REMEDIAL LAW

I. JURISDICTION

1. It is the power and authority of the court to hear, try, and decide the case
(Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23,
2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17,
2016). Jurisdiction of the court includes the authority to execute its decision. It
includes the power of the court to control the execution of its decision
(Echegaray vs. Secretary of Justice, 301 SCRA 96, 108).

2. A commercial case was filed in an RTC which is not designated as a

Commercial Court. The said Court dismissed the case for lack of jurisdiction.
Is the dismissal correct? NO. The dismissal is not correct. It should have
been referred to the RTC designated by the SC as a Commercial Court
(Gonzales vs. GJH Land, G.R. No. 202664, November 20, 2015).

3. How is jurisdiction over the subject matter determined? It is determined

by the allegations in the complaint, as well as by the character of the relief
sought (Geronimo vs. Calderon, GR No. 201781, December 10, 2014;
Cabling vs. Dangcalan, GR No. 187696, June 15, 2016). This is regardless of
whether or not the plaintiff is entitled to recover all or some of the claims
or reliefs sought therein
(Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23,
2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17,
2016). Thus, Caption of the case is not controlling (Sps. Erotica vs. Sps.
Dumlao, GR no. 195477, January 25, 2916). Defenses and evidence do not
determine jurisdiction (Balibago Faith Baptis Church, Inc., Faith in Christ
Jesus Baptist church, GR No. 191527, August 22, 2016). The amount
awarded does determine jurisdiction (Dionisio vs. Sison Puerto, 60 SCRA
471, 477).

4. What if the defendant in an ejectment case raise the issue of tenancy in

his answer, should the court dismiss the case for lack of jurisdiction?
While the MTC does not lose its jurisdiction over an ejectment case by
defendant’s alleging the existence of tenancy relationship, yet, if after the
hearing, tenancy had in fact been shown, the court should dismiss the case for
lack of jurisdiction (De la Cruz, vs. CA, 510 SCRA 103, 116).

5. What is jurisdiction over the parties? Jurisdiction over the parties refers to
the power of the court to make decisions that are binding on persons (De
Pedro vs. Romasan, supra). It is the legal power of the court to render a
personal judgment against the party to an action or proceeding (Black’s Law
Dictionary, 5th Ed., 767, citing Imperial vs. Hardy, La 302 So.2d 5, 7, cited in
Riano, Civil Procedure, 2016).

6. How is jurisdiction over the parties acquired? Plaintiff upon the filing of
the compliant. Defendant – upon valid service of summons and voluntary
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 appearance. To constitute voluntary appearance, it must be the kind that
amount to voluntary submission to the jurisdiction of the court. Submission to
the jurisdiction of the court takes the form of appearance that seeks affirmative
relief except when the relief sought is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant . Thus, if he
participates in the trial despite defective service of summons, it is tantamount
to voluntary appearance (De Pedro vs. Romasan Development, supra).

7. What is the concurrent jurisdiction? When two or more court can exercise
original jurisdiction over the case. For example, certiorari petition, the RTC,
CA and SC have original and concurrent jurisdiction. If this is the case, then,
the PRINCIPLE OF HIERARCHY OF COURTS WILL APPLY.

8. What is the doctrine of Primary Jurisdiction? It is the power and authority

vested by the Constitution or by statute upon an administrative body to act
upon a matter by virtue of its specific competence. The doctrine of primary
jurisdiction prevents the court from arrogating unto itself the authority to
resolve a controversy which falls under the jurisdiction of a tribunal possessed
with special competence (Lim vs. Gamosa, G.R. No. 193964, December 2,
2015).

II. FILING FEE

1. It has been long settled that while a court acquires jurisdiction over the case only
upon payment of the docket fees, its non-payment at the time of the filing of
the complaint does not automatically cause the dismissal of the case, provided
the fees are paid within a reasonable time. Even inadequate payment of filing
will not divest the court of its jurisdiction. This rule is applicable even if the
claim for damages of the plaintiffs is metered or progressing as case the case
is pending
(Unicapital vs. Consing, G.R. Nos. 175277 & 175285, September 11,
2013).

III. INDIGENT LITIGANT

1. Who is an indigent litigant? An indigent is someone whose income, and that of

his immediate family, does not exceed double the monthly minimum wage
AND does not own real property with the fair market value exceeding
P300,000. If he is an indigent litigant, he is not required to pay filing fee.

IV. ACTION

1. What is action in personam? It is an action to enforce personal rights and

obligation against a person and is based on the jurisdiction of a person. The
purpose of action in personam is to impose through a judgment some
responsibility or liability directly upon the person of the defendant.

2. What is an action in rem? It is an action against the thing (res) itself, rather
than against a person. It is not just binding on a particular person, but it is
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 binding against the whole world. NOTE: all cases under Section 1, Rule 72
are examples of action in rem.

3. What is the meaning of a “thing”? The phrase, “against the thing,” to

describe in rem actions is a metaphor. It is not the “thing” that is the party to
an in rem action; only legal or natural persons may be parties even in in rem
actions. “Against the thing” means that resolution of the case affects interests
of others whether direct or indirect. It also assumes that the interests – in the
form of rights or duties – attach to the thing which is the subject matter of
litigation. In actions in rem, our procedure assumes an active vinculum over
those with interests to the thing subject of litigation (De Pedro vs.
Romasan, G.R. No. 194751, Novembere 26, 2014).

4. What is an action quasi-in-rem? It is an action where an individual is named

as defendant and the purpose of the proceeding is to subject defendant’s
property to a burden or lien. EXAMPLE: An action for foreclosure of real
estate motion; quieting of title, partition.

5. What is the significance of knowing action in personam, action in rem

and quasi in rem? The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required and consequently the
type of summons to be employed. NOTE: To resolve whether there was valid
service of summons on respondents, the nature of the action filed against them
must first be determined. As the Court explained in Asiavest Limited vs.
Court of Appeals (G.R. No. 128803, September 25, 1998, 296 SCRA 539,
552), it will be helpful to determine first whether the action is in personam, in
rem, or quasi in rem because the rules on service of summons under Rule 14
of the Rules of Court of the Philippines apply according to the nature of the
action (Gomez vs. CA, 425 SCRA 98, 103).

6. Is notice or summons required in an in rem and quasi in rem actions?

YES. Regardless of the nature of the action, proper service of summons is
imperative. A decision rendered without proper service of summons suffers a
defect in jurisdiction. (De Pedro vs. Romasan Development Corp. GR No.
194751, November 26, 2014).

7. What is a cause of action? Act or omission by which a party violates the

right of another (Section 2, Rule 2).

8. What are the elements of a cause of action? The following are the elements
of the a cause of action: (a) a right in favor of the plaintiff by whatever means
and under whatever law it arises or is created; (b) an obligation on the part of
the named defendant to respect or not to violate such right; and (c) an act or
omission on the part of the named defendant violative of the right of the
plaintiff or constituting a breach of the obligation of defendant to the plaintiff
for which the latter may maintain an action for recovery (Mercene v.
Government Service Insurance System, G.R. No. 192971, January 10,
2018).

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 9. What is the test to determine whether a complaint state a cause of action
of not? If the court can render a valid judgment based on the allegation in the
complaint, the complaint states a cause of action. As a general rule, evidence
aliunde should not be considered. But annexed documents to the complaint
may be considered because they are part of the complaint (Sea Land Service,
Inc., vs. CA, 327 SCRA 135). NOTE: However, with the amendment
introduced to the 1997 Rule on Civil Procedure, evidence should be
considered in determining whether the complaint states a cause of action.

10. What is splitting of cause of action? An act of a party of instituting more

than one suit for a single cause of action. A single cause of action may give
rise to several remedies. The availment of these remedies is prohibited as it is
tantamount to splitting of cause of action.

11. What is joinder of causes of action? It is the assertion in one pleading, in

alternative or otherwise, as many causes of action as he may have against an
opposing party (Sec. 5, Rule 2).

12. What are the conditions for a proper joinder of cause of action? A proper
joinder of causes of action must comply with the following conditions: 1) The
joinder shall not include special civil actions or actions governed by special
rules; 2) Where the causes of actions are between the same parties but pertain
to different venues or jurisdictions, the joinder may be allowed in the RTC
provided one of the cause of actions falls within the jurisdiction of said court
and venue lies therein; 3) Where the claims in all causes of action are
principally for recovery of money, the aggregate amount claimed shall be the
test of jurisdiction (Section 5, Rule 2).

13. When is joinder of parties allowed? All persons in whom or against whom
any right to relief in respect to or arising out of the same transaction or series
of transactions is alleged to exist, whether jointly, severally or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs
or be joined as defendants in one complaint, where any questions of law or
fact common to all such plaintiffs or to all such defendants may arise in the
action (Section 6, Rule 3). Thus, the causes of action must arise out of the
same transaction or series of transaction and there must be common
question of fact and law between or among the parties joined.
V. PARTIES

1. Who is real party in interest? A real party in interest is the party who stand
to be benefited and injured by the judgment of the suit, or the party entitled to
the avails of the suit. Unless otherwise authorized by law or the rules of court,
every action must be prosecuted or defended in the name of the real party in
interest. (Sec. 2, Rule 3). The determination of who the real party in interest is
requires the examination of elements of a cause of action. A cause of action
involves the existence of a right and violation of such right. Thus, the owner
of the right violated is the real party in interest as plaintiff and the one
violating the right is the real party in interest as defendant.

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2. What is the effect if the party is not a real a real party-in-interest? The
complaint may be dismissed for lack of cause of action if the defendant is not
the real-party-interest (Sec.1(g), Rule 16). If the plaintiff is not the real party-
in-interest, complaint may be dismissed under (Section 1(d), Rule 16).
NOTE: Under the amendment to the Rules on Civil Procedure, failure to
state a cause of action cannot anymore be used as ground for motion to
dismiss, rather they it should not be alleged as an affirmative defense
(Section 12, Rule 8).

3. Who is an indispensable party? An indispensable party is real party in

interest without whom no final determination can be had of an action.
Indispensable parties shall be joined as plaintiffs or defendants (Sec. 7, Rule
3).

4. What is the effect of failure to implead an indispensable party? Failure to

join an indispensable party will not result in the outright dismissal of the
action. Instead, parties may be dropped or added by the court on motion of any
party or on its own initiative at any stage of the action and on such terms as
are just. (Sec. 11, Rule 3). It is when the order of the court to implead an
indispensable party goes unheeded may the case be dismissed for failure to
comply with the order of the Court (Sec. 3, Rule 17; Plasabas vs. CA 582
SCRA 686). Any decision rendered by a court without first obtaining the
required jurisdiction over indispensable parties is null and void for want of
jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January 20, 2016), not
only as to the absent parties but even as to those present (People vs. Go, GR
201644, September 24, 2014).

5. Who is a necessary party? It is one who is not indispensable but who ought
to be joined as a party if complete relief is to be accorded as to those already
parties, or for a complete determination or settlement of the claim subject of
the action (Sec. 8, Rule 3).

6. What is the duty of a pleader is a necessary party is not joined? Whenever

in any pleading in which a claim is asserted, a necessary party is not joined,
the pleader shall set forth the name of the necessary party, if his name is
known, and shall state why such party is omitted (Sec. 9, Rule 3).

7. May the Court order joinder of necessary party? If the reason given for the
non-joinder of necessary party is found by the court not meritorious, it may
order the pleader to join the omitted party if jurisdiction over his person may
be obtained (Sec. 9, Rule 3).

8. What is the effect of failure to comply with the order of the Court? It shall
be deemed a waiver of claim against such party. (Sec. 9, Rule 3)

9. What is the effect if the non-inclusion of the necessary party is justified?

The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (Sec. 9, Rule 3).
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10. In the case of Aceron v. Ang, G.R. No. 186993, August 22, 2012, a case for
collection of a sum of money was filed by Atty. Aceron in behalf of Theodore
and Nancy Ang. Theodore and Nancy reside in California, they are non-
residents, while defendants reside in Bacolod. The action was filed by Atty.
Aceron in Quezon City where he resides. A motion to dismiss was filed but it
was denied by RTC. The question is: is the representative-lawyer a real
party in interest, making the filing of the complaint in court to be in the
place where he resides? Answer: NO. The representative is just a
representative and NOT a real party in interest.

11. Is misjoinder of parties or non-joinder of parties a ground for dismissal of

an action? Neither misjoinder nor non-joinder of parties is a ground for
dismissal of an action. Parties may be dropped or added by order of the court,
on motion of any party or upon its own initiative at any stage of the action and
on such terms as are just. Any claim against a misjoined party may be severed
or proceeded with separately (Sec. 11, Rule 3).

12. What is a class suit? When the subject matter of controversy is one of
common or general interest to many persons so numerous that it is
impracticable to join them all as parties, a number of them which the court
finds to be sufficiently numerous and representative as to fully protect the
interest of all concerned may sue or defend for the benefit of all. (Sec. 12,
Rule 3).

13. Requisites of class suits. 1) The subject matter of the controversy is one of
common or general interest to many persons. 2) The parties are so numerous
that it is impracticable to bring them all before the court. 3) The object of the
suit is to obtain relief for or against numerous persons.

14. What is common or general interest? A class suit does not require a
commonality of interest in the questions involved in the suit. What is required
by the Rules is a common or general interest in the subject matter of the
litigation. The “subject matter” of the litigation meant the physical, the things
real or personal, the money, lands, chattels, and the like, in relation to the suit
which is prosecuted and not the delict or wrong committed by the defendant
(Mathay vs. Consolidated Bank & Trust Co., 58, SCRA 559, 571).

15. What is the duty of the lawyer if case of a party dies? If the party dies and
the claim is not extinguished, his duty is to inform the court of such fact
within 30 days after such death and to give the name and address of the legal
representatives of the deceased party. (Sec. 16, Rule 3).

16. May the heirs of the deceased party be allowed to substitute? Yes. The
heirs of the deceased may be allowed to be substituted for the deceased
without need for the appointment of executor or administrator (Sec. 16, Rule
3).

17. What is the rule in an action for sum of money if one of the defendant
dies? When the action is for recovery of money, arising from contract, express
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 or implied and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be
dismissed but it shall be allowed to continue until final judgment. Favorable
judgement shall be claimed in the estate proceedings of the deceased
defendant (Sec. 20, Rule 3). NOTE: The favorable judgement cannot be in
action for sum of money arising from contract express or implied when
the defendant dies cannot be subject of motion for execution. The
judgment shall be filed as a claim in the settlement of estate pursuant to
Section 5, Rule 86. HOWEVER: if the action for sum of money based on
injury to person or property, it need not be filed in the settlement of estate
because it may be executed against the executor or administrator (Section 1,
Rule 87).

18. What are actions that survive? The following actions survive: a) action to
recover real or personal property; b) action to enforce lien thereon; c) action to
recover damages for an injury to person; d) action for quasi-delict (Section 1,
Rule 87).

VI. VENUE

1. Venue is the place or the geographical area in which a court with jurisdiction
may hear and determine a case or the place where a case is to be tried (Black’s
Law Dictionary; City of Lapu-Lapu vs. PEZA, GR No. 184203, November
26, 2014). Venue in civil cases is procedural and not substantive. Thus, it may
be waived or subject to agreement of the parties.

2. What is the basic consideration in determining venue of the action? The

venue of the action would be determined is the determination of whether an
action is real or personal. SECTION 1. Venue of Real Actions. — Actions
affecting title to or possession of real property, or interest therein, 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 (Rule 4).
SECTION 2. Venue of Personal Actions. — All other actions may be
commenced and tried where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the principal defendants resides, or
in the case of a non-resident defendant where he may be found, at the election
of the plaintiff (Rule 4).

3. What is the meaning of “residence” in personal action? It means the place of

abode, whether permanent of temporary, of the plaintiff or the defendant, as
distinguished from “domicile” which denotes a fixed permanent residence to
which, when absent, one has the intention of returning (Dangwa
Transporation Company vs. Sarmiento, GR No. L-22795, January 31,
1977). Residence of a domestic corporation is the place within the Philippines,
where its principal office is located (Section 14[3], Corporation Code;
Cohen vs. Benguet Commercial Co., 34 Phil. 526).

4. Stipulations as to venue. The parties may agree on a specific venue which

could be in a place where neither of them resides (Universal Robina
Corporation vs. Lim, 535 SCRA 95, 99). In real actions, like unlawful
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 detainer, the parties may stipulate on a venue other than the place where the
real property is situated (Union Bank of Philippines vs. Maunlad Homes,
Inc., 678 SCRA 539, 550).

5. Requisites of stipulations on exclusive venue: 1) It must be in writing; 2) It

must be made before filing of an action; 3) The agreement must be exclusive.

6. NOTE: to make it exclusive there must words with restrictive meaning -

Examples of words with restrictive meanings are: “only”, “solely”, “exclusive
in this court”, “in no other courts, save..”, “particularly”, “no where else
but/except” or words of equal import (Pacific Consultants International
Asia, Inc., vs. Schonfeld, 516 SCRA 209,229).

7. PLEASE TAKE NOTE: A restrictive stipulation on venue is not binding

when the validity of the contract is assailed (Briones vs. CA, GR No. 204444,
January 14, 2015).

8. The case of Paglaum involves multiple contracts (real estate mortgage 1, 2 and
3, then a restructuring agreement). There different venues stipulated. In the
first contract, it is Manila excluding all other venues. In the 2nd contract, Cebu
excluding all other venues. The party defaulted in its obligation so the loan
was restructured. A new one was executed and then there is now a venue
stipulation. Which venue stipulation will apply in the event of litigation? It
will be the most recent one. Because it supersedes the other contracts
(Paglaum
Management Development Corp., vs. Union Bank, G.R. No.
179018, April 17, 2018).

9. What if a promissory note has no venue stipulation, but there is a mother loan
agreement. The amount appearing on the promissory note was not paid when
due so an action for collection for sum of money was instituted. What venue
will have to be followed? The Supreme Court said that if the mother contract
was directly connected and intertwined with the promissory note, then the
promissory note will be bound by the venue stipulation.

VII. PLEADINGS

1. When is Reply necessary? It is necessary when the defense of the defendant

is based on an actionable document and the actionable document is attached to
the Answer (Sections 2 and 10, Rule 6).

2. May grounds for Motion to Dismiss under Section 1, Rule 16 of the 1997
Rules on Civil Procedure be alleged as affirmatives defenses? Yes. The last
paragraph of Section 5, Rule 6 provides: Affirmative defenses may also
include grounds for the 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.

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3. Is Motion to Dismiss under Rule 16 of the old Rule still allowed? The
general rule is that it is not allowed. There are only four grounds by which a
Motion to Dismiss may be filed, that is based on the following grounds: 1)
lack of jurisdiction over the subject matter; 2) litis pendencia; 3) res
judicata; and, 4) prescription (Section 12, Rule 15).

4. What may be raised as affirmative defenses? The grounds mentioned in the

second paragraph of Section 5(b), Rule 6 and Section 12, Rule 8? In Section
5(b), the following may be alleged as affirmative defenses: fraud, statute of
limitations, 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 the
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.
Section 12, Rule 8 provides for the following grounds: a. That the court has
no jurisdiction over the person of the defending party; b. That venue is
improperly laid; c. That the plaintiff has no legal capacity to sue; d. That the
pleading asserting the claim states no cause of action; and e. That a condition
precedent for filing the claim has not been complied with.

5. What should the court do if affirmative defenses are raised? The Court
should resolve them within a period of thirty (30) days from the filing of the
Answer. The Court may conduct summary hearing for fifteen (15) days if the
grounds relied upon are those provided in Section 5(b), Rule 6 and should
resolve the same within thirty (30) days from the termination of the summary
hearing (Section 12, Rule
8).

6. If the Court denies the affirmative defenses, may defendant file a Motion
for Reconsideration, Petition for Certiorari, Prohibition or Mandamus?
NO. The new Rules provide that
“affirmative defenses, if denied, shall not be the subject of a motion for
reconsideration or petition for certiorari, prohibition or mandamus, but may
be among the matters to be raised on appeal after a judgment on the merits”
(Section 12(e), Rule 8).

