Hearing on motions shall be held on Fridays,
pursuant to Section 8, Rule 15 (Section 4, Rule 30).
How is offer of evidence made?
The offer of evidence, the comment or objection
thereto, and the court ruling shall be made orally in
accordance with Sections 34 to 40 of Rule 132
(Section 6, Rule 30).
1. Q: What is the rule regarding reception of
evidence?
A:
(1) The judge of the court where the case is
pending shall personally receive the
evidence to be adduced by the parties.
(2) However, in default or ex parte hearings,
and in any case where the parties agree in
writing, the court may delegate the
reception of evidence to its clerk of court
who is a member of the bar (Section 9,
Rule 30).
RULE 33. DEMURRER TO EVIDENCE
1. Q: What is a demurrer to evidence?
A: After the plaintiff has completed the presentation
of his or her evidence, the defendant may move for
dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief (Section
1, Rule 31).
2. Q: What is the effect if the motion is denied?
A: If his or her motion is denied, he or she shall have
the right to present evidence (Section 1, Rule 31).
3. Q: What is the effect if the motion is granted?
A: If the motion is granted but on appeal the order of
dismissal is reversed, he or she shall be deemed to
have waived the right to present evidence (Section
1, Rule 31).
4. Q: May the order denying the demurrer to
evidence be the subject of an appeal or a
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petition?
A: No. The order denying the demurrer to evidence
shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus before judgment
(Section 2, Rule 31).
RULES 34-36. JUDGMENT AND FINAL ORDERS
1. Q: When may the court render judgment on
the pleadings?
A: The court may motu proprio or on motion render
judgment on the pleadings if it is apparent that the
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleadings. Otherwise, the motion shall be subject to
the provisions of Rule 15 of these Rules (Section 2,
Rule 34).
2. Q: What are the instances where judgment on
the pleadings is not allowed?
A: Actions for:
(1) Declaration of nullity or annulment of
marriage or
(2) Legal separation (Section 1, Rule 34).
3. Q: When can a claimant move for summary
judgment?
A: A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the pleading
in answer thereto has been served, move with
supporting affidavits, depositions or admissions for
a summary judgment in his or her favor upon all or
any part thereof (Section 1, Rule 35).
4. Q: When can a defendant move for summary
judgment?
A: A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary
judgment in his or her favor as to all or any part
thereof (Section 2, Rule 35).
5. Q: What is a partial summary judgment?
A: If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court may, by
examining the pleadings and the evidence before it
and by interrogating counsel, ascertain what
material facts exist without substantial controversy,
including the extent to which the amount of damages
or other relief is not in controversy, and direct such
further proceedings in the action as are just (Section
4, Rule 35).
6. Q: May a partial summary judgment be
appealed separately? What is the nature of a
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partial summary judgment?
A: No.
A summary judgment was never intended to be
considered a "final judgment," as it does not "put an
end to an action at law by declaring that the plaintiff
either has or has not entitled himself to recover the
remedy he sues for."
The Rules provide for a partial summary judgment
as a means to simplify the trial process by allowing
the court to focus the trial only on the assailed facts,
considering as established those facts which are not
in dispute. After this sifting process, the court is
instructed to issue an order, the partial summary
judgment, which specifies the disputed facts that
have to be settled in the course of trial. In this way,
the partial summary judgment is more akin to a
record of pre-trial, an interlocutory order, rather than
a final judgment.
An order that does not finally dispose of the case,
and does not end the Court's task of adjudicating the
parties' contentions and determining their rights and
liabilities as regards each other, but obviously
indicates that other things remain to be done by the
Court, is "interlocutory”. Unlike a 'final judgment or
order, which is appealable, an 'interlocutory order
may not be questioned on appeal except only as part
of an appeal that may eventually be taken from the
final judgment rendered in the case (Philippine
Business Bank v. Chua, G.R. No. 178899;
November 15, 2010).
7. Q: What are the requirements for the rendition
of a judgment or final order?
A: A judgment or final order determining the merits
of the case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by
him, and filed with the clerk of the court (Section 1,
Rule 36).
8. Q: When is the entry of judgment made?
A: If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the
date of its entry (Section 2, Rule 36).
RULE 37-38. POST-JUDGMENT REMEDIES
1. Q: What are the grounds of a motion for new
trial?
A:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
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not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights; or
(b) Newly discovered evidence, which he could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result (Section 1, Rule 37).
2. Q: What are the grounds for a motion for news
trial?
A: The aggrieved party may also move for
reconsideration upon the grounds:
(1) That that the damages awarded are
excessive
(2) That the evidence is insufficient to justify the
decision or final order, or
(3) That the decision or final order is contrary to
law (Section 1, Rule 37).
3. Q: Is second motion for new trial allowed?
A: Generally, no. A motion for new trial shall include
all grounds then available and those not so included
shall be deemed waived.
However, a second motion for new trial is allowed,
based on a ground not existing nor available when
the first motion was made, may be filed within the
time herein provided excluding the time during which
the first motion had been pending (Section 5, Rule
37).
4. Q: Is second motion for reconsideration
allowed?
A: No. The Rules of Court provides that no party
shall be allowed a second motion for reconsideration
of a judgment or final order (Section 5, Rule 37).
5. Q: Is partial new trial or reconsideration
allowed? If yes, what is effect of a partial new
trial or reconsideration allowed?
A: Yes. If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a
part, or less than all of the matter in controversy, or
only one, or less than all, of the parties to it, the court
may order a new trial or grant reconsideration as to
such issues if severable without interfering with the
judgment or final order upon the rest (Section 7,
Rule 37).
When less than all of the issues are ordered retried,
the court may either enter a judgment or final order
as to the rest, or stay the enforcement of such
judgment or final order until after the new trial
(Section 8, Rule 37).
6. Q: Is the order denying a motion for new trial
or reconsideration may be appealed?
A: No. An order denying a motion for new trial or
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reconsideration is not appealable, the remedy being
an appeal from the judgment or final order (Section
9, Rule 37).
RULE 38. PETITION FOR RELIEF
1. Q: When may a party file a petition for relief
from a judgment, final order or other
proceeding?
A: When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party
in any court through fraud, accident, mistake, or
excusable negligence, he may file a petition in such
court and in the same case praying that the
judgment, order or proceeding be set aside (Section
1, Rule 38).
2. Q: When may a party file a petition for relief
from a denial of appeal?
A: When a judgment or final order is rendered by
any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he may file a
petition in such court and in the same case praying
that the appeal be given due course (Section 2,
Rule 38).
3. Q:When is denial of an appeal set aside?
A: Where the denial of an appeal is set aside, the
lower court shall be required to give due course to
the appeal and to elevate the record of the appealed
case as if a timely and proper appeal had been
made (Section 7, Rule 38).
4. Time for filing of petition
A petition for relief from judgment is an equitable
relief granted only under exceptional circumstances.
To set aside a judgment through a petition for relief,
parties must file the petition within 60 days from
notice of the judgment and within six (6) months after
the judgment or final order was entered; otherwise,
the petition shall be dismissed outright (Madarang
v. Spouses Morales, G.R. No. 199283, June 9,
2014, Leonen J).
RULE 39. EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
1. When execution is a matter of right:
a. Upon a judgment or order that disposes of
the action or proceeding
b. Upon the expiration of the period to appeal
therefrom if no appeal has been duly
perfected (Section 1, Rule 39).
2. Discretionary execution
The execution of a judgment or final order pending
appeal (Section 2a, Rule 39) or execution of several,
separate or partial judgments (Section 2b, Rule
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39).
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 (Section
3, Rule 39).
3. When final and executory judgment or order
executed:
1. A final and executory judgment or order may
be executed on motion within five (5) years
from the date of its entry.
2. After the lapse of such time, and before it is
barred by the statute of limitations, a
judgment may be enforced by action. The
revived judgment may also be enforced by
motion within five (5) years from the date of
its entry and thereafter by action before it is
barred by the statute of limitations (Section
6, Rule 39).
4. Execution of judgments for money
It is enforced by:
1. Immediate payment on demand
● The judgment obligor shall pay in
cash, certified bank check payable
to the judgment obligee, or any
other form of payment acceptable
to the latter, the amount of the
judgment debt under proper receipt
directly to the judgment obligee or
his authorized representative if
present at the time of payment
(Section 9a, Rule 39).
2. Satisfaction by levy
● The officer shall levy upon the
properties of the judgment obligor
of every kind and nature
whatsoever which may be disposed
of for value and not otherwise
exempt from execution (Section
9b, Rule 39).
3. Garnishment of debts and credits
● The officer may levy on debts due
the judgment obligor and other
credits, including bank deposits,
financial interests, royalties,
commissions and other personal
property not capable of manual
delivery in the possession or control
of third parties (Section 9c, Rule
39).
5. Execution of judgment for specific acts
1. Sale of real or personal property
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● The officer must sell such property,
describing it, and apply the
proceeds in conformity with the
judgment (Section 10(b), Rule 39).
2. Delivery or restitution of real property
● The officer shall demand the losing
party to peaceably vacate the
property within 3 working days, and
restore possession to judgment
obligee; otherwise, the officer shall
oust such disobedient party
(Section 10(c), Rule 39).
3. Removal of Improvements on property
subject of execution
● Officer shall not destroy, demolish,
or remove improvements except
upon special order of the court
(Section 10(d), Rule 39).
4. Delivery of personal property
● The officer shall take possession of
the same and forthwith deliver it to
the party entitled to satisfy any
judgment for money as therein
provided (Section 10(e), Rule 39).
6. Execution on special judgments
Requisites:
1. The judgment requires performance of any
act other than payment of money, or the
sale or delivery of real or personal property.
2. A certified copy of the judgment shall be:
i. Attached to the writ of execution; and
ii. Served by the office upon:
a. The party against whom the same
is rendered or
b. Any other person required thereby,
or by law, to obey the same, and
c. Such party or person may be
punished for contempt if he
disobeys such judgment (Section
11, Rule 39).
7. Third Party claims
If the property levied on is claimed by any person
other than the judgment obligor or his agent
(Section 16, Rule 39).
8. Remedies of a third-party claimant under
Section 16
1. He may avail of “terceria” by serving on the
levying officer an affidavit of his title or right
of possession over the levied property, and
serving also a copy to the judgment creditor;
2. He may file a case for damages against the
bond issued by the judgment debtor within
120 days from the date of the filing of the
bond;
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3. He may file "any proper action" to vindicate
his claim to the property.
9. Execution Sale
Sales of property under execution must be made:
1. At public auction
2. To the highest bidder and
3. To start at the exact time fixed in the notice
(Section 19, Rule 39).
II. CRIMINAL PROCEDURE
1. Jurisdiction over subject matter vis-à-vis
jurisdiction over the person of the accused.
Q: How is jurisdiction over subject matter and
jurisdiction over the person of the accused
conferred?
A: Jurisdiction over the subject matter is conferred
by law and any judgment, order or resolution issued
without it is void and cannot be given any effect
(Magno v. People, 647 SCRA 362, 371).
Jurisdiction over the person of the accused is
acquired upon his arrest or apprehension, with or
without a warrant, or his voluntary appearance or
submission to the jurisdiction of the court
(Valdapenas v. People, 16 SCRA 871, 875).
2. Requisites for the exercise of criminal
jurisdiction.
Q: What are the basic requisites before a court
can acquire jurisdiction over criminal cases?
A: The following are the basic requisites:
a) Jurisdiction over the subject matter;
b) Jurisdiction over the territory;
c) Jurisdiction over the person of the accused
(Cruz v. Court of Appeals, 388 SCRA 72,
83).
3. Injunctions in criminal prosecution
Q: When can an injunction be issued to restrain
criminal prosecution?
A: Generally, an injunction will not be granted to
restrain criminal prosecutions. Public interest
requires that criminal acts be immediately
investigated and prosecuted for the protection of the
society (Romero v. Chief of Staff, G.R. No. 84076,
February 20, 1989).
EXCEPTIONS: (1) When the injunction is necessary
to afford adequate protection to the constitutional
rights of the accused; (2) when it is necessary for the
orderly administration of justice or to avoid
oppression or multiplicity of actions; (3) when there
is a prejudicial question which is sub judice; (4) when
the acts of the officer are without or in excess of
authority; (5) where the prosecution is under an
invalid law, ordinance or regulation; (6) when double
jeopardy is clearly apparent; (7) where the Court has
no jurisdiction over the offense; (8) where it is a case
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of persecution rather than prosecution; (9) where the
charges are manifestly false and motivated by the
lust for vengeance; and (10) when there is clearly no
prima facie case against the accused and a motion
to quash on that ground has been denied (Samson
v. Hon Guingona, Jr. G.R. No. 123504, December
14, 2000).
RULE 110. PROSECUTION OF OFFENSES
1. Q: When is a complaint or information
considered sufficient?
A: A complaint or information is deemed sufficient if
it contains the following: (a) the name of the
accused; if the offense is committed by more than
one person, all of them shall be included in the
complaint or information; (b) the designation of the
offense given by the statute; (c) the acts or
omissions complained of as constituting the offense;
(d) the name of the offended part; (e) the
approximate date of the commission of the offense;
and (f) the place where the offense was committed
(Sec. 6, Rule 110, Rules of Court).
2. Q: What is “duplicity of offense”?
A: Duplicity presupposes that there is a joinder of
distinct offenses in one complaint or information.
The general rule is that a complaint or information
must charge only one offense (Sec. 13, Rule 110,
Rules of Court).
The rationale behind this rule prohibiting such is to
give the accused the necessary knowledge of the
charge against him and enable him to sufficiently
prepare his defense (People v. CA, G.R. No.
183652, February 2015).
EXCEPTION: A complaint or information may
contain two or more offenses when the law
prescribes a single punishment for various offense
as in complex and compound crimes under Art. 48
of the Revised Penal Code (Sec. 13, Rule 110,
Rules of Court).
3. Q: Where should the criminal action be
instituted?
A: The criminal action shall be instituted and tried in
the court of the municipality or territory (a) where the
offense was committed, or (b) where any of its
essential ingredients occurred (Sec. 15 [a], Rule
110, Rules of Court).
For the crime of perjury committed through the
making of false affidavit, venue may either be at the
place where the sworn statement is submitted OR
where the oath was taken as the taking of the oath
and the submission are both material ingredients of
the crime committed (Union Bank of the Philippine
Islands v. People, 667 SCRA 113, 134, February
28, 2012).
For violations of B.P. 22, which are categorized as
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transitory or continuing crimes, a suit on the check
can be filed in any of the places where any of the
elements of the offense occurred, that is where the
check is dawn, issued, delivered or dishonored
(Yalong v. People, 704 SCRA 195, 205, August
28, 2013).
RULE 111. PROSECUTION OF CIVIL ACTION
1. Rule on implied institution of civil action with
criminal action
Q: Is the civil action deemed instituted during
filing of criminal action?
A: Yes. When a criminal action is instituted, the civil
action for the recovery of the civil liability arising from
the offense charged shall be deemed instituted with
the criminal action (Sec. 1[a], Rule 111, Rules of
Court).
2. Q: X was driving the dump truck of Y along
Cattleya Street in Sta. Maria, Bulacan. Due to his
negligence, X hit and injured V who was
crossing the street. Lawyer L, who witnessed the
incident, offered his legal services to V. V, who
suffered physical injuries including a fractured
wrist bone, underwent surgery to screw a metal
plate to his wrist bone. On complaint of V, a
criminal case for Reckless Imprudence
Resulting in Serious Physical Injuries was filed
against X before the MTC of Sta. Maria. Atty. L,
the private prosecutor, did not reserve the filing
of a separate civil action. V subsequently filed a
complaint for Damages against X and Y before
the RTC of Pangasinan in Urdaneta where he
resides.
Instead of filing an Answer, X and Y move to
dismiss the complaint for damages on the
ground of litis pendentia. Is the motion
meritorious? Explain. (2010 BAR QUESTION)
S.A.: No, the motion to dismiss base on alleged litis
pendentia is without merit because there is no
identity of parties and subject matter in the two
cases. Besides, Art. 33 of the Civil Code and Rule
111, Sec. 3 of the Rules of Criminal Procedure
authorize the separate civil action for damages
arising from physical injuries to proceed
independently.
3. Q: What is the effect of death of the accused
on his civil liability?
A: If the accused dies after arraignment and during
the pendency of the criminal action, the civil liability
of the accused arising from the crime is extinguished
(Sec. 4, Rule 111, Rules of Court).
However, this rule does not apply to independent
civil actions mentioned in Sec. 3 of Rule 111 and civil
liabilities arising from sources of obligation not
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arising from the offense charged.
RULE 112. PRELIMINARY INVESTIGATION
1. The determination of probable cause is an
executive, not a judicial, function. It is generally not
for a court to disturb the conclusion made by a public
prosecutor. This is grounded on the basic principle
of separation of powers. However, “grave abuse of
discretion taints a public prosecutor’s resolution if he
[or she] arbitrarily disregards the jurisprudential
parameters of probable cause.” In such cases,
consistent with the principle of checks and balances
among the three (3) branches of government, a writ
of certiorari may be issued to undo the prosecutor’s
iniquitous determination.
Public prosecutors are not bound to adhere to a
party’s apparent determination of the specific crime
for which a person shall stand trial. Their discretion
“include[s] the right to determine which laws
prosecution will be pursued.”
Determining probable cause must be made in
reference to the elements of the crime charged.
“This is based on the principle that every crime is
defined by its elements, without which there should
be, at the most, no criminal offense.” (Tupaz v.
Office of the Deputy Ombudsman for the
Visayas, G.R. Nos. 212491-92, March 6, 2019).
3. Preliminary investigation vs. Inquest
proceeding
PRELIMINARY INQUEST
INVESTIGATION PROCEEDINGS
Conducted to To determine whether
determine probable the accused should
cause remain under custody
and be charged in court
4. In a neighborhood bicycle race, Mr. A bumped
the bicycle of one of his competitors, Mr. B, in
order to get ahead. This caused the latter to lose
control of the bike which hit the concrete
pavement and sent Mr. B crashing headfirst into
the sidewalk. By the time the organizers got to
him, Mr. B was dead.
Law enforcement authorities who witnessed the
incident arrested Mr. A without a warrant, and
immediately brought him to the inquest
prosecutor for the conduct of an Inquest.
Thereafter, an Information for Homicide was
filed by the inquest prosecutor without the
conduct of a preliminary investigation. The next
day, Mr. A requested for the conduct of
preliminary investigation.
Is the Inquest prosecutor’s filing of the
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Information without the conduct of preliminary
investigation proper? (2019 BAR QUESTION)
S.A.: Yes, the inquest prosecutor’s filing of the
Information without the conduct of preliminary
investigation is proper. When a person is lawfully
arrested without a warrant involving an offense
which requires a preliminary investigation, the
complaint or information may be filed by a
prosecutor without need of such investigation
provided an inquest has been conducted in
accordance with existing rules (Sec. 6, Rule 112 of
the Rules of Court).
5. Q: Is Mr. A’s request for the conduct of
preliminary investigation permissible? Explain.
(2019 BAR QUESTION)
S.A.: Yes, Mr. A’s request is permissible. After the
filing of the complaint or information in court without
a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to
adduce evidence in his defense (Sec. 6, Rule 112
of the Rules of Court).
RULE 113. ARREST
1. Q: When is a warrantless arrest lawful?
A: Generally, a warrant is needed in order to validly
effect the arrest. A warrantless arrest is merely the
exception and is allowed under the following
circumstances:
a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
b) When an offense has just been committed,
and he has probable cause to believe,
based on personal knowledge of facts or
circumstances, that the person to be
arrested has committed it; and
c) When the person to be arrested is a prisoner
who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or he has
escaped while being transferred from one
confinement to another. (Sec. 5, Rule 113,
Rules of Court)
2. What are the methods of arrest without a
warrant?
A:
a) By officer with warrant – 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,
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except when he flees or forcibly resists
before the officer has opportunity to so
inform him, or when the giving of such
information will imperil the arrest. (Sec. 7,
Rule 113, Rules of Court).
b) By officer without warrant – the officer shall
inform the person to be arrested of his
authority and the cause of the arrest, unless
the latter is either engaged in the
commission of an offense, is pursued
immediately after its commission, has
escaped, flees, or forcibly resists before the
officer has opportunity to so inform him, or
when the giving of such information will
imperil the arrest (Sec. 8, Rule 113, Rules
of Court).
c) By private person – he shall inform the
person to be arrested not of his authority to
arrest, but of his (a) intention to arrest him
and (b) the cause of his arrest. This
information need not be given under the
same conditions as when it is an officer
(Sec. 9, Rule 113, Rules of Court).
4. Q: What are the requisites of a valid warrant of
arrest?
A: (1) It must be issued upon probable cause which
must be determined personally by a judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce; (2)
the warrant must particularly describe the person to
be seized. (Section 2, Article III, 1987
Constitution).
RULE 114. BAIL
1. Q: What is bail?
A: 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 certain specified conditions
(Sec. 1, Rule 114, Rules of Court).
2. Q: When is bail a matter of right?
A: (1) Before or after conviction by the Metropolitan
Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial Court; and
(2) before conviction by the Regional Trial Court of
an offense not punishable by death, reclusion
perpetua, or life imprisonment (Sec. 4, Rule 114,
Rules of Court).
3. Q: When is bail a matter of discretion?
A: Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment (Sec. 5, Rule 114, Rules of
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Court).
RULE 116. ARRAIGNMENT AND PLEA
1. Q: What is arraignment?
A: It is the formal mode and manner of implementing
the constitutional right of an accused to be informed
of the nature and cause of the accusation against
him. Its purpose is t apprise the accused why he is
being prosecuted by the State. As such, it is an
indispensable requirement of due process and thus,
cannot be regarded lightly or brushed aside
peremptorily (Taglay v. Daray, 678 SCRA 640, 649,
August 22, 2012).
The absence of arraignment renders the
proceedings against the accused void (People v.
Palema, G.R. No. 228000, July 10, 2019).
2. Q: Should an accused be arraigned again
under an amended or substituted information?
A: Yes.
Where the accused has been already arraigned and
subsequently, the information was substantially
amended, an arraignment on the amended
information is mandatory because the accused has
the constitutional right to be informed of the
accusation against him and, more so, because the
accused had repeatedly called the attention of the
court to the absence of arraignment. If he is not
arraigned and is convicted under the second
information, the conviction constitutes reversible
error (Cabangangan v. Concepcion, 95 Phil. 87,
90).
However, the rule provides that only formal
amendments not prejudicial to the rights of the
accused are allowed after plea. The test whether an
accused is prejudiced by an amendment is to
determine whether a defense under the original
information will still be available even after the
amendment is made and if any evidence that an
accused might have would remain applicable even
in the amended information (Corpus, Jr. v. Hon.
Pamular, G.R. No. 186403, September 5, 2018,
J.Leonen).
RULE 117. MOTION TO QUASH
1. Q: Juancho entered a plea of guilty when he
was arraigned under an information for
homicide. To determine the penalty to be
imposed, the trial court allowed Juancho to
present evidence proving any mitigating
circumstance in his favor. Juancho was able to
establish complete self-defense.
Convinced by the evidence adduced by
Juancho, the trial court rendered a verdict of
acquittal.
May the Prosecution assail the acquittal without
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infringing the constitutional guarantee against
double jeopardy in favor of Juancho? Explain
your answer. (2017 BAR QUESTION)
S.A: Yes, the prosecution may assail Juancho’s
acquittal without violating his right against double
jeopardy. In the similar case of People v. Balisacan
(G.R. No. L-26376, August 31, 1966), the Supreme
Court held that if an accused who first entered a plea
of guilty was later on allowed to prove any mitigating
circumstance, his prior plea is deemed vacated. The
court should require him to plead anew on the
charge, or at least direct that a new plea of not guilty
be entered for him. Thus, in this case, since Juancho
was allowed to present evidence to prove mitigating
circumstances in his favor, there can be no double
jeopardy with respect to the prosecution’s appeal.
2. The information against Roger Alindogan for
the crime of acts of lasciviousness under Art.
366 of the Revised Penal Code avers:
“That on or about 10:30 o’clock in the
evening of February 1, 2010 at Barangay
Matalaba, Imus, Cavite and within the
jurisdiction of this Honorable Court, the
above-named accused, with lewd and
unchaste design, through force and
intimidation, did then and there, willfully,
unlawfully and feloniously commit
sexual abuse on his daughter, Rose
Domingo, a minor of 11 years old, either
by raping her or committing acts of
lasciviousness on her, against her will
and consent to her damaged an
prejudice. ACTS CONTRARY TO LAW.”
The accused wants to have the case dismissed
because he believes that the charge is confusing
and the information is defective. What ground or
grounds can he raise in moving for the quashal
of the information? Explain. (2016 BAR
QUESTION)
S.A.: The accused may move to quash the
information based on any of the following grounds:
(a) That the facts charged do not constitute an
offense; (b) That it does not conform substantially to
the prescribed form; and (c) That more than one
offense is charged except when a single punishment
for various offenses is prescribed by law (Sec. 3,
Rule 117, Rules of Court).
In People v. dela Cruz (G.R. Nos. 135554-56, June
21, 2002, 383 SCRA 410), the Supreme Court ruled
that the phrase “either by raping her or committing
acts of lasciviousness” does not constitute an
offense since it does not cite which among the
numerous sections or subsections of R.A. No. 7610
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has been violated by accused-appellant. Moreover,
it does not state the acts and omissions constituting
the offense, or any special or aggravating
circumstances attending the same, as required
under the rules of criminal procedure. These are
conclusions of law, and not facts. Thus, the
information violated accused’s constitutional right to
be informed of the nature and cause of the
accusation against him and therefore should be
quashed on the ground that the information charges
acts that do not constitute an offense.
3. Motion to quash vis-à-vis Demurrer to
evidence
Motion to Quash Demurrer to
Evidence
Filed before the accused Filed after the
enters his plea. prosecution has rests
its case.
Does not require a prior May be filed by the
leave of court before accused either with
filing. leave or without leave
of court.
Based on matters found Based on the ground of
on the face of the insufficiency of
information or complaint. evidence adduced by
the prosecution in
support of the
accusation.
Governed by Rule 117 of Governed by Rule 119
the Rules of Court. of the Rules of Court.
4. Q: What are the requisites of double jeopardy?
A: (1) a valid indictment; (2) before a court of
competent jurisdiction, (3) the arraignment of the
accused, (4) a valid plea entered by him, and (5) the
acquittal or conviction of the accused, or the
dismissal or termination of the case against him
without his express consent (Saldariega v.
Panganiban, G.R. Nos. 211933 and 211960, April
15, 2015).
5. Provisional dismissal
The provisional dismissal of the case does not
operate as an acquittal since its dismissal was made
with the express consent of the accused, thus, there
is no double jeopardy (Saldariega v. Panganiban,
G.R. Nos. 211933 and 211960, April 15, 2015).
Note that, under Sec. 7 of Rule 117, double jeopardy
will apply only if the case is dismissed without the
express consent of the accused (RIANO, 2016)
The dismissal shall become permanent if:
a) The case is not revived within one (1) year
after the issuance of the order of provisional
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dismissal with respect to offenses
punishable by imprisonment not exceeding
six (6) years or a fine of any amount, or both;
or
b) The case is not revived within two (2) years
after the issuance of the order of provisional
dismissal with respect to offenses
punishable by imprisonment of more than
six (6) years (Sec. 8, Rule 117, Rules of
Court).
RULE 118. PRE-TRIAL
1. Q: What are the purposes of a pre-trial?
A: A pre-trial is a proceeding conducted before the
trial of the case for the purpose of considering the
following:
a) Plea bargaining;
b) Stipulation of facts;
c) Marking for identification of evidence of the
parties;
d) Waiver of objections to admissibility of
evidence;
e) Modification of the order of trial if the
accused admits the charge but interposes
a lawful defense; and
f) Such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case (Sec. 1, Rule 118,
Rules of Court).
RULE 119. TRIAL
1. Q: When is the presence of accused required
by law?
A:
a) At arraignment and plea, whether of
innocence or of guilt;
b) During trial, whenever necessary for
identification purposes; and
c) At the promulgation of sentence, unless it is
for a light offense, in which case, the
accused may appear by counsel or
representative. At such stages of the
proceedings, his presence is required and
cannot be waived (People v. De Grano,
588 SCRA 550, 568-569).
2. Requisite before trial can be suspended on
account of absence of witness.
To justify the delay, the witness cannot be just any
witness. The rule describes such witness as an
“essential witness”. (RIANO, 2016)
a) His whereabouts are unknown; or
b) His whereabouts cannot be determined by
due diligence.
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3. Q: When can an accused be tried in absentia?
A:
a) The accused has already been arraigned;
b) The accused has been duly notified of the
trial or hearings; and
c) The absence of the accused or his failure to
appear is unjustified (Sec. 14[2], Art. III,
1987 Constitution of the Philippines;
Bernardo v. People, 520 SCRA 332, 343).
4. Discharge of accused to be a state witness;
requisites; effects
In the discharge of an accused in order that he may
be a state witness, the following conditions must be
present, namely:
1) Two or more accused are jointly charged
with the commission of an offense;
2) The motion for discharge is filed by the
prosecution before it rests it case;
3) The prosecution is required to present
evidence and the sworn statement of each
proposed state witness at a hearing in
support of the discharge;
4) The accused gives his consent to be a state
witness; and
5) The trial court is satisfied that:
a. There is absolute necessity for the
testimony of the accused whose
discharge is requested;
b. There is no other direct evidence
