Memory Aid - Remedial

SAN BEDA COLLEGE OF LAW, 2000 2001
MEMORY AID in REMEDIAL LAW

Any form of reproduction of this copy is strictly prohibited!!!
CIVIL PROCEDURE
INTRODUCTION
WHEN NEW RULES TOOK EFFECT. Rule 144.
These rules shall take effect on January
1, 1964.
However, the amended rules on civil
procedure took effect on July 1, 1997.
The Supreme Court has the inherent power to
suspend or to exempt a particular case from the
operation of said rules whenever the interest of
justice so requires. (Republic vs. CA, 107 SCRA
504)
SUBSTANTIVE LAW
creates, defines and
regulates rights
makes vested rights
possible
prospective application
cannot be made by
the Supreme Court
JURISDICTION
the authority to hear
and determine a case
matter of substantive
law
fixed by law and
cannot be conferred by
the parties
cannot be waived
except jurisdiction over
the person
establishes a relation
between the court and
the subject matter
limitation on the
plaintiff
deals w/ substance
REMEDIAL LAW
provides for the
manner in which said
right may be enforced,
protected or redressed
no vested rights
retroactive: governs
acts and transactions
which took place
SC is expressly
empowered to
promulgate procedural
rules
VENUE
the place or
geographic location
where the case is to be
heard or tried / deals
with locality
matter of procedural
law
may be conferred or
agreed upon by the
parties
waivable
establishes a relation
between the plaintiff
and the defendant
limitation on the court
deals w/ convenience
REQUISITES FOR VALID EXERCISE OF

JURISDICTION.
1) That it must have jurisdiction over the
persons of the parties.
a. Jurisdiction over the person of the
plaintiff is acquired the moment he files
his complaint.
b. Jurisdiction over the person of the
defendant is acquired by his voluntary
appearance in court or by the coercive
power of legal process exercised over
the person usually on summons.
2) That it must have jurisdiction over the subject

matter of the controversy.
a. Jurisdiction over the subject matter is
determined by the allegations made in the
complaint.
b. Lack of jurisdiction over the subject matter
of an action cannot be waived by the
parties and is subject to objection at any
stage of the proceeding, the court being
authorized to dismiss the case motu
proprio.
(exception:
Tijam
vs.
Sibonghanoy).
3) That it must have jurisdiction over the issue of
the case or over the thing or property.
NOTE: The increase in the jurisdictional
amounts from P100T - P200T to P200-P400T
under RA 7691 interests, costs and damages of
whatever kind are not included in the
determination of jurisdiction except when the
main action or one of the causes of action is
purely for damages, the amount of such claim
shall be considered in determining the
jurisdiction of the court ( Circular 09-94).
SEC jurisdiction over cases falling under PD
902-A, Sec. 5 was expressly transferred to the
RTC by the Securities Regulation Code.
Actions involving marriage and marital relations
are now with the Family Court under RA 8364.
Jurisdiction of Sandiganbayan under RA 8249
depends on the nature of the position and nature
of the offense, but not on the penalty. (Salary
Grade 27 up)
Expanded jurisdiction of the Court of Appeals
under RA7902 includes appeal from all quasijudicial bodies, including final resolutions of the
Civil Service Commission (Revised Admin.
Circular 1-95) and the NLRC ( St. Martin Funeral
Homes vs. NLRC)
DOCTRINE OF JUDICIAL STABILITY- no court
has the authority to interfere by injunction with
the judgment of another court of coordinate
jurisdiction or to pass upon or scrutinize and
much less declare as unjust a judgment of
another court (Industrial Enterprises Inc. vs. CA
184 SCRA 426)
RULE OF ADHERENCE TO JURISDICTION
jurisdiction once it attaches cannot be ousted by
the happening of a subsequent event although
of such character which could have prevented
jurisdiction from attaching in the first place
RULE 1
GENERAL PROVISIONS
Section 1. Title of the Rules.
1
Remedial Law Memory Aid Committee: VERONICA LLADOC, Chairperson; CATHLEEN LAO, Vice-Chairperson-EDP; MANUEL
JONATHAN SEE, EDP; HEADS: Rhouan Loseriaga (Civil Procedure), Czar Calabazaron (Special Proceedings), John Vincent
Ocampo (Criminal Procedure), Clarence Sotto (Evidence); MEMBERS: Darius Manlangit, Joy Formaran, Lourdes Barrero, Maricel
Echavez, Rita Marie Cubangbang, Maritoni Resurreccion, Albert Rebosa

Statutes regulating the procedure of courts may

be made applicable to cases pending at the time
of their passage and are retroactive in that
sense.
Section 3. Cases governed.
ACTION
an ordinary suit in a
court of justice
a right possessed by
one against another
one party prosecutes

another for the
enforcement or
protection of a right or
the protection or
redress of a wrong.
the moment said claim

is filed before a court,
the claim is converted
into an action or suit.
directed
against the
thing itself
judgment is
binding on the
whole world
ex. Land
registration
case; probate
proceedings
for allowance
of a will.
governed by special
rules (Rules 62 to 71),
i.e., Interpleader (62),
etc,
ACTION IN
PERSONAM
directed
against
particular
persons
judgment is
binding only
upon parties
impleaded or
their
successors in
interest
ex. action to
recover
damages;
action for
breach of
contract
ACTION
QUASI IN
REM
directed
against
particular
persons
judgment
binding upon
particular
persons, but
the real
motive is to
deal with real
property or to
subject said
property to
certain
claims.
ex. unlawful
detainer or
forcible
entry; judicial
foreclosure
of mortgage.
(c)
REAL
ACTION
ownership or
possession
of real
property is
involved
founded on
privity of
ex. accion
publiciana
with a claim
for damages
LOCAL ACTION
TRANSITORY
ACTION
must be brought in a
particular place, in the
absence of an
agreement to the
contrary
ex. Action to recover
real property
generally, must be
brought where the
party resides
regardless of where the
cause of action arose
ex. action to recover
sum of money
Section 5. Commencement of action.
CLASSIFICATION OF ACTIONS.
(a)
ORDINARY CIVIL
SPECIAL CIVIL
ACTION
ACTION
(b)
ACTION IN
REM
contract
ex. action for
a sum of
money
(d)
CLAIM
governed by ordinary
rules
estate
ex. Accion
reinvidicatoria
PERSONAL
ACTION
personal
property is
sought to be
recovered or
where
damages for
breach of
contract are
sought
founded on
privity of
MIXED
ACTION
both real and
personal
properties are
involved
founded on
both
An action is commenced by the filing of the

complaint and the payment of the requisite
docket fees within the prescriptive period, this
notwithstanding that summons was served on
the defendant after the prescriptive period.
An action can be commenced by filing the
complaint by registered mail. It is the date of
mailing that is considered as the date of filing,
and not the date of the receipt thereof by the
clerk of court.
The amount of damages in the body or prayer
of the pleading must enable the clerk of court to
compute the docket fees required. They need
not be mathematically precise, and can be
appraised more or less. The party is allowed to
make an initial payment of the filing fees
corresponding to the estimated amount of the
claim subject to adjustment as to that may later
be proved.
Section 6. Construction.
General Rule: Liberal construction .
Exceptions: a. reglementary periods
b. rule on forum shopping
RULE 2
CAUSE OF ACTION
Section 2. Cause of Action, defined.
Cause of action involves:
(a) right in favor of the plaintiff;
(b) with an obligation on the part of the
defendant to respect that right; and
(c) the act or omission of defendant which
violates that right.
CAUSE OF ACTION
RIGHT OF ACTION
delict or wrongful act

or omission committed
by the defendant in
violation of the primary
rights of the plaintiff
remedial right or right

to relief granted by law
to a party to institute an
action against a person
who has committed a
2

the reason for the

action
the formal statement of
alleged facts
determined by facts
as alleged in the
complaint and not the
prayer therein
not affected by
prescription, estoppel,
etc.
delict or wrong against

him
the remedy or means
afforded or the
consequent relief
right that is given the
right to litigate because
of the occurrence of
the alleged facts
determined by
substantive law
may be taken away by
prescription, estoppel,
etc.
RELIEF
REMEDY
SUBJECT
MATTER
the redress,
protection,
award or
coercive
measure
which the
plaintiff prays
the court to
render in his
favor as a
consequence
of the delict
committed by
the defendant.
the procedure
or type of
action which
may be
availed of by
the plaintiff as
the means to
obtain the
desired relief
the thing,
wrongful act,
contract or
property
which is
directly
involved in the
action,
concerning
which the
wrong has
been done
and with
respect to
which the
controversy
has arisen.
Section 4. Splitting a single cause of

action, effect of.
SPLITTING OF CAUSE OF ACTION is the
practice of dividing one cause of action into
different parts and making each part subject of a
separate complaint.
EFFECT: The filing of the first may be pleaded in
the dismissal of the other on the ground of litis
pendentia or a judgment upon the merits of any
one is available as a bar in the others as res
judicata.
Section 5. Joinder of causes of action.

Rule in this section is PERMISSIVE and the
plaintiff can always file separate actions for each
cause of action.
JOINDER test of jurisdiction is totality of
demand against each defendant.

Par. (b) requires that: only civil actions may be
joined, obviously because they are subject to the
same rules.
THE FOLLOWING CAUSES OF ACTION MAY
BE JOINED:
1. Arising out of the same contract, transaction

or relation between the parties;
2. Demands for money; and
3. Same nature and character
Pars. (d) embodies the TOTALITY RULE
"Section 33 BP129, as amended by RA 7691 Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the claims in
all the causes of actions, irrespective of whether
the causes of action arose out of the same or
different transactions.
For as long as one cause of action falls within
the jurisdiction of the RTC, the case can be filed
there even if the MTC has jurisdiction over the
others.
Section 6. Misjoinder of causes of

action.
There is no sanction against non-joinder of
separate causes of action since a plaintiff needs
only a single cause of action to maintain an
action.
RULE 3
PARTIES TO CIVIL ACTIONS
Section 1. Who may be parties; plaintiff
and defendant.
PLAINTIFFS- Those having an interest in the
subject matter of the action or in obtaining the
relief demanded.
DEFENDANTS:
(a) persons who claim an interest in the
controversy or the subject thereof adverse
to the plaintiff; or
(b) who are necessary to a complete
determination or settlement of the
questions involved therein; or
(c) all those who ordinarily should be joined as
plaintiffs but who do not consent thereto,
the reason therefore being stated in the
complaint.
ISOLATED JURISDICTION RULE -only foreign
corporations and not just any business
organization or entity can avail themselves of
the privilege of suing before Philippine courts
even without a license ( Comm. of Customs vs.
KMK 182 SCRA 591)
Section 3. Representatives as parties.

Impleading the beneficiary as a party in the
suit is now mandatory.
CLASSIFICATION OF PARTIES IN INTEREST.
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(1) Indispensable parties those without

whom no final determination can be had of
an action. (must be joined)
(2) Necessary (or proper) parties those
who are not indispensable but ought to be
parties 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. (may or may not be
joined)
(3) Representative parties those referred to
in sec. 3 of this rule (trustee, guardian,
executor or administrator, or an authorized
party by law of these Rules). An agent acting
in his own name and for the benefit of an
undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the
principal
(4) Pro forma parties those who are required
to be joined as co-parties in suits by or
against another party as may be provided by
the applicable substantive law or procedural
rule.
(5) Quasi parties those in whose behalf a
class or representative suit is brought.
Section 4. Spouses as parties.

In case husband is not joined, the complaint
may be ordered amended to join husband
unless wife is the real party in interest.
Joinder of husband does not necessarily make
him solidarily liable with the wife.
The propriety of suits by or against spouses
should now take into account the provisions of
the Family Code.
Section
parties.
6.
Permissive
joinder
of
COMPULSORY JOINDER in the case of :

1. indispensable parties
2. necessary parties
PERMISSIVE JOINDER parties can either be
joined in single complaint or may themselves
maintain or be sued in separate suits. This rule
also applies to counterclaims.
Requisites of permissive joinder of parties.
(1) right to relief arises out of the same
transaction or series of transactions;
(2) there is a question of law or fact common to
all the plaintiffs or defendants; and
(3) such joinder is not otherwise proscribed by
the provisions of the Rules on jurisdiction
and venue.
SERIES OF TRANSACTIONS separate
dealings with the parties but all of which
dealings are directly connected with the same
type of subject matter of the suit.
4
Section 7. Compulsory joinder of

indispensable parties.
Dismissal of the suit against the indispensable
party will entail the dismissal of the entire action
Section 8. Necessary Party.

INDISPENSABLE
PARTIES
the action cannot
proceed unless they
are joined
no valid judgment if
indispensable party is
not joined
they are those with

such an interest in the
controversy that a final
decree would
necessarily affect their
rights so that the court
cannot proceed without
their presence
NECESSARY
PARTIES
the action can proceed
even in the absence of
some necessary
parties
the case may be
determined in court but
the judgment therein
will not resolve the
entire controversy if a
necessary party is not
joined
they are those whose
presence is necessary
to adjudicate the whole
controversy but whose
interests are so far
separable that a final
decree can be made in
their absence without
affecting them
JOINT DEBTORS indispensable party with

respect to own share and a necessary party with
respect to the share of the others.
SOLIDARY CO - DEBTORS are not
indispensable but may be necessary parties.
Section 9. Non-joinder of necessary

parties to be pleaded.
The non-inclusion of a necessary party may be
excused only on meritorious grounds, absent
which, the court shall order him to be impleaded
if jurisdiction over his person can be obtained,
subject to the sanction under the 2nd paragraph
of this section.
If the court orders the inclusion, the plaintiff
shall be ordered to file an amended complaint
impleading the necessary party therein as a codefendant.
Where the plaintiff unjustifiably fails or
refuses to do so, plaintiff shall be deemed to
have waived his claim against said party.
Except that the plaintiff may not be compelled to
amend the complaint to include the necessary
party if jurisdiction over his person cannot be
obtained.
Section 11. Misjoinder and non-joinder

of parties.

Objections to defects in parties should be

made at the earliest opportunity the moment
such defect becomes apparent by a MOTION
TO STRIKE THE NAMES OF THE PARTIES
impleaded.
If there is misjoinder, a separate action should
be brought against the party misjoined.
There can be misjoinder of parties even if
there is only one cause of action common to
them, and there can be misjoinder of causes of
action even if there is only one plaintiff.
Section 12. Class suit.

REQUISITES OF A CLASS
/REPRESENTATIVE SUIT.
(a) subject matter of the controversy is one of
common or general interest to many
persons;
(b) parties affected are so numerous that it is
impracticable to bring them all before the
court;
(c) parties bringing the class suit are sufficiently
numerous or representative of the class and
can fully protect the interests of all
concerned.
Class Suit
There is one single
cause
of
action
pertaining to numerous
transactions
Permissive Joinder of
Parties
There
are
multiple
causes
of
action
separately belonging to
several persons.
Section 14. Unknown identity or name

of defendant.
Requisites:
(1) there is a defendant
(2) his identity or name is unknown
(3) fictitious name may be used because of
ignorance of defendants true name and said
ignorance is alleged in the complaint
(4) identifying description may be used: sued as
unknown owner, heir, devisee, or other
designation
(5) amendment to the pleading when identity or
true name is discovered
(6) defendant is the defendant being sued, not a
mere additional defendant
Section 15. Entity without juridical

personality as defendant.
They can be sued but cannot sue for lack of
juridical personality.
Section 16. Death of party; duty of

counsel.
The death of the client will require his

substitution by his legal representative to be
ordered by the court wherein the case is
pending, or even the appointment of an executor
or administrator, but this time, by a court of
probate jurisdiction.
In the
case
of
incapacity or
incompetency of the party, this fact will merely
entail the appointment of a guardian ad litem by
the court trying the case upon being informed
thereof by counsel of the parties, the parties
themselves, or other reliable sources.
These provisions apply where the claim
survives and regardless of whether either the
plaintiff or the defendant dies or whether the
case is in the trial or appellate courts. No
summons is required to be served on the
substituted defendants. Instead, the order of
substitution shall be served upon the parties
substituted in the action, otherwise the court
does not acquire jurisdiction over the substitute
party.
If there is failure to notify the fact of death: the
case may continue and proceedings will be held
valid, and judgment will bind the successors in
interest.
The court cannot compel the lawyer to continue
with the trial after the lawyer has notified the
court of the death of his client. Otherwise, the
entire proceeding is null and void; the court
would have no jurisdiction over the estate, the
heirs
and
the
executors
or
administrators( Lawas vs. CA 146 SCRA 173)
The substitute defendant need not be
summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
Section 17. Death or separation of a

party who is a public officer.
The action contemplated there in is one
brought against the public officer in his official
capacity.
Section
incapacity.
18.
Incompetence
or
In case of supervening incapacity or

incompetency of a party, the action shall
continue to be prosecuted by or against him
personally assisted by the corresponding
guardian.
Section 19. Transfer of interest.

Substitution of parties in this section is not
mandatory, it being permissible to continue the
action by or against the original party in case of
transfer of interest pendente lite. Unless the
5

substitution by or the joinder of the transferee is

required by the court, failure to do so does not
warrant the dismissal of the case. A transferee
pendente lite is a proper, and not an
indispensable party.
Effect if interest of plaintiff is transferred to
defendant: case is dismissed, unless there are
several plaintiffs.
Remaining plaintiffs can
proceed with their own cause of action.
Section 20. Action on contractual

money claims.
Requisites:
(1) The action must primarily be for recovery of
money, debt, or interest thereon, and not
where the money sought therein is merely
incidental thereto.
(2) The claim, subject of the action, arose from a
contract, express or implied, entered into by
the decedent in his lifetime or the liability for
which had been assumed by or is imputable
to him.
If defendant dies before entry of final
judgment in the court where it was pending at
that time, the action shall not be dismissed but
shall be allowed to continue until entry of final
judgment thereon.
It is necessary that a legal representative
appear and be a substitute, if the court has not
yet acquired jurisdiction, amend to implead the
heirs.
Section 21. Indigent party.

INDIGENT one who has no property or income
sufficient for his support aside from his labor,
even if he is self-supporting when able to work
and in employment.
RULE 4
VENUE OF ACTIONS
Section 1. Venue of real actions.
Section 2. Venue of personal actions.
VENUE the place where an action must be
instituted and tried.
Subject to the rules on jurisdiction, VENUE
may be the subject of a valid agreement if the
agreement states that the case can only or
exclusively be filed in the place agreed upon.
Otherwise the same becomes optional.
Requisites for venue to be exclusive:
(a) A valid written agreement
(b) Executed by the parties before the filing of

the action; and
(c) Agreement to the exclusive nature of the
venue.
In the absence of qualifying or restrictive
words, venue stipulation is merely permissive
meaning that the stipulated venue is in addition
to the venue provided for in the rule (Polytrade
Corp. vs. Blanco 30 SCRA 187)
Means of waiving venue:
1) failure to object by means of motion to
dismiss
(2) affirmative relief sought in the court where
the case is filed
(3) voluntary submission to the court where the
case is filed
(4) laches
IF PROPERTY IS LOCATED AT THE
BOUNDARIES OF TWO PLACES: file one case
in either place at the option of the plaintiff.
IF CASE INVOLVES TWO PROPERTIES
LOCATED IN TWO DIFFERENT PLACES:
(a) If the properties are the object of the same
transaction, file it in any of the two places.
(b) If they are the subjects of two distinct
transactions, separate actions should be
filed in each place.
ALTERNATIVE RELIEF IS SOUGHT-venue
would depend on the primary object of the
action.
RESIDENCE the place where the party
actually resides with continuity and consistency,
whether permanent or temporary, at the time the
action is instituted.
Section 3. Venue of actions against

non-residents.
RULE:
(a) NON-RESIDENT FOUND IN THE PHIL.

for personal actions where the plaintiff
resides; and for real actions where the
property is.
(b) NON RESIDENT NOT FOUND IN THE
PHIL. only when it involves:
i.
ii.
Personal status of plaintiff venue: where

plaintiff resides; or
Any property of said defendant located in
the Phil. venue: where the property or
any portion thereof is situated or found.
EXCEPTION TO THE EXCEPTION: the

Supreme Court has the power to order a change
of venue to prevent a miscarriage of justice.
VENUE
JURISDICTION
6

1. place where the action
is instituted
2. may be waived
3.procedural
4.may be changed by the
written agreement of the
parties
1. power of the court to

hear and decide a case
2. jurisdiction over the
subject matter and over
the nature of the action is
conferred by law and
cannot be waived
3.substantive
4. cannot be the subject
of the agreement of the
parties
RULES ON SUMMARY PROCEDURE

SUMMARY PROCEDURE IN CIVIL CASES
Filing of verified
complaint with the MTC
Court summons
defendant
Court may dismiss

the case outright
Within 10 days
from receipt of
summon,
defendant
answers, may be
compulsory
counterclaim or
crossclaim, and
serves a copy on
plaintiff
Defendant
fails
to
answer in 10 days court,
motu propio or on
plaintiffs motion, may
render judgment based
on facts alleged in the
complaint w/o prejudice
to R9 S3(c)
Answer
to
counterclaim and
cross-claim within
10 days
Plaintiff fails to appear

in
prelim.
Con.,
complaint
may
be
dismissed. Defendant
entitled to decision
based
on
his
counterclaim. All crossclaim dismissed.
Preliminary
conference within
30 days after last
answer is filed
Within 5 days
after conference,
court issues order
of record of the
preliminary
conference
Within 10 days
from receipt of
order, submission
by
parties
of
affidavits
and
position papers
The Original Rule on Summary Procedure

promulgated by the Supreme Court in 1983 took
effect on August 1, 1983. It was revised in 1991
and the revisions took effect on November 15,
1991.
The Court should not dismiss complaint or
counterclaim if they are not verified. The
requirement is merely a formal one, and not
jurisdictional. It should therefore simply direct
the party concerned to have it verified.
PROHIBITED PLEADINGS / MOTIONS

UNDER THE RULE ON SUMMARY
PROCEDURE.
(1) Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the subject
matter or failure to comply with prior section
(referral to the Lupon)
(2) Motion for a bill of particulars
(3) Motion for a new trial or for reconsideration
of a judgment or for reopening of trial
(4) Petition for a relief from judgment
(5) Motion for extension of time to file pleadings,
affidavits, or any other paper
(6) Memoranda
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
(8) Motion to declare defendant in default
(9) Dilatory motions for postponement
(10) Reply
(11) Third party complaints
(12) Interventions
Sole defendant fails to

appear, plaintiff entitled
to judgment based on
complaint and what is
proved therein
The filing of a prohibited pleading will not

suspend the period to file an answer or to
appeal.
Although a motion to dismiss is a prohibited

pleading, its filing after the answer had already
been submitted does not constitute a pleading
prohibited by the summary rules. What the rules
proscribe is a motion to dismiss that would stop
the running of the period to file an answer and
cause undue delay.
The issuance of the pre-trial order is an
important part of the summary procedure
because it is its receipt by the parties that begins
the ten-day period to submit the affidavits and
other evidence.
TRIAL PROCEDURE
Rendition
of
No trial date is set. No testimonial evidence is
judgment within
30 days after
required nor cross-examination of witnesses
7 receipt of last
affidavit,Law
or Memory
within Aid Committee: VERONICA LLADOC, Chairperson; CATHLEEN LAO, Vice-Chairperson-EDP; MANUEL
Remedial
15 days after
JONATHAN
SEE, last
EDP; HEADS: Rhouan Loseriaga (Civil Procedure), Czar Calabazaron (Special Proceedings), John Vincent
Ocampo
(Criminal
Procedure), Clarence Sotto (Evidence); MEMBERS: Darius Manlangit, Joy Formaran, Lourdes Barrero, Maricel
clarificatory
paper

allowed. All that is required is that within (10)

days from receipt by the parties of the courts
pre-trial order, they shall submit (1) the affidavits
of their witnesses (2) and other evidence on the
factual issues set forth in the pre-trial order,
TOGETHER WITH THEIR POSITION PAPERS
SETTING FORTH THE LAW AND THE FACTS
RELIED UPON BY THEM.
PROCEDURE IN REGIONAL TRIAL

COURTS
RULE 6
KINDS OF PLEADINGS
Section 1. Pleadings defined.
PLEADINGS the written allegations of the
parties of their respective claims and defenses
submitted to the court for appropriate judgment.
A motion to dismiss is NOT a pleading.

Averments in the pleading determine the
jurisdiction of the court and the nature of the
action.
PLEADING
MOTION
It relates to the cause of

action; interested in the
matters to be included
in the judgment.
An application for an
order not included in the
judgment
Section 3. Complaint.
COMPLAINT is a concise statement of the
ultimate facts constituting the plaintiffs cause or
causes of action, with a specification of the relief
sought, but it may add a general prayer for such
further relief as may be deemed just or
equitable.
ULTIMATE FACTS - essential facts constituting
the plaintiffs cause of action.
TEST OF SUFFICIENCY: if upon admission

or proof of the facts being alleged, a judgment
may be properly given. A fact is essential if it
cannot be stricken out without leaving the
statement of the cause of action insufficient.
Section 4. Answer.
ANSWER the pleading where the defendant
sets forth his affirmative or negative defenses.
2 kinds of defenses that may be set forth in
the answer
A.) NEGATIVE DEFENSES
a.Specific denials
b.Insufficient denial or denial amounting
to admissions
1)General
2)Denial in the form of a negative

pregnant
B.) Affirmative Defenses in the Nature of
Confession and Avoidance
Section 6. Counterclaim
Section 7. Compulsory Counterclaim
COUNTERCLAIM a new suit in which the
party named as the defendant is the plaintiff and
the plaintiff becomes the defendant.; a crosspetition.
RULES ON COUNTERCLAIM
A counterclaim before the MTC must be within
the jurisdiction of said court, both as to the
amount and nature thereof (De Chua vs. IAC).
In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount (Sec. 7, Rule 6 )
If a counterclaim is filed in the MTC in excess
of its jurisdictional amount, the excess is
considered waived (Agustin vs. Bacalan). In
Calo vs. Ajax Intl, the remedy where a
counterclaim is beyond the jurisdiction of the
MTC is to set off the claims and file a separate
action to collect the balance.
Section 8. Cross-claim
Permissive Cross-claim
1.outside the jurisdiction of the court, or
2.the court cannot acquire jurisdiction over the
parties whose presence is necessary for the
adjudication of said cross-claim
CLASSIFICATIONS:
COMPULSORY
COUNTERCLAIM
PERMISSIVE
COUNTERCLAIM
(1) One which arises

out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter of
the opposing partys
claim.
(2) It does not require
for its adjudication
the presence of third
parties of whom the
court cannot acquire
jurisdiction.
(3) It is barred if not set
up in the action.
(1) It does not arise out

of nor is it
necessarily
connected with the
subject matter of the
opposing partys
claim.
(4) Need not be

answered; no
default.
(2) It may require for its

adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction.
(3) It is NOT barred
even if not set up in
the action.
(4) Must be answered,
otherwise, the
defendant can be
declared in default.
CROSS-CLAIM
filed against a co-party
8

Always arises out of the transaction or

occurrence that is the subject matter either of
the original action or of a counterclaim therein.
If it is not set up in the action, it is barred,
except when it is outside the jurisdiction of the
court or if the court cannot acquire jurisdiction
over third parties whose presence is necessary
for the adjudication of said cross-claim.
The dismissal of the complaint carries with it

the dismissal of a cross-claim which is purely
defensive, but not a cross-claim seeking
affirmative relief.
Section 10. Reply.

REPLY - the response of the plaintiff to the
defendants answer.
EFFECT OF FAILURE TO REPLY: new facts
that were alleged in the answers are deemed
controverted. Hence, the filing of the reply is
optional except for the denial of the genuineness
and due execution of an actionable document
used as defense in the answer.
Section 11. Third (fourth, etc.) party

complaint.
THIRD-PARTY
COMPLAINT
seeks to recover from
a non-litigant some
relief in respect to the
opposing partys claim
Third party is not yet
impleaded.
THIRD-PARTY
COMPLAINT
brings into the action
a third person who was
not originally a party.
initiative is with the
person already a party
to the action.
CROSS-CLAIM
claim by a party
against a co-party.
Cross-defendant is a
co-party.
PARTS OF A PLEADING
Section 3. Signature and address.
The signature of the counsel is a certification
that:
(a) There is good ground to support the
pleading
(b) It is not interposed for delay
If he deliberately:
(a) Files an unsigned pleading, or
(b) Signs it even if it be without ground or
only to delay, or
(c) Alleges
scandalous
or
indecent
material, or
(d) Fails to report a change of address,
he shall be subject to disciplinary action.
Only the original copies must be signed.

UNSIGNED PLEADING may be stricken out
as sham and false, and the action may proceed
as though the pleading has not been served.
Section 4. Verification.
As a rule, pleadings need not be verified

except if provided by the Rules and
jurisprudence, or statute.
A verification must now be based on

personal knowledge or based on authentic
records.
Section 5. Certification against forum

shopping.
same
FORUM SHOPPING the filing of a two or more

cases based on the same cause of action in
different courts for the purpose of obtaining a
favorable decision in either.
initiative is with a nonparty who seeks to join

the action.
RULE 8
MANNER OF MAKING ALLEGATIONS
IN A PLEADING
COMPLAINT IN
INTERVENTION
TEST to determine whether the third-party

complaint is in respect of plaintiffs claim:
(a) Where it arises out of the same transaction
on which the plaintiffs claim is based, or,
although arising out of another or different
transaction, is connected with the plaintiffs
claim;
(b) Whether the third-party defendant would be
liable to the plaintiff or to the defendant for
all or party of the plaintiffs claim against the
original defendant; and
(c) Whether the third-party defendant may
assert any defenses which the third-party
plaintiff has or may have to the plaintiffs
claim.
RULE 7
Section 4. Capacity.
Capacity to sue and be sued either

personally or in representative capacity must be
specifically averred by the party suing or being
sued, and specifically denied by the party
questioning such capacity.
Capacity is challenged by specific denial,
motion to dismiss or bill of particulars.
A guardian not appointed by the court has

no capacity.
Foreign corporations have the capacity to

sue or be sued if it is doing business in the
Philippines.
9

If it is an unlicensed foreign corporation, it may

only BE SUED on any valid cause of action, but
it CANNOT SUE. However, the Supreme Court
has allowed foreign corporations to file an action
on certain isolated transactions.
Section 5. Fraud, mistake, condition of

the mind.
FACTS THAT MAY BE AVERRED
GENERALLY:
(a) Conditions precedent (BUT there must still
be an allegation that the specific condition
precedent has been complied with,
otherwise, it will be dismissed for failure to
state a cause of action)
(b) Malice, intent, knowledge, or other condition
of the mind
(c) Judgments of foreign courts, tribunals,
boards, or officers (no need to show
jurisdiction)
FACTS THAT MUST BE AVERRED

PARTICULARLY:
(a) Circumstances showing fraud or mistake in
all averments of fraud or mistake
(b) Capacity
Section 7. Action or defense based on

document.
Section 8. How to contest such
documents.
ACTIONABLE DOCUMENT when it is the
basis of a claim or a defense., e.g. receipt
Two permissible ways of pleading an

actionable document:
(a) By setting forth the substance of such
document in the pleading and attaching said
document thereto as an annex (contents of
the document annexed are controlling, in
case of variance in the substance of the
document set forth in the pleading and in the
document attached); or
(b) By setting forth said document verbatim in
the pleading.
Where the actionable document is properly

alleged, the failure to deny under oath the same
results in:
1. The implied admission of the genuineness
and due execution of said document,
except:
a. When the adverse party was not a party
to the instrument; and
b. When an order for the inspection of the
document was not complied with.
2. The document need not be formally offered
in evidence.
GENUINENESS that the document is not
spurious, counterfeit, or of different import on its
face from the one executed by the party, or that
10
the party whose signature it bears has signed it

and that at the time it was signed it was in words
and figures exactly as set out in the pleadings.
DUE EXECUTION that the document was
signed voluntarily and knowingly by the party
whose signature appears thereon.
Defenses that the opposing party may set up
even after failure to deny under oath:
(a) Mistake;
(b) fraud;
(c) compromise;
(d) payment;
(e) prescription;
(f) want or illegality of consideration; or
(g) estoppel
BUT the following defenses are waived:

(a) forgery in the signature;
(b) want of authority of an agent or corporation;
(c) want of delivery; or
(d) the party charged signed the instrument in
some other capacity
Section 10. Specific denial.

THREE WAYS OF MAKING A SPECIFIC
DENIAL:
(a) By specifically denying each material
allegation of the other party and, whenever
possible, setting forth the substance of the
matters relied upon for such denial;
(b) Past admission or past denial;
(a) By an allegation of lack of knowledge or
information sufficient to form a belief as to
the truth of the averment in the opposing
partys pleading
A denial cannot be general. A general denial is
regarded as an admission of the facts stated in
the complaint.
A negative defense must be a specific

denial. Otherwise, the denial will be deemed as
an admission and entitles plaintiff to a judgment
on the pleadings.
NEGATIVE PREGNANT a form of denial
which at the same time involves an affirmative
implication favorable to the opposing party.
It is in effect of an admission of the averment
to which it is directed.
It is said to be a denial pregnant with an
admission of the substantial facts in the pleading
responded to.
Section 11. Allegation not specifically

denied deemed admitted.
Averments in the complaint NOT deemed
admitted even if NOT specifically denied:
(a) Allegations as to the amount of damages
(b) Immaterial allegations;

(c) Incorrect conclusions of fact; and

Averments
deemed
admitted
if
not
specifically denied under oath:
(a) Allegations as to usury in the complaint
(b) The authenticity and due execution of
actionable documents thereto.
RULE 9
EFFECT OF FAILURE
TO PLEAD
Section 1.
not pleaded.
Defenses and objections
GENERAL RULE: Defenses and objections that

are not pleaded in a MOTION TO DISMISS or in
the answer are deemed waived.
EXCEPTIONS (not waived even if not raised):
(a) Lack of jurisdiction over the subject matter
(b) Litis pendentia
(c) Res judicata
(d) Prescription of the action
The presence of these grounds authorizes
the court to motu proprio dismiss the claims.
These grounds must, however, appear from the
pleadings or the evidence on record.
Section 3. Default, declaration of.

DEFAULT
After the lapse of
time
to file an
answer, the plaintiff
may move to declare
the defendant in
default
Motion granted:
court issues order of
default and
renders
judgment, or
require plaintiff to submit
evidence ex parte
Motion denied:
Defendant
allowed to file
an answer
Defendant
answers and
case is set for
pre-trial
There is no default in special civil actions of

certiorari, prohibition and mandamus where
comment instead of an answer is required to be
filed
DEFAULT the failure of the defendant to
answer within the proper period. It is not his
failure to appear nor failure to present evidence.
ORDER OF
JUDGMENT BY
DEFAULT
DEFAULT
issued by the court,
on plaintiffs motion for
failure of the defendant
to file his responsive
pleading seasonably.
- Interlocutory - not
appealable
rendered by the court

following a default
order or after it
received, ex parte,
plaintiffs evidence.
- Final - appealable
The court cannot motu proprio declare a

defendant in default. For defendant to be
declared in default, the plaintiff must:
(a) File a MOTION to declare defendant in
default
(b) Prove that summons have been properly
served on the defendant
(c) Prove that the defendant really failed to
answer within the proper period.
Failure to furnish plaintiff with copy of answer
is ground for default.
CAUSES OF DEFAULT
(a) Failure to answer within the proper period
(b) Rule 12, Section 4
(c) Rule 29, Section 3, par. C
If the defendant was declared in default

upon an original complaint, the filing of the
amended complaint resulted in the withdrawal of
the original complaint, hence, the defendant was
entitled to file answer to the amended complaint
as to which he was not in default.
Before judgment of default

is rendered:
defendant may move to
set aside the order of
default
a.FAME
b. he has a meritorious
defense
Court sets aside order of

default and defendant is
allowed to file his answer
Case set
for pre11trial.
COURT
MAINTAINS
ORDER OF
DEFAULT
Presentation
of
plaintiffs
evidence ex
parte
EFFECT OF ORDER OF DEFAULT.

While the party in default cannot take part in
the trial, he is nonetheless entitled to notice of
subsequent proceedings.
He may still be called on as a witness, in
behalf of the non-defaulting defendants.
REMEDIES AVAILABLE TO A
DEFAULTING PARTY. (FLOW CHART)
order of
default
motion to set aside the
order of default at any
time after discovery
thereof and before
judgment
Plaintiff
Plaintiff fails
proves his
to prove his
allegations,
allegations,
Remedial Law Memory
Aid Committee:
VERONICA
LLADOC, Chairperson; CATHLEEN LAO, Vice-Chairperson-EDP; MANUEL
judgment
by
case is
JONATHAN SEE, EDP;
HEADS: Rhouandismissed
Loseriaga (Civil Procedure), Czar Calabazaron (Special Proceedings), John Vincent
default

Rule 65, in proper

instances
Judgment by default
motion for new trial or

reconsideration at any
time after service of
judgment by default and

within 15 (30) days
therefrom
When the complaint is amended, 2 situations

may arise:
1. if the complaint merely corrects or modifies
the original complaint, then the action is
deemed commenced upon the filing of the
original complaint;
2. if the amended complaint alleges a new
cause of action, then that newly alleged
cause of action is deemed commenced
upon the filing of the amended complaint.
Section 2. Amendments as a matter of

right.
Amendment for the first time is a matter of

right before a responsive pleading is filed, or in
case of a Reply, within 10 days after it was
served.
failure to file motion
Since a motion to dismiss is NOT a

responsive pleading, an amendment may be
had even if an order of dismissal has been
issued as long as the amendment is made
before dismissal order became final.
of said motion
Section 3. Amendments by Leave of

Court.
for new trial / denial
Instances when amendment by leave of court

perfect appeal from said
judgment by default within
the balance of said 15 (30) day period
failure to
appeal
petition for relief from

judgment within 60 days
from notice of the judgment
but within 6 months from
entry thereof
Annulment of judgment
under Rule 47
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
Section 1. Amendments in general.
not allowed:
1. when cause of action, defense or theory of
the case is changed;
2. amendment is intended to confer jurisdiction
to the court;
3. amendment to cure a premature or nonexisting cause of action;
4. amendment for purposes of delay
Section 6. Supplemental pleadings.

AMENDED
PLEADING
refers to facts existing
at the time of the
commencement of the
action.
take the place of the
original pleading.
can be made as a
matter of right as when
no responsive pleading
has yet been filed
SUPPLEMENTAL
PLEADING
refers to facts arising
after the filing of the
original pleading.
taken together with the
original pleading.
always with leave of
court
Section 7. Filing of amended pleadings.

The amended pleading supersedes the original
pleading.
An amendment which merely supplements
and amplifies facts originally alleged in the
complaint relates back to the date of the
commencement of the action and is not barred
by the statute of limitations which expired after
service of the original complaint.
12

Section 8. Effect of amended pleading.

EFFECTS:
(a) Admissions in the superseded pleading can
still be received in evidence against the
pleader;
(b) Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.
The amended or superseded, original

pleading is not expunged but remains on the
record although the admission of the amended
pleading amounts to withdrawal of the original
pleading.
RULE 11
WHEN TO FILE RESPONSIVE
PLEADINGS
The third-party defendant is served with

summons just like the original defendant, hence,
he also has 15, 30, 60 days from service of
summons, as the case may be, to file his answer
just like the original defendant.
Section 7. Answer to supplemental

complaint.
Leave of court is required in filing, the court

may fix a different period for answering the
supplemental complaint in lieu of the
reglementary 10-day period.
RULE 12
BILL OF PARTICULARS
Section 1. When applied for; purpose.
Section 1. Answer to the complaint.

Section 2. Answer of a defendant
foreign private juridical entity.
BILL OF PARTICULARS- is a more definite

statement of any matter which appears vague or
obscure in a pleading.
PURPOSE: to aid in the preparation of a
responsive pleading.
Section 3. Compliance with order.
The granting of additional time to the

defendant to file an answer is a matter largely
addressed to the sound discretion of the court.
They may extend the time to file the pleadings
but may not shorten them.
A bill of particulars may be filed either in a

separate or an amended pleading.
The motion of a bill of particulars may be

granted in whole or in part as not all the
allegations questioned by the movant are
necessarily so ambiguous as to require
clarification.
Section
complaint.
If the defendant files an answer but fails to

obey an order relating to a bill of particulars or in
case of insufficient compliance thereof, the
answer may be stricken off the record and the
defendant be declared in default upon the
motion of the plaintiff
The 15-day period begins to run from receipt

of summons.
In the case of a nonresident defendant on
whom extraterritorial service of summons is
made, the period on which he must answer
should be at least 60 days.
3.
Answer
to
amended
If the filing of an amended complaint is a

matter of right, the 15-day period to answer is
counted from service of the amended complaint.
If the filing of the amended complaint is NOT a
matter of right, then leave of court is required,
hence, the 10-day period to answer runs from
notice of the court order granting the same.
If no new answer is filed by the defendant in

case an amendment has been made after he
had filed his answer, the original answer of the
defendant may serve as the answer to the
amended complaint, and hence, cannot be
declared in default.
Section 4. Answer to counterclaim or

cross-claim.
Section 5. Answer to third (fourth, etc.)party complaint.
Section 5. Stay of period to file

responsive pleading.
Section 6. Bill a part of pleading.
Motion for bill of particulars must be filed

within the reglementary period for the filing of a
responsive pleading to the pleading sought to be
clarified.
The filing of a motion for a bill of particulars

interrupts the time to plead, but only if it is
sufficient in form and substance.
If the motion is granted, the movant can wait

until the bill of particulars is served on him by the
opposing party and then he will have the
balance of the reglementary period within which
to file his responsive pleading.
13

If his motion is denied, he will still have such

balance of the reglementary period to do so,
counted from service of the order denying his
motion.
In either case, he will have at least 5 days to

file his responsive pleading.
RULE 13
FILING AND SERVICE OF
PLEADINGS, JUDGMENTS AND
OTHER PAPERS
Section 1. Coverage.
Section 2. Filing and service defined.
Notice given to a party who is duly

represented by counsel is a nullity, unless
service thereof on the party himself was ordered
by the court or the technical defect was waived.
1. personal service
(a) Delivering personally a copy to the party or his
counsel or;
(b) Leaving a copy in counsels office with his clerk
or with a person having charge thereof or;
(c) Leaving the copy between 8 a.m. and 6 p.m. at
the partys or counsels residence, if known,
with a person of sufficient age and discretion
residing therein---if no person found in his
office, or if his office is unknown, or if he has
no office.
2. service by mail
(a) If no registry service is available in the locality,
of either sender or addressee, service may be
done by ordinary mail.
3. substituted service
(a) Delivering the copy to the clerk of court
(b) With proof of failure of both personal and
service by mail.
Section 10. Completeness of service.

1. Personal service
Section 3. Manner of filing.
-by handling a copy to defendant; or

-tendering him copy if he refuses
-complete upon actual delivery
2. Service by ordinary mail:
Filing by mail should be through the registry

service which is made by deposit of the pleading
in the post office, and not through other means
of transmission.
if registry service is not available in the
locality of either sender or addressee, service
may be done by ordinary mail.
If a private carrier is availed of by the party,

the date of actual receipt by the court of such
pleading and not the date of delivery to the
carrier, is deemed to be the date of the filing of
that pleading.
NOTE:
PERSONAL and SUBSTITUTED
service as applied to pleadings have a different
meaning compared to summons under Rule 14.
Section 9. Service of judgments, final

orders or resolutions.
MODES OF SERVICE :
A. JUDGMENTS, FINAL ORDERS, AND
RESOLUTIONS
(a) By personal service; or
(b) By service by registered mail;
(c) By service by publication, if party is summoned
by publication and has failed to appear in the
action, judgment, final order or resolution.
They can be served only under the three modes.
They CANNOT be served by substituted service.
B. PLEADINGS
Complete upon expiration of 10 days after mailing,

unless the court provides otherwise.
3. service by registered mail:

(a) Complete upon actual receipt by the
addressee; or
(b) After 5 days from the date he received the 1 st
notice of the postmaster, whichever date is
earlier.
Section 11. Priorities in modes of

service and filing.
A resort to modes other than by personal

service must be accompanied by a written
explanation why the service or filing was not
done personally.
Section 12. Proof of filing.
Filing is proved by its existence in the record

of the case. If it is not in the record, and:
If filed personally: proved by the written
or stamped acknowledgment of its filing by the
clerk of court on a copy of the same; or
If filed by registered mail: proved by (a) the registry receipt and
(b) The affidavit of the person who did the
mailing.
Section 13. Proof of service.
Proof of personal service:

(a) Written admission of the party
served; or
(b) Official return of the server; or
(c) Affidavit of the party serving
14

Proof of service by ordinary mail:

Affidavit of the person mailing
Proof of service by registered mail:
(a) Affidavit, and
(b) Registry receipt issued by
mailing office.
Enumeration in section 3 is exclusive.
Section 6. Service in person on

defendant.
the
Section 14. Notice of lis pendens.
Notice of lis pendens cannot be cancelled

on an ex parte motion or upon the mere filing of
a bond by the party on whose title the notice is
annotated, as this section provides for only two
instances when such cancellation may be
authorized ONLY upon order of court, after
proper showing that:
(a) The notice is for the purpose of molesting
the adverse party; or
(b) It is not necessary to protect the rights of the
party who caused it to be recorded.
RULE 14
SUMMONS
Section 1. Clerk to issue summons.
Section 2. Contents.
KINDS OF SERVICE OF SUMMONS:

(1) personal service
(2) substituted service
(3) by publication
(4)any other form of service as the courts
deemed sufficient
SERVICE OF SUMMONS ON DIFFERENT

ENTITIES
A. SERVICE
ON ENTITY
WITHOUT
JURIDICAL
PERSONALI
-TY
-upon any or all defendants being

sued under common name; or
-person in charge of office
B.
SERVICE
UPON
MINORS
AND
INCOMPETENTS
-serve personally and on guardian

or any person exercising parental
authority over him;
HOW.
In case of minors: by serving
upon the minor, regardless of age,
AND upon his legal guardian, or
also upon either of his parents.
In case of incompetents: by
serving on him personally AND
upon his legal guardian, but not
upon his parents, unless when they
are his legal guardians
PURPOSE OF SUMMONS: to acquire

jurisdiction over the person of the defendant,
and to give notice to the defendant that an
action has been commenced against him.
EFFECT ON NON-SERVICE: Unless there is
waiver, non-service or irregular service renders
null and void all subsequent proceedings and
issuances in the action from the order of default
up to and including the judgment by default and
the order of execution.
Where the defendant has already been

served with summons on the original complaint,
no further summons is required on the amended
complaint if it does not introduce new causes of
action.
But where the defendant was declared in
default on the original complaint and the plaintiff
subsequently filed an amended complaint, new
summons must be served on the defendant on
the amended complaint, as the original
complaint was deemed withdrawn upon such
amendment.
IN ANY EVENT, if the minor or

incompetent has no legal guardian,
the plaintiff must obtain the
appointment of a guardian ad litem
for him.
C.
SERVICE
UPON
PRISONER
- serve on officer having

management of the jail or prison
D. SERVICE
UPON
DOMESTIC
PRIVATE
JURIDICAL
ENTITY
-To the president, managing

partner, general manager,
corporate secretary, treasurer, or inhouse counsel.
E. SERVICE
UPON
FOREIGN
PRIVATE
JURIDICAL
ENTITY
- serve on resident agent ; or if

none;
- govt official designated by law; or
- on any officer or agent of the
corporation within the Philippines.
F. SERVICE
UPON
- in case defendant is the Republic

of the Philippines - by serving upon
Section 5. Issuance of alias summons.
(a)
(b)
(c)
(d)
Summons may be served by:

Sheriff
Sheriffs deputy, or
Other proper court officers, or
For justifiable reasons, by any suitable
person authorized by the court issuing the
summons.
* Service upon a person other than

those mentioned is invalid and
does not bind the corporation.
-
15

PUBLIC
CORPORATIONS
the Solicitor General

- in case of a province, city or
municipality, or like public
corporations by serving on its
executive head, or on such other
officer or officers as the law or the
court may direct.
G. EXTRATERRITORIAL SERVICE
1. Requisites
a. defendant does not reside or is
not found within the Phil.
b. the action either:
* affects the status of plaintiff;
*relates to or the subject of which is
property within the Philippines in
which defendant has a lien or
interest;
*demands a relief which consists
wholly or in part in excluding the
defendant from any interest in any
property within the Phil; or
*property of defendant has been
attached in the Phil.
2. Mode of service
a. with leave of court served
outside the Phil. by
personal service; or
b. with leave of court serve by
publication in a newspaper
of general circulation, in
which case copy of the
summons and order of
court must also be sent by
registered mail to the last
known address of
defendant; or
c. any other manner the
court deem sufficient.
H. SERVICE
UPON
RESIDENT
TEMPORARILY OUT
OF THE
PHIL
Substituted service or with leave of

court, personal service out of the
Phil. as under extraterritorial
service
Section 12. Service upon foreign

private juridical entity.
A foreign corporation, even if it is NOT doing

business in the Philippines, may be sued for
acts done against persons in this country under
the rationale that if it is not doing business here,
it is also not barred from seeking redress from
Philippine courts.
Section 12 merely requires that the foreign

corporation HAS TRANSACTED business here.
Where the defendant is a resident and the

action is in personam, summons by publication
is invalid as being violative of the due process
clause.
Plaintiffs recourse, where personal
service fails, is to attach properties of the
defendant under Rule 57, sec. 1 (f), thus,

converting the suit to one in rem or quasi in rem,
and summons by publication will be valid.
Where plaintiff fails to or cannot do so,
the court should not dismiss the action but
should order the case to be archived, so that the
action will not prescribe until such time as the
plaintiff succeeds in ascertaining the defendants
whereabouts or his properties.
Section 20. Voluntary appearance.
Any form of appearance in court, by the

defendant, by his agent authorized to do so, or
by attorney, is equivalent to service EXCEPT
where such appearance is precisely to object to
the jurisdiction of the court over the person of
the defendant.
Inclusion in a motion to dismiss of other

grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a
voluntary appearance.
RULE 15
MOTIONS
Section 1. Motion defined.
MOTION is an application for relief other than
by a pleading.
Section 2. Motions must be in writing.