7. If the Court grants the affirmative defenses, may the plaintiff file a
motion for reconsideration or certiorari? YES. Motion for reconsideration
or certiorari is prohibited only when the Court denies the affirmative defenses.
But when the grants the affirmative defenses, it will lead to the dismissal of
the case which may either be dismissal with prejudice or dismissal without
prejudice. The remedy if dismissal with prejudice is appeal (Section 13, Rule
12). Hence, motion for reconsideration may be filed prior to appeal under Rule
37. On the other hand, if dismissal is without prejudice, the remedy is
certiorari under Section 1, Rule 41. And motion for reconsideration is a
condition for the filing of certiorari.

8. Compulsory counterclaim. A compulsory counterclaim is one which, being

cognizable by the regular courts of justice, arises out or relates to the
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 transaction or occurrence constituting the subject matter of the opposing
party’s claim and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction. Such counterclaim must
be within the jurisdiction of the court both as to the amount and the nature
thereof, except that in the original action before the RTC, the counterclaim
may be considered compulsory regardless of the amount (Section 7, Rule 6).

9. Elements of compulsory counterclaim. 1) It arises out of or is necessarily

connected with the transaction or occurrence which is the subject matter of the
opposing’s party’s claim. 2) It does not require for its adjudication the
presence of third parties over whom the court cannot acquire jurisdiction. 3) It
is cognizable by the regular courts of justice and such courts have jurisdiction
to entertain the counterclaim both as to the amount and nature.

10. What is the effect of failure to plead counterclaim? A counterclaim not set
up shall be barred (Sec. 7, Rule 6). However, a counterclaim which either
matured or was acquired by a party after serving his pleading may, with the
permission of the court, be presented as counterclaim by supplemental
pleading before judgment (Sec. 9, Rule 11).

11. If the amount of the counterclaim exceeds the jurisdiction of the court,
what is the effect? The counterclaim cannot be treated as compulsory, but
permissive since the amount exceeds the jurisdiction of the Court.

12. What if the amount claimed as counterclaim is not within the jurisdiction
of the RTC, can the latter court dismiss said counterclaim? No. When the
original action is filed with the RTC, the counterclaim may be deemed
compulsory regardless of the amount (Sec. 7, Rule 6).

13. Can a party file a Motion to Dismiss with counterclaim? No. If the
dismissal of the main action results in the dismissal of the counterclaim
already filed, it stands to reason that the filing of a motion to dismiss the
complaint is an implied waiver of the compulsory counterclaim because the
grant of the motion ultimately results in the dismissal of the counterclaim
(Financial Building Corp. vs. Forbes Park Association, 338 SCRA 346,
354).

14. What is a crossclaim. A crossclaim 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 crossclaim may
cover all or part of the original claim (Section 8, Rule 6).

15. What is the effect if a crossclaim is not set-up? It shall be barred (Sec. 2,
Rule 9). NOTE: the cross-claim that is considered barred is the cross-claim
already existing at the time the answer is filed, not the cross-claim that may
mature or may be acquired after service of the answer. As to the latter Section
9, Rule 11 declares that it may, by leave of court, be presented by
supplemental pleading before judgment.

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16. What are the grounds to deny third-party claim? The third
(fourth, etc.)-party complaint shall be denied admission, and the court shall
require the defendant to institute a separate action, where: (a) the third (fourth,
etc.)-party defendant cannot be located within thirty (30) calendar days from
the grant of such leave; (b) matters extraneous to the issue in the principal
case are raised; or (c) the effect would be to introduce a new and separate
controversy into the action (Section 11, Rule 6).

17. What are the content requirements of a pleading? The following must be
stated in a pleading: a) name of the witnesses; b) summary of their respective
testimonies; c) judicial affidavits of the witnesses must be attached to the
pleading; and, d) object and documentary evidence (Section 6, Rule 7).

18. What is the effect if the judicial affidavit of the witnesses are not attached
to the pleading? They may not be allowed to testify (Section 6, Rule 7).

19. Amendment of the Pleading. 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) days after it is served (Section 2,
Rule 10). Except as provided in the next preceding Section, substantial
amendments may be made only upon leave of court. But such leave shall be
refused if it appears to the court that the motion was made with intent to
delay or confer jurisdiction on the court, or the pleading stated no cause
of action from the beginning which could be amended (Section 3, Rule
10). PLEASE TAKE NOTE: There are now grounds to deny the motion for
leave to admit amended pleading. The grounds are provided in Section 3, Rule
10.

20. May a pleading be amended as a matter of right after a motion to dismiss

is filed? Yes, because a motion to dismiss is not a responsive pleading (Paeste
vs. Jaurigue, 94 SCRA Phil. 179, 181). NOTE: Even if the motion is granted
by the Court, the plaintiff may still amend his complaint as a matter of right
before the dismissal becomes final as long as no answer has yet been served
(Bautista vs.
Maya-Maya Cottages, 476 SCRA 416).

21. Amendment to conform to evidence. 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 (Section 5, Rule 10).

22. Debtor executed 3 PN’s in favour of the Creditor. One of the PN’s became due
and demandable. Thus, debtor not paying the PN, creditor filed a collection
suit against the debtor. While the case is pending, the other PNs became due
and demandable also. The Creditor included the last two PN as evidences in
the case pending. It was introduced without the objection of the Debtor? Can
the Court render judgment on the last two PNs? NO. Section 5 thereof
applies to situations wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and to conform to such
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 evidence the pleadings are subsequently amended on motion of a party. Thus,
a complaint which fails to state a cause of action may be cured by evidence
presented during the trial. However, the curing effect under Section 5 is
applicable only if a cause of action in fact exists at the time the complaint is
filed, but the complaint is defective for failure to allege the essential facts
(Swagman Hotels and Travel vs. CA, 455 SCRA 175).

23. May amendment be made to correct the jurisdictional defect before a

responsive pleading is served? YES. Since no responsive pleading was
served at the time of the amendment, the plaintiff can amend his pleading a
matter of course. It should emphasized that a Motion to dismiss is not a
responsive pleading (Gumabay vs. Baralin, 77 SCRA 258; Soledad vs.
Mamangun, 8 SCRA 110).

24. May amendment be made to correct the jurisdictional defect after an

Answer was filed? NO. The amendment would require leave of court, a
matter which requires the exercise of discretion. The exercise of this discretion
requires the performance of a positive act by the court. If it grants the
amendment, it would be acting on a complaint over which it has no
jurisdiction (Section 2, Rule 10; Campos Rueda Corp., vs. Bautista, 6
SCRA 240).

25. What is an actionable document? It is a document upon which a party rely

his or her defense.

26. How should one plead an actionable document? Whenever an action or

defense is based upon a written instrument or document, the substance of such
instrument or document shall be set forth in the pleading, and the original or a
copy thereof shall be attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading (Section 7, Rule 8).

27. What should the adverse party do if an actionable document is alleged in

the pleading? He should specifically deny under oath the due execution and
authenticity and due execution of the actionable document, otherwise, its due
execution and genuineness is deemed admitted (Section 8, Rule 8).

28. What are the defenses which are incompatible with the admission of the
due execution and genuineness of the actionable document? The following
defenses are cut off: a) Forgery of document; b) Lack of authority to execute
the document; c) The party charged signed the document in some other
capacity than that alleged in the pleading; d) The document was never
delivered; e) Document was not in the words and figures as set out in the
pleading (See: Hibberd vs. Rohde and Mcmillian, 32 Phil. 476; Imperial
Textile Mills vs. CA, 183 SCRA 584).

VIII. FILING, SERVICE & SUMMONS

1. What are the modes of filing? The following are the modes of filing:
a) Submitting personally the original thereof, plainly indicated as such, to the
court; b) Sending them by registered mail; c) Sending them by accredited
12
 courier; or d) Transmitting them by electronic mail or other electronic means
as may be authorized by the Court in places where the court is electronically
equipped (Section 2, Rule 13).

2. What are the modes of service? The following are the modes of service: a)
personal service; b) mail; c) accredited courier; d) electronic mail, facsimile
transmission, other electronic means as may
be authorized by the Court; or e) as provided for in international conventions
to which the Philippines is a party (Section 5, Rule 13).

3. When is there presumptive service? 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 twenty (20) calendar days prior to the scheduled date of hearing
and 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 (Section 10,
Rule 13).

4. Summons is a writ by which the defendant is notified of the action brought

against him. It has two-fold purpose: 1) to acquire jurisdiction over the person
of the defendant; 2) to notify the defendant that an action has been
commenced against him.

5. When is a defendant deemed to have made a voluntary appearance? A.

By filing an answer (Guy vs. Gacott, GR No. 206147, January 13, 2016). B.
By asking an affirmative relief from the Court (Reicon Realty Builders Corp
vs. Diamond Dragon, GR No. 204796, February 4, 2015).

6. When is asking for affirmative relief not deemed a voluntary appearance?

The act of making a conditional appearance or special appearance in court to
object to the jurisdiction of the court over his person, is not deemed a
voluntary appearance or voluntary submission to the jurisdiction of the court.
BUT NOTE: SECTION 23., Rule 14, Voluntary Appearance. — The
defendant's voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall be deemed a
voluntary appearance.

7. When may substituted service be effected? for justifiable causes, the

defendant cannot be served personally after at least three (3) attempts on two
(2) separate dates (Sec. 12, Rule 14).

8. MODES OF SUBSTITUTED SERVICE: a) By leaving copies of the

summons at the defendant's residence to a person at least eighteen (18) years
of age and of sufficient discretion residing therein; b) 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 not
limited to, one who customarily receives correspondences for the defendant; c)
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
13
 of the community or the building where the defendant may be found; and d)
By sending an electronic mail to the defendant's electronic mail address, if
allowed by the court (Section 6, Rule 14).

9. Nature of Substituted service. Substituted service is a method extraordinary in

character, hence, may be used only as prescribed and in the circumstances
authorized by statute (Chu vs. Mach Asia Trading Corp, 694 SCRA 302,
309-310). Hence, return which merely states the alleged whereabouts of the
defendants, without indicating that such information was verified and without
specifying the efforts exerted to serve the summons, is not enough for
compliance. So is mere general statement that such efforts were made (Jose
vs. Boyon, 414 SCRA 216).

10. What is the meaning of “reasonable time” under the rules? To the sheriff,
reasonable time means 15 to 30 days because at the end of the month, it is a
practice for the branch clerk of court to require the sheriff to submit a return of
the summons assigned to the sheriff for service. The Sheriffs Return provides
data to the Clerk of Court, which the clerk uses in the Monthly Report of
Cases to be submitted to the Office of the Court Administrator within the first
ten (10) days of the succeeding month. Thus, one month from the issuance
of summons can be considered reasonable time with regard to personal
service on the defendant (OCA vs. Cabrera-Faller, A.M. Nos. RTJ-11-
2301-2303, January 16, 2018).

11. How is service of summons effected upon a domestic private entity? When
the defendant is a corporation, partnership or association organized under the
laws of the Philippines with a juridical personality, service may be made on
the president, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel of the corporation wherever they may be found,
or in their absence or unavailability, on their secretaries. If such service cannot
be made upon any of the foregoing persons, it shall be made upon the person
who customarily receives the correspondence for the defendant at its principal
office. In case the domestic juridical entity is under receivership or liquidation,
service of summons shall be made on the receiver or liquidator, as the case
may be. Should there be a refusal on the part of the persons above-mentioned
to receive summons despite at least three (3) attempts on two (2) separate
dates, service may be made electronically, if allowed by the court, as provided
under Section 6 of this rule (Section 12, Rule 14).

12. Service in person on defendant. Whenever practicable, the summons shall be

served by handling a copy thereof to the defendant in person, or, if he refuses
to receive and sign for it, by tendering it to him (Sec. 6, Rule 14). Service of
summons in the person of the defendant is generally preferred over substituted
service (Nation Petroleum Gas, Inc., vs. RCBC, G.R. No. 188370, August
17, 2015). It is only when summons cannot be served personally within a
reasonable period of time that substituted service may be resorted to (Chu vs.
Mach Asia Trading Corp., 694 SCRA 302, 308).

13. NOTE: The court reiterated the rule that the impossibility of prompt, personal
service should be shown by stating in the proof of service that efforts were
14
 made to find the defendant personally and that said efforts failed; hence resort
to substituted service. Since no such explanation was made, there was a failure
to faithfully, strictly, and fully comply with the requirements of substituted
service (Miranda vs. Court of Appeals, 326 SCRA 278).

14. When is summons by publication allowed? A) In action in rem and quasi in

rem. B) the identity and whereabouts of the defendant are unknown (Section
16, Rule 14). C) When the defendant is a resident but temporarily absent of
the Philippines (Section 18, Rule 14). D) Action against non-resident and is
not found in the Philippines (Section 17, Rule 14).

15. If the defendant is a resident of the Philippine but temporarily absent

therefrom, may substituted service be made instead of extra-territorial
service? YES. The SC rule that in the case of resident temporarily out of the
Philippines, extraterritorial service is not mandatory since Section 16 of Rule
14 uses the word “may” and thus, substituted service of summons may be
resorted to (Palma vs. Galvez, March 10, 2010).

IX. MOTIONS AND DISMISSAL

1. What is the procedure for non-litigious motion? The Court shall resolve the
non-litigious motion within five (5) days from filing (Section 4, Rule 15).

2. What is the procedure for litigious motion? The movant shall serve copy of
the litigious motion to the opposite party. The opposite party shall file his or
her comment or opposition within five (5) days from receipt thereof. The
Court shall resolve the motion within fifteen (15) days from receipt of the
comment or opposition or the expiration of the period to file the same (Section
5, Rule 15).

3. Is it necessary to indicate the notice of hearing in the motion? There is no

need because it is up to the Court to set the Motion for hearing (Section 6,
Rule 15).

4. What are prohibited motions? The following are prohibited motions: a)

motion to dismiss, except if the grounds are: lack of jurisdiction over the
subject matter; litis pendencia, res judicata, and, prescription; b) motion to
hear affirmative defenses; c) motion for reconsideration on court’s action on
affirmative defenses; d) motion to suspend proceedings without TRO or
injunction; e) motion for extension of time to file pleading, except answer; and
motion for postponement intended for delay (Section 12, Rule 15).

5. What are the grounds that if granted would make the dismissal with
prejudice? The following grounds if granted would make the dismissal with
prejudice: 1) res judicata; 2) prescription; 3) extinguishment of obligation; and
4) statute of frauds (Section 1, Rule 15).

6. A case was dismissed on the ground of lack of jurisdiction over the

subject matter. Then an action was subsequently instituted by the same
15
 plaintiffs in the first case involving the same subject matter. Such action
was also dismissed but on the ground that it was filed in a wrong court.
The plaintiff again instituted an action in the now right court. While the
action was pending but before an answer was filed, the plaintiff decided to
withdraw the case. Is the plaintiff barred by the two-dismissal rule? –
NO. Rule 17, Sec. 1 provides that if the case is once dismissed by the plaintiff
before an answer is filed, he could re-file it because the dismissal is without
prejudice. A second dismissal of that nature will bar the third filing. For the
two-dismissal rule to apply, the dismissal should have been prompted by the
plaintiff in both instances and before an answer. In this case, the first case was
a dismissal on ground of lack of jurisdiction over subject matter while the
second case was dismissed on ground it was filed in the wrong court.
Therefore, the plaintiff can be filed for a third time.

7. What are the grounds by which the court may dismiss the case due to the
fault of the plaintiff? The court may dismiss the action on the following
grounds: 1) Failure of the plaintiff to present evidence in chief; 2) Failure to
prosecute his action for an unreasonable period of time; 3) Failure of the
plaintiff to comply with the Rules of Court; 4) Failure of the plaintiff to
comply with the order of the court. NOTE: the dismissal on these grounds is
with prejudice unless otherwise ordered by the Court.

8. What is the effect of dismissal of the complaint with defendant’s

counterclaim? The dismissal of the complaint does not automatically carry
with it the dismissal of the counterclaim. Under the Rules, If counterclaim has
been pleaded prior to service upon the defendant of plaintiff’s motion to
dismiss, the dismissal shall be limited to the complaint only. The defendant
may prosecute his claim in the same action or in a separate action. The
dismissal shall be without prejudice to the right of the defendant to prosecute
his counterclaim in a separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to have his counterclaim
resolved in the same action (Sec. 2, Rule 17).

X. PRE-TRIAL AND MODES OF DISCOVERY

1. Who are required to appear during pre-trial, court annexed mediation

and judicial dispute resolution? The parties and their counsel (Section 4,
Rule 18).

2. What is the effect of failure of appearance from either of the party or

lawyer? When duly notified, the failure of the plaintiff and counsel to appear
without valid cause when so required, pursuant to
the next preceding Section, shall cause the dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court. A
similar failure on the part of the defendant and counsel shall be caused to
allow the plaintiff to present his or her evidence exparte within ten (10)
calendar days from termination of pre-trial, and the court to render judgment
on the basis of the evidence offered (Section 5, Rule 18). NOTE: the same
effect if case of failure to file pre-trial brief (Section 6, Rule 18).

16
3. Deposition. It is the taking of testimony of any person, whether he be a party
or not, but at the instance of a party to the action. This testimony is taken out
of court.

4. Is it necessary to ask permission from the court for the taking of

deposition if there is a pending action? Yes. Under the Rules, the applicant
must file an ex-parte motion (Section 1, Rule 23).

5. How is deposition taken? 1) Deposition upon oral examination; 2)

Deposition upon written interrogatories.

6. Deposition upon written interrogatories. Rule 23, SECTION 25.

Deposition Upon Written Interrogatories; Service of Notice and of
Interrogatories. — A party desiring to take the deposition of any person
upon written interrogatories shall serve them upon every other party with a
notice stating the name and address of the person who is to answer them and
the name or descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a party so served
may serve cross-interrogatories upon the party proposing to take the
deposition. Within five (5) days thereafter the latter may serve re-direct
interrogatories upon a party who has served cross-interrogatories. Within three
(3) days after being served with re-direct interrogatories, a party may serve re-
crossinterrogatories upon the party proposing to take the deposition.

7. Supposing the party sought to be examined refused to appear? The

attendance of witnesses may be compelled by the use of subpoena under Rule
21.

8. Where do you apply the sub-poena? SECTION 5. Subpoena for

depositions. — Proof of service of a notice to take a deposition, as provided
in Sections 15 and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said notice by the clerk of
the court of the place in which the deposition is to be taken. The clerk shall
not, however, issue a subpoena duces tecum to any such person without an
order of the court. In short, the court of the place where the deposition shall be
taken.

9. What may be asked during the taking of deposition? Rule 23, SECTION
2. Scope of examination. — Unless otherwise ordered by the court as
provided by Section 16 or 18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party,
including the existence, description, nature, custody, condition, and location of
any books, documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts.

10. Deposition before action or pending appeal. Rule 24. SECTION 1.

Depositions Before Action; Petition. — A person who desires to perpetuate
his own testimony or that of another person regarding any matter that may be
17
 cognizable in any court of the Philippines, may file a verified petition in the
court of the place of the residence of any expected adverse party.

11. Written interrogatories. RULE 25. SECTION 1. Interrogatories to Parties;

Service Thereof. — Under the same conditions specified in Section 1 of Rule
23, any party desiring to elicit material and relevant facts from any adverse
parties shall file and serve upon the latter written interrogatories to be
answered by the party served or, if the party served is a public or private
corporation or a partnership or association, by any officer thereof competent to
testify in its behalf. N.B. Written interrogatories are directed to adverse party,
not to strangers.

12. Interrogatories under Rule 23 & Rule 25: Rule 23 – 1) There is deposition
officer; 2) Questions are prepared beforehand; 3) Party or not may be taken.
Rule 25 – 1) No deposition officer; 2) Directed to parties; 3) Not applicable to
stranger.

