Remedial Distinctions

A: Substantive Law Remedial Law
Part of the law which creates,

defines or regulates rights
concerning life, liberty or property
or the powers of agencies or
instrumentalities for the
administration of public affairs.
Refers to the legislation providing
means or methods whereby
causes of action may be
effectuated, wrongs redressed and
relief obtained (also known as
Adjective Law).
Creates vested rights. Does not create vested rights
Prospective in application.
Retroactive in application, as long
as no vested rights have attached
Cannot be enacted by the
Supreme Court.
The Supreme Court is expressly
empowered to promulgate
procedural rules. (2006 Bar
Question)
It originates from legislature
It does not originate from the
legislature but has the effect of
law if not in conflict with
substantive law

Court Judge
Entire body in which the judicial
power is vested
Only an officer or member of the
court
May exist without a present judge
There may be a judge without a
court
Disqualification of a judge does not
affect the court
May be disqualified

Courts of Original jurisdiction Courts of Appellate jurisdiction
Courts exercising jurisdiction in the
first instance
Superior Courts reviewing and
deciding cases previously decided
by a lower court

Courts of General jurisdiction Courts of Special jurisdiction
Takes cognizance of all cases , civil
or criminal, of a particular nature,
or courts whose judgment is
conclusive until modified or
reversed on direct attack, and who
are competent to decide on their
own jurisdiction
Takes cognizance of special
jurisdiction for a particular
purpose, or are clothed with
special powers for the
performance of specified duties,
beyond which they have no
authority of any kind

Constitutional Court Statutory Court
Created by the constitution Created by law
e.g. SC e.g. CTA
Cannot be abolished by Congress
without amending the Constitution
May be abolished by Congress by
just simply repealing the law which
created those courts

Courts of Law Courts of Equity
Any tribunal duly administering
the laws of the land
Any tribunal administering justice
outside the law, being ethical
rather than jural and belonging to
the sphere of morals rather than
of law. It is grounded on the
precepts of conscience and not on
any sanction of positive law, for
equity finds no room for
application where there is law.
(Herrera, Vol. I, p. 18, 2007 ed.)
Decides a case according to what
the promulgated law is
Adjudicates a controversy
according to the common precepts
of what is right and just without
inquiring into the terms of the
statutes

Error of Jurisdiction Error of Judgment
One where the court, officer or
quasi-judicial body acts without or
in excess of jurisdiction, or with
grave abuse of discretion
One that the court may commit in
the exercise of jurisdiction; it
includes errors of procedure or
mistakes in the courts findings
Renders a judgment void or at
least voidable
Does not make the courts decision
void
Correctible by certiorari Correctible by appeal
There is an exercise of jurisdiction
in the absence of jurisdiction
The court acted with jurisdiction
but committed procedural errors
in the appreciation of the facts or
the law (1989 Bar Question)

Action Special Proceeding
Purpose
Civil action:
1. To protect a right
2. Prevent or redress a wrong.

Criminal action:
Prosecute a person for an act or
omission punishable by law
(Sec. 3, Rule 1)
To establish a status, a right or a
particular fact (Sec. 3 Rule 1). Specific
kinds of special proceedings are
found in rule 72 rule 109
E.g. settlement of estate, escheat,
guardianship, etc. (Riano, Civil
Procedure: A Restatement for the
Bar, p. 121, 2009 ed.)
Application
Where a party litigant seeks to
recover property from another,
his remedy is to file an action.
Where his purpose is to seek the
appointment of a guardian for an
insane person, his remedy is a special
proceeding to establish the fact or
status of insanity calling for an
appointment of guardianship.
(Herrera, Vol. I, p. 370, 2007 ed.)
Governing Law
Ordinary rules supplemented by
special rules
Special rules supplemented by
ordinary rules
Court
Heard by courts of general
jurisdiction
Heard by courts of limited jurisdiction
Procedure
Initiated by a pleading and
parties respond through an
answer after being served with
summons
Initiated by a petition and parties
respond through an opposition after
notice and publication are made
Nature
Generally adversarial in nature.
There are definite parties:
plaintiff v defendant
Generally no definite adverse party
because it is directed against the
whole world as majority of special
proceedings are in rem
Applicability of pleadings
Parties are generally allowed to
file answer, counterclaim, cross
claim and third-party complaint
Law on pleadings generally not
applicable
Appeal
The period to appeal is only 15
days and notice of appeal
suffices
The period to appeal is 30 days and
aside from a notice of appeal, a
record on appeal is required.
Real Action Personal Action
Scope
When it affects title to or
possession of a real property, or
an interest therein (Sec. 1, rule 4)
Personal property is sought to be
recovered or where damages for
breach of contract are sought
Basis
When it is founded upon the
privity of a real estate. That means
that realty or interest therein is
the subject matter of the action.
Note: It is important that the
matter in litigation must also
involve any of the following issue:
1. Title to
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage
6. Any interest in real property.

Founded on privity of contract
such as damages, claims of money,
etc.
Venue
Venue of action shall be
commenced and tried in the
proper court which has jurisdiction
over the area wherein the real
property involved, or a portion
thereof is situated. (Rule 4, sec 1)
Venue of action is the place where
the plaintiff or any of the principal
plaintiffs resides or any of the
defendants resides, at the election
of the plaintiff (Rule 2 sec 2)
Example
An action to recover possession of
real property plus damages
Note: An action to annul or rescind
a sale of real property has as its
fundamental and prime objective
the recovery of real property
(Emergency Loan Pawnshop, Inc.
vs. Court of appeals, 353 SCRA 89;
Riano, p. 122, 2009 ed.)
Action for a sum of money

Local Action Transitory Action
Venue
Must be brought in a particular
plac where the subject property is
located, unless there is an
agreement to the contrary.
Dependent on the place where the
party resides regardless of where
the cause of action arose. Subject
to Sec. 4, Rule 4
Privity of contract
No privity of contract and the
action is founded on privity of
estate only
Founded on privity of contract
between the parties whether debt
or covenant (Paper Industries
Corporation of the Philippines v.
Samson, G.R. No. L-30175, Nov. 28,
1975).
Example
Action to recover real property Action to recover sum of money

Failure to state cause of action Lack of cause of action
Insufficiency in the allegations of
the complaint
Failure to prove or establish by
evidence ones stated cause of
action
As a ground for dismissal
Raised in a motion to dismiss
under Rule 16 before a responsive
pleading is filed
Raised in a demurrer to evidence
under Rule 33 after the plaintiff
has rested his case
Determination
Determined only from the
allegations of the pleading and not
from evidentiary matters
Resolved only on the basis of the
evidence he has presented in
support of his claim

Splitting of cause of action Joinder of causes of action
There is a single cause of action Contemplates several causes of
action
Prohibited Encouraged
It causes multiplicity of suits and
double vexation on the part of the
defendant
It minimizes multiplicity of suits
and inconvenience on the parties

Cause of Action Right of Action
It is the act or omission by which a
party violates the rights of another
( Sec. 2, Rule 2)
Remedial right or right to relief
granted by law to a party to
institute an action against a person
who has committed a delict or
wrong against him
Requisites

1. The existence of a legal right of
the plaintiff
2. A correlative duty of the
defendant to respect ones right
3. An act or omission of the
defendant in violation of the
plaintiffs right.

1. There must be a good cause
(existence of a cause of action)
2. A compliance with all the
conditions precedent to the
bringing of the action
3. The action must be instituted by
the proper party.

Nature
It is actually predicated on
substantive law or on quasi delicts
under NCC.
It is procedural in character is the
consequence of the violation of
the right of the plaintiff (Riano,
Civil Procedure: A Restatement for
the Bar , p. 4, 2009 ed.)
Basis
Based on the allegations of the
plaintiff in the complaint
Basis is the plaintiffs cause of
action
Effect of Affirmative defense
Not affected by affirmative
defenses (fraud, prescription,
4xecutor4, etc.)
Affected by affirmative defenses
Other distinctions
The reason for the action
The remedy or means afforded of
the consequences relief

Action In Rem Action In Personam Action Quasi In Rem
Nature
A proceeding to
subject the property
of such persons to the
discharge of the
claims assailed.
A proceeding to
enforce personal
rights and obligations
brought against the
person
A proceeding to
subject the property
of the named
defendant or his
interests therein to
the obligation or lien
burdening the
property.
Purpose
A proceeding to
determine the state
or condition of a thing
An action to impose a
responsibility or
liability upon a person
directly
Deals with the status,
ownership or liability
of a particular
property but which
are intended to
operate on these
questions only as
between the
particular parties to
the proceedings and
not to ascertain or
cut-off the rights or
interests of all
possible claimants.
(Domagas vs. Jensen,
448 SCRA 663)
Scope
Directed against the
thing itself
whole world
Directed against
particular persons
Directed against
particular persons
Required jurisdiction
Jurisdiction over the
person of the
defendant is not
required.
Jusrisdiction over the
RES is required
through publication in
a newspaper of
general circulation.
person of the
defendant is required
person of the
defendant is not
required as long as
jurisdiction over the
res is acquired

Effect of judgment
Judgment is binding
upon the whole
world.
Judgment is binding
only upon parties
impleaded or their
successors-in-interest
Judgment will be
binding only upon the
litigants, privies,
successor in interest
but the judgment
shall be executed
against a particular
property. The RES
involve will answer
the judgment.
Example

1. Probate proceeding
2. Cadastral
proceeding
3. Land registration
proceeding

1. Action for specific
performance
2. Action for breach of
contract
3. Action for
ejectment
4. Action for a sum of
money; for damages
(Riano, Civil
Procedure: A
Restatement for the
Bar,p.130, 2009 ed.)

1. Action for partition
2. Action to foreclose
real estate mortgage
attachment

REAL ACTION PERSONAL ACTION MIXED ACTION
Ownership or
possession of real
property is involved
Personal property is
sought to be
recovered or where
damages for breach of
contract sought
Both real and
personal properties
are involved
Founded on privity of
real estate
Founded on privity of
contract
Founded on both
It is LOCAL because its
venue depends upon
the location of the
property in the
litigation
It is TRANSITORY
because its venue
depends upon the
residence of the
plaintiff or the
defendant at the
option of the plaintiff
The rules on venue of
real actions shall
govern
e.g. Accion
Reinvindicatoria
e.g. Action for a sum
of money
E.g. Accion publiciana
with a claim for
damages

Indispensable Parties Necessary Parties
Parties in interest without whom
no final determination can be
A necessary party is one who is not
indispensable but who ought to be
joined as a
had of an action shall be joined
either as plaintiffs or defendants.
(Sec.7, Rule 3)
Must be joined under any and all
conditions because the court
cannot proceed without him
(Riano, Civil Procedure: A
Restatement for the Bar, p. 224,
2009 ed.)
party if complete relief is to be
accorded as to those already
parties, or for a complete
determination or settlement of the
claim subject of the action. (Sec.8,
Rule 3)
Note: Should be joined whenever
possible, the action can proceed
even in their absence because his
interest is separable from that of
indispensable party (Ibid p.224)
No valid judgment if they are not
joined
Note: In the absence of an
indispensable party renders all
subsequent actions of the court
null and void for want of authority
to act, not only as to the absent
parties but even as to those
present (Riano, Civil Procedure: A
2009 ed.)
The case may be determined in
court but the judgment therein will
not resolve the entire controversy
if a necessary party is not joined
Note: Whenever in any pleading in
which a claim is asserted a
necessary party is not joined, the
pleader shall set forth his name, if
known, and shall state why he is
omitted. Should the court find the
reason for the omission
unmeritorious, it may order the
inclusion of the omitted necessary
party if jurisdiction over his person
may be obtained. The failure to
comply with the order for his
inclusion, without justifiable cause,
shall be deemed a waiver of the
claim against such party.
The non-joinder of an indispensable or a necessary party is not by itself
ipso facto a ground for the dismissal of the action. The court should
order the joinder of such party and non-compliance with the said order
would be a ground for the dismissal of the action (Feria, Civil Procedure
Annotated, Vol. I, p. 239, 2001 ed.)
Note: Parties may be dropped or added by order of the court on motion
of any party or on its own initiative at any stage of the action and on
such terms as are just. Any claim against a misjoined party may be
severed and proceeded with separately. (Sec. 11, Rule 3)
Venue Jurisdiction
The place, or geographical area
where an action is to be filed and
tried.
Power of the court to hear and
decide a case
May be waived by:
1. Failure to object through a
motion to dismiss or through an
affirmative defense.
2. Stipulation of the parties.

Cannot be waived
Procedural Substantive
May be changed by the written
agreement of the parties
Cannot be the subject of the
agreement of the parties. (2006
Bar question
Establishes a relation between
plaintiff and defendant, or
petitioner and respondent.
Establishes a relation between the
court and the subject matter.
GR: Not a ground for a motu
proprio dismissal
XPN: In cases subject to summary
procedure.
It is a ground for a motu proprio
dismissal. (Riano, Civil Procedure: A
2009 ed.)

Compulsory Counterclaim Permissive Counterclaim
One which arises out of or is
necessarily connected with the
transaction or occurrence that is
the subject matter of the opposing
partys claim (Sec.7, Rule 6)
It does not arise out of nor is it
necessarily connected with the
subject matter of the opposing
partys claim
It does not require for its
adjudication the presence of third
parties of whom the court cannot
acquire jurisdiction
It may require for its adjudication
the presence of third parties over
whom the court cannot acquire
jurisdiction
Barred if not set up in the action
(Sec. 2, Rule 9)
Not barred even if not set up in
the action
Need not be answered; No default
Must be answered,: Otherwise,
default
Not an initiatory pleading.
Initiatory pleading. (Riano, Civil
Bar, p. 336, 2009 ed.)
Need not be accompanied by a
certification against forum
shopping and certificate to file
action by the Lupong
Tagapamayapa.
Must be accompanied by a
certification against forum
shopping and whenever required
by law, also a certificate to file
action by the Lupong
Tagapamayapa (Santo Tomas
University v. Surla, G.R. No.
129718, Aug. 17, 1998) (2007 Bar
Question).
The court has jurisdiction to
entertain both as to the amount
and nature (Sec. 7, Rule 6; Ibid
p.331)
Must be within the jurisdiction of
the court where the case is
pending and cognizable by regular
courts of justice otherwise,
defendant will have to file it in
separate proceeding which
requires payment of docket fee

CLASS SUIT PERMISSIVE JOINDER OF PARTIES
There is one single cause of action
pertaining to numerous persons
There are multiple causes of action
separately belonging to several
persons

INDISPENSABLE PARTIES NECESSARY PARTIES
Must be joined under any and all
conditions, their presence being a
condition sine qua non for the
exercise of judicial power
Should be joined whenever
possible; the action can proceed
even in their absence
No valid judgment if indispensable
party is not joined
The case maybe determined in
court but the judgment therein
will not resolve the entire
controversy if a necessary party is
not joined
They are those with such an
interest that a final decree would
necessarily affect either rights so
that the court cannot proceed
without their presence
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

Periods for Filing an Answer
Answer to an original complaint
Within 15 days after service of
summons, unless a different
period is fixed by the court (Sec. 1,
Rule 11).
Defendant is a foreign private
juridical entity and has a resident
agent
summons (Sec.6, in relation to
Sec.5[a], Rule 2, A.M. NO. 00-8-10-
SC 2000-11-21)
juridical entity and has no
resident agent but has an agent /
officer in the Philippines
summons to said agent or officer
(Sec.6, in relation to Sec.5[b], Rule
2, A.M. 00-8-10-SC 2000-11-21)
juridical entity and has no
resident agent nor agent/ officer.
(Summons to be served to SEC
which will then send a copy by
registered mail within 10 days to
the home office of the foreign
private corporation)
Within 30 days after receipt of
summons by the home office of
the foreign private entity
Service of summons by
publication
Within the time specified in the
order which shall not be less than
60 days after notice (Sec. 15, Rule
14)
Non-resident defendant to whom
extraterritorial service of
summons is made
Not be less than 60 days after
notice (Sec. 15, Rule 14)
Answer to amended complaint
(Matter of right)*
Within 15 days from service of
amended complaint (Sec. 3. Rule
11)
Answer to amended complaint
(Not a matter of right)*
Within 10 days counted from
notice of the court order admitting
the same (Sec. 3, Rule 11)
Counterclaim or cross-claim
Within 10 days from service (Sec.
4, Rule 11)
Third (fourth, etc.) party
complaint
Like an original defendant 15, 30,
60 days as the case may be (Sec. 5;
Regalado, Vol. I, p. 212, 2005 ed.)
Supplemental complaint
Within 10 days from notice of
order admitting the same unless a
different period is fixed by the
court (Sec. 7, Rule 11)
CROSS CLAIM COUNTERCLAIM 3
RD
PARTY
COMPLAINT
Against a co-party Against an opposing
party
Against a person not a
party to the action
Must arise out of the
transaction that is the
subject matter of the
original action or of a
counterclaim therein
May arise out of or be
necessarily connected
with the transaction
or the subject matter
of the supposing
partys claim in which
case it is called a
compulsory
counterclaim or it
may not, in which
case it is called a
permissive
counterclaim
Must be in respect of
the opponents
(plaintiff) claim.
NO NEED for a leave
of court
NO NEED for a leave
of court
LEAVE OF COURT is
NEEDED

THIRD PARTY COMPLAINT COMPLAINT IN INTERVENTION
Brings into the action a third
person who was not originally a
party
Same
Initiative is with the person
ALREADY a party to the action
Initiative is with a NON-PARTY who
seeks to join the action

Amended Pleading Supplemental Pleading
Refer to the facts existing at the
time of filing of original pleading
Refers to facts occurring after the
filing of the original pleading.
Supersedes the original Merely supplements the original
pleading.
May be amended without leave of
court before a responsive pleading
is filed.
Always with leave of court
Amendment must be
appropriately marked.
There is no such requirement in
supplemental pleadings . A
supplemental pleading does not
require the filing of a new copy of
the entire pleading
ORDER OF DEFAULT JUDGMENT BY DEFAULT
Issued by the court on plaintiffs
motion for failure of the defendant
to file his responsive pleading
seasonably
Rendered by the court following a
default order or after it received,
ex parte, plaintiffs evidence
INTERLOCUTORY-NOT
APPEALABLE
FINAL- APPEALABLE

Rule 16 (Motion to Dismiss) Rule 33 (Demurrer to Evidence)
Grounded on preliminary
objections
Based on insufficiency of evidence
May be filed by any defending
party against whom a claim is
asserted in the action
May be filed only by the defendant
against the complaint of the
plaintiff
Should be filed within the time for
but prior to the filing of the answer
May be filed only after the plaintiff
has completed the presentation of
his evidence (Regalado, Remedial
Law, Compendium Vol. I, p. 267,
2005 ed.)
If denied, defendant answers, or
else he may be declared in default.
If granted, plaintiff may appeal or
if subsequent case is not barred,
he may re-file the case
If denied, defendant may present
evidence. If granted, but on appeal
the order of dismissal is reversed,
the defendant loses his right to
present evidence (Riano, Civil
Bar, p. 399, 2009 ed.)

EFFECTS OF ACTION ON MOTION
TO DISMISS
REMEDY
Order granting motion to dismiss is
a final order (without prejudice)
Re-file the complaint
Order granting motion to dismiss
(with prejudice)
Appeal
Order denying the motion to
dismiss is interlocutory
File answer and proceed with the
trial, if decision is adverse, appeal
therefrom and raise as error the
denial of the motion to dismiss.

If there is grave abuse of discretion
amounting to lack or excess of
jurisdiction, Certiorari or
prohibition may lie under Rule 65.

PRESCRIPTION LACHES
It is connected with the fact of
delay
It is connected with the effect of
delay
It is a matter of time It is a matter of equity
Statutory Non-statutory
Applies at law Applies in equity
Based on fixed time Not based on fixed time

PLEADING MOTION
Purpose: To submit a claim or
defense for appropriate judgment
Purpose: To apply for an order not
included in the judgment
May be initiatory Cannot be initiatory as they are
always made in a case already filed
in court
Always filed before judgment May be filed even after judgment
Only 9 Kinds of pleadings are
allowed by the Rules
Any application for relief not by a
pleading is a motion
Must be written May be oral when made in open
court or in the course of a hearing
or trial

Dismissal upon notice
by plaintiff (Sec. 1,
Rule 17)
Dismissal upon
motion of plaintiff
(Sec. 2, Rule 17)
Dismissal due to fault
of plaintiff (Sec. 3,
Rule 17)
A complaint may be
dismissed by the
plaintiff by filing a
notice of dismissal at
any time before
service of the answer
or of a motion for
summary judgment.
Upon such notice
being filed, the court
shall issue an order
confirming the
dismissal. Unless
otherwise stated in
the notice, the
dismissal is without
prejudice, except that
a notice operates as
adjudication upon the
merits when filed by a
plaintiff who has once
dismissed in a
competent court an
action based on or
including the same
claim.
After service of the
answer or a motion
for summary
judgment by the
adverse party.