available for the proper prosecution
of the offense committed, except
the testimony of the accused;
c. The testimony of said accused can
be substantially corroborated in its
material points;
d. Said accused does not appear to be
the most guilty; and
e. Said accused has not at any time
been convicted of any offense
involving moral turpitude (Sec. 17,
Rule 119, Rules of Court;
Jimenez, Jr. v. People, G.R. No.
209195, September 17, 2014).
The discharge of an accused shall amount to an
acquittal and shall be a bar to another prosecution
for the same offense, except if the accused fails or
refuses to testify against his co-accused in
accordance with this sworn statement constituting
the basis for his discharge (Sec. 18, Rule 119,
Rules of Court).
5. Q: What is the effect of a demurrer to evidence
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by the accused with leave of court?
A: If the court grants the demurrer to evidence filed
with leave of court, the case is dismissed. As a rule,
an order granting the demurrer to evidence amounts
to an acquittal (Mupas v. People, 659 SCRA 56,
67).
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce
evidence in his defense (Sec. 23, Rule 119, Rules
of Court).
6. Q: What is the effect of a demurrer to evidence
by the accused filed without leave of court?
A: If the demurrer is granted, the case is dismissed
and the effect is an acquittal.
If the demurrer is denied, the accused waives the
right to present evidence and submits the case for
judgment on the basis of the evidence for the
prosecution (Sec. 23, Rule 119, Rules of Court).
7. Q: In an Information filed before the RTC, Mr.
C was charged with Carnapping for supposedly
taking the motorcycle of Mr. O and joyriding with
it around the city. When Mr. C was arraigned, he
entered a plea of “not guilty” to the charge. After
the prosecution rested its case, Mr. C proceeded
to file a demurrer to evidence. The demurrer was
denied by the RTC. Would Mr. C be allowed to
present evidence in his defense after the denial
of his demurrer? Explain. (2019 BAR QUESTION)
S.A.: No, accused can no longer present evidence
in the absence of any showing that his demurrer to
evidence is with leave of court.
Rule 119, Section 23 of the Rules of Court provides
that if the court denies a demurrer to evidence
without leave of court, the accused waives the right
to present evidence and submits the case for
judgment on the basis of the evidence for the
prosecution.
9. Based on the preceding question, assuming
that the demurrer was granted by the RTC and
the prosecution’s motion for reconsideration
thereto is denied, what is the prosecution’s
further procedural recourse? Explain. (2019 BAR
QUESTION)
S.A.: The prosecution’s remedy is to file a petition
for certiorari under Rule 65 because the grant of a
demurrer to evidence in criminal cases constitutes
acquittal. Jurisprudence provides that a judgment of
acquittal may only be assailed via a petition for
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certiorari under Rule 65 of the Rules of Court
(Villareal v. Aliga, G.R. No. 166995, January 13,
2014).
RULE 120. JUDGMENT
1. Judgment; requisites
The following are the requisites of a judgment:
a) It must be written in the official language;
b) It must be personally and directly prepared
and signed by the judge; and
c) It must contain clearly and distinctly a
statement of (i) the facts, and (ii) the law
upon which it is based (Sec. 1, Rule 120,
Rules of Court).
2. Q: What are the contents of a judgment?
A: A judgment of conviction shall state the following:
a) The legal qualification of the offense
constituted by the acts committed by the
accused;
b) The aggravating and mitigating
circumstances which attended the
commission of the offense;
c) The participation of the accused in the
offense whether as (i) principal, (ii)
accomplice, or (iii) accessory;
d) The penalty imposed upon the accused;
e) The civil liability or damages caused by his
wrongful act or 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 or waived (Sec. 2, Rule 120,
Rules of Court; Bacolod v. People, 701
SCRA 229, 239, July 15, 2013).
A judgment of acquittal shall:
a) State whether or not the evidence of the
prosecution (i) absolutely failed to prove the
guilt of the accused, or (ii) merely failed to
prove his guilt beyond reasonable doubt;
b) Determine if the act or omission from which
the civil liability might arise did not exist
(Sec. 2, Rule 120, Rules of Court).
3. Variance Doctrine
As a rule, an accused can only be convicted of the
crime with which he or she is charged. This rule
proceeds from the Constitutional guarantee that an
accused shall always be informed of the nature and
cause of the accusation against him or her. An
exception to this is the rule on variance under Rule
120, Sec. 4 of the Revised Rules of Criminal
Procedure. Rule 120, Section 4 of the Revised
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Rules of Criminal Procedure simply means that if
there is a variance between the offense charged and
the offense proved, an accused may be convicted of
the offense proved if it is included in the offense
charged. An accused may also be convicted of the
offense charged if it is necessarily included in the
offense proved (Osorio v. People, G.R. No.
207711, July 2, 2018).
4. Q: Should an accused be present during
promulgation of judgment?
A: As a rule, a judgment is promulgated by reading
it in the presence of the accused and any judge of
the court in which it was rendered. However, if the
conviction is merely for a light offense, the judgment
may be pronounced in the presence of his counsel
or representative. The judgment may be
promulgated by the clerk of court if the judge is
absent or outside the province or city (Sec. 6, Rule
120, Rules of Court).
If the accused is confined or detained in another
province or city, the judgment may be promulgated
by the executive judge of the Regional Trial Court
having jurisdiction over the place of confinement or
detention upon request of the court which rendered
the judgment (Sec. 6, Rule 120, Rules of Court).
If the accused fails to appear at the scheduled
promulgation of judgment despite notice, the
promulgation shall not be suspended; instead, it
shall be made by (a) recording the judgment in the
criminal docket and (b) serving him a copy thereof at
his last known address or through his counsel (Sec.
6, Rule 120, Rules of Court).
If the judgment is for conviction, and the failure of
the accused to appear was without justifiable cause,
the consequences are more sever. He shall also
lose the remedies available in the Rules of Court
against judgment and the court shall order his arrest.
The rule, though, gives him a chance to avail of the
remedies against the judgment as long as within
fifteen (15) days from promulgation of judgment, he
surrenders and files a motion for leave of court to
avail of the remedies. He shall state the reason for
his absence and, if he proves the absence was
justified, he shall be allowed to avail of the remedies
within fifteen (15) days from notice (Sec. 6, Rule
120, Rules of Court; People v. De Grano, 588
SCRA 550, 569-570).
5. Q: When does a judgment become final?
A: A judgment becomes final:
a) After the lapse of the period for perfecting
an appeal, or
b) When the sentence has been partially or
totally satisfied or served, or
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c) When the accused has waived in writing his
right to appeal, or
d) Has applied for probation (Sec. 7, Rule 120,
Rules of Court).
RULE 121. NEW TRIAL OR RECONSIDERATION
1. Q: What are the grounds for new trial?
A: A new trial shall be granted on any of the
following grounds:
a) That errors of law have been committed
during the trial;
b) That irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial; or
c) That new and material evidence has been
discovered (Sec. 2, Rule 121, Rules of
Court).
2. Q: What are the grounds for reconsideration
of the judgment?
A: A reconsideration of the judgment shall be
granted on any of the following grounds:
a) Errors of law in the judgment which requires
no further proceedings; and
b) Errors of fact in the judgment which also
requires no further proceedings (Sec. 3,
Rule 121, Rules of Court).
3. Q: What are the requisites before a new trial
may be granted on ground of newly discovered
evidence?
A:
a) The evidence must have been discovered
after the trial;
b) It could not have been previously
discovered and produced at the trial even
with the exercise of reasonable diligence;
c) It is a new and material evidence;
d) If introduced and admitted, it would probably
change the judgment (Sec. 2, Rule 121,
Rules of Court).
Case law has it that newly discovered evidence
refers to that which (a) is discovered after trial; (b)
could not have been discovered and produced at the
trial even with the exercise of reasonable diligence;
(c) is material, not merely cumulative, corroborative
or impeaching; and (d) is of such weight that it would
probably change the judgment if admitted. The most
important requisite is that the evidence could not
have been discovered and produced at the trial even
with reasonable diligence; hence, the term “newly
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discovered” (Tadeja v. People, 691 SCRA 252,
266, February 13, 2013).
4. Q: What are the effects of granting a new trial
or reconsideration?
A: In all cases, when a new trial or reconsideration
is granted, the original judgment shall be set aside
or vacated and a new judgment shall be rendered
accordingly (Sec. 6, Rule 121, Rules of Court.
The other effects would depend upon the ground
availed of in granting the new trial or
reconsideration, thus:
a) When the new trial was granted on the
grounds of errors of law or irregularities
during the trial, all the proceedings and
evidence affected thereby shall be (a) set
aside, and (b) taken anew; and the court, in
the interest of justice, may allow the
introduction of additional evidence.
b) When the new trial is granted on the ground
of newly-discovered evidence, the evidence
already adduced shall stand. The newly
discovered, together with other evidence
which the court may allow in interest of
justice shall be taken and considered
together with the evidence already in the
record (Sec. 6, Rule 121, Rules of Court).
RULE 122. APPEAL
1. Q: What is the effect of an appeal?
A:
In criminal case, an appeal throws the case wide
open for review and the reviewing tribunal can
correct erros or even reverse the trial court’s
decision on grounds other than those that the parties
raised as errors (Guy v. People, G.R. Nos. 166794-
96, 2009).
When an accused appeals from the sentence of the
trial court, he waives the constitutional safeguards
against double jeopardy and throws the whole case
open to the review of the appellate court (People v.
Torres, G.R. No. 189850, 2014).
2: Q: What is the effect of appeal by any of
several accused?
A:
a) An appeal taken by one or more several
accused shall not affect those who did not
appeal, except insofar as the judgment of
the appellate court is favorable and
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applicable to the latter (Sec. 11, Rule 122,
Rules of Court)
NOTE: The phrase “did not appeal” should not be
interpreted literally to deprive those who appealed
their convictions from the benefits of the provision.
The provision applies “without regard as to the filing
or non-filing of an appeal by a co-accused, as long
as the judgment is favorable to him” (People v.
Valdez, 690 SCRA 563, 572, February 13, 2013).
b) The appeal of the offended party from the
civil aspect of shall not affect the criminal
aspect of the judgment or order appealed
from.
c) Upon perfection of the appeal, the execution
of the judgment or final order shall be stayed
as to the appealing party (Sec. 11, Rule
122, Rules of Court).
NOTE: The execution of the judgment or final order
appealed from shall be stayed as to the appealing
party only. The rule does not provide that the
execution of the judgment shall be stayed also as to
the non-appealing party (RIANO, 2016).
3. Q: What are the grounds for dismissal of
appeal?
A: An appeal must be taken within fifteen (15) days
from: (a) promulgation of the judgment; or (b) from
notice of the final order appealed from. This period
for perfecting an appeal shall be suspended from the
time a motion for new trial or reconsideration is filed
until notice of the order overruling the motion has
been served upon the accused or his counsel at
which time the balance of the period begins to run
(Sec. 6, Rule 122, Rules of Court).
Filing a notice of appeal outside the said period, i.e.
more than a year later, is a ground for dismissal of
said appeal (Ramirez v. People, 706 SCRA 667,
671-672, 2013).
In the CA, the appeal may be dismissed if the
appellant fails to file his brief within the time
prescribed, except where the appellant is
represented by a counsel de oficio. The dismissal
may be motu proprio or upon motion of the appellee
with notice to the appellant in either case (Sec. 8,
Rule 124, Rules of Court).
The CA may also, upon motion of the appellee or
motu proprio, dismiss the appeal if the appellant
escapes from prison or confinement, jumps bail or
flees to a foreign country during the pendency of the
appeal (RIANO, 2016).
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RULE 126. SEARCH AND SEIZURE c) The complainant and the witnesses shall be
1. Search Warrant vis-à-vis Warrant of Arrest examined on these facts personally known
Search Warrant Warrant of Arrest to them;
Order in writing in the Order directed to the d) The statements must be in writing and
name of the Republic peace officer to execute under oath; and
of the Philippines the warrant by taking the e) The sworn statements of the complainant
signed by the judge person stated therein and the witnesses, together with the
and directed to the into custody so that he affidavits submitted shall be attached to the
peace officer to search may be bound to answer record (Sec. 5, Rule 126, Rules of Court).
personal property for the commission of the
described therein and offense. Does not 4. Q: What are the remedies from unlawful
to bring it to court. become stale. search and seizure?
Validity is for 10 days
only. A:
To be served only in May be served on any 1) A motion to quash the search warrant;
daytime unless the day and at any time of 2) A motion to suppress as evidence the
affidavit alleges that day or night. objects illegally taken;
the property is on the
person or in the place EXCLUSIONARY RULE: any evidence obtained
to be searched. through unreasonable searches and seizures shall
Must personally Searching examination be deemed inadmissible for any purpose in any
conduct an of witnesses is not proceedings.
examination of the necessary.
complainant and 3) Replevin, if the objects are illegally
witnesses.
possessed (Sec. 14, Rule 126, Rules of
Examination must be Judge is merely called
Court).
probing. Not enough to upon to examine and
merely adopt the evaluate the report of the
questions and answers fiscal and the evidence 5. Q: Distinguish Warrant to Search, Seize, and
asked by a previous presented. Examine Computer Data (WSSECD) AND
investigator. Warrant to Examine Computer Data (WECD).
(2019 BAR QUESTION)
2. Probable cause for issuance of search warrant
Probable cause means “the existence of such facts A:
and circumstances which would lead a reasonably A Warrant to Search, Seize, and Examine Computer
discreet and prudent man to believe that an offense Data (WSSECD) is similar to search warrant, except
has been committed and that the objects sought in that the subject matter of the same is computer data
connection with the offense are in the place to be (Sec. 6.2, A.M. No. 17-11-03-SC). On the other
searched” (Century Chinese Medicine Co. v. hand, a Warrant to Examine Computer Data
People, 709 SCRA 177, 2013). (WECD) is a warrant issued when a computer
device or system is previously seized by another
There is no exact test for the determination of lawful method, such as a warrantless arrest. Before
probable cause in the issuance of search warrants. the search of said device is made, a WECD must
It is a matter wholly dependent on the finding of trial first be applied and issued (Sec. 6.9, A.M. No. 17-
judges in the process of exercising their judicial 11-03-SC).
function (Worldwide Web Corporation v. People,
G.R. No. 161106, 2014). RULE 127. PROVISIONAL REMEDIES IN
CRIMINAL CASES
3. Personal examination by judge of the 1. Q: What are the available provisional remedies
applicant and witnesses in criminal cases?
A: The provisional remedies in civil actions, insofar
a) The examination must be personally as they are applicable, may be availed of in
connection with the civil action deemed instituted
conducted by the judge;
with the criminal action (Sec. 1, Rule 127, Rules of
b) The examination must be in the form of Court).
searching questions and answers;
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2. Attachment
When the civil action is properly instituted in the
criminal action as provided in Rule 111, the offended
party may have the property of the accused attached
as security for the satisfaction of any judgment that
may be recovered from the accused in the following
cases:
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 officer,
officer of a corporation, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other
person in 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; and
d) When the accused resides outside the
Philippines (Sec. 2, Rule 127, Rules of
Court).
III.I. Rule 41.
APPEAL FROM THE REGIONAL TRIAL COURTS
Q: What judgment or orders may be appealed?
A: An appeal may be taken from a judgment or final
order that completely disposes of the case, or of a
particular matter therein when declared by these
Rules to be appealable (Section 1, Rule 41).
Q: What judgments or orders may not be
appealed?
A:
No appeal may be taken from:
a) An order denying a petition for relief or any
similar motion seeking relief from
judgement;
b) An interlocutory order;
c) An order disallowing or dismissing an
appeal;
d) An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
or duress, or any other ground vitiating
consent;
e) An order of execution;
f) A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom; and
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g) An order dismissing an action without
prejudice.
In any of the foregoing circumstances, the aggrieved
party may file an appropriate special civil action as
provided in Rule 65 (Section 1, Rule 41).
Q: What are the different modes of appeal?
A:
a) Ordinary appeal. - The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice
of appeal with the court which rendered the
judgment or final order appealed from and
serving a copy thereof upon the adverse
party. No record on appeal shall be required
except in special proceedings and other
cases of multiple or separate appeals where
the law or these Rules so require. In such
cases, the record on appeal shall be filed
and served in like manner.
b) Petition for review. - The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in
accordance with Rule 42.
c) In all cases where only questions of law are
raised or involved, the appeal shall be to the
Supreme Court by petition for review on
certiorari in accordance with Rule 45
(Section 2, Rule 41).
Q: Periods of ordinary appeals
A:
1) The appeal shall be taken within 15 days
from notice of the judgment or final order
appealed from (Section 3, Rule 41).
2) Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days from notice
of the judgment or final order (Section 3,
Rule 41).
3) In habeas corpus cases, appeal shall be
taken within 48 hours from notice of
judgment or final order appealed from
(Section 3, Rule 41).
4) In writ of amparo and writ of habeas data
cases, the period of appeal shall be 5
working days from notice of the adverse
judgment or final order (Riguerra Vol 1,
Page 739).
Q: When is a party’s appeal deemed perfected as
to him
A: A party’s appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of
appeal in due time.
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A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal
filed in due time (Section 9, Rule 41).
Q: When does the trial court lose jurisdiction?
A: In appeals by notice of appeal, the court loses
jurisdiction over the case upon
1. the perfection of the appeals filed in due
time and
2. the expiration of the time to appeal of the
other parties.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon
1. the approval of the records on appeal filed
in due time and
2. the expiration of the time to appeal of the
other parties (Section 9, Rule 41).
Q: After the defendant has taken an appeal, may
the RTC dismiss the appeal?
A: Yes, trial court may, motu proprio or on motion,
dismiss the appeal provided that:
1. The original record or the record on appeal
is not yet transmitted to the appellate court
2. The dismissal may be made only on the
ground that it was taken out of time, or that
the docket and other lawful fees were not
paid within the reglementary period
(Section 13, Rule 41).
III.II. Rule 45
Appeal by Certiorari to the Supreme Court
Q: What is petition for review on certiorari?
A: A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the
Supreme Court a verified petition for review on
certiorari (Section 1, Rule 45).
Under Rule 45, only questions of law may be raised.
There is a question of law “when there is doubt or
controversy as to what the law is on a certain set of
facts.” The test is whether the appellate court can
determine the issue raised without reviewing or
evaluating the evidence (Villamor Jr v. Umale, G.R.
No. 172843, September 24, 2014, Leonen, J).
Nevertheless, the Supreme Court admits exceptions
to its sound judicial discretion. For the Supreme
Court to review the facts of the case, these
exception must be alleged, substantiated, and
proved by the parties (Toquero v. Crossworld
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Marine Services, Inc., G.R. No. 213482, June 26,
2019, Leonen, J). Question of fact exists “when the
doubt or differences arises as to the truth or the
falsehood of alleged facts (Benito v. People, G.R.
No. 204644, February 11, 2015, Leonen, J).
There are 10 recognized exceptional circumstances
wherein the Court admits and reviews questions of
fact. These are enumerated in Medina v. Mayor
Asistio, Jr. as follows:
1) When the conclusion is a finding grounded
entirely on speculation, surmises or
conjectures;
2) When the inference made is manifestly
mistaken, absurd or impossible;
3) Where there is a grave abuse of discretion;
4) When the judgment is based on a
misapprehension of facts;
5) When the findings of fact are conflicting;
6) When the Court of Appeals, in making its
findings, went beyond the issues of the case
and the same is contrary to the admissions
of both appellant and appellee;
7) The findings of the Court of Appeals are
contrary to those of the trial court:
8) When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
9) When the facts set forth in the petition as
well as in the petitioner's main and reply
briefs are not disputed by the respondents;
and
10) The finding of fact of the Court of Appeals is
premised on the supposed absence of
evidence and is contradicted by the
evidence on record (Caranto v. Caranto,
G.R. No. 202889, March 2, 2020).
Q: What are the grounds for the dismissal or
denial of the petition?
A:
1. The failure of the petitioner to comply with
any of the foregoing requirements regarding
the payment of the dock et and other lawful
fees, deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof.
2. The Supreme Court may on its own initiative
deny the petition on the ground that the
appeal is without merit, or is prosecuted
manifestly for delay, or that the questions
raised therein are too unsubstantial to
require consideration (Section 5, Rule 45).
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Q: Is Rule 45 applicable to both civil and criminal
cases?
A: Yes. The mode of appeal prescribed in this Rule
shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment
(Section 9, Rule 45).
IV. Rule 47
Annulment of Judgment or Final Orders and
Resolution
1. Rule 47 is not a mode of appeal but an
INDEPENDENT CIVIL ACTION. (Fria v. Alcayde,
G.R. No. 194262, February 28, 2018) An action for
annulment of judgment is a recourse equitable in
character, allowed only in exceptional cases as
where there is no available or adequate remedy.
(Baclaran Marketing Corporation v. Sibulo, G.R.
No. 189881, April 19, 2017)
2. Q: What are the statutory requirements set
forth in Rule 47?
A: (1) The remedy is available only when the
petitioner can no longer resort to the ordinary
remedies of new trial, appeal, petition for relief or
other appropriate remedies through no fault of the
petitioner;
(2) The grounds for the action of annulment of
judgment are limited to either extrinsic fraud or lack
of jurisdiction;
(3) The action must be filed within four years from
the discovery of the extrinsic fraud; and if based on
lack of jurisdiction, must be brought before it is
barred by laches or estoppel; and
(4) The petition must be verified, and should allege
with particularity the facts and the law relied upon for
annulment, as well as those supporting the
petitioner's good and substantial cause of action or
defense, as the case may be. (Pinausukan
Seafood House v. Far East Bank & Trust
Company, G.R. No. 159926, January 20, 2014)
3. Q: What are the grounds for Annulment of
Judgment or Final Orders and Resolution?
a. Extrinsic Fraud or Collateral Fraud
As a ground for annulment of judgment, extrinsic
fraud must arise from an act of the adverse party,
and the fraud must be of such nature as to have
deprived the petitioner of its clay in court. The fraud
is not extrinsic if the act was committed by the
petitioner's own counsel. (Sibal v. Buquel, G.R. No.
197825, January 11, 2016)
b. Lack of Jurisdiction over the Subject Matter and
over the Person
As a general rule, the defense of lack of jurisdiction
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under Rule 47 may be raised at any stage of the
proceedings, however, these must be brought
before it is barred by laches. Laches, in a general
sense, is failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a
right within a reasonable time, warranting a
presumption that the party entitled to assert it either
has abandoned it or declined to assert it. It has been
held that a party cannot invoke the jurisdiction of a
court to secure affirmative relief against his
opponent and, after obtaining or failing to obtain
such relief, repudiate or question that same
jurisdiction. (Tijam v. Sandiganbayan, G.R. No. L-
21450, April 15, 1968)
Note: The revised rules of court removed lack
of jurisdiction over the person of the
defendant as a motion to dismiss by virtue of
the following sections:
Section 13, Rule 14. Duty of counsel of record.
— Where the summons is improperly served and
a lawyer makes a special appearance on behalf
of the defendant to, among others, question the
validity of service of summons, the counsel shall
be deputized by the court to serve summons on
his or her client. (n)
With the revised rules, lack of jurisdiction
over the person of the defendant may merely
be raised as an affirmative defense.
Section 12, Rule 8. Affirmative defenses. — (a)
A defendant shall raise his or her affirmative
defenses in his or her answer, which shall be
limited to the reasons set forth under Section
5(b), Rule 6, and the following grounds: 1. That
the court has no jurisdiction over the person of
the defending party;
c. Lack of Due Process
Final and executory judgment may still be set aside
if, upon mere inspection thereof, its patent nullity
can be shown for having been issued without
jurisdiction or for lack of due process of law.
(Arcelona v. Court of Appeals, 345 Phil. 250, 264
(1997))
4. Q: Does the petitioner need to be a party to
the case before he or she can invoke Rule 47?
A: No. A person need not be a party to the judgment
sought to be annulled. What is essential is that he
can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he
would be adversely affected thereby. (Islamic
Da’wah Council of the Philippines v. Court of
Appeals, G.R. No. 80892, September 29, 1989)
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5. Q: May Res Judicata bar an action for
annulment of the judgment under Rule 47?
A: No. The petition for annulment of judgment
precisely challenges the validity of the "first
judgment," and to adopt petitioners’ argument would
lead to permanent preclusion of annulment of
judgment as a remedy. Significantly, the reverse is
true for the rationale underlying annulment of
judgment is incongruent with the concept of res
judicata. The grounds for annulment of judgment are
either lack of jurisdiction or the presence of extrinsic
fraud in the rendition of the judgment sought to be
annulled. On the other hand, among the requisites
of res judicata are jurisdiction on the part of the court
rendering the first judgment over the parties and
identity of causes of action between the first and the
second actions. (Orbeta v. Sendiong, G.R. No.
155236 July 8, 2005)
V. SMALL CLAIMS
1. Q: What are small claims?
A: These are civil claims which are exclusively for
the payment or reimbursement of a sum of money
not exceeding P400,000.00 or P300,000.00,
depending on the venue of the claim. (OCA Circular
No. 45-2019, effective 01 April 2019)
2. What is the scope of the Rule of Procedure for
Small Claims Cases?
A: They are claims where the value of the claim
does not exceed Four Hundred Thousand Pesos
(P400,000.00) exclusive of interest and costs, for
Metropolitan Trial Courts (MeTCs) Three Hundred
Thousand Pesos (P300,000.00), exclusive of
interest and costs, for Municipal Trial Courts
(MTCs), Municipal Trial Courts in Cities (MTCCs),
and Municipal Circuit Trial Courts (MCTCs):
a. For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; and,
5. Contract of Mortgage;
b. For liquidated damages arising from
contracts;
c. The enforcement of a barangay amicable
settlement or arbitration award on a money
claim covered by this Rule pursuant to Sec.
417 of Republic Act No. 7160.
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(A.M. No. 08-8-7-SC)
3. Q: What is the purpose of small claims?
A: To provide a more accessible, much swifter and
less expensive delivery of justice in disputes
involving pure money claims. (A.M. No. 08-8-7-SC)
4. Q: Where to file small claims cases?
A: A small claims case is filed with the Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Courts. Since
this is a civil case, it must be filed in the city:
a. Where the plaintiff resides; or
b. Where the defendant resides; or (Rule 4,
Sec. 2, ROC)
c. If the plaintiff is engaged in the business
of lending, banking and similar activities,
and has a branch within the municipality or
city where the defendant resides, the
Statement of Claim/s shall be filed where
that branch is located. (Sec. 8, A.M. No. 08-
8-7-SC)
5. Q: What is the procedure for small claims?
A:
1. A small claims action is commenced by filing
with the court an accomplished and verified
Statement of Claim (Form 1-SCC) in
duplicate, accompanied by a Certification
Against Forum Shopping, Splitting a Single
Cause of Action, and Multiplicity of Suits
(Form 1-A-SCC), and two (2) duly certified
photocopies of the actionable document/s
subject of the claim, as well as the affidavits
of witnesses and other evidence to support
the claim. (Sec. 6, A.M. No. 08-8-7-SC)
2. The plaintiff shall pay the docket and other
legal fees, unless allowed to litigate as an
indigent. Exemption from the payment of
filing fees shall be granted only by the
Supreme Court. (Sec.10, A.M. No. 08-8-7-
SC)
3. Examination by the court of the allegations
of the Statement of Claim/s and such
evidence attached thereto It may dismiss
the case outright if it finds grounds to justify
the dismissal. (Sec.11, A.M. No. 08-8-7-
SC)
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4. If no ground for dismissal is found, the court
shall issue Summons on the day of receipt
of the Statement of Claim, directing the
defendant to submit a verified Response.
(Sec. 12, A.M. No. 08-8-7-SC)
5. If the defendant cannot be served with
Summons, the court shall order the plaintiff
to cause the service of summons within
thirty (30) days from Notice. Otherwise, the
case shall be dismissed. (Sec. 12, A.M. No.
08-8-7-SC)
6. A Notice of Hearing shall accompany the
Summons and shall contain:
a. the date of the hearing, which shall
not be more than thirty (30) days
from the filing of the Statement of
Claim/s; and
b. the express prohibition against the
filing of a motion to dismiss or any
other motion under Section 16.
(Sec. 12, A.M. No. 08-8-7-SC)
7. 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. The Response shall be
accompanied by certified photocopies of
documents, as well as affidavits of
witnesses and other evidence in support
thereof. No evidence shall be allowed
during the hearing which was not attached
to or submitted together with the Response,
unless good cause is shown for the
admission of additional evidence. (Sec. 13,
A.M. No. 08-8-7-SC)
8. The parties shall appear at the designated
date of hearing personally or through a
representative which must be for a valid
cause, authorized under a Special Power of
Attorney. A lawyer cannot appear to
represent the party. (Sec. 18, A.M. No. 08-
8-7-SC)
9. At the hearing, the judge shall exert efforts
to bring the parties to an amicable
settlement. If the case is settled, the
settlement shall be reduced into writing,
signed by the parties and submitted to the
court for approval. If no settlement is
reached, the hearing shall proceed in an
informal and expeditious manner and
terminate within the same day. (Sec. 23,
A.M. No. 08-8-7-SC)
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10. After the hearing, the court shall render its
decision within twenty-four (24) hours from
termination of the hearing. The decision
shall immediately be entered by the Clerk of
Court in the court docket and a copy thereof
forthwith served on the parties. (Sec. 24,
A.M. No. 08-8-7- SC)
6. Q: Can the decision of the small claims court
be appealed?
A: No. The decision shall be final, executory and
unappealable. (Sec. 24, A.M. No. 08-8-7-SC)
Considering the final nature of a small claims case
under [A.M. No. 08-8-7-SC], the remedy of appeal is
not allowed, and the prevailing party may, thus move
for its execution. (A.L. Ang Network, Inc. vs.
Mondejar, G.R. No. 200804, January 22, 2014)
7. May the aggrieved party in a small claims case
file a petition for certiorari under Rule 65?
A: Yes. The proscription on appeals in small claims
cases, similar to other proceedings where appeal is
not an available remedy, does not preclude the
aggrieved party from filing a petition for certiorari
under Rule 65 of the Rules of Court.
Considering that small claims cases are exclusively
within the jurisdiction of the Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, and Municipal Circuit Trial Courts,
certiorari petitions assailing its dispositions should
be filed before their corresponding Regional Trial
Courts. (A.L. Ang Network, Inc. vs. Mondejar,