13. Effect of failure to serve written interrogatories. Unless thereafter allowed

by the court for good cause shown and to prevent a failure of justice, a party
not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal
(Section 6, Rule 25).

14. Admission by the adverse Party. RULE 26, SECTION 1. Request for
Admission. — At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission by the latter of
the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of
fact set forth in the request. Copies of the documents shall be delivered with
the request unless copies have already been furnished.

15. Failure to act on the request for admission, the effect is implied
admission. RULE 26, SECTION 2. Implied Admission. — Each of the
matters of which an admission is requested shall be deemed admitted unless,
within a period designated in the request, which shall not be less than fifteen
(15) days after service thereof, or within such further time as the court may
allow on motion, the party to whom the request is directed files and serves
upon the party requesting the admission a sworn statement either denying
specifically the matters of
which an admission is requested or setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters.

16. Applicability of the admission. RULE 26, SECTION 3. Effect of

Admission. – Any admission made by a party pursuant to such request is for
the purpose of the pending action only and shall not constitute an admission
by him for any other purpose nor may the same be used against him in any
other proceeding.

17. Effect of failure to file and serve request. RULE 26, SECTION 5. Effect of
Failure to File and Serve Request for Admission. — Unless otherwise
18
 allowed by the court for good cause shown and to prevent a failure of justice,
a party who fails to file and serve a request for admission on the adverse party
of material and relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted to present evidence on
such facts.

18. Po vs. CA, 164 SCRA 668. A party should not be compelled to admit matters
of fact already admitted by his pleading and concerning which there is no
issue, nor should he be required to make a second denial of those already
denied in his answer to the complaint. A request for admission is not intended
to merely reproduce or reiterate the allegations of the requesting party's
pleading but should set forth relevant evidentiary matters of fact, or
documents described in and exhibited with the request, whose purpose is to
establish said party's cause of action or defense. Unless it serves that purpose,
it is, as correctly observed by the Court of Appeals, 'pointless, useless' and 'a
mere redundancy.'

19. Production or Inspection of Documents or Things. RULE 27, SECTION

1. Motion for Production or Inspection; Order. — Upon motion of any
party showing good cause therefor, the court in which an action is pending
may (a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or
control; or (b) order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any designated relevant object or
operation thereon. 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.

20. When may the physical and mental examination be ordered. In an action
in which the mental or physical condition of a party is in controversy, the
court in which the action is pending may in its discretion order him to submit
to a physical or mental examination by a physician (Section 1, Rule 28).

21. The order for examination may be made only on motion for good cause
shown and upon notice to the party to be examined and to all other
parties, and shall specify the time, place, manner, conditions and scope of
the examination and the person or persons by whom it is to be made
(Section 2, Rule 28).

22. If requested by the party examined, the party causing the examination to be
made shall deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions. After such request and
delivery, the party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If the
party examined refuses to deliver such report, the court on motion and notice
19
 may make an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may exclude his
testimony if offered at the trial (Section 3, Rule 28).

23. By requesting and obtaining a report of the examination so ordered or by

taking the deposition of the examiner, the party examined waives any
privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined
or may thereafter examine him in respect of the same mental or physical
examination (Section 4, Rule 28).

24. Refusal to comply with modes of discovery. Refusal to answer – the

requesting party may apply for subpoena to Court where the deposition is
being taken.

25. Other consequences. If the a party refuses to answer as ordered or to produce

a document or entry upon the land under Rule 27, or refuses despite order to
submit himself to physical and mental examination, the Court, upon motion,
issue: 1) An order that the matters regarding which the questions were asked,
or the character or description of the thing or land, or the contents of the paper,
or the physical or mental condition of the party, or any other designated facts
shall be taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order; 2) An order refusing to allow
the disobedient party to support or oppose designated claims or defenses or
prohibiting him from introducing in evidence designated documents or things
or items of testimony, or from introducing evidence of physical or mental
condition; 3) 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; 4) 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).

XI. DEMURRER TO EVIDENCE

1. When is the proper time to file Demurrer to Evidence? After the plaintiff
has completed the presentation of his 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.

2. What is the effect if the motion is denied? How about if the motion is
granted but reversed on appeal? If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on appeal the order of
dismissal is reversed, he shall be deemed to have waived the right to present
evidence.

Motion to Dismiss Demurrer

1. MTD is made before 1. It is made after the
20
 answer. plaintiff rests its case.

2. There are several grounds. 2. There is only one ground.

3. If denied, defendant may 3. If denied, the defendant

file answer. will present evidence.

4. When granted, the 4. When granted, it may not

complaint may be filed be re-filed. The remedy is
except for, prescription, res appeal.
judicata, or claim is
extinguished.

Civil Demurrer Criminal Demurrer

1. Leave of court is not 1. It may be with or without
required. leave of court.

2. If granted, the order is 2. If granted, the order is not

appealable. appealable.

3. If denied, the defendant 3. If denied, the accused may

may present evidence. present evidence if he filed it
with leave of court.

4. It cannot be granted motu 4. The Court may dismiss the

propio. case motu propio (Sec. 23,
Rule 119).

XII. JUDGMENT ON THE PLEADING & SUMMARY

JUDGMENT

1. When is it available? RULE 34, SECTION 1. Judgment on the

Pleadings. — Where an answer 1) fails to tender an issue, or otherwise 2)
admits the material allegations of the adverse party's pleading, the court may,
on motion of that party, direct judgment on such pleading. However, in actions
for declaration of nullity or annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be proved.

2. When do we say that an answer fails to tender an issue? Answer: If it does

not comply with the requirements of specific denial under Sections 8 and 10 of
Rule 8.

3. Section 8, Rule 8. How to Contest Such Documents. — When an action or

defense is founded upon a written instrument, copied in or attached to the
21
 corresponding pleading as provided in the preceding section, the genuineness
and due execution of the instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an oath does not apply when the
adverse party does not appear to be a party to the instrument or when
compliance with an order for an inspection of the original instrument is
refused.

4. Section 10, Rule 8. Specific Denial. — A defendant must specify each

material allegation of fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon which he relies to
support his denial. Where a defendant desires to deny only a part of an
averment, he shall specify so much of it as is true and material and shall deny
only the remainder. Where a defendant is without knowledge or information
sufficient to form a belief as to the truth of a material averment made in the
complaint, he shall so state, and this shall have the effect of a denial.

5. What are the different manners of denying an allegation? 1) By

specifically denying the allegation and setting forth the substance upon which
one relies his denial. 2) By specifically denying some part of the allegation
and denying the rest. 3) By specifically denying the allegation for lack of
knowledge sufficient to form a belief as to the truth or falsity of the allegation.

6. What is the effect of defective denial? RULE 8, SECTION 11. Allegations

Not Specifically Denied Deemed Admitted. Material averment in the
complaint, other than those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed admitted if not denied under
oath.

7. Who may file a motion for summary judgment? RULE 25, SECTION 1.
Summary Judgment for Claimant. — 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 favor upon all or any part
thereof. SECTION 2. Summary Judgment for Defending Party. — 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 favor as to all or any
part thereof. PLEASE TAKE NOTE: The Court may motu proprio
declare that it would render judgment on the pleadings or summary
judgment
(Section 10, Rule 18).

8. When is this remedy available? When there is no genuine issue. Although

the defendant denies the material allegation in the claim, but the denial is
sham.

Judgment on the Pleadings Summary Judgment

22
 There is absence of factual
issue because the answer
tenders no issue.
Only the claiming party can
file the motion.
Answers tenders an issue, but
the issue is not genuine.
The motion may be filed by
the claiming party or
defending party.

It is based on pleadings It is based on pleadings,

alone. affidavits, depositions and
admissions.

Only three (3) day notice is Ten (10) day notice

required. is required.

XIII. POST JUDGMENT REMEDIES

1. What is “Neypes Rule”? If the motion for reconsideration or new trial is

denied, the movant has a “fresh period” of fifteen (15) days from receipt of the
notice of the order denying or dismissing the motion for reconsideration
within which to file the notice of appeal. The “fresh period” rule applies not
only in Rule 41 (RTC-CA), but also in Rule 40 (MTC-RTC), Rule 42
(Petrev, RTC-CA), Rule 43 (Petrev, QJA-CA), and Rule 45 (RTC, CA-
SC). This was adopted to standardize the appeal period. (Neypes vs. Court of
Appeals, 469 SCRA 633).

2. What may be appealed? Judgment and Final Order.

3. Are all final orders appealable? NO. For instance, dismissal of an action
without prejudice is a final order but is not appealable.

4. What judgments or orders cannot be appealed? (a) An order denying a

motion for new trial or reconsideration; (b) An order denying a petition for
relief or any similar motion seeking relief from judgment; (c) An interlocutory
order; (d) An order disallowing or dismissing an appeal; (e) 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; (f)
An order of execution; (g) A judgment or final order for or against one or
more of several parties or in separate claims, counterclaims, crossclaims and
third-party complaints, while the main case is pending, unless the court allows
an appeal therefrom; and (h) An order dismissing an action without prejudice
(Section 1, Rule 41). NOTE: if the above order cannot be appealed, the
remedy is CERTIORARI
UNDER RULE 65.

5. Petition for Relief from Judgment. A) What is the subject matter of the
Petition? – Judgment, Final order; Other proceedings; Order denying the
appeal (Sec.2, Rule 38). B) What are the grounds? - Fraud, Accident,
23
 Mistake, Excusable Negligence (FAME). C) Where to file? - Court which
rendered the judgment, final order, order denying appeal or court which
conducted the proceedings.

6. What is the period to file Petition for Relief from Judgment? A petition
provided for in either of the preceding sections of this Rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such proceeding was taken
(Section 3, Rule 38).

7. Annulment of Judgment. What is the coverage? This Rule shall govern the
annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts for which the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the petitioner (Sec. 1, Rule 47).

8. What are the grounds? Extrinsic Fraud and Lack of Jurisdiction. Fraud is
regarded as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court or where it operates upon matters
pertaining not to the judgment itself but the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing party litigant prevented a party from
having his day in court (Alaban vs. CA, 470 SCRA 697).

9. What is the period to file? If based on extrinsic fraud, the action must be
filed within four (4) years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel.

10. Does RTC have jurisdiction to entertain petition for annulment of

judgment of MTC? YES. An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional Trial Court having
jurisdiction over the former. It shall be treated as an ordinary civil action and
Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto (Section. 4,
Rule 47).

XIV. PROVISIONAL REMEDIES

1. Attachment. It is a provisional remedy issued by the court where the action is

pending levying the property or properties of the defendant to serve as security
for whatever judgment the said court might render in favor of the plaintiff. It is
provisional because it constitutes temporary measure availed of during the
pendency of action and they are ancillary because it is dependent upon the
main action.

2. Will the writ of preliminary attachment be dissolved if the parties had

already entered into compromise agreement? NO. The parties to the
compromise agreement should not be deprived of the protection provided by
an attachment lien. If the rule were otherwise, it is easier for the debtor whose
property was attached to have the lien released by entering into a compromise
24
 agreement without the intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).

3. What is the nature of attachment? Attachment is in the nature of a

proceeding quasi in rem (Banco-Espanol vs. Palanca, 37 Phil. 921, 928)
although sometimes referred to as action in rem (Valdevieso vs. Damalerio,
421 SCRA 664, 671). This classification becomes relevant only when the
defendant does not appear in the action as when the defendant is a non-
resident who, at the same time, is outside of the Philippines.

4. What is the purpose of preliminary attachment? Preliminary attachment is

designed to seize the property of the debtor before final judgment and put the
same in custodia legis even while the action is pending for the satisfaction of a
later judgment and to acquire jurisdiction over the property in those instances
where personal or substituted services of summons on the defendant cannot be
effected. (Philippine Commercial International Bank vs. Alejandro, 533 SCRA
738).

5. Is it necessary for the court to have acquired jurisdiction over the person
of the defendant when the writ is implemented? Yes, because under the
rules: “No levy on attachment pursuant to the writ issued under Section 2
hereof shall be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the complaint,
the application for attachment, the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines.” (Sec.
5, Rule 57) Thus, there must be prior or contemporaneous service of
summons.

6. Are there exceptions to prior or contemporaneous service of summons?

Yes, under the rules: “The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be served 1.
personally or by substituted service despite diligent efforts, or 2. the defendant
is a resident of the Philippines temporarily absent therefrom, or 3. the
defendant is a non-resident of the Philippines, or 4. the action is one in rem or
quasi in rem”(Sec. 5, Rule 57).

7. May a property under custodia legis be attached? Yes. Under the Rules: If
the property sought to be attached in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or quasijudicial agency, and
notice of the attachment served upon the custodian of such property (Sec. 7,
Rule 57).

8. Supposing sheriff attached the property of the third party, what are the
remedies of the latter if any? He may avail the remedy of terceria (Sec. 14,
Rule 57). The third party-claimant may also invoke the court’s authority in the
same case and move for a summary hearing on his claim. If his claim is
meritorious, the court shall lift the attachment (Ching vs. CA, 423 SCRA 356).
The third party may file a separate civil action to nullify the levy (Ching, id.).

25
9. What are grounds which may be invoked in the motion to discharge
attachment? 1) Attachment was improperly or irregularly issued; 2) Bond is
insufficient; 3) Attachment is excessive with respect to the excess; 4) Property
is exempt from execution.

10. May a party whose property was attached recover damages from the
attaching party though the former lost the case? Yes. This is implied from
Section 20, Rule 57 which provides that: “An application for damages on
account of improper, irregular or excessive attachment must be filed before
the trial or before appeal is perfected or before the judgment becomes
executory, with due notice to the attaching party and his surety or sureties.”
(Carlos vs. Sandoval, 471 ACRA 266, 289-290).

11. Injunction. Preliminary injunction is an order granted at any stage of an

action, prior to the judgment or final order, requiring a party, court, agency or
person to perform or refrain from performing an act or acts. (Sec. 1, Rule 58).
Preliminary mandatory injunction – order to require the doing of an act.
Preliminary prohibitory injunction – order to refrain from doing an act.

12. What are the grounds for the issuance of a preliminary injunction?
Section 3, Rule 58 can be capsulized as follows: (1) there exists a clear and
unmistakable right to be protected; (2) this right is directly threatened by an
act sought to be enjoined; (3) the invasion of the right is material and
substantial; and (4) there is an urgent and paramount necessity for the writ to
prevent serious and irreparable damage (Spouses Dulnuan vs. MBTC, July
8, 2015).

13. Is the rule on contemporaneous service of summons applicable to

application for preliminary injunction? YES. When an application for a
writ of preliminary injunction or a temporary restraining order is included in a
complaint or any initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the adverse party or
the person to be enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons, together with a
copy of the complaint or initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines (Sec. 4 (c), Rule 58).

14. Are there exceptions? YES. Where the summons could not be served
personally or by substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or contemporaneous service of
summons shall not apply (Sec. 4 (c), Rule 58).

15. What is temporary restraining order? It is an order issued to preserve the

status quo until the hearing of the application for a writ of preliminary
injunction because preliminary injunction cannot be issued ex-parte (Bacolod
Water District vs. Labayen, 446 SCRA 110). By its nature, it could be
considered as a provisional remedy within a provisional remedy because it is
issued to preserved the status quo for a limited period until the court decides to
issue a writ of preliminary injunction.
26
 16. May TRO be issued ex-parte? YES. If it shall appear from facts shown by
affidavits or by the verified application that great or irreparable injury would
result to the applicant before preliminary injunction can be heard, the court to
which the application for preliminary injunction was made, may issue ex parte
a temporary restraining order to be effective only for a period of twenty (20)
days from service on the party or person sought to be enjoined x x x. (Section
5, Rule 58).

17. May TRO be issued by the EJ? If the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge
of a multiple-sala court or the presiding judge of a single-sala court may issue
ex-parte a temporary restraining order effective for only seventy-two (72)
hours from issuance but he shall immediately comply with the provisions of
the next preceding section as to service of summons and the documents to be
served therewith (Sec. 5, Rule 58).

18. What should the judge where the case is raffled do after the EJ issued the
72-hour TRO? Within the aforesaid seventy-two (72) hours, the judge before
whom the case is raffled shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended until the application
for preliminary injunction can be heard. In no case shall the total period of
effectivity of the temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein (Sec. 5, Rule 57).

19. Is 20-day TRO extendible? NO. The Rules provide: “In no case shall the
total period of effectivity of the temporary restraining order exceed twenty
(20) days, including the original seventy-two hours provided herein.” (Sect. 5,
Rule 58).

XV. SPECIAL CIVIL ACTION

1. What is interpleader? It is a special civil action filed by a person against

whom two conflicting claims are made upon the same subject matter and over
which he claims no interest, or if he claims interest, the same is not disputed
by the parties. This action is brought against the conflicting claimants to
compel them to interplead and litigate their claims among themselves.

2. When is interpleader proper? Whenever conflicting claims upon the same

subject matter are or may be made against a person who claims no interest
whatever in the subject matter, or an interest which in whole or in part is not
disputed by the claimants, he may bring an action against the conflicting
claimants to compel them to interplead and litigate their several claims among
themselves (Sec. 1, Rule 62).

3. What is the jurisdiction of interpleader? It depends on the

subject matter of the conflicting claims: 1) If the subject matter of the
action is personal property – determine the value of the property. 2) If the
conflicting claims involve right to receive particular sum – determine the
27
 amount of the sum claimed. 3) If the subject matter is real property –
determine the assessed value of the property. 4) If the subject matter is
incapable of pecuniary estimation – RTC.

4. Declaratory Relief. Declaratory relief is defined as an action by any person

interested in a deed, will, contract or other written instrument, executive order
or resolution, to determine any question of construction or validity arising
from the instrument, executive order or regulation, or statute; and for a
declaration of his rights and duties thereunder. The only issue that may be
raised in such a petition is the question of construction or validity of
provisions in an instrument or statute (Province of Camarines Sur vs.
CA, 600 SCRA 569).

5. PLEASE TAKE NOTE: Declaratory relief must be filed before any breach
or violation. If the law or contract has been violated prior to the filing of
declaratory relief, the latter recourse should be dismissed (Malana vs. Tappa,
600 SCRA 189). BUT: If the breached occurred during the pendency of
declaratory relief, the latter will be converted to ordinary civil action (Sec. 6,
Rule 63).

6. What are the subject matter in a petition for declaratory relief? Deed;
Will; Contract or other written instrument; Statute; Executive order or
regulation; Ordinance; Any other governmental regulation.
NOTE: These are exclusive.

7. Which court has jurisdiction? The RTC has jurisdiction as declaratory relief
raises issue which is incapable of pecuniary estimation (Sec. 19[1], BP 129;
Sec.1, Rule 63). SC has no original jurisdiction over declaratory relief (Clark
Investors and Locators Assn. vs. Secretary, July 6, 2015). If the action is for
quieting of title to real property, the jurisdiction depends upon the assessed
value of the real property (Heirs of Valeriano S. Concha vs. SPS Lumucso,
540 SCRA 1, 16). Action for reformation of contract should be treated as
action in capable of pecuniary estimation, hence RTC. An action for
consolidation of ownership is an action incapable of pecuniary estimation
(Cruz vs. Leis, 327 SCRA 570).

8. Certiorari. It is also called “prerogative writ” because it is not demandable as

a matter of right. Its purpose is the correction of errors of jurisdiction which
includes commission of grave abuse of discretion amounting to lack or excess
of jurisdiction. It is an original and independent action and not a mode of
appeal. Certiorari cannot be substitute for appeal or lost appeal.