1. If, for no justifiable
cause, the plaintiff
fails to appear on the
date of the presen-
tation of his evidence
in chief on the
complaint.
2. If the plaintiff fails
to prosecute his
action for an
unreason-nable
length of time (nolle
prosequi).
3. If the plaintiff fails
to comply with the
Rules or any order of
the court.

It is a matter of right.
GR: A dismissal
without prejudice i.e.
the complaint can be
re-filed
XPNs:
1. The notice of
dismissal by
the plaintiff
provides that
the dismissal
is with
prejudice; or

Matter of discretion
upon the court. A
complaint shall not be
dismissed at the
plaintiffs instance
save upon approval of
the court and upon
such terms and
conditions as the
court deems proper
(Sec. 2, Rule 17).

Matter of evidence.
GR: Dismissal is with
prejudice because it
has an effect of an
adjudication on the
merits.
XPN: Unless
otherwise declared by
the court (Sec. 3, Rule
17)

2. The plaintiff has
once dismissed in a
competent court an
action based on or
including the same
claim (Two-dismissal
rule) (Sec. 1, Rule 17)

3. Even where the
notice of dismissal
does not provide that
it is with prejudice but
it is premised on the
fact of payment by
the defendant of the
claim involved
(Serrano v. Cabrera,
G.R. No. L-5189, Sept.
21, 1953)

GR: It is a dismissal
without prejudice,
XPN: If the order of
dismissal specifies
that it is with
prejudice (Sec. 2, Rule
17)
Note: A class suit shall
not be dismissed or
compromised without
the approval of the
court.
If a counterclaim has
been pleaded by a
defendant prior to the
service upon him of
the plaintiffs motion
for dismissal, the
dismissal shall be
limited to the
complaint.
Since there is no
answer yet filed by
the adverse party, no
counterclaim
recoverable
GR: It is also without
prejudice to the right
of defendant to
prosecute his
counterclaim in a
separate action.
XPN: Unless within 15
days from notice of
the motion he
manifests his
preference to have his
counterclaim resolved
in the same action
(Sec. 2, Rule 17).
Dismissal upon
motion of the
defendant or upon
the courts own
motion is without
prejudice to the right
of the defendant to
prosecute his
counterclaim on the
same or separate
action

Pre-trial in civil case Pre-trial in criminal case
It is set when the plaintiff moves
ex parte to set the case for pre-
trial (Sec. 1, Rule 18)
It is ordered by the court and no
motion to set the case for pre-trial
is required from either the
prosecution or the defense
The motion to set the case for pre-
trial is made after the last pleading
has been served and filed (Sec. 1,
Rule 18)
The pre-trial is ordered by the
court after arraignment and within
thirty (30) days from the date the
court acquires jurisdiction over the
person of the accused.
It considers the possibility of an
amicable settlement as an
important objective.
It does not include the possibility
of amicable settlement of criminal
liability as one of its purposes (Sec.
1, Rule 118).
Requires the proceeding during
the preliminary conference to be
recorded in the minutes of
preliminary conference to be
signed by both parties and/or
counsel. The rule allows either the
party or his counsel to sign the
minutes (A.M. No. 03-1-09-SC).
All agreements or admissions
made or entered during the pre-
trial conference shall be reduced in
writing and signed by both the
accused and counsel, otherwise,
they cannot be used against the
accused (Sec. 2, Rule 18)
Sanctions for non-appearance in a
pre-trial are imposed upon the
plaintiff and the defendant in a
civil case (Sec. 4, Rule 18).
The sanctions in a criminal case are
imposed upon the counsel for the
accused or the prosecutor (Sec. 3,
Rule 18)
The presence of the defendant is
required, unless he is duly
represented at the trial conference
by his counsel with the requisite
authority to enter into a
compromise agreement, failing in
either of which the case shall
proceed as if the defendant has
been declared in default.
The accused is merely required to
sign the written agreement arrived
at in the pre trial conference, if he
is in conformity therewith. Unless
otherwise required by the court
his presence therefore is NOT
indispensable
The presence of the plaintiff is
required at the pre-trial unless
excused therefrom for valid cause
or if he is represented therein by a
person fully authorized in writing
to perform the acts specified in
Sec 4 Rule 18
The presence of the private
offended party is NOT required at
the pre-trial. Instead he is required
to appear at the arraignment of
the accused for purposes of plea
bargaining, determination of civil
liability, and other matters
requiring his presence.

Should he fail to appear therein,
and the accused offers to plead
guilty to a lesser offense
necessarily included in the offense
charged, he may be allowed to do
so with the conformity of the trial
prosecutor alone.
A pre-trial brief is required with
the particulars and the sanctions
provided by Sec 6 rule 18
The Rules do not require the filing
of a pre-trial brief in criminal cases
but only require attendance at a
pre-trial conference to consider
the matters stated in Sec 2 Rule
118.

INTERVENTION INTERPLEADER
An ancillary action An original action
Proper in any of the four situations
mentioned in this Rule
Presupposes that the plaintiff has
no interest in the subject matter of
the action or has an interest
therein, which in whole or in part,
is not disputed by the other parties
to the action
The action is against either or both
the original parties to the pending
suit
Defendants are being sued
precisely to implead them.

Subpoena Summons
An order to appear and testify or
to produce books and documents
Order to answer complaint
May be served to a non-party Served on the defendant
Needs tender of kilometrage,
attendance fee and reasonable
cost of production fee
Does not need tender of
kilometrage and other fees

DEPONENT USE
Any person By any party for contradicting or
impeaching the testimony of
deponent as witness
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
By an adverse party for any
purpose
Witness, whether a party or not a
party
By any party for any purpose if the
court finds 5 instances concurring

Commission Letters Rogatory
Instrument issued by a court of
justice, or other competent
tribunal, to authorize a person to
take depositions or do any other
act by authority of such court or
tribunal
Instrument sent in the name and
by authority of a judge or court to
another, requesting the latter to
cause to be examined, upon
interrogatories filed in a case
pending before the former, a
witness who is within the
jurisdiction of the judge or court to
whom such letters are addressed
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 requesting court.
Applicable rules of procedure are
those of the foreign court
requested to act.
Resorted to if permission of the
foreign country is given.
Resorted to if the execution of the
commission is refused in the
foreign country. (There must be a
showing that the commission is
inadequate or ineffective)
Leave of court is not necessary. Leave of court is necessary.

Protection Order (Sec. 16, Rule 23)
Motion to Terminate or Limit
Examination (Sec. 18, Rule 23)
Provides protection to the party or
witness before the taking of
deposition.
Provides such protection during
the taking of deposition.
The Motion is filed with the court
in which the action is pending.
Motion or petition is filed in the
court in which the action is
pending or the RTC of the place
where the deposition is being
taken.

Interrogatories Bill of Particulars
A party may properly seek
disclosure of matters of proof
which may later be made a part of
the records as evidence
A party may properly seek
disclosure only of matters which
define the issues and become a
part of the pleadings
They seek to disclose all material
and relevant facts from a party
(Sec 1, Rule 25)
Designed to clarify ambiguities in a
pleading or to state with sufficient
definiteness allegations in a
pleading. (Sec 1, Rule 12)
Interrogatories to parties are not
directed to a particular pleading.
Instead
It is therefore directed to a
pleading

Depositions Upon Written
Interrogatories to Parties (Sec. 25, Rule
23)
Interrogatories to Parties
(Rule 25)
Deponent
Party or ordinary witness Party only
Procedure
With intervention of the officer
authorized by the Court to take
deposition
Not served upon the adverse party
directly. They are instead delivered to the
officer before whom the deposition is to
be taken. (Sec 26, Rule 23)
No intervention. Written
interrogatories are directed
to the party himself
Served directly upon the
adverse party (Sec 1, Rule
25)
Scope
Direct, cross, redirect, re-cross
Only one set of
interrogatories
Interrogatories
No fixed time
15 days to answer unless
extended or reduced by the
court

REQUEST FOR ADMISSION ACTIONABLE DOCUMENT
Proper when the genuineness of
an evidentiary document is sought
to be admitted. If not denied
under oath, its genuineness is
deemed impliedly admitted.
Essentially a mode of discovery
Must be attached to the complaint
or copied therein. Its genuineness
and due execution is deemed
impliedly admitted unless
specifically denied under oath by
the adverse party.

Production or Inspection of
Documents or Things
Subpoena Duces Tecum
Essentially a mode of discovery. Means of compelling production of
evidence
Limited to the parties to the
action.
It may be directed to any person
whether a party or not.
Issued only upon motion with
notice to the adverse party.
Issued upon an ex parte
application.

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY
A: Refusal to answer any question upon oral examination

1. Order to compel an answer;
2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. Designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or
defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.

Refusal to produce document or thing for inspection, copying or
photographing

the action in accordance with the claim of the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose claims or
defenses;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.

Refusal to submit to Physical or Mental examination

the action in accordance with the claim of the party obtaining the order;
2. Prohibit the disobedient party to introduce evidence of physical and
mental conditions;
7. Render a Judgment by default against the disobedient party

Refusal to the request for admission by adverse party

1. Require payment of reasonable fees incurred by the proponent (Secs.
1-4)
2. Each of the matters of which an admission is requested is deemed
admitted (Sec. 5, Rule 26).

Note: The remedy of the party, in this case, is to file a motion to be
relieved of the consequences of the implied admission. The amendment
of the complaint per se cannot set aside the legal effects of the request
for admission since its materiality has not been affected by the
amendment.

Trial Hearing
Reception of evidence and other
processes.
Not confined in trial but embraces
several stages of litigation,
including the pre-trial stage.
The period for the introduction of
evidence by both parties.
Does not necessarily imply
presentation of evidence in open
court but the parties are afforded
the opportunity to be heard.

Civil Cases Criminal Cases
Stipulation of Facts may be signed
by the counsel alone who has a
special power of attorney.
Stipulation of Facts must be signed
both by the counsel and the
accused.
May be made verbally or in
writing.
Strict. It must always be in writing.

Consolidation Severance
Involves several actions having a
common question of law or fact
which may be jointly tried (Sec.1,
Rule 31).
Contemplates a single action
having a number of claims,
counterclaims, cross-claims, third-
party complaints, or issues which
may be separately tried.

Recasting the Cases Consolidation Proper Test-Case Method
Reshaping of the
cases by amending
the pleading,
dismissing some cases
and retaining only one
case. There must be
joinder of causes of
action and of parties.
It is a joint trial with
joint decision, the
cases retaining their
original docket
numbers.
By hearing only the
principal case and
suspending the
hearing on the other
cases until judgment
has been rendered in
the principal case. The
cases retain their
original docket
numbers (Riano, Civil
Procedure, p. 96, 2009
ed.).

Delegation to Clerk of Court Trial by Commissioner
Delegation is made during trial. Commissioner can be appointed
even after the case has become
final and 14xecutor.
Clerk of court must be a lawyer. Commissioner need not be a
lawyer.
Clerk of court cannot rule on
objections or on the admissibility
of evidence.
Commissioner can rule on
objections or on admissibility of
evidence.

Motion to Dismiss
(Rule 16)
Demurrer to Evidence
(Rule 33)
When to file Before filing of answer
(responsive pleading)
is made by the
defendant
After the plaintiff
rests its case or after
the completion of the
presentation of
evidence
-
Grounds The 10 grounds
enumerated in Rule
16
That upon the facts
and the law, the
plaintiff has shown no
right to relief

Insufficiency of
evidence
If denied The defendant may
file his responsive
pleading.
The defendant may
present his evidence.
If granted The complaint may be
15xecutor depending
on the ground of
dismissal.
The complaint may
NOT be filed. The
remedy of the plaintiff
is to appeal from the
dismissal.

Motion Denied Motion Granted but Reversed on
Appeal
Movant shall have the right to
present his evidence
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.
Denial is interlocutory, hence, not
appealable. Sec. 1, Rule 36 (that
judgment should state clearly and
distinctly the facts and the law on
which it is based), will not apply.
Order of the court is an
adjudication on the merits. Hence,
the requirement in Sec. 1, Rule 36
should be complied with.

Civil Case Criminal Case
Leave of court Not required With or Without
If granted
The Plaintiff may appeal
from the order of dismissal
of the case
The Plaintiff cannot
make an appeal from
the order of dismissal
due to the
constitutional
prohibition against
double jeopardy
If denied
The Defendant may
proceed to adduce his
evidence
The Defendant may
adduce his evidence
only if the demurrer is
filed with leave of
court.
If there was no leave
of court, accused can
no longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence
If the plaintiff
appeals from the
order of
dismissal
If the court finds 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
If the court finds the
prosecutions
evidence insufficient,
it will grant the
demurrer by
rendering judgment
acquitting the
accused. Judgment of
acquittal is not
appealable; double
jeopardy sets in
How can
demurrer be
denied?
The plaintiff files a motion
to deny motion to
demurrer to evidence.
The court may motu
proprio deny the
motion.

MOTION TO DISMISS MOTION FOR JUDGMENT ON THE
PLEADINGS
Filed by a defendant to a
complaint, counterclaim, cross
claim or 3
rd
party complaint
Filed by the plaintiff if the answer
fails to tender an issue

SUMMARY
JUDGMENT
JUDGMENT ON THE
PLEADINGS
JUDGMENT BY
DEFAULT
Based on the
pleadings,
depositions,
admissions and
affidavits
Based solely on the
pleadings
Based on the
complaint and
evidence, if
presentation is
required
Available to BOTH
plaintiff and
defendant
Generally available
only to the plaintiff,
unless the defendant
presents a
counterclaim
Available to plaintiff
There is NO genuine
issue between the
parties, i.e there may
be issues but these
are irrelevant
The answer fails to
tender an issue or
there is an admission
of material allegations
NO issue as no answer
is filed by the
defending party
10-day notice
required
3-day notice required 3-day notice required
May be interlocutory
or on the merits
On the merits On the merits
If filed by the plaintiff,
it must be filed at any
time after an answer
is served

If filed by defendant,
may be filed at any
time even before
there is an answer
There is already an
answer filed
There is NO answer
filed

Judgment on the
pleadings
Summary judgments
Answer Answer does not
tender an issue
There is an issue
tendered in the
answer, but it is not
genuine or real issue
as may be shown by
affidavits and
depositions that there
is no real issue and
that the party is
entitled to judgment
as a matter of right
Notice Movants must give a
3-day notice of
hearing
Opposing party is
given 10 days notice
Termination Entire case may be
terminated
May only be partial
Who can file Only the plaintiff or
the defendants as far
as the counterclaim,
cross-claim or third-
party complaint is
concerned can file the
same
Either the plaintiff or
the defendant may
file it
Basis of the judgment Based only on the
pleadings alone,
hence, only on the
complaint and the
answer
Based on the
pleadings, affidavits,
depositions, and
admissions

Amended or clarified judgment Supplemental decision
It is entirely new decision and
supersedes the original judgment
It does not supersede the original
decision
Court makes a thorough study of
the original judgment and renders
and clarified judgment only after
considering all the factors and
legal issues
Serves to bolster or add to the
original judgment

MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION
Grounds

1. Extrinsic fraud, accident,
mistake or excusable negligence
(FAME) which ordinary prudence
could not have guarded against
and by reason of which the rights
of the aggrieved party was
impaired; or
2. Newly discovered evidence,
which could not with reasonable
diligence, have been discovered
and produced at the trial, and
which if presented, would
probably alter the result (Sec. 1,
Rule 37).

1. The damages awarded are
excessive;
2. The evidence is insufficient to
satisfy the decision or final order;
or
3. The decisionor final order is
contrary to law (Sec. 1, Rule 37).

Requisites

1. Must be in writing;
2. Affidavit of the existence of
FAME and newly discovered
evidence;

Note: Whenever a remedy is
allowed on the ground of FAME,
an affidavit of merit is obligatory.
3. Affidavit of merit setting forth
the particular facts claimed to
constitute a meritorious cause of
action;
4. In case of newly discovered
evidence:
a. Affidavit of new witnesses; and
b. Duly authenticated documents
to be introduced.

1. Must point out specifically the
conclusion of judgment;
2. Express reference to testimonial
or documentary evidence or to
provisions of law.

Both shall be made in writing stating the ground / grounds therefor, a
written notice of which shall be served by the movant on the adverse
party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and
5 of Rule 15.

The requirements are mandatory and non-compliance therewith is fatal
and renders the motion pro forma or a mere scrap of paper and will not
toll the reglementary period for appeal.
When to file
A motion for new trial or reconsideration should be filed within the
period for taking an appeal. Hence, it must be filed before the finality
of the judgment (Sec. 1, Rule 37). No motion for extension of time to
file a motion for reconsideration shall be allowed. In
DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for
filing a motion for new trial is within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of
the judgment or final order appealed from. Where a record on appeal
is required, the appellant shall file a notice of appeal and a record on
appeal within 30 days from notice of the judgment or final order (Sec.
3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3,
Rule 40).
Second motion may be allowed so
long as based on grounds not
existing or available at the time
the first motion was made. (Sec. 5,
Rule 37)
Single motion rule (applicable only
on a judgment or final order but
not to interlocutory order) (Sec. 5,
Rule 37)
If granted, the original judgment or
final order shall be vacated, and
the action shall stand for trial de
novo. The recorded evidence taken
upon the former trial, insofar as
the same is material and
competent to establish the issues,
shall be used at the new trial
without retaking the same (Sec. 6,
Rule 37).
No new trial or hearing will take
place and the judgment will be
based on the pleadings submitted
by the parties. If granted, the court
may amend such judgment or final
order accordingly (Sec. 3, Rule 37).
Note: The amended judgment is in
the nature of a new judgment
which supersedes the original
judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec.
9, Rule 37).
Available even on appeal but only
on the ground of newly discovered
evidence.
Available against judgments or
final orders of both the trial and
appellate courts.
Both must be resolved within 30 days from the time it is submitted for
resolution
Both are prohibited motions under Summary Procedure

Judgment upon compromise Judgment by confession
The provisions and terms are
settled and agreed upon by the
parties to the action, and which is
entered in the record by the
consent of the court
An affirmative and voluntary act
of the defendant himself. The
court exercises a certain amount
of supervision over the entry of
judgment
The parties bargain and agree on
the terms and conditions of their
agreement.

There is mutual or reciprocal
concession
It is unilateral which comes from
the defendant himself who
admits liability and accepts the
judgment to be rendered against
him.
NEWLY DISCOVERED EVIDENCE FORGOTTEN EVIDENCE
Evidence was not available to a
party during a trial, and was
discovered only thereafter.
Evidence was already available to a
party and was not presented
through inadvertence or
negligence of the counsel; it is not
a ground for new trial.

EXTRINSIC FRAUD INTRINSIC FRAUD
Connotes any fraudulent scheme
executed by the prevailing party
outside trial against the losing
party who because of such fraud
was prevented from presenting his
side of the case
Refers to the acts of party during
trial which does not affect the
presentation of the case

MOTION FOR NEW TRIAL MOTION FOR REOPENING OF
TRIAL
A motion must be filed The judge may act motu propio
Proper only after promulgation of
judgment
May properly be presented only
after either or both parties have
formally offered and closed their
evidence before judgment
Based upon specific grounds
mentioned in Sec. 37 in civil cases
and Sec. 121 in criminal cases
Controlled by no other than the
paramount interest of justice,
resting entirely on the sound
discretion of the court, the
exercise of such shall not be
reviewable on appeal UNLESS a
clear abuse thereof is shown.
Specifically mentioned in the rules NOT mentioned in the rules but
nevertheless recognized
procedural recourse deriving
validity and acceptance from long
accepted usage.

It is actually mentioned in the
Rules of Criminal Procedure.