KINDS OF MOTIONS:
a.motion ex parte- made without the presence
of a notification to the other party because the
question generally presented is not debatable.
b.motion of course where the movant is
entitled to the relief or remedy sought as a
matter of discretion on the part of the court.
c.litigated motion one made with notice to the
adverse party to give an opportunity to
oppose.
d.special motion- motion addressed to the
discretion of the court
GENERAL RULE: A motion cannot pray for
judgment.
EXCEPTIONS:
1. Motion for judgment on the pleadings
2. Motion for summary judgment
3. Motion for judgment on demurrer to
evidence.
Section 4. Hearing on motion.

Second paragraph: 3-day notice rule
EXCEPTIONS to the three-day notice rule:
(a) Ex parte motions
(b) Urgent motions
(c) Motions agreed upon by the parties to be
heard on shorter notice or jointly submitted
by the parties, and
16

(d) Motions for summary judgment which must

be served at least 10 days before its hearing
EXCEPTIONS from the requirement of a

hearing non-litigated motions, that is, those
which may be acted upon by the court without
prejudicing the rights of the adverse party.
Service of the copy of motions should be made
in such a manner as shall ensure its receipt at
least 3 days before the hearing.
Section 6. Proof of service necessary.
NOTICE OF HEARING shall:

(a) Be addressed to all parties concerned
(b) Specify the time and date of the hearing
which must not be later than 10 days after
the filing of the motion
Any motion that does not comply with

Sections 4, 5 and 6 of this Rule is a mere scrap
of paper, should not be accepted for filing and, if
filed, is not entitled to judicial cognizance and
does not affect any reglementary period involved
for the filing of the requisite pleading.
Section 9. Motion for leave.
Such pleading or motion sought to be

admitted is now required to be attached to the
motion for leave of court, otherwise the latter will
be denied.
RULE 16
MOTION TO DISMISS
Section 1. Grounds.
GROUNDS:
(a) No jurisdiction over the person of the
defending party
(b) No jurisdiction over the subject matter of the
claim
(c) Improper venue
(d) No legal capacity to sue
(e) Litis pendentia
(f) Res judicata
(g) Prescription
(h) States no cause of action
(i) Claim or demand has been paid, waived,
abandoned, or otherwise extinguished
(j) Claim is unenforceable under the Statute of
Frauds
(k) Non-compliance with a condition precedent
for filing claim
MOTION TO
DISMISS UNDER
RULE 16
grounded on
MOTION TO
DISMISS UNDER
RULE 33 (demurrer
to evidence)
preliminary objections.
may be filed by any
defending party
against whom a claim
is asserted in the
action.
should be filed within
the time for but prior to
the filing of the answer
of the defending party
to the pleading
asserting the claim
against him.
of evidence.
may be filed only by
the defendant against
the complaint of the
plaintiff.
may be filed only after
the plaintiff has
completed the
presentation of his
evidence.
Effect of motion to dismiss: A motion to

dismiss hypothetically admits the truth of the
facts alleged in the complaint.
However, such admission is limited only to all
material and relevant facts which are well
pleaded in the complaint.
An action cannot be dismissed on a ground

not alleged in the motion even if said ground is
provided for in Rule 16. EXCEPT:
(a) Those cases where the court may dismiss a
case motu proprio
(b) Fact of such ground appears in the
allegations of the complaint or in plaintiffs
evidence
REQUISITES OF LITIS PENDENTIA:
(a) Parties to the action are the same
(b) There is substantial identity in the cause of
action and relief sought
(c) The result of the first action is determinative
of the second in any event and regardless of
which party is successful
Motion to dismiss may be filed in either suit,
not necessarily in the one instituted first.
REQUISITES OF RES JUDICATA:
(a) Previous final judgment
(b) In a case prosecuted between same parties
(c) Involving the same subject matter
(d) And same cause of action
When the ground for dismissal is that the

complaint states no cause of action, such fact
can be determined only from the facts alleged in
the complaint.
Where the plaintiff has not exhausted all

administrative remedies, the complaint not
having alleged the fact of such exhaustion, the
same may be dismissed for lack of cause of
action.
Non-compliance
with
P.D.
1508
(Katarungang Pambarangay Law) only results
in lack of cause of action or prematurity.
An action cannot be dismissed on the

ground that the complaint is vague or indefinite.
The remedy of the defendant is to move for a bill
based on insufficiency
17

of particulars or avail of the proper mode of

discovery.
GENERAL TYPES OF A MOTION TO DISMISS
1.motion to dismiss before answer under Rule
26
2.motion to dismiss under Rule !7
a.upon notice by plaintiff
b.upon motion of plaintiff
c.due to fault of plaintiff
3.motion to dismiss on demurrer to evidence
after plaintiff has rested his case under Rule
33
4.motion to dismiss the appeal filed either on the
lower court ( Rule 41, Sec. 13 ) or in the
appellate court ( Rule 50, Sec. 1 )
EFFECTS OF ACTION
ON MTD
1. order granting motion
to dismiss is final
order
2. order denying the
motion to dismiss is
interlocutory
Section 6. Pleading
affirmative defenses.
2.
certiorari
and
prohibition if there is
grave
abuse
of
discretion amounting
to lack or excess of
jurisdiction
Section 2. Hearing of motion.
as
If no motion to dismiss had been filed, any of

the grounds for dismissal provided for in Rule
16, INCLUDING IMPROPER VENUE, may be
pleaded
as
affirmative
defenses
and
preliminarily heard in the discretion of the court.
Dismissal under this section WITHOUT

prejudice to the prosecution in the same or
separate action of a COUNTERCLAIM pleaded
in the answer
REMEDY
1. appeal from the order
of dismissal
grounds
RULE 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by
plaintiff.
Dismissal is effected not by motion but by

mere NOTICE of dismissal which is a matter of
right BEFORE the defendant has answered or
moved for a summary judgment.
The resolution on the motion shall clearly

and distinctly state the reasons therefor.
Such dismissal is WITHOUT PREJUDICE,

EXCEPT:
(a) Where the notice of dismissal so provides;
(b) Where the plaintiff has previously dismissed
the same case in a court of competent
jurisdiction (two-dismissal rule);
(c) Even where the notice of dismissal does not
provide that it is with prejudice but it is
premised on the fact of payment by the
defendant of the claim involved
Section 4. Time to plead.
The evidence presented shall automatically

constitute part of the evidence at the trial of the
party who presented the same.
Section 3. Resolution of motion.
Defendant is granted only the balance of the

reglementary period to which he was entitled at
the time he filed his motion to dismiss, counted
from his receipt of the denial order, but not less
than 5 days in any event.
The same rule of granting only the balance

of the period is followed where the court, instead
of denying the motion to dismiss, orders the
amendment of the pleading challenged by the
motion, in which case, the balance of the period
to answer runs from his receipt of the amended
pleading.
Section 5. Effect of dismissal.
The action cannot be refiled if it was

dismissed on any of these grounds:
(a) Res judicata
(b) Prescription
(c) Extinguishment of the claim or demand
(d) Unenforceability under the Statute of Frauds
18
Cause of loss by plaintiff of the right to effect

dismissal of the action by mere notice---not the
filing of defendants answer BUT the SERVICE
on the plaintiff of said answer or of a motion for
summary judgment.
Section 2. Dismissal upon motion of

plaintiff.
Where the plaintiff moves for the dismissal

of his complaint to which a counterclaim has
been interposed, the dismissal shall be limited to
the complaint.
Such dismissal shall be without prejudice to

the right of the defendant to either:
(a) Prosecute his counterclaim in a separate
action, or
In this case, the court should render the
corresponding order granting and reserving
his right to prosecute his claim in a separate
complaint.
(b) To have the same resolved in the same
action.

In such case, defendant must manifest

such preference to the trial court within 15
days from notice to him of plaintiffs motion
to dismiss.
These alternative remedies of the defendant

are available to him REGARDLESS OF
WHETHER
HIS
COUNTERCLAIM
IS
COMPULSORY OR PERMISSIVE.
Dismissal under this rule is WITHOUT

PREJUDICE, EXCEPT:
(a) When otherwise stated in the motion to
dismiss;
(b) When stated to be with prejudice in the
order of the court.
Section 3. Dismissal due to fault of

plaintiff.
complaint;
3. dismissal is without
prejudice to the right of
the
defendant
to
prosecute
hi
counterclaim
in
a
separate action unless
15 days from notice of
the motion he manifests
his intention to have his
counterclaim resolved in
the same action
Section 4. Dismissal of counterclaim,

cross-claim, or third-party complaint.
Provisions of this Rule applicable to the

dismissal of any counterclaim, cross-claim or
third party complaint.
CAUSES FOR DISMISSAL:

(a) Plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint
REQUISITES:
1. failure to appear is without justifiable
cause, and
2. absence is limited to the date or dates
when the presentation of his evidence in
chief on the complaint was scheduled or
expected.
(b) Plaintiff fails to prosecute his action for an
unreasonable length of time
(c) Plaintiff fails to comply with these Rules or
any order of the court
Complaint may be dismissed:

(a) Upon motion of the defendant, or
(b) Upon courts own motion.
Dismissal shall have the effect of an

ADJUDICATION UPON THE MERITS (WITH
PREJUDICE), unless otherwise declared by the
court.
Unjustifiable inaction on the part of plaintiff

to have the case set for trial is a ground for
dismissal for failure to prosecute.
It is plaintiffs failure to appear at the trial,

and not the absence of his lawyer, which
warrants dismissal.
SECTION 2
1.dismissal is at the
instance of the plaintiff;
2. dismissal is a matter of
procedure,
without
prejudice
unless
otherwise stated in the
order of the court or on
plaintiffs
motion
to
dismiss
his
own
SECTION 3
1.dismissal
is
not
procured
by
plaintiff
though
justified
by
causes imputable to him;
2.dismissal is a matter of
evidence, an adjudication
on the merits;
3. dismissal is without
prejudice to the right of
the
defendant
to
prosecute
his
counterclaim
on
the
same or separate action.
RULE 18
PRE-TRIAL
Section 1. When conducted.
PRE-TRIAL- a mandatory conference and
personal confrontation before the judge between
the parties litigant and their respective counsel,
called by the court after the last pleading has
been filed and before trial for the purposes
mentioned in Rule 18 Section 2.
The plaintiff must promptly move ex parte

that the case be set for pre-trial , and this he
must do upon the service and filing of the last
pleading
The pre-trial and trial on the merits of the

case must be held on separate dates.
Section 2. Nature and purpose.
Pre-trial is mandatory.
Section 4. Appearance of parties.
When non-appearance of a party may be

excused:
(a) If a valid cause is shown therefor
(b) If a representative shall appear in his behalf
fully authorized in writing to:
1. Enter into an amicable settlement
2. Submit to alternative modes of dispute
resolution
3. Enter into stipulations or admissions of
facts and of documents
A special authority for an attorney to

compromise is required under Sec. 23, Rule
138. Under Art. 1878 (c) of the Civil Code, a
special power of attorney is required.
19

Section 5. Effect of failure to appear.

EFFECT
OF
NON-APPEARANCE
OF
PLAINTIFF:
-cause for dismissal of the action, with prejudice,
unless otherwise ordered by the court.
EFFECT
OF
NON-APPEARANCE
OF
DEFENDANT:
- cause to allow the plaintiff to present evidence
ex parte and the court to render judgment on the
basis thereof.
defendants are
already original
parties to the pending
suit
has an interest
therein, which in
whole or in part, is not
disputed by the other
parties to the action.
defendants are
being sued precisely
to implead them
Section 6. Pre-trial brief.
The interest which entitles a person to

intervene in a suit must be on the matter in
litigation and of such direct and immediate
character that the intervenor will either gain or
lose by the direct legal operation and effect of
the judgment.
It is the mandatory duty of the parties to
Section 2. Time to intervene.
seasonably file their trial briefs under the

conditions and with the sanctions provided
therein.
The contents of the order shall control the

subsequent course of the action, unless
modified before trial to prevent manifest
injustice.
* FOR CHART ON PRE-TRIAL PLS. SEE
FIGURE V.4. ON THE NEXT PAGE (19-A).
WHEN TO FILE: at any time before rendition

of judgment by the trial court.
JUSTIFICATION: Before judgment is
rendered, the court, for good cause shown, may
still allow the introduction of additional evidence
and that is still within the liberal interpretation of
the period for trial
Since no judgment has yet been rendered,
the matter subject of the intervention may still be
readily resolved and integrated in the judgment
disposing of all claims in the case.
RULE 19
INTERVENTION
RULE 21
SUBPOENA
Section 7. Record of pre-trial.
Section 1. Who may intervene.
Who may intervene:

(a) One who has legal interest in the matter in
litigation
(b) One who has legal interest in the success of
either of the parties,
(c) One who has an interest against both
parties
(d) One who is so situated as to be adversely
affected by a distribution or other disposition
of property in the custody of the court or of
an officer thereof
FACTORS TO BE CONSIDERED BY THE
COURT:
(a) Whether or not the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties
(b) Whether or not the intervenors rights may
be fully protected in a separate proceeding
INTERVENTION
INTERPLEADER
an ancillary action.
proper in any of the
four situations
mentioned in this
Rule.
an original action.
presupposes that
the plaintiff has no
interest in the subject
matter of the action or
SUBPOENA
an order to appear
and testify or to
produce books and
documents
may be served to a
non-party
needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee
SUMMONS
order to answer
complaint
served on the
defendant
does not need tender
of kilometrage and
other fees
SUBPOENA AD TESTIFICANDUM a process

directed to a person requiring him to attend and
to testify at the hearing or the trial of an action,
or at any investigation conducted by competent
authority, or for the taking of his deposition.
SUBPOENA DUCES TECUM a process
directed to a person requiring him to bring with
him books, documents, or other things under his
control.
Section 3. By whom issued.
Who may issue:

(a) Court before whom the witness is required
to attend
20

(b) Court of the place where the deposition is to

be taken
(c) Officer or body authorized by law to do so in
connection with investigations conducted by
said officer or body
(d) Any Justice of the SC or of the CA in any
case or investigation pending within the
Philippines
Section 4. Quashing a subpoena.
Subpoena duces tecum may be quashed

upon proof that:
(a) It is unreasonable and oppressive;
(b) The articles sought to be produced do not
appear prima facie to be relevant to the
issues;
(c) The person asking for the subpoena does
not advance the cost for the production of
the articles desired.
Subpoena ad testificandum may be quashed

if the witness is not bound thereby.
Rationale of discovery: to enable the parties

to obtain the fullest possible knowledge of the
issues and evidence long before the trial to
prevent such trial from being carried on in the
dark.
Section 1. Depositions
action, when may be taken.
pending
DEPOSITION is a written testimony of a

witness given in the course of a judicial
proceeding in advance of the trial or hearing
upon oral examination or in response to written
interrogatories and where an opportunity is
given for cross-examination.
Depositions are intended as a means to

compel disclosure of facts resting in the
knowledge of a party or other person, which are
relevant in a suit/proceeding.
CLASSIFICATIONS OF DEPOSITIONS:
Section 10. Exceptions.
(a) Depositions on ORAL EXAMINATION and

Depositions
upon
WRITTEN
INTERROGATORIES
(b) Depositions DE BENE ESSE
(those taken for purposes of a pending
action); and,
(c) Depositions
IN
PERPETUAM
REI
MEMORIAM (Rule 24)
(those taken to perpetuate evidence for
purposes of anticipated action, or in the
event of further proceedings in a case on
appeal, and to preserve it against danger of
loss.)
Consequences of an unjustifiable refusal to

obey a subpoena:
a. The court which issued the subpoena may
issue a warrant for the arrest of the witness
and make him pay the cost of such warrant
and seizure, if the court should determine
that this disobedience was willful and
without just cause;
b. The refusal to obey a subpoena shall be
deemed a contempt of the court issuing it.
When provisions of Sec. 8 (issuance of

warrant of arrest to bring witness to court or
officer, and payment by witness of the cost of
such warrant and seizure, if his failure was
willful and without just excuse) and Sec. 9
(Contempt), not applicable:
a. Witness resides more than 100 km from his
residence to the place where he is to testify by
the ordinary course of travel (generally, by
overland transportation)[VIATORY RIGHT]
b. Permission of the court in which the detention
prisoners case is pending was not obtained.
RULE 23
DEPOSITIONS PENDING ACTION
Rules 23-28 provide for the DIFFERENT
MODES OF DISCOVERY.
DISCOVERY - is the procedure by which one
party in an action is enabled to obtain before trial
knowledge of relevant facts and of material
evidence in the possession of the adverse party
or of a witness.
This Rule regulates depositions de bene

esse
Discovery is NOT MANDATORY but failure

to avail carries sanctions in Rules 25 and 26.
LIMITATIONS:
(a) examination is conducted in bad faith
(b) examination is conducted in such a manner
as to annoy, embarrass or oppress the
person subject to the inquiry
(c) when the inquiry touches upon irrelevant or
encroaches upon the recognized domains of
privilege.
WHEN TAKEN:
WITH LEAVE OF COURT
(a) after jurisdiction has been obtained over any
defendant or over the property which is the
subject of the action and BEFORE answer.
(b) Deposition of a person confined in prison.
WITHOUT LEAVE OF COURT(a) AFTER answer and deponent
confined in prison.
is
not
21

Section 3. Examination and crossexamination.

Section 4. Use of depositions.
(c) any person authorized to administer oaths,

as stipulated by the parties in writing
Section 12. Commission or letters

rogatory.
Where the witness is available to testify and

the situation is not one of those excepted under
Sec. 4, his deposition is inadmissible in
evidence and he should be made to testify.
It can be used as evidence by a party for

any purpose under the specific conditions in
Sec. 4.
DEPONENT
any
a party or any one

who at the time of the
deposition was an
OFFICER,
DIRECTOR, or
MANAGING AGENT
of a public or private
corp., partnership, or
association which is a
party
witness, whether or
not a party
USE
by any party for
contradicting or
impeaching the
testimony of deponent
as witness
by an adverse party
for any purpose
COMMISSION
LETTERS
ROGATORY
issued to a non-judicial
foreign officer who will
directly take the
testimony
issued to the
appropriate judicial
officer of the foreign
country who will direct
somebody in said
foreign country to take
down testimony
applicable rules of
procedure are those of
the foreign court
requested to act
resorted to if the
execution of the
commission is refused
in the foreign country
leave of court is
necessary
applicable rules of
procedure are those of
the requesting court
resorted to if
permission of the
foreign country is
given
leave of court is not
necessary
Section 18. Motion to terminate or limit

examination.
by any party for any

purpose if the court
finds the 5 instances
occurring
SCOPE OF INQUIRY IN DEPOSITIONS:
1. Matter which is relevant to the subject of the

pending action;
2. Not privileged
3. Not restricted by a protective order
WHEN TO FILE:
(a) any time during the taking of the deposition

(b) on motion or petition of any party or of the
deponent; or
(c) upon showing that the examination is
conducted in
1.
2.
bad faith
in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party
RULE 24
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
Section 10. Persons before whom

depositions may be taken within the
Philippines.
Section 11. Persons before whom
depositions may be taken in foreign
countries.
Section 1. Depositions before action;

petition.
Persons before whom depositions may be

take:
WITHIN THE PHILIPPINES:

(a) judge
(b) notary public
(c) any person authorized to administer oaths,
as stipulated by the parties in writing
OUTSIDE THE PHILIPPINES:
(a) on notice, before a secretary of embassy or

legation, consul general, consul, viceconsul, or consular agent of the Phil.
(b) before such person or officer as may be
appointed by commission or letters rogatory
This Rule regulates the taking of depositions

in perpetuam rei memoriam.
Depositions under this Rule are also taken
conditionally, to be used at the trial only in case
the deponent is not available.
Depositions under this Rule do not prove the

existence of any right and the testimony
perpetuated is not in itself conclusive proof,
either of the existence of any right nor even of
the facts to which they relate, as it can be
controverted at the trial in the same manner as
though no perpetuation of testimony was ever
had. However, in the absence of any objection
to its taking, and even if the deponent did not
22

testify at the hearing, the perpetuated testimony

constitutes prima facie proof of facts referred to
in the deposition.
Section 6. Use of deposition.
confused with the provisions of Rule 29 which

provides for sanctions or other consequences
upon a party who refuses or fails to COMPLY
with discovery procedures duly availed of by
opponent.
If deposition is taken under this Rule, it may

be used in any action involving the SAME
SUBJECT MATTER subsequently brought.
Section 7. Depositions pending appeal.
Sec. 7 is the procedure in perpetuating

testimony AFTER JUDGMENT IN THE RTC and
DURING THE PENDENCY OF AN APPEAL.
RULE 25
INTERROGATORIES TO PARTIES
Section 1. Interrogatories to parties;
service thereof.
PURPOSE of Written Interrogatories: to

elicit facts from any adverse party (answers may
also be used as admissions of the adverse
party)
Written interrogatories and the answers

thereto must both be FILED and SERVED.
Section 4. Number of Interrogatories.

Section 5. Scope and use of
interrogatories.
A party may serve written interrogatories:
The justification for this provision is that the

party in need of relevant facts having foregone
the opportunity to inquire into the same from the
other party through means available to him, he
should not thereafter be permitted to unduly
burden the latter with courtroom appearances or
other cumbersome processes.
Unless a party had been served written

interrogatories, he may not be compelled by the
adverse party:
(a) to give testimony in open court, or
(b) give a deposition pending appeal. The only
exception is when the court allows it for
GOOD CAUSE shown and to prevent a
failure of justice.
Depositions Upon
Written Interrogatories
to Parties under Rule
23 Sec. 25
As to Deponent
1. party or ordinary
witness
As to Procedure
2. with intervention of the
officer authorized by the
Court to take deposition
As to Scope
3. direct, cross, redirect,
re-cross
Interrogatories
4. no fixed time
WITHOUT LEAVE OF COURT after

answer has been served, for the first set of
interrogatories.
WITH LEAVE OF COURT before answer
has been served (reason: at that time, the
issues are not yet joined and the disputed facts
are not yet clear, when more than one set of
interrogatories is to be served.)
A judgment by default may be rendered

against a party who fails to answer written
interrogatories
The various modes of discovery are clearly

intended to be cumulative, and not alternative or
mutually exclusive.
Section 6. Effect of failure to serve

written interrogatories.
The provision and Rule 26 are directed to

the party who fails and refuses to RESORT to
the discovery procedures, and should not be
Interrogatories to
Parties under Rule 25
1. party only
2.no intervention. Written
interrogatories
are
directed to the party
himself
3. only one
interrogatories
set
of
4. 15 days to answer
unless
extended
or
reduced by the court
RULE 26
ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.
PURPOSE OF written request for admission

is to expedite trial and relieve the parties of the
costs of proving facts which will not be disputed
on trial and the truth of which can be ascertained
by reasonable inquiry.
Section 2. Implied Admission.
The effect of a failure to make a reply to a

request for admission is that each of the matters
of which an admission is requested is deemed
admitted.
Each matter must be denied SPECIFICALLY

under oath setting forth in detail the reason why
he cannot truthfully admit or deny.
23

The answer to a request for admission

under this rule may be made by the lawyer of
the party and not necessarily the party himself.
Section 3. Effect of admission.
Section 4. Waiver of privilege.
USE: An admission under this section is for

the purpose of the pending action only and
cannot be used in other proceedings.
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
Section 1. Motion for production or
inspection; order.
Production of documents affords more

opportunity for discovery than a subpoena duces
tecum because in the latter, the documents are
brought to the court for the first time on the date
of the scheduled trial wherein such documents
are required to be produced.
The test to be applied in determining the

relevancy of the document and the sufficiency of
their description is one of reasonableness and
practicality.
PRODUCTION OR
INSPECTI
ON OF
DOCUME
NTS OR
THINGS
SUBPOENA DUCES
TECUM
essentially a mode of
discovery
means of compelling
production
of
evidence
may be directed to a
person whether a
party or not
may be issued upon
an
ex
parte
application.
the Rules is limited to

the parties to the
action
the order under this
Rule is issued only
upon motion with
notice to the adverse
party
Where the party examined requests and

obtains a report on the results of the
examination the consequences are:
(a) he has to furnish the other party a copy of
the report of any previous or subsequent
examination of the same physical and
mental condition, and
(b) he waives any privilege he may have in that
action or any other involving the same
controversy regarding the testimony of any
other person who has so examined him or
may thereafter examine him.
RULE 29
REFUSAL TO COMPLY WITH MODES
OF DISCOVERY
SANCTIONS:
1.
2.
3.
4.
RULE 28
PHYSICAL AND MENTAL
EXAMINATION OF PERSONS
Section 1. When examination may be
ordered.
Since the results of the examination are

intended to be made public, the same are not
covered by the physician-patient privilege.
The mental condition of a party is in

controversy in proceedings for GUARDIANSHIP
over an imbecile or insane person, while the
physical condition of the party is generally
involved in PHYSICAL INJURIES cases.
5.
6.
Contempt;
Payment of reasonable fees;
The matters regarding which the questions
were asked, character or description of land
et al., be taken to be in accordance with the
claim of party obtaining the order;
Prohibiting the refusing party to produce
evidence or support or oppose designated
claims or defenses;
To strike out pleadings, order the dismissal
of the action or stay the action until
compliance or to render judgment by
default.
Order the arrest of the refusing party except
in cases of physical or mental examination.
RULE 30
TRIAL
Sec. 3 Requisites of motion to postpone
trial for absence of evidence.
There must be an affidavit showing:
(1) materiality or relevance of such evidence;
and
(2) due diligence in procuring it.
If the adverse party admits the facts for which
evidence is to be presented, the trial will not be
postponed.
24

compromise but the other party refused the

offer.
Section 5. Order of trial.
Section 9. Judge to receive evidence;

delegation to clerk of court.
Figure V.5
Plaintiff presents evidence
Defendant presents
evidence to support his
defense/counterclaim/c
ross-claim/third party
complaint
Third party
defendant
presents
evidence, if
any
Defendant files:
demurrer to
evidence
Court grants
motion:
renders
dismissal
Rebuttal evidence
by parties
AS A GENERAL RULE: the judge must

himself personally receive and resolve the
evidence of the parties.
Court
denies
motion,
continues
with hearing
After presentation
of evidence;
1.oral arguments;
2.submission of
memoranda
However, the reception of such evidence

may be delegated under the following
conditions:
(a) The delegation may be made only in
defaults or ex parte hearings, or an
agreement in writing by the parties.
(b) The reception of evidence shall be made
only by the clerk of that court who is a
member of the bar.
(c) Said clerk shall have no power to rule on
objections to any question or to admission of
evidence or exhibits; and
(d) He shall submit his report and transcripts of
the proceedings, together with the
objections to be resolved by the court, within
10 days from the termination of the hearing.
RULE 31
CONSOLIDATION OR SEVERANCE
DECISION
Section 1. Consolidation.
Unless the court for special reasons

otherwise directs, the trial shall be limited to the
issues stated in the pre-trial order.
Section 6. Agreed
facts.
statements
of
This is known as STIPULATION OF FACTS

and is among the purposes of a pre-trial. The
parties may also stipulate verbally in open court.
Such stipulations are binding unless relief
therefrom is permitted by the court on good
cause shown, such as error or fraud. But
counsel cannot stipulate on what their respective
EVIDENCE consists of and ask that judgment
be rendered on the basis of such stipulation.
Stipulations of facts are not permitted in

actions for ANNULMENT OF MARRIAGE and
for LEGAL SEPARATION.
Section 8. Suspension of actions.
Art. 2030 of the Civil Code. Every civil

action or proceeding shall be suspended
1. If willingness to discuss a possible
compromise is expressed by one or both
parties; or
2. If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
PURPOSE: to avoid multiplicity of suits, guard

against oppression or abuse, prevent delay,
clear congested dockets, simplify the work of the
Trial Court and save unnecessary costs and
expenses.
GENERAL RULE: Consolidation is discretionary
with the Trial Court.
3 WAYS OF CONSOLIDATING CASES:
(a) by RECASTING THE CASES ALREADY
INSTITUTED, conducting only one hearing
and rendering only one decision;
(b) by CONSOLIDATING THE EXISTING
CASES and holding only one hearing and
rendering only one decision; and
(c) by HEARING ONLY THE PRINCIPAL CASE
and suspending the hearing on the others
until judgment has been rendered in the
principal case. (Test-case method).
Consolidation of cases on appeal and

assigned to different divisions of the SC and the
CA is also authorized. Generally, the case which
was appealed later and bearing the higher
docket no. is consolidated with the case having
the lower docket no.
Section2. Separate trials.
25

plaintiffs evidence
insufficient, it will
grant the demurrer
by dismissing the
complaint.
The
judgment
of
dismissal
is
appealable by the
plaintiff. If plaintiff
appeals
and
judgment
is
reversed by the
appellate court, it
will decide the case
on the basis of the
plaintiffs evidence
with
the
consequence that
the
defendant
already loses his
right to present
evidence no res
judicata
in
dismissal due to
demurrer
When the separate trial of claims is

conducted by the court under this section, it may
render separate judgments on each claim.
RULE 32
TRIAL BY COMMISSIONER
Section 1. Reference by consent.
COMMISSIONER- a person to whom a cause
pending in court is referred, for him to take
testimony, hear the parties and report thereon to
the court, and upon whose report, if confirmed,
judgment is rendered.
RULE 33
DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence.
DEMURRER TO
EVIDENCE
it is presented after
the plaintiff has rested
his case
the ground is based
on insufficiency of
evidence
2 Scenarios
MOTION DENIED
movant shall have the
right to present his
evidence
denial is
INTERLOCUTORY.
Sec. 1 , Rule 36 (that
judgment should state
clearly and distinctly
the facts and the law
on which it is based),
will not apply.
1.
2.
CIVIL CASES
defendant need not
ask for leave of
court;
if the court finds
MOTION TO
DISMISS
presented before a
responsive pleading
(answer) is made by
the defendant
it may be based on
any of those
enumerated in Rule
16
MOTION GRANTED
BUT REVERSED ON
APPEAL
movant is deemed to
have waived his right to
present evidence. The
decision of the
appellate court will be
based only on the
evidence of the plaintiff
as the defendant loses
his right to have the
case remanded for
reception of his
evidence.
order of the court is
an ADJUDICATION ON
THE MERITS, hence,
the requirement in Sec.
1, Rule 36 should be
complied with.
CRIMINAL CASES
1. leave of court is
necessary so that
the accused could
present
his
evidence
if
the
demurrer is denied
3. if the court finds the
3.
if court
demurrer,
defendant
present
evidence
denies
will
his
prosecutions
evidence
insufficient, it will
grant the demurrer
by
rendering
judgment acquitting
the
accused.
Judgment
of
acquittal
is
not
appeallable ;double
jeopardy sets-in
3. if court denies the

demurrer:
a. if demurrer was
with leave, accused
may present his
evidence
b. if the demurrer
was without leave,
accused
can
no
longer present his
evidence
and
submits the case for
decision based on
the
pr1osecutions
evidence
RULE 34
JUDGMENT ON THE PLEADINGS
Section 1. Judgment on the pleadings.
A judgment on the pleadings must be on
motion of the claimant. However, if at the pretrial the court finds that a judgment on the
pleadings is proper, it may render such judgment
motu proprio.
RULE 35
SUMMARY JUDGMENTS
SUMMARY
JUDGMENT
JUDGMENT
ON THE
PLEADINGS
JUDGMENT
BY
DEFAULT
(Rule 9)
based on the
pleadings,
depositions,
admissions
and affidavits
based solely
on the
pleadings.
based on
the complaint
and
evidence, if
presentation
is required.
26

available to
both plaintiff
and
defendant
generally
available only
to the plaintiff,
unless the
defendant
presents a
counterclaim.
there is
there is no
no genuine
issue or there is
issue between
an admission of
the parties, i.e. material
there may be
allegations.
issues but these
are irrelevant
10-day notice
required
May be
interlocutory or
on the merits
3-day notice
required
On the merits
available
to plaintiff.
the force of law and is conclusive between

parties. Not appealable.
no issues as
no answer is
filed by the
defending
party.
3-day notice
rule applies.
On the merits
RULE 36
JUDGMENTS, FINAL ORDERS AND
ENTRY THEREOF
Section 1. Rendition of judgments and
final orders.
The power to amend a judgment is inherent

to the court before judgment becomes final and
executory. Once a judgment has attained finality
(expiration of the period to appeal), no further
amendment or correction can be made by the
court except for clerical errors or mistakes.
A JUDGMENT is considered RENDERED:

the filing of the signed decision constitutes the
rendition of a judgment.
This includes an
amended decision because an amended
decision is a distinct and separate judgment and
must follow the established procedural rule.
Attack of judgment maybe direct or collateral

Direct attack
a.before finality
1.motion for new trial or reconsideration
2.appeal
b. after finality
1. relief from judgment, Rule 38
2. annulment of judgment, Rule 47
PROMULGATION OF JUDGMENT
JUDGMENTfinal
consideration
and
determination by a court of the rights of the
parties, upon matters submitted to it in an action
or proceeding.
Judgment is the result, or the dispositive part of
the decision while the opinion gives the grounds
for the decision.
Court Renders Decision
Losing Party
REQUISITES OF A JUDGMENT:
1. It should be in writing, personally and
directly prepared by the judge
2. Must state clearly and distinctly the facts
and the law on which it is based
3. It should contain a dispositive part and
should be signed by the judge and filed with
the clerk of court.
Accepts
decision without
further contest
If no appeal
is taken or
did not avail
of remedies,
judgment
becomes
final and
executory
PARTS OF A JUDGMENT:
1. Opinion of the court (findings of fact and
conclusions of law)
2. Disposition of the case (dispositive portion)
3. Signature of the judge
PROMULGATION- the process by which a
decision is published, officially announced, made
known to the public or delivered to the clerk of
court for filing, coupled with notice to the parties
or their counsel
MEMORANDUM DECISION- the judgment or
final resolution of the appellate court may adopt
by reference the findings of facts and
conclusions of law contained in the decision of
the trial court.
A judgment based on a compromise

otherwise known as judicial compromise has
Filing appeal within

15 days from notice
of judgment
Within 15 days from

notice of judgment:
Motion for
reconsideration; or
motion for new trial
Court
maintains
decision
Court grants
motion:
1.modifies
decision; or
2.grants
new trial
Losing party may appeal

within the remaining period
Section 4. Several judgments.
Several judgment is proper where the

liability of each party is clearly separable and
distinct from his co-parties such that the claims
against each of them could have been the
subject of separate suits, and the judgment for
or against one of them will not necessarily affect
the other.
27

A several judgment is not proper in actions

against solidary debtors.
Section 6. Separate Judgments

Is proper when more than one claim for relief is
presented in an action and a determination as to
the issues material to the claim has been made.
The action shall proceed as to the remaining
claims.
RULE 37
NEW TRIAL OR RECONSIDERATION
Order denying
motion for new trial
Second motion for new trial based

on grounds not existing or
available when 1st motion was
filed
Appeal from the judgment or final

order and assign as one of the
errors the denial of the motion for
new trial
Order denying a motion for

new trial is not appealable
Section 1. Grounds of and period for

filing
motion
for
new
trial
or
reconsideration.
MOTION FOR A
NEW TRIAL
MOTION FOR
RECONSIDERATION
The grounds are:

fraud, accident,
mistake or excusable
negligence or newly
discovered evidence
which could not, with
reasonable diligence,
have discovered and
produced at the trial,
and which if presented
would probably alter
the result
Second motion may
be allowed
If a new trial is
granted the trial court
will set aside the
judgment or final order
the grounds are: the

damages awarded are
excessive, that the
evidence is insufficient
to justify the decision or
final order, or that the
decision or final order is
contrary to law.
Second motion from

same party is prohibited
if the court finds that
excessive
damages
have been awarded or
that the judgment or
final order is contrary to
the evidence or law, it
may
amend
such
judgment or final order
accordingly
New Trial - the rehearing of a case already

decided by the court but before the judgment
rendered thereon becomes final and executory,
whereby errors of law or irregularities are
expunged from the record, or new evidence is
introduced, or both steps are taken.
Mistake generally refers to mistake of fact

but may also include mistakes of law where, in
good faith, the defendant was misled in the
case.
REQUISITES
for
newly-discovered
evidence:
(a) Must have been discovered after trial
(b) Could not have been discovered and
produced at the trial
(c) If presented, would alter the result of the
action
Otherwise it is called forgotten evidence.
Section 2. Contents of motion for new

trial or reconsideration and notice
thereof.
A motion suspends or tolls the running of the

reglementary period for appeal except when the
same is pro-forma.
PRO-FORMA MOTION - when it does not
comply with Rule 15 and Rule 37, e.g. it does
not point out specifically the findings or
conclusions of the judgment as are contrary to
law, making express reference to the testimonial
or documentary evidence or to the provisions of
law alleged to be contrary to such findings or
conclusions, and is merely intended to delay the
proceedings or if there is no affidavit of merit.
Section 6. Effect of granting of motion

for new trial.
When motion is granted, the original

judgment is thereby vacated and the action
stands for trial de novo, but the recorded
evidence taken upon the former trial so far as
the same is material and competent to establish
the issues, shall be used at the new trial taking
the same.
RULE 38
RELIEF FROM JUDGMENTS,
ORDERS, OR OTHER PROCEEDINGS
NEW TRIAL/
RECONSIDERATION
Must be filed within
the appeal period.
Judgment not yet
final.
RELIEF FROM
JUDGMENT
Judgment is final
within 60 days after
petitioner learns of the
judgment to be set
aside and within 6
months after such
judgment is entered.
28

A legal right
More on equity
FAME
+
Newly
Discovered Evidence
Judgment on final order
FAME only
Relief from judgment/
order on other
proceeding
TWO HEARINGS:
(a) Hearing to determine whether the judgment
be set aside
(b) If yes, a hearing on the merits of the case
RULE 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
EXECUTION OF JUDGMENT
Judgment is
executed by
motion within 5
years from date
of its entry
Execution
is
a
matter of right after
expiration of period
to appeal if no
appeal is perfected
If the winning party

does not move for
execution w/in 5yrs.
but before 10yrs.
From the date of
entry of judgment,
the same can only be
revived by means of
a new action/petition.
Discretionary execution
upon good reasons
stated in a special
order after due hearing
which gives it life. It cannot vary the terms of the

judgment it seeks to enforce
FINAL JUDGMENT OR ORDER- one which
disposes of the whole subject matter or
terminates the particular proceedings or action,
leaving nothing to be done by the court but to
enforce by execution what has been determined.
TEST
TO
DETERMINE
WHETHER A
JUDGEMENT OR ORDER IS FINAL OR
INTERLOCUTORY: The test is whether the
judgment or order leaves nothing more for the
court to do with respect to the merits of the case.
SPECIAL JUDGMENT one that requires the
performance of an act other than:
1. The payment of money
2. The sale of real or personal property
REFUSAL OF EXECUTION OF A FINAL AND
EXECUTORY JUDGMENT
GENERAL RULE:
court cannot refuse
execution
UNLESS: (UCNID)
1. Execution is UNJUST OR IMPOSSIBLE
2. Equitable grounds like a CHANGE IN
SITUATION
3. Judgment NOVATED by parties
4. Execution is enjoined
5. Judgment has become DORMANT
1.
2.
3.
4.
5.
Quashal of writ proper when:

Improvidently issued
Defective in substance
Issued against the wrong party
Judgment already satisfied
Issued without authority
Sheriff enforces writ of execution
Losing party is made to indemnify thru:

1. payment with interest;
2. levy and sale of personal property;
3. levy and sale of real property;
4. delivery of personal and real property
EXECUTION remedy provided by law for the

enforcement of a final judgment.
AGAINST WHOM ISSUED: execution can only
issue against a party and not against one who
has not had his day in court.
WRIT OF EXECUTION : judicial writ issued to
an officer authorizing him to execute the
judgment of the court.
ESSENTIAL REQUISITE OF A WRIT OF
EXECUTION: a writ of execution to be valid,
must conform strictly to the decision or judgment
Remedies of the losing party:

1. Petition for relief (Rule 38) or
2. Direct or Collateral Attack against judgment
Section 3.
Execution.
Stay Of
Discretionary
SUPERSEDEAS BOND- one filed by a

petitioner and approved by the court before the
judgment becomes final and executory and
conditioned upon the performance of the
judgment appealed from in case it be affirmed
wholly or in part.
Supersedeas bond guarantees satisfaction

of the judgment in case of affirmance on appeal,
not other things like damage to property pending
the appeal
The court may, in its discretion, order an
execution before the expiration of the time within
which to appeal provided:
1. There is a motion for execution filed by the
winning party
29

2. There is notice of said motion to the adverse

party; and
3. There are good reasons stated in a special
order after due hearing.
GENERAL RULE: an order of execution is not
appealable otherwise there would be no end to
the litigation between the parties.
EXCEPTIONS:
1. When the terms of the judgment are not very
clear;
2. When the order of execution varies with the
tenor of the judgment
Section 4. Judgments Not Stayed By

Appeal: [I R A S]
-
INJUNCTION
RECEIVERSHIP
ACCOUNTING
SUPPORT
Such other judgments declared to
be immediately executory unless
otherwise ordered by the trial court
Section 6. Execution By Motion Or

Independent Action.
Judgment for support does not become

dormant, thus it can always be executed by
motion
3-year period may be extended by the
conduct of judgment debtor.
A revived judgment is a new judgment thus

another 5/10-year period to execute and revive
is given the party.
When the party REFUSES TO COMPLY,

court can appoint some other person at the
expense of the disobedient party and the act
done shall have he same effect as if the required
party performed it, the disobedient party incurs
no liability for contempt.
Section 11. Execution Of Special

Judgments.
when judgment requires the performance of
any act other than for money and delivery of
property.
the writ of execution shall be served upon the
party required to obey the same and such party
may be punished for contempt if he disobeys.
Section 12. Effect Of Levy

Execution As To Third Parties:
LEVY- act by which an officer sets apart or

appropriates a part of the whole of the property
of the judgment debtor for purposes or the
execution sale. The levy on execution shall
create a lien in favor or the judgment creditor
over the right, title and interest of the judgment
debtor in such property at the time of the levy.
GARNISHMENT - act of appropriation by the
court when property of debtor is in the hands of
third persons garnishment.
ATTACHMENT
refers to corporeal
property in the
possession of the
judgment debtor..
Section 7. Execution In Case Of Death

Of Party.
If the obligor dies AFTER entry but BEFORE

LEVY on his property, execution will be issued
for recovery of real or personal property or
enforcement of a lien thereon. But for a sum of
money, judgment cannot be enforced by writ but
as a claim against his estate/probate
proceedings.
If he dies AFTER LEVY has been made,

execution sale proceeds.
Section 10. Execution Of Judgments

For Specific Act.
If party REFUSES TO VACATE PROPERTY,

remedy is NOT contempt. The Sheriff must oust
the party. But if demolition is involved, there
must be a special order.
If party REFUSES TO DELIVER, sheriff will

take possession and deliver it to winning party.
on
GARNISHMENT
refers to money,
stocks, credits and
other
incorporeal
property which belong
to judgment debtor but
is in the possession or
under the control of a
third person
Section 15. Notice Of Sale Of Property

On Execution.
Losing party can participate in the public

auction by choosing properties to be auctioned
first but he cannot purchase. He can however
prevent the sale by paying the award.
Section 16. Proceedings Where

Property Claimed By Third Person.
REMEDIES of third party claimant:
1. summary
hearing before the court
which authorized the excution;
2. TERCERIA or third party claim filed with
the sheriff;
3. Action for damages on the bond posted
by judgment creditors; or
4. Independent reinvidicatory action
30

the remedies are cumulative and may be

resorted to by third party claimant independently
of or separately from the others.
If winning party files a bond, it is only then

that the sheriff can take the property in his
possession. IF NO BOND, cannot proceed with
the sale.
Section 19. How Property Sold On

Execution; Who May Direct Manner And
Order Of The Sale.
Remedy against an irregular sale is

MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which issued the
writ.
Section 27. Who May Redeem Real

Property Sold.
(a) The judgment obligor or his successor in
interest
(b) REDEMPTIONER who is a creditor having a
subsequent lien on the property.
MAY THE RIGHT OF REDEMPTION BE
LEVIED UPON AND SOLD FOR THE
SATISFACTION OF ANOTHER JUDGMENT?
YES. The right of redemption is a
PROPERTY RIGHT which may be sold
voluntarily.
WHAT IS THE EFFECT OF REDEMPTION
BY THE JUDGMENT DEBTOR?
The effect of the sale is terminated and he
is restored to his estate.
Section 30. Proof Required Of

Redemptioner.
WHEN CAN REDEMPTION BE MADE?
1. BY THE JUDGMENT OBLIGOR.
Within
one (1) year from the date of registration of
the certificate of sale.
2. BY THE REDEMPTIONER:
(a) Within one (1) year from the date of
registration of the certificate of sale; or
(b) Within sixty (60) days from the last
redemption by another redemptioner
CAN PERSONAL PROPERTY BE THE
SUBJECT OF REDEMPTION?
NO. Only REAL PROPERTY may be
redeemed.
IS THE PERIOD OF REDEMPTION
SUSPENDED BY AN ACTION TO ANNUL THE
FORECLOSURE SALE? NO.
CAN THE PERIOD TO REDEEM BE
EXTENDED?
YES. The court may award an additional

period to redeem under special circumstances
such as when the period has been interrupted
by an action by the judgment creditor to destroy
the right of redemption. However, financial
hardship is not a ground to suspend it.
CAN REDEMPTION BE PAID IN OTHER
FORMS THAN CASH?
YES. The rule is liberality in allowing
redemption (aid rather than defeat the right) and
it has been allowed in the case of a cashiers
check, certified bank checks and even checks.
SHOULD THE PAYMENT BE FOR THE
WHOLE AMOUNT? YES.
CAN THERE BE REDEMPTION BY AN
OFFER TO REDEEM?
NO. The offer to redeem must be
accompanied with a bona fide tender or delivery
of the redemption price. However, a formal offer
to redeem with a tender is not necessary where
the right to redeem is exercised through the
filing a complaint to redeem in the courts, within
the period to redeem.
WHAT IS THE EFFECT OF FAILURE TO
GIVE NOTICE ON ASSESSMENTS, TAXES OR
LIENS?
The property may later be redeemed without
paying such assessments, taxes or liens.
TO MAKE A REDEMPTION, ARE PROOFS
NECESSARY?
1. REDEMPTION BY THE JUDGMENT
OBLIGOR? NO. The records already show
this.
2. REDEMPTION BY A REDEMPTIONER?
YES. He must show the person or officer
from whom he seeks to redeem either a:
(a) If he redeems upon a FINAL ORDER OF
JUDGMENT, a CERTIFIED COPY of the
JUDGMENT OF FINAL ORDER;
(b) If he redeems upon a MORTGAGE OR
OTHER
LIEN,
a
CERTIFIED
MEMORANDUM of the records thereof
(c) If he redeems upon an ASSIGNMENT, an
ORIGINAL OR CERTIFIED copy of the
ASSIGNMENT;
(d) And in all cases, an AFFIDAVIT executed by
him or his agent, showing the amount
actually due on the lien.
WHAT IS THE EFFECT OF FAILURE BY THE
REDEMPTIONER TO SHOW PROOF?
Ground for refusal to allow redemption. The
act of the Sheriff in accepting the tender even
when there is in fact no lien does not cure the
defect.
Section 32. Rents, Earnings, And

Income
Of
Property
Pending
Redemption.
31

WHAT RIGHTS CAN THE JUDGMENT

DEBTOR EXERCISE?
1. REMAIN IN POSSESSION
2. COLLECT rents and profits
3. Cannot be EJECTED
4. USE the property in the same manner it was
previously used
5. MAKE necessary repairs
WHAT IS THE REMEDY OF THE
PURCHASER IF THE JUDGMENT DEBTOR
COMMITS ACTS OF WASTE?
On application with or without notice, the
court may RESTRAIN the commission of waste
Section 33. Deed and Possession To

Be Given At Expiration Of Redemption
Period; By Whom Executed Or Given.
WHAT HAPPENS IF THERE IS NO
REDEMPTION?
The purchaser is entitled to a
CONVEYANCE AND POSSESSION of the
property. He is substituted to and acquires all
the rights, title, interest and claims of the
judgment obligor to the property at the time of
levy.
WHAT IS THE DIFFERENCE BETWEEN THE
DEED OF CONVEYANCE GIVEN TO THE
PURCHASER AFTER THE EXPIRATION OF
THE REDEMPTION PERIOD AND THE
CERTIFICATE OF SALE GIVEN TO HIM AFTER
THE SALE?
The deed of conveyance is what operates to
transfer to the purchaser whatever rights the
judgment debtor had in the property. The
certificate of sale after execution sale merely is a
memorial of the fact of sale and does not
operate as a conveyance.
The purchaser acquires no better right than
what the judgment debtor has in the property
levied upon. Thus, if the judgment debtor had
already transferred the property executed prior
to the levy and no longer has an interest in the
property, the execution purchaser acquires no
right..
WHAT HAPPENS WHEN POSSESSION IS
WITH THIRD PARTIES?
When the judgment debtor or his successorin-interest are in possession the court has
jurisdiction to issue a writ of possession to the
purchasers but not when a third person is
involved. The procedure is for the court to order
a hearing and determine the nature of such
adverse possession.
Section 34. Recovery Of Price If Sale Is

Not Effective; Revival Of Judgment.
IN WHAT CASES MAY A PURCHASER

RECOVER THE PURCHASE PRICE FROM
THE JUDGMENT CREDITOR?
1. When the purchaser or his successor-ininterest
FAILS
TO
RECOVER
POSSESSION of the property or
2. Purchaser after having acquired possession
is evicted due to:
(a) Irregularities in the proceedings concerning
the sale
(b) Reversal or setting aside of judgment
(c) The fact that the property was exempt from
execution
(d) A third person has vindicated his claim to the
property
WHAT ARE THE REMEDIES OF THE
JUDGMENT
CREDITOR
IN
AID
OF
EXECUTION?
1. If the execution is returned unsatisfied, he
may cause examination of the judgment
debtor as to his property and income
(Section 36)
2. He may cause examination of the debtor of
the judgment debtor as to any debt owed by
him or to any property of the judgment
debtor in his possession (Section 37)
3. If after examination, the court finds that
there is property of the judgment debtor
either in his own hands or that of any
person, the court may order the property
applied to the satisfaction of the judgment
(Section 37)
4. If the court finds the earnings of the
judgment debtor are more than sufficient for
his familys needs. It may order payment in
installments (Section 40)
5. The court may appoint a receiver for the
property of the judgment debtor not exempt
from execution or forbid a transfer or
disposition or interference with such
property (Section 41)
6. If the court finds that the judgment debtor
has an ascertainable interest in real property
either as mortgagor, mortgagee, or
otherwise, and his interest can be
ascertained without controversy, the court
may order the sale of such interest.
(Section 42)
7. If the person alleged to have the property of
the judgment debtor or be indebted to him,
claims an adverse interest in the property, or
denies the debt, the court may authorize the
judgment-creditor to institute an action to
recover the property, forbid its transfer and
may punish disobedience for contempt
(Section 43)
Section 46. When Principal Bound By

Judgment Against Surety.
WHAT IF THE JUDGMENT IS RENDERED
AGAINST A SURETY?
The principal is bound by the same judgment
from the time he has NOTICE of the action or
32

proceeding and has been given an opportunity

at the suretys request, to join the defense.
Section 47. Effect Of Judgment Or

Final Orders.
Sec. 47 refers to judgments which are
considered as conclusive and may be rebutted
directly by means of relief from judgment or
annulment of judgment or indirectly by offering
them in evidence under the parole evidence
rule.
WHAT DOCTRINE IS INVOLVED IN THE
EFFECT OF JUDGMENTS?
RES JUDICATA. Final judgments on the
merits by a court of competent jurisdiction is
conclusive as to the rights of the parties or their
privies in all later suits on points determined in
the former judgment.
WHAT ARE THE REQUISITES OF RES
JUDICATA?
1. A FINAL judgment or order
2. JURISDICTION over the subject matter and
the parties by the court rendering it
3. Judgment UPON THE MERITS
4. Between the two cases:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
WHEN IS THERE A JUDGMENT ON THE
MERITS?
When the judgment is such that if finally
disposes of the case.
THERE IS IDENTITY OF PARTIES:
1. The parties in the first action are the same
as in the second;
2. When the parties in the second are
successors-in-interest of those in the first
such as heirs or purchasers acquiring title
after the first action.
THERE IS IDENTITY OF SUBJECT MATTER:
If in the second case, the same thing is involved
or included in that involved in the first case.
The first judgment

constitutes as an
ABSOLUTE BAR TO
ALL MATTERS directly
adjudged and those
that might have been
adjudged.
MAY A VOID JUDGMENT BE INVOKED AS

RES JUDICATA? NO.
WHAT ABOUT A VOIDABLE ONE? YES.
WHAT ABOUT A JUDGMENT OBTAINED
THROUGH FRAUD? The judgment cannot
amount to res judicata.
Section 48. Effect Of Foreign Judgment

Or Final Orders:
WHAT IS THE EFFECT OF FOREIGN
JUDGMENTS?
Provided that the foreign tribunal had
jurisdiction:
(a) IN CASE OF JUDGMENT AGAINST A
SPECIFIC THING,
the judgment is
CONCLUSIVE upon the TITLE TO THE
THING;
(b) IN CASE OF A JUDGMENT AGAINST A
PERSON, the judgment is PRESUMPTIVE
EVIDENCE of a right as between the parties
and their successors-in-interest by a
subsequent title. In both instances, the
judgment may be repelled by evidence of
want of jurisdiction, notice, collusion, fraud
or clear mistake of law or fact.
MAY A DOMESTIC JUDGMENT BE
IMPEACHED BY EVIDENCE OF CLEAR
MISTAKE OF LAW OR FACT?
NO. Under the doctrine of res judicata, no
matter how erroneous a judgment may be, once
it becomes final, it cannot be corrected. The
only grounds are lack of jurisdiction, collusion or
fraud.
RULE 40
APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL
COURTS
THERE IS IDENTITY OF CAUSE OF

ACTION:
There is identity of cause of action when the two
actions are based on the same delict or wrong
committed by the defendant even if the
remedies are different.
The first judgment is

conclusive only as to
matters directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted.
Section 1. Where to Appeal.