9. Rule 45 vs. Rule 65. 1) Certiorari under Rule 45 is a mode of appeal while
certiorari under Rule 65 is a special civil action. 2) Certiorari under Rule 45 is
just a continuation of the appellate process of the original case, but under Rule
65, it is an original action. 3) Certiorari under Rule 45 seeks to review the
judgment while certiorari under Rule 65 seeks to annul the proceedings or
judgment. 4) Certiorari under Rule 45 raises questions of law while under
Rule 65, it raises question of jurisdiction. 5) Certiorari under Rule 45 is to be
filed within 15 days from receipt of judgment or final order while the period to
28
 file certiorari under Rule 65 is either 30 or 60 day. 5) Certiorari under Rule 45
does not require filing of MR, while in certiorari under Rule 65, the filing of
MR is required. 6) The parties in certiorari under Rule 45 are the same parties
to the action while the parties in Rule 65 are the tribunal, board or officer
exercising quasijudicial function. 7) Certiorari under Rule 45 may only be
filed before SC, while certiorari under Rule 65 may be filed with the RTC.

10. Essential requisites for a petition for certiorari. 1. The petition is directed
against a tribunal, board, or officer exercising judicial or quasi-judicial
functions. 2. Such tribunal, board, or officer has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction. 3. There is neither appeal nor plain, speedy or adequate remedy in
the ordinary course of law for the purpose annulling or modifying the
proceeding.

11. Expanded scope of Certiorari. “Petition for certiorari and prohibition are
appropriate remedies to raise constitutional issues and to review and/or
prohibit or nullify the acts of legislative and executive officials” (Araullo vs.
Aquino, III, July 1, 2014). The basis of this pronouncement is the second
paragraph of Section 1, Article
VIII of the Constitution. NOTE: Certiorari may be used to assail the validity
or constitutionality of the statute.

12. Does the filing of petition stay the proceedings? NO. The petition shall not
interrupt the course of the principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued against the public
respondent from further proceeding in the case (Sec. 7, Rule 65).

13. What is the period to file the petition? The petition may be filed not later
than sixty (60) days from notice of the judgment, order or resolution sought to
be assailed in the Supreme Court or, if it relates to the acts or omissions of a
lower court or of a corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not
the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is
in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these Rules, the petition shall
be filed in and cognizable only by the Court of Appeals. (Sec. 4, Rule 65).

14. May the period be extended? Yes, when: Most persuasive and weighty
reasons. To relieve a litigant from injustice. Good faith of the defaulting party.
Compelling circumstances. Merits of the case. Cause not entirely attributable
to the defaulting party. No showing that it is frivolous. In the name of
substantial justice and fair play. Importance of issues involved (Labao vs.
Flores, 634 SCRA 723).

15. Prohibition. It is an extra-ordinary writ commanding the tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, to desist from further proceedings when
29
 such are conducted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, there being no
appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law (Sec. 2, Rule 65).

16. Requisites. (a) it must be directed against a tribunal, corporation, board or

person exercising functions, judicial or ministerial; (b) the tribunal,
corporation, board or person has acted without or in excess of its jurisdiction,
or with grave abuse of discretion; and (c) there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law (Belmonte vs.
Deputy Ombudsman,
January 13, 2016).

17. Mandamus. When any tribunal, corporation, board, officer or person

unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a verified
petition for mandamus to command the respondent to do the act required to be
done to protect the rights of the petitioner (Sec. 3, Rule 65).

18. Subjects of Mandamus. A. Neglect to perform an act which the specifically

enjoins as a duty. B. Unlawful exclusion of another from the use and
enjoyment of a right or office to which such other is entitled.

19. Mandamus will lie to compel the doing of a ministerial act. The act is
ministerial if the act is should be performed under a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without
regard to the exercise of judgment upon the propriety or impropriety of the act
done (Cudia vs. Superintendent of PMA, February 24, 2015).

20. Quo warrato. It is a proceeding generally defined as an action against a

person who usurp, intrudes into, or unlawfully holds or exercise a public
office (Tecson vs. COMELEC, 424 SCRA 277, 326) or even a public
franchise (Sec. 1, Rule 66).

21. Quo warranto that may be brought by the government: (a) Against a
person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise; (b) Against a public officer who does or suffers
an act which, by the provision of law, constitutes a ground for the forfeiture of
his office; or (c) Against an association which acts as a corporation within the
Philippines without being legally incorporated or without lawful authority so
to act (Sec. 1, Rule 66).

22. May it be filed by an individual? A person claiming to be entitled to a public

office or position usurped or unlawfully held or exercised by another may
bring an action therefor in his own name (Sec. 5, Rule 66).

30
23. What is the jurisdiction and venue of petition? An action under the
preceding six sections can be brought only in the Supreme Court, the Court
of Appeals, or in the Regional Trial Court exercising jurisdiction over the
territorial area where the respondent or any of the respondents resides, but
when the Solicitor General commences the action, it may be brought in a
Regional Trial Court in the City of Manila, in the Court of Appeals, or in the
Supreme Court (Sec. 7, Rule 66).

24. What is the period for the filing of petition? Nothing contained in this Rule
shall be construed to authorize an action against a public officer or employee
for his ouster from office unless the same be commenced within one (1) year
after the cause of such ouster, or the right of the petitioner to hold such
office or position, arose; nor to authorize an action for damages in
accordance with the provisions of the next preceding section unless the same
be commenced within one (1) year after the entry of the judgment establishing
the petitioner's right to the office in question (Sec. 11, Rule 66).

25. Expropriation. Can the government divert the use of property taken
different from the purpose for which the

petition was filed? No. a condemnor should commit the use of the property
pursuant to the purpose stated in the petition for expropriation, failing which it
should file another petition for new purpose. If not, then it behooves the
condemnor to return the said property to its owner, if the latter so desires
(Vda. De Ounao vs. Republic, 642 SCRA 385, 409).

26. May the defendant be declared in default in presenting evidence on just

compensation? NO. At the trial of the issue of just compensation, whether or
not a defendant has previously appeared or answered, he may present evidence
as to the amount of the compensation to be paid for his property, and he may
share in the distribution of the award. (Sec. 3, Rule 67).

27. Which court has jurisdiction? It is the RTC has jurisdiction because
petition for expropriation is an action incapable of pecuniary estimation
regardless of the value of the subject property (Barangay San Roque vs.
Hiers of Pastor, 334 SCRA 127, 134).

28. Foreclosure of Real Estate Mortgage. In an action for the foreclosure of a

mortgage or other encumbrance upon real estate, the complaint shall set forth
the date and due execution of the mortgage; its assignments, if any; the names
and residences of the mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note or other documentary
evidence of the obligation secured by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences of all persons having or
claiming an interest in the property subordinate in right to that of the holder of
the mortgage, all of whom shall be made defendants in the action (Section 1,
Rule 68).

31
 29. Please take note: If a indebtedness subject to mortgage, the creditor has the
following alternative remedies: 1) To file an action for collection of sum of
money. 2) To foreclose the mortgage. The remedies are mutually exclusive;
such that the availment of one, excludes the other. Therefore, if one files a
collection suit and then thereafter files a petition for foreclosure of mortgage,
the same constitute a splitting of cause of action (Bank of America, NT & SA
vs. Amreican Realty Corp, 321 SCRA 659, 667-669; Marilag vs. martinez,
July 22, 2015).

30. Jurisdiction of judicial foreclosure. Judicial foreclosure is a real

action. Thus, jurisdiction depends on the assessed value of real property. Thus, if the value
of real property is 400K and below, MTC; above 400K, RTC (RA 11576).

31. What should the judgment in judicial foreclosure contain? Ascertainment

of the amount due to the plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved by the court, and costs; The
sum so found due; Order the amount found due to be paid to the court or to
the judgment obligee within a period of not less than ninety (90) days nor
more than one hundred twenty (120) days from the entry of judgment, and
admonition that in default of such payment the property shall be sold at public
auction to satisfy the judgment (Section 2, Rule 68).

32. What is equity of redemption? It is the period within which the mortgagor
may start exercising his equity of redemption, which is the right to extinguish
the mortgage and retain ownership of the property by paying the debt. The
payment may be made even after the foreclosure sale provided it is made
before the sale is confirmed by court (GSIS vs. CFI, 175 SCRA 19, 25).

33. What is the effect if the mortgagor failed to pay the sum due within the

period given? The court, upon motion, shall order the property to be sold in
the manner and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution (Sec. 3, Rule 57). There should
be motion, but the motion is ex-parte (Govt. of PI vs. De Las Lajigas, 55
Phil 668, 672).

34. What should the mortgagee do, after the sale of the mortgage property is

made? He should file a motion for confirmation of sale (Sec. 3. Rule 68).
Here the motion requires notice and hearing (Tiglao vs. Botones, 90 Phil.
275, 278). The confirmation of sale shall operate to divest the rights in the
property of all the parties to action and vest the rights in the purchaser, subject
to the rights of redemption under the law (Sec. 3, Rule 68). Order of
confirmation is appealable.

35. What is the effect of finality of the confirmation of the sale? Upon the
finality of the order of confirmation or upon the expiration of the period of
32
 redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property unless
a third party is actually holding the same adversely to the judgment obligor.
The said purchaser or last redemptioner may secure a writ of possession, upon
motion, from the court which ordered the foreclosure (Sec. 3, Rule 68). The
motion is ex-parte (Carlos vs. CA, 537 SCRA 247, 253).

36. Is the mortgagee entitled to deficiency? YES. If upon the sale of any real
property, there be a balance due to the plaintiff after applying the proceeds of
the sale, the court, upon motion, shall render judgment against the defendant
for any such balance for which he may be personally liable to the plaintiff,
upon which execution may issue immediately if the balance is all due at the
time of the rendition of the judgment; otherwise, the plaintiff shall be entitled
to execution at such time as the balance remaining becomes due under the
terms of the original contract, which time shall be stated in the judgment (Sec.
6, Rule 68).

37. Is there still a need to file a separate case to recover the deficiency? No
need. A motion for the recovery of deficiency can be filed in the same court
where judicial foreclosure was filed (Sec. 6, Rule 68).

38. Forcible entry and unlawful Detainer. What are the two causes of actions
under Rule 70? 1) Forcible entry – an action to recover possession of a
property from the defendant whose occupation thereof is illegal from the
beginning since he acquired possession by force, intimidation, threat, strategy
or stealth. 2) Unlawful detainer – an action for recovery of possession from
the defendant whose possession of the property was lawful from the
beginning, but became illegal when he continued his possession despite the
termination of his right thereunder (Sarmieta vs. Manalite Homeowners
Association, 632 SCRA 538, 546).

39. What should be alleged in forcible entry? Plaintiff had prior physical
possession. And, that defendant deprived plaintiff of his possession by means
of force, intimidation, threat, strategy or stealth (FITSS).

40. PLEASE TAKE NOTE: Prior physical possession is the primary

consideration in a forcible entry case. A party who can prove prior physical
possession can recover such possession even against the owner himself
(Antazo vs. Doblada, 611 SCRA 586).

41. What is the meaning of prior physical possession in forcible entry cases?
While prior physical possession is an indispensable requirement in forcible
entry cases, emphasis should be made however that possession can be
acquired not only by material occupation, but also by the fact that a thing is
subject to the action of one's will or by the proper acts and legal formalities
33
 established for acquiring such right. Possession can be acquired by juridical
acts. These are acts to which the law gives the force of acts of possession.
Juridical acts were sufficient to establish the plaintiff's prior possession of the
subject property (Mangaser vs. Ugay, December 3, 2014).

42. What should be alleged in the complaint for unlawful detainer?

Possession of the property by the defendant was by contract with or by
tolerance of the plaintiff. 1) Such possession became illegal upon notice by the
plaintiff to the defendant of the termination of the latter’s possession. 2)
Defendant remained in possession of the property and deprived the plaintiff
enjoyment thereof. 3) Within one (I) year from the last demand on the
defendant to vacate the property, the plaintiff instituted the complaint for
ejectment (Romullo vs.
Samahang Magkakapitbahay ng Bayanihan Compound
Homeowners Association, 632 SCRA 411, 419-420).

43. What is the effect if there is failure to alleged facts necessary for forcible
entry and unlawful detainer? The jurisdictional facts must appear on the
face of the complaint. When the complaint fails to aver facts constitutive of
forcible entry or unlawful detainer, as where it does not state how entry was
effected or how and when dispossession started, the remedy should either be
an accion publiciana or accion reinvindicatoria (Jose vs. Alfuerto,
November 26, 2012; Suarez vs. Emboy, March 12, 2014).

44. Please take note: When the entry is by stealth, the one-year period to file
action should reckoned from the discovery of entry (Nunez vs. SLTEAS
Phoenix Solutions, Inc., 618 SCRA 134, 142). When possession is by
tolerance, it becomes illegal upon demand to vacate by the owner and the
possessor by tolerance refuses to comply with such demand (Piedad vs.
Gurieza, June 18, 2014). The rule on tolerance does not apply in a case where
there was forcible entry at the start (Munoz vs. CA, 214 SCRA 216, 224).
Hence, in this case, unlawful detainer is not the proper remedy (Jose vs.
Alfuerto, November 26, 2012).

45. Unlawful detainer in lease contract cases. Unless otherwise stipulated, such
action by the lessor shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made upon the lessee, or by
serving written notice of such demand upon the person found on the premises,
or by posting such notice on the premises if no person be found thereon, and
the lessee fails to comply therewith after fifteen (15) days in the case of land
or five (5) days in the case of buildings (Sec. 2, Rule 70).

46. Demand is to “pay unpaid rental or to vacate”. Will this make out a case
of unlawful detainer? No. It should be demand to pay and vacate. A demand
in the alternative to pay the increased rental or otherwise vacate the land is not
a demand that will give rise to an unlawful detainer case (Penas vs. CA, 233
SCRA 744, 747).

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 47. Is there default in ejectment cases? NO. Should the defendant
fail to answer the complaint within the period above provided, the court, motu
proprio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is prayed
for therein (Sec. 7, Rule 70).

48. What should the court do in case tenancy relationship is alleged in the

answer? Where tenancy is raised as a defense, the court must conduct a

hearing on the matter to determine the veracity of the allegations of tenancy
(Onquit vs. Binamira-Parcia, 297 SCRA 354).

49. How to stay the execution of judgment? Appeal is perfected and the
defendant files a sufficient supersedeas bond, approved by the Municipal Trial
Court and executed in favor of the plaintiff to pay the rents, damages, and
costs accruing down to the time of the judgment appealed from. (Sec. 19, Rule
70). In the absence of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation of the premises for the
preceding month or period at the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding month or period (Sec. 19,
Rule 70).

XVI. EXECUTION

1. What is the lifetime of the writ of execution? The writ shall continue in
effect during the period within which the judgment may be enforced. Hence
the writ may be enforced within the five-year period from entry of judgment
because within that period, the writ may be enforced by motion (Sec. 6, Rule
39).

2. How may final and executory judgment or order be executed? 1) 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.

3. What is revival of judgment? judgment which has become dormant after the
passage of five years without it being executed upon motion of the prevailing
party. It is not intended to re-open any issue affecting the merits of the case
judgment debtor’s case nor the propriety or correctness of the first judgment.
It is a new and an independent action separate and distinct from the previous
action sought to be revived. The cause of action is the judgment itself
(Saligumba vs. Palanog, 573 SCRA 8, 15-16).

4. What are the defenses that may be invoked in an action to revive?

Jurisdictional defenses. Prescription. Payment. Other defenses arising after the
finality of judgment NOTE: It may even be subject to counterclaims arising
out of the transactions not connected with the former controversy (Basilonia
vs. Villaruz, August 10, 2015).

35
5. PLEASE TAKE NOTE: 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; PNB vs.
Bondoc, 14 SCRA 770, 770-772).

6. Which court has jurisdiction over an action for revival of judgment?

Heirs of Miranda, Sr., vs. Miranda, GR 179638, July 8, 2013 – An action
for revival of judgment may be filed either in the same court where the
judgment was rendered or in the place where the plaintiff or defendant resides
or in any other place designated by the statutes. VENUE: Infante vs. Aran
Builders, 531 SCRA 123 – the proper venue depends on the determination of
whether the present action for revival judgment is real or personal action.

7. May the running of the five-year period be interrupted? The Court in

certain instances, allowed execution of the judgment by mere motion despite
the lapse of the five-year time. In many instances, the delays in the execution
of judgment were through causes clearly attributable to the judgment debtor as
when he employs legal maneuvers to block the enforcement of the judgment.
Delays attributable to the defendant have the effect of suspending the running
of the prescriptive period for the enforcement of the judgment (Camacho vs.
CA, 287 SCRA 611; Republic vs. CA, 260 SCRA 344, 349-350).

8. What is the procedure if the property of third party is levied? Basic

principle: the execution may issue only upon a person who is a party to the
action or proceeding, and not against one who did not have his day in court
(Philippine Coconut Federation, Inc., vs. Republic, October 16, 2016).
Thus, the property not owned by the judgment debtor or by one not a party to
the case should not be levied.

9. What is the procedure if the property of third party is levied? Under the
Rules, a person not a party to the action, claiming a property levied upon may
execute an affidavit of his title or right of possession over the property. The
affidavit shall be served upon the officer making a levy and a copy thereof
must also be served upon the judgment oblige (Section 16, Rule 39). This
remedy of the claiming party is called TERCERIA.

10. After receipt of the affidavit of claim, what should the sheriff do? The
officer shall not be bound to keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of the property levied on.
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed (Section 16, Rule
39).

11. Suppose damage was incurred by the third party on account of officer’s
taking and keeping of his property, when should the action against the
bond be filed? The action should be filed within one hundred twenty (120)
days from the date of the filing of the bond. Under Section 16, Rule 39, it is
provided that No claim for damages for the taking or keeping of the property

36
 may be enforced against the bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of the bond.

XVII. JURISDICTION IN CRIMINAL CASES

1. Requisites for the exercise of criminal jurisdiction. 1) Jurisdiction over the

subject matter. 2) Jurisdiction over the territory. 3) Jurisdiction over the
person of the accused.

2. Jurisdiction over the subject matter. It is conferred by law. Thus, it cannot

be subject to waiver, acquiescence, agreement or consent of the parties
(Conjuangco, Jr., vs. Republic, 686 SCRA 472). Conferment of jurisdiction
cannot be presumed. Thus, in order to ascertain whether a court has
jurisdiction or not, the provision of law shall be inquired (Soller vs.
Sandiganbayan, 357 SCRA 677, 683). Jurisdiction over the subject matter is
determined by the allegation in the information. It is not determined by the
evidence presented during trial (Lacson vs. ES, 301 SCRA 298). It is
determined by the penalty imposable not the penalty imposed (People vs.
Buissan, 105 SCRA 547). It is determined by the law at the commencement of
the criminal action not the law in effect at the time of the commission of the
offence (People vs. Lagon, 185 SCRA 442; Asistio vs. People, April 20, 2015).
Except those case falling under the jurisdiction of the Sandiganbayan because
it is determined at the time of the commission of the offense.

3. Is jurisdiction by estoppel applicable in criminal cases? YES. It was only

after appellants had filed their brief that appellee, in its brief, raised the issue
of the belated appeal and, inferentially, the lack of appellate jurisdiction of this
Court in this case. However, the principle of estoppel by laches to bar attacks
on jurisdiction has been adopted and repeatedly applied by this Court, notably
in Tijam, et al. vs. Sibonghanoy, et., al., and in several cases which followed
thereafter, including criminal cases (People vs. Regalario, G.R. No. 101451,
March 23, 1993).

4. How may jurisdiction over the person of the accused acquired? It may be
acquired by the arrest of the accused by virtue of a warrant of arrest and
voluntary appearance.

5. What are considered voluntary appearance? The following are considered

voluntary appearance: A) Asking affirmative relief from the court. B) Filing
motion to quash or any other motion from the Court, except when the ground
is lack of jurisdiction over the person of the accused (Miranda vs. Tuliao,
March 31, 2006). C) Appearance of counsel during arraignment (Jimenez vs.
Nazareno, GR No. L-37933, April 15, 1988). D) Entry of appearance of
counsel for the accused (Layosa vs. Rodriguez, GR No. L-46080, November
10, 1978). E) Act of posting bail without qualification (People vs. Go, GR No.
168539, March 25, 2014).