G.R. No. 200804, January 22, 2014)
VI. EVIDENCE
RULE 128.GENERAL PROVISIONS
1. CONCEPT OF EVIDENCE
In its original sense, the term “evidence” is that from
which causes the state of being evidence or plain. It
is fundamentally something proffered to establish an
alleged or disputed fact. Necessarily, it is dependent
on the rules of selectivity and exclusion (Chief
Justice Diosdado M. Peralta & Justice Eduardo
Perlata, Jr., 2020 ed, hereafter, PERALTA, p.3)
2. SCOPE OF THE RULES OF EVIDENCE
The Revised Rules on Evidence are specifically
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applicable to judicial proceedings and in quasi-
judicial proceedings, the rules hardly apply except
by analogy or suppletory character and whenever
practicable and convenient (Ferrer vs. Cargill, G.R.
No. 170956, May 12, 2010)
3. DISTINGUISH: PROOF AND EVIDENCE
Evidence is the medium of proof, while Proof is the
product of evidence. When several pieces of
evidence are admissible, being competent and
relevant to the facts in issue, the evidence taken as
whole results in proof to the extent as may be
required by the law.
4. DISTINGUISH: FACTUM PROBANS AND
FACTUM PROBANDUM
Factum probans is the evidentiary fact which
establishes the proposition while factum probandum
is the ultimate fact or the proposition to be
established. (PERALTA, 2020 ed, p.3)
5. ADMISSIBILITY OF EVIDENCE
a. Requisites for admissibility of evidence;
exclusions under the Constitution, laws, and the
Rule of Court
Evidence is admissible if it surpasses the standards
of (1) relevancy and (2) competency under Sec. 3,
Rule 128, as amended.
The addition of the words “the Constitution” simply
seeks to make explicitly the fact that the 1987
Constitution contains a number of exclusionary rules
of evidence, to wit: Article III, Section 2, 3(1) and (2);
12 (1), (2) and (3); and 17. (PERALTA, 2020 ed,
p.76)
b. Relevance of Evidence and Collateral Matters
Evidence is relevant when it has a relation to the fact
in issue as to induce belief in its existence or
nonexistence. Collateral matters are those which
have no direct connection to the fact in issue. Thus,
collateral matters are not allowed, except to
establish the probability or improbability of the fact
in issue. (PERALTA, 2020 ed, p.83)
c. Multiple Admissibility
Evidence is treated as multiple evidence if it is
admissible for a specific purpose to which it must be
confined and inadmissible to prove a different fact.
It must be remembered that the purpose for which
the evidence is offered must be specified because
such evidence may be admissible for one (1)
purpose and not for another, otherwise the adverse
party cannot interpose the proper objection.
Evidence submitted for one (1) purpose may not be
considered for any other purpose. (PERALTA, 2020
ed, p.89)
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d. Conditional Admissibility
Conditional admissibility refers to the situation when
it may also happen that, from the evidence
presented by the party, the initial evidence may not
pass the test of admissibility on account of the
adverse party’s perception of irrelevance and
incompetence, and the is why evidence ought to be
permitted for the meantime, albeit it lacks logical
suasion, subject to the presentation of other facts
that can establish a crucial point in issue.
Hence, evidence can be admitted on the basis of
conditional admissibility when the following are
present: (a) Element of good faith accorded by the
court to a lawyer who introduces evidence that
appears to be, at first blush immaterial or irrelevant
with (b) a concomitant statement by counsel of the
connecting facts and commitment from counsel to
relate later the sample of the evidence introduced
with other facts sought to be established.
(PERALTA, 2020 ed, p.85)
e. Curative Admissibility
Curative admissibility permits a party to introduce
incompetent evident to equalize the admission by
the court of incompetent evidence presented by the
adverse party. (PERALTA, 2020 ed, p.91)
f. Direct and Circumstantial Evidence
Direct evidence establishes a disputed fact
independently of any reasoning nor inference, while
Circumstantial evidence is indirect evidence or
relevant collateral facts. The latter is also known as
presumptive evidence. (PERALTA, 2020 ed, p65)
g. Positive and Negative Evidence
Positive evidence is an assertion of the existence or
nonexistence of a disputed fact, while negative
evidence is a disclaimer of knowledge over a
disputed fact. (PERALTA, 2020 ed, p.68)
h. Competent and Credible evidence
Competence of evidence is determined by the
applicable rules that call for repudiation of evidence
due to a legal proscription.
RULE 129. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS
Judicial notice is the cognition by the judge of certain
facts on the supposition that such facts are within his
knowledge. On the other hand, Judicial admission is
a voluntary acknowledgment made by a party of the
existence of a certain fact and is thus against the
interest of the declarant, irrespective of his personal
knowledge. (PERALTA, 2020 ed, p.97 & p.120)
A judicial admission is an admission, oral or written,
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made by a party in the course of the proceedings in
the same case. It does not require proof (Sec. 4,
Rule 129)
1. WHAT NEED NOT BE PROVED
The following need not be proved:
(1) Matters which are within the realm of judicial
notice
(2) Facts which are judicially admitted
(3) Facts which are presumed by law
2. MATTERS OF JUDICIAL NOTICE
a. Mandatory Judicial Notice
A court shall take judicial notice, without the
introduction of evidence, of the existence and
territorial extent of states, their political history,
forms of government and symbols of nationality, the
law of nations, the admiralty and maritime courts of
the world and their seals, the political constitution
and history of the Philippines, official acts of the
legislative, executive and judicial departments of the
National Government of the Philippines, the laws of
nature, the measure of time, and the geographical
divisions (Section 1, Rule 129).
On the national scale, the term “government of the
Philippines” refers to the executive, legislative and
judicial department. (PERALTA, 2020 ed, p.101)
Findings of fact of administrative agencies in the
exercise of their quasi-judicial powers are entitled to
respect if supported by substantial evidence.
Judicial determinations of quasi-judicial bodies have
the same binding effect as judgments and orders of
a regular judicial body. (Ligtas v. People, G.R. No.
200751, August 17, 2015, Leonen, J)
b. Discretionary Judicial Notice
With respect to discretionary notice, these items can
be categorized as:
(1) Public knowledge,
(2) Capable of unquestionable demonstration,
and
(3) Ought to be known to judges because of
their judicial functions. (PERALTA, 2020 ed,
p.102)
3. JUDICIAL ADMISSIONS
a. Effect of Judicial Admissions
Apart from the deleterious effect of a judicial
admission, it relieves the opposing party of any
obligation to prove the fact admitted by the adverse
party.
As provided in Sec. 27, Rule 130 of the Rules of
Court, “the act, declaration or omission of a party as
to a relevant fact may be given in evidence against
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him or her.”
b. How judicial admissions may be contradicted
A judicial admission cannot be contradicted, except
that, a party can be relieved from it, if there is a
showing that it was made through a palpable
mistake or that the imputed admission was not in
fact, made. (PERALTA, 2020 ed, p.126)
c. Pre-trial admissions
During a pretrial conference of a civil case covered
by the ordinary procedure, or preliminary conference
of a civil case covered by the summary procedure,
stipulations can also be formed by the party or
counsel with the requisite authority therefor. In
criminal cases, contemplated by the ordinary and
summary procedures, it seems that a verbal judicial
admission from the prosecution during the pre-trial
conference is also valid since the requirements
under the Rules of Court, the effect that a judicial
admission must be in writing and signed by the
accused, are pertinent to the defense. (PERALTA,
2020 ed, p.159)
Under the Sec. 2, Rule 118, unless the Pre-Trial
Order, must be signed by both the accused and his
or her counsel, it cannot be used against the
accused (Fule vs. Court of Appeals, G.R. No. L-
79094, June 22 1988).
RULE 130(A). OBJECT
(REAL EVIDENCE)
Object evidence are those addressed to the senses
of the court. When an object is relevant to the fact in
issue, it may be exhibited to, examined or viewed by
the court. (Sec 1, R130)
a. Nature of Object Evidence
Real or object evidence is evidence by direct
inspection through the court’s physical senses of
vision, hearing, touch, taste or smell, or a “fact, the
existence of which is perceptible to the senses.
Physical evidence is evidence of the highest order it
speaks more eloquently than a hundred witnesses
(People vs. Reyes, G.R. No. 224498, January 11,
2018, citing at footnote number 61, People vs.
Boniao, 291 Phil. 684, 720 [1993]).
b. Requisites of Admissibility
For the object evidence to be admissible, the
requisites are:
(1) Evidence must be relevant
(2) Evidence must be competent
(3) Evidence must be authenticated by a
witness
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(4) Object evidence must be formally offered as
evidence
c. Categories of object evidence
The three (3) categories of object evidence are:
(1) Objects that have readily identifiable marks
(unique object)
(2) Objects that are made identifiable (object
made unique)
(3) Objects with no identifying mark
d. Chain of custody in relation to Sec. 21 of the
Comprehensive Dangerous Drugs Act of 2002
Republic Act 10640 amended Section 21 of RA
9165, incorporating the saving clause contained in
the IRR and only requiring two (2) witnesses to
present during the conduct of the physical inventory
and taking photograph of the seized items, namely:
(an elected public official; and (b) a representative of
the national prosecution service. (People vs. Joan,
G.R. No. 234773, June 3, 2019)
It must be alleged and proved that the presence of
the witnesses to the physical inventory of the
photographs of the illegal drug seized was not
obtained due to justifiable reasons. Likewise, there
must be evidence of earnest efforts to secure the
attendance of the necessary witnesses.
The four links in chain of custody are: (1) the seizure
and marking of the confiscated drugs recovered
from the accused; (2) the turnover of the illegal drug
seized by the apprehending officer to the
investigating officer (3) the turnover by the
investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and (4) the
turnover and submission of the marked illegal drug
by forensic chemist to the court.
Unjustified noncompliance with the chain of custody
procedure will shroud in doubt the identity and
integrity of the dangerous drug allegedly seized.
When there is reasonable doubt, an accused's
acquittal must ensue. (People v. Jayson Merando,
G.R. No. 232620, August 5, 2019, Leonen, J)
Q: A witness was presented on the stand to
testify that he saw the accused robbing the bank
and that he also saw a CCTV footage of the
accused robbing the bank. The defense counsel
objected to the portion of the testimony
regarding the CCTV footage saying that the best
evidence or the original document is the.
footage. Should the objection be sustained?
A: No. If a witness is presented on the stand to
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identify the photograph or motion picture as a
correct representation of events which he saw or of
a scene with which he is familiar, he adopts the
picture as his testimony, or, in common parlance,
uses the picture to illustrate his testimony. Under
these circumstances, no effort is made to prove the
contents of the picture, and the original document
rule is inapplicable. (Paradis, The Celluloid
Witness, 37 U.Colo.L. Rev. 235, 249-251 [1965] as
cited in RIGUERA, 2020 ed, p.653)
1. DNA EVIDENCE
A.M. No. 06-11-5-SC
Effective October 15, 2007
a. Meaning of DNA
DNA is the abbreviation of deoxyribonucleic acid. It
is the chain of molecules found in every nucleated
cell on the body. The totality of an individual’s DNA
is unique for the individual, except identical twins.
(Sec. 3 (b), Rules on DNA Evidence)
b. Application for DNA testing order
The appropriate court may, at any time, either motu
proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA
testing. 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;
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.
This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest
of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
(Section 4, Rule on DNA Evidence)
c. Post-conviction DNA testing; remedy
The convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin if
the results of the post-conviction DNA testing are
favorable to the convict. In the case the court,
after due hearing finds the petition to be
meritorious, if shall reverse or modify the
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judgment of conviction and order the release of
the convict, unless continued detention is justified
for a lawful cause.
A similar petition may be filed either in the Court
of Appeals or the Supreme Court, or with any
member of said courts, which may conduct a
hearing thereon or remand the petition to the
court of origin and issue the appropriate orders.
(Sec. 10, Rules on DNA Evidence)
d. Assessment of probative value of DNA
evidence and admissibility
In assessing the probative value of the DNA
evidence presented, the court shall consider the
following:
The chair of custody, including how the biological
samples were collected, how they were handled,
and the possibility of contamination of the
samples;
The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure,
and compliance with the scientifically valid
standards in conducting the tests;
The forensic DNA laboratory, including
accreditation by any reputable standards-setting
institution and the qualification of the analyst who
conducted the tests. If the laboratory is not
accredited, the relevant experience of the
laboratory in forensic casework and credibility
shall be properly established; and
The reliability of the testing result, as hereinafter
provided. (Sec. 7, Rules on DNA Evidence)
e. Rule on evaluation of reliability of the DNA
testing
In evaluating the results of DNA testing, the court
shall consider the following:
The evaluation of the weight of matching DNA
evidence or the relevance of mismatching DNA
evidence;
The results of the DNA testing in the light of the
totality of the other evidence presented in the
case; and that
DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-
paternity. If the value of the Probability of
Paternity is less than 99.9%, the results of the
DNA testing shall be considered as corroborative
evidence. If the value of the Probability of
Paternity is 99.9% or higher there shall be a
disputable presumption of paternity. (Sec. 9,
Rules on DNA Evidence)
Q: Whether or not Vallejo standard refers to
jurisprudential norms considered by the court in
assessing the probative value of DNA evidence.
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(2009 BAR QUESTION)
S.A.: Yes. In People v. Vallejo, 382 SCRA192
(2002), it was held that in assessing the probative
value of DNA evidence, courts should consider,
among others things, the following data: how the
samples were collected, how they were handled, the
possibility of contamination of the samples, the
procedure followed in analyzing the samples,
whether the proper standards and procedures were
followed in conducting the tests, and the qualification
of the analyst who conducted the tests.
RULE 130(B).
DOCUMENTARY EVIDENCE
It is one which consists of writings, recordings,
photographs or any material containing letters,
words, sounds, numbers, figures, symbols, or their
equivalent, or other modes of written expression
offered as proof of their contents. Photographs
include still pictures, drawings, stored images, x-ray
films, motion pictures or videos. (ROC, Rule 130,
Sec. 2)
1. ORIGINAL DOCUMENT RULE
When the subject of inquiry is the contents of a
document, no evidence is admissible other than the
original document itself. (ROC, Rule 130, Sec. 3)
a. When not applicable:
No evidence is admissible other than the original
document itself, except in the following cases:
1. When the original is lost or destroyed, or
cannot be produced in court, without bad
faith on the part of the offeror;
2. When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice, or the
original cannot be obtained by local judicial
processes or procedures;
3. When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole;
4. When the original is a public record in the
custody of a public officer or is recorded in
a public office; and
5. When the original is not closely-related to a
controlling issue. (ROC, Rule 130, Sec. 3)
b. Original document
An “original” of a document is the document itself or
any counterpart intended to have the same effect by
a person executing or issuing it. An “original” of a
photograph includes the negative or any print
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therefrom. If data is stored in a computer or similar
device, any printout or other output readable by sight
or other means, shown to reflect the data accurately,
is an “original.” (ROC, Rule 130, Sec. 4)
c. Duplicate
A “duplicate” is a counterpart produced by the same
impression as the original, or from the same matrix,
or by means of photography, including
enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately
reproduce the original. (ROC, Rule 130, Sec. 4)
2. SECONDARY EVIDENCE: SUMMARIES
When the contents of documents, records,
photographs, or numerous accounts are voluminous
and cannot be examined in court without great loss
of time, and the fact sought to be established is only
the general result of the whole, the contents of such
evidence may be presented in the form of a chart,
summary, or calculation. (ROC, Rule 130, Sec. 7)
3. ELECTRONIC EVIDENCE
A.M. No. 01-7-01-SC
Effective on August 01, 2001
Electronic evidence pertains to any probative
information stored or transmitted in digital form that
a party to a court case may use at a trial.
a. Electronic data message
Refers to information generated, sent, received or
stored by electronic, optical or similar means.
(Rules on Electronic Evidence (REE), Rule 2,
Sec. 1 (g)) "Electronic document" refers to
information or the representation of information,
data, figures, symbols or other modes of written
expression, described or however represented, by
which a right is established or an obligation
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced
electronically. 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 the REE, the term "electronic
document" may be used interchangeably with
"electronic data message". (REE, Rule 2, Sec. 1
(h))
***In relation to 2019 Amendments on the Revised
Rules on Evidence, a document as evidence already
includes recordings, photographs and any material
containing words, sounds, numbers, figures,
symbols, or their equivalent. Photographs include
still pictures, drawings, stored images, x-ray films,
motion pictures or videos. (ROC, Rule 130, Sec. 2)
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b. Evidentiary weight of electronic documents
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(a) The reliability of the manner or method in
which it was generated, stored or communicated,
including but not limited to input and output
procedures, controls, tests and checks for
accuracy and reliability of the electronic data
message or document, in the light of all the
circumstances as well as any relevant
agreement;
(b) The reliability of the manner in which its
originator was identified;
(c) The integrity of the information and
communication system in which it is recorded or
stored, including but not limited to the hardware
and computer programs or software used as well
as programming errors;
(d) The familiarity of the witness or the person
who made the entry with the communication and
information system;
(e) The nature and quality of the information
which went into the communication and
information system upon which the electronic
data message or electronic document was
based; or
(f) Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data message.
(REE, Rule 7, Sec.1)
c. Method of proof
All matters relating to the admissibility and
evidentiary weight of an electronic document may
be established by an affidavit stating facts of
direct personal knowledge of the affiant or based
on authentic records. (REE, Rule 9, Sec.1)
d. Authentication of electronic documents
and electronic signatures
Before any private electronic document offered
as authentic is received in evidence, its
authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed
by the person purported to have signed the
same;
(b) by evidence that other appropriate security
procedures or devices as may be authorized by
the Supreme Court or by law for authentication of
electronic documents were applied to the
document; or
(c) by other evidence showing its integrity and
reliability to the satisfaction of the judge. (REE,
Rule 5, Sec.2)
An electronic signature may be authenticated in
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any of the following manner:
(a) By evidence that a method or process was
utilized to establish a digital signature and verity
the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge
as establishing the genuineness of the electronic
signature. (REE, Rule 6, Sec.2)
e. Electronic evidence and the hearsay rule
Business records as exception to the hearsay
rule
A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses, made by electronic, optical or other
similar means at or near the time of or from
transmission or supply of information by a person
with knowledge thereof, and kept in the regular
course or conduct of a business activity, and
such was the regular practice ot make the
memorandum, report, record, or data compilation
by electronic, optical or similar means, all of
which are shown by the testimony of the
custodian or other qualified witnesses, is
excepted from the rule or hearsay evidence.
(REE, Rule 8, Sec.1)
May be overcome by evidence of the
untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage thereof. (REE, Rule 8,
Sec.2)
f. Audio, photographic. Video and ephemeral
evidence
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided is shall be shown, presented or
displayed to the court and shall be identified,
explained or authenticated by the person who
made the recording or by some other person
competent to testify on the accuracy thereof.
(REE, Rule 11, Sec.1)
Ephemeral electronic communications shall be
proven by the testimony of a person who was a
party to the same or has personal knowledge
thereof. In the absence or unavailability of such
witnesses, other competent evidence may be
admitted. (REE, Rule 11, Sec.2)
Q. Is there a different original document rule for
electronic documents?
A: In the main, no longer. Formerly there was a
bifurcated approach to the original document rule:
one for non-electronic documents under the Rules
of Court and another for electronic documents under
Rule 4 of the Rules on Electronic Evidence (REE).
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The key distinction was that under the REE,
duplicates were considered as the equivalent of the
original. (S2R4, REE). The 2019 amendments in the
main provide for a uniform approach to the original
document rule when it also adopted the rule in S2R4
of the REE by providing that a "duplicate is
admissible to the same extent as the original."
(Riguera, 2020 ed, p 656)
Photocopies of Facsimile Transmissions are
Not Electronic Document
Q: Whether print-out and/or photocopies of
facsimile transmissions are electronic evidence
and admissible in evidence as such?
A: No, R.A. No. 8792, otherwise known as the
Electronic Commerce Act of 2000, considers an
electronic data message or an electronic document
as the functional equivalent of a written document
for evidentiary purposes.
In an ordinary facsimile transmission, there exists an
original paper-based information or data that is
scanned, sent through a phone line, and re-printed
at the receiving end.
In enacting the Electronic Commerce Act of 2000,
Congress intended virtual or paperless writings to be
the functional equivalent and to have the same legal
function as paper-based documents. Further, in a
virtual or paperless environment, technically, there
is no original copy to speak of, as all direct printouts
of the virtual reality are the same, in all respects, and
are considered as originals. Ineluctably, the law's
definition of "electronic data message," is
interchangeable with "electronic document," could
not have included facsimile transmissions, which
have an original paper-based copy as sent and a
paper-based facsimile copy as received. (MCC
Industrial Sales Corp. v. Ssangyong Corp., G.R.
No. 170633, October 17, 2007)
Photocopies are Equivalent of an Original
Q: At the trial of Ace for violation of the
Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00
bills used in the "buy-bust" operation. Ace
objects to the introduction of the photocopy on
the ground that the Best Evidence Rule (now
Original Document Rule) prohibits the
introduction of secondary evidence in lieu of the
original.
1) Is the photocopy real (object) evidence or
documentary evidence?
2) Is the photocopy admissible in evidence?
(1994 Bar Question)
A:
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1) The photocopy is real (object) evidence because
the same is being offered not to prove the contents
of the marked money but to prove its existence and
use in the "buy-bust" operation.
2) The photocopy is admissible in evidence.
The objection that the introduction thereof would
violate the Best Evidence Rule (Original Document
rule) does not lie since the best evidence rule does
not apply to object or real evidence. (People v.
Tandoy, 192 SCRA 28)
Note: Under the 2020 Amended rules, photocopies
are deemed as equivalent of an original. (Riguera,
2020 ed, p. 659)
Note: In NPC v. Codilla (2007), the Court ruled that
where photocopies reveal that not all of the contents
therein, such as the signatures of the persons who
purportedly signed the documents, the same cannot
be considered as an electronic document.
4. PAROLE EVIDENCE RULE
a. Requisites for Application:
1. There is a valid contract;
2. The terms of agreement are reduced to
writing;
3. There is an issue as to the terms of
agreement; and
4. The dispute is between the parties and their
successors in interest. (ROC, Rule 130,
Sec. 10)
Q: When can Parole Evidence be introduced?
A: A party may present evidence to modify, explain
or add to the terms of the written agreement if he or
she puts in issue in a verified pleading:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. The failure of the written agreement to
express the true intent and agreement of the
parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written agreement.
Two things must be established for parol
evidence to be admitted: first, that the existence
of any of the four exceptions has been put in
issue in a party’s pleading or has not been
objected to by the adverse party; and second,
that the parol evidence sought to be presented
serves to form the basis of the conclusion
proposed by the presenting party. (Spouses
Paras v. Kimwa Construction and
Development Corp. G.R. No. 171601, April 8,
2015, Leonen, J)
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5. AUTHENTICATION AND PROOF OF
DOCUMENTS
Authentication is the process by which documentary
evidence and other physical evidence is proven to
be genuine.
Classes of Documents:
5. 1. Public documents
(a) The written official acts, or records of the
sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledged before a notary
public except last wills and testaments;
(c) Documents that are considered public
documents under treaties and conventions
which are in force between the Philippines and
the country of source; and
(d) Public records, kept in the Philippines, of
private documents required by law to be
entered therein. (ROC, Rule 132, Sec. 19)
5.2. Private documents
All other writings not deemed as public
document are private documents. (ROC, Rule
132, Sec. 19)
Q: When authentication of private document
NOT necessary.
A: Where a private document is:
1. More than thirty (30) years old;
2. Produced from a custody in which it would
naturally be found if genuine; and
3. Unblemished by any alterations or
circumstances of suspicion. (ROC, Rule
132, Sec. 21)
a. Proof of Private Document/s:
(a) By anyone who saw the document
executed or written;
(b) By evidence of the genuineness of the
signature or handwriting of the maker; or,
(c) By other evidence showing its due
execution and authenticity. (ROC, Rule
132, Sec. 20)
Q: May a private document be offered, and admitted
in evidence both as documentary evidence and as
object evidence? Explain (2005 Bar)
S.A.: Yes. A private document may be offered and
admitted in evidence both as documentary evidence
and as object evidence. A document is may be
considered as a documentary or object evidence
depending on the purpose for which it is offered. If it
is offered as proof of its contents, it is documentary
evidence. (ROC, Rule 130, Sec. 2,) If it is presented
to prove its existence or for any purpose other than
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as proof of its contents, it is object evidence.
Objects as evidence are those addressed to the
senses of the court (ROC, Rule 130, Sec. 1,).
Hence, if a private document is offered for both
purposes aforementioned, it can be considered both
as documentary evidence and as object evidence.
b. Genuineness of Handwriting
May be proved by any witness who believes it to be
the handwriting of such person because he or she
has seen the person write, or has seen writing
purporting to be his or hers upon which the witness
has acted or been charged, and has thus acquired
knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the
court, with writings admitted or treated as genuine
by the party against whom the evidence is offered,
or proved to be genuine to the satisfaction of the
judge. (ROC, Rule 132, Sec. 22)
c. Public documents as evidence
Documents consisting of entries in public records
made in the performance of a duty by a public
officer. (ROC, Rule 132, Sec. 23)
d. Proof of Official Record
1. an official publication thereof; or
2. by a copy attested by the officer having the
legal custody of the record, or by his or her
deputy;
Note: if the record is not kept in the
Philippines, it must be accompanied with a
certificate that such officer has the custody.
3. If record is kept is in a foreign country, which
is a contracting party to a treaty or
convention to which the Philippines is also a
party, or considered a public document
under such treaty or convention certificate
or its equivalent shall be in the form
prescribed by such treaty or convention
subject to reciprocity.
4. If not a contracting party to a treaty or
convention, the certificate may be made by
a secretary of the embassy or legation,
consul general, consul, vice-consul, or
consular agent or by any officer in the
foreign service of the Philippines stationed
in the foreign country in which the record is
kept, and authenticated by the seal of
his/her office. (ROC, Rule 132, Sec. 24)
e. Attestation of a copy
1. must state, in substance, that the copy is a
correct copy of the original, or a specific part
thereof, as the case may be;
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2. must be under the official seal of the
attesting officer, if there be any, or if he or
she be the clerk of a court having a seal,
under the seal of such court. (ROC, Rule
132, Sec. 25)
f. Proof of lack of record
A written statement signed by an officer having the
custody of an official record or by his or her deputy
that, after diligent search, no record or entry of a
specified tenor is found to exist in the records of his
or her office, accompanied by a certificate as above
provided, is admissible as evidence that the records
of his or her office contain no such record or entry.
(ROC, Rule 132, Sec. 28)
g. How judicial record impeached: (by evidence
of)
(a) Want of jurisdiction in the court or judicial
officer;
(b) Collusion between the parties; or
(c) Fraud in the party offering the record, in
respect to the proceedings. (ROC, Rule
132, Sec. 29)
h. Notarial documents
Are those 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.
(ROC, Rule 132, Sec. 30)
To contradict statements in a notarial document,
there must be clear, convincing and more than
merely preponderant evidence against it. A
subsequent notarial document retracting the
previous statement is not even sufficient. The
general rule is that courts look with disfavor upon
retractions of testimonies previously given in court. .
. . The reason is because affidavits of retraction can
easily be secured from poor and ignorant witnesses,
usually through intimidation or for monetary
consideration. Moreover, there is always the
probability that they will later be repudiated and
there would never be an end to criminal litigation.
(Rodriguez v. Your Own Home Development
Corporation, G.R. No. 199451, August 15, 2018,
Leonen, J)
i. Alteration in document
Party producing a document as genuine which has
been altered and appears to have been altered after
its execution may show:
a. that the alteration was made by another
without his or her concurrence;
b. was made with the consent of the parties
affected by it;
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c. was otherwise properly or innocently made;
or
d. that the alteration did not change the
meaning or language of the instrument.
Note: Otherwise, the document shall not be
admissible in evidence. (ROC, Rule 132, Sec. 31)
j. Documentary evidence in an unofficial
language
Shall not be admitted as evidence, unless
accompanied with a translation into English or
Filipino. (ROC, Rule 132, Sec. 33)
RULE 130 (C).
TESTIMONIAL EVIDENCE
Q: Who are qualified to be a witness?
A: All persons who can perceive, and perceiving,
can make known their perception to others. (ROC,
Rule 130, Sec. 21)
An intellectually disabled person is not, solely by this
reason, ineligible from testifying in court. "He or she
can be a witness, depending on his or her ability to
relate what he or she knows." If an intellectually
disabled victim's testimony is coherent, it is
admissible in court. (People v. Corpuz y Flores,
G.R. No. 208013, July 3, 2017, Leonen, J)
The assessment of the credibility of witnesses is a
function properly within the office of the trial courts.
It is a question of fact not reviewable by this Court.
The trial court’s findings on the matter are entitled to
great weight and given great respect and may only
be disregardedif there are facts and circumstances
which were overlooked by the trial court and which
would substantially alter the results of the case.
(Torres y Salera v. People, G.R. No. 206627,
January 18, 2017, Leonen,J)
1. DISQUALIFICATIONS OF WITNESSES