It is a prohibited pleading in the
revised rules on summary
procedure

Rule 37- Motion for
Reconsideration or Motion for
New Trial
Rule 38- Relief from judgments,
orders or other proceedings
Available BEFORE judgment
becomes final and executory
Available AFTER judgment has
become final and executory
Applies to JUDGMENTS, or FINAL
ORDERS ONLY
Applies to judgments, final orders
and other proceedings: Land
Registration, Special Proceedings;
Order of Execution
GROUNDS:
a. FAME and
b. NEWLY discovered
evidence
GROUNDS:
a. FAME
Filed within the time to appeal Filed within 60 days from
knowledge of the judgment AND
Within 6 months from entry of
judgment
If DENIED, the order of denial is
NOT appealable, hence remedy is
from the judgment
If DENIED, the order denying a
petition for relief is NOT
appealable; the remedy is
appropriate civil action under Rule
65
Legal remedy Equitable remedy
Motion need not be verified Petition must be verified

NOTICE OF APPEAL RECORD ON APPEAL
Deemed perfected as to him upon
the filing of the notice of appeal.
If decision is made by the courts of
1
st
level, notice of appeal need not
state the court to which the appeal
is being taken (Sec.3, Rule 40)
because there is only one court to
which it shall be made RTC
If decision is made by the
Required only in Special
Proceedings and other cases of
multiple or separate appeals.
Deemed perfected as to him with
respect to the subject matter
thereof upon its approval. (30 days
is the period for filing, only the
court may approve the record on
RTC in its original jurisdiction,
notice of appeal to the RTC must
disclose where appeal is to be
taken. (Sec 5, rule 41)
appeal beyond that period)
Period available is 15 days before
the judgment becomes final and
executor
If required, the appellant has 30
days to file and serve both notice
and record on appeal.
Should indicate:
1.Parties to the appeal;
2.Judgment or final order or part
thereof appealed from;
3.Material dates showing the
timeliness of the appeal
If required, copies of both the
notice of appeal and the record on
appeal shall be filed In court and
served to the adverse party.

Ordinary Appeal Petition for Review
A matter of right Discretionary
All the records are elevated from
the court of origin
No records are elevated unless the
court decrees it
Notice or record on appeal is filed
with the court of origin
Filed with the CA
The case was decided by the RTC
pursuant to its original
jurisdiction.
The case was decided by the RTC
pursuant to its appellate
jurisdiction
As to duration of residual powers:
Until the records are transmitted
to the appellate court.
As to duration of residual powers:
Until the CA gives due course to
the petition.

Appeal by
Certiorari(Rule 45)
Review of Judgments,
Final Orders or
Resolutions (Rule 64)
Petition for
Certiorari(Rule 65)
Petition is based only
on questions of law.
Petition is based on
questions of law.
Petition is based on
questions of
jurisdiction, that is,
whether the lower
court acted without
jurisdiction or in
excess of jurisdiction
or with grave abuse of
discretion.
It is a mode of appeal. It is a mode of appeal
but the petition used
is Rule 65.
It is a mode of review.
Involves the review of
the judgment final
orders or resolutions
of the CA,
Sandiganbayan, CTA,
RTC or other courts on
the merits
Involves review of
judgments, final
orders or resolutions
of COMELEC and COA.
Note: CSC judgments,
final orders or
resolutions are
governed by Rule 43
May be directed
against an
interlocutory order of
a court or where
there is no appeal or
any other plain,
speedy or adequate
remedy.
Filed within 15 days
from notice of
judgment, final order
or resolution
appealed from.
Filed within 30 days
from notice of
judgment, final order
or resolution sought
to be reviewed.
Filed not later than 60
days from notice of
judgment, order or
resolution appealed
from.
Stays the judgment or
order appealed from
Does not stay the
execution unless SC
shall direct otherwise
upon such terms as it
may deem just.
Unless a writ of
preliminary injunction
or temporary
restraining order is
issued, it does not
stay the challenged
proceeding
The appellant and the
appellee are the
original parties to the
action, and the lower
court or quasi-judicial
agency is not
impleaded.
The COMELEC and
COA shall be public
respondents who are
impleaded in the
action.
The judge, court,
quasi-judicial agency,
tribunal, corporation,
board, officer or
person shall be public
respondents who are
impleaded in the
action.
Motion for
reconsideration is not
required.
The filing of MNT or
MR, if allowed under
the procedural rules
of the Commission,
shall interrupt period
fixed.
Motion for
reconsideration or for
new trial is required.
If a motion for
reconsideration or
new trial is filed,
another 60 days shall
be given to the
petitioner (A.M. No.
02-03-SC)
The court is in the
exercise of its
appellate jurisdiction
and power of review.
The court is in the
exercise of its
and power of review.
Court exercises
original jurisdiction.
Filed with the SC. Filed with the SC. Filed with the RTC,
CA, Sandiganbayan or
COMELEC. (1991,
1998, 1999 Bar
Question)

Brief Memorandum
Ordinary appeals Certiorari, prohibition, mandamus,
quo warranto and habeas corpus
cases
Filed within 45 days Filed within 30 days
Contents specified by rules Shorter, briefer, only one issue
involved No subject index or
assignment of errors, just facts and
law applicable

CERTIORARI (RULE 45) CERTIORARI (RULE 65)
Mode of appeal which seeks to
review final judgments and orders
(Section 2, Rule 41)
Special civil action; an original
action (Rule 65). It may be directed
against an interlocutory order or
matters where no appeal may be
taken from (Section 1, Rule 41)
Raises questions of law Raises questions of jurisdiction
It shall be filed within 15 days from
notice of judgment or final order
appealed from
It shall be filed not later than 60
days from notice of judgment,
order or resolution sought to be
assailed and in case a MR or
motion for new trial is timely filed,
whether such motion is required
or not, the 60 day period shall be
counted from the notice of denial
of said motion
Does not require prior motion for
reconsideration
Requires as a general rule, a prior
MR
Stays the judgment sought to be
appealed
Does not stay the judgment or
order subject of the petition unless
enjoined or restrained.
The parties are the original parties
with the appealing party as the
petitioner and the adverse party as
respondent without impleading
the lower court or its judge
(Section 4a, Rule 45).
The tribunal, board, officer
exercising judicial or quasi-judicial
functions is impleaded as
respondent (Section 5 Rule 65).
Filed with the SC (Section 1, Rule
45).
Filed with the RTC (Section 21, BP
129);
With the CA (Section 9, BP 129);
With the SC (Section 5 (1) Article
VIII, 1987 Constitution).

RTC as Appellate Court (Rule 42) Appeal from Quasi-judicial
agencies (Rule 43)
Decision is stayed by an appeal. GR: Decision is immediately
21xecutor. It is not stayed by an
appeal
XPN: CA shall direct otherwise
upon such terms as it may deem
just
Factual findings not conclusive to
CA.
Factual findings are conclusive
upon CA if supported by
substantial evidence.

Final Judgments for purposes of
appeal
Final Judgments for purposes of
execution
Dispose of, adjudicate, or
determine the right of the parties.
Becomes final and 21xecutor by
operation of law.
Still subject to appeal After lapse of period to appeal and
no appeal was perfected, no
further action can be had.
Execution of judgment not a
matter of right.
Execution of judgment

Ordinary Appeal (Appeal
by Writ of Error)
Petition for Review
(Rule 42)
Petition for Review
on Certiorari (Rule
45)
Case is decided by the
RTC in its original
jurisdiction
RTC in the exercise of
its appellate
jurisdiction
RTC, CA, CTA and
Sandiganbayan
Appealed to the CA Petition for review
with the CA
Appealed to the SC
File a notice of appeal or
a record on appeal with
the court of origin (RTC)
and give a copy to the
adverse party
File a verified petition
for review with the
CA. Pay the docket
and lawful fees, and
P500 as deposit for
costs with the CA.
Furnish RTC and
adverse party copy of
such (Rule 42)
File a verified petition
for review on
certiorari with SC
(Rule 45). Pay docket
and lawful fees and
P500 for costs.
Submit proof of
service of a copy to
the lower court and
adverse party.
Within 15 days from the
notice of the judgment
for notice of appeal and
within 30 days for
records on appeal
Within 15 days from
notice of the decision
to be reviewed or
from the denial of a
MR or MNT
Within 15 days from
notice of the
judgment or order or
denial of the MR or
MNT

RTC as Appellate Court (Rule 42) Quasi-Judicial Agencies (Rule 43)
Decision is stayed by an appeal Decision is immediately executor;
not stayed by an appeal
Factual findings not conclusive to
CA
Factual findings are conclusive
upon CA if supported by
substantial evidence

Questions of Law Questions of Fact
Doubt or controversy as to what
the law is on certain facts
Doubt or difference as to the truth
or falsehood of facts, or as to
probative value of the evidence
presented
If the appellate court can
determine the issue raised without
reviewing or evaluating the
evidence
The determination involved
evaluation or review of evidence
Can involve questions of
interpretation of the law with
respect to certain set of facts
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

Judgments, Final Orders, or
Resolutions of RTC
Judgments, Final Orders, or
Resolutions of MTC
Filed with the CA Filed with the RTC
Basis: It has exclusive original
jurisdiction over said action under
Sec 9 (2) of BP 129
Basis: RTC as a court of general
jurisdiction under Sec 19(6) of BP
129
The CA may dismiss the case
outright; it has the discretion on
whether or not to entertain the
petition
The RTC has no such discretion. It
is required to consider it as an
ordinary civil action

Extrinsic Fraud Lack of Jurisdiction
Period of Filing Action Four (4) years from
discovery
Before it is barred by
laches or estoppel
Effect of Judgment Court may on motion
order the trial court to
try the case as if a
timely MNT had been
granted
Set aside the
questioned judgment
and render the same
null and void, without
prejudice to the
original action being
re-filed in the proper
court
Failure to file Notice of Appeal Failure to file Brief within the
period
Jurisdictional Not jurisdictional, maybe waived
by the parties
Decision becomes FINAL and
EXECUTORY upon failure to move
for reconsideration
Results in abandonment of appeal,
which could lead to DISMISSAL
upon failure to move for
reconsideration

Judgments for Specific Act (Sec.
10)
Manner of Execution
Conveyance, delivery of deeds, or
other specific acts, vesting title.
Court can appoint some other
person at the expense of the
disobedient party and the act done
shall have the same effect as if the
required party performed it.
Sale of real and personal property Sell such property and apply the
proceeds in conformity with the
judgment.
Delivery or restitution of real
property
If the party refuses to deliver, a
writ of execution directing the
sheriff to cause the defendant to
vacate is in the nature of a
haberefaciaspossesionemand
authorizes the sheriff to break
open the premises where there is
no occupant therein.
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.
Removal of improvements on
property subject of execution
The officer may destroy, demolish
or remove the improvements upon
special order of the court, issued
upon motion of the judgment
23xecut.
Delivery of personal property The officer shall take possession
and deliver to the party entitled
thereto.

JUDGMENT OBLIGOR REDEMPTIONER
Judgment obligor, or his successor
in interest (e.g. transferee,
assignee, heirs, joint debtors)
One who has a lien by by virtue of
an attachment judgment,
judgment, or mortgage on the
property sold, SUBSEQUENT to the
lien under which the property was
sold (Sec. 27)
Note: If creditors lien is prior to
the judgment, he is not a
redemptioner because his
interests in his lien are fully
protected.
Within 1 year from the date of
registration of the certificate of
sale.

1. Within 1 year from the date of
registration of the certificate of
sale if he is the first redemptioner,
or
2. Within 60 days from the last
redemption, if he be a subsequent
redemptioner, provided that the
judgment debtor has not exercised
his right of redemption.

Once he redeems, no further
redemption is allowed. The person
to whom redemption was made
must execute and deliver to the
judgment obligor a certificated of
redemption.
Further redemption is allowed,
even after lapse of 1 year, as long
as each redemption is made within
60 days after the last.

PROVISIONAL REMEDIES
RULE 57 PRELIMINARY ATTACHMENT
Classes of Attachment

PRELIMINARY ATTACHMENT (Rule
57)
FINAL ATTACHMENT (Rule 39)
It is an auxiliary remedy to give
security for a judgment still to be
rendered.
It is a means for the execution of a
final judgment.
There is no sale because the
decision has not yet been
rendered.
It should always be accompanied
by a sale at public auction.
Resorted to at the commencement
of the action or at any time before
the entry of judgment, for the
temporary seizure of the property
of the adverse party
Available after the judgment in the
main action had become executor,
and for the satisfaction of said
judgment.
The proceeds of the sale, in cases
allowed, are in custodial egis (Sec.
11)
The proceeds of the sale are
turned over to the attaching
creditor

RULE 58 PRELIMINARY INJUNCTION

INJUNCTION AS AN ANCILLARY
REMEDY
INJUNCTION AS A MAIN ACTION
Exist as an incident to a principal
action
Independent action
Seeks to preserve the status quo
or to prevent future wrongs in
order to preserve and protect
certain interests or rights during
the pendency of the action
(Cortez- Estrada v. Heirs of
Domingo Samut, 451 SCRA 275,
February 14, 2005).
Seeks a judgment embodying a
final injunction, to enjoin the
defendant from the commission or
continuance of a specific act, or to
compel a particular act in violation
of the rights of the applicant
(Almeida v. CA, 448 SSCRA 681,
January 17, 2005).
Order granted at any stage of the
action or proceeding prior to the
judgment or final order, requiring
a party or a court, agency, or a
person to refrain from or to
perform particular act or acts (Sec.
1, Rule 58)
Issued after final judgment of the
case permanently restraining the
defendant or making the
preliminary injunction permanent
(Sec. 9, Rule 58)
GR: Bond is required
XPN: Exempted by court (Sec. 4,
Rule 58)
No bond is required

Injunction Prohibition Status Quo Order
Directed against a
party in an action
Directed against a
court, tribunal or
person exercising
judicial powers
adverse party and is
issued by the court
motu
propio(Regalado,
Remedial Law
Compendium, Vol. I, p.
721, 2005 ed.)
Does not involve the
jurisdiction of the
court
Issued on the ground
that the court against
whom the writ is
sought acted without
or in excess of
jurisdiction
Cease and Desist
Order intended to
maintain the last,
actual, peaceable and
uncontested state of
things preceding the
controversy without
requiring the doing or
undoing of an act
(Regalado, Remedial
Law Compendium,
Vol. I, p. 722, 2005
ed.)
May be the main
action (final
injunction) or
provisional remedy
Special Civil Action /
Main action

Preliminary Injunction Temporary Restraining Order
Specie of preliminary injunction to maintain status quo before the
resolution of the writ of preliminary injunction on the ground of
irreparable injury
Note: Injury is irreparable if it is not susceptible to mathematical
computation (DFA and BSP v. Falcon and BCA Intl Corp., G.R. No.
176657, September 1, 2010)
Effective during the pendency of
the action unless earlier dissolved
Note: The trial court, the Court of
Appeals, the Sandiganbyan or the
Court of Tax Appeals that issued a
writ of preliminary injunction
against a lower court, board,
officer, or quasi-judicial agency
shall decide the main case or
petition within six (6) months from
the issuance of the writ. (Sec. 5,
Rule 58 as amended by A.M. No.
07-7-12-SC)
Duration (non-extendible): (Sec. 5,
Rule 58)
1. If issued by RTC/MTC 20days
from notice to person restrained
2. If issued by CA 60 days from
notice
3. If issued by SC until lifted

Note: Prohibition against the
renewal applies only if the same is
sought under and by reason of the
same ground for which it was
originally issued (Regalado,
Remedial Law Compendium, Vol. I,
p. 725, 2005 ed.)
Note: TRO is deemed
automatically lifted after the
expiration of the effectivity period
Notice and hearing always
required (Sec. 5, Rule 58)
GR: Notice and hearing required
XPN: To prevent urgent /
irreparable injury, TRO may be
issued by an Executive Judge or
Presiding Judge for 72hours and a
summary hearing be subsequently
conducted within such period
Can be issued to compel the
performance of an act
Cannot be issued to compel the

Injunction TRO
May exceed 20 days Does NOT exceed 20 days (RTC);
Does Not exceed 60 days (CA);
Indefinite (SC)
Restrains or requires the
performance of particular acts
Maintains the status quo

TRO issued by executive judge for
multisala courts/ordinary judge
for single-sala courts
TRO issued by ordinary judge
Good for 72 hrs Good for 20 days including the first
72 hours
Issued before raffling Issued after raffling
Issued ex parte Issued after summary hearing

Preventive / Prohibitory
Injunction
Mandatory Injunction
Requires a person to refrain from
doing an act
Requires the performance of a
particular act
The act had not yet been
performed
The act has already been
performed and this act has
violated the rights of another
To preserve status quo To restore status quo

Prohibitory Injunction Prohibition (rule 65)
Directed against a party in the
action
Directed against a Court, tribunal
or a person exercising judicial,
quasi-judicial or ministerial
functions
It does not involve jurisdiction of
the court
Based on the ground that the
court against whom the writ is
sought had acted without or in
It may be the main action itself or
just a provisional remedy
Always the main action

Mandatory Injunction Mandamus (rule 65)
Directed to a party litigant, NOT to
a tribunal and is issued to require a
party to perform an act to restore
the last peaceable uncontested
status preceding the controversy
Special Civil Action seeking a
judgment commanding a tribunal,
board or officer or person to
perform a ministerial duty
required to be performed by law

RULE 60 REPLEVIN

Replevin Preliminary Attachment
Recovery of possession of personal
property is the principal relief and
damages are incidental
Available even if recovery of
personal property is only an
incidental relief
This is available before defendant
files an answer
Available from commencement
but before entry of judgment
Available only where defendant is
in actual or constructive
possession of personal property
involved
May be resorted to even if
personal property is in the custody
of a third person
Extends only to personal property
capable of manual delivery
Extends to all kinds of property
whether real, personal or
incorporeal
Used to recover personal property
even if not being concealed,
removed or disposed
Recover property being concealed,
removed or disposed
Cannot be availed of when
property is in custodialegis(under
attachment) or seized under
search warrant
Can be resorted to even if
property is in custodialegis
Property of GOCCs cannot be
reached
Properties of GOCCs may be
reached if utilized in its proprietary
function.
Sheriff takes possession of the
property subject of the replevin
and hold the same for a period of
5 days after which said property
will be delivered to the party who
obtained the writ.
Sheriff does not take possession of
the property attached except
contructively placing it under
26xecutor26 egis.
Bond to be posted is double the
value of the property sought to be
recovered
Bond amount is fixed by court and
does not exceed the claim or value
of the property to be attached

Ordinary Civil Action Special Civil Action
Governed by ordinary rules also governed by ordinary rules
but SUBJECT to specific rules
prescribed (Rules 62-71)
Formal demand of ones legal
rights in a court o justice in the
manner prescribed by the court o
by the law
Special features not found in
ordinary civil actions
Must be based on a cause of action
act or omission in violation of the
rights of another
Cause of action not necessarily
needed
Examples:
1. Declaratory relief action is
brought before there is any breach
2. Interpleader plaintiff files a
complaint even if he has not
sustained actual transgression of
his rights

Venue is determined either by the
residences of the parties where
the action is personal or by the
location of the property where the
action is real
Not necessarily true as in quo
warranto, the venue is where the
Supreme Court or Court of Appeals
if the petition is commenced in any
of these courts without taking into
consideration the residences of
the parties
May be filed in Municipal Trial
Court or the Regional Trial Court
depending upon the jurisdictional
amount or nature of the action
Some actions may be filed only in
the Municipal Trial Court, some
cannot be commenced therein
May be commenced only by the
filing of complaint
May be commenced by the filing
of a complaint or petition

Special Civil Actions initiated by
Complaints (IF FEUD PE)
Special Civil Actions Initiated by
Petitions (DR CPM QC)
1. Interpleader
2. Foreclosure of Real
Estate mortgage
3. Forcible Entry
4. Unlawful Detainer
5. Partition
6. Expropriation
1. Declaratory Relief
2. Review of
Adjudication of the
COMELEC/COA
3. Certiorari
4. Prohibition
5. Mandamus
6. Quo Warranto
7. Contempt
Jurisdiction Venue
Interpleader
MTC where the value of the
claim or the personal property
does not exceed P300,000 or
P400,000 in Metro Manila or
where the value of the real
property does not exceed P20,000
or P50,000 in Metro Manila.
RTC if the value exceeds the
above amounts or if the subject
matter is exclusively within the
jurisdiction of the RTC
Where the plaintiff or any of the
principal plaintiff resides or where
the defendant or any of the
principal defendants resides
Note: The venue of special civil
actions is governed by the general
rules on venue, except as
otherwise indicated in the
particular rule for said special civil
action.
Declaratory Relief
RTC
Note: It would be error to file the
petition with the SC which has no
original jurisdiction to entertain a
petition for declaratory relief
(Tano v. Socrates, G.R. No. 110249,
Aug. 14, 1997)
Where the petitioner or the
respondent resides
Expropriation
RTC (incapable of pecuniary
estimation) (Barangay San Roque
v. Heirs of Pastor, G.R. No. 138896,
June 20, 2000)
Land: where the property is
located
Personal property: the place
where the plaintiff or defendant
resides
Certiorari, Prohibition, Mandamus
RTC, CA, SC, Sandiganbayan
COMELEC in aid of its appellate
jurisdiction (A.M. No. 07-7-12-SC)
RTC: if it is directed against a
municipal trial court, a
corporation, a board, an officer or
a person.
CA or with the SB, whether or not
the same is in aid of the courts
appellate jurisdiction.
If the petition involves an act or an
omission of a quasi-judicial
agency, unless otherwise provided
by law or the Rules, the petition
shall be filed with and be
cognizable only by the Court of
Appeals.