6. A criminal complaint was filed against the accused before the prosecutor’s
office. The investigating prosecutor, after finding probable cause, filed the
information in court. The accused filed a Motion to Dismiss the complaint for
37
 lack of probable cause. The Court denied the Motion on the ground that the
court has not yet acquired jurisdiction over the person of the accused because
he was not yet arrested. Is the court correct? The Court is not correct?
When the accused filed the Motion to Dismiss, he submitted himself to the
jurisdiction of the court. Thus, the court can validly rule on his motion. The
court should have determined the difference between the “custody of the law”
and “jurisdiction over the person” (David vs. Agbay, March 18, 2015).

7. Crimes within the jurisdiction of Sandiganbayan. 1) Violations of

Republic Act No. 3019, as amended, other known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the government,
whether in a permanent, acting, or interim capacity, at the time of the
commission of the offense. 2) Other offenses of felonies whether simple or
complexed with other crimes committed by the public officials and employees
mentioned in subsection of this section in relation to their office. 3) Criminal
cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986 (Section 4, RA 8249).

8. Who are officials covered by the jurisdiction of Sandiganbayan? Officials

of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of the Compensation and
Position Classification Act of 1989
(Republic Act No. 6758), this includes: (a) Provincial governors, vice-
governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other city department heads; (b) City
mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads; (c) Officials of the
diplomatic service occupying the position of consul and higher; (d) Philippine
army and air force colonels, naval captains, and all officers of higher rank; (e)
Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintended or
higher; (f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special prosecutor; (g)
Presidents, directors or trustees, or managers of governmentowned or -
controlled corporations, state universities or educational institutions or
foundations. (h) Members of Congress and officials thereof classified as
Grade '27' and up under the Compensation and Position Classification Act of
1989. (j) Members of the judiciary without prejudice to the provisions of the
Constitution; Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and (k) All other national and
local officials classified as Grade '27' and higher under the Compensation and
Position Classification Act of 1989.

9. REMEMBER: the jurisdiction of the Sandiganbayan will be determined by

what crime is committed and who committed the crime.

10. PLEASE TAKE NOTE: In cases where none of the accused are occupying
positions corresponding to Salary Grade '27' or higher, as prescribed in the
38
 said Republic Act No. 6758, or military and PNP officer mentioned above,
exclusive original jurisdiction thereof shall
be vested in the proper regional court, metropolitan trial court, municipal
trial court, and municipal circuit trial court, as the case may be, pursuant
to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as
amended.

11. NOTE FURTHER: Provided, That the Regional Trial Court shall have
exclusive original jurisdiction where the information: (a) does not allege any
damage to the government or any bribery; or (b) alleges damage to the
government or bribery arising from the same or closely related transactions or
acts in an amount not exceeding One million pesos P1,000,000.00. (RA
10660, amending PD 1606 and RA 8249).

12. APPELLATE JURISDICTION OF SANDIGANBAYAN. The

Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction as
herein provided. (RA 10660, amending PD 1606 and RA 8249). NOTE
FURTHER: The Sandiganbayan shall have exclusive original jurisdiction
over petitions for the issuance of the writs of mandamus, prohibition,
certiorari, habeas corpus, injunctions, and other ancillary writs and processes
in aid of its appellate jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise in cases filed or which may
be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court (RA 10660, amending PD 1606 and RA
8249).

13. Violation of RA 9165 is withing the jurisdiction of the RTC regardless of

who committed it or the manner of its commission. In this case, RA 9165
specifies the RTC as the court with the jurisdiction to "exclusively try and
hear cases involving violations of [RA 9165]." This is an exception, couched
in the special law on dangerous drugs, to the general rule under Section 4 (b)
of PD 1606, as amended by RA 10660. It is a canon of statutory construction
that a special law prevails over a general law and the latter is to be considered
as an exception to the general (De Lima vs. Guerrero, G.R. No. 229781,
October 10, 2017).

14. Where should the criminal action be instituted? Where the offense was
committed or, where any of its essential ingredients occurred.

15. What is the effect if the prosecution was not able to prove that the crime
was committed in place where the action was filed? In a case, the
prosecution failed to show that the offense of estafa under Section 1(b), Art.
315 was committed within the jurisdiction of the RTC of Makati. Other than
the lone allegation in the information, there is nothing in the prosecution
evidence which even mentions that any of the elements of the offense were
committed in Makati. There being no showing that the offense was committed
within Makati, RTC
39
 of that City has no jurisdiction over the offense (Trenas vs. People, 664
SCRA 355).

16. What are the exemptions to the rule on venue in criminal cases? 1) Where
the offense was committed under the circumstances enumerated in Art. 2, of
the RPC. 2) Where the SC ordered the changed of venue. 3) Where an offense
is committed in train, aircraft, or other public or private vehicle in the course
of its trip, the criminal action need not be instituted in the actual place where
the offense was committed. It may be instituted and tried in the court of any
municipality or territory where such train, aircraft, or vehicle passed during its
trip. The action may also be instituted and tried in the place of departure and
arrival (Sec. 15(b), Rule 110). 4) If the crime is committed on board a vessel,
it may be instituted in the port of entry, or territory where the vessel passed
during the voyage (Sec. 15(c), Rule 110. 5) Where the offense is cognizable
by Sandiganbayan; 6) RA 8042, as amended.

17. May Philippine courts exercise jurisdiction over an offense constituting

psychological violence under Republic Act (R.A.) No. 9262 committed
through marital infidelity when the alleged illicit relationship occurred or
is occurring outside the country? Yes. What R.A. No. 9262 criminalizes is
not the marital infidelity per se but the psychological violence causing mental
or emotional suffering on the wife. Otherwise stated, it is the violence inflicted
under the said circumstances that the law seeks to outlaw. Marital infidelity as
cited in the law is only one of the various acts by which psychological
violence may be committed. Moreover, depending on the circumstances of the
spouses and for a myriad of reasons, the illicit relationship may or may not
even be causing mental or emotional anguish on the wife. Thus, the mental or
emotional suffering of the victim is an essential and distinct element in the
commission of the offense (AAA vs. BBB, G.R. No. 212448, January 11,
2018).

18. What is the venue in BP 22? The venue in BP 22 is where the checks drawn,
issued, delivered, dishonored (Yaong vs. People, 704 SCRA 195), and,
deposited (Brodeth vs. People, November 29, 2017).

XVIII. PROSECUTION OF OFFENSES

1. How is criminal action instituted? It depends on whether the offense

requires preliminary investigation: If PI is required, then criminal action is
instituted by filing a complaint or information with the proper officer for the
purpose of preliminary investigation. If it is not required, by filing a complaint
or information directly with the MTC or MCTC or by filing a complaint with
the office of the prosecutor in if it is in MM or other chartered cities.

2. What is the significance of the institution of criminal action on the

prescriptive period of crime? Institution of the criminal action
shall interrupt the period of prescription of the offense charged unless
otherwise provided in special laws. PLEASE TAKE NOTE: The ruling in
Zaldivia vs. Reyes, 211 SCRA 277, is not anymore controlling that with
40
 respect to special laws, prescription is interrupted by the filing of information
in Court (RA 3326). Now, what is controlling is People vs. Pangilinan, 672
SCRA 105, June 13, 2012, wherein the SC ruled that there is no more
distinction between cases under the RPC and those covered by special laws.

3. When is the running of prescriptive period of violation of ordinances

interrupted? Zaldivia vs. Reyes is still controlling in so far as ordinances are
concerned. Upon the filing of the Information in Court. Jurisprudence exists
showing that when the Complaint is filed with the Office of the Prosecutor
who then files the Information in court, this already has the effect of tolling
the prescription period. The recent People v. Pangilinan categorically stated
that Zaldivia v. Reyes is not controlling as far as special laws are concerned.
Pangilinan referred to other cases that upheld this principle as well. However,
the doctrine of Pangilinan pertains to violations of special laws but not to
ordinances (Jadewell vs. Lidua, G.R. No. 169588, October 7, 2013).

4. The husband executed a complaint for adultery against his wife and the
latter’s paramour. The husband went to the US and resided there. The
fiscal filed an information of adultery. Both accused filed a motion to
quash on the ground that private crimes can only be prosecuted at the
instance of the offended party. Since the offended spouse is already in the
US, the accused contends that he lost already interest in the case. Should
the case be dismissed? NO. In a long line of decisions, this Court has
maintained strict adherence to the requirement by Article 344 of the Revised
Penal Code. It must be borne in mind, however that this legal requirement was
imposed “out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public
trial.” Thus, the law leaves it to the option of the aggrieved spouse to seek
judicial redress for the affront committed by the erring Spouse. If the offended
already manifested his desire to file charges against both accused. Then the
requirement was already complied with (People vs. Ilarde, 125 SCRA 11).

5. Is the trial court divested of its jurisdiction over the person of the accused
and over the offense charged if the Information filed by the investigating
prosecutor does not bear the imprimatur of the Chief because of the
absence on its face of both the word “approved” and the signature of the
authorized officer such as the provincial, city or chief state prosecutor?
NO. It is sufficient for the validity of the Information or Complaint, as the
case may be, that the Resolution of the investigating prosecutor
recommending for the filing of the same in court bears the imprimatur of the
provincial, city or chief state prosecutor whose approval is required by Sec. 1
of
R.A. No. 5180 and is adopted under Sec. 4, Rule 112 of the Rules of
Court. (Villa-Gomez vs. People, G.R. No. 216824, November 10, 2020).
NOTE: Quisay vs. People was already abandoned by VillaGomez vs. People.

6. The averments of the informations to the effect is that the two accused
"with intent to kill, qualified with treachery, evident premeditation and
abuse of superior strength did x x x assault, attack and employ personal
violence upon” the victims “by then and there shooting them with a gun,
41
 hitting them” on various parts of their bodies “which were the direct and
immediate cause of their deaths. Is this allegation sufficient? NO. The
allegation does not sufficiently set forth the facts and circumstances describing
how treachery attended each of the killings. The State must specify in the
information the details of the crime and any circumstance that aggravates his
liability for the crime. The requirement of sufficient factual averments is
meant to inform the accused of the nature and cause of the charge against him
in order to enable him to prepare his defense (People vs. Valdez, 679 Phil.
279 (2012); People v. Dasmariñas, G.R. No. 203986, October 4, 2017;
People v. Delector, G.R. No. 200026, October 4, 2017). This was reaffirmed
in the case of People vs. Solar, GR No. 225595, August 6, 2019.

7. Solar Guidelines in alleging aggravating and qualifying circumstance: 1)

Any Information which alleges that a qualifying or aggravating circumstance
is present, must state the ultimate facts relative to such circumstance.
Otherwise, the Information may be subject to a motion to quash under Section
3 (e) (i.e., that it does not conform substantially to the prescribed form), Rule
117 of the Revised Rules of Criminal Procedure, or a motion for a bill of
particulars under the parameters set by said Rules. 2) Failure of the accused to
avail any of the said remedies constitutes a waiver of his right to question the
defective statement of the aggravating or qualifying circumstance in the
Information, and consequently, the same may be appreciated against him if
proven during trial. 3) Alternatively, prosecutors may sufficiently aver the
ultimate facts relative to a qualifying or aggravating circumstance by
referencing the pertinent portions of the resolution finding probable cause
against the accused, which resolution should be attached to the Information in
accordance with the second guideline below. 4) Prosecutors must ensure
compliance with Section 8 (a), Rule 112 of the Revised Rules on Criminal
Procedure that mandates the attachment to the Information of the resolution
finding probable cause against the accused. Trial courts must ensure that the
accused is furnished a copy of this Resolution prior to the arraignment (People
vs. Solar, GR No. 225595, August 6, 2019).

8. When is objection to the form of the complaint or information be made?

Objections relating to the form of the complaint or information cannot be
made for the first time on appeal. The accused should move before
arraignment either for bill of particulars or quashal of the information. If he
fails to pursue either remedy, he is deemed to have waived his objection to any
formal defect in the information (People vs. Teodoro, 607 SCRA 307).

9. Is it necessary to allege in the information the qualifying and aggravating

circumstance? What is the effect the information failed to alleged the
same? Every information must state the qualifying and the aggravating
circumstances attending the commission of the crime. Failure to state an
aggravating circumstance, even if duly proven at trial, will not be appreciated
as such (People vs. Felciano, May 5, 2014).

10. When is amendment made without leave of court? A complaint or

information may be amended without leave of court, at any time before the
accused enters his plea. After the plea and during trial, a formal amendment by
42
 only be made with leave of court and when it is done without causing
prejudice to the rights of the accused (Sec. 14, Rule 110).

11. When is leave of court required even if amendment is made before plea?
First, amendment which downgrades the nature of the offense charged.
Second, amendment which excludes any accused from the complaint or
information.

12. Rule on Amendments: a) It is a matter of right, as to form and substance

before arraignment. b) If it downgrades the nature of the offense or excludes
any accused from the information, it has to be by leave of court and with
notice to offended party. c) Only formal amendment may be made after
arraignment and there has to be with leave of court.

13. Examples of Formal Amendments: 1) New allegations which relate only to

the range of the penalty that the court might impose in the event of conviction.
2) An amendment which does not charge another offense different or distinct
from that charged in the original one; 3) Additional allegations which do not
alter the prosecution's theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; 4) An amendment which
does not adversely affect any substantial right of the accused. An amendment
that merely adds specifications to eliminate vagueness in the information and
not to introduce new and material facts, and merely states with additional
precision something which is already contained in the original information,
and which adds nothing essential for conviction for the crime charged
(Ricarze vs. CA, G.R. No.160451, Feb. 9, 2007).

14. An information for Murder was filed against Samonte for killing
Espinosa. Samonte has been interposing self-defense as a defense. After
the arraignment of Samonte, the Prosecution filed a Motion for Leave to
Admit Amended Information for Murder against Samonte and Corpus.
The Amended information alleged conspiracy between Samonte and
Corpus. The latter being the one who paid Samonte to kill Espinosa.
Samonte objected the admission of the Amended Information on the
ground that the Amended Information prejudice his right as the
Amended Information rendered his defense not anymore available. Is
Samonte correct? SAMONTE IS CORRECT. While conspiracy is merely a
formal amendment, Samonte will be prejudiced if the amendment will be
allowed after his plea. Applying the test, his defense and corresponding
evidence will not be compatible with the allegation of conspiracy in the new
information. Therefore, such formal amendment after plea is not allowed.
(Corpus, Jr. v. Pamular, G.R. No. 186403, September 5, 2018; People v.
Casey, 190 Phil. 748-767 (1981).

15. When is formal amendment prejudicial to the accused? Whether the

defense under the original information will not anymore available after the
amendment is made and if any evidence that an accused might offer is not
anymore applicable after amendment, the amendment will prejudice the rights
of the accused. (Corpus, Jr. v. Pamular, G.R. No. 186403, September 5,
2018; eople v. Casey, 190 Phil. 748-767 (1981).
43
XIX. PROSECUTION OF CIVIL ACTION, PI & ARREST

1. GENERAL RULE: When a criminal action is instituted, the civil action for
the recovery of the civil liability arising from the offense charged shall be
deemed impliedly instituted (Section 1, Rule 111).

2. Consequences when the civil liability is instituted with the criminal action.
After the criminal action is commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the
criminal action. If the criminal action is filed after the said civil action has
already been instituted, the latter shall be suspended in whatever stage it may
be found before judgment on the merits (Sec. 2, Rule 111).

3. During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. The extinction of the penal
action does not carry with it extinction of the civil action (Section 2, Rule
111).

4. However, the civil action based on delict shall be deemed extinguished if there
is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist (Sec. 2, Rule 111).

5. When civil action may proceed independently? In the cases provided in

Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended party. It shall
proceed independently of the criminal action
and shall require only a preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same act or omission
charged in the criminal action (Sec. 3, Rule 111).

6. Consequences of independent civil action. The right to civil action shall

proceed independently of the criminal action. The quantum of evidence
required is preponderance of evidence. THERE IS NO NEED FOR
RESERVATION BECAUSE THE CIVIL ACTION IS NOT BASED ON
CRIME.

7. Rule on BP 22 cases: The criminal action for violation of Batas Pambansa

Blg. 22 shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed. However, a
separate proceeding for the recovery of civil liability in cases of violation of
BP 22 is allowed when civil case if filed ahead of the criminal case (Lo Bun
Tiong vs. Balboa, 542 SCRA 504; Section 2, Rule 111).

8. Rules on the effect of death of accused before final judgment: 1) Death of

the accused pending appeal of his conviction extinguishes his criminal liability
as well as the civil liability based solely thereon. 2) The claim for civil
liability survives notwithstanding the death of the accused, if the same may
44
 also be predicated on some source of obligation other than delict. 3) Where
civil liability survives, an action for recovery therefor may be pursued but only
by way of filing a separate civil action and subject to section 1, rule 111. This
separate civil action may be enforced against the executor/administrator or
estate of the accused depending on the source of obligation (People vs.
Bayotas G.R. 102007, September 2, 1994).

9. Prejudicial question. A prejudicial question is understood in law to be that

which arises in a case the resolution of which is a logical antecedent of the
issue involved in the criminal case, and the cognizance of which pertains to
another tribunal. It is determinative of the criminal case, but the jurisdiction to
try and resolved it is lodged in another tribunal (Dominguez Agronomic vs.
Liclican, 2015).

10. Elements. The elements of a prejudicial question are: (a) the previously
instituted civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action, and (b) the resolution of such
issue determines whether or not the criminal action may proceed.

11. NOTE: There is prejudicial question when the civil case is previously filed.
If the criminal case is filed first, there is no pre-judicial question (Pimentel vs.
Pimentel, 630 SCRA 436).

12. Omictin vs. CA, 512 SCRA 70. The petitioner, as the supposed operations
manager of the corporation filed an estafa case against the private respondent,
in behalf of the corporation. Before the filing of the estafa case, private
respondent filed before the SEC a case questioning the legality of petitioner’s
appointment as corporate officer. Private respondent filed a motion to suspend
on the ground of pre-judicial question. THERE IS PRE-JUDICIAL
QUESTION. Under the circumstances, since the alleged offended party is a
corporation, the validity of the demand for the delivery of the subject vehicles
rests upon the authority of the person making such a demand on the
company’s behalf. Thus, if it is found out that the petitioner’s appointment is
invalid, he has no right to demand for and in behalf of the corporation and the
demand to return is likewise invalid. Hence, a prejudicial question.

13. An administrative case previously filed can also be used as pre-judicial

question to a criminal case. An administrative case is deemed a civil case.
(San Miguel Properties vs. Perez, 2013).

14. Preliminary Investigation. Rule 43, cannot be availed of to question the

finding of probable cause of the Sec of DOJ on petition for review.
Probable cause for the purpose of filing an information in court consists in
such facts and circumstances as would engender a well-founded belief that a
crime has been committed and the accused may probably be guilty thereof.
The determination of probable cause lies solely within the sound discretion of
the investigating public prosecutor after the conduct of a preliminary
investigation. It is a sound judicial policy to refrain from interfering with the
determination of what constitutes sufficient and convincing evidence to
establish probable cause for the prosecution of the accused.
45
15. May hearsay evidence be admitted during preliminary investigation?
YES. The evidence necessary to establish probable cause is based only on the
likelihood, or probability of guilt. In fact, probable cause can be established
with hearsay evidence. According to the case of Estrada, hearsay evidence is
admissible in determining probable cause in the preliminary investigation
because such investigation is merely preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and
obligations of the parties (Estrada vs. Office the Ombudsman. Jan. 21,
2015).

16. What is an inquest “proceedings”? 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. In the absence or
unavailability of an inquest prosecutor, the complaint may be filed by the
offended party or a peace officer directly with the proper court on the basis of
the affidavit of the offended party or arresting officer or person (Section 6,
Rule 112).

17. Can a person validly arrested without a warrant ask for preliminary
investigation? YES. Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated within
fifteen (15) days from its inception. 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 as
provided in this Rule (Section, 6, Rule 112).