A. Disqualification by reason of marriage
(Marital Disqualification Rule)
During their marriage, the husband or the wife
cannot testify against the other without the
consent of the affected spouse.
EXPs:
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 or ascendants.
(ROC, Rule 130, Sec. 23)
Separation is not tantamount to strained marital
relations. Spouse’s supposed membership in
the NPA is not an offense envisioned by
jurisprudence which would create an exception
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to the general rule of marital disqualification.
(Vivian Sanchez vs. PSUPT. Marc Darroca
G.R. No. 242257, October 15, 2019, Leonen,J)
Q: Ody sued spouses Cesar and Baby for a
sum of money and damages. At the trial, Ody
called Baby as his first witness. Baby
objected, joined by Cesar, on the ground that
she may not be compelled to testify against
her husband. Ody insisted and contended
that after all, she would just be questioned
about a conference they had with the
barangay captain, a matter which is not
confidential in nature. The trial court ruled in
favor of Ody. Was the ruling proper? Will you
answer be the same if the matters to be
testified on were known to Baby or acquired
by her prior to her marriage to Cesar?
Explain (1998, 2000, 2004 Bar)
S.A.: No. Under the Rules on Evidence, a wife
cannot be examined for or against her husband
without his consent, except in civil cases by one
against the other, or in a criminal case for a
crime committed by one against the other. Since
the case was filed by Ody against the spouses
Cesar and Baby, Baby cannot be compelled to
testify against Cesar without his consent
(Lezama v. Rodriguez,G.R. No. L-25643,
June 27, 1968).
B. Disqualification by reason of privileged
communication
The following persons cannot testify as to
matters learned in confidence in the
following cases:
B.1 Husband and Wife (Marital Privileged
Communication)
Requisites:
1. That the spouses must have been
legally married;
2. The spouse against whom such
evidence is being offered has not given
his/her consent to such testimony;
3. That the privilege is claimed with
regard to communication, oral or written,
made during the marriage;
4. That said communication was
made confidentially;
5. That the action or proceeding
where the privilege is claimed is not a civil
case by one against the other, or a criminal
case for a crime committed by one against
the other or the latter’s direct descendants or
ascendants. (ROC, Rule 130, Sec. 24,
par.(a))
Note: This disqualification applies whether the
testimony is made during or after the marriage.
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B.2 Attorney and client (Attorney-client
Privilege)
Without the consent of the client, the
following cannot be examined:
1. Attorney or person reasonably believed by
the client to be licensed to engage in the
practice of law:
- As to any communication made by the client
to him or her, or his or her advice given
thereon in the course of, or with a view to,
professional employment.
2. Attorney’s secretary, stenographer, or clerk
or other persons assisting the attorney,
concerning any fact, the knowledge of which
has been acquired in such capacity.
EXPs: Communications concerning:
1. Furtherance of crime or fraud
2. Claimants through same deceased client
3. Breach of duty by lawyer or client
4. Document attested by the lawyer
5. Joint client (ROC, Rule 130, Sec. 24,
par.(b))
B.3. Physician and patient
Applies in CIVIL CASES ONLY
Persons covered:
a. Physician
b. Psychotherapist
c. Person reasonably believed by the
patient to be authorized to practice
medicine or psychotherapy
d. Persons, including members of the
patient’s family, who have
participated in the diagnosis or
treatment of the patient under the
direction of the physician or
psychotherapist
e. Third person who may have
obtained the information, provided
that the original parties to the
communication took reasonable
precaution to protect its
confidentiality
Q: What are the communications covered under
this privilege?
A: Any confidential communication made for the
purpose of diagnosis or treatment of the patient’s
physical, mental or emotional condition, including
alcohol or drug addiction. (ROC, Rule 130, Sec. 24,
par.(c))
B.4. Priest and penitent
A minister, priest or person reasonably believed
to be so cannot, without the consent of the
affected person, be examined as to any
communication or confession made to or any
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advice given by him or her, in his or her
professional character, in the course of
discipline enjoined by the church to which the
minister or priest belongs. (ROC, Rule 130,
Sec. 24, par.(d))
B.5. Public officer
A public officer cannot be examined during or
after his or her tenure as to communications
made to him or her in official confidence, when
the court finds that the public interest would
suffer by the disclosure. (ROC, Rule 130, Sec.
24, par. (e))
C. Parental and Filial Privilege Rule
No person shall be compelled to testify against
his or her parents, other direct ascendants,
children or other direct descendants, except
when such testimony is indispensable in a crime
against that person or by one parent against the
other. (ROC, Rule 130, Sec. 25)
D. Trade Secrets
A person cannot be compelled to testify about
any trade secret, unless the non-disclosure will
conceal fraud or otherwise work injustice. When
disclosure is directed, the court shall take such
protective measure as the interest of the owner
of the trade secret and of the parties and the
furtherance of justice may require. (ROC, Rule
130, Sec. 26)
Q. May a police or law enforcement official
undertake surveillance, interception, or
recording of communications by terrorists or
suspected terrorists?
A: Yes. Under Section 7 of the Human Security Act,
a police or law enforcement official may apply for a
written order from the Court of Appeals authorizing
the surveillance or interception or recording of
communications by terrorists or suspected terrorists.
Such surveillance etc. shall not be authorized over
communications between attorneys and clients,
physicians and patients, journalists and their
sources, and confidential business correspondence.
(Riguera, 2020 ed., p717)
2. ADOPTIVE ADMISSION
An adoptive admission is where a party, by his
words or conduct, voluntarily adopt or ratifies
another’s statement. Evidence of the statement
would then be admissible against him. (Estrada v.
Disierto, G.R. No. 146710-15, April 3, 2001).
It is a party’s reaction to a statement or action by
another person when it is reasonable to treat the
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party’s reaction or admission of something stated or
implied by the other person. By adoptive admission,
a third person’s statement becomes the admission
of the party embracing or espousing it.
May occur when a party:
a. Expressly agrees to or concurs in an oral
statement made by another;
b. Hears a statement and later on essentially
repeats it;
c. Utters an acceptance or builds upon the
assertion of another;
d. Replies by way of rebuttal to some specific
points raised by another but ignores further
points which he or she has heard the other
make; or,
e. Reads and signs a written statement made
by another. (Republic v. Development
Corporation, G.R. No. 149576, August 8,
2006)
Q: A overheard B call X a thief. In an action for
defamation filed by X against B, is the testimony
of A offered to prove the fact of utterance, i.e.,
that B called X a thief, admissible in evidence?
(1999 Bar Question)
A: The testimony of A is admissible in evidence.
The Supreme Court has held that a statement is not
hearsay if it is offered not to prove the truth of the
matter asserted therein, but the mere fact of
utterance.
Here the statement of B that X is a thief is not
relevant for its truth but for the fact that it was uttered
and that X was defamed. It is an independently
relevant statement and hence admissible.
Note: Another approach is to treat B's statement as
non-hearsay since it is an admission by a party
opponent. (FRE 801 [d][2]]). The rationale for this is
that the party against whom the statement is offered
cannot claim that he has a right to cross examine
himself. (Riguera, 2020 ed., p813)
3. RES INTER ALIOS ACTA ALTERI NON
DEBET
The principle of res inter alios acta alteri nocere non
debet means that “things done between strangers
ought not to injure those who are not parties to them”
(Dynamic Signmaker Outdoor Advertising
Services, Inc., et al. V. Potongan, G.R. No.
156589, June 27, 2005).
This rule provides that the rights of a party cannot
be prejudiced by an act, declaration, or omission of
another. Consequently, an extrajudicial confession
is binding only on the confessant and not admissible
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against his or her co- accused because it is
considered as hearsay against them (People v.
Cachuela, G.R. No. 191752, June 10, 2013).
Two branches of the Res Inter Alios Acta Rule
1. The rule that the rights of a party cannot be
prejudiced by an act, declaration, or
omission of another (ROC, Rule 130, Sec.
29); and
2. The rule that evidence of previous conduct
or similar acts at one time is not admissible
to prove that one did or did not do the same
act at another time (ROC, Rule 132,
Sec.35)
4. HEARSAY
A statement other than one made by the declarant
while testifying at a trial or hearing, offered to prove
the truth of the facts asserted therein.
A statement is
(1) An oral or written assertion; or,
(2) A non-verbal conduct of a person, if it is
intended by him or her as an assertion.
(ROC, Rule 130, Sec. 37)
The second paragraph of Sec.37, Rule 130
provides that even if the declarant is testifying in
court and is subject to cross on his prior out-of-court
statement, such statement is still hearsay unless it
falls within any of the exceptions stated therein. This
is a departure from the traditional rule that an out-of-
court statement is not hearsay if the declarant will be
presented as a witness in court and subject to cross-
examination concerning such statement.
Rule 130, Sec 37(a) refers to a prior out-of-court
statement which is inconsistent with the declarant's
testimony and was given under oath subject to the
penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition. Here the cross-
examiner is using the statement not merely to
impeach the witness but to prove the truth of the
matter asserted in the statement. That is why the
statement is required to be given under oath in order
to lend it trustworthiness.
If the cross-examiner is using the statement merely
to impeach the declarant-witness but not as
substantive evidence, there is no need for the prior
statement to be under oath.
The prior consistent statement in Rule 130, Section
37(b) is being offered by the party presenting the
declarant to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive.
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The statement in Rule 130, Sec. 37 (c) is one in
which the declarant identifies a person as someone
the declarant perceived earlier. (Riguera, 2020 ed.,
p.809)
GR: Hearsay evidence is inadmissible.
EXP:
1. Dying declaration
Q: Requisites of Dying Declaration (1998 Bar)
A: The requisites for the admissibility of a dying
declaration are:
(a) The declaration is made by the deceased under
the consciousness of his impending death;
(b) The deceased was at the time competent as a
witness;
(c) The declaration concerns the cause and
surrounding circumstances of the declarant’s death;
and
(d) The declaration is offered in a (criminal) case
wherein the declarant's death is the subject of
inquiry (People v. Santos, G.R. No. 94545, April 4,
1997).
2. Statement of decedent or person of
unsound mind
3. Declaration against interest
4. Act or declaration about pedigree
5. Family reputation or tradition regarding
pedigree
6. Common reputation
7. Part of res gestae
8. Records of regularly conducted business
activity
9. Entries in official records
10. Commercial lists and the like
11. Learned treatises
12. Testimony or deposition at a former trial
13. Residual exception: A statement not
specifically covered by any of the foregoing
exceptions, having equivalent
circumstantial guarantees of
trustworthiness, is admissible if the court
determines that:
a. The statement is offered as
evidence of a material fact;
b. The statement is more probative
on the point for which it is offered
than any other evidence which the
proponent can procure through
reasonable efforts; and
c. The general purposes of these
Rules and the interests of justice
will be best served by admission of
the statement into evidence.
Note: However, a statement may not be admitted
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under this exception unless the proponent makes
known to the adverse party, sufficiently in advance
of the hearing, or by the pre-trial stage in the case of
a trial of the main case, to provide the adverse party
with a fair opportunity to prepare to meet it, the
proponent’s intention to offer the statement and the
particulars of it, including the name and address of
the declarant. (ROC, Rule 130, Sec. 50)
Note: Independently relevant statements are not
exceptions to the hearsay rule but are simply non-
hearsay. It is more precise to say that independently
relevant statements are not covered by the hearsay
rule. (Riguera 2020 ed., p820)
Q: Distinguish clearly but briefly between
hearsay evidence and opinion evidence. (2004
Bar)
S.A: Hearsay evidence consists of testimony that is
not based on personal knowledge of the person
testifying, (see: Sec. 36, Rule 130), while opinion
evidence is expert evidence based on the personal
knowledge skill, experience or training of the person
testifying (Sec. 49, Id.) and evidence of an ordinary
witness on limited matters (Sec. 50, Id.).
Q. In a murder case, X testified that he saw the
accused shoot the victim. The prosecution then
presents the police officer who will testify that X
identified the accused as the gunman. Is the
police officer's testimony hearsay?
A. No. It is about X's statement identifying a person
(the accused) whom X had perceived earlier.
(Riguera, 2020 ed., p811)
5. OPINION RULE
Q: Is the opinion of a witness admissible in
evidence?
A: As a general rule, it is not admissible. Witnesses
must give the facts and not their inferences,
conclusions or opinion, except for the following:
1. Opinion of an Expert Witness – the opinion
of a witness on a matter requiring special
knowledge, skill, experience, training or
education, which he or she is shown to
possess, may be received in evidence.
(ROC, Rule 130, Sec. 52)
2. Opinion of an Ordinary Witness – the
opinion of an ordinary witness for which
proper basis is given, may be received in
evidence regarding:
a. The identity of a person about whom he
or she has adequate knowledge;
b. A handwriting with which he or she has
sufficient familiarity;
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c. The mental sanity of a person with
whom he or she is sufficiently
acquainted;
d. The witness’ impressions of the
emotion, behavior, condition or
appearance of a person. (ROC, Rule
130, Sec. 53)
Q: At Nolan’s trial for possession and use of the
prohibited drugs, known as “shabu” his
girlfriend Kin, testified that on a particular day,
she would see Nolan very prim and proper, alert
and sharp, but that three days after, he would
appear haggard, tired and overly nervous at the
slightest sound he would hear. Nolan objects to
the admissibility of Kim’s testimony on the
ground that Kim merely stated her opinion
without having been first qualified as expert
witness. Should you as a judge exclude the
testimony of Kim? (1994 Bar)
S. A: No, the testimony of Kim should not be
excluded. Even though Kim is not an expert witness,
Kim may testify on her impressions of the emotion,
behavior, condition or appearance of a person (Sec.
50, last par Rule 130).
RULE 131. BURDEN OF PROOF AND BURDEN
OF EVIDENCE
Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence
required by law. The burden of evidence is the duty
of a party to represent evidence sufficient to
establish or rebut a fact in issue to establish a prima
facie case.
Initially the party having the burden of proof also has
the burden of evidence.
Burden of proof never shifts but burden of evidence
may shift from one party to another in the course of
the proceedings, depending on the exigencies of the
case. (PERALTA, 2020 ed, p.615)
PRESUMPTIONS
Presumptions are inferences as to the existence of
a fact not actually known, arising from its usual
connection with another which is known, or a
conjecture based on past experience as to what
course human affairs ordinarily take. (University of
Mindanao, Inc. v. Bangkok Sentral ng Pilipinas,
G.R. No. 194964- 65 (2016))
a. Conclusive presumptions
A conclusive presumption (also known as non-
rebuttable presumption) is one which no
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evidence, however strong, no argument or
consideration will be permitted to overcome.
Since a presumption always properly refers to a
rebuttable assumption of a fact, when the term
presumption is used. In the conclusive sense, it
is not a true presumption but is actually a
statement if a rule of substantive law.
b. Disputable presumptions
Disputable or rebuttable presumption is one
which is satisfactory if uncontradicted but may be
contradicted and overcome by other evidence.
(Section 3, Rule 131)
c. Presumptions in civil actions and
proceedings; against an accused in criminal
cases
In all civil actions and proceedings not otherwise
provided for by the law or these Rules, a
presumption imposes on the party against whom
it is directed the burden of going forward with
evidence to rebut or meet the presumption.
If presumptions are inconsistent, the
presumption that is founded upon weightier
considerations of policy shall apply. If
considerations of policy are of equal weight,
neither presumption applies. (Section 5, Rule
131, Rules on Evidence)
For presumption against an accused in criminal
cases, if a presumed fact that establishes guilt is
an element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the
presumed fact follows from the basic fact beyond
reasonable doubt. (Section 6, Rule 131)
RULE 132(A). EXAMINATION OF WITNESSES
Q: What is a voir dire examination (competency
examination)?
A: Voir dire literally means to speak the truth, and
denotes American jurisprudence, preliminary
examination under oath of prospective jurors. The
examination is conducted to determine the
competency or qualifications of the witness in case
it objected to. (People of the Philippines v.
Magtanong, Jr., G.R. No. 91016 September 27,
1991)
1. Rights and obligations of a witness:
(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;
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(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 or her to a penalty for an offense
unless otherwise provided by law; or
(5) Not to give an answer which will tend to
degrade his or her reputation, unless it be to 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 or her previous final
conviction for an offense. (ROC, Rule 132,
Sec.35)
2. Order of examination of an individual witness:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d)Re-cross[-]examination by the opponent.
(ROC, Rule 132, Sec.3)
3. Leading and misleading questions:
3.1. Leading question
A question which suggests to the witness the
answer which the examining party desires. It is
not allowed, except:
(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, a child of tender years, is of feeble
mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public
or private corporation, or of a partnership or
association which is an adverse party.
3.2. Misleading question
One which assumes as true a fact not yet
testified to by the witness, or contrary to that
which he or she has previously stated. It is not
allowed. (ROC, Rule 132, Sec.10)
1. IMPEACHMENT OF WITNESS
1. Adverse party’s witness
a. by contradictory evidence;
b. by evidence that his or her general
reputation for truth, honesty, or integrity
is bad; or
c. by evidence that he or she has made at
other times statements inconsistent
with his or her present testimony.
Note: Evidence of particular wrongful acts are NOT
allowed, except that it may be shown by the
examination of the witness, or record of the
judgment, that he or she has been convicted of an
offense. (ROC, Rule 132, Sec.11)
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2. By evidence of conviction of a crime
Evidence that he or she has been convicted by final
judgment of a crime shall be admitted if:
(a) The crime was punishable by a penalty
in excess of one (1) year; or
(b) The crime involved moral turpitude,
regardless of the penalty.
Note: The evidence is not admissible if the
conviction has been the subject of an amnesty or
annulment of the conviction. (ROC, Rule 132,
Sec.12)
3. By own witness
Allowed only if the witness presented is:
a. an unwilling or hostile witness; or
b. a witness who is an adverse party or
an officer, director, or managing agent
of a public or private corporation, or of
a partnership or association which is
an adverse party.
Note: The party presenting the witness is
not allowed to impeach his or her credibility.
(ROC, Rule 132, Sec.13)
4. By evidence of inconsistent statements
Before a witness can be impeached by evidence
that he or she has made at other times statements
inconsistent with his or her present testimony:
1. The statements must be related to him or
her, with the circumstances of the times
and places and the persons present; and,
2. He or she must be asked whether he or
she made such statements, and if so,
allowed to explain them. If the statements
be in writing, they must be shown to the
witness before any question is put to him
or her concerning them. (ROC, Rule 132,
Sec.14)
A witness' inconsistency on minor details does not
affect his or her credibility as long as there are no
material contradictions in his or her absolute and
clear narration on the central incident and positive
identification of the accused as one (1) of the main
assailants. Any inconsistency, which is not relevant
to the elements of the crime, "is not a ground to
reverse a conviction." (People v. Dimapilit y
Abelardo, G.R. No. 210802, August 9, 2017,
Leonen, J).
Inconsistencies do not affect the credibility of the
testimonies of the prosecution witnesses, especially
with respect to the "principal occurrence and positive
identification" of petitioner. Slight inconsistencies in
the testimony even strengthen credibility as they
show that the testimony was not rehearsed. (Cirera
v. People G.R. No. 181843. July 14, 2014, Leonen,
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J)
2. RULE ON EXAMINATION OF A CHILD
WITNESS
(A.M. NO. 004-07-SC)
Effective December 15, 2000
Applicability:
Child witnesses in criminal proceedings or non-
criminal proceedings who are:
1. Victims of crime
2. Accused of a crime
3. Witnesses to crime. (Sec. 1)
Child Witness
Any person who at the time of giving testimony is
below the age of eighteen (18) years; in child abuse
cases, child includes one over eighteen (18) years
but is found by the court as unable to fully take care
of himself or protect himself from abuse, neglect,
cruelty, exploitation, or discrimination because of a
physical or mental disability or condition. (Sec. 4 (a))
Competence of a Child Witness
GR: Every child is presumed qualified to be a
witness.
EXP: Court shall conduct a competency
examination of a child, motu proprio or on motion of
a party, when it 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.
Note: A party seeking a competency examination
must present proof of necessity of competency
examination. The age of the child by itself is not a
sufficient basis for a competency examination. (Sec.
6)
Examination of a Child Witness
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer,
the answers of the witness shall be given orally.
Live-Link Television Testimony of a Child
Witness
Q: Who may apply?
A: The following may apply for a live-link television
testimony of a child witness:
1. Prosecutor
2. Counsel; or
3. Guardian ad litem
Q: When to apply?
A: It must be applied at least five (5) days before the
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trial date, unless the court finds on the record that
the need for such an order was not reasonably
foreseeable.
Factors to consider in granting or denying the use of
live-link television:
1. The age and level of development of the
child;
2. His physical and mental health, including
any mental or physical disability;
3. Any physical, emotional, or psychological
injury experienced by him;
4. The nature of the alleged abuse;
5. Any threats against the child;
6. His relationship with the accused or adverse
party;
7. His reaction to any prior encounters with the
accused in court or elsewhere;
8. His reaction prior to trial when the topic of
testifying was discussed with him by parents
or professionals;
9. Specific symptoms of stress exhibited by the
child in the days prior to testifying;
10. Testimony of expert or lay witnesses;
11. The custodial situation of the child and the
attitude of the members of his family
regarding the events about which he will
testify; and
12. Other relevant factors, such as court
atmosphere and formalities of court
procedure.
- The testimony of the child shall be preserved
on videotape, digital disc, or other similar
devices which shall be made part of the court
record and shall be subject to a protective
order. (Sec. 25)
Hearsay Exception in Child Abuse Cases
A statement made by a child describing any act or
attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted
in evidence in any criminal or non-criminal
proceeding subject to the following rules:
(a) 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 party. When
the child is unavailable, the fact of such
circumstance must be proved by the
proponent.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
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content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant
child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the
relationship between the declarant child and
witness;
(6) Cross-examination could not show the
lack of knowledge of the declarant child;
(7) The possibility of faulty recollection of the
declarant child is remote; and
(8) The circumstances surrounding the
statement are such that there is no reason to
suppose the declarant child misrepresented
the involvement of the accused.
(c) The child witness shall be considered
unavailable under the following situations:
(1) Is deceased, suffers from physical
infirmity, lack of memory, mental illness, or
will be exposed to severe psychological
injury; or
(2) Is absent from the hearing and the
proponent of his statement has been unable
to procure his attendance by process or
other reasonable means.
(d) When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
(Sec. 28)
Sexual Abuse Shield Rule
(a) Inadmissible evidence. - The following evidence
is not admissible in any criminal proceeding
involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
(b) Exception. - Evidence of specific instances of
sexual behavior by the alleged victim to prove that a
person other than the accused was the source of
semen, injury, or other physical evidence shall be
admissible.
A party intending to offer such evidence must:
(1) File a written motion at least fifteen (15)
days before trial, specifically describing the
evidence and stating the purpose for which
it is offered, unless the court, for good
cause, requires a different time for filing or
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permits filing during trial; and
(2) Serve the motion on all parties and the
guardian ad litem at least three (3) days
before the hearing of the motion.
Before admitting such evidence, the court must
conduct a hearing in chambers and afford the child,
his guardian ad litem, the parties, and their counsel
a right to attend and be heard. The motion and the
record of the hearing must be sealed and remain
under seal and protected by a protective order. The
child shall not be required to testify at the hearing in
chambers except with his consent. (Sec. 30)
Protective Order
Any videotape or audiotape of a child that is part of
the court record shall be under a protective order
that provides as follows:
(1) Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian
ad litem.
(2) No tape, or any portion thereof, shall be
divulged by any person mentioned in sub-section
(a) to any other person, except as necessary for
the trial.
(3) No person shall be granted access to the
tape, its transcription or any part thereof unless
he signs a written affirmation that he has received
and read a copy of the protective order; that he
submits to the jurisdiction of the court with
respect to the protective order; and that in case
of violation thereof, he will be subject to the
contempt power of the court.
(4) Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear the
following cautionary notice:
"This object or document and the contents
thereof are subject to a protective order issued by
the court in (case title), (case number). They shall
not be examined, inspected, read, viewed, or
copied by any person, or disclosed to any person,
except as provided in the protective order. No
additional copies of the tape or any of its portion
shall be made, given, sold, or shown to any
person without prior court order. Any person
violating such protective order is subject to the
contempt power of the court and other penalties
prescribed by law."
(5) No tape shall be given, loaned, sold, or shown
to any person except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies
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of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
unless the period is extended by the court on
motion of a party.
(7) This protective order shall remain in full force
and effect until further order of the court.
Additional protective orders. - The court may,
motu proprio or on motion of any party, the child, his
parents, legal guardian, or the guardian ad litem,
issue additional orders to protect the privacy of the
child. (Sec. 31)
RULE 132(B). OFFER AND OBJECTION
Q: When is offer of evidence made?
A: All evidence must be offered orally and the
proper time to offer it depends on its form.
a. With respect to testimony of a witness in
evidence, the offer must be made at the time
the witness is called to testify;
b. For documentary and object evidence, it
shall be offered after the presentation of a
party’s testimonial evidence. (ROC, Rule
132, Sec. 35)
Q: When is the proper time to object?
A: The proper time to make an objection depends
on the subject matter of the objection.
1. Objection to offer of evidence must be made
orally immediately after the offer is made.
2. Objection to the testimony of a witness for
lack of a formal offer must be made as soon
as the witness begins to testify.
3. Objection to a question propounded in the
course of the oral examination of a witness
must be made as soon as the grounds
therefor become reasonably apparent.
(ROC, Rule 132, Sec. 36)
Q: On March 12, 2008, Mabini was charged with
Murder for fatally stabbing Emilio. To prove the
qualifying circumstance of evident
premeditation, the prosecution introduced on
December 11, 2009 a text message, which
Mabini's estranged wife Gregoria had sent to
Emilio on the eve of his death, reading: "Honey,
pa2tayin u ni Mabini. Mtgal n nyang piano i2. Mg
ingat u bka ma tsugi k."
(a) A subpoena ad testificandum was served on
Gregoria for her to be presented for the purpose
of identifying her cellphone and the text
message. Mabini objected to her presentation on
the ground of marital privilege. Resolve.
(b) Suppose Mabini's objection in question A
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was sustained. The prosecution thereupon
announced that it would be presenting Emilio's
wife Graciana to identify Emilio's cellphone
bearing Gregoria's text message.
Mabini objected again. Rule on the objection.
c) If Mabini's objection in question B was
overruled, can he object to the presentation of
the text message on the ground that it was
hearsay? (2010 Bar Question)
A:
a) The objection should be sustained.
Under the marital disqualification rule, a spouse may
not testify for or against the other without the latter's
consent.
Here although the ground invoked was "marital
privilege," it is evident that Mabini was referring to
the marital disqualification rule. The mere fact that
Gregoria was estranged from Mabini is not an
exception to the marital disqualification rule.
b) The objection should be overruled.
Under the Rules on Evidence, the marital
disqualification rule may be invoked by a spouse
only against his or her spouse. The marital
disqualification rule may not be invoked by Mabini
against Graciana since the latter is not his wife.
As to the text message, it would be premature to
object to the same since it is documentary evidence
and the same has not yet been offered in evidence.
Mere identification of a documentary evidence is not
an offer thereof
c) If Mabini's objection in question B was overruled,
he cannot object to the presentation of the text
message on the ground that it was hearsay.
The Supreme Court has held that statements
showing the declarant's state of mind, such as his
knowledge or belief, are considered as
independently relevant statements and thus not
hearsay. (Estrada v. Desierto, G.R. 146710-15, 3
April 2001).
Here the text message showed Gregoria's
knowledge or belief that Mabini planned to kill
Emilio. Hence the same is not hearsay and is
admissible in evidence. (Riguera, 2020 ed, p715 &
p822)
Repetition of Objection
Q: When is repetition of objection unnecessary?
A: When it becomes reasonably apparent in the
course of the examination of a witness that the
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questions being propounded are of the same class
as those to which objection has been made, whether
such objection was sustained or overruled, it shall
not be necessary to repeat the objection, it being
sufficient for the adverse party to record his or her
continuing objection to such class of questions.
(ROC, Rule 132, Sec. 37)
Ruling
The ruling of the court must be given immediately
after the objection is made, unless the court desires
to take a reasonable time to inform itself on the
question presented; but the ruling shall always be
made during the trial and at such time as will give
the party against whom it is made an opportunity to
meet the situation presented by the ruling. (ROC,
Rule 132, Sec. 38)
Striking Out of an Answer
The court shall sustain an objection and order an
answer, testimony or narration to be stricken off the
record where objection is found to be
meritorious in any of the following circumstances:
1. Should a witness answer the question
before the adverse party had the
opportunity to voice fully its objection to the
same;
2. Where a question is not objectionable but
the answer is not responsive;
3. Where a witness testifies without a question
being posed or testifies beyond limits set by
the court; or
4. When the witness does a narration instead