In election cases involving an act
or omission of MTC /RTC, it shall
be filed exclusively with the
COMELEC, in aid of its appellate
jurisdiction (Sec. 4, Rule 65)
Quo Warranto
RTC, CA, SC, SB in aid of its
With the SC, CA, or in the RTC
exercising jurisdiction over the
territorial area where the
respondent or any of the
respondents resides. When the
Solicitor General commences the
action, it may be brought in a RTC
in the City of Manila, in the CA, or
in the SC (Sec. 7, Rule 66)
Note: Subject to the principle of Hierarchy of Courts
Contempt
MTC, RTC, CA, SC Where the charge for indirect
contempt has been committed
against RTC or a court of equivalent
or higher rank, or against an officer
appointed by it, the charge may be
filed with such court.
Where such contempt has been
committed against a lower court,
the charge may be filed with the
RTC of the place in which the lower
court is sitting; but the proceedings
may also be instituted in such
lower court subject to appeal to
the RTC of such place (Sec. 5, Rule
70)
Forcible Entry
Metropolitan Trial Courts;
covered by Rule on Summary
Procedure
Where the property is located
Unlawful Detainer
Metropolitan Trial Courts;
covered by Rule on Summary
Procedure.
Where the property is located
Partition
RTC
(incapable of pecuniary
estimation)

1. Real property where the
property is located
2. Personal property the place
where the plaintiff or defendant
resides (Sec. 13, Rule 69)

Foreclure of REM
RTC (incapable of pecuniary
estimation) (Barangay San Roque
v. Heirs of Pastor, G.R. No.
138896, June 20, 2000)
Where the land or any part thereof
is located

RULE 62 INTERPLEADER
INTERPLEADER INTERVENTION
Special civil action, independent
and original
Not an original action but mere
ancillary and depends upon the
existence of a precious pending
action.
Commenced by the filing of a
complaint.
Commenced by a motion to
intervention filed in a pending case
attaching thereto the pleading- in-
intervention.
Filed by a person who has no
interest in the subject matter of
the action or if he has an interest,
the same is not disputed by the
claimants.
Filed by a person who has a legal
interest in any of the following:
a. The subject matter of the
litigation;
b. The success of either of the
parties; or
c. The success of both of the
parties; or
d. He may be adversely affected by
the disposition or distribution of
property in the judgment.

The defendants are brought into
the action only because they are
impleaded as such in the
complaint.
If a complaint- in- intervention is
filed, the defendants are already
parties to an existing suit not
because of the intervention but
because of the original suit.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

DECLARATORY RELIEF ORDINARY ACTION
No writ of execution Writ of execution is available
No breach or violation There is breach or violation of right
Additional ground for Motion to
Dismiss Rule 63 Sec 5 (Court may
refuse to exercise the power to
declare rights and to construe
instruments where a decision
would not terminate the
uncertainty or controversy or
where declaration is not necessary
and proper under the
circumstances.
Motion to dismiss (rules 16 and
17)

DECLARATORY JUDGMENT ORDINARY JUDGMENT
Declaratory judgment stands by
itself and no 29xecutor process
follows
Ordinary judgment involves
executor or coercive relief
Intended to determine any
question of construction or validity
prior to breach or violation
Intended to remedy or
compensate injuries already
suffered

RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTIONS OF THE COMELEC AND COA

Rule 64 Rule 65
Directed only to the judgments,
final orders or resolutions of the
COMELEC and COA;
Directed to any tribunal, board or
officers exercising judicial or quasi-
judicial functions;
Must be filed within 30 days from
notice of judgment or resolution
Must be filed within 60 days from
notice of judgment or resolution
If MR is denied, the If MR is denied, the
aggrieved party may file the
petition within the remaining
period, but which shall not be less
than 5 days.
Aggrieved party will have another
60 days within which to file the
petition counted from the notice
of denial.

Rule 64 for COMELEC and COA Review of judgment, final orders
or resolutions of other tribunals,
persons and officer
Petition is based on questions of
law
Petition is based on questions of
law
It is a mode of appeal but the
petition used is Rule 65
It is a mode of appeal
Involves review of judgments, final
orders or resolutions of COMELEC
and COA
Involves the review of the
judgment final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC or other
courts
Filed within 30 days from notice of
judgment, final order or resolution
sought to be reviewed
appealed from
Does not stay the execution unless
SC shall direct otherwise upon
such terms as it may deem just
Stays the judgment or order
appealed from
The COMELEC and COA shall be
public respondents who are
impleaded in the action
The appellant and the appellee are
the original parties to the action,
and the lower court or quasi-
judicial agency is not impleaded
The filing of MNT or MR, if allowed
under the procedural rules of the
Commission, shall interrupt period
fixed
Motion for reconsideration is not
required
The court is in the exercise of its
appellate jurisdiction and power of
review
The court is in the exercise of its
review
Petition for certiorari is to be filed
before the SC
Petition for certiorari is to be filed
only with the Court of Appeals

RULE 65 CERTIORARI, PROHIBITION, MANDAMUS

Judicial function Quasi-judicial function
power to determine what the law
is and what the legal rights of the
parties are, and then undertake to
determine these questions and
adjudicate upon the rights of the
parties
Action or discretion of public
administrative officers or bodies,
which are required to investigate
facts or ascertain the existence of
facts, hold hearings and draw
conclusions from them as basis for
their official action and to exercise
discretion of a judicial nature

Discretionary Act Ministerial Act
One where public functionaries, by
virtue of a power or right
conferred upon them by law, can
act officially under certain
circumstances , uncontrolled by
the judgment or conscience of
others.
One which an officer or tribunal
performs in a given state of facts,
in a prescribed manner, in
obedience to the mandate of a
legal authority, without regard to
or the exercise of his own
judgment upon the propriety or
impropriety of the act done

CERTIORARI PROHIBITION MANDAMUS
Certiorari is an
extraordinary writ
annulling or
modifying the
proceedings of a
tribunal, board or
officer exercising
judicial or quasi-
judicial functions
when such tribunal,
board or officer has
acted without or in
excess of its or his
jurisdiction, or with
grave abuse of
discretion amounting
to lack or excess of
jurisdiction, there
being no appeal or
any other plain,
speedy and adequate
remedy in the
ordinary course of
law (Sec. 1, Rule 65).
Prohibition is an
extraordinary writ
commanding a
board or person,
whether exercising
judicial, quasi-judicial
or ministerial
functions, to desist
from further
proceedings when
said proceedings are
without or in excess
of its jurisdiction, or
with abuse of its
discretion, there
being no appeal or
any other plain,
speedy and adequate
remedy in the
ordinary course of
law (Sec. 2, Rule 65).
Mandamus is an
extraordinary writ
commanding a tribunal,
corporation, board or
person, to do an act
required to be done:
(a) When he unlawfully
neglects the
which the law
specifically enjoins as a
duty, and there is no
other plain, speedy and
adequate remedy in
the ordinary course of
law; or
(b) When one
unlawfully excludes
another from the use
and enjoyment of a
right or office to which
the other is entitled
(Sec. 3, Rule 65).
Directed against a
person exercising to
judicial or quasi-
judicial functions
Directed against a
person exercising
judicial or quasi-
judicial functions, or
ministerial functions
Directed against a
person exercising
ministerial duties
To correct an act
performed by
respondent
To prevent the
commission of an act
To compel
Purpose is to annul or
modify the
proceedings
Purpose is to stop the
proceedings
Purpose is to compel
performance of the act
required and to collect
damages
Person or entity must
have acted without
or in excess of
grave abuse of
discretion
Person or entity must
have acted without
or in excess of
grave abuse of
discretion
Person must have
neglected a ministerial
duty or excluded
another from a right or
office
Extends to
discretionary acts
Extends to
discretionary and
ministerial acts
Only for ministerial acts
Only against a
respondent
exercising judicial or
quasi-judicial
functions
Against respondents who exercise judicial
and/or non-judicial functions

Rule 65 Rule 45
Findings of fact of Court of Appeals
are not conclusive or binding upon
SC
GR: Findings of fact of CA are
conclusive
Involves question of jurisdiction Involves question of law
Mode of appeal Mode of review
Directed against an interlocutory
order of a court or where there is
no appeal or any other plain,
speedy or adequate remedy
Involves the review of the
judgment final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC or other
courts
Filed not later than 60 days from
notice of judgment, order or
resolution appealed from
appealed from
Unless a writ of preliminary
injunction or temporary
restraining order is issued, it does
not stay the challenged proceeding
Stays the judgment or order
appealed from
The judge, court, quasi-judicial
agency, tribunal, corporation,
board, officer or person shall be
public respondents who are
impleaded in the action
The appellant and the appellee are
the original parties to the action,
and the lower court or quasi-
judicial agency is not impleaded
Motion for reconsideration or for
new trial is required.
If a motion for reconsideration or
new trial is filed, another 60 days
shall be given to the petitioner
(A.M. No. 02-03-SC)
Motion for reconsideration is not
required
Court exercises original jurisdiction The court is in the exercise of its
review.
Filed with the RTC, CA,
Sandiganbayan or COMELEC
Filed with the SC

INJUNCTION PROHIBITION
Directed only to the party litigants,
without in any manner interfering
with the court.
Directed to court itself,
commanding it to cease from the
exercise of a jurisdiction to which
it has no legal claim.
It does not involve jurisdiction of
the court
Based on the ground that the
court against whom the writ is
sought had acted without or in
It may be the main action itself or
just a provisional remedy
Always the main action

Mandamus Quo Warranto
Available when one is unlawfully
excluded from the use or
enjoyment of an office against a
person who is responsible for
excluding the petitioner
Available against the holder of an
office, who is the person claiming
the office as against petitioner, not
necessarily the one who excludes
the petitioner

Mandamus injunction
Special civil action Ordinary civil action
Directed against a tribunal,
corporation board, or officer
Directed against a litigant
Purpose is for tribunal,
corporation, board or officer to
perform ministerial and legal duty
For the defendant either to refrain
from an act or to perform not
necessarily a legal and ministerial
duty
To perform a positive legal duty
and not to undo what has been
done
To prevent an act to maintain the
status quo between the parties
Remedial Preventive
To set in motion and to compel
action (ACTIVE)
To restrain motion or to enforce
inaction (CONSERVATIVE)

Without jurisdiction Excess of
Jurisdiction
Grave abuse of
discretion
When the respondent
does not have the legal
power to determine the
case
Where the
respondent, being
clothed with the
power to determine
the case, oversteps
his authority as
determined by law
Where the
respondent acts in a
capricious,
whimsical, arbitrary
or despotic manner
in the exercise of his
judgment as to be
said to be equivalent
to lack of
jurisdiction.

The abuse of
discretion must be
so patent and gross
as to amount to an
evasion of positive
duty or to virtual
refusal to perform a
duty enjoined by
law, or to act at all in
contemplation of
law, as where the
power is exercised in
an arbitrary and
despotic manner by
reason of passion or
personal hostility.
CERTIORARI PROHIBITION MANDAMUS
That the petition is
directed against a
tribunal, board or
officer exercising
judicial or quasi-
judicial functions;
The petition is
directed against a
board or person
exercising judicial,
quasi-judicial, or
ministerial functions;
The plaintiff has a
clear legal right to the
act demanded;
Directed against an
entity or person
exercising ministerial
function
The tribunal, board or
officer has acted
--without, or
-- in excess of
jurisdiction or
--with abuse of
to lack or excess or
jurisdiction
The tribunal,
corporation, board or
person must have
acted
--without or
--in excess of
jurisdiction or
--with grave abuse of
to lack of jurisdiction;
The defendant
unlawfully neglects
the performance of
the duty enjoined by
law;
There is no appeal or
any plain, speedy and
adequate remedy in
law.
adequate remedy in
law.
adequate remedy in
law.
Accompanied by a
certified true copy of
the judgment or order
subject of the
petition, copies of all
pleadings and
documents relevant
and pertinent thereto,
and sworn
certification of non-
forum shopping under
Rule 46.
Accompanied by a
certified true copy of
the judgment or order
subject of the
petition, copies of all
pleadings and
documents relevant
and pertinent thereto,
and sworn
certification of non-
forum shopping under
Rule 46.

Purpose is to annul or
nullify a proceeding
Purpose is to have
respondent desist
from further
proceeding
Purpose is for
respondent to:
1. DO the act
required ;
2. TO pay
damages
This remedy is
CORRECTIVE- to
correct usurpation of
jurisdiction
This remedy is
PREVENTIVE and
negative- to restrain
or prevent usurpation
of jurisdiction
This remedy is
AFFIRMATIVE or
positive (if
performance of a duty
is ordered) or it is
negative (if a person is
ordered to desist from
excluding another
from a right or office
Covers
DISCRETIONARY ACTS
Covers
DISCRETIONARY and
MINISTERIAL acts
Covers MINISTERIAL
Acts

Prohibition Mandamus Injunction
Prohibition is an
extraordinary writ
commanding a
board or person,
whether exercising
judicial, quasi-judicial
or ministerial
functions, to desist
from further
proceedings when
said proceedings are
without or in excess
of its jurisdiction, or
with abuse of its
discretion, there
being no appeal or
any other plain,
speedy and adequate
remedy in the
ordinary course of law
(Sec. 2, Rule 65).
Mandamus is an
extraordinary writ
commanding a
board or person, to do
an act required to be
done:
(a) When he
unlawfully neglects
the performance of an
act which the law
specifically enjoins as
a duty, and there is no
other plain, speedy
and adequate remedy
in the ordinary course
of law; or
(b) When one
unlawfully excludes
another from the use
and enjoyment of a
right or office to
which the other is
entitled (Sec. 3, Rule
65).
Main action for
injunction seeks to
enjoin the defendant
from the commission
or continuance of a
specific act, or to
compel a particular
act in violation of the
rights of the applicant.
Preliminary injunction
is a provisional
remedy to preserve
the status quo and
prevent future wrongs
in order to preserve
and protect certain
interests or rights
during the pendency
of an action.
Special civil action Special civil action Ordinary civil action

To prevent an
encroachment,
excess, usurpation or
assumption of
jurisdiction;
To compel the
performance of a
ministerial and legal
duty;
For the defendant
either to refrain from
an act or to perform
not necessarily a legal
and ministerial duty;
May be directed
against entities
exercising judicial or
quasi-judicial, or
May be directed
against judicial and
non-judicial entities
Directed against a
party
Extends to
discretionary
functions
Extends only to
Does not necessarily
extend to ministerial,
discretionary or legal
functions;
Always the main
action
Always the main
action
May be the main
action or just a
provisional remedy
May be brought in the
Supreme Court, Court
of Appeals,
Sandiganbayan, or in
the Regional Trial
Court which has
territorial area where
respondent resides.
Supreme Court, Court
of Appeals,
Sandiganbayan, or in
the Regional Trial
Court which has
territorial area where
respondent resides.
Regional Trial Court
which has jurisdiction
over the territorial
area where
respondent resides.

RULE 66 QUO WARRANTO

Quo warranto Mandamus
Designed to try the right or title to
the office, if the right or title to
the office itself is disputed
Does not lie to try disputed titles
but only to enforce legal duties
Brought against the holder or the
office, not necessarily the one who
excludes the petitioner
Brought against the person who is
responsible for excluding the
petitioner from office

Appointive Office Elective Office
Issue: validity of the appointment Issue: eligibility of the respondent
Court will oust the person illegally
appointed and will order the
seating of the person who was
legally appointed and entitled to
the office
Occupant declared
ineligible/disloyal will be unseated
but petitioner will not be declared
the rightful occupant of the office
Quo Warranto Under Rule 66 Quo Warranto In Electoral
Proceedings
Governing law: RULES of COURT Governing law: ELECTION LAW
The petition must be filed within
one (1) year from the petitioners
ouster from the office
The petition for quo warranto
must be filed within ten (10) days
from proclamation of the
candidate
The petition is brought in the SC,
CA or RTC
The petition is brought in the
COMELEC, the RTC or the MTC as
the case may be
Prerogative writ by which the
government can call upon any
person to show by what title he
holds a public office or exercises a
public franchise.
To contest the right of an elected
public officer to hold public office.
Grounds: 1. Usurpation
2. forfeiture
3. illegal association
Grounds:
ineligibility or disqualification to
hold the office
Presupposes that the respondent
is already actually holding office
and action must be commenced
within 1 year from cause of ouster
or from the time the right of
petitioner to hold office arose.
Petition must be filed within 10
days from the proclamation of the
candidate.
The petitioner must be the
government or the person entitled
to the office and who would
assume the same if his action
succeeds.
May be filed by any voter even if
he is not entitled to the office.
Person adjudged entitled to the
office may bring a separate action
against the respondent to recover
damages.
Actual or compensatory damages
are recoverable in quo warranto
proceedings under the Omnibus
Election Code.

RULE 67 EXPROPRIATION
Section 2 Rule 67 RA 8974
Application Expropriation in
general
Only when National
Government
expropriates property
for national
government
infrastructure projects
For a writ of
possession to issue
Government is
required to make an
INITIAL DEPOSIT
Government is
required to make
IMMEDIATE PAYMENT
to the owner upon
filing of the complaint
Amount of
payment/Deposit
Equal to ASSESSED
VALUE of the property
for the purposes of
taxation
Equal to the market
value of the property
as stated in the tax
declaration or the
current relevant zonal
value of the BIR,
whichever is higher,
and the value of the
improvements and/or
structures using the
replacement cost
method

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE

Judicial Foreclosure Extrajudicial Foreclosure
Governed by Rule 68 Governed by Act 3135
There is only an equity of
redemption except when the
mortgagee is a bank
Right of redemption exists
Requires court intervention No court intervention necessary
Mortgagee need not be given a
special power of attorney.
Mortgagee is given a special
power of attorney in the mortgage
contract to foreclose the
mortgaged property in case of
default.
There could be a Deficiency
Judgment
No deficiency judgment because
there is no judicial proceeding but
recovery of deficiency is allowed
Recovery of deficiency can be
done by mere motion
Recovery of deficiency is through
an independent action

RULE 69 PARTITION
JUDGMENT CONTENTS OF
JUDGMENT
EFFECT OF
JUDGMENT
If actual PARTITION of
property is made:
The judgment shall
state definitely, by
metes and bounds
and adequate
description the
particular portion of
the estate assigned to
each party
To vest in each party
to the action in
severalty the portion
of the estate assigned
to him
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:
The judgment shall
state the fact of such
payment and the
assignment of the real
estate to the party
making the payment
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
If the property is sold
and the SALE is
confirmed by the
court:
The judgment shall
state the name of the
purchaser/s and a
definite description of
the parcels of real
estate sold to each
purchaser
To vest the real estate
in the purchaser/s
making the
payment/s. free from
the claims of any of
the parties to the
action.

Equity of Redemption Right of Redemption
Right of the defendant mortgagor
to extinguish the mortgage and
retain ownership of the property
by paying the debt within 90-120
days after the entry of judgment or
even after the foreclosure sale but
prior to confirmation
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
which the property is sold to
redeem the property within 1 year
from the registration of the
Sheriffs certificate of foreclosure
sale
Governed by Rule 68 Governed by Secs. 29-31, Rule 39

RULE 70 UNLAWFUL DETAINER AND FORCIBLE ENTRY

Forcible Entry (Detentacion) Unlawful Detainer (Desahucio)
Possession of the land by the
defendant is unlawful from the
beginning as he acquires
possession by force, intimidation,
strategy, threat or stealth.
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 with the plaintiff.
No previous demand for the
defendant to vacate the premises
is necessary.
Demand is jurisdictional if the
ground is non-payment of rentals
or failure to comply with the lease
contract.
The plaintiff must prove that he
was in prior physical possession of
the premises until he was deprived
thereof by the defendant.
The plaintiff need not have been in
prior physical possession.
The 1 year period is generally
counted from the date of actual
entry on the land.
Period is counted from the date of
last demand or last letter of
demand.

Accion
Interdictal
Accion
Publiciana
Accion
Reinvindicatoria
Summary action for
the recovery of
physical possession
where the disposses-
sion has not lasted for
more than 1 year.
A plenary action for
the recovery of the
real right of
possession when the
dispossession has
lasted for more than 1
year.
An action for the
recovery of
ownership, which
necessarily includes
the recovery of
possession.
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 or P50,000 in Metro Manila.
MTC has jurisdiction if the value of the
property does not exceed the above amounts.