18. Duty of the Judge upon filing of the complaint or information. 1) Issue
warrant of arrest upon finding of probable cause. 2) Dismiss the case if the
evidences on record do not establish probable cause. 3) Order the prosecutor
to submit evidence if he entertains doubt as the existence of probable cause
(People vs. Desmond, G.R. No. 178947, June 26, 2013).

19. What is the remedy if the case is dismissed by the Court based on lack of
probable cause? The proper remedy is appeal. The order dismissing the case
for lack of probable cause is a “final order since it disposes of the case,
terminates the proceedings, and leaves the court with further nothing to do
with respect to the case (Cajipe vs. People, April 23, 2014).

20. Arrest without warrant. 1) When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense;
2) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and 3) When the person to be arrested is a
46
 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
has escaped while being transferred from one confinement to another (Section
5, Rule 113).

21. Duty of Inquest Prosecutor. 1) Determine whether the arrested person

was arrested lawfully in accordance with Sec. 5(a) and (b), Rule 113; 2) If
arrest is illegal, he shall not proceed with the inquest and recommend the
release of the arrested person which recommendation should be approved
by the head; 3) If the arrest is found legal, he shall proceed with the
inquest, and if he finds probable cause, an information will be filed; 4) He
may ask the arrested person if he wants to avail his right of PI, but in the
presence of his counsel, the arrested person will be asked to sign a waiver
of the provision of Article 125.

22. Can the accused appeal the resolution of the inquest prosecutor’s finding
of probable cause to the SOJ? NO. The Supreme Court in Leviste vs.
Alameda, G.R. No. 182677, August 3, 2010, held that the remedy of appeal
to the SOJ is not immediately available in cases subject of inquest. The private
party should first avail of a preliminary investigation or reinvestigation, if any,
before elevating the matter to the SOJ.

23. When is preliminary investigation required? Except as provided in section

7 of this Rule, a preliminary investigation is required to be conducted before
the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day
without regard to the fine (Sec. 1, Rule 112).

24. Objection by the accused to an arrest without a warrant must be made before
he enters his plea, otherwise, the objection is deemed waived (People vs.
Vallejo, Nov. 19, 2003).

25. The waiver to question the illegality of arrest does not carry with it the waiver
of the inadmissibility of the evidence obtained during illegal arrest (People vs.
Aruta, April 13, 1998).

26. Posting of bail does not constitute waiver of irregularity of arrest (Sec.
26., Rule 114).

27. Honasan II vs. DOJ Panel, April 13, 2004. The power of the Ombudsman to
investigate offenses involving public officers or employees is not exclusive
but is concurrent with other similarly authorized agencies of the government
such as the provincial, city and state prosecutors has long been settled in
several decisions of the Court. In other words, respondent DOJ Panel is not
precluded from conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the
exercise of its primary jurisdiction take over at any stage.

47
XX. BAIL

1. When is bail a matter of right? All persons in custody shall be admitted to

bail as a matter of right, with sufficient sureties, or released on recognizance
as prescribed by law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment.

2. When bail hearing is discretionary. A hearing of the application for bail is

to be conducted when a person is in custody for the commission of an offense
punishable by death, reclusion perpetua, or life imprisonment. In the hearing,
the prosecution has the burden of showing that the evidence of guilt is strong.
Bail hearing is mandatory.

3. Where should application for bail be filed after conviction of the RTC?
RTC even if notice of appeal is filed so long as the records are still with the
RTC If the decision of the RTC convicting the accused changed the nature of
the offense from non-bailable to bailable, the application for bail can only be
filed and resolved by the APPELLATE COURT.

4. Is the condition that the accused be arraigned first before he can post bail
valid? In Lavides vs. CA, 324 SCRA 321, the Supreme Court held that the
grant of bail should not be conditioned upon prior arraignment of the accused.
In cases where bail is authorized, bail shouuld be granted before arraignment;
otherwise, the accused will be precluded from filing a motion to quash which
is to be done before arraignment. HOWEVER: Arraignment should first be
conducted before accused may be allowed to post bail (Guidelines for
Continuous Trial).

5. Guidelines in resolving applications for bail in case the accused is charged

with non-bailable offense: A. In all cases, whether bail is a matter of right or
of discretion, notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Section 18, Rule 114 of the Rules
of Court as amended), B. Where bail is a matter of discretion, conduct a
hearing of the application for bail regardless of whether or not the prosecution
refuses to present evidence to show that the guilt of the accused is strong for
the purpose of enabling the court to exercise its sound discretion; (Sections 7
and 8, supra). C. Decide whether the guilt of the accused is strong based on
the summary of evidence of the prosecution; D) If the guilt of the accused is
not strong, discharge the accused upon the approval of the bailbond (Section
19, supra). Otherwise petition should be denied (Enrile vs. Sandiganbayan,
G.R. No. 213847, August 18, 2015; Cortes vs. Catral, September 10,
1997).

XXI. RIGHTS OF THE ACCUSED

1. What is equipoise rule? It is a situation where the court is faced with

conflicting versions of the prosecution and defense and where the evidence,
48
 facts and circumstances are capable of two or more explanations, one of which
is consistent with the innocence of the accused and the other consistent with
his guilt. The court has to acquit pursuant to presumption of innocence under
the constitution (People vs. Erguiza, 571 SCRA 634). BUT: When the
accused admits the killing but pleads self-defense, the burden shifts to the
accused to prove his innocence by clear and convincing evidence. Self-
defense, when invoked, implies the admission of by the accused that he
committed the criminal act (People De los Santos, GR 207818, July 23,
2014).

2. What is custodial investigation? Any questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in some significant way. It starts when the
police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect taken into custody by the police
who starts the interrogation and propounds questions to the person to elicit
incriminating statements.

3. Rule on police line-up re right to counsel: A police line-up is not part of the
custodial investigation since the accused at that stage is not yet being
investigated. In line-up, the right to counsel does not yet attach (People vs.
Tolentino, 423 SCRA 448). However, when the accused has already been
pointed, the investigation ceases to be a general inquiry. Thus, the person
pointed to has now the right to counsel for he is already under custodial
investigation (Mesina vs. People, GR 162489, June 17, 2015).

4. Right to counsel applies during preliminary investigation. The right to

counsel applies in certain pre-trial proceedings that can be deemed critical
stages in the criminal process like in preliminary investigation. This
investigation can be no different from the incustody-interrogations by the
police, for the suspect who takes part in a preliminary investigation will be
subjected to no less than state’s processes, oftentimes intimidating and
relentless, of pursuing those who might be liable for criminal prosecution
(People vs. Sunga, 339 SCRA 624).

5. Right to confrontation. The right to confrontation is part of due process not

only in criminal proceedings but also in civil proceedings as well as in
proceedings in administrative tribunals with quasi-judicial powers. It has a
two-fold purpose: 1) primarily, to afford the accused an opportunity to test the
testimony of the witness by crossexamination; and 2) secondarily, to allow the
judge to observe the deportment of the witness (People vs. Sergio, G.R. No.
240053, October 9, 2019).

6. In People vs Sergio, the Court allowed the taking of deposition through

written interrogatories of Mary Jane in Indonesia in the criminal case for
human trafficking filed against the accused. The Judge was present during the
taking of deposition. The accused objected because according to them, it
violated their right to confrontation. RULING: The SC in People vs Sergio,
ruled that accused were not deprived of their right to cross-examination. They
are allowed to do so through written interrogatories. The second purpose of
the right to confrontation was also complied with as the Judge was present
49
 during the taking of deposition through written interrogatories (People vs.
Sergio, G.R. No. 240053, October 9, 2019).

XXIII. ARRIGNMENT

1. When the presence of the private offended party needed? The private
offended party shall be required to appear at the arraignment for purposes of
plea bargaining, determination of civil liability, and other matters requiring his
presence. In case of failure of the offended party to appear despite due notice,
the court may allow the accused to enter a plea of guilty to a lesser offense
which is necessarily included in the offense charged with the conformity of
the trial prosecutor alone (Sec. 1(f), Rule 116).

2. When should plea of guilty to a lesser offense be made? Plea of guilty is

allowed at arraignment. Section 2, Rule 115 provides: “at arraignment, the
accused, with the consent of the offended party and the prosecutor, may be
allowed by the trial court to plead guilty to a lesser offense which is
necessarily included in the offense charged. After arraignment but before
trial, the accused may still be allowed to plead guilty to said lesser offense
after withdrawing his plea of not guilty. No amendment of the complaint or
information is necessary.”

2. May it be made after the prosecution rested its case? Yes. It has been held
that it may also be considered during trial proper or even after the prosecution
has finished presenting it evidence and rested its case. It is immaterial that the
plea bargaining was not made during the pre-trial stage or that it was made
only after the prosecution already presented several witnesses (Daan vs.
Sandiganbayan, 550 SCRA
233).

3. What are the requisites of plea of guilty to a lesser offense? 1) the lesser
offense is necessarily included in the offense charged; 2) the plea must be with
the consent of both the offended party and the prosecutor (Section 2, Rule
116).

4. What are the obligations of the Court when the accused pleaded guilty to
a capital offense? A) The Judge shall conduct searching inquiry into the
voluntariness and comprehension of the plea. B) Require the prosecution to
prove his guilt and the precise degree of his culpability. C) Allow the accused
to present evidence in his behalf (Section 3, Rule 116).

5. Guidelines concerning pleas of guilty to capital offenses: A) AT THE

TRIAL STAGE. 1) When the accused makes a plea of guilty to a capital
offense, the trial court must strictly abide by the provisions of Sec. 3, Rule 116
of the 2000 Revised Rules of Criminal Procedure. In particular, it must afford
the prosecution an opportunity to present evidence as to the guilt of the
accused and the precise degree of his culpability. Failure to comply with these
mandates constitute grave abuse of discretion. 2) In case the plea of guilty to a
capital offense is supported by proof beyond reasonable doubt, the trial court
50
 shall enter a judgment of conviction. 3) In case the prosecution presents
evidence but fails to prove the accused's guilt beyond reasonable doubt, the

trial court shall enter a judgment of acquittal in favor of the accused. 4) In

case the prosecution fails to present any evidence despite opportunity to do so,
the trial court shall enter a judgment of acquittal in favor of the accused. In the
above instance, the trial court shall require the prosecution to explain in
writing within ten (10) days from receipt its failure to present evidence. Any
instance of collusion between the prosecution and the accused shall be dealt
with to the full extent of the law (People vs. Pagal, G.R. No. 241257,
September 29, 2020).

AT THE APPEAL STAGE. 1) When the accused is convicted of a capital offense

on the basis of his plea of guilty, whether improvident or not, and proof
beyond reasonable doubt was established, the judgment of conviction shall be
sustained. 2) When the accused is convicted of a capital offense solely on the
basis of his plea of guilty, whether improvident or not, without proof beyond
reasonable doubt because the prosecution was not given an opportunity to
present its evidence, or was given the opportunity to present evidence but the
improvident plea of guilt resulted to an undue prejudice to either the
prosecution or the accused, the judgment of conviction shall be set aside and
the case remanded for re-arraignment and for reception of evidence pursuant
to Sec. 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure. 3)
When the accused is convicted of a capital offense solely on the basis of a plea
of guilty, whether improvident or not, without proof beyond reasonable doubt
because the prosecution failed to prove the accused's guilt despite opportunity
to do so, the judgment of conviction shall be set aside and the accused
acquitted (People vs. Pagal, G.R. No. 241257, September 29, 2020).

6. When is bill of particulars available? When the Information, though

sufficiently charges an offense, is insufficient to give the accused sufficient
details of the alleged offenses. It seeks particularization in the information to
enable the accused to properly be informed of the charge against him and
enable to prepare his defense. The particularity must be such that persons of
ordinary intelligence may immediately know what the Information means
(Romualdez v. Sandiganbayan, 479 Phil. 265).

7. Modes of discovery in criminal cases. SECTION 10. Production or

Inspection of Material Evidence in Possession of Prosecution . — Upon
motion of the accused showing good cause and with notice to the parties, the
court, in order to prevent surprise, suppression, or alteration, may order the
prosecution to produce and permit the inspection and copying or
photographing of any written statement given by the complainant and other
witnesses in any investigation of the offense conducted by the prosecution or
other investigating officers, as well as any designated documents, papers,
books, accounts, letters, photographs, objects, or tangible things not otherwise
privileged, which constitute or contain evidence material to any matter
involved in the case and which are in the possession or
under the control of the prosecution, police, or other law investigating
agencies.

51
 8. What are the grounds to suspend the arraignment? (a) The accused
appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead
intelligently thereto. In such case, the court shall order his mental examination
and, if necessary, his confinement for such purpose; (b) There exists a
prejudicial question; and (c) A petition for review of the resolution of the
prosecutor is pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing office. (Section
11, Rule 116).

XXIV. MOTION TO QUASH

1. What are the grounds for motion to quash? a) That the facts charged do not
constitute an offense, (NOT WAIVABLE); b) That the court trying the case
has no jurisdiction over the offense charged, (NOT WAIVABLE); c) That the
court trying the case has no jurisdiction over the person of the accused,
(WAIVABLE); d) That the officer who filed the information had no authority
to do so, (WAIVABLE); e) That it does not conform substantially to the
prescribed form, (WAIVABLE); f) That more than one offense is charged
except when a single punishment for various offenses is prescribed by law
(WAIVABLE); g) That the criminal action or liability has been extinguished,
(NOT WAIVABLE); h) That it contains averments which, if true, would
constitute a legal excuse or justification, (NOT WAIVABLE); and, i) That the
accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his
express consent, (NOT WAIVABLE). (Section 3, Rule 117).

2. Motion to quash is subject to the omnibus motion rule. The failure of the
accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of any
objections.

3. What are the exceptions? Facts do not constitute an offense? 1) Lack of

jurisdiction over the subject matter; 2) Extinction of criminal liability; 3)
Double jeopardy.

4. Will the quashal of information bar to another prosecution? An order

sustaining the motion to quash is not a bar to another prosecution for the same
offense. This means that another complaint or information may be filed.

5. Requisites of Double Jeopardy. A) A valid complaint or

Information; B) Competent court; C) Valid plea entered by him; D)
Acquittal or conviction of the accused, or the dismissal or termination of the
case against him without his express consent. NOTE: There are dismissals
that would be tantamount to acquittal despite the consent of the accused:
1) dismissal due to demurrer; 2) dismissal due to violation of the
constitutional right of the accused to speedy trial.

52
 6. What are the exemptions? Extinction of criminal liability and double
jeopardy.

7. If the defect in the information is curable by amendment, should the

motion to quash be granted? NO. In People v. Andrade, the Court said: If
the defect in the information is curable by amendment, the motion to
quash shall be denied and the prosecution shall be ordered to file an
amended information. Generally, the fact that the allegations in the
information do not constitute an offense, or that the information does not
conform substantially to the prescribed form, are defects curable by
amendment. Corollary to this rule, the court should give the prosecution an
opportunity to amend the information (Lazaro vs. People, G.R. No. 230018,
June 23, 2021).

XXV. PROVISIONAL DISMISSAL

1. SECTION 8. Provisional Dismissal. — A case shall not be provisionally

dismissed except with the express consent of the accused and with notice to
the offended party. The provisional dismissal of offenses punishable by
imprisonment not exceeding six (6) years or a fine of any amount, or both,
shall become permanent one (1) year after issuance of the order without the
case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall
become permanent two (2) years after issuance of the order without the case
having been revived.

3. Under the Section 14 of A.M. No. 12-11-2-SC (Guidelines for

Decongesting Holding Jails by Enforcing the Rights of Accused Persons to
Bail and Speedy Trial), the one or two-year period for reviving as criminal
case that has been provisionally dismissed shall be reckoned from the issuance
of the order of dismissal.

4. A motion to withdraw information was filed by the prosecution. The

accused did not object. After more than two years, the prosecution filed
the same information. Can it still be revived? YES. A motion to withdraw
information is not time-barred and does not fall within the ambit of Sec. 8,
Rule 117 of the Revised Rules on Criminal Procedure (Torres vs. Aguinaldo,
461 SCRA 599).

5. How to discharge a co-accused to become a state witness: The prosecution

shall file a motion; The motion shall be filed before the prosecution rests its
case (Section 17, Rule 119).

6. What should be the action of the Court? The court shall require the
prosecution to present evidence and the sworn statement of each proposed
witness. The Court shall conduct a hearing in support of the discharge
(Section 17, Rule 119).

53
 7. Requisites before the accused may be discharge as a state witness: 1) Two
or more accused are jointly charged with the commission of an offense. 2) The
motion to discharge is filed by the prosecution before it rests its case. 3) The
prosecution is required to present evidence and the sworn statement of each
proposed witness at the hearing of the discharge.

8. Requisites before the accused may be discharge as a state witness: 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
said 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.

9. What is the effect of the discharge of the co-accused? RULE 119,

SECTION 18. Discharge of Accused Operates as Acquittal . — The order
indicated in the preceding section shall amount to an acquittal of the
discharged accused and shall be a bar to future prosecution for the same
offense, unless the accused fails or refuses to testify against his co-accused in
accordance with his sworn statement constituting the basis for his discharge.

10. May the Court motu-propio dismiss the case for lack or insufficiency of
evidence? YES. After the prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on its own initiative after
giving the prosecution the opportunity to be heard (Section 23, Rule 119).

11. Effect of Demurrer. The granting of demurrer to evidence is tantamount to

acquittal. Although the grant of a demurrer to evidence amounts to an acquittal
and that the order of dismissal is not subject to appeal, it may be reviewed thru
certiorari (People vs. Sandiganbayan, August 5, 2015). The order denying
the motion for leave of court to file demurrer to evidence or the demurrer itself
shall
not be reviewable by appeal or by certiorari before judgment (Section 23,
Rule 119).

XXVI. TRIAL & JUDGMENT

1. Conditional Examination of Defense witness. - If the court is satisfied that

the examination of a witness for the accused is necessary, an order shall be
made directing that the witness be examined at a specific date, time and place
and that a copy of the order be served on the prosecutor at least three (3) days
before the scheduled examination. The examination shall be taken before a
judge, or, if not practicable, a member of the Bar in good standing so
54
 designated by the judge in the order, or if the order be made by a court of
superior jurisdiction, before an inferior court to be designated therein. The
examination shall proceed notwithstanding the absence of the prosecutor
provided he was duly notified of the hearing. A written record of the
testimony shall be taken (Section 13, Rule 119).

2. Conditional examination of prosecution witness. - When it satisfactorily

appears that a witness for the prosecution is too sick or infirm to appear at the
trial as directed by the court or has to leave the Philippines with no definite
date of returning, he may forthwith be conditionally examined before the court
where the case is pending. Such examination, in the presence of the accused,
or in his absence after reasonable notice to attend the examination has been
served on him, shall be conducted in the same manner as an examination at the
trial. Failure or refusal of the accused to attend the examination after notice
shall be considered a waiver. The statement taken may be admitted in behalf
of or against the accused (Section 15, Rule 119).

3. May taking of deposition under Rule 23 of the Rules on Civil Procedure

be applied in criminal cases? YES under extra-ordinary situation (People vs.
Sergio, G.R. No. 240053, October 9, 2019).

4. SECTION 1. Judgment; Definition and Form. — Judgment is the

adjudication by the court that the accused is guilty or not guilty of the offense
charged and the imposition on him of the proper penalty and civil liability, if
any. It must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain clearly and
distinctly a statement of the facts and the law upon which it is based.

5. Can civil liability be awarded despite acquittal? Yes. In case the judgment
is of acquittal, it shall state whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the judgment shall determine if the
act or omission from which the civil liability might arise did not exist (Section
2, Rule 120).

6. Variance between the allegation and proof. When there is variance between
the offense charged in the complaint or information and that proved, and the
offense as charged is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included in the offense
proved (Section 4, Rule 120).

7. When is an offense included or includes in another? An offense charged

necessarily includes the offense proved when some of the essential elements
or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form
part of those constituting the latter (Section 5, Rule 120).