of answering the question. (ROC, Rule 132,
Sec. 39)
Tender of Excluded evidence
If documents or things offered in evidence are
excluded by the court, the offeror may have the
same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for
the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony. (ROC, Rule 132, Sec. 40)
RULE 133. QUANTUM OF EVIDENCE
Quantum of Evidence is the weight of evidence
required to discharge the burden of proof.
Factors the court may consider in determining
preponderance of evidence in civil cases
In civil cases, the party having the burden of proof
must establish his or her case by a preponderance
of evidence. In determining where the
preponderance or superior weight of evidence on
the issues involved lies, the court may consider:
(1) All the facts and circumstances of the
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case,
(2) The witnesses’ manner of testifying, their
intelligence, their means and opportunity
of knowing the facts to which they are
testifying, 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) The number of witnesses, though the
preponderance is not necessarily with the
greater number. (Sec 1, Rule 133)
9.1 Quantum of Evidence in Criminal Cases
In a criminal case, the quantum evidence needed for
conviction is proof beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces
conviction in an unprejudiced mind. (Sec 2, Rule
133)
9.2 On Extrajudicial Confession and
Circumstantial evidence
An extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec 3,
Rule 133)
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one [(1)]
circumstance;
(b) The facts from which the inferences are
derived are proven; and
(c) The combination of all the circumstances
is such as to produce a conviction beyond
reasonable doubt. (Section 4, Rule 131)
9.3 Quantum of Evidence in Case of
Administrative or Quasi-Judicial Bodies
In cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is
supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. (Sec 6,
Rule 133)
9.4 On Expert Witnesses
In any case where the opinion of an expert witness
is received in evidence, the court has a wide latitude
of discretion in determining the weight to be given to
such opinion, and for that purpose may consider the
following:
(a) Whether the opinion is based upon
sufficient facts or data;
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(b) Whether it is the product of reliable
principles and methods;
(c) Whether the witness has applied the
principles and methods reliably to the facts
of the case; and
(d) Such other factors as the court may
deem helpful to make such determination.
(Section 5, Rule 133)
VII.SPECIAL CIVIL ACTION
RULE 65. CERTIORARI, PROHIBTION AND
MANDAMUS
1. Q: On November 26, 2013, the City Council of
Manila passed Ordinance No. 8331, entitled "An
Ordinance enacting the 2013 Omnibus Revenue
Code of the City of Manila.”. Operators of retail
businesses in the City of Manila filed an Appeal
before the then Secretary of Justice Leila M. De
Lima. The latter declared Section 104 of Ordinance
No. 8331 void for being contrary to Section 191 of
the LGC. City council of Manila then filed a Petition
for Review Ad Cautelam before the Regional Trial
Court (RTC) of Manila. In its petition, the city council
sought to annul the SOJ De Lima’s Resolution for
having been issued with grave abuse of discretion
and to declare Section 104 of Ordinance No. 8331
as valid and enforceable. The RTC issued an Order
treating the Petition for Review Ad Cautelam as a
petition for certiorari under Rule 65 of the Rules of
Court. RTC later dismissed the case for Lack of
Jurisdiction. Is the remedy availed of by the City
Council of Manila erroneous?
A: Yes. The proper remedy is an appeal under Rule
43 before the Courts of Appeal.
The Court has been consistent in ruling that the
remedy of a party from an adverse resolution of the
Secretary of Justice is a petition for certiorari under
Rule 65. However, in those cases, it must be pointed
out the subject matter of appeal is the decision of
the Secretary of Justice evaluating a prosecutor's
determination of probable cause, a function that
does not involve the exercise of quasi-judicial
powers by the DOJ, which is covered by appeals
under Rule 43. (De Lima, et al. v. Reyes, 776 Phil.
623, 634 (2016), Leonen, J)
In this case, the evaluation of the appeal lodged by
the retail business operators involves an exercise
of quasi-judicial power by the Secretary of
Justice. In deciding the same, the Secretary of
Justice must ascertain the existence of factual
circumstances specifically, whether Section 104 of
Ordinance No. 8331 was passed in accordance with
the procedure and the limitations set forth by the
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LGC. And from there make a conclusion as to the
validity and applicability of the same to the retail
business operators of Manila. Considering that the
subject matter of review is an exercise of quasi-
judicial power by the Secretary of Justice, the latter's
decision on the legality or constitutionality of tax
ordinances and revenue measures under Section
187 of the LGC is a proper subject of appeal through
a petition for review under Rule 43. (Leila De Lima
v. City of Manila, G.R. No. 222886, October 17,
2018)
2. Q: After an information for rape was filed in
the RTC, the DOJ Secretary, acting on the
accused's petition for review, reversed the
investigating prosecutor's finding of probable
cause. Upon order of the DOJ Secretary, the trial
prosecutor filed a Motion to Withdraw
Information which the judge granted. The order
of the judge stated only the following:
"Based on the review by the DOJ Secretary of
the findings of the investigating prosecutor
during the preliminary investigation, the Court
agrees that there is no sufficient evidence
against the accused to sustain the allegation in
the information. The motion to withdraw
Information is, therefore, granted."
If you were the private prosecutor, what should
you do? Explain. (2012 Bar Question)
S.A:
If I were the private prosecutor, I would file a petition
for certiorari under Rule 65 with the Court of Appeals
(Cerezo vs. People, G.R. No.185230, June 1,
2011). It is well-settled that when the trial court is
confronted with a motion to withdraw and
Information (on the ground of lack of probable cause
to hold the accused for trial based on resolution of
the DOJ Secretary), the trial court has the duty to
make an independent assessment of the merits of
the motion. It may either agree or disagree with the
recommendation of the Secretary. Reliance alone
on the resolution of the Secretary would be an
abdication of the trial court’s duty and jurisdiction to
determine a prima facie case. The court must itself
be convinced that there is indeed no sufficient
evidence against the accused. Otherwise, the judge
acted with grave abuse of discretion if he grants the
Motion to Withdraw Information by the trial
prosecutor. (Harold Tamargo vs. Romulo
Awingan et. al. G.R. No. 177727, January 19,
2010).
3. Q: Lihaylay identified himself as a confidential
informant of the State, and sent two (2) letter to
the head of the BIR-PCGG taskforce concerning
the ill-gotten wealth by the Marcoses. Lihaylay
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wrote to the Department of Finance Secretary
Teves on his entitlement to an informer's reward.
However, without waiting for Secretary Teves'
and Treasurer Tan's official actions on his
letters, Lihaylihay filed the present Petition
dubbed a Petition for "Mandamus and Damages,
with a Prayer for a Writ of Garnishment."
Whether or not mandamus is a proper remedy.
A: No. Lihaylihay’s entitlement to an informer's
reward is not a ministerial matter. Quite the contrary,
its determination requires a review of evidentiary
matters and an application of statutory principles
and administrative guidelines. Its determination is a
discretionary, quasi-judicial function, demanding an
exercise of independent judgment on the part of
certain public officers.
Verily, the grant of an informer's reward for the
discovery, conviction, and punishment of tax
offenses is a discretionary quasi-judicial matter that
cannot be the subject of a writ of mandamus. It is
not a legally mandated ministerial duty. This reward
cannot be given to a person who only makes
sweeping averments about undisclosed wealth,
rather than specific tax offenses, and who fails to
show that the information which he or she supplied
was the undiscovered pivotal cause for the
revelation of a tax offense, the conviction and/or
punishment of the persons liable, and an actual
recovery made by the State. Indiscriminate,
expendable information negates a clear legal right
and further impugns the propriety of issuing a writ of
mandamus. (Lihaylihay v Tan, G.R. No. 192223,
July 23, 2018, Leonen, J)
RULE 66. QUO WARRANTO
1. Quo Warranto distinguished from Mandamus
A quo warranto proceeding is brought against the
holder of the office by the Republic of the
Philippines, or in certain cases, by an individual in
his own name where the right or title to the office
itself is disputed. (Lota v. Courts of Appeals, G.R.
No. L-14803, June 30, 1961)
On the other hand, in mandamus, the suit is brought
against the person who is responsible for unlawfully
excluding petitioner from office, like an appointing
authority. (Cornejo v. Gabriel, 41 Phil.188, 189, as
cited in RIANO, 2016 ed., p 269) The suit is brought
to enforce legal duties. (Lota v. Courts of Appeals,
supra)
2. Quo warranto as a remedy to oust an ineligible
public official may be availed of when the subject act
or omission was committed prior to or at the time of
appointment or election relating to an official’s
qualifications to hold office as to render such
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appointment or election invalid. Acts or omissions,
even if it relates to the qualification of integrity
being a continuing requirement but nonetheless
committed during the incumbency of a validly
appointed and/or validly elected official cannot be
the subject of a quo warranto proceeding, but of
impeachment if the public official concerned is
impeachable and the act or omission constitutes an
impeachable offense, or to disciplinary,
administrative or criminal action, if otherwise.
(Republic of the Philippines v. Sereno, G.R. No.
237428, May 11, 2018, see dissenting opinion of
Leonen J)
RULE 67. EXPROPRIATION
RIGHT OF WAY ACT AS AMENDED BY
RA 10752
APPROVED MARCH 07, 2016
1. Stages in Expropriation
There are two (2) stages in every action for
expropriation, namely:
A. Determination of the authority of the
plaintiff to exercise the power of eminent
domain and the propriety of its exercise
in the context of the facts involved in the
suit. This ends with an order, if not of
dismissal of the action, of condemnation (or
order of expropriation) declaring that the
plaintiff has a lawful right to take the
property sought to be condemned, for the
public use or purpose described in the
complaint, upon the payment of just
compensation to be determined as of the
date of the filing of the complaint; and
B. Determination by the court of the just
compensation for the property sought to
be taken. An order of expropriation puts an
end to any ambiguity regarding the right of
the petitioner to condemn the respondents’
properties. Because an order of
expropriation merely determines the
authority to exercise the power of eminent
domain and the propriety of such exercise,
its issuance does not hinge on the payment
of just compensation. After all, there would
be no point in determining just
compensation if, in the first place, the
plaintiff’s right to expropriate the property
was not first clearly established (Republic
v. Phil-Ville Development and Housing
Corporation, G.R. No. 172243, June 26,
2007).
2. Inverse Condemnation
Inverse condemnation is a cause of action against a
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governmental defendant to recover the value of
property which has been taken in fact by the
governmental defendant, even though no formal
exercise of the power of eminent domain has been
attempted by the taking agency. While the typical
taking occurs when the government acts to
condemn property in the exercise of its power of
eminent domain, the entire doctrine of inverse
condemnation is predicated on the proposition that
a taking may occur without such formal proceedings.
The phrase "inverse condemnation," as a common
understanding of that phrase would suggest, simply
describes an action that is the "inverse" or "reverse"
of a condemnation proceeding (National Power
Corporation v. Heirs of Macabangkit Sangkay,
G.R. No. 165828, August 24, 2011)
3. While Rule 67 merely requires the Government to
deposit an authorized government depositary the
assed value if the property for expropriation for it to
be entitled to a writ of possession. R.A. 8975 (as
amended by R.A. 10752) requires the Government
to make a direct payment to the property owner
before the writ may be issued. On the other hand,
under Sec. 19 of the Local Government code, the
local government unit may immediately take
possession of the property upon the filling of the
expropriation proceedings and making a deposit
with the proper court of at least fifteen percent (15%)
of the fair market value of property based on the
current tax declaration of the property to be
expropriated. (RIANO, 2016 ed., p299)
3. Amount of deposit under R.A. No. 10752 or the
Right of Way Act
Upon the filing of the complaint or at any time
thereafter, and after due notice to the defendant, the
implementing agency shall immediately deposit to
the court in favor of the owner the amount equivalent
to the sum of:
(1) One hundred percent (100%) of the
value of the land based on the current
relevant zonal valuation of the Bureau of
Internal Revenue (BIR) issued not more
than three (3) years prior to the filing of the
expropriation complaint subject to
subparagraph (c) of this section;
(2) The replacement cost at current market
value of the improvements and structures
as determined by:
(i) The implementing agency;
(ii) A government financial
institution with adequate
experience in property appraisal;
and
(iii) An independent property
appraiser accredited by the BSP.
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(3) The current market value of crops and
trees located within the property as
determined by a government financial
institution or an independent property
appraiser to be selected. (Section 6, R.A.
10752)
NOTE: If the expropriation is engaged in by the
national government for purposes other than
national infrastructure projects, the assessed value
standard and the deposit mode prescribed under
Rule 67 shall continue to apply. (RIANO, 2016 ed.,
p.298)
4. In the case of National Power Corp. v. Posada,
G.R. No. 191945, March 11, 2015 (Leonen, J), the
Court ruled that when the taking of private property
is no longer for a public purpose, the expropriation
complaint should be dismissed by the trial court. The
case will proceed only if the trial court's order of
expropriation became final and executory and the
expropriation causes prejudice to the property
owner.
VIII.SPECIAL PROCEEDINGS
WRIT OF HABEAS CORPUS
(Rule 102)
1. Q: Distinguish between preliminary citation
and peremptory writ of habeas corpus
A: A preliminary citation requires the respondent to
appear and show cause why the peremptory writ
should not be granted. It is used in cases where the
necessity for the immediate issuance of the
peremptory writ is not manifest. On the other hand,
peremptory writ unconditionally commands the
respondent to have the body of the detained person
before the court at a time and place therein
specified. (Lee Yick Hon. v. The Insular Collection
of Customs, G.R. No.L-16779, March 30, 1921)
2. When is the issuance of a writ of habeas
corpus not applicable?
A:
(1) For asserting or vindicating the denial of the right
to bail; (Enrile v. Salazar, G.R. No. 92163, June 5,
1990; Galvez v. Courts of Appeals, G.R. No.
114046, October 24, 1994)
(2) Correcting errors of judgment; (Sotto v. Director
of Prisoners, G.R. No. L-18871, May 30, 1962)
(3) Marital rights including co-venture and living in
conjugal dwelling (i.e., compelling a husband to live
with his wife) (Ilusorio v. Bildner, G.R. No. 139808,
May 12, 2000);
(4) When a person restrained of his liberty is in the
custody of an officer:
(4.1) under process issued by a court of a
court or judge;
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(4.2) by virtue of a judgment or order of a
court of record; or
(4.3) the court or judge had jurisdiction to
issue the process, render the judgment or
make the order.
(5) When a person is duly charged in court, or
convicted of an offense (remedy is to file a motion to
quash the information or warrant of arrest); or
(6) When a person is suffering imprisonment under
lawful judgment. (S4 R102)
3. Q: Datukan Salibo was suspected to be
Batukan Malang who is an accused in the
Maguindanao Massacre Case. Salibo presented
himself to the police to clarify his name, but was
later detained. Salibo, then, filed a petition for
habeas corpus before the Court of Appeals. Was
the remedy availed of by Salibo proper?
A: YES. The writ of habeas corpus "was devised and
exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom."
Salibo was not arrested by virtue of any warrant
charging him of an offense. First, when Salibo was
in the presence of the police officers of Datu Hofer
Police Station, he was neither committing nor
attempting to commit an offense. Neither does the
police officers have personal knowledge of any
offense that he might have committed. Lastly, Salibo
was not an escapee prisoner. The police officers,
therefore, had no probable cause to arrest Salibo
without a warrant. They deprived him of his right to
liberty without due process of law, for which a
petition for habeas corpus may be issued.
(In The Matter of The Petition for Habeas Corpus
of Datukan Malang Salibo, Datukan Malang
Salibo v. Warden, Quezon City Jail., April 8, 2015,
Leonen, J.)
4. Staff Sergeant Osorio, a ranking officer of the
Armed Forces of the Philippines, was charged
with kidnapping before the RTC of Malolos City
for allegedly kidnapping U.P. students Karen
Empeno and Sherlyn Cadapan. SSggt. Osorio
was arrested and detained at the Philippine
Army Custodial Center. Contending that he was
being illegally deprived of his liberty, petitioner
filed a Petition for Habeas Corpus before the
Court of Appeals. SSgt. Osorio mainly argued
that courts-martial, not a civil court such as the
Regional Trial Court, had jurisdiction to try the
criminal case considering that he was a soldier
on active duty and that the offense charged was
allegedly "service connected."
SSgt. Osorio added that he could not be charged
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with the felony of kidnapping and serious illegal
detention because under Article 267 of the
Revised Penal Code, the felony may only be
committed by a private individual, not a ranking
officer of the Armed Forces of the Philippines.
Will the writ of habeas corpus lie?
A: NO.
Habeas corpus is an extraordinary, summary, and
equitable writ, consistent with the law's "zealous
regard for personal liberty." However, a writ of
habeas corpus may no longer be issued if the
person allegedly deprived of liberty is restrained
under a lawful process or order of the court. The
restraint then has become legal. Therefore, the
remedy of habeas corpus is rendered moot and
academic. (S4 R102)
In this case, the Regional Trial Court properly took
cognizance of the kidnapping case against him.
Republic Act No. 7055, Section 1 provides that if the
accused is a member of the Armed Forces of the
Philippines and the crime involved is one punished
under the Revised Penal Code, civil courts shall
have the authority to hear, try, and decide the case.
Kidnapping is not part of the functions of a soldier.
Even if a public officer has the legal duty to detain a
person, the public officer must be able to show the
existence of legal grounds for the detention.
Therefore, the arrest warrants against SSgt. Osorio
were issued by the court that has jurisdiction over
the offense charged. SSgt. Osorio's restraint has
become legal. (Osorio v. Navera, G.R. No. 223272,
February 26, 2018, Leonen, J.)
5. Q: In 1978, Pete was convicted by the then
Court of First Instance of Cavite on the sole
basis of his extrajudicial confession. The
decision soon became final and Pete has since
been serving sentence until now, although to
this day, he insists that he is innocent and that
his confession was coerced and uncounseled.
He forthwith caused a petition for habeas corpus
to be filed, alleging that his confinement has all
along been illegal. May Pete avail of the remedy
of habeas corpus? (1988 Bar Question)
A:
Yes. In the case of Osorio v. Navera, the Supreme
Court ruled that the restraint of liberty need not be
confined to any offense so as to entitle a person to
the writ. Habeas corpus may be availed of as a post-
conviction remedy or when there is an alleged
violation of the liberty of abode. In this case, the
constitutional right to counsel during custodial
investigation of Pete was violated, hence he may
avail the remedy of habeas corpus.
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6. Q: What courts have jurisdiction to issue writs
of habeas corpus?
A: The Regional Trial Court, Courts of Appeals, and
the Supreme Court have concurrent jurisdiction to
issue writs of habeas corpus on any day at any time.
While, the MTC, by virtue of a special jurisdiction,
can issue the writ of habeas corpus only in cases
where there is no available Regional Trial Court
Judge. The writ issued by the Regional Trial Court is
enforceable within its territorial jurisdiction. On the
other hand, when the writ is issued by the Courts of
Appeals, and the Supreme Court, the same is
enforceable anywhere in the Philippines. (S2 R102)
The Sandiganbayan may issue writs of habeas
corpus only if it is in aid of its appellate jurisdiction.
(P.D. 1606, Section 4)
RULE ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY
OF MINORS (AM 03-04-04 SC, effective May 15,
2003)
7. Q: Who may file a petition or the rightful
custody of minors?
A: A verified petition for the rightful custody of a
minor may be filed by any person claiming such right
before the Family Court of the province or city where
the petitioner resides or where the minor may be
found. (A.M. No. 03-04-04-SC, Sec 2 & Sec 3)
8. The provisions of RA 8369 reveal no manifest
intent to revoke the jurisdiction of the Court of
Appeals and Supreme Court to issue writs of habeas
corpus relating to the custody of minors. Further,
it cannot be said that the provisions of RA 8369, RA
7092 and BP 129 are absolutely incompatible since
RA 8369 does not prohibit the Court of Appeals
and the Supreme Court from issuing writs of
habeas corpus in cases involving the custody of
minors. Thus, the provisions of RA 8369 must be
read in harmony with RA 7029 and BP 129 ― that
family courts have concurrent jurisdiction with
the Court of Appeals and the Supreme Court in
petitions for habeas corpus where the custody of
minors is at issue. (Thornton v. Thornton, G.R. No.
154598, 16 August 2004)
WRIT OF AMPARO (A.M. No. 07-9-12 SC,
effective September 25, 2007)
1. In determining whether a petition for a writ of
Amparo should be granted, judges, as impartial
inquisitors, must assure themselves that there is no
actual or future threat to the petitioner's life, security,
or liberty. Indeed, pursuing rebels is a legitimate law
enforcement objective, but the zeal with which our
law enforcement officers clamp down on persons of
interest or their loved ones must be bound by the
fundamental rights of persons. [Right to privacy in
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this case]. (Sanchez v. Darroca, G.R. No. 242257
(Resolution), June 15, 2021, Leonen, J)
2. Q: Sanchez learned that her estranged
husband, Eldie Labinghisa (Labinghisa), was
among the seven (7) alleged members of the
New People's Army who were gunned down by
the PNP. The corpses were sent to St. Peter's
Funeral Home, where Sanchez went to verify the
news of her husband's death. However, the
police officers there took photos of her without
her permission. Fearing for her safety, she went
home without identifying the body of her
husband.
A few hours after, PO2 De la Cruz informed her
that her photo was being circulated at the police
station. The following day, Sanchez went back to
the funeral home, where she was confronted by
three (3) police officers who threatened to
apprehend and charge her with obstruction of
justice if she refused to answer their questions.
Sanchez again hurried home without confirming
the identity of her husband's body. Later, two (2)
police officers went to Sanchez's house and
showed her a photo of a cadaver. She confirmed
the dead body as Labinghisa.
In the following days, Sanchez noticed the
frequent drive-bys of a police car in front of her
house and a vehicle that tailed her and her family
when they went to Iloilo to attend her husband's
wake. She also noticed someone shadowing her
when she was outside her house, causing her to
fear for her and her children's safety.
Sanchez filed before the Regional Trial
Court of San Jose, Antique a Petition
for Writ of Amparo against the police officers.
Whether or not the filing of writ of Amparo was a
proper remedy?
A: Yes. The writ of Amparo is an equitable and
extraordinary remedy primarily meant to address
concerns such as, but not limited to, extrajudicial
killings and enforced disappearances, or threats
thereof.
The totality of petitioner's evidence undoubtedly
showed that she became a person of interest after
she had first visited the funeral home, where her
photo was taken. PO2 De la Cruz tried to downplay
the situation by claiming that petitioner's photo was
not "posted" in the police station, but she likewise
did not deny telling petitioner that she saw
petitioner's photo at the police station. Whether
petitioner's photo was actually posted and
distributed at the police station or was just taken for
future reference, the taking of the photo bolsters
petitioner's claims that she was being monitored by
the police. Even the daughter of petitioner confirmed
the numerous times the police drove by their house
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and being tailed whenever they set foot outside their
house.
Being Labinghisa's widow, despite being separated
in fact from him for more than a decade, puts her at
a precarious position in light of the current
administration's aggressive efforts to stamp out the
communist struggle in the country, which is seen as
the "scourge of society”. (Sanchez v. Darroca, G.R.
No. 242257, October 15, 2019, Leonen, J)
3. Q. What is the nature of hearing for writ of
Amparo?
A. The hearing on the petition shall be summary.
The court may, however, hold a preliminary
conference to simplify issues and obtain stipulations
an admissions from the parties. (A.M. No. 07-9-12
SC, Sec. 13).
4. Q: Is hearsay admissible in writ of Amparo
cases?
A: Yes. Hearsay evidence (usually considered
inadmissible under the general rules of evidence)
may be admitted as the circumstances of the case
may require, the Court, however, did not thereby
dispense with the substantial evidence rule. There is
merely a relaxation of the evidentiary rule on
the admissibility of evidence, maintaining all the
time the standards of reason and relevance that
underlie every evidentiary situation. It must be bear
in mind that the totality of the obtaining situation and
the consistency of the hearsay evidence with the
other available evidence in the case must be
considered. (Razon v. Tagitis, GR No. 182498, June
22, 2010)
5. Q: May the doctrine of command
responsibility apply in Amparo or habeas data
cases?
A: Yes. Command responsibility pertains to the
"responsibility of commanders for crimes committed
by subordinate members of the armed forces or
other persons subject to their control in international
wars or domestic conflict."
On the other hand, Amparo proceedings determine:
(a) Responsibility, or the extent the actors
have been established by substantial
evidence to have participated in whatever
way, by action or omission, in an enforced
disappearance, and
(b) Accountability, or the measure of
remedies that should be addressed to those
(i) Who exhibited involvement in the
enforced disappearance without
bringing the level of their complicity
to the level of responsibility defined
above; or
(ii) Who are imputed with
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knowledge relating to the enforced
disappearance and who carry the
burden of disclosure; or
(iii) Those who carry, but have
failed to discharge, the burden of
extraordinary diligence in the
investigation of the enforced
disappearance.
Although there is no determination of criminal, civil
or administrative liabilities, the doctrine of command
responsibility may be loosely applied in Amparo
cases in order to identify those accountable
individuals that have the power to effectively
implement whatever processes an Amparo court
would issue. In such application, the Amparo court
does not impute criminal responsibility but merely
pinpoint the superiors it considers to be in the best
position to protect the rights of the aggrieved party.
Such identification of the responsible and
accountable superiors may well be a preliminary
determination of criminal liability which, of course, is
still subject to further investigation by the
appropriate government agency. (Rodriguez v.
Macapagal-Arroyo, GR No. 191805, Novermber
15, 2011)
WRIT OF HABEAS DATA
A.M. No. 08-1-16-SC,
Effective February 2, 2008
1. 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."
2. Q: What are the requisites for the issuance of a
writ of habeas data?
A:
(1) The existence of a person’s right to informational
privacy
(2) An actual or threatened violation of the right to
privacy in life, liberty or security of the victim (proven
by at least substantial evidence)
Note: the writ will not issue on the basis merely of
an alleged unauthorized access to information about
a person. (Vivares v. St. Theresa’s College, GR
No. 202666, Sept 29, 2014)
3. Q: Then Secretary De Lima directed the
sudden transfer of national inmates from the
National Bilibid Prisons in Muntinlupa City to the
National Bureau of Corrections in Manila City for
the purpose of conducting an inspection on
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their living quarters. This activity was conducted
as a result of several months of intelligence
reports investigating the alleged conduct of
illegal activities by some inmates inside the New
Bilibid Prison. Officers then conducted a
surprise raid on the living quarters (kubol) of 20
inmates of the New Bilibid Prison classified as
High-Risk/High Profile, one of which is Amin
Imam Boratong. After the raid, several illegal and
contraband items were recovered.
Petitioner Boratong, wife of Amin Imam
Boratong, claims that a writ of habeas data
should have been issued, arguing that no
documents were given identifying her husband
as "high risk" that would justify his transfer to
the National Bureau of Investigation and
subsequently to Building 14, the National Bilibid
Prison facility for holding high risk inmates. She
further claims that there was no information
given as to her husband's involvement in the
alleged illegal activities inside New Bilibid
Prison since no luxury items were found in
his kubol during the surprise raid.
Whether or not a writ of habeas data should have
been issued?
A: No, there is no compelling reason for this Court
to issue the writ. The writ is being sought to compel
the Department of Justice to produce documents to
justify Boratong's transfer from the National Bilibid
Prison in Muntinlupa City to the National Bilibid
Prison Extension Facility in Manila City. This
allegation, however, bears no relation to his right to
privacy, which has since been restricted by
virtue of his conviction, or how it affects his life,
liberty, or security. There is no allegation that
government agents are gathering, collecting, or
storing data or information regarding his person,
family, home and correspondence. There were no
other allegations in support of the prayer for
the writ.
The right of a convicted national inmate to his or her
privacy runs counter to the state interest of
preserving order and security inside our prison
systems. There is no longer any reasonable
expectation of privacy when one is being monitored
and guarded at all hours of the day. Unless there is
compelling evidence that a public employee
engaged in the gathering, collecting or storing of
data or information on the convicted national inmate
has committed an unlawful act which threatens the
life of the inmate, a petition for the writ of habeas
data cannot prosper. (In the Matter of the Petition
for Writ of Habeas Corpus/Data v. De Lima, G.R.
Nos. 215585 & 215768, September 8, 2020,
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BRAVO BASTE!
Leonen, J)
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
(A.M. No. 09-6-8-SC, effective April 29, 2010)
1. Q: When may a temporary environmental
protection order (TEPO) be issued?
A: If it appears from the verified complaint with a
prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of extreme
urgency and the applicant will suffer grave injustice
and irreparable injury, the executive judge of the
multiple sala court before raffle or the presiding
judge of a single-sala court as the case may be, may
issue ex parte a TEPO effective for only seventy-two
(72) hours from date of the receipt of the TEPO by
the party or person enjoined. Within said period, the
court where the case is assigned, shall conduct a
summary hearing to determine whether the TEPO
may be extended until the termination of the case.
The court where the case is assigned, shall
periodically monitor the existence of acts that are the
subject matter of the TEPO even if issued by the
executive judge, and may lift the same at any time
as circumstances may warrant. The applicant shall
be exempted from the posting of a bond for the
issuance of a TEPO. (S8R2 of the Rules of
Procedure for Environmental Cases)
2. Q: Define a strategic lawsuit against public
participation or SLAPP.
A: 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. (S1R6 of the Rules of Procedure for
Environmental Cases)
3. Q. What are the standards for the application
of the precautionary principle?
A. Precautionary principle states that when human
activities may lead to morally unacceptable harm
that is scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that harm. Morally
unacceptable harm refers to harm to humans or the
environment that is
(1) Threatening to human life or health;
(2) Inequitable to present or future generations; or
(3) Prejudicial to the environment without legal
consideration of the environmental rights of those
affected. (S2R20 of the Rules of Procedure for
Environmental Cases, Annotation to the Rules of
Procedure for Environmental Cases)
4. Q: May the writ of kalikasan be issued despite
the presence of other legal remedies?
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A: No. The function of the extraordinary and registered with any