RULE 71 CONTEMPT

Direct Contempt Indirect Contempt
Committed in the presence of or
so near a court.
Not committed in the presence of
the court.
Summary in nature Punished after being charged and
heard
If committed against:
1. RTC fine not exceeding P2,000
or imprisonment not exceeding 10
days or both.
2. MTC fine not exceeding P200
or imprisonment not exceeding 1
day, or both.

IF COMMITTED AGAINST:
1. RTC FINE NOT EXCEEDING
P30,000 OR IMPRISONMENT NOT
EXCEEDING 6 MONTHS OR BOTH
2. MTC fine not exceeding
P5,000 or imprisonment not
exceeding 1 month or both

Remedy:Certiorari or prohibition Remedy: Appeal (by notice of
appeal)
Contempt in facie curiae Constructive contempt

Criminal Contempt Civil Contempt
Punitive in nature Remedial in nature
Purpose is to preserve the courts
authority and to punish
disobedience of its orders
Purpose is to provide a remedy for
an injured suitor and to coerce
compliance with an order for the
preservation of the rights of
private persons
Intent is necessary Intent is not necessary
State is the real prosecutor Instituted by the aggrieved party
or his successor or someone who
has pecuniary interest in the right
to be protected
Proof required is proof beyond
reasonable doubt.
Proof required is more than mere
preponderance of evidence
If accused is acquitted, there can
be no appeal.
If judgment is for respondent,
there can be an appeal

SPECIAL PROCEEDINGS

Ordinary Action Special Proceeding Special Civil Action
To protect or enforce
a right or prevent or
redress a wrong
Involves the
establishment of a
right, status, or fact
Civil Action subject to
specific rules.
Involve 2 or more
parties plaintiff and
defendant
May involve only one
party only petitioner
Involves two or more
parties
Governed by ordinary
rules, supplemented
by special rules
Governed by special
rules, supplemented
by ordinary rules
Ordinary rules apply
primarily but subject
to specific rules
Initiated by a
complaint, and parties
respond through an
answer
Initiated by a petition
and parties respond
through an opposition
Some are initiated by
complaint, while
some are initiated by
petition
Based on a cause of
action
Not based on a cause
of action (except
Habeas Corpus)
Some special civil
action have no cause
of action
Heard by courts of
general jurisdiction
Heard by courts of limited jurisdiction
Issues or disputes are
stated in the
pleadings of the
parties
Issues are determined by law
Adversarial Not adversarial
Based on a cause of
action
Not based on a cause
of action (except
habeas Corpus)
Some special civil
action have no cause
of action

Special Proceeding Jurisdiction Venue
Rules 73-90 Settlement of Estate
of Deceased Persons
RTC- Gross value
of the estate
exceeds
400,000/
500,000 (Manila)
MTC- Gross
value of the
estate does not
exceed 400,000/
500,000
NOTE: MTC
jurisdiction is
exclusive of
interest,
damages of
whatever kind,
attorneys fees,
litigation
expenses and
costs

1. If
inhabitant
(resident) of
the
Philippines
(whether
citizen or
alien)- Court
of the
province/ city
where the
deceased
resides at the
time of death
2. Inhabitant
(non-
resident) of
foreign
country- court
of any
province/ city
wherein he
had estate

Rule 91 Escheat RTC
1. Ordinary
escheat
proceedings:
RTC

a. If resident-
place where
the deceased
last resided
b.If non-
resident-
place where
he had estate
2. Reversion
of land to the
State for
violation of
the
Consitution/
Laws- RTC
where the
land lies in
whole or in
part
3. Unclaimed
deposits (for
10 years)- RTC
of the city/
province
where the
bank is
located
NOTE: All
banks located
in 1 province
where the
court is
located may
be made
party-
defendant in 1
action.
Rule 98 Trustees RTC-Gross value
of the estate
exceeds
400,000/500,000
MTC- does not
exceed 400,000/
500,000
Where the
will was
allowed or
where the
property or
portion
thereof
affected by
the trust is
situated
Rule 101 Hospitalization of
insane person
RTC Where such
insane person
may be found
Rule 103 Change of name RTC Where
petitioner
resides for 3
years prior to
the filing of
the petition
Rule 108 Cancellation or
correction of entries
in the civil registry
RTC Where the
corresponding
civil registry is
located
Rule 107 Declaration of
absence and death
RTC Where the
absentee
resided
before his
disappearance
A.M. No.
00-8-10-SC
Corporate
rehabilitation
RTC Where
principal
office of the
corporation is
situated
Rule 104 Voluntary
dissolution of
corporation
SEC Where
principal
office of
corporation is
situated
RA 9048 Administrative
correction of
entry/change of first
name or nickname
Local civil
registry/Consul
general
Local civil
registry office
where the
record is
kept/where
the interested
party is
presently
residing or
domiciled
Rules 92-
97; A.M.
No. 03-02-
05-SC
Guardianship Family Court In
case of minors
RTC In cases
other than
minors

1. If resident-
place where
minor/
incompetent
resides
2. If non-
resident-
place where
minor/
incompetent
has property

A.M. No.
02-06-02-SC
Domestic Adoption Family Court Where the
adopter
resides
A.M. No.
02-6-02-SC
Rescission of
Adoption
Family Court Where the
adoptee
resides
A.M. No.
02-6-02-SC
Inter-country
Adoption
Family Court or
the Inter-
Country
Adoption Board
Where the
adopter
resides
Rule 99 Custody of Minors Family Court Where
petitioner
resides or
where the
minor may be
found
Rule 105 Judicial Approval of
Voluntary
Recognition of
Minor Natural
Children
child resides
Family
Code
Summary
Proceedings
petitioner
resides or
where the
child resides if
it involves
minors
R.A. 8369 Actions mentioned in the Family
Courts Act

1. Petitions on Foster care and
Temporary Custody
2. Declaration of Nullity of Marriage
3. Cases of Domestic Violence
Against Women and Children

Family Court Where
petitioner or
respondent
has been
residing for at
least 6
months prior
to the date of
filing
In case of
non-resident
respondent,
where he may
be found at
the election
of the
petitioner

Rule 102 Habeas Corpus SC, CA, RTC, MTC
in the province
or city in case
there is no RTC
judge; SB only in
aid of its
appellate
jurisdiction
Where the
aggrieved
party is
detained
(RTC)
A.M. No.
03-04-04-SC
Habeas Corpus in
Relation to Custody
of Minors
Family Court, CA,
SC
Where the
petitioner
resides or
where the
minor may be
found
A.M. No.
07-9-12-SC
Writ of Amparo RTC, SB, CA or SC
or any justice
thereof
Where the
threat, act or
omission was
committed or
any of its
elements
occurred
A.M. No.
08-1-16-SC
Writ of habeas data RTC, SB, CA or SC
or any justice
thereof
Where the
petitioner or
respondent
resides, or
that which
has
jurisdiction
over the place
where the
data or
information is
gathered,
collected or
stored, at the
option of the
petitioner
A.M. No.
09-6-8-SC
Writ of Kalikasan SC or any
stations of CA
Where the
unlawful act,
omission or
threat was
committed
A.M.
No.02-11-
10-SC
Declaration of nullity
of void
marriage/Annulment
of marriage
Family Court Where
petitioner or
respondent
has been
residing for at
least 6
months prior
to the date of
filing
In case of
non-resident
respondent,
where he may
be found at
the election
of the
petitioner
A.M. No.
02-11-11-SC
Legal Separation Family Court Where
petitioner or
respondent
has been
residing for at
least 6
months prior
to the date of
filing
In case of
non-resident
respondent,
where he may
be found at
the election
of the
petitioner

Special Proceeding Publication of Order of Hearing
Administrative change of first
name or nickname Once a week for 2 consecutive weeks
Corporate rehabilitation
Settlement of estate of
deceased persons
Once a week for 3 consecutive weeks
Judicial change of name
Judicial cancellation or
correction of entries in the civil
registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of
corporation
(Except shortening of corporate
term)
Declaration of absence Once a week for 3 consecutive weeks
Note: The declaration of absence
shall not take effect until six (6)
months after its publication in a
newspaper of general circulation.
Escheat Once a week for 6 consecutive weeks
Guardianship
None
Trustees
Custody of minors
Hospitalization of insane
person
Rescission of adoption
Administrative cancellation or
correction of entries
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan

1. Petitions on foster care
and temporary custody
2. Cases of domestic
violence against
women and children

RULE 73 VENUE AND PROCESSES
Regional Trial Court Metropolitan Trial Court
Gross value of the estate exceeds
500,000 (within Metro Manila) or
400,000 (outside Metro Manila)
Gross value of the estate does not
exceed 500,000/400,00

Resident Non-Resident
Court of the province/city where
the deceased resided at the time
of death, whether a citizen or alien
Court of the province/city wherein
he had the estate

RULE 74 SUMMARY SETTLEMENTS OF ESTATES

EXTRA JUDICIAL SETTLEMENT BY
AGREEMENT BETWEEN HEIRS
SUMMARY SETTLEMENT OF
ESTATE OF SMALL VALUE
No court intervention Requires summary adjudication
The value of the estate is
immaterial
Gross value of the estate must not
exceed P10,000
Allowed only in intestate
succession
Allowed in both testate and
intestate succession
There must be no outstanding
debts of the estate at the time of
the settlement
Available even if there are debts, it
is the court which will make
provision for its payment
Resorted at the instance and by
agreement of all heirs
May be instituted by any
interested party even a creditor of
the estate without the consent of
all the heirs
Amount of bond is equal to the
value of personal property
Amount of bond is to be
determined by the court
Bond is filed with the Register of
Deeds
Bond is filed with the court

REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE

A: CLAIM AGAINST THE BOND OR
REAL ESTATE
GROUNDS: (Section 4, Rule 74)
a. If there is undue deprivation of
lawful participation in the estate;
b. Existence of debts against the
estate.

Should be brought within 2 years
after settlement and distribution
of the estate
COMPEL THE SETTLEMENT OF
ESTATE IN COURTS
Should be brought within 2 years
after settlement and distribution
of the estate
ACTION FOR RESCISSION It must be availed of within 5 years
from the time the right of action
accrues. (Art. 1149, NCC)
Also applicable in judicial
proceedings
ACTION FOR RECONVEYANCE OF
REAL PROPERTY
GR: It is based on an implied or
constructive trust which prescribes
in 10 years from the date of
registration or date of issuance of
certificate of title or from actual
discovery of fraud if the
registration was made in bad faith.
XPN: If the plaintiff is in possession
of the property and did not pass to
innocent purchaser for value and
good faith, action is
imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998)
proceedings.
REOPENING BY INTERVENTION IN
SUMMARY SETTLEMENT
Upon motion of a person who
either:
a. Has a legal interest in the matter
in litigation;
b. Has such legal interest in the
success of either of the parties, or
an interest against both; or

c. Is so situated as to be adversely
affected by the distribution of
property in the custody of the
court or of an officer.

Note: May be availed of after
judgment but before its finality or
appeal by the aggrieved party.
PETITION FOR RELIEF (SUMMARY
SETTLEMENT)
On grounds of fraud, accident,
mistake, and excusable negligence
within 60 days after petitioner
learns of the judgment, final order
or other proceeding to be set
aside, and not more than 6 months
after such judgment or final order
was entered. (Rule 38.) Also
applicable in judicial proceedings.
ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL SETTLEMENT OR
JUDGMENT IN SUMMARY
SETTLEMENT
On the ground of fraud which
should be filed within 4 years from
the discovery of fraud.
ORDINARY ACTION BUT NOT
AGAINST THE BOND
If the order of closure has already
become final and executory, the
heir must file an independent civil
action of accion reinvidicatoria to
recover his deprived share.
Note: It must be brought within 10
years from the time the right of
action accrues. [Art. 1144(c)]
proceedings.
After the lapse of two years an
ordinary action may be instituted
against the distributees within the
statute of limitations but not
against the bond.

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILLS

Uncontested Contested
Notarial will The court may grant
allowance thereof on
the testimony of one
of the subscribing
witnesses only, if such
witness testifies that
the will was executed
as is required by law.
(Sec. 5, Rule 76)
All the subscribing
witnesses and the
notary public must
testify as to due
execution and
attestation of the will.
(Sec. 11, Rule 76)
Holographic will At least one witness
who knows the
handwriting and
signature of the
testator explicitly
declares that the will
and signature are in
the handwriting of the
testator. (Sec. 5, Rule
76)
The will shall be
allowed if at least
three witnesses who
know the handwriting
of the testator
explicitly declare that
the will and signature
are in the handwriting
of the testator. (Sec.
11, Rule 76)

ULE 77 LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN
AND TO WHOM ISSUED

EXECUTOR ADMINISTRATOR
Nominated by the testator and
appointed by the court
Appointed by the court in case the
testator did not appoint an
executor or if the executor refused
appointment (administrator with a
will annexed) or if the will was
disallowed or if a person did not
make a will (intestate succession)
Must present will to the court
within 20 days after he knows of
the death of the testator or after
he knew that he was appointed as
executor (if he obtained such
knowledge after death of the
testator), unless the will has
reached the court in any manner
No such duty.
Testator may provide that he may
serve without a bond (BUT the
court may direct him to give a
bond conditioned only to pay
debts)
Required unless exempted by law
Compensation may be provided
for by the testator in the will,
otherwise Sec 7, Rule 85 will be
allowed
Compensation is governed by Sec
7 Rule 85

RULE 80 SPECIAL ADMINISTRATOR

REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR
Order of Appointment may be the
subject of an appeal
Order of Appointment is
interlocutory and hence not
appealable
One of the obligations is to pay the
debts of the estate
Cannot pay the debts of the estate
Appointed when the deceased
died intestate or did not appoint
an executor in the will or the will
was disallowed
Appointed when there is delay in
granting letters testamentary or
administration
RULE 86 CLAIMS AGAINST THE ESTATE

Claims extinguished by death Actions which survive
Personal to either of the parties
and is extinguished by death
claim is not extinguished by death
but shall be prosecuted as a
money claim against the estate of
the deceased
Examples: legal separation,
annulment of marriage,
declaration of nullity of marriage
Examples: contractual money
claim

RULE 87- ACTIONS BY AND AGAINST EXECUTORS

Rule 87 sec 1 Rule 86 Sec 5
Actions that may be commenced
directly against the executor and
administrator
Actions that may be commenced
against the estate of the deceased

1. Recovery or real or
personal property ( or any
interest therein) from the
estate;

2. Enforcement of a lien
thereon

3. Action to recover
damages arising from tort
Money claims, debt incurred by
the deceased during his lifetime
arising from contract

Claims for funeral expenses or for
the last illness of the decedent
Judgment for money against
decedent

RULE 97- TERMINATION OF GUARDIANSHIP

Estate/intestate court Guardianship Court
Rules 73-90 Rules 92-97
Statute of non-claims No Statute of non-claims
Can pass upon the merits of the
claim
Cannot pass upon the merits of
the claim
Sale of Personal properties first
(Rule 89)
Sale of Personal or real properties
first ( Rule 95)
Bond DEFEATS the petition for
Authority to Sell
Bond DOES NOT DEFEAT the
Petition for Authority to Sell
Publication (rule 89) Personal Notice (Rule 95)
INDEFINITE effectivity of
Authority to sell
ONE (1) year effectivity of
Authority to Sell
May appoint a SPECIAL
administrator
NO such thing as a Special
Guardian

Remedy: Appeal from order
appointing guardian

Minor Incompetent Who are Not Minors
Who may file
1. Any relative; or
2. Other person on behalf of
a minor; or
3. The minor himself if 14
yrs of age or over; or
4. The secretary of Social
Welfare and
Development AND by
5. The Secretary of Health in
case of an insane minor
who needs to be
hospitalized (Sec 2 AM
03-02-05 SC)
1. Any relative;
2. Friend; or
3. Other person on behalf of
the resident incompetent
who has no parents or
lawful guardian; or
4. The director of health in
favor of an insane person
who should be
hospitalized or in favor of
an isolated leper; (sec 1)
5. Any one interested in the
estate of a non-resident
incompetent (sec 6)
Contents of Petition
1. The jurisdictional facts:
2. The name, age and
resident of the
prospective ward;
3. The ground rendering the
appointment necessary or
convenient
4. The death of the parents
of the minor or the
termination, deprivation
or suspension of their
parental authority
5. The remarriage of the
minors surviving parent
6. The names, ages and
residences of relative,
within the 4
th
civil degree
of minor, and of persons
having him in their care
and custody;
7. The probable value,
character and location of
the property of the
minor; and

1. The jurisdictional facts;
2. The incompetency
rendering the
appointment necessary or
convenient;
3. The names, ages, and
residences of the relatives
of the incompetent and of
the persons having him in
their care;
4. The probable value and
character of his estate
5. The name of the person
for whom letters of
guardianship are prayed
(sec 2 Rule 93)
8. The name, age and
residence of the person
for whom letters of
guardianship are prayed
(sec 7 Am 03-02-05-SC)
Grounds for Termination
1. The ward has come of
age; or
2. Has died
3. Competency of the ward
has been judicially
determined;
4. Guardianship is no longer
necessary
5. Death of guardian
6. Death of Ward

RULE 98 TRUSTEES

EXECUTOR/ ADMINISTRATOR TRUSTEE
Accounts are NOT under oath and
except for initial and final
submission of accounts, they shall
be filed only at such times as may
be required by the court
Accounts must be UNDER OATH
and filed ANNUALLY
Court that has jurisdiction may be
MTC or RTC
Court which has jurisdiction is the
RTC if appointed to carry into
effect provisions of a will; if
trustee dies, resigns or is removed
in a contractual trust, RTC has
jurisdiction in the appointment of
new trustee
May sell, encumber or mortgage
property if it is necessary for the
purpose of paying debts, expenses
of administration or legacies or for
the preservation of property or if
sale will be beneficial to heirs,
legatees or devisees
(Upon application to the court
with written notice to the heirs)
May sell or encumber property of
the estate held in trust if necessary
or expedient or upon order of the
court
Order of sale has NO TIME LIMIT Order of sale has NO TIME LIMIT
Approved by the court to settle
estate of the decedent
Appointed to carry into effect the
provisions of a will or written
instrument (contractual trust)

NOT EXEMPTED from filing a bond
even if such exemption is provided
in the will (ratio: bond is only
conditioned upon payment of
debts)
May be EXEMPTED from filing a
bond if provided in the will or if
beneficiaries requested such
exemption
Services of executors or
administrator is terminated UPON
PAYMENT OF DEBTS of the estate
and DISTRIBUTION of property to
the heirs
Trusteeship is terminated upon
TURNING OVER THE PROPERTY to
beneficiary after expiration of the
trust (period may be provided for
in the will or trust contract)
MUST PAY the debts of the estate NO OBLIGATION TO PAY the debts
of the beneficiaries or trustor

EXECUTOR/ADMINIST
RATOR
GUARDIAN TRUSTEE
Accounts are NOT
under oath and
EXCEPT for initial and
final submission of
accounts, they shall be
filed only at such times
as may be REQUIRED
by the court
Accounts must be
UNDER OATH and
filed ANNUALLY
Accounts must be
UNDER OATH and filed
ANNUALLY
Court that has
jurisdiction may be
MTC or RTC
Court which has
jurisdiction is RTC
(incompetent) or
FAMILY COURT
(minors)
Court which has
jurisdiction is RTC or
MTC if appointed to
carry into effect
provisions of a will; if
trustees dies, resigns or
removed in a
contractual trust, RTC
has jurisdiction in the
appointment of new
trustees.
May sell, encumber or
mortgage property if it
is necessary for the
purpose of paying
debts, expenses of
administration or
legacies, or for the
preservation of
property or if sale will
be beneficial to heirs,
legatees or devisees.
(upon APPLICATION to
the court with written
NOTICE to the heirs)
May sell or
encumber property
of ward if income of
estate is insufficient
to maintain ward
and his family and
educate ward or the
sale or
encumbrance is for
the benefit of ward
upon ORDER of the
court
May sell or encumber
property of estate held
in trust if necessary or
expedient upon ORDER
of the court
Order of Sale has NO
TIME LIMIT
Order of Sale is valid
is ONLY 1 YEAR after
grant of the same
Order of sale has NO
TIME LIMIT
Appointed by the
court to SETTLE estate
of decedent
Appointed as
GUARDIAN
Appointed to CARRY
INTO EFFECT the
provisions of a will or
written instrument
(contractual trust)
NOT EXEMPTED from
filing bond even if
such exemption is
provided in the will
(bond is only
conditioned upon
payment of debts)
Must ALWAYS FILE
A BOND
May be EXEMPTED
from filing bond if
provided in the will or if
beneficiaries requested
exemption
Services of executor or
administrator is
terminated UPON
PAYMENT OF DEBTS of
the estate and
distribution of
property to heirs
Guardianship is
terminated upon
attainment of age of
MAJORITY of the
minor or upon
gaining
COMPETENCY in the
case of an
incompetent (need
court order for the
latter)
Trusteeship is
terminated upon
TURNING OVER THE
PROPERTY to
beneficiary after
expiration of trust
(period may be
provided for in the will
or trust contract)
MUST PAY the debts
of the estate
MUST PAY the debts
of the ward
NO OBLIGATION to pay
debts of beneficiary or
trustor