APPEAL TO THE RTC
BAR BY FORMER
JUDGMENT
CONCLUSIVENESS
OF JUDGMENT
There is identity of
parties, subject matter
and causes of action
There is ONLY identity

of PARTIES AND
SUBJECT MATTER
Mode of Appeal Notice of Appeal within

fifteen (15) days from receipt of decisin.
After an appeal to the RTC has been
perfected, the MTC loses its jurisdiction over the
33

case and any motion for the execution of the

judgment should be filed with the RTC.
ORDINARY
APPEAL
The judgment on appeal of the RTC is

immediately executory, without prejudice to a
further appeal that may be taken therefrom.
The Summary Rules no longer apply when the
cases is on appeal.
Section 2. When to Appeal.

Section 3. How to Appeal.
Residual power of the court prior to the
transmittal of the original record or record on
appeal:
1. to issue orders for the preservation of the
rights of the parties which do not involve
matters litigated by appeal;
2. to approve compromise prior to the transmittal
of the record;
3. permit appeal by an indigent;
4. order execution pending appeal under Rule
39, Sec.2 ( motion for execution was filed
before the expiration of the period to appeal )
Matter of right
Discretionary
all the records are

elevated from the
court of origin
Notice of record on
appeal is filed with
the court of origin
No records are
elevated unless the
court decrees it
Filed with the CA
When to appeal:
1. notice of appeal: within 15 days after notice
of the judgment or final order
2. record of appeal: within 30 days after notice
of judgment or final order
When is record on appeal needed?
for special proceedings such as probate and
in such other cases where multiple appeals are
allowed as in partition and in expropriation
1.
2.
APPEAL FROM MTC TO RTC

Appeal decision of MTC by filing notice of
appeal in the same MTC within 15 days
from receipt of judgment
15 days from perfection of appeal, MTC

clerk transmits record to RTC
PETITION FOR
REVIEW
3.
4.
HOW TO APPEAL:
By Notice of Appeal:
file a notice of appeal with the trial court.
the notice of appeal must indicate:
(a) parties
(b) judgment or final order appealed from
(c) material date showing timeliness of
appeal
A copy served on the adverse party.
Payment in full of docket fees and other
lawful fees
Section 4. Perfection of Appeal; effect

thereof.
Notice to parties that an appeal is being

taken from the decision of MTC
Within 15 days from receipt of the

notice of appeal:
appellant submits memorandum to the
RTC
appellee files his own memorandum,
15 days from receipt of appellants
memorandum
RTC may affirm, reverse, modify

decision
If
uncontested,
judgment is
entered in the
book of
entriesAPPEAL - an
ORDINARY
Any party may

appeal by filing a
petition for review
with the RTC
appeal by notice of
appeal from a judgment or final order of a lower
court on questions of fact and law.
When is the appeal deemed perfected?

(a) by notice of appeal: as to him, upon the filing
of the notice of appeal in due time
(b) by record on appeal: as to him, upon the
approval of the record on appeal filed in due
time
What is the effect of a perfected appeal?
The court loses jurisdiction upon the
perfection or approval of appeal and when the
period of appeal for other parties expire.
However, prior to the transmittal of the original or
the record on appeal, such court may issue
orders for the protection and preservation of the
rights of the parties involving any matter not to
be
litigated
by
the
appeal,
approve
compromises, permit appeals of indigent
litigants, or order execution pending appeal and
allow withdrawal of the appeal.
Section 8. Appeal from orders

dismissing case without trial; lack of
jurisdiction
If lower court dismissed case without trial on
the merits:
RTC may:
34

(a) Affirm, or
(b) Reverse, in which case, it shall remand the
case for further proceedings.
If dismissal is due to lack of jurisdiction over
the subject matter:
RTC may:
(a) Affirm; if RTC has jurisdiction, shall try the
case on the merits as if the case was
originally filed with it, or
(b) Reverse, in which case, it remand the case
for further proceedings.
If the case was tried on the merits by the
lower court without jurisdiction over the
subject matter:
RTC shall not dismiss the case if it has original
jurisdiction, but shall decide the case, and shall
admit amended pleadings or additional evidence
appeal
(appeal by writ
of error)
review
[Rule 42]
review on
certiorari
[Rule 45]
Case is decided
by the RTC in its
original
jurisdiction
Appealed to the
CA
Case is
decided by the
MTC.
Appealed to
the RTC.
Petition for
review with
the CA
File a verified
petition for
review with
the CA. Pay
the docket and
lawful fees,
and P 500 as
deposit for
costs with the
CA. Furnish
RTC and
adverse party
copy of such
(R 42).
The case
raises only a
question of
law
File a notice of
appeal or a
record on
appeal with the
court of origin
(RTC) and give
a copy to the
adverse party.
RULE 41
APPEAL FROM REGIONAL
TRIAL COURTS
Section 1. Subject of Appeal
What cannot be appealed? Clue: ( WE PAID)
1. WITHOUT PREJUDICE - Order dismissing
an action without prejudice
2. EXECUTION - Order of Execution
3. PENDING- Judgments or final orders for or
against one or more of several parties or in
separate claims while the main case is
pending
4. APPEAL-Orders disallowing or dismissing
an Appeal
5. INTERLOCUTORY orders
6. DENIALS-Orders denying P.M.S. (Petition for
relief, Motion for new trial or reconsideration
and motion to Set aside a judgment, by
consent, confession or compromise on the
ground of fraud, mistake, duress or any
ground vitiating consent.)
Remedy in cases where appeal is not

allowed:
Special civil action of certiorari or prohibition if
there is lack or excess of jurisdiction or grave
abuse of discretion or mandamus if there is no
performance of duty.
INTERLOCUTORY ORDER - an order given
between the commencement and the end of the
suit which decides some point or matter but is
not a final decision of the whole controversy or a
final disposition of the case (as long as
something else remains to be done).
A judgment based only on compromise is

not appealabe and is immediately executory
Section 2. Modes of appeal.

Ordinary
Petition for
Within 15 days
from the notice
of the judgment
for notice of
appeal and
within 30 days
for records on
appeal. The
period for filing
is interrupted by
a timely motion
for reconsideration or new trial.
Section 7.
appeal.
Within 15 from
notice of the
decision to be
reviewed or
from the
denial of a MR
or new trial.
File a verified
petition for
review on
certiorari with
the SC (R 45)
Pay docket
and lawful
fees and P
500 for costs.
Submit proof of
service of a
copy to the
lower court
and adverse
party.
Within 15
days from
notice of the
judgment or
order or
denial of the
MR or new
trial.
Approval of record on
What is the procedure if the appeal is through

a record on appeal?
1. file record on appeal
2. appellee may file an objection within 5 days
from his receipt thereof
3. if there is no objection the court may:
(a) approve it as presented
(b) direct its amendment on its own or upon
the motion of the adverse party
4. if an amendment is ordered the appellant
must redraft the record within the time
ordered or if there is time, within 10 days
from receipt
5. submit the record for approval with notice on
the adverse party
The period to appeal is mandatory and
jurisdictional. Failure to appeal on time makes
the decision final and executory and deprives
the appellate court of jurisdiction. However in
few instances the court has allowed due course
to such appeals on strong and compelling
reasons of justice.
Petition for
35

RULE 42
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS
Section 1. How appeal taken; time for
filing.
* PLEASE SEE FIGURE V.9
Section 3. Effect of failure to comply
with requirements
Failure to comply with the requirements on

form such as certification against forum
shopping and non-payment of docket, lawful
fees and deposit for costs and failure to show
proof of service of the same petition to the
adverse party are grounds for dismissal.
Section 4. Action on the petition
Outright dismissal allowed - Petition for

review is not a matter of right but discretionary
on the CA. It may only give due course to the
petition if it shows on its face that the lower court
has committed an error of fact and/or law.
ACTIONS on the petition. Court may
(1) require respondent to file comment;
(2) dismiss the petition if it finds that
it is patently without merit
prosecuted manifestly for delay
the
questions
raised
are
unsubstantial
Judgment stayed. Questions of fact, of law or
both.
It is merely discretionary on the CA to order the
elevation of the records. This is because until
the petition is given due course, the trial court
may still issue a warrant of execution pending
appeal and in some cases such as ejectment
and those of Summary Procedure, the
judgments are immediately executory. It is only
when the CA deems it necessary that the Clerk
of the RTC will be ordered to elevate the records
of the case.
RULE 43
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
AGENCIES TO THE CA
Judgments and final orders or resolutions of

the NLRC are reviewable by the COURT OF
APPEALS in an original action for certiorari
under Rule 65 (St. Martin Funeral Home vs.
NLRC, Sept. 16, 1998).
Same as Rule 42 except that judgment is not
stayed unless the CA directs otherwise.
RULE 44
ORDINARY APPEALED CASES
Section 7. Appellants brief.
Section 8. Appellees brief.
Section 9. Appellants reply brief.
Failure to file appellant's brief on time is a

ground for dismissal of the appeal.
If a motion to dismiss an appeal has been

filed, it suspends the running of the period for
filing the appellant brief, as the same would be
unnecessary should the motion be granted.
The failure of the appellant to make specific

assignment of errors in his brief or page
references to the record as required in this
section is a ground for dismissal of his appeal.
Section 15. Questions that may be

raised on appeal.
Questions of fact and law. Cannot raise purely
legal issues.
BRIEF vs. MEMORANDUM

BRIEF
MEMORANDUM
ordinary appeals
filed within 45 days

contents specified by
Rules
certiorari, prohibition,
mandamus, quo
warranto and habeas
corpus cases
within 30 days
shorter, briefer, only
one issue involved - no
subject index or
assignment of errors
just facts and law
applicable
RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT
RTC/ Sandiganbayan or CA
renders a decision
Any party files a petition for review on

certiorari within 15 days from notice of
final judgment or final order of lower court
or notice of denial of the motion for
reconsideration or for new trial
Appellant serves copies of petition on

adverse parties and to the lower court,
and pay the corresponding docket fees
36

SC may:
dismiss the petition; or
require the appellee to
comment
If given due course, parties may
submit memoranda
SC may:
Affirm, reverse or modify
judgment of the lower court
Section 1. Filing of petition with

Supreme Court.
Appeals to the SC can be taken from a

judgment or final order or resolution of the CA,
the Sandiganbayan, the RTC or such other
courts as maybe authorized by law and only by
verified petition for review on certiorari on
questions of law except only in appeals from
judgments of the RTC in criminal cases wherein
the penalty imposed is life imprisonment or
reclusion perpetua which shall be elevated by
ordinary appeal, or wherein the death penalty is
imposed which is subject to automatic review.
QUESTIONS OF
LAW
doubt or controversy
as to what the law is
on certain facts
if the appellate court

can determine the
issue raised without
reviewing or
evaluating the
evidence
can involve questions
of interpretation of the
law with respect to
certain set of facts
QUESTIONS OF
FACT
doubt or difference
arises as to the truth
or falsehood of facts,
or as to probative
value of the evidence
presented
the determination
involves evaluation or
review of evidence
query invites the

calibration of the
whole evidence
considering mainly the
credibility of
witnesses, existence
and relevancy of
specific surrounding
circumstances and
relation to each other
and the whole
probabilities of the
situation
EXCEPTIONS to CONCLUSIVENESS OF
FACTS:
1. When the finding is grounded entirely on
speculations, surmise or conjecture;
2. When inference made is manifestly absurd,
mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of discretion in
the appreciation of facts;
5. When the findings of fact are conflicting;
6. When the CA in making its findings went
beyond the issues of the case and the same
is contrary to both the admissions of
appellants and appellees;
7. When the findings of fact of the CA are at
variance with those of the trail court, the SC
has to review the evidence in order to arrive
at the correct findings based on the record;
8. When the findings of fact are conclusions
without citation of specific evidence on
which they are based;
9. When the facts set forth in the petition as
well as in the petitioners main and reply
briefs are not disputed by the respondents;
10. The findings of fact of the CA is premised on
the supposed evidence and is contradicted
by the evidence on record;
11. When
certain
material
facts
and
circumstances have been overlooked by the
trial court which, if taken into account, would
alter the result of the case in that they would
entitle the accused to acquittal.
Certiorari under Rule 45 vs. certiorari under Rule
65 ( special civil action)
CERTIORARI
CERTIORARI
UNDER RULE 45
UNDER RULE 65
petition is based on
questions of law
It is a mode of appeal
involves the review of
the judgment award
or final order on the
merits
must be made within

the
reglementary
period
stays the judgment or
order appealed from
As a general rule, the findings of fact of the

CA are final and conclusive and cannot be
reviewed on appeal to the SC.
the petitioner and the
petition raises the

issue as to whether
the lower court acted
without jurisdiction or
in excess of
jurisdiction or with
grave abuse of
discretion
Special civil action
directed against an
interlocutory order of
the court or where
there is no appeal or
any other plain,
speedy or adequate
remedy
filed not later than 60
days from notice of
judgment, order or
resolution
appealed
from
unless a writ of
preliminary injunction
or temporary
restraining order is
issued does not stay
the challenged
proceeding
the parties are the
37

respondent are the
original parties to the
action, and the lower
court or quasi-judicial
agency is not
impleaded
Motion for
reconsideration is not
required
the court is in the

exercise of its
appellate jurisdiction
and power of review
aggrieved party
against the lower
court or quasi-judicial
agency and the
prevailing parties
Motion for reconsideration
or for new trial is
required
If a motion for
reconsideration or new
trial is filed, the period
shall not only be
interrupted but another
60 days shall be given
to the petitioner ( SC
Admin. Matter 002-03 )
court exercises
original jurisdiction
RULE 46
ORIGINAL CASES
Section 1. Title of cases.
Section 2. To what actions applicable.
Under B.P. Blg. 129, the CA has original

jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus and quo
warranto, and auxiliary writs or processes,
whether or not they are in aid of its appellate
jurisdiction, and it has exclusive original
jurisdiction over actions for annulment of
judgments of Regional Trial Courts.
Section 4. Jurisdiction over person,

how acquired.
The court acquires jurisdiction:
(1) Over the petitioner by filing of the petition.
(2) Over the respondent by the service on the
latter of the order or resolution indicating
the courts initial action on the petition and
NOT by the service on him of the petition.
Section 5. Action by the court.

PROCEDURAL OUTLINE (original cases in the
Court of Appeals)
1) Filing of the petition
2) Order
to
acquire
jurisdiction
over
respondents OR Outright dismissal for
failure to comply to requirements also form
and payment of docket and other legal fees.
3) Require respondents to file COMMENT
within 10 days from NOTICE
4) Court may require the filing of a REPLY or
such other pleadings as it may deem
necessary
5) Determination of FACTUAL ISSUES
the court may delegate the reception of
evidence on such issues to any of its members.
RULE 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Section. 1. Coverage.
Annulment of judgment is a remedy in law

independent of the case where the judgment
sought to be annulled was rendered and may be
availed of though the judgment has been
executed.
One important condition for the availment of

this remedy - the petitioner failed to move for
new trial in, or appeal from, or file a petition for
relief against, or take other appropriate remedies
assailing the questioned judgment or final order
or resolution through no fault attributable to him.
If he failed to avail of those other remedies
without sufficient justification, he cannot resort to
annulment provided in this Rule, otherwise he
would benefit from his own inaction or
negligence.
Section. 2. Grounds for annulment.

GROUNDS for annulment of judgment
1. extrinsic fraud or collateral fraud
2. lack of jurisdiction
EXTRINSIC OR COLLATERAL FRAUD is any
fraudulent act of the prevailing party in the
litigation which is committed outside of the trial
of the case, whereby the defeated party has
been prevented from exhibiting fully and fairly
presenting his side of the case.
examples:
when the lawyer of the defeated party
corruptly sells out his clients interest
false promise of compromise
when the defendant never had
knowledge of the suit or being kept in
ignorance by acts of the plaintiff
Section. 3. Period for filing action.
Extrinsic fraud - 4 years from discovery.
Lack of jurisdiction before it is barred by laches
or estoppel.
Section. 5. Action by the court.
The rule allows the CA to dismiss the

petition outright as in special civil actions.
For the court to acquire jurisdiction over the

respondent, the rule requires the issuance of
summons should prima facie merit be found in
the petition and the same is given due course.
Section 7. Effect of judgment.
38

Annulment based on lack of jurisdiction original action may be refiled.

Based on extrinsic fraud - trial court will try the
case.
Section. 10. Annulment of judgments or
final order of Municipal Trial Courts by

RTC.
regular procedure applies.
of
A resolution of the Court of Appeals

dismissing the appeal and remanding the case
to the trial court for further proceedings is merely
interlocutory, hence
a motion
for its
reconsideration filed year later may be
entertained and granted
Section 3. Withdrawal of Appeal
RULE 48
PRELIMINARY CONFERENCE
Section 3. Binding effect
results of the conference.
tribunals has appropriate appellate jurisdiction

will be allowed. Also, elevating such appeal by
the wrong mode of appeal shall be a ground for
dismissal.
the
Court of Appeals may dismiss the appeal

outright even without motion. The remedy if
dismissed for improper appeal is to refile it in the
proper forum but has to be within the prescribed
period.
In the CA, this procedural device may be

availed of not only in original actions but also in
cases on appeal wherein a new trial was
granted on the ground of newly discovered
evidence. The CA can act as a trier of facts,
hence the preliminary conference authorized is a
convenient adjunct to such power and function.
or
oral
Motions in the SC and the CA do not contain

notices of hearing as no oral arguments will be
heard in support thereof; and if the appellate
court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of
appeal
With the exception of Section 1 (b) dismissal

of an appeal is directory and not mandatory.
Other grounds for the dismissal of an appeal

are
a. by agreement of the parties, as where the
case was amicably settled by them
b. where the appealed case has become moot
or academic
c. where the appeal is frivolous or dilatory
Section 2. Dismissal of improper

appeal to the Court of
Appeals
Section 5. Form of Decision
RULE 49
ORAL ARGUMENT
Section 3. No
hearing
argument for motions.
RULE 51
JUDGMENT
No transfer of appeals, erroneously taken to

it or to the Court of Appeals, whichever of these
The requirement for the statement of facts

and the law refers to a decision or for that matter
a final resolution. The same are not required on
minute resolutions since these usually dispose
of the case not on it s merits but on procedural
or technical considerations. Although the court
may, if it feels necessary, briefly discuss the
matter on the merits in an extended resolution.
With respect to petitions for review and

motions for reconsideration, the Constitution
merely requires a statement of the legal basis
for the denial thereof or refusal of due course
thereto. The court may opt, but it is not required
to issue an extended resolution thereon.
Section 6. Harmless Error

The court, at every stage of the proceeding,
must disregard any error or defect which does
not affect the substantial rights of the parties
such as error in admission or exclusion of
evidence or error or defect in the ruling or order.
Section 8 Questions that may be

decided
Only errors claimed and assigned by a party

will be considered by the court, except errors
affecting its jurisdiction over the subject matter.
To this exception has now been added errors
affecting the validity of the judgment appealed
from or the proceedings therein.
Even if the error complained of by a party is

not expressly stated in his assignment of errors
but the same is closely related to or dependent
39

on an assigned error and properly argued in his

brief such error may now be considered by the
court.
RULE 52
MOTION FOR RECONSIDERATION
The rules now prohibit a second motion for

reconsideration
5. Support Pendente Lite (Rule 61)
Distinctions :
INJUNCTION
1. directed against a
party in the action
2. does not involve
jurisdiction of the
court
Sec. 3 provides a time limit of 90 days for

the resolution of a motion for reconsideration
filed with the Court of Appeals from the date the
same was submitted for resolution, which is
normally the filing of the last pleading required
by the rules of court or the expiration of such
period.
Rules now requires the service of the motion

to the adverse party
RULE 53
NEW TRIAL
Filing of a motion for new trial is at any time

after the perfection of the appeal from the
decision of the lower court and before the Court
of Appeals losses jurisdiction over the case
The ground is newly discovered evidence

which could not have been discovered prior to
the trial in the court below.
ORIGINAL CASES
Rule specifically states what cases may be

originally filed with the Supreme Court
1. petition for certiorari, prohibition, mandamus,
quo warranto, habeas corpus;
2. disciplinary proceedings against members of
the judiciary and attorneys
3. cases affecting ambassadors, other public
ministers and consuls
B. APPEALED CASES
Mode of Appeal
In criminal cases where the penalty
imposed is death or reclusion perpetua, an
appeal made to the Supreme Court is through a
notice of appeal filed with the RTC in all other
cases, an appeal made to the supreme court is
through a petition for review on certiorari.
PROVISIONAL REMEDIES
The following are the provisional remedies

provided for in the Rules of Court
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
40
3. it may be the main

action itself or just a
provisional remedy
Distinctions :
REPLEVIN
PROHIBITION
1. Directed against a
court, tribunal or a
person exercising
judicial powers
2. Based on the round
that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction
3. Always the main
action
ATTACHMENT
1. may be sought only

when the principal
action is recovery of
personal property.
1. Available even if
recovery of property is
only incidental to the
relief sought.
2. Can be sought only

when defendant is in
actual possession of
the property.
2. May be resorted to
even if the property is
in possession of a
third person.
3. Only extends to
personal property
capable of manual
delivery.
3. Extends to all types

of property whether
real, personal or
incorporeal.
4. Cannot be availed
of when property is in
custodia legis
4. Can be availed of
even if property is in
custodia legis.
5. Available before
defendant answers
5. From
commencement but
before entry of
judgment
6. Fixed by the court
6. Bond is double the

value of the property
SPECIAL CIVIL ACTIONS

WHAT ARE SPECIAL CIVIL ACTIONS
UNDER THE RULES OF COURT?
SPECIAL CIVIL
ACTIONS INITIATED
BY COMPLAINTS
SPECIAL CIVIL
ACTIONS INITIATED
BY
PETITIONS
Interpleader
Expropriation
Foreclosure of Real
Estate Mortgage
Partition
Forcible Entry and
Unlawful Detainer
Declaratory Relief
Review of Adjudication
of the Comelec/COA
Certiorari, Prohibition,
Quo Warranto,
Mandamus
Contempt

VENUE
The venue of special civil actions is governed by
the general rules on venue, except when
otherwise indicated by a particular rule under the
rules on special civil action.(Rule 62-71)
Special civil actions are governed by the rules
on ordinary civil actions, subject to the specific
rules prescribed for a particular special civil
action. (Sec 3-a Rule 1)
RULE 62
INTERPLEADER
INTERPLEADER that special civil remedy
whereby a party against whom conflicting claims
are asserted and who claims no interest
whatsoever in whole or in part upon the same
subject matter, files an action to compel the
conflicting claimants to interplead and litigate
among themselves.
WHEN IS INTERPLEADER PROPER?
When a person has property in his possession
or an obligation to render and he has no claim
thereon or his interest is not disputed by the
claimants, he may come to court to have said
parties having conflicting claims to litigate
among themselves.
E.g. Warehouseman, with goods being claimed
by 2 or more persons
INTERPLEADER
1. an original action
INTERVENTION
1. ancillary action
2.
2. proper in any of the

four situations:
person having (a)
legal interest in the
matter in litigation, or
(b) success of either
of the parties, or (c)
an interest against
both, or (d) is so
situated as to be
adversely affected by
a distribution or other
disposition of property
in the custody of the
court or of an officer
thereof. (Rule 19,
Sec. 1.)
3. defendants are
original parties to the
pending suits
presupposes that
plaintiff
has
no
interest in the subject
matter of the action or
has interest therein in
whole or in part which
is not disputed by the
other parties
3. defendants are being

sued precisely to
interplead them
RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
ORDINARY ACTION
1.writ of execution is
available
DECLARATORY
RELIEF
1. no writ of execution
2.there is breach or
violation of right
3. motion to dismiss
- Rule 16 and 17
2. no breach or violation
3. additional ground for
Motion to Dismiss
-Rule 63 Sec. 4
REQUISITES FOR DECLARATORY RELIEF

1. justiciable controversy
2. adverse claim between real parties in interest
3. subject matter is a written instrument or a
statute
4. relief sought is merely a determination of the
rights and duties
5. there must be no breach or violation of
instrument or statute
6. no other available or sufficient remedy
REFUSAL TO GRANT DECLARATORY
RELIEF JUSTIFIED WHEN:
the decision will not terminate the controversy or
uncertainty giving rise to the action; or
the declaration is not necessary and proper
under the circumstances
The concept of a cause of action as an act or
omission by which a person violates the rights of
another under ordinary civil action does not
apply to declaratory relief as this special civil
action presupposes that there has been NO
breach or violation of the instrument or statute
involved.
Section 6. Conversion to ordinary

action:
If there is a breach or violation of the contract
DURING the pendency of the action.
Note: Declaratory relief is available BEFORE

there is actual breach or violation of an
instrument or statute.
However, Declaratory relief may still be availed
even if there is breach or violation IF:
1. it concerns future application of the instrument
or law [Gomez vs. Palomar (25 SCRA 827)] or
2. not objected by the adverse party and the
court has rendered judgement after full blown
trial [Matalin Coconut Producers (143
SCRA 1)]
RULE 64
REVIEW OF JUDGMENTS AND
FINAL ORDERS OR RESOLUTIONS
OF THE COMELEC AND THE COA.
TIME FOR FILING OF PETITION
30 days from notice of judgment, if motion for
reconsideration is denied, must file within the
remaining period but not less than 5 days in any
event reckoned from notice of denial
MODE OF REVIEW
41

This petition should be filed exclusively to the

Supreme Court.
This refers to Rule 65 as an independent civil
action and not a mode of appeal.
RULE 65
CERTIORARI, PROHIBITION AND
MANDAMUS
In a petition for certiorari, the court may order
dismissal of the complaint because it is part of
the incidental relief (Newsweek vs. IAC)
Can the Court of Appeals hear issues of
damages in certiorari proceedings?
YES. It is undisputable that courts have power to
try
and
decide
claims
for
damages
accompanying any of the types or kinds of cases
falling within their specified jurisdictions. (VitalGozon vs. CA 212 SCRA 235)
REQUISITES OF CERTIORARI:
1. there must be a controversy
2. the respondent is exercising judicial or quasijudicial functions
3. the respondents acted without or in excess of
its jurisdiction or acted with grave abuse of
discretion
4. there must be no other plain, speedy and
adequate remedy
REQUISITES OF PROHIBITION:
1. there must be a controversy
2. the respondent is exercising judicial, quasijudicial or ministerial functions
3. the respondents acted without or in excess of
its jurisdiction or acted with grave abuse of
discretion
4. there must be no other plain, speedy and
adequate remedy
REQUISITES OF MANDAMUS:
1. there must be a clear legal right or duty
2. the act to be performed must be practical
within the powers of the respondent to
perform such that if the writ of mandamus
was issued, he can comply with it, or else the
essence will be defeated
3. respondent must be exercising a ministerial
duty a duty which is absolute and
imperative and involves merely its execution
4. duty or act to be performed must be existing
a correlative right will be denied if not
performed by the respondents
5. no plain, speedy and adequate remedy in the
ordinary course of law
A writ of certiorari can never be issued by an
RTC against an administrative agency because
an administrative agency when exercising quasijudicial functions is considered as of the same
rank as the RTC. However, a writ a prohibition
may be issued by the RTC against
administrative agencies only when what is
42
sought to be prohibited is a ministerial function

but not quasijudicial function.
The jurisdiction of the Sandiganbayan over
certiorari proceedings is only in aid of the
appellate jurisdiction.
in aid of its appellate jurisdiction there
exists a right to appeal the judgment on the
merits to the Sandiganbayan
GROUNDS FOR DISMISSAL OF PETITION
1. patently without merit
2. prosecuted manifestly for delay
3. questions raised are too unsubstantial to
warrant further proceedings
As a GENERAL RULE, a motion for
reconsideration is an essential precondition for
the filing of a petition for certiorari as a form of a
plain, speedy, and adequate remedy. Its purpose
is to give the court a quo the opportunity to
correct itself. EXCEPT:
1. if the assailed judgment/order is a patent
nullity
2. when there is extreme urgency
3. if the issue has been raised and promptly
passed upon by the court
4. if the issue is purely a question-of-law
5. if for public purpose
6. if suggested by the court a quo
GENERAL RULE: If after judgment the petition
for certiorari is availed of when appeal is a plain,
speedy and adequate remedy then the petition
must fail for certiorari may not be resorted to as
a substitute for appeal, in such a case, appeal is
deemed abandoned.
EXCEPTION: If after judgment an appeal has
been perfected, a petition for certiorari relating to
certain incidents therein may prosper where the
appeal does not appear to be the plain, speedy
and adequate remedy. Hence, in this light,
appeal and certiorari are remedies that does not
exclude each other. (Lansang vs. CA, 184 SCRA
230)
Section 8. Effect of filing

Mere filing of petition for certiorari under this
rule will not stay execution of judgment.
Preliminary injunction must be sought.
Purpose
of
the
writ.
Act
sought
to
be
controlled.
CERTIORARI
Intended as
a corrective
remedy
annul and
modify
a
proceeding
Discretionary act
PROHIBITION
prevent the
commission
or carrying
out of an act
MANDAMUS
Intended
to compel
performance of an
act desired
Discretionary
and
ministerial
act
Ministerial
act

With
respect
to
respon
dent.
Exercising
judicial and
quasi-judicial
function
Judicial
and /or nonquasi judicial
function
Judicial
and
/or
non-quasi
judicial
function
Sandiganbayan may likewise issue writs of

certiorari prohibition and mandamus only in aid
of its appellate jurisdiction.
If a motion for reconsideration or new trial is
filed the period shall not only be interrupted but
another 60 days shall be given to the petitioner.
(SC Administrative Circular 002-03)
May mandamus be used to compel a
discretionary duty?
No. It is only applicable to a ministerial duty.
However, it can be used to the extent of
requiring the performance of a discretionary duty
to act but not to require performance of such
duty in a particular manner.
RULE 66
QUO WARRANTO
Section 1. Action by Government against
Individuals
QUO WARRANTO a proceeding or writ issued
by the court to determine the right to use an
office, position or franchise and to oust the
person holding or exercising such office, position
or franchise if his right is unfounded or if a
person performed acts considered as grounds
for forfeiture of said exercise of position, office or
franchise. Quo warranto may also be used
when an association acts as a corporation within
the
Philippines
without
being
legally
incorporated or without lawful authority so to act.
In the case of a legally incorporated entity, the
quo warranto action is now governed by the
Corporation Code.
QUO WARRANTO
Designed to try the right
or title to the office, the
right to the office itself is
disputed
MANDAMUS
Applicable only in cases
where the right to the
office is NOT in dispute
Quo Warranto in Electoral Proceeding

vs. Quo Warranto under Rule 66
QUO WARRANTO IN
ELECTORAL
PROCEEDINGS
- To contest the right of
an elected public
officer to hold public
office.
- an electoral
proceeding under the
Omnibus Elections
QUO WARRANTO
UNDER RULE 66
- prerogative writ by w/c
the govt. can call upon
any person to show by
what title he holds a
public office or
exercises a public
franchise
- three grounds:
usurpation, forfeiture,
or illegal association
Code for the exclusive

purpose of impugning
the election of a public
officer on the ground of
ineligibility or
disqualification to hold
the office
- petition must be filed
w/in 10 days from the
proclamation of the
candidate
- may be filed by any

registered candidate
for the same office
and, who, even if the
petition prospers,
would not be entitled to
that office.
- presupposes that the

respondent is already
actually holding office
and action must be
commenced within one
year from cause of
ouster or right of
petitioner to hold office
arose
- the petitioner must be
the government or the
person entitled to the
office and who would
assume the same if his
action succeeds.
Is the state also bound by the one-year period

to file quo warranto?
if the ground is CITIZENSHIP, the petition may
be filed anytime however, if the issue is illegality
of appointment the one-year period is
applicable.
WHO CAN FILE A PETITION FOR QUO
WARRANTO?
1. Solicitor general or prosecutor concerning
public offices, positions or franchises.
However, any person has locus standi in quo
warranto proceedings in questioning the
authority of public officials to hold offices
under unlawfully constituted municipalities.
This can be done because the creation of the
municipalities can be attacked directly or
collaterally unless they are de facto in nature.
(Municipality of Malabang vs. Benito)
2. Any person under his own name if it involves
private position and offices.
Section 11. Limitations.

PERIODS FOR FILING QUO WARRANTO
PROCEEDING AND ACTION FOR DAMAGES
ARISING THEREIN:
Within 1 year from the date the cause of
action arose (Sec. 11)
As for damages, within 1 year from date of
entry of judgment establishing the right under
the Quo Warranto proceeding.
Is the state bound by the 1 year period?
If the ground is non compliance of election
qualification, quo warranto can be filed at any
time
because
such
qualification
are
CONTINUING REQUIREMENTS.
-If the ground is unlawful appointment, the 1
year period will apply.
43

If there are conflicting claims on the property

or uncertainty with respect to its ownership, the
remedy is for the court to order any sum
awarded to be deposited with the Clerk of Court
for the benefit of the person adjudged in the
case. There is no need for an independent
action since the person entitled thereto will be
adjudged in the same proceeding.
RULE 67
EXPROPRIATION
Section 1. The complaint.
All properties can be expropriated except:
1. Money
2. Choses in action
Section 10. Rights of plaintiff after

judgment and payment.
NATURE:
EXPROPRIATION is the procedure to be
observed in the exercise of the right of eminent
domain.
When is the expropriation proper?
1. When owner refuses to sell
2. When he agrees to sell but an agreement as
to price cannot be reached
EMINENT DOMAIN is the right of the State to
acquire private property for public use upon the
payment of just compensation.
Section 2. Entry of plaintiff upon

depositing
value
with
authorized
government depositary.
PURPOSE OF PRELIMINARY DEPOSIT
UNDER SEC. 2
1. Provide damages if court finds plaintiff has no
right to expropriate
2. advance payment for just compensation
Section 3. Defenses and objections.

Only an ANSWER is allowed under Sec.3,
Rule 67, no other responsive pleadings are
allowed
Period to file an answer- period stated in the
summons. This is an exception to the period
provided under Rule 11.
DECLARATION OF DEFAULT
The defendant cannot be declared in default.
Failure to file an answer would result to the
courts judgment on the right to expropriate
without prejudice to the right to present evidence
on just compensation.
Section
5.
compensation.
Ascertainment
of
The appointment of commissioners is

mandatory and cannot be dispensed with.
(Meralco vs. Pineda)
Section 9. Uncertain
conflicting claims.
ownership;
WHEN
IS
TITLE
VESTED
IN
EXPROPRIATION:
If personal property, upon payment of just
compensation. (Sec. 10)
If real property, upon registration. (Sec. 13)
STAGES IN EXPROPRIATION
1. Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of the exercise in the context of the
facts involved, and
2. Determination of JUST COMPENSATION.
JUST COMPENSATION is equivalent to the

value of the property at the time of its taking. It
is the fair and full equivalent for the loss
sustained by the defendant.
FORMULA for determination
compensation
JS = Just Compensation
FMV = Fair Market Value
CD = Consequential Damages
CB = Consequential Benefits
of
just
JS = FMV+CD-CB
If CB>CD then, JS=FMV
Order of expropriation may be appealed by the
defendant by record on appeal. This is an
instance when multiple appeals are allowed.
WHEN MAY PLAINTIFF ENTER INTO
POSSESSION OF PROPERTY?
1. Upon filing of complaint, serving notice to
defendant and after depositing of assessed
value of property for taxation purposes with
authorized government depositary (Section 2)
2. Upon payment or tender of compensation
fixed by the judgment and payment of the
costs by plaintiff (Section10)
RULE 68
FORECLOSURE OF REAL ESTATE
MORTGAGE
PARTIES TO A JUDICIAL FORECLOSURE
1. mortgagee and mortgagor
2. successors in interest
3. junior encumbrancer/s
44

Section 1. Complaint in action for

foreclosure.
NATURE and PURPOSE
The remedy used for the satisfaction of any
monetary obligation, which a person owes to
another, by proceeding against a property used
to secure said obligation. Its purpose is to cut off
the rights of the owner of the property
mortgaged used to secure the obligation and all
rights acquired subsequent to said right.
EFFECT IF THE JUNIOR ENCUMBRANCER IS
NOT IMPLEADED:
a. his equity or right of redemption is not affected
or barred by the judgment of the court
(Sunlife Insurance vs. Diez)
b. his right is not affected because he is merely
a necessary party not an indispensable party
c. the remedy of the senior encumbrancer is to
file an INDEPENDENT proceeding to
foreclose the right to redeem by requiring the
junior encumbrancer to pay the amount
stated in the order of execution or to redeem
the property in a specified time
REMEDY OF MORTGAGEE AGAINST THE
BUYER OF THE MORTGAGED PROPERTY:
Mortgagee can substitute or implead the
buyer. (Sec. 19 Rule 3)
However, this rule shall not apply if : a) the
property is covered by the Torrens Sysytem; b)
buyer bought the property in good faith
To prevent this, the mortgagee must annotate a
notice of lis pendens in the certificate of title so
that subsequent buyer/s have notice.
Section 3. Sale of mortgaged property;

effect.
RULE 39
No need to confirm sale
RULE 68
Need to confirm sale
Mortgagor does not have the right to a notice

of sale after failure to pay debt (Sec. 3) because:
a. said notice is not litigable
b. issuance is ministerial - the order may be had
as a matter of course
However, the mortgagor is entitled to a notice
for the hearing of the confirmation order. Due
process requires that said notice be given so
that the mortgagor
a) can resist the motion; and
b) be informed that his right to redeem be cut off.
(Tiglao vs. Botones)
Does the mortgagor have the right to

redeem after confirmation of sale?
No, except when preferred bidder is the
mortgagee bank or a financial institution.
JUDGMENT OF
FORECLOSURE
Action Quasi in Rem
DEFICIENCY
JUDGMENT
Action in Personam
INSTANCES WHERE COURT CANNOT

RENDER DEFICIENCY JUDGMENT
1.Recto Law
2.non-resident mortgagor unless there is
attachment
3.Sec. 7 Rule 86 when mortgagor dies, the
mortgagee must file his claim with the probate
court
4.Third person owned the property mortgaged
but not solidarily liable with the debtor
JUDICIAL
FORECLOSURE
Requires court
intervention
There is only an equity
of redemption
Alternative remedy to
personal action for
the amount due to
satisfy mortgage
debt
EQUITY OF
REDEMPTION
- right of the defendant
mortgagor to
extinguish the
mortgage and retain
ownership of the
property by paying the
debt w/in 90-120 days
after the entry of
judgment or even after
the foreclosure sale but
prior to confirmation
- governed by Rule 68
EXTRAJUDICIAL
FORECLOSURE
No court intervention
necessary
Right of redemption
exists
Proper only when
provided for in the
contract
RIGHT OF
REDEMPTION
- right of the debtor, his
successor in interest or
any judicial creditor or
judgment creditor of
said debtor or any
person having a lien on
the property
subsequent to the
mortgage or deed of
trust under w/c the
property is sold to
redeem the property
w/in 1 year from the
registration of the
Sheriffs certificate of
foreclosure sale
- governed by Secs. 2931 of Rule 39
RULE 69
PARTITION
Section 1. Complaint in action for
partition of real estate.
REMEDY if mortgagor refuses to vacate the

property : writ of prossession
PARTITION - is the process of dividing and

assigning property owned in common among the
various co-owners thereof in proportion to their
respective interests in said property.
WHEN TITLE ACQUIRED:

The buyer acquires title upon confirmation of
sale.
PARTITION MAY BE:

1. Judicial procedure is under Rule 69
2. Extrajudicial no court intervention required
45

WHEN CAN PARTITION BE MADE

It can be made anytime and the right to demand
partition does not prescribe.
NATURE:
The partition of property may be made
voluntarily (by agreement) or compulsorily under
the Rules. Even if the parties had resorted to
judicial partition, they may still make an
amicable partition of the property.
TWO (2) ISSUES IN AN ACTION
PARTITION
1. Whether or not a co-ownership exists
2. How to actually partition the property
JUDGMENT
If actual
partition of
property is
made
If the whole
property is
assigned to
one of the
parties upon
his paying to
the others the
sum or sums
ordered by the
court
If the property
is sold and the
sale is
confirmed by
the court
CONTENTS
OF
JUDGMENT
The judgment
shall state
definitely, by
metes and
bounds and
adequate
description, the
particular
portion of the
estate
assigned to
each party
The judgment
shall state the
fact of such
payment and
the assignment
of the real
estate to the
party making
the payment
The judgment
shall state the
name of the
purchaser or
purchasers
and a definite
description of
the parcels of
real estate sold
to each
purchaser
FOR
EFFECT OF
JUDGMENT
To vest in each
party to the
act, in
severalty the
portion of the
estate
assigned to
him.
To vest in the
party making
the payment
the whole of
the real estate
free from any
interest on the
part of the
other parties to
the action
To vest the real
estate in the
purchaser or
purchasers
making the
payment/s,
free from the
claims of any
of the parties
to the action
The appointment of Commissioners is

mandatory unless there is an extrajudicial
partition between the parties.
RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
Section 1. Who
proceedings, and when.
may
institute
THREE KINDS OF ACTION FOR RECOVERY

OF POSSESSION
ACCION
ACCION
INTERDICTAL
PUBLICIANA
summary
action for the
recovery of
physical
possession
where the
dispossession
has not lasted
for more than
one year.
ejectment
proceeding
under Rule
70; either
forcible entry
or unlawful
detainer
a plenary
action for the
recovery of
the real right
of possession
when the
dispossession
has lasted for
more than
one year.
All cases of
forcible entry
and unlawful
detainer
irrespective of
the amount of
damages
or
unpaid rentals
sought to be
recovered
should
be
brought to the
MTC.
RTC has
jurisdiction
if
the value of
the
property
exceeds
P20,000
outside Metro
Manila;
P50,000 within
Metro Manila,
MTC has
jurisdiction
if
the value of
the
property
does
not
exceed
P20,000
outside Metro
Manila;
P50,000 within
Metro Manila
REINVIDICATORIA
an action for
the recovery
of ownership,
w/c
necessarily
includes the
recovery of
possession.
RTC has
jurisdiction
if
the value of the
property
exceeds
P20,000
outside Metro
Manila;
P50,000 within
Metro Manila,
MTC has
jurisdiction
if
the value of the
property does
not
exceed
P20,000
outside Metro
Manila;
P50,000 within
Metro Manila
Subject to Rules on Summary Procedure

FORCIBLE ENTRY
possession of the land
by the defendant is
unlawful from the
beginning as he
acquires possession
by Force, Intimidation,
Strategy, Threat or
Stealth (FISTS)
no previous demand
for the defendant to
vacate the premises
is necessary
the plaintiff must prove
that he was in prior
physical possession
of the premises until
he was deprived
thereof by the
defendant
the 1 year period is
generally counted
from the date of
actual entry on the
land
UNLAWFUL
DETAINER
possession is
inceptively lawful but it
becomes illegal by
reason of the
termination of his right
to the possession of
the property under his
contract w/ the plaintiff
demand is jurisdictional
if the ground is nonpayment of rentals or
failure to comply with
lease contract
the plaintiff need not
have been in prior
physical possession
period is counted from

the date of last
demand or last letter
of demand
ACCION
46

Section 2. Lessor to proceed against

lessee only after demand.
Demand under this section is jurisdictional.
The term VACATE need not be stated if there
are other terms definitively implying that the
tenant should vacate.(Golden Gate Realty
Corp. vs. CA)
TENOR OF DEMAND:
Pay
AND
Vacate
OR
Comply with the

conditions of
the lease
AND
Vacate
JUDGMENT on ejectment proceedings are

IMMEDIATELY EXECUTORY unless
the
defendant
(1) perfects his appeal,
(2) files sufficient supersedeas bond to pay the
rents, damages and costs accruing down to
the time of judgment appealed from; and
(3) deposits with the appellate court the amount
of rent due from time to time under the
contract or in the absence of a contract, the
reasonable value of the use and occupation
of the premises on or before the 10 th day of
each succeeding month or period.
However the RTC may issue a writ of
preliminary mandatory injunction to restore
plaintiff in possession if the court is satisfied that
defendants appeal is frivolous or dilatory or
appeal of plaintiff is prima facie meritorious,
upon motion of plaintiff within 10 days from
perfection of appeal.
If there is no formal contract between parties;
there can still be unlawful detainer because
ejectment
considers
implied
contracts.
Possession by tolerance creates an implied
promise to vacate the premises upon the
demand of the owner. (Peran vs. CFI of
Sorsogon)
The doctrine of tolerance applies only if
possession is lawful from the start. In short said
doctrine applies only to unlawful detainer cases
and not to forcible entry because:
1. the violation of the right in forcible entry
authorizes speedy redress;
2. if a forcible entry is allowed only after a
number of years then it may well be that no
action for forcible entry can really prescribe.
(Muoz vs. CA 214 SCRA 216)
Questions to be resolved in an action for
forcible entry are:
First, who had actual possession over the piece
of real property?
Second, was the possessor ousted therefrom
within one year from the filing of the complaint
by force, threat, strategy or stealth?
Third, does the plaintiff ask for restoration of

possession? (Dizon vs.Concina)
Section 17. Judgment.