equitable remedy of a Writ of Kalikasan should not government agency,
supplant other available remedies and the nature of on behalf of persons
the forums that they provide. The Writ of Kalikasan whose right to a
is a highly prerogative writ that issues only when balanced and healthful
there is a showing of actual or imminent threat and ecology is violated or
when there is such inaction on the part of the threatened to be
relevant administrative bodies that will make an violated
environmental catastrophe inevitable. It is not a Respondent
remedy that is availing when there is no actual threat Government or its Private individual or
or when imminence of danger is not demonstrable. officers entity
The Writ of Kalikasan thus is not an excuse to invoke Exemption from docket fees:
judicial remedies when there still remain The application for either petition is exempted
administrative forums to properly address the from the payment of docket fees.
common concern to protect and advance ecological Venue
rights. (Abogado v. Department of Environment (a) Regional Trial Court Supreme Court or any
and Natural Resources, G.R. No. 246209, exercising jurisdiction of the stations of the
September 3, 2019, Leonen, J. ) over the territory where Court of Appeals
the actionable neglect or (Manila, Cebu City, and
5. WRIT OF CONTINUING MANDAMUS vs. WRIT omission occurred; Cagayan De Oro)
OF KALIKASAN (b) Court of Appeals; or
WRIT OF CONTINUING WRIT OF (c) Supreme Court.
MANDAMUS KALIKASAN Discovery measures
Subject Matter None 1. Ocular inspection
Directed against Available against an order
(a) the unlawful neglect unlawful act or 2. Production order.
in the performance of an omission of a public Damages for Personal Injury
act which the law official or employee, or Allows damages for the Not applicable.
specifically enjoins as a private individual or malicious neglect of the Remedy is to file
duty resulting from an entity, involving performance of the legal another suit for the
office, trust or station in environmental damage duty of the respondent. recovery of damages.
connection with the of such magnitude as (Edited & Pattered from Annotation to the Rules
enforcement or violation to prejudice the life, of Procedure for Environmental Cases)
of an environmental law health or property of
rule or regulation or a inhabitants in two or Note: In July 2021, the SC en banc dismissed the
right therein; or more cities or petition for Writ of Kalikasan and Continuing
(b) the unlawfully provinces. Mandamus against the government’s coronavirus
exclusion of another In addition, magnitude task force filed by former Boac, Marinduque Mayor
from the use or of environmental Pedrito Nepomuceno.
enjoyment of such right damage is a condition
and in both instances, sine qua non in a 6. Q: Writ of Mandamus vs Writ of Continuing
there is no other plain, petition for the Mandamus.
speedy and adequate issuance of a Writ of A: Generally, the writ of mandamus lies to require
remedy in the ordinary Kalikasan and must be the execution of a ministerial duty. A ministerial duty
course of law. contained in the is one that requires neither the exercise of official
verified petition. discretion nor judgment. It connotes an act in which
Who may file nothing is left to the discretion of the person
One who is personally 1. Natural or juridical executing it. It is a simple, definite duty arising under
aggrieved by the person, entity conditions admitted or proved to exist and imposed
unlawful act or omission authorized by law, by law. Mandamus is available to compel action,
2. people’s when refused, on matters involving discretion, but
organization, not to direct the exercise of judgment or discretion
3. non-governmental one way or the other. (Metropolitan Manila
organization, or Development Authority v. Concerned Residents
4. Any public interest of Manila Bay, G.R. Nos. 171947-48 (Resolution),
group accredited by or 15 February 2011)
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On the other hand, a writ of continuing mandamus
is, in essence, a command of continuing compliance
with a final judgment as it "permits the court to retain
jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated
under the court's decision. (Dolot v. Paje, G.R. No.
199199, 27 August 2013)
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I. LEGAL ETHICS
Q1: QUALIFICATIONS FOR NEW LAWYERS
FOR THE ADMISSION TO THE BAR:
Under Sections 2, 5 and 6 of Rule 138, the
applicant must:
1. be a Citizen of the Philippines;
2. be at least 21 years of age;
3. be of Good moral character;
4. be a Resident of the Philippines;
5. produce before the SC satisfactory
Evidence of good moral character;
6. No charges against him, involving moral
turpitude, have been filed or are pending in
any court in the Philippines (Sec. 2, Rule
138)
7. have complied with the Academic
requirements;
8. Pass the bar examinations;
9. Take the lawyer’s Oath; and
10. Sign the Roll of Attorneys.
B.M. No. 1153, Sec. 5. Additional Requirement
for Other Applicants. — All applicants for
admission other than those referred to in the two
preceding sections shall, before being admitted to
the examination, satisfactorily show that they have
successfully completed all the prescribed courses
for the degree of Bachelor of Laws or its equivalent
degree, in a law school or university officially
recognized by the Philippine Government or by the
proper authority in the foreign jurisdiction where the
degree has been granted.
No applicant who obtained the Bachelor of Laws
degree in this jurisdiction shall be admitted to the bar
examination unless he or she has satisfactorily
completed the following course in a law school or
university duly recognized by the government: civil
law, commercial law, remedial law, criminal law,
public and private international law, political law,
labor and social legislation, medical jurisprudence,
taxation and legal ethics.
A Filipino citizen who graduated from a foreign law
school shall be admitted to the bar examination only
upon submission to the Supreme Court of
certifications showing: (a) completion of all courses
leading to the degree of Bachelor of Laws or its
equivalent degree; (b) recognition or accreditation of
the law school by the proper authority; and (c)
completion of all the fourth year subjects in the
Bachelor of Laws academic program in a law school
duly recognized by the Philippine Government.
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SEC. 6. Pre-Law. — An applicant for admission to
the bar examination shall present a certificate issued
by the proper government agency that, before
commencing the study of law, he or she had pursued
and satisfactorily completed in an authorized and
recognized university or college, requiring for
admission thereto the completion of a four-year high
school course, the course of study prescribed
therein for a bachelor's degree in arts or sciences.
A Filipino citizen who completed and obtained his or
her Bachelor of Laws degree or its equivalent in a
foreign law school must present proof of having
completed a separate bachelor's degree course.
Lawyers who have been repatriated
Petition for Leave to Resume Practice of Law,
Benjamin M. Dacanay
B.M. No. 1678, December 17, 2007
It was held that before a lawyer who reacquires
Filipino citizenship pursuant to RA 9225 can resume
his law practice, he must first secure from this Court
the authority to do so, conditioned on:
(a) the updating and payment in full of the annual
membership dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of
mandatory continuing legal education; this is
especially significant to refresh the
applicant/petitioner’s knowledge of Philippine laws
and update him of legal developments; and
(d) the retaking of the lawyer’s oath which will not
only remind him of his duties and responsibilities as
a lawyer and as an officer of the Court, but also
renew his pledge to maintain allegiance to the
Republic of the Philippines.
Compliance with these conditions will restore his/her
good standing as a member of the Philippine bar.
Q2: CODE OF PROFESSIONAL
RESPONSIBILITY
Duties and Responsibilities of a Lawyer under
the Code of Professional Responsibility
Lawyer’s Oath
I, _____, do solemnly swear that I will maintain
allegiance to the Republic of the Philippines; I will
support the Constitution and obey the laws as well
as the legal orders of the duly constituted authorities
therein; I will do no falsehood nor consent to the
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doing of any in court; I will not wittingly or willingly
promote or sue any groundless, false or unlawful
suit, or give aid nor consent to the same; I will delay
no man for money or malice, and will conduct myself
as a lawyer according to the best of my knowledge
and discretion, with all good fidelity as well to the
courts as to my clients; and I impose upon myself
these voluntary obligations, without any mental
reservation or purpose of evasion.
So help me God.
Four-fold Duty of a Lawyer
1. Public/Society – He must not undertake any
action which violates his responsibility to the society
as a whole, he must be an example in the
community for his uprightness as a member of the
society. The lawyer must be ready to render legal
aid, foster legal reforms, be a guardian of due
process, and aware of his special role in the solution
of special problems and be always ready to lend
assistance in the study and solution of social
problems (Canons 1-6, CPR).
2. Bar/Legal Profession – Observe candor,
fairness, courtesy and truthfulness in his conduct
towards other lawyers, avoid encroachment in the
business of other lawyers and uphold the honor of
the profession. (Canons 7-9, CPR)
3. Courts – A lawyer must maintain towards the
court a respectful attitude, defend against unjust
criticisms, uphold the court’s authority and dignity,
obey court orders and processes, assists in the
administration of justice (Canons 10-13, CPR).
4. Clients – The lawyer owes entire devotion to the
interest of his client, warm and zeal in the
maintenance of the defense of his rights and
exertion of utmost learning ability to the end that
nothing be taken or withheld from his client except
in accordance with law. He owes a duty of
competent and zealous representation to the client,
and should preserve his client’s secrets, preserve
his funds and property and avoid conflicts of interest
(Canon 14-22, CPR).
NOTE: The first and most important duty of a lawyer
is his duty to the COURT. The lawyer is an officer of
the court who sets the judicial machinery with the
main mission of assisting the court in the
administration of justice. The lawyer’s public duties
take precedence over his private duties.
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1. To Society (Canons 1-6)
Respect for Law and Legal Processes
CANON 1
A lawyer shall uphold the Constitution, obey the laws
of the land and promote respect for law and legal
processes.
Two-fold duty under Canon 1
1. Obey the laws and legal processes; and
2. Inspire others to maintain respect and obedience
thereto.
NOTE: The portion of Canon 1 which calls for
lawyers to “promote respect for law and for legal
processes” is a call to uphold the Rule of Law.
Concept of Rule of Law. The supremacy of the law
provides that decisions should be made by the
application of known legal principles or laws without
the intervention of discretion in their application.
Efficient and Convenient Legal Services
CANON 2
A lawyer shall make his legal services available in
an efficient and convenient manner compatible with
the independence, integrity, and effectiveness.
NOTE: It is the lawyer’s primary duty to see to it
that justice is accorded to all without discrimination.
Rule 2.01. A lawyer shall not reject, except for valid
reasons, the causes of the defenseless or the
oppressed.
Defenseless. Those who are not in a position to
defend themselves due to poverty, weakness,
ignorance or other similar reasons.
Oppressed. Those who are the victims of cruelty,
unlawful exaction, domination, or excessive use of
authority.
NOTE: The inability to pay for legal services is not a
valid reason to refuse acceptance of a case. This is
because the profession is a branch of the
administration of justice and not a mere money-
getting trade.
Rule 2.02. In such cases, even if the lawyer does
not accept a case, he shall not refuse to render legal
advice to the person concerned if only to the extent
necessary to safeguard the latter’s rights.
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Rendering of Legal Advice. This includes
preliminary steps that should be taken, at least, until
the person concerned has obtained the services of
a proper counsel’s representation. Even though no
attorney-client relationship is created between the
parties, the lawyer, by providing interim advice,
preserves the dignity of the profession by inspiring
public faith in the profession.
True, Honest, Fair, Dignified, and Objective
Information on Legal Services
CANON 3
A lawyer in making known his legal services shall
use only true, honest, fair, dignified, and objective
information or statement of facts.
Brazen commercialization of legal services is
NOT allowed
The practice of law is not a trade like the sale of
commodities to the general public where “the usual
exaggerations in trade, when the proper party had
the opportunity to know the facts, are not in
themselves fraudulent: (Art. 1340, NCC).
The use of any false, exaggerating or untrue claims
about his/her qualifications are clearly unethical.
Participation in the Improvement and Reforms
in the Legal System
CANON 4
A lawyer shall participate in the development of the
legal system by initiating or supporting efforts in law
reform and in the improvement of the administration
of justice.
By reason of education and experience, lawyers are
especially qualified to recognize deficiencies in the
legal system and initiate corrective measures
therein. They should participate in proposing and
supporting legislation and programs to improve the
system, without regard to the general interests or
desires of clients or former clients.
Participation in the Legal Education Program
CANON 5
A lawyer shall keep abreast of legal developments,
participate in continuing legal education programs,
support efforts to achieve high standards in law
schools as well as in the practical training of law
students and assist in disseminating information
regarding the law and jurisprudence.
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Three-fold obligation of a lawyer under this
canon:
1. He owes it to himself to continue improving his
knowledge of the laws by being well-informed of the
existing laws and to keep abreast of legal
developments.
2. He owes it to his profession to take an active
interest in the maintenance of high standards of
legal education.
3. He owes it to the lay public to make the law a
part of their social consciousness.
Lawyers in Government Service Discharging
their Tasks
CANON 6
These canons shall apply to lawyers in the
government service in the discharge of their official
tasks.
Vitriolo v. Dasig
A.C. No. 4984, April 1, 2003
Lawyers employed in the government should be
more sensitive in the performance of their
professional obligations as their conduct is subject
to constant scrutiny of the public.
Adverse-Interest Conflicts. Exist where the matter
in which the former government lawyer represents a
client in private practice is substantially related to the
matter that the lawyer dealt while employed by the
government and the interests of the former are
adverse.
General Rule: Rule 6.03. A lawyer shall not after
leaving the government service, accept engagement
or private employment in connection with any matter
in which he had intervened while in said service.
Exception: If the engagement or employment was
made on behalf of the body or authority which he
served during his public employment.
NOTE: Sec. 7(b) of R.A. 6713 prohibits former public
official or employee for a period of 1 year after
retirement or separation from office to practice
his profession in connection with any matter before
the office he used to be with.
2. The Legal Profession (Canons 7-9)
CANON 7
A lawyer shall at all times uphold the integrity and
dignity of the legal profession and support the
activities of the Integrated Bar.
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Integrated Bar of the Philippines
(Rule 139-A)
The Integration of the Philippine Bar means the official
unification of the entire lawyer population, and this
requires membership and financial support of every
attorney as condition sine qua non to the practice of law
and the retention of his name in the Roll of Attorneys of
the Supreme Court (Pineda, 1999).
In the Matter of the Integration of the
Bar of the Philippines
49 SCRA 22, January 9, 1973
The practice of law is not a vested right but a privilege
clothed with public interest. Hence, it is fair and just that
the exercise of that privilege be regulated to assure
compliance with the lawyer's public responsibilities.
Given existing bar conditions, the most efficient means
of doing so is by integrating the Bar through a rule of
court that requires all lawyers to pay annual dues to the
Integrated Bar.
Membership and Dues
In the Matter of IBP membership dues
delinquency of Atty. Marcial Edillon
A.M. 1928, August 3, 1978
Membership dues are NOT prohibited by the
Constitution. The fee is imposed as a REGULATORY
measure, designed to raise funds for carrying out the
purposes and objectives of the integration.
Effect of Non-Payment of Dues. Default in the
payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar,
and default in such payment for one year shall be a
ground for the removal of the name of the delinquent
member from the Roll of Attorneys (Sec. 10, Rule
139-A) subject to the requirement of due process.
(Funa, 2009)
NOTE: R.A. 7432 providing 20% discount to Senior
Citizens DOES NOT apply to IBP Dues.
No Retirement in the IBP
In Re: Atty. Jose Principe
Bar Matter No. 543, September 20, 1990
There is no such thing as retirement in the IBP as
understood in labor law. A lawyer, however, may
terminate his bar membership after filing the
required verified notice of termination with the
Secretary of the Integrated Bar.
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Upholding the Dignity and Integrity of the
Profession
Rule 7.03. A lawyer shall not engage in a conduct
that adversely reflects on his fitness to practice law,
nor shall he, whether in public or private life, behave
in a scandalous manner to the discredit of the legal
profession. (2004 Bar)
Courtesy, Fairness and Candor toward
Professional Colleagues
CANON 8
A lawyer shall conduct himself with courtesy,
fairness, and candor towards his professional
colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.02. A lawyer shall not, directly or indirectly,
encroach upon the professional employment of
another lawyer; however, it is the right of any lawyer,
without fear or favor, to give proper advice and
assistance to those seeking relief against unfaithful
or neglectful counsel (1995, 1997, 2001, 2005, 2006
Bar).
Exceptions:
1. A lawyer may properly interview any witness or
prospective witness or prospective witness for the
opposing side in any civil or criminal action without
the consent of opposing counsel or party; and
2. Any person who seeks relief against an unfaithful
or neglectful lawyer may approach another lawyer
for proper advice and assistance. Any advice or
assistance extended after proper verification is not
encroaching upon the business of another lawyer for
such act is justified under the circumstances.
No Assistance in Unauthorized Practice of Law
CANON 9
A lawyer shall not, directly or indirectly, assist in the
unauthorized practice of law.
Unauthorized Practice of Law. It is committed
when a person, not a lawyer, performs acts which
are exclusive to members of the Bar.
Reason: To protect the public, the court, the client,
and the Bar from the incompetence or dishonesty of
those unlicensed to practice law and not subject to
disciplinary control of the court (Cambaliza v.
Cristal-Tenorio, A.C. No. 6290, July 14, 2014).
3. The Courts (Canons 10-13)
Candor, Fairness and Good Faith towards the
Courts
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CANON 10
A lawyer owes candor, fairness, and good faith to
the court.
As officers of the court, lawyers have the primary
obligation towards the administration of justice. To
mislead the court is contumacious and clearly a
ground for disciplinary action.
Respect for Courts and Judicial Officers
CANON 11
A lawyer shall observe and maintain the respect due
to the courts and to judicial officers and should insist
on similar conduct by others.
In re Vicente Sotto
82 Phil. 595, January 21, 1949
Disrespect toward the court would necessarily
undermine the confidence of the people in the
honesty and integrity of the court, and consequently,
to lower or degrade the administration of justice by
the court.
In case of conflict between his duty to the court and
his duty to the society and his client, the other must
yield since it is his duty to the court that should take
precedence.
NOTE: The fact that a person is a lawyer does not
deprive him of the right, as enjoyed by every citizen, to
comment on and criticize the actuations of a judge but
it is the cardinal condition of all criticisms that it shall be
bona fide, and shall not spill over the walls of decency
and propriety (Zaldivar v. Gonzales, G.R. No. 79690-
707, February 1, 1989).
Assistance in the Speedy and Efficient
Administration of Justice
CANON 12
A lawyer shall exert every effort and consider it his
duty to assist in the speedy and efficient
administration of justice.
As officers of the court, lawyers have the primary
obligation towards the administration of justice. To
mislead the court is contumacious and clearly a
ground for disciplinary action.
Rule 12.02, Canon 12. A lawyer shall not file multiple
actions arising from the same cause. (1991, 1997,
1998, 2002 Bar)
Foronda v. Atty. Guerrero
A.C. NO. 5469, August 10, 2004
The essence of forum shopping is the filing of
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multiple suits involving the same parties for the
same cause of action, either simultaneously or
successively, to obtain a favorable judgment.
Reliance on Merits of case, not on impropriety
tending to influence the courts
CANON 13
A lawyer shall rely upon the merits of his cause and
refrain from any impropriety which tends to
influence, or gives the appearance of influencing the
court.
It is unethical for a lawyer to give an appearance as
if he is capable of influencing judges and court
personnel. Giving of gifts to the judges are
discouraged as it tends to give an appearance of
influencing the conduct of judicial function or
breeding familiarity with judges.
4. The Clients (Canons 14 – 22)
Availability of Service Without Discrimination
CANON 14
A lawyer shall not refuse his services to the needy.
The poor and indigent should not be further
disadvantaged by the lack of access to the
Philippine Legal System.
Services as Counsel de Officio
Rule 14.02. A lawyer shall not decline, except for
serious and sufficient cause, an appointment as
counsel de officio or as amicus curiae, or a request from
the Integrated Bar of the Philippines or any of its
chapters for rendition of free legal aid.
Reason: The Counsel de Officio must take the case not
as a burden but as an opportunity to assist in the proper
dispensation of justice. No lawyer is to be excused from
this responsibility except only for the most compelling
and cogent reasons.
Counsel de Officio
1. Members of the Bar in good standing
2. Any person, resident of the province and of good
repute for probity and ability, in localities without
lawyers.
Valid Grounds for Refusal
General Rule: A lawyer is NOT obliged to act as the
legal counsel for any person who may wish to
become his client. He has the right to decline
employment.
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Exceptions:
1. A lawyer shall not refuse his services to the
needy. (Canon 14)
2. He shall not decline to represent a person solely
on account of the latter’s race, sex, creed, or status
in life, or because of his own opinion regarding the
guilt of said person (Rule 14.01)
3. He shall not decline, except for serious and
efficient cause like:
a. If he is not in a position to carry put
effectively or competently
b. If he labors under a conflict of interest
between him and the prospective client or
between a present client and a prospective
client (Rule 14.03)
Candor, Fairness, and Loyalty to Clients
CANON 15
A lawyer shall observe candor, fairness, and loyalty
in all his dealings and transactions with his clients
A lawyer owes absolute fidelity to the cause of his
client. He owes his client full devotion to his interest,
warm zeal in the maintenance and defense of his
rights.
Rollon v. Atty. Naraval
A.C. No. 6424, March 4, 2005
If they find that their client’s cause is defenseless,
then it is their bounden duty to advise the latter to
acquiesce and submit rather than to traverse the
incontrovertible.
Privileged Communication
Mercado v. Vitriolo
A.C. No. 5108, May 26, 2005
A privileged communication is one that refers to
information transmitted by voluntary act of disclosure
between attorney and client in confidence and by
means of which, insofar as the client is aware, discloses
the information to no third person other than the one
reasonably necessary for the transmission of the
information or the accomplishment of the purpose for
which it was given.
Requisites:
1. There exists an attorney-client relationship, or a
prospective attorney-client relationship, and it is by
reason of this relationship that the client made the
communication;
2. The client made the communication in
confidence;
3. The legal advice must be sought from the attorney
in his professional capacity
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Regala v. Sandiganbayan
G.R. No. 105938, September 20, 1996
Client identity is privileged where a strong probability
exists that revealing the client’s name would
implicate that client in the very activity for which he
sought the lawyer’s advice.
Conflict of Interest (1991, 1992, 1993, 1994, 1997,
1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006,
2008 Bar)
Rule 15.01, Canon 15. A lawyer, in conferring with
a prospective client, shall ascertain as soon as
practicable whether the matter would involve a
conflict with another client or his own interest, and if
so, shall forthwith inform the prospective client.
General Rule: An attorney cannot represent diverse
interests. It is highly improper to represent both
sides of an issue. The proscription against
representation of conflicting interest finds
application where the conflicting interest arise with
respect to the same general matter and is applicable
however slight such adverse interest may be. It
applies although the attorney’s intention and
motives were honest and he acted in good faith.
Exception: Representation of conflicting interest
may be allowed where the parties consent to the
representation after full disclosure of facts (Nakpil v.
Valdez, A.C. No. 2040, March 4, 1998).
Concurrent Practice with Another Profession
A party’s engagement of his counsel in another
capacity concurrent with the practice of law is not
prohibited, so long as the roles being assumed by
such counsel is made clear to the client. The lawyer
should inform the client when he is acting as a
lawyer, and when he is not, because certain ethical
considerations governing the client-lawyer
relationship may be operative in one case and not in
the other.
CANON 16
A lawyer shall hold in trust all moneys and properties
of his client that may come into his possession.
Rule 16.01, Canon 16. A lawyer shall account for all
money or property collected or received for or from
the client.
Where a client gives money to his lawyer for a
specific purpose, such as to file an action, appeal an
adverse judgment or consummate a settlement, or
pay the purchase price of a parcel of land, the lawyer
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should account for the money. If he fails to
accomplish the purpose for which the money is
intended, he should immediately return the money
to his client.
Co-mingling of Funds
Rule 16.02, Canon 16. A lawyer shall keep the
funds of each client separate and apart from his own
and those of others kept by him.
A lawyer should report promptly the money of his or
her client that has come to his possession. He or she
should maintain a reputation for honesty and fidelity
to private trust.
Delivery of Funds
Rule 16.03, Canon 16, of the Code of Professional
Responsibility states that lawyer shall deliver the
funds and property of his or her client when due or
upon demand. Failure to do so gives rise to the
presumption that he or she has misappropriated it
for his or her own use to the prejudice of and in
violation of the trust reposed in him or her by the
client. It is a gross violation of general morality as
well as of professional ethics; it impairs the public
confidence in the legal profession and deserves
punishment. The same provision grants the lawyer
lien over the client’s funds in his or her possession
as well as on all judgments and executions he or she
has secured for his or her client, to satisfy his or her
lawful fees and disbursements.
Borrowing or Lending
The first part of Rule 16.04, Canon 16 of the Code
of Professional Responsibility which prohibits a
lawyer from borrowing money from his or her client,
is intended to prevent the lawyer from taking
advantage of his or her influence over the client.
The second part of the rule, which prohibits a lawyer
from lending money to the client, except when, in the
interest of justice, he or she has to advance
necessary expenses in a legal matter he or she is
handling, is intended to assure the lawyer’s
independent professional judgment, for if the lawyer
acquires a financial interest in the outcome of the
case, the free exercise of his or her judgment may
be adversely affected. If the lawyer lends money to
the client in connection with the client’s case, the
lawyer in effect acquires an interest in the subject
matter of the case or an additional stake in its
outcome, which may lead the lawyer to consider his
or her own recovery rather than that of his or her
client or to accept a settlement which might take
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care of his or her interest in the verdict to the
sacrifice of that of the client in violation of his or her
duty of undivided fidelity to the client’s cause.
Fidelity to client’s cause
CANON 17
A lawyer owes fidelity to the cause of his client and
he shall be mindful of the trust and confidence
reposed in him.
A lawyer owes entire devotion to the interest of his
or her client, warm zeal in the maintenance and
defense of his or her client’s rights, and the exertion
of his or her utmost learning and ability to the end
that nothing be taken or withheld from his or her
client, save by the rules of law, legally applied.
Competence and diligence
CANON 18
A lawyer shall serve his client with competence and
diligence.
By accepting a retainer, a lawyer impliedly
represents that (a) he or she possesses the requisite
degree of learning, skill and ability which is
necessary to the practice of his profession and
which others similarly situated possess; (b) he will
exert his best judgment in the prosecution or
defense of the litigation entrusted to him; (c) he will
exercise reasonable and ordinary care and diligence
in the use of his skill and in the application of his
knowledge to his client’s cause; and (d) he will take
such step as will adequately safeguard his client’s
interest.
Collaborating counsel
Rule 18.01, Canon 18. A lawyer shall not undertake
a legal service which he knows or should know that
he is not qualified to render. However, he may
render such service if, with the consent of his client,
he can obtain as collaborating counsel a lawyer who
is competent on the matter.
By accepting professional employment, a lawyer
holds himself or herself out to his or her client that
he or she is knowledgeable, competent, and skillful
to handle the case. Some cases involve specialized
fields of law and require special training, of which a
lawyer may not be knowledgeable. However, the
lawyer may still render such service if, with the
consent of his or her client, he or she can obtain as
collaborating counsel a lawyer who is competent on
the matter.
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Adequate protection
Rule 18.02, Canon 18. A lawyer shall not handle
any legal matter without adequate preparation.
The key to the problem of how best a lawyer can
safeguard his client’s rights and interests is through