DOMESTIC INTER-COUNTRY
Judicial Adoption Extrajudicial Adoption
Jurisdiction Family Court where
adopter resides
Inter-Country
Adoption Board
(Petition may also be
filed with Family Court
where adoptee
resides; FC to endorse
petition to ICAB)
Who May adopt 1) Any Filipino citizen
of legal age, in
possession of full civil
capacity and legal
rights, of good moral
character, has not
been convicted of any
crime involving moral
turpitude; who is
emotionally and
psychologically
capable of caring for
children, at least
sixteen (16) years
older than the
adoptee, and who is
in a position to
support and care for
A foreigner must meet
the following
requirements in order
to be qualified to
adopt in the
Philippines under the
Inter-Country
Adoption Act:
a) GR: at least twenty-
seven (27) years of
age and at least
sixteen (16) years
older than the child to
be adopted, at the
time

his children in keeping with the means of the
family. The requirement of a 16-year difference
between the age of the adopter and adoptee
may be waived when the adopter is the
biological parent of the adoptee or is the
spouse of the adoptees parent;
2) Any alien possessing the same qualifications
as above-stated for Filipino nationals: Provided,
That his country has diplomatic relations with
the Republic of the Philippines, that he has
been living in the Philippines for at least three
(3) continuous years prior to the filing of the
petition for adoption and maintains such
residence until the adoption decree is entered,
that he has been certified by his diplomatic or
consular office or any appropriate government
agency to have the legal capacity to adopt in
his country, and that his government allows the
adoptee to enter his country as his adopted
child. Provided, further, That the requirements
on residency and certification of the aliens
qualification to adopt in his country may be
waived for the following:
(i) A former Filipino citizen who seeks to adopt
a relative within the fourth (4th) degree of
consanguinity or affinity;
(ii) One who seeks to adopt the legitimate child
of his Filipino spouse;
(iii) One who is married to a Filipino citizen and
seeks to adopt jointly with his spouse a relative
within the fourth (4th) degree of consanguinity
or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his financial accountabilities.
Husband and wife shall jointly adopt, except in
the following cases:
(i) Iif one spouse seeks to adopt the legitimate
child of one spouse by the other spouse; or
(ii) If one spouse seeks to adopt his own
illegitimate child: Provided, however, That the
other spouse has signified his consent thereto;
or

of application;

XPN: if the adopter is
the parent by nature
of the child to be
adopted or the spouse
of such parent, he/she
is not required to
meet the above age
requirement;
b) If married, his/her
spouse must jointly
file for the adoption;
c) With capacity to act
and assume all rights
and responsibilities of
parental authority
under his national
laws, and has
undergone the
appropriate
counseling from an
accredited counselor
in his/her country;
d) Not convicted of a
crime involving moral
turpitude;
e) Eligible to adopt
under his/her national
law;
f) In a position to
provide the proper
care and support and
to give the necessary
moral values and
example to all his
children, including the
child to be adopted;
g) Agrees to uphold
the basic rights of the
child as embodied
under Philippine
family laws, the U.N.
(iii) If the spouses are legally separated from
each other.

In case husband and wife jointly adopt or one
spouse adopts the illegitimate child of the
other, joint parental authority shall be
exercised by the spouses.
Convention on the
Rights of the Child,
and to abide by the
rules and regulations
issued to implement
the provisions of this
Act;
h) Comes from a
country with whom
the Philippines has
diplomatic relations
and whose
government
maintains a similarly
authorized and
accredited agency and
that adoption is
allowed under his/her
national laws; and
i) Possesses all the
qualifications and
none of the
disqualifications
provided herein and
in other applicable
Philippine laws.

Supervised Trial
Custody
Within the Philippines
(6 month period
discretionary upon
the court to shorten
period or exempt
parties from trial
custody)
Within the country of
the adopter
(Mandatory; all
expenses borne by
adopter)
Supervised Trial
Custody
Within the Philippines
(6 month period
discretionary upon
the court to shorten
period or exempt
parties from trial
custody)
Within the country of
the adopter
(Mandatory; all
expenses borne by
adopter)

RULE 102 Habeas Corpus

Certiorari, prohibition and
mandamus
Habeas corpus
SPECIAL CIVIL ACTION (rule 65) SPECIAL PROCEEDING
It reaches the RECORD. Concerned
with errors committed by a court
It reaches the BODY but not the
record inquiry on the legality of
the detention
Failure of respondent to file
comment will not be punished by
CONTEMPT and will not even be
declared in default
Failure to file return constitutes
CONTEMPT (indirect)
COURT and PREVAILING PARTY are
named as respondents
Respondent is the DETAINER

PERIOD FOR APPEAL
Special Proceedings 30 days (Record on Appeal
required)
Habeas Corpus 48 hours from service of judgment
Writ of Amparo 5 working days from date of notice
of judgment
Writ of Habeas Data 5 working days from date of notice
of judgment
Writ of Kalikasan 15 days from notice of judgment
or denial of motion for
reconsideration

Habeas Corpus Amparo Habeas Data Kalikasan
Who may file a petition

1. Party for
whose relief it
is intended; or

2. Any person
on his behalf

In the following
order:
1. Any member
of the
immediate
family
2. Any
ascendant,
descendant, or
collateral
relative of the
aggrieved party
within the 4th
civil degree of
consanguinity
or affinity
3. Any
concerned
citizen,
organization,
association or
institution

1. Any
aggrieved party;
2. However, in
cases of
extralegal
killings and
enforced
disappearances:
a. Any member
of the
immediate
family
b. Any
ascendant,
descendant, or
collateral
relative of the
aggrieved party
within the 4th
civil degree of
consanguinity
or affinity

A natural or
juridical person,
entity
authorized by
law, peoples
organization,
non-
governmental
organization, or
any public
interest
group
accredited by or
registered with
any
government
agency.
Respondent
May or may not
be an officer.
Public official
or employee or
a private
individual or
entity.
Public official or
employee or a
private
individual or
entity engaged
in the
gathering,
collecting or
storing of data
or information
regarding the
person, family,
home and
correspondence
of the aggrieved
party.
Public official or
employee,
private
individual or
entity.
Enforceability of the writ
If granted by SC or
CA: enforceable
anywhere In the
Philippines;
If granted by RTC:
enforceable only
within the judicial
district
Enforceable anywhere
in the Philippines
regardless of who
issued the same
Enforceable anywhere
in the Philippines
Docket fees
Payment is
required
Note: Rule on
indigent
petitioner
applies.
Petitioner is
exempted from
payment
Payment is
required.
Note: Rule on
indigent
petitioner
applies.
Petitioner is
exempted from
payment
Service of writ
Served upon
the person to
whom it is
directed, and if
not found or
has not the
prisoner in his
custody, to the
other person
having or
exercising such
custody
Served upon
the respondent
personally; or
substituted
service
Served upon
the respondent
personally; or
substituted
service
Served upon the
respondent
personally; or
substituted
service.
Person who makes the return
Officer by
whom the
prisoner is
imprisoned or
the person in
whose custody
the prisoner is
found
Respondent Respondent Respondent

When to file a return
On the day
specified in the
writ
Within 5
working days
after service of
the writ, the
respondent
shall file a
verified written
return together
with supporting
affidavits.
The respondent
shall file a
verified written
return together
with supporting
affidavits within
5 working days
from service of
the writ, which
period may be
reasonably
extended by the
Court for
justifiable
reasons.
Within non-
extendible
period of 10
days after the
service of writ.
Return
If granted by
the SC or CA:
returnable
before the
court or any
member or
before RTC or
any judge
thereof;
If granted by
RTC: returnable
before such
court
If issued by
RTC: returnable
before such
court;
If issued by SB
or CA or any of
their justices:
returnable
before such
court or to any
RTC of the
place where
the threat, act
or omission
was committed
or any of its
elements
occurred;
If issued by SC
or any of its
justices:
returnable
before such
court, or
before SB,
If issued by
RTC: returnable
before such
court;
If issued by SB
or CA or any of
their justices:
returnable
before such
court or to any
RTC of the
place where
the petitioner
or respondent
resides or that
which has
jurisdiction
over the place
where the data
or information
is gathered,
collected or
stored;
If issued by SC
or any of its
If issued by SC,
returnable
before such
court or CA.
CA, or to any RTC of the place
where the threat, act or omission
was committed or any of its
elements occurred
justices: returnable before such
court, or before SB, CA, or to any
RTC of the place where the
petitioner or respondent resides or
that which has jurisdiction over the
place where the data or
information is gathered, collected
or stored
General denial
Not prohibited. Not allowed. Not allowed. Not allowed.
Liability of the person to whom the writ is directed if he refuses to
make a return
Forfeit to the
aggrieved party
the sum of
P1000, and may
also be
punished for
contempt.
Imprisonment
or fine for
committing
contempt.
Imprisonment
or fine for
committing
contempt.
Indirect
contempt.
Hearing
Date and time
of hearing is
specified in the
writ.
Summary
hearing shall be
conducted not
later than 7
days from the
date of issuance
of the writ.
Summary
hearing shall be
conducted not
later than 10
working days
from the date
of issuance of
the writ.
The hearing
including the
preliminary
conference shall
not extend
beyond sixty
(60) days and
shall be given
the same
priority as
petitions for the
writs of habeas
corpus, amparo
and habeas
data.

Period of appeal
Within 48 hours
from notice of
the judgment
or final order
appealed from.
5 working days
from the date
of notice of the
adverse
judgment.
5 working days
from the date
of notice of the
judgment or
final order.
Within fifteen
(15) days from
the date of
notice of the
adverse
judgment or
denial of
motion for
reconsideration.
Prohibited pleadings
None
1. Motion to dismiss;
2. Motion for
extension of time to
file opposition,
affidavit, position
paper and other
pleadings;
3. Dilatory motion
for postponement;
4. Motion for a bill of
particulars;
5. Counterclaim or
cross - claim;
6. Third - party
complaint;
7. Reply;
8. Motion to declare
respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory orders
or interim relief
orders; and
12. Petition for
certiorari,
mandamus or

1. Motion to dismiss;
2. Motion for extension
of time to file return;
3. Motion for
postponement;
4. Motion for a bill of
particulars;
5. Counterclaim or cross-
claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare
respondent in default.

prohibition against
any interlocutory
order.

INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
PETITIONER RESPONDENT

1. Temporary protection order;
2. Inspection order;
3. Production order;
4. Witness protection order. (Sec.
14)

1. Inspection order;
2. Production order. (Sec. 15)

HOW INITIATED THE COURT SHALL
Temporary Protection
Order
Upon motion or motu
proprio
Order the petitioner
or the aggrieved party
and any member of
the immediate family
be protected in a
government agency or
by an accredited
person or private
institution capable of
keeping and securing
their safety. If the
petitioner is an
organization,
association or
institution referred to
in Section 3(c) of this
Rule, the protection
may be extended to
the officers involved.
Inspection Order Upon verified motion
and after due hearing
Order any person in
possession or control
of a designated land
or other property, to
permit entry for the
purpose of inspecting,
measuring, surveying,
or photographing the
property or any
relevant object or
operation thereon.
Production Order Upon verified motion
and after due hearing
order any person in
possession, custody or
control of any
designated
documents, papers,
books, accounts,
letters, photographs,
objects or tangible
things, or objects in
digitized or electronic
form, which
constitute or contain
evidence relevant to
the petition or the
return, to produce
and permit their
inspection, copying or
photographing by or
on behalf of the
movant.
Witness Protection
Order
Upon Motion or Motu
Proprio
refer the witnesses to
the Department of
Justice for admission
to the Witness
Protection, Security
and Benefit Program,
pursuant to Republic
Act No. 6981. The
court, justice or judge
may also refer the
witnesses to other
government agencies,
or to accredited
persons or private
institutions capable of
keeping and securing
their safety.

RULE 107 ABSENTEES
ABSENTEE INCOMPETENT
One who disappears from his
domicile and his whereabouts
being unknown and without
having left an agent to administer
his property or the power of agent
has expired
Includes persons suffering the
penalty of civil interdiction or who
are hospitalized lepers, prodigals,
deaf and dumb who are unable to
read and write, those who are of
unsound mind, and persons who
are unable to take care of
themselves and manage their
property by reason of age, disease,
weak mind and other similar
causes
Order of hearing must be
published once a week for 3
consecutive weeks in a newspaper
of general circulation in the
province or city where absentee
resides and declaration of absence
will only take effect 6 months after
its publication in a newspaper of
general circulation designated by
court and in the Official Gazette.
Notice of petition for guardianship
for NONRESIDENT may be
published when court deems it
proper

Period of absence Consequence
0-2 years Petition for Appointment of
Representative (unless the
absentee left an agent to
administer his property)
2 years to 7 years
(5 years to 7 years in case the
absentee left an agent)
Petition for declaration of absence
and appointment of administrator
or trustee may be filed
Beyond 7 years
(Absence of years under
extraordinary circumstances)
Considered dead for all intents and
purposes EXCEPT for purposes of
succession (if disappeared under
extraordinary circumstances,
considered dead for all purposes,
even succession):
For purposes of Marriage: 4 years
continuous absence shall be
sufficient for present spouse to
remarry, 2 years only under
extraordinary circumstance.
CRIMINAL PROCEDURE

Criminal Law Criminal Procedure
Substantive Remedial
It declares what acts are
punishable
It provides how the act is to be
punished
It defines crimes, treats of their
nature and provides for their
punishment
It provides for the method by
which a person accused of a crime
is arrested, tried or punished.

Jurisdiction Over the Subject
Matter
Jurisdiction Over the Person of
the Accused
Refers to the authority of the court
to hear and determine a particular
criminal case
Requires that the person charged
with the offense must have been
brought in to its forum for trial,
forcibly by warrant of arrest or
upon his voluntary submission to
the court
Derived from the law. It can never
be acquired solely by consent of
the accused.
May be acquired by consent of the
accused (by voluntary appearance)
or by waiver of objections.
Objection that the court has no
jurisdiction over the subject
matter may be made at any stage
of the proceeding, and the right to
make such objection is never
waived.
If he fails to make his objection on
time, he will be deemed to have
waived it.

RULE 110 PROSECUTION OF OFFENSES

Criminal action Criminal prosecution
Instituted once a complaint has
been filed in the proper officer or
court as the case may be
Instituted once the information is
filed by prosecutor in court
Generally bars the running of the
prescriptive period of the offense
No such effect

Pardon Consent
Refers to past acts Refers to future acts
In order to absolve the accused
from liability, it must be extended
to both offenders
In order to absolve the accused
from liability, it is sufficient even if
granted only to the offending
spouse
Given after the commission of the
crime
Given before the commission of
the crime

complaint Information
Subscribed by the offended party,
any peace officer or other officer
charged with the enforcement of
the law violated
Subscribed by the fiscal
(indispensable requirement)
It may be filed either in the court
or in the prosecutors office
It is filed with the court
It must be made under oath It need not be under oath. The
fiscal who files it is already acting
under his oath of office
It usually refers to private crimes It usually refers to public crimes

Amendment Substitution
Involves the same attempted,
frustrated, necessarily includes or
necessarily included offense
Involves different offenses
May involve either formal or
substantial changes
Involves substantial change from
the original charge
Amendment before the plea is
entered can be effected without
leave of court.
It must be with leave of court as
the original information has to be
dismissed.
An amendment as to form will not
require another preliminary
investigation and retaking of plea
of the accused.
Substitution of the information
entails another preliminary
investigation and plea to the new
information.
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
would be withdrawn, the accused
could invoke double jeopardy.
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.

RULE 113 ARREST
Method of arrest Exception to the rule on giving
information
Arrest by officer by virtue of a warrant (Sec. 7)
The officer shall inform the person
to be arrested the cause of the
arrest and the fact that the
warrant has been issued for his
arrest.
Note: The officer need not have
the warrant in his possession at
the time of the arrest but must
show the same after the arrest, if
the person arrested so requires.

1. When the person to be arrested
flees;
2. When he forcibly resists before
the officer has an opportunity to
inform him; and
3. When the giving of such
information will imperil the arrest.

Arrest by officer without a warrant (Sec. 8)
The officer shall inform the person
to be arrested of his authority and
the cause of the arrest w/out a
warrant

1. when the person to be arrested
is engaged in the commission of an
offense or is pursued immediately
its commission;
2. when he has escaped, flees, or
forcibly resists before the officer
has an opportunity to so inform
him; and
3. when the giving of such

Arrest by a private person (Sec. 9)
The private person shall inform the
person to be arrested of the
intention to arrest him and the
cause of the arrest.
Note: Private person must deliver
the arrested person to the nearest
police station or jail, otherwise, he
may be held criminally liable for
illegal detention.

1. when the person to be arrested
is engaged in the commission of an
offense or is pursued immediately
its commission;
2. when he has escaped, flees, or
forcibly resists before the officer
has an opportunity to so inform
him; and
3. when the giving of such

Probable Cause as determined by
the Prosecutor
Probable Cause as determined by
the Judge
For the filing of an information in
court
For the issuance of warrant
Executive function Judicial function
Basis: reasonable ground to
believe that a crime has been
committed
Basis: the report and the
supporting documents submitted
by the fiscal during the preliminary
investigation and the supporting
affidavits that may be required to
be submitted.

RULE 114 BAIL

Person in custody of the law Jurisdiction over the person
Required before the court can act
upon the application for bail
Required for the adjudication of
reliefs other than bail sought by
the defendant (e.g. motion to
quash)
One can be under the custody of
the law but not yet subject to the
jurisdiction of the court over his
person, such as when a person
arrested by virtue of a warrant and
the accused files a motion to
quash the warrant of arrest before
arraignment
One can be subject to the
jurisdiction of the court over his
person and yet not be in the
custody of the law, such as when
the accused escapes custody after
he entered his plea and his trial
has already commenced.
Custody of the law is literally
custody over the body of the
accused
As long as the accused has been
arrested or has surrendered and
thereafter entered a plea, even if
he subsequently flees the court
still has jurisdiction over the
person of the accused and can
continue trial though without the
custody of the body of the accused

BAIL BOND RECOGNIZANCE
An obligation under seal given by
the accused with one or more
sureties, and made payable to the
proper officer with the condition
to be void upon performance by
the accused of such acts as he may
legally be required to perform
An obligation of record entered
into before some court or
magistrate duly authorized to take
it with the condition to do some
particular act, the most usual
condition in criminal cases being
the appearance of the accused for
trial.

ON REDUCED BAIL OR ON HIS
OWN RECOGNIZANCE
1. The offense charged is a
violation of an ordinance, light
felony, or a criminal offense the
imposable penalty thereof does
not exceed 6 months of
imprisonment and/ or fine of
P2,000 under RA 6036.
2. Where a person has been in
custody for a period equal to or
more than the minimum of the
imposable principal penalty
without application of the
Indeterminate Sentence Law or
any modifying circumstances, in
which case the court, in its
discretion may allow his release on
his own recognizance.
3. Where the accused has applied
for probation pending resolution
of the case but no bail was filed or
the accused is incapable of filing
one.
4. In case of youthful offender held
for physical and mental
examination, trial or appeal if he is
unable to furnish bail and under
circumstances envisage in PD 603
as amended.
Espiritu v. Jovellanos AM No MTJ
97-1139 (1997)
UNDER THE REVISED RULES ON
SUMMARY PROCEDURE
GR: NO bail
XPNs:
1.When a warrant of arrest is
issued for failure to appear when
required by the court;
2.When the accused:
a.is a recidivist;
b.is a fugitive from justice;
c.is charged with physical injuries;
d.does not reside in the place
where the violation of the law or
the ordinance is committed; or he
has no known residence.

ORDER OF FORFEITURE ORDER OF CANCELLATION
Conditional and interlocutory. It is
not appealable
Not independent of the order of
forfeiture. It is a judgment
ultimately determining the liability
of the surety thereunder and
therefore final. Execution may
issue at once.