55
 8. How is a judgment promulgated? RULE 120, SECTION 6. Promulgation
of Judgment. — The 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 for a light offense, the judgment may be pronounced in the
presence of his counsel or representative. When the judge is absent or outside
the province or city, the judgment may be promulgated by the clerk of court.

9. How is judgment promulgated in case the accused fails to appear? In case

the accused fails to appear at the scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by recording the judgment in
the criminal docket and serving him a copy thereof at his last known address
or thru his counsel (Section 6. Rule 120).

10. If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these rules
against the judgment and the court shall order his arrest. Within fifteen (15)
days from promulgation of judgment, however, the accused may surrender and
file a motion for leave of court to avail of these remedies. He shall state the
reasons for his absence at the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice (Section 6. Rule 120).

XXVII. POST JUDGMENT REMEDY

Appeal From Appeal to Mode of Appeal

First level Courts RTC Notice of Appeal (Rule
40)
RTC (Original CA Notice of Appeal (Rule
Jurisdiction) 41)
RTC (Appellate CA Petition for Review (R.
Jurisdiction) 42)
RTC imposes RP, LI, or CA Notice of Appeal (Rule
lesser penalty 41)
RTC imposes Death CA Automatic Review
CA imposes penalty SC Petition for Review
other than death, RP, LI under Rule 45
CA imposes death SC CA renders judgment,
but refrains from
making an entry of
judgment and certifies
the case and elevates to
SC for Review
CA imposes RP or Life SC Notice of Appeal (Rule
imprisonment 41)

XXVIII. SEARCHES AND SEIZURE

1. Is search warrant a criminal action? It is not. A search warrant is not a

criminal action nor does it represent a commencement of a criminal action. It
is not a proceeding against a person but is solely for the discovery and to get
56
 possession of personal property. Since it is not a criminal action, it can be
prosecuted without the direct control and participation of the public
prosecutor.

2. Where should application for search warrant be filed? Any court within
whose territorial jurisdiction a crime was committed. For compelling reasons
stated in the application, any court within the judicial region where the crime
was committed if the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be enforced. However,
if the criminal action has already been filed, the application shall only be made
in the court where the criminal action is pending. (Section 2, Rule 126).

3. In cases involving heinous crimes, illegal gambling, dangerous drugs and

illegal possession of firearms. EJ and Vice-EJS of RTCs Manila and Quezon
City in application filed by PNP, NBI, PAOC-TF, REACT-TF (A.M. No. 99-
20-09-SC, January 25, 2000). HOWEVER: THIS HAS ALREADY BEEN
AMENDED BY THE RULES ON BODY WORN CAMERA.

4. Requisites for the issuance of search warrant? A search warrant shall not
issue except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized
which may be anywhere in the Philippines (Section 4, Rule 126).

5. Dissection of Section 4. 1) It must be based upon probable cause. 2) Probable

cause must be determined by the judge himself and not by the applicant or any
other person. 3) In the determination of probable cause, the judge must
examine, under oath, the complainant and such witnesses he may produce. 4)
The warrant issued must particularly describe the place to be searched and the
person or things to be seized.

6. How shall examination by the Judge should be conducted? The judge

must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the complainant and the
witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted. (Section
5, Rule 126).

7. Where to file the motion to quash or to suppress evidence? A motion to

quash a search warrant and/or to suppress evidence obtained thereby may be
filed in and acted upon only by the court where the action has been instituted.
If no criminal action has been instituted, the motion may be filed in and
resolved by the court that issued the search warrant. However, if such court
failed to resolve the motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the latter court. (Section 14,
Rule 126).

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 8. Parameters of search incident to a lawful arrest. Valeroso vs. CA, 598
SCRA 41 – the cabinet is situated in the area different from where the accused
was arrested or temporarily detained. The cabinet is not an area within the
immediate reach and control of the accused. Espano vs. CA, 288 SCRA 558
– Accused was arrested outside his house. The subsequent search of his house
after his arrest is invalid.

XXIX. EVIDENCE

1. Rule 128, Sec. 1. Evidence is the means, sanctioned by these rules, of

ascertaining in a judicial proceeding the truth respecting a matter of fact.

2. Scope and Applicability. The rules of evidence shall be the same in all courts
and in all trials and hearings, except as otherwise provided by law or these
rules. (Sec. 2, Rule 128). The rule does not apply to election cases, land
registration and cadastral cases, naturalization and insolvency
proceedings, except by analogy or in a suppletory character and whenever
practicable and convenient (Sec. 4, Rule 1).

3. Is the rule on electronic evidence applicable to criminal cases? Yes. The

SC in People vs. Enojas, March 10, 2014 ruled: As to the admissibility of the
text messages, the RTC admitted them in conformity with the Court's earlier
Resolution applying the Rules on Electronic Evidence to criminal actions
(A.M. No. 01-7-01-SC, Re: Expansion of the Coverage of the Rules on
Electronic Evidence, September 24, 2002, which now covers criminal
cases).

4. Ong Chia vs. Republic, 328 SCRA 749 - The RTC granted the petitioner’s
petition for naturalization. The CA reversed the decision on the ground that
the RTC admitted evidence which were not formally offered in evidence in
violation of Sec. 34, Rule 132 of the Rules of Court. According to SC, the rule
on formal offer of evidence is not applicable to petition for naturalization
unless applied by analogy or in a suppletory character and whenever
practicable and convenient.

5. Factum probandum vs. factum probans. Factum probandum is the fact or

proposition to be established, while factum probans is the fact or material
evidencing the fact or proposition to be established. The factum probandum is
the fact to be proved; it is the fact which is in issue in a case and to which the
evidence is directed. On the other hand, factum probans is the probative or
evidentiary fact tending to prove the fact in issue.

6. Is admissibility of evidence the same as weight of evidence? No. the

admissibility of evidence should not be equated with the weight of the
evidence. The admissibility of evidence depends on its relevance and
competence while the weight of evidence pertains to its tendency to convince
and persuade. A particular item of evidence may be admissible, but its
evidentiary weight depends on judicial evaluation with the guidelines provided
by the rules on evidence (Tating vs.
Marcella, 519 SCRA 79).
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7. Fundamental requisites for the admissibility of evidence - Evidence is
admissible when it is relevant to the issue and is not excluded by the
Constitution, the law of these rules (Section 3, Rule 128).

8. Does the Constitution provide for a rule of evidence? Section 3, in relation

to Section 2 of Article III of the Constitution and Section 12(3) in relation to
Section 17 of Article III. Thus, the new Rule deemed it to include the
Constitution in Section 3, because it also provides for rules for excluding
evidence in the court of justice.

9. What is circumstantial evidence? It is that evidence which indirectly proves

a fact in issue through an inference which the fact finder draws from the
evidence established.

10. Can there be conviction by circumstantial evidence? Yes, provided the

following requisites are present: first, there is more than one circumstance;
second, the facts from which the inferences are derived are proved; and third,
the combination of all the circumstances is such as to produce conviction
beyond reasonable doubt (People vs. Cadenas, G.R. No. 233199, November
5, 2018).

11. What is burden proof? Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish his or her claim or defense
by the amount of evidence required by law. Burden of proof never shifts
(Section 1, Rule 131). For instance, it is always the burden of the prosecution
in criminal case to prove the accused beyond reasonable doubt. In civil case,
he or she who asserts an affirmative fact has the burden of proof to establish
his or her allegations (Lavadia vs. Heirs of Luna, G.R. No. 171914, July 23,
2014).

12. What is burden of evidence? Burden of evidence is the duty of a party to

present evidence sufficient to establish or rebut a fact in issue to establish a
prima facie case. Burden of evidence may shift from one party to the other in
the course of the proceedings, depending on the exigencies of the case
(Section 1, Rule 131). If the accused admits the killing, the burden of
evidence is shifted to the accused to prove his defenses (Flores vs. People,
February 27, 2013).

13. If the administrative case filed against the petitioner is dismissed, should
the criminal case arising from the same facts be dismissed likewise? YES.
If the criminal case will be prosecuted based on the same facts and evidence as
that in the administrative case, and the court trying the latter already squarely
ruled on the absence of facts and/or circumstances sufficient to negate the
basis of the criminal indictment, then to still burden the accused to present
controverting evidence despite the failure of the prosecution to present
sufficient and competent evidence, will be a futile and useless exercise
(Pahkiat, et.al. vs. Ombudsman, G.R. No. 223972, November 3, 2020).

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14. What is the effect of presumption? A party in whose favor the legal
presumption exists may rely on and invoke such legal presumption to establish
a fact in issue. One need not introduced evidence to prove the fact for a
presumption is prima facie proof of the fact presumed (Diesel Construction
vs. UPSI Property, 549 SCRA 12).

15. What is the effect of disputable presumption? The effect of a presumption

upon a burden of proof is to create the need of presenting evidence to
overcome the prima facie case created by the presumption. If no contrary
proof is offered, the presumption will prevail (Diaz vs. People, GR No.
2018113, December 2, 2013).

16. What is the hierarchy of proof? The following are the hierarchy of proofs:
1) substantial evidence, 2) preponderance of evidence, 3) clear and convincing
evidence, and 4) proof beyond reasonable doubt.

17. What are the situations where the quantum of proof of clear and
convincing evidence is required? 1. To prove justifying circumstance
(People vs. Abina, GR No. 220146, April 18, 2018).
2. To prove bad faith and fraud (Aliling v. Feliciano, G.R. No. 185829, April
25, 2012, 671 SCRA 186, 217). 3. To pierce the veil of corporate fiction
(Manila Hotel vs. NLRC, G.R. No. 120077, October 10, 2000). 4. For the
successful invocation of the defense of alibi (People vs. Bation, GR No.
123160, March 24, 1999). 5. To prove jurisdictional requirements in the
reconstitution of a destroyed or lost title (De La Paz vs. Republic, GR No.
195726, November 20, 2017). 6. In proving consented search (Villanueva vs.
People, November 17, 2014). 7. In granting bail in extradition proceedings
(Government of Hongkong vs. Munoz, GR No. 207342, August 17, 2016).

18. 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).

19. Can the Court take mandatory judicial notice of ordinance passed by a
local government unit? NO. While courts are required to take judicial notice
of the laws enacted by Congress, the rule with respect to local ordinances is
different. Ordinances are not included in the enumeration of matters covered
by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court
(Social Justice Society vs. Atienza, G.R. No. 156052, Feb. 13 2008).

20. Judicial Notice, Discretionary. A court may take judicial notice of matters
which are of 1) public knowledge, or 2) are capable of unquestionable
demonstration, or 3) ought to be known to judges because of their judicial
functions. (Sec. 2, Rule 129).

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21. There are two (2) civil cases pending between the same parties. One is being
heard by Branch 92. The other one is being heard by Branch 93. Can Branch
92 take judicial notice of the case pending in Branch 93? ANSWER: A
court will take judicial notice of its own acts and records in the same case
(Republic vs. CA, 277 SCRA 633).

22. Suppose the two cases are pending in the same branch, which is Branch
92, can the Judge take judicial notice of the other case between the same
parties? ANSWER: Courts are not authorized to take judicial notice of the
contents of the records of other cases, even such cases have been tried or
pending in the same court (LBP vs. Yatco Agricultural Enerprises, Jan. 15,
2014).

23. How can the judge take judicial notice of the case pending in the same
Court? When in the absence of any objection and with the knowledge of the
opposing party, the contents of said other case are clearly referred to by title
and number in a pending action and adopted and read into the records of the
other case; When they are requested to form part of the record of the other
case (Tabuena vs. CA, 196 SCRA 650).

24. Judicial admission. Sec. 4, Rules 129. An admission, oral or written, made by
the party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that the imputed admission was not, in fact,
made.

25. Admission during pre-trial in criminal case does not result to judicial
admission if it does not comply with Section 2, Rule 118. Section 2, Rule
118, Pre-trial agreement. - All agreements or admissions made or entered
during the pre-trial conference shall be reduced in writing and signed by the
accused and counsel, otherwise, they cannot be used against the accused. The
agreements covering the matters referred to in Section 1 of this Rule shall be
approved by the court.

26. How about the stipulations of facts during trial? It is not required that it be
signed the lawyer and the accused. The stipulation of acts is already contained
in the TSN. The lawyer is presumed to have prima facie authority to make
relevant admission by pleadings, by oral or written stipulation which unless
withdrawn are conclusive. (People vs. Hernandez, 206 SCRA 25; Silot vs.
Dela Rosa, 543 SCRA 533).

27. How about admission in an amended pleading? Section 8, Rule 10,

provides that when a pleading is amended, the amended pleading supersedes
the pleading that it amends and the admission in the superseded pleading may
be received in evidence against the pleader. But the admission will be treated
as extra-judicial admission (Torres vs. CA, 131 SCRA 24; Ching vs. CA,
331 SCRA 16).

28. How about admission in a dismissed pleading? It is merely extrajudicial

judicial admission (Servicewide Specialist Inc., vs. CA, 257 SCRA 643).
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29. How about admission of a proposed state witness? If the motion to
discharge an accused as a state witness is denied, his sworn statement,
submitted to support the motion, shall be inadmissible in evidence (Sec. 17,
Rule 119).

30. What is the effect of judicial admission? Judicial admissions are legally
binding on the party making the admission. It is an established principle that
judicial admission cannot be contradicted by the admitter who is the party
himself and binds the person who makes the same, absent any showing that
this was made through palpable mistake, no amount of rationalization can
offset it (PCIC vs. Central Colleges of the Phil. 666 SCRA 540).

31. What is object evidence? Objects as 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 (Section 1, Rule 130).

32. May right against self-incrimination be invoked against object evidence?

NO. The right may only be invoked against testimonial compulsion. The
kernel of the right is not against all compulsion, but against testimonial
compulsion. The right against self-incrimination is
simply against the legal process of extracting from the lips of the accused an
admission of guilt. It does not apply where the evidence sought to be excluded
is not an incrimination but as part of object evidence (Augustin vs. CA, G.R.
No. 162571, June 15, 2005).

33. Links in the Chain of Custody. First, the seizure and marking of the
confiscated drugs recovered from the accused; Second, the turnover of the
illegal drug seized by the apprehending officer to the investigating officer;
Third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; Fourth, the turnover and
submission of the marked illegal drug by the forensic chemist to the court
(People vs. Kamad, 610 SCRA 295).

34. Documentary evidence - Section 2, Rule 130. Documents as evidence

consist 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.
NOTE: even recordings, sounds, and photographs are classified as
documentary if they are offered as proofs of their contents. REMEMBER
THIS: what makes evidence documentary if the purpose for which it is
offered. If the purpose of the offer is to prove its contents, then it is
documentary evidence.

35. Original Document Rule. When the subject of inquiry is the contents of a
document, writing, recording, photograph or other record, no evidence is
admissible other than the original document itself, (Section 3, Rule 130).
PLEASE REMEMBER: Original document rule is applicable only in
documentary evidence. It does not apply to object evidence.
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36. What is an 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 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” (Section 4(a), Rule 130).

37. What is a 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 (Section 4(b), Rule 130).

38. What is the evidentiary value of a duplicate? A duplicate is admissible to

the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original, or (2) in the circumstances, it is unjust or
inequitable to admit the duplicate in lieu of the original (Section 4(c), Rule
130).

39. Exceptions to original document rule. (a) When the original is lost or
destroyed, or cannot be produced in court, without bad faith on the part of the
offeror; (b)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; (c) When the original consists of numerous accounts
or other documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the general result
of the whole; (d) When the original is a public record in the custody of a
public officer or is recorded in a public office; and (e) When the original is not
closely related to a controlling issue.

40. Parol evidence. - When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon and there can
be, as between the parties and their successors in interest, no evidence of such
terms other than the contents of the written agreement (Sec. 10, Rule 130).

41. Instances where a party may modify, explain or add to the terms of
written agreement. (a) An intrinsic ambiguity, mistake or imperfection in the
written agreement; (b) The failure of the written agreement to express the true
intent and agreement of the parties thereto; (c) The validity of the written
agreement; or (d) The existence of other terms agreed to by the parties or
their successors in interest after the execution of the written agreement.
PLEASE TAKE NOTE: Before a party may be allowed to introduce parol
evidence, he or she must put the foregoing issues in a verified pleading
(Section 10, Rule 130).

42. Who is qualified to become a witness? All persons who can perceive, and
perceiving, can make known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction
63
 of a crime, unless otherwise provided by law, shall not be a ground for
disqualification (Section 21, Rule 130).

43. What may be testified to? A witness can testify only to those facts which he
or she knows of his or her personal knowledge; that is, which are derived from
his or her own perception (Section 22, Rule 130).

44. Disqualification by Marriage. During their marriage, the husband or the wife
cannot testify against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter’s direct descendants or
ascendants (Section 23, Rule 130).

45. Before the marriage of H and W, W witnessed H killing Y. W did not report
the incident to the police. Later, H and W got married. They had falling out.
Consequently, W reported the incident she witnessed when they were still
sweethearts. May the prosecution present W as a witness in a murder case
filed against H? ANSWER: Over the objection of H, the prosecution may not
call W to testify against H. To call W to testify against H while their marriage
is still would violate the marital disqualification rule.

46. Supposed W was called to testify after their marriage had been annulled,
would your answer be the same? My answer would not be the same. Since
the marriage is not anymore existing, the marital disqualification rule would
not apply.

47. May a spouse testify in a trial where the other spouse is a coaccused? Yes,
except as against her husband (People vs. Quitado, 297 SCRA 1).

48. May a spouse testify in a trial against her estranged husband? Yes.
(Alvarez vs. Ramirez, 473 SCRA 72.).

49. Marital privilege communication rule - The husband or the wife, during or
after the marriage, cannot be examined without the consent of the other as to
any communication received in confidence by one from the other during the
marriage except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter’s direct
descendants or ascendants (Section 24(a), Rule 130).

50. Elements of marital privilege communication rule - 1) There must be a

valid marriage between the husband and wife. 2) There is a communication
received in confidence by one from the other. 3) The confidential information
was received during marriage.

51. When is information considered confidential? The general rule is that

communications between spouses is presumed confidential unless shown
otherwise. Communications made in the presence of third person are not
confidential unless the third person may be considered as agent of the spouses.

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52. Who are covered by the lawyer-client privilege? 1) Attorney; 2) or person
reasonably believed by the client to be licensed to engage in the practice of
law; 3) secretary; 4) stenographer; 5) clerk; and 6) other persons assisting the
attorney (Sec. 24(b), Rule 130).

53. Is it necessary that there should be lawyer-client relationship before the

rule may be applied? NO. The “rules” provides that “communications or
advice given with the view to professional employment.

54. Exceptions to lawyer-client privilege – (i) Furtherance of crime or fraud. If

the services or advice of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew or reasonably
should have known to be a crime or fraud; (ii) Claimants through same
deceased client. As to a communication relevant to an issue between parties
who claim through the same deceased client, regardless of whether the claims
are by testate or intestate or by inter vivos transaction; (iii) Breach of duty by
lawyer or client. As to a communication relevant to an issue of breach of duty
by the lawyer to his or her client, or by the client to his or her lawyer; (iv)
Document attested by the lawyer. As to a communication relevant to an issue
concerning an attested document to which the lawyer is an attesting witness;
or (v) Joint clients. As to a communication relevant to a matter of common
interest between two or more clients if the communication was made by any of
them to a lawyer retained or consulted in common, when offered in an action
between any of the clients, unless they have expressly agreed otherwise
(Section 24(b), Rule 130).

55. Is psychologist covered by doctor-patient privilege? YES.

Psychologist is included in the term psychotherapist.

56. Confessional box privilege. 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 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.
(Section 24(d), Rule 130).

57. Offer of compromise in civil cases – An offer of compromise is not an

admission of any liability, and is not admissible in evidence against the
offeror. Neither is evidence of conduct nor statements made in compromise
negotiations admissible, except evidence otherwise discoverable or offered for
another purpose, such as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution (Section 28, Rule 130).