study and preparation. The full protection of the
client’s interests requires no less than a mastery of
the applicable law and the facts involved in a case,
regardless of the nature of the assignment.
Careless preparation may cast doubt upon the
lawyer’s intellectual honesty and capacity.
Negligence
Rule 18.03, Canon 18. A lawyer shall not neglect a
legal matter entrusted to him, and his negligence in
connection therewith shall render him liable.
The general rule is that the negligence or mistake of
counsel binds the client. This rule is based on the
principle that any act performed by a counsel within
the scope of his general or implied authority is
regarded as the act of his client. Consequently, the
mistake or negligence of counsel may result in the
rendition of an unfavorable judgment against the
client.
What amounts to carelessness or negligence in the
lawyer’s discharge of his or her duty to the client is
incapable of exact formulation. There is want of the
required diligence where the lawyer failed, without
sufficient justification, to bring an action
immediately, file the answer to the complaint within
the reglementary period, notify his or her client of the
date of the hearing, attend the scheduled pre-trial
conference or hearing, prosecute the action for a
reasonable period, inform the client of an adverse
judgment within the reglementary period to appeal,
take steps to have the adverse decision
reconsidered or appealed, ascertain the correct date
of receipt of the decision, acquaint himself or herself
with what has happened to the litigation, pay the
docket fee on appeal, claim judicial notice sent to
him or her by mail, or file the appellant’s brief.
Duty to apprise client
Rule 18.04, Canon 18. A lawyer shall keep the client
informed of the status of his case and shall respond
within a reasonable time to the client's request for
information.
It is the duty of an attorney to notify the client of an
adverse decision well within the period to appeal to
enable his or her client to decide whether to seek an
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appellate review thereof. The lawyer should
communicate with the client concerning the
withdrawal of appeal with all its adverse
consequences.
Keeping the client fully informed of important
developments of his or her case will minimize
occasions for misunderstanding or loss of trust and
confidence in the attorney. A lawyer who repeatedly
disdains to answer the inquiries or communications
of his or her client violates the rules of professional
courtesy and neglects his client’s interest.
Representation with zeal within legal bounds
CANON 19
A lawyer shall represent his client with zeal within
the bounds of law.
A lawyer shall preserve the confidence and secrets
of his client even after the attorney-client relation is
terminated. It is the duty of an attorney to “maintain
inviolate the confidence, and at every peril to
himself, to preserve the secret of his client.” The
performance of such duty involves the application of
rules of evidence and of professional ethics, both of
which seek to safeguard the client’s confidence.
An attorney cannot, without the consent of his or her
client, be examined as to any communication made
by the client to him or her; nor can an attorney’s
secretary, stenographer, or clerk be examined,
without the consent of the client and his or her
employer, concerning any fact the knowledge of
which has been acquired in such capacity.
Use of fair and honest means
Rule 19.01, Canon 19. A lawyer shall employ only
fair and honest means to attain the lawful objectives
of his client and shall not present, participate in
presenting or threaten to present unfounded criminal
charges to obtain an improper advantage in any
case or proceeding.
A lawyer should employ such means only as are
consistent with truth and honor. He or she should not
offer in evidence any document which he or she
knows is false nor present any witness whom he or
she knows will perjure. He or she should make such
defense only as he or she believes to be honestly
debatable under the law and should abstain from all
offensive personality and advance no fact prejudicial
to the honor or reputation of a party or witness
unless required by the justice of the cause with
which he or she is charged.
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Client’s fraud
Rule 19.02, Canon 19. A lawyer who has received
information that his client has, in the course of the
representation, perpetrated a fraud upon a person
or tribunal, shall promptly call upon the client to
rectify the same, and failing which he shall terminate
the relationship with such client in accordance with
the Rules of Court.
A lawyer should use his or her best effort to restrain
and prevent his or her client from doing those things
which he himself or she herself ought not to do,
particularly with reference to the conduct toward the
court, judicial officer, witness and suitor; and if the
client persists in such wrongdoing, the lawyer should
terminate their relation.
Procedure in handling cases
Rule 19.03, Canon 19. A lawyer shall not allow his
client to dictate the procedure in handling the case.
The client’s insistence that a lawyer should do a
particular act and the lawyer’s compliance therewith
cannot in any manner justify the lawyer’s violation of
the rules and ethics of the legal profession. The
lawyer’s duty to the court is not secondary to that of
his or her client.
CANON 20
A lawyer shall charge only fair and reasonable fees.
Rule 20.01, Canon 20. A lawyer shall be guided by
the following factors in determining his fees:
(a) The time spent and the extent of the
services rendered or required;
(b) The novelty and difficulty of the
questions involved;
(c) The importance of the subject matter;
(d) The skill demanded;
(e) The probability of losing other
employment as a result of acceptance of the
proffered case;
(f) The customary charges for similar
services and the schedule of fees of the IBP charter
to which he belongs;
(g) The amount involved in the controversy
and the benefits resulting to the client from the
service;
(h) The contingency or certainty of
compensation;
(i) The character of the employment,
whether occasional or established; and
(j) The professional standing of the lawyer.
The foregoing factors, not one of which is controlling
are mere guides in ascertaining the real value of the
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lawyer’s services. Only some of them may be
considered by the court.
Rule 20.02, Canon 20. A lawyer shall, in cases of
referral, with the consent of the client, be entitled to
a division of fees in proportion to the work performed
and responsibility assumed.
The referral of a client by a lawyer to another lawyer
does not entitle the former to a commission nor to a
portion of the attorney’s fees. It is only when, in
addition to the referral, he performs legal service or
assumes responsibility in the case that he will be
entitled to a fee.
Rule 20.03, Canon 20. A lawyer shall not, without
the full knowledge and consent of the client, accept
any fee, reward, costs, commission, interest, rebate
or forwarding allowance, or other compensation
whatsoever related to his professional employment
from anyone other than the client.
The general rule is that a lawyer should receive
compensation for his services in a case only from his
client and not from other persons. The rule is
designed to secure the lawyer’s wholehearted
fidelity to the client’s cause and to prevent that
situation in which the receipt by him of a rebate or
commission from another in connection with the
client’s cause may interfere with the full discharge of
his duty to the client. A corollary of the foregoing rule
is the principle that whatever a lawyer receives from
the opposite party in the service of his client belongs
to the client.
Rule 20.04, Canon 20. A lawyer shall avoid
controversies with clients concerning his
compensation and shall resort to judicial action only
to prevent imposition, injustice, or fraud.
Suits to collect fees should be avoided, and only
where the circumstances imperatively require
should a lawyer resort to lawsuit to enforce payment
of his fees. He or she may take judicial action to
protect his right to fees either in the main action
where his services were rendered or in an
independent civil suit against his client.
Prohibited Disclosure and Use
CANON 21
A lawyer shall preserve the confidences and secrets
of his client even after the attorney-client relation is
terminated.
The rule applies to matters disclosed to him by
prospective clients. It is the glory of the legal
profession that its fidelity to its client can be
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depended on and that a man may safely go to a
lawyer and converse with him or her upon his rights
or supposed rights in any litigation with absolute
assurance that the lawyer’s tongue is tied from ever
disclosing it.
Disclosures, When Allowed
Rule 21.01, Canon 21. A lawyer shall not reveal the
confidences or secrets of his client except;
(a) When authorized by the client after acquainting
him of the consequences of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend
himself, his employees or associates or by judicial
action.
Since the attorney-client privilege against disclosure
of the client’s confidence is intended primarily for the
client’s protection, only the client as a rule can waive
the privilege.
The privileged relation of attorney and client cannot
be used as a shield against wrongdoing nor can it
be employed as an excuse to deny a lawyer the right
to protect himself or herself against abuse by the
client or false charges by third persons.
The privilege cannot be used as a weapon of offense
to enable a person to carry out a contemplated
crime. A person who is committing a crime or is
about to commit a wrong can have no privileged
witness.
While a communication relating to a fraud already
committed is privileged, a communication seeking
advice as to the commission of a fraud or for the
establishment of a false claim is an exception to the
privilege.
Rule 21.02, Canon 21. A lawyer shall not, to the
disadvantage of his client, use information acquired
in the course of employment, nor shall he use the
same to his own advantage or that of a third person,
unless the client with full knowledge of the
circumstances consents thereto.
A lawyer becomes familiar with all the facts
connected with his or her client’s case. He or she
learns from his client the weak points of the action
as well as the strong ones. Such knowledge must be
considered sacred and guarded with care.
Rule 21.03, Canon 21. A lawyer shall not, without
the written consent of his client, give information
from his files to an outside agency seeking such
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information for auditing, statistical, bookkeeping,
accounting, data processing, or any similar purpose.
The reason for the rule is that the work product of a
lawyer, such as his or her effort, research, and
thought, and the records of his or her client,
contained in his or her files are privileged matters.
Neither the lawyer nor, after his or her death, his or
her heir or legal representative may properly
disclose the contents of such file cabinet without the
client’s permission.
Rule 21.04, Canon 21. A lawyer may disclose the
affairs of a client of the firm to partners or associates
thereof unless prohibited by the client.
The rule is that the professional employment of a law
firm is equivalent to the retainer of the members
thereof even though only one of them is consulted;
conversely, the employment of one member of law
firm is generally considered as employment of the
law firm. The disclosure is not to a third person
because members or associates in the law firm are
considered as one person.
Rule 21.05, Canon 21. A lawyer shall adopt such
measures as may be required to prevent those
whose services are utilized by him, from disclosing
or using confidences or secrets of his client.
In the discharge of his or her professional duties to
a client, a lawyer may avail of the clerical aids of
secretaries, stenographers, or clerks as well as the
expertise of accountants, physicians, investigators,
engineers, or technicians. The client’s secrets
learned by these persons in the performance of their
services to the lawyer or to the latter’s client and the
reports of these persons or experts are privileged
communications.
Rule 21.06, Canon 21. A lawyer shall avoid
indiscreet conversation about a client’s affairs even
with members of his family.
This is intended to better preserve the client’s
confidences and secrets. For indiscreet
conversation can result in prejudice to the client and
will lessen the respect due the legal profession.
Rule 21.07, Canon 21. A lawyer shall not reveal that
he has been consulted about a particular case
except to avoid possible conflict of interest.
The rule on privileged communication applies to
matters disclosed to a lawyer by a prospective client.
The reason is that the disclosure and the lawyer’s
opinion thereon create an attorney-client
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relationship, even though the lawyer does not
eventually accept the employment. In conferring
with a prospective client, the lawyer should ascertain
as soon as practicable whether the matter would
involve a conflict of interest with his or her other
client or with his or her own, and if so, he or she
should forthwith inform the prospective client that he
or she cannot accept the employment on such
ground.
Withdrawal of Services
CANON 22
A lawyer shall withdraw his services only for good
cause and upon notice appropriate in the
circumstances.
Although a lawyer may decline to accept a case
except when designated as counsel de oficio and
although his or her client may dismiss him or her at
any time, he or she lacks the unqualified right to
withdraw once he or she has taken one.
A lawyer’s right to withdraw from a case before its
final adjudication arises only from the client’s written
consent or from the court’s approval of his or her
petition to withdraw based on a good cause.
Rule 22.01, Canon 22. A lawyer may withdraw his
services in any of the following case:
(a) When the client pursues an illegal or immoral
course of conduct in connection with the matter he
is handling;
(b) When the client insists that the lawyer pursue
conduct violative of these canons and rules;
(c) When his inability to work with co-counsel will not
promote the best interest of the client;
(d) When the mental or physical condition of the
lawyer renders it difficult for him to carry out the
employment effectively;
(e) When the client deliberately fails to pay the fees
for the services or fails to comply with the retainer
agreement;
(f) When the lawyer is elected or appointed to public
office; and
(g) Other similar cases.
A lawyer may retire at any time from any action or
proceeding with the written consent of his or her
client filed in court and copy thereof served upon the
adverse party. Should the client refuse to give his or
her consent, the lawyer must file an application with
the court. The court, on notice to the client and
adverse party, shall determine whether he or she
ought to be allowed to retire. The application for
withdrawal must be based on a good cause, namely
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those seven (7) enumerated causes stated under
Rule 22.01, Canon 22 of the Code of Professional
Responsibility.
Rule 22.02, Canon 22. A lawyer who withdraws or
is discharged shall, subject to a retainer lien,
immediately turn over all papers and property to
which the client is entitled, and shall cooperate with
his successor in the orderly transfer of the matter,
including all information necessary for the proper
handling of the matter.
In the case of Voluntad-Ramirez v. Bautista (A.C.
No. 6733, 10 October 2012), the Supreme Court did
not find respondent guilty of violating Rule 22.02 of
the Code of Professional Responsibility since
respondent immediately turned over to complainant
the folder containing the documents and letters
pertaining to her case upon the severance of
respondent’s legal services.
Duties of Lawyers in Case of Death of Parties
Represented
Whenever a party to a pending case dies, becomes
incapacitated or incompetent, it shall be the duty of
his or her attorney to inform the court promptly of
such death, incapacity, or incompetency and to give
the name and residence of his or her executor,
administrator, guardian, or other legal
representative. That duty is imposed upon the
attorney because he or she is in a better position
than the counsel for the adverse party to ascertain
who is the legal representative of the deceased or
incapacitated or incompetent client.
Grounds
The following are the grounds for suspension or
disbarment of a lawyer:
a. Deceit;
b. Malpractice;
c. Grossly Immoral Conduct;
d. Conviction of a crime involving moral turpitude;
e. Violation of oath of office;
f. Willful disobedience of any lawful order of a
superior court;
g. Corrupt or willful appearance as an attorney for a
party to a case without authority to do so; or
h. Non-payment of IBP membership dues
The enumeration of the statutory grounds for
suspension or disbarment of a lawyer is not
exclusive. A lawyer may be removed from office or
suspended from the practice of law on grounds other
than those specifically provided in the law.
Settled is the rule that a lawyer may be disciplined
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or suspended for any misconduct, whether in his or
her professional or private capacity, which shows
him or her to be wanting in good moral character,
honesty, probity, and good demeanor, as to render
him or her unworthy to continue as an officer of the
court. Possession of good moral character is a
continuing qualification for all members of the bar.
Gross violations of any of the provisions of the Code
of Professional Responsibility as well as the lawyer’s
oath is also a ground for disciplinary action against
a lawyer. Generally, any misconduct on the part of a
lawyer in his or her professional or private capacity
which shows him or her to be wanting in moral
character may justify his or her suspension or
removal from office even though the law does not
specify the act as a ground for disciplinary action.
The fact that a lawyer lacked any of the qualifications
for membership in the bar at the time he or she took
his or her oath is a ground for disbarment.
A lawyer may be suspended or disbarred for
conviction of a crime involving moral turpitude or for
gross immorality committed before admission, such
as living adulterously with a woman or contracting a
second marriage while his first marriage remains
valid and subsisting.
Since a lawyer enjoys the presumption that he or
she has all the required qualifications for
membership in the bar at the time he or she took his
oath of office, two important requisites must concur
before he or she may be suspended or disbarred for
misconduct committed before his or her admission.
The first is that the act imputed to him must be so
corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.
The second requisite is that the act charged must be
established by clearly preponderant evidence.
A lawyer may likewise be suspended or disbarred
for misconduct relating to his or her admission to
practice that puts his or her moral and mental fitness
in grave doubt or for the fraudulent passing of the
bar examination.
How Instituted
Under Section 1, Article 139-B of the Rules of Court,
proceedings for disbarment, suspension, or
discipline of attorneys may be taken by the Supreme
Court motu proprio, or by the Integrated Bar of the
Philippines (IBP) upon verified complaint of any
person. The complaint shall state clearly and
concisely the facts complained and shall be
supported by affidavits or persons having personal
knowledge of the facts therein alleged and/or by
such documents as may substantiate said facts.
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The IBP Board of Governors may, motu proprio or
upon referral by the Supreme Court or by a Chapter
Board of Officers, or at the instance of any person,
initiate and prosecute the proper charges against
any erring attorneys including those in the
government service. Provided, however, that all
charges against Justices of the Court of Appeals
and the Sandiganbayan, and Judges of the Court of
Tax Appeals and lower courts, even if lawyers are
jointly charged with them, shall be filed with the
Supreme Court; provided, further, that charges filed
against Justices and Judges before the IBP,
including those filed, prior to their appointment in the
Judiciary, shall immediately be forwarded to the
Supreme Court for disposition and adjudication.
Six (6) copies of the verified complaint shall be filed
with the Secretary of the IBP or the Secretary of its
chapters who shall forthwith transmit the same to the
IBP Board of Governors for assignment to an
investigator.
Sanctions
Censure of reprimand is usually meted out for an
isolated act of misconduct of a lesser nature. It is
also imposed for some minor infraction of the
lawyer’s duty to the court or the client. It is a warning
against any member of the bar who, under
analogous circumstances, might be tempted to
behave similarly.
Admonition is a gentle and friendly reproof, a mild
rebuke, a warning.
Suspension from practice of law is correctional in
nature. It should be directed with a due regard to the
effect of such suspension upon the attorney as well
as to his or her clients. It may be for a definite or
indefinite period. A suspension for an indefinite
period, which is actually a qualified disbarment, is
meted out for a specific purpose desired, generally
to secure and maintain the respect due the court
from a lawyer whose disrespectful, abrasive,
abusive and threatening language against the court
justifies the sanction.
Disbarment, which is a judicial act of withdrawing the
privilege to practice of law, is the most severe form
of disciplinary sanction. It should not be imposed
unless it is evidently clear that the lawyer, by his or
her misconduct, should never be at the bar. A
removal from the bar should never be decreed
where any punishment less severe such as a
reprimand, temporary suspension, or fine would
accomplish the end desired.
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Malvar v. Feir
A.C. No. 11871, March 05, 2018
The Petition for Disbarment was dismissed in this
case.
The monetary consideration Atty. Feir was
demanding from Malvar in the amount of
₱18,000,000.00 cannot be considered as the
subject of blackmail or extortion. Feir’s demand for
said amount is not an exaction of money for the
exercise of an influence but is actually a legitimate
claim for the remaining balance subject of a
legitimate sale transaction.
Contrary to Malvar’s claims, there is nothing in the
demand letters to show that the same was
maliciously made with intent to extort money from
him since it was based on a valid and justifiable
cause.
Indeed, the writing of demand letters is a standard
practice and tradition in this jurisdiction. It is usually
done by a lawyer pursuant to the principal-agent
relationship that he has with his client, the principal.
Thus, in the performance of his role as agent, the
lawyer may be tasked to enforce his client's claim
and to take all the steps necessary to collect it, such
as writing a letter of demand requiring payment
within a specified period.
Alcantara v. De Vera
A.C. No. 5859, November 23, 2010
The purpose of suspending or disbarring an attorney
is to remove from the profession a person whose
misconduct has proved him unfit to be entrusted with
the duties and responsibilities belonging to an office
of an attorney, and thus to protect the public and
those charged with the administration of justice,
rather than to punish the attorney.
There is nothing ethically remiss in a lawyer who
files numerous cases in different fora, as long as he
does so in good faith, in accordance with the Rules,
and without any ill-motive or purpose other than to
achieve justice and fairness. In the present case,
however, the Court found that the barrage of cases
filed by the respondent against his former client and
others close to her was meant to overwhelm said
client and to show her that the respondent does not
fold easily after he was meted a penalty of one year
suspension from the practice of law.
The cases filed by the respondent against his former
client involved matters and information acquired by
the respondent during the time when he was still
Rosario’s counsel. Information as to the structure
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and operations of the family corporation, private
documents, and other pertinent facts and figures
used as basis or in support of the cases filed by the
respondent in pursuit of his malicious motives were
all acquired through the attorney-client relationship
with herein complainants. Such act is in direct
violation of the Canons and will not be tolerated by
the Court, hence, the respondent was disbarred.
In Re: Juan T. Publico
102 SCRA 271, February 20, 1981
Whether or not the applicant shall be reinstated
rests to a great extent in the sound discretion of the
court. The court action will depend, generally
speaking, on whether or not it decides that the public
interest in the orderly and impartial administration of
justice will be conserved by the applicant’s
participation therein in the capacity of an attorney
and counselor at law.
The applicant must, like a candidate for admission
to the Bar, satisfy the Court that he is a person of
good moral character — a fit and proper person to
practice law. The Court will take into consideration
the applicant’s character and standing prior to the
disbarment, the nature and character of the charge
for which he was disbarred, his conduct subsequent
to the disbarment, and the time that has elapsed
between the disbarment and the application for
reinstatement.
In Re: Administrative Case Against
Atty. Carlos C. Rusiana of Cebu City
A.C. No. 270, March 29, 1974
The sole object of the Court upon an application for
reinstatement to practice, by one previously
disbarred, is to determine whether or not the
applicant has satisfied and convinced the Court by
positive evidence that the effort he has made toward
the rehabilitation of his character has been
successful, and, therefore, he is entitled to be
readmitted to a profession which is intrinsically an
office of trust.
Prudential Bank v. Grecia
A.C. No. 2756, December 18, 1990
Cognizant that the power to discipline, especially if
amounting to disbarment, should be exercised on
the preservative and not on the vindictive principle,
the Court heeded respondent’s plea for
reinstatement. His expiation subsequent to his
disbarment; his realization of his mistake and the
gravity of his offense; the testimonials from
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BRAVO BASTE!
exemplary members of the Bar as to his fitness to
resume the practice of law; and his solemn pledge
to the Court, that if his disbarment is lifted, he will
always closely and faithfully abide by the ideals,
canons and ethics of the legal profession, call for this
affirmative response.
II. JUDICIAL ETHICS
Q3. DISQUALIFICATIONS / INHIBITIONS
FOR JUDGES
RULE 137: Disqualification of Judicial Officers
Section 1. Disqualification of judges. — No judge
or judicial officer shall sit in any case in which he, or
his wife or child, is pecuniarily interested as heir,
legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of
the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in
which he has been presided in any inferior court
when his ruling or decision is the subject of review,
without the written consent of all parties in interest,
signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just or
valid reasons other than those mentioned above.
Section 2. Objection that judge disqualified, how
made and effect. — If it be claimed that an official
is disqualified from sitting as above provided, the
party objecting to his competency may, in writing, file
with the official his objection, stating the grounds
therefor, and the official shall thereupon proceed
with the trial, or withdraw therefrom, in accordance
with his determination of the question of his
disqualification. His decision shall be forthwith made
in writing and filed with the other papers in the case,
but no appeal or stay shall be allowed from, or by
reason of, his decision in favor of his own
competency, until after final judgment in the case.
NEW CODE OF JUDICIAL CONDUCT
(Canon 3, Sec. 5)
Judges shall disqualify themselves from
participating in any proceedings in which they are
unable to decide the matter impartially or in which it
may appear to a reasonable observer that they are
unable to decide the matter impartially. Such
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PRE-WEEK [2020/21]
proceedings include, but are not limited to, instances
where:
(a) The judge has actual bias or prejudice
concerning a party or personal knowledge
of disputed evidentiary facts concerning the
proceedings;
(b) The judge previously served as a lawyer
or was a material witness in the matter in
controversy;
(c) The judge, or a member of his or her
family, has an economic interest in the
outcome of the matter in controversy;
(d) The judge served as executor,
administrator, guardian, trustee or lawyer in
the case or matter in controversy, or a
former associate of the judge served as
counsel during their association, or the
judge or lawyer was a material witness
therein;
(e) The judge's ruling in a lower court is the
subject of review;
(f) The judge is related by consanguinity or
affinity to a party litigant within the sixth civil
degree or to counsel within the fourth civil
degree; or
(g) The judge knows that his or her spouse
or child has a financial interest, as heir,
legatee, creditor, fiduciary, or otherwise, in
the subject matter in controversy or in a
party to the proceeding, or any other interest
that could be substantially affected by the
outcome of the proceedings.
Q4: DIRECT AND INDIRECT CONTEMPT
Rule 71 of the Revised Rules of Court
SECTION 1. Direct contempt punished
summarily. – A person guilty of misbehavior in the
presence of or so near a court as to obstruct or
interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer
as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so, may be
summarily adjudged in contempt by such court and
punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10) days,
or both, if it be a Regional Trial Court or a court of
equivalent or higher rank, or by a fine not exceeding
two hundred pesos or imprisonment not exceeding
one (1) day, or both, if it be a lower court.
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BRAVO BASTE!
SECTION 3. Indirect contempt to be punished
after charge and hearing. – After a charge in
writing has been filed, and an opportunity given to
the respondent to comment thereon within such
period as may be fixed by the court and to be heard
by himself or counsel, a person guilty of any of the
following acts may be punished for indirect
contempt:
(a) Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful
writ, process, order, or judgment of court,
including the act of a person who, after
being dispossessed or ejected from any real
property by the judgment or process of any
court of competent jurisdiction, enters or
attempts or induces another to enter into or
upon such real property, for the purpose of
executing acts of ownership or possession,
or in any manner disturbs the possession
given to the person adjudged to be entitled
thereto;
(c) Any abuse of or any unlawful
interference with the processes or
proceedings of a court not constituting direct
contempt under Section 1 of this Rule;
(d) Any improper conduct tending, directly
or indirectly, to impede, obstruct, or degrade
the administration of justice;
(e) Assuming to be an attorney or an officer
of a court, and acting as such without
authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him.
But nothing in this section shall be so construed as
to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody
pending such proceedings.
The power to punish for contempt or to control, in
the furtherance of justice, the conduct of ministerial
officers of the court, including lawyers and all other
persons in any manner connected with a case
before it, is inherent in all courts. The power is
essential to the observance of order in judicial
proceedings and to the enforcement of judgments,
orders, and writs of courts and consequently to the
due administration of justice.
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The power to punish for contempt should be Unauthorized practice of law