RULE 115 RIGHTS OF THE ACCUSED

Ordinary Witness Accused as Witness
May be compelled to take the
witness stand and claim the right
against self-incrimination as each
question requiring an incriminating
answer is asked
May altogether refuse to take the
witness stand and refuse to
answer any and all questions.
Note: If the accused testifies in his
own behalf, then he may be cross-
examined as any other witness. He
may not, on cross examination,
refuse to answer any question on
the ground that the answer will
give or the evidence that he will
produce would have tendency to
him. incriminate him for the crime that
he was charged.
But he may refuse to answer any
question incriminating him for an
offense distinct from that which he
is charged.
May be cross-examined as to any
matter stated in the direct
examination or connected
therewith.
May be cross examined but only
on matters covered by his direct
examination.
Note: If the accused refuses to be
cross-examined, the testimony of
the accused who testifies on his
own behalf will not be given
weight and will have no probative
value because the prosecution will
not be able to test its credibility.

Use Immunity Transactional Immunity
Witness compelled testimony and
the fruits thereof cannot be used
in subsequent prosecution of a
crime against him.
Witness immune from prosecution
of a crime to which his compelled
testimony relates.
Witness can still be prosecuted but
the compelled testimony cannot
be used against him
Witness cannot be prosecuted at
all

RULE 116 ARRAIGNMENT AND PLEA

How Jurisdiction is acquired
Civil cases Criminal cases
Subject Matter Law Law Penalty
Person Summons Arrest or Surrender
Issue Answer Plea

Purpose of the bill of particulars
Criminal cases Civil Cases
Enter a valid plea To file a responsive pleading
Only the accused and not the
offended party, can file a bill of
particulars as he will enter his plea
Either of the parties that will file a
responsive pleading can ask for a
bill of particulars
To prepare for trial Not necessarily to prepare for trial
as the respondent can opt for the
modes of discovery

RULE 117 MOTION TO DISMISS

MOTION TO QUASH DEMURRER TO EVIDENCE
Filed before the defendant enters
his plea
Filed after the prosecution has
rested its case
Does not go into the merits of the
case but is anchored on matters
not directly related to the question
of guilt or innocence of the
accused
Based upon the inadequacy of the
evidence adduced by the
prosecution in support of the
accusation
Governed by Rule 117 of the Rules
of Criminal Procedure
Governed by Rule 119 of the Rules
of Criminal Procedure

Pardon Amnesty
Granted by the Chief Executive. Proclaimed by the President, but it
has to be with the concurrence of
Congress.
It is a private act which must be
pleaded and proved by the person
pardoned because the courts take
no notice of it.
It is a public act which the courts
have to take judicial notice of.
Granted to one after conviction. Granted to classes of persons or
communities who may be guilty of
political offenses, generally before
or after the institution of the
criminal prosecution and
sometimes after conviction.
Relieves the offender from the
consequences of the offense of
which he is convicted. It only
serves as a relief from the
punishment but it does not restore
the political rights of the person,
unless it is expressly provided for
in the pardon.
Abolishes and puts into oblivion
the offense itself. It is as though
the offense was never committed.

Dismissal Acquittal
Does not decide on the merits,
does not determine the
defendants guilt or innocence
Always based on the merits.
Defendant is acquitted because
guilt was not proven beyond
reasonable doubt
Double jeopardy will not always
attach
Double jeopardy always attaches

RULE 118 PRE TRIAL

Pre-trial in Civil Cases Pre-trial in Criminal Cases
The presence of the defendant is
required unless he is duly
represented at the pre-trial
conference by his counsel with the
requisite authority to enter into a
compromise agreement. Failing in
either of which, the case shall
proceed as if the defendant has
been declared in default.
The accused is merely required to
sign the written agreement arrived
at in the pre-trial conference, if he
is in conformity therewith. Unless
otherwise required by the court,
his presence therefore is not
indispensable.
Note: This is aside from the
consideration that the accused
may waive his presence at all
stages of the criminal action,
except at the arraignment,
promulgation of judgment or
when required to appear for
identification.
The presence of the plaintiff is
required unless excused therefrom
for valid cause or if he is
represented therein by a person
fully authorized in writing to
perform the acts specified in Sec.
4, Rule 18.
Absent such justification, the case
may be dismissed with or without
prejudice.
The presence of the private
offended party is not required.
Instead, he is priorly required to
appear at the arraignment of the
accused for purpose of plea
bargaining, determination of civil
liability and other matters
requiring his presence.
Should he fail to appear therein
and the accused offers to plead
guilty to a lesser offense
necessarily included in the offense
charged, the accused may be
allowed to do so with the
conformity of the trial prosecutor
alone.
A pre-trial brief is required with
the particulars and the sanctions
provided by Sec. 6, Rule 18.
The filing of a pre-trial brief is not
required. It only requires
attendance at a pre-trial
conference to consider the
matters stated in Sec. 1, Rule 118.
(1997 Bar Question)
RULE 119 TRIAL

Conditional examination of witness
Defense witness Prosecution Witness
Requirement 1. Witness is
sick
2. Witness
reside 100km
from the
place of trial
1. Witness is
sick
Who examines 1. Judge of the
proper court
2. Member of
the bar
3. Inferior court
1. Before the
court where
the case is
pending
Absence Notwithstanding the
absence of the
prosecutor, the
examination shall
proceed
Notwithstanding the
absence of the
accused, the
examination shall
proceed

Witness Protection Program Rules of Court
The offense in which the
testimony is to be used is limited
only to grave felony.
It has no qualifications. It applies
to all felonies.
The immunity is granted by DOJ. The immunity is granted by court.
The witness is automatically
entitled to certain rights and
benefits.
The witness so discharged must
still apply for the enjoyment of
said rights and benefits in the DOJ.
The witness need not be charged
elsewhere.
He is charged in court as one of
the accused as stated in the
information.
No information may thus be filed
against the witness.
The charges against him shall be
dropped and the same operates as
an acquittal.

What is the rule on demurrer of evidence?
A: How made

1. Court on its own initiative; or
2. Upon filing of the accused for demurrer of evidence:
a. With leave of court; or
b. Without leave of court

When made
After the prosecution rests its case
Ground
Insufficiency of evidence
Effect
The court may dismiss the case (Sec. 23)

Demurrer With Leave of Court Demurrer Without Leave of Court
If leave of court is denied, the
accused may proceed with
presenting his evidence
If demurrer is denied, it is
tantamount to a waiver of the
accuseds right to present
evidence and as a consequence
the case will be submitted for
judgment on the basis of the
evidence for the prosecution.
If leave of court is granted, the
accused may file the demurrer to
evidence within ten (10) days. The
prosecution may however, oppose
the demurrer to evidence within a
non-extendible period of ten (10)
days from the receipt of the
demurrer.
If demurrer is granted, the case
will be dismissed, and will result to
an acquittal of the accused
(Sec.23).

RULE 120 JUDGMENT

Modification of judgment New trial
No new hearings or proceedings of
any kind of change in the record or
evidence. A simple modification is
made on the basis of what is on
record
Irregularities are expunged from
the record and/ or new evidence is
introduced.

Sentence imposed Period of probation
Not more than one (1) year Not more than two (2) years
More than one (1) year Not more than six (6) years
Fine only, but offender serves
subsidiary imprisonment
At least equal to the number of
days of subsidiary imprisonment
but not more than twice such
period

RULE 121 NEW TRIAL OR RECONSIDERATION

New trial Reconsideration
Rehearing of a case already decided
but before the judgment of
conviction 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
May be filed in order to correct
errors of law or fact in the
judgment. It does not require any
further proceeding.
Grounds:
1. Errors of law or irregularities
prejudicial to the substantial rights
of the accused have been
committed during the trial.

2. New and material evidence
has been discovered which the
accused could not, with
reasonable diligence, have
discovered and produced at the
trial and which if introduced and
admitted would probably change
the judgment (Sec. 2).

3.Other grounds which the court
may consider in the exercise of
its jurisdiction :
a. Negligence or incompetency of
counsel or mistake which is so
gross amounting to deprivation
of the substantial rights of the
accused and due process;

(Aguilar v. Court of Appeals GR
No. 114282, November 28, 1995)
b. Recantation of a witness
where there is no evidence
sustaining the judgment of
conviction other than the
testimony of such witness; (Tan
Ang Bun v. Court of Appeals GR
No
Grounds:
1. Errors of law; or
2. Errors of fact (Sec. 3)
Note: The principle underlying
this rule is to afford the trial court
the opportunity to correct its own
mistakes and to avoid
unnecessary appeals from being
taken. The grant by the court of
reconsideration should require no
further proceedings, such as
taking of additional proof..

c. Improvident plea of guilty
which may be withdrawn;
d. Disqualification of attorney de
officio to represent accused in
trial.

Recantation Affidavit of Desistance
A witness who previously gave a
testimony subsequently declares
that his statements are untrue
publicly (People v. Ballabare, G.R.
No. 108871, Nov. 19, 1996).
The complainant states that he did
not really intend to institute the
case and he is no longer interested
in testifying or prosecuting.
GR: It is not a ground for granting
a new trial and are hardly given
weight
XPN: When there is no evidence
sustaining the judgment of
conviction other than the
testimony of the recanting witness
(Tan Ang Bun v. CA, G.R. No. L-
47747, Feb. 15, 1990).
It is not by itself a ground for
dismissal of the action (People v.
Ramirez, G.R. Nos. 150079-80,
June 10, 2004).
It is merely an additional ground to
buttress the defense and not a
sole consideration for acquittal
(People v. Ballabare, G.R. No.
108871, Nov. 19, 1996).

It is a ground for dismissing the
case ONLY if the prosecution can
no longer prove the guilt of the
accused beyond reasonable doubt
without the testimony of the
offended party

Motion for
Reconsideration
New Trial Re-opening of the
Case
Filed after judgment is
rendered but before
the finality thereof
Filed after judgment is
rendered but before
the finality thereof.
Made by the court
before the judgment
is rendered in the
exercise of sound
discretion.
Made by the court on
motion of the accused
or at its own instance
but with the consent
of the accused
Made by the court on
motion of the accused
or at its own instance
but with the consent
of the accused.
Does not require the
consent of the
accused; may be at
the instance of either
party who can
thereafter present
additional evidence.
PURPOSE: To ask the
court to reconsider its
findings of law so as
to conform to the law
applicable in the case
PURPOSE: To permit
the reception of new
evidence and extend
the proceedings
PURPOSE: To permit
the reception of new
evidence and extend
the proceedings

RULE 122 APPEAL

Final Judgment Final Order
A judgment which would become
final if no appeal is taken
Disposes of the whole subject
matter or terminates a particular
issue leaving nothing to be done
but to enforce by execution what
has been terminated.

Appeal of a Judgment Appeal of an Order
Must be perfected within 15 days
from promulgation
Must be perfected within 15 days
from notice of the final order

From Decision of Appeal to How
In cases decided by
MTC, MetroTC, MCTC
RTC ORDINARY APPEAL
1. By NOTICE
OF APPEAL
filed with the
court that
rendered the
decision and;
2. BY SERVICE
of COPY to
adverse party
RTC, when there are
questions of both fact
and law
CA PETITION FOR
REVIEW (RULE 42)
In cases decided by
RTC in the appellate
jurisdiction

ORDINARY APPEAL
1. By NOTICE of
APPEAL filed
with the
court that
rendered the
decision and;
2. BY SERVICE
of COPY to
adverse party
RTC, when the death
penalty is imposed
CA AUTOMATICE
REVIEW:

NO notice required

RTC, in criminal cases
involving offense for
which the penalty
imposed is reclusion
perpetua or life
imprisonment and
those other offense,
which although not so
punished, arose out of
the same occurrence
or which may have
been committed by
the accused on the
same occasion, as that
giving rise to more
serious offense
CA ORDINARY APPEAL:
1. BY NOTICE of
appeal filed
with the
court that
rendered the
decision and;
2. By SERVICE
OF COPY to
adverse party
RTC, when ONLY
questions of LAW are
involved
SC PETITION for REVIEW
on CERTIORARI
In cases decided by CA SC PETITION for REVIEW
on CERTIORARI
When the death
penalty is imposed in
a lower court and the
CA affirmed
SC AUTOMATIC REVIEW:
No notice required.

From decision of Appeal to How taken
MTC , RTC ORDINARY APPEAL
1. File a notice of
appeal with the MTC
(the court that
rendered the
decision);
2. Serve a copy of the
notice to the adverse
party.

RTC
1. Exercising its
original jurisdiction
for offenses with
imposable penalties
less than reclusion
perpetua or life
imprisonment

CA
1. File a notice of
appeal with the RTC;
2. Serve a copy of the
notice to the adverse
party.

File a petition for review under
Rule 42.

2. Exercising its appellate
jurisdiction

1. File a notice of appeal with the
RTC;
2. Serve a copy of the notice to the
adverse party.

3. Where the imposable penalty is:
a. life imprisonment or reclusion
perpetua; or
b. a lesser penalty for offenses
committed on the same occasion
or which arose from the same
occurrence that gave rise to the
offense punishable reclusion
perpetua or life imprisonment

Automatic review to CA (Sec. 10)
4. Where the imposable penalty is
death

1. All other appeals
except:
a. Decision of RTC
where the imposable
penalty is life
imprisonment or
reclusion perpetuaor a
lesser penalty for
offenses committed
on the same occasion
or which arose from
the same occurrence
that gave rise to the
offense punishable by
reclusion perpetua or
life imprisonment;
and
b. Decisions of RTC
imposing the penalty
of death.

SC Petition for review on
certiorari via Rule 45
Automatic review (Sec. 13, Rule
124)

2. CA
a. When it finds that death penalty
should be imposed

Notice of appeal (Sec. 13, Rule
124)

b. Where it imposes reclusion
perpetua, life imprisonment or a
lesser penalty

File a notice of appeal
3. Sandiganbayan
a. Exercising its appellate
jurisdiction for offenses where the
imposable penalty is reclusion
perpetua or life imprisonment

File a notice of appeal (Sec. 13,
Rule 124; Sec. 5, PD 1606 as
amended by R.A. 8249)
b. Exercising its original jurisdiction
for offenses where the imposable
penalty is reclusion perpetua and
life imprisonment

Automatic review (Sec. 13, Rule
124; Sec. 5, PD 1606 as amended
by R.A. 8249)

c. Exercising its original or
appellate jurisdiction where it
finds that the penalty to be
imposed is death

Petition for review on certiorari via
Rule 45

d. Cases not falling in paragraphs a
and b above

RULE 126 SEARCH AND SEIZURE

Warrant of Arrest Search Warrant
Order directed to the peace officer
to execute the warrant by taking
the person stated therein into
custody so that he may be bound
to answer for the commission of
the offense.
Order in writing in the name of the
Republic of the Philippines signed
by the judge and directed to the
peace officer to search personal
property described therein and to
bring it to court.
Does not become stale. Validity is for 10 days only.
May be served on any day and at
any time of day or night.
To be served only in daytime
unless the affidavit alleges that the
property is on the person or in the
place to be searched.
Searching examination of
witnesses is not necessary.
Must personally conduct an
examination of the complainant
and the witnesses.
Judge is merely called upon to
examine and evaluate the report
of the prosecutor and the evidence
Examination must be probing. Not
enough to merely adopt the
questions and answers asked by a
previous investigator

EVIDENCE
Civil Cases Criminal Cases
QUANTUM OF
EVIDENCE
The party having the
burden of proof must
prove his claim by a
preponderance of
evidence
The guilt of the
accused has to be
proven beyond
reasonable doubt
OFFER OF
COMPROMISE
An offer of compromise is
not an admission of any
liability, and is not
admissible in evidence
against the offeror
In criminal cases
EXCEPT those
involving quasi-
offenses or those
allowed by law to
be compromised,

An offer of
compromise by the
accused may be
received in
evidence as an
implied admission
of guilt
GENERAL DENIAL General denial is ALLOWED General denial is
NOT ALLOWED
WITHDRAWAL OF
PLEA/ADMISSION
Judicial admission
withdrawn BECOMES
extrajudicial admission
Withdrawn is plea is
INADMISSIBLE
EQUIPONDERANCE
OF EVIDENCE
Party who loses is the one
who has the burden of
proof
Accused is
acquitted
PRESENCE OF
CIRCUMSTANTIAL
EVIDENCE
One suffices More than one (1) is
required
PRIVILEGED
COMMUNICATION
(DOCTOR-PATIENT)
applicable Not applicable
COMPULSION AS A
WITNESS
A party or defendant MAY
be COMPELLED to be a
witness
The accused
CANNOT be
compelled to be a
witness
CROSS
EXAMINATION IN
SUMMARY
PROCEDURE
NOT applicable APPLICABLE
PRESUMPTION OF
INNOCENCE
Generally, there exists NO
presumption in favor of
either party, except in
cases specifically provided
for by law
The accused enjoys
the constitutional
presumption of
innocence

Proof Evidence
The effect when the requisite
quantum of evidence of a
particular fact has been duly
admitted and given weight
The mode and manner of proving
competent facts in judicial
proceedings
The probative effect of evidence The means of proof

Factum Probandum Factum Probans
The ultimate fact sought to be
established
The intermediate facts
Proposition to be established Materials which establish the
proposition
Hypothetical Existent

Admissibility Probative Value
Question of whether certain pieces
of evidence are to be considered
at all.
Question of whether the admitted
evidence proves an issue.

admissibility Weight
Determined by its relevance and
competence
Pertains to its tendency to
convince and persuade
Logic and law Guidelines provided in Rule 133
and decisional rules of Supreme
Court

MULTIPLE Evidence that is plainly relevant
and competent for two or more
purposes 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 of admissibility for other
purposes.
CONDITIONAL Evidence appears to be immaterial
is admitted by the court subject to
the condition that its connection
with another fact subsequent to
be proved will be established.
Otherwise, such fact already
received will be stricken off the
record at the initiative of the
adverse party.
CURATIVE Evidence that is otherwise
improper is admitted (despite
objection from the other party) to
contradict improper evidence
presented or introduced by the
other party, to cure, contradict or
neutralize such improper evidence.

DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE
Establishes the existence of a fact
in issue without the aid of any
inference or presumption
Does not prove the existence of a
fact in issue directly, but merely
provides for logical inference that
such fact really exists
The witness testifies directly of his
own knowledge as to the main
facts to be proved
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

COMPETENT CREDIBLE
Evidence is not excluded by the
rules
Refers to worthiness of belief
(believability)
Note: That quality which renders a
witness worthy of belief (Blacks,
5th Ed., 330)

BURDEN OF PROOF BURDEN OF EVIDENCE
Definition
It is the duty of a party to present
evidence on the facts in issue
necessary to establish his claim or
defense by the amount of
evidence required by law (Sec. 1,
Rule 131)
It is the duty of a party to provide
evidence at any stage of the trial
until he has established a prima
facie case, or the like duty of the
adverse party to meet and
overthrow that prima facie case
thus established. In both civil and
criminal cases, the burden of
evidence lies on the party who
asserts an affirmative allegation.
(Regalado, Vol. II, p. 817, 2008 ed.)
Whether it shifts throughout the proceedings
Does not shift as it remains
throughout the entire case exactly
where the pleadings originally
placed it
Shifts to the other party when one
party has produced sufficient
evidence to be entitled to a ruling
in his favor
What determines it
Generally determined by the
pleadings filed by the party; and
whoever asserts the affirmative of
the issue has the burden of proof
developments at the trial, or by
the provisions of the substantive
law or procedural rules which may
relieve the party from presenting
evidence on the fact alleged
Effect of a legal presumption
It does not shift the burden of
proof. However, the one who has
the burden of proof is relieved
from the time being, from
introducing evidence in support of
his averment because the
presumption stands in the place of
evidence. (Francisco, p. 356, 1992
ed.)
It creates a prima facie case and
thereby sustains the said burden
of evidence on the point which it
covers, shifting it to the other
party. It relieves those favored
thereby of the burden of proving
the fact presumed.

CIVIL CASE
Plaintiff Defendant
To show the truth of his
allegations if the defendant raises
a negative defense.
If he raises an affirmative defense.
CRIMINAL CASE
Prosecution Accused
Because of presumption of
innocence
When he admits the offense/crime
charged but raises justifying,
exempting circumstances, or
absolutory causes.