The court can award damages in ejectment
cases provided the damages refer only to:
a. the fair and reasonable value of the use and
enjoyment of the property or the rent arising
from the loss of possession;
b. arrears;
c. liquidated damages since they are already
part of the contract
RULE 71
CONTEMPT
DIRECT CONTEMPT
INDIRECT CONTEMPT
summary in nature
punished after being

charged and hearing
GROUNDS:
a) Misbehavior of an
officer of a court in
the performance of
his official duties or
in his official
transactions.
b) Disobedience of or
resistance to a lawful
writ, process, order,
or judgment.
Unauthorized
intrusion to any real
property after being
ejected;
c) Any abuse or any
unlawful interference
w/ the proceedings
not constituting direct
contempt.
d) Any improper conduct
tending to degrade
the administration of
justice.
e) Assuming to be an
attorney or an officer
of the court w/o
authority.
f) Failure to obey a
subpoena
g) Rescue, or attempted
rescue, of a person or
property in the
custody of an officer.
GROUNDS:
a) misbehavior in the
presence of or so
near a court as to
obstruct or interrupt
the proceedings.
b) Disrespect towards
the court.
c) Offensive
personalities towards
others.
d) Refusal to be sworn
or to answer as
witness or to
subscribe an affidavit
or deposition.
If committed against:
a. RTC fine not
exceeding P2, 000
or imprisonment not
exceeding (10) days
or both.
b. MTC fine not
exceeding P200 or
imprisonment not
exceeding (1) day, or
both.
a. RTC fine not

exceeding P30,000 or
imprisonment not
exceeding 6 months
or both
b. MTC fine not
exceeding P5,000 or
imprisonment not
exceeding (1) month
or both
47

In special judgments under Rule 39 Section

11, the person required by the judgment to obey
the same may be punished for contempt if he
disobeys.
NO contempt however lies in
judgments for money (Section 9) and judgments
for specific act (Section 10) under Rule 39.
REMEDIES
judgments:
to
challenge
2.
However, judicial approval of recognition of

minor children is still included. An
illegitimate child must still establish
filiation in order to have a personality in
the settlement of the estate of the
deceased.
contempt
DIRECT CONTEMPT
The person adjudged in direct contempt may
avail himself of the remedies of certiorari or
prohibition. The execution of the judgment shall
be suspended pending resolution of the petition,
provided such person files a bond and
conditioned that he will abide by and perform the
judgment should the petition be decided against
him.
INDIRECT CONTEMPT
The person adjudged for indirect contempt may
appeal such judgment or final order to the
proper court as in criminal cases. The execution
of the judgment shall NOT be suspended until a
bond is filed by the person adjudged in
contempt.
The judgment against a person adjudged to be
in contempt is immediately executory and can
be stopped only by filing a bond.
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by which
a party seeks to establish a status, a right or a
particular fact (Rule 1, Section 3)
JURISDICTION : Regional Trial Court
Exception: MTC can entertain
proceedings where:
Special
1. the gross value of the estate does not exceed

200T/400T (BP 129)
2. It acts in Cadastral and Land Registration
Proceedings (Sec. 35 Judiciary Act)
appeal is taken to the CA, not to the RTC
since MTC is equal to RTC in this instance
3. Habeas Corpus where no RTC judge is
available
RULE 72
SUBJECT MATTER AND
APPLICABILITY OF GENERAL
RULES
NOW
EXCLUDED
IN
SPECIAL
PROCEEDINGS
1. Constitution of Family Home now covered
by the Family Code
Voluntary Dissolution of Corporations now

covered by the Corporation Code and the
SEC rules
RULE 73
VENUE AND PROCESS
Section 1. Where estate of deceased
persons settled.
2 Kinds of Settlement
A. EXTRAJUDICIAL SETTLEMENT
(Rule 74, Section 1)
B. JUDICIAL SETTLEMENT
proceedings instituted in the country
where decedent has his residence
a. intestate- letters of administration
b. testate-petition for probate
Venue on settlement proceedings:
1. If the decedent is an inhabitant of the
Philippines. RTC in province which he
resides at the time of death.
2. If decedent is an inhabitant of a foreign
country. RTC of any province in which he
had estate.
ORDINARY ACTION
to protect or enforce a
right or prevent or
redress a wrong
involves two or more
parties
governed by ordinary
rules supplemented by
special rules
heard by courts of
general jurisdiction
pleadings are required
SPECIAL
PROCEEDING
involves the
establishment of the
right, status or fact
may involve only one
party
governed by special
rules supplemented by
ordinary rules
heard by courts of
limited jurisdiction
petition or application
is sufficient
ISSUE OF OWNERSHIP
GENERAL RULE: Probate courts are of limited
jurisdiction and cannot determine issue of
ownership.
EXCEPTION:
1.
Provisionally, ownership may be determined

for the purpose of including property in
inventory, without prejudice to its final
determination in a separate action; or
2. When all the parties are heirs and they
submit the issue of ownership to the probate
48

court provided that the rights of third parties

are not prejudiced (Bernardo vs. CA)
RESIDENCE connotes physical presence with
continuity or consistency in a place where the
party actually resides as distinguished from
DOMICILE which connotes permanent and
animus rivertendi or intention to return.
JURISDICTIONAL FACTS:
A court acquires jurisdiction to probate a will
when it is shown by evidence before it that:
a. person has died leaving a will;
b. in case of a resident of this country, he died
in the province where the court exercises
territorial jurisdiction;or
c. in the case of a non-resident, he has left an
estate in the province where the court is
situated; and
d. the last will or testament of the deceased has
been delivered to the court, and is in
possession thereof.
This place of residence of the deceased in
settlement of estates, probate of a will, and in
the issuance of letters of administration is
merely constitutive of venue.
Exclusionary Rule: xx The court first taking
cognizance of the settlement of the estate of the
decedent, shall exercise jurisdiction to the
exclusion of all other courts. xxx
Remedy if the venue is improperly laid:
ordinary appeal not certiorari or mandamus
unless want of jurisdiction appears on the record
of the case.
GENERAL RULE: Exclusionary
EXCEPTION: 1. laches
2.waiver
NOTE: Jurisdiction under Rule 73 Sec. 1 does
not relate to jurisdiction per se but to venue,
hence institution in the court where the decedent
is neither an inhabitant or have his estate may
be waived. (Uriarte vs. CFI)
GENERAL RULE: Probate court cannot issue
writs of execution
EXCEPTIONS:
1. To satisfy the contributive share of the
devisees, legates and heirs (Sec. 6 Rule 88)
2. To enforce payment of the expenses of
partition (Sec. 3 Rule 90)
3. To satisfy the court when a person is cited for
examination in probate proceeding (Sec. 13,
Rule 142)
QUESTIONS WHICH THE PROBATE COURT
CAN DETERMINE:
1. Who are the heirs of the decedent;
2. The recognition of a natural child
3. The validity of disinheritance effected by the

testator;
4. Status of a woman who claims to be the
lawful wife of the decedent;
5. The validity of a waiver of hereditary rights;
6. The status of each heir;
7. Whether a property in the inventory is
conjugal or exclusive;
8. All other matters incidental or collateral to the
settlement and distribution of the estate.
Section 2. Where the estate settled

upon dissolution of marriage.
Upon the death of either the husband or the
wife, the partnership affairs must be liquidated in
the testate or intestate proceedings of the
deceased husband or wife. If both have died,
liquidation may be made in the testate or
intestate proceedings of either.
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his estate is
submitted to a judicial settlement proceeding.
However, there are EXCEPTIONS. The heirs
may resort to:
a. extrajudicial settlement of estate
b. summary settlement of estate
Section1. Extrajudicial settlement by

agreement between heirs.
REQUISITES
SUBSTANTIVE
PROCEDURAL
the decedent left

a. no will
b. no debts
the heirs are all of age
or the minors are
represented by their
judicial or legal
representatives duly
authorized for the
purpose
division of estate must

be in a public
instrument
filed with proper Registry
of Deeds
publication of notice of
petition once a week
for three consecutive
weeks
bond filed equivalent to
the value of personal
property
Is a Public Instrument necessary for the

validity of an extrajudicial settlement? NO. Oral
agreement of partition is valid among the heirs
who participated in the extrajudicial settlement.
EXTRAJUDICIAL
SETTLEMENT
1. no court intervention
2. value of the estate
immaterial
3. allowed
only in
intestate succession
4. there must be no
1.
2.
3.
4.
JUDUCIAL
SETLLEMENT
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both
testate and intestate
available even if there
49

outstanding debts of
the estate at the time
of settlement
5.
resorted
at
the
instance
and
by
agreement of all heirs
6. amount of bond is
equal to the value of
personal property
are debts; it is the

court which will make
provision
for
its
payment
5. may be instituted by
any interested party
even a creditor of the
estate without the
consent of all heirs
6.
bond
to
be
determined
by the
court
There is a presumption that the decedent left

no debts if no creditor files a petition for letters of
administration within 2 years after the death of
the decedent. Such presumption is however,
rebuttable.
WAYS OF EFFECTING EXTRAJUDICIAL
PARTITION:
1. public instrument
2. stipulation for extrajudicial partition during the
pendency of the action of partition
one heir affidavit of adjudication
Section 2. Summary Settlement of

estate of small value.
Summary settlement of estate is a procedure
by which, in a summary manner:
a. his debts, if any, are paid;
b. his will, if any, is allowed;
c. the heirs and legatees are declared;and
d. distribution is made all in a single hearing and
a single order without appointment of any
administrator or executor.
Where the estate has been summarily settled,
the unpaid creditor may, within 2 years, file a
motion in the court wherein such summary
settlement was had, for the payment of his
credit. After the lapse of the 2-year period, an
ordinary action may be instituted against the
distributees within the statute of limitations but
not against the bond.
IMPORTANT:
1. Application must contain allegation of gross
value of estate.
2. Date for hearing shall be set by court which
shall:
a. be held not less than one month nor more
than three months from date of last
publication of notice;
b. be published, once a week for three
consecutive weeks in a newspaper of
general circulation.
3. Notice shall be served upon such interested
persons as the court may direct.
Section 4. Liability of distributees and

estate.
NOTE: The provision of Sec. 4 Rule 74 barring
distributees or heirs from objecting to an
50
extrajudicial partition after the expiration of 2

years is applicable only to:
1) persons who have taken part or had notice of
the extrajudicial partition and
2) when the provisions of Sec. 1 Rule 74 have
been strictly complied with. (Sampilo vs. CA)
The requirement of a public instrument does
not apply when there are no creditors or the
rights of creditors are not affected. (Hernandez
vs. Andal)
RULE 75
PRODUCTION OF WILL ALLOWANCE
OF WILL NECESSARY
Section 1. Allowance
conclusive as to execution.
necessary,
NATURE OF PROBATE PROCEEDINGS

1. Probate proceedings are proceedings in rem
hence binding on the whole world.
2. It is mandatory.
3. It is also imprescriptible, because of the
public policy to obey the will of the testator.
The doctrine of estoppel does not apply in a
probate proceeding by reason of public policy.
(Fernandez vs. Dimagiba)
EFFECT OF THE PROBATE OF A WILL: It is
conclusive as to the execution and the validity of
the will (even against the state). Thus, a criminal
case against the forger may not lie after the will
has been probated.
GENERAL RULE: Probate court can only
determine the intrinsic validity of a will after its
extrinsic validity is established.
EXCEPTION: Where the defect is apparent on
its face. (Nuguid vs. Nuguid; Balanay vs.
Martinez)
RULE 76
ALLOWANCE OR DISALLOWANCE
OF WILL
PROBATE OR ALLOWANCE OF WILLS - act
of proving in a court a document purporting to be
the last will and testament of a deceased person
in order that it may be officially recognized,
registered and its provisions carried insofar as
they are in accordance with law.
Section 1. Who may petition for

allowance of will.
1. any creditor
2. devisee or legatee named in the will
3. person interested in the will
4. testator himself

WHAT IS DUE EXECUTION?

Due execution means that
1. the testator was of sound and disposing mind
at the time the will was made
2. no duress, fraud or undue influence
3. strictly complied with the formalities
4. will was genuine and not fraudulent
Section 3. Court appoints time for

proving will. Notice thereof to be
published.
When does court acquire jurisdiction over
interested persons and res?
Upon sending notices and publication for three
consecutive weeks of the order setting the case
for hearing.
NOTE: 3 consecutive weeks is not strictly 21
days.
If petition for probate is on testators own
initiative during his lifetime, no proof of
publication is necessary.
Section 4. Heirs, devisees, legatees and

executors to be notified by mail or
personally.
By mail: 20 days before hearing
Personal notice: 10 days before hearing
Section 5. Proof of hearing. What is

sufficient in absence of contest.
EVIDENCE in support of will:
1. If not contested - court may grant allowance
on the testimony of one of the subscribing
witnesses and in a holographic will, the
testimony of one witness who knows the
handwriting and signature of the testator
shall testify and in the absence thereof, by
an expert witness.
2. If contested
in notarial wills, ALL subscribing witnesses
and notary public must be presented,
in holographic wills 3 witnesses who
knows the handwriting of testator. If none is
available,
expert testimony may be
resorted to.
However, in Codoy vs. Calugay, the SC ruled

that if the holographic will is contested, 3
witnesses who know the handwriting and
signature
of
the
testator
are
now
required/mandatory to prove its authenticity and
for its allowance.
GENERAL RULE: Holographic will if destroyed
cannot be probated.
EXCEPTION: If there exists a Photostat or
Xerox copy thereof. ( Gan vs. Yap)
RULE 77
ALLOWANCE OF WILL PROVED
OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE
THEREUNDER
When may a will of an alien in a foreign
country produce effect in the Philippines?
If made with the formalities prescribed by the
law of the place in which he resides, or
according to the formalities observed in his
country, or in conformity with the formalities
prescribed by our Civil Code.
A will allowed probate in a foreign country,
must be re-probated in the Philippines. If the
decedent owns properties in different countries,
separate administration proceedings must be
had in said countries.
PRINCIPAL ADMINISTRATION or domicilliary
proceedings- the proceeding in his last domicile
ANCILLARY
ADMINISTRATIONthe
administration proceedings where he left his
estate.
What should be proved in reprobation?
The following need to be established:
1. due execution of the will in accordance with
foreign laws;
2.domicile of the testator in the foreign country
and not in the Philippines;
3.that the will has been admitted to probate in
such country;
4.that the foreign tribunal is a probate court;
5.the laws of a foreign country on procedure and
allowance of the will in accordance therewith
and in the absence of proof of foreign law,
processual presumption applies.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION WHEN AND TO
WHOM ISSUED.
PEOPLE WHO CAN ADMINISTER THE
ESTATE:
1. Executor;
2. Administrator, regular or special (Rule 80);
and
3. Administrator with a will annexed (Rule 79,
Section 1)
EXECUTOR - The one appointed by the testator
in his will for the administration of his property
after his death.
ADMINISTRATOR - One appointed by the State
for the administration of the property of the
deceased in case the decedent failed to leave a
will, or if he failed to appoint one even if he left a
will, or executor named is not competent or
refuses the office.
51

ADMINISTRATOR WITH A WILL ANNEXED

one appointed by the court in cases when,
although there is a will, the will does not appoint
any executor, or if appointed, said person is
either incapacitated or unwilling to serve.
Any competent person may serve as executor
or administrator He is incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit
to exercise the duties of the trust by
reason of
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving
moral turpitude
LETTERS TESTAMENTARY - Authority issued
to an executor named in the will to administer
the estate.
ORDER OF PREFERENCE
1) The surviving husband or wife or the next of
kin, or both in the discretion of the court, or to
such person as such surviving spouse or next
of kin, request to have appointed, if
competent and willing to serve.
2) If the surviving spouse or the next of kin or
the person selected by them be incompetent
or unwilling to serve, or if the surviving
spouse or next of kin neglects for thirty (30)
days after the death of the decedent to apply
for administration, ANY one or more of the
principal creditors , if competent and willing to
serve.
3) If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select.
The ORDER OF PREFERENCE: this

provision is not mandatory for the courts to
obey.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
Contents of a petition for letters of
administration:
a. jurisdictional facts;
b. name, age, residence of heirs and creditors;
c. probable value and character of the property
d. name of the person for whom letters is prayed
for
What is the main issue in an administration
proceeding?
Who is the person rightfully entitled to
administration.
Even where a person who had filed a petition

for the allowance of the estate of the deceased
person had no right to do so in view of his lack
of interest in the estate, nevertheless, where the
interested persons did not object to its
application, the defect in the petition would be
deemed cured. The filing of the petition may be
considered as having been ratified by the
interested parties. (Eusebio vs. Valmores 97
PHIL 163)
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a special
administrator?
a. delay in granting of letters including appeal in
the probate of the will.
b. executor is a claimant of the estate he
represents
c. executor or administrator becomes insane or
incapacitated
Powers and duties:
a. possession and charge of the properties
b. commence and maintains suit for the estate
c. sell perishable property
d. pay debt as ordered by the court
When does the power
administrator cease?
After the letters are granted.
of
special
Appointment of a special administrator under

this rule is not mandatory but the judge may do
so in the exercise of its discretion.
Is appointment of special administrator
appealable?
NO, the same is interlocutory. However,
appointment of a REGULAR ADMINISTRATOR
is appealable because it is a final order.
A special administrator is not authorized to pay
the estate unless so ordered by the Court.
RULE 81
BONDS OF EXECUTOR AND
ADMINISTRATOR
Section 1. Bond to be given before
issuance
of
letters.
Amounts.
Conditions.
Before an executor or administrator enters
upon execution of his trust, he shall give a bond
conditioned as follows:
1. make an inventory within three months
2. inventory of property which came to his
knowledge and possession
52

administer all goods, chattels, rights,

credits and
3. estate and from the proceeds pay all
debts and charges
4. render an account within one year
5. perform all orders of the court
Section
4.
administrator.
Bond
of
special
Must give a bond conditioned that:

a. He will make inventory.
b. He will truly account for such.
c. He will deliver the same to person appointed
executor or administrator.
The bond is effective as long as the court has

jurisdiction over the proceedings.
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION AND
REMOVAL OF EXECUTORS AND
ADMINISTRATORS
The discovery of a will does not ipso facto
nullify the letters of administration already issued
or the revocation thereof until the will has been
proved and allowed pursuant to Rule 82 Sec. 1.
(De Parreno vs. Aranzanso)
Section 2. Court may remove or accept

resignation of executor or administrator.
Proceedings upon death, resignation or
removal.
Grounds for removal or for compelling
resignation are:
1. Neglect to render accounts; (w/in one year or
when the court directs)
2. Neglect to settle estate according to these
rules;
3. Neglect to perform an order or judgment of
the court or a duty expressly provided by
these rules;
4. Absconding;
5. Insanity or incapability or unsuitability to
discharge the trust.
These grounds are exclusive.
ALLOWANCE monetary advances subject to
collation and deductible from their share in the
estate of the decedent.
Though the Rules of Court provides that only

minors and incompetents can have allowance,
the Civil Code and Family Code does not
distinguish with regard to the beneficiaries.
Section 3. Acts before revocation,

resignation, or removal to be valid.
Acts of an administrator or executor before

the revocation of letters administration or
testamentary are valid unless proven otherwise.
RULE 83
INVENTORY AND APPRAISAL
PROVISION FOR SUPPORT OF
FAMILY
Section 1. Inventory and appraisal to
be made within three months from the
grant of letters testamentary or of
administration
Approval of an inventory is not a conclusive
determination of what assets constituted the
decedents estate and of the valuation thereof.
Such determination is only provisional and a
prima facie finding of the issue of ownership.
Section 3. Allowance to widow and

family.
Who are entitled to allowance during
proceedings?
According to the Civil Code, Art. 188, the
children need not be minors or incapacitated to
be entitled to allowance.
When liabilities exceed the asset of the estate
his widow and children are not entitled to
support pending the liquidation of the intestate
estate, on the ground that such support, having
the character of an advance payment to be
deducted from the respective share of each heir
during distribution.
RULE 84
GENERAL POWERS OF EXECUTORS
AND ADMINISTRATORS
Section 3. Executor and administrator
to retain whole estate to pay debts, and
to administer estate not willed.
POWERS
OF
EXECUTOR
/
ADMINISTRATOR OF THE ESTATE.
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. Examine and make invoices of the property
belonging to the partnership in case of a
deceased partner;
3. Make improvements on the properties under
administration with the necessary court
approval except for necessary repairs;
To possess and manage the estate when
necessary:
53

a. for the payment of debts; and

b. for payment of expenses of
administration
should be terminated in not more than two-years

and a half.
SOME RESTRICTIONS ON POWER OF

ADMINISTRATOR/EXECUTOR:
1. cannot acquire by purchase, even at public or
judicial auction, either in person or mediation
of another, the property under administration
2. cannot borrow money without authority of the
court
3. cannot
speculate
with
funds
under
administration
4. cannot lease the property for more than one
year
5. cannot continue the business of the deceased
unless authorized by the court
6. cannot profit by the increase or decrease in
the value of the property under administration
RULE 85
ACCOUNTABILITY AND
COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
Section 2. Not to profit by increase or
loss by decrease in value.
GENERAL RULE: The executor or administrator
is accountable for the whole estate of the
deceased.
EXCEPTION: He is not accountable for
properties which never came to his possession.
EXCEPTION TO THE EXCEPTION: When
through untruthfulness to the trust or his own
fault or for lack of necessary action, the executor
or administrator failed to recover part of the
estate which came to his knowledge.
Administrator or executor shall not profit by the
increase of the estate nor be liable for any
decrease which the estate, without his fault,
might have sustained.
Section 6. When allowed money paid as

costs.
Generally, costs charged or allowed against an
executor or administrator in actions brought or
prosecuted by or against him should be paid out
of the estate of the deceased, unless he did not
act in good faith.
Section
8.
When
executor
administrator to render account.
or
RULE: Within one year from the time of

receiving letters testamentary or letters of
administration.
EXCEPTION: There is allowed an extension of
time for presenting claims against or paying the
debts of the estate for disposing of the estate
but even in such cases, the administration
54
EXPENSES OF ADMINISTRATION: those

necessary for the management of the property,
for protecting it against destruction or
deterioration, and possibly for the production of
fruits.
RULE 86
CLAIMS AGAINST ESTATE
Section 1. Notice to creditors to be
issued by court.
.
CLAIM - any debt or pecuniary demand
against the decedents estate
When may a court issue notices to creditors?
Immediately after granting letters testamentary
or of administration.
The object of the law in fixing the time within
which claims against the estate may be filed is
for the speedy settlement of the affairs of the
deceased person and early delivery of the
property of the estate into the hands of the
persons entitled to receive it.
Claims arising after his death cannot be
presented except for funeral expenses and
expenses of the last sickness of the decedent.
Claims for taxes due and assessed after the
death of the decedent need not be presented in
the form of a claim. The court in the exercise of
its administrative control over the executor or
administrator may direct him to pay such taxes.
And the heirs, even after distribution are liable
for such taxes.
Sec. 2. Time within which claims shall

be filed.
Not more than 12 months nor less than six
months after the date of the first publication of
the notice, at the discretion of the court.
Before order of distribution is entered, on
application of a creditor who has failed to file its
claim within the time fixed, the court may, for
cause shown and on such terms as are
equitable, allow such belated claim to be filed
within a time not exceeding 1 month.
STATUTE OF NONCLAIMS- failure to file claim
within said period will bar recovery by creditor.
While the Statute of Non-claims is preferred
over the Statute of Limitations , the claim will still
be barred even if the Statute of Non-claims has
not yet expired, if the Statute of Limitation has
lapsed. (PNB vs. Villarin)

Section 5. Claims which must be filed

under notice. If not filed, barred,
exceptions.
Claims referred to under this section refer to
claims for the recovery of money and which are
not secured by a lien against the property of the
estate.(Olave vs. Carlos)
What claims should be filed under the Statute
of Non-claims:
1. Money claims, debts incurred by deceased
during his lifetime arising from contract
a. express or implied
b. due or not due
c. absolute or contingent
2. Claims for funeral expenses and for the last
illness of the decedent.
3. Judgment for money against decedent.
CONTINGENT CLAIM one which depends for
its demandability upon the happening of a future
uncertain event.
Alternative remedy of a creditor who is barred
by the Statute of Non-claims:
To file counterclaims in any suit that the executor
or administrator may bring against the claimant.
Section 6.
decedent.
Solidary
obligation
of
If obligation of the decedent is solidary, how is

the claim settled? Claim should be filed against
decedent as if he were the only debtor without
prejudice on the part of the estate to recover
contribution from the other debtor.
If obligation is joint, the claim must be confined
to the portion belonging to the decedent.
Section 7. Mortgage debt due from
estate.
REMEDIES OF THE CREDITOR:
1. Abandon security and prosecute his claim
against the estate and share in the same
general distribution of the assets of the
estate;
2. Foreclose by action in court making executor
or administrator a party defendant and if
there is judgment for deficiency, he may file a
claim against the estate.
3. Rely solely on his mortgage and foreclose the
name at anytime within the period of the
statute of limitation but he cannot be admitted
as creditor and shall not receive in the
distribution of the other assets of the estate;
These remedies are alternative, the availment of
one bars the availment of other remedies.
Section 13. Judgment allowing claim,

effect of.
Judgment against executor and administrator
shall not create any lien upon the property of the
estate or does not constitute a specific lien
which may be registered on such property.
Judgment of a probate court approving or
disapproving a claim shall not anymore be
appealable as in ordinary cases because now,
in special proceedings you still need to filerecord
on appeal (notice of appeal on ordinary cases)
and the period of appeal is not 15 days but 30
days from notice of judgment.
RULE 87
ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
Section 1. Actions which may or may
not be brought against executor and
administrator
Section 2. Executor and administrator
may bring and defend actions which
survive.
Actions which may be brought against executor
and administrators (not against the estate):
1. recovery of real or personal property or any
interest therein from the estate
2. enforcement of a lien thereon
3. action to recover damages for any injury to
person or property, real or personal
(tortuous acts)
1-3 are actions that survive the decedent
Section 3. Heir may not sue until share

assigned.
Before distribution is made or before any
residue is known, the heirs and devisees have
no cause of action against the executor or
administrator for recovery of the property left by
the decedent.
Section 6. Proceedings when property

concealed, embezzled or fraudulently
conveyed.
PURPOSE: To elicit information or to secure
evidence from those persons suspected as
having possessed or having knowledge of
properties belonging to deceased, or of having
concealed, embezzled or conveyed away any
properties of the deceased.
The probate court has no authority to decide
whether or not the properties belong to the
estate or to the person being examined since
probate courts are courts of limited jurisdiction.
EXCEPTIONS:
55

1.
2.
Provisional determination of ownership for

inclusion in the inventory; or
Submission to the courts jurisdiction
(Bernardo vs. CA)
Section
9.
Property
fraudulently
conveyed by the deceased may be
recovered.
When
executed
or
administered must bring action.
This provision applies when there is a
deficiency of assets in the hands of the executor
or administrator for the payment of the debts
and expenses for administration for it is under
this circumstance that there may be
conveyances made by the deceased with intent
to defraud the creditor.
Requisites before action may be filed:
1. deficiency in assets
2. the conveyance made is void (when there are
badges of fraud)
3. subject of conveyance is liable for attachment
in lifetime of decedent.
Section 10. When creditor may bring

action. Lien for costs.
When a grantee in a fraudulent conveyance is
other than the executor or administrator, a
creditor may commence and prosecute the
action if the following requisites are present:
1. That the executor or administrator has shown
to have no desire to file the action or failed to
institute the same within the reasonable time.
2. Leave is granted by court to creditor to file the
action.
3. Bond is filed by creditor as prescribed in this
provision and;
4. Action by creditor is in the name of the
executor or administrator.
NOTE: These requisites need not be complied
with if the grantee of the fraudulent conveyance
is the executor or administrator himself, in which
event the action should be in the name of all
creditors.
RULE 88
PAYMENT OF THE DEBTS OF THE
ESTATE
Section 1. Debts paid in full if estate
sufficient.
If insolvent as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239
to 2251 of the Civil Code must apply. Use rule
on preference of creditors. If sufficient to satisfy
claims of a class.
Section 2. Part of the estate from which

debt paid when provision left by will.
NOTE: Although testator acknowledged a
specific debt on his will, the creditor must still file
his claim in the testate or intestate proceedings,
otherwise his claim will be barred.
Section 4. Estate to be retained to meet

contingent claims.
REQUISITES:
1. contingent claim is duly filed
2. court is satisfied that the claim is valid.
3. The claim has become absolute.
What is the effect of a claim approved by
the court under the Rule 88?
The general rule is that execution does not lie,
there is no lien over the claim, rather, it shall be
paid in due course because the specific
procedure is for the court to order the sale.
The EXCEPTION is when there is prior
possession by the heirs, legatees or devisees
before actual distribution.
Section 15. Time for paying debts and

legacies fixed, or extended after notice,
within what periods.
Periods set for herein is merely discretionary
and not mandatory.
RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE
PROPERTY OF THE DECEASED
Section 1. Order of sale of personalty
The court may order the whole or part of the
personal estate to be sold if necessary:
1. to pay debts and expense of administration
2. to pay legacies
3. to cover expenses for the preservation of the
estate
Section 2. When court may authorize

sale, mortgage or other encumbrances
of realty to pay debts and legacies
though personality not exhausted.
IMPT: without notice, the sale, mortgage or
encumbrance is void. Notice is mandatory.
Noncompliance therewith under the sale is null
and void. (Maneclang vs. Baun)
When may the court order the sale or
conveyance of real estate:
1. Personal estate is not sufficient to pay debts,
expenses of administration and legacies.
56

2. Sale of personal estate may injure the

business or interests of those interested in
the estate
3. Testator has not made sufficient provision for
payment of such debts, expenses and
legacies
4. Deceased was in his lifetime under contract,
binding in law to deed real property to
beneficiary. (Section 8)
5. Where the deceased in his lifetime held real
property in trust for another person (Section
9)
Section 5. When court may authorize

sale, mortgage or other encumbrance of
estate to pay debts and legacies in other
countries.
Allowed when it appears from records and
proceedings of a probate court of another
country that the estate of the deceased in
foreign country is not sufficient to pay debts and
expenses.
Application for authority to sell, mortgage or

encumber property of the estate may be denied
by the court if:
1. the disposition is not for any of the reasons
specified by the rules or if,
2. under Section 3 Rule 89, any person
interested in the estate gives a bond
conditioned to pay the debts, expenses of
administration and legacies.
RULE 90
DISTRIBUTION AND PARTITION OF
THE ESTATE
Section 1. When order for distribution
of residue made.
GENERAL RULE: order for distribution shall be
made AFTER payments of all debts, funeral
expenses,
expenses
for
administration,
allowance of widow and inheritance tax is
effected.
In these proceedings, the court shall:
1. collate
2. determine heirs
3. determine the share of each heir.
When is title vested? From finality of order of
distribution.
Only after partition is approved and not before,
the court may order the delivery to the heirs of
their respective shares except when the heir file
a bond conditioned to pay the debts.
An order which determines the distributive
shares of heirs is appealable. If not appealed, it
becomes final.
57
When does the probate court loss jurisdiction

over the settlement proceedings?
Upon payment of all debts and expenses of the
obligor and delivery of the entire estate to all the
heirs. (Timbol vs. Cano)
In order that an order of distribution may be
issued, the following are the conditions
precedent:
1. showing that the executor, administrator or
person interested in the estate applied for
such; and
2. the requirements as to notice and hearing
upon such application have been fulfilled
RULE 91
ESCHEATS
Section 1. When and by whom petition
filed.
2 INSTANCES of ESCHEATS:
1. where a person dies without a will or heir
leaving property in the Philippines (Section 1)
2. REVERSION
sale in violation of the constitution
3. Unclaimed Balance Act
it is commenced by petition not complaint.
Who files?
a. Solicitor General
b. Representative of the Solicitor General
Venue: RTC of the province in which the
deceased last resided
:In actions for unclaimed deposit, venue
is the place where money is deposited.
What is the basis of the states right to receive
property in escheat? Order of succession under
the Civil Code.
Section 4. When and by who claim to

estate escheated filed.
Period: within five years from the date of
judgment under 1014 of the Civil Code, from
date property is delivered
By whom: person of interest
TO
WHOM
WILL
THE
PROPERTY
ESCHEATED BE ASSIGNED:
1. if personal property, in the municipality or city
where he last resided.
2. if real property, where the property is situated
3. if deceased never resided in the Philippines,
where the property may be found.
Can an administration proceeding be
converted into estate proceeding?

No. There are different procedures. Procedures

in both are jurisdictional.
6. for non-residents, a friend, relative or any

person interested in his estate in expectancy
or otherwise
GENERAL GUARDIANS AND

GUARDIANSHIP
Section 3. Court to set time for hearing.

Notice thereof.
RULE 92
IMPT: There is no requirement for publication,

only notice.
VENUE
NOTE: Service of notice upon minor if above 14

years or upon incompetent is mandatory and
jurisdictional.
If the person is insane, services of notice upon
the Director of Hospital where hospitalized is
sufficient.
Section
1.
proceedings.
Where
to
institute
Venue:
a. if resident RTC of the province where the
minor or incompetent resides
b. if non-resident RTC of the province where
the property or part thereof is situated
Section
2.
incompetent
Meaning
of
word
Section 4. Opposition to petition.

Grounds for opposition:
1. majority of alleged minor
2. competency of alleged incompetent
3. unsuitability of the persons for whom letters
are prayed
Incompetent includes:
1. those suffering from penalty of civil
interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to read and
write though they have lucid intervals.
5. persons not of unsound mind but by reason of
age, disease, weak mind and other similar
causes cannot take care of themselves or
manage their property.
Procedure:
a. filing of petition
b. court shall set the case for hearing
cause notices to be served to the persons
mentioned in the petition, including minor, if
14 years and above, this requirement is
jurisdictional
c. court shall receive evidence
d. declaration of the propriety of the petition
e. issue letters of guardianship
Section 3. Transfer of venue
Section 5. Hearing and order for letters

to issue.
Venue may be transferred to court of another

province where ward has acquired real property,
if he has transferred thereto his bonafide
residence. No additional court fees need to be
paid.
RULE 93
APPOINTMENT OF GUARDIANS
Section 1. Who may petition for
appointment of guardian for residents.
WHO MAY FILE THE PETITION FOR
APPOINTMENT OF GUARDIAN:
1. minor himself if 14 years old or over
2. any relative
3. any friend
4. or other person on behalf of minor or
incompetent
5. Philippines Director of Health in favor of
insane or leper
Incompetent must be present if able to attend
RULE 95
SELLING
AND
ENCUMBERING
PROPERTY OF WARD
Section 2. Petition of the guardian for
leave to sell or encumber estate.
Grounds for selling or encumbering estate
1.when income of estate is insufficient to
maintain ward and family or to maintain and
educate ward when a minor, or
2.when it appears that it is for the benefit of the
ward.
TEST: Is it necessary? If not, is it beneficial?
Requirements:
1. petition must be verified
2. notice must be given to the next of kin
58

IMPT: Notice to next of kin and interested

persons is jurisdictional. Next of kin pertains to
those relatives who are entitled to share in the
estate as distributees per stirpes or by right of
representation.
A sale of the wards realty by the guardian
without authority from the court is void.
RULE 96
GENERAL POWERS AND DUTIES
Section 1. To what guardianship shall
extend
Types of Guardianship
1. GENERAL GUARDIANSHIP both as to
person and property of minor
2. LIMITED GUARDIANSHIP only as to
property
Summary of duties and powers of guardians
1. custody of ward
2. payment of debts of the ward
3. bring and defend suits
4. sell or encumber estate
Section 6. Proceedings when person

suspected of embezzling or concealing
property of ward.
Court may cite suspected person to appear for
examination.
If after examination the court finds sufficient
evidence showing ownership on the part of the
ward. It is the duty of the guardian to bring the
proper action. EXCEPTION: only in extreme
cases where the property clearly and
indisputably belongs to the ward or where the
latters title thereto has already been judicially
decided that the court may direct its delivery to
the guardian.
RULE 97
TERMINATION OF GUARDIANSHIP
In Guardianship proceedings the court has no
jurisdiction to determine the issue of ownership
since said court is a court of limited jurisdiction.
(Ciu vs. Piccio)
RULE 98
TRUSTEES
Section 1. Where trustee appointed.
A trustee may be necessary to carry into effect:
1. a will wherein judicial approval is needed

2. any other instrument
When a trust is created abroad for property in
the Philippines, judicial approval is still needed
though trustor is alive.
Section 8. Removal or resignation of

the trustee.
Who may petition?
interested.
Parties beneficially
Grounds:
1. essential in the interest of petitioners
2. insanity
3. incapability of discharging trustee
4. unsuitability
Procedure:
1. file a petition
2. notice to trustee
3. hearing
Section 9. Proceedings for sale or

encumbrance of trust estate.
Procedure:
1. petition
2. due notice and hearing
3. judgment
RULE 99
ADOPTION AND CUSTODY OF
MINORS
- The provisions of the Rules of Court on
Adoption have been amended by the Domestic
Adoption Act of 1998 and the Intercountry
Adoption Act of 1995.
ADOPTION: Proceeding where by fiction of law
paternity of filiation is cleared.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES?
1.capacity of the adopters
2.whether the adoption would be the best
interest of the child
DOMESTIC ADOPTION ACT OF 1998

(RA 8552)
One of the declared policies of this Act: it shall
ensure that every child remains under the care
and custody of his parents and only when such
efforts prove insufficient that adoption by an
unrelated person may be considered.
WHO MAY ADOPT:
ANY FILIPINO
CITIZEN
ANY ALIEN
59

1. of legal age
2. in possession of full
civil capacity and
legal rights
3. of good moral
character
4. has not been
convicted of any
crime involving moral
turpitude
5. emotionally and
psychologically
capable of caring for
children
6. in a position to
support and care for
his/her children in
keeping with the
means of the family
7. at least sixteen (16)
years older than the
adoptee.
1. That his/her country

has diplomatic
relations with the
PHILIPPINES
2. That he/she has
been living in the
Philippines for at
least three (3)
continuous years
prior to the filing of
the application for
adoption.
3. Maintains residence
until the adoption
decree is entered.
4. Certified to have
legal capacity to
adopt, by his/her
country
5. That his/her
government allows
the adoptee to enter
his/her country as
his/her adopted
son/daughter.
NOTE: The requirement of sixteen (16) years

difference between the adopter and the adoptee
is NOT applicable if the adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptees parent
NOTE: The requirement on residency and
certification of aliens qualification to adopt may
be waived for the following:
1. A former Filipino citizen who seeks to adopt
a relative within the 4th degree of
consanguinity or affinity.
2. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse.
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative
within
the
4th
degree
of
consanguinity or affinity of the Filipino
spouse.
The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
WHO MAY BE ADOPTED
1. Any person below eighteen (18) years of age
who has been judicially declared available
for adoption.
2. The legitimate son/daughter of one spouse
by the other spouse.
3. An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy.
4. A person of legal age if, prior to the
adoption, said person had been consistently
considered and treated by the adopter(s) as
his/her own child since minority.
5. A child whose adoption has been previously

rescinded.
6. A child whose biological or adoptive parents
has died.
Husband and wife shall jointly adopt
EXCEPT:
1. If one spouse seeks to adopt the legitimate
son/daughter of the other.
2. If one spouse seeks to adopt his/her own
illegitimate son/daughter
3. If the spouses are legally separated from
each other
WRITTEN CONSENT OF THE FOLLOWING
ARE REQUIRED:
1. the adoptee, if ten (10) years of age or over
2. the biological parent of the child, if known
3. the legitimate and adopted sons/daughters
ten (10) years of age or over, of the
adopter(s) and adoptee, if any
4. the illegitimate sons or daughters, ten (10)
years of age or over, of the adopter if living
with said adopter and the latters spouse if
any
5. the spouse, if any, of the person adopting or
to be adopted.
PROCEDURE:
A. No petition for adoption shall be set for
hearing unless a licensed social worker has
made a case study of the adoptee, adopter
and the biological parents.
B. No petition for adoption shall be finally
granted until the adopters has been given by
the court a supervised trial custody period
for at least six (6) months.
C. After the publication of the order of hearing,
and no opposition has been interposed to
the petition, a decree of adoption shall be
entered stating the name by which the child
is to be known.
D. An amended birth certificate shall be issued.
The original birth certificate shall be
stamped cancelled and shall be sealed in
the Civil Registry records.
NOTE: The new birth certificate to be issued to
the adoptee shall not bear any notation that it is
an amended issue.
EFFECTS
1. adopter will exercise parental authority
2. all between biological parents and the
adoptee shall be severed, except when
biological parent is spouse of adopter
3. adoptee shall be considered legitimate child
of adopter for all intents and purposes
4. adopters shall have reciprocal rights of
succession
without
distinction
from
legitimate filiation
INTER COUNTRY ADOPTION

ACT OF 1995
60

1.
Inter-country adoption refers to the sociolegal process of adopting a Filipino child by

a foreign national or a Filipino citizen
permanently residing abroad.
2. An application to adopt a Filipino child shall
be filed either with the Philippine RTC
having jurisdiction over the child, or with the
Board, through an intermediate agency,
whether governmental or an authorized and
accredited agency, in the country of the
prospective
adoptive
parents,
which
application shall be in accordance with the
requirements as set forth in the Rules to be
promulgated by the Inter-country Adoption
Board.
WHO MAY ADOPT
1. any alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27) years of age
2. other requirements same as with RA 8552
WHO MAY BE ADOPTED
Only a legally free child may be the subject of
inter-country adoption.
NOTE: A child under this Act is defined as any
person below fifteen (15) years of age.
CUSTODY OF MINOR
Section 6. Proceedings as to child

whose parents are separated. Appeal
Instances where the husband or the wife, who
are separated or divorced, are denied custody of
the child: When the parent is unfit to take
charge of the child by reason of:
1. moral depravity
2. habitual drunkenness
3. incapacity
4. poverty
If it appears that neither parent is entitled to the
custody of the child, the court may designate the
following:
1. the paternal or maternal grandparent
2. the older brother or sister
3. some reputable and discreet person
4. any suitable asylum, children's home or
benevolent society.
Either parent may appeal from the final order of
custody.
RULE 100
RESCISSION AND REVOCATION OF
ADOPTION
Under the Domestic Adoption Act of 1998,
the adopter can no longer revoke the adoption,
he can merely disinherit the adoptee in

accordance with the provisions of the Civil Code.
Under the petition for adoption, the effect
retroacts as to date of filing thereof. In
revocation, it relates only as to the date of the
judgment. Hence in revocation, vested rights
prior to rescission should be respected.
GROUNDS FOR REVOCATION BY ADOPTEE:
1. repeated physical or verbal violence;
2. attempt against his life or sexual abuse;
3. abandonment
Unlike in revocation of guardianship,
revocation of adoption is a separate proceeding
from the adoption.
RULE 102
HABEAS CORPUS
Section 1. To what habeas corpus
extends.
NB:
> show me or produce the body.
> the court is open 24 hours a day.
> can be issued and enforceable only in
the district it was issued.
Habeas corpus extends to:
1. cases of illegal confinement or detention by
which a person is deprived of his liberty
2. cases by which the rightful custody of the
person is withheld from the person entitled
thereto
NOTE: The restraint must be actual, effective
and material. The person need not actually be
confined as long as freedom of action is limited.
(Mancupa vs. Enrile; Villavicensio vs. Lucban;
Toyoto vs. Ramos.)
WRIT OF HABEAS CORPUS - a command
directed to the person detaining another,
requiring him to produce the body of the person
detained at a designated time and place, and to
produce and to show cause and to explain the
reason for detention.
- unconditional
order to produce the body of a person at the
time and place specified therein.
The privilege of writ is so sacred that,
according to our CONSTITUTION, it shall not be
suspended except in cases of invasion or
rebellion when public security requires it (Art. III
Sec. 15).
GROUNDS FOR RELIEF:
61

1.deprivation
of
any
fundamental
or
constitutional right
2. lack of jurisdiction of the court to impose the
sentence
3. excessive penalty
IMPT: Habeas Corpus can never be a substitute
for appeal.
NOTE: the person on bail is not entitled to
habeas corpus because his detention is legal
and technical.
Does voluntary restraint constitute habeas
corpus?
As a general rule, NO except when a person
restrained minor and the petitioner is the father
or mother or guardian or a person having
custody of the minor.
NOTE: Voluntariness is viewed from the point of
view of the person entitled to custody.
Preliminary Citation issued by the court to
show cause whether or not the writ should be
issued
Section 2. Who may grant the petition.

1. SC or any member thereon
2. CA or any member thereof
3. RTC or any judge thereof
MTC in the absence of RTC judges
Procedure for grant of writ
1. verified petition signed by the party for whose
relief it is intended; some other person in his
behalf
2. allowance of writ
3. command officer to produce
4. service of writ by sheriff or other officer
5. return
6. hearing on return
Section 6. To whom writ directed and

what to require.
Directed to officer and command him to:
1. have the body of person before the court
2. show cause of the imprisonment or restraint.
Section 8. How writ is executed and

returned.
Officer shall:
1. Convey the person so imprisoned before the
judge, unless from sickness or infirmity, such
person cannot, without danger be brought
before the court.
2. Make the return of the writ together with the
day and the cause of caption or restraint.
Section 9. Defect of form.
No writ can be disobeyed for defect in form if

it sufficiently states:
1. person in whose custody or under whose
restraint the party imprisoned or restraint is
held, and
2. court or judge before whom he is to be
brought.
Section 13. When the return evidence,

and when only a plea.
If a prisoner is in custody under a warrant of
commitment in pursuance of law or under a
judicial order, the return shall be considered
PRIMA FACIE EVIDENCE OF THE CAUSE OF
RESTRAINT, however it shall only be plea of the
facts set forth if restraint is by private authority.
Section 15. When prisoner discharged

if no appeal.
If one is unlawfully imprisoned, court shall

order his discharge but such discharge shall not
be effective until a copy of the order has been
served on the office or person detaining the
prisoner. If person detaining him does not
appeal, the prisoner shall be released.
Section 18. When prisoner may be

removed from one custody to another.
1. by legal process
2. prisoner is delivered to an inferior officer to
carry to jail
3. by order of proper court or judge be removed
from one place to another within the Phil. for
trial.
4. In case of fire, epidemic, insurrection or other
necessity or public calamity.
QUERY: When does court acquire jurisdiction
over person of respondent? The writ itself plays
the role as summon in ordinary actions; court
acquires jurisdiction over the person of the
respondent by MERE SERVICE OF WRIT.
RULE 103
CHANGE OF NAME
Section 1. Venue.
Person desiring to change his name shall present
petition to RTC of the province in which he resides.
Section 2. Contents of petition.