58. Officer of compromise in criminal cases – Except in criminal negligence, an

offer of compromise, by the accused may be received in evidence as an
implied admission of guilt. HOWEVER, an offer to pay, or the payment of
medical, hospital or other expenses occasioned by an injury, is not admissible
in evidence as proof of civil or criminal liability for the injury. (Section 28,
Rule 130).
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59. Two branches of res inter alios acta. First Branch - The rights of a party
cannot be prejudiced by an act, declaration or omission of another (Sec. 28,
Rule 130). Second Branch - The evidence of previous conduct or similar acts
at one time is not admissible to prove
that one did or did not do the same at another time (Sec. 34, Rule 130).

60. Example of first branch – If Roberto makes a statement before the media
admitting his participation in the murder of Carla, his statement is admissible
against him under Section 26, Rule 130. If he made a statement implicating
Lito and Carlos is not admissible against Lito and Carlos applying the
principle of res inter alios acta.

61. Is this applicable to judicial admission? No. because res inter alios acta is
applicable only to extra-judicial admission but it does not cover judicial
admission because of the other accused has the opportunity to cross-examine.
(Yapyuco vs. Sandiganbayan, 674 SCRA 420).

62. Exception to res inter alios acta: Section 30. Admission by copartner or
agent. — The act or declaration of a partner or agent authorized by the
party to make a statement concerning the subject, or within the scope of
his or her authority, and during the existence of the partnership or agency,
may be given in evidence against such party after the partnership or agency is
shown by evidence other than such act or declaration. The same rule applies to
the act or declaration of a joint owner, joint debtor, or other person jointly
interested with the party. (Rule 130).

63. Exception to res inter alios acta: Section 31. Admission by conspirator. –
The act or declaration of a conspirator in furtherance of the conspiracy and
during its existence may be given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than such act of declaration. (Rule
130).

64. Exception to res inter alios acta: Section 32. Admission by privies. –
Where one derives title to property from another, the latter's act, declaration,
or omission, in relation to the property, is evidence against the former if done
while the latter was holding the title. (Rule 130).

65. Exception to res inter alios acta: Section 33. Admission by silence. –An
act or declaration made in the presence and within the hearing or observation
of a party who does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when proper and
possible for him or her to do so, may be given in evidence against him or her.
(Rule 130).

66. Similar conduct rule: Similar acts as evidence. – Evidence that one did or
did not do a certain thing at one time is not admissible to prove that he or she
did or did not do the same or a similar thing at another time; but it may be
66
 received to prove a specific intent or knowledge, identity, plan, system,
scheme, habit, custom or usage, and the like. (Section 34, Rule 130).

67. Hearsay rule: Section 37. Hearsay. – Hearsay is 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. Hearsay evidence is inadmissible except as otherwise provided
in these Rule (Rule 130). NOTE: There are two personalities in hearsay:
the declarant and the witness. The witness will testify on the declaration
of the declarant and the purpose of the testimony of the witness is to
prove the truth of the matters asserted in the declaration. That would
make the testimony of the witness hearsay.

68. Elements of hearsay. 1) There must be an out of court statement which was
not made by the declarant in the hearing or trial; 2) The statement is offered by
the witness in court to prove the truth of the matters asserted by the statement

69. Exception to hearsay. RULE 130, Section 38. Dying declaration. The
declaration of a dying person, made under the consciousness of an impending
death, may be received in any case wherein his or her death is the subject of
inquiry, as evidence of the cause and surrounding circumstances of such death.

70. PLEASE TAKE NOTE: For a "dying declaration" to be admissible in court,

the following requisites must concur: a. That the declaration must concern the
cause and surrounding circumstances of the declarant's death; b. That at the
time the declaration was made, the declarant was under a consciousness of an
impending death; c. That the declarant is competent as a witness; and d. That
the declaration is offered in a criminal case for homicide, murder, or
parricide, in which the declarant is the victim. (People vs. Mercado, G.R.
No. 218702, October 17, 2018).

71. Exception to hearsay. RULE 130, Section 39. Statement of decedent or

person of unsound mind. – In an action against an executor or administrator
or other representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased person or
against such person of unsound mind, where a party or assignor of a party or a
person in whose behalf a case is prosecuted testifies on a matter of fact
occurring before the death of the deceased person or before the person became
of unsound mind, any statement of the deceased or the person of unsound
mind, may be received in evidence if the statement was made upon the
personal knowledge of the deceased or the person of unsound mind at a time
when the matter had been recently perceived by him or her and while his or
her recollection was clear. Such statement, however, is inadmissible if made
under the circumstances indicating its lack of trustworthiness. NOTE: there is
no more Dead Man Statute because those who are prohibited to testify
under the dead man statute are now allowed to testify as exceptions to the
hearsay rule.

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72. Exception to hearsay. RULE 130, Section 40. – Declaration against
interest. - The declaration made by a person deceased or unable to testify
against the interest of the declarant, if the fact asserted in the declaration was
at the time it was made so far contrary to the declarant's own interest that a
reasonable person in his or her position would not have made the declaration
unless he or she believed it to be true, may be received in evidence against
himself or herself or his or her successors in interest and against third
persons. A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.

73. Exception to hearsay. RULE 130, Section 41. – Act or declaration about
pedigree. – The act or declaration of a person deceased or unable to testify, in
respect to the pedigree of another person related to him or her by birth,
adoption, or marriage or, in the absence thereof, with whose family he or
she was so intimately associated as to be likely to have accurate
information concerning his or her pedigree, may be received in evidence
where it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with
pedigree.

74. Exception to hearsay. RULE 130, Section 42. – Family reputation or

tradition regarding pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying thereon be also
a member of the family, either by consanguinity, affinity, or adoption. Entries
in family bibles or other family books or charts, engraving on rings, family
portraits and the like, may be received as evidence of pedigree.

75. Exception to hearsay. RULE 130, Section 43. – Common reputation. –

Common reputation existing previous to the controversy, as to boundaries of
or customs affecting lands in the community and reputation as to events
of general history important to the community, or respecting marriage or
moral character, may be given in evidence. Monuments and inscriptions in
public places may be received as evidence of common reputation.

76. Exception to hearsay. RULE 130, Section 44. – Common

reputation. Part of the res gestae. – Statements made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto,
under the stress of excitement caused by the occurrence with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.

77. PLEASE TAKE NOTE: The following requisites must, thus, be satisfied for
the exception on res gestae to apply: (i) that the principal act, the res gestae, be
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 a startling occurrence; (ii) that the statements were made before the declarant
had the time to contrive or devise a falsehood; and (iii) that the statements
must concern the occurrence in question and its immediate attending
circumstances. In determining the admissibility of evidence as part of the res
gestae, the test is whether the act or declaration was made as a spontaneous
reaction and is so intimately interwoven or connected with the principal fact or
event that it characterizes as to be regarded as a part of the transaction itself
and whether it negates any premeditation or purpose to manufacture testimony
(People vs. XXX, G.R. No. 205888, August 22, 2018).

78. Exception to hearsay. RULE 130, Section 45. – Records of regularly

conducted business activity. – A memorandum, report, record or data
compilation of acts, events, conditions, opinions, or diagnoses, made by
writing, typing, 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 to 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 on hearsay evidence.

79. Exception to hearsay. RULE 130, Section 46. – Entries in official

records. – Entries in official records made in the performance of his or her
duty by a public officer of the Philippines, or by a person in the performance
of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.

80. Exception to hearsay. RULE 130, Section 47. – Commercial lists and the
like. – Evidence of statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other published
compilation is admissible as tending to prove the truth of any relevant matter
so stated if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein.

81. Exception to hearsay. RULE 130, Section 48. – Learned treatises. – A

published treatise, periodical or pamphlet on a subject of history, law, science,
or art is admissible as tending to prove the truth of a matter stated therein if
the court takes judicial notice, or a witness expert in the subject testifies, that
the writer of the statement in the treatise, periodical or pamphlet is recognized
in his or her profession or calling as expert in the subject.

82. Exception to hearsay. RULE 130, Section 49. – Testimony or deposition

at a former proceeding. –The testimony or deposition of a witness deceased
or out of the Philippines or who cannot, with due diligence, be found
therein, or is unavailable or otherwise unable to testify, given in a former
case or proceeding, judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the adverse party who had
the opportunity to cross-examine him or her.

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 83. Exception to hearsay. RULE 130, Section 49. – 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. However, a
statement may not be admitted 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.

84. When may electronic document, like computer generated statement of

accounts admissible in evidence? For the Court to consider an electronic
document as evidence, it must pass the test of admissibility. According to
Section 2, Rule 3 of the Rules on Electronic Evidence, “[a]n electronic
document is admissible in evidence if it complies with the rules on
admissibility prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.” It must be
authenticated by affidavit of evidence. Even the section on “Business Records
as Exception to the Hearsay Rule” of Rule 8 of the Rules on Electronic
Evidence requires authentication by the custodian or other qualified witness.
In the absence of such authentication through the affidavit of the custodian or
other qualified person, the said annexes or attachments cannot be admitted and
appreciated as business records and excepted from the rule on hearsay
evidence (RCBC vs. Oracion, G.R. No. 22337, June 19, 2019).

XXX. SPECIAL PROCEEDINGS

1. What is special proceedings? A special proceeding is a remedy by which a

party seeks to establish a status, a right, or a particular fact (Sec. 3[b], Rule 1,
RC).

2. Are the rules in ordinary civil action applicable in special proceedings?

Yes, but only in the absence of applicable procedure (Section 2, Rule 72).

3. Is earnest effort to compromise applicable in special proceedings? NO.

Since special proceeding is not a suit or ordinary action whereby a party sues
another for the enforcement of a right or prevention of a wrong, the
requirement that no suit shall be filed between the same members of the same
family unless it should appear that earnest efforts toward a compromise have
been made, but the same have failed, does not apply to a special proceeding
(Vda de Manalo vs. CA, GR No. 129242, Janaury 16, 2001).

4. Is certification against forum shopping required in special proceedings?

YES. Special provisions under Part II of the Rules of Court govern special
proceedings; but in the absence of special provisions, the rules provided for in
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 Part I of the Rules governing ordinary civil actions shall be applicable to
special proceedings, as far as practicable. This means that in the absence of
special provisions, rules in ordinary actions may be applied in special
proceedings as much as possible and where doing so would not pose an
obstacle to said proceedings which includes the requirement of certification of
non-forum shopping for complaints and initiatory pleadings (Sheker vs.
Estate of Alice Sheker, GR No. 157912, December 13, 2007).

5. What is the extent of the jurisdiction of the probate court? A probate court
acting as such exercises limited jurisdiction. The said court is primarily
concerned with the administration, liquidation, and distribution of the estate.
In fact, the main function of a probate court is to settle and liquidate the estate
of the deceased either summarily or through the process of administration (Uy
vs. CA, March 15, 2006). Thus, it has the authority to: 1) determine heirs; 2)
make a just and legal distribution of the estate (Solivio vs. CA, February 12,
1990).

6. May a compulsory heir commence an ordinary civil action to declare the

nullity of a deed or instrument, and for recovery of property, or any other
action in the enforcement of their ownership rights acquired by virtue of
succession without the necessity of a prior and separate judicial
declaration of their status as such? YES. Unless there is a pending special
proceeding for the settlement of the decedent's estate or for the determination
of heirship, the compulsory or intestate heirs may commence an ordinary
civil action to declare the nullity of a deed or instrument, and for recovery
of property, or any other action in the enforcement of their ownership
rights acquired by virtue of succession, without the necessity of a prior
and separate judicial declaration of their status as such. The ruling of the
trial court shall only be in relation to the cause of action of the ordinary civil
action, i.e., the nullification of a deed or instrument, and recovery or
reconveyance of property, which ruling is binding only between and among
the parties (Treyes vs. Larlar, G.R. No. 232579, September
8, 2020). NOTE: Treyes vs. Larlar reversed the ruling of the Court Heirs of
Magdaleno Ypon vs. Ricaforte (2013).

7. May the probate court pass upon title to properties claimed to be part of
the estate of the deceased? NO. Because the jurisdiction of the probate court
is limited (Paciones, Jr., vs. Chuato-Ching, August 9, 2005). HOWEVER,
however if the purpose is only to determine whether such property should be
included in the inventory, then probate court can pass title on the property but
the determination of ownership is not conclusive but only provisional (Vda de
Rodriguez vs. CA, July 20, 1979).

8. May the probate court pass upon the title of the property with finality? IT
MAY. The probate court may pass upon the issue of ownership where the
interested parties are the heirs who have all appeared in the proceeding and the
rights of third parties are not impaired (Munsayac-De Villa vs. CA, October
24, 2003).

9. What is statute of non-claims? It is a period fixed for the filing of claims

against the estate, such that claims not filed within said period are barred
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 forever. It is subject to the following guidelines: A. Period fixed must not be
less than 6 months nor more than 12 months from the date of the first
publication; B. Such period is mandatory; C. The statute on non-claims
supersedes the statute of limitation (Section 2, Rule 86). PLEASE TAKE
NOTE: There are two exceptions to the statute of non-claims: First, the
creditor may apply with the court for a new period not exceeding one month
before the entry of order of distribution for good cause shown (Sec. 2, Rule
86). Second, creditor can set up his claim as a counterclaim in an action filed
by the executor or administrator (Sec. 5, Rule 86).

10. What are the claims that must be filed in the settlement of estate of the
deceased? Section 5. Claims which must be filed under the notice. If not filed,
barred; exceptions. — All claims for money against the decedent, arising from
contract, express or implied, whether the same be due, not due, or contingent,
all claims for funeral expenses and expense for the last sickness of the
decedent, and judgment for money against the decedent, must be filed within
the time limited in the notice; otherwise they are barred forever, except that
they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants.

11. 3 remedies available to enforce mortgage against the decedent:

a) To waive the mortgage and claim the entire debt from the estate of the
mortgagor; b) To foreclose the mortgage judicially and prove the deficiency
as an ordinary claim against the estate; c) To rely on the mortgage exclusively,
or other security and foreclose the same at anytime. Here no claim for
deficiency is allowed (Section 7, Rule 86; Heirs of Maglasang vs.
Metrobank, September 23, 2013).

12. To whom shall the remedy of amparo available? Available to any person
whose right to life, liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or employee, or of a private
individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof (Section 1, Rule on Amparo). NOTE: Writ
of amparo is not the proper remedy if there is no government
participation.

13. Ramon Tulfo and Raymark engaged in a brawl. As a result, the Tulfo
brothers aired on their TV Program comments and expletives threatening
retaliation against Spouses Santiago. Consequently, Spouses Santiago
filed a Petition for Writ of Amparo against the Tulfos. The latter filed a
Motion to Dismiss. Spouses Santiago opposed the motion on the ground
that it is a prohibited pleading. Should the motion to dismiss be granted?
YES. The Supreme Court ruled that there is no showing in the Petition that
there is extra-judicial killing or enforced disappearance the way they are
understood under the Rules on Writ of Amparo. Simply put, there is not
showing in the Petition that there is government involvement or participation.
The SC said: “Their petition is merely anchored on a broad invocation of
respondents' purported violation of their right to life and security, carried out
by private individuals without any showing of direct or indirect government
participation. Thus, it is apparent that their amparo petition falls outside the

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 purview of A.M. No. 07-9-12-SC and, perforce, must fail (Spouses Santiago
vs. Tulfo, G.R. No. 205039, October 21, 2015).

14. What is writ of habeas data? The writ of habeas data is a remedy available
to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or
of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence
of the aggrieved party (Section 1, Rule on Habeas Data).

15. Ilagan and Lee were live-in-partners. Lee was able to obtain the digital
camera of Ilagan. Lee found a sex video in it. Lee confronted Ilagan about
it but the latter demanded for the return of his digital camera. Lee
refused. Consequently, Ilagan banged Lee’s head against the wall. Lee
filed a criminal case for violation of RA 9262. Still, Ilagan is demanding
for the return of the digital camera. Lee refused. Ilagan filed a petition for
habeas data against Lee to compel Lee to produce the camera, as well as
the negative and reproductions thereof. Will the petition prosper? NO. As
defined in Section 1 of the Habeas Data Rule, the writ of habeas data now
stands as "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. Thus, in order to
support a petition for the issuance of such writ, Section 6 of the Habeas Data
Rule essentially requires that the petition sufficiently alleges, among others,
"[t]he manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party." In other words, the
petition must adequately show that there exists a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other
(Lee vs. Ilagan, October 8, 2014).

16. Rule 103, Rule 108, RA 9048 as amended by RA 10172, discussed:

A) 1. A person seeking 1) to change his or her first name, 2) to correct

clerical or typographical errors in the civil register, 3) to change/correct the
day and/or month of his or her date of birth, and/or 4) to change/correct his or
her sex, where it is patently clear that there was a clerical or typographical
error or mistake, must first file a verified petition with the local civil
registry office of the city or municipality where the record being sought to
be corrected or changed is kept, in accordance with the administrative
proceeding provided under R.A. 9048 30 in relation to R.A. 10172. A
person may only avail of the appropriate judicial remedies under Rule 103 or
Rule 108 in the aforementioned entries after the petition in the administrative
proceedings is filed and later denied (Bartolome vs. Republic, G.R. No.
243288, August 28, 2019).

B) A person seeking 1) to change his or her surname or 2) to change both

his or her first name and surname may file a petition for change of name under

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 Rule 103, provided that the jurisprudential grounds discussed in Republic v.
Hernandez are present.

C). A person seeking substantial cancellations or corrections of entries in the

civil registry may file a petition for cancellation or correction of entries under
Rule 108. As discussed in Lee v. Court of Appeals and more recently, in
Republic v. Cagandahan, R.A. 9048 "removed from the ambit of Rule 108 of
the Rules of Court the correction of such errors. Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.”
(Bartolome vs. Republic, G.R. No. 243288, August 28, 2019).

17. What is sought to be corrected are both clerical errors and substantial
errors; it is required to file to petitions, one in civil registrar and the other
one in court under Rule 108? NO NEED. It will be more prudent and
judicious for Annabelle, and other persons similarly situated, to allow the
filing of a single petition under Rule 108, rather than two separate petitions
before the RTC and the local civil registrar. This will avoid multiplicity of
suits and further litigation between the parties, which is offensive to the
orderly administration of justice. In any case, RA No. 9048, as amended, did
not divest the trial courts of jurisdiction over petitions for correction of clerical
or typographical errors in a birth certificate. To be sure, the local civil
registrars' administrative authority to change or correct similar errors
is only primary but not exclusive. The regular courts maintain the authority to
make judicial corrections of entries in the civil registry (Republic vs. Ontuca,
G.R. No. 232053, July 15, 2020).

18. Writ of Kalikasan. – The writ is a remedy available to a natural or juridical

person, entity authorized by law, people's organization, nongovernmental
organization, or any public interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by an
unlawful act or omission of a public official or employee, or private individual
or entity, involving environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or provinces
(Section 1, Rule 7, Rules of Procedure in Environmental Cases).

19. Where to file? The petition shall be filed with the Supreme Court or with any
of the stations of the Court of Appeals (Section 3, Rule).

20. Writ of continuing mandamus. – When any agency or instrumentality of the

government or officer thereof unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation of an environmental
law rule or regulation or a right therein, or unlawfully excludes another from
the use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment
be rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by
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 reason of the malicious neglect to perform the duties of the respondent, under
the law, rules or regulations. The petition shall also contain a sworn
certification of non-forum shopping (Section 1, Rule 8, id).

21. SLAPP SUIT. The allegation of SLAPP is set up as a defense in those cases
claimed to have been filed merely as a harassment suit against environmental
actions. The Court finds no occasion to apply the rules on SLAPP as the
Petition has no relation at all to “the enforcement of environmental laws,
protection of the environment or assertion of environmental rights.” R.A.
No. 9262, which involves cases of violence against women and their children,
is not among those laws included under the scope of SLAPP (Mercado vs.
Lopena, G.R. No. 230170, June 6, 2018).

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