CIVIL CASE
Plaintiff Defendant
Has to prove his affirmative
allegations in the complaint
Has to prove the affirmative
allegations in his counterclaim and
his affirmative defenses
CRIMINAL CASE
Prosecution Accused
Has to prove its affirmative
allegations in the Information
regarding the elements of the
crime as well as the attendant
circumstances
Has to prove his affirmative
allegations regarding the existence
of justifying, exempting,
absolutory, or mitigating
circumstances

PRESUMPTION OF LAW
(Praesumptiones Juris)
PRESUMPTION OF FACT
(Praesumptiones Hominis)
It is a deduction which the law
expressly directs to be made from
particular facts.
It is a deduction which reason
draws from the facts proved
without an express direction from
law to that effect.
A certain inference must be made
whenever the facts appear which
furnish the basis of the inference
Discretion is vested in the tribunal
as to drawing the inference
Reduced to fixed rules and form a
part of the system of jurisprudence
Derived wholly and directly from
the circumstances of the particular
case by means of the common
Need not be pleaded or proved if
the facts on which they are based
are duly averred and established
Has to be pleaded and proved
POSITIVE TESTIMONY NEGATIVE TESTIMONY

1. Affirms that a fact did or did not
occur.
2.
3. Entitled to greater weight since
the witness represents his
personal knowledge of the
presence or absence of a fact.
4.
5. When a witness declares of his
own knowledge that a fact did not
take place, it is an affirmation of a
positive testimony.

1. When a witness states that he
did not see or know the
occurrence of a fact.
2.
3. There is a total disclaimer of
personal knowledge, hence
without any representation or
disavowal that the fact in question
could or could not have existed or
happened.

DURING TRIAL AFTER TRIAL BUT BEFORE
JUDGMENT OR ON APPEAL
The court on its own initiative, or
on request of a party, may
announce its intention to take
judicial notice of any matter and
allow the parties to be heard
thereon (Sec. 3).
The proper court, on its own
initiative or on request of a party,
may take judicial notice of any
matter and allow the parties to be
heard thereon if such matter is
decisive of a material issue in the
case.

JUDICIAL ADMISSIONS EXTRAJUDICIAL ADMISSIONS
Those made in the course of the
proceeding in the same case
Those made out of court or in a
judicial proceeding other than the
one under consideration
Do not require proof and may be
contradicted only by showing that
it was made through palpable
mistake or that no such admission
was made.
Regarded as evidence and must be
offered as such, otherwise the
court will not consider it in
deciding the case.
Judicial admissions need not be
offered in evidence since it is not
evidence. It is superior to evidence
and shall be considered by the
court as established.
Requires formal offer for it to be
considered
Conclusive upon the admitter Rebuttable
Admissible even if self-serving Not admissible if self-serving
Subject to cross-examination Not subject to cross-examination
RULE 129 JUDICIAL NOTICE

Mandatory Judicial Notice Discretionary Judicial Notice
Court is compelled to take judicial
notice
Court is NOT compelled to take
judicial notice
Takes place at courts own
initiative
May be at courts own initiative, or
on request of a party
No hearing Needs hearing and presentation of
evidence

Admissions in civil cases Admissions in Criminal cases
Admissions in a pleading which
had been withdrawn or
superseded by an amended
pleading are considered extra-
judicial admission
Admissions during arraignment
may be withdrawn at any time
before the judgment of conviction
becomes final, but such plea of
guilty later withdrawn is not
admissible in evidence against the
accused who made the plea.

It is not even considered an extra
judicial admission

RULE 130 RULES OF ADMISSIBILITY

Real evidence Demonstrative Evidence
Tangible object that played some
actual role in the matter that gave
rise to the litigation
Tangible evidence that merely
illustrates a matter of importance
in the litigation
Intends to prove that the object is
used in the underlying event
Intends to show that the
demonstrative object fairly
represents or illustrates what it is
alleged to be illustrated

SEC 8 RULE 130 PRODUCTION OF
DOCUMENTS: FOR PURPOSES OF
EVIDENCE
RULE 27- MODE OF DISCOVERY
Procured by mere notice to the
adverse party, which is a condition
precedent for the subsequent
introduction of secondary
evidence by the proponent
Made by proper motion in the trial
court and is permitted only upon
good cause shown
Presupposes that the document to
be produced is intended as
evidence for the proponent who is
presumed to have knowledge of its
contents
Contemplates a situation wherein
the document is either assumed to
be favorable to the party in
possession thereof or that the
party seeking its production is not
sufficiently informed of the
contents of the same

Kinds of ambiguities
INTRINSIC OR LATENT EXTRINSIC OR
PATENT
INTERMEDIATE
On its face, the
writing appears clear
and unambiguous but
there are collateral
matters which make
the meaning
uncertain
Ambiguity is apparent
on the face of the
writing and requires
that something be
added to make the
meaning certain
Ambiguity consists in
the use of equivocal
words susceptible of
two or more
interpretation
Curable by evidence
aliunde
Cannot be cured by
evidence aliunde
Curable by evidence
aliunde

PAROL EVIDENCE RULE BEST EVIDENCE RULE
Presupposes that the original
document is available in court
The original document is not
available or there is a dispute as to
whether said writing is original
Prohibits the varying of the terms
of a written agreement
Prohibits the introduction of
secondary evidence in lieu of the
original document regardless of
whether or not it varies the
contents of the original
Applies only to documents which
are contractual in nature except
wills
Applies to all kinds of writings
Can be invoked only when the
controversy is between the parties
to the written agreement, their
privies, or any party affected
thereby like a cestui que trust
Can be invoked by any party to an
action whether he has participated
or not in the writing involved

PUBLIC DOCUMENT PRIVATE DOCUMENT
What comprises it

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 (Sec. 19).

All other writings are private (Sec.
19).
As to authenticity and admissibility as evidence
Admissible as evidence without
need of further proof
Before any private document
offered as
of its genuineness and due
execution
authentic is received in evidence,
its due execution and authenticity
must be proved either:
1. By anyone who saw the
document executed or written; or
2. By evidence of the genuineness
of the signature or handwriting of
the maker.

Any other private document need
only be identified as that which it
is claimed to be (Sec. 20).
As to persons bound
Evidence even against third
persons, of the fact which gave
rise to its due execution and to the
date of the latter
Binds only the parties who
executed them or their privies,
insofar as due execution and date
of the document are concerned
As to validity of certain transactions
Certain transactions must be contained in a public document; otherwise
they will not be given any validity.

Competency of a Witness Credibility of a Witness
Has reference to the basic
qualifications of a witness as his
capacity to perceive and his
Refers to the believability of the
witness and has nothing to do with
the law or the rules. (Ibid).

Mental Incapacity Mental Immaturity
The incompetence of the witness
must exist not at the time of his
perception of the facts but at the
time he is produced for
examination, and consists in his
inability to intelligently make
known what he has perceived.
(Riano, Evidence: A Restatement
for the Bar, p. 255, 2009 ed.)
The incompetence of the witness
must occur at the time the witness
perceives the event including his
incapability to relate his
perceptions truthfully.
(Ibid.)

Child witness Ordinary witness
ONLY the judge is allowed to ask
questions to a child witness during
preliminary examination
Opposing counsels are allowed to
ask questions during preliminary
examination
Leading questions are allowed Leading questions are generally
NOT allowed
Testimony in a narrative form is
allowed
NOT allowed
The child witness is assisted by a
facilitator
An ordinary witness is NOT
assisted by a facilitator

Disqualification By Reason Of
Marriage (Sec. 22)
Disqualification By Reason Of
Marital Privilege (Sec. 24)
Can be invoked only if one of the
spouses is a party to the action
Can be claimed whether or not the
other spouse is a party to the
action
Applies only if the marriage is
existing at the time the testimony
is offered
Can be claimed even after the
marriage is dissolved
Constitutes an absolute
prohibition for or against the
spouse of the witness
Applies only to confidential
communications between the
spouses
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 married person is on the stand
but the objection of privilege is
raised when confidential marital
communication is inquired into

Dead Mans Statute Marital Disqualification Rule
Only a partial disqualification as
the witness is not completely
disqualified but is only prohibited
from testifying on the matters
therein specified
A complete and absolute
disqualification
Applies only to a civil case or
special proceeding over the estate
of a deceased or insane person
GR: Applies to a civil or criminal
case.
XPN: In a civil case by one spouse
against the other or in a criminal
case for a crime committed by one
spouse against the other or the
latters direct descendants or
ascendants

Disqualification by reason of
marriage
Marital privilege
Can be invoked only if one of the
spouses is a party to the action
Can be claimed whether or not the
spouse is a party to the action
Applies only if the marriage is
existing at the time the testimony
is offered
Can be claimed even after the
marriage has been dissolved
Constitutes a total prohibition
against the spouse of the witness
Applies only to confidential
communications between the
spouses
Rights against Self-incrimination of the accused from that of an
ordinary witness

Accused Ordinary Witness
Cannot be compelled to testify or
produce evidence in the criminal
case in which he is the accused or
one of the accused, he cannot be
compelled to do so even by
subpoena or other process or
order of the court. He cannot be
required either for the
prosecution, for co-accused or
even for himself.
May be compelled to testify by
subpoena, having only the right to
refuse to answer a particular
incriminating question at the time
it is put to him.

What are the methods to impeach the adverse partys witness

BY CONTRADICTORY
EVIDENCE
BY EVIDENCE THAT
HIS GENERAL
REPUTATION FOR
TRUTH, HONESTY, OR
INTEGRITY OF THE
WITNESS IS BAD
BY PRIOR
INCONSISTENT
STATEMENTS
LAYING THE
PREDICATE"
Refers to the prior
testimony of the same
witness or other
evidence presented
by him in the same
case, but not the
testimony of other
witness
Since the weight of
the witness
testimony depends on
his credibility, he may
be impeached by
impairing his
credibility by showing
his not pleasing
reputation but only as
regards his reputation
for truth, honesty or
integrity
Refer to statements,
oral or documentary,
made by the witness
sought to be
impeached on
occasions other than
the trial in which he is
testifying

LAYING THE PREDICATE LAYING THE FOUNDATION OR
BASIS
Refers only to impeachment of a
witness through prior inconsistent
statements
Refers to a situation where
evidence which is otherwise
incompetent will be introduced
into evidence because it falls
under the rules of exclusion. E.g.
under the best evidence rule, a
party must first prove that a
writing was duly executed and that
the original has been lost or
destroyed. Without first laying the
foundation, secondary evidence
will not be admitted by the court.

ADMISSION CONFESSION
A statement of fact which does not
involve an acknowledgment of
guilt or liability
A statement of fact which involves
an acknowledgment of guilt or
liability
May be made by third persons and
in certain cases, are admissible
against a party
Can be made only by the party
himself and, in some instances, are
admissible against his co-accused
May be express or implied Always express

Judicial admission Extra-judicial admission
Rule 129 Sec 4 Rule 130, Sec 26
In the course of a proceeding in
the same case
Out-of-court declaration
Does not require proof Requires proof
Conclusive upon the admitter Rebuttable
Admissible even if self-serving Admissible ONLY if disserving
Subject to cross examination Not subject to cross examination

Offer of compromise Ordinary admission
The proposal is tentative and any
statement made in connection
with it is hypothetical--- to buy
peace and, in contemplation of
mutual concessions.
The intention is apparently to
admit liability and to seek to buy
or secure relief against a liability
recognized as such.
DECLARATION AGAINST INTEREST ADMISSIONS
Must have been made against the
proprietary or pecuniary interest
of the party
Need not be made against the
proprietary or pecuniary interest
of the party
Secondary evidence. Must have
been made by a person who is
either deceased or unable to
testify
Made by a party himself, and is a
primary evidence and competent
though he be present in court and
ready to testify
Must be made ante litem motam.
(Regalado, Vol. II, p. 755, 2008 ed.)
May be made at any time. (Ibid)
Admissible even against third
persons.
Admissible only against the party
making the admission.
It is an exception to the hearsay
rule. (Riano, Evidence: A
2009 ed.)
It is NOT an exception to the
hearsay rule. (Ibid.) Covered by
the hearsay rule
The fact asserted in the
declaration must have been at the
time it was made so far contrary to
the declarants own interest
Need not be considered by the
declarant as opposed to his
interest at the time when made, it
is enough if it is inconsistent with
his present claim and defenses
It is NOT necessary that the
declarant be a party to the action;

It is admissible to an action where
his declaration is relevant
It is competent only when the
declarant or someone identified in
interest is a party to the action
May be admitted against himself
or successor in interest and against
third person
Used only against the party
admitting and those identified
with him in legal interest
Declarant must be dead aor at
least unable to identify
Receivable even if the admitter is
alive

Section 39 Section 40
Act or declaration about pedigree Family reputation or tradition
regarding pedigree
Declarant is dead or unable to
testify
Declarant is the witness himself
Witness need not be a member of
the family
Witness is a member of a family
Relation of the declarant and the
person subject of the inquiry must
be established by independent
evidence
The witness is himself the one to
whom the fact relates, it is not
necessary for him to establish by
independent evidence his
relationship to the family

Matters of public interest Matters of general interest
Common to all citizens of the state
or to the entire people
Common only to a single
community or to a considerable
number of person forming part of
the community

Common reputation Rumor
Presupposes the existence of a
general belief already formed on
which the general opinion is
founded
Story current without known
authority for its truth and
therefore by its nature, does not
yet represent the prevailing belief
in a community

HEARSAY EVIDENCE OPINION EVIDENCE
Consists of testimony that is not
based on personal knowledge of
the person testifying
Expert evidence based on the
personal knowledge, skill,
experience or training of the
person testifying and evidence of
an ordinary witness on limited
matters

RES GESTAE DYING DECLARATION
It is the event itself which speaks A sense of impending death takes
the place of an oath and the law
regards the declarant as testifying
May be made by the killer after or
during the killing or that of a third
person
Can be made by the victim only
May precede, or accompany or
follow the principal act
Confined to matters occurring
after the homicidal act
Justification is the spontaneity of
the statement
Justification is the trustworthiness,
being given by the person who was
aware of his impending death

Verbal acts Spontaneous Statements
The res gestae is the equivocal act The res gestae is the startling
occurrence
Verbal act must be
contemporaneous with or must
accompany the equivocal act
Statements may be made prior, or
immediately after the startling
occurence

ENTRIES IN THE COURSE OF
BUSINESS
ENTRIES IN OFFICIAL RECORD
It is sufficient that the entrant
made the entries pursuant to a
duty be it legal, contractual, moral
or religious.
The entrant, if a private individual,
must have acted pursuant to a
specific legal duty specially
enjoined by law.
Entrant must be dead or unable to
testify.
No such requirement
Needs authentication Need not be authenticated
Best evidence rule applies Exception to best evidence rule
(irremovability of public records)

CHILD WITNESS ORDINARY WITNESS
Only the judge is allowed to ask
questions to a child
witness during preliminary
examination
Opposing counsels are allowed to
ask questions during preliminary
examination
allowed
not allowed
Leading questions are allowed Leading questions are generally
not allowed
The child witness is assisted by a
support person
An ordinary witness is not assisted
by a support person

Burden of Proof Burden of evidence
Does not shift and remains
throughout the entire case exactly
where the pleadings originally
placed it
Shifts from party to party
depending upon the exigencies of
the case in the course of the trial
pleadings filed by the party
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 alleged.

Presumptions Judicial Admissions and Judicial
Notice
The proponent still has to
introduce evidence of the basis of
the presumption
As a rule, the proponent need not
introduce any evidence

Effect of legal Presumption upon:
Burden of Proof Burden of Evidence
It does not shift the burden of
proof, which remains where it is,
but by the presumption, the one
who has that burden is relieved
from the time being, from
introducing evidence in support of
his averment because the
presumption stands in the place of
evidence.
It creates a prima facie case and
thereby sustains the said burden
of evidence on the point which it
covers, shifting it to the other
party. It relieves those favored
thereby of the burden of proving
the fact presumed

Presumptions of law Presumptions of fact
Certain inference must be made
whenever the facts appear which
furnish the basis of the inference
Discretion is vested in the tribunal
as to drawing the inference
Reduced to fixed rules and form a
part of the system of jurisprudence
Derived wholly and directly from
the circumstances of the particular
case by means of the common

Contradictory evidence Prior Inconsistent statements
It refers to other testimony of the
SAME witness, or other evidence
presented by him in the SAME
case, but not the testimony of
another witness
It refers to statements, oral or
documentary, made by the
witness sought to be impeached
on occasions OTHER THAN the trial
in which he is testifying.

Present Memory Revived Past Recollection Recorded
Memory is obscure but there is
still memory
Recollection is zero
The main evidence The main evidence is 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
Witness must swear that the
writing correctly states the
transaction

Public writing Private Writing
As to authenticity A public document is
admissible in evidence
without further roof
of its genuineness and
due execution
A private writing must
be proved relative to
its due execution and
genuineness, before it
may be received in
evidence
As to persons bound 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
A private writing binds
only the parties who
executed it or their
privies insofar as due
execution and date of
the document are
concerned
AS to validity of
certain transaction
Certain transactions
must be in a public
document, otherwise
they will not be given
any validity

Testimonial/ oral evidence Documentary and object
evidence
At the time the witness is called to
testify
After the party has presented his
testimonial evidence before he
rests
NOTE:
IMPLIED OFFER:
Every time a question is asked of a
witness, there is an implied
automatic offer of the evidence
sought to be elicited by the
question. If there is any objection
to the question, the same must be
raised immediately; otherwise
there is a waiver

THUS, oral evidence is always
being offered TWICE:

1. Before the witness
testifies; and
2. Every time a question is
asked of him
OFFERED ONLY ONCE
Identification Formal Offer
Identification of documentary
evidence is done in the course of
the trial and is accompanied by the
marking of the evidence as an
exhibit
Formal offer of documentary
evidence as an exhibit is done
when the party has presented his
testimonial evidence

Manner of Offering Time to make objection
Evidence offered orally Made immediately after the offer
is made
For questions propounded in the
course of the oral examination of a
witness
Made as soon as the grounds
therefore shall become reasonably
apparent
In case of an offer of evidence in
writing
Within 3 days after notice of the
offer unless a different period is
allowed by the court

Offer of Proof/Tender of Excluded
Evidence
Offer of Evidence
ONLY resorted to if admission is
refused by the court for purposes
of review on appeal
Refers to testimonial,
documentary or object evidence
that are presented or offered in
court by a party so that the court
can consider his evidence when it
comes to the preparation of the
decision.

Positive testimony Negative Testimony
It is when the witness affirms that
a fact did or did not occur
It is when a witness states that he
did not see or know of the
occurrence of a fact
It has GREATER WEIGHT than
negative testimony since the
witness represents of his personal
knowledge the presence or
absence of fact
It has LESSER WEIGHT than
positive testimony because there
is only a total disclaimer of
personal knowledge

KATARUNGANG PAMBARANGAY

Non-appearing party Effect
Plaintiff DISMISSAL of the claim WITHOUT
PREJUDICE defendant who appears
shall be entitled to judgment on a
permissive counterclaim
Defendant Same effect as failure to file a
response under Sec 12.

Note: This shall NOT apply where
one of two or more defendants
who are sued under a common
cause of action and have pleaded a
common defense appears at the
hearing
Both parties DISMISSAL WITH PREJUDICE of
both the claim and counterclaim

SPECIAL RULES OF COURT ON ALTERNATIVE RESOLUTION

SUMMARY
PROCEEDINGS
NON-SUMMARY
PROCEEDINGS
When Service must
be made
Service must be made
to respondent before
the filing of the
petition
Service is made after
the filing of the
petition directly with
the court
Manner of Service Personal service or
courier
Personal Service or
courier

Where courier
services are not
available, resort to
registered mail is
allowed
Proof of Service Proof of service shall
be attached to the
petition filed in court.

Proof:

Personal service:
affidavit of person
who effected service.

Courier: signed
courier proof of
delivery
(Rule 1.3. AM 07-11-
08 SC October 30
2009)
Proof:

Personal service:
Written admission by
the party served, or
the official return of
the server, or the
affidavit of the party
serving,

Courier: affidavit of
the proper person
filing and service by
electronic means
allowed by agreement
of parties.

(Rule 1.8 A.M. 07-11-
08 SC October 30,
2009)

ENGLISH EXCHEQUER RULE HARMLESS ERROR RULE
It provides that a trial court's error
as to the admission of evidence
was presumed to have caused
prejudice and therefore, almost
automatically required new trial.
The appellate court will disregard
an error in the admission of
evidence unless in its opinion,
some substantial wrong or
miscarriage of justice has been
occasioned.

OFFER OF PROOF/TENDER OF
EXCLUDED EVIDENCE
OFFER OF EVIDENCE
Only resorted to if admission is
refused by the court for purposes
of
review on appeal
Refers to testimonial,
documentary or object evidence
that are presented or offered in
court by a party so that the court
can consider his evidence when it
comes to the preparation of the
decision

Remedial Distinctions

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Remedial Distinctions

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A: Substantive Law Remedial Law

Part of the law which creates,

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