Petition shall be signed and verified by person
desiring his name changed or some other person in
his behalf.
62

Requirement of verification is formal not

jurisdictional requisite. It is not a ground for
dismissing the petition.
It shall set forth:
1. that petitioner is bonafide resident of the
province where petition is filed for at least
three years prior to date of filing
2. all names by which petitioner is known
3. cause for change of name
4. name asked for
Grounds for change of name:
1. name is ridiculous, tainted with dishonor and
extremely difficult to write or pronounce
2. consequence of a change of status e.g:
legitimated child
3. necessity to avoid confusion
TITLE
BODY
1. Official name (birth

certificate), be very
particular with the
spelling because it may
void or annul the
proceedings; it is
jurisdictional
2. all aliases
3. name asked for
1. residency
2. name (official, aliases,
asked for)
3. cause of change
RULE 107
ABSENTEES
(3) beyond 7 years

(absence of 4 years
under extraordinary
circumstances)
Requisites of Adversarial proceedings:

1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded.
2. The order of the hearing must be published
3. Notice thereof must be given to the Solicitor
General and all parties affected thereby.
4. Opportunity for the respondents to be heard.
5. Full blown trial.
NOTE: Proceedings for the correction of entries
should not be considered as establishing ones
status is a manner conclusively beyond dispute.
The status corrected would not have a superior
quality for evidentiary purposes. There is no
increase or dimunition of substantive right.
(Chiao Ben Lim vs. Zosa.)
Venue, Notice, Parties.
Petition must include:
STAGES OF ABSENTEE
(1) 0 2 years
(2) 2 years to 7 years
to correct substantial errors such as

citizenship,status,and legitimacy. However in the
latter case, it is necessary that the proceedings
be adversarial in nature.
LEGAL CONSEQUENCE
------- Petition for declaration
of absence may be filed
- considered dead for all
intents and purposes
except for the purpose
of succession
- for purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only is
required in extraordinary
circumstances
RULE 108
CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
This Rule applies not only to proceedings for
correction of innocuous or clerical errors but also
PETITIONS FOR THE

CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed in the
verified petition filed in the
RTC where the petitioner
place where the
resides
corresponding registry is
located
Solicitor General must be
Civil registrar concerned
notified by service of a
is made a party to the
copy of the petition.
proceeding as a
respondent.
Petition is filed by person
By any person interested
desiring to change his
in any ACT, EVENT,
name
ORDER or DECREE
order for hearing shall be
order shall also be
published once a week
published once for three
for three consecutive
consecutive weeks and
weeks
court shall cause
reasonable notice to
persons named in petition
service of judgment shall be upon the civil register
concerned
PETITIONS FOR
CHANGE OF NAME
Petition for change of name (Rule 103) and

petition for cancellation or correction of entries
are DISTINCT PROCEEDINGS.
CRIMINAL PROCEDURE
(WITH THE 2000 AMENDMENTS)
CRIMINAL
PROCEDURE
CRIMINAL LAW
Method fixed by law for the

apprehension
and
prosecution of a person
who is accused of a crime
and for his punishment,
whenever convicted
Branch of the law which

declares what acts are
classified as crimes, and
prescribes the punishment
for committing them
Major steps in the processing of a criminal

case:
63

1. Report of the crime

2 Pre-arrest investigation
3. Arrest
4 Booking
5. Post-arrest investigation
6 Preliminary investigation
7. Arraignment and Plea
8. Pre-trial
9. Trial
10. Judgment
11. Appeal
RULE 110
PROSECUTION OF OFFENSES
2000 Amendment
Sec. 1. Institution of criminal actions.
Criminal actions shall be instituted as
follows:
(A)
FOR
OFFENSES
WHERE
A
PRELIMINARY
INVESTIGATION
IS
REQUIRED PURSUANT TO SECTION 1
OF RULE 112, BY FILING THE
COMPLAINT
WITH
THE
PROPER
OFFICER FOR THE PURPOSE OF
CONDUCTING
THE
REQUISITE
PRELIMINARY INVESTIGATION.
(b) For all other offenses, by filing the
complaint or information directly with
the Municipal Trial Courts and Municipal
Circuit Trial Courts, or the complaint with
the office of the prosecutor. In Manila
and other chartered cities, the complaint
shall be filed with the office of the
prosecutor unless otherwise provided in
their charters.
THE INSTITUTION OF THE CRIMINAL
ACTION
SHALL
INTERRUPT
THE
RUNNING
OF
THE
PERIOD
OF
PRESCRIPTION OF THE OFFENSE
CHARGED
UNLESS
OTHERWISE
PROVIDED IN SPECIAL LAWS.
________
The parties may go directly to court without
submitting the matter upon the lupon
chairman in the following cases:
1. where the accused is under detention;
2. where a person has otherwise been deprived
of personal liberty calling for habeas corpus
proceedings;
3. where the actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of personal
property, and support pendente lite; and
4. where the action may otherwise be barred by

the statute of limitations.
Exceptions to the authority of the lupon of
each barangay to bring together the parties
actually residing in the same city or
municipality
for
amicable
settlement
(confrontation and conciliation):
1. where one party is the government or any
subdivision or instrumentality thereof;
2. where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions;
3. offenses where there is no private offended
party;
4. where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon;
5. disputes involving parties who actually reside
in barangays of different cities or
municipalities, except where such barangay
units adjoin each other and the other parties
thereto agree to submit their differences to
amicable settlement by an appropriate
lupon;
6. such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice.
Where a preliminary investigation is required,
the complaint must be filed with the proper
officer for the purpose of conducting the
investigation.
PRELIMINARY
INVESTIGATION
IS
REQUIRED: Where the offense is punishable by
imprisonment of at least four (4) years, two (2)
months and one (1) day, without regard as to the
fine except as provided in Section 7 of Rule 112.
Under the amendment, the institution of ALL
CRIMINAL ACTIONS shall be the same,
including those offenses that are subject to the
rule on Summary Procedure in relation to the
interruption of the period of prescription.
In the filing of all criminal actions, even those
subject to summary procedure shall interrupt the
running of the prescriptive period, except those
punishable by special laws.
Section 2. The complaint or information
Section 3. Complaint defined
Requisites of a complaint:
1. it must be in writing and under oath;
2. it must charge a person with an offense;
3. it must be subscribed by the offended party,
by any peace officer or public officer charged
with the enforcement of the law violated
64

PERSONS WHO CAN FILE A COMPLAINT:

1. Offended party ( especially in personal
crimes)
2. Any peace officer
3. Other public officer charged with the
enforcement of the law violated
4. Chief of police in the municipality
5. Customs Authority
6. Forestry officials
7. Internal Revenue Officers
8. Officials of the Bureau of Posts
Section 4. Information defined.
Requisites of an information:
1. it must be in writing;
2. it must charge a person with an offense;
3. it must be subscribed by the fiscal;
4. it must be filed in court
COMPLAINT
1. sworn statement
2. subscribed by the
offended party, any
peace officer or
other
officer
charged with the
enforcement of the
law violated
INFORMATION
1. need not be sworn
2. subscribed by the
fiscal
3. it may be filed either

in court or in the
prosecutors office
3. it is filed with the

court
Section 5. Who
criminal actions.
must
prosecute
FISCALS DISCRETION IN PROSECUTION

Prior to filing a case in court:
1. A prosecuting attorney cannot be compelled
to file a particular information when he is
convinced that he does not have the
necessary evidence.
2. The court cannot interfere with the Fiscals
discretion and control of the criminal
prosecution.
REMEDY: appeal the Fiscals decision to the
Dept. of Justice &/or ask for a special prosecutor
After the filing of the case:
1. Once a case is filed in court, the court
acquires jurisdiction and such continues
until the termination of the case.
2. Criminal prosecution cannot be restrained or
stayed by injunction, preliminary or final.
3. Prosecutor has no more control of the case

and desired relief must be addressed to the
court.
Offenses prosecuted only by the offended
party:
1. Adultery and concubinage (by the offended
spouse)
2. Seduction,
abduction,
and
acts
of
lasciviousnes (by offended party, parents,
grandparents, guardian, state)
3. Defamation which consists in the
imputation of an offense mentioned above
(by offended party)
RAPE is now classified under crimes against
persons. It may now be filed by the prosecutor.
(RA 8353)
* Compliance is not jurisdictional, but merely a
CONDITION PRECEDENT. In the sense that if
non-compliance is not objected to, the action
may still proceed.
Section 6. Sufficiency of complaint or

information.
Minimum requirements for a valid complaint
or information:
1. Name of the accused, including any
appellation or nickname
-- When offense is committed by more
than one person, all of them shall be
included in the complaint or information
2. The designation of the offense by the statute
3. The acts or omissions complained of as
constituting the offense
4. The name of the offended party
5. The approximate time of the commission of
the offense
6. The place wherein the offense was
committed
2000 Amendment
Sec. 8. Designation of the offense. The
complaint or information shall state the
designation of the offense given by the
statute; aver the acts or omissions
constituting the offense, and SPECIFY
ITS QUALIFYING AND AGGRAVATING
CIRCUMSTANCES. If there is no
designation of the offense, reference
shall be made to the section or
subsection of the statute punishing it.
Sec. 9. Cause of the accusation. The
acts or omissions complained of as
constituting the offense AND THE
QUALIFYING
AND
AGGRAVATING
CIRCUMSTANCES must be stated in
65

ordinary and concise language and not

necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to
know what offense is being charged AS
WELL AS ITS QUALIFYING AND
AGGRAVATING CIRCUMSTANCES and
for the court to pronounce judgment.
________
The information or complaint must state or
designate the following whenever possible:
1. The designation given to the offense by the
statute.
2. The statement of the acts or omissions
constituting the same, in ordinary, concise
& particular words.
-- if there is no such designation, reference
should be made to the section or subsection
punishing it.
3. The specific qualifying and aggravating
circumstances must be alleged.
The title or designation of the offense is not
controlling. It is the actual facts recited in the
information that determines the nature of the
crime.
Allegations prevail over the designation of the
offense in the information. The accused may
therefore be convicted of a crime more serious
than that named in the title or preliminary part if
such crime is covered by the facts alleged in the
body of the information and its commission is
established by evidence.
Limitation to the above rule:
An accused could not be convicted under
one act when he is charged with a violation
of another if the change from one statute to
the other involves:
a) Change of the theory of the trial
b) Requires the defendant a different
defense
c) Surprises the accused in anyway
Complaint must include the time and place of
commission, whenever necessary, and the name
of the offended party.
Qualifying and aggravating circumstances are
now required to be alleged in the complaint or
information. The failure to specifically allege
either circumstance, even if proved, cannot be
taken into account.
Section 12. Name of the offended

party.
In case of offenses against property, the

designation of the name of the offended party is
not absolutely indispensable; if unknown, the
subject property must be described with
particularity that it can be properly identified.
Section 13. Duplicity of offense.

GENERAL RULE: A single complaint
information must charge only one offense.
or
EXCEPTION: Complex crimes -- where the law

prescribes a single punishment for various
crimes
Section 14. Amendment.

2000 Amendment
Sec. 14. Amendment or substitution.
(now requires) any amendment before
plea, which downgrades the nature of
the offense charged in or excludes any
accused
from
the
complaint
or
information, can be made only upon
motion by the prosecutor, with notice to
the offended party and with leave of
court. The court shall state its reasons
in resolving the motion and copies of its
order shall be furnished all parties,
especially the offended party.
________
Before entering plea, amendment of a
complaint or information is a matter of right, in
substance and in form.
If the amendment downgrades the offense or
excludes one of the accused, it can only be
made upon motion by the prosecutor, with notice
to the offended party and with leave of court.
After the plea and during the trial, amendment
is a matter of judicial discretion (requires leave
of court) but only as to matters of form, and
when the same can be done without prejudice to
the rights of the accused.
If a complaint is erroneous in charging the
proper offense, the courts must dismiss it upon
filing of a new one. (Sec. 19, Rule 119)
AMENDMENT
1. May involve either
formal or substantial
changes
2. Amendment before
the plea has been
SUBSTITUTION OF
INFORMATION OR
COMPLAINT
1. Involves substantial
change from the
original charge
2. Substitution of
information must be
66

entered can be
effected without leave
of court.
3. Amendment is only
as to form, there is no
need for another
preliminary
investigation and the
retaking of the plea of
the accused.
4. An amended
information refers to
the same offense
charged in the original
information or to an
offense which
necessarily includes or
is necessarily included
in the original charge,
hence substantial
amendments to the
information after the
plea has been taken
cannot be made over
the objection of the
accused, for if the
original information
would be withdrawn,
the accused could
invoke double
jeopardy.
with leave of court as

the original information
has to be dismissed.
3. Another preliminary
investigation is
entailed and the
accused has to plead
anew to the new
information
4. Requires or
presupposes that the
new information
involves a different
offense which does not
include or is not
necessarily included in
the original charge,
hence the accused
cannot claim double
jeopardy.
Section 15. Place where action is to be

instituted.
To determine the correct venue, the vital point
is the allegation in the complaint or information
of the situs of the offense charged. If the
complaint or information alleges that the crime
was committed in the place where the court has
jurisdiction, then the court can hear and decide
the case.
Venue in criminal cases is an element of
jurisdiction; hence it cannot be waived, or
changed by agreement of the parties, or by the
consent of the defendant.
Where the crime charged is a complex crime,
the RTC of any province in which any one of the
essential elements of such complex crime had
been committed has jurisdiction to take
cognizance of the offense.
Continuing offense vs. local offense
CONTINUING OFFENSE is one where the
elements of which occur in several places,
unlike a LOCAL OFFENSE - one which is fully
consummated in one place.
PIRACY The jurisdiction of piracy, unlike all
other crimes, has no territorial limits.
Limitation to the rule on substitution:

1. No judgment has yet been rendered.
2. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein.
3. The accused would not be placed in double
jeopardy.
Transitory
distinguished:
and
continuing
offenses
TRANSITORY OFFENSE one where any of

the essential elements of the offense took place
in different places
CONTINUING OFFENSE one which is
consummated in one place, yet by reason of the
nature of the offense, the violation of the law is
deemed continuing.
offenses are continuing or transitory upon the
theory that there is a new commission,
continuance or repetition of the offense
wherever the defendant may be found.
in both offenses, the court of either province, in
which some acts material and essential to the
crime and requisite to its consummation occur,
has jurisdiction; it being understood that the first
court taking cognizance of the case will exclude
the others.
Section 16. Intervention of the

offended party in criminal action.
It is axiomatic that the prosecution of a criminal
case is the responsibility of the government
prosecutor and must always be under his
control. This is true even if a private prosecutor
is allowed to assist him and actually handles the
examination of the witnesses and the
introduction of other evidence. The witness,
even if they are the complaining witnesses,
cannot act for the prosecutor in the handling of
the case. Their only function is to testify.
RULE 111
PROSECUTION OF CIVIL ACTIONS
LIMITED TO THOSE ARISING FROM THE
OFFENSE CHARGED.
2000 Amendment
Sec. 1. Institution of criminal and civil
actions. (a) When a criminal action is
instituted, the civil action for the
recovery of civil liability ARISING FROM
THE OFFENSE CHARGED SHALL BE
DEEMED instituted with the criminal
67

action unless the offended party waives

the civil action, reserves his right to
institute it separately, or institutes the
civil action prior to the criminal action.
***
EXCEPT AS OTHERWISE PROVIDED IN
THESE RULES, NO FILING FEES SHALL
BE REQUIRED FOR ACTUAL DAMAGES.
NO COUNTERCLAIM, CROSS-CLAIM OR
THIRD PARTY COMPLAINT MAY BE
FILED BY THE ACCUSED IN THE
CRIMINAL CASE, BUT ANY CAUSE OF
ACTION WHICH COULD HAVE BEEN
THE SUBJECT THEREOF MAY BE
LITIGATED IN A SEPARATE CIVIL
ACTION.
(B) 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.
UPON FILING OF THE AFORESAID
JOINT CRIMINAL AND CIVIL ACTIONS,
THE OFFENDED PARTY SHALL PAY IN
FULL THE FILING FEES BASED ON THE
AMOUNT OF THE CHECK INVOLVED,
WHICH SHALL BE CONSIDERED AS THE
ACTUAL DAMAGES CLAIMED. WHERE
THE COMPLAINT OR INFORMATION
ALSO
SEEKS
TO
RECOVER
LIQUIDATED,
MORAL,
NOMINAL,
TEMPERATE
OR
EXEMPLARY
DAMAGES, THE OFFENDED PARTY
SHALL PAY ADDITIONAL FILING FEES
BASED ON THE AMOUNTS ALLEGED
THEREIN. IF THE AMOUNTS ARE NOT
SO ALLEGED BUT ANY OF THESE
DAMAGES
ARE
SUBSEQUENTLY
AWARDED BY THE COURT, THE FILING
FEES BASED ON THE AMOUNT
AWARDED SHALL CONSTITUTE A FIRST
LIEN ON THE JUDGMENT.
WHERE THE CIVIL ACTION HAS BEEN
FILED
SEPARATELY
AND
TRIAL
THEREOF HAS NOT YET COMMENCED,
IT MAY BE CONSOLIDATED WITH THE
CRIMINAL ACTION UPON APPLICATION
WITH THE COURT TRYING THE LATTER
CASE.
IF THE APPLICATION IS
GRANTED, THE TRIAL OF BOTH
ACTIONS
SHALL
PROCEED
IN
ACCORDANCE WITH SECTION 2 OF
THIS
RULE
GOVERNING
CONSOLIDATION OF THE CIVIL AND

CRIMINAL ACTIONS. (Circ. 57-97)
________
Under the present rule,
arising from the offense
instituted with the criminal;
enforced only in a single
multiplicity of suits.
only the civil liability

charged is deemed
it may and should be
proceeding to avoid
The 1988 amendments on implied institution of

criminal and civil actions arising from the same
act or omission including damages under Arts.
32,33,34 and 2176 of the Civil Code no longer
applies. They are no longer deemed impliedly
instituted with the criminal action or considered
as waived even if there is no reservation. Quasidelict is no longer deemed instituted with the
criminal action.
The present rule virtually adopts the ruling in
Elcano vs. Hill (77 SCRA 98) where it was
expressly held that the extinction of the civil
liability referred to in paragraph c, Sec. 2 of Rule
111, refers exclusively to civil liability arising from
crime; whereas, the civil liability for the same act
considered as a quasi-delict is not extinguished
even by a declaration in the criminal case that
the criminal act charged has not happened or
has not been committed by the accused.
Both actions may proceed separately; the only
limitation is the prohibition to recover damages
twice based on the same act or omission.
Recovery of civil liability under Arts. 32, 33, 34
and 2176 of the Civil Code arising from the
same act or omission may be prosecuted
separately even without a reservation. The
reservation and waiver herein refers only to the
civil action for the recovery of civil liability arising
from the offense charged.
Instances when civil liability arising from
offense charged not concurrently determined
in the criminal action:
1. when the offended party waives the civil
action
2. when the offended party reserves his right to
institute a separate civil action
3. when the offended party institutes a civil
action prior to the criminal action.
WHEN RESERVATION SHALL BE MADE:
Reservation to institute a separate civil
action shall be made:
1. before the prosecution starts to present its
evidence
2. under circumstances affording the offended
party to a reasonable opportunity to make
such reservation.
PURPOSE: to prevent the offended party from
recovering damages twice for the same act or
omission.
68

ACQUITTAL IN A CRIMINAL CASE DOES

NOT BAR CONTINUATION OF THE CIVIL
CASE WHERE:
1. the acquittal is based on reasonable doubt
2. the decision contains a declaration that the
liability of the accused is not criminal but only
civil
3. the civil liability is not derived from or based
on the criminal act of which the accused is
acquitted.
Counterclaims, cross-claims, third party
complaints are no longer allowed in a criminal
proceeding. Any claim which could have been
the subject thereof may be litigated in a separate
civil action.
-- Shafer vs. Judge, RTC of Olongapo (167
SCRA 376) no longer in force.
In BP 22 cases, the civil action is mandatorily
included in the criminal action. Filing fee shall be
based on the amount of the check involved
(actual damage). In other cases, no filing fees
shall be required for actual damages.
Section 2. When separate civil action

is suspended.
2000 Amendment
DURING THE PENDENCY OF THE
CRIMINAL ACTION, THE PERIOD OF
PRESCRIPTION OF THE CIVIL ACTION
WHICH
CANNOT
BE
INSTITUTED
SEPARATELY OR WHOSE PROCEEDING
HAS BEEN SUSPENDED SHALL NOT
RUN.
______
The amendment refers to a civil action arising
from a crime which is reserved or filed
separately and subsequently a criminal case is
filed if it has to be suspended to await final
judgment in the criminal action.
The period of prescription of the civil actions
under Section 3 of this rule shall not be
suspended because they can be instituted
separately. This refers to civil actions arising
from the offense charged which has not been
reserved or civil actions that has been filed
ahead of the criminal but has been suspended.
Section 3. When civil action may proceed
independently.
The institution of an independent civil action
against the offender under Arts. 32, 33, 34 and
2176 of the Civil Code may proceed
independently of the criminal case and at the
same time without suspension of either
proceedings.
2000 Amendment
Sec. 4. Effect of death on civil actions.
The death of the accused after
arraignment and during the pendency of
the criminal action shall extinguish the
civil liability arising from the delict.
However, the independent civil action
instituted under section 3 of this Rule or
which thereafter is instituted to enforce
liability arising from other sources of
obligation may be continued against the
estate or legal representative of the
accused after proper substitution or
against said estate, as the case may be.
The heirs of the accused may be
substituted for the deceased without
requiring the appointment of an executor
or administrator and the court may
appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal
representative or representatives to
appear and be substituted within a
period of thirty (30) days from notice.
A final judgment entered in favor of the
offended party shall be enforced in the
manner especially provided in these
rules for prosecuting claims against the
estate of the deceased.
If the accused dies before arraignment,
the case shall be dismissed without
prejudice to any civil action the offended
party may file against the estate of the
deceased. (n)
Under the amendment in Section 1, the
independent civil action under Section 3 may be
consolidated with the criminal action. Since
However, the Revised Rules on Criminal
Procedure limited the civil liability to what is
deemed impliedly instituted with the criminal
action to civil liability arising from the crime,
there would have been no need for the
amendment as death of the accused would only
extinguish such civil liability. The rule was
however retained by the Court to apply to the
civil actions under Section 3 of the Rule. The
rule would, however, apply only if any of the civil
actions under Section 3 is consolidated with the
criminal action, otherwise, since the actions
under Section 3 are purely civil actions, the
effects of death of a party are to be governed by
the Rules on Civil Procedure. (Rule 3, Section
16, 17 and 20, 1997 RCP)
2000 Amendment
69

Sec. 5. Elements of prejudicial question.

- The two (2) essential elements of a
prejudicial question are: (a) the
PREVIOUSLY
INSTITUTED
CIVIL
ACTION; xxx xxx xxx
_______
That which arises in a case, the resolution of
which is the logical antecedent of the issue
involved therein, and the cognizance of which
pertains to another tribunal
The prejudicial question must be determinative
of the case before the court but the jurisdiction
to try and resolve the question must be lodged in
another court or tribunal.
Elements of a prejudicial question:
1. The civil action must be instituted prior to the
criminal action.
2. The civil action involves an issue similar or
intimately related to the issue raised in the
criminal action.
3. The resolution of such issue determines
whether or not the criminal action may
proceed.
Petition for suspension on the ground of
PREJUDICIAL QUESTION is filed with:
1. Prosecutor or court conducting the
preliminary investigation
2. Court, before the prosecutor rests, if the
criminal action has already been filed in
court.
This section limits a prejudicial question to a
previously instituted civil action in order to
minimize possible abuses by the subsequent
filing of a civil action as an after thought for the
purpose of suspending the criminal action.
RULE 112
PRELIMINARY INVESTIGATION
Section 1
2000 Amendment
Sec. 1. Preliminary investigation defined;
when required. -- was broadened.
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.
Preliminary investigation is an inquiry or

proceeding to determine whether there exists
sufficient ground to engender a well-founded
belief that a crime cognizable by the RTC has
been committed and that the respondent is
probably guilty thereof, and should be held for
trial. (Sec. 1, Rule 112)
The present rule includes among offenses
entitled to preliminary investigation those
punishable by at least four (4) years, two (2)
months and one (1) day, even if the same is
cognizable by the MTC.
The right to preliminary investigation is a
personal right covered by statute and may be
waived.
Failure to object on the ground that there has
been no preliminary investigation will be deemed
to be a waiver of the accuseds right thereto and
such objection cannot be raised for the first time
on appeal.
During preliminary investigation, searching
questions and answers are ASKED.
REMEDIES OF THE ACCUSED IF THERE
WAS NO PRELIMINARY INVESTIGATION:
1. Refuse to enter a plea upon arraignment and
object to further proceedings upon such ground
2 Insist on a preliminary investigation
3. File a certiorari, if refused
4. Raise lack of preliminary investigation as
error on appeal
5. File for prohibition
PURPOSE
OF
PRELIMINARY
INVESTIGATION:
To protect the accused from the
inconvenience, expenses and burden of
defending himself in a formal trial unless the
reasonable probability of his guilt shall have
been first ascertained in a fairly summary
proceeding by a competent officer. It is also
intended to protect the state from having to
conduct useless and expensive trials.
Section 2. Officers authorized to

conduct preliminary investigation.
Persons authorized to conduct a preliminary
investigation:
1. Provincial or city fiscal and their assistants
2. Judges of the MTC and MCTC
3. National and regional state prosecutors
4. Such other officers as may be authorized by
law such as: the COMELEC, Ombudsman
and PCGG
2000 Amendment
70

Sec. 3. Procedure. The preliminary

investigation shall be conducted in the
following manner:
(a)
The complaint shall state the
address of the respondent and shall be
accompanied by affidavits of the
complainant and his witnesses, AS
WELL
AS
OTHER
SUPPORTING
DOCUMENTS
TO
ESTABLISH
PROBABLE CAUSE. They shall be in
such number of copies as there are
respondents, plus two (2) copies for the
official file. The affidavits shall be
subscribed and sworn to before any
prosecutor or government
official
authorized to administer oath, or, in their
absence or unavailability, before a notary
public, each of whom must certify that
he personally examined the affiants and
that he is satisfied that they voluntarily
executed and understood their affidavits.
(b)
Within ten (10) days after the filing
of the complaint, the investigating officer
shall either dismiss it if he finds no
ground
to
continue
with
the
investigation, or issue a subpoena to the
respondent, attaching to it a copy of the
complaint and its supporting affidavits
and documents.
THE RESPONDENT SHALL HAVE
THE RIGHT TO EXAMINE THE EVIDENCE
SUBMITTED BY THE COMPLAINANT
WHICH HE MAY NOT HAVE BEEN
FURNISHED AND TO COPY THEM AT HIS
EXPENSE.
IF THE EVIDENCE IS
VOLUMINOUS, THE COMPLAINANT MAY
BE REQUIRED TO SPECIFY THOSE
WHICH HE INTENDS TO PRESENT
AGAINST THE RESPONDENT, AND
THESE SHALL BE MADE AVAILABLE
FOR EXAMINATION OR COPYING BY
THE RESPONDENT AT HIS EXPENSE.
OBJECTS AS EVIDENCE NEED
NOT BE FURNISHED A PARTY BUT
SHALL BE MADE AVAILABLE FOR
EXAMINATION,
COPYING,
OR
PHOTOGRAPHING AT THE EXPENSE OF
THE REQUESTING PARTY.
(c)
Within ten (10) days from receipt
of the subpoena with the complaint and
supporting affidavits and documents, the
respondent shall submit his counteraffidavit and that of his witnesses AND
OTHER
SUPPORTING
DOCUMENTS
RELIED UPON FOR HIS DEFENSE. The
counter-affidavits shall be subscribed

and sworn to and certified as prescribed
in paragraph (a) of this section, with
copies thereof furnished by him to the
complainant. THE RESPONDENT SHALL
NOT BE ALLOWED TO FILE A MOTION
TO DISMISS IN LIEU OF A COUNTERAFFIDAVIT.
(d)
If the respondent cannot be
subpoenaed, or if subpoenaed, does not
submit counter-affidavits within the ten
(10) day period, the investigating officer
shall resolve the complaint based on the
evidence presented by the complainant.
(e)
The investigating officer may set
a hearing if there are facts and issues to
be clarified from a party or a witness.
The parties can be present at the hearing
but without the right to examine or
cross-examine.
They may, however,
submit to the investigating officer
questions which may be asked to the
party or witness concerned.
The hearing shall be held within
ten (10) days from submission of the
counter-affidavits and other documents
or from the expiration of the period for
their submission.
IT SHALL BE
TERMINATED WITHIN FIVE (5) DAYS.
(f)
Within ten (10) days after the
investigation, the investigating officer
shall determine whether or not there is
sufficient ground to hold the respondent
for trial.
A motion to dismiss is now a prohibited
pleading when the case is under preliminary
investigation and requires that the respondent
should submit counter-affidavits or other
supporting documents relied upon by him for his
defense.
2000 Amendment
Sec. 4. Resolution of investigating prosecutor and its review. -- If the
investigating prosecutor finds cause to
hold the respondent for trial, he shall
prepare the resolution and information.
He shall certify under oath in the
information that he, or as shown by the
record, an authorized officer, has
personally examined the complainant
and his witnesses; that there is
reasonable ground to believe that a
crime has been committed and that the
accused is probably guilty thereof; that
71

the accused was informed of the

complaint and of the evidence submitted
against him; and that he was given an
opportunity to submit controverting
evidence.
Otherwise,
he
shall
recommend dismissal of the complaint.
Within five (5) days from his resolution,
he shall forward the records of the case
to the provincial or city prosecutor or
chief state prosecutor, OR TO THE
OMBUDSMAN OR HIS DEPUTY IN
CASES OF OFFENSES COGNIZABLE BY
THE
SANDIGANBAYAN
IN
THE
EXERCISE
OF
ITS
ORIGINAL
JURISDICTION. They shall act on the
resolution within ten (10) days from their
receipt thereof and shall immediately
inform the parties of such action.
No complaint or information may be filed
or dismissed by an investigating
prosecutor without the prior written
authority or approval of the provincial or
city prosecutor or chief state prosecutor
OR THE OMBUDSMAN OR HIS DEPUTY.
Where the investigating prosecutor
recommends the dismissal of the
complaint but his recommendation is
disapproved by the provincial or city
prosecutor or chief state prosecutor OR
THE OMBUDSMAN OR HIS DEPUTY on
the ground that a probable cause exists,
the latter may, by himself, file the
information against the respondent, or
direct another assistant prosecutor or
state prosecutor to do so without
conducting
another
preliminary
investigation.
If upon petition by a proper party under
such rules as the Department of Justice
may prescribe or motu propio, the
Secretary of Justice reverses or modifies
the resolution of the provincial or city
prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned to
file the corresponding information
without conducting another preliminary
investigation or to dismiss or move for
dismissal of the complaint or information
with notice to the parties. The same rule
shall apply in preliminary investigations
conducted by the officers of the Office of
the Ombudsman.
Under the amendment, whether the
recommendation of the investigating officer is to
file or dismiss the case, he shall, within 5 days
from his resolution, forward the records of the

case to the provincial or city prosecutor or chief
state prosecutor or; for offenses cognizable by
the Sandiganbayan in the exercise of its original
jurisdiction to the Ombudsman or his deputy the
latter shall take appropriate actions thereon
within 10 days from receipt and shall
immediately inform the parties of said action.
This refers to a petition for review of the
prosecutors resolution pending at either the
Department of Justice or the Office of the
President; provided that the period of
suspension shall not exceed 60 days counted
from the filing of the petition with the reviewing
officer.
The municipal judge conducting preliminary
investigation has no authority to determine the
character of the crime but only to determine
whether or not the evidence presented
supported prima facie the allegation of fact
contained in the complaint.
If the prosecutor disagrees with the findings of
the investigating judge on the existence of
probable cause, the prosecutors ruling shall
prevail, subject to the procedure in the last
paragraph of section 5.
It is the prosecutor who is given by law
direction and control of all criminal actions. This
function is executive, not judicial. Hence, when
a preliminary investigation is conducted by a
judge, the judge performs a non-judicial function,
as an exception to his usual judicial duties.
2000 Amendment
Sec. 6. When warrant
issue. -
of
arrest
may
(a)
By the Regional Trial Court.
Within ten (10) days from the filing of the
complaint or information, the judge shall
personally evaluate the resolution of the
prosecutor and its supporting evidence.
He may immediately dismiss the case if
the evidence on record clearly fails to
establish probable cause. If he finds
probable cause, he shall issue a warrant
of arrest, or a commitment order if the
accused has already been arrested
pursuant to a warrant issued by the
judge who conducted the preliminary
investigation or when the complaint or
information was filed pursuant to section
7 of this Rule. In case of doubt on the
existence of probable cause, the judge
may order the prosecutor to present
additional evidence within five (5) days
from notice and the issue must be
resolved by the court within thirty days
72

from the filing of the complaint or

information.
(b)
By the Municipal Trial Court.
When required pursuant to the second
paragraph of section 1 of this Rule, the
preliminary investigation of cases falling
under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court may be
conducted by either the judge or the
prosecutor. When conducted by the
prosecutor, the procedure for the
issuance of a warrant of arrest by the
judge shall be governed by paragraph (a)
of this section. When the investigation
is conducted by the judge himself, he
shall follow the procedure provided in
section 3 of this Rule. If his findings and
recommendations are affirmed by the
provincial or city prosecutor, or by the
Ombudsman or his deputy, and the
corresponding information is filed, he
shall issue a warrant of arrest. However,
without waiting for the conclusion of the
investigation, the judge may issue a
warrant of arrest if he finds after an
examination in writing and under oath of
the complainant and his witnesses in the
form of searching questions and
answers, that a probable cause exists
and that there is a necessity of placing
the respondent under immediate custody
in order not to frustrate the ends of
justice.
(c)
When warrant of arrest not
necessary. A warrant of arrest shall not
issue if the accused is already under
detention pursuant to a warrant issued
by the municipal trial court in
accordance with paragraph (b) of this
section, or if the complaint or
information was filed pursuant to section
7 of this Rule or is for an offense
penalized by fine only. The court shall
then proceed in the exercise of its
original jurisdiction. (6a)
_______
Conditions before the investigating
municipal trial judge can issue a warrant of
arrest:
1. Have examined in writing and under oath the
complainant and his witnesses by searching
questions and answers;
2. Be satisfied that a probable cause exists;
3. That there is a need to place the respondent
under immediate custody in order not to
frustrate the ends of justice
PROBABLE CAUSE: Sufficient facts must be

presented to the judge or magistrate issuing the
warrant to convince him that there is probable
cause for believing that the person whose arrest
is sought committed the crime charged. It is not
required to prove that the particular person has
actually committed the crime.
The judge need not personally examine the
complaint and witnesses in the determination of
probable cause for the issuance of the warrant
of arrest. He is only required to:
1. Personally evaluate the report and the
supporting documents submitted by the fiscal
regarding the existence of probable cause
and, on the basis thereof, issue a warrant of
arrest;
2. If on the basis thereof he finds no probable
cause, he may disregard the prosecutors
report and require the submission of
supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence
of probable cause.
The amendment in subsection (b) regarding
the issuance of warrants of arrest by the MTC
contemplates two (2) distinct situations. Two
types of offenses may be filed in the MTC for
preliminary investigation:
1. a case cognizable by the RTC may be filed
with the MTC for preliminary investigation;
2. even if it is cognizable by the MTC because it
is 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.
In either situation, the MTC is authorized to
issue a warrant of arrest if there is necessity of
placing the respondent under immediate
custody, in order not to frustrate the ends of
justice, he shall issue a warrant of arrest.
2000 Amendment
Sec. 7. When accused lawfully arrested
without warrant. -- 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.
73

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.
investigation, whether conducted by a

judge or a prosecutor, shall not form part
of the record of the case. However, the
court, on its own initiative or on motion
of any party, may order the production of
the record or any of its part when
necessary in the resolution of the case
or any incident therein, or when it is to
be introduced as an evidence by the
requesting party. (8a)
After the filing of the complaint or

information
in
court
without
a
preliminary investigation, the accused
may, within (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. (7a; sec. 2, RA
7438)
Records of the preliminary investigation shall

not automatically form part of the records of the
case. Courts are not compelled to take judicial
notice thereof. It must be introduced as an
evidence.
_________
TWO
SITUATIONS
CONTEMPLATED
UNDER THIS RULE:
1. When a person is lawfully arrested without a
warrant for an offense requiring a preliminary
investigation (sec. 1, Rule 112) and no
complaint or information has yet been filed, he
may ask for a preliminary investigation by
signing a waiver of the provisions of Art. 125 of
the RPC in the presence of his counsel.
2. When the complaint or information was filed
without preliminary investigation, the accused
may, within 5 days from the time he learns of
the filing of the information, ask for a
preliminary investigation with the same right to
adduce evidence in his favor in the manner
prescribed in this Rule.
The request for preliminary investigation
should be made before plea, otherwise the right
to ask for a preliminary investigation shall be
deemed WAIVED.
2000 Amendment
Sec 8. Records.
(a) Records supporting the information
or complaint. AN INFORMATION OR
COMPLAINT FILED IN COURT SHALL BE
SUPPORTED BY THE AFFIDAVITS AND
COUNTER-AFFIDAVITS OF THE PARTIES
AND THEIR WITNESSES, TOGETHER
WITH
THE
OTHER
SUPPORTING
EVIDENCE AND THE RESOLUTION ON
THE CASE.
(b) Records of preliminary investigation.
The
record
of
the
preliminary
________
2000 Amendment
Sec. 9. Cases not requiring a preliminary
investigation nor covered by the Rule on
Summary Procedure.
(a) If filed with the prosecutor. - If the
complaint is filed directly with the prosecutor
involving
an
offense
punishable
by
imprisonment of less than four (4) years, two
(2) months and one (1) day, the procedure
outlined in Section 3(a) of this Rule shall

be observed. The prosecutor shall act on
the complaint based on the affidavits
and
other
supporting
documents
submitted by the complainant within ten
(10) days from its filing.
(b)
If filed with the Municipal Trial
Court. - If the complaint or information is
filed with the Municipal Trial Court or
Municipal Circuit Trial Court for an
offense covered by this section, the
procedure in Section 3(a) of this Rule
shall be observed. If within ten (10) days
after the filing of the complaint or
information, the judge finds no probable
cause
AFTER
PERSONALLY
EVALUATING THE EVIDENCE, or after
personally examining in writing and
under oath the complainant and his
witnesses in the form of searching
questions and answers, he shall dismiss
the same.
HE MAY, HOWEVER,
REQUIRE
THE
SUBMISSION
OF
ADDITIONAL EVIDENCE, WITHIN TEN
(10)
DAYS
FROM
NOTICE,
TO
DETERMINE FURTHER THE EXISTENCE
OF PROBABLE CAUSE. IF THE JUDGE
STILL FINDS NO PROBABLE CAUSE
DESPITE THE ADDITIONAL EVIDENCE,
HE SHALL, WITHIN TEN (10) DAYS FROM
ITS SUBMISSION OR EXPIRATION OF
SAID PERIOD, DISMISS THE CASE.
74

WHEN HE FINDS PROBABLE CAUSE, HE

SHALL ISSUE A WARRANT OF ARREST,
OR A COMMITMENT ORDER IF THE
ACCUSED
HAD
ALREADY
BEEN
ARRESTED, AND HOLD HIM FOR TRIAL.
HOWEVER, IF THE JDUGE IS SATISFIED
THAT THERE IS NO NECESSITY FOR
PLACING
THE
ACCUSED
UNDER
CUSTODY, HE MAY ISSUE SUMMONS
INSTEAD OF A WARRANT OF ARREST.
(9a)
________
Procedure to be followed in cases which do
not require preliminary investigation:
1. Evaluate the evidence presented
2. Conduct searching questions or answers
3. Require the submission of additional evidence
For cases under the Revised Rules on
Summary Procedure, no warrant shall be
issued except where the accused fails to appear
after being summoned.
RULE 113
ARREST
Section 1. Definition of arrest.
Arrest the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec. 1 Rule 113)
Modes of Arrest
1. arrest by virtue of a warrant
2. arrest without a warrant under statutorily
provided exceptional circumstances
Essential requisites of a valid warrant of
arrest:
1. It must be issued upon probable cause which
must be determined personally by a judge
after examination under oath or affirmation of
the complainant and the witnesses he may
produce
2. The warrant must particularly describe the
person to be seized
Section 2. Arrest; how made.

Modes of Effecting Arrest
1. By an actual restraint of the person to be
arrested
2. By his submission to the custody of the
person making the arrest
Section 4. Execution of warrant.

The head of the office to whom the warrant
has been delivered for execution shall cause the
warrant to be executed within 10 days from
receipt thereof.
Within ten days after the expiration of such

period, the officer to whom it was assigned for
execution, shall make a report to the judge who
issued the warrant and, in case of his failure to
execute, shall state the reasons thereof.
A warrant of arrest does not become stale or
functus officio unlike a search warrant which is
valid only for 10 days. A warrant of arrest
remains valid until arrest is effected or the
warrant lifted.
The rule as amended no longer requires a
return of the warrant of arrest but a report.
2000 Amendment
Sec. 5. Arrest without warrant; when
lawful.
xxx
xxx
xxx
(b)WHEN AN OFFENSE HAS JUST
BEEN COMMITTED AND HE HAS
PROBABLE CAUSE TO BELIEVE BASED
ON PERSONAL KNOWLEDGE OF FACTS
OR
CIRCUMSTANCES
THAT
THE
PERSON TO BE ARRESTED HAS
COMMITTED IT;
xxx
xxx
xxx
___________
WARRANTLESS ARRESTS:
1. The person to be arrested has committed, is
actually committing, or is attempting to
commit an offense.
2. The peace officer has probable cause to
believe based on personal knowledge of facts
or circumstances indicating that the person to
be arrested has committed a crime.
3. The person to be arrested is a prisoner who
has escaped from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
The present rule removed the requirement that
an offense must have in fact been committed
and clarified that probable cause to be based on
personal knowledge of facts facts and
circumstances that the person to be arrested
has committed it would be sufficient to justify a
warrantless arrest for an offense that has just
been committed.
The indubitable existence of a crime is not
necessary to justify a warrantless arrest and that
personal knowledge of facts in arrests without
warrant must be based upon probable cause,
which means an actual belief or reasonable
grounds of suspicion.
The ground of suspicion are reasonable when,
in the absence of actual belief of the arresting
75

officers, the suspicion that the person to be

arrested is probably guilty of committing the
offense is based on actual facts, i.e., supported
by circumstances sufficiently strong in
themselves to create the probable cause of guilt
of the person to be arrested.
The reasonable suspicion therefore must be
founded on probable cause, coupled with good
faith on the part of the peace officers making the
arrest.
The only difference is that in in flagrante
arrests, the facts constituting probable cause
occur in the presence of the arresting person,
while in hot pursuit, knowledge of the facts
occurred after the commission of the crime.
Section 6. Time of making arrest.

Unlike a search warrant which must be served
only in daytime, an arrest may be made on any
day and at any time of the day or night, even on
a Sunday. This is justified by the necessity of
preserving the public peace.
Section 11. Right of officer to break

into building or enclosure.
Requisites before an officer can break into
a building or enclosure to make an arrest:
1. That the person to be arrested is or is
reasonably believed to be in said building;
2. That he has announced his authority and
purpose for entering therein;
3. That he has requested and been denied
admittance.
Section 12. Right to break out of the

building or enclosure to effect release.
As an officer making an arrest may break into
a building when refused entry, he may also
break out therefrom (if locked in) for the
purpose of liberating himself.
A private person making an arrest cannot
break in or out of a building or enclosure
because only officers are allowed by law to
do so.
Section 13. Arrest after escape or

rescue.
Where a person lawfully arrested escapes or is
rescued, any person may immediately pursue or
retake him without a warrant at any time and in
any place within the country. The pursuit must
be immediate.
RULE 114
BAIL
Section 1. Bail defined.

Bail -- the security given for the release of a
person in custody of the law, furnished by him or
a bondsman, conditioned upon his appearance
before any court as required under the
conditions specified by the rule. (Sec. 1, Rule
114)
Forms of bail:
1. corporate surety
2. property bond
3. cash deposit
4. recognizance
2000 Amendment
Sec. 2. Conditions
of
the
bail;
requirements. xxx
xxx
xxx
The original papers shall state the full
name and address of the accused, the
amount of the undertaking and the
conditions herein required. Photographs
(passport size) TAKEN WITHIN THE
LAST SIX (6) MONTHS showing the face,
left and right profiles of the accused
must be attached thereto.
_________
Conditions of Bail:
(a) The undertaking shall be effective upon
approval, and, unless cancelled, shall remain in
force at all stages of the case until promulgation
of the judgment of the RTC, irrespective of
whether the case was originally filed in or
appealed to it;
(b) The accused shall appear before the
proper courts whenever so required by the court
or these Rules;
(c) The failure of the accused to appear at
the trial without justification despite due notice
shall be deemed a waiver of his right to be
present thereat. In such case, the trial may
proceed in absentia;
(d) The bondsman shall surrender the
accused to court for execution of the final
judgment.
Section 3. No release or transfer

except on court order or bail.
The right to bail accrues when a person is
arrested or deprived of liberty (in custody), and
must be exercised before final conviction.
Bail is either a matter of right or a matter of
discretion. It is a matter of right (absolute) when
the offense charged is punishable by any
penalty lower than reclusion perpetua.
Otherwise, the court has discretion to grant it.
76

The right to bail (as a matter of right) may not

be denied even where the accused has
previously escaped detention, or by reason of
his prior absconding.
The prosecution cannot adduce evidence for
the denial of bail where it is a matter of right.
However, where the grant of bail is discretionary,
the prosecution may show proof to deny the bail.
2000 Amendment
Sec. 5. Bail, when discretionary. THE
APPLICATION FOR BAIL MAY BE FILED
AND ACTED UPON BY THE TRIAL
COURT DESPITE THE FILING OF A
NOTICE OF APPEAL, PROVIDED IT HAS
NOT TRANSMITTED THE ORIGINAL
RECORD TO THE APPELLATE COURT.
HOWEVER, IF THE DECISION OF THE
TRIAL
COURT
CONVICTING
THE
ACCUSED CHANGED THE NATURE OF
THE OFFENSE FROM NON-BAILABLE
TO BAILABLE, THE APPLICATION FOR
BAIL CAN ONLY BE FILED WITH AND
RESOLVED BY THE APPELLATE COURT.
Section 6. Availability of bail to an
accused.
May be summarized as follows:
1. Regardless of stage of the criminal
prosecution, no bail shall be allowed if the
accused is charged with a capital offense or
an offense punishable by reclusion perpetua
and the evidence of guilt is strong.
2. Before and after conviction by the MTC, bail is
a matter of right. (Sec.4)
3. Before conviction by the RTC whether in the
exercise of its original or appellate
jurisdiction, bail is a matter of right. (Sec.4)
4. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or
life imprisonment, admission to bail is
discretionary.
5. After conviction by the RTC wherein a penalty
of imprisonment exceeding 6 but not more
than 20 years is imposed, and not one of the
circumstances below is present and proved,
bail is a matter of discretion. (Sec.5)
- Recidivism, quasi-recidivism or habitual
delinquency or commission of crime
aggravated by the circumstances of
reiteration.
- Previous escape from legal confinement,
evasion of sentence or violation of the
conditions of bail without valid
justification.
- Commission of the offense while on
probation, parole or under conditional
pardon
- Circumstance of the accused or his case
indicate the probability of flight if
released on bail
77
- Undue risk of commission of another

crime by the accused during pendency
of appeal.
6. After conviction by the RTC imposing a
penalty of imprisonment exceeding 6 years
but not more than 20 years and any of the
circumstance enumerated above and other
similar circumstance is present and proved,
no bail shall be granted.
7. After judgment has become final unless
accused applied for probation before
commencing to serve sentence of penalty
and offense within purview of probation law.
(Sec. 24)
Capital offense one which, under the law
existing at the time of its commission, and at the
time of the application to be admitted to bail,
may be punished by death.
Section 8. Burden of proof in bail

application.
Showing that evidence of guilt is strong, the

burden of proof is upon the prosecution at the
hearing for the application for bail by the person
in custody for the commission of an offense
punishable by death, reclusion perpetua or
imprisonment.
As distinguished from the records of the
preliminary
investigation,
the
evidence
presented during the bail hearings shall be
considered automatically reproduced at the trial.
Section 10. Corporate Surety.

Law governing corporate surety bail bond.
Act No. 536, Section 1 provides that no
head of department, court, judge, officer, board
or body executive, legislative or judicial shall
approve or accept any corporation as surety on
any recognizance, stipulation, bond, contract or
undertaking a) unless such corporation has
been authorized to do business in the Philippine
Islands in the manner provided by the provisions
of this of this Act, nor b) unless such corporation
has by contract with the Government of the
Philippines Islands been authorized to become a
surety upon official recognizance, stipulations,
bonds and undertakings.
Section 11. Property bond, how

posted.
Property bail bond
It is a lien on the real property given as
security for the amount of the bail and it is
annotated on the original Torrens title in the
Office of the Register of Deeds if the land is
registered, or if unregistered, in the Registration
Book, in the Office of the Register of Deeds for
the province or city where the land lies and on
the corresponding tax declaration in the office of
the
provincial
and
municipal
assessor

concerned. Non-annotation is sufficient cause

for the cancellation of the bond.
committed; or
-has not reside in the place
where the violation of the
law
or
ordinance
is
committed; or
-has no known residence
Section 15. Recognizance

Recognizance - an obligation of record, entered
into before some court or officer authorized to
take it with a condition to do some particular act
and the accused is often allowed to obligate
himself to answer the charge.
Section 16. Bail when not required;

reduced bail on recognizance.
Instances wherein the accused may be released
on recognizance, without putting bail or on
reduced bail:
CAN BE
RELEASED
WITHOUT BAIL
ON REDUCED
BAIL OR ON HIS
OWN
RECOGNIZANCE
UNDER THE
REVISED RULES
ON SUMMARY
PROCEDURE
1. Offense
charged
is
violation of an ordinance,
light felony or a criminal
offense, the imposable
penalty wherefore does not
exceed 6 months of
imprisonment and/or fine
of P 2,000 under R.A.6036.
2. Where the accused has
applied for probation and
before the same has been
resolved but no bail was
filed or the accused is
incapable of filing one, in
which case he may be
released on recognizance
3. In case of a youthful
offender held for physical
or mental examination, trial
or appeal, if unable to
furnish bail and under the
circumstances under PD
603, as amended
1. A person in custody for a
period equal to or more
than the minimum of the
principal penalty
prescribed for the offense
charged, without
application of the
indeterminate sentence
law or any modifying
circumstance shall be
released on reduced bail
or on his own
recognizance.
General Rule: no bail
Exception:
1. When a warrant of arrest is
issued for failure to appear
hen required by the court
2. When the accused
- is a recidivist;
- is a fugitive from justice;
- is charged with physical
injuries
- does not reside in the
place where the violation
of the law or ordinance is
2000 Amendment
Sec. 17. Bail, where filed. was
amended in that Bail in the amount fixed
may be filed with ANY REGIONAL TRIAL
JUDGE, METROPOLITAN TRIAL JUDGE,
MUNICIPAL
TRIAL
JUDGE,
OR
MUNICIPAL CIRCUIT TRIAL JUDGE IN
THE
PROVINCE,
CITY,
OR
MUNICIPALITY.
_________
Bail in the amount fixed may be filed with the
court where the case is pending, or in the
absence or unavailability of the judge of the
same court, within the province or city. This was
amended to include any regional trial judge,
metropolitan trial judge, municipal trial judge, or
municipal circuit trial judge in the province, city
or municipality.
Section 20. Increase or reduction of

bail.
After accused had been admitted to bail, the

court may, upon good cause shown, either
increase or decrease the amount and if
increased, the accused may be committed
unless he gives bail for additional amount.
An accused who is released without bail upon
filing of the complaint or information may at any
subsequent stage of the proceedings whenever
a strong showing of guilt appears to the court be
required to give bail or be committed.
2000 Amendment
Sec. 21. Forfeiture of bail. When the
presence of the accused is required by
the court or these Rules, his bondsmen
shall be notified to produce him before
the court on a given date AND TIME.
_________
Order of forfeiture vs. order of confiscation:
1. an order of forfeiture is conditional and
interlocutory, there being something more to
be done such as the production of the
accused within 30 days as provided by the
rules an order of forfeiture is not appealable
2. an order of confiscation is not independent of
the order of the order of forfeiture. It is a
judgment ultimately determining the liability of
the surety thereunder, and therefore final and
execution may issue at once.
78

The present amendment now requires that the

time be also specified, aside from the date.
Section 22. Cancellation of bailbond.
Instances when bail bond can be cancelled:

1. upon application by the bondsman with notice
to the fiscal and upon surrender of the
accused
2. upon proof that the accused died
The bail bond is automatically cancelled upon

the acquittal of the accused or dismissal of the
case, without prejudice to any liability on the
bond
Methods by which sureties may relieve
themselves from responsibilities
a. arrest the principal and deliver him to the
proper authorities
b. they may cause his arrest to be made by any
police officer or other person of suitable age
or discretion
c. by endorsing the authority to arrest upon a
certified copy of the undertaking and
delivering it to such officer or person
Section 23. Arrest of accused out on

bail.
An accused released on bail may be rearrested without a warrant if he attempts to
depart from the Philippines without prior
permission of the court where the case is
pending.
The finality of the judgment terminates the
criminal proceeding. Bail becomes of no avail.
The judgment contemplated is a judgment of
conviction. The judgment is final if the accused
does not appeal the conviction.
EXCEPTION: Although the judgment of
conviction is final, if the accused applies for
probation he may allowed temporary liberty
under his existing bail bond, or if no bail was
filed, or is incapable of filing one, he may be
released on recognizance to the custody of a
responsible member of the community
2000 Amendment
Sec. 26. Bail not a bar to objections on
illegal arrest, lack of or irregular
preliminary
investigation.
An
application for or admission to bail shall
not bar the accused from challenging the
validity of his arrest or the legality of the
warrant issued therefor, or from
assailing the regularity or questioning
the
absence
of
a
preliminary
investigation of the charge against him,
provided that he raises them before
entering his plea.