exercised on the preservative and not on the
vindictive principle and on the corrective rather than
the retaliatory idea of punishment, for purposes that
are impersonal. For the power is intended as a
safeguard not for the judges as persons but for the
functions that they exercise and should not be
resorted to unless necessary in the interest of
justice.
The practice of law by one who has been disbarred
or suspended therefrom constitutes contempt of
court. A person who holds himself out as a lawyer
when he is not and a lawyer who cooperates in the
former’s misconduct are both liable for contempt, the
layman for violation of the rule that only members of
the bar may practice law and the lawyer for
misbehavior as an officer of the court.

III. PRACTICAL EXERCISES

Q1. PARTS OF CONVEYANCING, AFFIDAVITS

Affidavit or a sworn declaration of facts known to the affiant consists of the following:

a) Venue of Execution
b) Title
c) Person’s Bona Fides
d) The Oath
e) Statement
f) Signature
g) The Jurat

DEED OF ABSOLUTE SALE

SO THE PUBLIC MAY KNOW:

This DEED OF ABSOLUTE SALE is executed by and between:

___SELLER’S NAME___, of legal age, single / married to ___NAME OF SPOUSE__, Filipino, and
residing at ___SELLER’S ADDRESS___, hereinafter referred to as the SELLER

- AND -

_BUYER’S NAME___, of legal age, Filipino, and residing at ___BUYER’S ADDRESS___,

hereinafter referred to as the BUYER.

WITNESSETH;

WHEREAS, the SELLER is the registered owner of a parcel of land at __ADDRESS OF THE
PROPERTY SUBJECT OF SALE___ and covered by TCT No. 12345 containing a total area of __LAND
AREA OF PROPERTY__, more or less, and more particularly described as follows:
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TRANSFER CERTIFICATE OF TITLE NO. XXXX

__DESCRIPTION OF THE PROPERTY ON THE TITLE__

WHEREAS, the BUYER has offered to purchase and the SELLER has agreed to sell the above
mentioned property for the amount of __AMOUNT IN WORDS / NUMERICAL VALUE__, hand paid by the
vendee to the vendor, the SELLER DO HEREBY SELL, TRANSFER, and CONVEY by way of ABSOLUTE
SALE unto the BUYER, his heirs and assigns, the certain parcel of land together with all the improvements
found thereon, free from all liens and encumbrances of whatever nature including real estate taxes as of
the date of this sale.

_________________________ _________________________
SELLER’S NAME BUYER’S NAME
Seller Buyer

MARITAL CONSENT:

_________________________ _________________________
SELLER’S SPOUSE BUYER’S SPOUSE
Seller’s Spouse Buyer’s Spouse

SIGNED IN THE PRESENCE OF:

_________________________ _________________________
WITNESS 1 WITNESS 2

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES)

CITY OF _______) SS.

BEFORE ME, a Notary Public for and in the (Province / City / Municipality) of ______, personally
appeared the following persons, with their respective Philippine Passports as follows:

NAME PASSPORT NO. DATE / PLACE ISSUED

1. SELLER ______________ ______________
2. BUYER ______________ ______________

Known to me and to me known to be the same persons who executed the foregoing instrument
and acknowledged to me that the same are their free act and voluntary deed.

This instrument, consisting of __ pages, including the page on which this acknowledgment is
written, has been signed on the left margin of each and every page thereof by the concerned parties and
their witnesses, and sealed with my notarial seal.

WITNESS MY HAND AND SEAL on this ___day of __________20__ at ____________.

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Q2. PARTS OF PLEADINGS, MOTIONS

Under Rule 7 of the “2019 Proposed Amendments to the 1997 Rules of Civil Procedure” or A.M. No.
19-10-20-SC, the following are the parts of the pleadings:

a) Caption (Sec. 1, Rule 7)

Shall contain and set forth the name of the court, title of the action, and the docket number.

b) Title (Sec. 1, Rule 7)

Under this, the title of the action indicates the names of the parties. they shall be named in the
original or petition.

c) Body (Sec. 2, Rule 7)

The designation, and allegations of the party’s claims or defenses, the relief prayed for, and the
date of the pleading shall be included.

d) Paragraphs (Sec. 2(a), Rule 7)

The allegations in the body of a pleading shall be divided into paragraphs and numbered

e) Headings (Sec. 2(b), Rule 7)

For two or more causes of actions that are joined, the statement of the first shall be worded as “first
cause of action”

f) Relief Sought (Sec. 2(c), Rule 7)

A general prayer or other relief as may be deemed just or equitable may be added

g) Date of the Pleading (Sec. 2(d), Rule 7)

h) Signature and Address (Sec. 3, Rule 7)