The court shall
resolve the matter as early as practicable
but not later than the start of the trial of
the case. (n)
This is an entirely new provision and is
intended to modify previous rulings of the court
that an application for bail by the accused shall
be considered as a waiver of his right to
challenge the legality of his arrest or the
absence of a preliminary investigation. (Callanta
vs, Villanueva, 77 SCRA 373)
RULE 115
RIGHTS OF THE ACCUSED
Section 1. Rights of the accused at the
trial.
RIGHTS OF THE ACCUSED:
A) To be presumed innocent
B) To be informed of the nature and the
cause of the accusation against him.
An arraignment thus becomes indispensable
as the means for bringing the accused into court
and notifying him of the cause he is required to
meet.
When a person is charged in a complaint with
a crime and the evidence does not show that he
is guilty thereof, but does show that he is guilty
of some other crime or a lesser offense, the
court may sentence him for the lesser offense,
provided the lesser offense is a cognate offense
and is included in the complaint with the court.
In capital offenses, when there is a

discrepancy between the designation of the
crime in the preamble to the information and the
facts pleaded in the body, the court should call
the attention of the accused, so that he may be
fully apprised of the nature and cause of the
accusation against him.
C) To be present and defend in person and
by counsel at every stage of the
proceeding
The presence of the accused is not
required at every stage of the trial but ONLY:
1. During arraignment (Sec. 1b, rule 116)
2. Promulgation of judgment except when the
conviction is for a light offense, in which case,
it may be pronounced in the presence of his
counsel or a representative
3. When ordered by the court for purposes of
identification
Purpose of trial in absentia
to speed up the disposition of criminal cases,
trial of which could in the past be indefinitely
79

deferred and many time completely abandoned

because of the defendants escape.
Conditions for trial in absentia to apply:
1. accused has been arraigned
2. he has been duly notified of the trial
3. his failure to appear is unjustified
The law securing to an accused person the

right to be present at every stage of the
proceedings has no application to the
proceedings before the Court of Appeals and the
Supreme Court nor to the entry and
promulgation of their judgments The defendant
need not be present in court during the hearing
of the appeal. (Sec. 9 Rule 124)
An escapee who has been duly tried in
absentia waives his right to present evidence on
his own behalf and to confront and crossexamine witnesses who testifies against him.
(Gimenez vs. Nazareno) or to appeal unless he
voluntarily submits to the jurisdiction of the court
or is otherwise arrested within 15 days from
notice of judgment against him. (People vs.
Mapalao).
D) Right to counsel.
The duty of the court to appoint a counsel de
oficio when the accused has no legal counsel of
choice and desires to employ the services of
one is mandatory only at the time of arraignment
(Sec. 6 Rule 116)
E) To testify as witness in his own behalf.
If he should testify on his own behalf, he may
be cross-examined as to any matter stated in his
direct examination.
F) Right against self-incrimination.
The right against self-incrimination is not selfexecuting or automatically operational. It must
be asserted.
Right of the accused against selfincrimination vs. right of that of an ordinary
witness
The ordinary witness may be compelled to
take the witness stand and claim the privilege as
each question requiring an incriminating answer
is shot at him, an accused may altogether refuse
to take the witness stand and refuse to answer
any and all questions.
G) Right to confront and cross examine the
witnesses against him at trial.
Either party may utilize as part of its evidence
the testimony of a witness who died, out of or
cannot with due diligence be found in the
country, unavailable or otherwise unable to
testify,
judicial
parties
having
him.
given in another case or proceeding,

or administrative, involving the same
and subject matter, the adverse party
had the opportunity to cross-examine
H) Right to speedy, impartial and public trial.

Remedies available to the accused when his
right to a speedy trial is violated:
1. He should ask not for the dismissal but for the
trial of the case
2. Unreasonable delay of the trial of a criminal
case as to make the detention of defendant
illegal gives ground for habeas corpus as a
remedy for obtaining release so as to avoid
detention for a reasonable period of time
3. Accused would be entitled to relief in a
mandamus proceeding to compel the
dismissal of the information
Public trial
- The court may upon its own motion exclude the
public from the courtroom if the evidence to be
produced during the trial is of such a character
as to be offensive to decency or public moral.
The court may also, upon motion of the
accused, exclude the public from trial except
court personnel and the counsel for the parties
(Sec. 13 Rule 119)
I) Right to appeal on all cases allowed by law
and in the manner prescribed by law.
RULE 116
ARRAIGNMENT AND PLEA
2000 Amendment
Sec. 1. Arraignment and plea; how made.
xxx
xxx
xxx
(d) When the accused pleads guilty but
presents exculpatory evidence, his plea
shall be deemed withdrawn and a plea of
not guilty shall be entered for him. (n)
(e) When the accused is under
preventive detention, his case shall be
raffled and its records transmitted to the
judge to whom the case was raffled
within three (3) days from the filing of the
information or complaint. The accused
shall be arraigned within ten (10) days
from the date of the raffle. The pre-trial
conference of his case shall be held
within ten (10) days after arraignment. (n)
(f) 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
80

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.
(Circ. 1-89)
(g) Unless a shorter period is provided
by special law or Supreme Court circular,
the arraignment shall be held within
thirty (30) days from the date the court
acquires jurisdiction over the person of
the accused. The time of the pendency
of a motion to quash or for a bill of
particulars or other causes justifying
suspension of the arraignment shall be
excluded in computing the period. (Sec.
2, Circ. 38-98)
_________
Arraignment - consists of reading the
information to the accused and asking him, in
open court whether or not he is guilty of what is
alleged against him
-- The accused must personally enter his plea
though he be charged with a light offense only.
An arraignment on the amended complaint/
information is mandatory, the petitioner having
the constitutional right to be informed of the
charge against him. Unless he had already been
arraigned and the amendment is only as to form
in which case there is no need to retake his
plea. (Teehankee, Jr. vs. Madayag).
The rule that the accused may be sentenced
for as many offenses as are charged in the
information shall apply only if the accused is
formally arraigned and required to plead on all
the offenses as are charged in the information.
Otherwise, the accused cannot be convicted of
the offense with respect to which he was not
properly arraigned.
Both arraignment and plea shall be made of
record, but a failure to enter of record shall not
affect the validity of the proceedings.
The accused is not entitled to know in advance
the names of all prosecution witnesses.
Prosecution may call witnesses other than those
named in the information.
Plea - the matter which the accused on his
arraignment, alleges in answer to the charge
against him.
There can be no double jeopardy where the
accused has not yet pleaded to the offense.
A mere written manifestation is not a valid

plea. For jeopardy to attach, it is necessary that
the defendant has been arraigned and has
pleaded to the charge because it is from that
moment that the issues are deemed joined.
Purpose of Plea
to make an issue. Without an issue, there is
nothing to be tried and nothing on which the
judgment and sentence of a court can be
properly predicated
When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be
entered for him. (People vs. Baliscan, 17
SCRA 1119)
Paragraph (d) refers to a situation where an
accused pleads guilty but invokes the mitigating
circumstance of incomplete self-defense (Article
13 RPC). If the accused after being allowed to
present evidence, however adduces proof not
only to establish incomplete self-defense, but
that he acted with legal justification, his earlier
plea of guilty shall be deemed withdrawn and a
plea of not guilty shall be entered for him.
Paragraph (e) provides for a shorter time
within which an accused who is detained should
be arraigned. This is shorter than what is
provided for in the Speedy Trial Act (RA 8493).
Under paragraph (f), to avoid delay, the
presence of the offended party is now required
during the arraignment and also to discuss the
matter of accuseds civil liability. His failure to
appear despite due notice gives the court
discretion to allow the accused to plead guilty to
a lesser offense with solely the conformity of the
trial prosecutor.
The amendment in (g) was taken from SC
Circular 38-98. HOWEVER:
SEC. 11. Suspension of arraignment.Upon motion by the proper party, the

arraignment shall be suspended in the
following cases:
(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
81

the Office of the President; Provided,

That the period counted from the filing of
the petition with the reviewing office.
(12a)
SEC. 9. Remedy where accused is not
brought to trial within the time limit.-If
the accused is not brought to trial within
the time limit required by Section 1 (g),
Rule 116 and Section 1, as extended by
Section 6 of this rule, the information
may be dismissed on motion of the
accused on the ground of denial of his
right to speedy trial. The accused shall
have the burden of proving the motion
but the prosecution shall have the
burden of going forward with the
evidence to establish the exclusion of
time under section 3 of this rule. The
dismissal shall be subject to the rules on
double jeopardy.
Failure of the accused to move for
dismissal prior to trial shall constitute a
waiver of the right to dismiss under this
section. (Sec. 14, Circ. 38-98)
There are, however, certain laws and
Supreme Court Circulars which provide for a
shorter period within which the accused should
be arraigned, such as:
a. Republic Act No. 4908, which requires that in
criminal cases where the complainant is
about to depart from the Philippines with no
definite date of return, the accused should be
arraigned without delay and his trial should
commence within three (3) days from
arraignment and that no postponement of the
initial hearing should be granted except on
the ground of illness on the part of the
accused or other grounds beyond the control
of the court.
b. R.A. No. 7610, the Child Abuse Act, which
requires that the trial of cases falling under
said law shall be commenced within three (3)
days from arraignment.
c. The Dangerous Drugs Law, which requires the
trial of cases falling under said law shall be
finished not later than ninety (90) days from
the filing of the information, and the decision
thereon, within fifteen (15) days from the
submission of the case.
d. Cases falling under Supreme Court
Administrative Order No. 104-96, i.e.,
heinous crimes, violations of the Intellectual
Property Rights Law, which are required to be
tried continuously until terminated within sixty
(60) days from commencement of trial and to
be decided within thirty (30) days from the
Sec. 2. Plea of guilty to a lesser offense.

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.
(sec. 4, Circ. 38-98)
__________
Section 5. Withdrawal of improvident

plea of guilty.
At any time before the judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty. This is not
a matter of absolute right on the part of the
defendant but lies entirely within the sound
discretion of the trial court, and appellate courts
shall not interfere with such discretion in the
absence of clear abuse thereof. A plea of guilty
later withdrawn is not admissible in evidence
against an accused.
In order to be valid, the plea must be an
unconditional admission of guilt. It must be of
such nature as to foreclose the defendants right
to defend himself from said charge, thus leaving
the court no alternative but to impose the
penalty fixed by law.
Section 6. Duty of court to inform accused
of his right to counsel.
Duties of the court when the accused
appears at the arraignment without counsel:
1. inform the accused of his right to counsel
2. ask him if he desires to have one
3. if he desires and is unable to employ an
attorney, the court must assign an attorney
de oficio to defend him; and
4. if the accused desires to procure an attorney
of his own, the court must grant him a
reasonable time therefor.
- Failure of the courts to fulfill/comply with this
duty is a denial of due process.
Section 7. Appointment of counsel de

oficio.
A private prosecutor who assisted the
prosecuting attorney in the prosecution
against one defendant is disqualified from
acting as counsel de oficio for the other
defendants in the same case. An attorney
cannot act in a double capacity.
2000 Amendment
82

Although the attorney appointed as counsel de

oficio had previously appeared as private
prosecutor in the case, if it appears that the
accused
was
properly
defended,
the
appointment, even if erroneous, is not a
reversible error.
In localities where such members of the bar
are not available, the court may appoint any
person who is:
1. resident of the province and
2. of good repute for probity and ability to defend
the accused.
2000 Amendment
Sec. 8. Time for counsel de oficio to
prepare for arraignment. Whenever a
counsel de oficio is appointed by the
court to defend the accused at the
arraignment, he shall be given a
REASONABLE TIME to consult with the
accused as to his plea before proceeding
with the arraignment.
__________
Under the old rule, the counsel de oficio only
had one hour to consult with the accused
before arraignment.
the time limit of one hour under the old rule
is substituted by REASONABLE TIME
The former Section 9 of this Rule is no longer
reproduced because under Section 1, Rule 119,
the accused shall have fifteen (15) days to trial,
which shall commence within thirty (30) days
from receipt of the pre-trial order.
At or before arraignment, the accused may
move for a bill of particulars.
The remedy against an indictment that fails to

allege the time of the commission of the offense
with sufficient definition is a motion for a bill of
particulars and not a motion to quash.
2. lack of jurisdiction over the offense charged

3. extinction of the offense or penalty
4. jeopardy
Section 2. Form and contents.

Form and contents of a motion to quash:
1. in writing
2. signed by the accused or his counsel
3. shall specify distinctly the factual and
legal grounds therefor.
A motion to suspend the issuance of a warrant
of arrest may be considered a motion to quash
because it is not the caption of the pleadings but
the allegations therein contained that should
prevail. The allegations of said motion, in effect,
mean that the information does not charge an
offense.
2000 Amendment
Sec. 3. Grounds. xxx
xxx
xxx
(b) That the court trying the case has no
jurisdiction over the offense charged;
(c) That the court trying the case has no
jurisdiction over the person of the
accused;
xxx
xxx
xxx
(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.
__________
The old phrase in jeopardy of being
convicted was replaced in par. (I) to conform
with People vs. Pineda (219 SCRA 1)
The ground under par. (b) of the old rule was
divided into two.
Section 1. Time to move to quash.
FACTS CHARGED DO NOT CONSTITUTE AN

OFFENSE
- if the statute excepts certain persons or
classes of persons from liability, the complaint
should show that the person charged does not
belong to that class. (U.S. vs. Pompeya).
- This principle does not apply if the language of
the defining the offense is so entirely separable
from the exception that the ingredients
constituting the offense may be accurately and
clearly defined without reference to the
exception.
The accused may move to quash the

complaint or information at any time BEFORE
entering his plea.
In par. (i), the phrase in jeopardy of being

convicted was replaced to conform to the ruling
of People vs. Pineda (219 SCRA 01)
Instances where a motion to quash may be

filed AFTER plea:
1. failure to charge an offense
JURISDICTION
1. Deals with the
powers of the court in
The failure to ask for Bill of Particulars

amounts to a waiver of such right.
RULE 117
MOTION TO QUASH
PROCEDURE
1. Deals with the
procedure by which
83

the
real
and
substantive sense.
2. The thing itself.
such powers are put

into action.
2. The vehicle by
which the thing is
transferred from the
court to the parties.
JURISDICTION
EXERCISE OF
JURISDICTION
Where
there
is
jurisdiction
of
the
person and subject
matter, the decision of
all other questions
arising in the case is
but an exercise of that
jurisdiction.
Being a power to hear

and determine, it does
not
depend
either
upon the regularity of
the exercise of that
power or upon the
rightfulness of the
decision made. The
authority to decide a
case at all, and not the
decision
rendered
therein, is what makes
up jurisdiction.
Requisites for criminal jurisdiction:

1. the offense is one which the court is by law
authorized to take cognizance of
2. the offense must have been committed within
its territorial jurisdiction
3. the person charged with the offense must
have been brought to its presence for trial,
forcibly by warrant of arrest or upon his
voluntary submission to the court
Classification of Criminal Jurisdiction
A. As to its object:
1. jurisdiction over the crime
2. jurisdiction over the person of the accused
3. jurisdiction over the place where the crime
was committed or territorial jurisdiction
B. As to its nature:
1. original and appellate jurisdiction
2. exclusive & concurrent jurisdiction
JURISDICTION OF THE
SUBJECT MATTER
JURISDICTION
OVER
THE PERSON OF THE
ACCUSED
1. Derived from the

law. It can never be
acquired solely by
consent
of
the
accused.
2. Objection that the
court
has
no
jurisdiction
of
the
subject matter may be
made at any stage of
the proceeding, and
the right to make such
objection
is
never
waived.
1. May be acquired by
consent of the accused
or
by
waiver
of
objections.
2. If he fails to make
his objection in time,
he will be deemed to
have waived it.
Instances when the criminal action or liability

is extinguished as a ground of a motion to
quash:
1. death of the convict, as to personal penalties

2. service of the sentence
3. amnesty
4. absolute pardon
5. prescription of the crime
6. prescription of the penalty
7. marriage of the offender with the offended
party, as provided in Article 344 of the same
Code.
2000 Amendment
Sec. 4. Amendment of complaint or
information. xxx
xxx
xxx
If it is based on the ground that
the facts charged do not constitute an
offense, the prosecution shall be given
by the court an opportunity to correct
the defect by amendment. The motion
shall be granted if the prosecution fails
to make the amendment, or the
complaint or information still suffers
from the same defect despite the
amendment. (n)
__________
If an alleged defect in the complaint or
information which is the basis of a motion to
quash can be cured by amendment, the court
shall order the amendment instead of quashing
the complaint or information. If, after the
amendment, the defect is still not cured, the
motion to quash should be granted.
Section 5. Effect of sustaining the

motion to quash.
Courses of action the court may take if it
sustains a motion to quash:
1. the dismissal of the information, which is
deemed to all intents and purposes, wiped
out and the case then stood as if no
information had ever been filed
2. the filing of a new information, if the accused
is in custody he shall remain so unless he is
released on bail. If there is no such order or if
there is such order and no new information is
filed within the period fixed in the order or
within such further time as the court may
allow for good cause shown, the accused,
who is in custody, shall be discharged
therefrom, unless he is in custody for another
offense.
Procedure in case of Denial of Motion to
Quash:
The defendant should go to trial without
prejudice on his part to present the special
defenses he had invoked in his motion and, if
after trial on the merits, an adverse decision is
rendered to appeal therefrom in the manner
authorized by law.
84

A motion to quash is always addressed to the

discretion of the court. Neither certiorari nor
prohibition lies against an order of the court
granting or denying a motion to quash an
information.
An order sustaining a motion to quash based
on the ground that the criminal action on the
liability has been extinguished or on double
jeopardy constitutes a bar to another
prosecution for the same offense.
2000 Amendment
Sec. 7. Former conviction or acquittal;
double jeopardy. xxx
xxx xxx
However, the conviction of the accused
shall not be a bar to another prosecution
for an offense which necessarily
includes the offense charged in the
former complaint or information under
any of the following instances:
(a) xxx
xxx
xxx
(b) The facts constituting the graver
charge
became
known
or
were
discovered only after a PLEA was
entered in the former complaint or
information; or
(c) The plea of guilty to the lesser
offense was made without the consent of
the prosecutor and of the offended party
EXCEPT AS PROVIDED IN SECTION 1(F)
OF RULE 116.
In any of the foregoing cases, where the
accused satisfies or serves in whole or
in part the judgment, he shall be credited
with the same in the event of conviction
for the graver offense. (7a) (No. 117970,
July 28, 1998)
3. the court which convicted or acquitted the

accused or dismissed or terminated the case
is a court of competent jurisdiction
4. the complaint or information was valid and
sufficient in form and substance to sustain a
conviction
5. the accused has pleaded to the charge
6. there is a subsequent prosecution against the
accused for the offense charged, or for any
attempt to commit the same or frustration
thereof, or for any offense which necessarily
includes or is necessarily included in the
offense charged in the former prosecution.
Dismissal vs. Acquittal
- Acquittal is always based on the merits, that
is, the defendant is acquitted because the
evidence does not show defendants guilt
beyond reasonable doubt; but dismissal does
not decide the case on the merits or that the
defendant is not guilty.
Occasions when double jeopardy will attach
even if the motion to dismiss the case is
made by the accused himself:
1. the ground is insufficiency of evidence of the
prosecution
2. when
the
proceedings
have
been
unreasonably prolonged in violation of the
right to a speedy trial. (People vs. Gines).
If the dismissal is based on insufficiency of
evidence to establish the guilt of the accused
beyond reasonable doubt, the dismissal is
actually an acquittal.
If the dismissal is based on the right of the
accused to a speedy trial, the dismissal amounts
to an acquittal and operates to bar another
prosecution for the same offense even if the
dismissal were upon motion of the accused.
Jeopardy -- exposure to danger. When a person

is prosecuted before a court which has authority
to decide the issue between the State and
himself, he is then exposed to danger in that he
is in peril of life and liberty
The discharge of a defendant on a preliminary

investigation is not such an adjudication in his
favor as will bar a subsequent prosecution for
the offense. This is because a preliminary
investigation is not trial or any part thereof and
does not have for its object that of determining
definitely the guilt of the accused by proofs,
counter-proofs, and the other formalities
prescribed by law.
Extent of protection afforded by the rule on

double jeopardy :
1. against the peril of a second punishment
2. against the peril of a second trial for the same
offense or for an attempt to commit the same
of frustration thereof.
same offense under the general rule, has

always been construed to mean not only
that the second offense charged is exactly
the same as the one alleged in the first
information but also that the two offenses
are identical.
Requisites for double jeopardy:

1. the accused has been convicted or acquitted
2. the case against him has been dismissed or
otherwise terminated without his express
consent
Test for determining whether the two

offenses are identical
- There is IDENTITY between two offense not
only when the second offense is exactly the
same as the first, but also when the second
offense is an attempt to or is necessarily
_________
85

included in the offense charged in the first

information.
3.
4.
Exceptions to the identity rule:

1. The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge.
2. The facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information.
3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party; except when the
offended party failed to appear during the
arraignment.
2000 Amendment
Sec. 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. (n)
If a case is provisionally dismissed with the

consent of the prosecutor and the offended
party, the failure to reinstate it within the given
period will make the dismissal permanent.
PERIOD FOR REINSTATEMENT:
a) offenses punishable by imprisonment not
exceeding 6 years = ONE YEAR
b) offenses punishable by imprisonment of more
than 6 years = TWO YEARS
Otherwise the dismissal shall be removed from
being provisional and becomes permanent.
Section 9. Failure to move to quash or

to allege any ground therefor.
If the accused does not move to quash the
complaint or information before he pleads
thereto he shall be taken to have waived all
objections which are grounds for a motion to
quash, EXCEPT: when the complaint or
information
1. does not charge an offense
2. the court is without jurisdiction over the
offense charged
86
the offense
extinguished
jeopardy
or
penalty
has
been
RULE 118
PRE-TRIAL
2000 Amendment
Sec. 1. Pre-trial; mandatory in criminal
cases. In all criminal cases cognizable
by the Sandiganbayan, Regional Trial
Court,
Metropolitan
Trial
Court,
Municipal Trial Court in Cities, Municipal
Trial Court, Municipal Circuit Trial Court,
the court shall, after arraignment and
within thirty (30) days from the date the
court acquires jurisdiction over the
person of the accused, unless a shorter
period is provided for in special laws or
circulars of the Supreme Court, order a
pre-trial conference to consider the
following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence
of the parties;
(d) waiver of objections to admissibility
of evidence;
(e) modification of the order of trial if the
accused
admits
the
charge
but
interposes a lawful defense; and
(f) such matters as will promote a fair
and expeditious trial of the criminal and
civil aspects of the case. (Secs. 2 & 3,
Circ. 38-98)
________
Pre-trial is MANDATORY in all criminal cases,
pursuant to the provisions of the Speedy Trial
Act.
2000 Amendment
Sec. 2. 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.
(Secs. 2 & 3, Circ. 38-98)
_________
Requisites before the pre-trial agreement can
be used as evidence:
1. they are reduced to writing

2. the pre-trial agreement is signed by the

accused and his counsel
Sec. 2-A. Pre-trial conference; subjects.

The pre-trial conference shall consider
the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence
of the parties;
(d) waiver of objections to admissibility
of evidence; and
(f) such matters as will promote a fair
and expeditious trial. (n)
_________
Subjects considered during the pre-trial:
1. plea bargaining
2. stipulation of facts
3. marking for identification of evidence of the
parties
4. waiver of objections to admissibility of
evidence
5. modification of the order of trial if the accused
admits the charge but interposes a lawful
defense; and
6. such other matters as will promote a fair and
expeditious trial
Plea bargaining - process whereby the accused
and the prosecutor in a criminal case work out a
mutually satisfactory disposition of the case
subject to court approval. It usually involves the
defendants pleading guilty to a lesser offense or
to only one or some of the counts of a multicount indictment in return for a lighter sentence
than that for the graver charge
2000 Amendment
Sec. 3. Non-appearance at pre-trial
conference. If the counsel for the
accused or the prosecutor does not
appear at the pre-trial conference and
does not offer an acceptable excuse for
his lack of cooperation, the court may
impose proper sanctions or penalties.
(Sec. 5, Circ. 38-98)
Sec. 4. Pre-trial order. After the pre-trial
conference, the court shall issue an
order reciting the actions taken, the facts
stipulated, and evidence marked. Such
order shall bind the parties, limit the trial
to matters not disposed of and control
the course of the action during the trial,
unless modified by the court to present
manifest injustice. (3)
_________
RULE 119
TRIAL
2000 Amendment
Sec. 1. Time to prepare for trial. After a
plea of not guilty is entered, the accused
shall have at least fifteen (15) days to
prepare for trial. The trial shall
commence within thirty (30) days from
receipt of the pre-trial order. (sec. 6, Circ.
38-98)
__________
Trial - the examination before a competent
tribunal according to the laws of the land, of the
facts put in issue in a case for the purpose of
determining such issue
2000 Amendment
Sec. 2. Continuous trial until terminated;
postponements. Trial once commenced
shall continue from day to day as far as
practicable until terminated. It may be
postponed for a reasonable period of
time for good cause. (2a)
The court shall, after consultation with
the prosecutor and defense counsel, set
the case for continuous trial on a weekly
or other short-term trial calendar at the
earliest possible time so as to ensure
speedy trial. In no case shall the entire
trial period exceed one hundred eighty
(180) days from the first day of trial,
except as otherwise authorized by the
Supreme Court. (Sec. 8, Circ. 38-98)
CONTINUOUS TRIAL SYSTEM
Trial once commenced shall continue from day
to day as far as practicable until terminated; but
it may be postponed for a reasonable period of
time for good cause.
Purpose of the continuous trial system is to
expedite the decision or resolution of cases in
the trial court.
Requisites before a trial can be put-off on
account of the absence of a witness:
1. that the witness is material and appears to the
court to be so
2. that the party who applies has been guilty of
no neglect
3. that the witnesses can be had at the time to
which the trial is deferred and incidentally that
no similar evidence could be obtained
4. that an affidavit showing the existence of the
above circumstances must be filed
Remedies of accused where a prosecuting
officer without good cause secures
87

postponements of the trial of a defendant

against his protest beyond a reasonable
period of time:
1. mandamus to compel a dismissal of the
information
2. if he is restrained of his liberty, by habeas
corpus to obtain his freedom
the SC adopted the continuous trial system as
a mode of judicial fact-finding and adjudication
conducted with speed and dispatch so that trials
are held on the scheduled dates without
postponement, the factual issues for trial welldefined at pre-trial and the whole proceedings
terminated and ready for judgment within 90
days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.
The system requires that the Presiding Judge:
1. adhere faithfully to the session hours
prescribed by laws;
2. maintain full control of the proceedings; and
3. effectively allocate and use time and court
resources to avoid court delays.
2000 Amendment
Sec. 3. Exclusions. The following
periods of delay shall be excluded in
computing the time within which trial
must commence:
(a) Any period of delay resulting from
other proceedings concerning the
accused, including but not limited to
the following:
(1) Delay resulting from an
examination of the physical and
mental condition of the accused;
(2)
Delay
resulting
from
proceedings with respect to other
criminal charges against the
accused;
(3)
Delay
resulting
from
extraordinary remedies against
interlocutory orders;
(4) Delay resulting from pre-trial
proceedings; provided, that the
delay does not exceed thirty (30)
days;
(5) Delay resulting from orders of
inhibition, or proceedings relating
to change of venue of cases or
transfer from other courts;
(6)Delay resulting from a finding
of the existence of a prejudicial
question; and
(7) Delay reasonably attributable
to any period, not to exceed thirty
(30) days, during which any

proceeding
concerning
the
accused
is
actually
under
advisement.
(b) Any period of delay resulting from
the absence or unavailability of an
essential witness.
For purposes of this subparagraph,
an essential witness shall be
considered
absent
when
his
whereabouts are unknown or his
whereabouts cannot be determined
by due diligence.
He shall be
considered unavailable whenever his
whereabouts are known but his
presence for trial cannot be obtained
by due diligence.
(c) Any period of delay resulting from
the mental incompetence or physical
inability of the accused to stand trial.
(d) If the information is dismissed
upon motion of the prosecution and
thereafter a charge is filed against
the accused for the same offense,
any period of delay from the date the
charge was dismissed to the date the
time limitation would commence to
run as to the subsequent charge had
there been no previous charge.
(e) Any reasonable period of delay
when the accused is joined for trial
with a co-accused over whom the
court has not acquired jurisdiction,
or, as to whom the time for trial has
not run and no motion for separate
trial has been granted.
(f) Any period of delay resulting from
a continuance granted by any court
motu proprio, or on motion of either
the accused or his counsel, or the
prosecution, if the court granted the
continuance on the basis of his
findings set forth in the order that the
ends of justice served by taking such
action outweigh the best interest of
the public and the accused in a
speedy trial. (Sec. 9, Circ. 38-98)
__________
88

Delays covered by the exclusions enumerated

under section 3 are subtracted from the
computation of the 180-day trial in section 2.
2000 Amendment
Sec. 4. Factors for granting continuance.
The following factors, among others,
shall be considered by a court in
determining
whether
to
grant
a
continuance under section 3(f) of this
Rule.
(a) Whether or not the failure to grant a
continuance in the proceeding would
likely make a continuation of such
proceeding impossible or result in a
miscarriage of justice; and
(b) Whether or not the case taken as a
whole is so novel, unusual and complex,
due to the number of accused or the
nature of the prosecution, or that it is
unreasonable
to
expect
adequate
preparation within the periods of time
established therein.
In addition, no continuance under
section 3(f) of this Rule shall be granted
because of congestion of the courts
calendar or lack of diligent preparation
or failure to obtain available witnesses
on the part of the prosecutor. (Sec. 10,
Circ. 38-98)
Sec. 5. Time limit following an order for
new trial. If the accused is to be tried
again pursuant to an order for a new
trial, the trial shall commence within
thirty (30) days from notice of the order,
provided that if the period becomes
impractical due to unavailability of
witnesses and other factors, the court
may extend it but not to exceed one
hundred eighty (180) days from notice of
said order for a new trial. (Sec. 11, Circ.
38-98)
Sec. 6. Extended time limit.
Notwithstanding the provisions of
Section 1 (g), Rule 116 and the preceding
Section 1, for the first twelve-calendar
month period following its effectivity on
September 15, 1998, the time limit with
respect to the period from arraignment
to trial imposed by said provision shall
be one hundred eighty (180) days. For
the second twelve-calendar month
period, the time limit shall be one
hundred twenty (120) days, and for the
third twelve-calendar month period, the

time limit shall be eighty (80) days. (Sec.
7, Circ. 38-98)
Sec. 7. Public attorneys duties where
accused is imprisoned. If the public
attorney assigned to defend a person
charged with a crime knows that the
latter is preventively detained, either
because he is charged with a bailable
crime but has no means to post bail, or,
is charged with a non-bailable crime, or,
is serving a term of imprisonment in any
penal institution, it shall be his duty to
do the following:
(a) Shall promptly undertake to obtain
the presence of the prisoner for trial or
cause a notice to be served on the
person having custody of the prisoner
requiring such person to so advise the
prisoner of his right to demand trial.
(b) Upon receipt of that notice, the
custodian of the prisoner shall promptly
advise the prisoner of the charge and of
his right to demand trial. If at anytime
thereafter the prisoner informs his
custodian that he demands such trial,
the latter shall cause notice to that effect
to be sent promptly to the public
attorney.
(c) Upon receipt of such notice, the
public attorney shall promptly seek to
obtain the presence of the prisoner for
trial.
(d) When the custodian of the prisoner
receives from the public attorney a
properly supported request for the
availability of the prisoner for purposes
of trial, the prisoner shall be made
available accordingly. (Sec. 12, Circ. 3898)
Sec. 8. Sanctions. In any case in which
private counsel for the accused, the
public attorney, or the prosecutor:
(a) Knowingly allows the case to be set
for trial without disclosing that a
necessary witness would be unavailable
for trial;
(b) Files a motion solely for delay which
he knows is totally frivolous and without
merit;
(c) Makes a statement for the purpose of
obtaining continuance which he knows
to be false and which is material to the
granting of a continuance; or
(d) Willfully fails to proceed to trial
without justification consistent with the
89

provisions hereof, the court may punish

such counsel, attorney, or prosecutor, as
follows:
(1) By imposing on a counsel
privately retained in connection with
the defense of an accused, a fine not
exceeding twenty thousand pesos
(P20,000.00);
(2) By imposing on any appointed
counsel de oficio, public attorney, or
prosecutor a fine not exceeding five
thousand pesos (P5,000.00); and
(3) By denying any defense counsel
or prosecutor the right to practice
before the court trying the case for a
period not exceeding thirty (30) days.
The punishment provided for by this
section shall be without prejudice to
any appropriate criminal action or
other sanction authorized under
these rules. (Sec. 13, Circ. 38-98)
Sec. 9. Remedy where accused is not
brought to trial within the time limit. If
the accused is not brought to trial within
the time limit required by Section 1 (g),
Rule 116 and Section 1, as extended by
Section 6 of this Rule, the information
may be dismissed on motion of the
accused on the ground of denial of his
right to speedy trial. The accused shall
have the burden of proving the motion
but the prosecution shall have the
burden of going forward with the
evidence to establish the exclusion of
time under Section 3 of this Rule. The
dismissal shall be subject to the rules on
double jeopardy.
Failure of the accused to move for
dismissal prior to trial shall constitute a
waiver of the right to dismiss under this
section. (Sec. 14, Circ. 38-98)
Sec. 10. Law on speedy trial not a bar to
provision on speedy trial in the
Constitution. NO PROVISION OF LAW
ON SPEEDY TRIAL AND NO RULE
IMPLEMENTING THE SAME SHALL BE
INTERPRETED AS A BAR TO ANY
CHARGE OF DENIAL OF SPEEDY TRIAL
GUARANTEED UNDER ARTICLE III,
SECTION 14 (2), OF THE 1987
CONSTITUTION. (Sec. 15, Circ. 38-98)
The Supreme Court issued A.M. No. 00-5-03SC on December 1, 2000. IT amended the
Revised Rules on Criminal Procedure (Rules
110-127 of the Revised Rules of Court)
The amendments made in RULE 119 (TRIAL)

were based on SC Circular 38-98, which is the
Implementing Rule of the Speedy Trial Act of
1998 (RA 8493).
Sections 3 to 10 were inserted after Section 2,
as amended. The provisions covering Section 3
to 15 of the old Rule were re-numbered
accordingly from Section 11 to 23.
Applications for continuances are addressed to
the sound discretion of the court. In this respect,
it may be said that the discretion which the trial
court must be judicial and not arbitrary.
Where the court conceives it to be necessary
for the more perfect attainment of justice, it has
the power upon the motion of either party to
continue the case. But a party charged with a
crime has no natural or inalienable right to a
continuance. (Marcos vs. Ruiz, 213 SCRA 177)
Parties have a right to be present at the trial of
their cases either by themselves or by their
attorneys. They are also entitled to reasonable
notice of the time set for the trial. So if the trial
court discovers that either of the parties to the
action has not been notified of the trial, it may,
on its own motion, grant a new trial.
The corresponding responsibilities of the
principal, accomplice and accessory are distinct
from each other. As long as the commission of
the offense can be duly established in evidence,
the determination of the liability of the
accomplice
or accessory can
proceed
independently of that of the principal.
Section 12. Application for

examination of witness for accused
before trial.
Accused may have his witness examined
conditionally in his behalf BEFORE trial upon
motion with notice to all other parties
Motion must be supported by affidavit of the
accused and such other evidence as the court
may require
The motion must state:
1. name and residence of witness
2. substance of testimony
3. witness is so sick to afford reasonable ground
to believe that he will not be able to attend the
trial or resides more that 100 km and has no
means to attend the same, or other similar
circumstances exist that would make him
unavailable or prevent him from attending trial
Section 13. Examination of defense

witness; how made.
90

If the court is satisfied that the examination of

witness is necessary as provided in SECTION 4,
order shall be made and a copy served on the
fiscal.
The examination shall be taken before any
judge or if not practicable any member of the
Bar in good standing designated in the order
Requisites for admission into the witness
protection program :
1. person has witnessed or has knowledge or
information on the commission of a crime
2. has testified or is testifying or about to testify
before any judicial or quasi-judicial body or
before any investigating authority
3. the offense in which his testimony will be used
is a grave felony as defined under the
Revised Penal Code, or its equivalent under
special laws
4. his
testimony
can
be
substantially
corroborated in its material points
5. he or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to his life or
bodily injury or there is a likelihood that he
will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying or to
testify or evasively because of or on account
of his testimony
6. he is not a law enforcement officer, even if he
would be testifying against other law
enforcement officers. In such case, only
immediate members of his family may avail
themselves of the protection provided for
under the Witness Protection Act
Responsibilities of a witness under the
protection program:
1. to testify before and provide information to all
appropriate
law
enforcement
officials
concerning all appropriate proceedings in
connection with or arising from the activities
involved in the offense charged
2. to avoid the commission of a crime
3. to take all necessary precautions to avoid
detection by others of the facts concerning
the protection provided him
4. to comply with legal obligations and civil
judgments against him
5. to cooperate with respect to all reasonable
requests of officers and employees
6. to regularly inform the appropriate program
official of his current activities and address.
The granting of a separate trial when two or
more defendants are jointly charged with an
offense is discretionary with the trial court.
Section 17. Discharge of accused to

be state witness.
Conditions imposed for the discharge of one
or more accused to be a state witness, the
court must be satisfied of the following:
1. absolute necessity for the testimony
2. no other direct evidence available for the

prosecution
3. testimony can be substantially corroborated
in its material points
4. accused not the most guilty
5. accused has never been convicted of an
offense involving moral turpitude
- The prosecutor must first present evidence and
sworn statement of the proposed state witness.
Rules Relative to the Use of Person Himself
If Particips Criminis As Government
Witness:
- When an offense is committed by more than
one person, it is the duty of the fiscal to include
all of them in the complaint or information;
- If the fiscal desires to utilized one of those
charged with the offense as a government
witness, the fiscal may ask the court to
discharge one of them after complying with the
conditions prescribed by law;
There is nothing in the rule from which it can
be inferred that before a person can be
presented as a government witness that he be
first included as a co-accused in the information,
for the fiscal is free to produce as a witness
anyone whom he believes can testify to the truth
of the crime charged; and the failure to follow
the requirements of the rule relative to the use of
a person, himself particips criminis, as a
government witness does not violate the due
process clause of the constitution, nor render his
testimony ineffectual if otherwise competent and
admissible.
1. All requisites to be complied with.
The discharge of an accused that he may
turn state witness is expressly left to the
discretion of the court. The court has the
exclusive responsibility to see that conditions
prescribed by the rules exist.
2.
More than
discharged.
one
accused
may
be
It all depends upon the needs of the fiscal

and the discretion of the judge. Any error of the
trial judge in this manner cannot have the effect
of invalidating the testimony of the discharged
co-defendants.
3. Effects of Discharge
Evidence adduced in support of the discharge
shall automatically form part of the trial
If the court denies the motion to discharge the
accused as state witness, his sworn statement
shall be inadmissible in evidence.
Discharge of accused operates as an acquittal
and bar to further prosecution for the same
offense.
91

EXCEPTIONS:
1. If the accused fails or refuses to testify
against his co-accused in accordance with
his sworn statement constituting the basis of
the discharge
2. Failure to testify refers exclusively to
defendants will or fault
3. Where an accused who turns states evidence
on a promise of immunity but later retracts
and fails to keep his part of the agreement,
his confession of his participation in the
commission of the crime is admissible as
evidence against him.
An amended information is not a new
information but a continuation of the previous
one, so that a discharge under the original
information is just as binding upon the
subsequent amended information.
Section 19. When mistake has been

made in charging the proper offense.
The provision of Section 11 does not refer to
any mistake in charging the proper offense. It
refers to such a mistake whereby the defendant
cannot be convicted of the offense charged, nor
of any other offense necessarily included
therein. In such case, a new information should
be filed charging the accused with the proper
offense without discharging him by keeping him
in custody or under bail.
2000 Amendment
Sec. 23. Demurrer to evidence. The
motion for leave of court to file demurrer
to evidence shall specifically state its
grounds and shall be filed within a nonextendible period of five (5) days after
the prosecution rests its case.
If leave of court is granted, the accused
shall file the demurrer to evidence within
a non-extendible period of ten (10) days
from notice. The prosecution may
oppose the demurrer to evidence within
a similar period from its receipt.
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 certiorari before
judgment. (n)
After the prosecution has rested its case, the
accused has 5 DAYS to file a motion for leave of
court to file a demurrer to evidence.
dismiss provided the demurrer was made with

the express consent of the court. The purpose of
leave is to determine whether or not the
defendant in a criminal case has filed the
demurrer merely to stall the proceedings.
An order denying a demurrer to evidence
being interlocutory is not appealable.
RULE 120
JUDGMENT
Section 1. Judgment; definition and
form.
Judgment - the adjudication by the court that
the accused is guilty or not guilty of the offense
charged and the imposition of the proper penalty
and civil liability provided for by the law.
It is not necessary that the judge who tried the
case be the same judicial officer to decide it. It is
sufficient if he be apprised of the evidence
already presented by a reading of the transcript
of the testimonies already introduced, in the
same manner as appellate courts review
evidence on appeal.
Section 2. Contents of the judgment.

Judgment must be in writing in the official
language personally and directly prepared and
signed by the judge with a concise statement of
the fact and the law on which it is based.
The proper remedy where the judgment was
not put in writing: file a petition for mandamus to
compel the judge to put in writing the decision of
the court.
If the judgment is one of CONVICTION,
judgment must state:
1. Legal ratification of the offense constituted by
the admissions of the accused and the
aggravating and mitigating circumstances
attending its commission
2. Participation of me accused, whether as
principal, accomplice or accessory
3. Penalty imposed upon the accused
4. Civil liability or damages caused by the
wrongful act, unless separate civil action has
been reserved or waived
If the judgment is one of ACQUITTAL, it must
make a finding on the civil liability of the
accused, unless there is clear showing that the
act from which the civil liability might arise did
not exist.
The arrest rule allows the accused in a criminal

case to present evidence even after a motion to
92

Section 3. Judgment for two or more

offenses.
When two or more offenses charged in the
complaint or information, and the accused fails
to object to it before trial, the court may convict
the accused of as many offenses as charged
and proved.
Section 4. Judgment in case of

variance between allegation and
proof.
When there is variance between the offense

charged in the complaint or information, and that
proved or established by the evidence, and the
offense as charged is included in or necessarily
includes the offense proved, the accused shall
be convicted of the offense proved included in
that which is charged, or of the offense charged
included in that which is proved.
Section 5. When an offense includes or

is included in another.
An offense charged necessarily includes another
when some essential elements or ingredients of
the offense charged constitute the offense
proved, or when the essential elements or
ingredients of the offense charged constitute or
form part of those constituting the offense
proved, then one offense is included in the other.
2000 Amendment
Sec. 6. Promulgation of judgment. The 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.
If the accused is confined or detained in
another province or city, the judgment
may be promulgated by the executive
judge of the Regional Trial Court having
jurisdiction
over
the
place
of
confinement or detention upon request
of the court which rendered the
judgment. The court promulgating the
judgment shall have authority to accept
the notice of appeal and to approve the
bail bond pending appeal; PROVIDED,
THAT IF THE DECISION OF THE TRIAL
COURT CONVICTING THE ACCUSED
CHANGED THE NATURE OF THE

OFFENSE FROM NON-BAILABLE TO
BAILABLE, THE APPLICATION FOR BAIL
CAN ONLY BE FILED AND RESOLVED
BY THE APPELLATE COURT.
The proper clerk of court shall give
notice to the accused personally or
through his bondsman or warden and
counsel, requiring him to be present at
the promulgation of the decision. IF THE
ACCUSED WAS TRIED IN ABSENTIA
BECAUSE HE JUMPED BAIL OR
ESCAPED FROM PRISON, THE NOTICE
TO HIM SHALL BE SERVED AT HIS LAST
KNOWN ADDRESS.
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.
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) FROM
NOTICE. (6a)
__________
Judgment does not become effective until it is
promulgated. And where the judgment is
modified, the modified sentence does not
become a sentence in law until the same has
been read or announced to the defendants or
has become a part of the record of the court.
Promulgation
of
judgment
official
proclamation or announcement of judgment. It
consists of reading the judgment or sentence in
the presence of the accused and any judge of
the court rendering the judgment.
93

When the judge is absent or outside of the

province or city, the judgment may be
promulgated by the clerk of court.
To be valid, the judgment must be signed and
promulgated during the incumbency of the judge
who signed the same. However, it is not
necessary that the judge who prepares and
signs the decision be the one who heard the
case.
The proper clerk of court shall give notice to
accused personally or through his bondsman or
warden and counsel requiring him to be present
at the promulgation if he fails to appear at the
promulgation shall consist of recording of the
judgment in the docket and a copy thereof shall
be served upon the accused and his counsel.
If the accused is confined or detained in
another province or city, the judgment may be
promulgated by the executive judge of the RTC
having jurisdiction over the place of confinement
or detention upon request of the court that
rendered the judgment.
The judgment or sentence, which must be
promulgated in the presence of the defendant, is
the sentenced rendered by the RTC after the
trial of the case by the said court. What is
required of the judgment of the appellate court is
that certified copies of the same must be sent by
the clerk of the appellate court to the lower court
not for promulgation or reading thereof to the
defendant, but for the execution of the judgment
against him.
Section 9. Existing provisions

governing suspension of sentence,
probation and parole not affected
by this Rule.
Youthful offender
- A child, minor or youth, including one who is
emancipated in accordance with law, who is
over nine years but under eighteen years of age
at the time of the commission of the offense.
Instances when suspension of sentence
shall not apply to youthful offender:
1. has previously enjoyed suspension of
sentence
2. if convicted of an offense punishable by
death or life imprisonment.
Probation - it is a disposition under which a
defendant after conviction and sentences, is
released subject to conditions imposed by the
court and to the supervision of a probation
officer.
Probationer - refers to the person placed on
probation.
Probation Officer - refers to one who
investigates for the court a referral for a
probation or supervises a probationer or both.
Application for probation must be made within
the period for perfecting an appeal
An order granting or denying probation IS NOT
APPEALABLE
Where the accused fails to appear without

justifiable cause, despite due notice to him, his
bondsmen or counsel, he is considered to have
waived his right to appeal. However, if within
fifteen-day period of appeal, he voluntarily
surrenders to the court or is otherwise arrested,
then he may avail of the right to appeal within
said period of appeal.
Mandatory provisions of the probation order:

1. present himself to the probation officer
designated to undertake his supervision at
such place as may be specified in the order
within seventy-two hours from receipt of said
order
2. report to the probation officer at least once a
month at such time and place as specified
by said officer.
Section 7. Modification of judgment.
Effectivity of Probation Order

- Upon its issuance, at which time the court shall
inform the offender of the consequences thereof
and explain that upon his failure to comply with
any of the conditions prescribed in the said order
or his commission of another offense, he shall
serve the penalty imposed for the offense under
which he was placed on probation.
Upon motion of the accused, a judgment of

conviction may be modified or set aside by the
court before it has become final or before an
appeal has been perfected.
The prosecutor cannot ask for the modification
or setting aside of a judgment of conviction
because the rules clearly provide that a
judgment of conviction may be modified or set
aside by the court rendering upon motion of the
accused.
Effect on Civil Liability

- Probation affects only the criminal aspect of the
case; it does not follow that the civil liability of
the offender is extinguished.
Modification of conditions on probation
- During the period of probation, the court - may,
upon the application of either the probationer or
the probation officer, revise or modify the
94

conditions or period of probation. The court

shall inform in writing the probation officer and
the probationer of any change in the period or
conditions of probation.
therein rendered has become final, whereby

errors of law or irregularities are expunged from
the record, or new evidence is introduced, or
both steps are taken
Role of the Probation Officer

Without the report of the probation officer,
the trial court could not issue the order of final
discharge of the probationer. It is the order of
final discharge which would restore the
probationers suspended civil rights. In the
absence of the order of final discharge, the
probation would still subsist, unless otherwise
revoked for cause.
Cases when the trial court lose jurisdiction

over its sentence even before the lapse of 15
days:
1. When the defendant voluntarily submits to the
execution of the sentence
2. When the defendant perfects his appeal. The
moment the appeal is perfected the court a
quo loses jurisdiction over it, except for the
purpose of correcting clerical errors.
Parole - refers to the conditional release of an

offender from a penal or correctional institution
after he has served the minimum period of his
prison sentence under the continued custody of
the state and under conditions that permit his
reincarceration if he violated a condition of his
release
Factors for consideration in executive
clemency
1. age of the petitioner
2. gravity of the offense
3. manner in which it was committed
4. institutional behavior or conduct of the
accused
5. previous criminal record if any
Special factors for consideration in granting
parole:
1. old age, provided the prisoner was not yet 60
years of age at the time of the commission of
the offense
2. physical disability such as when the prisoner
is bed-ridden, a deal-mute, a leper, a cripple
or is blind, provided the prisoner was not
suffering from such disability at the time of
the commission of the offense
3. serious illness duly certified by a government
physician
4. similar circumstances which show that
continued imprisonment will be inhuman or
will pose grave danger to the life of the
prisoner
5. evidence that the subject will be legitimately
employed at release
6. a showing that the subject has a place where
he can establish residence
7. availability of after-care service for a prisoner
who is old, seriously ill or suffering from
physical disability
RULE 121
NEW TRIAL OR RECONSIDERATION
Section 1. New trial or reconsideration.
New trial - the rehearing of a case already
decided but before the judgment of conviction
Section 2. Grounds for new trial.

Grounds for a new trial in criminal cases:
1. errors of law or irregularities committed during
the trial prejudicial to the substantial rights of
the accused
2. new and material evidence discovered:
During the trial - refers to every stage of the
trial from arraignment to judgment
Requisites before a new trial may be granted
on the ground of newly discovered evidence:
1. that the evidence was discovered after trial
2. that such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence
3. that it is material not merely cumulative,
corroborative or impeaching
4. the evidence is of such a weight that it would
probably change the judgment if admitted
Section
reconsideration.
3.
Grounds
for
Grounds of motion for reconsideration

1. errors of law
2. errors of fact in the judgment, which require
no further proceedings
Section 4. Form of motion and notice

to the prosecutor.
Requisites for a motion for new trial or
reconsideration:
The motion for a new trial or reconsideration
shall be:
1. in writing
2. filed with the court
3. State grounds on which it is based
4. If the motion for new trial is based on a newly
discovered evidence, it must be supported by
the affidavits of the witness by whom such
evidence is expected to be given, or duly
authenticated copies of documents which it is
proposed to introduce in evidence.
95

5. Notice of the motion for new trial or

reconsideration shall be given to the fiscal
Section 5. Hearing on motion.

Where a motion for a new trial calls for the
decision of any question of fact the court may
hear evidence of such motion by affidavits or
otherwise
- An appeal in a criminal case opens the whole

case for review and this includes the review of
the penalty, indemnity, and the damages
involved. Consequently, on appeal, the appellate
court may increase the penalty, indemnity, or the
damages awarded by the trial court, although
the offended party had not appealed from said
award, and the party who sought a review of the
decision was the accused.
Section 2. Who may appeal.

Section 6. Effects of granting a new
trial or reconsideration.
Effects of granting a new trial or
reconsideration:
1. when a new trial is granted on the ground of
errors of law or irregularities committed during
the trial, all proceedings and evidence not
affected by the commission of such errors and
irregularities shall stand, but those affected
thereby shall be set aside and taken anew.
The court may, in the interest of justice, allow
the introduction of additional evidence
2. when a new trial is granted on the ground of
newly discovered evidence, the evidence
already taken shall stand, and the newly
discovered and such other evidence as the
court may, in the interest of justice, allow to
be introduced, shall be taken and considered
together with the evidence already in the
record
3. In all cases, when the court grants new trial or
reconsideration, the original judgment shall
be set aside and a new judgment rendered
accordingly.
- The effect of the granting of a new trial is not to
acquit the accused of the crime of which the
judgment finds him guilty, but precisely to set
aside said judgment so that the case may be
tried de novo as if no trial had been before, for
the purpose of rendering a judgment in
accordance with the law, taking into
consideration the evidence to be presented
during the second trial.
RULE 122
APPEAL
Section 1. Where to appeal.
Appeal - a proceeding for review by which the
whole case is transferred to the higher court for
a final determination
Appeal is not an inherent right of convicted
person. The right of appeal is and always has
been statutory.
Effect of an appeal:
Any party may appeal from a final judgment or

order, except if the accused would be placed
thereby in double jeopardy
The Supreme Court has established the
invariable ruling that the prosecution cannot
appeal from a judgment wherein the accused is
acquitted for the reason that he is exposed for
the second time to the danger of being punished
for the same offense. Nor does certiorari lie to
restore a criminal case, which has been
terminated by the acquittal of the accused.
An appeal by the prosecution from the order of
dismissal (of the criminal case) by the trial court
shall not constitute double jeopardy if:
The dismissal is made upon motion, or with
the express consent of the defendant, and the
dismissal is not an acquittal or based upon
consideration of the evidence or merits of the
case and the question to be passed upon the
appellate court is purely legal so that should the
dismissal be found incorrect, the case would
have to be remanded to the court of origin for
further proceedings, to determine the guilt or
innocence of the defendant.
Every criminal case involves two actions, one
criminal and another civil. From a judgment
convicting the accused, two appeals may
accordingly be taken. The accused may seek a
review of said judgment, as regards both
actions. Similarly, the complainant may appeal
with respect only to the civil action, either
because the lower court has refused or failed to
award damages, or because the award made is
unsatisfactory to him. The right of either to
appeal or not to appeal, in the event of
conviction of the accused, is not dependent
upon the other.
A private prosecutor in a criminal case has no
authority to act for the People of the Philippines
before a court on appeal. It is the governments
counsel, the Solicitor General, who appears in
criminal cases or their incidents before the
Supreme Court. At the very least, the Provincial
Fiscal himself, with the conformity of the Solicitor
General.
Right to Appeal the Civil Award
96

The civil award in a criminal case may be

appealed by the private prosecutor on behalf of
the offended party or his successors. The
adequacy of the award may be challenge on the
ground that is not commensurate with the gravity
of the injuries sustained as a result of the
offense committed by the accused.
The accused may not, on appeal by the
adverse party, be convicted of a more serious
offense or sentenced to a higher penalty to
justify the increase in the civil indemnity.
Section 3. How appeal taken.

How appeal is taken:
1. Appeal to the Regional Trial Court: by filing
a notice of appeal with the court which
rendered the judgment or order appealed from
and serving a copy to the adverse party
2. Appeal to the Court of Appeals from
decision of the Regional Trial Court in the
exercise of its original jurisdiction: by filing
a notice of appeal with the court which
rendered the judgment or order appealed from
and serving a copy to the adverse party
3. Appeal to the Court of Appeals in cases
decided by Regional Trial Court in the
exercise of its appellate jurisdiction: by
petition for review
4. Appeal to the Supreme Court in cases where
penalty imposed is life imprisonment or
where a lesser penalty is imposed but
involving offenses committed on the same
occasion or arising out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death or life
imprisonment is imposed: by filing a notice of
appeal with the court which rendered the
judgment or order appealed from and serving
a copy to the adverse party
5. Death penalty: automatic review by the
Supreme Court
6. Other appeals to the Supreme Court: by
petition for review on certiorari
Section 4. Publication of notice of

appeal.
If copy of the notice of appeal cannot be
served on the adverse party or his counsel, it
may be done by publication. Service by
publication is made in a newspaper of general
circulation in the vicinity once a week for a
period not exceeding 30 days.
Section 5. Notice waived.

The appellee may waive his right to a notice
that an appeal has been taken. The appellate
court may, in its discretion, entertain an appeal
notwithstanding failure to give such notice if the

interests of justice so require.
Section 6. Where appeal to be taken.

An appeal must be filed within 15 days
counted from the promulgation or notice of the
judgment or order appealed from.
Section 10. Transmission of records in

case of death penalty.
In case of death penalty, the records shall be
forwarded to the Supreme Court for automatic
review and judgment, within 20 days but not
earlier than 15 days after the promulgation of the
judgment or notice of denial of any motion for
new trial or reconsideration. The transcript shall
also be forwarded within 10 days after the filing
thereof by the stenographic reporter.
The 20 days within which the records of a case
involving a death sentence should be forwarded
to the Supreme Court is not rigid or absolute,
much less jurisdictional. It is intended for a case
wherein the accused sentenced to death says
nothing and does nothing within the period of 15
days within which case remains within the
jurisdiction on the trial court.
Section 12. Withdrawal of appeal.

An appellant may withdraw his appeal before
the record has been forwarded by the clerk of
court to the proper appellate court as provided
by Section 8, in which case the judgment shall
become final.

oficio for accused on appeal.
Duties of the clerk of the trial court to the
appellant who is confined in prison upon the
presentation of notice of appeal:
1. he shall ascertain from the appellant, whether
he desires the Court of Appeals or the
Supreme Court to appoint an attorney to
defend him de oficio
2. he shall transmit with the record, upon a form
to be prepared by the clerk of the appellate
court, a certificate of compliance with this duty
of the response of the appellant to his inquiry
RULE 123
PROCEDURE IN THE MUNICIPAL
TRIAL COURTS
97

Section 1. Uniform Procedure.

Procedure to be observed in Metropolitan
Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts
They shall all observe the same procedure as in
the Regional Trial Courts except:
1. where a particular provision expressly or
impliedly applies only to the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts or Regional Trial Courts
2. In criminal cases governed by the Rules on
Summary Procedure in Special Cases
adopted on August 1,1 983 and revised on
November 15, 1991.
RULE 124
PROCEDURE IN THE COURT OF
APPEALS
oficio for the accused.
Requisites before an accused can be given a
counsel de oficio on appeal:
1. that he is confined in prison
2. without counsel de parte on appeal
3. signed the notice of appeal himself
Exceptions to the requisites
An accused-appellant not confined to prison
can have a counsel de oficio if requested by him
in the appellate court within 10 days from receipt
of the notice to file brief and the right thereto is
established by affidavit
Section 3. When brief for the appellant

to be filed.
Brief - literally means a short or condensed
statement. The purpose of the brief is to present
to the court in concise form the points and
questions in controversy, and by fair argument
on the facts and law of the case, to assist the
court in arriving at a just and proper conclusion.
Issues which were never raised in the

proceedings before the trial court cannot be
considered and passed upon on appeal.
Section 8. Dismissal of appeal for

abandonment or failure to prosecute.
Dismissal of Appeal; Need of Notice to
Appellant
- The Court of Appeals may dismiss motu propio
or on motion by appellee an appeal for failure on
the part of the appellant to file his brief on time,
but it must have a notice served upon the
appellant of the action to be taken by said court
before dismissing motu propio the appeal.
Effect of Escape of Accused; Abandonment
of Appeals
- If the convict escapes from prison or
confinement or refuses to surrender to the
proper authorities, jumps bail or flees to a
foreign country he is deemed to have
abandoned his appeal and the judgment of the
court below becomes final.
Section 9. Prompt disposition of cases.

It is discretionary for the appellate court
whether to order a hearing of the case before it
or decide the appeal solely on the evidence
submitted to the trial court.
If the Court of Appeals chooses not to hear the

case, the Justices composing the division may
just deliberate on the case, evaluate the
recorded evidence on hand and then decide it.
Section 10. Judgment not to be

reversed or modified except for
substantial error.
The reversal of judgments entered in the court
below is prohibited, except for prejudicial error
that which tends to prejudice a substantial right
of a party to the proceedings.
Section 12. Power to receive evidence.

Other powers of the Court of Appeals
Section 7. Contents of briefs.

Unlike the procedure in civil cases, it has been
held that it is not essential for the accused to
make assignment of errors in his brief, as on
appeal, the whole record of the case is
submitted to and reviewable by the appellate
court.
Aside from these powers, the rule empowers the

Court of Appeals:
1. to try cases and conduct hearings
2. receive evidence
3. perform any and all acts necessary to resolve
factual issues raised in cases
a) falling under its original jurisdiction
b) involving claim for damages arising from
provisional remedies
c) wherein new trial is granted on the ground
of newly discovered evidence
98

Section 13. Quorum of the court.

If the Court of Appeals imposes a penalty of
reclusion perpetua or higher, it shall render
judgment imposing the penalty of reclusion
perpetua or higher as the circumstances warrant
but shall refrain from entering judgment and
instead certify the case and elevate the entire
record to the Supreme Court for review.
Purpose of the preceding rule
- This will obviate unnecessary, pointless and
time-wasting shuttling of criminal cases between
the Supreme Court and the Court of Appeals for,
by then, the Supreme Court will acquire
jurisdiction over the case from the very inception
and can, without bothering the Court of Appeals
which has fully completed the exercise of its
jurisdiction, do justice in the case
Section 14. Motion for new trial.

- Motion for new trial based on Newly
Discovered Evidence may be filed at any time
after the appeal from the lower court has been
perfected and before the judgment of the
appellate court convicting the accused becomes
final.
Section
16.
reconsideration.
Rehearing
or
A re-hearing is not a matter of right but a

privilege to be granted or not, according as the
court sees fit, the matter being solely within its
discretion.
New questions cannot be presented for the
first time on a motion for rehearing, especially
where they are inconsistent with positions taken
on the original hearing, or waived on the original
A second motion for rehearing or
reconsideration of a final judgment or order is
not allowed because if parties are allowed to file
as
many
motions
for
rehearing
or
reconsideration as their discretion or caprice
suits,
the
proceedings
would
become
undeterminable and unnecessarily voluminous
The mittimus shall be stayed during the
pendency of the motion for rehearing or
reconsideration
MITTIMUS - A process issued by the court after
conviction to carry out the final judgment, such
as commanding a prison warden to hold the
accused in accordance with the terms of the
judgment.
It is the final process of carrying into effect the

decision of the appellate court and the
transmittal thereof to the court of origin is
predicated upon the finality of the judgment
A motion for reconsideration of its judgment or
final resolution shall be resolved by the Court of
Appeals within 90 days from the time it is
submitted for resolution, and no 2nd motion for
reconsideration for the same party shall be
entertained.
2000 Amendment
Sec. 18. Application of certain rules in
civil to criminal cases. The provisions
of Rules 42, 44 to 46 and 48 to 56 relating
to procedure in the Court of Appeals and
in the Supreme Court in original and
appealed civil cases shall be applied to
criminal cases, insofar ass they are
applicable and not inconsistent with the
provisions of this Rule.
The corresponding amendment was made
pursuant to the changes introduced under the
1997 Rules of Procedure.
Rule 47 (Annulment of Judgments of Final
Judgment and Resolutions) DOES NOT APPLY
TO CRIMINAL CASES. The appropriate
remedy for lack of jurisdiction or extrinsic
fraud is CERTIORARI (Rule 65) or HABEAS
CORPUS (Rule 102).
RULE 125
PROCEDURE IN THE SUPREME
COURT
Section 1. Uniform Procedure.
A case may reach the Supreme Court in the
following manner:
1. automatic review
2. ordinary appeal
3. petitioner for review on certiorari
Effect of direct appeal to the Supreme Court
on question of law in criminal cases
A direct appeal to the Supreme Court on
questions of law in criminal cases in which the
penalty imposed is not death or life
imprisonment precludes a review of the facts.
- Cases involving both questions of law and fact
come within the jurisdiction of the Court of
Appeals.
- APPEALS TO THE SUPREME COURT NOT
A MATTER OF RIGHT; but a matter of sound
99

judicial discretion on the part of the Supreme

Court. The prescribed mode of appeal is by
certiorari. The findings of fact of the appellate
court are conclusive on the Supreme Court.
- When certain material facts and circumstances
had been overlooked which if taken into
account, would after the result in that they would
introduce an element of reasonable doubt which
would entitle the accused to acquittal.
Section 2. Review of decisions of the

Court of Appeals.
Exceptions to the rule that finds of fact of the
Court of Appeals is conclusive upon the
Supreme Court:
1. when the conclusion is a finding grounded
entirely on speculation, surmises or
conjectures
2. when the inference made is manifestly
absurd, mistaken or impossible
3. when there is grave abuse of discretion in the
appreciation of facts
4. when the judgment is premised on a
misapprehension of facts
5. when the findings of fact are conflicting
6. when the Court of Appeals in making its
findings went beyond the issues of the case
and the same is contrary to the admissions of
both appellant and appellee
7. when
certain
material
facts
and
circumstances had been overlooked which, if
taken into account would after the result as it
would give rise to reasonable doubt to acquit
the accused.
Question of law - when the doubt or difference
arises as to what the law is on a certain state of
facts. It must not involve an examination of the
probative value of the evidence presented by the
litigants or any of them.
Question of fact - when the doubt or difference
arises as to the truth or the falsehood of alleged
facts
Section 3. Decision if opinion is

equally divided.
A criminal case shall be reheard by the
Supreme Court when the Court en banc is
equally divided in opinion or the necessary
majority cannot be had, if no decision is reached
the conviction of the lower court shall be
reversed and the accused acquitted.
According to the Constitution, only the
Supreme Court en banc may modify or reverse
a doctrine or principle of law or ruling laid down
by the Court in a decision rendered en banc or
in division.
RULE 126
SEARCH AND SEIZURE
Section 1. Search warrant defined.
Elements of search warrant:
1. order in writing
2. signed by the judge in the name of the People
of the Philippines
3. commanding a peace officer to search
personal property
4. bring the property before the court
NATURE OF SEARCH WARRANTS
- Search warrants are in the nature of criminal
process and may be invoked only in furtherance
of public prosecutions. Search warrants have no
relation to civil process or trials and are not
available to individuals in the course of civil
proceedings, nor for the maintenance of any
mere private right
SEARCH vs. SEIZURE
The term search as applied to searches and
seizures is an examination of a mans house or
other buildings or premises or of his person with
a view to the discovery of contraband or illicit or
stolen property or some evidence of guilt to be
used in the prosecution of a criminal action for
some offense with which he is charged
A seizure is the physical taking of a thing into
custody
GENERAL WARRANT
A process which authorizes the search and
seizure of things, in a general manner, without
specifying or describing them with particularity,
like
the
equipment,
paraphernalia,
communications,
records,
publications,
documents, instruments, items, supplies, and
other evidence in connection with the violation of
an offense.
WARRANT OF
ARREST
SEARCH WARRANT
1. order directed to the

peace officer to
execute the warrant
by taking the person
stated therein into
custody that he may
be bound to answer
for the commission
of the offense.
1. order in writing in
the name of the RP
signed by the judge
and directed to the
peace officer to
search personal
property described
therein and to bring it
to court. (sec. 1)
2. does not become

stale
2. validity is for 10
days only (sec. 9)
3. may be served on
any day and at any
3. to be served only in
daytime unless the
100

time of day or night.

(sec. 6, rule 113).
affidavit alleges that

the property is on the
person or in the
place to be
searched. (sec. 8)
4. upon probable cause to be determined

personally by the judge after examination in
writing and under oath in the form of
searching answers and questions.
5. only issued if there
is a necessity of
placing accused
under immediate
custody
5. sworn statements
and affidavits of
complainant and
witnesses must be
submitted to court.
Test to determine Particularity

1. When the description therein as specific as
the circumstances will ordinarily allow
2. When the description express a conclusion of
fact- not of law which the warrant officer may
be guided in making the search and seizure.
3. When the things described are limited to
those which bear direct relation to the offense
for which the warrant is being issued.
2000 Amendment
Sec. 2. Court where application for
search warrant shall be filed. An
application for search warrant shall be
filed with the following:
(a) Any court within whose territorial
jurisdiction a crime was committed.
a. Under the foregoing amendment, a search

warrant may not be applied for and issued by
any judge but only by the judge within whose
territorial jurisdiction a crime was committed or;
b. Where the place of commission of the crime is
not known, the application may be filed before
any court which has territorial jurisdiction over
the place where the search warrant shall be
enforced. In either case, there is a nexus
between the Court issuing the search warrant
and the place to be searched;
c. But even where the place of commission of
the crime is known, the application may
nevertheless be filed, for compelling reasons
which shall be shown, before any court within
the judicial region where the crime was
committed.
d. Where, however a criminal action has already
been filed, the search warrant shall only be
applied for in the court where such action is
pending.
This is in conformity that where the court
acquires jurisdiction, over a particular case, it
does so to the exclusion of all other courts
including the issuance of ancillary writs and
processes;
e. As to the range of enforceability, the search
warrant may be enforced anywhere in the
Philippines, for as long as it is the place
described in the search warrant. Thus, in
Section 3 (now Section 4) of Rule 126 was
amended by providing that the search warrant
specifying the particular place to be searched,
the place may be anywhere in the Philippines.
(b) 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.
The amendment modifies the Malalaon

guidelines which allows any judge to issue a
search warrant prior to the filing of a criminal
action, and even if one had already been filed,
any judge for compelling reasons may still issue
a search warrant.
However, if the criminal action has

already been filed, the application shall
only be made in the court where the
criminal action is p pending. (n)
(a) All other processes, whether issued by a

regional trial court or a metropolitan trial
court, municipal trial court or municipal
circuit trial court may be served anywhere in
the Philippines, and, in the last three cases,
without a certification by the judge of the
regional trial court. (Italics ours.)
An application for a search warrant may be

filed with another court only under extreme and
compelling circumstances, that the applicant
must prove to the satisfaction of the latter court
which may or may not give due course to the
application depending on the validity of the
justification offered for not filing the same in the
court with primary jurisdiction.
The amendment modifies the foregoing
guidelines.
The foregoing amendment is subject to

the Rule-making authority of the Supreme Court
to issue circulars or administrative orders based
on policy considerations such as Administrative
Circular No. 20-97 supplemented on March 27,
1997, by Administrative Order No. 46-99
authorizing the judges named therein to act on
all applications for search warrants filed by the
named specific agencies involving illegal
gambling, dangerous drugs, illegal possession
101

of firearms and other major crimes for the

search of places to be particularly described
therein, and the seizure of property or things as
prescribed in the Rules of Court, and to issue
the warrants, if justified, which may be served
in places even outside the territorial
jurisdiction of said courts.
Section 3. Requisite for issuing search

warrant.
Kinds of property to be seized:
1. subject of the offense
2. proceeds or fruits of the offense
3. the means used or intended to be used for
committing an offense
Requisites for the issuance of a valid search
warrant:
1. probable cause
2. which must be determined personally by the
judge himself after oath and affirmation and
not by the applicant or any other person
3. the judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under
oath, the complaint and any witness he may
produce, on facts personally known to them
4. the probable cause must be in connection
with one specific offense
5. the warrant issued must particularly describe
the place to be searched and the persons or
things to be seized
6. the sworn together with the affidavits
submitted by witnesses must be attached to
the record.
PROBABLE
CAUSE
facts
and
circumstances which could lead a reasonable,
discreet and prudent man to believe that the
property subject of an offense are in the place
sought to be searched.
- The requirement of probable cause to be
determined by a judge, does not extend to
deportation proceedings
Reason for requiring that no search warrant
shall issue for more than one specific
offense:
It would place the sanctity of the domicile and
the
privacy
of
communication
and
correspondence at the mercy of the whims,
caprice or passion of peace officers.
Reason of requiring that a search warrant
must particularly describe the place to be
searched and the persons or things to be
seized:
to limit the things to be seized to those, and
only those, particularly described in the search
warrant to leave the officers of the law no
discretion regarding what articles they shall
seize, to the end that unreasonable searches

and seizure may not be made, that abuses may
not be committedTherefore, no other property
than those described in the search warrant may
be taken thereunder.
Section 5. Issuance and form or search

warrant.
- An application for a search warrant is heard exparte. It is neither a trial nor a part of the trial.
The examination or investigation, which must be
under oath may not be in public. It may be even
held in the secrecy of the chambers. It must be
under oath and must be in writing.
Manner on how a judge should examine a
witness to determine the existence of
probable cause:
1. the judge must examine the witnesses
personally
2. the examination must be under oath
3. the examination must be reduced to writing in
the form of searching questions and answers
- The true test of sufficiency of a deposition or
affidavit to warrant issuance of a search warrant
is whether it has been drawn in a manner that
perjury could be charged thereon and the affiant
be held liable for damage caused
- Mere affidavits of the complainant and his
witnesses are not sufficient for the issuance of a
search warrant. The examining judge has to take
depositions in writing of the complainant and the
witnesses he may produce and to attach them to
the record. Such written deposition is necessary
in order the judge may be able to properly
determine the existence or non-existence of the
probable cause, to hold liable for perjury the
persons giving it if it will be found later that his
declarations are false.
Section 9. Time of making search.

The warrant must direct that it be served in the
day time, unless the affidavit asserts that the
property is on the person or in the place ordered
to be searched, in which case a direction may
be inserted that it be served at any time of the
day or night.
Section 10. Validity of search warrant.

A search warrant cannot be used everyday for
ten days and for a different purpose each day.
After the articles for which the warrant was
used have been seized the same warrant cannot
be used as authority to make another search
2000 Amendment
102

Sec. 11. Receipt for the property seized.

The officer seizing property under
the warrant must give a detailed
receipt for the same to the lawful
occupant of the premises in whose
presence the search and seizure
were made, or in the absence of
such occupant, must, in the
presence of at least two witnesses
of sufficient age and discretion
residing in the same locality, leave
a receipt in the place in which he
found the seized property. (10a)
Cases where warrantless searches and

seizures valid:
1. search of moving vehicles
2. consented search without a warrant
3. seizure of evidence in plain view
4. enforcement of customs law, except in
dwelling house
5. search based on probable cause under
extraordinary circumstances
Sec. 12. Delivery of property and

inventory thereof to court; return and
proceedings thereon. - (a) The officer
must forthwith deliver the property
seized to the judge who issued the
warrant, together with a true inventory
thereof duly verified under oath.
Waiver of legality and admissibility

- Objection to the legality of the search warrant
as to the admissibility of the evidence obtained
or deemed waived where no objection of the
search warrant was raised during the trial of the
case nor to the admissibility of the evidence
obtained through said warrant.
(b) Ten (10) days after issuance of the

search warrant, the issuing judge shall
ascertain if the return has been made,
and if none, shall summon the person to
whom the warrant was issued and
require him to explain why no return was
made. If the return has been made, the
judge shall ascertain whether Section 11
of this Rule has been complied with and
shall require that the property seized be
delivered to him. The judge shall see to it
that subsection (a) hereof has been
complied with.
(c) The return on the search warrant
shall be filed and kept by the custodian
of the log book on search warrants who
shall enter therein the date of the return,
the result, and other actions of the judge.
A violation of this section shall
constitute contempt of court. (11a)
The judge shall see to it that the seizing officer
has complied with his duties under
subsection (a) hereof. The amendment
who made to assure strict compliance in
the implementation of the search warrant
after the issuance thereof.
Section 13. Search incident to lawful

arrest.
A person lawfully arrested may be searched
for dangerous weapons or anything, which may
be used as proof of the commission of an
offense, without a search warrant.
The remedy for questioning the validity of a

search warrant can only be sought in the court
that issued it, not in the sala of another judge of
concurrent jurisdiction.
Total Exclusionary Rule

- Excludes as inadmissible in evidence those
that were illegally seized in violation of the
provisions of the Constitution applies a restraint
directed only against the government and its
agencies tasked with the enforcement of the law.
It could only be invoked against the state to
whom the restraint against the arbitrary and
unreasonable exercise of power is imposed.
2000 Amendment
Sec. 14. A motion to quash a search
warrant or to suppress evidence; where
to file. A motion to quash a search
warrant or to suppress evidence
obtained thereby may only be filed and
acted upon only by the court that issued
the search warrant. If the motion has not
been resolved by the court which issued
the search warrant and a criminal case is
subsequently filed in another court, the
motion shall not be resolved by the latter
court unless compelling reasons warrant
its resolution by the former court. (n)
__________
GENERAL RULE: A motion to quash a search
warrant or to suppress evidence may only be
filed and acted upon only by the court where the
action is pending.
EXCEPTION: If no criminal action has been
filed, the motion may be filed in and resolved by
the court that issued the search warrant.
EXCEPTION to the EXCEPTION: If the criminal
case is subsequently filed in another court and
the motion to quash is still not resolved by the
issuing court, the motion shall not be resolved
103

by the former court unless compelling reasons

warrant its resolution by the latter court.
Filing of motion to quash is without prejudice to
any proper recourse to the appropriate higher
court by the party aggrieved. All grounds and
objections then available, existent or known
shall be raised in the original or subsequent
proceedings for the quashal of the warrant,
otherwise they shall be deemed waived.
In view of the foregoing amendment, it seems
that the OMNIBUS MOTION RULE is no longer
applicable because the motion to quash or
motion to suppress evidence is now filed in one
court.
1. Those to which parties litigant may resort for
the preservation or protection of their rights or
interests and for no other purposes during the
pendency of the action
2. They are applied a pending litigation for the
purposes of securing the judgment or
preserving the status quo, and in some cases
after judgment, for the purpose of preserving
or disposing of the subject matter.
Rule 127
PROVISIONAL REMEDIES IN
CRIMINAL CASES
Section 1. Availability of provisional
remedies.
Nature of Provisional Remedies
1. Those to which parties litigant may resort for
the preservation or protection of their rights or
interests and for no other purposes during the
pendency of the action.
2. They are applied a pending litigation for the
purposes of securing the judgment or
preserving the status quo, and in some cases
after judgment, for the purpose of preserving
or disposing of the subject matter.
Kinds of provisional remedies
1. attachment
2. injunction
3. receivers
4. delivery of personal property
5. support pendente lite
Section 2. Attachment.
- It was held by the Supreme Court that the
public prosecutor has the authority to apply for
preliminary attachment as may be necessary to
protect the interest of the offended party,
particularly considering that the corresponding
civil liability of the culprits is to be determined
therein, no reservation having been made of the
right to enforce it in a separate civil action.
Attachment may be availed of only when the

civil action arising from the crime has not been
expressly waived or not reserved and only in the
following cases:
a) when the accused is about to abscond from
the Philippines;
b) when the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public officer or a
corporate officer or an attorney, broker, or
agent or clerk in the course of employment or
by a person in a fiduciary capacity.
c) when the accused has concealed, removed or
about to dispose of his property
d) when the accused resides abroad.
EVIDENCE
Scope of Law on Evidence
1. Prescribes the manner of presenting evidence
(Burden of Proof, rules 131-132);
2.Fixes the qualification and privilege of
witnesses and the mode of examining them
(Rule 132);
3.Determines among the probative matters,
things which are logically and in their nature
evidential, and what classes of things shall not
be received.
This excluding function of rules of exclusion is
the chief characteristic of our law on evidence
(Rules of Admissibility 128-130).
TWO PRINCIPAL PROBLEMS IN EVIDENCE:
1. How to determine which evidence is
admissible; and
2. Having determined that the evidence is
admissible, how to present that evidence in a
manner that would make the court admit it
once it is offered.
Rule 128
GENERAL PROVISIONS
Section 1. Concept of Evidence
EVIDENCE is the means, sanctioned by the
Rules of Court, of ascertaining in a judicial
proceeding the truth respecting a matter of fact
Every evidential question involves the
relationship between the factum probans and
the factum probandum.
FACTUM PROBANDUM - the ultimate fact
sought to be established.
It may be ascertained in:
104

a) pleadings submitted by the parties

b) pre-trial order
c) issues which are tried with the express or
implied consent of the parties. (Sec. 5,
Rule 10)
FACTUM PROBANS - the material evidencing
the proposition. It is the fact by which the
factum probandum is established.
Admissibility or inadmissibility of evidence is
determined in accordance with the law in force
at the time the evidence is presented.
Therefore, there is no vested right of evidence.
Evidence otherwise inadmissible under the law
at the time the action accrued, may be received
in evidence provided that it is admissible under
the law in force during the trial.
CLASSIFICATION OF EVIDENCE:
Depending on its ability to establish the fact in
dispute, an evidence may be:
1. Direct evidenceevidence which proves
the fact in dispute without the aid of any
inference or presumption.
2. Circumstantial evidencesuch evidence
from which the existence of a particular fact
in dispute may be inferred as a necessary or
probable consequence.
B. Depending on the degree of its value in
establishing a disputed fact, an evidence
may be:
1. Prima Facieevidence which suffices for
the proof of a particular fact until
contradicted and overcome by other
evidence.
2. Cumulative evidenceevidence which is
of the same kind and character as that
already given and tends to prove the same
proposition.
3. Corroborative evidenceevidence which
is of a different kind and character as that
already given and tends to prove the same
proposition.
4. Conclusive evidenceevidence which is
incontrovertible or the law does not allow it
to be contradicted.
C. Depending on its weight and acceptability,
an evidence may be:
1. Primary or best evidenceif it affords the
greatest certainty of the fact in question.
2. Secondary evidenceevidence which is
inferior to the primary evidence.
D. Depending on its nature, an evidence may
be:
1. Object evidenceif it is addressed to the
senses of the court and is capable of being
exhibited to examined or viewed by the

court. Also known as autoptic proference.
2. Documentary evidenceevidence which
consists of writings, words, numbers,
figures, symbols or other modes of written
expressions offered as proof of their
contents.
3. Testimonial evidenceevidence which
consists of the narration or deposition by
one who has observed or has personal
knowledge of that to which he is testifying.
E. Depending on its quality, an evidence may
be:
1.
Relevant evidenceif it has a relation to

the fact in issue as to induce belief in its
existence or non-existence.
2. Admissible evidenceif is relevant to the
issue and is not excluded by law or the
Rules of Court. This is also known as
Competent evidence.
3. Credible evidenceif it is not only
admissible evidence but also believable and
used by the court in deciding a case.
Section 2. Scope
EXAMPLES OF INSTANCES WHERE RULES
OF EVIDENCE DO NOT APPLY TO JUDICIAL
PROCEEDINGS:
1. Rules on Summary Procedure in civil actions;
2. In the Rules of Summary Procedure in
criminal cases, where the witnesses submit
their affidavits and counter-affidavits, subject
only to cross-examination;
3. In agrarian cases; and
4. Rules regarding the testimony of witnesses
fron examinations, etc., in cases under the
MTC (where the parties merely submit their
position papers and their witnesses affidavits
and counter-affidavits.
The rules of evidence are applicable to both
civil and criminal cases because the law does
not distinguish. EXCEPTION: When the law
specifically provides the procedure in receiving
evidence.
Section 3. Admissibility of Evidence

REQUISITES
FOR
ADMISSIBILITY
OF
EVIDENCE:
The evidence must be
1. Releventhas a logical connection with
the fact in issue.
2. Competentnot excluded by the law or
the rules.
PRINCIPLES OF ADMISSIBILITY
2 AXIOMS OF ADMISSIBILITY:
1. Axiom of Relevancy -None but facts having
rational probative value are admissible ; and
2. Axiom of Competency - All facts having
rational probative value are admissible
105

unless some specific rule forbids their

admission.
KINDS OF ADMISSIBILITY:
1.MULTIPLEevidence will be received if it
satisfies all the requirements prescribed by
law in order that it may be admissible for the
purpose for which it is presented, even if it
does not satisfy the other requisites for its
admissibility for other purposes.
2.CONDITIONALA fact offered in evidence
may appear to be immaterial unless it is
connected with other facts to be subsequently
proved. In such case, evidence of that fact
may be received on condition that the other
facts be afterwards proved.
3.CURATIVEan improper evidence is offered
and admitted by the court over the objection of
the adverse party; in such case, the adverse
party is likewise entitled to introduce a similar
improper evidence to counteract that already
given.
RULE 129
WHAT NEED NOT BE PROVED
The following facts need not be proved:
1. Those which the courts may take judicial
notice (Rule 129);
2. Those which are judicially admitted (Rule
129);
3. Those which are presumed (Rule 131).
Section 1. Judicial Notice

Cognizance of certain facts which judges may
properly take and act without proof. They are
based on considerations of expediency and
convenience.
it may be mandatory or discretionary.
When
MANDATORY: The facts pertain
to:
1. the existence and territorial extent of
states;
2. their
political
history,
form
of
government, and symbols of nationality;
3. the law of nations;
4. the admiralty and maritime courts of the
world and their seals;
5. the political constitution and history of
the Philippines;
6. the official acts of
the legislative,
executive and judicial departments of
the Philippines;
7. the laws of nature;
8. the measure of time; and
9. the geographical divisions
THE LAW OF NATIONS - The law of nations
which is the subject of judicial notice is the law
which regulates the relations of the dominant
powers of the earth. It is not a foreign
municipal law which our courts are not
106
authorized to take judicial notice of but the

compilation of rules which by common
consent of mankind have been acquiesced in
as law.
The mere personal knowledge of the judge is
not the judicial knowledge of the court; judicial
cognizance is taken only of those matters which
are commonly known.
Section 2.
discretionary.
Judicial
notice,
when
Discretionary Judicial Notice: matters which

are
1. of public knowledge; or
2. capable
of
unquestionable
demonstration; or
3. those that judges ought to know by
reason of their judicial functions.
WHEN JUDGE MAY TAKE JUDICIAL NOTICE
OF
RECORDS
OF
ANOTHER
CASE
PREVIOUSLY TRIED:
1. When, either at the initiative of the judge or
that of the parties, and without objection of
any party, the record of the previous action
are read and adopted into the present
action.
2. When, without objection on the part of any
party, the records of the previous case are
actually withdrawn from the archives and
attached to the records of the present
action, by court order.
Judicial Notice of Municipal Ordinances
inferior courts take judicial notice of municipal
city ordinances in force in their territorial
jurisdiction unlike RTC which will not, in the
absence of express statutory authority, take
judicial notice of such ordinances within their
territorial jurisdiction. They may, however, take
notice of such in cases elevated to them on
appeal from such inferior courts.
DOCTRINE
OF
PROCESSUAL
PRESUMPTION:
it is that doctrine which lays down the
presumption that the foreign law is the same as
the law of the forum. It arises if the foreign law,
though properly applicable, is either not alleged,
or if alleged, is not duly proved before a
competent court.
Section 4. Judicial Admission

JUDICIAL ADMISSION--the admission made in
the course of the proceedings in the same case
by a party.
Judicial Admissions May Be Made in:
1. the pleadings filed by the parties;
2. in the course of the trial either by verbal or
written manifestations or stipulations; or

3. in other stages of the judicial proceeding, as

in the pre-trial of the case;
4. admissions obtained through depositions,
written interrogatories or requests for
admissions.
Judicial admissions may be contradicted
only when it is shown that:
1. it was made through palpable mistake; or
2. that no such admission was made.
Judicial admissions
amended
in
pleadings
later
In civil cases, an amended pleading becomes

a judicial admission and the contents of the
pleading it amends not included in the amended
pleading becomes extrajudicial admissions
which must be offered in evidence for it to be
considered by the trial court.
In criminal cases, the accuseds plea of guilty
later withdrawn cannot be offered in evidence
against the accused as it will not be in the
interest of justice and fairplay to allow the
accused to withdraw his plea and thereafter use
this against him.
Judicial admissions are always conclusive
upon the admitter and does not require formal
offer as evidence, unlike in the case of extrajudicial admissions.
IS SELF-SERVING RULE APPLICABLE TO
JUDICIAL ADMISSIONS? No. The self-serving
rule which prohibits the admission of declaration
of a witness in his favor applies only to extrajudicial admissions. If the declaration is made in
open court such is raw evidence, it is not selfserving. It is admissible because the witness
may be cross-examined on that matter.
However, whether it will be credible or not, is a
matter of appreciation on the part of the court.
Rule 130
RULES OF ADMISSIBILITY
Object Evidence
Not a rule of exclusion thus other kinds of
evidence may be presented even if there is an
object evidence.
Requisites of object evidence to be
admissible:
1. relevant and competent
2. must be in the same condition when it is
presented in court as it was during the
occurrence of the fact in issue.
REMEDIES when object evidence cannot be
brought to court:
1.Ocular inspection or viewthe court can
go to the place where the object is located.
View part of the trialThe inspection or view

outside the courtroom should be made in the
presence of the parties or at least with
previous notice to them in order that they may
show the object to be viewed.
Such
inspection is a part of the trial, inasmuch as
evidence is thereby being received. The
parties are entitled to be present any stage of
the trial, and consequently they are entitled to
be at least notified of the time and place set
for the view.
2.Actual representations authenticated or
identified by testimonial evidence. Example, a
photograph of dilapidated building identified by
the photographer or by any other person who
can testify to its exactness and accuracy.
Grounds for excluding OBJECT EVIDENCE:
Inherent Limitations:
1)irrelevancy / immateriality
2) illegally obtained evidence
Non-inherent Limitations:
1. Undue prejudice
2. Indecency or impropriety
3. Offensiveness to sensibilities
4. Inconvenience and unnecessary expense
of litigation.
BEST EVIDENCE RULE

Section 3. Original document must be
produced; exceptions.
PURPOSES:
1. TO PREVENT FRAUD--The purpose of the
best evidence rule in requiring the
production of the original document as the
best evidence is THE PREVENTION OF
FRAUD, because if a party is in possession
of such evidence and withholds it, and seeks
to substitute inferior evidence in its place,
the presumption naturally arises that the
better evidence is withheld for fraudulent
purposes which its production would expose
and defeat.
2. TO EXCLUDE UNCERTAINTIES IN THE
CONTENTS OF A DOCUMENTThe best
evidence rule accepts the document itself as
the best evidence of its contents, because it
is certain; and rejects a copy thereof,
because of the uncertainty of its contents
caused by the hazards of faulty duplication,
or an oral description thereof, because of
the uncertainty caused by the frailties of
human recollection.
Best Evidence Rule is a rule of exclusion
thus, subject to the exceptions under Rule 130,
Sec. 3, it is mandatory that the original copy be
presented in court. This rule applies only to
documentary evidence, not to object evidence.
THREE (3) CONCEPTS OF ORIGINAL
UNDER THE BEST EVIDENCE RULE (Sec. 4)
107

1. One the contents of which is the subject of

inquiry;
2. When a document is in two or more copies
executed at or about same time with
identical contents, all such copies are
equally regarded as originals;
3. When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
transaction.
SECONDARY EVIDENCE
Section 5. When original document is
unavailable.
In case of loss or destruction of the original
document, the following are admissible after
proving EXECUTION or EXISTENCE, CAUSE
OF ITS UNAVAILABILITY without bad faith on
the part of the offeror, and REASONABLE
EFFORT:
1.a copy;
2.a recital of the contents in some authentic
document; or
3.the testimony of witnesses.
These secondary parole evidence should be
presented in the order stated.
The order does not apply where the law
specifically provides for the class or quantum of
secondary evidence to establish the contents of
the document. (DEFINITE EVIDENTIARY
RULE).
PAROL EVIDENCE RULE

Section 9.
agreements.
Evidence
of
written
Section 9 of Rule 130 embodies the general rule

and the exceptions of the PAROL EVIDENCE
RULE.
PURPOSE OF THE RULE:
To give stability to written agreement and
remove the temptation and possibility of perjury,
which would be afforded if parol evidence was
admissible.
REQUISITES FOR APPLICABILITY OF
PAROL EVIDENCE RULE:
1. There must be a valid contract;
2. The terms of the agreement must be reduced
to writing;
3. The dispute is between parties and their
successors in interest; and
4. There is dispute as to the terms of the
agreement.
Rule
applies
only
to
INTEGRATED
AGREEMENTS:
This rule prohibits parol evidence only where it is
sought to be used to vary or contradict the terms
of an integrated (finalized) written agreement.

Thus, unless the written instrument was
intended by both parties as the final and
exclusive memorial of their dealings, the rule
does not apply.
THEORY OF INTEGRATION OF JURAL ACTS
Under this theory, previous acts and
contemporaneous transactions of the parties are
deemed integrated and merged in the written
instrument which they have executed. When the
parties have reduced their agreement to writing,
it is presumed that they have made the writing
the ONLY REPOSITORY and MEMORIAL OF
THE TRUTH, and whatever is not found in the
writing must be understood to have been waived
and abandoned.
EXCEPTION:
COLLATERAL ORAL AGREEMENT - A
contract made prior to or contemporaneous with
another agreement and IF ORAL and NOT
INCONSISTENT with written contract IS
ADMISSIBLE within the exception to parol
evidence rule.
An Agreement is COLLATERAL if it meets
the following requirements:
1. it is not a part of the integrated written
agreement in any way;
2. it is not inconsistent with the written
agreement in any way, including both the
express and implied provisions of the
written agreement; and
3. it is not closely connected with the principal
transaction as to form part and parcel
thereof.
The Parol Evidence Rule does not apply when
COLLATERAL ORAL AGREEMENT refers to
SEPARATE and DISTINCT SUBJECTS.
REASON: The parties to a contract cannot be
presumed to have embodied in a single writing
all the agreements which they had on different
subjects.
Intrinsic or Latent Ambiguitywhen the
writing on its face appears clear and
unambiguous but there are collateral matters or
circumstances which make the meaning
uncertain. Example: if a devise in a will were
made to Loi Velarde, sister of Joseph Velarde,
an intrinsic ambiguity would exist if Loi Velarde
is actually not the sister of Joseph Velardebut
the wife of Joseph Velarede while his sisters
name is Joy.
Extrinsic or Patent Ambiguityambiguity is
apparent on the face of the writing itself and
requires something to be added in order to
ascertain the meaning of the words used.
Intermediate AmbiguityWhere the ambiguity
consists in the use of equivocal words
designating the person or subject matter, parol
108

evidence of collateral or extrinsic matter may be

introduced for the purpose of aiding the court in
arriving at the meaning of the language used.
INTRINSIC
and
INTERMEDIATE
AMBIGUITIES are curable by evidence aliunde
or extraneous evidence. PATENT AMBIGUITY
is not cured by evidence aliunde.
Under the Parol Evidence Rule, the evidence
aliunde is either testimonial evidence or
documentary evidence.
Principle of Falsa Demonstratio non nocet
cum de corpore constat
False description does not injure or vitiate a
document, provided that the thing or person
intended has once been sufficiently described.
Elements of MISTAKE as a ground for
REFORMATION OF INSTRUMENT:
1. the mistake should be of fact;
2. the mistake should be mutual or common to
both parties to the instrument; and
3. the mistake should be alleged and proved
by clear and convincing evidence.
Rule on CONDITIONAL AGREEMENTS:
1.
Rule on Conditions PrecedentParol
Evidence Allowed.
Reason: there is no varying of the terms of
the written contract by extrinsic agreement
for the reason that there is no contract in
existence; there is nothing to which to apply
the excluding rule.
2.
Rule on Conditions SubsequentParol
Evidence Not Allowed.
Rule on SUBSEQUENT AGREEMENTSParol
Evidence Allowed.The rule forbidding the
admission of parol evidence to alter or
contradict a written instrument does not
apply so as to prohibit the establishment by
parol evidence of an agreement between the
parties in writing, entered into subsequent to
the time when the written instrument was
executed, notwithstanding such agreement
may have the effect of changing the contract
of the parties as evidenced by the writing;
for parol evidence merely goes to show that
the parties have exercised their right to
change the same, or to make a new and
independent
contract,
provided
such
contract is not invalid under the statute of
frauds or otherwise.
DISTINGUISH:
PAROL EVIDENCE
RULE (PER)
BEST EVIDENCE
RULE (BER)
Presupposes that the

original is available in
court;
Prohibits the varying

of the terms of a
written agreement;
Can be invoked only

when the controversy
is between the parties
to
the
written
agreement,
their
privies, or any party
directly
affected
thereby.
With the exception of
wills, the PER applies
only to documents
which are contractual
in nature.
Contemplates
a
situation when the
original is not available
in court and/or there is
a dispute as to whether
said writing is the
original.
Prohibits
the
introduction
of
substitutionary
evidence in lieu of the
original
document
regardless of whether
or not it varies the
contents of the original;
Can be invoked by
any party to an action
regardless of whether
such party participated
or not in the writing
involve.
Applies to all kinds of
writing.
QUALIFICATION OF WITNESSES
Section
20.
qualifications.
Witnesses;
their
WHO MAY BE WITNESSESExcept as

otherwise provided in the rules, all persons who
can perceive, and perceiving, and can make
know their perception to others, may be
witnesses.
Unless otherwise provided by law, the following
shall not be a ground for disqualification:
1. Religious or political belief;
2. Interest in the outcome of the case; or
3. Conviction of a crime.
Who cannot be witnesses?
Those persons who, under the law, labor under:
1. Disqualification by reason of mental
incapacity or immaturity;
2. Disqualification by reason of marriage;
3. Disqualification by reason of death or
insanity of adverse party;
4. Disqualification on ground of privileged
communication.
TEST OF COMPETENCY
Whether
the
individual
has
sufficient
understanding to appreciate the nature and
obligation of an oath and sufficient capacity to
observe and describe the facts in regard to
which he is called to testify.
Competency of a witness is presumed. The
objection to the competency may be raised at
any time during the examination or crossexamination; but it should be made as soon as
109

the facts tending to show incompetency are

discovered.
VOIR DIRE EXAMINATIONa preliminary
examination conducted by the trial judge where
the witness is duly sworn to answer as to his
competency.
THE RULE ON EXAMINATION OF A CHILD
WITNESS (A.M. No. 00-4-07-SC): Effectivity:
December 15, 2000
Unless otherwise provided, this Rule shall
govern the examination of child witnesses who
are victims of crime, accused of a crime, and
witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings
involving child witnesses (Sec. 1)
COMPETENCY under this rule - every child is
presumed qualified to be a witness. However,
the court shall conduct a competency
examination of a child, motu proprio or on
motion of a party, when it finds that substantial
doubt exists regarding the ability of the child to
perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to
tell the truth in court (Sec. 6).
Examination of a child as to his competence
shall be conducted only by the judge. Counsel
for the parties, however, can submit questions to
the judge that he may, in his discretion, ask the
child (Sec.6(d))
Definitions:
CHILD WITNESSis any person who at the
time of giving testimony is below eighteen (18)
years. In child abuse cases a child includes one
over eighteen (18) years but is found by the
court as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition (Sec. 4
(a)).
CHILD ABUSEmeans physical, psychological,
or sexual abuse, and criminal neglect as defined
in Republic Act No.7610 and other related laws
(Sec.4(b)).
FACILITATORmeans a person appointed by
the court to pose questions to a child (Sec. 4
(c)). The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor,
teacher, religious leader, parent or relative.
SUPPORT PERSONis a person chosen by
the child to accompany him to testify at or attend
a judicial proceeding or deposition to provide
emotional support for him (Sec. 4(f)).
BEST INTERESTS OF THE CHILD

The totality of the circumstances and conditions
as are most congenial to the survival, protection
and feelings of security of the child and most
110
encouraging to his physical, psychological and

emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the child.
The public may be excluded from the
courtroom when they do not have a direct
interest in the case. Such an order may be made
to protect the right to privacy of the child or if the
court determines on the record that requiring the
child to testify in open court would cause
psychological harm to him, hinder the
ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment,
fear, or timidity. In making its order, the court
shall consider the developmental level of the
child, the nature of the crime, the nature of his
testimony regarding the crime, his relationship to
the accused and to persons attending the trial,
his desires, and the interests of his parents or
legal guardian. The court may, motu proprio,
exclude the public from the courtroom if the
evidence to be produced during trial is of such
character as to be offensive to decency and
public morals. The court may also, on motion of
the accused, exclude the public from trial,
except court personnel and the counsel of the
parties.
SPECIAL FEATURES:
1.
live-link television testimony in criminal
cases where the child is a victim or a
witness
2.
screens, one way mirrors, and other
devices may be used to shield the child
from the accused
3.
depositions of the child may be
videotaped
4.
the court may admit videotaped and
audio-taped in-depth investigative or
diclosure interviews in child abuse case.
EXAMPLE OF LAW BARRING A PERSON
FROM TESTIFYING:
Art. 821 of the Civil Code:The following are
disqualified from being witnesses to a will:
1. Any person not domiciled in the Philippines;
2. Those who have been convicted of
falsification of a document, perjury or false
testimony.
Section 22. Disqualification by reason

of marriage
REASON FOR THE RULE:
To obviate perjury and to prevent domestic
disunity and unhappiness.
Disqualification by
REASON OF
MARRIAGE
(Sec. 23)
Can be invoke only if
Disqualification by
REASON OF
MARITAL PRIVILEGE
(Sec. 24(a) )
Can
be
claimed

one of the spouses is a
party to the action;
Applies only if the
marriage is existing at
the time the testimony
is offered;
Constitutes a total
prohibition
for
or
against the spouse of
the witness.
The objection would
be raised on the
ground of marriage.
The married witness
would not be allowed
to take the stand at all
because
of
the
disqualification. Even
if the testimony is, for
or against the objecting
spouse, the spousewitness cannot testify.
whether or not the

other spouse is a party
to the action;
Can be claimed even
after the marriage is
dissolved;
Applies
only
to
confidential
communications
between the spouses
the married person is
on the stand but the
objection of privilege is
raised
when
confidential
marital
communication
is
inquired into.
Marrying the witness - An accused can

effectively seal the lips of a witness by
marrying the witness. As long as a valid
marriage is in existence at the time of the trial,
the witness-spouse cannot be compelled to
testifyeven where the crime charged is against
the witness person, and even though the
marriage was entered into for the express
purpose of suppressing the testimony.
WHO MAY OBJECT?only the spouse-party
and not the other spouse who is offered as a
witness.

of death or insanity of adverse party.
The provision is otherwise known as DEAD
MAN S STATUTE.
Requisites:
1. The witness is a party or assignor of a party
to a case or persons in whose behalf a case
is prosecuted.
2. That the action is against an executor or
administrator or other representative of a
deceased person or a person of unsound
mind;
3. That the subject-matter of the action is a
claim or demand against the estate of such
deceased person or against person of
unsound mind;
4. That his testimony refers to any matter of
fact which occurred before the death of such
deceased person or before such person
became of unsound mind.
Meaning of assignor-means assignor of a
cause of action which has arisen and not the
assignor of a right before any cause of action
accrued.
DEAD MANS
STATUTE
Only a partial
disqualification as
the witness is not
completely
disqualified but is
only
prohibited
from testifying on
the matters therein
specified;
Applies only to a
civil
case
or
special proceeding
over the estate of
a deceased or
insane person.
MARITAL
DISQUALIFICATION
RULE
It is a complete and
absolute
disqualification;
Applies to a civil or
criminal case, subject
only
to
the
two
exceptions
provided
therein: (1)except in a
civil case by one
against the other; or
(2) in a criminal case
for
a
crime
committed by one
against the other or
the latters direct
descendants
or
ascendants).
PURPOSE OF THE RULE:

To guard against the temptation to give false
testimony on the part of the surviving party, and
to put the parties to the suit upon the terms of
equality in regard to opportunity to produce
evidence.
Facts favorable to the deceased are not
prohibited:
Inasmuch as the statutes are designed to
protect the interest of a deceased or insane
person, they do not exclude testimonies which
are favorable to the representative of such
person (ICARD vs. MASIGAN)
The Dead Mans Statute or the Survivorship
Rule does not apply in the following cases:
1. Testimony of mere witnesses who are neither
party plaintiffs, nor their assignors, nor
persons in whose behalf a case is
prosecuted;
2. If the plaintiff is the executor or administrator
or other representative of a deceased
person, or the person of unsound mind;
3. In an action against a partnership;
4. If the person or persons mentioned under
the rule files a counterclaim;
5. When the testimony refers to fraudulent
transactions committed by the persons
mentioned in the rule;
6. when there is waiver;
7. when the testimony of a plaintiff refers to the
non-occurrence of a fact, because in that
case, the plaintiff does not testify on the
occurrence of a fact but on its nonoccurrence.
8. in cadastral cases.
111


of privileged communication
WHO MAY ASSERT PRIVILEGE?
1. Holder of privilege;
2. Authorized persons; and
3. Persons to whom privileged communication
were made
A. PRIVILEGED COMMUNICATION
BETWEEN HUSBAND AND WIFE
Requisites:
1. there was a valid marital relation;
2. the privilege is invoked with respect to a
communication between the spouses during
said marriage; and
3. the spouse against whom such evidence is
being offered has not given his or her
consent to such testimony
There is a presumption of confidentiality on
all communication between husband and
wife:
Communications overheard by third persons
without knowledge of spouses is still confidential
but the third party is not disqualified to testify
Where there is collusion and voluntary
disclosure to third party, the latter becomes an
agent and cannot testify.
Communication in furtherance of fraud and
crime is not privileged.
B. PRIVILEGED COMMUNICATION
BETWEEN ATTORNEY AND CLIENT
Requisites:
1. There is an attorney and client relationship;
2. The privilege is invoked with respect to a
confidential communication between them in
the course of professional employment; and
3. The client has not given consent to the
attorneys testimony thereon; or if the
attorneys secretary, stenographer or clerk is
sought to be examined, that both the client
and the attorney have not given their
consent thereto.
Preliminary communication made for the
purpose of creating the attorney-client
relationship are within the privilege. However, if
the communications were not made for the
purpose of creating that relationship, they will
not be covered by the privilege.
The disqualification based on the attorneyclient privilege does not apply to
communications which are:
1.intended to be made public;
2.intended to be communicated to others;
3.received from third persons not acting in
behalf or as agents of the client;
4. intended for an unlawful purpose;
5. made in the presence of third parties who are
strangers to the attorney-client relationship.
C. PRIVILEGED COMMUNICATION
BETWEEN DOCTOR AND PATIENT:
Requisites:
1. The physician is authorized to practice
medicine, surgery or obstetrics;
2. The information was acquired or the advice
or treatment was given by him in his
professional capacity for the purpose of
treating or curing the patient;
3. The information, advice or treatment, if
revealed, would blacken the reputation of
the patient; and
4. The privilege is invoked in a civil case,
whether the patient is a party thereto or not.
When privilege does not apply:
1. Where the communication was not given in
confidence
2. The communication is irrelevant to the
professional employment
3.
The communication was made for an
unlawful purpose
4. The information was intended to be made
public
There was a waiver of the privilege either
by
provisions of contract or law
D. PRIVILEGED COMMUNICATION
BETWEEN PRIEST AND PENITENT:
Requisites:
1. The confession must have been made to the
priest in his professional character in the
course of discipline enjoined by the church to
which he belongs.
2. The communications ere made in confidential
and penitential in character.
E. PRIVILEGED COMMUNICATION TO
PUBLIC OFFICERS:
Requisites:
1. The holder of the privilege is the government,
acting through a public officer;
2. The communication was given to the public
officer in confidence;
3. The communication was given during the
term of office of the public officer or
afterwards;
4. The public interest would suffer by the
disclosure of the communication.
We apply the privileged communication to both
civil and criminal cases except as to the doctorpatient privilege, which is applicable only in civil
cases.
F. OTHER PRIVILEDGED MATTERS
1. The guardian ad litem shall not testify in any
proceeding concerning any information,
statement, or opinion received from the child
in the course of serving as a guardian ad
litem, unless the court finds it necessary to
promote the best interests of the child (Sec.
5 (e) of the Rule on Examination of a
Child Witness).
2. Editors may not be compelled to disclose the
source of published news.
112

3.
Voters may not be compelled to disclose for

whom they voted.
4. Trade secrets.
5. Bank Deposits.
Section 25. Parental and filial privilege

Rule: no person may be compelled to testify
against his parents, other direct ascendants,
children or other direct descendants.
Reason for the Rule:
cohesion.
To preserve family
Article 215 of the Family Code provides:

No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, EXCEPT when such testimony is
indispensable in a crime against the descendant
or by one against the other.
Rule 130, Sec. 25 of the Rules of Court does
not provide for an exception, whereas, Art. 215
of the Family Code does. Which should be
applied in case of conflict? It was suggested
that the Rules of Court should apply because it
took effect in 1989 as compared to the Family
Code which took effect in 1988. It may be
argued that the former is procedural and the
latter is substantive; however, it was further
suggested that although the Family Code is
substantive, it is procedural in character. So, of
these two provisions, the Rules of Court, which
was made by the Supreme Court, should
prevail.
ADMISSIONS AND CONFESSIONS

Section 26. Admissions of a party.
RULE ON ADMISSIONSThe act, declaration
or omission of a party as to a relevant fact may
be given in evidence against him.
therefore, if the act, declaration or omission is
in his favor, it is NOT an admission.
SELF-SERVING DECLARATIONone which
has been made extrajudicially by the party to
favor his interest.
It is not admissible in
evidence because of the lack of opportunity to
cross-examine.
ADMISSION vis-a-vis CONFESSIONEvery
confession is an admission, but not all
admissions are confessions.
Generally, an
admission is an acknowledgment of the truth or
existence of a fact. But a confession is an
acknowledgment of guilt.
ADMISSION
1.statement of fact
which does not involve
an acknowledgment of
guilt or liability;
CONFESSION
1.statement of fact
which
involve
an
acknowledgment
of
guilt or liability;
2. may be made by
third persons and in
certain
cases,
are
admissible against a
party;
3. express or tacit
2. can be made only by

the party himself and,
in some instances, are
admissible against his
co-accused;
3. always express
DECLARATIONS
AGAINST INTEREST
1.made against the
proprietary
or
pecuniary interest of
the parties
2. made by a person
who is either deceased
or unable to testify
ADMISSIONS
3. must be made ante

litem motam
1.need not be made

against pecuniary or
proprietary interest;
2.made by a party
himself, and is primary
evidence
and
competent though he
be present in court and
ready to testify;
3. may be made any
time.
Section 27. Offer of compromise not
admissible.
In CIVIL CASES, an offer of compromise is not
an admission of any liability, and is not
admissible in evidence against the offeror.
REASON: It is the policy of the law to favor the
settlement of disputes, to foster compromises
and to promote peace.
In CRIMINAL CASES, an offer of compromise
by the accused may be received in evidence as
an implied admission of guilt.
EXCEPTIONS:
1. Those involving quasi-offenses;
2. Under the Katarungang pambarangay law;
3. Plea of guilty later withdrawn;
4. An unaccepted offer of plea of guilty to a
lesser offense;
5. An offer to pay or the payment of medical,
hospital or other expenses occasioned by an
injury;
6. Tax cases.
An offer of compromise that may be considered
an implied admission need not be made by the
accused himself, it may be made by his lawyer
or relatives, provided it is made with the consent
of the accused or with his knowledge and he
does not stop it.
However, take note of the case of PEOPLE vs.
MACATANA, on compromise made by the
tribes.
Distinguish OFFER OF COMPROMISE from
ORDINARY ADMISSION:
In an offer of compromise, the proposal is
tentative and any statement made in connection
with it is hypotheticalto buy peace and, in
contemplation of mutual concessions, whereas
in an ordinary admission, the intention is
apparently to admit liability and to seek to buy or
113

secure relief against a liability recognized as

such.
PRINCIPLE OF RES INTER ALIOS ACTA
1ST PART: The rights of a party CANNOT be
prejudiced by an act, declaration, or omission of
another, except as hereinafter provided (Sec.
28);
2nd PART: Similar acts as evidence (Sec. 34).
there can also be a confession of judgment in a

civil case where the party expressly admits his
liability.
JUDICIAL CONFESSIONis one made before
a court in which the case is pending and in the
course of legal proceedings therein and, by
itself, can sustain a conviction even in capital
offenses.
EXCEPTIONS TO PART ONE:

A. ADMISSIONS BY CO-PARTNER OR
AGENT (Sec.29)
REQUISITES:
1. The act or declaration of a partner or agent
of the party must be within the scope of his
authority;
2. During the existence of the partnership or
agency;
3. 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 (Sec. 29).
EXTRA-JUDICIAL
CONFESSIONis
one
made in any other place or occasion and cannot
sustain a conviction unless its voluntariness is
proven and unless corroborated by evidence of
the corpus delicti.
B. ADMISSION BY CONSPIRATOR (Sec. 30):

It refers to an extrajudicial declaration of a
conspirator not to his testimony by way of direct
evidence.
REQUISITES:
1. That the conspiracy be first proved by
evidence other than the admission itself;
2. That the admission relates to the conspiracy
itself;
3. That it has been made while the declarant
was engaged in carrying out the conspiracy.
GENERAL RULE:
an EXTRA-JUDICIAL
CONFESSION is admissible against the
confessor only. It is incompetent evidence
against his co-accused for being hearsay and
because of the res inter alios acta rule.
C. ADMISSION BY PRIVIES
PRIVIES those who have mutual or
successive relationship to the same rights of
property or subject matter such as personal
representatives, heirs, devisees, legatees,
assigns, voluntary grantees, or judgment
creditors or purchasers from them with notice to
the facts
REQUISITES:
1. That there must be privity between the party
and the declarant;
2. The declarant as predecessor in interest
made the declaration while holding the title
to the property.
3. The admission relates to the property.
Section 33. Confession

CONFESSION - a categorical acknowledgment
of guilt made by an accused in a criminal case,
without
any
exculpatory
statement
or
explanation.
If the accused admits having committed the act
in question but alleges a justification therefore,
the same is merely an admission.
REQUIREMENTS FOR AN EXTRAJUDICIAL

CONFESSION TO BE ADMISSIBLE:
1. It must be express (Sec. 33, Rule 130 Rules
of Court);
2. Voluntary (1987 Constitution)
3. With assistance of competent and
independent counsel (1987 Constitution)
4. Must be in writing (R.A.7438);
EXCEPTIONS: When admissible against the

co-defendants:
1. If the co-defendants impliedly acquiesced in
or adopted said confession;
2. If the accused persons voluntarily and
independently executed identical confession
without collusion, and corroborated by other
evidenceINTERLOCKING
CONFESSIONS
3. Where the accused admitted the facts stated
by the confessant after being apprised by
such confession;
4. If they are charged as co-conspirators of the
crime which was confessed by one of the
accused and said confession is used only as
corroborating evidence;
5. Where the confession is used as
circumstantial evidence to show the
probability of participation by the coconspirator;
6. When the confessant testified for his codefendant;
7. Where the co-conspirator extrajudicial
confession is corroborated by other
evidence of record.
In line with the 1987 Constitution, illegal
confessions and admissions are inadmissible
against the confessant or the admitter but are
admissible against the persons who violated the
constitutional prohibition in obtaining such illegal
confessions or admissions.
Section 34. Similar acts as evidence
114

This is the second part of the res inter alios

acta.
no probative value and as opposed to direct and

primary evidence, the latter always prevails.
General Rule: Evidence that one did or did not

do a certain thing at one time is not admissible
to prove that he did or did not do the same or
similar thing at another time.
EXCEPTIONS TO THE HEARSAY RULE:

1. Dying Declaration;
2. Declaration Against Interest;
3. Act or declaration About pedigree;
4. Family reputation or tradition regarding
pedigree;
5. Common reputation;
6. Res Gestae;
7. Entries in the ordinary course of
business;
8. Entries in official records;
9. Commercial lists;
10. Learned treatises;
ExceptionsIt may be received to prove:

1. specific intent or knowledge;
2. identity;
3. plan;
4. system;
5. scheme;
6. habit;
7. custom or usage; and
8. other of the like.
TESTIMONIAL KNOWLEDGE
Section 36. Testimony generally
confined
to
personal
knowledge;
hearsay excluded.
GENERAL RULE: A witness can testify only to
those facts which he knows of his personal
knowledge; that is, which are derived from his
own perception, except as otherwise provided in
these rules.
REASON FOR EXCLUDING HEARSAY: not
subject to the test of truth because there is no
opportunity for cross-examination. Also, this will
be a violation of the constitutional right to
confrontation.
HEARSAY RULE
CLASSIFICATION
OF
OUT-OF-COURT
STATEMENTS:
1. HEARSAY-- Those which are considered
as hearsay and therefore inadmissible, this
occurs when the purpose for introducing the
our-of-court statement is to prove the truth of
the facts asserted therein;
2. NON-HEARSAYAdmissible. This occurs
when the purpose for introducing the
statement is not to prove the truth of the
facts asserted therein but only the making of
the statements and are admissible in
evidence when the making of the statement
is relevant.
These are so-called
INDEPENDENTLY
RELEVANT
STATEMENTS.
3. EXCEPTIONS TO THE HEARSAY RULE
Those which are hearsay but are considered
as exceptions to the hearsay rule and are
therefore admissible.
These are from
Sections 37 to 47 of Rule 130.
HEARSAY EVIDENCE:
They are admissible by reason of NECESSITY
and TRUSTWORTHINESS.
Hearsay evidence not objected to may be
admissible but, whether objected to or not, has
115
Section 37. Dying declaration

REQUISITES:
1. That death is imminent and the declarant is
conscious of that fact;
2. That the declaration refers to the cause and
and surrounding circumstances of such
death;
3. That the declaration relates to the facts
which the victim is competent to testify to;
and
4. That the declaration is offered in a case
wherein the declarants death is subject of
the inquiry.
A dying declaration may be oral or written or
made by signs which could be interpreted and
testified to by a witness thereto.
Dying Declarations favorable to the accused is
admissible.
Dying declaration may also be regarded as
part of the res gestae as they were made soon
after the startling occurrence without the
opportunity for fabrication or concoction.
HEARSAY EXCEPTION IN CHILD ABUSE
CASES:
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or noncriminal proceeding subject to the following
rules:
(a)
Before such hearsay statement maybe
admitted, its proponent shall make known to the
adverse party the intention to offer such
statement and its particulars to provide him a fair
opportunity to object.
If the child is unavailable, the court shall,
upon motion of the adverse party, require the
child to be present at the presentation of the
hearsay statement for cross-examination by the
adverse party. When the child is unavailable,
the fact of such circumstance must be proved by
the proponent.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof, based on

various factors provided by the law, which

provide sufficient indicia of reliability (Sec. 28(a)
and (b), The Rule on Examination of a Child
Witness).
Section
interest.
38.
Declarations
against
REQUISITES:
1. That the declarant is dead or unable to
testify;
2. That it relates to a fact against the interests
of the declarant;
3. That at the time he made said declaration
the declarant was aware that the same was
contrary to his aforesaid interest; and
4. That the declarant had no motive to falsify
and he believed such declaration to be true.
Reason for admissibility:
trustworthiness
necessity and
Section 39. Act or declaration about

pedigree.
Section 40. Family reputation or
tradition regarding pedigree.
Section 39
Section 40
--Act or declaration
about PEDIGREE;
--Family reputation or
tradition
regarding
pedigree;
--Witness need not be

a member of the
family;
--Witness is a member
of the family;
--Testimony is about
what declarant, dead
or unable to testify, has
said concerning the
pedigree
of
the
declarants family.
--Testimony is about
family reputation or
tradition
covering
matters of pedigree.
Section 41: Common reputation

The following may be established by common
reputation:
1. Matters of public interest more than 30 yrs.
old;
2. matters of general interest more than 30
years old;
respecting marriage or moral character and
related facts
individual moral character
COMMON REPUTATIONis the definite
opinion of the community in which the fact to be
prove is known or exists. It means the general
or substantially undivided reputation, as
distinguished from a partial or qualified one,
although it need not be unanimous.
As a general rule, the reputation of person
should be that existing in the place of his
residence, it may also be that existing in the
place where he is best known.
EVIDENCE OF NEGATIVE GOOD REPUTE:

Where the foundation proof shows that the
witness was in such position that he would have
heard reports derogatory to ones character, the
reputation testimony may be predicated on the
absence of reports of bad reputation or on the
fact that the witness had heard nothing against
the person.
Section 42: Part of res gestae

RES GESTAE literally means things done; it
includes the circumstances, facts, and
declarations incidental to the main fact or
transaction necessary to illustrate its character
and also includes acts, words or declaration
which are closely connected therewith as to
constitute part of the transaction.
TWO TYPES OF PART OF RES GESTAE:
1. Statements made by a person while a
startling occurrence is taking place or
immediately prior or subsequent thereto with
respect to the circumstances thereof
(SPONTANEOUS STATEMENTS)
2. Statements accompanying an equivocal act
material to the issue, and giving it a legal
significance (VERBAL ACTS).
REQUISITES
OF
ADMISSIBILITY
OF
SPONTANEOUS STATEMENTS:
1. there must be a startling occurrence
2. the statement must relate to the
circumstances of the starling occurrence
3. the statement must be spontaneous
REQUISITES OF ADMISSIBILITY OF VERBAL
ACTS:
1. the act or occurrence characterized must be
equivocal
2. verbal acts must characterize or explain the
equivocal act
3. equivocal act must be relevant to the issue
4. verbal acts must be contemporaneous with
the equivocal act
VERBAL ACTS
the res gestae is the
equivocal act
verbal act must be
contemporaneous with or
must accompany the
equivocal act
SPONTANEOUS
STATEMENTS
the res gestae is
startling occurrence
statements be may
made prior, while
immediately after
startling occurrence
the
be
or
the
Section 44. Entries in official records.

REQUISITES
FOR
ADMISSIBILITY
OF
OFFICIAL ENTRIES:
1. that it was made by a public officer or by
another person specially enjoined by law to do
so
2. that it was made by a public officer in the
performance of his duty, or by another person in
116

the performance of a duty specially enjoined by

law
3. the public officer or the other person had
sufficient knowledge of the facts by him stated,
which must have been acquired by him
personally or through official information
Probative value: only prima facie evidence of
the fact stated therein
OPINION RULE
Section 48. General rule
GENERAL RULE: Opinion of a witness is not
admissible.
EXCEPTIONS:
1. On a matter requiring SPECIAL knowledge,
skill, experience or training which he is
shown to possess (Sec. 49);
2. The identity of a person about whom he has
adequate knowledge (Sec. 50[a]);
3. A handwriting with which he has sufficient
familiarity (Sec. 50 [b]);
4. The mental sanity of a person with whom he
is sufficiently acquainted (Sec. 50 [c]);
5. The witness impressions of the emotion,
behavior, condition or appearance of a
person (Sec. 50 [d]);.
NOTE: Under No. 1, before an expert may be
allowed to testify, he must first be shown to be
qualified as such.
CHARACTER EVIDENCE
Both criminal and civil - the bad moral

character of a witness may always be proved by
either party (Sec. 11, Rule 132) but not evidence
of his good moral character, unless it has been
impeached. (Sec. 14)
RULE 131
BURDEN OF PROOF AND
PRESUMPTIONS:
Section 1. Burden of Proof
BURDEN OF PROOF/RISK OF NONPERSUASIONthe duty of a party to present
evidence on the facts in issue necessary to
establish his claim or defense by the amount of
evidence required by law.
UPON WHOM BURDEN OF PROOF RESTS:
A. Civil Cases
1. the plaintiff has the burden of proof to show
the truth of his allegations if the defendant
raises a negative defense
2. the defendant has the burden of proof if he
raises an affirmative defense on the
complaint of the plaintiff
B. Criminal Cases
The burden of proof is with the prosecution by
reason of the presumption of innocence.
EXCEPTION: Under the Speedy Trial Act,
burden of proof is in the defense.
DEGREE OF PROOF THAT SATISFIES THE
BURDEN OF PROOF:
Section 51. Character evidence

generally not admissible; exceptions
A. CIVIL CASES
Preponderance of evidence
GENERAL RULE: character evidence is not

admissible in evidence under Sec.51 of Rule
130 of the Revised Rules on Evidence, except
under the exceptions provided therein.
B. CRIMINAL CASES
1. To sustain conviction
Evidence of guilt beyond reasonable doubt
2. Preliminary investigation
Engender a well founded belief of the fact
of the commission of a crime.
3. Issuance of warrant of arrest
Probable cause, i.e. that there is reasonable
ground to believe that the accused has
committed an offense.
EXCEPTIONS:
CRIMINAL CASES:
1. accused may prove his good moral character
which is pertinent to the moral trait involved in
the offense charge.
2. The prosecution may not prove bad moral
character of the accused unless in rebuttal
when the latter opens the issue by
introducing evidence of his Good moral
character.
3. As to the offended party, his good or bad
moral character may be proved as long as it
tends to establish the probability or
improbability of the offense charged
CIVIL CASES
The moral character of either party thereto
cannot be proved unless it is pertinent to the
issue of character involved in the case.
AS TO WITNESSES:
BURDEN OF PROOF
Does not shift
Generally determined
by the pleadings filed
by the party
BURDEN OF
EVIDENCE
Shifts from party to
party depending upon
the exigencies of the
case in the course of
the trial;
Generally determined
by the developments of
the trial, or by the
provisions
of
substantive
law or
procedural rules which
may relieve the party
from
presenting
evidence on the facts
117

alleged.
BURDEN OF EVIDENCEin both civil and

criminal cases, the burden of evidence lies on
the party who asserts an affirmative allegation.
CIVIL CASES:
The plaintiff has to prove his affirmative
allegations in the complaint and the defendant
has to prove the affirmative allegations in his
counterclaim and his affirmative defenses.
CRIMINAL CASES:
The PROSECUTION has to prove its affirmative
allegations in the information regarding the
elements of the crime as well as the attendant
circumstances; while the DEFENSE has to
prove its affirmative allegations regarding the
existence
of
justifying
or
exempting
circumstances, absolutory causes or mitigating
circumstances.
Is a party required to prove negative
allegations?
GENERAL RULE: NO. They need not be
proved, whether in a civil or criminal action.
EXCEPTIONS:
Where
such
negative
allegations are essential parts of the cause of
action or defense in a civil case, or are essential
ingredients of the offense in a criminal case or
defenses thereto.
HOWEVER, in civil cases, even if the negative
allegation is an essential part of the cause of
action or defense, such negative allegation does
not have to be proved if it is only for the purpose
of denying the existence of a document which
should properly be in the custody of the adverse
party.
CLASSIFICATION OF PRESUMPTIONS:
1. PRESUMPTION IS JURIS OR OF LAW
deduction which the law expressly directs to
be made from particular facts.
2. PRESUMPTION IS HOMINIS OR OF FACT
deduction which reason draws from facts
proved without an express direction from the
law to that effect.
PRESUMPTION IS JURIS may be divided into:
1. CONCLUSIVE PRESUMPTION (jure et de
jure)which is a presumption of law that is
not permitted to be overcome by any proof
to the contrary; and
2. DISPUTABLE PRESUMPTIONS (juris
tantum)is that which the law permits to be
overcome or contradicted by proofs to the
contrary; otherwise, the same remains
satisfactory.
Presumptions are evidence according to the
law, which considers and regulates them as
such.
As
they
constitute
evidence,
presumptions are irrelevant and therefore
inadmissible when they do not correspond to the
allegation and the facts at issue in the pleadings.
118
CLASSES OF CONCLUSIVE PRESUMPTIONS

under RULE 131:
1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(par.
a)whenever a party has, by his own
declaration, act or omission, intentionally
and deliberately led another to believe a
particular thing to be true and to act upon
such belief, he cannot, in any litigation
arising out of such declaration, act or
omission, be permitted to falsify it.
2. ESTOPPEL BY DEED (Rule 131, Sec. 2
(par. b)the tenant is not permitted to deny
the title of his landlord at the time of the
commencement of the relation of landlord
and tenant between them.
WHEN PRESUMPTION OF EVIDENCE
WILLFULY SUPPRESSED
WOULD
BE
ADVERSE IF PRODUCED will not apply:
1. If the suppression is NOT willful;
2. If the evidence that is withheld is merely
corroborative or cumulative;
3. If the evidence is at the disposal of or equally
available to both parties;
4. If the suppression is an exercise of a
privilege.
HEIRARCHY OF EVIDENCE:
1.proof beyond reasonable doubt
2.clear and convincing evidence
3.preponderance of evidence
4.substantial evidence
RULE 132
PRESENTATION OF EVIDENCE
EXAMINATION OF WITNESSES
Section 1. Examination to be done in
open court.
HOW ORAL EVIDENCE GIVENIt is usually
given orally, in open court. Therefore, generally,
the testimonies of witnesses cannot be
presented in affidavits.
--The only instance when the testimonies or
witnesses may be given in affidavits is under the
rule on summary procedure.
The form and nature of the questions that
may and may not be propounded to a
witness are as follows:
1.Questions must not be indefinite or uncertain;
2.Questions must be relevant;
3.Questions must not be argumentative;
4.Questions must not call for conclusion of law;
5.Questions must not call for opinion or hearsay
evidence;
6.Questions must not call for illegal answer;
7.Questions must not call for self-incriminating
testimony;
8.Questions must not be leading;
9.Questions must not be misleading;
10.Questions must not tend to degrade
reputation of witness;

11.Questions must not be repetitious.
Section 3: Rights and obligations of a

witness.
RIGHTS OF A WITNESS:
1.To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
2.Not to be detained longer than the interests of
justice require;
3.Not to be examined except only as to matters
pertinent to the issue;
4.Not to give an answer which will tend to
subject him to a penalty for an offense unless
otherwise provided by law;
The exception refers to immunity statutes
wherein the witness is granted immunity from
criminal prosecution for offenses admitted in his
testimony, e.g. under Sec. 8, R.A. 1379, the law
providing for the forfeiture of unlawfully acquired
property; and under P.D. 749, in prosecutions for
bribery and graft.
CLASSIFICATION OF IMMUNITY STATUTES:
A. Use immunityprohibits use of witness
compelled testimony and its fruit in any manner
in connection with the criminal prosecution of the
witness.
B. Transactional immunitygrants immunity
to the witness from prosecution for an offense to
which his compelled testimony relates.
5.Not to give an answer which will tend to
degrade his reputation, unless it be to the very
fact at issue or to a fact from which the fact at
issue would be presumed. But a witness must
answer to the fact of his previous final
conviction for an offense.
Section 4. Order in the examination of an

individual witness.
ORDER:
1.direct examination;
2.cross-examination;
3.redirect examination;
4. re-cross examination;
PURPOSES OF CROSS-EXAMINATION:
1.To discredit the witness;
2.To discredit the testimony of the witness;
3.To clarify certain matters;
4.To elicit admissions from a witness.
SCOPE
OR
LIMITS
OF
CROSSEXAMINATION:
1.ENGLISH RULEwhere a witness is called to
testify to a particular fact, he becomes a
witness for all purposes and may be fully
cross-examined upon all matters material to
the issue, the examination not being confined
to the matters inquired about in the direct
examination.
2.AMERICAN
RULErestricts
crossexamination to facts and circumstances which
are connected with the matters that have been
stated in the direct examination of the witness.
Under Philippine jurisdiction, we follow the
two rules, specifically under the following
instances:
in civil cases, we follow the English Rule,
which allows the cross-examination to elicit all
important facts bearing upon the issue (Sec. 6),
but this does not mean that a party by doing so
is making the witness his own in accordance
with Section 5.
In two instances we follow the American Rule,
1) the accused may only be cross-examined on
matters covered by direct examination, 2) hostile
witness.
PARTY
CALLING
THE
FOLLOWING
WITNESSES ARE NOT BOUND BY THEIR
TESTIMONY:
1. adverse party
2. hostile witness;
3. unwilling witness.
Section 9. Recalling witness.

GENERAL RULE: After the examination of a
witness by both sides has been concluded, the
witness cannot be recalled without leave of
court.
EXCEPTION:
1.the examination has not been concluded
2.recall has been expressly reserved with the
approval of the court
Section 10.
questions.
Leading and misleading
LEADING
QUESTIONQuestion
which
suggests to the witness the answer which the
examining party desirers.
EXCEPTIONS:
1. On preliminary matters;
2. On cross-examination;
3. To adverse party witness;
4. To hostile witness;
5. To unwilling witness;
6. To children of tender age;
7. To deaf-mutes;
8. To those who are ignorant;
9. To those who are of weak minds;
10. To the officers of the adverse party who is a
juridical person.
Under the Rule on examination of a child
witness, corroboration shall not be required of a
testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of
fact, conclusion, or judgment subject to the
standard of proof required in criminal and noncriminal cases (Sec. 22 of the Rule on
examination of a child witness).
119

MISLEADING QUESTION- one which assumes

as true a fact not yet testified to by the witness,
or contrary to that which he has previously
stated. It is NOT allowed.
Only one counsel should be allowed to
examine a witness in a single stage. However,
the other counsel may make objection to
testimony.
REASONS:
1. To protect the witness from undue and
confusing interrogation; and
2. To secure system and brevity by giving the
control of the interrogation to a single hand.
WHEN QUESTION PRELIMINARYwhen the
question does not touch on any issue.
A question that merely suggests a subject
without suggesting an answer or a specific
thing is not a leading question. Example:
State whether anything occurred between you
and the defendants on the evening of January 9,
1913.
Section 11. Impeachment of adverse

partys witness.
WAYS OF IMPEACHING ADVERSE PARTYS
WITNESS:
1. By contradictory evidence;
2. By evidence that the general reputation for
truth, honesty, or integrity of the witness is
bad; or
3. By prior inconsistent statements.
PROCEDURE FOR IMPEACHING WITNESS
BY EVIDENCE OF PRIOR INCONSISTENT
STATEMENTS (LAYING THE PREDICATE)
1. The statement must be related to him with
the circumstances of the times and places
and the persons present;
if the statement be in writing they must be
shown to the witness before any question is
put to him concerning them; and
2. He must be asked whether he made such
statements, and if so, allowed to EXPLAIN
it.
NOTE: Where the previous statements of a
witness are offered as evidence of an admission,
and not merely to impeach him, the rule on
laying the predicate does not apply.
Section 13. How witness impeached by

evidence of inconsistent statements.
a. in the case of a hostile witness
b. where the witness is the adverse party or the
representative of a judicial person which is the
adverse party; and
c. when the witness is not voluntarily offered but
is required by law to be presented by the
proponent as in the case of subscribing

witness
Section 16. When witness may refer to

memorandum.
REVIVAL OF PRESENT MEMORY/ PRESENT
RECOLLECTION REVIVED - A witness may be
allowed to refresh his memory respecting a fact,
by anything written or recorded by himself or
under his direction as the time when the fact
occurred, or immediately thereafter.
PAST RECOLLECTION RECORDED/REVIVAL
OF PAST RECOLLECTION - A witness may
also testify from such writing or record, though
he retains no recollection of the particular facts,
if he is able to swear that the writing or record
correctly stated the transaction when made, but
such evidence must be received with caution.
PRESENT MEMORY
REVIVED
Memory is obscure but
there is still memory;
The main evidence is
the testimony of the
witness
and
the
memorandum;
The witness simply
testifies that he knows
that the memorandum is
correctly written by him
or under his direction;
no need to swear.
PAST RECOLLECTION
RECORDED
Recollection is zero
The main evidence is
the memorandum.
Witness must swear
that the writing correctly
states the transaction.
The memorandum from which the witness may

be permitted to refresh his memory need not be
an original writing. It is sufficient if it is shown
that the witness knows the copy to be a true
one, and his memory refreshed thereby enables
him to testify from his own recollection of the
facts, independent of his confidence in the
accuracy of the copy.
Section 17. When part of transaction,

writing or record given in evidence, the
remainder admissible.
RULE ON COMPLETENESSWhen part of an
act, declaration, conversation, writing or record
is given in evidence by one party, the whole of
the same subject may be inquired into by the
other, and when a detached act, declaration,
conversation, writing, or record is given in
evidence,
any
other
act,
declaration,
conversation, writing or record necessary may
also be given in evidence.
B. AUTHENTICATION AND PROOF OF

DOCUMENTS
Section 19. Classes of documents.
120

AUTHENTICATIONPROVING
the
due
execution and genuineness of the document.
CLASSES OF DOCUMENTS:
for the purpose of their presentation in
evidence, documents are either in public or
private (Sec. 19).
PUBLIC DOCUMENTS:
1. The written official acts, or records of the
official acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign
country;
2. Documents acknowledged before a notary
public except last wills and testaments; and
3. Public records, kept in the Philippines, of
private documents required by law to be
entered therein.
PUBLIC WRITING DISTINGUISHED FROM
PRIVATE WRITING:
PUBLIC
WRITING
a
public
document
is
admissible
evidence, without
further proof of its
genuineness and
due execution
As to
authenti
city
As to
persons
bound
As to
validity
of
certain
transacti
ons
a
public
instrument
is
evidence
even
against
third
persons, of the
fact which gave
rise to its due
execution and to
the date of the
latter;
certain
transactions must
be in a public
document,
otherwise they will
not be given any
validity.
Section 34. Offer of evidence.

Formal offer of evidence
Objection: grounds
General immaterial or irrelevant
Sustained
Evidence
offered
will not be allowed
to be presented in
court
Overruled
Evidence will be
allowed
to
be
presented in court
Remedy of offeror
Tender of excluded
evidence
Presentation
of
evidence offered
Objection; to deny
presentation
general/specific
grounds
PRIVATE WRITING
a private writing
must be proved
relative to its due
execution
and
genuineness-its
authenticity-before
it may be received
in evidence.
a private writing
binds
only
the
parties
who
executed them or
their privies, insofar
as due execution
and date of the
document
are
concerned.
The following are private writings which may

be admitted in evidence without previous
proof of its authenticity and due execution:
1. When the genuineness and due execution of
the document is admitted by the adverse
party;
2. When such genuineness and due execution
are immaterial to the issue;
3. When the document is an ANCIENT
DOCUMENT;
NOTE: Ancient Document Rule applies only if
there are no other witnesses to determine
authenticity.
C. OFFER AND OBJECTION
Sustained
Question posed will not
be
permitted
e.g.
misleading; revise the
question / tender of
excluded evidence
Overruled
Question will be
allowed
Why purpose of offer must be specifiedto

determine whether that piece of evidence should
be admitted or not.
NOTE: Where the evidence is inadmissible for
the purpose stated in the offer, it must be
rejected, though the same may be admissible for
another purpose. The reason is that the adverse
party is prevented from objecting to the
admissibility thereof on grounds other than those
available to meet the stated purpose.
In MATA Vda. De ONATE vs. CA, the Court
allowed evidence not formally offered to be
admitted and considered by the trial court
provided the following requirements are present:
1.the same must have been duly identified by
testimony duly recorded;
2.the same must have been incorporated to the
records of the case.
Section 35. When to make offer.

WHEN OFFER OF TESTIMONIAL/ORAL
EVIDENCE MADEat the time the witness is
called to testify.
There is another kind of offer: AN IMPLIED
OFFER. Every time a question is asked of a
121

witness, there is an implied automatic offer of

the evidence sought to be enlisted by the
question.
If there is any objection to the
question, the same must be raised immediately,
otherwise, there is a waiver, because there is an
implied automatic offer of evidence for every
specific evidence called for by a specific
question.
THEREFORE, oral evidence is always being
offered twice:
1. before the witness testifies; and
2. every time a question is asked of him.
WHEN OFFER OF DOCUMENTARY AND
OBJECT EVIDENCE SHOULD BE MADE
after the party has presented his testimonial
evidence. Before he rests, he must make a
formal offer of all his documentary and object
evidence and specify the purposes for which he
is offering these evidence.
PROCEDURE BEFORE DOCUMENTARY AND
OBJECT EVIDENCE CAN BE CONSIDERED
BY THE COURT:
1.marking;
2.identification;
3.authentication;
4.formal offer; and
5.if the evidence is excluded, an offer of proof.
Of
course,
you
can
dispense
with
authentication and identification if there is a
stipulation on the due execution and
genuineness of the document.
a. if it is a private document, then there is a
need for a stipulation on that.
b. if it is a public document, then there is a
need for authentication.
STAGES IN THE PRESENTATION
DOCUMENTARY EVIDENCE:
IDENTIFICATION
By identification is meant a proof that the
document being presented is the same one
referred to by the witness in his testimony.
MARKING
All exhibit should be marked to facilitate
their identification. The marking may be
made at the pre-trial or during the trial.
The plaintiff and the prosecution use capital
letters (A, B, C, etc.) and the accused
use Arabic numbers (1, 2, 3, etc.)
If the exhibit is presented in connection with
an affidavit, like in support or in opposition to
a motion to dismiss, the words Motion to
Dismiss should be added after the letter or
number.
AUTHENTICATION
The proof of a documents due execution and
genuineness if the purpose is to show that it
is genuine, or the proof of its forgery, if the
purpose is to show that the document is a
OF
forgery.
INSPECTION
Under Section 18 of Rule 132, whenever a
writing is shown to a witness, it may be
inspected by the adverse party.
FORMAL OFFER
After
the termination of the testimonial
evidence, the proponent will then make a
formal offer and state the purpose for which
the document is presented (Rule 132, Sec.
34)
OBJECTIONS
The objection to the introduction or
presentation of the document shall be made
when it is formally offered in evidence (Rule
132, Sec. 36)
There is a distinction between identification of

documentary evidence and formal offer of
documentary evidence as an exhibit:
a. In identification of documentary evidence,
the same is done in the course of the trial and
is accompanied by the marking of the
evidence as an exhibit.
In formal offer of a documentary evidence as
an exhibit, the same is done when the party
has presented his testimonial evidence.
The mere fact that a particular document is
identified and marked as an exhibit does not
mean that it will be or has been offered as part
of the evidence of the party. The party may
decide to formally offer it if it believes this will
advance its cause, and then again it may decide
not to do so at all.
Section 36. Objection

MODES OF EXCLUDING INADMISSIBLE
EVIDENCE:
1. Objection-when the evidence is offered.
2. Motion to strike out or Expunge - examples
are:
a. when the witness answers prematurely
before there is reasonable opportunity for
the party to object (Sec. 39);
b. unresponsive answers;
c. answers that are incompetent, irrelevant,
or improper (Sec. 39);
d. uncompleted testimonies where there was
no opportunity for the other party to crossexamine.
Section 40. Tender of excluded

evidence
What is meant by tender of excluded
evidence?
Where the court refuses to permit the counsel
to present testimony which he thinks is
122

competent, material and necessary to prove his

case, the method of properly preserving the
record to the end that the question may be
saved for the purpose of review, is through the
making of an offer of proof (tender of excluded
evidence).
PURPOSES:
1. to inform the court what is expected to be
proved; and
2. procuring exceptions to the exclusion of the
offered evidence so that the appellate court
may determine from the record whether the
proposed evidence is competent.
How made?
a. As to documentary or object evidence:
may have the same attached to or made
part of the record.
b. As to oral evidence:
may state for the record the name and
other personal circumstances of the witness and
the substance of the proposed testimony.
Rule 133
WEIGHT AND SUFFICIENCY OF
EVIDENCE
WEIGHT OF EVIDENCEprobative value or
credit that the court gives to particular evidence
admitted to prove a fact in issue.
Section 1. Preponderance of evidence,

how determined.
PREPONDERANCE OF EVIDENCEevidence
which is of greater weight or more convincing or
superior weight of evidence than that which is
offered in opposition to it.
REASONABLE DOUBTdoubt engendered by
an investigation of the whole proof and an
inability, after such investigation, to let the mind
rest easy upon the certainty of guilt. Absolute
certainty of guilt is not demanded by the law to
convict a person charged for the commission of
an offense, but moral certainty is requires as to
every proposition of proof requisite to constitute
the offense.
EQUIPONDERANCE OF EVIDENCEThe
evidence of both parties when placed on the
division scale is balance. In civil cases, this
means that the court will rule in favor of the party
who has no burden of proof. In criminal cases,
this means acquittal of the accused.
POSITIVE
TESTIMONY
DISTINGUISHED
FROM NEGATIVE TESTIMONY:
POSITIVE TESTIMONYis when the witness
affirms that a fact did or did not occur;
NEGATIVE TESTIMONYis when a witness
states that he did not see or know of the
occurrence of a fact.
Positive testimony has greater weight than

negative evidence.
ALIBI - must be established by positive, clear
and satisfactory evidence.
Requisites:
1. showing that not only is the accused
somewhere else
2. but also it was physically impossible for him
to be at the scene of the crime at the time of
its commission.
One of the weakest defenses because of the
facility with which it can be fabricated.
RULE ON PARTIAL CREDIBILITY:
Falsus in uno, Falsus in omnibus
A witness willfully testifying the truth in one
particular, when upon oath, ought never to be
believed upon, the strength of his own testimony
whatever he may assert.
LIMITATIONS:
1. the testimony concerning which the witness
has sworn falsely, must relate to a material
point in issue;
2. such testimony must have been given by the
witness intentionally, and he must have
known it to be false
IMPORTANT:
a. Deals only with the weight of evidence and
not a positive rule of law.
b. The witnesses false or exaggerated
statements on other matters shall not
preclude the acceptance of such evidence
as is relieved from any sign of falsehood.
c. The court may accept and reject portions of
the witness testimony depending on the
inherent credibility thereof.
This is not a mandatory rule of evidence but is
applied by the courts in its discretion.
Section. 3 Extrajudicial confession, not

sufficient ground for conviction.
An extrajudicial confession is not sufficient
ground for conviction unless corroborated by
evidence of corpus delicti.
CORPUS DELICTIthe actual commission by
someone of the particular crime charged.
2 Elements:
1. the existence of a certain act or result which
is the basis of the criminal charge
2. the existence of a criminal agency as the
cause of the act or result.
NOTE: The identity of the accused is not a
necessary element of the corpus delicti.
Section 4. Circumstantial evidence,

when sufficient.
123

Direct
evidence
distinguished
circumstantial evidence.
Direct Evidence
establishes
the
existence of a fact in
issue without the aid of
any
inference
or
presumption.
the witnesses testify
directly of their own
knowledge as to the
main facts to be proved.
from
Circumstantial
Evidence
does not prove the
existence of a fact in
issue
directly,
but
merely provides for
logical inference that
such fact really exists.
each proof is given of
facts and circumstances
from which the court
may
infer
other
connected facts which
reasonably
follow,
according
to
the
common experience of
mankind.
124

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SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

REQUISITES FOR VALID EXERCISE OF

2) That it must have jurisdiction over the subject

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

Statutes regulating the procedure of courts may

one party prosecutes

the moment said claim

Section 5. Commencement of action.

An action is commenced by the filing of the

delict or wrongful act

remedial right or right

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

the reason for the

delict or wrong against

Section 4. Splitting a single cause of

Section 5. Joinder of causes of action.

demand against each defendant.

1. Arising out of the same contract, transaction

Section 6. Misjoinder of causes of

Section 3. Representatives as parties.

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

(1) Indispensable parties those without

Section 4. Spouses as parties.

COMPULSORY JOINDER in the case of :

Section 7. Compulsory joinder of

Section 8. Necessary Party.

they are those with

JOINT DEBTORS indispensable party with

Section 9. Non-joinder of necessary

Section 11. Misjoinder and non-joinder

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

Objections to defects in parties should be

Section 12. Class suit.

Section 14. Unknown identity or name

Section 15. Entity without juridical

Section 16. Death of party; duty of

The death of the client will require his

Section 17. Death or separation of a

In case of supervening incapacity or

Section 19. Transfer of interest.

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

substitution by or the joinder of the transferee is

Section 20. Action on contractual

Section 21. Indigent party.

(b) Executed by the parties before the filing of

Section 3. Venue of actions against

(a) NON-RESIDENT FOUND IN THE PHIL.

Personal status of plaintiff venue: where

EXCEPTION TO THE EXCEPTION: the

SAN BEDA COLLEGE OF LAW, 2000 2001

MEMORY AID in REMEDIAL LAW

1. power of the court to

RULES ON SUMMARY PROCEDURE

Court may dismiss

Plaintiff fails to appear

The Original Rule on Summary Procedure

PROHIBITED PLEADINGS / MOTIONS

Sole defendant fails to